Joseph Richard Obuadabang Larbi & Anor V. Opanin Asong Kwasi & Ors (1950)

LawGlobal Hub Judgment Report – West African Court of Appeal

Arbitration award according to native customary law—General principles governing arbitrations—Effect of one party withdrawing before arbitration completed—Constitution of Native Appeal Courts—Construction of section 3 of the Native Courts (Colony) Ordinance, 1944, considered.

Facts

The Supreme Court ordered a re-trial before the Native Appeal Court of Akim Abuakwa. One of the grounds of the appeal before the Supreme Court was that there had been a binding arbitration award during the proceedings before the original Native Court, and therefore an appeal did not lie. The point, however, was not argued on the appeal before the Supreme Court and was not included in the grounds of appeal before this Court.

This Court, however, invited agrument upon the point as empowered to do so under the provisions of Rule 32 of the West African Court of Appeal Rules of Court. It was contended by Counsel for the respondent that the award was not binding under native customary law because at a certain stage, i.e., when the arbitrators went to inspect the land in dispute, -the respondents refused to point out their boundaries and withdrew from the proceedings. The Court followed (inter alia) the general principles governing arbitrations set out in ‘the case of Omanhene Kobina Foli v. +Nene Abeng Akese (1).

Counsel for, the appellant took a further point on the appeal, namely that the Native Appeal Court was not properly constituted under section 3 of the Native Courts (Colony) Ordinance, 1944, on the grounds that the Governor-in-Council 35 only empowered to constitute as a Native Appeal Court a Court which he as also constituted as a Court of first instance. In other words, it was contended that there cannot be a Native Appellate Court exercising only appellate yguisdiction.

Held

The arbitration was valid and binding and that it was repugnant to good sense to allow the losing party to reject the decision of the arbitrators to whom he had previously agreed. Obiter, the Court gave no ruling on the question d the constitution of the Native Appellate Court, but was disposed to consider there was substance in the submission.

Appeal allowed.