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JUDGMENT
ANIN YEBOAH, J. A.
In these proceedings the
appellant herein (the plaintiff
in the court below) seeks the
reversal of the judgment of the
court below entered in favour of
his adversary, the respondent
herein who was the defendant in
the trial High Court holden at
Akim-Oda. In his action before
the trial court the appellant
sought an order to set aside
what he described as a
redistribution of the estate of
Opanin Kweku Boadi. In addition
to this relief the appellant
also sought an order of
perpetual injunction against the
persons in whose favour the
alleged redistribution was done,
namely the respondents herein as
well as damages for trespass and
a refund of the amount paid by
him to the panel which conducted
the proceedings resulting in the
redistribution which provoked
the action herein.
This explains why the fourth to
the ninth defendants who were
members of the panel were made
parties to the action. I must
say that the reliefs indorsed on
the writ as sealed from the
registry of the court below
included a demand for cost but
in my view nothing of any
consequence needs be attached to
the said claim for it was an
incompetent relief; one which is
always in the discretion of the
court and not a legitimate head
of claim. Upon the service on
him of the writ the respondent
submitted himself to the
jurisdiction and also
counterclaimed in respect of the
proceedings leading to the
redistribution of the estate of
Opanin Kweku Boadi. In his
statement of defence and
counterclaim he described the
process leading to the
redistribution as an arbitration
and therefore naturally claimed
against the appellant that the
said arbitration was regular. In
my opinion, the effect of the
grounds raised in this appeal is
whether having regard to the
evidence, the judgment of the
trial court was reasonable. This
to my mind raises considerations
of mixed law and fact turning
upon the evaluation of the
evidence.
At the end of the pleadings
several issues were raised in
respect of which directions were
taken under Order 30 of the
rules of the trial court.
Subsequently the matter
proceeded to a full-scale trial.
In the middle of the evidence of
the appellant, a lawyer other
than the one known to the record
purportedly applied for the
setting down of the issue of
estoppel by arbitration which
was raised against the appellant
by the respondent. I wish to
note of the said process which
was filed by the new counsel
that it was one which offended
against the rules as to
appearance and or change of
solicitors but since the
appellant waived his objection
thereto and the learned trial
judge saw nothing wrong with the
said process but took action
thereon, I think that he must
have treated it as a mere
irregularity by virtue of Order
70 hence, I shall not waste any
further time beyond the passing
observation regarding what to me
was quite a serious lapse of the
settled practice of the courts
in such matters. The notice of
the application appears at page
45 of the record of proceedings
and thereafter there is no
record of any submissions being
made to the court regarding the
point filed at pages 46 to 49.
Yet at page 50 of the record
which from a close reading of
the record must have been the
first appearance at which if
anything counsel in the matter
could be heard on the
application the learned trial
judge read a ruling on the
application as follows:
"Having heard both counsel I am
of the opinion that the
preliminary issue for
determination in this case is
the validity or otherwise of the
arbitration at which the estate
of Opanin Kwaku Boadi was
allegedly redistributed. All the
other reliefs sought by the
plaintiff and the
defendants-counterclaimants
depend upon, and flow directly
from the validity or nullity of
the arbitration. It is therefore
directed that the evidence
adduced by the parties be
limited to the events that will
assist the determination of the
said preliminary issue ie- the
validity or otherwise of the
arbitration."
My first observation regarding
this order is that it is not
borne by any entry in the record
as far as the taking of the
motion is concerned. There is no
indication in the record that it
was either moved by the
applicant or any arguments were
received by the court from
counsel on same. As a matter of
fact, on the 12th of December,
2001, the last adjournment
before the delivery of the
ruling on the 21st of December
to which date the further
consideration of the case was
adjourned there was no record of
any submissions by counsel for
the respondents who were in
court and as such it is more
probable that indeed there was
no hearing of the application.
In my view, this observation
renders the ruling of the
learned trial judge one, which
was not based on the record of
what actually transpired
erroneous in so far as the
learned trial judge’s delivery
says that he had heard counsel
in the matter. I refrain from
saying what the position would
have been if he made the ruling
without making any reference to
a hearing which never took place
but purely on the motion as
filed which in my thinking
raised for his determination a
question of law in which case
the role of counsel is only to
assist him in making a
pronouncement on the legal
position beyond saying that
different considerations would
have arisen. In the instant
case, if I may remark he had
said something of a positive
nature which is not supported by
the record the effect of which
is that the only legitimate
inference that this court might
make from the proceedings is
that thesic took into account
extraneous matters without
giving the parties the benefit
of his information. I notice
that the point on which this
turns was not raised by either
party but say in answer thereto
that it being a point of law
which is apparent from an
examination of the record it is
legitimate for this court to
consider the same. See - Food
Specialties v Ramia (1989-90)
2GLR 327 per Adade JSC (as he
then was).
As a result of this ruling the
matter proceeded on the very
narrow limits directed by him at
the end of which he decided that
what transpired was not
arbitration but a negotiated
settlement, which he upheld in
favour of the respondents
against the appellant. For now,
I shall limit myself to the
question which turns on this
appeal in terms of the
complaints filed by way of
grounds of appeal and in respect
of which written statements have
been submitted to us by the
parties. I have examined the
record closely and I am of the
view that the holding as to a
negotiated settlement was not
raised by either party to the
action and by basing his
decision thereon the learned
trial judge fell into error. I
think that it is quite well
settled without any conflict of
judicial authority that
arbitrations and negotiated
settlements have different modes
of procedure and constitute
different informal methods of
seeking redress in our
traditional set up. Thus, in the
case of Mensah v Essah (1976)
1GLR 424 where a party based his
claim on an arbitration which
from the evidence did not
measure up to the essentials of
a customary arbitration the
Court of Appeal in a judgment
delivered by Francois J.A. (as
he then was) set aside the
finding of the court below on
the ground that the plaintiff
had failed to prove that what
transpired was an arbitration
properly so called. The said
decision also laid down the
distinction between arbitration
and a negotiated settlement. See
also Obadzen v Onanka II
(1982-83) GLR 46. Therefore in
my view where a party to an
action sets up one but not the
other as the plank of his case
he must be held either to
succeed or fail on his plea.
This being the case, I think
that it was not open to the
learned trial judge to have
substituted a case that is
substantially separate and
distinct from that raised by the
respondents' counterclaimants.
The situation is perhaps more
serious when one refers to the
direction given by the learned
trial judge after the hearing of
the application for the
determination of the matter by
means of evidence limited to the
validity or otherwise of the
arbitration on which the 1st,
2nd and 3rd respondents relied
to sustain their counterclaim. I
am of the opinion that having
found the arbitration not proved
in terms of the essential
requirements which ran through
the collection of cases on the
subject, the court ought to have
dismissed the counterclaim and
found for the appellant since
the basis of the proceeding
which justified the
redistribution no longer
existed.
That in my thinking is
sufficient to dispose of the
appeal on the merits but there
is one point of procedure which
struck me on the record as
fundamentally irregular. There
is first the course of procedure
adopted by the learned trial
judge following his reception of
arguments on the application
resulting in the direction,
which changed the course of the
trial. I think that a patient
examination of the pleadings
show as indeed was revealed by
the issues, which were set down
for the trial that beyond the
issure of the arbitration there
were several other matters to be
tried. I refer by way of example
to the claim by the appellant
that the estate had long been
distributed and that the
respondents had had their share
of the estate. This, in my
opinion was a serious matter
which turned on the pleadings
and yet the learned trial judge
saw it differently. That the
said issue was important and
required a determination soon
became apparent when in his
judgment, the subject matter of
these proceedings he attempted
belatedly to direct his mind to
its resolution at page 110 as
follows
"May I digress shortly and state
briefly that the plaintiffs
evidence that Opanin Kwaku Boadi
distributed all his properties
during his life time is
self-contradictory and also not
in accord with his pleadings and
therefore unconvincing".
My Lords, clearly the above
speech of the presiding judge of
the court below exposes the
error he came to when he
directed that the determination
of the action before him be
limited only to the question of
the arbitration without taking
advantage of the procedure
available to him under Order 36
rule 4 of the High Court rules
to direct a separate trial of
issues of fact which may arise
in an action and the mode and
order of such trial. In my view
if he had taken advantage of
this rule he would not have
fallen into the difficulty that
I have just referred to in an
apparent attempt to extricate
himself there from but which
attempt failed having regard to
the requirements of a fair
trial.
In the circumstances, I am of
the view that the appeal herein
succeeds the consequence of
which is that the decision of
the court below is set aside. In
place thereof having regard to
the serious lapse in the course
of procedure adopted by the
learned trial judge, I
substitute an order directing a
new trial according to law.
ANIN YEBOAH
JUSTICE OF APPEAL
ESSILFIE-BONDZIE, J.A.
I agree.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
GBADEGBE, J.A.
I also agree.
S. GBADEGBE
JUSTICE OF APPEAL
COUNSEL
ASANTE ANSONG FOR APPELLANT. |
