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COMMON LAW

According to Simpson, the Common Law began as the customary law used in the court of King when the court
was settling disputes which were thought to concern the monarch. Its history is traced to 1066 when the
Normans under William I defeated the Anglo-Saxons in the Battle of Hastings leading to the gradual domination
of the whole of the British Isles in the following years. William I set up the feudal system with the King as the
supreme feudal overlord; subjects title to land was traceable to him and he set up a tax system to ensure
payments to the royal treasury. There was increasing intervention by the central royal administration in civil and
criminal law and in order to keep the peace, the King took exclusive jurisdiction over all serious crimes; the
fines and confiscations proving a significant new source of income. This special jurisdiction developed over the
12th and 13th century into a general jurisdiction of wide coverage leading to the development of the Kings
Court, Court of Common Pleas and Court of Exchequer. The King sent travelling justices into the provinces
with increasing frequency where they replaced the sheriffs and held court in the name of the King. When the
justices went on circuit, they applied uniform laws and this led to a unified law which was termed the common
law.

Litigation was founded on writs, a command of the King instructing the addressee to call the defendant into his
court and to resolve the dispute in the presence of the parties. Writs were issued in the name of the King by the
highest royal officials on payment of a fee by the plaintiff, without hearing the defendant. Since most of the
complaints were substantially similar, the text of the individual writs very soon became standardised with only
the name and address of the parties having to be filled in. These writs became known as forms of actions.
Towards the end of the 12th century, there were about 75 established types of writ. This grew considerably
between the 13th and 14th centuries. If the wrong writ (or form of action) was used in a case, the complaint
would be dismissed but this was very inconvenient because each set of facts had its own writ and rules of
procedure and this made the distinctions become increasing complex. The Chancellor allowed actions on the
case for situations where the writ and the procedure set out in it was inadequate.

EQUITY

Nature of Equity

Its practically equivalent to natural justice or morality but not co-extensive to natural justice because the rules
of natural justice are rules of common law, statute and some ecclesiastical and other sources. Only a small
fraction of the whole can be said to be rules of equity in the technical sense.

Equity is a body of rules or principles which form an appendage to the general rules of law or a gloss upon
them. Generally, rules are formulated to ensure the smooth running of society. However, there are occasions
when the general rules produce substantial unfairness. When this occurs, justice requires an amendment of the
rules or, if the rules cant be easily changed, a body of rules to mitigate the severity of the existing rules. This
new body is referred to as equity and is distinguishable from the general body of law because it appears at a later
stage of legal development. Equity does not destroy the law or create it, but assists it.

Although equity intervenes to put right an injustice, it is not every injustice which can have an equitable
intervention. Thus, it is not possible to define equity solely in terms of natural justice.

There is both a narrow and a broad definition.

History of Equity

The common law grew rapidly from period of the Norman Conquest to the reign of Henry III in the 13th century.
It was administered by the Kings justices on circuit and in the 3 common law courts of Kings Bench, Common
Pleas and Exchequer. With the advancement of the writ system and precedent, it became difficult for the
Chancellor to issue new types of writs. Thus, justice was not being done in all cases. A plaintiff may not obtain
a remedy in the common law court, even when the court should have one for him, because of the strength of the
defendant who would defy the court or intimidate the jury. Deficiency of remedy or failure to administer it was
good grounds to petition the King in Council to exercise extraordinary judicial powers. The Chancellor then
gave orders, known as decrees, which provided petitioners with a remedy when the common law did not do so.
Over time, a custom developed of referring certain classes of these petitions to the Chancellor and this was
confirmed by an Order of Edward III in 1349. The Chancellor acted at first in the name of the King in Council,

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but in 1474, a decree was made on his own authority, so that, there came to be a Court of Chancery as an
institution independent of the King and his Council.

The Chancellors jurisdiction was undefined. His powers were wide but vague and coextensive only with the
necessity that evoked them. He exercised his powers on the ground of conscience; an importation of Canon
Law. Conscience was based on universal and natural justice rather than the private opinion or conscience of the
Chancellor.

When England was under the reign of the Tudors, existing doctrines were consolidated under the guidance on
non-clerical Chancellors. These Chancellors were drawn from the ranks of common lawyers which led to the
construction of a body of precedents. The same principles started getting applied instead of following the
inclination of applying conscience [Lord Ellesmere: 1596 -1617]. Lord Nottingham [1673-1682] was named the
Father of Equity because it was under his Chancellorship that rules of equity were systematised. The
systematisation continued under subsequent chancellors esp Lord Hardwicke and Lord Eldon. The Court of
Chancery became more organised. The Master of the Rolls began to assist the Chancellor and by the 17th
Century came to be the Chancellors deputy general.

Gradually, the rules of equity itself became rigid and stereotyped due to systematisation. By the time Lord Eldon
retired, the rules of equity were as fixed as those of common law.

The distinct courts of common law and equity created inconveniences and mischief since both courts sometimes
proceeded on diverse and sometimes antagonistic principles. Some litigation parties were driven to and from btn
courts of common law and equity as neither had full power to grant complete relief. The common law courts
could not order specific performance and only a very ltd pwr of granting injunctions. The court of Chancery
could not give damages. By the Judicature Acts of 1873 and 1875, the superior courts were amalgamated into
one superior court of judicature. The Courts of Queens Bench, Exchequer, Common Please and the Court of
Chancery were all replaced by the Supreme Court consisting the Court of Appeal and the High Court with five
(later 3) divisions and the Supreme Court was directed to administer both law and equity. The rules of equity
remained distinct from those of law but they were to be administered in the same courts.

Purpose of Equity

- It enforced rights the common law courts failed to enforce (exclusive jurisdiction)
- It developed a wide range of remedies for the enforcement of common law rights which were available
in addition to the remedies provided by the common law including specific performance of a contract,
injunction to restrain or stay the repetition of an injury, the appointment of a receiver to prevent a
defendant from destroying or parting with property during the interval btn the institution of
proceedings and the trial of the action or an order for account (concurrent jurisdiction)
- Common law court procedure was defective because it did not allow a defendant to give evidence and
it ltd the enquiry to the parties to the action, however great an interest another person may have in the
action. such persons could be added as parties to proceedings in the Court of Chancery (auxiliary
jurisdiction)

Conflicts btn Law and Equity

- Certain rules of equity contradicted rather than complemented the rules of law and where this occurred,
section 25 of the Judicature Act 1873 provided that equity should prevail
- It is only on matters of principle that equity prevailed and not of practice

12 Maxims of Equity

1. Equity will not suffer a wrong to be without a remedy no wrong shall be allowed to go unredressed if its
capable of being remedied by courts of justice e.g. enforcement of trusts
2. Equity follows the law it was only when there was some important circumstance disregarded by the
common law that rules of equity interferes
3. Where the is equal equity, the law shall prevail
4. Where the equities are equal, the fist in time shall prevail
5. He who seeks equity must do equity
6. He who comes to equity must come with clean hands
7. Delay defeats equity
8. Equality is equity

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9. Equity looks to the intent rather than to the form

10. Equity looks on that as done which ought to be done
11. Equity imputes an intention to fulfil an obligation
12. Equity acts in personam

Common Law Equity

Principles of English law which evolved in the
common law courts
Origins traced to 1066 after the Norman Conquest
Could only award damages
Based on the writ system
In case of conflict, it is subservient to equity
Principles which were applied in the courts of
Chancery, Admiralty and the Ecclesiastical Courts
Origins traced to towards the end of the 14th Century
Could only award specific performance, injunctions
and give orders for account
Based on justice, conscience and reason
In case of conflict, equity prevails
Has exclusive jurisdiction in the enforcement of trusts
and protection of mortgagors

LEGAL TRADITIONS

A legal tradition is an aspect of general culture and needs to be distinguished from a national legal system
which is the body of rules in operation in a particular society at a given time, together with the institutions
which go with them (Simpson)
A legal tradition is a set of deeply rooted, historically conditioned attitudes about the nature of law, the role
of law in the society, about the proper organisation and operation of a legal system and about the way law is
made or should be made, applied, studied, perfected and taught (Merryman)
The legal tradition puts the legal system into cultural perspective (Merryman)
Several legal traditions may co-exist within the same state (David & Brierly)
Legal traditions involve the grouping together of particular legal systems which make use of the same basic
ideas, and thus share some degree of cultural homogeneity (Simpson)

LEGAL SYSTEM

According to Simpson, a legal system is the body of rules in operation in a particular society at a given time
together with institutions which go with them.

Merryman on the other hand describes a legal system as an operating set of legal institutions, procedures
and rules.

The description of a legal system given by David & Brierley is all those branches of law which in any
given country combine to form its national law.

From the above descriptions of a legal system, the following features may be distinguished it is the
property of a territorial state; its primary actor is a state or country; each legal system is inherently different
from another; it is characterised by rules; and is the result of the interactions of institutions of state or
political organisations.

The first characteristic of a legal system is that it is the property of a territorial state. This is supported in
both Simpson and David & Brierleys descriptions of a legal system. Since a legal system is confined
within a territorial boundary, its primary actor is the state. Each state or country in the world therefore has
its own legal system. Hence, the number of legal systems in the world is as many as the number of
countries.

Although the state is the primary actor in a legal system, a political organisation, which is made up of
several states, may also be an actor in a legal system. The European Union for instance has a legal system
with its own body of rules, procedures, processes and institutions which may sometimes be different from
the legal systems of some of its member states.

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Consequent to the above is the fact that each legal system is inherently different from the other. A countrys
legal system is shaped by its history and reflects the ideals of its people and no two states can purport to
have the same legal system even if they belong to the same legal family. For instance, the English legal
system which belongs to the common law tradition is guided by the events which led to the promulgation of
the Bill of Rights of 1688 where the English people sought to limit the powers of the monarch; the head of
government business is the Prime Minister, a member of parliament. Ghana, another common law country
operates the presidential system although at some point in its history it operated the parliamentary system of
government.

In addition, a legal system is governed by a set of laws, rules, procedures, and usages which lay down how
the legal system should function. These may include provisions for making laws, changing governments,
how state power is shared and even the protocols to be accorded to a visiting Head of State of another
country. David & Brierley limit the scope of a legal system in their description by focusing only on the
branches of law operating in a country as its main feature. Simpsons body of rules is however more
flexible since it considers other non-law based principles to govern the legal system.

A legal system is also the result of the interactions among institutions within the state or political
organisation. Generally most legal systems have an executive, judiciary and legislature but their power may
be different from state to state. The British operate the parliamentary system where parliament appears to
wield the most state power as it makes the laws of the state and also controls its administration. In France
however, the president seems to have the most political power because he has both an executive function
and a legislative function. Ghana on the other hand shares state power between the judiciary, executive and
parliament. These interactions birth the laws, rules, procedures and usages which guide the principles by
which the legal system is run.

Finally, a legal system may have different legal traditions existing side-by-side at any particular time.
Article 11 of the 1992 Constitution of Ghana, which sets out the sources of law for the country include both
common law and customary (or African) law as sources of law. Parts of Nigeria are governed by the
Islamic law tradition although the country is a common law country.

From the analysis above, a legal system may be described as a set of institutions, rules, processes,
procedures, and usages which operates in a particular state or political organisation. Its features include
being confined to a territorial boundary, having a state as its primary unit although it may include political
organisations, being inherently different from state to state, being guided by a set of rules, processes,
procedures and usages, being the result of the interactions among institutions within the state, and finally
having different legal traditions existing side-by-side.

Legal System Legal Tradition

There are as many legal systems in the world as there There are 3 major legal traditions in the world civil
are countries [Merryman] law, common law, socialist law [Merryman]
A legal system may have more than one legal tradition
operating within it at the same time i.e. legal pluralism
[David & Brierly]
Each country has its own legal system
Legal systems may belong to other units of political
organisations [Simpson]
It is confined to a territorial boundary or state-centred It is not confined to a territorial boundary
[Simpson]
It involves all the branches of law, the legal It involves grouping together particular legal systems
procedures, rules, usages in a legal system which make use of the same basic ideas thus cultural
homogeneity [Simpson]

Civil Law Tradition

It is derived from the Latin term jus civile, the law applicable to all Roman Citizens. The Civil law tradition is
the dominant tradition in the world and it covers the whole of Western Europe, all of Central and South
America, all of Eastern and Southern Europe, and significant parts of Asia and Africa. International law and the
laws regulating international organisations have also been largely influenced by the civil law tradition. The
dominance of the civil law tradition may largely be due to the fact that it is the oldest legal tradition in the

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world. According to Merryman, its origins can be traced to the publication of the Twelve Tables in Rome in 450
BC.

Simpson set out the history of the civil law tradition as follows. Around the end of the third century, the Romans
developed a sophisticated body of private law which dealt with the relationship between citizens. This body of
laws were developed by jurists who were typically wealthy patrician individuals who acted as legal consultants
and wrote books about the law, not in return for money, but simply to acquire honour and prestige in a society
which revered the law. By the sixth century, there was a huge body of laws and juristic opinions which gave rise
to difficulties in locating the law. Emperor Justinian of Rome therefore established a commission, led by the
jurist Tribonian, to codify all the laws which were found in the massive body of surviving juristic writings. By
534 AD, the Corpus Juris Civilis (or the compendium of Civil Law), a collection of statutes (called codex)
which comprised a digest (a collection of juristic law sorted out into topics) and a book of Institutes (an official
first year comprehensive textbook on private law for students in the law schools of Byzantium and Beirut) was
published. Per Merryman, the codification exercise by Justinian sought to abolish all prior law except those
included in the Corpus Juris Civilis. As such, most of the manuscripts of the jurists of the classical era were
destroyed. The first three books of the Institutes of Justinian were of Persons, of Things and of Obligations.

According to Merryman, the civil law tradition is a composite of several distinct sub-traditions with separate
origins and developments in different periods of history. Of these sub-traditions, the major influences were
Roman civil law, canon law and commercial law.

With the fall of the Roman Empire, Roman Civil law as espoused in the Corpus Juris Civilis fell into disuse.
However, in the twelfth century, during the Renaissance period in Italy, an intellectual and scholarly interest in
law reappeared and the first modern European Universities started teaching law based on the Corpus Juris
Civilis of Justinian. The Corpus Juris Civilis was popular because the people believed that it had the authority of
both the pope and the temporal emperor behind it. Also, the people recognised its high intellectual quality.
Within a short time, men from all over Europe came to Italy to study the Corpus Juris Civilis which was taught
in Latin. They returned to their nations and established universities where they also taught the Corpus Juris
Civilis and these became the basis of a common law of Europe known as the jus commune. The jus commune
gave Europeans a common body of law and of writing about law, a common legal language and a common
method of teaching and scholarship. Even in some parts of Europe, the Roman civil law was formally received
as binding law. The process by which nation-states of the civil law world came to include the jus commune in
their national legal systems was known as the Reception.

The second oldest component of the civil law, as set out by Merrymann, is the canon law of the Roman Catholic
Church. The canon law was developed by the church for its own governance and to regulate the rights and
obligations of Catholics. The ecclesiastical courts were developed for the application of canon laws. The study
of canon law was joined to the study of Roman Civil law or Corpus Juris Civilis in the European universities
and both laws contributed to the formation of the jus commune. The canon law influence was mainly in the
areas of family law and succession, criminal law and the law of procedure.

The third sub-tradition is commercial law which Merryman traced to established rules for the conduct of the
commercial affairs of Italian merchant guilds. It was the pragmatic creation of practical men engaged in
commerce, as such, interpretation and application went on in commercial courts which had merchants as judges.
The laws of the guilds soon took on an international quality and it penetrated throughout the commercial world
in Europe.

These three sub-traditions described above have shaped and influenced the Civil law tradition and are embodied
in the five basic codes usually found in civil law jurisdictions namely the civil code, the commercial code, the
civil procedure code, the penal code and the criminal procedure code.

The Civil law tradition is clearly distinct from other traditions. Its features include codification of all laws, dual
court systems, principle-based decisions; use of juries in only particular instances; specific training for judges;
and specialisation of lawyers.

The first distinguishing feature of the civil law tradition is that all the statues have been codified into the five (5)
codes namely: Civil Code, Commercial Code, Criminal Procedure Code, Penal Code, and Civil Procedure Code.
Every law in a civil law tradition can as such be found in one of the codes listed above.

Secondly, legal systems in the Civil law tradition have dual court systems which are made up of administrative
courts and regular courts. The administrative courts deal with administrative matters while the regular courts

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deal with all the other matters excluding administrative matters. They may also have a conflicts court which
determines if a matter should be referred to a regular court or an administrative court.

In addition, the decisions of courts in the civil law tradition are based on principles. Judges therefore make their
decisions based on existing principles espoused in the law codes unlike their counterparts in the Common law
tradition who base their decisions on precedents.

With respect to the use of juries or assessors, the Civil law tradition only makes use of juries in deciding serious
criminal matters. With any other matter, judgment is by the judges only.

Another distinct feature of the civil law tradition is that judges are trained specifically to become judges unlike
in the Common law tradition where judges are typically trained as lawyers.

Finally, lawyers in the civil law tradition are specialists. That is to say they are trained in a particular area of law
and are not generalists like lawyers in the Common Law Tradition. Hence, a lawyer trained in family law in the
civil law tradition cannot act as a commercial lawyer as he has no training whatsoever in that field.

Common Law Tradition Civil Law Tradition

Uncodified; no comprehensive compilation of legal
rules and statutes
Based on judicial precedent
Single court system
It is an adversarial system; a contest between two
opposing parties before a judge who moderates
A jury of ordinary people without legal training decide
on questions of fact
The judge determines the appropriate sentence based
on the jurys verdict
Judges are trained as lawyers and appointed to the
various courts
Lawyers are typically trained as generalists
Codified; there are comprehensive legal codes that
specify all matters capable of being brought before a
court, applicable procedure and the appropriate
punishment for each offence
Based on existing principles set out in the codes
Dual court system
Its inquisitorial. The judge often brings the formal
charges, investigates the matter and decides on the
cases based on the framework provided by the codes
The judge establishes the facts of the case. Juries may
be used only in criminal cases
The judge applies the provisions of the applicable
codes in terms of passing sentence
Judges receive specific training as judges
All lawyers are specialists

GHANAS LEGAL SYSTEM

Its predominantly based on common law but it has elements of African law tradition and religion-based
traditions
It has civil and criminal jurisdictions. The civil jurisdiction deal with private matters i.e. disagreements
between individuals. The criminal jurisdiction deals with behaviours which affect the society as a whole
Ghana has a single court system which is hierarchically structured i.e. SC, AC, HC which make up the
superior court of judicature and the Circuit Courts and Magistrate Courts which make up the inferior courts
Sources of law are constitutive instruments, legislative instruments, case law, common law, customary law,
books

SOURCES OF LAW IN GHANA

- Article 11, 1992 Constitution

o The Constitution
o Enactments made by or under the authority of parliament
o Any orders, rules and regulations made by any person or authority under a power conferred by this
constitution
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o The existing law [written and unwritten laws of Ghana that existed immediately before the coming into
force of this Constitution, any decree, law or statutory instrument issued or made before that date or
after it]
o The common law [rules of law generally known as the common law, doctrines of equity and the rules
of customary law including judicial precedents]

- Article 37 (2) and (3) [international human rights instruments]

o The state shall enact appropriate laws to assure effective participation in the devt process including
rights of people to form their own associations and rights of access to state agencies and officials to
ensure effective participation in the devt process; protection and promotion of all other basic human
rights and freedoms incl rights of the disabled, aged, children and other vulnerable group in the devt
process
o In the discharge of its obligations stated in clause 2, the state shall be guided by international human
rights instruments which recognise and apply particular categories of basic human rights to devt
processes.

- Article 40 (particularly c and d), 1992 Constitution [international treaties and organisations rules]
o Promote respect for international law, treaty obligations and the settlement of international disputes by
peaceful means
o Adhere to the principles enshrined in or as the case may be, the aims and ideals of the Charter of the
UN, the Charter of the OAU, the Commonwealth, the Treaty of ECOWAS, and any other intl
organisations of which Ghana is a member

- Article 73, 1992 Constitution [principles of PIL and diplomacy]

The govt shall conduct its international affairs in consonance with the accepted principles of public
international law and diplomacy in a manner consistent with the national interest of Ghana

- Article 75, 1992 Constitution [ratified international agreements]

o The president may execute or cause to be executed treaties, agreements or conventions in the name of
Ghana
o A treaty, agreement, or convention executed by or under the authority of the President shall be subject
to ratification by act of parliament or a resolution of parliament supported by the votes of more than
of all the members of parliament

- Section 54(1) rule 1 of the Courts Act, 1993 (Act 459) issues arising out of a transaction shall be
determined according to the system of law intended or taken to be intended by the parties to the transaction
to govern the issue

- Section 54(1) rule 2 of the Courts Act, 1993 (Act 459) in the absence of any intention to the contrary,
the law applicable to any issue arising out of the devolution of a persons estate shall be the personal law of
that person [Youhana v Abboud/ Whittaker v Choiteram]

- Section 55(2)(5) of the Courts Act, 1993 (Act 459)

o If there is doubt as to the existence of the content of a rule of customary law relevant to any
proceedings before a court, the court may adjourn the proceedings to enable an inquiry to be made
under subsection 3 after the court has considered submissions made by or on behalf of the parties and
after the court has considered submissions made by or on behalf of the parties and after the court has
considered reported cases, textbooks and other sources that may be appropriate to the proceedings
o The court may request a House of Chiefs, Divisional or Traditional Council or other body with
knowledge of the customary law in question to state its opinion which may be laid before the inquiry in
written form

- Section 119(1) of the Courts Act, 1993 (Act 459)

o Until provision is made by law in Ghana, the statutes of England specified in the 2nd schedule to this
Act shall continue to apply in Ghana as statutes of general application subject to any statute in Ghana
o Partitions Act, Prescription Act, Libel Act, Trustee Act, Charitable Trusts Act

Internal Conflict of Laws

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Where there is a conflict between two different types of laws, the later statute prevails
In cases of conflict btn statute and the other main classes of sources, namely common law, customary law,
statute prevails
Where there is conflict btn different sources of law within the common law, English statutes will take
precedence over common law in the narrow sense and equity; while rules of equity will prevail over the
rules of common law
Where there is a conflict between common law and customary law, the courts will look at the following;
o The applicable law which the parties intended to regulate the matter
o The personal law of the central party or parties [the particular system of law with which the person
was principally associated]

CUSTOMARY LAW

According to section 18(1) of the Interpretation Act, 1960 (CA 4), customary law, as comprised in the laws
of Ghana, consists of rules of law which by custom are applicable to particular communities in Ghana, not
being rules included in the common law under any enactment providing for the assimilation of such rules of
customary law as are suitable to general application.
The two types of customary law communities in Ghana are matrilineal and patrilineal communities
In 1876 when Ghana was colonised, the British passed the Supreme Court Ordinance of 1876 where in
section 87 it stated that in the adjudication of cases, the colonial judges had to have regard to local custom
and usage. During the mercantile period, Capt. McClean used judicial assessors to adjudicate cases outside
the forts and castles. This was regularised in 1876 by the SC Ordinance.
A rule of customary law has to be proved in the first instance by calling witnesses acquainted with the
native customs until the particular customs have, by frequent proof in the courts, become so notorious that
the courts take judicial notice of them (Angu v Attah). Initial proof may involve statements by experts.
Thus superior courts may sit with expert assessors or refer questions of customary law to expert referees or
native courts. Courts may also rely on previous decisions of a superior court as evidence of customary law.
The courts are bound not to adopt as customary law any rule or principle which is contrary to statute or to
overriding policy i.e. rules repugnant to natural justice, equity and good conscience.
Provisions governing customary law enshrined in Section 55 of Courts Act 1993 (act 459)
1. Any question as to existence or content of a rule of customary law is a question of law for the court
and not a question of fact.
2. If there is doubt as to the existence or content of a rule of customary law relevant in any
proceedings before a court, the court may adjourn the proceedings to enable an inquiry to be made
under subsection (3) of this section after the court has considered submissions made by or on
behalf of the parties and after the court has considered reported cases, textbooks and other sources
that may be appropriate to the proceedings.
3. The inquiry shall be held as part of the proceedings in such manner as the court considers
expedient, and the provisions of this Act relating to the attendance and testimony of witnesses shall
apply with such modifications as may appear to the court to be necessary.
4. The decision as to the persons who are to be heard at the inquiry shall be one for the court, after
hearing the submissions on it made by or on behalf of the parties.
5. The court may request a House of Chiefs, Divisional or Traditional Council or other body with
knowledge of the customary law in question to state its opinion which may be laid before the
inquiry in written form.
Today, the courts look to precedents for the rules and principles of customary law. This has brought a
degree of certainty and flexibility with respect to enforcing customary law
Customary law has greatly influenced laws in relation to land, marriage and succession

CUSTOMARY ARBITRATION

There is no statute which can be looked at as the primary source of the law governing customary arbitrations. To
find the true position of the law one has to go to the Law Reports.

Customary arbitration is a method of resolving claims and disputes among members of the various communities
in Ghana. It is a procedure which has been in existence as part of our traditional method of adjudication and has
been preserved as part of our common law. Section 19 of the Supreme Court Ordinance, 1874 provided that

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local laws and customs, which were "not repugnant to natural justice, equity and good conscience", were to be
applied by the courts in suitable cases.

Characteristics Of A Valid Customary Arbitration

Per Ollenu J in Budu v Caesar

(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 - The mere presence of a party to a dispute at a meeting which
purports to arbitrate upon a dispute between him and another person, also present at that meeting, is no
conclusive evidence or proof of submission to arbitration. To constitute submission to arbitration in such
circumstances there must be evidence that the full implications of the purpose of the meeting was explained to
each party, and that with the full knowledge of those implications they each agreed that the person or persons
before whom they appeared should arbitrate upon their dispute and give a decision thereon. He may adduce
some evidence of voluntary submission such as his payment of arbitration fee and/or presentation of drinks

(ii) a prior agreement by both parties to accept the award of the arbitrators - The payment of an arbitration
fee in the form of money and, or drinks and paid before the arbitration starts or before the award is published
may constitute the evidence of both prior agreement and voluntary submission. Thus as in the case of Asano v
Taku the swearing of the Ohene's oath and counter-response by the opponent could amount to prior agreement
to accept an award as well as a voluntary submission.

(iii) the award must not be arbitrary, but must be arrived at after the hearing of both sides in a judicial
manner [natural justice] - Where an arbitrator exceeds his agreed terms of reference or proceeds to share the
subject-matter in dispute between the disputants the so-called arbitration is null and void ab initio. It is,
therefore, clear from the cases that arbitrators are by customary law, required to decide and pronounce on the
respective conflicting claims of the parties and not to do what King Solomon threatened to do by dividing the
baby, the subject-matter of the dispute. the decision on the merits must be arrived at after a fair hearing of both
parties. the fundamental principle of natural justice audi alteram partem was recognised as a necessary part of
our customary arbitration procedure. The principle of natural justice of a fair hearing of both sides involves
two sub-rules, namely (i) giving equal and enough notice and opportunity to the parties to prepare their case,
and (ii) hearing both parties. In Tanor v Dapomah the Nkawkawhene, the president of the panel of arbitrators
was the husband of one of the disputants.

[the award must be a decision on the merits, (ii) an arbitrator must give (a) enough notice to the parties to
prepare their case, (b) give equal opportunity to the parties to state their case fully to the best of their ability, ie
to give evidence, call witnesses, be available for cross-examination and tender documents in evidence in support
of their case, and lastly (iii) an arbitrator should not be a judge in his own cause or be affected by bias. The
necessity to conform to the principles of natural justice is buttressed by the fact that there is no right of appeal
against a customary arbitration award. As Ollennu J, as he then was, pointed out in Budu II v Caesar "grave
injustice would be done if decisions of arbitrators were arbitrary."]

(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

(v) Publication of the award

Effect of A Valid Arbitration

The effects of a valid customary arbitration as can be gleaned from the decided cases are that:

(i) a party to it cannot resile from it;

(ii) it is binding upon the parties and it will estop a losing party from bringing an action in court against his
opponent in respect of the same subject-matter or issue that was arbitrated upon,48 and

(iii) the successful party can bring an action in court to enforce the award.

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Arbitration & Negotiated Settlement

After the ingredients of a customary arbitration have been examined we must proceed to distinguish it from
another species of informal settlement of conflicting claims, ie negotiated settlement.

(i) In a customary arbitration, there is prior agreement to be bound by an award. In negotiated settlement, the
agreement to be bound is made after the award. In both, the agreement to be bound may be evidenced by
payment of money and/or presentation of drinks. The deciding factor is the time of making the payment and/or
the presenting of drinks.61

(ii) Unlike customary arbitration, a decision in a negotiated settlement need not be on the respective merits of
the claims of the contestants. In a negotiated settlement "King Solomon is come to judgment." There is give and
take and the main aim is to reconcile the parties by offering them what is fair and reasonable in the
circumstances.

(iii) In the case of customary arbitration the award is binding upon the parties whether or not they accept it. An
award in negotiated settlement is binding only if accepted by the parties. Normally on the publication of the
award the parties return to signify their acceptance and then pay a fee and/or present drinks.

(iv) In customary arbitration a party cannot resile once he has voluntarily submitted himself, in a negotiated
settlement a party can resile any time before he formally signifies his acceptance, since before then he is not in
law bound

ALTERNATIVE DISPUTE RESOLUTION

Conflict is a state of opposition or hostilities, a fight or struggle, or the clashing of opposed principles
(Concise Oxford Dictionary).
Conflict is a manifestation of differences working against one another which have ingredients,
combinations and conditions and the spark (John Crawley)
Conflict is an integral part of human behaviour, and there could be no movement or change without it
Conflict is the interference patterns of energies caused by differences that provide the motivation and
opportunity for change (Thomas Crum)
A dispute is a class or kind of conflict which manifests itself in distinct, justiciable issues. It involves
disagreement over issues capable of resolution by negotiation, mediation or third party adjudication.
An actual dispute will not exist until a claim is asserted by one party which is disputed by the other (D.
Foskett QC)
If no dispute exists, then a party wishing to enforce any aspect of a contract may do so through the courts;
but if a dispute were to exist then the specified process mentioned in the contract with respect to disputes
must be followed.
If a person to an arbitration agreement commences legal proceedings through the court against any other
party to that agreement in respect of any matter agreed to b referred to arbitration, the latter may apply to
the court for a stay of the court proceedings (section 9 of the Arbitration Act, 1996)
The fact that the defendant does nothing he does not admit the claim, he merely continues a policy of
masterly inactive does not mean that there is no dispute. Silence does not mean consent. (Ellerine
Brothers (Pty) Ltd & Ano. v. Klinger)
The ordinary meaning of the words dispute or differences should be given to those words in arbitration
clauses (Hayter v Nelson)

Kinds of disputes

- Subject matter disputes e.g. international, constitutional, organisational, corporate, commercial,

employment, property, family, trust

- Nature of issues e.g. issues of fact (arising out of the credibility of the parties themselves or data supplied
by third parties), issues of law (arising out of legal opinions given by legal reps), technical differences
(professional, technical opinion), differences of understanding (of ambiguous words or assumptions),
differences of perception of fairness, justice, morality, culture, etc

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- Submerged issues which may not be immediately apparent; they will not necessarily be known to those
resolving the dispute and even sometimes those involved in the dispute e.g. financial/economic
implications, issues of principle, cultural differences, symbolic value of subject of dispute, emotional
factors, strategic purposes, personality factors, practical considerations.

Conflict Dispute

Exists in the mind of an individual when he perceives A conflict of which both parties are conscious of and
a situation of incompatibility among objectives which is the subject of the altercation between them

They arise when principals express grievances Occur when third parties become involved as
privately or publicly supporters or settlement agents and the conflict
becomes public

Conflict resolution seeks to address underlying causes Dispute settlement refers to an altering of perceptions
of conflict that often results in parties settling for less

5 Conflict management approaches Dispute settlement approaches

- Forcing [facilitator asserts his authority]
- Avoiding [side-stepping the issues]
- Compromising [seeking an expedient solution
irrespective of effectiveness]
- Adjudication [litigation, arbitration or some other
form of adjudication]
- Negotiation [no third party assistance]
- Assistance of a dynamic third party

- Accommodating [harmonious relationship is top - Mediation [main alternative dispute process]

priority]

- Collaborating [joint problem-solving]

the ideal outcome is where the attitudes, feelings and
behaviour of the disputants are so changed that lasting
peace is assured. The solution must be mutually
acceptable and self-sustaining in the long run and
productive of a new, positive relationship between the
parties that were previously hostile adversaries.
The resolution of the dispute itself is the objective,
resolving underlying conflicts isnt the primary
objective of the process.
In civil and commercial disputes, arriving at a
settlement of the presenting issues is the primary goal

Approaches to a Family Mediation

o Problem-solving approach

o Bargaining approach

o Transformative approach [its central goals are empowerment and recognition

ADR may be defined as a range of procedures that serve as alternatives to litigation through the courts for the
resolution of disputes, generally involving intercession and assistance of a neutral and impartial third party.

Negotiation on its own is not an ADR process. It is only when it is accompanied by neutral intercession and a
more structured process framework that it becomes ADR.

Advantages

- ADR is based on the proposition that it is more beneficial for parties to resolve their differences by
negotiated agreement rather than through contentious proceedings.

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- ADR processes preserve or enhance personal and business relationships that might otherwise be damaged
by the adversarial process.

- They tend to arrive at settlements that are more creative, satisfactory and lasting than those imposed by a
court

- Reduces cost and delays associated with litigation; this cost-saving element is based on the assumption that
the ADR process will be effective.

Approaches to ADR

- Settlement-geared and cost-saving; here issues are traded in search of a deal

- Problem-solving approach; here parties are encouraged to find a win-win outcome with the neutral
exploring underlying issues in order to understand those that have been presented. Criticised for ignoring
the transformative potential by which people in a dispute can change

- Communications perspective; perceive conflict as a socially created and communicatively managed reality
occurring within a socio-historical context that both affects meaning and behaviour

Procedures of Dispute Resolution

- Negotiation

- Mediation

- Adjudication

[others extend procedures to six categories; negotiation, mediation, the judicial process, arbitration, the
administrative and legislative process]

Dispute resolution may also be categorised into adjudicatory processes and consensual processes.

Dispute resolution may be viewed as a continuum. At one end is negotiation and at the other is
litigation.Litigation; private judging; arbitration; contractual adjudication; administrative or statutory
tribunals; expert determination; med-arb; court-annexed arbitration; neutral fact-finding expert; ombudsman;
evaluation; early neutral evaluation; mini-trial (executive tribunal); summary jury trial; negotiation (through
reps); mediation (with evaluation); mediation (facilitative only); and negation (by parties personally).

CLASSIFICATION

According to the Oxford Companion to law, classification is the establishment of a hierarchical system of
categories and classes of principles and rules of law, and the allocation of a principle or rule of law to the
appropriate branch of the legal system.

Purposes of Classification

Academic; to arrange the rules of law and the problems they cover in a rational structure, bringing together
all those which are related and connected i.e. to reflect structure and purpose of the law
To facilitate study, understanding and discovery of the rules relevant to a particular problem e.g contract,
tort, etc i.e. to know where to find the law
To determine jurisdiction with respect to a claim in order to apply the appropriate rules usually in
connection with private law

Types of classification

Jurisdiction
Sources
o Statute
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o Treaties
o Customary law
o International law
Subject matter classification
o Common law and equity
o Civil law and criminal law
o Public law and private law

Civil law Criminal law

Law which defines the rights and duties of persons to Law concerned with acts or omissions which are
one another and provides a system of remedies such as contrary to public order and society as a whole and
damages and specific performance which render the guilty person liable to punishment in
the form of a fine or imprisonment

Subdivided into contract, tort, family law, property Subdivided into serious offences and lesser offences
law

In primitive legal systems, there was no distinction btn them. Wrongs which are regarded as crimes were simply
wrongs against the victim entitling him (or his kin) to compensation

Some civil wrongs may be considered as criminal e.g. Some crimes are civil wrongs.
assault is both a tort and a crime and a victim is
entitled to compensation
Issues are normally decided by a judge alone Issues of law are determined by the judge while those
of fact are determined by assessors made up of lay
people
A civil process may be used to pre-judge a (potentially
criminal) issue with the issuance of an injunction.
There are two parties, a plaintiff and a defendant; one There is an accused who is prosecuted by the state
may be found liable for the action which has been who may be found guilty and sentenced
brought against him and made to pay compensation or
specific performance
Public Law Private Law
Governs the relationship between citizens and the Governs the relationship between citizens
state
Judicial reviews may be applied to question the Courts can substitute their decisions for that of the
exercise of public law authority
e.g. constitutional law, administrative law, criminal Contract, tort, property law
law

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