OMANHENE KOBINA FOLI Vs. CHIEF OBENG AKESSEE

JUDGEMENT

(1.) This is an appeal from a judgment and order of the West African Court of appeal, dated 12 May 1930, dismissing a motion by the present appellant to set aside an award dated 31 .January 1930, delivered by a Judge of the Supreme Court of the Gold Coast Colony, as arbitrator on a reference ordered by the Full Court of the Supreme Court, sitting as the appeal Court from the Chief Commissioner's Court of Ashanti, on an appeal from a judgment of the Circuit Judge of Ashanti, dated 9 May 1923, in an action in which the present appellant was plaintiff and the respondent and Odikre Asante, since deceased, were defendants. The appellant not only challenges the award on certain grounds, but also challenges the validity of the order of reference by the Full Court of the Supreme Court, and it is therefore necessary to refer to the proceedings in the action prior to the order of reference. On 11 August 1922, the appellant, who is Omanhene of Adansi in Ashanti, on behalf of his Stool, issued a writ of summons in the Chief Commissioner's Court of Ashanti against Asanti, the Odikro of Edubiase, now deceased, and the respondent, Obeng Akessee, the Chief of Okyereso, who were both under the Omanhene of Akim-Abuakwa, in the Eastern Province of the Gold Coast Colony. The appellant claimed ?500 damages against both defendants jointly and severally for certain alleged acts of trespass and he also asked for a declaration as to the boundary between Adansi and Akim. At the material portion of its course the River Prah forms the political and territorial frontier between Ashanti and the Goal Coast Colony and has a southerly course. The learned trial Judge describes the questions in issue before him as follows: "The plaintiff alleged that defendant 1 sold a stretch of the river Prah between Ahudwi and Sumuoso, collected tribute at Ahudwi and Nyamibekyere on the right bank of the Prah, and destroyed a fishing weir erected by Akaakupeh, plaintiff's vassal, in the Prah at Sumuoso, and that defendant 1 aided and abetted defendant 1 in these acts. The plaintiff further alleged that these acts constituted a trespass on the territory of Adansi, and claimed ?500 damages against both the defendants jointly and severally. He also asked the Court to declare that the left bank of the Prah, from the Anum to the Offin, was the boundary between Adansi and Akim, and that the river and its right bank belonged to Adansi. Defendant 1 explained that he did not sell but only mortgaged the river. Subject to this correction, both the defendants admitted the acts complained of, but said that the river Prah between the Numea (or thereabouts) and Ahudwi, together with a semicircular tract of land on the right bank, were under Akim-Abuakwa, that the erection of the fishing weir constituted a trespass, and that the acts complained of were lawful and justified. Both the defendants therefore pleaded that they were not guilty of trespass, and not liable in damages."

(2.) After trial, the learned Circuit Judge issued a judgment, dated 9 May 1923, in which he found that, under a grant from the King of Ashanti, the plaintiff's title extended to the Prah and negatived the claim of the defendants to a title to any land on the right or west bank of the Prah; he further stated that he was not satisfied that the ownership of the river was vested in the plaintiff, so as to exclude, if he chose, the defendants from fishing in it, and he therefore found that neither party had proved its claim to the entire water rights; he rejected the claim for damages on account of the sale or mortgage of the river, but he held that the collection of tribute within the plaintiff's territory and the destruction of the weir were tortuous acts and awarded the plaintiff nominal damages of ?50. Finally, the learned Judge stated: "I make no declaration that the left bank of the Prah is the boundary of Adansi, and I have not sufficient information-nor, in view of my other findings, do I think it necessary-to make any declaration as to the extent of land owned by plaintiff (apart from the land in dispute)."

(3.) On 12 November 1927 the defendants obtained leave to appeal to the Supreme Court of the Gold Coast Colony in terms of S. 18 of the Ashanti Administration Ordinance (No. 1 of 1902, in the 1920 Revision). The defendant Odikro Asante had died, but it was agreed that the action should proceed against the other defendant. The appeal came on before a Full Court at Accra on 14 March 1929 and the Court was of opinion that the true issue between the parties, viz. whether the river Prah was the boundary between the parties or not, could not be satisfactorily determined on the evidence and findings before them, and that a survey was necessary to show exactly the area in dispute. Accordingly, by consent of counsel for both parties, a consent order was made on 18 March 1929, (a) setting aside the judgment appealed from (b) ordering a survey of the disputed area to be made by an officer in the Survey Department, and (c) providing, on completion of the survey, for a further order by a Full Court under O. 52, Sch. 2, Supreme Court Ordinance, referring to Hall, J., the matters in difference between the parties. The survey having been completed and a plan-No. C. 18- having been made in accordance therewith, a Full Court, on 3 December 1929 on the joint motion of parties, made the following order : " It is hereby ordered that His Honour Mr. Justice Roger Evans Hall, Judge of the Supreme Court of the Colony aforesaid, be appointed as Arbitrator herein and that the matters in difference between the parties herein, namely, whether the semicircular tract of land edged red having as its base the river Prah edged green on the plan No. C. 18, signed by W.F. Mindham, Officer in Charge Cadastral Branch, dated 15 August 1929 is the property of aforesaid Kobina Foli, Omanhene of Adansi, or Obeng Akese, Ohene of Okyereso, be referred to the final decision of the said Arbitrator. It is hereby ordered that the said Arbitrator shall deliver his award within three months from date and shall have and exercise all powers given to Arbitrators under 52, Sch. 2 of the Supreme Court Ordinance."