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Arbitration-Reference by Court-R.S.C.,
2nd Schedule, Order 52Motion to
set aside award-Principles on
which Court proceeds Scope
of reference.
The ground that an award is ••
mistaken in law or not justified
by the evidence," is not a ground
which can be urged as a reason or
setting it aside.
The Court referred to an
Arbitrator the question whether
certain landwas the property of A
or B. The Arbitrator awarded part
of the land to A, and part to B.
The Court held that, in so
awarding, the Arbitrator had not
depa.rted from the terms of the
order of reference.
J. E. Casely Hayford, W. G.
E. Sekyi and A. Casely
Hayford for the
plaintiff-appellant, J. H.
Coussey and Dr. J.
B. Danquah for the
defendant-respondent.
The following judgments were
delivered :DEANE, C.j. THE GOLD
COAST COLONY.
This IS a motion to set aside the
award of. an arbitrator. It
appears that the plaintiff sued
the defendant for trespass before
the Circuit Judge of Ashanti and
obtained a judgment dated 9th May,
1923. Against this judgment the
defendant appealed. On the matter
coming before the Full Court on
the application and with the
consent of the parties it was
decided that the dispute between
the parties should be referred to
an arbitrator for settlement and
an order dated 18th March, 1929
and another order supplementary
thereto dated 3rd December, 1929,
were made by the Full Court for
carrying into effect the decision
of the Court.
:ijy
the Orders which may be found set
out on pages 2 and 3 of the award
the judgment of the Circuit Judge
was set aside, a survey of the
land was provided for, the
boundaries claimed by each party
marked on the plan prepared in
accordance with instructions given
by the parties and Mr. Justice
Hall a Judge of the Supreme Court
was appointed as arbitrator to
decide finally the matters in
difference between the parties,
viz. :-whether the semi-circular
tract of land edged red having as
its base the river Prah edged
green on the plan No.C 18 signed
by Mr. F. Mindham, officer in
charge, Cadastral Branch dated
15th August, 1929, is the property
of the aforesaId Kobina Foli,
Omanhene of Adansi or of Obeng
Akese, Ohene of Okyereso.
The arbitrator sat in Accra and
heard evidence adduced on behalf
of the parties to the dispute on
the 3rd, 4th, 5th, 6th, 9th,
lOth, lith, 12th, 13th, 14th, 16th
and 17th December, 1929' and on
2nd January, 1930 visited the
disputed area with Counsel
returning to Accra after a tour of
inspection on 10th January, 1930
On 31st January, 1930 he published
his award in which he alloted all
the land to the West of a
surveyor's purple line drawn ,by
his directions on the plan to the
Omanhene and all the land to the
East of the purple line to the
Ohene.
This award the Omanhene has moved
to set aside. The grounds on which
he relied were set forth in his
notice dated 10th February, 1930.
His Counsel, however, when he
appeared to support the motion
after obtaining leave to argue
additional grounds under Rule 15
Order 52 of the Rules of the
Supreme Court, took two objections
which really went to the
jurisdiction of the Court to make
the order to which he had himself
been a consenting party:-they were
(a)
that the judgment of the Circuit
Judge of Ashanti having been set
aside the Full Court had itself
done all that it could do by law
and had no jurisdiction to make
the order referring the matters to
arbitration;
(b)
that the order was bad inasmuch as
it appointed as arbitrator a Judge
of the Court who himself might
have to sit to decide whether the
award is to be set aside or not.
As, however, counsel for the
appellant at once abandoned
(a)
on the wide powers conferred on
the Court by Rule 26 Order 53
Schedule 2 of Cap. 158 being
brought to his notice, while later
on his junior admitted that h~
could not maintain that the order
was bad merely because a Judge of
the Supreme Court had been
appointed as arbitrator, these
contentions need not detain us and
we can pass on to the grounds for
setting aside the award set out in
his notice of 10th February, 1930.
Before doing so, however, it will
be as well to e<m.':iider first
the principles by which the Court
should be guided in setting aside
the award of an arbitrator whose
decision it has been agreed shall
be final. These may be summed up
in the statement that in
submissions to arbitration the
general rule is that as the
parties choose their own
arbitrator to be the judge in the
disputes between them, they cannot
when the award is good on its
face, object to his decision,
either upon the law or the facts.
In
Fuller v. Fenwick
(1846) 16
L.]. CPo
79 where it was sought to set
aside an award Maule, J., stated:
" If this case had gone on, in
the
usual course the law would have
been determined by a Judge and the
facts by a jury. The parties have
thought fit to withdraw the case
from this form of trial and have
thought that an arbitrator was
more proper to decide matters of
fact than a jury and could more
conveniently dispose of matters of
law than a Judge on account of the
expense of contesting before a
Court an intricate point of law.
The Courts therefore treat a
reference as an agreement by the
parties to leave matters both of
law and fact to the arbitrator and
to consider his award final unless
there is something upon the face
of it which is inconsistent-In
Montgomery Jones
Kobina Foli v. Obeng Akese.
G
Co. and Liebenthal, In re
(1898) 78
L.T.
406
G.A.
Smith L.J. said: ' I for my part
have always understood the general
rule to be that parties took their
arbitrators for better or for
worse both as to decisions of fact
and decisions of law. That is
clearly the law'.
II
Now in this case there had been a
long standing dispute as to the
ownership of this piece of land,
judgment had heen given so long
ago as 1923 in Ashanti but had not
reached the Full Court for review
until 1928; there it had been seen
that the matters could not be
decided finally on the materials
before the Court and therefore on
the application of the parties,
the Court had agreed instead of
sending the matters back before a
Tribunal before which litigants
have not the right to appear by
counsel to render skilled
assistance in the unravelling of
the intricacies of these cases and
which therefore must inevitably be
handicapped in every way from
giving a reasonable decision
within a reasonable time to spare
one of its own judges who
commanded the confidence of both
sides to act as an arbitrator to
give a final decision on a matter
in which it was of the utmost
importance that a speedy and
proper settlement should be
arrived at.
The rule of law therefore which
prohibits the Court from
interfering unless there is some
error apparent on the face of the
award will be seen to be of great
importance in this case and this
Court will not interfere to set it
aside unless such error is clearly
apparent.
If now we turn to the reasons
given for setting the award aside
it will be at once apparent that
with the exception of reasons I,
2,3, 10, 14 and 15 which are
concerned with the question
whether or not what the arbitrator
did was within the scope of his
reference all the other reasons
challenge the decision of the
arbitrator on the ground that it
was" mistaken in law or not
justified by the evidence." It is
quite clear therefore that if the
principles of law which I have
stated above are sound, they are
prima facie
not good reasons for setting aside
the award. And if we examine them
a little more in detail, it will
be found that there is nothing to
take them out of the general rule.
If we look at the award it will be
seen that the arbitrator in
arriving at his decision laid down
the principles of law by which he
had been guided in assessing the
value of traditional evidence as
laid down by Lord Buckmaster in
Privy Council Appeal No. 16 of
1926, and in accordance therewith
emphasized the value of "actual
facts" either as supporting or
negativing the tradition,
stressing that in cases such as
the present actual occupation and
possession were the-supreme tests
on which decisions should be based
whenever possible. He then
proceeded to apply these tests to
all the evidence before him,
traditional and otherwise, with
due regard to the nature and
duration of the occupation shewn,
testing that evidence further
wherever possible by a personal
inspection of the area in question
and having formed his conclusions
on all the evidence before him
gave his decision.
In
his inspection which was over a
large area very sparsely inhabited
by largely nomadic people where
what are called villages are III
many cases mere names consisting
often of the ruins of a few mud
huts, he naturally paid great
attention to the occupation of
outstanding physical features of
the country such as the fetish
hill and to evidence as to the
occupation and possession of
important and salient points and
places, and to attack the award
because the arbitrator had not
visited some of the very numerous
"villages" and to argue from that
fact that he had not therefore
sufficient evidence on which to
base his award as to these does
not seem to me reasonable. The
evidence in which these villages
are specifically named cannot be
considered separately apart from
all the other evidence about them
which was before the arbitrator by
reason of their relative position
vis-a-vis
the important points with regard
to which possession had been
proved to his satisfaction and
therefore reasons 4 and 5 do not
seem to me to be good reasons for
setting aside the award. Then the
complaints that the arbitrator
misdirected himself on law and
that the award is erroneous in
disregarding" the plaintiff's
occupation and possession with
historical and . traditional
background" and again in
disregarding the construction of
roads by the plaintiff and
disregarding the evidence of
Witness Dapa have clearly no good
foundation since it is clear from
the very award that all these
things were taken into account by
the arbitrator, and I see nothing
to make me believe that he
did
not understand the nature of the
Privy Council judgment.
For these reasons I consider that
to set aside the award on the
reasons disclosed in grounds 4, 5,
6, 7, 8, 9, 11, 12 and 13 would be
to act contrary to the rule of
law.
If now we turn to the other
grounds given for setting aside
the award, viz. :-1, 2, 3, 10, 14
and 15, it will be seen that they
revolve themselves into three
allegations of misconduct by the
arbitrator:
(a)
that he acted in an arbitrary
manner in fixing the boundary
line;
(b)
that he acted beyond the scope of
his submission in that he gave
part of the land in dispute to the
plaintiff and part to the
defendant instead of following the
terms of the reference and
alloting the land as a whole to
one or the other;
(c)
that he delegated his duty to a
surveyor and allowed him to draw a
boundary line.
As
to
(c)
it seems to me that it would be
just as reasonable to say that the
typist who typed a book at the
author's dictation was the real
author of the book as to claim
that the purple line drawn on the
plan is the line of the surveyor
and not of the arbitrator. The
line was drawn by the surveyor who
is a skilled draughtsman by the
direction of the arbitrator in
such a way as to express the
arbitrator's decision and the hand
of the surveyor was really the
hand of the arbitrator. There is
nothing in this objection.
As to
(a)
if one thing is certain in this
matter on the face of the award,
it is that the line drawn by the
arbitrator as the boundary between
these two parties was not in any
way based on the mere whim of the
arbitrator but was the result of
laborious and careful
consideration by him. In the award
intelligible reasons are given for
the decision at which he has
arrived and I can see nothing to
support the suggestion that the
arbItrator was seeking to embody
in his award any ideas of his own
unsupported by the evidence.
Now we come to
(b)
the objection that the arbitrator
travelled beyond the scope of his
reference in a warding part of the
land to the plaintiff and part to
the defendant.
The contention is that the words
of the reference" that the·
matters in difference between the
parties herein namely whether the
semi-circular tract of land edged
red having as its base the river
Prah edged green on the plan No.
C18 signed by W. F. Mindham,
officer in charge Cadastral Branch
dated 15th August, 19'29, is the
property of aforesaid Kobina Foli,
Omanhene of Adansi or Obeng Akese,
Ohene of Okyereso, be referred to
the final decision of the said
arbitrator" empower the arbitrator
by his decision to deal only with
the land as a whole. Now that
these words could mean what the
plaintiff alleges they mean there
can be no doubt but equally, m my
opinion, they can beal the meaning
which has been put upon them by
the arbitrator. The meaning which
should be put upon them in this
particular case .therefore must
depend upon the circumstances of
the case. Supposing there were a
case in which two parties A and B
were contending about the
ownership of Blackacre, A claiming
to have bought it from C the
owner, B contending that he had
acquired it from D to whom C had
sold it prior to his sale to A,
and the question was referred to
an arbitrator to say whether the
land belonged to A or B, in such a
case if the arbitrator attempted
to divide the land between A and B
he would clearly be acting outside
the scope of his reference, but
the circumstances of this case are
clearly not of this nature. Here
are two adjoining landowners
disputing about the boundary
between them, the Omanhene claming
that his boundary goes to the
green line of the river Prah, the
Ohene that his boundary extends to
the red line shown on the plan:
the land between the two
boundaries is the disputed land,
each side claims every foot of it,
but neither side is claiming that
if one part of that disputed land
is found not to belong to it, the
rest of it must be disposed of
similarly on the contrary each
foot of the land ]s contested
separately as apart from the whole
and the arbitrator from the nature
of the case had to decide not only
what the destination of the whole
is" as in fact he has done in this
case, but in order to decide the
destination of the whole he had to
decide the destination of the
parts, insomuch as the evidence
proved to the arbitrator that the
land belongs partly to one side
and partly to the other. From the
very beginning it must have been
clear to both sides in fact, that
there being a disputed boundary in
the case, the arbitrator would
have to fix the boundary between
the parties. By the order of
reference the arbitrator is to
decide between the
plaintiff and defendant on the
question of the ownership of a
piece of land: that he has done:
he has disposed of the whole piece
of land giving part of it to
plaintiff, part to defendant and
fixing the boundary line between
them.
In my opinion he was strictly
within the terms of the Order of
reference in so deciding and I do
not consider this argument for
setting aside his a ward a good
one.
Taking into consideration all the
grounds advanced for setting aside
the award I cannot see anything in
the award to convince . me that
the arbitrator has decided wrongly
and I therefore think the motion
should be dismissed with costs.
MICHELIN, J.
I
concur.
HOWES, J.
I
concur. |
