FRIMPONG VRS AMISSAH & ANOTHER (E12/167/2019) [2024] GHAHC 82 (30 May 2024)

IN THE SUPERIOR COURT OF JUDICATURE. IN THE HIGH COURT OF JUSTICE HELD AT CAPE COAST IN THE CENTRAL REGION ON THURSDAY THE 30TH DAY OF MAY, 2024 BEFORE HIS LORDSHIP JUSTICE BERNARD BENTIL - HIGH COURT JUDGE. SUIT NO.: E12/167/2019 EBUSUAPANYIN KWESI FRIMPONG - PLAINTIFF (SUBSTITUTED BY JOHN BERNARD KOOMSON) VRS 1. KWAMINA AMISSAH - DEFENDANTS (SUBSTITUTED BY EBU. KOFI ACKON) 2. THE ARBITRATION COMMITTEE OF THE EDINA TRADITIONAL COUNCIL JUDGMENT The facts of this case are straightforward. The Plaintiff’s case is that the 1st Defendant instituted arbitration proceedings against him before the 2nd Defendant on 29th May, 2018 on the following charges: a. That the Defendant (the Plaintiff herein) should come and explain to the Plaintiff (the 1st Defendant herein) and his family the reason why he has been selling lands at Mpeasem without their concern. b. That if the land belongs to the Defendant (Plaintiff herein), he should bring papers and witnesses. According to the Plaintiff, the Anona family of Mpeasem is made up of three gates; the Ama Wu gate, Kurankyewa gate and Ama Takyiwa gates. The Plaintiff avers that although he resisted being subjected to the arbitration, the panel compelled him to go 1 through the process. The Plaintiff says that, at the arbitration, he made it clear that the land in dispute belongs to the entire Anona family. There is in place a seven-member committee comprising of two members from each gate and the Ebusuapanyin administers the land and share the proceeds equally. The gravamen of the Plaintiff’s case is that the Arbitration Committee, instead of determining the matter set out before it, made awards outside of its jurisdiction by ruling, among others, at paragraphs (4) and (5) of its conclusion as follows: 4. Ama Wuo’s Gate should take the land that shares boundary with the land of Nana Mpeasem. 5. The remaining two lands located at Ehow and Burafufuo belong to the whole Anona with the three gates. Since the Plaintiff’s gate is eager to break away from the main Anona family the committee orders that the two-remaining land at Ehow and Burafufo should be divided into three (3) equal parts and shared among the Ama Wuo, Kurankye and Ama Tawiah gates. The Plaintiff’s case is that the Arbitration Committee strayed into determining matters that were not before it and made orders beyond the reliefs sought by the Plaintiff in the said arbitration. The Plaintiff therefore prays for the intervention of this Honourable Court by granting the following reliefs: a. a declaration that the 2nd Defendant exceeded its jurisdiction in its conclusion in the determination of the matter of Op. Kwamina Amissah vrs Ebu. Kwesi Frimpong (between the 1st Defendant and the Plaintiff herein) b. an order setting aside the Arbitration award made by the 2nd Defendant on 13th September, 2018 in the matter of Op. Kwamina Amissah vrs Ebu. Kwesi Frimpong, same having been made without jurisdiction. c. An order restraining the 1st Defendant, his assigns, workmen, privies and all persons claiming through them from acting upon the said award given by the 2nd Defendant. 2 d. An award of cost incidental to the prosecution of the above cause or matter. e. Any other relief(s) that this Honourable Court may deem fit so to award in the circumstances. The 1st Defendant, on the other hand, denies all the claims of the Plaintiff. The 1st Defendant specifically denied the assertion of the Plaintiff to be head of the Anona family of Mpeasem as complete falsehood and thus puts the Plaintiff to strict proof. According to the 1st Defendant, the Plaintiff’s attorney (now substitute) did not have the capacity to institute the present action on the Plaintiff’s behalf. The 1st Defendant strongly contends that the Plaintiff is no head of family as that position is occupied by Ebusuapanyin Isaac Baidoo. As a further challenge to the Plaintiff’s capacity as head of family, the 1st Defendant states that the Plaintiff, who is also called Joseph Frimpong Cudjoe was not a member of the Anona family at all and was buried by his own family members, the Asona family. After the demise of the Plaintiff, he was laid to rest at old Atabadze and not at Mpeasem after the necessary funeral rites. The 1st Defendant’s case is that the Plaintiff voluntarily submitted to the arbitration, paid the requisite fees, presented his witnesses and gave his version of his case before the 2nd Defendant. The Plaintiff was given the opportunity to cross-examine Parties and witnesses that gave evidence before the arbitration committee. The 1st Defendant further states the 2nd Defendant drew its valid conclusions from the totality of the facts and evidence before it and thus had the jurisdiction to arrive at the conclusion in the award. In the Plaintiff’s reply filed on 9th August, 2019 he, inter alia, reiterated that he is the Head of family of the Anona family of Mpeasem. The Plaintiff says that after the death of his predecessor, Ebusuapanyin Kow Nkrumah, he (the Plaintiff) has been the head of the three gates of the Anona family of Mpeasem at Elmina since 1995. According to 3 the Plaintiff, the said Isaac Baidoo has never been the Head of the Anona family of Mpeasem. Directions in the case was taken on the 12th day of December, 2019 and the issues set out in the Application for Directions filed on 22nd October, 2019 were adopted as issues for trial. The issues for determination are as follows: a. Whether or not the Plaintiff is the Head of family of the Anona family of Mpeasem; b. Whether or not Plaintiff voluntarily submitted to the arbitration process; c. Whether or not the Arbitration Committee exceeded its jurisdiction in making its awards; d. Whether the Plaintiff is entitled to his claim. As a general rule, the standard of proof in civil cases in Ghana is proof by a preponderance of the probabilities. The Courts have held time without number that unless a statute prescribes or determines who bears of the onus of proof, the person who alleges bears such onus. He must adduce cogent evidence, the totality of which is capable of satisfying a court of the probability of the existence of the fact he alleges or asserts. See sections 12(2) & 17 of the Evidence Act, 1975 (N.R.C.D. 323); ACKAH V PERGAH TRANSPORT LTD (2010) SCGLR 728. Applying the above law on the burden of proof to this instant case, the burden clearly lies on the Plaintiff herein to establish the facts he alleges especially as the assertions of the Plaintiff are met with fierce denial by the 1st Defendant. The law is that a Plaintiff who is bereft of capacity cannot be heard on the merits of his case even if he has an iron cast case. See FOSUA AND ADU-POKU V ADU-POKU MENSAH (2009) SCGLR 310. 4 The rational for this is that capacity to sue is a very critical component of civil litigation without which the Plaintiff cannot maintain any claim. Capacity goes to the root of the matter and whenever it is raised, it has the potential of truncating the action even before trial. Therefore, when the legal status of a Plaintiff is challenged and made an issue, as in this instant case, the onus is on the Plaintiff to establish, through cogent evidence, his capacity or satisfy this Court that he had the requisite capacity at the time of instituting the action. In the case of REPUBLIC V. HIGH COURT, ACCRA; EXPARTE ARYEETEY (ANKRAH INTERESTED PARTY) (2003-2004) SCGLR 398 the Supreme Court held that: “The requirement that a party endorses on the writ the capacity in which he sues, is to ensure that a person suing in a representative capacity is actually invested with that capacity and therefore has the right to sue. Whether a person who has sued in a representative capacity, indeed, has the capacity he claims to have or not, is a question of fact; and if challenged, he must prove same to avoid his suit being dismissed since it is analogous to taking an action against a non-existent defendant… This is because if a party brings an action in a capacity he does not have, the writ is a nullity and so are the proceedings and the judgment founded on it. Any challenge to capacity puts the validity of the writ in issue.” In proving the capacity of the Plaintiff, the Substituted Plaintiff (John Bernard Koomson) stated in his Witness Statement filed on 24th February, 2021 that the deceased Plaintiff was the head of the Anona family of Mpeasem during his lifetime. This testimony was corroborated by P.W.1 and P.W.2. According to P.W.1 Kofi Ndur, he stated in his Witness Statement that he has been the family’s linguist for about 20 years and as part of his roles as linguist, he had been accompanying Ebusuapanyin Kwesi Frimpong (the deceased Plaintiff) to the palace of the Chief of Mpeasem for any function in which the heads of family in Mpeasem are customarily required to be 5 present. He further stated that he had been the linguist of the deceased Plaintiff at any forum particularly, during the performance of burial and funeral rites of deceased members of the family as well as deceased persons in Mpeasem. According to P.W.2, Opanyin Kweku Donkor, the deceased Plaintiff was appointed as the Head of family of the Anona family of Mpeasem about twenty-four (24) years ago. The deceased Plaintiff was appointed to replace one Ebusuapanyin Egya Kow Nkrumah after the necessary custom and practice of the Anona family of Mpeasem. There is also evidence of a letter (EXHIBIT E) authored by the deceased Plaintiff in his capacity as Ebusuapanyin of the Anona family of Mpeasem. Further, the award of the Arbitration Committee describes the Plaintiff as the Ebusuapanyin. In this regard, reference is made to the title of the case of stated in the Arbitration Award (EXHIBIT B). On the balance of probabilities, I am satisfied that the evidence adduced makes the Plaintiff’s account more probable and thus lean favourable towards same. I am satisfied that the late Ebusuapanyin Joseph Frimpong was, in his lifetime, the Head of the Anona family of Mpeasem having succeeded Ebusuapanyin Kow Nkrumah after his death. Having determined the issue of capacity, this Court is now at liberty to delve into the merits of the case. Thus, I move on to determine whether the Plaintiff voluntarily submitted to the arbitration. It is well settled that the underlying factor of any arbitration is the submission of the parties to the arbitration. The authorities are legion in this regard. In the case of SOLOMON TACKIE & ANOTHER V JOHN NETTEY & ANOTHER (J4/44/2019) DATED 24TH MARCH, 2021 (DELIVERED BY THE SUPREME COURT) the Supreme Court settled on the following as the key requirements for a valid customary arbitration: a. The voluntary submission to arbitration b. Prior agreement to accept the award and 6 c. Publication of the award. The presence of all three requirement constitutes a valid customary arbitration binding on the parties to the arbitration. In respect of the first requirement, it is very rare that two people who are quarrelling would meet and agree together that they would submit their dispute to arbitration. The Courts have held that, the usual thing is that one party makes a complaint to somebody, the other party (that is, the party against whom the complaint is made) is sent for and if he agrees, the party to whom the complaint if made arbitrates upon the dispute. See YAW V AMOBIE (1958) 3 W.A.L.R 406; ASARE V DONKOR & SERWAH II [1962] 2 GLR 176. What constitutes voluntary submission was discussed by the Supreme Court in the case of ASARE V DONKOR & SERWAH II supra as follows: But to amount to a submission to arbitration, it must be shown that when the other party came, upon being sent for, a full explanation was made to him that his opponent had made a request that the dispute should be determined at an arbitration, not in court, and that the person to whom he lodged the complaint should preside over the dispute as the arbitrator. It is only when the person against whom the complaint is made agreed after such explanation, i.e. if with full knowledge of the implications he also expresses his agreement to the proposal of the complainant that an arbitration should be so held, that there could be a lawful submission to arbitration by both parties, otherwise not. The import of the above is that the full implications of the purpose of the meeting must be explained to the Parties and on the basis of the full knowledge of the implications, the Parties agree that the person(s) before whom they appeared should arbitrate upon their dispute and give a decision thereon. 7 In this instant case, the evidence does not establish any such explanation made to the Plaintiff upon being summoned. The evidence, however, shows that the Plaintiff was present from the beginning of the arbitration till the date of the award. The issue which therefore arises is whether the presence of the Plaintiff at the arbitration is conclusive evidence of submission to the arbitration proceedings? There are a myriad of cases to the effect that the mere presence of a Party at an arbitration is no conclusive evidence or proof of submission to arbitration. The Party’s presence may be due to respect for a stool dignitary and without any intention of explaining himself or giving his version of the dispute. See ASARE V DONKOR & SERWAH II supra; DOMPREH V. PONG [1965] G.L.R. 126; NYAASEMHWE & ANOTHER V AFIBIYESAN [1977] 1 GLR 27 C.A. In the case of NYAASEMHWE & ANOTHER V AFIBIYESAN supra the Court of Appeal in elucidating this principle held as follows: For one thing, the party summoned may have attended the proposed arbitrators’ call only out of respect for their dignified social position and with the limited intention of merely explaining himself or of giving his version of the dispute. On the other hand, he may well have attended with the intention of submitting to the proposed arbitration, being aware of the purpose of the meeting and its implications. It all depends on the evidence adduced whether his attendance to the call is explicable on the one ground or the other. His response to the call as evidenced by his physical presence before the proposed arbitrators is equivocal and susceptible of two possible interpretations; and evidence must therefore be adduced to establish unambiguously his true purpose in attending the call. On the basis of the above reproduce holding, evidence can be adduced to establish a Party’s true purpose of honouring an invitation to arbitration even in the absence of a prior explanation of the full implications of the arbitration. Once there is evidence that 8 the Plaintiff attended the arbitration with the intention of submitting to the proposed arbitration, the Plaintiff would be held to have submitted to the arbitration. In this instant case, the Plaintiff claims he resisted being subjected to arbitration but was however compelled by the panel to go through the process. However, neither the substituted Plaintiff nor any of his witnesses adduced any evidence of coercion from the panel of arbitrators on the Plaintiff. The evidential burden to establish coercion is on the Plaintiff and failure to satisfy this Court of same is fatal to the case of the Plaintiff. On the contrary, the evidence shows that the Parties paid the arbitration fee of Two Hundred Ghana Cedis (GH₵ 200.00) to confirm that they want the Committee to proceed with the arbitration. This is clear from the Defendant’s EXHIBIT 8 (particularly proceedings dated 14th June, 2018). Exhibit 8 (particularly proceedings dated 30th July, 2018) further reveals that the parties paid an additional Two Hundred Ghana Cedis (GH₵ 200.00) for the work of the Committee. Further, the Plaintiff gave his side of the dispute and was also given the opportunity to cross-examine the 1st Defendant (the Plaintiff in the arbitration matter) and the Plaintiff’s representative (substituted Plaintiff herein) was also subjected to cross- examination. This in my view constitutes hard evidence of submission to the arbitration proceeding and goes beyond merely appearing for the respect of a dignitary. On the totality of the evidence, I hold that the presence of the Plaintiff at the arbitration was not merely out of respect for any person or dignitary but was for the Plaintiff to contest the matter knowing full well of its implications. As a prelude to the determination of whether the Arbitration Committee exceeded its jurisdiction in making its awards thus warranting the setting aside of the arbitration award, it is instructive to note that it is policy of the law for the Courts to be slow to disturb arbitral awards so long as the rules of natural justice and due process were observed by the arbitration tribunal. 9 See AKWASS FARMS LTD V GHANA TELECOM CO. LTD (SUIT NO. H1/30/2010) DATED 3RD FEBRUARY, 2010 (DELIVERED BY THE COURT OF APPEAL). The Court of Appeal in this case held that: “when business partners decide to adopt a dispute resolution mechanism other than litigation, their ultimate objective is to achieve speed and efficiency in settling differences that do occur in the course of doing the business. As a result, the courts must be very slow in responding to calls to overturn such awards and settlements made under such dispute resolution methods other than litigation. The reasons are that Alternative Dispute Resolution (ADR) methods such as arbitration, mediation and negotiation proceed not as formal courts of law, where technical rules of procedure are strictly applied. It is the procedural flexibility inherent in the ADR process aimed at ensuring speed that attract parties to opt for such methods in settling their disputes. If our courts resort to quick interventions to overturn such awards, the courts will be encouraging litigation, the very hurdle the parties wanted to avoid by agreeing to arbitrate. Awards must not be disturbed so long as the rules of natural justice and due process are observed during the arbitration process.” The above is not to be construed as a bar to setting aside arbitral award. The law mandates the courts to intervene in exceptional cases falling within the ambits of section 58 Alternative Dispute Resolution Act, 2010 (Act 798). An arbitral award can only be set aside in the manner and upon the grounds set out in section 58 of the Alternative Dispute Resolution Act, 2010 (Act 798). Section 58 of the ADR Act enacts: Section 58 – challenge of award. 1. An arbitral award may subject to this Act be set aside on an application by a party to the arbitration. 2. The application shall be made to the High Court and the award may be set aside by the Court only where the applicant satisfies the Court that a. a party to the arbitration was under some disability or incapacity; 10 b. the law applicable to the arbitration agreement is not valid; c. the applicant was not given notice of the appointment of the arbitrator or of the proceedings or was unable to present the applicant’s case; d. the award deals with a dispute not within the scope of the arbitration agreement or outside the agreement except that the Court shall not set aside any part of the award that falls within the agreement; e. there has been failure to conform to the agreed procedure by the parties; f. the arbitrator has an interest in the subject matter of arbitration which the arbitrator failed to disclose 3. the Court shall set aside an arbitral award where it finds that the subject- matter of the dispute is incapable of being settled by arbitration or the arbitral award was induced by fraud or corruption 4. An application to set aside an award may not be made after three months from the date on which the applicant received the award unless the Court for justifiable cause orders otherwise. From the above, an arbitral award can only be set aside by an application to the High Court within three months of receipt of the award. The jurisdiction of the High Court is, by virtue of section 58(1) of the ADR Act, to be invoked by an application (originating summons) and not by a Writ of Summons. The law is trite that when a remedy is given by a statute and the means or procedure for ventilating such remedy has been laid down in the said statute, then that procedure ought to be strictly adhered to. See BOYEFIO V NTHC PROPERTIES LTD [1997-98] 1 GLR 768. 11 This is the first shortfall of the Plaintiff having commenced this action for setting aside the arbitral award dated 13th September, 2018 by a Writ of Summons. This Court notes that no objection whatsoever was made at the initial stages of the matter and the Parties have gone through the full length of trial. Therefore, to do justice to the Parties and to avoid multiplicity of suits I shall proceed to make a determination as to whether the Arbitration Committee exceeded its jurisdiction in making its award. See ADISA BOYA V ZENABU MOHAMMED (SUBSTITUTED BY ADAMA MOHAMMED) & MUJEEB (CIVIL APPEAL NO. J4/44/2017) DATED 14TH FEBRUARY, 2018 (DELIVERED BY THE SUPREME COURT) In respect of the issue of whether the Arbitration Committee exceeded its jurisdiction in making its awards the Plaintiff contends that the Arbitration Committee, instead of determining the matter set out before it, made an award outside of its jurisdiction by sharing the family land in the award. On this basis the Plaintiff seeks to set aside the said award. From EXHIBIT A, which is the summons served on the Plaintiff, the Plaintiff is merely invited to the Arbitration Committee for the following: a. Explain to the 1st Defendant herein and his family the reason why the Plaintiff is selling lands at Mpeasem without their concern and b. If the land belongs to the Plaintiff, he should bring all papers and his witnesses. In my respectful view, the above terms of reference or the scope of arbitration (for want of better words) bothers on a determination as to title to the lands at Mpeasem. This is amply supported by Exhibit 8 and for the purposes of this judgment, I shall reproduce the claim as indorsed on the arbitration proceedings for 14th June, 2016: Claim: The Plaintiff’s claim against the Defendant is for a declaration of title to land which Defendant is alleged to have sold land in question which Plaintiff claims ownership. He seeks Defendant to produce document on the land in question. 12 I am unable to see how the Arbitration Committee exceeded it jurisdiction in arriving at the conclusion in paragraphs (4) and (5) complained of by the Plaintiff. Upon reading the award as a whole, I am satisfied that the conclusions of the Arbitration Committee flow from the issues to be determined by the Committee and thus same were made within jurisdiction. The Arbitral Committee may be wrong in its findings but that is not enough to justify setting aside the award. I cannot help but refer to the insightful dictum of Atuguba JSC in the case of KLIMATECHNIK ENGINEERING LTD. V. SKANSKA JENSEN INTERNATIONAL [2005-2006] SCGLR 913 AT 941 where he stated that: “I would also like to endorse the following statement in Russell on Arbitration, 18th ed, 1970) at 391, “It is not misconduct on the part of an arbitrator to come to an erroneous conclusion, whether his error is one of fact or law, and whether or not his findings of fact are supported by evidence”. In light of the foregoing reasons, the Plaintiff's action is dismissed in its entirety. Judgment is hereby entered against the Plaintiff, who shall not be entitled to the reliefs sought. Furthermore, this Court declares the arbitral award dated September 13, 2018, as valid and binding on all parties involved. Cost of GH₵15,000.00 is awarded against the Plaintiff and in favour of the 1st Defendant. (SGD) BERNARD BENTIL J. [HIGH COURT JUDGE] COUNSEL: DANIEL ARTHUR ESQ. FOR THE PLAINTIFF. ROLAND A. K. HAMILTON ESQ. FOR THE 1ST DEFENDANT. 13