Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA
Date: 12TH MAY, 1959.
Before: OLLENNU J.
JUDGMENT OF OLLENNU J.
(His lordship stated the history of the matter, and proceeded-)
Learned Counsel for the plaintiff submitted
(1) that it is against all principles of justice that one set of people should adjudicate and decide upon a case, and another set implement the decision, and
(2) that there were two Aworoso-Oworobong foot-paths, and there is nothing to show that any evidence was taken to show that the old foot-path is the one which the Beponghene and his elders awarded as the boundary.
On the first point Counsel submitted that when the Beponghene went on the land to lay down the boundary, he was not accompanied by any of his elders who had assisted him at the arbitration, but by a new set of people, and therefore what the Beponghene did on the land was a nullity. But I do not agree with the submission in the first ground of appeal, which in my opinion is misconceived. Once a Court has given a decision in a case it becomes functus officio.
[p.220] of [1959] GLR 218
The implementation of the decision does not imply a reopening of the dispute, or a continuation of the adjudication. All that it means is the carrying of the decision into effect. That is a function which can be performed by any one who knows what the subject of the decision is. For example, if an order is made for possession of land in favour of a plaintiff, that decision of the Court is not implemented by the Judge who made the order; it is the Sheriff who is the proper person to do that. All that is required is that the land described in the order should be properly identified to the Sheriff s Officer by someone who knows that land. But should uncertainty arise as to the identity of the land, that doubt could be resolved (upon proper evidence) by a tribunal different from the one which made the original decision.
In the same way, an award of arbitration need not be implemented by the board of arbitrators themselves. In the instant case it could have been implemented by deputies appointed by the Beponghene, if there were such who could of their own knowledge identify the old foot-path, and demarcate the boundary according to the arbitration award. But what was the evidence? The Beponghene said:-
“I then suggested to depute messengers to inspect the area to allocate for the plaintiff her area which had been enclosed in the defendant’s cultivation in dispute. Both refused the appointment of the deputies. I agreed to attend myself for the inspection and fixing the boundary line. We then inspected the old path and saw for ourselves. We inspected through it. The area of late Opanin Kissi which the defendant tilled by the right side of the foot-path was released for the plaintiff accordingly. The boundary line was fixed as the old foot-path. I then asked both parties if they agreed. Both consented.”
In answer to the plaintiff the Beponghene further stated:-
“When I fixed the boundary line as the old path you never said you would not agree. Yes, you asked me upon which area I entered judgment for you and I said that the right portion of side of the road was tilled by late Kwasi Kissi … When I fixed the boundary line through the path you both agreed. You never told me the following day with Kwame Agyepong that you are dissatisfied with the fixed boundary line.”
Kwadjo Donkor was the plaintiff s witness, and the Native Court recorded that it “mostly relied” on his evidence; he had lived on the Oworobong land for 35 years. His evidence supported the Beponghene’s:-
“When we reached the disputed area, Nana Beponghene said he would make the Aworoso foot-path the boundary line between the
[p.221] of [1959] GLR 218
plaintiff and the defendant. When he (Beponghene) examined the alleged foot-path, he really fixed the path as the boundary line between the plaintiff and the defendant herein. Beponghene asked both parties if they agreed the path as the boundary line. Both said they agreed.”
The evidence thus shows that the parties themselves wished the Beponghene to implement the award, and this because they both knew that he had first-hand knowledge of what the line of the old path was. Thus the parties, as it were, constituted the Beponghene a sole arbitrator as to the identity of the old path. The evidence shows further that in the performance of that duty the Beponghene assembled the important residents of the locality, including the Headman of the village (Opanin Kwadjo Mireku) and his elders, and heard what each of them had to say as to the identity of the old path. The majority of those people pointed out the particular path, and what they so identified agreed with the Beponghene himself knew. The Beponghene then laid down that path as the boundary in accordance with the award.
In my opinion the Beponghene’s compliance with the request of the parties, and his demarcation in the manner he did, not only did justice, but made it manifestly seem that justice was done between the parties; indeed, both parties were perfectly satisfied at that time that justice had been done. The fact that the plaintiff changed her opinion a day or two later does not invalidate the act of the Beponghene, properly done.
As to the second point (that no evidence was taken to identify the old foot-path) all that need be said is that such evidence would have been necessary if the Beponghene did not himself know what that foot-path was. His evidence of his knowledge was not disputed by the plaintiff. Further, in my view the insistence of the parties that the Beponghene himself (and not his deputies) should go and demarcate the boundary as decided at the arbitration, is itself sufficient indication that the parties were satisfied that he knew the old path. Moreover, the Beponghene did not act arbitrarily in carrying out his duties, for there is evidence that he had his own knowledge of the identity of the path confirmed by responsible residents of the locality who also knew what the old foot-path was. In other words, as a single arbitrator on the issue of the identity of the old foot-path, the Beponghene did in fact take evidence before making his decision.
The evidence that the arbitrators by their award laid down the Aworoso-Oworobong foot-path as the boundary between the parties is irresistible. And the evidence that the Beponghene knew what that
[p.222] of [1959] GLR 218
foot-path was; that his knowledge was confirmed by others; that he pointed it out to the parties on the land; and that they both agreed to it, is overwhelming.
The Native Court misdirected themselves in rejecting that award, and no good reasons have been advanced to me to warrant the rejection either of the arbitration award that the old Aworoso-Oworobong path is the boundary between the land of the parties, or the identification of that path by the Beponghene. For these reasons I must allow this appeal.
The appeal is allowed, the judgment of the Kwahu Native Court “A” is set aside, including their order as to costs; any costs paid to be refunded. For the said judgment I substitute the following: “The plaintiff s claim is dismissed, and judgment entered for the defendant.” The defendant will have his costs in this Court fixed at £23 3/-, including 10 guineas Counsel’s fee, and his costs in the Native Court to be taxed.
DECISION
Native Court to carry out.
