KUTTIN V ASAMOAH (A2/37/2023) [2024] GHADC 525 (18 October 2024)

ISAACKUTTINVJAMESOWUSUASAMOAH INTHEDISTRICT COURT HELDAT FOMENA ONWEDNESDAYTHE 18TH DAY OF DECEMBER, 2024BEFOREHERWORSHIP MRS. LINDA FREMAHBOAMAH- OKYERE,ESQ. SUITNO. A2/37/2023 ISAACKUTTIN V JAMES OWUSUASAMOAH JUDGMENT BACKGROUND 1. The Plaintiff made a claim for the payment of Nine Thousand, One Hundred and Fifty-Six Ghana Cedis (GHC.9,156.00) being arbitration costs and expenses he incurred before the Fomena Traditional Council during an arbitration process between himself and the Defendant. Plaintiff also prayed for costs incidental to theinstitutionofthis action. 2. The undisputed facts of this case are that a misunderstanding ensued between the Plaintiff and the Defendant concerning a beam of 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 by the Plaintiff’s association that caused the matter to be brought before the Chief of Akrokerri by the Defendant based onthe allegationthatthe Plaintiff had insulted him. Page1of11 ISAACKUTTINVJAMESOWUSUASAMOAH 3. Eventually, the Chief of Boaiteykrom withdrew the matter from Akrokerri in an 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 that he obtained a favourable decision from the Adansi Fomena Traditional Council, the Defendant alleges that the matter was notheard and no judgmentwas pronounced. 4. It is against this background that the Plaintiff has sued the Defendant in court to recover the expenses and costs incurred by him during the said proceedings beforethe Fomena TraditionalCouncil. ISSUESFOR DETERMINATION I. Whether or not the decision of the chief of Boaitey and his elders was bindingonthe parties II. Whether or not the decision of the chief of Boaitey was appealable to the Fomena TraditionalCouncil III. Whetherornot anaward was givenby the Fomena Traditional Council IV. Whether or not the Defendant is liable to pay the arbitration costs and expenses emanating from the proceedings before the Fomena Traditional Councilto thePlaintiff BURDENOF PROOF 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 see that a party only succeeds in proving his claim on the preponderance of probabilities where he is able to establish a degree of certainty Page2of11 ISAACKUTTINVJAMESOWUSUASAMOAH in the mind of the court that the existence of certain facts, he alleges is more probable than its 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- existence ofthefacts which arerelevantto hisclaim ordefence, respectively. 6. In the instant case, the Plaintiff alleges that the Defendant ought to pay to him the amount of GHC.9,156.00. It is his duty therefore, to show that the Defendant has become indebted tohim to the tune of the amount claimed. Once the Plaintiff is successful, the Defendant would bear the burden of proving that he has paid themoney orthat he hasjustifiable reasonsfornotdoing so. ANALYSISANDEVALUATION OF EVIDENCE 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 forsettlement. He also allegesin paragraph19 of his witness statement that he was not given any hearing during the proceedings yet the “arbitrators” comprising the Odikro of Boaitey and that of Anyimadu as well as a linguist gave judgment against him. It is therefore necessary to enquire into the nature of the proceedings that ensued at Boaitey – whethersame was acustomary arbitrationoranegotiation forsettlement. 8. Under customary law, there are five (5) essential characteristics of an arbitration asopposedtonegotiations forasettlement. They are: a. A voluntary submission of the dispute by the parties to arbitration for the purpose of havingthe disputedecidedinformally, butonits merits b. Aprior agreementby both parties to acceptthe award of the arbitrators Page3of11 ISAACKUTTINVJAMESOWUSUASAMOAH c. The award must not be arbitrary, but must be arrived at after the hearing of both sides in ajudicial manner d. The practice and procedure for the time being followed in the native court or tribunal of the area mustbe followedas nearly as possible e. Publication of the award See the cases of Budu II v Caesar & Others [1959] GLR 410 and Nyasemhwe v Afibiyesan [1971] 1 GLR 27. In Pong v Mante [1964] GLR 593, the court per Lassey J (as he then was) described customary arbitration as the …practice whereby natives of this 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 characteristics of holding a valid arbitration are present…(emphasis added) Also, the learned S.A. Brobbey in his book The Law of Chieftaincy in Ghana, 2008 at pages 366-367, quoted from the case of Republic v Adrie; Ex parte Kpordoave III[1987-1988] GLR 624Mholding 4as follows: A customary arbitration is an adjudicating authority created by custom and as such a creature of 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 award of a customary arbitration could operate as estoppel perrem judicatam... 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 Page4of11 ISAACKUTTINVJAMESOWUSUASAMOAH only if it were accepted by the parties. Thereafter, neither party could resile from the compromise. The difference between negotiated settlement and arbitration under customary lawwas furtherdrawnin thecase ofObeng vMframa [1987-88] 1 GLR 548 where the court stated that in order to begin negotiations for a settlement under customary law, the parties to a dispute must voluntarily submit their dispute to a third party to attempt a settlement of the dispute. And after the hearing the third person must make his decisions known to the parties who are free to either accept or reject the terms of settlement. However, when the parties do accept the terms of settlement, they become bound by it as they will under an arbitration award. See also the case of Zogli & Another v Ganyo [1977] 1 GLR 297. This position of the law was reiterated in the ruling 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 notbinding 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 parties and can be enforced and no party can thereafter resile from it. 10.Intheinstant case, eventhoughthe Plaintiff referred tothe chiefs and thelinguist 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 have the matter amicably resolved at Boaitey. It would appear that the arbitration was to 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 DW4 are the chiefs of Page5of11 ISAACKUTTINVJAMESOWUSUASAMOAH Anyimeadukrom and Boaitey respectively who adjudicated on the matter at Boaitey. They admit that no witnesses of the parties were called and that they urged on the Plaintiff to admit guilt which according to them, he did. He was then asked to pay the cost which Defendant had incurred at the Akrokerri palace for the institution of the action there. Whilst the Defendant and his witnesses assert that the amount involved was GHC.1,000.00 out of which Plaintiff paid GHC.200.00, Plaintiff maintains that he was asked to pay GHC.1,500.00 out of whichhe paid GHC.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 same was accepted by both of them. It is not in dispute that the Plaintiff herein had been found liable and asked to pay an amount of money to the Defendant. The Plaintiff states 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 with the manner inwhichthe matterwas determined atBoaitey. 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 Page6of11 ISAACKUTTINVJAMESOWUSUASAMOAH had accepted the outcome of the negotiation for settlement, he could not subsequently resile from it. The outcome of that settlement had become binding onhim and he wasunder an obligationtopay the entire cost tothe Defendant. 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 conduct of 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. Section 112 of the Act statesas follows; “(1) A party aggrieved by an award may apply to the nearest District, Circuit or High Courttosetaside the award on the groundsthat the award (a) was made in breach of the rulesof natural justice, (b) constitutesa miscarriageof justice, or (c) is incontradiction with the 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 noticeto the other party tothe arbitration 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 redress laid with the courts and not to another arbitration panel. In any case, he was not under any obligation to accept the outcome of the negotiation for settlement at Boaitey. I find therefore that both parties are bound by the negotiated settlement reached at Boaitey and no appeal laid with the arbitration panelat Fomena. Page7of11 ISAACKUTTINVJAMESOWUSUASAMOAH 15.Assuming that the arbitration panel rightfully assumed jurisdiction over the matter, I am of the view that the Plaintiff could not demonstrate that there was any awardinhis favour. The contentsof Plaintiff’sExhibit C, emanating fromthe Fomena Divisional Council appears inconsistent with the oral evidence led by Plaintiff himself, especially, in his cross examination of Defendant. For instance, in paragraph 2 of Exhibit C, it states that, “Nananom sat and sent for the suspect James Owusu Asamoah, he proceeded and was given 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 liable to the claims on that appearance. This is what ensued during cross examination ofDefendant by Plaintiff; Q.Your charges were read to you at the Adansihene’s palace A. Yes Q.You said you were notliable 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 contradictoryofthestatement contained inExhibit C. 16.Also, Exhibit C stated as follows, “Nananom therefore charged both to pay Two Thousand Cedis GHC.2,000.00 each as Ntadwom to start the case. The complainant Isaac Kutin paid his part fully, whereby James Owusu Asamoah could not pay his part fully and promised to pay the restthe next sitting.” (emphasis mine). Meanwhile, Plaintiff’s case which he put across in his cross examination of Defendant was Page8of11 ISAACKUTTINVJAMESOWUSUASAMOAH that he paid GHC.700.00 whilst the Defendant paid GHC.300.00. This is what ensued in crossexamination: Q. The chiefs then asked that we both pay commitment fee for them to commence hearing and we both paid A. I never paid any commitment fee as you are alleging. I told the elders that the matter was before Akrokerri palace. I was then asked tobring the Okyeame on the nextdate Q.I putitto you that you paid GHC.300.00and I paidGHC.700.00 A. That is not true. I was asked to bring the Okyeame of Akrokerri if indeed the matter was before them On the contrary, in his witness statement, Plaintiff claimed that he paid the full GHC.2,000.00 whilst Defendant paid GHC.1,000.00 out of the GHC.2000.00. The relevant portionsofPlaintiff’s witness statementare reproduced below: “22. Not satisfied with the way the arbitrators handled the matter at Boatey, I summoned the defendantatFomenapalace of which Ipaid GHC.2,000.00 as summonsfees. 24. The defendant pleaded not liable as such he was also made to pay GHC.2,000.00 but the defendantpaid GHC.1,000.00 25.Each party paid GHC.100.00for video feesto cover the arbitration proceedings.” 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 paid any submission fee, the Plaintiff ought to have led cogent evidence to persuade the court as to the likelihood of the existence of the fact of the payment of submission fee by Defendant, which he alleges. He failed to discharge this burden. His evidence is discredited by the serious inconsistencies outlined above and it makes it difficult for the court to believe that the Defendant paid any submission fee atthe Adansihene’spalace. Page9of11 ISAACKUTTINVJAMESOWUSUASAMOAH 18.In the case of Asare v Donkor & Serwah II [1962] 2 GLR, the Supreme Court stated that ‘it is correct that one of the recognized ways in which arbitration proceedings may be initiated by 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 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 implication he also expresses his agreement to the proposal of the complainantthat an arbitration should be so held, that there could be a lawful submission to arbitration by both parties, otherwise not”.See also Yaw vAmobie (1958) 3WALR 406 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 ofthe mattercould certainly not be reached. 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. CostsofGHC. 2,000.00against thePlaintiff. Page10of11 ISAACKUTTINVJAMESOWUSUASAMOAH 21.Plaintiff hasaright ofappeal. SGD MRS. LINDAFREMAH BOAMAH-OKYERE MAGISTRATE 18/12/2024 Page11of11