ANIAMOAH v. OTWIRAAH [1961]DLSC586

Date	1961-06-26
Suit No.
Citation No.	[1961]DLSC586

KORSAH C.J. JSC

SARKODEE-ADDO JSC

AKIWUMI JSC

-BENJAMIN WITH HIM W. BOSSMAN FOR THE APPELLANT

NO APPEARANCE FOR THE RESPONDENT.

[1961]DLSC586
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&nbsp;[SUPREME COURT]

[1961] GLR 405

DATE: 26TH JUNE, 1961.

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COUNSEL:&nbsp;&nbsp;

C.
F. HAYFRON-BENJAMIN WITH HIM W. BOSSMAN FOR THE APPELLANT.

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KORSAH C.J., SARKODEE-ADDO AND
AKIWUMI JJ.S.C.

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&nbsp;

Korsah, C.J. delivered the judgment of the court. The parties in
this case are adjoining farm owners. The defendant is the mother of one Yaw
Mensah, deceased, with whom the plaintiff jointly cleared a forest land at a
place commonly known as Daakwaye in Ashanti. After the forest land had been
cleared and before cultivation, the plaintiff and the late Yaw Mensah by
agreement, requested their mutual friend Kwame Akwaaboah to supervise the
partition of the said area between them; this was accordingly done. According
to the evidence of the said Kwame Akwaaboah the boundary fixed between them was
as follows: “Commencing from the base line of the boundary is a streamlet,
thence unto Wawapuo tree, thence unto Onyina tree, and thence unto ant hill and
thence unto an Odum tree, thence unto Esa tree and thence unto an ant hill
(esie) thence unto Wawapuo tree where it ended.” There is evidence that after
such demarcation as described, the plaintiff and the late Yaw Mensah began
cultivation of their respective portions by growing cocoa and foodstuff crops.
This continued for about fifteen years when Yaw Mensah died and the defendant,
as successor of her late son’s properties, became the owner of late Yaw
Mensah’s portion of the area.

The defendant was absent from the area for about seven years and
on her return she complained to the Obaapayin, Abena Manu of Seidi, that the
plaintiff had gone beyond the boundary between them and encroached on her
portion of the land. After an abortive attempt by the Obaapayin to settle the
dispute, the defendant again after the lapse of three years complained to
Opayin Kwabena Tawia, Odikro of Seidi about the encroachment by the plaintiff
whereupon the matter in dispute was arbitrated upon. According to the evidence
of the plaintiff each of the parties subpoenaed and produced witnesses and the
arbitration appointed six persons to view the land and ascertain the original
boundary; on the showing of the plaintiff himself the matter ended as follows: “After the said inspection the viewers gave
their respective report to the Odikro and after the arbitration had retired
with consultation, they returned and adjudged in favour of the defendant
(complainant) against me (respondent) Being aggrieved with this decision hence
I resorted to this court”.

It is in these circumstances that the plaintiff instituted this
action before Atwima Mponua Local Court “C” in which he called upon the
“defendant to show cause as to why defendant had trespassed over boundary to
plaintiff’s portion of the cocoa farm situating and being a Seidi on land
commonly known and called Daakwaye etc.” It is observed that upon the evidence
before the trial local court the defendant’s version of the course of the
boundary as originally demarcated between the plaintiff’s portion and that of
her late son’s portion of the area correspond with that given by Kwame
Akwaaboah, the person who witnessed and supervised the said original
demarcation; but the plaintiff’s version appears to be otherwise. It follows
therefore that as the award of the arbitration before Kwabena Tawia, Odikro of
Seidi, was in favour of the defendant the arbitrators must have preferred the
boundary described and pointed out by the defendant to that described and
pointed out by the plaintiff as being the true boundary between the two farms.
In view of this the trial local court should have had no difficulty whatsoever
in dismissing the plaintiff’s claim as the boundary alleged by the plaintiff
had not be proved to be the true original boundary, and in consequence the
plaintiff has failed to prove any trespass by the defendant.

We must point out that the plaintiff having voluntarily submitted
to an arbitration concerning a boundary dispute between him and the defendant,
cannot in law resile publication of the award in a case in which we are
satisfied from his conduct that he had previously agreed to accept the award of
the arbitrators, see Kwasi v. Larbi1(1). However, the trial local court held
that there had been a prior arbitration concerning the boundary in dispute
between the parties before the Obaapayin, Abena Manu, but this conclusion is
not supported by the evidence of the Obaapayin herself who deposed that there
had been only a negotiation, a settlement which broke down before her and that
there was no final and as such she “informed the defendant to take up her
matter whenever she chose to go”. In spite of this evidence, the trial local
court and the Asantehene’s Court “A2” on appeal held that the negotiations
settlement before the Obaapayin Abena Manu was a valid arbitration and
therefore the award published by the subsequent arbitration before Opayin
Kwabena Tawia, Odikro of Seidi in favour of the defendant was in effective.

We may at this stage mention that learned counsel for the
plaintiff appellant before this court concedes that upon the evidence what the
trial local court and the Asantehene’s “A2” Court accepted as an arbitration
before Obaapayin Abena Manu, cannot in law constitute a valid arbitration. He,
however, attacks the subs</main>