DARKO AND ANOTHER vs. AMOAH [1989]DLSC575

Date	1989-03-22
Suit No.
Citation No.	[1989]DLSC575

ADADE J.S.C

TAYLOR J.S.C

FRANCOIS J.S.C

WUAKU J.S.C

AMUA-SEKYI J.S.C.

FIRST APPELLANT IN PERSON.

A. K. MMIEH FOR THE RESPONDENT.

[1989]DLSC575
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													<main id="main" class="content" style="min-height: 60rem" >DARKO AND ANOTHER <o:p></o:p>vs. <o:p></o:p>AMOAH <o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1989-90] 2 GLR 214<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:
22 MARCH 1989<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">

FIRST APPELLANT IN PERSON.<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">

ADADE, TAYLOR, FRANCOIS, WUAKU AND<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGEMENT OF FRANCOIS J.S.C.<o:p></o:p>The
dispute between the plaintiff and the defendant, originally a domestic storm in
a tea cup, assumed serious dimensions when issues of lineage were raised. Thus,
to a mild protest by the plaintiff at the cold response he had received from
his acknowledged head of family, on his return from a short sojourn abroad,
came the brusque renunciation from the defendant of any lineal ties he had with
him. It was a public denunciation of consanguinity that could only provoke a
legal suit for the determination of pedigree.<o:p></o:p><o:p>&nbsp;</o:p>The suit
was commenced at the Kyebi Executive and Amantoomiensa Council where the
defendant moved for its dismissal on ground of res judicata. This plea failed,
the tribunal ruling as follows: “We are satisfied that the defendant has failed
to establish a case of res judicata. Motion therefore fails.” The defendant did
not appeal from this ruling but successfully applied for a transfer of the suit
to the judicial committee of the Akim Abuakwa Traditional Council, where he
raised as a preliminary issue, the self-same question of res judicata. It
failed and a full trial of the consanguinity of the parties to the Osino stool
was begun. The plaintiff won. Dissatisfied with the decision, the defendant
appealed to the Eastern Regional House of Chiefs which also concluded in favour
of the plaintiff. It was the third throw of the dice before the judicial
committee of the National House of Chiefs that saw the reversal of the
plaintiff’s fortunes.<o:p></o:p>The plea
of res judicata raised by the defendant before the two successive judicial
constitutional courts and the earlier Kyebi Executive and Amantoomiensa
Council, was of the variety which lawyers designate as “cause of action
estoppel: see Robertson v. Reindorf [1971] 2 G.L.R. 289 at 302-304, C.A.
Although we need not be detained long on this classification, the point of
interest is that the defendant never suggested that the specie of res judicata
he relied on in the three earlier tribunals arose from the finality of an
arbitration settlement. This last cherry was ripe for picking only when the
matter reached the National House of Chiefs. The National House of Chiefs
declined to examine the issue of consanguinity of the parties to the Asona
stool of Osino, and paid scant attention to the meticulous family history led
in the two previous courts and carefully considered by the judicial committee
of the traditional council.<o:p></o:p><o:p>&nbsp;</o:p>It is
necessary at this stage to discuss whether the dispute between the defendant
and the plaintiff’s uncle Opanin Antwi which went before the Kyebi Executive
and Amantoomiensa Council in 1971 qualifies as an arbitral settlement. And
whether in any event the plea of res judicata can be sustained. What amounts to
arbitration at customary law is now a very familiar legal knowledge. The cases
are legion but we may with profit look at the following three cases chosen at
random which restate the settled view on the binding test of an arbitration.
The cases are: Ankrah v. Dabra and Olaga (1956) 1 W.A.L.R. 89, W.A.CA.; Manu v.
Kontre [1965] G.L.R. 375, S.C. and Nyaasemhwe v. Afibiyesan [1977] 1 G.L.R. 27,
C.A. The essential tests the cases emphasise are: (a) voluntary submission to
the arbitration; (b) prior agreement to accept the award; and (c) the
publication of the award.<o:p></o:p><o:p>&nbsp;</o:p>In Asare
v. Donkor [1962] 2 G.L.R. 176, S.C. voluntary submission was explained at
179-180 as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“It is
only when the person against whom the complaint is made agreed after such
explanation, i.e. if with full knowledge of the implications he also expresses
his agreement to the proposal of the complainant that an arbitration should be
so held, that there could be a lawful submission to arbitration by both
parties, otherwise not.”<o:p></o:p><o:p>&nbsp;</o:p>