MANU AND ANOTHER v. KONTRE [1965] GLR 375

DIVISION: SUPREME COURT

DATE: 17 MAY 1965

BEFORE: MILLS-ODOI, OLLENNU AND BRUCE-LYLE JJ.S.C.

CASES REFERRED TO

(1) Paul v. Kokoo [1962] 2 G.L.R. 213, S.C.

(2) Gyesiwa v. Mensah, West African Court of Appeal, Cyclostyled Judgments, November-December

1947, pp. 36 and 45, unreported.

(3) Kwasi v. Larbi (1952) 13 W.A.C.A. 76; [1953] A.C. 164, P.C.

(4) Larbi v. Kwasi (1950) 13 W.A.C.A. 81.

(5) Ankrah v. Dabra (1956) 1 W.A.L.R. 89, W.A.C.A.

(6) Twumasi v. Badu (1957) 2 W.A.L.R. 204, W.A.C.A.

(7) Yaw v. Amobie (1958) 3 W.A.L.R. 406, C.A.

(8) Asare v. Donkor [1962] 2 G.L.R. 176, S.C.

(9) Foli v. Akese (1930) 1 W.A.C.A. 1.

(10) Re Arbitration between Montgomery Jones & Co and Liebenthal (1898) 78 L.T. 406, C.A.

(11) Brown v. Vawser (1804) 4 East. 584; 102 E.R. 954.

[p.377] of [1965] GLR 375

NATURE OF PROCEEDINGS

APPEAL from a judgment of Djabanor J. dated 22 February 1962, delivered in the High Court Kumasi, sub nom. Mensah v Ghasoub & Co. in which he gave judgment for the plaintiff, holding that the plaintiff has proved her claim to the ownership in possession of the land in dispute and ordering an account to be rendered by the defendant-company of all the trees felled . The facts are fully stated in the judgment of

Mills-Odoi J.S.C.

COUNSEL

B.J. da Rocha (with him W. Adumua-Bossman) for the appellants.

Victor Owusu (with him Prempeh) for the respondent.

JUDGMENT OF MILLS-ODOI J.S.C.

This is an appeal from a judgment of Djabanor J. dated 22 February 1962. It is concerned with a dispute as to ownership of a parcel of land situate at a place known as Saakrome, an area lying north of the Offin

Shelter Belt Forest Reserve. The action arose out of certain events which took place in 1956 when the plaintiff ‘s son, Kwabena Kontre, the plaintiff’s first witness, saw some workmen employed by the defendant-company felling trees on a portion of the land in dispute. Inquiries revealed that the defendant-company was working on the land pursuant to rights which it claimed were given to it under felling agreements made by it with the third party. By those agreements, the defendant-company was to be entitled upon stipulated terms to fell and carry away timber and timber-like trees marked by it and shown to the third party or his representative. The trees could be felled within the area of Dotiem, an area which included the land known as Saakrome, the subject-matter in dispute. As a result, the plaintiff brought an action to protect what she alleged was her right, claiming against the defendant-company:

“(a) £G300 damages for trespass by the defendants into the plaintiff’s land commonly known as Saakrome land.

(b) Specific delivery to the plaintiff by the defendants of 24 timber trees-six of which had already been felled, and eighteen of which were felled by the defendants-which trees have all been cut into logs by the defendants-or the logs into which the said twenty-four timber trees have been cut.

(c) A full account of the weights and measurements and values of the logs into which the said twenty-four timber trees have been converted.

(d) In the alternative to (b) and (c) the plaintiff claims £G1,152(one thousand one hundred and fifty-two pounds) being

[p.378] of [1965] GLR 375 the value of the said logs cut out of the twenty-four timber trees hereinbefore described and disposed of by the defendants.”

As an interim measure pending the determination of the case, the plaintiff sought for and obtained an injunction to prevent the defendant-company from further trespassing on the land.

The defendant-company was not in a position either to admit or deny the plaintiff’s title to the land she claimed, but put her to strict proof. It contended that the land in dispute was owned by Chief Kwaku

Manu, representing the stool of Nerebehi. As the defendant- company could only rely upon the rights given to it by the felling agreements, the reasonable course was followed of joining Chief Kwaku Manu as co-defendant. However, for the purpose of this appeal Chief Kwaku Manu will be referred to hereafter as the “third party.” In the result the main contestants were the plaintiff and the third party.

In due course the third party filed a statement of defence in which he denied the plaintiff’s title to the land in dispute. He, the third party, claimed title to the said land for the Nerebehi stool, of which he was the odikro, alleging that the defendant-company carried out the timber operations with the leave and licence of the Nerebehi stool. He then raise a number of issues in his defence, prominent among them are the following:

“(3) The third party says that the land in question was given to his ancestor by Otumfuor, Nana Opoku

Ware, of blessed memory, through the Bantamahene after the Abrimoro War.

(4) The third party says that after the said land was given to his ancestor the then Bantamahene asked for a portion of the land for his wife (plaintiff’s ancestor).

(5) The third party’s ancestor then cut a portion of the land which he gave to the then Bantamahene’s wife (plaintiffs ancestor). (6) The land mark which was used as a boundary for the portion given to the Bantamahene’s wife

(plaintiff’s ancestor) was principally the Kyenkyen stream, the details of which boundary are more particularly described in the particulars hereto attached and marked X.”

Not unnaturally, the plaintiff filed a reply to the third party’s statement of defence denying all the averments stated above. She claimed title to the land through her ancestor, one Birempong, a

[p.379] of [1965] GLR 375 sub-chief of the Bantamahene who, according to her, took part in the Abrimoro War during the reign of the then Asantehene, Nana Opoku Ware.

The plaintiff stated in her reply that:

“After the said Abrimoro War the Asantehene declared that the Bantamahene should let those of his sub-chiefs and elders who took part in the said Abrimoro chase acquire for their respective stools the tract of land to the extent of which the said elder or chief reached during the said chase, and the plaintiff says that accordingly her stool acquired the tract of land, the subject-matter of this dispute.

Paragraphs (8) and (9) of the plaintiff ‘s reply also contain the following material averments:

(8) The plaintiff says that the land boundary, the subject-matter of this dispute, has been the subject of an arbitration before the Bantamahene and his elders (the third party being the plaintiff in that arbitration) and after the arbitrators had arbitrated over the matter and deputed messengers to inspect the land, the arbitration found out that the boundary between the plaintiff and the third party is what the plaintiff has shown and attached to her statement of claim herein, and that customary drinks of

£G12 plus two bottles of rum were paid by the plaintiff to stamp the said finding.

(9) The plaintiff will contend that by virtue of the arbitration decision referred to in paragraph (8) hereof, the third party is estopped from laying any claim to this land.”

When the case came up for hearing an order was made, by consent of the parties, for “a survey to be made of the area in dispute.” A Mr. Lawrence Minta, surveyor, was then appointed to undertake the survey.

During the course of the survey, Opanin Kwaku Fokuo laid claim to a triangular piece of land lying further south and forming part of the land in dispute. The area is known as Odumase which, as alleged by

Opanin Fokuo, forms boundary with the plaintiff at Ata ne Ata stream and with the third party at

Atronsua stream. He was thereupon joined as co-defendant. Whereupon he filed a statement of defence denying the title of the plaintiff and of the third party to the Odumase land. He also counterclaimed against them for:

(a) declaration of title to the land at Odumase;

(b) an injunction; and

(c) damages against them jointly and severally for trespass.

[p.380] of [1965] GLR 375

In compliance with the order of the court, the surveyor made a survey of the area in dispute. All the features which the parties relied upon in demarcating their boundaries were pointed out to the surveyor and marked by him on a plan which was tendered at the trial and marked exhibit A. The area claimed by the plaintiff is edged red, that claimed by the third party is edged yellow, the co-defendant’s is edged purple.

Evidence was given at the hearing of the action and each party based his or her claim on traditional history. The plaintiff maintained that the land in dispute was given to the warrior of her ancestress, one

Birempong, as a reward for his services in the Abrimoro War during the reign of the Asantehene, Nana Opoku Ware. The third party denied that Birempong played any part in the Abrimoro War to enable him to become entitled to any reward by Nana Opoku Ware. According to the third party, the land in question formed part of a wider tract of land which was granted to his ancestors for the part they played in the said war; but at the request of the Bantamahene, a portion of that land lying west of the Nkyenkyem river was granted by his, the third party’s, ancestors to the Bantamahene’s wife, the plaintiff’s ancestress, by name

Yaa Duoni. The co-defendant also laid claim to the area edged purple through his ancestors for the services which they rendered during the Abrimoro War. In addition to the traditional evidence put forward to ground her claim, the plaintiff also gave evidence to the effect that both the third party and the co-defendant are estopped by conduct and by record from re-litigating over this issue which had already been arbitrated upon by the Bantamahene and adjudged in her favour.

The learned judge, after hearing evidence of the parties and their witnesses, including the surveyor who conducted the survey of the land in question, arrived at the following conclusions: “that the plaintiff has proved her claim to the ownership in possession of the land described both in her original claim against the defendant and her title to the amended claim against the third party and the co-defendant as indicated in the plan exhibit A and edged in red colour; that there was a valid customary arbitration before the

Bantamahene” and he was satisfied “that at the [arbitration] the plaintiff’s boundary as shown then and now was accepted and that of third party and co-defendant rejected.” He then entered judgment for the plaintiff and ordered “an account to be rendered by the defendant of all the trees felled, their weights and measurements and value.” Against this decision the defendant, the third party and the co-defendant have appealed to this court.

Two original grounds of appeal were filed on behalf of all the appellants; seven additional grounds of appeal were also filed on

[p.381] of [1965] GLR 375 behalf of only the third party and the co-defendant. When the appeal came on for hearing, Kwabena

Kontre was substituted for the plaintiff, Obaapanin Akosua Mansah, who had then died. There was no appearance by or on behalf of the defendant. Mr. da Rocha, learned counsel for the third party and the co-defendant, argued the appeal under two main heads. They are as follows:

“(1) The learned judge erred in law by finding that the facts as accepted by him with regard to the alleged arbitration amounted to a proper arbitration by the third party- appellant and the co-defendant-appellant, whereas the matter before the Bantamahene was merely for the purpose of aiding a settlement by negotiations between his stool wife and his elders.

(2) The onus was on the plaintiff to establish her title to the land; but she failed to discharge the legal onus of proof.”

In developing his arguments in support of ground (1) supra, learned counsel for the appellants submitted that there was no valid customary arbitration before the Bantamahene. He contended that when the third party observed that some farmers had trespassed on his land at the instance of the plaintiff, he made a report to the Bantamahene who took the initiative to go into the matter because the third party was his elder and the plaintiff his customary wife. All that the Bantamahene did, counsel further contended, was to avoid trouble between his elder and the plaintiff and to get them to arrive at a compromise. The parties therefore never submitted their dispute voluntarily to the Bantamahene to enable him to adjudicate upon it to a finality; nor can it be said that the matter was dealt with on its merits. Mr. da Rocha further argued that there is no evidence either expressly or impliedly by the parties that they agreed to be bound by the award. In his contention, mere submission. by the parties to an arbitration is not enough; there should be further evidence that they agreed to be bound by any award.

It is clear from the proceedings, urged learned counsel for the two appellants, that there was no award. He also contended that in stating the essential characteristics of a binding customary arbitration, viz.

(a) a voluntary submission of a dispute by the parties to arbitration for the purpose of having the dispute decided informally, but on its merits;

(b) a prior agreement of both parties to accept the award and

(c) publication of the award; the learned judge failed to take into consideration one other essential element, namely, that the arbitration should not be held arbitrarily. Even the three essential characteristics set out (supra) by the learned

[p.382] of [1965] GLR 375 judge, Mr. da Rocha stated, were not established by the evidence and therefore by any test the alleged arbitration cannot stand.

In reply to these submissions, learned counsel for the respondent, Mr. Victor Owusu, argued that there is evidence that what happened before the Bantamahene constituted a valid customary arbitration on the following grounds:

(a) it was the third party and the co-defendant who selected the Batamahene as the arbitrator;

(b) the payment of money by each party before the inspection of the land in question was made shows a prior agreement between them to accept the findings of the arbitrator;

(c) the viewers submitted a written report to the Bantamahene which the latter accepted in the presence of the parties. There was therefore publication of the award at the time the report was accepted and before it was read to the parties.

It is now trite law that only the solid foundation of a valid customary arbitration and binding award is the voluntary submission by the disputants, however much they may be quarrelling, of their dispute to a relatively disinterested third person to make an impartial investigation into the matter and give a decision on it for them: see Paul v. Kokoo.1 The leading case so far as chronology is concerned is the case of

Gyesiwa v. Mensah,2 but the same principle has been emphasized in the following cases: Kwasi v.

Larbi,3 Larbi v Kwasi,4 Ankrah v Dabra,5 Twumasi v Badu,6 Yaw v. Amobie,7 Asare v. Donkor,8 and for convenience, I read from what I think is the most recent of them, Paul v. Kokoo. In that case

Adumua-Bossman J.S.C said9:

“In respect of arbitration proceedings originating in a complaint lodged by one party to a chief, elder, or other person, against another party, which may be claimed to be a valid customary arbitration, there is this warning that when a party attends before a chief, elder, or other person because of a complaint made against him, it is difficult to draw the line between his attendance with the intention merely to explain himself or giving his version of the dispute, on the one hand;

[p.383] of [1965] GLR 375 and his attendance with the intention of submitting himself to the investigation of the dispute and the giving of a decision upon it by the chief, elder, or other person, on the other hand. An attendance consequent upon an invitation resulting from the lodging of a complaint against a party is undoubtedly an act or conduct which is equivocal and susceptible of two interpretations, more often than not of the interpretation that the party attended to hear the complaint and explain himself only. That is why some of the authorities, for example Gyesiwa v. ‘Mensah and Twumasi v. Badu, supra, deny to proceedings originating in that manner the recognition given to a valid customary arbitration. On the other hand when no complaint has been made against a party and he and the other disputing party together attend before a chief, elder, or other person and request him to investigate a dispute between them and give a decision on it for them, that act is obviously unequivocal and susceptible of the only rational interpretation that both voluntarily submitted their dispute to his investigation and adjudication, that is to his arbitration. Where therefore the attendance is in consequence of an invitation following a complaint, it is essential that the evidence should show clearly and distinctly that a proposal to arbitrate the dispute was put forward, and more important, that both parties voluntarily and in no uncertain terms expressed their agreement to the proposal.”

Whether any particular proceedings constitute an arbitration or a mere reference to a third party for the purpose of seeking a negotiated settlement is dependent on the submission of the parties to the arbitrator or negotiator and the existence of a prior agreement by the parties, in the case of arbitration proceedings, to be bound by any decision of the arbitrator. Whether this exists or not is a question of fact to be determined by the evidence. In the case of arbitration, the award is binding upon the parties to it whether or not they accept it; they cannot withdraw after the award has been published. In the case of proceedings in the nature of negotiations for settlement of a dispute, the decision becomes binding upon the parties after it has been accepted by them; not otherwise.

It is necessary at this stage to discuss the question whether the proceedings before the Bantamahene constituted an arbitration as contrasted with negotiations for a settlement. In customary law there are three essential characteristics of an arbitration, as opposed to negotiations for a settlement. They are:

[p.384] of [1965] GLR 375

(a) a voluntary submission of a dispute by the parties to arbitrators for the purpose of having the dispute decided informally, but on the merits (i.e. not an arbitrary decision);

(b) a prior agreement by both parties to accept the award of the arbitrators; and

(c) publication of the award.

The pertinent question which should be discussed at this stage is: What acts or conduct should the parties exhibit to amount to voluntary submission of their dispute? The answer is given by the Court of Appeal in the case of Yaw v. Amobie, and the passage material to the issue is as follows10:

“It is very rare for two people who are quarrelling to meet and agree together that they would submit their dispute to arbitration. The usual thing is that one party makes a complaint to somebody, the other party is sent for, and if he agrees [i.e. if, after the complaint has been fully explained to him, he agrees that the dispute be decided by arbitration, thereby voluntarily submitting to arbitration] the party to whom the complaint is made arbitrates upon the dispute.”

I also find guidance in the discussion of and explanation as to what amounts to a “voluntary submission” in the case Asare v. Donkor,11 which contains the following passage:

“It is correct that one of the recognised ways in which arbitration proceedings may be initiated by customary law, is for one of the parties to a dispute to lodge a complaint against his opponent to the would-be arbitrator with a request that he should arbitrate upon it, and the would-be arbitrator sends for the other party and obtains his consent that the dispute be decided by arbitration. But to amount to a submission to arbitration, it must be shown that when the other party came, upon being sent for, a full explanation was made to him that his opponent had made a request that the dispute should be determined at an arbitration, not in court, and that the person to whom he lodged the complaint should preside over the dispute as the arbitrator. It is only when the person against whom the complaint is made agreed after such explanation, i.e. if with full knowledge of the implications he also expresses his agreement to the proposal of the complainant that an arbitration should be so held, that there could be a lawful submission to arbitration by both parties, otherwise not.”

[p.385] of [1965] GLR 375

Whether or not the parties agreed to submit their dispute to an arbitration is determined from the evidence of the plaintiff’s witness, William Kwaku Enin, a former registrar and recorder, whose evidence material to this issue reads as follows:

“I know the plaintiff, the co-defendant and Panin Manu (the third party). I know the Bantamahene – the present one. Once I was asked by the Bantamahene to assist in a case between Opanin Fokuo (the co-defendant) Manu (the third party) and Obaapanin Mansah (the plaintiff). It was in 1954. Opanin Kwaku

Manu complained to the Bantamahene that Obaapanin Mansah had planted farmers to farm on his land. The complaint was confirmed by Opanin Fokuo in respect of his land. The Bantamahene said the two chiefs were sub-chiefs under him and the Obaapanin too was a stool wife-so he did not want them to litigate over the land. So he deputed me, Gyasehene Nana Kwabena Andoh, Kyeame Yaw Pong and Akwasiasehene Nana

Kwabena Owusu Ansah to inspect the respective boundaries of the three parties. He said we should inspect the boundary of each of them, take notes of our observations and report to him.”

It must be pointed out at this stage (as will appear later in this judgment) that the evidence of William

Kwaku Enin, reproduced above, that the third party and the co-defendant were the persons who lodged the complaint with the Bantamahene against the plaintiff, was corroborated by the evidence of the third party himself. In his evidence as to what gave rise to the initiation of the proceedings the third party stated, inter alia, as follows:

“My odikro at Dortiem made a report to me that Mekasen and his people have crossed the Nyekyem [river] and are farming there. So I went and drove them off the land telling them that the land was not for the plaintiff. They left the land-but I followed it up and reported to the Bantamahene … After I reported to the

Bantamahene, he summoned the farmers (Mekasen and his people) and also summoned us, Kontre (the plaintiff’s son) representing the plaintiff, and the Bantamahene told us to allow the farmers to continue their farming and that he himself will take time to settle the dispute…. Later Bantamahene deputed people to go and inspect the land.”

In the course of his evidence under cross-examination he said, “Yes, I lodged the complaint before the

Bantamahene that the plaintiff was trespassing on my land.”

Again, the evidence of the plaintiff’s witness, William Kwaku Enin, that the proceedings were initiated by the third party and the

[p.386] of [1965] GLR 375 co-defendant and that the latter were the persons who selected the Bantamahene to arbitrate the dispute between them was also supported by the evidence of the Bantamahene who was called as a witness by the third party and who deposed, inter alia, as follows:

“I know Nana Kwaku Manu-the present Nerebehi Dikro (the third party). I know Akosua Mansah too (the plaintiff). I also know Fokuo (the co-defendant). Some time ago Manu lodged a complaint that the plaintiff had given permission to some people to trespass on his land – this land in dispute. I called the parties to my house. I put the matter before the plaintiff who said that she had not trespassed but that she had given permission to the people to farm in her area only . I told them I would depute people to go and see the land. I deputed my elders to go and see. My elders whom I deputed were among the arbitrators. When the elders went they brought back a report.”

According to the Bantamahene, the issue before him “was a simple one. The only issue is to decide who has trespassed on to the other’s land.” Continuing his evidence the Bantamahene stated as follows:

“Before they (the parties and the viewers) went into the bush I got Nerebehi Dikro (the third party) to describe his boundary. I got the plaintiff too to describe her boundary and I got the clerk (the plaintiff’s second witness) to write these down – before I sent them to inspect the land.”

The evidence of the Bantamahene stated above does not only lend support to the case put forward by the plaintiff that the third party and the co-defendant were the complainants who selected him as their own arbitrator to be the judge in the dispute between them, but it makes it abundantly clear that the attendance of the plaintiff was in consequence of an invitation by him in pursuance of the complaint. When she was sent for, a full explanation was made to her of the complaint and of the request by the complainants that the dispute between them be determined by arbitration, not in court, by the Bantamahene; and she also agreed. The conduct of the complainants, in attending before the Bantamahene and requesting him to investigate a dispute between them and the plaintiff and give a decision on it for them, is tantamount to an act which is “obviously unequivocal and susceptible of the only rational interpretation” that they voluntarily submitted their dispute to the Bantamahene’s arbitration. The contention by learned counsel for the appellants that neither the third party nor the co-defendant voluntarily submitted the dispute to the

Bantamahene to enable him to adjudicate upon it to a finality is, in my view, wholly unacceptable.

[p.387] of [1965] GLR 375

Indeed the third party admitted in the presence of the Bantamahene and the viewers that before the land in dispute was inspected each party gave a full description of the land he or she claimed and also “provided money for transport for the delegates [viewers] who were going to view the land.” In my opinion, the conduct of the parties before the Bantamahene undoubtedly amounts to an act which is susceptible of one interpretation, namely, that they agreed to be bound by the decision of the Bantamahene, whatever the result would be. To hold a contrary view would, I think, make a mockery of customary law. It follows that any award of the Bantamahene would be binding on the parties, notwithstanding the fact that. any of the parties later objected to it.

Thus in the case of Foli v. Akese,12 Deane C.J. in considering the principles by which a court should be guided in setting aside the award of an arbitrator whose decision it has been agreed shall be final, stated the general rule governing submissions to arbitration in the following words:

“…in submissions to arbitration the general rule is that as the parties choose their own arbitrator to be the judge in the disputes between them, they cannot when the award is good on its face, object to his decision, either upon the law or the facts.”

Also, in the case, Re Arbitration between Montgomery Jones & Co. and Liebenthal,” Smith L.J. in stating the general rule governing arbitration, said, “I for my part have always understood the general rule to be that parties took their arbitrators for better or for worse both as to decisions of fact and decisions of law.

That is clearly the law.”

Now in this case the viewers submitted a report in writing, exhibit B, to the Bantamahene which stated, inter alia, “that the boundaries shown by Opanin Kwaku Manu (the third party) and Kwaku Fokuo (the co-defendant) are not correct and that of Kwabena Kontre on behalf of Nana Mansah (the plaintiff) is the correct one.” The Bantamahene accepted the report and read it to the parties in the presence of the viewers. The third party and the co-defendant stated that they did not accept the decision of the

Bantamahene, as contained in the report-exhibit B. The Bantamahene purported to support the evidence that both the third party and the co-defendant objected to the report; he also stated that the note, appearing at the foot of the report, which shows clearly that all the parties accepted

[p.388] of the following words: the report, was not a correct statement of facts because that note was written and signed by him in the absence of the third party and the co-defendant. The note reads thus:

“Note:

(Report) Read in the presence of Opanin Kwaku Manu, Odikro of Nerebehi, Opanin Kwaku Forkuo, Nana

Mansah and her Attorney Kwabena Kontre – before Bantamahene Nana Kwaku Gyawu III. Opanin Kwaku Manu: No objection to the report. Opanin Kwaku Forkuo: No objection to the report. Accepted and adopted and stamped with £12 and 2 flasks gin paid before me (by) Kwabena Kontre.

Kwaku Gyawu III

Bantamahene

1 June 1954.”

Pausing here to consider the material contents of the report, exhibit B, reproduced supra, it will be observed that the note was prepared at a time when the parties were not contemplating any litigation. It is dated 1 June 1954 and the action in the instant case was instituted in August 1956. The note is, in my view, evidence against the interest of the third party and the co-defendant that they did not raise any protest against the report, exhibit B, as therein stated.

In any event any objection raised by the third party and the co-defendant against the report, assuming there was an objection, after the report had been accepted and signed by the Bantamahene (arbitrator) would not in any way destroy its binding effect. The report constitutes a binding award upon the parties immediately the Bantamahene accepted and signed it and even before it was read to the parties. After the acceptance of the report (i.e. the award) he (Bantamahene) became functus officio and any subsequent action taken by him or by any of the parties to render the report nugatory would be of no effect. Thus in the case of Brown v. Vawser,14 Lord Ellenborough C.J. said:

“The award was complete when it was ready to be delivered within the time appointed, and prior to the actual delivery; the arbitrator was then functus officio, and if any accident had happened afterwards to prevent his making a delivery, it would still have been an award.”

[p.389] of [1965] GLR 375

In the result, I think that there was a proper and valid customary arbitration and the parties are bound by the award in exhibit B.

In view of the conclusion I have reached, it would seem that the submission of learned counsel for the plaintiff that the decision of the customary arbitration referred to supra operates as res judicata in the instant case is well-founded. It is beyond doubt that the parties in the arbitration proceedings are the same parties in this case, and the issue raised in the instant case are substantially the same as those determined at the arbitration. The third party and the co-defendant are thereby prohibited from re-opening the same subject-matter all over again. If this were permitted, litigation would have no end, unless legal ingenuity was exhausted. As the conclusion I have reached completely disposes of the appeal I do not consider it necessary to deal with the other ground of appeal argued by learned counsel on behalf of the appellants.

In fine, the appeal must. be dismissed, and it is accordingly dismissed.

JUDGMENT OF OLLENNU J.S.C.

I agree

JUDGMENT OF BRUCE-LYLE J.S.C

I also agree

DECISION

Appeal dismissed

S.K.D.-B.