DONKOR v. ISIFU

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. This is an appeal from a judgment of Apaloo J. which reversed a decision of the Berekum Local Court "B." The respondent, plaintiff in the local court, sued and claimed in effect enforcement of an alleged arbitration award which laid a boundary between the adjoining lands of the defendant and himself. The defendant denied that there was a binding award of an arbitration; according to him there was a futile attempt to negotiate a settlement of conflicting claims made by the parties as to the boundary between their two lands.

After they had heard evidence and inspected the land, the local court came to the conclusion that the proceedings relied upon by the plaintiff were not a valid arbitration, and that even if they were an arbitration the arbitrators acted without jurisdiction since upon the evidence they rejected the line claimed by each party as the boundary, and cut a new line which they considered should be a fair and reasonable boundary. The High Court reversed those findings of the local court and held that there was a valid arbitration by customary law, the award of which was binding upon the parties. It held further that even if the proceedings constituted negotiations for settlement, and not a valid arbitration, the decision thereof was accepted by the defendant, and he was therefore estopped from disputing the boundary fixed thereby.

Five grounds of appeal were filed and argued; the submissions made thereon were grouped under three main points, namely, (i) misdirection that what took place was a valid arbitration; (ii) even if there was an arbitration the arbitrators exceeded their jurisdiction; and (iii) misdirection that the defendant accepted the decision of the attempted settlement of the dispute between the parties as to their boundary.

[p.421]

On the issue whether there was a valid arbitration counsel for the defendant dealing with the essentials of a valid arbitration at customary law, referred us to the judgment of this court in Moshie v. Fordjour,1 in which the court adopted the decision on this point in Budu v. Caesar,2 to Ankrah v. Debra and Olaga,3 and to Kwasi v. Larbi.4 Those essentials as set out in Budu v. Caesar, supra, are, (i) a voluntary submission of the dispute by the parties to arbitrators for the purpose of having the dispute decided informally, but on its merits; (ii) a prior agreement by both parties to accept the award of the arbitrator