SOAS Research Online

Abstract

Customary arbitration, as the name suggests, is arbitration held in accordance with customary law or usage. It is distinguishable from arbitration regulated by statute law. It is akin to the English Common Law arbitration; but it differs from it in the sense that whereas the common law arbitration is founded on the principle of contract, that is to say, on a formal agreement between the parties in which they stipulate that the award should be final and binding, customary arbitration has no such contractual foundations. Some suggestions have been made to the effect that beyond a certain point in their progress customary arbitral proceedings become obligatory and binding as a result of an inferred agreement on the part of the parties. The present writer does not subscribe to that theory. It is his contention that this basic assumption is false and that all the other derivatives and subsidiary principles based on it are equally false. In Ghana' there are 2 main types of arbitration obtaining and running parallel. There are: (1) Customary Arbitration (the subject-matter of this enquiry), and (2) The English-type of arbitration: (a) Arbitration under the Arbitration Acts and arbitrations set in motion by reference by the High Court, and (b) English Common Law Arbitration. The principles of these two different concepts have been confused in their application and this has, in the view of the present writer, often caused hardship and injustice. Since the procedure of customary arbitration is a very useful adjunct to the administration of justice through the ordinary courts of law, it is the aim of this monograph to investigate and sort out these principles and help bring sanity to the otherwise chaotic situation brought about by this confusion. Beside the Introduction (which states the problems) and the conclusion, the work is divided into 5 parts. PART I deals with the judicial system of Ghana and the place of customary arbitration in it. PART II defines the subject. It deals with the nature of customary arbitration. Chap.3 traces the origin of the term 'arbitration', describes the arbitral forum and distinguishes it from the erstwhile native court. It also defines the concept by differentiating it from negotiations for settlement and shows that it is the process of settlement out of court by the method of adjudication. PART III further analyses the concept by comparison with other institutions. Chapter distinguishes it from the English-type of arbitration. Chapter 5 contrasts customary arbitration and its methods with the native court and its procedures. Chapter 6 contrasts customary arbitration with Family Meeting which in some respects has some common characteristics with it. PART IV deals with the general judicial approach to the concept. Chapter 7 deals with the so-called essentials of customary arbitration. Chapters 8, 9, 10 and 11 take and examine those essentials individually. PART V deals with the judicial approach to specific problems. Chapter 12 tries to answer the question as to whether the decision of the customary arbitrator is a res judicata. Chapter 13 deals with the problem as to whether the decision is legally binding under the customary law. Chapter 14. discusses the vexed question as to whether a party to customary arbitration can ever resile once he has embarked on the proceedings. Chapter 15 discusses the question of enforceability of the award of the customary arbitrator. Chapter I6 is the conclusion. In it answers are provided for two important questions (1) whether in view of the arguments put forward there is need for the procedure of customary arbitration and (2) whether customary arbitration is to be regulated by legislation. The Method of Approach In this effort the present writer has done original research by travelling extensively in Ghana to find out from the indigenous people what the true custom is; by reading all the modem cases on the subject which are reported and those unreported but available in the records of the courts; by going through the earlier court records that can be found in the National Archives in Ghana; by reading through any other material bearing on the subject that could be found in libraries and archives in London. The court records read cover the early period of the Judicial Assessors (i.e., the period before the establishment of the Supreme Court) and, also, the period after the setting up of the Supreme Court, extending from 1876 to the present. On the purely theoretical aspects, the writer has consulted the writings of various learned writers on law - especially the works of writers on African law.