TANOR v. DAPOMAH
1960
HIGH COURT
GHANA
CORAM
- ADUMUA-BOSSMAN, J
Areas of Law
- Alternative dispute resolution
- Evidence Law
- Civil Procedure
- Property and Real Estate Law
1960
HIGH COURT
GHANA
CORAM
AI Generated Summary
The trial court originally ruled in favor of the plaintiff, finding the customary arbitration invalid due to lack of mutual consent and principles of natural justice. The defendant's appeal succeeded in the native appeal court, which was then overturned by the higher court upon further appeal. The higher court restored the trial court's decision, emphasizing the invalidity of the arbitration and the sufficiency of the plaintiff's evidence regarding the land gift.
JUDGMENT OF ADUMUA-BOSSMAN J.
(His lordship referred to the history of the case, and on the issue whether or not there had been a valid customary arbitration continued):
Firstly, we find that it is not one of those cases in which parties to a dispute, even if through or by means of the intervention or persuasion of some third party or parties, in the ultimate result have themselves proprio motu (of their own accord or volition) not only agreed to refer their dispute to a person or persons agreed on by them to investigate the merits thereof fairly and impartially from their respective points of view and give a decision thereon, but also undertaken to abide by or accept the decision. Rather we find, in this case, one party complaining of the other to the Ohene or chief of the town, the other attending at the chief's and the matter was said to have been investigated and a decision given against the party complained against. The evidence on record is not clear as to what exactly happened after the complaint had been made to the Nkawkawhene, i.e., as to how the plaintiff was informed and how he was made to attend before the chief. Normally the chief would send his messenger to notify him that complaint had been made against him and that he would like to see him at such and such a time concerning the complaint. But all too often a chief or elder to whom complaint against another is made, having heard of general representations as to unfair and unjust treatment of the complainant by the person complained against, all too quickly reacts by way of surrendering his mind and spirit to the insidious and subtle influence and bias of the complainant, and makes himself the self-appointed champion of the complainant to right the wrongs alleged or supposed to have been done to the complainant by the person complained against. At any rate, it certainly cannot be desirable that a person who will have in due course to investigate a dispute between two parties, should prior to the appearance of both parties to present their respective cases before him, meet with one party and hear him beforehand by way of complaint against the other. There is, therefore, that undesirable feature about an arbitration originating in a complaint by one party against the other to a chief, elder, or person who himself ultimately undertakes the investigation and decision of the dispute between the parties. There is also the feature that when a party attends before a chief, elder, or person because