The Continuing Relevance of Customary Arbitration in Nigeria: Critical Evaluation of Contemporary Developments

In pre-colonial times when there were no Western-styled public courts in many African societies, customary arbitration was an integral part of the indigenous dispute resolution mechanisms, and it is argued that it has remained even so today. Customary arbitration can be defined as an indigenous or traditional mode of settling disputes whereby disputes are referred to the family heads or elders of the community for resolution.¹ In Nigeria, customary arbitration remains relevant and has received judicial approval by the Supreme Court in a plethora of cases.² Traditional oath-taking is a process or feature of customary arbitration in many parts of Nigeria.³

Traditional ‘oath taking is a method of ascertaining veracity of evidence in traditional African dispute settlement proceedings.’⁴ For example, where parties to dispute in customary arbitration decide to be bound by traditional oath-taking, the common law principles of proof of title to land become inapplicable. In such a scenario, the proof of title or ownership will now be based on the customary arbitration accentuated by traditional oath-taking. In Nigeria, traditional oath-taking is an integral part of the customs and practices of many communities, and it is one of the means of ascertaining the truth in a matter. Thus, in such communities, traditional oath-taking is done in accordance with the prevalent customary law and practice.

Recently, in Umeadi v. Chibunze,⁵ the validity of traditional oath-taking as a process or feature of customary arbitration was the crux of the Nigerian Supreme Court judgment where it was held that traditional oath-taking is a valid feature of customary arbitration in Nigeria. This case concerned a dispute over the ownership of a family or communal land of the Umuofuonye family. The facts of the case are stated below:

The respondent's case [Chibunze] as pleaded in their amended statement of claims [at the trial court] was that they were members of Chibunze family in Egbeagu Village, Amansea, Awka North Local Government Area of Anambra State of Nigeria. They stated that the land in dispute was part of family land of the Umuofuonye kindred to which they and the appellants belonged to. That sometime in 1940, one Emmanuel Uba a member of the Umuogbocha kindred in Egbeagu Village trespassed into the land in dispute. The Egbeagu village intervened in the dispute and invited both Umuogbocha and Umuofuonye kindred for customary arbitration. At the arbitration, the Egbeagu village decided that the Umuogbocha kindred should bring a juju and place it on the land in dispute for the Umuofuonye kindred to swear by removing the same.⁶

At the trial court (High Court of Anambra State), the respondents (Victor Chibunze and Williams Chibunze, who were the plaintiffs at the High Court) relied on evidence provided by witnesses to corroborate that the first respondent's (Victor Chubunze's) father was the person who single-handedly took the traditional oath without the support of his family who deserted him but he lived to survive the specified customary period of the oath-taking and subsequently became the exclusive owner of the land in dispute according to customary law and custom. On the other hand, the appellants (Umeadi and others were the defendants at the High Court), contended that under the customary law and practice of the Amansea community and Igbo land in general, one man does not swear a traditional oath alone in land disputes or matters.⁹ However, the appellants were unable to establish the evidence of this customary practice. The High Court gave judgment in favour of the respondents (plaintiffs at the High Court – Chibunze). The appellants (Umeadi and others) appealed this judgment, and the Court of Appeal affirmed the decision of the High Court and dismissed the appeal. They further appealed to the Supreme Court and the Supreme Court also held in favour of the respondents (Chibunze), affirmed the judgment of the Court of Appeal and dismissed the appeal.

Based on the judgment in Umeadi v. Chibunze, traditional oath-taking still plays a major role in customary arbitration in Nigeria as the parties voluntarily submitted to customary arbitration and agreed to oath-taking with the intention that the outcome would bind them. However, it can be argued that in customary arbitration, parties can conclusively establish ownership of the disputed property (for example, land) independently of reliance on the traditional oath-taking process.¹⁰ The view of this article is that notwithstanding the valid criticisms by scholars,¹¹ of traditional oath-taking as a feature of customary arbitration, traditional oath-taking is also part of the religious leanings of some communities (including individuals) in Nigeria and a valid process or feature of customary arbitration in some parts of the country. Hence, if traditional oath-taking is not forced on parties, and does not involve human rights violations of the oath-takers, traditional oath-taking should continue to play a role in the communities or individuals who ascribe to it as a constituent part of customary arbitration in Nigeria. Furthermore, section 38 of the Constitution of Nigeria 1999, recognises freedom of religion for every Nigerian and hence, parties who willingly partake in traditional oath-taking in customary arbitration are exercising the right to practise their religion.

Furthermore, the Supreme Court decision in Umeadi v. Chibunze appears to have been favourably received by the legal profession and other relevant stakeholders in Nigeria. For example, some lawyers and newspapers have written about the implications of the Umeadi v. Chibunze decision in Nigeria.¹²

To mitigate the criticisms of traditional oath-taking, parties in customary arbitration should be made to understand the implications of traditional oath-taking regarding their claim to ownership of the property in question (for example, ownership of disputed lands). Furthermore, traditional oath-taking should not be used as a means to take advantage of the already vulnerable (for example, women, elderly, and children) and those who do not subscribe to African traditional practices in Nigerian society. Hence, traditional leaders and traditional arbitrators should ensure that the necessary safeguards are put in place to protect the parties who have relied on traditional oath-taking as a feature of their customary arbitration. For example, in the Edo State of Nigeria, traditional oaths have been used to silence some victims of modern-day slavery and human trafficking.¹³ Hence, to stop this practice, in 2018 the Oba of Benin, Oba Ewuare II (who is the major traditional authority in that part of Nigeria) reversed any traditional ‘oaths undertaken by victims of human trafficking.’¹⁴ Different stakeholders have argued that this action by the Oba of Benin will prevent traditional oaths from being used as a means of silencing modern-day slavery and human trafficking victims in the Edo State of Nigeria.¹⁵

Umeadi v. Chibunze seems to infuse some form of religious or metaphysical element into customary arbitration. Arguably, it is fear and cultural beliefs that sustain traditional oath-taking as a dispute-resolution mechanism.¹⁶ Notwithstanding the strident academic and judicial criticisms of the utility and validity of traditional oath-taking under customary arbitration in Nigeria, it should be noted that traditional oath-taking in customary arbitration ‘is valid when both parties willingly partake in swearing to an oath where the arbitration process so demands in order to confirm the genuineness of the parties’ claims.’¹⁷ Also, traditional oath-taking in customary arbitration is done in accordance with the customs or traditions of the parties.

This article seeks to interrogate the practice of customary arbitration in Nigeria, ascertain the conditions for its validity and evaluate the utility of traditional oath-taking as a constituent process or part of customary arbitration in Nigeria. The implications of Umeadi v. Chibunze in the highly plural Nigerian legal system are also in focus in this article. This article will also suggest some reforms to improve the utility of customary arbitration in Nigeria. This article argues that British colonisation and the various legislative and judicial developments in post-colonial Nigeria did not lead to the total elimination of customary arbitration in the country and customary arbitration remains one of the most common indigenous dispute-resolution mechanisms in Nigeria.

The next section focuses on the evolution of customary law in Nigeria.

Before the introduction of British colonialism in what is now known as Nigeria, customary law was the prevailing norm in southern and some parts of northern Nigeria.¹⁸ Hence, customary law is the beginning ‘of Nigeria's...