Customary Arbitration

Indeed, ALTERNATIVE DISPUTE RESOLUTION is the simple’s way of solving dispute in our communities. The reader should be able to understand the Customary arbitration in solving dispute in our communities as well as the position of law with regards to customary arbitration in Ghana.

Background
A customary arbitration is the process in which the disputing parties decided to choose a neutral person to hear and resolve their dispute and binding decision on the said parties or award. In the case of BUDU II v. CAESAR & ORS ^[ [1] ^]_. It was established in this case that a valid arbitration according to customary law is that it must be “a voluntary submission of a dispute by the parties to arbitrators for the purpose of having the dispute decided informally, but on its merits.

Issues/Legal Issues
The statement of issues is very important to know

1. whether the customary arbitration is binding on the parties
2. whether or not the parties to the dispute can set aside of the Customary arbitration award .
3. Whether any right to resile after submission to arbitration

NATURE OF CUSTOMARY ARBITRATION
For customary arbitration to be binding on the dispute parties, it is necessarily to look out some of the essential elements of customary arbitration or essential characteristics of an arbitration . In Ghana, customary arbitration is one of the ways of solving dispute in various communities. In BUDU II v. CAESAR & ORS supra it was established by the court the five essential characteristics of an arbitration which includes: -

(i) a voluntary submission of the dispute by the parties to arbitrators for the purpose of having the dispute decided informally, but on its merits; (ii) a prior agreement by both parties to accept the award of the arbitrators ; (iii) the award must not be arbitrary, but must be arrived at after the hearing of both sides in a judicial manner ; (iv) the practice and procedure for the time being followed in the Native Court or Tribunal of the area must be followed as nearly as possible; and (v) publication of the award. that is to say before a customary arbitration can be binding on the dispute parties, you should be able to see all these five essential elements present.

The position of law/ The Rule
In Ghana, customary arbitration is been capture in the current Alternative Dispute Resolution Act, 2010 under Chapter Three (3) of the Act. However, in section 90 (1) ADR Act, 2010 talks about an agreement to submit to customary arbitration which provided that “90. (1) A report of a dispute by a party to that dispute to a qualified person as provided in section 92, followed by request to that qualified person to help resolve the dispute shall constitute a submission to customary arbitration”. It is now clear from the above section what can constitute a submission to customary arbitration. it is valid to say that one of the dispute party cannot be force to agree to submit to customary arbitration in Ghana. Now if Dahamani is the arbitrator and Fatima submit a dispute to Dahamani (arbitrator) then he the arbitrator needs to inform the other party of the submission and the party who made the submission to pay a fee or a token for the arbitration, section 90 (2) of ADR Act 2010 applies. Note the payment of the fee or the token is just for consent and appointment of the arbitrator see section 90 (3) (a) and (b) of the ADR Act 2010.

In YAW v. AMOBIE AND ANOTHER ^{[ [2] ]} where the other party was not satisfied with the boundary demarcated and so wanted her money back and then arbitrator refused to give the back it was accepted by the Court that paying the money to the arbitrator is with regards to consent. Hence, customary arbitration shall not commence where the other party rejects the invitation by failing to pay the fee or token demanded by the arbitrator see section 90 (4) of ADR Act 2010. The period for the invitation is within 21 days or within a period of time specified by the arbitrator shall be deemed to be a rejection of the invitation, section 90 (5) of ADR Act 2010 applies.

Furthermore, with regards to the prior agreement by both parties to accept the award of the arbitrator, e.g if Dahamani is claiming a tittle of land and Nbangba is also claiming the same land as the owner, now Dahamani run to the Chief of the community and his elders , and then they invites Nbangba to come to the palace and if Nbangba disagree that the matter or the dispute should not be solve by the chief and his elders it implies that Nbangba has rejected the chief and his elders as Customary arbitrator. YAW v. AMOBIE AND ANOTHER supra it was held by the Court that “whether or not a party had agreed to submit to the arbitration is a question of fact in each case, to be determined from the conduct of the parties and other circumstances.”

However, as stated in the above with regards to third essential element of customary arbitration which is the award must not be arbitrary, but must be arrived at after the hearing of both sides in a judicial manner. Indeed, customary arbitration award will not be binding on the parties if the customary arbitrator did allow the dispute parties to talk or hear both sides in judicial manner it will constitute a breach of the dispute party’s natural justice. See in Section 93(1) of ADR Act 2010 (Rules of customary arbitration) which provided that “a customary arbitrator shall apply the rules of natural justice and fairness and is not obliged to apply any legal rules of procedure in the arbitration” hence the rules of natural justice and fairness must be observe by the Customary arbitrator. See ,also in the case of SAASUO AND ANOTHER v. TEMABI AND ANOTHER^{[ [3] ]}, where it was established by JUSTICES APALOO (as then he was) that, a customary arbitrations are informal judicial proceedings, and provided the rules of natural justice are observed and all parties afforded an opportunity of being heard, a court should be slow to interfere with the award. Again, in AKUNOR v. OKAN ^{[ [4] ]}_, it was established by the Court of Appeal that an arbitration need not follow any formal procedure. But both sides must be heard and be given the fullest opportunity to present their case. In MENSAH v. ESAH ^{[ [5] ]}: in this case, the Court of Appeal had set aside the Customary arbitration award due to the fact that, there was no hearing of both sides in a judicial manner as the defendant was not heard.

The publication of the award with regards to Customary arbitration. In YAW v. AMOBIE AND ANOTHER supra it held by the court that publication of an award is the communication of the decision of the arbitrators to the parties so as to make the arbitrator f1mctus officio. Note, where the arbitrator has followed the due process and then on the day of the pronouncement of the judgement, the other party disagree to come and the pronouncement is made, the party is bound by it. In MANTE AND ANOTHER v. BOTWE ^{[ [6] ]} where an arbitration satisfied all its essential requirements, no court, not even a superior court, could refuse to enforce its award as the award would be final and conclusive. Exceptionally, however, an arbitration award might be impeached where the arbitral proceedings might have flouted a rule of natural justice, such as failure to allow a party to call a witness, because the decision would then be a nullity since the tribunal would have acted without jurisdiction. In such case, any court to which notice of such a decision was brought was entitled to strike it down whether or not it was raised as an issue at the trial.

Analysis
Even though, customary arbitration is recognized by the laws of Ghana as the way of solving dispute in our communities. You should know your right as a dispute party and know the procedure involve in customary arbitration in Ghana. With regards to the legal issues, the first issue is whether the customary arbitration is binding on the parties, and the answer is yes if and only the four essential characteristics of customary arbitration is present. Per the principles established in the case of Budu II v Caesar and Another supra and MANU AND ANOTHER v. KONTRE and Section 93 (1) (Rules of customary arbitration) of ADR Act 2010.

Also, the second issue which is whether or not the parties to the dispute can set aside of the Customary arbitration award, the answer is no because, in the case of arbitration, the award is binding upon the parties to it whether or not they accept it; the parties cannot resile after the award has been published. Note, per section 112 (1) (a), (b) and (c) (Setting aside customary award) of ADR Act 2010 which provided that: (1) A party aggrieved by an award may apply to the nearest District, Circuit or High Court to set aside the award on the grounds that the award (a) was made in breach of the rules of natural justice, (b) constitutes a miscarriage of justice, or (c) is in contradiction with the known customs of the area concerned. Section 112 (2) An application under subsection (1) shall be made to the court within three months of the award, and on notice to the other party to the arbitration. In that case the party can rely on this section to bring the matter to Court as stated in the above. I am of the view that the third issue is been address with regards to this section.

Not all, in YAW v. AMOBIE AND ANOTHER supra it was established by the Court that Publication of an award is the communication of the decision of the arbitrators to the parties so as to make the arbitrator f1mctus officio. These implies that once the customary arbitrator made a final decision which has been communicated to the dispute parties then the award of customary arbitration has been publish. Note, it is not a defense for the disputer or one of the disputers to rely on the fact that he/she were absent in the finally decision and therefore he/she is not binding by the decision of the customary arbitration. See in section 109 of ADR Act 2010 (Effect of customary award) which provided that; An award in a customary arbitration, (a) is binding between the parties and a person claiming through and under them; and (b) need not be registered in a court to be binding.

The statement of problem
In most of our communities, most of the customary arbitrators is the chiefs, elders, Imams and Pastors. Indeed, customary arbitration is good because it helps to solve disputes in our community easy and faster than that of Court system in Ghana. My legal research has shown that most of the disputes in the Northern Region is being solved by Customary arbitration but not in a proper way but the other way around.

1. Criminal cases been solving by Customary arbitration,
2. Breach of the dispute’s parties Natural Justices
3. Bribery and corruption which led to miscarriage of Justice.

For instance, someone stole a goat in a particular community and the matter is been solved by the Chief and his elders as customary arbitration which is a criminal matter and the Chief and his elders lacks jurisdiction to determine the matter. See in GYM v. INSAIDOO ^{[ [7] ]}; it was established that “customary arbitration has no jurisdiction in criminal matters” the finding of the arbitration that the plaintiff had stolen the money was ultra vires. In section 89 (2) (a), (b) and (3) of ADR Act 2010 which provided; (2) Except otherwise ordered by a court and subject to any other enactment in force, a person shall not (a) submit a criminal matter for customary arbitration; or (b) serve as an arbitrator in a criminal matter. (3) A person who contravenes subsection (2) commits an offence and is liable on summary conviction to a fine not exceeding two hundred and fifty penalty units or a term of imprisonment not exceeding twelve months or to both. (4) A conviction of a person under subsection (3) is not a bar to prosecution for an offence under the Criminal Offences Act, 1960 (Act 29) to which that person is liable in respect of the matter submitted for customary arbitration.

My legal research has shown how peoples natural justice has been ignore by the Chiefs and Elders such as Imams and Pastors as customary arbitrator. See in 2021, I witness one dispute which has been solved by the Customary arbitration, it was by an attack of a robbery case and it was sent by the robbers to the Chiefs Palace and the other dispute part also report the matter to the police. Now the Chief sent his secretary to the police station that the matter is already reported to him as a chief in the community therefore the crime officer should bring the other party to his palace so that he can decide on the matter. Afterwards the crime officer sent the other dispute part to the palace, the chief and his elders denied him to even say his side of the facts or case and they said and I quote “ are you a member of this community asked by the elders , if you are why do you report the matter to the police ?” base on this they rule against him. Which constitutes a breach of his natural Justice and they lacked jurisdiction to even hear the matter in the first place.

Again, it was the time of Damba celebration in the North and the Chief by Customary law is not allow to come out for some days. Indeed, a matter of stolen motor bike by the thief run to his palace and submitted the matter before him. The chief invited the other party and he came to the palace with a police officers, the elders were now to determine the matter by saying that it wasn’t a stealing but rather the owner of the motor bike is owing the thief. They finally took the motor bike from the owner demanding a sum of money claiming to repay the debtor. Not knowing the thief briber, the elders which led to finally determination of the matter. The owner of the motor bike seeks for my advice and I told him we should go and meet the chief personally. We meet the Chief and I told him we are not satisfied with the out outcome of the matter and we want to plead him so that we can take the matter to Court and he called his Wulana (Next to the chief) and asked him what really happened and he couldn’t alter any word the chief gave the motor bike to us and said we should forgive his elders and this proved the bribery and corruption that happened in the process of customary arbitration.

Thank you for reading and I am available for further interactions and your legal contributions

THANK YOU FOR READING
WRITER: DAHAMANI MOHAMMED
KINGS UNIVERSITY COLLEGE, FACULTY OF LAW

LEVEL 400
TEL: 0551003466
Gmail: dahamanimohammed1@gmail.com

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