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he stated in the course of his judgment that what the arbitrator awarded was not “ebusa” but “tribute.” I shall now consider the native customary law on the subject. In the judgment of the Privy Council in the case of Angu v. Atta delivered on 23rd June, 1916, which was on appeal from the Supreme Court of the Gold Coast Colony, their Lordships state as follows:-
“The land law in the Gold Coast is based upon native custom. As in the case of all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs unless the particular customs have by frequent proof in Court become so notorious that the Courts take judicial notice of them.” Mr. Redwar in his well-known “Comments on Gold Coast Ordinances” at page 83 states as follows:-
“ Native law then when it is not incorporated by judicial decision in the case of the Colony must be proved either by affirmation of native referees or by consultation with experts out of Court or by expert testimony given in the ordinary way, and must stand on the same footing as foreign Jaw.” In the course of his judgment in the Court below the learned Chief Justice referred to Casely Hayford on
Native .Institutions at page 45, where the learned author in describing the rights of the King over lands in his state, states as follows :-
“Thirdly there are the general lands of the state over which the King exercises ‘paramountcy.’ It is a sort of sovereign oversight which does not carry with it the ownership of any particular land. It is not even ownership in a general way in respect of which per se the King can have a locus standi in a Court of law.
To him indeed belongs the power of ratifying and confirming what the subject grants, though he may not himself grant that which is given.”
He also referred to the judgment of Morgan; J. in the lmpatasie case, which is referred to in Casely Hayford’s Native Institutions at page 50 and is reported in Sarah’s Fanti Law Reports at pages 134-140.
“In the course of that judgment the following remarks appear:- ., “It may possibly be that by custom in some cases a Chief can claim tribute from his sub-chiefs in respect of their lands, apart from the question of ownership of such land.
The arbitrator had before him a considerable amount of evidence as to the particular custom in force in Akim Abuakwa, both on behalf of the party of the first part and also on behalf of the parties of the second and third parts, when he came to the following conclusion:-
“In my opinion the old arrangement or custom was the Omanhene was to receive one-third of the products of soil because he was Omanhene, and it was on these terms that the land was ‘granted’ to the various sub-chiefs.”
It is clear that in forming this opinion, he based his conclusion on the paramountcy of the Omanhene and not on the question of ownership by the Omanhene of any particular land. Although there was certainly a considerable amount of evidence in proof of actual ownership, there was also evidence given to the contrary, and the arbitrator discredited the evidence as to ownership.
The following evidence of the Ohene of Asamangkese the party of the second part, at pages 102 and 103, supports the view that the payment of tribute is not necessarily an incident of ownership.
“Q. On what principles was this one-third portion you are claiming from Akwatia based ? “A. Because he is my younger brother and if he has got something it is right I must eat some. “Q. Therefore he gives you ‘ebusa’ ?
“A. Yes,
“Q. The Akwatia lands, according to you, belong to the Odikro of Akwatia ?
“A. Yes.
“Q This ‘ebusa’ system, wherever it comes from or wherever it exists, is ancient custom? “ A, It is a custom. “Q. Ancient? “A. Yes, it is a custom existing
“Q. Between a senior stool and a junior stool?
“A. Yes.
“Q. In any case the custom is that your stool is entitled to one third of anything that comes out of Akwatia lands?
“A. Yes,
“Q, And for that reason you joined the Odikro of Akwatia in granting leases for diamond mines ?
“A. Yes,
“Q. SO that you should know what comes in, and your correct share?
“A. Yes.” Although counsel for the appellants suggested that the payment of one-third by the stool of Akwatia to the stool of Asamangkese was only due to the fact of the relationship existing between the present holders of the respective stools, and should not be taken as evidence of the native custom prevailing in the state of Akim Abuakwa, it appears to me clear from the evidence given, not only by this witness but also by the Odikro of Akwatia, that it was in respect of the paramountcy of the one stool over the other and not in respect of ownership that this tribute was paid by the subordinate stool to the superior stool, and the evidence of these witnesses certainly supports the judgment of Morgan, J. in the lmpatasie case on this point. The mere fact that the word “brother” is used, does not of itself indicate that such a relationship in fact existed.
As stated by Mr. Redwar in his “Comments on Gold Coast Ordinances” at page 85 :- “In considering evidence given by illiterate natives of the Gold Coast care must be taken, not to be misled by the elasticity of the terms of relationship in use amongst them. The meaning of a term of relationship should not in such cases be confined to its English legal import.”
In my opinion there was evidence before the arbitrator to justify him in coming to the conclusion that “the old arrangement or custom was that the Omanhene was to receive one-third of the products of the soil because he was Omanhene, and that it was on Amoah these terms that the land had originally been granted to the various sub-chiefs”; and in awarding to the party of the first part one equal third part share of all rents and profits of lands alienated by the stools of Asamangkese and Akwatia, he was adopting the native custom so found by him.
His award clearly had no reference to the term “ebusa” which Mr. Casely Hayford in his work to which I have previously referred calls “tribute” pure and simple, which is an “incident of ownership in the customary law,” but to the word “tribute” which Mr. Casely Hayford in the same work calls “allegiance fee “and which is payable to the Omanhene by reason of his paramountcy, irrespective of the question of ownership.
I consider therefore that the Chief Justice was correct in his findings on this point, and these grounds also therefore fail.
Now as to grounds 10, 11 and 12: In arguing these grounds, counsel for the appellants submitted that assuming any grant was made, it would be made to the Chief immediately subordinate to the Paramount Stool and he would be the person who would make grants to the Odikro or other sub-chiefs. He referred the Court to Sarbah’s Fanti National Constitution at page 17, where it is stated as follows:-
“The Omanhene can live and reside and farm on any unoccupied parts of his territory without the leave or permission of the sub-ruler who holds it as caretaker, but he cannot sell or lease it without the concurrence of such sub-ruler. He is entitled to an ‘ebusa’ of the sub-rulers ‘ebusa’.”
He contended therefore that the arbitrator was wrong in holding that the party of the first part was entitled to receive one equal third part share of all rents and profits of lands alienated by the stool of Akwatia.
That stool being subordinate to the stool of Asamangkese and only serving the Paramount Stool through the stool of Asamangkese, and it having been proved that the stool of Akwatia, by agreement, paid one-third to the stool of Asamangkese, he submitted that the Paramount Stool was only entitled to receive one-third of the third which the stool of Asamangkese received from the stool of Akwatia, i.e. one-ninth of the amount received by the stool of Akwatia.
The learned author of the work cited was dealing with the particular case of an Omanhene residing on an unoccupied portion of his territory, without the leave or permission of his sub-ruler. In this particular case, however, the facts were quite different. Here the Omanhene or his predecessors in title acquired certain land by conquest, and partitioned out such land to his various sub-chiefs under certain definite conditions.
The arbitrator in the course of his award refers to the evidence of Akosua Ebuya the Odikro of Kwamang at page 80 of the record:-
“She then spoke of the Akwamu war and said that Asamangkese, Akwatia and Kwamang took part in the war on the side of the Akwamus: that Owusu Akyentente of Adansi faught against them and that we (referring to Asamang-kese, Akwatia and Kwamang) fought to a certain stage when it became difficult and then we surrendered, She continued: - “After we surrendered we took oath and the Omanhene also offered to accept us as children and included us among his children. The Omanhene arranged that all lands which we cultivated, we should continue to cultivate or occupy as our land, to serve him as we were doing to the Akwamuhene.”
* * * “One of the arrangements was that whenever any person found a treasure trove on the land, a small part of it was given to him for his soul (to the finder); it was then divided into three parts. If for instance a nugget was found, it was pounded into dust and after deducting a little bit to the finder; it was then divided into three parts one-third was sent to the Omanhene one-third to the Odikro of the village and one- third to the immediate relatives of the finder.”
This was traditional evidence not only of a direct grant of land to the stool of Akwatia but was also evidence in support of the custom of paying a tribute of one-third, direct to the Paramount Stool.
In the course of his award, the arbitrator stated as follows:- “In view of the evidence of accomplished facts, I am, driven to the conclusion that the traditional story of the Akyem Abuakwa stool is the correct one. Of course I am not suggesting that it is true in detail; but only in outline. I shall add here that the authorities cited by Mr. Sekyi do not appear to be in any way relevant to the present case, which I find is a special one based on an ancient arrangement or custom and not on any general principles.”
In my opinion there was evidence before the arbitrator to justify him in coming to the conclusion that a customary tribute of one-third, as allegiance fee, was payable by the stool of Akwatia direct to the Paramount Stool notwithstanding the fact that it was proved that one-third was also payable by the stool of Akwatia to the stool of Asamangkese.
The learned Chief Justice was right therefore in upholding the findings of the arbitrator in this respect. In arguing the last ground of appeal, counsel for the appellants submitted that there was nothing in the record to show that allegiance fee was ever a question in dispute before the arbitrator. I have already dealt with this matter in considering grounds 4, 5,
6, 7, 8, and 9. The whole question hinges upon the meaning placed by the arbitrator upon the words “customary tribute,” which was what the party of the first part claimed. It is clear from the authorities to which I have previously referred that “customary tribute” in its wider sense, is not restricted only to “ebusa” or tribute pure and simple which is an incident of ownership according to native customary law, but also has reference to the tribute claimed by a paramount chief from his sub-chiefs in respect of their lands, apart from the question of the ownership of such lands, and which Mr. Casely Hayford in his work to which I have referred call “allegiance fee.”
As I have already stated, there was evidence before the Court of the custom which had for very many years prevailed in the state of Akim Abuakwa, to justify the arbitrator in arriving at the conclusion which he did on this point.
In Russell on Arbitration, 11th Edition at page 213 it is stated as follows :-
In submissions to arbitration, the general rule is that as the parties choose their own arbitrator to be the Judge in the disputes between them, they cannot when the award is good on its face, object to his decision either upon the law or the facts.” In the case of Montgomery Jones and . Co. and Liebenthal, In re (1898) 78 L.T. 406 C.A. at page 408, Smith L.J. stated as follows:-
“I, for my part, have always understood the general rule to be that parties took their arbitrators for better or worse both as to decision of fact and decisions of law. That is clearly the law.” After carefully considering all the objections raised and the evidence before the arbitrator as disclosed in his award, I have come to the conclusion that the Chief Justice was right in holding that no good ground had been advanced for setting aside the award. The decision of the Court below must therefore be upheld and this appeal dismissed with costs assessed at the sum of £64 6s.
HOWES, J. I concur. SAWREY-COOKSON, J.
The judgment of the learned President of this Court, which I concur, has gone into the points taken by learned counsel for the one side and the other in this appeal so fully that it is not perhaps necessary for me to say more, but the following remarks may not be superfluous:
Here we have parties to an action who, when the matters in dispute between them came on for hearing and determination, decided that the better way was to have recourse to arbitration with a view to finally determining all those matters and thus composing all their differences and avoiding all further litigation.
For that purpose an arbitrator with very special qualifications an experience an because he possessed these, was agree upon, and the submission shows how full his powers were to be and how wide the scope of the enquiry. Several prominent counsel represented the parties at the extremely exhaustive enquiry, and eventually the arbitrator gave his award, which in Itself is a monumental work. Briefly and materially what was claimed by the party of the first part (present respondent) was that the lands, the subject matter of the dispute, belonged to him by reason of his paramountcy or over lordship, the parties of the second and third parts having become and still remaining his vassals as from the time they were conquered by one of his predecessors some 200 years ago; and as such paramount lord he claimed to be entitled to one-third of whatever came out of those vassal lands. The arbitrator decided that he (the present respondent) could not rightly claim ownership of these lands, but found as a fact that by the ancient and native customary right obtaining in the particular district concerned he was entitled to one-third as tribute.
In other words, the arbitrator found that although he could not properly claim a right to disallow any dealings with or alienation of these lands by the other parties unless he had first consented thereto, the owners of these lands were bound to pay him one-third of all profits arising from any such dealings with these lands as a mark of the allegiance they owed to him. This in view is more precisely the meaning which the arbitrator gave to the word tribute, as the learned Chief Justice has held.
The parties of the second and third parts were not content with this finding of the arbitrator and took steps to have the award set aside mainly for the reason that the finding had, in effect, left the matters for all practical intents and purposes (as alleged) in the position in which they were before recourse was had to the arbitration.
And thus the matter came before the learned Chief Justice who, after hearing much argument, held in a most comprehensive ruling to the effect that the arbitrator had neither exceeded his powers nor left undecided any point of difference which had been submitted to him.
And it is on appeal from that ruling that the matter is before this Court.
I understand the main argument and burden of complaint of the appellants to be that the award is a nullity chiefly because the arbitrator has awarded to the respondent something which he did not claim, although apparently he is well content with what he has got out of the arbitration. The appellants contend that the respondent claimed what is known as “ebusa” which they maintain can only be an incident of and attached to the ownership of lands, and consequently, inasmuch as it was found in their (the appellants’) favour that he (the respondent) was not the owner of their lands, he should not have been awarded any benefit arising out of these lands.
But in my opinion the learned Chief Justice rightly held (as I have already indicated) that there is good authority for the view that the term “ebusa” is not necessarily used in the restricted sense but may be, and in this matter was, used in its wider sense in which the arbitrator applied it after hearing a vast amount of evidence as to the tribute to be paid by reason of the allegiance owed for generations past.
I have only to add that I do not think counsel for the appellants have attached sufficient weight to the proposition for which Russell on Arbitration shows there is such ample authority, that an arbitrator’s award will not be disturbed when he has made findings of fact. (See Russell on Arbitration, 11th Edition at page 184, and as summarised at page 472.)
It is clear that the trend of modern authority is to interpret the submission to arbitration so liberally that when once an arbitrator has been selected the parties must be assumed to have taken him for better or for worse. An arbitrator being something more than a Judge his arbitrament will require more to upset it than would suffice in the case of an ordinary judgment; and not until this fact is duly appreciated will the time and money spent on such cases as this be saved.
Since. therefore, I can find nothing left undone which the arbitrator ought to have done, and nothing inconsistent in what he has found as a fact or facts on evidence which certainly was before him upon which to find such fact or facts, viz.:-that though not owner of the lands of the appellants the respondent was nevertheless entitled to one-third of whatever came out of these lands by reason of their allegiance to him as their paramount chief, this appeal fails and must be dismissed with costs.
The decision of the West African Court of Appeal in this case was upheld by the Judicial Committee of the Privy Council as appears from the following judgment delivered by Lord Tomlin on the 21st of November, 1932 :- This is an appeal from a judgment of the West African Court of Appeal, which dismissed an appeal from the Chief Justice of the Gold Coast Colony, who had refused an application to set aside an award in favour of the respondents made by Mr. Justice Hall of the Supreme Court of the Gold Coast, sitting as an arbitrator.
The facts which give rise to this appeal are of this nature: There is a province, or kingdom, in the Gold Coast Colony called Abuakwa. The ruler of that province who holds the title of Omanhene, and who occupies the throne or stool of that province, has under him some fourteen subordinate chiefs, the province being divided into fourteen divisions. Each of those chiefs