JACOB KWAKU ACHEAMPONG vs SEKYERECUMASI STOOL
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2018
JACOB KWAKU ACHEAMPONG - (Plaintiff/Appellant) vs.
SEKYEREDUMASI STOOL -(Defendant/Respondent)

DATE:  26 TH JUNE, 2018
SUIT NO:  H1/78/2016
JUDGES:  ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, WELBOURNE (MRS) JA
LAWYERS:  KWAME AWUAH FOR RESPONDENT
JOHN BREFO FOR APPELALNT ABSENT
JUDGMENT

ADUAMA OSEI JA:

By his writ of summons issued in the High Court, Mampong Ashanti on the 4th of August, 2008, the Plaintiff/Appellant, hereinafter referred to as “the Plaintiff”, sought the following reliefs against the Defendant/Respondent, hereinafter referred to as “the Defendant”:

“1. A declaration that all lands inhabited by the people of Dapaase within the Sekyeredumase Traditional Area are the property of Ankaasehene and not that of Sekyeredumase Stool.

“2. Another declaration that the Abusuapanin of Dapaase is the caretaker of all Dapaase lands for Ankaasehene situate within the Sekyeredumase Traditional Area.

“3. A further declaration that the Sekyeredumase Stool has no capacity to alienate, sell, pledge, allocate or dispose of any portion of Dapaase lands within the Sekyeredumase Traditional Area without the consent of the Plaintiff.

“4. Order for accounts.

“5. Perpetual injunction restraining the Defendant whether by itself, agents, assigns or any person or persons claiming through it from in any way dealing with Dapaase lands inconsistent with the interest of the Plaintiff”.

 

In the statement of claim that accompanied the writ of summons, the Plaintiff described himself as a medical doctor and the Abusuapanin of the Asona Dapaasefo of Sekyeredumase in Ashanti, and he stated that he had brought the action in his capacity as the Abusuapanin of Dapaase.

 

The people of Dapaase were described as having migrated to their present abode from Techiman in the Brong Ahafo Region in or about 1724, during the reign of Otumfour Opoku Ware I, after the Asante – Techiman war. The Plaintiff pleaded that when his ancestors arrived at their present abode, they became the guests of the then Ankaasehene, Nana Yamoah Ponko. He stated that they were settled by Nana Yamoah Ponko at their present abode, named Sekyeredumase, which place he had purchased from Otumfour Opoku Ware’s nephew called Tieku Afriyie.

 

According to the Plaintiff, the Dapaase people had their own Odikro initially, but in the course of time, it became necessary that the Sekyeredumase Stool assumed political control over the whole area, including the people of Dapaase. The Plaintiff emphasised that in spite of the political control exercised by the Sekyeredumase Stool, the land the Dapaase people settled on remained under the control of the Ankaasehene, who made the Dapaase Abusuapanin the caretaker of the areas occupied by the Dapaase people.

 

The Plaintiff described Dapaase lands as covering “the left hand side of the road that leads to Musuom on the Frante road, both right and left hand side of the road that leads to Kyirademu on the Nkoranza Road, Both right and left hand side of the road that leads to Krirademu on the Abofour Road, The right hand side of the road that leads to Nwansenmu on the rest-house road, Both right and left hand side of the road that leads to Atoase on the Nkrampo road”.

 

The Plaintiff’s grievance against the Defendant was that it was making adverse claims on Dapaase lands by selling portions thereof.

 

In its statement of defence, the Defendant contended that the Plaintiff did not have capacity to institute the action. It challenged the Plaintiff to prove his allegation regarding the arrival of his ancestors from Techiman and their settlement at their present abode, and regarding the Plaintiff’s claim that the Dapaase people had their own Odikro initially, the Defendant pleaded that in 2005, there had been a dispute between the Sekyeredumasehene and the Ankaasehene which had been determined at an arbitration before Otumfour Asantehene. The Defendant alleged that the Plaintiff was privy to the said arbitration, and it contended that the Plaintiff was estopped from instituting the present action by the decision or award made in the arbitration.

 

In reaction to the Plaintiff’s complaint that the Defendant was making adverse claims on Dapaase lands, the Defendant contended that Sekyeredumase had the right and prerogative to alienate Sekyeredumase Stool lands.

 

When pleadings closed, Counsel for the Plaintiff filed the following as the issues he wanted the trial Court to determine:

“1. Whether or not the Sekyeredumase Stool has any customary custodianship of Dapaase lands within the Sekyeredumase Traditional Area.

“2. Whether or not the Ankaasehene is the owner or has the customary custodianship of Dapaase lands within the Sekyeredumase Traditional Area.

“3. Whether or not the Plaintiff has the capacity to institute this action.

“4. Whether or not the Abusuapanin of Dapaase is the caretaker of Dapaase lands within the Sekyeredumase Traditional Area for the Ankaasehene.

“5. Whether or not the Sekyeredumase Stool has capacity to alienate, sell, pledge or allocate any portion or portions of Dapaase lands within the Sekyeredumase Traditional Area.

“6. Whether or not the Sekyeredumase Akwamuhene has any custodianship over Dapaase within the Sekyeredumase Traditional Area.

“7. Whether or not the Plaintiff is entitled to his claim.

“8. Any other issues raised by the pleadings”.

 

In its judgment delivered on the 28th of October, 2014, the trial Court decided, among other things, that the arbitration award made by Otumfour operated as an estoppel against the Plaintiff and it accordingly dismissed the Plaintiff’s action.

 

The Plaintiff has launched this appeal because he is dissatisfied with the decision of the trial Court. The judgment appealed from is found at page 153 to page 173 of the appeal record, and the notice of appeal is at pages 176 and 177 of the same record.

 

Subsequent to the filing of the notice of appeal, the Plaintiff obtained leave of this Court to file additional grounds and the grounds on which the Plaintiff is now questioning the decision of the trial Court have been numbered by me as follows:

1. That the judgment was against the weight of evidence.

2. The trial Court misconstrued the case of the Plaintiff and disabled itself from making a fair and impartial decision when he stated that it looks as if the conspiracy to have Sekyeredumase wiped out from the map had been hatched long ago and to be consummated through the Plaintiff.

3. The trial Court erred when it held that the defendant had exercised overt acts of ownership in respect of the land in dispute and was therefore entitled to be protected.

4. That the trial Court erred when it held that the arbitration award effectively disposed of the issue for determination by the Honourable Court whereas same was just an arrangement for sharing of proceeds from Sekyeredumase land without determining the issue of ownership.

 

On the basis of the grounds set out above, the Plaintiff is praying this Court to set aside the judgment of the trial Court and the orders made thereunder.

 

In his filed submissions, Counsel for the Plaintiff argued grounds 1 and 3 together and argued each of the remaining grounds separately. Ground 2 was the first ground to be argued, followed by the combined grounds 1 and 3. The concluding ground was ground 4. In his argument underground 2, Counsel for the Plaintiff explained that the whole purpose of the Plaintiff’s action was to have a declaration made in respect of the Plaintiff’s position as caretaker of Dapaase land on behalf of the Ankaasehene. In the view of Counsel, for the trial Court to see this as part of a conspiracy to wipe out Sekyeredumase from the map of Asante is an indication of the Court’s failure to appreciate the Plaintiff’s case. Having placed that impediment in his way, the trial Court was unable to deal with the matter fairly.

 

Regarding the combined grounds 1 and 3, Counsel for the Plaintiff submitted that while the issue before the trial Court was ownership or customary custodianship of Dapaase land, the trial Court relied on current acts of ownership by the Defendant in respect of Sekyeredumase lands to make a finding for the Defendant. In the view of Counsel, the trial Court in doing so was confusing Sekyeredumase lands with Dapaafo land within the Sekyeredumase Traditional Area, which is the land in dispute.

 

Counsel’s concluding arguments in support of the appeal were made under ground 4 which contended that the arbitration award being just an arrangement for sharing proceeds from Sekyeredumase lands without determining the issue of ownership, the trial Court erred when it held that the award effectively determined the issue before it. In the view of Counsel, the very fact that under the award, proceeds from Sekyeredumase lands were to be divided into three and a third part allocated to Ankaasehene conclusively established that Ankaase is the overlord of Sekyeredumase. On the declaration that the existing Sekyeredumase Akwamuhene was to be the custodian of Dapaafo in Sekyeredumase, Counsel’s view was that it did not express the Ankaasehene’s lack of power to appoint an Odikro. It was only an arrangement to avoid chaos at that time.

 

In the view of Counsel for the Plaintiff, the arbitration award made a distinction between Sekyeredumase land and Dapaase land and made separate arrangements as to how the sharing of proceeds of sale should be done. The Defendant cannot therefore assume that all the lands, including Dapaase land, belong to him.

 

Counsel urged the principles in Tuakwa Vs. Bosom [2001-2002] SCGLR 61(65), Quarcoopome Vs. Sanyo Electric Trading Co. Ltd. [2009] SCGLR 213(219), and Oppong Vs. Anarfi [2011] 2 SCGLR 556 on this Court and invited the Court, after reviewing the record of appeal, to uphold the appeal and enter judgment for the Plaintiff.

 

In answering the submissions filed on behalf of the Plaintiff, Counsel for the Defendant dwelled considerably on the Plaintiff’s capacity to institute the action, and the operation of estoppel against him, in the light of the arbitration before Otumfour. On the issue of capacity, Counsel observed that on its face, the Plaintiff’s action was instituted in a representative capacity and that both in its statement of defence and by its cross-examination of the Plaintiff, the Defendant challenged the capacity alleged by the Plaintiff.

 

Counsel contended that with that challenge, the Plaintiff was obliged to establish his capacity by cogent evidence. He noted however that from findings made by the trial Court, the Plaintiff was unable to establish his capacity. The power of attorney the Plaintiff produced was made after he had closed his case (which would mean that at the commencement of the action he did not have capacity), and even that power of attorney was not made by competent persons. Counsel contended that in the circumstance, the Plaintiff had, on a balance of probabilities, failed to prove his capacity to institute the action. Counsel submitted on the strength of Stephen Vs. Appoh [2010] 27 MLRD 12 (26) that the Plaintiff having failed to prove that he had locus standi in the action, his action ought to be dismissed without the necessity of considering its merits.

 

In spite of his submission that lack of capacity on the part of the Plaintiff rendered consideration of the merits of his claim unnecessary, Counsel for the Defendant proceeded to deal with the Plaintiff’s contention that the arbitration award was just an arrangement for sharing proceeds from Sekyeredumase land and that the trial Court erred when it held that the award effectively disposed of the issue for determination in the action.

 

Counsel noted that both the Plaintiff and the Defendant acknowledge that a dispute between the Ankaasehene (that is, the Ankaase Stool), and the Sekyedumasehene (that is, the Sekyeredumase Stool) was the subject of an arbitration before Otumfour the Asantehene. Counsel further noted that in the course of his testimony, PW. 1, Nana Brefo Nyantakyi, identified Exhibit 2, the arbitration award, and admitted that it was binding on him as well as the parties to this suit.

 

Counsel contended that in Exhibit 2, Otumfour made it clear that he had entrusted the land in dispute to the Sekyeredumasehene, that the Sekyeredumase Akwamuhene must continue to be the custodian of the Dapaafo in Sekyrerdumase, that the Ankaasehene had no right to install an Odikro in Dapaafo, and that proceeds from the land in dispute at Dapaase should be divided into three, with one-third going to the Ankaasehene and the remaining two-thirds going to the Sekyeredumasehene. Counsel submitted that in the face of the above, Ankaasehene could not claim to be the custodian of the land in dispute.

 

Counsel submitted that it was clear from the evidence from both sides in the case that Dapaafo is now part of Sekyeredumase and that the whole area is now a big township which has been demarcated into building plots. Allocations of plots are signed by Sekyeredumasehene and it is also not in dispute that the Sekyeredumase Akwamuhene who is the custodian of the land in dispute was appointed Odikro by Sekyeredumasehene who has been elevated to the high office of Obrempong by Otumfour.

 

Counsel for the Defendant accordingly submitted that the appeal be dismissed and the judgment of the trial Court affirmed.

 

Among the grounds on which the Plaintiff is questioning the judgment of the trial Court is the general ground that the judgment is against the weight of evidence. Counsel for both parties also agree that this ground enjoins an appellate Court to review the entire record and draw its own conclusions on the issues. It seems therefore that by the general ground, the Plaintiff has called upon this Court to draw its own conclusions from the record, save that in doing so, in respect of findings of fact made by the trial Court, this Court ought to exercise great caution in deciding to substitute its preferred view of the facts for findings of fact made by the trial Court.

 

Among the issues arising out of the pleadings in this matter are the issues whether or not the Plaintiff had capacity to institute this action, and whether or not he was estopped from instituting the action. Counsel for the Defendant suggested in his filed submissions that the success of a plea of estoppel or a challenge to capacity may render consideration of the merits of a case unnecessary. For that reason, he devoted a considerable part of his submissions to trying to persuade this Court that the Plaintiff failed to establish his capacity to institute the action, and further, that he was estopped from instituting the action.

 

Estoppel precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination. And in the present suit, the matter pleaded in estoppel against the Plaintiff was an arbitration before Otumfour Asantehene in a case titled, Nana Antwi Boasiako (Sekyedomasihene) Vs. Oheneba Agyeman Kofi (Ankaasehene). But what is there about estoppel or lack of capacity that the successful pursuit of either of them as a defence may bring about the termination of a case, notwithstanding its merits?

 

By section 52 of the Alternative Dispute Resolution Act, 2010 (Act 798) “(s)ubject to the right of a party to set aside an award under section 58 of this Act, an arbitration award is final and binding as between the parties and any person claiming through or under them”. This means that in the absence of circumstances that may ground the setting aside of an arbitration award under section 58 of Act 798, the award is binding on the parties to the proceedings and their privies, and they are estopped from asserting something contrary to what is implied by it.

 

In Apeah and Another Vs. Asamoah [2003-2004] SCGLR 226 (234-235), the Supreme Court per Bamford-Addo JSC, observed that where estoppel has been pleaded, it is necessary for the record of proceedings to be exhibited so that the judge can determine the nature of the estoppel pleaded. As Her Ladyship explained, “(i)f by comparing the earlier pleadings and the judgment with the pleadings before the court, it is satisfied that the two causes of action are identical, the judge will proceed to see whether the parties in their earlier suit are the same, since estoppel must be between the parties in the same case and their privies in law and the onus of proof is on whoever claims estoppel”. This suggests that, for the plea to be successful, the two causes of action or issues in contention must be identical, and the parties in the current suit must be the same as or privies to the parties in the earlier suit.

 

Regarding the options available to defendants who have pleaded estoppel and the approach the tribunal before which the plea has been raised may adopt, Acquah JSC, as he then was, observed in In Re Sekyedumase Stool: Nyame Vs. Kese Alias Konto [1998-99] SCGLR 476 (481) that “(t)hey may allow the suit to go for a trial and, through cross-examination of the plaintiff and evidence adduced by them, seek to establish their plea and res judicata. In that case, the KTC, in its judgment, must first determine whether the plea of res judicata has been made out, and if it has, uphold it and dismiss the suit. Or they may raise the issue of res judicata as a preliminary issue for determination. And if they succeed, the action is dismissed”.

 

Now, about capacity. Capacity, in the sense of locus standi, means the right to bring an action, to be heard in court, or to address the Court on a matter before it. When the capacity of a plaintiff in an action is challenged, he is being called upon to establish that he has a vested interest in the subject matter of his claim. He is being called upon to show that he stands in such a relationship with the subject matter of his action as entitles him to a right of appearance in a court of law in respect of it. Where the plaintiff fails to establish the existence of such a relationship, the court will rule that he lacks standing in the suit, and will dismiss the action without considering the merits of the claim.

 

The opinion read by Brobbey JSC in the case of Asante-Appiah Vs. Amponsa [2009] SCGLR 90 (95) contains an evaluation of how the plaintiff in that case reacted to the challenge to his capacity, and I find it helpful to an appreciation of the nature of the obligation owed by a plaintiff whose capacity is challenged. His Lordship commented: “In the instant case, the defendant challenged the capacity of the plaintiff right from the inception of the trial. The challenge was explicit in the first paragraph of the statement of defence and in the cross-examination of Nana Twum Barima. The plaintiff had to establish his capacity before he could expect the court to have considered his case on its merits. He woefully failed to establish the capacity in which he sued by his reliance on the invalid power of attorney. The evidence given by Nana Twum Barima was inadmissible to the extent that he had no capacity to testify as he did”.

 

In his conclusion on this issue, His Lordship ruled that the failure of the plaintiff to establish his capacity provided sufficient basis on which to dismiss his claims. In other words, want of capacity alone was sufficient for the plaintiff to have lost the case.

 

I will now proceed to review the record to determine whether the Plaintiff herein was able establish his capacity in this suit, and also, whether the estoppel alleged by the Defendant was proved.

 

On the face of the writ of summons, the Plaintiff instituted his action as “the Ankaasehene’s Caretaker of Dapaase lands”. In paragraph 1 of his statement of claim, however, he claimed to have brought the action in his capacity as the Abusuapanin of Dapaase. It is noted that by its statement of defence, the Defendant denied the averments in paragraph 1 of the statement of claim, and specifically stated that the Plaintiff did not have capacity to institute the action. It is also noted that during his cross-examination, his positions as the Abusuapanin of Dapaase and the Caretaker of the Ankaasehene were both challenged and it was put to him that the Ankaasehene had not appointed him as his Caretaker. There is no question therefore, that the Plaintiff’s capacity was in issue and he had to prove it by cogent evidence before he would be entitled to a hearing on his claims before the trial Court.

 

But while the Plaintiff, as just noted, issued his writ as Caretaker of the Ankaasehene, we find him alleging in his statement of claim that he had brought the action in his capacity as the Abusuapanin of Dapaase. And it is noted that the Plaintiff claims to have brought his action in his capacity as the Abusuapanin of Dapaase when by the indorsement on his writ of summons, he is seeking reliefs that properly belong to the Ankaasehene, not the Dapaase family. Also, during his testimony-in-chief, the Plaintiff is observed alleging that Dapaase lands are under the control of the Head of the Dapaase family. Yet, during his cross-examination, he is found claiming to have brought his action as the Caretaker of the Ankaasehene, and acknowledging that Dapaase lands belong to the Ankaasehene. When the Plaintiff is required to lead cogent evidence to prove his capacity, the evidence he produces is only a maze of equivocations. Between instituting his action as the Caretaker of the Ankaasehene and as the Abusuapanin of Dapaase, he does not appear to be sure where he stands.

 

As the Abusuapanin of Dapaase, the Plaintiff does not stand in such relationship to the subject matter of his action as to claim to have capacity or locus standi in the action. And as Caretaker of the Ankaasehene, he cannot proceed with the action and be heard in it without proving his appointment as Caretaker. But, surprisingly, the Plaintiff closed his case without producing anything in proof of his appointment as the Ankaasehene’s Caretaker. There are suggestions from the record that after he had closed his case, the Plaintiff caused a document relating to his appointment as Caretaker of the Ankaasehene to be filed, presumably pursuant to leave granted by the trial Court.

 

That may be the document I find at page 30 of the record of appeal. Even though it had not been tendered during the trial and subjected to cross-examination, I will consider it for what it is worth. It is described as a power of attorney and it is executed by six persons who describe themselves as “Chiefs and Elders of Dominase Ankaase Stool”. By the document, the donors purport to appoint the Plaintiff as their true and lawful attorney vested with power to institute the present suit. It appears to have been made in June, 2010, over a year after the conclusion of his testimony.

 

The Plaintiff concluded his testimony on 19th October, 2009, and it is noted from the record that on that day, he kept insisting during his cross-examination that he had a power of attorney for the institution of this suit. This document, made in June, 2010, however shows the Plaintiff to have been lying to the trial Court when he repeatedly claimed to be in possession of a power of attorney. This dents the credibility of the Plaintiff as a witness, and looking at the document in the light of the proceedings that had preceded its making, one is also inclined to see it as only an attempt to mend deficiencies the Plaintiff had subsequently discovered in his case. The probative value of the document is therefore negligible.

 

It is evident from the foregoing that at the date of the issuance of the writ of summons herein, the Plaintiff did not possess the capacity in which he claims to have issued the writ.

 

This lack of capacity renders the writ irredeemably bad, and borrowing from Brobbey JSC in Asante-Appiah Vs. Amponsa (supra), it provides a sufficient basis for the dismissal of the action.

 

Like lack of capacity, a plea of estoppel if made out, may depending on its nature, necessitate the dismissal of a suit without going into the merits of the case. In the present case, as noted above, the matter pleaded in estoppel was an arbitration before Otumfour Asantehene in a case titled, Nana Antwi Boasiako (Sekyedomasihene) Vs. Oheneba Agyeman Kofi (Ankaasehene). During his cross-examination, PW.1 acknowledged that the award in that proceeding is binding on him as well as the parties to this suit and I understand this to mean acknowledgement of the fact that the parties in the present suit are privies of the parties in the pleaded arbitration proceeding and that the parties herein are precluded from re-litigating the matters determined by the award.

 

Now, does this suit seek to re-litigate the matters determined by the award? The trial Court considers that it does, but the Plaintiff thinks otherwise. Among the grounds of objection raised by the Plaintiff in this appeal therefore is that the trial Court erred when it held that the arbitration award effectively disposed of the issue for determination in the present suit. In the view of the Plaintiff, the award merely provided an arrangement for the sharing of proceeds from Sekyeredumase land and did not determine the issue of ownership.

 

The reliefs the Plaintiff was seeking before the trial Court have been set out above, and they show that, essentially, the Plaintiff’s claim herein is in respect of ownership of the lands inhabited by the people of Dapaase within the Sekyeredumase Traditional Area, custodianship of the said lands, and the repository of power to alienate or dispose of portions of the lands.

 

The bases for the Plaintiff’s claim are given in paragraphs 6, 7 and 9 of his statement of claim, and they are that previously, the people of Dapaase within the Sekyeredumase Traditional Area had their own Odikro, but that in the course of time, for developmental and administrative convenience, political control over all inhabitants of Sekyeredumase, including the people of Dapaase, was given to the Sekyeredumase Stool. The political control held by the Sekyeredumase Stool excluded control over the lands, which control remained vested in the Ankaasehene, who made the Abusuapanin of Dapaase his Caretaker in respect of the areas occupied by the Dapaase people. The Ankaasehene’s control over the land is however being undermined by the Sekyeredumase Stool, which has started selling portions of the land.

 

To my mind, reading the reliefs claimed by the Plaintiff in the light of paragraphs 6, 7 and 9 of the statement of claim, what the Plaintiff asserted before the trial Court was, basically, that as far as the areas within the Sekyeredumase Traditional Area occupied by the people of Dapaase is concerned, the Sekyeredumase Stool exercised no control over land. The Stool’s control was exclusively political.

 

The question now is, was this matter considered and determined in the arbitration before Otumfour? The award in the arbitration was tendered at the trial as Exhibit 2, and in it, Otumfour is found stating what was decided as follows:

“Akyeame, the conditions attached to the proceeds from Sekyeredumase lands state that the proceeds should be divided into three (3) portions, namely, one-third must be allocated to Ankaasehene and two-thirds go to Sekyeredumasehene, and condition has not been altered or changed since its inception. The second issue was about the appointment of Odikro by Ankaasehene, which could lead to chaos in Sekyeredumase. Hence I declared that there would be no need to appoint Odikro in the land but rather the existing Sekyeredumase Akwamuhene must continue to be the custodian of the said Dapaafo in Sekyeredumase and this condition too still remains unchanged. It must be noted here that the said conditions attached to the sharing of the proceeds from the said land also remain unchanged”.

 

It is noted that the award touches on proceeds from Sekyeredumase lands and their distribution, and custodianship of Dapaafo in Sekyeredumase. In my view, a full understanding of what was decided in the arbitration lies in a reading of the above-quoted portion of Exhibit 2 in the context of the whole of the exhibit. This view expresses my understanding of what Georgina Wood CJ advised in Opare Yeboah Vs. Barclays Bank of Ghana Limited [2011] SCGLR 330, regarding construction of contractual documents. At page 342 of the Report, Her Ladyship suggested that the document ought to be construed

 

“as a whole, in totality, and liberally or generously in a manner that would bring out its subjective purpose”.

 

 Regarding Exhibit 2, I consider Otumfour’s terms of reference to the committee that went into the matter of particular importance. In Exhibit 2, Otumfour restated the terms of reference as follows:

Ákyeame, my terms of reference for the said Committee were based on the verification of whether Ankaasehene has truly appointed Odikro on the land which I entrusted to Sekyredumasehene or not”.

 

My understanding, from the above, is that Otumfour had entrusted land to Sekyeredumasehene, and the arbitration committee was to verify whether Ankaasehene had appointed an Odikro on that land. We know from Exhibit 2 that the land in respect of which the Ankaasehene intended to appoint an Odikro is the land inhabited by the Dapaafo in Sekyeredumase, and it is also known from the same exhibit that the said land had been entrusted to the Sekyeredumasehene by Otumfour. It is implicit from the fact of Otumfour having entrusted the said land to the Sekyeredumasehene without question that Otumfour has power and authority so to do.

 

With these acknowledgments made, I proceed to determine whether in the present suit, the Plaintiff is seeking to re-litigate matters decided by the arbitration before Otumfour, by relating the reliefs claimed by the Plaintiff before the trial Court to the matters decided in the said arbitration. In this regard, I observe that in spite of the fact of Otumfour, the ultimate owner of the land in issue, having entrusted it to the Sekyeredumasehene, as noted, the Plaintiff is by relief 1 in the present suit seeking a declaration that the lands are the property of the Ankaasehene and not the Sekyeredumase Stool. Also, in spite of the same factual position, the Plaintiff, by relief 3 in the present suit, is seeking a declaration that the Sekyeredumasehene has no capacity to alienate or otherwise dispose of any portion of the lands in issue.

 

Again, in spite of the fact that, by the decision in the arbitration, any interest the Ankaasehene may have had in the past in respect of the land has been vested in the Sekyeredumasehene by Otumfour, the Plaintiff is by relief 5 seeking an order restraining the Sekyeredumase Stool from dealing with the said land “in a manner inconsistent with the interest of the Plaintiff”. Further, in spite of the fact that in the arbitration, in order not to create chaos in Sekyeredumase, the Ankaasehene was restrained from appointing an Odikro on the land and the Sekyeredumase Akwamuhene was confirmed in his position as custodian of the Dapaase people in Sekyeredumase and made to continue acting in the said position, the Plaintiff is by relief 2 seeking a declaration that he is the caretaker of Dapaase land within the Sekyeredumase Traditional Area.

 

Having read Exhibit 2 as a whole, it is clear to me that the present suit is an attempt by the Plaintiff to overturn the matters decided in the arbitration before Otumfour. This is very glaring from the issues filed by Counsel for the Plaintiff after pleadings had closed. The issues he sought to place before the trial Court for determination were, in substance, the very issues which had been determined in the arbitration or the very matters that had received confirmation in the arbitration. The Plaintiff repackaged matters that had been dealt with in the arbitration and placed them before the trial Court for determination. And to make his case appear persuasive, he claimed in paragraphs 6 and 7 of his statement of claim that the Sekyeredumasehene only exercised political control and had no control over land. But if, as we learn from Exhibit 2, the land in issue had been entrusted to the Sekyeredumasehene, then there can be no basis for the claims made in paragraphs 6 and 7 of the statement of claim.

 

I am satisfied from the foregoing that the Plaintiff is estopped by the award in the arbitration from pursuing has claim herein, and I hold accordingly. In consequence, this action ought to be dismissed without the necessity of going into its merits.

 

In conclusion, I hold that whether on the issue of capacity or estoppel, the Plaintiff is not entitled to be heard on the merits of his case. His action before the trial Court was frivolous and the trial Court was right in dismissing same. This appeal therefore fails and the judgment of the trial Court dated 26th October, 2014, is affirmed.