Introduction
Not every dispute must be dragged through the adversarial path of resolutions. There are, often, greater interests at stake. The need to preserve relationships, mostly within the business world, the need to reduce cost and even the need to not disrupt an already existing business machinery between parties call for the friendlier resolution of disputes. Disputes arise almost every time disagreements arise. However, in dealing with such disputes, caution must not be ignored.
The legal regimes across the globe have shifted greatly towards the resolution of disputes through less adversarial means. As a result, several Conventions and Treaties have been promulgated by states in protection and in furtherance of the interest of their citizens. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention, is an example. These Conventions have made it possible for both the recognition And enforcement of arbitral awards across international jurisdictions.
Ghana seems to lean favourably towards the adoption of Alternative Dispute Resolution (ADR) to resolve disputes amongst parties. As a result, several laws have been crafted by the legislature to infuse these ADR procedures into the Resolution of disputes that may arise.
The Alternative Dispute Resolution Act, 2010 (Act 798) affirms Ghana’s recognition of alternative means of dispute settlement.
When the new Lands Act, 2020 (Act 1036) was passed, it was not unexpected that the legislature would find a way to encourage the settlement of land disputes by alternative, less adversarial, means. It is in the light of this that section 98(1) of Act 1036 was adopted by the lawmaker.
The said section states:
“Resolution of land dispute
(1) An action concerning any land or interest in land in a registration district shall not be commenced in any court unless the procedures for resolution of disputes under the Alternative Dispute Resolution Act, 2010 (Act 798) have been exhausted.”[emphasis added]
However, section 98(1) of the Act poses a greater challenge than it sought to resolve. This article seeks to direct our minds to some, if not few, of the challenges posed by the continuous existence of the section in our Statute books.
THE ARGUMENTS
Act 1036, particularly section 98(1), seeks not just to encourage, but to command the adoption of the procedures under Act 798 to resolve land disputes in registration districts. A registration district is simply a district (or region) where registration of land and the issuance of land title certificates have been lawfully declared. The Greater Accra Region is a registration district. In such a district, it is highly advisable that landowners take steps to register and obtain land title certificates over their lands.
Under Act 798, three main ADR approaches have been codified: Arbitration, Mediation and Customary Arbitration. Of these approaches, consent and voluntary submission by the parties involved has been the centre of focus.
No person must be compelled to surrender to arbitration or mediation. In fact, it is argued that consent and voluntary submission is the lifeblood of all arbitral proceedings. All arbitrations derive their validity and legitimacy from the consent of the parties. For any arbitral award to receive recognition and enforcement, key/basic elements must exist:
- Prior consent to arbitrate.
- Scope of the arbitrable Dispute
- Agreement to be bound by the arbitral awards (finality of the arbitral awards).
The above elements are not exhaustive.
Party autonomy is therefore a sine qua non for the successful Arbitration of every dispute.
These elements are not only peculiar to Arbitration. Mediation, even though does not have the same binding effect as Arbitration, also thrives on the consent of the parties. Customary Arbitration also does same. In fact, a person invited by a Customary authority to submit to an Arbitration of a dispute is within his right to decline such invitation and refuse to submit.
Section 98(1), on the other hand, uses the mandatory language of “shall”. Under the interpretation regime of Ghana, the use of “shall” in a statute connotes the mandatory requirement under the statute. “Shall” therefore means mandatory and commanding.
Section 98 of Act 1036 in the light of the law
Section 98(1), on the face of it, seems to suggest (or command) in mandatory words that one cannot resort to the courts for the resolution of their land dispute within registration districts unless they have employed the ADR avenues available under Act 798. If this is true, as the words suggest, then the said section is unlawful on several fronts, offensive to the constitution and must be declared dead on arrival.
In fact, the section has opened the unfavourable doors to several instances where parties (mostly Defendants) such as the Lands Commission have unsuccessfully attempted to dismiss land suits merely because the Plaintiff did not resort to ADR in line with section 98 of Act 1036. Indeed, in all those instances as are known to the writer, the judges have refused to be swayed by the confusion inherent in the textual interpretation of the section. This is rightly so.
Section 98(1) Against the 1992 Constitution
Under the constitutional establishment of Ghana, final judicial authority resides in the judiciary. Article 125(3) of the 1992 Constitution is emphatic; that final judicial authority rests in the hands of the judiciary.
This pronouncement has been deeply rooted in the constitution as well as several judicial pronouncements.
However, when one reads Section 98(1) of Act 1036 carefully in the light of Article 125(3) of the Constitution, the unconstitutionality embedded in the said section becomes apparent. Arbitration produces final non-appealable decisions.
A major characteristic of Arbitration is the finality of its ensuing decisions and the binding nature of it. In effect, unless there are fundamental procedural glitches in an arbitral proceeding, none of the parties, no matter how aggrieved, can challenge the arbitral decision through the appellate channels. It is because of this critical feature of Arbitration that it has become almost impossible, if not unlawful, for any person to be compelled or coerced to submit to Arbitration. Arbitration in itself is an indirect waiver by a party of his right of access to the courts for the determination of the issues which he surrenders to arbitration. Arbitration at all times must be a debris of the exercise of a person’s free will to waive his right to pursue a particular claim before the courts.
Section 98(1) however appears to take from the courts that which the Constitution gives. Compelling a person to resort, first, to ADR procedures under Act 798 such as Arbitration will amount to coercing that person to not just surrender to arbitration but most unconstitutionally, waive his right of access to the courts. Even though an individual is at liberty to waive certain rights to which he may otherwise be entitled to, the right of access to court cannot be waived without the exercise of free will. This is more so when the ensuing decision from an Arbitration cannot be appealed against.
The consequence of the above provision is that not only are the rights of a landowner to access the courts being taken from him, the legislator seems to be passing a law to amend article 125(3) in land disputes within registration districts. The legislator therefore has no such right, power or authority in the manner the Act seeks to portray. This is more so when one considers the fact that Article 125 of the 1992 Constitution is an entrenched provision. Any provision of an enactment or any interpretation that lends credence to such an attempt must be rejected immediately.
Section 98(1) against Act 798
Again, there are several other reasons why section 98(1) is impossible and impracticable even under Act 798. Under the said Act, it is expressly provided that the Act does not apply to certain kinds of disputes, chiefly amongst them and of peculiar importance to this article is the issue of constitutional enforcement and interpretation. The criminal laws and procedures do not permit the resolution of criminal matters by ADR means. It is frequent in land matters, especially within registration districts, for the determination of a claim to permeate into the crime of fraud. Fraud is criminal in nature. By the dictate of the express and literal words of section 98(1), even cases involving fraud are to be first determined by resort to ADR under Act 798. That is not only unconstitutional. That is illegal, unlawful and inconsistent with and under the very Act 798 the section seeks refuge.
Initiation any ADR proceedings under Act 798
Of the three main modes of ADR as captured under Act 798 (Arbitration, Mediation and Customary Arbitration), none of these modes entertain the use of compulsion on parties to resolve their dispute through ADR. Specific sections of Act 798 are of relevance to this topic.
Arbitration:
Under Act 798, the initiation of arbitral proceedings, as captured by sections 5 and 6 of the Act must commence with the prior existence of an agreement by the parties to resort to arbitration. Even under section 7 of Act 798, where the courts are given the mandate to refer the parties to a dispute to arbitration, such reference must be with the consent of the parties. The content of Act 798 is not novel. It is in direct consonance with the international standard of every valid arbitration agreement or proceedings.
Every arbitration derives its legitimacy from the consent of the parties. This consent is mostly, though not always, evidenced in writing by the parties. By this, it is therefore inconceivable and unfathomable for Act 1036 to attempt to resolve disputes arising under any registration district to be commenced by resort to ADR procedures (including Arbitration) without addressing how such requirement can operate to oust the jurisdiction of the Court in arbitral proceedings, and most questionably, eliminate the rights of individuals to ventilate their disputes through the courts.
The law is that even when parties to a particular contract agree to resolve their impasse by resort to arbitration, such rights arising out of the agreement can be waived unanimously by the parties themselves. This waiver can be express or by conducts. This can be seen in instances where one party ignores the arbitration clause in their agreement and institutes an action at the courts. The other party can therefore be deemed to have waived his right to arbitrate if he files a defence on merit to the claim.
The principle of law is therefore that the right to arbitration must be invoked before the Defendant files a Statement of Defence to contest the matter on merit unless the defence filed is coupled with a motion for stay of proceedings.
In the case of De Simone Limited Vrs Olam Ghana Ltd (J4/03/2018) [2018] Unreported, SC (28 March 2018) the Supreme Court, speaking through His Lordship BENIN, JSC stated the principle thus,
“Sections 6(4) and 7(3) when read together would confirm that an application under section 6(1) should be made before the defence is filed on merits, unless the defence is coupled with an application to stay proceedings. The filing of a defence on merits signifies a clear intent to litigate, and an acceptance of the plaintiff’s offer to waive arbitration, by the issuance of the writ in court.
It must however be noted that the mere issuance of a Writ by a party to an Arbitration agreement does not connote the waiver of the right to arbitrate.
The dire consequences on parties who resort to arbitration as a means of resolving disputes must come with the careful requirement that the parties must agree to submit to such dispute procedures.
Mediation Under Act 798:
The initiation of mediation proceedings are captured under sections 63 and 64 of Act 798. Under the Act, reference to mediation, whether by the parties themselves or by the Court, must be with the consent of the parties. Where one party to the dispute seeks to refer the dispute to mediation, same must be with the consent of the other party. Where the court finds that the nature of the issues before the court can be resolved by resort to mediation, the court cannot refer the parties to mediation unless with the consent of the parties. Where the parties disagree, in the case of reference by the court, or where one party disagrees, in the case of reference by one party, no mediation can properly be resorted to.
The agreement by the parties can exist in a pre-existing contractual agreement, and the nature of the dispute must be one that falls within the scope of disputes envisaged by the agreement. Where no such pre-existing agreement exists, and where the parties themselves to a dispute do not agree, not even the courts can compel them to mediate.
Again, even with mediation, which has no binding effect on the parties, it is unlawful to compel the parties without their consent. Here again, consent of the parties reign supreme.
With section 98(1) of Act 1036 employing mandatory language that parties cannot commence actions over land in a registration district without exhausting ADR mechanisms under Act 798, such provision cannot be said to have mediation in contemplation. Any attempt to do so will be contrary to the very Act 798 the Act 1036 seeks to resort to.
How will a plaintiff compel a defendant trespasser to mediate with him in an attempt to stop the trespassory Act? How will a plaintiff, who alleges that the Defendant has committed fraud upon him, the result of which is the resort to the courts, be expected to employ mediation to resolve the issue of fraud?
Customary arbitration under Act 798:
Customary arbitration is the third ADR procedure adopted under Act 798. Like the other two procedures, customary arbitration rides on the voluntary submission by the parties to such procedure. It is completely unlawful to compel an individual to submit to a customary authority to arbitrate an issue.
Sections 89, 90 and 91 provides for the initiation of customary arbitration under Act 798. For purposes of clarity, let us reproduce the sections.
Section 89(1) provides as follows:
“A party to a dispute may submit the dispute to customary arbitration under this Part.”[emphasis]
Section 90(6) of Act 798 also provides as follows:
“A person shall not be forced or coerced by another person, institution or authority to submit to customary arbitration.” [Emphasis]
Furthermore, section 91 of Act 798 also provides as follows:
“A court may with the consent of parties order a dispute pending before it to be submitted by the parties to customary arbitration.” [Emphasis]
Clearly, the legislature carefully crafted the above provisions to drum home the fact that just like arbitration and mediation, customary arbitration is a voluntary process which derives legitimacy from the willingness of the parties. As such, no person can be compelled to resort to customary arbitration as such will be in sharp contradiction with the very Act.
Even though customary arbitrations are undertaken by traditional rulers or chiefs, the Supreme Court has ruled, by the interpretation of section 63 of the Chieftaincy Act, 2008, that chiefs wield no adjudicatory authority under the constitution or any other statute for which reason they cannot compel any individual to appear before them.
In Nana Adjei Ampofo v. Attorney General (Suit No. J1/08/2008), the Supreme Court speaking through Dr. Date-Bah JSC, and rejecting an argument by the Attorney general that chiefs can have the power of subpoena, put the principle thus;
“Individual chiefs do not have, and have not had, a judicial function in independent Ghana. By article 125(3) of the 1992 Constitution ,”[T]he judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.” Nowhere in the Courts Act, 1993 (Act 459) are individual chiefs given a judicial function.”
The question then again is, how do we compel a person to submit to a customary authority to arbitrate a land dispute, when the said traditional authority has no power to compel? How do we compel parties to resolve disputes which rests on criminal acts such as fraud before traditional authorities? This could therefore not have been within the contemplation, not even remotely, of the lawmaker at the time it enacted sections 89, 90 and 91 into Act 1036.
Conclusion:
It is therefore apparent from the proper appreciation of Act 798 that the requirement of section 98(1) of Act 1036, to the extent that it seeks to compel parties to land disputes within registration districts to ADR under Act 798, is simply impracticable and even unlawful. Even if a party is compelled, without his will and consent, to resort to ADR, the ensuing decision will not have any binding effect.
Under the laws of Ghana, as they stand now, neither the courts nor Parliament can hide behind enactments to compel litigants to resort to ADR against their will.
It is worthy of note that even when parties enter into a pre-existing contractual agreement to resolve their disputes by alternative means such as Arbitration, they can unanimously waive that contractual right to arbitrate. When this is done, not even the courts can compel them to arbitrate against their will, the existence of the arbitration agreement notwithstanding . The court in De Simone Limited Vrs Olam Ghana Ltd (supra) was not unmindful of this when it posited the interpretation of section 7(5) of Act 798 in the following words;
“…if Section 7(5) [of Act 798] is construed literally…, it would mean that even if both parties decide to waive their rights under the arbitration agreement, the court shall nonetheless compel them to resort to arbitration… This interpretation of Section 7(5) leads to an absurdity because it flies in the face of fundamental principles of the law of contract namely the freedom of contract. As earlier pointed out, parties to an arbitration agreement are free to annul it if both of them act together either expressly or by their conduct.
Almost all modern arbitration statutes globally are based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Arbitration of 1985 as amended in 2006. It does not contain such a provision that enables a court to compel contracting parties to seek arbitration against their will…
Consequently, Section 7(5) ought not to be construed literally.”[emphasis]
This is because for any ADR mechanisms under Act 798 to be adopted to resolve any issue, there must be evidence of agreement (or the expression of consent) between the parties to resort to that ADR mechanism, and further that the nature of the dispute is one envisaged under the agreement. Secondly, the court can only recommend, and not compel, parties to any of the ADR mechanisms under Act 798.
It is therefore hoped that the Courts, preferably the Supreme Court, would provide a concrete position on the effect and applicability of section 98(1) of Act 1036. This anomaly can be corrected with interpretation. This is moreso when the section has the effect of interfering with the individual’s rights of access to the courts, and even the constitutional provisions that make the courts the final arbiters of disputes.
Ends.
Godfred Adjabeng, Esq. (Senior Managing Attorney- ADJABENG LEGAL)
Disclaimer: This article by no means seeks to cover the entirety of the argument surrounding the legitimacy of Section 98(1) of Act 1036. It does not also seek to reflect the entirety of the opinion of the writer or Adjabeng Legal on the topic.
