SEBEH v. SEKYIM [1965] GLR 329

DIVISION: SUPREME COURT

DATE: 3 MAY 1965

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

CASES REFERRED TO

(1) Yardom v. Minta III (1926) F.C. ‘26-’29, 76.

(2) Akwei v. Akwei [1961] G.L.R. 212.

NATURE OF PROCEEDINGS

APPEAL from a judgment of Smith J. in the High Court affirming a decision of the local court in a boundary dispute. The facts are sufficiently set out in the judgment of the Supreme Court.

COUNSEL

Hayfron-Benjamin for the appellant.

A. W. Acquaah (with him Essien) for the respondent.

[p.330] of [1965] GLR 329

JUDGMENT OF OLLENNU J.S.C.

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:

“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.”

We agree entirely with this proposition of law laid down by the Full Court in Kuturka Yardom v.

Kurankyi Minta III,1 and relied

[p.331] of [1965] GLR 329 upon by van Lare J. We would here cite with approval the ruling of the High Court, in Akwei v. Akwei2 which says:

“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 . . .”

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.

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.

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 van Lare judgment. In spite of that, the local court dismissed the appellant’s claim that by crossing the Mamia river and cutting a boundary along the Bruntoom river, the respondent trespassed on the appellant’s land, and dismissed the appellant’s claim giving its reasons as follows:

“It is indeed plain from the evidence of both parties that the Wantram and Anfransi stools should have jointly engaged a surveyor to demarcate their boundaries; the defendant did that alone. It is significant that the boundaries in dispute would have been demarcated had both parties engaged a surveyor for a plan of their stool lands.

From the evidence, it appears that the dissatisfaction as to their stool land boundaries had been definitely envisaged from the decision of the arbitration of 1907 and 1951 which this court cannot make an opinion therefrom. Upon careful consideration of the evidence, it is found that there had been no

[p.332] of [1965] GLR 329 trespass committed by the defendant on demarcating the boundary of Anfransi stool land from the Bruntoom stream to Dahindaso.”

This is very surprising. But it is more surprising still that the judgment should be upheld on appeal by

Smith J. in the High Court, who in the course of his judgment states:

“The judgment of van Lare J. (as he then was), as I read it confirmed the finding of the arbitration in 1951 that the river Mamire formed a boundary between the two stools. I cannot imagine van Lare J. confusing the two rivers-’Mamire and ‘Mamia’ both of which are shown on the ordnance map . . .

I cannot therefore agree with counsel for the plaintiff-appellant that the native court should have treated this judgment of van Lare J. as decisive in favour of the plaintiff that the boundary was the Mamia river.”

Now if the case of the respondent had been that there are two streams in the area in dispute, one called

“Mamia” and the other called “Mamire” and that “Mamire” and not “Mamia” is the boundary laid by the

1951 award and confirmed by the judgment of van Lare J., this reasoning would be very sound. But that is not the respondent’s case; he does not recognise “Mamire” as the boundary. His case is that the boundary is the Bruntoom river which flows into the Mamia river, and that “Mamia” was mentioned in that judgment simply because the Bruntoom river flows into it. Since the respondent does not claim the

“Mamire river” as the boundary between their two lands and since the appellant contends that the word

“Mamire” appearing in the judgment of van Lare J. is a mis-spelling of “Marnia,” and since Smith J. referred to “Mamire river” on the ordinance map of the area, it became necessary that the confusion arising in these circumstances should be removed by definite evidence. This court therefore, by a consent order made on 23 May 1961 directed a plan to be made of the area, showing the respective claims of the parties and the natural features in the area. The plan made in pursuance of that order was admitted in evidence and marked exhibit S.C.1. That plan has removed every doubt which might have existed in the matter. It does not show any river or stream in the area called “Mamire”, it only shows a spot called

Dahindaso, which the respondent alleges is the source of a stream called “Mamire,” and it also shows unmistakably that the respondent admitted a small portion of the Mamia river to be the boundary but claims that the main boundary is the Bruntoom stream which flows into the Mamia river. [p.333] of [1965] GLR 329

It is interesting to note that on the presiding judge’s copy of the plan exhibit S.C.1, the name of the eastern portion of the Mamia river, the portion into which the Bruntoom stream flows, has been written as

“Mamire.” Quite clearly the act of the respondent which led to the present proceedings was a unilateral attempt by him to resuscitate the award of the 1907 arbitration. This attempt should not be encouraged.

We are of opinion that having on the one hand accepted the judgment of van Lare J. as binding between the parties, it was not open to the learned judge of the High Court on the other hand to reject it in favour of the boundary claimed by the respondent; and that if he had doubts as to the correct name of the river fixed as the boundary between the parties, he should have taken evidence to resolve the same.

The plan exhibit S.C.1 has made it abundantly clear that the boundary fixed between the parties by the arbitration award of 1951 upheld by van Lare J. in his judgment of 4 July 1953 is the “Mamia” river, and not the “Mamire” river, and certainly not the “Bruntoom” stream, and that the word “Mamire” appearing in the said judgment of 1953 should certainly read “Mamia.” For these reasons we allow the appeal, set aside the judgment of the trial local court, and of the High Court, including the orders as to costs made in each. For that judgment we substitute the following: There will be ‘judgment for the plaintiff (appellant) against the defendant (respondent) for £G50 damages for trespass, and an injunction against the defendant restraining him, his subjects, agents and licensees from committing further acts of trespass upon the plaintiff’s land. The plaintiff will have his costs in this court fixed at £G415 8s., his costs in the High

Court assessed at 30 guineas and his costs in the local court assessed at £G42 8s. 6d. Court below to carry out.

DECISION

Appeal allowed.

E. A.-A.