Kuttin v Asamoah (A2/37/2023) [2024] GHADC 667 (18 December 2024)

ISAACKUTTINVJAMESOWUSUASAMOAH INTHEDISTRICTCOURTHELDATFOMENAONWEDNESDAYTHE18THDAYOF DECEMBER,2024BEFOREHERWORSHIPMRS.LINDAFREMAHBOAMAH-OKYERE, ESQ. SUITNO.A2/37/2023 ISAACKUTTIN V JAMESOWUSUASAMOAH JUDGMENT BACKGROUND 1. The Plaintiff made a claim for the payment of Nine Thousand, One Hundred and Fifty- Six GhanaCedis (GHC.9,156.00) beingarbitration costs and expenses heincurred before the Fomena Traditional Council during an arbitration process between himself and the Defendant.Plaintiffalsoprayedforcostsincidentaltotheinstitutionofthisaction. 2. The undisputed facts of this case are that a misunderstanding ensued between the Plaintiff and theDefendant concerning a beamof wood belonging to the Plaintiff which Defendant in his capacity as chairman of the Timber Market Association, Obuasi took from the Plaintiff’s agent ostensibly in fulfilment of a rule of the Association that for every ten logs that would be brought into the market for sawing or cutting, the Association would be entitled to take one. It was the Defendant’s resistance to this rule Page1of12 ISAACKUTTINVJAMESOWUSUASAMOAH by the Plaintiff’s association that caused the matter to be brought before the Chief of AkrokerribytheDefendantbasedontheallegationthatthePlaintiffhadinsultedhim. 3. Eventually,theChiefofBoaiteykromwithdrewthematterfromAkrokerri inan attempt to settle the matter. The chief of Boaiteykrom found the Plaintiff herein liable of the claims levelled against him by the Defendant. However, the Plaintiff subsequently brought the matter before the Adansi-Fomena Traditional Council as he claimed that he was aggrieved by the decision of the chief of Boaiteykrom. Whilst the Plaintiff alleges thatheobtainedafavourabledecision fromtheAdansi FomenaTraditional Council,the Defendantallegesthatthematterwasnotheardandnojudgmentwaspronounced. 4. Itisagainst thisbackgroundthatthePlaintiffhassuedtheDefendantincourttorecover the expenses and costs incurred by him during the said proceedings before the Fomena TraditionalCouncil. ISSUESFORDETERMINATION I. Whetherornotthedecisionof thechiefof Boaiteyandhis elderswas bindingon theparties II. WhetherornotthedecisionofthechiefofBoaiteywasappealabletotheFomena TraditionalCouncil III. WhetherornotanawardwasgivenbytheFomenaTraditionalCouncil Page2of12 ISAACKUTTINVJAMESOWUSUASAMOAH IV. Whether or not the Defendant is liable to pay the arbitration costs and expenses emanating from the proceedings before the Fomena Traditional Council to the Plaintiff BURDENOFPROOF 5. Section 12 of the Evidence Act, 1975 (Act 323) places the burden of proof in civil cases on the balance or preponderance of probabilities. From section 12(2) of the Act 323, we seethatapartyonlysucceedsinprovinghisclaimonthepreponderanceofprobabilities where he is able to establish a degree of certainty in the mind of the court that the existenceof certainfacts,healleges is moreprobablethanits non-existence. This burden may shift from the Plaintiff to the Defendant and vice versa in accordance with section 14 of Act 323 so that depending on the claim or defence he is asserting, the Plaintiff or Defendant, as the case may be, would have to persuade the court as to the existence or non-existenceofthefactswhicharerelevanttohisclaimordefence,respectively. 6. In the instant case, the Plaintiff alleges that the Defendant ought to pay to him the amountofGHC.9,156.00.Itishisdutytherefore,toshowthattheDefendanthasbecome indebted to him to the tune of the amount claimed. Once the Plaintiff is successful, the Defendant would bear the burden of proving that he has paid the money or that he has justifiablereasonsfornotdoingso. Page3of12 ISAACKUTTINVJAMESOWUSUASAMOAH ANALYSISANDEVALUATIONOFEVIDENCE 7. In his witness statement, specifically paragraph 15, the Plaintiff alleges that whilst the matter was pending before the chief of Akrokerri, the Odikro of Boaitey had the matter withdrawn for settlement. He also alleges in paragraph 19 of his witness statement that he was not given any hearing during the proceedings yet the “arbitrators” comprising theOdikro of Boaitey andthatof Anyimaduas well as a linguist gavejudgment against him.Itisthereforenecessarytoenquireintothenatureoftheproceedingsthatensuedat Boaitey–whethersamewasacustomaryarbitrationoranegotiationforsettlement. 8. Under customary law, there are five (5) essential characteristics of an arbitration as opposedtonegotiationsforasettlement.Theyare: a. A voluntary submission of the dispute by the parties to arbitration for the purpose of having the disputedecidedinformally,butonitsmerits b. Aprioragreementbybothpartiestoaccepttheawardofthearbitrators c. The award must not be arbitrary, but must be arrived at after the hearing of both sides in a judicialmanner d. The practice and procedure for the time being followed in the native court or tribunal of the area mustbefollowedasnearlyaspossible e. Publicationoftheaward See the cases of Budu II v Caesar & Others [1959] GLR 410 and Nyasemhwe v Afibiyesan[1971] 1GLR27.InPongvMante[1964] GLR593,thecourtperLasseyJ (as he then was) described customary arbitration as the …practice whereby natives of this Page4of12 ISAACKUTTINVJAMESOWUSUASAMOAH country constitute themselves into ad hoc tribunals popularly known and called arbitrations for the purposes of amicably settling disputes informally between them or their neighbours (which has long been recognized as an essential part of our legal system; provided all the essential characteristicsofholdingavalidarbitrationarepresent…(emphasisadded) Also, the learned S.A. Brobbey in his book The Law of Chieftaincy in Ghana, 2008 at pages366-367,quotedfromthecaseofRepublicvAdrie;ExparteKpordoaveIII[1987- 1988]GLR624Mholding4asfollows: Acustomaryarbitrationisanadjudicatingauthoritycreatedbycustomandassucha creatureof the common law of Ghana. They have jurisdiction as an adjudicating authority to determine questions affecting the rights of subjects of the country and that any decision of theirs is recognized by law as binding on the parties who submitted to its jurisdiction. The courts are clothed with power to enforce the decisions of such customary arbitrations and that apart, an awardofacustomaryarbitrationcouldoperateasestoppelperremjudicatam... 9. In the case of Dzasimatu and Others v Dokosi and Others [1993-94] 1 GLR 463, the court held that where the proceedings fell short of an arbitration but met the requirements of a negotiated settlement, the decision would become binding only if it wereacceptedbytheparties.Thereafter,neitherpartycouldresilefromthecompromise. The difference between negotiated settlement and arbitration under customary law was further drawn in the case of Obeng v Mframa [1987-88] 1 GLR 548 where the court stated that in order to begin negotiations for a settlement under customary law, the partiestoa disputemust voluntarilysubmit their disputetoathirdpartytoattempta settlement of the dispute. And after the hearing the third person must make his Page5of12 ISAACKUTTINVJAMESOWUSUASAMOAH decisions known to the parties who are free to either accept or reject the terms of settlement.However,whenthepartiesdoacceptthetermsofsettlement, theybecome bound by it as they will under an arbitration award. See also the case of Zogli & AnothervGanyo[1977] 1GLR 297.Thispositionof thelaw was reiteratedintheruling of the Supreme Court in the case of Daniel Ofori v Ecobank Ghana Limited & Others (Civil Motion No. J8/64/2019) dated 11th March, 2020 where the court emphasized that one of the cardinal principles of a negotiated settlement is that the result of a negotiated settlement was not binding on the parties until it was accepted by both of them. It was at the stage when parties had accepted it that it becomes binding on the partiesandcanbeenforcedandnopartycanthereafterresilefromit. 10. In the instant case, even though the Plaintiff referred to the chiefs and the linguist who adjudicated the matter at Boaitey, as arbitrators, the evidence he led during cross examination as well as the evidence led by PW2, Stephen Boafo, evinced an intention to havethematteramicablyresolvedatBoaitey.Itwouldappearthatthearbitrationwasto happen at the Akrokerri palace before whom the Defendant had originally lodged the complaint and the Plaintiff had been invited. It was through the intervention of PW2 that the matter was given to the Odikro of Boatey for amicable settlement. DW3 and DW4arethechiefsofAnyimeadukromandBoaiteyrespectivelywhoadjudicatedonthe matter at Boaitey. They admit that no witnesses of the parties were called and that they urgedonthePlaintifftoadmitguiltwhichaccordingtothem,hedid.Hewasthenasked to pay the cost which Defendant hadincurred at the Akrokerri palace for the institution of the action there. Whilst the Defendant and his witnesses assert that the amount Page6of12 ISAACKUTTINVJAMESOWUSUASAMOAH involved was GHC.1,000.00 out of which Plaintiff paid GHC.200.00, Plaintiff maintains thathewasaskedtopayGHC.1,500.00outofwhichhepaidGHC.300.00. 11. The evidence shows that the proceedings that happened at Boaitey was not an arbitration because the matter was not determined on its merits. It was an attempt at amicable settlement of which the outcome would not be binding on the parties until samewasacceptedbybothofthem.ItisnotindisputethatthePlaintiffhereinhadbeen foundliableandaskedtopayan amountofmoneytotheDefendant. ThePlaintiffstates in paragraphs 20 and 21 of his witness statement that he made a deposit of the total amount he had been asked to pay to the Defendant. He then went back to the timber market to saw some beams of wood in order to raise funds to pay up the outstanding balance to the Defendant. According to the Plaintiff, the Defendant once again ordered one of his members to take one beam from him. It was at this point that the Plaintiff summoned the Defendant at the Fomena Palace on ground that he was not satisfied withthemannerinwhichthematterwasdeterminedatBoaitey. 12. The chronology of the Plaintiff’s evidence shows clearly the fact that he had initially accepted the outcome of the negotiation for settlement which occurred at Boaitey. He had gone ahead to take steps to pay a part of the cost which had been awarded against him. The position of the law in section 113 of the Alternative Dispute Resolution Act, 2010 (Act 798) is that once the Defendant had accepted the outcome of the negotiation for settlement, he could not subsequently resile from it. The outcome of that settlement hadbecomebindingonhimandhewasunderan obligationtopaytheentirecosttothe Defendant. Page7of12 ISAACKUTTINVJAMESOWUSUASAMOAH 13. It is the Plaintiff’s case that he subsequently brought the matter before the Fomena Palace by way of appeal. The evidence led by Plaintiff in paragraphs 21 and 22 of his witness statement evinces an intention to “relitigate” the matter before another arbitration panel because he had been infuriated by the repetition of the Defendant’s conductof seizing his beam of wood. It is trite learning that arbitration awards are final and binding and cannot be a subject of appeal. However, the Act 798 makes provision for setting aside awards relative to customary arbitration and negotiations for settlement. Section112oftheActstatesasfollows; “(1) A party aggrieved by an award may apply to the nearest District, Circuit or High Court to setasidetheawardonthegroundsthattheaward (a) wasmadeinbreachoftherulesofnaturaljustice, (b) constitutesamiscarriageofjustice,or (c) isincontradictionwiththeknowncustomsoftheareaconcerned (2) An application under subsection (1) shall be made to the court within three months of the award,andonnoticetotheotherpartytothearbitration 14. Therefore, if the Plaintiff was dissatisfied with the outcome of the negotiation for settlement on any of the grounds above, and wanted to register his displeasure, his redresslaidwiththe courts andnotto anotherarbitration panel.In any case,hewasnot underanyobligationtoaccepttheoutcomeofthenegotiationforsettlementatBoaitey.I find therefore that both parties are bound by the negotiated settlement reached at BoaiteyandnoappeallaidwiththearbitrationpanelatFomena. Page8of12 ISAACKUTTINVJAMESOWUSUASAMOAH 15. Assumingthatthearbitrationpanelrightfullyassumedjurisdictionoverthematter,Iam of the view that the Plaintiff could not demonstrate that there was any award in his favour. The contents of Plaintiff’s Exhibit C, emanating from the Fomena Divisional Council appears inconsistent with the oral evidence led by Plaintiff himself, especially, inhiscrossexaminationof Defendant.For instance,inparagraph 2ofExhibitC,itstates that,“NananomsatandsentforthesuspectJamesOwusuAsamoah,heproceededandwasgiven a date for hearing on the 27th September, 2022. On the 27th September, 2022, James Owusu Asamoah and the complainant both came, when the charge was put before the suspect, he responded liable.” (Emphasis mine). Meanwhile, during cross examination, Plaintiff suggested to Defendant and it was confirmed, that Defendant actually pleaded not liabletotheclaimsonthatappearance.Thisiswhatensuedduringcrossexaminationof DefendantbyPlaintiff; Q.YourchargeswerereadtoyouattheAdansihene’spalace A.Yes Q.Yousaidyouwerenotliable A.Yes Plaintiff also states in paragraph 24 of his witness statement that the Defendant pleaded not liable at the Fomena/Adansihene’s palace, which said evidence is contradictory of thestatementcontainedinExhibitC. 16. Also, Exhibit C stated as follows, “Nananom therefore charged both to pay Two Thousand Cedis GHC.2,000.00each as Ntadwom to start the case.The complainant Isaac Kutin paidhis partfully,wherebyJamesOwusuAsamoahcouldnotpayhispartfullyandpromisedtopaythe Page9of12 ISAACKUTTINVJAMESOWUSUASAMOAH rest the next sitting.” (emphasis mine). Meanwhile, Plaintiff’s case which he put across in his cross examination of Defendant was that he paid GHC.700.00 whilst the Defendant paidGHC.300.00.Thisiswhatensuedincrossexamination: Q.The chiefs thenasked that we bothpay commitment feefor them to commence hearing andwe bothpaid A. I never paid any commitment fee as you are alleging. I told the elders that the matter was beforeAkrokerripalace.IwasthenaskedtobringtheOkyeameonthenextdate Q.IputittoyouthatyoupaidGHC.300.00andIpaidGHC.700.00 A.Thatisnottrue.IwasaskedtobringtheOkyeameofAkrokerriifindeedthematterwasbefore them On the contrary, in his witness statement, Plaintiff claimed that he paid the full GHC.2,000.00whilstDefendantpaidGHC.1,000.00outoftheGHC.2000.00.Therelevant portionsofPlaintiff’switnessstatementarereproducedbelow: “22. Not satisfied with the way the arbitrators handled the matter at Boatey, I summoned the defendantatFomenapalaceofwhichIpaidGHC.2,000.00assummonsfees. 24. The defendant pleaded not liable as such he was also made to pay GHC.2,000.00 but the defendantpaidGHC.1,000.00 25.EachpartypaidGHC.100.00forvideofeestocoverthearbitrationproceedings.” 17. The above shows the clear inconsistencies in the evidence of the Plaintiff and these inconsistencies cannot be overlooked. In the face of the Defendant’s denial of having paidanysubmission fee,thePlaintiff oughtto haveled cogentevidenceto persuadethe courtas tothelikelihoodoftheexistenceof thefactof thepaymentof submissionfeeby Page10of12 ISAACKUTTINVJAMESOWUSUASAMOAH Defendant, which he alleges. He failed to discharge this burden. His evidence is discredited by theserious inconsistencies outlined above and it makes it difficult forthe courttobelievethattheDefendantpaidanysubmissionfeeattheAdansihene’spalace. 18. Inthecaseof AsarevDonkor&SerwahII [1962]2GLR,theSupremeCourtstatedthat ‘it iscorrect that oneof therecognizedways inwhicharbitration proceedingsmaybe initiatedby customary law, is for one of the parties to a dispute to lodge a complaint against his opponent to the would-be arbitrator with a request that he should arbitrate upon it, and the would-be arbitrator then sends for the other party and obtains his consent that the dispute be decided by arbitration. But to amount to a submission to arbitration, it must be shown that when the other partycame,uponbeingsentfor,afullexplanationwasmadetohimthathisopponenthadmadea request that the dispute should be determined at an arbitration, not in court, and that the person towhomhelodgedthecomplaintshouldpresideoverthedisputeasthearbitrator.Itisonlywhen the person against whom the complaint is made agreed after such explanation, i.e., if with full knowledge of the implication 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 bothparties,otherwisenot”.SeealsoYawvAmobie(1958)3WALR406 19. There is no evidence on the record before me to prove that the Defendant submitted himself to the arbitration panel at Fomena by the payment of submission fees or by expressing his agreement to the process orally or through any other means. The inevitable implication of this is that the arbitration could not have proceeded without the submission of both parties and a determination of the matter could certainly not be reached. Page11of12 ISAACKUTTINVJAMESOWUSUASAMOAH CONCLUSION 20. There was no award in favour of the Plaintiff herein at Fomena. Even if there was any, same would be void for the reasons already discussed above. In the circumstance, the Plaintiff’s claim fails and same is dismissed as unmeritorious. Costs of GHC. 2,000.00 againstthePlaintiff. 21. Plaintiffhasarightofappeal. SGD MRS.LINDAFREMAHBOAMAH-OKYERE MAGISTRATE Page12of12