Nene Aggudey Kuntu & Another -vrs- Nomo Agboso Dogbeda & 4 Others [2022] GHACA 14 (20 April 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA. A. D. 2022 CORAM: ACKAH-YENSU J. A. (PRESIDING) DODOO J. A. BAFFOUR J. A SUIT NO: H1/16/2020 28TH APRIL, 2022 1. 2. NENE AGGUDEY KUNTU APPELLANTS PATRICK AGGUDEY TEYE VRS 1. NOMO AGBOSO DOGBEDA 2. ELDER JOHN AMEOYOR DASI 3. NOMO J. KORLETEY AGAMA 4. NOMO ATTER SIAMAEH 5. NOMO ATEH ADOPHLEH RESPONDENTS JUDGMENT Baffour J. A: Introduction From the time of the customary arbitral forum of the Greater Accra Regional House of Chiefs, Dodowa came up with its award on the 29th of March, 2012, there had been at least three previous attempts to impeach the award before the commencement of this action at the court below. All the previous attempts woefully failed. The application purporting to have been launched under section 58 of the Alternative Dispute Resolution Act, 2010, Act 1 ! 798 is the fourth attempt to set aside the arbitral award, albeit this time the claim being on the basis of fraud. We are being called upon to make a determination as to the admission of the suit by the court below to proceed beyond the preliminary legal objection raised for trial in the suit was rightly done or not. The Respondents/Appellant would be simply referred to as Appellant whilst the Applicants/Respondents/Respondents would be known throughout this ruling as Respondents. Background To fully appreciate the matter which is before us on appeal, it would be necessary to recount the antecedents that has transpired in connection with the rightful gate to choose a person to occupy the position of a Mankralo of the Ada Traditional area. The wrangling as to who became the next Mankralo of Ada Tradtional area became intense after the demise of Nene Agudey Kuntu III, the last acknowledged Mankralo in the year 2000. There appears to be at least six gates within Korgbor clan of Ada Traditional Council. And these are Kponkpo Gbedzam Gate, Adenyingbe Gate, Da Gate, Applausu Gate, Fiagbedu Gate and Abloakorm Gate. The appellant submitted for customary arbitration the determination of the issue as to the Gate that was entitled by tradition and custom to install a Mankralo over the Ada Traditional area. In the award of the arbitrators at the Greater Accra Regional House of Chiefs, they found that the Mankraloship belonged to two families of Dah’s descendants and that of Agudey Kuntu descendants. And on the basis of the system of inheritance among the Ada people being patrilineal, the system of ascension into the position of Mankraloship was to rotate between the descendants of Dah and Agudey Kuntu beginning with the faction of the Appellant to install a Mankralo. Based on that determination, the appellant was installed as the Mankralo with the stool name Nene Obitchere III. Piqued by this determination, the award by the customary arbitration has not been allowed to rest. The first assault on the award was an action that was mounted before the Judicial Committee of the Ada Traditional Council in an attempt to set aside the arbitral award that was made. That action was quashed by the High Court, Tema presided over by H/L Laurenda Owusu J. on the 4th of June, 2013. In the opinion of the High Court, the matters 2 ! that had been tabled before the Judicial Committee of the Ada Traditional Council had been settled in a voluntary manner before customary arbitrators and there was no jurisdiction vested in the Traditional Council to re-open the matter. That decision came on appeal and was affirmed by this court. The second of the attempts to impeach the customary award is an action that was mounted and received a ruling from the High Court presided over by Justice Professor Sir Dennis Adjei on the 20th of April, 2016. Sitting as an additional Justice of the High Court, the learned Justice dismissed the suit to set aside the customary arbitral award that had been mounted on grounds of fraud. It is curious to note that His Lordship dismissed the writ because he opined that an action to set aside arbitration was time bound and the applicants were way out of time. And two, the court found that the applicants in that suit N: HRCM/271/15 were not clothed with capacity to mount the action and accordingly upheld a preliminary objection to dismiss the suit. The third in the trilogy of suits to attempt to scuttle the enforcement of the arbitral award was yet another writ that was mounted on the 2nd of April, 2017 against the 2nd Appellant herein; wherein an order was sought to set aside the arbitral award. The court again struck out that suit on the 31st of July, 2017. It is against this background that the current action was mounted at the High Court by the five Respondents claiming to be coming under section 58 of the ADR Act to set aside the arbitral award on the ground of fraud. The 1st Respondent described himself as the head of one of the gates in Ada, being the Kponkpo Gbadzam Gate of Korgbor clan whiles the rest of the Respondents, he deposed as being the heads of the other Gates of Korgbor clan of Ada Traditional Council. To these Respondents, before the submission of any dispute as to the Mankraloship to the Regional House of Chiefs by the Appellants, they knew of the settlement of that issue way back in 1955 that had held that Da-Wem was only entitled to the priesthood of the Da and Nyuerepe shrines of the Korgbor clan whiles the Ablaokom gate was entitled to the Mankraloship. And hence having gone before the arbitral panel of the Regional House of Chiefs, Dodowa to procure an award to contradict the award they knew all along from 3 ! 1955, there had been a suppression of the truth about the Gate that could provide the Mankralo, so the Respondents contended. And that the award before the Greater Accra Regional House of Chiefs had been obtained by fraud. Appellant’s Case The appellant by his fidavit in opposition deposed to sniff at the claim that the arbitral award had been obtained by fraud. He recounted the various applications filed in an attempt to set aside the arbitral award for which all failed. The affidavit in opposition further deposed that all parties fully participated in the arbitration and it was only when the award did not go in favour of the dissatisfied parties that disingenuous means had been devised to set aside the award. There was total denial of any fraud perpetuated in the customary award secured. With the affidavit in opposition filed, the appellants proceeded to file a notice of preliminary legal objection to the hearing of the application of the Respondents. The grounds for the filing of the preliminary legal objection was based on the following: 1. That the application is brought contrary to statutorily prescribed provision of law 2. That the application is brought out of the statutory prescribed time limits 3. That the applicants are not parties to the arbitration and do not have locus standi to challenge the arbitral award. In a ruling in response to this preliminary legal objection, Abada J. on the 10th of May, 2018 dismissed the preliminary legal objections raised and concluded that the action mounted raised serious issues of estoppel as well as allegations of fraud. He accordingly overruled the preliminary legal objection. This appeal is an expression of dissatisfaction with the decision of the court below. The notice of appeal states the grounds of appeal as follows: i. The learned trial Judge erred in law in failing to determine at all the preliminary objection raised by the 2nd Respondent [Appellant] ii. The learned trial Judge erred in failing to determine whether the application was 4 ! brought within the limits specified by statute. iii. The learned Judge erred in assuming jurisdiction to determine the merits of the application. iv. The learned trial Judge erred in failing to determine whether or not the applicants are persons capable of seeking relief under the relevant statute. v. The learned trial Judge erred in law in overruling or dismissing the preliminary objection. Particulars of Error of Law a. The learned trial Judge erred in disregarding the relevant provisions of statute b. The ruling of the learned trial Judge was delivered per incuriam. Summary of the submissions of the Parties It is the contention of the Appellants that the High Court made no attempt to make reference to the core issue of statutory time limits that had been raised or section 58 of the ADR Act under which the application had been brought. To appellants as to whether the application was properly brought under section 58 of the ADR Act and whether the Respondents were out of time in bringing the suit at the court below, was not properly addressed by court. Appellants contended that a court ought to assign reasons for its decision in the context of the objections raised which to the appellants was not done by the High Court. Appellants further claim that the Respondents failed to adequately invoke the jurisdiction of the High Court in the manner spelt out under law as the court lacked jurisdiction to determine the claim of the Respondents having regard to the section under which the application was brought by the Respondents, being section 58 of the ADR Act. That there being no justifiable cause to have allowed the application to stand and no leave having been granted by the High Court before the application to set aside the arbitral award was filed, the preliminary objection raised ought to have been sustained by the High Court, so appellants strongly argued. It was the further submission of the Appellants that the procedure for setting aside the arbitral award was a creature of statute and for one to take advantage of the procedure set 5 ! out by law, one needed to comply with the timelines spelt out under the law. That the jurisdiction of the High Court could not be said to have been properly invoked as the application to set aside the arbitral award was void at the time the application was filed. The final leg of the submission of the appellants is to the effect that the application to set aside the arbitral award ought to have been brought under section 112 of the ADR Act but not section 58 in so far as section 112 deals specifically with challenge to customary arbitration award. That on the basis of the generalia specialibus non derogant rule, the applicable provision was section 112 which also enjoined applications to be brought within three months of an award to set same aside. And that the refuge for which the High Court sought under section 28 of the ADR Act was uncalled for and on that score the High Court lacked jurisdiction to have entertained the action of the Respondents. Not only that but also by the express provision of section 58 it was only persons who were parties to the arbitral award that could proceed to court to set aside the award. And the Respondents not being parties to the arbitral award could not have purported to proceed to set aside the award. Respondents on the other hand rebuffed the arguments of the Appellants with their own that they have injuriously been affected by the arbitral award and may apply to the court to have the said award set aside on grounds of fraud. That their application before the High Court was proper and the dismissal of the preliminary legal objection was not an error on the part of the trial Judge. Respondents accordingly relied on the cases of Lamptey v Hammond [1987-88] 1 GLR 327 and In Re Nungua Chieftaincy Affairs; Odai Ayiku IV v Attorney-General (Borketey Laweh XIV Applicant) [2020] SCGLR 413. Respondents further claim that they exactly did what the authorities inform them to do. As to whether they met any of the two principles set down in the Lamptey case was not answered and neither was that explained in the written submission in answer to the appellants’ one. Respondents further noted that the determination of the preliminary legal objection without reference to any statutorily prescribed provision under the law was therefore tenable because the period prescribed by law was inapplicable to the situation of the Respondents. 6 ! Finally, it was the contention of the Respondents that the erroneous citation of the relevant provision under the ADR Act should not disable them from having access to the court as what mattered most was the substance of their claim but not the form in which it took in so far as the High Court had jurisdiction over the matter. And in that respect reference to section 28 of ADR Act by the trial Judge as the applicable provision was therefore proper. That the Respondents upon becoming aware of the arbitration had every right to question the award under section 28 of the ADR. RESOLUTION OF THE GROUNDS OF APPEAL By the nature of the grounds of appeal and the submissions made before us deep and fascinating areas of the law have been brought to the fore for determination by this court. Among these are whether a non-party to an arbitral proceedings can invoke the jurisdiction of the court to set aside an arbitral award; whether the non-party who decides to proceed to court to set aside an award is time bound and whether the non-party to the arbitral provisions if he has to come to court can proceed as of right or need leave of the court or the party to the arbitral proceedings to come to court. It is worth beginning with section 58 of the ADR Act under which the Respondents mounted their action at the High Court. The said provision states that: “(1) An arbitral award may subject to this Act be set aside on an application by a party to the arbitration. (2) The application shall be made to the High Court and the award may be set aside by the Court only where the applicant satisfies the Court that (a) a party to the arbitration was under some disability or incapacity: (b) the law applicable to the arbitration agreement is not valid; (c) the applicant was not given notice of the appointment of the arbitrator or of the proceedings or was unable to present the applicant's case; 7 ! (d) the award deals with a dispute not within the scope of the arbitration agreement or outside the agreement except that the Court shall not set aside any part of the award that falls within the agreement: (e) there has been failure to conform to the agreed procedure by the parties; (f) the arbitrator has an interest in the subject matter of arbitration which the arbitrator failed to disclose. (3) The Court shall set aside an arbitral award where it finds that the subject-matter of the dispute is incapable of being settled by arbitration or the arbitral award was induced by fraud or corruption. (4) An application to set aside an award may not be made after three months from the date on which the applicant received the award unless the Court for justifiable cause orders otherwise. (5) On hearing the applicant, the Court may make an order as is just in the circumstances of the case. (6) An appeal from the Court lies to the Court of Appeal”. In the decision under attack from Abada J., the learned Judge reasoned at page 204 of the record of appeal that: “the law is well settled that a person who has been injuriously affected by a judgment or an award or an order can apply to the court to have the said order or judgment or award set aside including grounds of fraud …”. It is out of this that the appellant complain that the ruling failed to determine whether the Respondents are persons with capacity or locus standi in the sense of being persons capable of seeking the reliefs under the relevant provisions. As the learned trial Judge found it convenient to latch onto the well-known principle that a person injuriously affected by a judgment can appeal against it, I find it necessary to explore that principle and determine whether its application in the context of a customary arbitration was well founded or grounded in law. 8 ! It used to be the law as exemplified in cases like Lamptey v Hammond (1987-88) GLR 327; Gbagbo v Owusu (1973) GLR 252 that a non-party to a suit in court may appeal against it after satisfying two main conditions. The Gbagbo case set out the conditions as follows: “[I]t is well established that there are only two methods whereby a stranger to a judgment who is adversely or injuriously affected can set it aside. That, is, he can obtain the defendant’s leave to use the defendant’s name and then apply in the said name to have the judgment set aside. Or where he cannot use the name of the defendant, he can take out summons in his own name to be served on both the plaintiff and the defendant, asking to have the judgment set aside and for him to intervene. Since the applicant did not obtain the defendant’s permission to use her name his application could not be entertained”. It stands to reason that even applying the old law (the new law would be touched on shortly), in the context of a trial before a court, a non-party’s right to appeal against a decision because he has injuriously been affected was not automatic. Such a non-party or stranger would have to show that he has obtained the leave of a party to the suit to appeal the decision or in the alternative he may take out summons in his own name to have a judgment set aside. And in this suit before us there is no evidence to show that the Respondents in proceeding to court, did in any way comply with pre-conditions laid down by the authorities for a stranger to a suit or matter to challenge same. As far as the process of the court is concerned and in relation to appeals by a non-party to a suit, the relevant and current law is what has been set out in the recent case of Stanley Kotei Hammond v Agbleze J4/13/2021 delivered on the 13th of December, 2021 (unreported decision of the Supreme Court). In this case the apex court dealt with the parameters under which a non-party to a suit at the High Court can appeal against such a decision if such a person is injuriously affected by the decision. The court was very mindful that as far as Rule 9(8) of the Court of Appeal Rules, C. I. 19 was concerned and in dealing with application for extension of time to file an appeal that the rules states that “where a 9 ! person” has applied to the court below for extension of time within which to appeal …” and that the word used there is “a person” but not a “a party” to the trial and hence concluded that a non-party may appeal against a decision. It is instructive to note that under section 58 of the ADR Act, the word used is “a party to the arbitration” but not a “person” and any attempt to invoke the Gbagbo principle or its modern rendition in Stanley Kotei Hammond case are not the same. Besides, there are much more fundamental issues even if a non-party may have the liberty to file an appeal in a case in the Stanley Kotei Hammond case for which he was not a party. The Supreme Court has spelt out in details what such a stranger or non-party must meet to cloth him with the requisite capacity to proceed to court. These have been set out in page 15 of the unedited judgment in the Stanley Kotei Hammond judgment as follows: “[T]he following guidelines shall apply where a non-party is desirous of appealing from a final decision of the Circuit Court or High Court to the Court of Appeal; (i) No application for leave to appeal shall be made later than the time provided for under Rule 9 of C. I.19 for appealing or applying for extension of time to appeal; (ii) An application for leave to appeal shall be by motion on notice to persons who would be directly affected by the appeal and shall be supported by an affidavit setting out good and substantial reasons for the application; (iii)Leave to appeal shall not be granted unless the court is satisfied that; (a) the applicant is bound by or is prejudicially affected by or is otherwise aggrieved by the decision he seeks to appeal against; and 10 ! (b) the intended appeal has reasonable prospects of success; or (c) for some other compelling reason leave ought to be granted. (iv)At the hearing of the application for leave, if it shall be the case that a party in the court below with interests and motives similar to those of the applicant has appealed or indicated an intention to appeal against the decision, then the court shall take that fact into account in deciding whether or not to grant the application. (v) An application for leave to appeal shall be made to the court below and upon refusal it may be made to the court. (vi)Where a person has applied to the court below for leave but after a period of not less than one month the court below fails to determine the application, the application may made to the court. (vii)Where leave is granted the pursuant notice of appeal endorsed with the date of the order granting leave shall be filed together with a certified copy of the order”. What has been quoted above apply in the context of appeals from a trial Circuit or High Court to the Court of Appeal by a non-party. But even if we are to stretch it to extend it to the realms of awards given by an arbitral forum to the High Court, one could see the non- party’s right to come to court is not automatic. Leave must be applied for and granted. For the leave to be granted some of the factors, even though not exhaustive have been set out by the Supreme Court. Under Rule 9 of C. I. 19 the time limit provided for a party to appeal is three months and another three months following for which leave must be obtained. The Supreme Court intimates that an application by a non-party for leave to appeal a decision 11 ! cannot come after the time provided by the Rules. If by the reckoning of the trial Judge, a non-party could appeal against a decision that affects him, then it behoves such a party to come to court within the time limit provided for. In this case the time limit provided for a party to challenge an arbitral award is spelt out in substantive law under section 58 of the ADR Act. The person named as the one that can challenge the award is “a party to the arbitration” to the arbitration. Besides, the time limit provided by the law is three (3) months. In fact the need for section 58 of the ADR Act to restrict only “a party to an arbitration” to come to come to set it aside flows from the principle in arbitration that consent of parties was the foundation of arbitration agreement and a non-party had no business to dabble in what parties have agreed to. For instance the New York Convention states under article II that international arbitration agreements are binding on the signatories or parties to the agreement. It is against the background of arbitration agreements binding on the basis of consent by agreement or on the basis of assignment, succession or agency that section 58 of ADR Act restricts persons that may come to court to “a party to the arbitration”. The rare circumstances where courts have extended an arbitration clause to include a party other than a signatory to an arbitration agreement are when there is a corporate ties by companies in the sense of being a group of companies and also instances where a court finds the need to pierce the corporate veil. To conclude on this angle, I hold that the Respondents were not parties and could not have approached the court to set aside the arbitral award. Two, that even if they were allowed to approach the court to set aside the arbitral award, they needed leave to come to court upon an application filed before the High Court for leave but not as of right, as the Ghanaian cases have distilled that non-parties to a suit who have been affected by the outcome of a suit needed leave of the court to appeal but not as of right. And third, that any imaginary right to come to court was not open ended but time bound and ought to have been filed within three (3) months of the arbitral award. The award was given on the 29th of March, 2012 but Respondents came to court on the 14th of December, 2017 after their earlier writ and statement of claim they mounted had been struck out by the High 12 ! Court differently constituted for being hopelessly out of time. Appeal or approaching the court is a product of the substantive law and where the law has provided the time frame for a person to come to come, it is the duty of the court to ensure compliance. See Karletse Panin v Nuro [1979] GLR 194; Nye v Nye [1967] GLR 76. The above alone should be enough to uphold the appeal, but I think there are other weightier matters and observations in this suit that true justice would not be deemed to have been done if they are not touched on. One is the about turn or the tergiversation made by the learned Judge at the court below in shifting the case of the Respondents which was fastened against the peg of section 58 of the ADR to section 28(1) also of the ADR Act. The said provision begins with: “A party to an agreement who is not notified of arbitration proceedings arising under that agreement may by an application to the High Court (a) Question whether there is a valid arbitration agreement (b) Question whether the panel is properly constituted (c) Question whether the matters submitted are in accordance with the arbitration agreement. (d) Challenge an award on the grounds of lack of jurisdiction in relation to that party (e) Challenge an ward on the ground of serious irregularity that affects that party” First, section 28 deals with situations where parties in an agreement have set out an arbitral provisions to deal with a matter in the event of conflict. What went before the Regional House of Chiefs in Dodowa was not pursuant to an arbitration agreement for one 13 ! to place the case of the Respondents under section 28. But it was one of customary arbitration which would be governed by section 89 of the ADR Act. For section 89 states that: “89. (1) A party to a dispute may submit the dispute to customary arbitration under this Part”. The procedure for customary arbitration is then set out under section 90 of the ADR Act to be that a report of the dispute by a party made to the qualified person to help arbitrate a customary dispute would constitute a submission to customary arbitration. This would be followed by the payment by the parties of the arbitration fee or token demanded by the arbitrator in customary arbitration to signify the consent to submit to customary arbitration. There is nothing like an arbitration agreement in the form of document of contract to trigger a customary arbitration. The umbrage therefore, sought by the learned trial Judge under section 28 of the ADR Act is totally inapplicable to the suit filed by the Respondents. Again, it appears that the Respondents claim to have alleged fraud in the procurement of the arbitral award by the Appellants and that as fraud has been alleged then there ought to be a determination of that matter. So also is the claim that issues of res judicata have been set out and the court needed to afford the Respondents opportunity to prove their claim. It is difficult to fathom how fraud and claims of estoppel or res judicata was to be determined by a court in a summary manner on a mere affidavit evidence based on an application filed before the court. These are serious matters that the Rules under Order 11 Rule 8 of the High Court (Civil Procedure) Rules, 2004, C. I. 47 requires specific pleadings in a statement of claim but not a deposition in an affidavit. More importantly, a shout of fraud cannot be deemed to be fraud simply because it has been stated. There must be a pleading of fraud which must demonstrate on its own the cause of action as the conduct of a Defendant being fraudulent. See the decision of the Supreme Court speaking through Adinyira JSC in Osei Ansong & Passion Air Ltd v Ghana Airport Ltd J4/24/12 dated 23rd January, 2013. Any claim of fraud or reason to set aside an arbitral award must be brought within three months under section 112 of the ADR Act. The said provision enjoins a party aggrieved by 14 ! an award to apply to the nearest District, Circuit or High Court to set aside the award on ground of breach of the rules of natural justice, miscarriage of justice, contravention of the known principles of the custom of the area and the law requires such an application to be made or brought within three months. With an action in Suit No HRCM 271/15 having been dismissed by his Lordship, Sir Dennis Adjei JA on the 20th of April, 2016 for being out of time, the suit filed was nothing but another disingenuous means for the losing parties at the arbitration to go round the arbitral award by the use of persons feigning ignorance of the arbitral proceedings at the Regional House of Chiefs. Conclusion The preliminary legal objection raised by the Appellant was highly meritorious and did not deserve to have been dismissed by the court below. We hold and rule that the Respondents not being parties could not have mounted the action. We hold and rule that the Respondents not being parties, if indeed they were not aware of the proceedings, needed leave to have mounted a challenge to the arbitral award. We hold and rule that the Respondents were hopelessly out of the prescribed three (3) months set out by the statute law. We further hold and rule that the Respondents could not have come to court under section 58 of ADR Act or section 28 of the ADR Act. Based on the above, the preliminary legal objections ought to have succeeded. We do the needful by striking out the Respondent’s motion filed on the 14th of December, 2017 for the reasons espoused in this judgment. We award in terms of cost an amount of Gh¢ 30,000.00 in favour of the Appellant against all the Respondents herein. (Sgd) (Justice of Appeal) Eric K. Baffour, Esq., (Sgd) Barbara F. Ackah-Yensu, JA 15 ! (Justice of Appeal) (Sgd) Jennifer A. Dodoo, JA (Justice of Appeal) Representation: Kwesi Austin, Esq. for the 2nd Respondent/Appellant present Edward Sam Crabbe, Esq. for the Applicants/Respondents absent 16 !