Attendance before a chief or elder on a complaint as evidence of submission
In respect of arbitration proceedings originating in a complaint lodged by one party to a chief, elder, or other person, against another party, which may be claimed to be a valid customary arbitration, there is this warning that when a party attends before a chief, elder, or other person because of a complaint made against him, it is difficult to draw the line between his attendance with the intention merely to explain himself or of giving his version of the dispute, on the one hand; and his attendance with the intention of submitting himself to the investigation of the dispute and the giving of a decision upon it by the chief, elder, or other person, on the other hand. An attendance consequent upon an invitation resulting from the lodging of a complaint against a party is undoubtedly an act or conduct which is equivocal and susceptible of two interpretations, more often than not of the interpretation that the party attended to hear the complaint and explain himself only.
Where therefore the attendance is in consequence of an invitation following a complaint, it is essential that the evidence should show clearly and distinctly that a proposal to arbitrate the dispute was put forward, and more important, that both parties voluntarily and in no uncertain terms expressed their agreement to the proposal.
The burden of proof when an arbitration is alleged is upon the party who relies upon the plea that a proper arbitration has been held and therefore the other party is estopped from re-litigating the matter.
Essential characteristics of a valid customary arbitration
“in customary law there are five essential characteristics of an arbitration, as opposed to negotiations for a settlement, viz (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.”
The law is now too clearly settled to admit of any dispute or doubt that the only solid foundation of a valid customary arbitration and binding award is the voluntary submission by the disputants, however much they may be quarrelling, of their dispute to a relatively disinterested third party to make a fair investigation into it and give a decision on it for them
Request to a chief or elder distinguished from submission to arbitration
This kind of proceeding by which one party requests a chief or an elder to send other persons to settle a dispute has been held in numerous cases in this court not to be a voluntary submission by both parties of a dispute to an arbitration, but at best it may, according to native customary practice, be regarded as negotiation for a settlement.
Weight of the evidence of a Tindana on a customary hearing
The mere fact that the “Tindana in the frafra custom is the proper person to resolve land issues that arise in his jurisdiction” does not make his evidence sacrosanct and is not sufficient to discharge the required burden of proof. It has been stated ad nauseaum in several cases that an appellate court should be slow to substitute its findings with those of the trial court and that such must only be done in clearly stated circumstances.
Whether an admission at a customary hearing binds a person not shown to be a party
It is admitted that PW1 stated in answer to a question in cross examination that plaintiff was present at the arbitration meeting. It has to be noted however that even if Abeebange’s brother (PW1) had considered his late brothers alleged admission that would not automatically bind the plaintiff unless it was proven that this was a valid customary arbitration whose outcome would bind him. Plaintiff position (whether he was present or not) is that he never accepted and does not accept that 1st defendant family owns the disputed land. Seeing that the court of appeal did not make a definite pronouncement on whether or not the said meeting was a valid customary arbitration, then the plaintiff cannot be bound by what took place there, without evidence proving that Abeebange was his representative or connected to him in a legal capacity such that he, plaintiff would be bound by his actions at the arbitration and decisions taken there.
