SEBEH vs. SEKYIM [1965]DLSC1850

Date	1965-05-03
Suit No.
Citation No.	[1965]DLSC1850

MILLS-ODOI JSC

OLLENNU JSC

SIRIBOE J.S.C.

[1965]DLSC1850
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													<main id="main" class="content" style="min-height: 60rem" >SEBEH <o:p></o:p>vs. <o:p></o:p>SEKYIM <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 329<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
3 MAY 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

HAYFRON-BENJAMIN FOR THE APPELLANT.<o:p></o:p>

A. W. ACQUAAH (WITH HIM ESSIEN) FOR THE
RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

MILLS-ODOI, OLLENNU AND SIRIBOE JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.S.C.<o:p></o:p>Ollennu J.S.C.
delivered the judgment of the court. The appellant’s stool, the wantram stool,
and the respondent’s stool, the Anfransi stool, the plaintiff and defendant
respectively in the trial local court, divisional stools in the Wasa Amanfi
State, are owners of adjoining land. Their dispute in this suit is the correct
boundary between their two lands; it is the fourth litigation they have had
over their boundary. The first dispute was in 1907, and the second in 1951;
each of these disputes determined with an award of arbitration; the arbitrator
in the second case was the Omanhene of their state with his elders and
councillors. The award of the second arbitration rejected the boundary laid by
the first award and fixed the Mamia river or Mamire river as the boundary
between the parties. The third was the subject of court proceedings which began
in the Wasa Confederacy Native Court A and finally determined in the Land
Court, Sekondi, in a judgment of van Lare J. (as he then was), delivered on 4
July 1953. In that judgment, the learned judge held that the dispute between
the parties was res judicata by reason of the award of the 1951 arbitration,
and that the award of the first arbitration became ineffective as both parties
were dissatisfied with it, and voluntarily submitted to a subsequent
arbitration. In the course of his judgment the learned judge said:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“It would
appear from the evidence of Nana Moo Ababio, Tufuhene of Wasa Amanfi one of the
members of the 1951 arbitration, that the whole matter was gone into again
including the 1907 arbitration, and the claim as to the boundary alleged by the
plaintiffs-respondents was dismissed and the arbitration appeared to have
upheld the contention of the Wantenam people, the defendants-appellants, that
the boundary between the two divisions was the Mamire river . . . The native
court lamentably erred in law in failing to give due consideration to the 1951
arbitration. On the authority of Kuturka Yardom v. Kurankyi Minta III (1926)
F.C. ‘26-’29, 76 once the parties subsequent to the 1907 arbitration submitted
themselves to another arbitration in 1951 on the same matter in dispute between
them the award of the subsequent arbitration in 1951 in law supersedes the 1907
arbitration award. The native court was therefore wrong in not considering the
1951 arbitration binding between the parties, because the said award is not
only very material to the claim before the native court but would be valid and
binding on the parties.”<o:p></o:p><o:p>&nbsp;</o:p>We agree
entirely with this proposition of law laid down by the Full Court in Kuturka
Yardom v. Kurankyi Minta III,1 and relied upon by van Lare J. We would here
cite with approval the ruling of the High Court, in Akwei v. Akwei2 which says:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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 . . .”<o:p></o:p><o:p>&nbsp;</o:p>It
follows that the boundary dispute between the parties is res judicata by virtue
of the judgment of van Lare J., confirming the award of 1951.<o:p></o:p>Some time
after the judgment of van Lare J., the respondent stool engaged a surveyor to
demarcate the boundary between their two lands, and upon his directions the
surveyor started cutting the boundary line along a stream called Bruntoom,
instead of recognising the Mamia river as the boundary; by that conduct the
respondent indirectly sought to enforce the award of 1907 which has been
superseded by that of 1951 and confirmed by the judgment of van Lare J.; that
conduct of the respondent is the cause of the present action.<o:p></o:p><o:p>&nbsp;</o:p>At the
trial in the local court, the respondent could not help admitting that the
judgment of van Lare J. was binding upon him; he however tried to show that the
boundary laid down by that judgment was a river called the Bruntoom river which
flows into the Mamia river. This contention of the respondent apparently based
upon the ineffective award of 1907, did not find support from the va</main>