Submission to arbitration-jurisdiction of arbitrator-Claim to set aside deed of submission and award on ground of lack of jurisdiction-Section 34 of Native Administration Ordinance­Previous litigation to set aside award treating deed of submission as valid-judgment of Privy Council refusing to set aside award­Res judicata-Estoppel.

The plaintiffs, as representing the Stools of Asamangkese and Akwatia, claimed that a deed of submission to arbitration should be set aside and the arbitrator's award should be declared null and void on the ground that certain matters in dispute on which the arbitrator had adjudicated were of a political or constitutional character and therefore, by virtue of section 34 of the Native Administration Ordinance, within the exclusive jurisdiction of the State Council of Akyem Abuakwa which had no power to delegate that jurisdiction.

The plaintiffs had previously appealed to the Privy Council to set aside the arbitrator's award, and treated the deed of submission as valid throughout the whole of those proceedings. Having failed to persuade the Privy Council to set the award aside the plaintiffs commenced these proceedings to set aside the deed of submission and so render the award null and void, their real object being to get rid of the arbitrator's finding that, by the custom of Akyem Abuakwa, the Paramount Stool was entitled to a one-third share of all rents and profits of lands alienated by the subordinate stools of Asamangkese and Akwatia or either of them. The Court below gave judgment for the defendants.

Held on appeal (1) that even if the claim to a one-third share of those rents and profits was a matter of a political or constitutional character within the meaning of section 34 of the Native Administration Ordinance, that Ordinance did not preclude its submission to arbitration.

(2) That setting aside the deed of submission would involve setting aside the award, which the Privy Council had already refused to do therefore the matter was res judicata.

(3) That the plaintiffs were estopped by their conduct from denying the validity of the deed of submission.

(4) By Webber, C.]. and Michelin ]. Aitkin ]. dissenting, that the claim to a one-third share of the rents and profits of lands alienated by these subordinate .stools was not of a political or constitutional character.

The appeal Wall dismissed with costs.

w. E. G. Sekyi and W. Kojo Thompson for the Plaintiffs­Appellants.

E. C. Quist and J. Henley Coussey for the Defendant;­Respondents.

The following judgments were delivered :-

WEBBER, C.]. SIERRA LEONE.

This is an appeal from the judgment of the learned Chief Justice, who gave judgment for defendants with costs in a claim which was for a declaration that a certain deed of submission dated the 18th of June, 1929, purporting to have been made between (inter alia) the defendant Omanhene Ofori Atta for himself, and as representative of the State Council of Akyem Abuakwa with their consent or concurrence of the first part, the Ohene Kwaku Amoah of Asamangkese, the predecessor of Nana Kwaku Amoah II of the second part and Kwame Kuma, the Odikro of Akwatia of the third part being a submission to the arbitration of Mr. Justice Hall as Arbitrator is altogether null and void in so far as it affects the plaintiffs and the defendant Nana Sir Ofori Atta in the matter of differences pending between them, the same being controversies and disputes of a political and constitutional character within the meaning of section 34 of the Native Administration Ordinance and thus by virtue of the provisions of section 116 thereof and subject also to the provisions of section 89 (3) thereof under the sole and exclusive jurisdiction of the State Council of Akim Abuakwa, which said Council had no power or jurisdiction to delegate its jurisdiction or its arbitrament to any other arbitrator or any other person, body or tribunal, and that the said deed may be set aside by order of the Court so far as it affects the plaintiffs and defendants as being without legal authority.

The plaintiffs further claimed a declaration that the award of the 9th of September, 1929, founded on the said submission, was null and void and an injunction restraining the defendant Nana Sir Ofori Atta from acting on or taking steps to enforce carry out or give effect to the said award.

The learned Chief Justice stated that the claim was in fact based entirely on lack of jurisdiction, that on a motion to set aside the award nothing relating to this lack of jurisdiction was advanced by the plaintiffs and he held that in upholding the award the Divisional Court must be taken to have decided that it had juris­diction to make the order it did, following the words of Jesse! M.R. in the case of In re Padstow, etc. Assurance Association 20 Ch. D. at page 142, namely :-

" I think that an order made by a Court of competent jurisdiction which has authority to decide as to its own competency m list be taken to be a decision by the Court that it has jurisdiction to make the order."

The plaintiffs appealed from the Divisional Court to the West African Court of Appeal and then to the Privy Council, and in each case the appeal was dismissed and at no hearing was this ground relating to jurisdiction raised or mentioned. The learned Chief Justice further held that the plea of res judicata raised by the defendants, the plea was a good one, and he quoted the words of Lord Kenyan in Greathead v. Bromley 7 Term Rep. 455 :-

"Now if an action be brought and the merits of the question be discussed between the parties and a final judgment obtained By either, the parties are concluded and cannot canvass the same question again in another action although perhaps some objection or argument might have been urged upon the first trial which would have led to a differentt judgment."

Further in his judgment the learned Chief Justice held that the State Council was not a party to the deed but official witnesses of the authority of the Omanhene, and on the question of the power of the State Council to delegate its jurisdiction to an arbitrator the Court below held that the parties were not precluded from settling their disputes by arbitration; and in any case it held that the matters in difference were not in its opinion of a political and constitutional nature so as to bring them within section 34 of the Native Administration Ordinance. Against this judgment the plaintiffs have appealed to this Court.

Amended grounds of appeal were filed, the respondents offering no objection to the substitution of these grounds for those originally filed. These new grounds fill up eight sheets of typewritten paper, some of the grounds containing argument and statements in support.

Counsel dealt first with grounds 1 and 8 which, briefly set out, were to the effect that the learned trial Judge wrongly assumed in his judgment that the plaintiffs' case as against the State Council of Akyem Abuakwa as a defendant and the other members thereof who were witnesses to the deed of submission rested on their being parties to the deed, and in e round 8 it was contended that the State Council were, by specific representation, parties to the deed and that they could not delegate their jurisdiction to an arbitrator or submit questions in which they were concerned to arbitration.

Now as to these two grounds I agree with Counsel for the plaintiffs as to the necessity for joining the State Council as a defendant in these proceedings, but the State Council never have been or have become a  party to the submission.

In witnessing the deed the members of the State Council thereby asserted their concurrence in and gave their authority to the submission and to the Omanhene to sign; it is only in this sense that it can be said that they the State Council delegated their jurisdiction to an arbitrator or submitted questions in which they were concerned to arbitration.

In no sense, however, can it be said to be a reference under order of the Court. The matters in difference did not crystallise case the appeal was dismissed and at no hearing was this ground relating to jurisdiction raised or mentioned. The learned Chief Justice further held that the plea of res judicata raised by the defendants, the plea was a good one, and he quoted the words of Lord Kenyan in Greathead v. Bromley 7 Term Rep. 455 :-

"Now if an action be brought and the merits of the question be discussed between the parties and a final judgment obtained hy either, the parties are concluded and cannot canvass the same question again in another action although perhaps some objection or argument might have been urged upon the first trial which would have led to a differ en t judgment."

Further in his judgment the learned Chief Justice held that the State Council was not a party to the deed but official witnes~s of the authority of the Omanhene, ano. on the question of the power of the State Council to delegate its jurisdiction to an arbitrator the Court below held that the parties were not precluded from settling their disputes by arbitration; and in any case it held that the matters in difference were not in its opinion of a political and constitutional nature so as to bring them within section 34 of the Native Administration Ordinance. Against this judgment the plaintiffs have appealed to this Court.

Amended grounds of appeal were filed, the respondents offering no objection to the substitution of these grounds for those originally filed. These new grounds fill up eight sheets of typewritten paper, some of the grounds containing argument and statements in support.

Counsel dealt first with grounds 1 and 8 which, briefly set out, were to the effect that the learned trial Judge wrongly assumed in his judgment that the plaintiffs' case as against the State Council of Akyem Abuakwa as a defendant and the other members thereof who were witnesses to the deed of submission rested on their being parties to the deed, ano. in ground 8 it was contended that the State Council were, by specific representation, parties to the deed and that they could not delegate their jurisdiction to an arbitrator or submit questions in which they were concerned to arbitration.

Now as to these two grounds I agree with Counsel for the plaintiffs as to the necessity for joining the State Council as a defendant in these proceedings, but the State Council never have been or have become <! party to the submission.

In witnessing the deed the members of the State Council thereby asserted their concurrence in and gave their authority to the submission and to the Omanhene to sign; it is only in this sense that it can be said that they the State Council delegated. their jurisdiction to an arbitrator or submitted questions in which they were concerned to arbitration.

In no sense, however, can it be said to be a reference under order of the Court. The matters in difference did not crystallise into an action brought before the State Council and as aptly put by the learned Chief Justice :-

"The Council's authority to settle particular matters only commences to function when these matters are brought before it by the parties."

There is no evidence at all that the parties had come to Court on these differences and disputes between them. I agree with the learned Chief Justice that the parties are not precluded from settling their differences by arbitration.

Section 34 of the Native Administration Ordinance reads as follows :-" If any controversy of a political or constitutional character shall arise between a Paramount Chief and a Divisional Chief or Chief subordinate to him or between a Divisional Chief and a Chief subordinate to him, the matter in issue shall be heard and determined by the State Councilor before the Paramount Chief's tribunal provided that the decision of the State Councilor Paramount Chief's tribunal shall be subject to an appeal to the Governor whose decision shall be final."

The law prescribes two particular tribunals before whom certain disputes can be heard and determined-No other judicial Tribunal can have jurisdiction. But the Arbitration Ordinance of 1928, which is a code regulating local reference", enables parties who wish to settle their differences of whatever nature to proceed to arbitration by written submissions and to have these differences finally settled and determined in a quasi-judicial manner.

So it matters not whether the matters in difference refer to civil rights or are of a political or constitutional nature. The parties are at liberty to invoke the aid of the Arbitration Ordinance if they consider that such differences could be better heard and determined by an arbitrator than by the State Council and the Paramount Chief's Tribunal.

Finding as I do that the parties are not precluded from settling their matters in differences by arbitration whether those differences relate to civil rights or are of a political and constitutional nature, the claim for a declaration that the submission is null and void in that the differences are of a political and constitutional character must fail.

As, however, the learned Chief Justice dealt with the nature of the claim in order to determine whether in fact there is allY substance in the contention that the deed of submission was null and void, it would perhaps be advisable to scrutinize the nature of the submission upon which the arbitrator was asked to make his award-in other words to examine what were the matters of differences between the parties.

A reference to the schedule attached to the submission shows that there were 16 propositions submitted to the arbitrator. Of these Nos. 15 and 16 were not dealt with, and Counsel for plaintiffs pointed out that some of the propositions were concluded by law, namely, the first three; and the rest up to 14 related to the questions of ownership of land.

The matter of the utmost importance to the arbitration, and which the arbitrator was asked to determine, is stated in section 14 of the schedule namely :-

" Whether the land attached to the stools of the Ohene of Asamangkese and the Odikro of Akwatia have ever been or are so attached to the stool of the Omaphene of Akyem Abuakwa as to give to the stool of the Omanhene of Akyem Abuakwa the rights of landlord or owner and impose on the stools of Asamangkese and Akwatia the burden of a tenant or to entitle the stool of the Omanhene of Akyem Abuakwa to ebusa."

Now to understand exactlv what were the differences between the parties one must make -a retrospective reference to what transpired before the parties proceeded to arbitration.

In November, 1924, a judgment was delivered by Michelin, J. in In re Concession Enquiries Nos 898, 903 and 907 (Accra) opposition by the grantors. In that judgment it was stated that the opposition withdrew with the leave of the Court and the parties agreed that the opposer's claims should form the subject matter of a suit between the grantors and the opposer-the subject matter being :-

(1) Whether the assent of the opposer, i.e. the present defendant Nana Sir Ofori Atta was necessary for the valid alienation of the aforesaid concessions.

(2) Whether the opposer was entitled to a third part of all

rents and profits in respect of the said concessions.

This suit was brought in 1927 (Suit No. 135/1927). Pleadings were entered.

This suit, together with other suits, was withdrawn from the Court and the differences of the parties submitted to arbitration.

Now this suit was, as pointed out by Counsel for the defendants, a legal and equitable claim in which the parties were asserting their rights to certain lands and the issues, in short, were whether there was an original grant of the lands by the Omanhene-if there was a grant what was its nature and what were its terms. It seems to me that throughout the whole history of this dispute two rights were claimed by the Omanhene (see page 319 of the record) :-

(a) The right to grant or refuse his assent before alienation, and

(b) The right to one-third rents and profits in respect of the said land.

I fail to see how these rights can be termed either political or constitutional. The rights claimed are based on an original grant, and the Arbitrator, after a very exhaustive investigation, found as to No. 14 of the schedule :-

"That the lands attached to the stools of the Ohene of Asamangkese and the Odikro of Akwatia have since the grant of the predecessor of the present Omanhene of Akyem Abuakwa never been so attached to the stool of the Omanhene of Akyem Abuakwa as to give to the stool of the Omanhene of Akyem Abuakwa the rights of owner, but have been so attached as to entitle the stool of the Omanhene of Akvem Abuakwa to one-third share of whatever comes out of the ~aid land. "

In other words the finding of the arbitrator was that the grant vested ownership in the said sub-stools subject to a royalty, namely, one-third of whatever comes out of the land to be paid to the Omanhene.

Much has been said about the term" ebusa," called by Casely Hayford" abusa." The Omanhene may have claimed" ebusa," meaning thereby a third share of the rents, but he also claimed a third share of the profits out of the land. The arbitrator did not award the Omanhene " ebusa "-he awarded one-third of whatever came out of the land-which in effect is according to Casely Hayford (Gold Coast Native Institutions page 49) an "allegiance fee" payable by a vassal who is expected to acknowledge the sovereignty of a paramount chief by the customary present.

Although the judgments of the West African Court of Appeal and of the Privy Council on this point are based upon the question of paramountcy, yet in view of the fact that the payment of one­third of whatever comes out of the land was proved to have been based upon the terms of the original grant agreed to between the predecessors of the present parties, such question of paramountcy did not in my opinion raise an issue of a constitutional or political nature for the determination of the arbitrator. This disposes of the other grounds of appeal except those dealing with estoppel.

I t may also be advisable to refer to the plea of res judicata raised by the defendants and to the grounds of appeal relating thereto.

It is urged by the plaintiffs that this is not a claim to set aside an award but a claim to declare the submission to arbitration and the award null and void. I can see no difference.

The effect of such a declaration is to set aside the award, and this question was canvassed in several Courts in each of which reasons were adduced for setting aside the award.

I think the case of Greathead v. Bromley 7 Term. Rep. 455, quoted· by the learned Chief Justice, supports the plea of the respondents.

Every point which pertained to the subject of this dispute between the parties was canvassed before the several Courts, and

I think the case of Henderson v. Henderson, 67 E.R. 313 and Odaya Taver v. Kalama Nalch£ar, 20 E.R. 20 also support the plea of res jud£cala.

For these reasons I find-

(a) That the matters in difference before the arbitrator were not of a political or constitutional nature.

(b) If they were the parties are not precluded from submitting their differences to arbitration.

(c) The deed of submission signed by the parties was good. (d) The plaintiffs are estopped from bringing this action and that the plea of res jud£cata is a good one.

I am of opinion that this appeal should be dismissed with costs assessed at £64 155. 6d.

MI CHELIN, J.

I concur.

AITKEN, J.

This is an action to set aside a deed of submission to arbitration dated the 18th of June, 1929, and made between the defendant Omanhene Ofori Atta, K.B.E., acting for himselt and as the representative of the State Council of Akyem Abuakwa of the first part, and Ohene K weku Amoah acting for himself and as representative of Chiefs, Elders, Councillors and people of Asamangkese Stool of the second part, and Odikro Kwame Kuma acting for himself and as the representative of Chiefs, Elders, Councillors and people of Akwatia Stool of the third part. There are a number of other parties to this deed, but as they are not directly concerned in the real question agitated in this action I do not think it necessary to mention them here. In addition to the claim to have the deed itself set aside as null and void the writ of summons goes on to claim a declaration that the award founded on it, so far as it affects the plaintiffs and the defendant, is also null and void, and asks for an injunction to restrain the defendant from acting on the same or taking any steps to enforce it.

The deed itself is set out in full in the statement of claim and at pages 297 to 311 of the Record of Appeal. It is or purports to be a submission to arbitration of (inter alia)-

(a) certain differences and disputes which had arisen and were then pending between the parties of the first and second parts " in connexion with the chiefship, rights, privileges, jurisdiction, dignities and pre­eminences touching the relationship between the stools of the first and second parts," and

(b) certain differences and disputes which had arisen and were then pending between the parties of the first and third parts "in connexion with the chiefship, rights, privileges, jurisdiction, dignities and pre­eminences touching the relationship between the stools of the first and third parts."

       These differences and disputes are more particularly set out in paragraphs 1 to 14 inclusive of the schedule to this deed at pages 308 to 310 of the Record, and it is unfortunate that, for reasons into which I need not go now, it was found impossible to set out by far the most important of all those disputes and differences with more precision.

Thus, it is obvious that paragraphs 4 and 6 raise the question of tribute which is also raised in paragraph 14, and the different forms in which it is raised appear to me to indicate that the minds of the first, second and third parties to the deed were not exactly ad idem as to the precise question which was being submitted to the arbitrator. Thus, the "ebusa" mentioned in paragraph 14 is admittedly tribute due from a subordinate to a paramount stool by virtue of the ownership and right to possession of the tributary lands being vested in the paramount stool.

The issues framed by this paragraph are reasonably precise, but when one turns to paragraph 6 one finds something in the nature of tribute or "ebusa "-an Akan word which literally means one-third-claimed "by the custom of Akyem Abuakwa," and such a claim i~ wide enough to include any kind of tribute. I mention this point now as the submission to arbitration was intended to take the place of a number of law suits between the parties thereto brought for the purpose of litigating many of the .. differences and disputes" comprised in that submission. Amongst those law suits, which were all withdrawn by consent, is suit No. 135/1927 between N ana Ofori Atta and Yaw Ewuah and others, the statement of claim in which is set out at pages 320 to 328 of the record. From a perusal of paragraphs 7, 8, and 9 of that statement of claim it would seem that on the 28th of July, 1927, Nana Sir Ofori Atta (then Nana Ofori Atta) was claiming" ebusa " or something so closely akin to "ebusa" as to be hardly distinguishable from it. In view of the fact that the learned arbitrator negatived the claim of the paramount stool to any rights of ownership over the subordinate stools of Asamangkese and Akwatia I can understand. and to some extent sympathise with, the fierce resistance offered by those stools to his finding that "the paramount stool was by the custom of Akyem Abuakwa entitled to receive one equal third part of all rents and profits of lands alienated by the stool of Asamangkese and Akwatia or either of them." It appears to me quite likely that they never intended to submit any question of tribute. apart from that of ., ebusa," to the arbitrator, and that they did not appreciate at the time of submission that any such question was before him.

Since this question of tribute was of such burning interest as to dwarf every other matter before the arbitrator into insignificance, I will finish the observations I have to offer on it at this stage of my judgment. If we get down to fundamental facts we find that the basis of this claim to tribute is a war known as the Akwa,mu war which was brought home 200 years ago (see the learned Arbitrator's finding numbered 12 at page 220 of the record.) In its essence it is nothing but the usual claim of a conqueror to tribute from the conquered, and therein lies its sting. No notional, or even actual, regrant of their lands to the conquered by the conquerors can operate to alter the real position or to render it less galling to the conquered.

At the present day the stools of Asamangkese and Akwatia refuse to regard themselves as the conquered tributaries of the paramount stool, and to that refusal the wasteful litigation between them of recent years must be attributed.

The award itself, which is a monumental tribute to the learned arbitrator's indefatigable industry, is set out at pages 92 to 243 of the record and appears to have been given on the 7th of September, 1929. So far from settling the matters in difference between the parties" once and for ever," as it was intended to do, the repre­sentatives of the Asamangkese and Akwatia stools lost no time in applying to the Divisional Court at Accra to set it aside. Having failed to persuade that Court to do so they applied in turn, and with equal lack of success, to the West African Court of Appeal and the Judicial Committee of the Privy Council.

The Privy Council Judgment was delivered on the 21st of November, 1932, and the judgments of all these Courts are set out at pages 245 to 296 of the record. I t is a melancholy reflection that the immense expenditure of money, time and labour represented by the learned arbitrator's award and these judgments appears to have been in vain, for we find the Asamangkese and Akwatia Stools once more fighting their way upwards to the Privy Council for the avowed purpose of getting rid of an award which that august tribunal has already refused to set aside. It is true that we are not being asked in these proceedings to set the award aside, we are only requested to declare it null and void, which is snrely a distinction without a difference and for all practical purposes the same thing. It seems to me that if we were to accede to that request we should be, in effect, over-ruling a decision of the Privy Council and so attempting to do that which we cannot possibly do. In my opinion the appeal might be dismissed on this one ground alone, but in view of the great importance of this case and the strenuous way in which it was argued before us I will indicate, as shortly as possible, my views on some of the points raised by learned Counsel on both sides and on one point which, though not argued before us, has occurred to me since. I will take this last point first.

It seems to me that the Arbitration Ordinance of 1928, which is founded on the English Arbitration Act of 1889,' may operate so as to limit the remedies open to an aggrieved party to those set out in sections 3 and 12 thereof. Under those sections he may either apply to the Court for leave to revoke the submission or he may apply to the Court to set aside the award; and it would seem that the Ordinance does not contemplate any other method of attacking the submission or the award. In the absence of any argument for or against this view I do not feel justified in putting it forward otherwise than as a tentative suggestion, but so far as I am aware there is no precedent for an action like this to declare a deed of submission null and void, and if the view I have so tentatively suggested is correct then the absence of any such precedent is easily understood.

To pass 011, the plaintiffs claim that the deed of submission is altogether null and void in that the differences between them which it purported to submit to the arbitrator were controversies and disputes of a political and constitutional character within the meaning of section 34 of the Native Administration Ordinance and therefore matters which by law could not be submitted to arbitration. Turning to the schedule. to the deed, which is set out at pages 308 to 311 of the Record, it is perfectly clear that paragraphs 1, 2, 3, 4, 8, 9, 10, 11, 12 and 1:3 deal with" controversies or disputes of a political character between a Paramount Chief and a Divisional Chief or Chief subordinate to him." The curious thing, however, is that no one seems to bother about those controversies or disputes or what the arbitrator decided or did not decide about them. If I understood Mr. Sekyi aright he did not base his argument on them but on the all important question of tribute which, as he alleges, was dealt with by the arbitrator as a constitutional or political question and not as a question depending solely on the ownership of land. Well, from what I have already said about that question it will appear that I agree with him on that point. To my mind it is far more than a mere money claim, and I hold the view that its decision involved or included a politico-constitutional question of the first magnitude. To that extent I differ from the learned Chief Justice, and apparently, the other members of this Court, but I entirely agree with them that the exclusive jurisdiction conferred by this· section 34 on the State Councilor Paramount Chief's Tribunal does 110t preclude the parties to any such political (>[ constitutional dispute from settling the matter by arbitration if it is their desire to do so. I need not enlarge upon what has already been said on that subject, but it is not without interest to note how difficult would be the situation in regard to all the controversies and disputes between these contending stools if the law were as Mr. Sekyi contends it is. For the last 12 years and more the Ohene of Asamangkese and the Odikro of Akwatia have consistently and persistently refused to have anything to do with the State Council of Akyem Abuakwa and the Omanhene Nana Sir Ofori Atta's Tribunal. Their reasons for so doing are not without weight, but I need not canvass them here

What I do want to point out, however, is that it would be manifestly absurb to compel the parties to those differences to resort to a tribunal which two of them not only refuse to recognise but also regard as being almost entirely composed of or constituted by their enemies, and this even though section 89 (3) of the Ordinance would exclude Nana Sir Ofori Atta himself from the State Council. It is perfectly obvious that arbitration offers the only fair and reasonable m'thod of settling such controversies and disputes, and there is no reason to suppose that the differences in this particular case are the only ones of the kind. Political and constitutional disputes between paramount and subordinate stools are by no means uncommon in the Gold Coast Colony, and on occasion the appropriate State Council may well be, as in this case, quite unable to deal with such disputes impartially.

I have now pronounced a decision on the real question raised in this appeal and am under no obligation to proceed further, but the question of estoppel was argued at such great length before us that I feel it would be somewhat discourteous to the learned Counsel engaged in this case to ignore it altogether. We have been referred to the first of the 13 reasons for setting aside the award which were submitted to the Privy Council, and that reasons reads as follows (see page 335 of the record) :-

"The award is expressed to have been made on an arbitration held under Ordinance 9 of] 928 being" an Ordinance to provide for the reference and submission of disputes to arbitration by agreement out of Court."

No such provision was contained in the submission to arbitration nor was any such arbitration contemplated by any of the parties thereto and the award made cannot be enforced as judgment or order to the same effect under section 13 of the Arbitration Ordinance (9) of 1928 or at all and is therefore void under the provisions of the Native Administration Ordinance of 1927.

I must confess that I do not find this reason easv to follow, and I am not surprised that it failed to impress the privy Council, but the allegation that the award is " void under the provisions of the Native Administration Ordinance of 1927," presumably refers to section 34 thereof and raises the same question as this action. In addition to that it strikes me as somewhat contrary to the general principle of estoppel that a party should be at liberty to treat a deed of submission as valid for the purpose of proceeding; to set aside an award based on it and then, having failed to persuade the highest Court in the Empire to set the award aside, to bring other proceedings to get rid of the abnoxious award by invalidating the same deed he has previously treated as valid. If that can be done it would seem that the following remarks by Lord Kenyon in Greathead v. Bromley, reported in 7 Term. Rep. at page 494, need some qualification :-" If an action be brought and the merits of the question discussed between the parties, and a final judgment obtained by either, the parties are concluded and cannot canvass the same question in another action." I cannot claim to be entirely free from doubt on this question of estoppel in the very unusual circumstances of this case, but I incline to the opinion that the doctrine operates in favour of the defendant. If I understood Mr. Sekyi aright he argued that the plaintiffs did not know that the arbitrator had dealt with tribute otherwise than as an incident of ownership until they got the Privy Council judgment of the 21st of November, 1932, and therefore they were not estopped by their conduct in treating the deed of submission as valid up to that date. But how can that be? The Judgment of the Privy Council added nothing whatever to the award and took nothing whatever away from it. If the plaintiffs or their legal advisers failed to realise, as soon as the award \vas published, that the learned arbitrator had awarded a trihute> which was something different from " ebusa " then they have only themselves to blame for, in my opinion, that appeared quite plainly on the face of the award. In another passage of his argument Mr. Sekyi exclaimed " \Ve went up to the Privy Council thinking that we had an award which was wrong, but we finally learnt, by the Privy Council decision, that we had no award at all." I find it impossible to place that interpretation on their Lordships' Judgment.

It will thus be seen that I agree with the learned President and my learned brother that this appeal should be dismissed with costs, but during the very lengthy arguments presented to us by Counsel on both sides, and more especially by Counsel for the plaintiffs, I found myself growing more and more depressed at the apparent powerlessness of Arbitrators, Courts and Government to put an end to the continuous and ruinous litigation between this paramount and those subordinate stools. Thousands and thousands of pounds have been diverted from the social services to which they should have been devoted and expended on a legal warfare of attrition. Instead of the schools, hospitals, welfare centres, improved sanitary (so badly needed), roads and public buildings which the people of those contending stools might have acquired and enjoyed as a result of the discovery of great mineral wealth beneath their lands, they have had a never ending chain of indecisive legal battles with the prop sect of at least two more expensive journeys to the highest Court of Appeal in the British Empire. What might have been a lasting benefit to the many has become a fleeting advantage to the few, and it is plain enough that something is very wrong somewhere though it is not for me, with the very inadequate material at my disposal, to attempt an apportionment of the blame. I will venture only one further remark, and it is this :­the stool funds of any and every native administration are public moneys which ought to be expended for the public weal. If the present system of Native Administration in this Colony has failed to achieve that objective, then it has failed in at least one essential feature of good Government.