Kwesi Faaban & Ors. V. A. C. Mansu & Ors (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Appeal from a judgment based on the award of an arbitrator—wrong view of award taken by Trial Judge—arbitration not rendered invalid in consequence for lack of jurisdiction—appeal dismissed.

Held : The fact that the Defendant failed to establish his claim not only to any of the land in dispute but also to any land adjoining it does not render the whole arbitration void for lack of jurisdiction. The Plaintiff is entitled to a declaration as his boundary of the boundary which he alleged and proved to be the boundary of his land.

There is no need to set out the facts.

Appellant in person.

K. A. Korsah for Respondent.

The following joint judgment was delivered :-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.

The facts of this case and the questions in issue are so succinctly stated in the judgment of the Court below that the simplest way to state them is to set out that judgment in full. It is as follows :—

” This is a claim by the Plaintiff as Head of his family for recovery of possession of a piece of land delineated on a plan made by a Surveyor R. D. Mends (Exhibit ‘ 2 ‘ in this case) the subject of an award by A. F. E. Fieldgate, Esquire (Exhibit ‘ 1 ‘). By this award the arbitrator found that as against Owuba (Defendant’s predecessor) Etsialru (Plaintiff’s predecessor) is the owner of the land edged yellow on Exhibit A ‘ in the award ‘ (Exhibit ‘ 2 ‘ in this case).

” On this award the Plaintiff relies entirely and it is on the validity or otherwise of the award that the decision in this case turns.

” The submission to arbitration (Exhibit ‘ B2 ‘) contains a recital whereas the said families (that of Plaintiff and Defendant) own adjoining :Ands at Essikuma in the Essikuma Bresnan State . . and differences ^–1..t.d disputes have arisen between them touching the situation Of certain

boundaries ‘ and later sets out that the parties have agreed to refer the said differences and disputes to A. F. E. Fieldgate, Esquire, Provincial Commissioner of the Central Province (for arbitration).

” The award is attacked by the Defendant’s family on the ground that, though the submission stated that the parties owned adjoining lands in the vicinity, the Plaintiff’s family were allowed to allege at the hearing of the arbitration that the Defendant’s family owned no land in the neighbourhood and that the award is to the same effect and gives all the land in dispute to the Plaintiff.

” If that were so in its entirety I believe the award would be bad, but it appears to me that the award does not find that Defendant owns none of the adjoining land.

” It is true that on page 4 the award states that Etsiaku’s (i.e. Plaintiff’s claim as set out in Exhibit ‘ A ‘ entirely absorb Nkum’s (Owuba’s) i.e. Defendant’s claim ; but a glance at Exhibit A ‘ attached to the award (Exhibit ‘ 2 ‘ in this case) shows that there are certain portions of land—very small, it is true—adjoining the land claimed by the Plaintiff’s family which were claimed by the Defendant’s family without objection by the Plaintiff’s family.

” The arbitrator was therefore guilty of an error due to an oversight, but that error is not one that need vitiate the award.

” As I see it, the award can only be upheld because the arbitrator was palpably in error on this point.

” The land the ownership of which was in dispute before the arbitrator was the land edged red in Exhibit ‘ 2 ‘ except where the red line goes outside the yellow line and where this occurs the boundary of the land in dispute is marked by the yellow line.

” This is the land which the arbitrator decided was the property of the Plaintiff’s family. That he should have stated that land lying outside the red and within the yellow lines was the property of the Plaintiff’s family was superogatory as that was not in dispute before him.

” Nowhere in the award is there any declaration that land lying outside the yellow line and within the red line was not the property of the Defendant. For the purposes of the award as based on the submission that land must be regarded as being the property of the Defendant’s family.

” The award in fact does not declare that the parties were not adjoining landowners, the presumption is to the contrary and it does in fact delimit the boundaries between the parties by declaring that the Plaintiff’s family is entitled to the land within the yellow line on Exhibit B attached to the award. (Exhibit ‘ 2 ‘ in this action.).

” The question of title was always inextricably bound up in this arbitration with the question of boundaries. So long as an award is in fact within the terms of the submission to arbitration, it does not seem to me to matter whether or not the arbitrator was conscious of the terms of the submission or of what were the limits to his jurisdiction so long as he kept within those limits by his findings in the award.

” I therefore hold the award to be valid so far as the adjudication as to the boundaries is concerned. Except for the evidence of Kwesi Faaban in this action, all the equities of the matter are with the Plaintiff.

” I give judgment for the Plaintiff for possession of the land in dispute before the arbitrator which land I have already described in this judgment by reference to the Plan (Exhibit ‘ 2 ‘). The Plaintiff will have the costs of this action ; the question of the costs awarded by the arbitrator is not before me and I make no order thereon “.

This judgment has been attacked in this Court on a number of grounds but there is only one of any substance. It is, in effect, that the learned Trial Judge was wrong in the view he took of the award that it did ” not find that Defendant owns none of the wiipininif, Wan_ ” -, that for the purposes of the award as based on the submission the land lying outside the yellow line (in Exhibit ” A ” before the arbitrator) and within the red line must be regarded

as being the property of the Defendant’s family ; that the presumption is that the parties were adjoining landowners ; and that the award did in fact delimit the boundaries between the parties ; that if he had found, as he should have done, that the finding of the award was to the effect that the Defendant owned none of the adjoining land and that consequently it did not delimit any boundary between the parties, he would, as the judgment clearly shows, have held the arbitration to be void for lack of jurisdiction and consequently the award to be bad, and the Plaintiff’s claim would have failed.

As to this we agree with the Appellant’s contention as to the learned Trial Judge being wrong in his interpretation of the award. We think it perfectly clear that the arbitrator did, in effect, find that the Defendant owned none of the adjoining land and that he did not actually or impliedly delimit any boundary between the parties. The formal finding is unambiguous. ” The story told by Owuba does rot ring true and I am satisfied that his claim to the land edged red on Exhibit ‘ A ‘ is without support:: This is confirmed by the arbitrator’s oral evidence : ” I . . have awarded the whole of the land in dispute to the Plaintiff and that Defendant had no claim to any land in the area “.

On this basis, it is clear, as Appellant contends, that the case would have gone in his favour in the Court below on the ground that the arbitration was void. But we do not agree with the Appellant’s contention and the Trial Judge’s view that the award is bad on the ground of lack of jurisdiction if it failed to demarcate any boundary between the parties. The plan (Exhibit ” A “) before the arbitrator must be read with and taken as supplementing and explaining the terms of the submission, and from this it is clear that, apart from the question of the land in dispute, if each party established his claim to the respective areas claimed adjoining the disputed area, there would be at least one common boundary.

The fact that when it came to the hearing the Defendant failed to establish his claim not only to any of the land in dispute but also to any land adjoining it cannot, in our opinion, render the whole arbitration void for lack of jurisdiction and have the effect of denying to the Plaintiff the declaration as his boundary of the boundary which he alleged and proved to be the boundary of his land so as to enable him to rely upon the award as res judicata against the Defendant. To hold the contrary would enable any party to an arbitration, when he found it was going against him to render the proceedings nugatory by deliberately making his own case hopelessly bad. We are not, of course, for a moment suggesting that the Defendant did that in this case ; on the contrary he has made the best out of a bad case.

We hold therefore that the arbitrator award’s declaring the boundaries of Plaintiff’s land to be as shown edged yellow in Exhibit ” A ” (before the arbitrator) is valid and binding upon the parties.

There is one other point wlieh should be -qtentioned. It is

Manta, etc. the Plaintiff’s evidence : ” The land in dispute is about three —miles long beginning at the outskirts of &oilman village.” Tice
Kingdwl^, Appellant fixed upon this and suggested that it, showed that the

Petrides and

GrahamPlaintiff did not really claim all the land edged yellow on Exhibit

Paul, cll. ” A ” (before the arbitrator) but only the part within about three miles of Essikuma village, i.e. that his claim stopped somewhere near the land claimed by Defendant. But the sentence in question is explained in the Plaintiff’s re-examination and it is dear that the sentence refers to the land which was in dispute in the case before Mr. Bartlett, and not the land in dispute in the present case. There is .no doubt that throughout the Plaintiff has been perfectly consistent in claiming all the land enclosed by the yellow line on Exhibit ” A ” (before the arbitrator).

The appeal is dismissed with costs assessed at E33 19s.