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June 2, 1972
HIGH COURT
GHANA
CORAM
JUDGMENT OF EDUSEI J.
The plaintiff sued the defendant in the District Court Grade II, Nkroful, to assign reasons for recklessly swearing the oath "Ehanu" against him. On the failure to assign good reasons for so doing the plaintiff claimed from the defendant "the sum of N¢200.00 damages for obstructing and depriving the plaintiff of his livelihood on (his) plaintiff's farm."
The case first came before the trial court on 26 February 1970, and it was adjourned to 11 March 1970. It was again adjourned to 25 March 1970. On 25 March 1970, it was further adjourned at the instance of both parties to 22 April 1970, and the order of the court was as follows: "Case is adjourned sine die pending settlement out of court."
On 8 July 1970, the solicitor for the plaintiff filed a motion under Order 52, r. 14 of Schedule II to the Courts Ordinance, Cap. 4 (1951 Rev.), praying for "an order that the arbitrators' report be adopted, and judgment given to the plaintiff." The defendant filed an affidavit opposing the motion and paragraph 6 of the affidavit reads as follows: "That I never at any time agreed to be bound by any other decision of the chiefs except to effect a settlement between plaintiff and defendant." It is evident from the record of the proceedings that the parties appeared before arbitrators and the proceedings of the arbitrators which have been incorporated in the record, are entitled as follows:
"Settlement of suit No. 50/70 by arbitrators from Esiama, Kikam and Asanta as requested by his lordship Mr. J. E. Ekuban, District Magistrate Grade II, Axim, on 5 May 1970."
The reference of a case pending in a district court to arbitrators is governed by Order 52, and rules 1, 2 and 3 of that Order are of some significance in this appeal; they are as follows:
“1. If the parties to a suit are desirous that the matters in difference between them in the suit or any of such matters should be referred to the final decision of one or more arbitrator or arbitrators, they may apply to the Court at any time before final judgment for an order of reference; and the Court may, on such application, make an order of reference accordingly.
2. The arbitrators shall be nominated by the parties in such manner as may be agreed upon between them. If the parties cannot agree with respect to the nomination of the arbitrators, [p.303] or if the persons nominated by them shall refuse to accept the arbitration, and the parties are desirous that the nomination shall be made by the
AI Generated Summary
In the District Court Grade II at Nkroful, the plaintiff sued the defendant over the reckless swearing of the traditional "Ehanu" oath and, failing justification, sought N¢200 in damages for obstructing his livelihood on his farm. The matter was repeatedly adjourned and ultimately adjourned sine die for out-of-court settlement. Although the parties later appeared before arbitrators from Esiama, Kikam, and Asanta at the request of District Magistrate J. E. Ekuban, no sealed court order of reference or party nomination of arbitrators was made. The plaintiff moved under Order 52, r. 14 to adopt the arbitrators’ report; the defendant opposed, stating he had not agreed to be bound beyond settlement. On appeal, Edusei J. held that the district court lacked jurisdiction because the mandatory prerequisites in Order 52, rr. 1–3 were not met, rejected counsel T. A. Mensah’s analogy to Order 70 of the Supreme [High] Court Rules, cited Timitimi v. Amabebe, declared the award void, allowed the appeal, and ordered a trial de novo with costs.