PONG vs. MANTE IV AND OTHERS [1964]DLHC1945

Date	1964-11-10
Suit No.
Citation No.	[1964]DLHC1945

LASSEY J.

SAMPSON BAIDOO FOR THE APPELLANT.

T. D. BRODIE-MENDS FOR THE RESPONDENTS.

[1964]DLHC1945
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													<main id="main" class="content" style="min-height: 60rem" >PONG<o:p></o:p>&nbsp;vs. <o:p></o:p>MANTE IV AND OTHERS <o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1964] GLR 593<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
10 NOVEMBER 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SAMPSON BAIDOO FOR THE APPELLANT.<o:p></o:p>

T. D. BRODIE-MENDS FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

LASSEY J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF LASSEY J.<o:p></o:p>Lassey J.
[stated the facts as set out in the headnote and continued:] With respect to
the liability of the respondents to the appellant the evidence led at the trial
was that after the settlement of the dispute between the appellant and the
third respondent had been announced, the fourth respondent, Yaw Adutwim, openly
stated that the appellant was in possession of a document and demanded its
production. Despite the strong objection raised by the appellant’s caretaker to
the production of the said document he was forced under pressure to release it
to the respondents. There was evidence which the trial court accepted that the
appellant’s caretaker, Yaa Tanoa, objected to the production of the said
document on the ground that the fact that the appellant had in his possession a
document relating to the land in dispute was never raised as matter of dispute
for any decision by the arbitrators, and therefore was outside their province
as such. After some heated and angry argument between the members present, including
the third respondent, the said document was eventually handed through one man
to the first respondent in his supposed capacity as chairman of the
arbitration. The first respondent also delivered the said document by hand to
Kyiame, the second respondent, who lit a match which he must obviously have had
in his pocket for that purpose, and set fire to the said document of title, and
thereby causing its destruction with the approval of all five respondents. It
must be noted that there was no dispute on the evidence as to the fact that the
document was actually burnt by the second respondent who himself pleaded liable
to the appellant’s action for damages in the local court.<o:p></o:p><o:p>&nbsp;</o:p>When the
matter came up before the circuit judge in his appellate capacity for consideration
he set aside the finding of the local court magistrate, giving as his reason
for so doing that what the respondents had done was a judicial or
quasi-judicial act and was therefore privileged. On this ground alone the
appeal was allowed and the respondents were absolved from liability to pay to
the appellant damages for the wanton destruction of his document of value.<o:p></o:p><o:p>&nbsp;</o:p>In this
court counsel for the appellant contended that apart from the fact that the
respondents acting jointly had no legal right to destroy or burn the
appellant’s document, they acted quite outside their province even as
arbitrators and therefore could not have been protected by any privilege
normally accorded to a body of persons properly exercising judicial functions
for any wrongful or illegal act committed in the due exercise of such
functions.<o:p></o:p><o:p>&nbsp;</o:p>The
principle of law upon which the learned circuit judge appeared to have based
his decision raised a very interesting, if not a novel, legal proposition
concerning which I have not been able to find any parallel in any of our local
decisions as a guide in considering the merits of this appeal. In considering
whether or not the respondents could be liable for destroying the document the
learned circuit judge assumed that they still exercised the powers of
arbitrators when they ordered the document to be destroyed; he must have been
led to think this way by the argument presented to him by counsel for the
respondents who, in replying to Mr. Sampson Baidoo’s submissions, stated that,
as one of the incidental issues which fell for consideration before the
arbitrators concerned the ownership of the land on which the third respondent
felled the 40 oil palm trees and consequently the right of the third respondent
to be on the land, the arbitrators were perfectly entitled to call for and
examine all documents in the possession of the parties to the dispute or their
representatives before coming to any conclusion on the matter in dispute which
had been referred to them as arbitrators to decide. Counsel for the appellant
could not agree with this argument; he contended that even if the arbitrators
wished to see the document they had every right to do so, so long as they
properly constituted themselves into a valid arbitration at law; even then, counsel
argued, their sole duty after examining the document which had been produced by
the appellant’s caretaker was that if in their opinion the document appeared
illegal or was a forgery, all they had power to do as arbitrators was to make
their finding as such, but not to order the document to be destroyed; learned
counsel for the appellant, very properly, in my view, contended that at the
time the appellant’s document was produced and burnt, the arbitrators had
finished their job in respect of the specific matter of the dispute which had
been voluntarily submitted to them for settlement, and that having made known
their decision on that particular matter they had become functi officio. He
therefore submitted that the respondents could not have had any legal
justification in calling for the appellant’s document and wilfully ordering or
causing its destruction by fire. With this submission I am in full agreement,
as the evidence led at the trial afforded ample support for this</main>