ANIAMOAH v. OTWIRAAH [1961] GLR 405

DIVISION: IN THE SUPREME COURT

DATE: 26TH JUNE, 1961

BEFORE: KORSAH, C.J., VAN LARE AND AKIWUMI, JJ.S.C.

CASE REFERRED TO

Kwasi v. Larbi (1952) 13 W.A.C.A. 76, P.C.

NATURE OF PROCEEDINGS

APPEAL from the judgment of the Commissioner of Assize and Civil Pleas (D. E. Gwira, Esq.) in the Land Court, Kumasi, delivered on the 15th March, 1960 (unreported), reversing the judgment of the Asantehene’s “A2” Court delivered on the 17th December, 1959, which affirmed the findings of the Atwima Mponua Local Court “C” in the plaintiff’s favour. The plaintiff alleged that the defendant had trespassed over the boundary of the plaintiff’s cocoa farm. The facts are fully set out in the judgment of the Supreme Court.

COUNSEL

C. F. Hayfron-Benjamin with him W. Bossman for the appellant.

No appearance for the respondent.

JUDGMENT OF OF KORSAH C.J.

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 subsequent arbitration before the Odikro Kwabena Tawia on the ground that there was no specific evidence on record of a prior agreement by the parties to submit the dispute to an arbitration nor to accept an award of the arbitrators. This contention is untenable in view of our earlier indication in this judgment that we are satisfied from the plaintiff’s conduct that he had previously agreed to accept the award of the arbitration by the Odikro to whom he had voluntarily submitted the dispute between him and the defendant for a settlement. On appeal to the Land Court, Kumasi, Mr. Gwira, the learned Commissioner of Assize and Civil Pleas, allowed the appeal by the defendant from the judgment of the Asantehene’s “A2” Court which had confirmed the judgment of the trial local court in favour of the plaintiff. Although the ratio decidendi of the judgment of the Land Court, Kumasi, is not clearly discernible he is in our view justified in allowing the appeal for the reasons we have stated. It is observed that the learned Commissioner after allowing the appeal before him, unfortunately omitted to make the necessary consequential order setting aside both the judgments of the Asantehene’s “A2” Court and of the Atwima Mponua Local Court “A”. We therefore set aside both judgments entered in favour of the plaintiff-appellant by the trial local court and that of the Asantehene’s “A2” Court. Judgment is therefore entered for the defendant-respondent.

In the result we dismiss this appeal. There is no order as to costs the defendant-respondent not having appeared.

DECISION

Appeal dismissed.

Judgment for the respondent.