BUDU II v. CAESAR & ORS

JUDGMENT OF OLLENNU J.

(His lordship set forth the history of the proceedings, and continued:—)

I shall deal firstly with the issue whether or not there has been a valid arbitration upon the dispute between the plaintiff and the Caesar family so as to operate as a estoppel against the Caesar family.

It is not very material by what name the layman calls proceedings which in the eyes of the law amount to a binding arbitration—he may call it arbitration or settlement. Whether any particular proceedings constitute arbitration or negotiations for a settlement is a question of law, to be decided by the Court upon the evidence before it. In the case of arbitration, the award is binding upon the parties to it whether or not they accept it; the parties cannot resile after the award has been published. In the case of proceedings in the nature of negotiation for settlement of a dispute, the decision becomes binding only after it has been accepted by the parties, and not otherwise (see Gyeniwa v. Mumah (W.A.C.A. Cyclostyled Judgments, [p.414] November—December, 1947 page 49); Kwasi & ors. v. Larbi, ([1953] AC. 164); Ankrah & ors. v. Dabra & anor., (1 W.A.L.R. 89); Twumasi v. Badu (2 W.A.L.R. 204); Yao v. Amobie & anor., (Civil Appeal No. 77/57, Judgment of the Court of Appeal delivered on the 3rd of May, 1958).

In customary law there are three essential characteristics of an arbitration, as opposed to negotiations for a settlement. These are:

(a) a voluntary submission of the dispute by the parties to arbitrators for the purpose of having the dispute decided informally, but on its merits;

(b) a prior agreement by both parties to accept the award of the arbitrators; and

(c) publication of the award.

As to what amounts to voluntary submission, the following observations were made by the Court of Appeal in Yaw v. Amobie cited above:

"It is very rarely that two people who are quarrelling would meet and agree together that they would submit their dispute to arbitration. The usual thing is that one party makes a complaint to somebody, the other party is sent for, and if he agrees, the party to whom the complaint is made arbitrates upon the dispute. Whether or not a party had agreed to submit to the arbitration is a question of fact in each case, to be determined from the conduct of the parties and other circumstances."

I have now to apply these principles to this case.

The evidence of the alleged arbitration in this case was given by the plaintiff and two of