KODUA VRS. DORA (C11/04/2024) [2025] GHAHC 21 (17 March 2025)

1 17/03/2025 IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HELD AT NKAWKAW – EASTERN REGION ON MONDAY THE 17TH DAY OF MARCH 2025: BEFORE HER LADYSHIP JUSTICE CYNTHIA MARTINSON (MRS), HIGH COURT JUDGE ______________________________________________ SUIT NO. C11/04/2024 MR. KWADWO TWENEBOA KODUA VERSUS MADAM AMMA DORA PARTIES: All parties present. LEGAL REPRESENTATION: Kwami Dorgbley Esq. holding the brief of Francis Osei-Nsiah Esq. for the Defendant/ Applicant/ Appellant present. Nana Kwasi Owusu-Poku Esq. for the Plaintiff / Respondent/ Respondent present. ______________________________________________ JUDGMENT INTRODUCTION: [1] On 16th August 2023, the Defendant / Applicant /Appellant (hereinafter called the Appellant) filed the instant appeal against the Plaintiff/Respondent/Respondent [hereinafter called the Respondent]. The appeal is in respect of a Ruling by the District Court Nkawkaw dated 22nd June 2023. 2 [2] The ruling is found at pages; 21-22 of the Record of Appeal. (ROA). The ruling concluded that, the parties agreed to be bound by the Decision of the Arbitration Panel. [3] The Court reasoned that, prior agreement to be bound cannot be displaced by subsequent act. The Magistrate, Isaac Agyei Esq. concluded that, the appellant‟s recalcitrant act of not obeying the decision of the arbitrators is not a valid ground for setting aside arbitration award against the Respondent. [4] The Court therefore awarded costs of GH500 against the Appellant in favour of the respondent. The Appellant not satisfied with the decision of the lower court has mounted this appeal against the ruling of His Worship Isaac Agyei dated 22nd June 2023. [5] It is noteworthy that, the ruling of the court on 22nd June 2023 was predicated upon a motion on notice with supporting affidavit filed by the Appellant to set aside customary Arbitration dated 21/03/2023. See page 7 of the ROA. [6] The Appellant sole ground of appeal and the reliefs being sought are as follows: GROUND OF APPEAL: I. The judgement [sic] of his Worship the District Magistrate Court cannot be supported by sections 112 [1] [a] [b] and [c] and 112 [2] of the ADR Act, Act 798 [2010]. 3 RELIEFS SOUGHT FROM THE HIGH COURT: a) The judgement (sic) of the Magistrate be set aside and judgement entered for the Appellant. MATERIAL FACTS: [7] The Respondent summoned the Appellant to an Arbitration and complaint committee of Amuana Praso Chief‟s Palace. The case was in respect of a portion of building plot that the respondent believed about 60 years ago, Appellant father pleaded with his late father, Opanin Kwaku Donkor to assemble his Corn Mill Machine free of charge thereon. According to the Respondent, Appellant‟s father wanted to put up a building but he was stopped. However, upon the demise of his father, the late Opanin Dwomoh went unto the land to start the project again. According to the Respondent, his siblings summoned Opanin Dwomoh to the then CDR and was found liable. After the death of Opanin Dwomoh, the Appellant Opanin Dwomoh‟s daughter, rented two rooms to some tenants. Appellant contention was that, her late father bought the piece of land and there was an agreement to that transaction. However, according to the arbitral report, that document was not provided to the panel. The panel gave an award against the Appellant in favour of the Respondent. From the record, I can deduce that based on the Arbitration panel‟s report dated 21/03/2023, the respondent filed an Arbitration award at the District court for enforcement purposes and the Appellant was dully served. Thereafter, the Appellant filed a motion to set aside the customary Arbitration but same was 4 struck out for want of prosecution. It was later relisted and heard on its merit and same was found against the appellant culminating in this Appeal. SUBMISSION BY THE APPELLANT‟S COUNSEL: The Appellant counsel‟s submission can be summarized as follows: [8] Counsel listed the prerequisites of the validity of a customary Arbitration as spelt out in the case of Budu II V. Ceasar [1950] GLR 410 and Dasimatsu V. Dokosi [1993-1994] GLR 463. Which are: “voluntary submission, prior agreement by both parties to accept the award of the arbitrators that the rules of natural justice were adhered to and the award was published among others”. Counsel contended that, the absence of one or more of the laid down elements made the purported customary arbitration invalid. [9] Counsel argued that, the Appellant did not voluntarily submit to customary Arbitration and there was no prior agreement by the parties to accept the award of the arbitrator. The Appellant refused to pay the panel fee of GH¢600.00 demanded by the panel. [10] Counsel again argued that, the judgement of the lower court is not supported by the evidence on record and as such is against the weight of evidence. Counsel contended that in that situation, it is incumbent on an appellate court such as this in a civil case, to analyze the entire record of appeal, and take into account the testimonies and all documentary evidence adduced at the trial 5 before arriving at its decision, so as to satisfy itself that the conclusion of the court is amply supported. [11] Counsel again contended that, an opponent who does not file Affidavit in opposition to the applicant‟s Affidavit is only deemed to have admitted the facts contained therein. However, the default did not debar him or her thereto from arguing the matter in contention on points of law. Therefore, counsel argued that, the Respondent is deemed to have admitted facts contained in the affidavit in support because he did not file an affidavit in opposition neither was the Application opposed on ground of law. [12] It is the contention of counsel for the Appellant that, there was no voluntary submission and that, the mere presence of the Appellant at a meeting which purports to arbitrate upon a dispute is no conclusive evidence of submission to arbitration. Counsel referred the court to Section 90 [3] and [4] of Act 798. According to counsel, the Appellant did not pay any token to the arbitration committee neither did she respond to a counter oath as per the evidence. [13] Counsel concluded rehashing that the respondent admitted the fact in his affidavit in support. Besides, the arbitrators were not properly appointed therefore, they could not have proceeded to award Exhibit „A‟, the Arbitration Award dated 21-3-2023 and implores the court to set it aside. 6 SUBMISSION BY COUNSEL FOR THE RESPONDENT: Counsel for Respondent‟s submission can be summarized as follows: [14] Counsel summarized the facts of the Arbitration and contended that, both parties paid Ntaadwen of 400 to the Arbitrators. In the case of the respondent, before the summons was served, which signified their willingness to submit to the arbitration. He added that, the parties went to the palace accompanied by community members and family members. [15] According to counsel, the panel invoked the Audi Alteram Partem Rule or the rule of Natural Justice by allowing the parties to state their respective cases unfettered. Counsel argued that, two parties sat through the hearing from the beginning to the end of the proceedings until the award was given. [16] Counsel contended that, after the award, the Appellant willingly agreed and sought leave from the panel to be given 2 days to hand over the keys to the structure that her father had constructed on the land and also to enable her pay the panel fee of GH¢ 600.00. Thus, the award was agreed upon by the parties and was therefore binding. Only for the Appellant to resile from the award. [17] Counsel argued that, the award was published before the parties, community and family members and that, the arbitration committee did a good job by satisfying all the requirement of a valid customary arbitration. 7 [18] Counsel conceded that, the respondent did not file an affidavit in opposition and the motion was not formally moved even though the trial judge used his discretion to hear same after relistment. He said, he would have raised an objection on ground of law under Order 16 R 1 of C.I. 59 if the Application had been formally moved. [19] He argued that, the Appellant‟s subsequent act of disobedience to the award made by the arbitration committee cannot be taken to be acts that occurred during the hearing because, the Appellant refused to pay the panel fee 2 days after the award had been given. CONSIDERATION OF THE APPEAL BY THE COURT: [20] It is the law that, an appeal is by way of re-hearing. In that case, the appellate court as in this case, has a duty to review the evidence and the law in order to determine whether the decision of the Lower Court as in this case can be supported or justified in law.  Danielli Construction Ltd. V. Mabey & Johnson Ltd. [2007-08] 1 SCGLR 60  Bakana Limited V. Osei & Another [2014] 77 GMJ 68 CA  Koranteng II & Others V. Klu [1993-1994] 1 GLR 280 SC  Nortey (No. 2) V. African Institute of Journalism and Communication & Others (No. 2) [2013-2014] 1 SCGLR 703  Tuakwa V. Bosom [2001-2002] SCGLR 61 8 Therefore, this court has to examine the Record of Appeal in this case, to determine whether the decision of the trial court dated, 22nd June 2023 in favour of the Respondent was right in law or on facts or both. APPELLANT GROUND OF APPEAL: [21] Before proceeding in this judgment, I wish to states that counsel for the appellant referred to the Ruling of the court as a Judgement. However, the said Decision of the District court is a Ruling and not a judgement this is because, the alleged Arbitral award was not from the District court. [22] It must also be noted that, the Appellant sole ground of Appeal is as below; “The judgment [sic] of his Worship the District Magistrate court cannot be supported by sections 112 [1] [a] [b] and [c] and 112 [2] of the ADR Act, Act 798 [2010]”. Therefore, a careful scrutiny of the sole ground of Appeal and submissions by the Appellant and the Respondent call for the determination of the following issues. (a) Whether the absence of an affidavit in opposition by the Respondent had any Implication on the motion heard by the trial judge culminating in this Appeal. (b) Whether the decision of his Worship Isaac Agyei Dated 22 June 2023 cannot be supported by section 112 [1] [a] [b] and [c] and 112 [2] of the ADR Act, Act 798 [2010]. 9 [c] Whether the decision by the Arbitration committee dated 21/03/2023 on the face of it is valid in law. ISSUE „A‟: [23] Taking the first issue, it is not in contention that a motion was filed by the Appellant at the court below to set aside the Customary Arbitration when the Respondent initiated an action to enforce the award. It is also not in contention that, the Motion to set aside the customary Arbitration was dully served on the Respondent at the court below. See page 13 of the record. It is also not in contention that, the motion was heard by the Magistrate and Ruling delivered on the 22/6/2023 before both parties. It should be noted that, contrary to the contention of counsel for the Respondent that the motion was not formally moved, the law is that, a court of law can hear a motion once the judge has all the processes before him. In fact, nothing stops a judge from hearing a case when the parties have been served and they all have notice of the case. The judge could give his ruling based on the processes before him. See the case of The Republic vrs. Court of Appeal Ex-parte Eastern Alloy Company Limited [2007-2008] 1 SCGLR 371. [24] From the record of proceedings however, there is evidence that the motion to set aside the Customary Arbitration was moved on the 19th May 2023 in the presence of the parties with the Appellant‟s lawyer; Mr. Francis Osei-Nsiah present. See page 19 of the record of Appeal, there was no affidavit in opposition 10 neither was any legal objection raised at the lower court. In fact, there is no indication from the record that, respondent‟s counsel was present at the court below even though counsel for the Appellant was present. Ansah JSC held in the case of Assuming & Ors v. Divestiture Implementation Committee [2008] 3 GMJ 35 pg. 48 that: “A party who is served with a motion supported by an Affidavit but does not file any Affidavit in opposition to what is deposed to against him stands a risk of having the motion granted against him. In the absence of any deposition, the respondent was deemed to have admitted the supporting affidavit albeit, sub silentio. In the circumstances, the court was at liberty to act upon what was deemed admitted for his or her decision‟‟ However, where the basis of the respondent‟s opposition to the Application is grounded solely on points of law, the respondent is not obliged to file Affidavit in opposition to the said Application. This position of the law was emphasized in the case of Bonsu v. Eyifah [2001-2002] 1 GLR 9. [25] This court therefore agrees with the contention of Counsel for the appellant that per the Respondent‟s silence, he was deemed to have admitted the contents in the Affidavit in Support filed at the lower court, see page 9 of the record. I reiterate that, the implication of the motion heard at the court below culminating in this Appeal is that, the Respondent was deemed to have admitted the content of the said affidavit in support filed at the court below although same was decided in his favour. 11 ISSUES „B‟ and „C‟: [26] I wish to consider issues „„b‟ and „c‟‟ together. For the resolution of these issues, I wish to reproduce the full provision of Section 112 of Act 798. “Setting aside customary award: 112 [1] A party aggrieved by an award may apply to the nearest District, Circuit or High Court to set aside the award on the grounds that the award; (a] Was made in breach of the rules of natural justice‟ (b) Constitutes a miscarriage of justice or (c) Is it in contradiction with known customs of the area concerned. (2) An Application under subsection [1] shall be made to the court within three months of the award, and on notice to the other party to the arbitration.” [27] According to counsel for the Appellant, he disagrees with the Lower Court‟s assertion that the award given was valid and that there was a prior agreement to be bound by the arbitration and therefore that agreement cannot be displaced by a subsequent act. The trial court‟s Ruling can be found in page 21 of the record. The aggrieved portion of the Ruling of the Lower court was also captured by counsel in his address. See pages 20 and 22 of the record as below: 12 “a critical look of the award or proceedings of the arbitrators shows that the award given was valid. The parties voluntarily submitted themselves to the arbitrators. The only solid foundation of a valid customary arbitration of binding award is the voluntary submission by disputants.‟‟ Another aggrieved portion of the ruling which the lower court delivered himself is as below: “It must be stated that prior agreement to be bound by arbitration cannot be displaced by subsequent act. The applicant recalcitrant act of not obeying the decision of the arbitrators not a valid ground of setting aside arbitration award‟‟. It should be noted that, counsel for the respondent is of like mind with the lower court that, the arbitration was valid and indeed it was after the award was given with the involvement of all sides that the Appellant reneged on the Arbitration or the award‟‟ [28] The law on the enforcement of arbitral award was stated in the case of klimatechnick Engineering Ltd V. Skanska Jensen International [2005-2006] SCGLR 913. Georgina Wood CJ, stated at pg. 916 as follows: ‟‟I would reiterate that the finality rule must be made to bite. In so far as the award is not tainted, and the procedural and natural justice rules had been strictly observed, the parties should be prepared to accept the decision of an arbitral tribunal even if they have reason to believe a court or some other tribunal would have adjudged matters differently. Courts would routinely review and overturn on the law and the merit, awards which were given within jurisdiction 13 and were not improperly procured and in respect of which the procedural or natural justice rules were never breached, else the speed above all, the finality of the arbitral process would be greatly undermined and jeopardized. The courts have a duty to support and give validity to arbitral awards properly procured‟‟. [29] As earlier noted Section 112 of Act 789 of 2010 list the instances where a party to an arbitration may have same set aside. A party may impeach the award for breach of natural justice, for a miscarriage of justice, or a violation of the customary law of the area concerned. It should also be noted that mistake of fact or law is not a ground for setting aside an award per se and again one may not impeach an award on the grounds that the award was not supported by evidence adduced at the arbitration .Parties and their privies are bound by a valid award and are estopped from re-litigating the dispute via any means, whether by another customary arbitration or court. See pg. 129 of Brobbey and Brobbey on ADR 2022. [30] A careful read of the Affidavit in Support to the Application to set aside the Arbitral Award which ruling is being appealed against has among the reasons for the application the following: i] That the Arbitrators breached the rules of natural justice by not allowing the Appellant to call her witnesses. 14 ii] Another reason given by the Appellant for calling to have the said arbitration set aside is that the Appellant did not submit to the arbitration and therefore a miscarriage of justice. It should be noted that, these averments in the said affidavit in support as found in pages 9 and 10 of the record of Appeal were not opposed by the respondent herein. Besides, per the contents of the award found at page 7 of the record, there is nothing to show that the Appellant called a witness or voluntarily submitted to the arbitration as there was no evidence of Ndatwam or Panel fee paid as postulated by counsel for the Respondent. [31] Both lawyers cited the case of Badu II V. Ceasar & Others [1959] GLR 410 where Ollennu J. [as he then was] which is still good law listed the following requirements as the essential characteristics of valid customary Arbitration; “i] A voluntary submission of the dispute by the parties to the arbitrators for the purpose of having the dispute decided informally, but on its merits; ii] A Prior agreement by both parties to accept the award of the arbitrators iii] The award must not be arbitrary, but must be arrived at after the hearing of both sides in a judicial manner; iv] The practice and procedure for the time being followed in the native court or tribunal of the area must be followed as nearly as possible; and 15 v] Publication of the award”. There is no doubt that, the absence of one or more of the above essential elements in a customary arbitration rendered same invalid. This was also the contention of counsel for the Appellant and the court is of like mind because, this is the position of the law. See Mensah v. Essah [1976] 1 GLR 424. Moreover, in the case of Dzasimatu V. Dokosi [1993-94] 1 GLR 463, the Apex court refined Ollenu‟s list of the essentials of customary arbitration as follows; “A Purported arbitration was binding if; a] the submission of the dispute was voluntary; b] The parties agreed to be bound by the decision whichever way it went. c] The rules of natural justice were observed although an arbitrator did not need to follow any formal procedures d] The arbitrator acted within jurisdiction and e] The decision or award was made known.” [32] Besides, as rightly noted by counsel for the appellant, the mere presence of a party upon an invitation to an arbitration of a matter that concerns her to state her case to the arbitrators is no conclusive evidence of submission to Arbitration. 16 To constitute submission to arbitration in such circumstances, there must be evidence that, the full implication of the purpose of the meeting was explained to each party and that with the full knowledge of those implications, they each agreed that the person or persons before whom they appeared should arbitrate upon their dispute and give a decision thereon. See Brobbey and Brobbey on ADR Pg. 131. [33] Also, Section 90 [3] and [4] of Act 798 provide; “[3] The payment by the parties of the arbitration fee or token demanded by the arbitrator in customary arbitration constitutes a] consent to submit to customary arbitration; and b] the appointment of an Arbitrator 4] customary arbitration shall not commence where the other party rejects the invitation by failing to pay the fee or token demanded by the arbitrator”. [34] In the absence of an affidavit in opposition, from the content of the proceedings and the award as contained in the record, there is no evidence that, the Appellant voluntarily submitted to the arbitration by paying the panel fee of GH¢600.00 or the Ndatwam of 400 as postulated by the respondent. I therefore agree with counsel for the Appellant that, there was no voluntary submission to the arbitration and therefore, the learned Magistrate was wrong to reach the conclusion that, there was voluntarily submission to the said arbitration. The application was brought 17 before the District Court Nkawkaw to have the arbitration set aside within the three-month timeline as per the rules, see Section 112 (2) of Act 798). In the view of this court, the arbitration ought to have been set aside on grounds of miscarriage of justice as stipulated under Section 112 [1] [b] of Act 798. “Miscarriage of justice occurs when one provides a resolution to a dispute in such manner and on such terms and conditions as to lead to improper or unfair consequences”. See pg. 394 of Brobbey and Brobbey on ADR. [35] Again, it was the contention of the Appellant at the court below and in this court under Section 112 [a] of Act 798 that, there was a breach of observance of natural justice. Section 93 [1] decrees that, a customary arbitration shall apply the rules of natural justice. There is no doubt that, the audi alteram partem principle requires that, every disputant to a conflict should be given an opportunity to be heard. An opportunity to state their case, call witnesses, present evidence to support their side of the case and to interrogate the evidence presented by the other side. See Badu II V. Ceasar [supra]. The Appellant bemoans at the court below that, she was not given the opportunity to state her case resulting in the breach of the audi alteram partem rule. This was not opposed by the Respondent at the court below. It is noteworthy that, in the said Arbitration there was no evidence of a witness testifying for the Appellant or the Appellant interrogating the Respondent as canvassed by counsel for the 18 Appellant. There was no evidence that, the rules of the arbitration were explained to the Appellant or the Parties and even the panel was approved by her. There was no evidence of oath and counter oath as argued by the counsel for the Appellant. There was therefore no basis for the lower court to reach a conclusion that the Appellant agreement cannot be displaced by subsequent acts. [36] I therefore settle all the issues in favour of the Appellant and thereby grant the sole ground of Appeal. I however set aside the Ruling of the District Court Nkawkaw dated 22-6-2023 which counsel for the Appellant erroneously referred to as judgement, as the ruling was wrong in law and unsupported by the record. The parties are advised to go for a valid Arbitration or get their grievances settled in any other forum of their choice. Costs of GH¢ 4,000.00 against the Respondent in favour of the Appellant. (SGD.) JUSTICE CYNTHIA MARTINSON (MRS) HIGH COURT JUDGE