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Yaw v. Amobie and Another
(1958) 3 WALR 406.
Court of Appeal(Korsah C.J., Granville Sharp J.A., Ollennu J.)
May 1, 1958


Cases referred to :

(1) Brown v. Vawser, 102 E.R. 954; (1804) 4 East 584.
(2) Henfree v. Bromley (1805) 6 East 309; 102 E.R. 1305.
(3) Thompson v. Miller (1867) 15 W.R. 353.
(4) Brooke v. Mitchell (1840) 6 M. & W. 473; 9 L.J. Ex. 269
(5) Kwasi v. Larbi [1953] A.C. 164; (1953) 13 W.A.C.A. 76.

APPEAL from a decision of Smith Ag.J. on May 25, 1956, in the Land Court, Ashanti Judicial Division, reversing a decision of the Asantehene's Court `` A.2 '' given on November 30, 1955, which reversed a decision of the Odumasi-Konongo Native Court given on August 30, 1955, in favour of the defendants in an action to enforce an award given on a customary arbitration.

OLLENNU J. This is an appeal from a judgment of Smith A.J., as he then was, delivered in the Land Court, Kumasi, on May 25, 1956. The suit commenced in the Odumasi-Konongo Native Court by writ issued at the instance of the appellant. The claim, which is couched in the popular Native Court from, is in substance a claim for the enforcement of an award of an arbitration made by one Okyeame Kwame Adade, settling a boundary between adjoining lands of the plaintiff and the defendant. The Odumasi-Konongo Native Court dismissed the plaintiff's claim holding that no award was published by the arbitrator. That decision was reversed by the Asantehene's Court `` A.2 '' but was restored by the Land Court.

The facts, which are not in dispute, are briefly as follows: The plaintiff and the first defendant are owners of adjoining lands. A dispute arose between them as to the boundary between these lands. The plaintiff made a complaint against the first defendant to one Okyeame Kwame Adade. The parties appeared before the said Okyeame Kwame Adade and his elders, sitting as arbitrators, and each stated his case or her case. They then agreed that the arbitrators should go with them to the land and demarcate the boundary between them, and each of them paid a sum of 25s. to the arbitrators to indicate his or her consent. The arbitrators thereupon went with the parties to the land and after seeing what each of them pointed out, [408] they, the arbitrators, decided upon what the boundary was, had it demarcated and fixed poles on the boundary line. The arbitrators afterwards sent for the parties to attend before them for a formal pronouncement to be made confirming the boundary they had demarcated, but the first defendant said she was not satisfied with the boundary demarcated and so wanted her money back. The arbitrators refused to refund the 25s. to her, and for formal pronouncement of the award was made. In an answer to the Native Court the arbitrator stated: ``In fact I could not decide the case because no award was pronounced.''

Whether there has been a valid award or not, upon those facts, is a question of law for the court to determine; the opinion of the arbitrator notwithstanding. Unfortunately both the trial Native Court and the Land Court allowed themselves to be unduly influenced by the opinion which the arbitrator expressed of the law and failed to direct themselves upon the law and to come to their own conclusions. The Asantehene's Court ``A.2 '' on the other hand properly directed themselves on the law and came to the conclusion that the arbitration was concluded because the arbitrators sufficiently published their decision, which turned out to be against the first defendant; and it was because of that indication that the defendants deliberately refused to go before the arbitration for the decision to be formally announced.

It was argued on behalf of the defendants that there was no valid arbitration the award of which could bind them, because no evidence was led that the respondents and the plaintiff agreed beforehand to submit their dispute to the arbitrators. I am not impressed with the argument. It is very rare for two people who are quarreling to meet and agree together that they would submit their dispute to arbitration. The usual thing is that one party makes a complaint to somebody, the other party is sent for, and if he agrees, the party to whom the complaint is made arbitrates upon the dispute. Whether a party agreed to submission to the arbitration or not is a question of fact in each case to be determined from the conduct of that party and other circumstance. In this case the first defendant attended the arbitration, gave evidence before it, agreed that the boundary which would be decided to be demarcated on the land, and paid the fees of 25s. to indicate that agreement. In my opinion all those facts prove voluntary submission to the arbitration by the respondent.

The learned judge of the Land Court reversed the decision of the Asantehene's Court ``A.2,'' and, upholding that of the trial Native Court, stated inter alia:

``In the present case no award or decision was given by the arbitrator, although there was a demarcation of boundary. I must accept what is in the Record of the court below and Kwame Adade says--in fact I could not decide the case because no award was pronounced seems to me that if any court or arbitrator [409] panel stops short at giving a decision, its previous labours go for naught. Cases cannot be concluded by undelivered judgments.''

In my opinion this is misdirection. The decision which the arbitrators were called upon to make was the direction of the boundary which exists between the adjoining lands of the two parties. The most effective way of deciding a boundary is by demarcating it on the ground. That is what the arbitrators did in this case. In my opinion the arbitrators made that decision firmly and unequivocally the moment they determined what that boundary was to be and physically demarcated it in the presence and in the view of the parties. Formal oral pronouncement of that decision would add nothing material to that decision which the arbitrators thus made and which they made physically obvious to the contesting parties.

The question is: Is the decision which the arbitrators made any less a determination of the dispute, without it being formally published? Publication of an award is the communication of the decision of the arbitrators to the parties so as to make the arbitrator functus officio. It includes any steps taken to make the award known or available to the parties; it might take the form of an oral pronouncement at a meeting, it might be by a written decision transmitted by the arbitrators to the parties, and it might, as in this case, be made by some physical indications of the decision to the parties.

In the case of Brown v. Vawser (1), Lord Ellenborough C.J. said:

``The award was complete when it was ready to be delivered withing the time appointed, and prior to the actual delivery; the arbitrator was then functus officio; and if any accident had happened afterwards to prevent his making a delivery, it would still have been an award.''

Again, in the case of Henfree v. Bromley (2) where, after an arbitrator had written and signed his award for a certain sum in favour of one party and had mentioned the amount in the award to the parties, he afterwards amended the award by substituting another amount for it before delivering the award, it was held that the amendment was illegal because it was made after the publication of the award. The learned Chief Justice, Lord Ellenborough, in the course of his judgment stated as follows:

``I consider the alteration of the award by the umpire after his authority was at an end, the same as if it had been made by a stranger, by a mere spoliator. And I still read it with the eyes of the law as if it were an award for £57, such as it originally was.''

Awards of native customary arbitrations are usually not made in writing, and therefore the cases cited above may not be directly in point. There is, however, the judgment of Monahan C.J. in the Irish case of Thompson v. Miller (3), cited at length in Palmer on Arbitration and Awards, which is as follows: [410]

``We are of opinion that a mere mental determination is not enough, the arbitrator must evidence by some act done, by some external fact, that he had made up his mind. There is a dictum of Lord Wensleydale in Brooke v. Mitchell (4) to the effect that publication to the parties is not necessary to an award; but yet some external act must have been done by the arbitrator, ' whereby he becomes functus officio, and has declared his final award.' ''

In my opinion that principle laid down in Thompson v. Miller (3) is properly applicable to an award of arbitration made in accordance with native custom.

The demarcation of the boundary and fixing of poles on that boundary are acts done, and external facts whereby the arbitrator indicated that he had made up his mind, and also declared his final award, so as to make him become functus officio. If was when that final award was so published and thus became known to the respondents that the respondents refused to accept, and wanted their 25s. back; but having once submitted to the arbitration they are not entitled to resile: Kwasi v. Larbi (5).

For the reasons stated, I am of the opinion that both the trial Native Court and the Land Court misdirected themselves on the native law and custom in holding that award of the arbitrators was not published. I would therefore allow the appeal, set aside the judgment of the Land Court including the Order as to costs, restore the judgment of the Asantehene's Court ``A.2 `` and enter judgment for the plaintiff for a declaration that the boundary demarcated by Okyeame Kwame Adade is and shall remain the boundary between his land and the land of the defendant.

KORSAH C.J. I concur.

GRANVILLE SHARP J.A. I also concur.

Appeal Allowed
S. G. D.

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Josh DuBois 2005-04-30