Morkli & Another Vrs Sabla & Another [2022] GHAHC 72 (9 November 2022)

IN THE HIGH COURT OF JUSTICE HELD AT DENU ON WEDNESDAY THE 9TH DAY OF NOVEMBER, 2022 BEFORE HER LADYSHIP JUSTICE NAANA BEDUADDO, ESQUIRE, HIGH COURT JUDGE. SUIT NO. E12/08/2022 PLAINTIFFS 1. HUSUNUGBO MORKLI 2. JAMES MORKLI VRS. 1. GEORGE YAO SABLA DEFENDANTS - - 2. AMI SABLA JUDGMENT Before this Court is an appeal by the Plaintiffs/Appellants (hereinafter referred to as the ‘’Appellants’’) against the judgment of the District Magistrate Court, Dzodze presided over by Her Worship Rejoice Aseye Gadagoe dated 30th November, 2021, which is found on pages 106 to 110 of the record of appeal (‘’ROA’’) which was in favour of the Defendant/Respondents (‘’Respondents’’). The Appellants being dissatisfied with the judgment have appealed against same to this Honourable Court. The grounds of appeal filed by the Appellants on 4th January, 2022 are as follows: - a) The judgment is against the weight of evidence. b) The trial court erred when it adopted and enforced the arbitral award of Torgbui Esru Awadada IV as a consent judgment of the Court. c) Additional ground(s) of appeal may be filed on receipt of the Record of Appeal. No additional ground(s) of appeal have been filed by the Appellants. FACTS The summary of the facts are that the Appellants on the 26th April, 2019 instituted action against the Respondents at the trial court for the following reliefs :- a) Declaration of title, ownership and recovery of possession of that parcel of land, situate, lying and being at Dekporyia and bounded as follows: - On the one side by the property of Akuamasa, On another side by the property of Tokpo, On another side by the property of Agorgli, On the last side by the property of Sotorgbe. b) Perpetual Injunction restraining the Defendants jointly by themselves, their agents, assigns, workmen and privies from entering the disputed land. c) General damages. d) Costs. On 5th May, 2019 the trial court ordered the parties to file their respective pleadings. The Respondents also caused their lawyer to file a Notice of Intention to defend action on 6th May, 2019. The trial court further ordered the parties to file their respective witness statements and on 9th October, 2019, the 2nd Respondent filed a joint witness statement and attached three different settlement or arbitral awards and marked them as Exhibits A, B and C. When trial begun, the witness statement of the 2nd Appellant was relied on and same was adopted by the court as their evidence – in – chief and cross- examination of the 2nd Appellant began. On 17th September, 2021, Counsel for the Respondent chose not to continue with the cross-examination of the 2nd Appellant but rather informed the trial court that there are three (3) valid arbitration awards with regards to the same subject-matter. The trial court therefore truncated proceedings at that point to study the said awards and to determine whether or not the matter ought to be relitigated. The trial court, after subjecting the 2nd appellant to examination, entered consent judgment in favour of the Respondents. In discussing the grounds of appeal, the Appellants contended that the trial magistrate’s conclusion that though the three awards were all binding on the Plaintiffs, all three awards could not be enforced by the trial court therefore the court decided to settle one of them, which was the Award of the Palace of Torgbui Esru Awadada IV. Which was entered on 14th July, 2018 and was not supported by the evidence on the record. His reason being that none of the said arbitral awards (Exhibits A, D, and C were tendered in evidence for same to form the basis of a judgment of court. The Defendants never opened their defence nor testified in the matter. The lawyer for the Respondents raised the issue that there were arbitral awards in favour of the Respondents during the cross-examination of the 2nd Appellant. Appellants contend that since the said awards were never tendered in evidence by the Respondents, the trial magistrate should have subjected the said arbitral awards to proper scrutiny rather than subjecting the 2nd Appellant to examination and arriving at the erroneous conclusion that the matter had earlier been determined and entering judgment in favour of the Respondents. (Pages 104 and 108 of ROA). In their estimation, the judgment was not supported by evidence and ought to be set aside. Appellants further contended that since the issue of res judicata is legal and has the potential of summarily terminating proceedings, the trial court ought to have received full legal arguments from the parties or allow the trial to continue to its logical conclusion. They argue that the court erred grievously when it relied on the assertion of the lawyer for the Respondents alone and truncated the proceedings and entered judgment in favour of the Respondents. The Appellants relied on a number of legal authorities and finally submitted that this Court should overturn the findings of the trial court because it is not supported by the evidence on the record. RESPONDENTS CASE The Respondents filed their written submission on 29/9/2022 by which they argued that the trial court did not err by adopting and enforcing the arbitral award of Torgbui Esru Awadada IV as consent judgment of the court. They contended that the trial magistrate’s conclusion of the consent judgment in favour of the Respondents was based on Section 109 (a) of the Alternative Dispute Resolution Act, 2010, (Act 798). It states that: ‘’An award in a customary arbitration is binding between the parties and a person claiming through and under them; They cited the case of Dzasimatu & others Vrs. Dokosi and others [1993 – 94] 1GLR 463-477 where the Supreme Court, dismissing the appeal of a customary arbitration, gave five elements for arbitration to be binding; These are: - a) The submission of the disputants was voluntary. b) The parties agreed to be bound by the decision whichever way it went. c) The rules of natural justice were observed, although the arbitrator did not need to follow any formal procedures, d) The arbitrator acted within jurisdiction; and e) The decision or award was made known. The Respondents submit that the trial Magistrate was right when she said that ‘’The Parties had been taken through three different Customary Arbitration processes by three different Traditional Chiefs. All are valid.’’ All three arbitral panels comprising eminent chiefs of the relevant traditional areas arrived at the same conclusions. The three valid awards notwithstanding, the Plaintiff instituted the instant action. The Appellants herein were the Plaintiffs in all the three awards. Respondents argue that the trial Magistrate’s conclusion was supported by the evidence on record which is found at Page 107 of the ROA. It states as follows: - ‘’On 9/10/2019, the 2nd Defendant filed a joint witness statement for and on behalf of the Defendants. Attached to that process were three different Arbitration Awards marked as ‘’Exhibit A’’, ‘’Exhibit B’’ and Exhibit C’’. In paragraph 9 of the joint witness statement the Defendants therein stated that: - ‘’This present case before the court had already been adjudicated upon by several Chiefs but Plaintiffs refused to adhere to the judgments. The matter was before Torgbui Banitsi’s Regent, Torgbui Gbordzor VIII and Torbui Awadada Esru IV …….’’ In response to the second ground of the appeal, the Respondents argue that the principle of res judicata seeks to promote the fanj administration of justice and honesty and to prevent the law from abuse. The principle applies when a litigant attempts to file a subsequent law suit on the same matter, after having received judgment in a previous case involving the same parties. They cited the recent Supreme Court case of AJ Fanj Construction & Industrial Engineering Ltd. Vrs. Ghacem Ltd. (2022) where the Supreme Court held that ‘’The principles of estoppel per rem judicatem or res judicata has been espoused in a plethora of cases which both Counsel have copiously referred to in their written submissions. In simple terms, the doctrine of res judicata is invoked to support the public policy ideal that litigation must end. The Respondents submit that all the three arbitration Panels determined who the head of the Ayirofi family should be and the line of descent the said person should hail from. Why should the District Court be allowed to go into the same matter? They further submit that since the Applicants were the Plaintiffs in all the three arbitration processes, they could have applied to the Court immediately after the award to set it aside if they did not agree with it instead of jumping to three different Chiefs to adjudicate on the same matter three times. LEGAL ANALYSIS Examining the evidence before this Court, it can be seen that the three arbitral awards were attached to the 2nd Defendant’s witness statement filed for and on behalf of all the Defendants. Though the said awards were attached as Exhibits A, B and C there is no evidence that they were actually tendered in Court. If the Defendants were never called to testify, then it is most likely that the witness statement and its attachments were never tendered in evidence. Was the trial Court right in relying on evidence which was not properly before the Court? The trial Magistrate simply relied on the statement of Counsel for the Defendants when he said ‘’Your Worship there are 3 valid arbitration awards with regards to the same subject matter’’ to truncate proceedings for the day. She did not allow the Defendants to tender their evidence but she chose to examine the said exhibits herself and declared them valid. Based on her own conclusions she entered a consent judgment in favour of the Respondents. The trial judge ought to have allowed the Defendant’s to tender their witness statements with their exhibits. That done, they could have scrutinized the said exhibits before deciding to apply the doctrine of res judicata. In the case In Re: - Sekyedumase Stool; Nyame Kese @ Konto [1998 – 99] SCGLR 476, The Supreme Court held that where a party to a suit admits the existence of an arbitration, the award which had gone against him, the issue of estoppel per rem judicatem can be raised to estop him from re-opening the subject matter of the arbitration unless he is able to establish the invalidity of the award and in such a situation, the validity or otherwise of the award must be determined as a preliminary issue. In the instant suit, the exhibits were never tendered and the validity or otherwise of the said Awards was never determined as a preliminary issue. Looking at the three exhibits it could be seen that the subject-matter is not the same. The action instituted at the District Magistrate Court, Dzodze by the Appellants herein was for the Declaration of title, ownership and recovery of possession of that parcel of land, situate, lying and being at Dekporyia among other reliefs. This is clearly different from the claims stated in the arbitration awards. Exhibit C which was adopted by the District Court, Dzodze was seeking an award as to who is the legitimate person to hold the calabash and drinks to pour libation to the ancestors at the spiritual ground (Dzotsianu). From the foregoing, this Court finds that the trial Court erred in law when it adopted and enforced the arbitral award of Torgbui Esru Awadada IV as consent judgment of Court. This Court hereby sets aside the judgment of the District Court, Dzodze and orders that the case should be tried de Novo at the District Magistrate’s Court. Costs of GH₵5,000.00 award to the Appellants. (SGD) ……………………………………… JUSTICE NAANA BEDU-ADDO HIGH COURT JUDGE DENU 09/11/2022 aca./ 10