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JOSEPH RICHARD OBUADABANG LARBI AND ANOTHER
V.
OPANIN ASONG KWASI AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, NIGERIA
1ST DAY OF JUNE, 1950
2PLR/1950/21 (WACA)
OTHER CITATION(S)
2PLR/1950/21 (WACA)
(1950) XIII WACA PP. 81-84
LEX (1950) – XIII WACA 81-84
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BEFORE THEIR LORDSHIPS:
BLACKALL, P.
SMITH, AG. C.J., GOLD COAST
LEWEY, J.A.
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BETWEEN:
JOSEPH RICHARD OBUADABANG LARBI AND KWASI PRINCE AS JOINT SUCCESSORS TO KWAKU ASAGYE, LATE OF LARTEH AHENEASE (deceased) – Plaintiffs-Respondents-Appellants-Appellants
AND
OPANIN ASONG KWASI, ODAME KWASI AND OBESE KWASI, ALL OF MFRANO ANUM-APAPAM – Defendants- Appellants-Appellants
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ORIGINATING COURT
Appeal from the Supreme Court, W.A.C.A. CIV.APP.66/49.
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REPRESENTATION
Koi-Larbi — for the Appellants
Akudo-Addo — for the Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ALTERNATIVE DISPUTE RESOLUTION – ARBITRATION:- Arbitration award according to native customary law – General principles governing arbitrations – Effect of one party withdrawing before arbitration completed – Constitution of Native Appeal Courts – Construction of section 3 of the Native Courts (Colony) Ordinance, 1944, considered.
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CASE SUMMARY
The plaintiffs were the appellants.
The Supreme Court ordered a re-trial before the Native Appeal Court of Akim Abuakwa. One of the grounds of the appeal before the Supreme Court was that there had been a binding arbitration award during the proceedings before the original Native Court, and therefore an appeal did not lie. The point, however, was not argued on the appeal before the Supreme Court and was not included in the grounds of appeal before this Court. This Court, however, invited argument upon the point as empowered to do so under the provisions of Rule 32 of the West African Court of Appeal Rules of Court. It was contended by Counsel for the respondent that the award was not binding under native customary law because at a certain stage, i.e., when the arbitrators went to inspect the land in dispute, the respondents refused to point out their boundaries and withdrew from the proceedings. The Court followed (inter alia) the general principles governing arbitrations set out in the case of Omanhene Kobina Foli v. Oiene Abeng Akese (1). Counsel for the appellant took a further point on the appeal, namely that the Native Appeal Court was not properly constituted under section 3 of the Native Courts (Colony) Ordinance, 1944, on the grounds that the Governor-in-Council was only empowered to constitute as a Native Appeal Court a Court which he has also constituted as a Court of first instance. In other words, it was contended that there cannot be a Native Appellate Court exercising only appellate jurisdiction.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. The arbitration was valid and binding and that it was repugnant to good sense to allow the losing party to reject the decision of the arbitrators to whom he had previously agreed.
2. Obiter: the Court gave no ruling on the question of the constitution of the Native Appellate Court, but was disposed to consider mere was substance in the submission.
Cases referred to:
(1) Omanhene Kobina Foli v. Ohene Abeng Akese, 1 W.A.C.A. 1
(2) Ekua Ayafie v. Kwamina Banyea, Sarbah’s Faflli Law Reports, 2nd Edition, 38
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MAIN JUDGMENT
The following Judgment were delivered:
BLACKALL, P.
This is an appeal against the decision of Quashie-Idun, J., ordering a re-trial before a Native Appeal Court of Akim Abuakwa.
One of the grounds of appeal before the learned Judge was that there had been an arbitration and that the Native Appeal Court was therefore wrong in entertaining the appeal: The point does not, however, seem to have been argued before Quashie-Idun, J., and it is not included in the grounds of appeal before this Court. But as it appeared to us that the matter was of fundamental importance for the proper determination of the appeal, we invited argument upon it as empowered to do under Rule 32 of the West African Court of Appeal Rules of Court.
It appears from the record that during the proceedings in the Native Court “B” the case was adjourned, and the parties attended before what is described as arbitration panel of elders. The first question for this Court to decide is whether those proceedings amounted to an arbitration and whether the parties were bound by the award. As to this, a perusal of the proceedings satisfies me that this was not a mere negotiation for a settlement; it was a formal arbitration.
It was contended, however, by Mr Akufo-Addo for the respondents that the award was not binding under native customary law because at a certain stage, i.e. when the arbitrators went to inspect the land, the defendants refused to point out their boundaries and withdrew from the proceedings.
Now, the general principle governing arbitrations is well known, and it is set out, inter alia, in the case of Omanhene Kobina Foli v. Ohene Obeng Akese (1). In that case Deane, C. J., said:-
“… in submission 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.”
I might also refer to the case of Ekua Ayafie v. Kwamina Banyea (2), where it was held that where matters in difference between two parties are investigated at a meeting, and in accordance with customary law and general usage, a decision is given, it is binding on the parties and the Supreme Court will enforce such decision. In that case Bailey, C. J., said:-
“… after the arbitration was concluded, defendant objected to the award, because it was against him. The plaintiff, no doubt, would have objected had the award been but this way.”
But notwithstanding that object the Court held the award was a good one Mr Akufo-Addo suggests that this case is distinguishable from the present one because the Fanti law does not exactly agree in detail with Akan law. That is no doubt true, but the general principles of native customary law are based on reason and good sense and it would take a lot to convince me that Akan customary law is so repugnant to good sense as to allow the losing party to reject the decision of arbitrators to whom he had previously agreed;
Let us see, then, whether there is any cogent evidence in support of Mr Akufo-Addo’s submission. I first look at the decision of Native Court “B “. That Court had the arbitration award before it and was aware of the fact that the defendants did not agree to it. But the Court, nevertheless, gave effect to the arbitration award. I infer from this that that Court did not hold the view that Akan law differs from Fanti law in this respect. Mr Akufo-Addo, however, argues that we must look at the judgment of the Native Court of Appeal, which he submits is in his favour. Now, the ratio dicendi of that judgment seems to have been that they found there were many irregularities in the procedure of the lower Court, for although they did say that “in the above circumstances we find out that the defendant-appellants did not accept the award,” they proceeded, “in order to avoid misunderstanding and multiplicity of actions, the case should be sent to the lower Court for the trial.” That judgment in my opinion should not be construed as meaning that the Native Court of Appeal differed from the Native Court on the question of the binding validity of an arbitration award. In the result it seems to me that as there was a proper and valid arbitration, both the learned Judge and the Native Appeal Court were wrong in ordering a re-trial and the award of the arbitrators should stand.
In view of the conclusion I have arrived at about this, it is unnecessary to decide the other ground argued by Mr Larbi. But as it raises an important issue it might be well to refer briefly to it. Mr. Larbi contends that under section 3 of the Native Courts (Colony) Ordinance, 1944, the Governor-in-Council is not empowered to constitute an Appeal Court ad hoc. He must first constitute a Court which may be either Grade A, B, C or D, and having done that, the Governor-in-Council may by the same or subsequent order authorise such Court to sit as a Native Appeal Court. If one turns to the Native Courts (Colony) (Constitution. of Native Courts), No 2 Order, 1945, it will be found that all the Native Appeal Courts mentioned in the Order with one exception are graded, that is to say, they are constituted Courts of first instance and are described as, e.g. “B and Native Appeal Court”. The one exception is the Native Appeal Court of Akim Abuakwa, which it is contended was not properly constituted. I am inclined to think that there is substance in that submission, but as I have already said, it is unnecessary for me definitely to decide it.
I think the appeal should be allowed.
SMITH, AG. C.J.
I agree with the learned President and I only wish to comment on one point-on the question as to whether under Akan law an arbitration award to be binding on the parties must first be accepted by both sides. As pointed out by the learned President, the Native trial Court thought that acceptance was not necessary and it gave judgment in terms of the arbitration award.
I do not construe the judgment of the Native Appeal Court as expressing a contrary opinion on this point, and I understand their judgment to mean that because the case in the trial Court was adjourned and not struck out when the matter was referred to the panel of Elders, the Appeal Court inferred from this that the reference was made in order that the Elders should negotiate a settlement and not that they should conduct an arbitration and make a binding award.
I agree that the judgment of the trial Court should be restored.
LEWEY, J.A.
I agree. I have only two points to which I wish briefly to refer. The judgment of the Native Appeal Court contains a reference to irregularities in the proceedings in the Native Court “B” in matters of procedure and goes on to say:
“instead of to strike out the case for an arbitration the Court rather adjourned it under section 24 of the Native Courts (Procedure) Regulations, No 10 of 1945.”
This is a little obscure, but it seems to me that the Appeal Court in fact accepted the validity of the proceedings, and confirmed that they were in the nature of an arbitration. They were, however, criticising the Native Court for merely adjourning the case instead of making an end of it in view of the arbitration proceedings.
The other matter to which I wish to refer is that part of the submission of Mr Akufo-Addo where he referred to section 50 of the Native Courts (Colony) Ordinance. He suggested that the section might be invoked to justify the action of the Land Court Judge in referring the case back to the Native Appeal Court for re-trial or re-hearing. But against that Mr Larbi contended that a Native Appeal Court must be given an original jurisdiction before or when it is authorised to sit as a Native Appeal Court and before section 50 can apply. The question of the true interpretation of section 50 in this respect is an interesting one. But it is unnecessary to go into it in this case, which has been decided on another point. I mention it only because it was part of the submissions and has not, I think, been referred to by the President or the acting Chief Justice.
I agree that the appeal should be allowed.
Appeal allowed.
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