AKWEI v. AKWEI [1961]DLSC558

Date	1961-04-25
Suit No.
Citation No.	[1961]DLSC558

OLLENNU J

J.C. ARMAH FOR APPLICANT

KOI LARBI FOR DEFENDANT-RESPONDENT

[1961]DLSC558
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&nbsp;[AKWEI v. AKWEI]

[1961] GLR 212

DATE: 25TH APRIL, 1961.

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COUNSEL:&nbsp;&nbsp;

J.C.
ARMAH FOR APPLICANT.

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OLLENNU J.

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&nbsp;

[His lordship stated the facts and continued:] The grounds for the
review is that the judgment of Acolatse J. delivered on the 20th April, 1959,
had declared that the applicant Isaac Akwei was the owner of the property
immediately prior to the sale, and therefore the arbitrators had no
jurisdiction to arbitrate on the ownership of the property after the judgment
of the court, and in any event, that the applicant, not being a party to the
suit herein, the arbitrators and consequently this court are not entitled to
make an order in respect of the property which affects the rights of the
applicant Isaac Akwei in the property.

The submission is misconceived. In the first place, if the
applicant was the individual owner of the house immediately prior to its sale,
then upon the sale the validity of which he maintained, the whole of his right,
title and interest in it passed to plaintiff; he has no longer any interest in
the said property. He is therefore estopped by reason of the said judgment of
Acolatse,J. from now asserting any interest whatsoever in the house. All that
remained to him after the sale, was the difference between the purchase price
of £466 and the £16 0s. 2d. the amount of rates due and for which the house was
sold, and this he must have collected already from the court whence the
execution issued.

Again by reason of the judgment of Acolatse,J. upon which the
applicant relies, the plaintiff Alexandra Akwei was the owner of the house at
the date the present suit was instituted; as such owner she is entitled, in
spite of that judgment, to submit the dispute to arbitration and she is in law,
bound by the award of that arbitration.

If after a court of competent jurisdiction had adjudicated upon a
dispute between parties, the parties voluntarily submitted the dispute in
respect of the same subject-matter to arbitration, they will be estopped from
claiming the fruits or benefits of the said judgment of the court, and would be
bound by the award of the arbitration held subsequent to that judgment. In the case
of Yardom v. Minta III a consent order was entered by the High Court in a suit
between the parties on a boundary dispute. Some time after that the parties
submitted a dispute between them in respect of the same boundary to arbitration
held in accordance with customary law. Later they again submitted a further
dispute to arbitration.

The plaintiff then sued in the High Court to enforce the second
award and obtained judgment, Hall J. holding that the parties were bound by the
award of the arbitration. On appeal to the Full Court, although Gardiner
Smith,J. disagreed with his brother judges that the proceeding constituted a
valid arbitration, he and his brother judges were unanimous that once a valid
arbitration by customary law was held subsequent to the judgment of the court,
the parties were bound by the award and were estopped from claiming rights
under the judgment. In the course of his dissenting judgment, Gardiner Smith,
J. said:

“I accept the findings of the learned trial Judge, in his careful
analysis of the evidence, that there were submissions to arbitrators in 1961 or
1921. The only question which I have to consider is as to the effect of the two
awards upon the judgment of 8th May, 1911, a question to which the learned
Judge has not addressed himself. “In the first place, the judgment of 8th May,
1911, not having been reversed, appealed from, or set aside, it is clear that
it still stands of full force and effect. The question is whether the appellant
has, by his acts, prevented himself from availing himself of it. I agree that
it was competent for the appellant, if he wished, to alter the position created
by the judgment of 1911, by a subsequent submission to arbitration, according
to native custom, and that the award in such an arbitration would be effective,
if it were proved to be final and binding.”