Kpogo And 2 Others Vrs Avornyo And 2 Others (E12/21/2023) [2024] GHAHC 233 (30 July 2024)

1 INTHE SUPERIORCOURT OF JUDICATURE, INTHEHIGH COURT OF JUSTICE, DENU HELDON TUESDAY30JULY 2024BEFORE JUSTICEGEORGE BUADI,J. SUITNO. E12/21/2023 1 PATRICKKPOGO } 2 NANIKPOGO } 3 MENSAHSEWORNU } (AllofKlikor) } DEFTS/APPELLANTS Versus 1 FRANCISAVORNYO } 2 AFAGBEDZIKINI } 3 KUDZOKINI } (AllofAflao) } PLAINTIFFS/RESPS JUDGMENT 1 Introduction Upon leave of the trial District Court Agbozume under the Courts Act, 1993 (Act 459) s. 21(2), the Defendants, the appellants herein filed this appeal against the interlocutory ruling of the trial court that dismissed their application for an order striking out the Plaintiffs’ suit on grounds of estoppel. Dismissing the application, the learned trial Magistrate in his 6-page ruling concluded that: Page1of11 2 Giv[ing] the arguments before it, this court is of the view that the jurisdiction of the arbitral panel [was] questioned when the plaintiffs withdrew from the process. Thus, when section 99(1) of Act 798 is raised challenging a customary arbitrator, then section 100 of Act 798 has to be complied with to clothe the panel with jurisdiction … that requirement was notmet. In the circumstances, this court thinks that section 112 would not apply tosuch a process because the element of finality of the proceedings had beencompromised. (Emphasis added) 2.0 Groundsof the Appeal 2.1 Dissatisfied with the above ruling and per leave of the trial court, the Defendants filed this appeal praying the Court to set aside the ruling of the learned Magistrate and to dismiss the Plaintiffs’ suit at the District Court, Agbozume ongrounds that: a The trial magistrate erred when he held that the arbitration award [or] judgment delivered by the arbitration court of Torgbi AkorliDzesu II is anullity. b The Plaintiffs/Respondents’ suit at the District Court is estopped perrem judicatam c Additional ground (s) of appeal may be filed on receipt of the RecordofProceedings. 2.2 The appellants did not file any additional ground/s; the original grounds of appeal therefore abide. The appeal record is a 171-page indexed document that curiously contains processes, most of which, respectfully, are needless in the determination of the appeal. So are the extensive written Page2of11 3 submissions the lawyers filed. I say this because the ruling of the learned trial magistrate is not final and/or conclusive, but just interlocutory on a question of law; not on the merits, and that the case may return to the trial court to continue withthe hearing. 2.3 As held in Yaw vs. Amobie (1958) 3 WALR 406 CA, whether or not there had been a valid arbitral award is a question of law. The core issue in this instant appeal is the determination of whether the arbitral proceedings and the award of the Togbe Akorli Dzesu panel amount to a finality of the subject matter between the parties and their privies and thus capable of operating as estoppel per rem judicatam against the parties herein. Respectfully, the core issue in the appeal does not, in my view, demand most of the processes in the appealrecords. 3.0 Background facts 3.1 The facts are that the Plaintiffs’ action against the Defendants at the trial court had earlier been placed before an arbitration panel of Torgbui Akorli Dzesu II at Dornormadi in the Klikor Traditional Area. According to the Defendants, the panel concluded the hearing and published its award but on 19 October 2021, after the arbitral award, the Plaintiffs by a writ of summons commenced an action at the District Court, Agbozume against Defendants, the appellants herein for a declaration of title to a piece of land at DornormadiKlikorand forotherconsequential reliefs. 3.2 The Defendants averred in their statement of defence1 that the land the subject matter in the action had once been placed before Torgbui Akorli Dzesu II and that the 1st and 2nd Plaintiffs were parties. Defendants averred that not only are the plaintiffs bound by the award of Torgbui Akorli Dzesu II 1 Seeparas.31-37 Page3of11 4 arbitration, but they are also estopped from relitigating the title and ownership ofthe disputed land. 4.0 Findingsof primary facts, the evidence and the law 4.1 The enduring outcome of proceedings in court invariably depends not only on the correct findings of primary facts the court identifies and makes in the suit but also his correct application of the relevant law to the primary facts. Quaye vs. Mariamu [1961] GLR 93 at 95 SC. I set off to make findings from what I deem as needful evidence in the record placed before me; particularly the application, depositions in the contrasting affidavits, and the lawyers’ writtensubmissions. 4.2 I find as a fact that before the commencement of the suit at the Agbozume court for a declaration of title to the piece of land in dispute, the parties and their privies had once appeared before an arbitration panel of Torgbui Akorli Dzesu II over land at Klikor Dornormadi. The plaintiffs claim title to the land as the head and principal members respectively of the Avornyoand the Kini family. 4.3 Whilst the Plaintiffs did not allude to the fact of arbitration in their pleadings, the Defendants did; indeed, contending that the Plaintiffs are bound by the arbitration award of Torbgui Akorli Dzesu II and thus estopped from relitigating the title and ownership of the subject matter land at the District Court, Agbozume. The plaintiffs did not respond by way of a reply to the Defendants’ estoppel claim but rather sought leave to contest the legality and finality thereofofthe professed arbitralproceedings andaward. 4.4 I find that during the arbitral proceedings, by a letter addressed to the panel, the Plaintiffs raised concerns about the conduct of the panel in the Page4of11 5 proceedings and gave notice of their intention to stay away from further attending tothe hearing, complaining that: … observing some developments in the proceeding which we strongly believe will not result in a fair judgment, we have decided that we will notcontinue with thecase in your arbitrationcourt anyfurther. That if the Plaintiff insist that we have offended him, he can send the case [to] a senior divisional chief of Klikor Traditional Area to determine. Thank you…we aresorry forany inconvenience thatthis may cause.2 4.5 It does not appear to me that the arbitration panel paid any heed to the letter and the issues the plaintiffs raised regarding the conduct of the arbitral proceedings. The panel proceeded not only with the hearing without the plaintiffs but also visited the land in dispute without notice to the plaintiffs. After the visit to the land, the panel proceeded to publish their award declaring title of the land in favour of the Defendants.3 The minutes of the arbitral proceedings, the final decision, and publication of the award did not acknowledge receipt of the protest letter, nor a statement of fact of the panel’s visit to the land in dispute as to the marks of boundaries of the subject matter landindispute betweenthe parties. 4.6 The panel perceived the Plaintiffs’ letter as disrespectful and so imposed a fine ofthree cratesofSchnapp drinks and acash sum ofGH¢300.00 in their final award against the plaintiffs. I find no evidence that suggests that 2 Seepage90oftheROA 3 Seepages49and50 Page5of11 6 the Plaintiffs have been notified of the award and/or have paid the fine. The Plaintiffs perceived the award as incomplete or lacking finality and so commenced theactionat the trial courtfor reliefs onthe subject matterland. 4.7 Before the enactment of the Alternative Dispute Resolution Act, 2010 (Act 798) there had been rich practice of customary law arbitration in the country. Back in 1959, the case of Budu II vs. Caesar & Ors [1959] GLR 410 sought to settle what could pass as constituting a valid customary arbitration that could operate as estoppel rem judicatam. The Supreme Court in Budu II vs. Caesar & Ors id. laid down essential characteristics of a valid customary arbitration: (i) a voluntary submission of the dispute by the parties to arbitrators … to have the dispute decided informally, but on its merits; (ii) aprioragreement by bothparties toaccept the award…; (iii) the award must not be arbitrary, but must be arrived at after the hearing ofbothsides inajudicial 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 aspossible; and (v) publicationofthe award. 4.8 In recent times, yet before the enactment of the ADR Act id, the Supreme Court in Dzasimatu & Ors vs. Dokosi & Ors [1993-1994] 1 GLR 463 SC held that apurportedarbitration was binding if: (a) thesubmissionofthe dispute wasvoluntary; Page6of11 7 (b) the parties agreed to be bound by the decision whichever way it went; (c) the rules of natural justice were observed, although the arbitratordid notneed to followany formalprocedures; (d) thearbitratoracted within jurisdiction; and (e) thedecision orawardwas made known(Emphasis added) The Court held further “although there was no right in the parties to resile fromarbitration, the parties might subsequently resubmit the whole or partof thedispute toafurtherarbitration”.Dzasimatu & Ors vs.Dokosi & Ors at465. 4.9 I find that the parties submitted voluntarily to the arbitration and are thus presumed bound to continue with the hearing and not to resile from the arbitration. However, the Court held in Dzasimatu & Ors vs. Dokosi & Ors that the parties may subsequently resubmit the whole or part of the dispute to further arbitration. I find what appears as further arbitration on the professed award of the Torgbui Dzesu II panel upon a complaint of the plaintiffs, which necessitated the constitution of a further arbitral panel headed by the paramount chief of Klikor Torgbui Addo who roundly condemned the conduct of the Torgbui Dzesu panel particularly when the former panel decided to visit the land and declare title to the land without notice, invitation, involvement and participation of the plaintiffs, despite their protest and withdrawalfromthearbitration 5.0 It could be argued along the lines of the contention of the Defendants that the Plaintiffs had an opportunity to be heard but chose to disable themselves from being heard when they withdrew from the arbitration and that they cannot complain about the final arbitral award. Besides, a party to a Page7of11 8 case may decide after all not to give evidence, as held in Nyamekye v Ansah [1989-90] 2GLR 152thatapartyis notbound togive evidence.4 5.1 It could further be argued that arbitration proceedings are not meant to be stampeded by procedural formalities, which do not confer jurisdiction on the panel for which non-compliance thereof could divest the panel of its jurisdiction. Indeed, as could further be argued that non-compliance with suchproceduralformalitiescannot be fataltothe outcomeofthe proceedings. 5.2 These are legitimate arguments but I need to state here that in the instant case and under the ADR Act, section 99 (1) provides that a customary arbitrator, certainly inclusive of the panel may be challenged if circumstances exist that give rise to reasonable cause for a party to doubt the arbitrator's or the panel’s independence or impartiality. Considering the panel’s response to the plaintiffs’ letter, my view is that the letter raised a formidable challenge to the panel’s continuous exercise of its jurisdiction over the parties and the subject matter land. The panel botched the opportunity to address the concerns of the plaintiff and to maintain their jurisdiction over the parties and thesubject matter,which I find wereunresolvedby thepanel. 5.3 I am of the candid view that in all traits of fairness, a party cannot be held bound to continue with an arbitral hearing when the panel conducts proceedings in an arbitrary, unjust and capricious manner and is not interested in addressing the concerns or protests of a party in the hearing on a subject matter crucial as interests and title to land. Besides, an arbitral award that imposes boundary limits in a disputed land without notice, involvement and participation of one of the parties in arbitral proceedings in the circumstances I find in this instant matter does not only amount to a 4 Seealsothe2020PresidentialElectionCase. Page8of11 9 contradiction of well-established customary land law practices but also in my view agrossmiscarriage ofjustice. 5.4 A solid foundation for a valid customary arbitration and a binding award arises from the submission by the disputants of their dispute to a disinterested third party to make a fair investigation into it and give a decision on the merits of the matter. A decision not based on the merits that ends up divesting the rights and interests of a party in a subject matter crucial as land in the circumstances I find here cannot be termed as final and operate as a final decision between the parties over the subject matter land. Arbitration by a person or a panel who appears involved or interested in the dispute cannot be relied on to produce a fair or reasonable outcome of the matter. See Paul vs. Kokoo [1962] 2 GLR 213, SC. I hold that the arbitral award in the circumstances of what I find on the record cannot be clothed with the finality garb as the matter cannot be deemed to have been determined on its merits. 5.5 Now, regarding the application of estoppel in interlocutory matters, the Supreme Court per Georgina Wood JSC held that for estoppel to apply in interlocutory matters, the issue or question involved ought to have been conclusively determined in one way or the other between the parties in the first action. Republic vs. High Court, Accra (Commercial Div); Ex parte Hesse (Investcom Consortium Holdings SA & Scancom Ltd, Interested Parties) [2007-2008] SCGLR 1230. The Court has applied and followed the above principle in cases including Oforiwah vs. Laryea [1984-86] 2 GLR 410; In Re Sekyeredumase Stool; Nyame v. Kesse alias Konto [1998-99] SCGLR 476; Dahabieh v. S.A. Turqui & Bros [2001-2002] SCGLR 498; In Re Kwabeng Stool; Karikari vs. Ababio II [2001-2002] SCGLR15. Page9of11 10 6.0 Conclusion 6.1 A party cannot be prejudiced in circumstances I find the Torgbui Dzesu panel sought to do and did. The matter before the arbitral panel cannot be said to have been determined on its merits for the award to assume or be clothed with a finality garb. A court of justice and equity cannot within the circumstances I find here endorse the outcome of such arbitral proceedings as final and allow it to operate as a bar to any subsequent litigation and determinationonthematteronitsmerits. 6.2 I endorse the conclusion of the learned trial magistrate in dismissing theapplication whenthe trialcourt held: Giv[ing] the arguments before it, this court is of the view that the jurisdiction of the arbitral panel [was] questioned when the plaintiffs withdrew from the process. Thus, when section 99(1) of Act 798 is raised challenging a customary arbitrator, then section 100 of Act 798 has to be complied with to clothe the panel with jurisdiction … that requirement was notmet. The Defendants’ appeal fails in its entirety and dismissed accordingly. Let the suit be referred back to the District Court, Agbozume for the court to continue and determine thematteronitsmerits. Orderedaccordingly.5 SGD GeorgeBuadi J HighCourt Denu. 5 The end of the judgment - Francis Avornyo & 2 Ors vs. Patrick Kpogo & 2 Ors (Suit No. E12/21/2023 Page10of11 11 Lawyers: 1 Kwame SenanuAfagbe, Esq. for Defendants/Appellants 2 Korbla HlortsiAkakpo, Esq. forPlaintiff/Respondent. Page11of11