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Kobina Foli V. Obeng Akese (1930) LJR-WACA

Kobina Foli V. Obeng Akese (1930)

LawGlobal Hub Judgment Report – West African Court of Appeal

Arbitration—Reference by Court—R.S.C., 2nd Schedule, Order 52—Motion to set aside award—Principles on which Court proceeds—Scope of reference.

The ground that an award is ” mistaken in law or not justified by the evidence,” is not a ground which can be urged as a reason or setting it aside.

The Court referred to an Arbitrator the question whether cerf^;r1 land was the property of A or a The Arbitrator awarded part of the 14,4- W A, and part to 33.

The Court held that, in SO awarding, the Arbitrator had not departed from the terms of the order of reference.

J. E. Casely Hayford, W. G. E. Sekyi and A. Cesely Hayford for the plaintiff-appellant, J. H. Coussey and Dr. J. B. Danquah for the defendant-respondent.

The following judgments were delivered :— DEANE, C.J. THE GOLD COAST COLONY.

This is a motion to set aside the award of an arbitrator. It appears that the plaintiff sued the defendant for trespass before the Circuit Judge of Ashanti and obtained a judgment dated 9th May, 1923. Against this judgment the defendant appealed. On the matter coming before the Full Court on the application and with the consent of the parties it was decided that the dispute between the parties should be referred to an arbitrator for settlement and an order dated 18th March, 1929 and another order supplementary thereto dated 3rd December, 1929, were made by the Full Court for carrying into effect the decision of the Court.

By the Orders which may be found set out on pages 2 and 3 of the award the judgment of the Circuit Judge was set aside, a survey of the land was provided for, the boundaries claimed by each party marked on the plan prepared in accordance with instructions given by the parties and Mr. Justice Hall a Judge of the Supreme Court was appointed as arbitrator to decide finally the matters in difference between fthe.,.parties, viz. :—whether the semi-circular tract of land edged red having as its base the river Prah edged green on the plan No. C 18 signed by Mr. F. Mindham, officer in charge, Cadastral Branch dated 15th August, 1929, is the property of the aforesaid Kobina Foli, Omanhene of Adansi or of Obeng Akese, Ohene of Okyereflo.

The arbitrator sat in Accra and heard evidence adduced on behalf of the parties to the dispute on the 3rd, 4th, 5th, 6th, 9th,

10th; 11tir,12th, 13th, 14th, 16th and 17th December, 1929 and on 2nd January, 1930 visited the diSputed area with Counsel returning to Accra after a tour of inspection on 10th January, 1930

On 31st January, 1930 he published his award in which he alloted all the land to the West of a surVeyor’s purple line drawn by his directions on the plan to the Omanhene and all the land to the East of the purple line to the ()Ilene.

This award the Omanhene has moved to set aside. The grounds off which he relied were set forth in his notice dated 10th February, 1930. His Counsel, however, when he appeared to support the motion after obtaining leave to argue additional grounds • under Rule 15 Order 52 of the Rules of the Supreme Court, took two objections which really went to the jurisdiction of the Court to make the order to which he had himself been a consenting party :—they were (a) that the judgment of the Circuit Judge of Ashanti having been set aside the Full Court had itself done all that it could do by law and had no jurisdiction to make the order referring the matters to arbitration ; (b) that the order was bad inasmuch as it appointed as arbitrator a Judge of the Court who himself might have to sit to decide whether the award is to be set aside or not. As, however, counsel for the appellant at once abandoned (a) on the wide powers conferred on the Court by Rule 26 Order 53 Schedule 2 of Cap. 158 being brought to his notice, while

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on his junior admitted that he could not maintain that the order was bad merely because a Judge of the Supreme Court had been appointed as arbitrator, these contentions need not detain us and we can pass on to the grounds for setting aside the award set out in his notice of 10th lebruary, 1930.

Before doing so, however, it will be as well to “eo-nsider first the principles by which the Court should be guided in setting aside the award of an arbitrator whose decision it has been agreed shall be final. These may be summed up in the statement that in submissions to arbitration the general rule is that as the parties choose their own artiitrator to be the iudge in the disootes between them, they cannot when the award is g,,od ou its face, objcct to his decision, either upon the law or the facts.

In Fuller v. Fenwick (1846) 16 L.J. C.Y. 79 where it was sought to set aside an award Maule, J., stated : ” If this case had gone on, in the usual course the law would have been determined by a Judge and the facts by a jury. The parties have thought fit to withdraw the case from this form of trial and have thought that an arbitrator was more proper to decide matters of fact than a jury and could more conveniently dispose of matters of law than a Judge on account of the expense of contesting before a Court an intricate point of law. The Courts therefore treat a reference as an agreement by the parties to leave matters of law and fact to the arbitrator and to consider his award rinal unless there is something upon the face of it which is i:iconsisIent—ln Montgomery Jones

& Co. and Liebenthal, In re (1898) 78 L.T. 406 C.A. Smith L. J. i said : I for my part have alway !understood the general rule to bei tl that parties took their arbitrators for better or for worse both as to „”, decisions of fact and decisions of law. That is clearly the law

Now in this case there had been a long standing dispute as to the ownership of this piece of land, judgment had been given so long ago as 1923 in Ashanti but had not reached the Full Court for review until 1928 ; there it had been seen that the matters could not be decided finally on the materials before the Court and therefore on the application of the parties, the Court had agreed instead of sending the matters back before a Tribunal before which litigants have not the right to appear by counsel to render skilled assistance in the unravelling of the intricacies of these cases and which therefore must inevitably be handicapped in every way from giving a reasonable decision  within a reasonable time to spare one of its own judges who commanded the confidence of both sides to act as an arbitrator to give a final decision on a matter in which it was of the utmost importance that a speedy and proper settlement should be arrived at.

The rule of law therefore which prohibits the Court from interfering unless there is some error apparent on the face of the award will be seen to be of great importance in this case and this Court will not interfere to set it aside unless such error is clearly apparent.

If now we turn to the reasons given for setting the award aside it will be at once apparent that with the exception of reasons 1, 2, 3, 10, 14 and 15 which are concerned with the question whether or not what the arbitrator did was within the scope of his reference all the other reasons challenge the decision of the arbitrator on the ground that it was ” mistaken in law or not justified by the evidence.” It is quite clear therefore that if the principles of law which I have stated above are sound, they are prima facie not good reasons for setting aside the award. And if we examine them a little more in detail, it will be found that there is nothing to take them out of the general rule. If we look at the award it will be seen that the arbitrator in arriving at his decision laid down the principles of law by which he had been guided in assessing the value of traditional evidence as laid down by Lord Buckmaster in Privy Council Appeal No. 16 of 1926, and in accordance therewith emphasized the value of ” actual facts ” either as supporting or negativing the tradition, stressing that in cases such as the present actual occupation and possession were the supreme tests on which decisions should be based whenever possible. He then proceeded to apply these tests to all the evidence before him, traditional and otherwise, with due regard to the nature and duration of the occupation sliewni testing that evidence further wherever possible by a personal inspection of the area in question and having formed his conclusions on all the evidence before him gave his decision.

In his inspection which was over a large area very sparsely inhabited by largely nomadic people where what are called villages are in many cases mere names consisting often of the ruins of a few mud huts, he naturally paid great attention to the occupation of outstanding physical features of the country such as the fetish hill and to evidence as to the occupation and possession of important and salient points and places, and to attack the award because the arbitrator had not visited some of the very numerous ” villages ” and to argue from that fact that he had not therefore sufficient evidence on which to base his award as to these does not seem to me reasonable. The evidence in which these villages are specifically named cannot be considered separately apart from all the other evidence about them which was before the arbitrator by reason of their relative position vis-a-vis the important points with regard to which possession had been proved to his satisfaction and therefore reasons 4 and 5 do not seem to me to be good reasons for setting aside the award. Then the complaints that the arbitrator misdirected himself on law and that the award is erroneous in disregarding ” the plaintiff’s occupation and possession with historical and traditional background ” and again in disregarding the construction of roads by the plaintiff and disregarding the evidence of witness Dapa have clearly no good foundation since it is clear from the very award that all these things were taken into account by die arbitrator, and I see nothing to make me believe that he did not understand the nature of the Privy Council judgment.

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For these reasons I consider that to set aside the award on the reasons disclosed in grounds 4, 5, G, 7, 8, 9, 11, 12 and 13 would be to act contrary to the rule of law.

If now we turn to the other grounds given for setting aside the award, viz. :-1, 2, 3, 10, 14 and 15, it will be seen that they revolve themselves into three allegations of misconduct by the arbitrator : (a) that he acted in an arbitrary manner in fixing the boundary line ; (b) that he acted beyond the scope of his submission in that he gave part of the land in dispute to the plaintiff and part to the defendant instead of following the terms of the reference and alloting the land as a whole to one or the other; (c) that he delegated his duty to a surveyor and allowed him to draw a boundary line.

As to (c) it seems to me that it would be just as reasonableto say that the typist who typed a book at the author’s dictation was the real author of the book as to claim that the purple line drawn on the plan is the line of the surveyor and not of the arbitrator. The line was drawn by the surveyor who is a skilled draughtsman by the direction of the arbitrator in such a way as to express the arbitrator’s decision and the hand of the surveyor was really the hand of the arbitrator. There is nothing in -this objection.

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As to (a) if one thing is certain in this matter on the face of the award, it is that the line drawn by the arbitrator as the boundary

between these two parties was not in any way based on the mere Kobina Foil whim of the arbitrator but was the result of laborious and careful obe:Akese consideration by him. In the award intelligible reasons are given

foi the decision at which he has arrived and I can see nothing to Deane, • support the suggestion that the arbitrator was seeking to embody

in his award any ideas of his own unsupported by the evidence.

Now we come to (b) the objection that the arbitrator travelled beyond the scope of his reference in awarding part of the land to the plaintiff and part to the defendant.

The contention is that the words of the reference ” that the matters in difference between the parties herein namely whether the semi-circular tract of land edged red having as its base the river Prah edged green on the plan No. C18 signed by W. F. Mindham, officer in charge Cadastral Branch dated 15th August, 1929, is the property of aforesaid Kobina Foli, Omanhene of Adansi or Obeng Akese, Ohene of Okyereso, be referred to the final decision of the said arbitrator ” empower the arbitrator by his decision to deal only with the land as a whole. Now that these words could mean what the plaintiff alleges they mean there can be no doubt but equally, in my opinion, they can bear the meaning which has been put upon them by the arbitrator. The meaning which should be put upon them in this particular case ,therefore must depend upon the circumstances of the case. Supposing there were a case in which two parties A and B were contending about the ownership of Blackacre, A claiming to have bought it from C the owner, B contending that he had acquired it from D to whom C had sold it prior to his sale to A, and the question was referred to an arbitrator to say whether the land belonged to A or B, in such a case if the arbitrator attempted to divide the land between A and B he would clearly be acting outside the scope of his reference, but the circumstances of this case are clearly not of this nature. Here are two adjoining landowners disputing about the boundary between them, the Omanhene claiming that his boundary goes to the green line of the river Prah, the Ohene that his boundary extends to the red line shown on the plan : the land between the two boundaries is the disputed land, each side claims every foot of it, but neither side is claiming that if one part of that disputed land is found not to belong to it, the rest of it must be disposed of similarly on the contrary each foot of the land is contested separately as apart from the whole and the arbitrator from the nature of the case had to decide not only what the destination of the whole is, as in fact he has done in this case, but in order to decide the destination of the whole he had to decide the destination of the parts, insomuch as the evidence proved to the arbitz ator that the land belongs partly to one side and partly to the other. From the very beginning it must have been clear to both sides in fact, that there being a disputed boundary in the case, the arbitrator would have to fix the boundary between the parties.

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