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IN THE MATTER OF AN ARBITRATION BETWEEN
NANA SIR OFORI ATTA K.B.E., OMANHENE OF AKYEM ABUAKWA
V.
NANA KWAKU AMOAH, OHENE OF ASAMANGKESE AND KWAME KUMA, ODIKRO OF AKWATIA
WEST AFRICAN COURT OF APPEAL, WACA, HOLDEN AT ACCRA, GOLD COAST (GHANA)
19TH DAY OF MAY, 1930
2PLR/1930/8 (WACA)
OTHER CITATION(S)
2PLR/1930/8 (WACA)
(1930) I WACA PP. 15- 46
LEX (1930) – I WACA PP. 15 – 46
BEFORE THEIR LORDSHIP(S):
DEANE, C.J. THE GOLD COAST COLONY
SAWREY-COOKSON, J.
HOWES, J.
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BETWEEN
IN THE MATTER OF AN ARBITRATION BETWEEN NANA SIR OFORI ATTA K.B.E., OMANHENE OF AKYEM ABUAKWA — Plaintiff-Respondent
AND
NANA KWAKU AMOAH, OHENE OF ASAMANGKESE AND KWAME KUMA, ODIKRO OF AKWATIA — Defendants-Appellants
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REPRESENTATION
Frans Dove, A. W. Kojo Thompson and W. E. G. Sekyi — for the Defendants-Appellants
J. H. Coussey, E. C. Quist and Dr. J. B. Danquah — for the Plaintiff-Respondent
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ISSUES FROM THE CAUSE(S) OF ACTION
ALTERNATIVE DISPUTE RESOLUTION — ARBITRATION:- The Arbitration Ordinance – Motion to set aside Alleged Incompleteness of Award – Alleged inconsistency — Paramountcy — Proof of Arrangement of Custom Award binding if good on its face
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CASE SUMMARY
The parties submitted certain matters in difference between them to an arbitrator who duly made his award. The Defendants-Appellants thereupon moved to set aside the award on the following grounds (inter alia):
(1) The award was incomplete, the arbitrator having failed to decide one claim owing to there being insufficient evidence as to the morning of a certain expression used.
(2) The award was inconsistent, as it awarded ownership of land to certain parties and at the same time ordered them to pay to another party one-third of whatever came out of that land.
The Court below refused to set aside the award holding that,
(a) The claim which had not been decided was only part of the evidence intended to be adduced, and was not one of the points in difference between the parties; and
(b) There was sufficient evidence before the arbitrator to enable him to find that in this case an arrangement of custom had been proved under which the actual owner of land was bound to surrender to his paramount chief a one-third share of whatsoever came out of the land.
On appeal, the decision of the Court below was upheld on the same grounds.
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MAIN JUDGMENT
The following judgments were delivered in the Court below and in the West African Court of Appeal:
DEANE, C. J. THE GOLD COAST COLONY.
This is a motion to set aside an award made by Mr. Justice Hall sitting as an arbitrator on a submission made to him under the Arbitration Ordinance of 1928 dated 18th June, 1929. The parties to the reference were Sir Ofori Atta as Omanhene of Akyem Abuakwa of the first part, kwaku Ainoah as Ohene of Asamang kese of the second part, Kwame Kuma as Odikro of Akwatia of the third part, the said Kwame Kuma acting for himself and in his personal capacity of the fourth part, and a number of persons named in paragraph 15 of the schedule attached to the submission of the fifth part. The parties to this motion are the Ohene of Asamangkese and the Odikro of Akwatia who ask that the part of the award which deals with matters with which they are concerned in their respective capacity should be set aside and the Omanhene of Akyem Abuakwa who supports the award. That part of the award which deals with matters in dispute between the parties of the first part and the parties of the fourth and fifth part has not been challenged and does not concern us in any way in this motion.
The parties of the second and third part, to whom I shall in this discussion refer generally as the Ohene unless the context otherwise requires, have advanced numerous reasons for setting aside the award of the arbitrator. At the hearing, however, Mr. Dove abandoned reasons 4 and 10, and frankly admitted that in view of the terms of the indenture of submission he could not support reason 8: these three reasons therefore call for no further notice.
We are therefore left to deal with reasons 1, 2, 3, 5, 6, 7, 9, 10A, 11 and 12 and perhaps it will be as well to set these out in full: they are:
1. That the arbitrator misconceived the nature and the number of the matters in difference, in that in his award he made pronouncements on matters laid down by law, and which the parties could not dispute, to wit:
(a) as to the status of the parties under the Native Administration Ordinance
(b) as to the jurisdiction of the first party under the said Ordinance
(c) as to the making holding using or possessing by the stools and peoples of Asamangkese and Akwatia of emblems and paraphernalia other than those sanctioned by custom.
2. That the award is inconsistent in that it awards ownership to one party and an essential incident of ownership, i.e., ebusa, to another party.
3. That in view of his finding on claim 4 of the party of the first part, the arbitrator committed an error in law in holding that exhibit C1 established the grant of lands by the Paramount Stool to the stools of Asamangkese and Akwatia and that the Paramount Stool is entitled by the custom of Akyem Abuakwa to receive one equal third part share of all rights and profits of land alienated by the stools of Asamangkese and Akwatia or either of them and that the party of the first part is entitled to an account.
5. That the arbitrator was unable to come to any conclusion on a material claim made by the first party, namely No. 4 of the claims of the first party, and he gave only a partial decision on the claim of the first party for an account and that there is no finality.
6. That the award was ambiguous in that it declared that the first party was entitled to one-third part of the revenue of the lands of the second and third parties without considering the effect of the finding in the award that the third party was subordinate to the second party and the second party subordinate to the first party and that there is no finality.
7. That the arbitrator completely ignored and/or misunderstood and disregarded the evidence of tradition and the evidence of native custom and that he came to an inconsistent conclusion as to tradition and native custom.
9. That the arbitrator throughout the proceedings confused “ebusa”. an incident of ownership, with allegiance fee which is an incident of paramountcy.
10A. That the arbitrator was partial and unfair in that he based his decision as to the untrustfulness of the party of the second part on the differences between the facts contained in the petition (Exhibit “V”) and the facts deposed to before the arbitrator by the party of the second part whereas he the arbitrator found that the party of the second part did not sign the petition. And also that he the arbitrator with respect to the case of the party of the first part ruled during the proceedings that the claim of the first party as far as he understood was not one for ownership in the English sense and that the evidence given by witnesses for the first party that all the lands belonged to the Omanhene was all boosting up. And further that although the arbitrator found that the land belonged to the parties of the second and third parts he also found that such lands were granted to them by the party of the first part who nevertheless retained some right of ownership.
11. That the arbitrator in deciding on the veracity of illiterate witnesses neglected to consider the effect of translating from the English to the Vernacular by a different clerk from the one who had either written a letter or translated vernacular evidence into English.
12. That the award is inconsistent as regards the apportionment of costs. Because –
(a) the party of the first part claimed ownership and ownership was awarded the second and third parts;
(b) in effect the one-third awarded the party of the first part was allegiance fee; and
(c) ownership in the parties of the second and third parts is clearly opposed to the idea of a conditional grant by the party of the first part to them.
Now in order to understand the nature and point of these objections it will be necessary to know clearly what the arbitration was about and what the arbitrator decided. If we turn to the indenture of submission we find it stated in the recitals that certain disputes and differences had arisen and were still pending between the party of the first and the parties of the second and third part “in connection with the chiefship, rights, privileges, jurisdictions, dignities and pre-eminencies touching the relationship between their stools; which differences and disputes referred to as the matters in dispute” are more particularly defined in the schedule attached to the indenture, the scope and compass of which for the purposes of the submission must be construed “ beneficially to the intent that the arbitrator may more completely, satisfactorily, definitely and exhaustively be enabled and empowered to determine all differences and disputes between the parties”: that much costly and inconclusive litigation had taken place between the parties touching the matters in difference, and that therefore with a view to a final and definitive determination and settlement of the matters in difference the parties had agreed “and do hereby expressly covenant and agree that all matters in difference and dispute” between the parties hereto shall be referred to arbitration “in manner hereinafter appearing.”
Put in less technical language this amounts shortly to a statement that there were numerous disputes pending between the Omanhene and the Ohene touching the relations between their stools and that these differences which were more particularly described in the schedule were to be referred to arbitration always remembering, however, that the arbitrator should not be tied down by the letter of the schedule but should put the widest construction upon it so as to enable him to give an exhaustive finding with a view to a final and definite settlement of the disputes between the parties.
While therefore the arbitrator was to use the schedule as some indication to him of the matters in difference, it would be his duty on hearing the whole case to for his opinion as to all matters at issue between the parties and to settle by his award any matter which, on a liberal interpretation of its language, might be held to be reasonably within the ambit of the schedule. The special object of the award, moreover, was to effect a practical settlement of the differences which had arisen between the parties with a view to a modus vivendi between them so that there might be no further litigation. It was not, therefore, in my opinion incumbent on the arbitrator to exercise his critical faculties in writing a philosphical treatise on the relations between native stools in general or between these native stools in particular, but simply to say for practical purposes what his conclusions were touching the matters at actual issue between the parties.
The point of this remark will become evident when I come to deal particularly with No. 5 of the grounds advanced for setting aside the award. Resuming now the main thread of my argument, we turn naturally to the schedule to which we are referred by the indenture of submission for particulars of the differences between the parties which were generally indicated in the recitals. The schedule reads as follows:
This is the schedule referred to.
Claims of the party of the first part.
1. That the stool of Asamangkese is a sub-stool in the Oseawuo wing of the Paramount Stool of Akyem Abuakwa and the said stool and its people are subject to and owe allegiance to the said Paramount Stool.
2. That the stool of Akwatia is a sub-stool in the Oseawuo wing of the Paramount Stool of Akyem Abuakwa and the said stool and its people are subject to and owe allegiance to the said Paramount Stool.
3. That the said stools of Asamangkese and Akwatia are members of the State Council of Akyem Abuakwa known as Akyemman” whose unanimous or majority decision, resolution or order in all matters affecting the Native Administration of Akyem Abuakwa is binding upon all subjects of the State of Akyem Abuakwa.
4. That the said sub-stools of Asamangkese and Akwatia serve the Paramount Stool with all lands attached to the said stools or held by them and subject to the same terms and conditions of customary tribute and other rights as the other sub-chiefs of Akyem Abuakwa in their relationship with the Paramount Stool.
5. That the assent of the Paramount Stool is according to custom necessary for the valid alienation of lands held by the stools of Asamangkese and Akwatia.
6. That the Paramount Stool is, by the custom of Akyem Abuakwa, entitled to receive one-third equal part or share of all rents and profits of lands alienated by the stools of Asamangkese and Akwatia or either of them.
7. To have an account of all lands by sale or demised alienated by the stools of Asamangkese and Akwatia or either of them without such consent; since and from the period iinmediately antecedent to and after the date of a petition of the Asamangkese and Akwatia Stools to the Acting Governor dated the 7th of October, 1921 for independence.
8. That the stools of Asamangkese and Akwatia and the people thereof are subject to the jurisdiction of the Tribunal of the Omanhene of Akyem Abuakwa and of the State Council of Akyem Abuakwa.
9. That the stool of Asainangkese and the people thereof as a sub stool of Akyem Abuakwa, are not entitled to make, bold, use or possess emblems or paraphernalia other than those sanctioned by custom, declaration of which customary law is published in the Gold Coast Gasoite No. 36 dated 11th May, 1929.
10. That the stool of Akwatia and the people thereof, as a sub-stool of Akyem Abuakwa, are not entitled to make, hold use or possess emblems or paraphernalia other than those sanctioned by custom, declaration of which customary law is published in the Gold Coast Gazette No. 36 dated Ilth May, 1929.
Claims of the parties of the second, third, fourth and fifth part.
11. Whether –
(a) Nana Kwaku Amoab is de facto Ohene of Asamangkese.
(b) Odikro Kwame Kuma is de facto Odikro of Akwatia.
12. What were the original terms of the “walking together” or ” living together” of the stool of Nana Sir Ofori Atta, Omanbene of Akyem Abuakwa and the stool of Nana Kwaku Amoah, Ohene of Asamangkese, and the stools subordinate to the Asamangkese stool, prior to the commencement of the dispute between Nana Sir Ofori Atta and Nana Kwaku Amoab as to the nature of those terms:
(a) As to lands under the stool of Asamangkese and stools subordinate to that stool.
(b) As to the jurisdiction of the stool of the Omanhene of Akyem Abuakwa over persons subject to the stool of Asamangkese.
13. Whether these terms have in any way been altered or modified in remote or recent times.
14. Whether the lands attached to the stools of the Omanhene and the Odikro of Akwatia have ever been or are so attached to the stool of the Omanhene of Akyem Abuakwa as to give to the stool of the Omanhene of Akyem Abuakwa the rights of landlord or owner and impose on the stools of Asamangkese and Akwatia the burden of a tenant or to entitle the stool of the Omanhene of Akyem Abuakwa to ebusa.
Then follow two other paragraphs which refer to the disputes between the Omanhene and the parties of the fourth and fifth part, which are not the subject of this motion and which it is therefore unnecessary to set out.
Now with regard to the schedule the first thing to be said about it is that its form is not at all what one might have expected.
Referred to the schedule for particulars as to the matters in dispute between the parties, one would have expected to find a number of points settled and agreed on by both sides as subjects on which the arbitrator should pronounce. Instead of that we find that the Omanhene sets forth his claims in ten paragraphs couched in the form of propositions, just as a plaintiff would set out his statement of claim, while on behalf of the Ohene four questions are suggested for consideration.
The method adopted has all the demerits of being neither one thing nor the other: there is a claim on the one hand which is not treated as a pleading since the allegations made in it are not answered by the other side, on the other hand there are four questions propounded on the side of the Ohene with nothing to show if in the opinion of the Omanhene they are a complete summary of the matters in difference between himself and the Ohene, although the fact that he has advanced claims on his side points rather to the conclusion that in his opinion they are not. In these circumstances therefore it was left to the arbitrator taking the claims of the Omanhene and the questions propounded by the Ohene together to endeavour to extract from them exactly what matters were at issue between the parties in order to fulfil the purpose of the arbitration, viz:-to provide a modus vivendi between the parties and put an end to litigation. In the view I take of the schedule the arbitration is not necessarily incomplete because the arbitrator, with regard to one of the propositions put forward by the Omanhene and not adverted to by the Ohene, stated that the evidence was not sufficient to enable him to give an answer to that claim, since it might very well be that it was possible to arbitrate on all the matters in difference between the parties without necessarily coming to any definite conclusion with regard to that particular proposition so as to award formally on it.
To this point I shall have to return when I consider the objections to the award specifically. If we boil down the opening statements of counsel on both sides we find it advanced on behalf of the Omanhene that 200 years ago there was a great war in which the Akwamus were driven across the Volta River by the people of the Omanhene: that some of the conquered Akwamus and among them the stool of Asamangkese with its subordinate stool of Akwatia were allowed to remain on their lands after they had made submission and sworn allegiance to the conqueror, and have ever since held these lands subject to the following conditions:
(a) They serve the Paramount Stool with their lands
(b) gold nuggets found on the land must be submitted to the Paramount Stool which is entitled to appropriate one-third of the value;
(c) treasure trove must be submitted in like manner and is subject to a like reduction;
(d) further conditions of tribute and toll as to hunting and snailing;
(e) alienations of land to persons not subject of the State were contrary to custom and had to be reported to the Omanhene who was then entitled to a proportion of the purchase money.
Then follow complaints that the Ohene had disregarded these duties to the Paramount Chief; had refused to pay tribute and tolls; was granting large numbers of concessions without reference to him; had attempted to withdraw his allegiance from his stool; and was assuming more elaborate paraphernalia than by native custom he was entitled to do.
On behalf of the Ohene it was advanced that they had never been conquered and had never sworn allegiance to but were allies of the Omanhene, with whom they had entered into an agreement to render him assistance in war and for that purpose were grouped in one of the wing organisations of the State, but that the Omanhene on his side was bound to render due respect to their ancient constitution, and while they had no objection so long as this was so to being included in the State of Akyem Abuakwa under the headship of the Stool of Ofori Panin with all the incidents as to jurisdiction in the hearing of cases which such inclusion entailed, they contended that such jurisdiction could not be exercised otherwise than as a Court of Appeal: that the relations between them had been determined by the tyrannical acts of the Omanhene and they were therefore entitled to withdraw from him: that they had never paid tolls nor had the stool of the Omanhene any interest whatever in the lands attached to their stools, and that their paraphernalia having existed before the arrival of the founder of the Akyem Abuakwa State they were not restricted in any vay but were entitled to such as their means afforded.
One material fact may be noted as providing the fons et origo mali.
In July, 1919, diamonds were discovered in Akwatia, and soon after for the first time large concessions began to be granted to European mining companies. The Omanhene not only claimed to be consulted but to share in the proceeds arising from these concessions. As the Ohene resisted these demands relations which up to that time had been normally friendly became strained. The Omanhene insisted upon his rights, the Ohene claimed that he was entitled to declare his independence of him, and was actually deposed from his stools by the Government although subsequently re-instated. Much turmoil and litigation ensued. Hence this arbitration,
Having thus sketched out what the arbitration was about let us now see what the arbitrator decided and we shall then be in a position to follow the objections to his award. He first lucidly and exhaustively discussed the issues before him in a memorandum which extends from page 112 to 128 of the record, and then summed up his findings in a series of answers to each of the paragraphs of the schedule which I have already quoted as follows:
I accordingly award and adjudge.
1. That the stool of Asamangkese is a sub-stool in the Oseawuo wing of the Paramount Stool of Akyem Abuakwa and the said stool and its people are subject to and owe allegiance to the Paramount Stool.
2. That the stool of Akwatia is a sub-stool in the Oseawuo wing of the Paramount Stool of Akyem Abuakwa and the said stool and its people are subject to and owe allegiance to the said Paramount Stool.
3. That the said stools of Asamangkese and Akwatia are members of the State Council of Akyem Abuakwa known as the Okyeman, and that its unanimous or majority decision resolution or order in all matters affecting the Native Administration of Akyem Abuakwa is binding upon all subjects of the State of Akyem Abuakwa if made in accordance with the laws of the Gold Coast Colony now obtaining.
4. That as regards claim four there has not been sufficient evidence brought before me as to the meaning of the term “serving with the land,” which is not an English expression, to enable me to come to a decision on this claim.
5. That the assent of the Paramount Stool is not according to custom necessary for the valid alienation of lands held by the stools of Asamangkese and Akwatia.
6. That the Paramount Stool is by the custom of Akyem Abuakwa entitled to receive one equal third part share of all rents and profits of lands alienated by the stools of Asamangkese and Akwatia or either of them.
7. That the party of the first part is entitled to have an account of all lands by sale or demise alienated by the stools of Asamangkese and Akwatia or either of them and from the period immediately antecedent to and after the date of a petition of the Asamangkese and Akwatia stools to the Acting Governor, dated 7th October, 1921, for independence, but that I myself am unable to make such an account in view of the lack of sufficient data.
8. That the stools of Asamangkese and Akwatia and the people thereof are subject to the jurisdiction of the Tribunal of the Omanhene of Akyem Abuakwa and of the State Council of Akyem Abuakwa in accordance with the laws of the Gold Coast Colony now obtaining.
9. That the stool of Asamangkese and the people thereof as a sub-stool of Akyem Abuakwa, are not entitled to make hold use or possess emblems or paraphernalia other than those sanctioned by custom, declaration of which customary law is published in the Gold Coast Gazette No. 36 dated 11th May, 1929.
10. That the stool of Akwatia and the people thereof as a sub-stool of Akyem Abuakwa, are not entitled to make hold use or possess emblems or paraphernalia other than those sanctioned by custom, declaration of which customary law is published in the Gold Coast Gazette No. 36 dated 11th may, 1929.
11. That Nana Kwaku Amoah is the de facto Ohene of Asamangkese and Odikro Kwame Kuma is the de facto Odikro of Akwatia.
12. That there were no original terms of “walking together” or “living together” of the stool of Nana Sir Ofori Atta, Omanhene of Akyem Abuakwa, and the stool of Nana Kwaku Amoah, Ohene of Asamangkese and the stools subordinate to the Asamangkese stool prior to the commencement of the dispute between Nana Sir Ofori Atta and Nana Kwaku Amoah, but that the stools of Asamangkese and Akwatia surrendered to the stool of Akyem Abuakwa in ancient days at the time of the Akwamu war about 200 years ago.
13. That in view of my finding as regards claim 12, claim 13 does not arise.
14. That the lands attached to the stools of the Ohene of Asamangkese and the Odikro of Akwatia have since the grant of the predecessor of the present Omanhene of Akyem Abuakwa never been so attached to the stool of the Omanhene of Akyem Abuakwa as to give the stool of Akyem Abuakwa the rights of owner but have been so attached as to entitled the stool of the Omanhene of Akyem Abuakwa to one-third share of whatever comes out of the said land.
I further award to the party of the first part three quarters of his taxed costs as regards this part of the enquiry, such costs to be taxed by the taxing officer of the Supreme Court, Accra (vide Russell on Arbitration and Award 11th Edition page 509). Now to deal with the objections to the award seriatim. The first objection, viz.:-That the arbitrator misconceived the nature and the number of the matters in difference in that in his award he made pronouncements on matters laid down by law and which the parties could not dispute, to wit:
(a) as to the status of the parties under the Native Administration Ordinance;
(b) as to the jurisdiction of the first party under the said Ordinance;
(c) as to the making, holding, using or possessing by the stools and people of Asamangkese and Akwatia of emblems and paraphernalia other than those sanctioned by custom, need not detain us long. It is a complaint that the arbitrator has made pronouncements on matters laid down by law and not to be disputed. But it was owing to the refusal of the Ohene to recognise his subordinate position to the Omanhene, and his claim to have what emblems and paraphernalia he pleased that these matters were brought into dispute. They were among the matters specifically brought forward for decision and I have no doubt that the statement by the arbitrator of what is the law which governs them has served a useful purpose.
That they have been decided according to law is assuredly no reason for setting aside his award.
No. 2 objection is “that the award is inconsistent” in that it wards ownership to one party and an essential incident of ownership, i.e. ebusa to another party.
This is really the chief ground on which counsel for the Ohene relies to set aside the award. As I understand the contention it is that the arbitrator has really made an award which is contrary to all the principles of the native customary law of land on the Gold Coast since, while finding that the Omanhene’s ancestor granted the land to the ancestors of the Ohene and thereby ceased to be the owner, he has in effect awarded him ebusa which is the one-third share payable to the owner of land by an occupier or person having charge of the land for the owner; and that the conception of a person who is not the owner of land being entitled to ebusa which is the first and principal right of ownership is a palpable contradiction of ideas, a thing so alien to all native ideas of land tenure that the arbitrator may be said to have fathered a monstrous hybrid motion which if allowed to stand will reduce that tenure to chaos. Of course that is a serious objection and one which if substantiated might be held to invalidate the award.
I say “might” advisedly, because although it is an arguable proposition that the matter being a dispute about native customary rights the arbitrator was bound to award within the four corners of some native custom and could not travel outside and find a custom previously unknown, yet nowhere in the Indenture of Submission do I find any restriction upon the exercise of his judgment as to what rights the Omanhene possessed vis-a-vis the Ohene, so that if he found in accordance with claims advanced by the Omanhene his findings would not necessarily be bad merely on the ground that they were peculiar and unusual.
The necessity to consider this point, however, will only arise if the objectors convince me that the arbitrator (a) has awarded ebusa to the Omanhene, and (b) that by so doing he has travelled outside the principles which govern native customary land tenure.
In considering these points I would refer to a passage in a judgment of Morgan, J. in the Impatassi case quoted on page 50 of Mr. Casely Hayford’s book “Gold Coast Native Institutions.” “It may possibly be that by custom in some cases a chief can claim tribute from his sub-chiefs in respect of these lands apart from the question of the ownership of such land” as showing that tribute from one native chief to another is not a necessary concomitant of ownership, but may in some cases be paid by custom even although the payee has no rights of ownership in the land in respect of which it is paid. If the tribute here spoken of is “ebusa,” that would of course dispose of the objection, but the word tribute may in fact be used by the learned Judge to describe, and I should think it an apt description myself, of what Mr. Casely Hayford thinks should more properly be called “an allegiance fee.” In his book pages 48-49, ut supra, the learned author states: “Indeed the custom of the Paramount Chief to receive an occasional contribution, be it small or be it large, is in respect of allegiance due to him by a subordinate chief. When a Paramount Chief happens to receive ‘ebusa,’ that is one-third share of the proceeds of land, then it is by reason of the fact that the right to possess is ultimately traceable to his stool. Thus we have the case where a person receives a portion, usually a third, ebusa, of the proceeds of a sale of land by a license of that person and the case where a paramount chief receives a customary present the extent of it depending upon circumstances, upon the happening of any event in respect of which the subordinate may suitably mark his allegiance to the superior chief. The latter may be called the custom of occasional contribution to the superior chief, the former the right of the owner or the person having the right to possess, to ebusa one-third share, Much confusion of ideas would be saved by confining the term tribute to the case where a licensee is under an obligation to make one-third payment to a licensor and allegiance fee to the case where a vassal is expected to acknowledge the sovereignty of Paramount Chief by the customary present.” Now the word “tribute” has for so long been associated according to English ideas with payments made by a satrap or vassal to his overlord that I think, pace Mr. Hayford, that it will be more convenient if in discussing this question we continue to use it in order to describe what Mr. Hayford calls the “allegiance fee,” leaving the word “ebusa” to describe the contribution made to the landowner. If, then, we use the words in the sense indicated, it would at first appear, from the passage that I have quoted, that “ebusa ” alone had to do with land and came out of the produce of the land, while tribute was a personal matter or less at the option of the donor and not connected with the land in any way. This, however, is by no means the case, witness the passage already quoted from the judgment of Morgan J. where tribute (and I take the word as meaning tribute in the sense in which I use it as being the more favourable to the argument of the objectors) is distinctly said to be claimed in respect of lands apart from the question of ownership and witness also Mr. Hayford himself, pages 44 ut supra. Discussing the position of the Paramount Chief or King he states:
“Now, what are the rights of the King in respect of the lands of a community? The King qua King does not own all the lands of the State.
“The limits of his proprietary rights are strictly defined. There are first of all lands which are the essential property of the King. These he can deal with as he pleases, but with the sanction of the members of his family. Secondly there are lands attached to the stool which the King can deal with only with the consent of the councillors. Thirdly there are the general lands of the State over which the King exercises paramountcy. It is a sort of sovereign oversight which does not carry with it the ownership of any particular land. It is not even ownership in a general way in respect of which, per se, the King can have a locus standi in a Court of law. To him indeed belongs the power of ratifying and confirming what the subject grants, though he may not himself grant that which is given.”
From this passage I think it is clear that paramountcy is not in all cases merely a personal relationship divorced from all connection with the land, but that the King, even although he may not be the owner, has a very real interest in all the lands of his state. That such an interest may take practical form too in a share in the products of the lands is quite clear from page 49 of the same work, where it is stated that when a nugget is found in mining the licensee (that is the person who has a licence to be on the land) brings to the licensor (the owner) a portion of the gold with the nugget, the licensor (the owner) sending the nugget to the King so that the tribute paid to the King comes in fact directly from the land and he has a right to the nugget by reason not of ownership of the land, that is not in him, but by reason of his paramountcy, It may very well be of course, that gifts are sometimes made to the Paramount Chief without any reference to the land over which he is paramount; the point that I wish to make is that according to native custom it is not unknown for payments to be made to the Paramount Chief in respect of products of the land and that the Paramount Chief, although he may now own the land, may yet have a right to a share in the products of the land.
It thus appears that both “ebusa” and “tribute” may be shares in the products of the land, ebusa being a share due to the landowner (who may be king or commoner), tribute being a share payable to the Paramount Chief or King. How then are they to be distinguished? Not by the size of the share, since ebusa is said generally to be one-third while the King’s share of a nugget is also one-third.
Mr. Sekyi, counsel for the objectors, in answer to a question put by me, argued that the difference between them was that ebusa was certain, tribute uncertain and occasional; but while I agree with him that in ancient times uncertainty and intermittence were generally attributes of tribute, I am of opinion these qualities are accidental and not essential to the notion of tribute. If we consider the actual occasions on which tribute is alleged to be due to the Omanhene, we shall find that it was payable, according to the opening statement of his counsel which I have summarised above and which was amply supported by the evidence of numerous witnesses, in the following circumstances:
1. When gold nuggets were found on the land they had to be submitted to the Omanhene who was entitled to one-third of their value.
2. Treasure trove was dealt with in like manner.
3. Game and snails taken on the land in like manner.
4. When lands were alienated to persons not subjects of the state, the Omanhene was entitled to a share in the purchase money.
Now in the first three cases the products of the land on which tribute is levied are what I may describe as natural products of the soil as distinguished from crop which may be described as artificial products of the soil, as having been induced to grow by man, while the fourth may obviously be regarded as due to the Omanhene in lieu of rights of tribute lost to him by the alienation of land to a stranger. Ebusa on the other hand is a toll levied by the landowner on the fruit of his tenant’s labour, his crops, and by an extension of the same idea when he transfers his tenant right, on the purchase price paid for that right. Naturally in ancient times gold nuggets and treasure trove were not found every day, nor was a royal beast slain by the hunter every day, and tribute to that extent was occasional and intermittent, but one might easily conceive of a situation where the Paramount Chief would say to his sub-chief: “My share of the gold nuggets over the last three years was worth $300 and it is likely to increase, if you will pay me £50 half yearly you may keep all my tribute”: then, if the sub-chief agrees, instead of intermittent and uncertain payments as hitherto the Paramount Chief will henceforth receive a definite sum paid at regular intervals; but such payments will not, merely because they have become certain and fixed as to amount and time, become ebusa, but are to be described as payments in lieu of tribute. In my judgment the true test of what is ebusa and what is tribute is not to be found in the manner of payment but in the nature of the payment, and the arbitrator in awarding one-third of the monies paid for concessions in Akwatia was not awarding the Omanhene ebusa but tribute. Such monies are paid for the right to find and take from the soil diamonds which are natural products of the soil ; the fact that owing to modern commercial methods their taking is systematised and a lump sum or yearly sum paid for winning them is in my judgment immaterial. To deprive the Omanhene of such one-third would, in fact, be to deprive him of the tribute to which he is entitled by custom. On the other hand it is clear that the Omanhene could not claim to receive ebusa on the lands of the Ohene. The two things ebusa and tribute under modern conditions are sufficiently alike to have afforded the grounds of this quarrel. In his evidence before the arbitrator the Ohene of Asamangkese claimed that he was being paid one-third as ebusa by the Odikro of Akwatia although in the same breath he admitted he was not the owner of Akwatia lands, so that it is clear that he was mixing up the two things also. If, however, the fundamental difference between the two things is borne in mind the Ohene need not be afraid that his rights as a landowner have been encroached upon.
My conclusion therefore as to the second objection is that the objectors have not discharged the onus which lies upon them to show that the third which the arbitrator awarded was ebusa, and the objection therefore is not sustained.
The third objection is “that in view of his finding on claim 4 of the party of the first part the arbitrator committed an error in law in holding that exhibit C1 established the grant of lands by the Paramount Stool of the stools of Asamangkese and Akwatia and that the Paramount Stool is entitled by the custom of Akyem Abuakwa to receive one equal third part share of all rents and profits of lands alienated by the stools of Asamangkese and Akwatia or either of them and that the party of the first part is entitled to an account.” What is the exact meaning of this objection? In clause 4 of the schedule the Omanhene had advanced the proposition that the stools of the Ohene “served” the Paramount Stool “with all lands” just as other stools subordinate to Akyem Abuakwa. On this paragraph the arbitrator had found that sufficient evidence had not been brought before him to enable him to say what was the meaning of the expression ” serving with the land and so enable him to decide whether the proposition alleged was true and left it at that.
Now the objectors say that in view of this finding he was wrong in law in deciding that exhibit C1 established the grant of land by the Paramount Stool to the Ohene with all the consequences thereof.
Now before this objection could be sustained it is obvious that I should have to be satisfied that the arbitrator did come to his conclusions on the evidence of C1. C1 is a letter from a predecessor of the Omanhene to the Colonial Secretary in 1901, in which the Omanhene referred to the custom of one-third tribute to the Paramount Chief, and is noticed by the arbitrator as one of the elements in the evidence on which he bases his conclusions, but to say that he held that C1 established that custom, which was spoken to by numerous witnesses who testified for weeks and was practically observed by the Ohene of Asamangkese himself is, if I may say so with respect, an abuse of language, Nor can I see how it was illegal for the arbitrator to make use of the letter as evidence: the value to be attached to it, it may be argued, was slight, but certainly it was not such evidence that its admission would invalidate the award.
Ground 5 is “that the arbitrator was unable to come to any conclusion on a material claim made by the first party, viz., No. 4 of the claim of the first party, and he gave only a partial decision on the claim of the first party for an account and there is no finality.”
No. 4 claim has just been referred to, and of course if it was one of the points of difference between the parties referred to the arbitrator for settlement the failure to decide it would vitiate the arbitration. As I have indicated, however, in my opening remarks, the statement is really one of those things which the Omanhene gives notice that he will prove by way of his case. It is not a point in difference between the parties, not even being referred to by the Ohene in the questions propounded by him, and the arbitrator found that he could decide the points at issue between the parties without further exploring this point. He refers to it in his rernarks on page 127, and from his remarks it is clear that counsel did not know the exact meaning to be attached to the expression which is probably a general term implying duties of loyalty by the sub-chiefs to the Omanhene. It is possible that had the subject been explored further it would have been shown that the Ohene’s subjects, in virtue of holding these lands, owed military or other services, but there was quite enough evidence before the arbitrator to decide about the custom of one-third being payable to the Paramount Chief and this subject therefore became merely of academic interest.
With regard to the account ordered there is nothing partial about it.
It is true the arbitrator did not take it himself, as he said he had not the materials, but he ordered it to be taken and laid down the lines on which it should be taken. The objection in my opinion fails.
The sixth ground is ” that the award was ambiguous in that “it declared that the first party was entitled to one-third of the revenue of the lands of the second and third parties without considering the effect of the finding in the award that the third party was subordinate to the second party and the second party subordinate to the first party and that there is no finality. Objection might very well be taken to the statement made in this paragraph that the arbitrator found that the first party was entitled to one third of the revenue of the lands of the second and third parties. Of course he found nothing of the kind. I will, however, deal with what I understand to be the real argument of the objectors against the award.
It is, stated concretely, that the arbitrator should have found at the most that the Omanhene was entitled to one-ninth instead of one-third of the payments to the Odikro of Akwatia for mining leases, forasmuch as one-third was payable by the Odikro to the Ohene of Asamangkese as his superior and then the Ohene of Asamangkese could only he expected to pay one-third of what he had received to the Omanhene. Of course this contention loses sight entirely of the principle on which the tribute is payable to the Omanhene as Paramount Lord of all Akyem Abuakwa. Further if followed it would result in the Paramount Lord getting less than half as much as his inferior which, as Euclid would say, is absurd, and lastly—a fatal objection—no such contention was ever advanced before the arbitrator so far as I can find.
As to the contention that there is no finality, I don’t know what it means. The arbitrator’s findings are clear and final enough.
“7. That the arbitrator completely ignored and/or misunderstood and disregarded the evidence of tradition and the evidence of native custom and that he came to an inconsistent conclusion as to tradition and native custom.”
I can find no evidence in support of these vague allegations.
The arbitrator in his opening remarks certainly lays it down that accomplished facts will have much weight given to them in deciding as to the truth of the evidence on native tradition and custom, but therein he was purporting to follow an eminent English judge. As to his conclusions being inconsistent with native tradition and customs, I suppose the question of ebusa with which I have already dealt is referred to and therefore I do not propose to pursue this point further.
In my opinion there is nothing in this objection.
“9. That the arbitrator throughout the proceedings confused ebusa, an incident of ownership, with ‘allegiance fee’ which is an incident of paramountcy.”
Nothing further need, I think, be said about this.
10A and 11 are both complaints, as far as I can see, that the arbitrator believed the witnesses on the one side and did not believe those on the other although, in the opinion of the objectors, these witnesses were much more credible witnesses. I do not think such complaints are good grounds of objection to an award. An arbitrator is chosen, and especially was this arbitrator chosen, because both parties professed to have confidence in his ability and integrity. It is not contended that the arbitrator is corrupt, or malicious, or prejudiced, and therefore I take it that he has judged to the best of his ability: that is all that we can ask of him, and the fact that one of the parties thinks he came to a wrong conclusion is not a ground for setting aside the award.
12. Costs are entirely in the discretion of the arbitrator and this Court will not interfere unless it is satisfied that he has not used his discretion according to law.
I have heard nothing to make me think it was improperly exercised. Anyhow it would not be a good ground for setting aside the award.
In the result I have found that no good ground has been Nana Sir advanced for setting aside the award. I therefore dismiss the motion with costs.
–
MICHELIN, J.
This is an appeal from a ruling of the Chief Justice of this Colony, dated the 1st day of March, 1930, in which he held that no good ground had been advanced for setting aside the award, and therefore dismissed the motion with costs.
The arbitration was held by Mr. Justice Hall, a Judge of the Supreme Court of this Colony under a reference to him, by consent, out of Court, under the provisions of the Arbitration Ordinance, 1928, which was adopted from the Arbitration Act 1889 (52 and 53 Vict. C. 49). The terms of reference are contained in a submission under seal, executed between Nana Sir. Ofori Atta, Omanhene of Akim Abuakwa of the first part, Kwaku Amoah, Ohene of Asamangkese of the second part, Kwame Kuma, Odikro of Akwatia of the third part, Kwame Kuma in his personal capacity of the fourth part, and certain persons whose names are set out in the submission, of the fifth part.
By the terms of this submission all the matters in difference between the parties were referred to the award, order and deter mination of the arbitrator appointed as aforesaid. Paragraph 9 of the submission reads as follows:–
“The arbitrator may, if and as he shall think fit require any of the parties hereto, to define any particular issues arising out of or forming part of the matters in difference, and may otherwise and generally control and direct the proceedings at the hearing of this submission in such manner as he may deem best adapted for the more convenient speedy and definitive settlement of the matters in difference and of his award.”
In the schedule to the submission are set out the claims of the party of the first part and also of the parties of the second and third parts. The party of the first part put forward ten of such claims and the parties of the second and third parts four of such claims.
That part of the award which deals with the matters in dispute between the party of the first part and the parties of the fourth and fifth parts has not been challenged, and it will not be necessary therefore for me to consider that portion of the award.
Fourteen grounds of appeal were filed which are as follows:
“1. That the Court was wrong in holding that claim 4 of the party of the first part was not one of the points of difference of matters in difference between the parties because, if so, there were no points of difference or matters in difference between the parties referred to the arbitrator for settlement and the award was a nullity and should have been set aside.
“2. That the points of difference or matters in difference were contained in the claims and questions submitted by the parties to the arbitrator and that inasmuch as claim 4 of the first party was not decided the award should have been set aside.
“3. That as a matter of law there were no points of difference or matters in difference before the arbitrator to be determined by him and that his award was therefore a nullity and should have been set aside by the Court
“4. That the Court was wrong in holding that the one-third awarded to the party of the first part by the arbitrator was allegiance fee or tribute and not ebusa, as claims 4, 5, 6 and 7 of the party of the first part, having regard to the opening statements of his counsel and the evidence in support of such claims, had reference entirely to ebusa and had no reference to allegiance fee or tribute.
“5. That the Court was wrong in holding that the Arbitrator was entitled to make a finding outside the four corners of Native Law and Custom.
“6. That the finding of the arbitrator that the one-third payable by the parties of the second and third parts to the party of the first part was in respect of the Asamangkese and Akwatia lands owned by the second and third parties and the finding of the Court that the said one-third payable as aforesaid was allegiance fee or tribute were both of them peculiar and unusual and contrary to Native Custom.
“7. That the Court was wrong in holding that one-third as allegiance fee or tribute was payable or had ever been paid by the parties of the second and third parts to the party of the first part, and that there was no evidence to show how the uncertain allegiance fee or tribute was turned into the certain one- third coming out of the land.
“8. That the Court was wrong in holding that the alleged payment of nuggets, treasure trove, and snails, by whomsoever made, were in respect of allegiance fee or tribute.
“9. That inasmuch as the payments in respect of lands alienated by the parties of the second and third parts were made in obedience to orders of the ‘Okyeman illegally made, but which the parties believed to be good, the Court was wrong in holding that such payments were evidence of payment of allegiance fee or tribute.
“10. That inasmuch as there was no evidence of any grant of land to the Akwatia Stool by the Paramount Stool the Award against the party of the third part was wrong and should have been set aside.
“11. That the Court ignored Native Custom as to the party of the third part serving the party of the first part through the party of the second part, and also ignored the fact that evidence was led to show that the party of the third part was to pay one-third to the party of the second part by agreement.
“12 That even if the point that the party of the first part could only get one-ninth from the party of the third part was not directly raised before the Arbitrator, it could not be fatal but could only affect the question of costs.
“13. That in dismissing the notion to set aside the award the Court acted contrary to the Principles of Law and Equity.
“14. That the Ruling was otherwise erroneous.”
In arguing the appeal, counsel for the appellants dealt with the grounds in the following manner:
Grounds 1, 2 and 3 together, then grounds 4, 5, 6, 7, 8, 9 separately, then grounds 10, 11 and 12 together. Then ground 14. Ground 13 was not argued. For the purpose of convenience, I shall now deal with these grounds in the following order. 1, 2 and 3 together, grounds, 4, 5, 6, 7, 8 and 9 together, grounds 10, 11 and 12 together. Then ground 14.
Dealing in the first place with grounds 1, 2 and 3, learned counsel referred the Court to page 141 of the record where the arbitrator in the course of his award stated as follows:
“I accordingly award and adjudge:
4. That as regards claim 4, there has not been sufficient evidence brought before me as to the meaning of the term serving with the land,’ which is not an English expression, to enable me to come to a decision on the claim.”
Claim 4 of the claims put forward by the party of the first part reads as follows:-
“That the said sub-stools of Asamangkese and Akwatia serve the Paramount Stool with all lands attached to the Amoah said stools or held by them and subject to the same terms and and conditions of customary tribute and other rights as the mary tribute and other rights the other sub-chiefs of Akyem Abuakwa in their relationship with the Paramount Stool.”
Learned counsel submitted that the omission of the arbitrator to make a decision as to this claim was fatal, and that the award should therefore have been set aside by the Court below.
In dealing with this point the Chief Justice in the course of his judgment stated as follows:
“In the view I take of the schedule, the arbitration is not necessarily incomplete because the arbitrator with regard to one of the propositions put forward by the Omanhene, and not adverted to by the Ohene, stated that the evidence was not sufficient to enable him to give an answer to that claim, since it might very well be that it was possible to arbitrate on all matters in difference between the parties without necessarily coming to any definite conclusion with regard to that particular proposition as to award formally on it.”
Later on, he stated as follows:
“No. 4 claim has just been referred to, and of course if it was one of the points in difference between the parties referred to the arbitrator for settlement, the failure to decide it would vitiate the arbitration.
As I have indicated, however, in my opening remarks the statement is really one of those things the Omanhene gives notice that he will prove by way of this case. It is not a point in difference between the parties, not even being referred to by the Ohene in the questions propounded by him, and the arbitrator found that he could decide the points at issue between the parties without further exploring this point.”
In the course of his address before us counsel for the appellants submitted that claims 4, 5 and 6 of the claims of the party of the first part and claim 14 of the claims of the parties of the second and third parts related practically to the same fact. He contended also that claim “4” was the claim of the Omanhene that as owner of the Akim Abuakwa lands, he was entitled to “ebusa” from the parties of the second and third parts.
In my opinion although the arbitrator stated that he did not understand the meaning of the words “serving with the land,” he dealt fully in his award with all the matters embraced by claims, 4, 5, 6 and 14, and I entirely agree with the learned Chief Justice in his holding that the mere omission by the arbitrator to deal specifically with the question of ” serving with the land,” did not indicate that the arbitrator did not deal with all the points at issue between the parties. These grounds therefore fail.
Dealing now with grounds 4, 5, 6, 7, 8 and 9 which practically refer to the same matter, namely, the alleged inconsistency in the award of the arbitrator, by awarding ownership to the parties of the second and third parts and at the same time awarding one third of whatever comes out of the land to the party of the first part, Counsel for the appellants contended that the learned Chief Justice was wrong in holding that the one-third awarded by the arbitrator was in respect of “allegiance fee” and not in respect of “ebusa.” He submitted that the claim of the party of the first part was in respect of “ebusa,” and that the arbitrator awarded “ebusa” without “ownership” which was contrary to native custom. He further submitted that before “allegiance fee” could be in respect of a fixed amount, there should have been some evidence of an agreement having been arrived at as to the amount of such fee.
In dealing with this matter the Chief Justice in the course of his judgment stated as follows:
“In my judgment the true test of what is ‘ebusa’ and what is ‘tribute’ is not to be found in the manner of payment but in the nature of the payment, and the arbitrator in awarding one-third of the monies paid for concessions in Akwatia was not awarding the Omanhene ‘ebusa’ but ‘tribute’.”
Before dealing with the question of the native custom involved, it will be as well to consider, in the first place, the nature of the claims of the party of the first part and then the nature of the award by the arbitrator.
Clause 6 of the claims put forward by the party of the first part reads as follows:
“That the paramount stool is by the custom of Akyem Abuakwa entitled to receive one equal third part share of all rents and profits of lands alienated by the stools.”
In the opening statement of counsel for the party of the first part, he stated as follows:
“The stool lands, the subject matter of this arbitration, were granted by the Paramount Stool of Akyem Abuakwa to the stools of Asamangkese and Akwatia on condition:
(a) That they serve the Paramount Stool with the said lands;
(b) That any gold nuggets found on the land must be submitted to the Paramount Stool, which is entitled to appropriate one-third of the value thereof;
(c) Treasure trove must be submitted in like manner and the Paramount Stool is entitled to the same proportion of the value;
(d) There were further conditions of tribute and toll as to hunting and snailing.”
Later on, he stated as follows:
“The said stools of Asamangkese and Akwatia have neglected to pay to the paramount stool a customary tribute of one-third the consideration moneys, rents and profits in respect of the alienation in the two preceding paragraphs.”
(These paragraphs related to the alienation of lands to strangers and to the grant of mining leases to various companies).
In the course of his argument before us counsel for the appellants referred to the various claims put forward by the party of the first part, to the opening statement of counsel and to the evidence of various witnesses called on behalf of the party of the first part, to show that it was “ebusa” which the party of the first part claimed.
It will be observed, however, that there is no mention of the word “ebusa ” in the claims of the party of the first part or in the opening statement of his counsel, but this word is used in claim 14 of the claims put forward by the parties of the second and third parts.
At page 140 of the record of appeal, the following remarks of the arbitrator appear:
“It will be obvious from the above that I am about to find that the paramount stool is entitled to one-third share of whatever comes out of Asamangkese and Akwatia stool lands, but that the paramount stool is not the owner of such lands so that the consent of the Omanhene is necessary for the alienation of such lands.”
At page 114 making his award the arbitrator stated as follows:
“I accordingly award and adjudge:
“6. That the paramount stool is, by the custom of Akyem Abuakwa, entitled to receive one equal third part share of all rents and profits of lands alienated by the stools of Asamangkese and Akwatia or either of them.”
“14. That the lands attached to the stools of the Ohene of Asamangkese and the Odikro of Akwatia have since the grant of the predecessors of the present Omanhene of Akyem Abuakwa never been so attached to the stool of the Omanhene of Akyem Abuakwa as to give to the stool of the Omanhene of Akyem Abuakwa the rights of owner, but have been so attached as to entitle the stool of the Omanhene of Akyem Abua kwa to one-third share of whatever comes out of the said land.”
The word “ebusa ” is not used in the course of the award of the arbitrator, and I agree with the learned Chief Justice when he stated in the course of his judgment that what the arbitrator awarded was not “ebusa” but “tribute.”
I shall now consider the native customary law on the subject.
In the judgment of the Privy Council in the case of Angu v. Atta delivered on 23rd June, 1916, which was on appeal from the Supreme Court of the Gold Coast Colony, their Lordships state as follows:
“The land law in the Gold Coast is based upon native custom. As in the case of all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs unless the particular customs have by frequent proof in Court become so nototrious that the Courts take judicial notice of them.”
Mr. Redwar in his well-known “Comments on Gold Coast Ordinances” at page 83 states as follows:
“Native law then when it is not incorporated by judicial decision in the case of the Colony must be proved either by affirmation of native referees or by consultation with experts out of Court or by expert testimony given in the ordinary way, and must stand on the same footing as foreign law.”
In the course of his judgment in the Court below the learned Chief Justice referred to Casely Hayford on Native Institutions at page 45, where the learned author in describing the rights of the King over lands in his state, states as follows:
“Thirdly there are the general lands of the state over which the King exercises ‘paramountcy.’ It is a sort of sovereign oversight which does not carry with it the ownership of any particular land. It is not even ownership in a general way in respect of which per se the King can have a locus standi in a Court of law. To him indeed belongs the power of ratifying and confirming what the subject grants, though he may not himself grant that which is given.”
He also referred to the judgment of Morgan, J. in the Impatasie case, which is referred to in Casely Hayford’s Native Institutions at page 50 and is reported in Sarbah’s Fanti Law Reports at pages 134-140.
In the course of that judgment the following remarks appear:
“It may possibly be that by custom in some cases a Chief can claim tribute from his sub-chiefs in respect of their lands, apart from the question of ownership of such land.”
The arbitrator had before him a considerable amount of evidence as to the particular custom in force in Akim Abuakwa, both on behalf of the party of the first part and also on behalf of the parties of the second and third parts, when he came to the following conclusion:
“In my opinion the old arrangement or custom was the Omanhene was to receive one-third of the products of soil because he was Omanhene, and it was on these terms that the land was ‘granted’ to the various sub-chiefs.”
It is clear that in forming this opinion, he based his conclusion on the paramountcy of the Omanhene and not on the question of ownership by the Omanhene of any particular land. Although there was certainly a considerable amount of evidence in proof of actual ownership, there was also evidence given to the contrary, and the arbitrator discredited the evidence as to ownership.
The following evidence of the Ohene of Asamangkese the party of the second part, at pages 102 and 103, supports the view that the payment of tribute is not necessarily an incident of ownership:
“Q. On what principles was this one-third portion you are claiming from Akwatia based?
“A. Because he is my younger brother and if he has got something it is right I must eat some.
“Q. Therefore he gives you ‘ebusa’?
“A. Yes.
“Q. The Akwatia lands, according to you, belong to the Odikio of Akwatia?
“A. Yes.
“Q. This ‘ebusa ‘ system, wherever it comes from or wherever it exists, is ancient custom?
“A. It is a custom.
“Q. Ancient?
“A. Yes, it is a custom existing.
“Q. Between a senior stool and a junior stool?
“A. Yes.
“Q. In any case the custom is that your stool is entitled to one third of anything that comes out of Akwatia lands?
“A. Yes.
“Q. And for that reason you joined the Odikro of Akwatia in granting leases for diamond mines?
“A. Yes.
“Q. So that you should know what comes in, and your correct share?
“A. Yes.”
Although counsel for the appellants suggested that the payment of one-third by the stool of Akwatia to the stool of Asamangkese was only due to the fact of the relationship existing between the present holders of the respective stools, and should not be taken as evidence of the native custom prevailing in the state of Akim Abuakwa, it appears to me clear from the evidence given, not only by this witness but also by the Odikro of Akwatia, that it was in respect of the paramountcy of the one stool over the other and not in respect of ownership that this tribute was paid by the subordinate stool to the superior stool, and the evidence of these witnesses certainly supports the judgment of Morgan, J. in the Impatasie case on this point. The mere fact that the word “brother” is used, does not of itself indicate that such a relationship in fact existed.
As stated by Mr. Redwar in his “Comments on Gold Coast Ordinances” at page 85:
“In considering evidence given by illiterate natives of the Gold Coast care must be taken, not to be misled by the elasticity of the terms of relationship in use amongst them. The meaning of a term of relationship should not in such cases be confined to its English legal import.”
In my opinion there was evidence before the arbitrator to justify him in coming to the conclusion that “the old arrangement or custom was that the Omanhene was to receive one-third of the products of the soil because he was Omanhene, and that it was on these terms that the land had originally been granted to the various sub-chiefs” and in awarding to the party of the first part one equal third part share of all rents and profits of lands alienated by the stools of Asamangkese and Akwatia, he was adopting the native custom so found by him.
His award clearly had no reference to the term “ebusa” which Mr. Casely Hayford in his work to which I have previously referred calls “tribute” pure and simple, which is an “incident of ownership in the customary law,” but to the word “tribute” which Mr. Casely Hayford in the same work calls “allegiance fee” and which is payable to the Oranhene by reason of his paramountcy, irrespective of the question of ownership.
I consider therefore that the Chief Justice was correct in his findings on this point, and these grounds also therefore fail.
Now as to grounds 10, 11 and 12:
In arguing these grounds, counsel for the appellants submitted that assuming any grant was made, it would be made to the Chief immediately subordinate to the Paramount Stool and he would be the person who would make grants to the Odikro or other sub-chiefs. He referred the Court to Sarbah’s Fanti National Constitution at page 17, where it is stated as follows:
“The Omanhene can live and reside, and farm on any unoccupied parts of his territory without the leave or permission of the sub-ruler who holds it as caretaker, but he cannot sell or lease it without the concurrence of such sub-ruler. He is entitled to an’ ebusa ‘ of the sub-rulers’ ebusa.”
He contended therefore that the arbitrator was wrong in holding that the party of the first part was entitled to receive one equal third part share of all rents and profits of lands alienated by the stool of Akwatia.
That stool being subordinate to the stool of Asamangkese and only serving the Paramount Stool through the stool of Asamangkese, and it having been proved that the stool of Akwatia, by agreement, paid one-third to the stool of Asamangkese, he submitted that the Paramount Stool was only entitled to receive one-third of the third which the stool of Asamangkese received from the stool of Akwatia, i.e. one-ninth of the amount received by the stool of Akwatia.
The learned author of the work cited was dealing with the particular case of an Omanhene residing on an unoccupied portion of his territory, without the leave or permission of his sub-ruler. In this particular case, however, the facts were quite different.
Here the Omanhene or his predecessors in title acquired certain land by conquest, and partitioned out such land to his various sub-chiefs under certain definite conditions.
The arbitrator in the course of his award refers to the evidence of Akosua Ebuya the Odikro of Kwamang at page 80 of the record:
“She then spoke of the Akwamu war and said that Asamangkese, Akwatia and Kwamang took part in the war on the side of the Akwamus: that Owusu Akyentente of Adansi fought against them and that we (referring to Asamangkese, Akwatia and Kwamang) fought to a certain stage when it became difficult and then we surrendered.”
She continued:-” After we surrendered we took oath and the Omanhene also offered to accept us as children and included us among his children. The Omanhene arranged that all lands which we cultivated, we should continue to cultivate or occupy as our land, to serve him as we were doing to the Akwamuhene.”
“One of the arrangernents was that whenever any person found a treasure trove on the land, a small part of it was given to him for his soul (to the finder); it was then divided into three parts. If for instance a nugget was found, it was pounded into dust and after deducting a little bit to the finder, it was then divided into three parts one-third was sent to the Omanhene one-third to the Odikro of the village and one third to the immediate relatives of the finder.”
This was traditional evidence not only of a direct grant of land to the stool of Akwatia but was also evidence in support of the custom of paying a tribute of one-third, direct to the Paramount Stool.
In the course of his award, the arbitrator stated as follows:
“In view of the evidence of accomplished facts, I am driven to the conclusion that the traditional story of the Akyem Abuakwa stool is the correct one. Of course I am not suggesting that it is true in detail; but only in outline. I shall add here that the authorities cited by Mr. Sekyi do not appear to be in any way relevant to the present case, which I find is a special one based on an ancient arrangement or custom and not on any general principles.”
In my opinion there was evidence before the arbitrator to justify him in coming to the conclusion that a customary tribute of one-third, as allegiance fee, was payable by the stool of Akwatia direct to the Paramount Stool notwithstanding the fact that it was proved that one-third was also payable by the stool of Akwatia to the stool of Asamangkese.
The learned Chief Justice was right therefore in upholding the findings of the arbitrator in this respect.
In arguing the last ground of appeal, counsel for the appellants submitted that there was nothing in the record to show that allegiance fee was ever a question in dispute before the arbitrator. I have already dealt with this matter in considering grounds 4, 5, 6, 7, 8, and 9. The whole question hinges upon the meaning placed by the arbitrator upon the words “customary tribute,” which was what the party of the first part claimed. It is clear from the authorities to which I have previously referred that “customary tribute” in its wider sense, is not restricted only to “ebusa ” or tribute pure and simple which is an incident of ownership according to native customary law, but also has reference to the tribute claimed by a paramount chief from his sub-chiefs in respect of their lands, apart from the question of the ownership of such lands, and which Mr. Casely Hayford in his work to which I have referred call “allegiance fee.”
As I have already stated, there was evidence before the Court of the custom which had for very many years prevailed in the state of Akim Abuakwa, to justify the arbitrator in arriving at the conclusion which he did on this point.
In Russell on Arbitration, 11th Edition at page 213 it is stated as follows:
“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 the case of Montgomery Jones & Co, and Liebenthal, In re (1898) 78 L.T. 406 C.A. at page 408, Smith L.J. stated as follows:
“I, for my part, have always understood the general rule to be that parties took their arbitrators for better or worse both as to decision of fact and decisions of law. That is clearly the law.”
After carefully considering all the objections raised and the evidence before the arbitrator as disclosed in his award, I have come to the conclusion that the Chief Justice was right in holding that no good ground had been advanced for setting aside the award. The decision of the Court below must therefore be upheld and this appeal dismissed with costs assessed at the sum of £64 6s.
HOWES, J.
I concur.
SAWREY-COOKSON, J.
The judgment of the learned President of this Court, which I concur, has gone into the points taken by learned counsel for the one side and the other in this appeal so fully that it is not perhaps necessary for me to say more, but the following remarks may not be superfluous:
Here we have parties to an action who, when the matters in dispute between them came on for hearing and determination, decided that the better way was to have recourse to arbitration with a view to finally determining all those matters and thus composing all their differences and avoiding all further litigation.
For that purpose an arbitrator with very special qualifications and experience and because he possessed these, was agreed upon, and the submission shows how full his powers were to be and how wide the scope of the enquiry.
Several prominent counsel represented the parties at the extremely exhaustive enquiry, and eventually the arbitrator gave his award, which in itself is a monumental work. Briefly and materially what was claimed by the party of the first part (present respondent) was that the lands, the subject matter of the dispute, belonged to him by reason of his paramountcy or overlordship, the parties of the second and third parts having become and still remaining his vassals as from the time they were conquered by one of his predecessors some 200 years ago, and as such paramount lord he claimed to be entitled to one-third of whatever came out of those vassal lands. The arbitrator decided that he (the present respondent) could not rightly claim ownership of these lands, but found as a fact that by the ancient and native customary right obtaining in the particular district concerned he was entitled to one-third as tribute.
In other words, the arbitrator found that although he could not properly claim a right to disallow any dealings with or alienation of these lands by the other parties unless he had first consented thereto, the owners of these lands were bound to pay him one-third of all profits arising from any such dealings with these lands as a mark of the allegiance they owed to him. This in view is more precisely the meaning which the arbitrator gave to the word tribute, as the learned Chief Justice has held.
The parties of the second and third parts were not content with this finding of the arbitrator and took steps to have the award set aside mainly for the reason that the finding had, in effect, left the matters for all practical intents and purposes (as alleged) in the position in which they were before recourse was had to the arbitration.
And thus the matter came before the learned Chief Justice who, after hearing much argument, held in a most comprehensive ruling to the effect that the arbitrator had neither exceeded his powers nor left undecided any point of difference which had been submitted to him.
And it is on appeal from that ruling that the matter is before this Court.
I understand the main argument and burden of complaint of the appellants to be that the award is a nullity chiefly because the arbitrator has awarded to the respondent something which be did not claim, although apparently he is well content with what he has got out of the arbitration. The appellants contend that the respondent claimed what is known as “ebusa” which Bay maintain can only be an incident of and attached to the ownership of lands, and consequently, inasmuch as it was found in their (the appellants’) favour that he (the respondent) was not the owner of their lands, he should not have been awarded any benefit arising out of these lands.
But in my opinion the learned Chief Justice rightly held (as. I have already indicated) that there is good authority for the view that the term “ebusa” is not necessarily used in the restricted sense but may be, and in this matter was, used in its wider sense in which the arbitrator applied it after hearing a vast amount of evidence as to the tribute to be paid by reason of the allegiance owed for generations past.
I have only to add that I do not think counsel for the appellants have attached sufficient weight to the proposition for which Russell on Arbitration shows there is such ample authority, that an arbitrator’s award will not be disturbed when he has made findings of fact. (See Russell on Arbitration, 11th Edition at page 184, and as summarised at page 472.)
It is clear that the trend of modern authority is to interpret the submission to arbitration sc liberally that when once an arbitrator has been selected the parties must be assumed to have taken him for better or for worse. An arbitrator being something more than a Judge his arbitrament will require more to upset it than would suffice in the case of an ordinary judgment; and not until this fact is duly appreciated will the time and money spent on such cases as this be saved.
Since, therefore, I can find nothing left undone which the arbitrator ought to have done, and nothing inconsistent in what he has found as a fact or facts on evidence which certainly was before him upon which to find such fact or facts, viz:- that though not owner of the lands of the appellants the respondent was nevertheless entitled to one-third of whatever came out of these lands by reason of their allegiance to him as their paramount chief, this appeal fails and must be dismissed with costs.
The decision of the West African Court of Appeal in this case was upheld by the Judicial Committee of the Privy Council as appears from the following judgment delivered by Lord Tomlin on the 21st of November, 1932;
This is an appeal from a judgment of the West African Court of Appeal, which dismissed an appeal from the Chief Justice of the Gold Coast Colony, who had refused an application to set aside an award in favour of the respondents made by Mr. Justice Hall of the Supreme Court of the Gold Coast, sitting as an arbitrator.
The facts which give rise to this appeal are of this nature: There is a province, or kingdom, in the Gold Coast Colony called Abuakwa. The ruler of that province who holds the title of Omanhene, and who occupies the throne or stool of that province, has under him some fourteen subordinate chiefs, the province being divided into fourteen divisions. Each of those chiefs is the Ohene of his particular division. Some of the divisions have, or, at any rate, one of them has, further sub-divisions, each of which is ruled in its turn by a still more subordinate chief, known as the Odikro.
One of the fourteen divisions of Abuakwa is Asamangkese, and Asamangkese has a sub-division known as Akwatia, and it is the Ohene of Asamangkese, and the Odikro of Akwatia who are the appellants before their Lordships, the respondent being the chief of the whole Province of Abuakwa, the Omanhene of Abuakwa.
The nature of the dispute between the parties which led to the arbitration is that the Omanhene, the respondent, claimed what may be called, for this purpose, by the neutral term of tribute from the appellants, and that that claim was disputed. The particular matter which made the question critical was that in recent years, after the discovery of gold and other minerals, and diamonds, in the territory, the appellants, from time to time, alienated part of the lands of their stools, to concessionaires who desired to seek for minerals in the territory, and the respondent, as chief of the whole province, claimed a share in the proceeds of such alienation. Eventually a submission was framed upon which the award was made. The parties failed to present to the arbitrator specified issues for him to deal with each of them put in a number of claims, and the arbitrator dealt with the matter on the basis of those claims. Such claims are all to be found in the Record at pages 6, 7 and 8. The parties also agreed as part of the submission, certain terms as to the procedure by which the arbitrator was to be governed, and those terms included a provision in these words:
“The arbitrator may, moreover, seek, obtain and act upon any information whatsoever in respect of the matters in difference between the parties thereto in relation to the said matters in dispute as he in his respective and unfettered judgment should think most advisable, and should deem best applicable to the nature and circumstances of the case, any rule of law relating to the tendering giving reception or rejection of evidence to the contrary notwithstanding. Provided always that if the arbitrator should at any time in his respective discretion so determine, the evidence to be given before him should be given upon oath or affirmation.”
In fact, the evidence before the arbitrator consisted partly of documentary evidence, and partly of oral evidence, and the arbitrator in his award has stated that he regarded the documentary evidence as of more weight than the oral evidence for the purpose of determining the questions which were raised before him.
His award is a document of considerable length, and, in the course of it, he discusses all the material which was placed before him, and sums up his conclusions, which are to be found at page 85 of the Record. There are, in all, fourteen conclusions. The first three deal with the relations between the stool of Abuakwa and the sub-stools of Asamangkese and Akwatia, and nothing turns on them. They are constitutional points on which no argument is raised before their Lordships. Conclusion 4 deals with the meaning of a phrase describing in part the relations between the rulers, and the arbitrator says that he has not enough material to enable him to come to a decision on its meaning. Then he holds in Conclusion 5:
“That the assent of the Paramount Stool was not according to custom necessary for the valid alienation of lands held by stools of Asamagkese and Akwatia.”
In Conclusion 6, which deals with an important matter, he holds:
“That the. Paramount Stool was by the custom of Akyem Abuakwa entitled to receive one equal third part share of all rents and profits of lands alienated by the stools of Asamangkese and Akwatia or either of them.”
That has to be read with Conclusion 14, where the arbitrator finds:
“That the lands attached to the stools of Ohene of Asamangkese and the Odikro of Akwatia have since the grant of the predecessor of the present Omanhene of Akyem Abuakwa never been so attached to the stool of the Omanhene of Akyem Abuakwa as to give the stool of the Omanhene of Akyem Abuakwa the rights of owner but have been so attached as to entitle the stool of the Omanhene of Akyem Abuakwa to one-third share of whatever comes out of the said land’.”
Reading that Conclusion, and Conclusion 6 together, their Lordships take the view that the arbitrator has found that the Omanhene of Abuakwa is not, in the strict sense, the owner of the lands which are attached to the stool of the Ohene of Asamangkese, or to that of the Odikro of Akwatia, but that he is entitled to a third share of whatever comes out of the lands attached to those stools, and that the phrase: “whatever comes out of the lands attached to those stools” covers that which is referred to in Conclusion 6 by the words: “all rents and profits of lands alienated by the stools,” and that these words mean that where the subordinate stools alienate out of the stool any part of the stool lands, either permanently by sale, or temporarily by lease, then what comes to the stool from that alienation by way of purchase money or rent is, in fact, part of what comes out of the land, and therefore has to bear its one-third contribution to the Omanhene of Abuakwa.
The grounds upon which their Lordships are asked to hold that this award ought to be set aside are four. It is said, first of all that there is an error in law on the face of the award, because the arbitrator is said to have held that there is no ownership in the Omanhene of Abuakwa in the lands attached to the stools of the subordinate chiefs, and that by the law of West Africa the tribute, or ebusa, payable to a head chief can only be paid, and is only exigible, in cases where the ownership of the land resides in the head chief, and that therefore there is on the face of the award, an error in law on the part of the arbitrator. That is a matter upon which their Lordships would hesitate long before they differed from the courts below. Decisions of local courts familiar with the laws and customs of the colony are naturally of great weight in any matter of that kind. The Courts below have come to the conclusion that there is no error in law on the face of the award, and their Lordships without some clear authority, would hesitate to differ; in fact, the passage to which their Lordships’ attention has been called in the judgment in the Impalasi case, referred to in Mr. Casely Hayford’s book page 50, is a passage indicating that such a tribute as the arbitrator has found to be payable in this case is a tribute which may well be possible under the local law.
The second and third points made may be taken together. The second point was that there was no sufficient legal evidence to enable the arbitrator to find the custom which he has found. The third point was that even it there was a custom, there was no evidence upon which the arbitrator could find that it extended to the proceeds of sale of lands. Their Lordships attention has been directed to the relevant parts of the Record upon this part of the case, and the evidence is set out at great length in the award. The question must depend upon the evidence as set out in the award. The appellants must show that it is patent upon the face of the award that there was no evidence at all on which the arbitrator could have come to his conclusion.
In approaching these questions regard must be had to the terms of the submission in relation to evidence to which their Lordships have already called attention.
Their Lordships are satisfied that there was ample evidence to enable the learned arbitrator to come to the conclusion that there was a custom for payment of one-third of whatever came out of the land.
Further, having regard to the document which is referred to as document “C.1,” and which appears on page 20 of the Record, in which the Omanhene of Abuakwa states what the custom was in these terms: “ It is the fashion and customary from beginning of this Akim Throne that whenever any of the Akims had to make at sale of any land or happened to obtain a rock of gold or any valuable metal from any part or parts of any land the party is bound by our rule to give up one-third of the said product to the stool, but nowadays the people are unwilling to do so as it is customary to be done,” and having regard to other passages to which attention has been called, the arbitrator was in their Lordships’ judgment justified in finding that the custom was wide enough to include the proceeds of land.
There remains only the fourth point, and that rests upon Conclusion 7 of the arbitrator which related to an account and which was: That the party of the first part was entitled to have an account of all lands by sale or demise alienated by the stools of Asamangkese and Akwatia or either of them since and from the period immediately antecedent to and after the date of a Petition of the Asamangkese and Akwatia stools to the Acting Governor, dated 7th October, 1921, for independence, but that he (the arbitrator) himself was unable to take such account in view of the lack of sufficient data.
It is said that inasmuch as the arbitrator has not seen fit to take an account of the proceeds of land sold he has left his award incomplete, that it is not final, that it is unenforceable, and that, therefore, it ought to be set aside.
It has to be borne in mind in connection with this matter that the parties never agreed in terms the points which were to be determined by the arbitrator. They put forward claims. One of the claims by the appellants was a claim to an account, but the arbitrator, in fact, does not appear ever to have called upon them to specify definitely the issues which he was to determine. Their Lordships are of opinion that the proper inference to be drawn from the material before them is that the parties did not invite the arbitrator himself to take the account, but were content that he should declare their right to it, and leave it in that position. It is difficult to see why, that being so, the parties are not entitled to enforce the award, or why the respondent should not go to the court showing that his title has been established by the award of the arbitrator, and asking, if there have been sales, that there may be an inquiry as to what sales have taken place, and an account of the proceeds of such sales. Their Lordships are of opinion that the fourth point also fails.
That being so, the appeal must fail, and their Lordships will accordingly humbly tender to His Majesty the advice that the appeal be dismissed. The costs must be paid by the appellants.
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CASES OF THE WEST AFRICAN COURT OF APPEAL & PRIVY COUNCIL