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Customary Arbitration in Nigeria: Development and Prospects

Document Cited authorities 4 Cited in Related
Vincent
Date01 September 2011
Published date01 September 2011
DOI10.3366/ajicl.2011.0014
Pages307-330
AuthorOlubayo Oluduro
INTRODUCTION

Conflicts among human beings are as old as life itself and will always exist. Conflict can exist on many different levels, including international, intragroup, intergroup, interpersonal and intrapersonal. It can exist about different subject matters – ideals or beliefs, values, materials and resources, emotions, roles and responsibilities.1

C. J. Menkel-Meadow, Lela Porter Love, Andrea Kupfer Schneider and Jean R. Sternlight (eds), Dispute Resolution: Beyond the Adversarial Model, Aspen Publishers (2005), p. 7.

Conflicts vary in terms of the social contexts in which they are located (two old friends, family members, neighbours, strangers, consumers and merchants, distant nation states); in the time span in which they are located (one-off or one-shot encounters and conflicts, long-standing or embedded conflicts, temporary or repeated conflicts in ongoing relationships like families and employment settings); and even within the same social environment or subject matter in the way in which the disputants treat the conflict, in the strategies, tactics and behaviours they employ (avoidance, self-help, peaceful negotiation, argument, escalation, physical violence, peace-seeking, mediation or settlement) and how the strategies chosen interact with each other.2

Ibid., pp. 7–8.

 There are a variety of possible conflict modes or strategies in handling these conflicts that exist at different levels. Mary Parker Follett3

M. P. Follett, Constructive Conflict, paper presented at Bureau of Personnel Administration conference, January 1925, available at http://www.columbia.edu/∼mwm82/negotiation/FollettConstructiveConflict.pdf (accessed 19 October 2010); see also A. T. Oyewo, Issues in African Judicial Process with Particular Reference to the Customary Courts of Southern-Western Nigeria, Jator Publishing (1999), pp. 8–9.

 identifies three main ways of dealing with conflicts whenever they arise: domination, compromise and integration. Under the domination technique, which is seen as the easiest way of dealing with conflict, but not usually successful in the long run, one side imposes his will over the other. This is a victory of one side over the other. It is very common in relationships between employers and employees, where the former often impose their will on the latter

As regards compromise, each side gives up a little in order to have peace, or so that the activity which has been interrupted by the conflict can go on. This may not be the best mode of settlement of disputes as no one really wants to compromise, as it implies a giving up of something. Mary Parker Follett has, however, recommended the third way, the integration system, stating that it brings about a much better and more lasting solution than the first two. Here, the desires of the parties to the disputes are integrated, such that neither side has to sacrifice anything. There is no compromise here because there is no curtailing of desire and both parties get what they really desire. According to her, the parties are stimulated to reciprocal activity which will give more than mere adjustment or more than an equilibrium. To aid understanding of integration, Follett gives the illustration of a smaller room in a library, where a student wanted the window open while another wanted it shut. After revaluing the interests of both parties, a solution was proffered by opening the window in the next room where no one was sitting. The parties got what they really wanted without curtailing the desires of either one.

This paper traces the development and practice of customary arbitration in Nigeria and also examines its prospects. The paper is structured into seven sections including this introduction. The second section examines the development of customary arbitration in Nigeria, and discusses the nature of a valid customary arbitration. The third section is on the practice of customary arbitration among the ethnic groups in Nigeria. The constitutionality or otherwise of customary arbitration is examined in the fourth section. The fifth and sixth sections discuss the prerequisites of a valid customary arbitration and oath-taking under customary arbitration, respectively. The seventh section highlights the challenges facing the development and practice of customary arbitration in Nigeria and concludes by making recommendations on what measures can be taken to overcome the challenges.

 DEVELOPMENT OF CUSTOMARY ARBITRATION IN NIGERIA

Arbitration has been with mankind in one form or another from time immemorial. A particularly interesting aspect of African laws is the dispute settlement procedure, which exhibits at some times a striking similarity to the procedure in other jurisdictions and, at other times, a striking divergence from it.4

See generally T. O. Elias, Nature of African Customary Laws, Manchester University Press (1956), pp. 212–72. See also R. David and J. Brierly, Major Legal Systems of the World Today, Stevens (1985), pp. 547–63, quoted in A. Ipaye, ‘Arbitration Law and Practice in Nigeria: An introduction’, 24 The Lawyer, The Journal of the Law Society, University of Lagos (1999): 2.

Even though countries like China, India, Italy and a host of others claim to be the first to have introduced the system, a claim that is not easily ascertainable, the system is not new to Nigerian society

Before Europeans came into contact with most of the communities in Nigeria, structures of government existed in various forms and in varying degrees of perfection, irrespective of the levels of political and social development of the individual communities.5

A. Emiola, The Principles of African Customary Law, 2nd edn, Emiola Publishers (2005), p. 1.

Feuding members in a community take their private matters before independent persons for settlement. These independent persons may be heads of families, elders or chiefs, and the parties usually accept the decisions of these native tribunals. The tribunals derive their authority from the custom and traditions of the community, which are accepted by members of the community as binding upon them.6

M. M. Akanbi, ‘A Critical Assessment of the History and Law of Domestic Arbitration in Nigeria’, in O. Oluduro et al. (eds), Trends in Nigerian Law: Essays in Honour of Oba DVF Olateru-Olagbegi III, Olowo of Owo Kingdom, Constellation (Nig.) Publishers (2007), p. 462.

 Suffice it to say that these practices grounded in the custom and traditions of the various communities still persist to this day, and the people who conduct them premise the validity of the customary law on its general acceptability and recognition.7

Ibid., p. 463.

 As observed by Ezediaro:8

S. O. Ezediaro, ‘Guarantees and Incentives to Foreign Investment in Nigeria’, 5(4) International Law (1971): 770, 775.

Arbitration as a method of settling disputes is a tradition of long standing in Nigeria. Referral of a dispute to one or more laymen for decision has deep roots in the customary law of many Nigerian communities. Indeed, in many of the isolated village communities, such a method of dispute resolution was the only reasonable one, for the wise men or chiefs were the only accessible judicial authorities. This tradition still persists in certain village communities, despite the centralized legal system and the attendant efforts at modernization and reform of the legal system.

Allot observed that arbitration, as known to English Law, is not part of customary law and that the so-called customary arbitration is nothing but mere negotiations for a settlement.9

A. N. Allot, Essays in African Law, Butterworth, (1960), p. 126.

 He went further to state that customary ideas do not permit of parties committing themselves, before proceedings begin, to accepting the decision of the arbitrator, whatever it might be. Equating customary arbitration with mere negotiation for settlement is untenable in that even if there are instances where native people are engaged in negotiation or conciliation in which selected chiefs, elders or other disinterested persons strive to resolve disputes between persons without necessarily handing down binding awards, it is common for established native institutions, groups or bodies, or even non-established groups of persons, to be chosen by native disputants to adjudicate over such differences with a mandate to give binding decisions, outside the usual formal courts.10

See F. J. Oniekoro, ‘Customary Law Arbitration and Oath Taking: The Crisis of Validity’, 1(2) Ikeja Bar Journal (2005): 53.

 A negotiation is not usually preceded by any mutual consensual agreement of the parties. A third party, on his own volition, without the consent of the two parties, goes into the dispute with an intention to settle the crisis between them.11

Ibid.

 This is amply demonstrated in Ekwueme v Zakari.12

(1972) 2 E.C.S.L.R. 631.

 In this case, five mutual friends of the disputants on their own volition sought to resolve the differences between the parties, invited them, took evidence from them and made a decision which was not accepted by one of the parties. The other party commenced this action to enforce the decision. The court refused to enforce the same, partly because there was no evidence that the parties voluntarily agreed to submit the dispute to the group Nature of a valid customary arbitration

In defining customary arbitration, Karibi-Whyte, JSC said that:

… customary arbitration is an arbitration in dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either the chiefs, or elders of their community, and the agreement to be bound by such decision or freedom to resile where unfavorable.13

Agu v Ikewibe (1991) 3 N.W.L.R. (Part 180), 385; see also Elias, supra note 4, p. 212.

One important feature of customary arbitration is that the agreement to conduct it is essentially oral, and the arbitral proceedings and decisions are usually not in writing, and therefore do not come within the provisions of...

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