APPRAIS AL OF CUS TOMARY LAW ARBITRATION IN NIGERIA

Abstract

The geographical entity now known as and called Nigeria was formally occupied by about

250 independent nations before the advent of the Europeans into the West Coast of Africa. These nations had their distinct customs and laws, which they brought on board Nigeria. These customs and laws differ from place to place.  Customary law arbitration was and still remains a widely accepted option for settling disputes, particularly amongst people occupying the former Eastern Nigeria, now popularly referred to as South East Geo-political Zone of Nigeria.   This  method of adjudication is  governed by the Nigerian customary  law. It is endorsed by the Constitution of the Federal Republic of Nigeria 1999, Cap. C23 Laws of the Federation of Nigeria 2004 (as amended), and recognized by the courts.  Thus, it is neither regulated by common law principles on arbitration that are applicable to Nigeria nor by the Arbitration and Conciliation Act, Cap. A18 LFN 2004, which is, the basic legal framework regulating written agreements to arbitrate in Nigeria. The unique characteristics of customary law arbitration in Nigeria are that agreements to arbitrate are usually oral in nature, and customary law arbitral proceedings and awards are not normally recorded in writing.   The communities that recognize and use customary law arbitration for settling disputes resort to it because it is inexpensive, expeditious, culturally acceptable to them, relevant and suitable for their situations in lives. Also, it helps to reduce pressure on the court system of adjudication. This invaluable method of adjudication is, however, facing serious threats to its development and sustainability.  Bearing in mind that indigenous customary law, which is the bedrock of customary law arbitration in Nigeria as opposed to Islamic law, is lex non scripta in nature, imprecise, and differs  from place to place, this  is  not  surprising.   Regrettably, adequate attention has not been devoted to the study and development of customary law arbitration and its importance in dispute resolution by previous researchers and government, and this has continued to create lacuna in the study and development of the law and practice of arbitration as an Alternative Dispute Resolution (ADR) mechanism in Nigeria. This study, therefore, sets out to fill this knowledge gap.  The main objective for this study is to examine the law and practice of customary law arbitration in Nigeria with a view to determining its adequacy or otherwise as an ADR mechanism.  Correspondingly, the specific objectives for the study are: (i)  To ascertain the issues  that  militate against  the development  of customary  law arbitration in Nigeria, and (ii) To consider whether education can be used to adequately address the issues. Historical, analytical and comparative research approaches will be adapted in this study and relevant data for the study will come from primary and secondary sources. The former came from case law, statutes, as  well as  unstructured interviews  based on proportionate stratified random sampling targeted at  traditional rulers, elders  of various communities and natives who are knowledgeable in the area of indigenous customary law and practices while historical records, anthropological reports, scholarly articles, text books, and useful resources from the Internet will constitute the latter source.

CHAPTER ONE

GEN ERAL INTRODUCTION

1.1.     Background of the S tudy

Disputes, in their various guises, are an inevitable part of human interaction.1    No society exists of which there have never been differences.2   Indeed, conflicts among human beings are as old as life itself and will always exist.3

Certainly, the things that can ignite or fuel disputes, controversies, or disagreements between people or communities or groups or societies, even amongst nations are legion and diverse. For example:   Disputes may arise from different human transactions including economic activities, family relationships, community and neighbourhood activities, and other social

relationships, international activities, religious activities, and other civil activities.4   It could

occur  on  account  different  subject  matters,  such  as  ideas  or  beliefs,  values,  material resources,  roles  and  responsibilities5   or  from  personal  disagreements,  religious  crises, political, ethnic, marital disputes, chieftaincy matters, land and community boundary disputes and even economic conflicts.6

In addition to the foregoing prodigious circumstances, it must be agreed that divergence of opinion among individuals, social groups, or societies; differences in societal values; as well

as differences in individual’s level of education, tolerance, maturity, understanding, interests,

1   For example, Greg Chukwudi Nwakoby, The Law and practice of Commercial Arbitration in Nigeria,(Enugu: Iyke Ventures Production, 2004) p. 1.

2   See generally,  Ayatulla Mohammad Beheshi,  “ Arbitration in Islam” Almujtaba Islamic Network (2012), Almujtaba   Islamic   Network   <http://www.almujtaba.com/en/index.php/left-menu -articl es/73-history/391-

arbitration-in-islam>.      This website was last visited on 14th May, 2015.

3  For ex ample, Olubayo Oluduro, “ Customary Arbitration in Nigeri a: Dev elopment  and Prospects” African

Journal of International and Comparative Law, Vol. 19 Issue 02 (2011), pp. 307-330.

4   For example, J. Olakunle Orojo & M. Ajomo, Law and Practice of Arbitration and Conciliation in Nigeria,

(Lagos: Mbeyi and Associates [Nigeria] limited, 1999) p. 1.

5   Oluduro, loc. cit.

6   Ibrahim Imam, “The Legal Regime of Customary Arbitration in Nigeria” <www.unilorin.edu.ng/publications

… pdf>.  This website was last visited on 14th May, 2015.

and the different ways by which  different individuals, sects, or societies reason and/or react to issues concerning them or their loved ones account for much of the disputes or disagreements in our society, and indeed, the world today.

Experiences have shown that peace is a sine qua non for meaningful human existence and development. But peace can hardly thrive where there exist controversies, disagreements or unresolved disputes.  In like manner, it is very unlikely for any meaningful development to issue forth, take place or manifest where there is no peace.     For this reason, mankind had ultimately to device different means of resolving their differences whenever and wherever it occurs.  This is to enable the disputing parties to resume their normal cordial relationships once again, and for peace to reign in society.  This is more so since the continuance of such controversies or disputes whether it is due to carelessness, mistake, wilful wrongdoing or mere misunderstanding would always energize the conflict between the disputing parties and

deepen their disagreements and grief against each other.7

Perhaps, it was against this backdrop that a learned English author, Richard Bruce of the

Gray’s Inn, in his work, Success in Law, wrote:

A man living on his own on a desert island can beh ave ex actly as he likes.  As soon as a second arrives, however, the two o f them must come to some arrangem ent or agreement as to how they are going to get along together … Every society in every ag e has found it essential to work out a code o f rul es to which its members must con form, for oth erwise there would soon b e no society at  all – only rival g angs o f thieves  fighting endless

vendettas against one another. 8

Similarly, the African M ediation and Community Service posited that:9

Disagreements and misunderstanding are key ch aracteristics o f human relationships whether the relationship is a domestic, national or international one.  The potential for disputes is even higher where the p arties  are from di fferent cultural, economic and political backgrounds with di fferent leg al systems.  Since disputes are such a critical part o f human relationships, many countries hav e mech anisms to resolve them in a manner, which maintains the coh esion, economic and political stability of the stat e.

7   See also, Beheshi, loc. cit.

8   Richard Bruce, Success in Law, (London: John Murray [Publishers] Limited, 1983) p.1.

9   African M ediation & Community Service, <http://www.metros.ca/amcs/international.htm>. This website was last visited on 2nd November, 2014.

This is particularly so with regards to disputes related to commerce because commerce is the engine of growth.

Ultimately, it is to aid in the resolution of disputes that arbitration, which is the subject matter of this research, was conceived and born.   Although, litigation is the principal method of settling disputes today, arbitration was, and still remains one of the most credible Alternative Dispute Resolution (ADR) mechanisms that are known to mankind.

1.1.1.  Types of Arbitration

Arbitration it is usually divided into two broad categories to wit, domestic arbitration, and international arbitration.  Irrespective of type, arbitration may be conducted on an ad hoc or institutional basis.10  Of the foregoing two broad categories into which arbitration can be divided, the former, that is to say, domestic arbitrations is further sub-divided into three

distinct categories, namely arbitration pursuant to statute law, common law arbitration, and customary law arbitration. Out of these three main types of domestic arbitration, it is with the last arbitration tradition in the foregoing order, that is, the customary law arbitration that this dissertation is principally concerned.

1.1.2.  Universal Nature of Arbitration

In recognition of the universal nature of arbitration, Professor Jerzy Jakubowski, posited:

Arbitration is a univ ersal human institution.  It is the product o f a universal human need and desire for th e equitable resolution of di fferences invariably arising from time to time between people by an impartial  person having the con fiden ce and

authority from the disputants themselves.11

Professor Jerzy Jakubowski’s stance is amply reinforced by the mere fact that instances of the

use of or resort to arbitration for the settlement of disputes proliferate in ancient, historical,

10     Nwakoby, op.cit., p. 8.

11   Jerzy J akubowski, in Carl Watner “ Stateless Not Lawless:  Voluntaryism and Arbitration” The voluntaryist, No.  84 (February,  1997),  online:Voluntaryist.com <http://www.voluntaryist.com/articles/084.html>. This

website was last visited on 22nd October, 2014.

and anthropological records;12 the Bible;13 Koran;14 and in records from the ancient Egypt,15

as well as in many oral African traditional histories.

Also, arbitration was accorded recognition in ancient legal systems, notably Jewish, Roman, Greek, Byzantine, Islamic, and under different African customary laws. However, because of the general notion of the ancient Chinese people that “going to law” or court was an evil, the Chinese people while using mediation and conciliation have had to be reluctant to have their

disputes settled by way of arbitration.16

Be that as it may, arbitration remains a universally accepted ADR mechanism.  Throughout the ages  (from primitive societies  to modern civilization) and in  all parts  of the world (undeveloped, developing and developed) and amongst various religious sects (particularly Islam, Christianity, and African traditional religions) arbitration is known to have existed,

and still exists in one form or another.17

1.1.2.1 Arbitration in the Light of Christianity

The Bible18 is the sacred writings of the Jews and the Christian church.  It comprises of sixty six books, divided into two parts, namely the Old Testament and the New Testament.  The

original version of the Bible was written in Hebrew, Aramaic, and Greek languages. The first

English version, which was made from direct translation from the original Hebrew and Greek version and the first to be printed, was the work of William Tyndale.   This work was,

12    See generally, C. K. Meek, Ibo Law (1931); W. R. T. Milne, Nsukka Division: Intelligence Report on the Town of Adani, Nsukka Division – Onitsha Province, (27th   Nov., 1934); Cadet Dixson, Intelligence Report on the Uvuru, Nimbo, Ugbene, and Abi Towns – Nsukka Division, (5th June, 1934).

13   The Bible, 1 Kings 3: 28; Zechariah 8: 10; 1 Corinthians 6:5.

14     Holy Koran 4: 35.

15    See for ex ample, Gray B. Born, International Commercial Arbitration,Vol. 1, (The Netherlands:   Wolter

Kluwer Law and Business, 2009), pp. 21-22.Culled from online, <http://books.google.com>.  This source says that  arbitration was known in ancient  Egypt, with convincing examples o f agreements in cluded in fun erary trust arrang ements in 2500BC and 2300BC. This website was last visited on 30th May, 2015.

16    Watner, op. cit.

17    See also, Nwakoby, op. cit., p. 1.

18    The Bible is also called the Scriptures or the Holy Scriptures.

however, greeted with bitter opposition and its author and translator Tyndale was accused of wilfully perverting the meaning of the scriptures and his new testament were ordered to be burnt  as  “untrue translations.”   Tyndale was  eventually  betrayed into the hands  of his enemies, and in October, 1536 was publicly executed and burnt at the stake. Notwithstanding the circumstances of his demise, Tyndale’s work has become the foundation of subsequent

English translations.19

The  use  of  arbitration  for the  settlement  of  disputes  is  neither  alien  to the  Jews  nor Christianity. For example, in the Old Testament, King David acted as arbitrator on several occasions.20  Account  is also given in the Old Testament that between 900-1000 B.C., a dispute between two neighbours, who incidentally were harlots in the city of Judah (one of

the twelve tribes  of Israel) was  amicably  settled in a manner that  is akin to arbitration. According to the Biblical account, the disputants voluntarily submitted the dispute between them to a neutral and impartial third party, King Solomon, who incidentally was the King of that community, Israel.  The King arbitrated upon the dispute in accordance with the native laws and customs of the community.  He gave both parties to the dispute equal opportunities to state their own sides of the matter and expectations, which is a mark of fair hearing. Incidentally, none of the parties called any witness because according to them, no witness was around when the incident occurred.  The King was said to have handed down the arbitral award after hearing both sides in a judicial manner. The award was definite, unambiguous, in favor of one of the disputants, against the interest of one of the disputants, it finally disposed all the disputes submitted by the parties for arbitration, and both parties accepted the award as binding and final between them.   To this end, the Bible says, “And all Israel heard of the

judgment which the King had rendered; and they stood in awe of the king, because they

19    See generally, The Bible, RSV 2nd Ed., (The Bible Societies, A.D. 1971).

20     2 Samuel 8: 15.

perceived that the wisdom of God was in him, to render justice.”21    Further, in support of the use of arbitration for the settlement of dispute among Christians, it was stated: “These are the things that you should do: speak the truth to one another, render in your gates judgments that are true and make for peace, do not device evil in your hearts against one another, and love

no false oath, for all these things I hate, says the Lord.”22

Furthermore, in the New Testament Christians were challenged, thus:   “I say this to your shame. Can it be that there is no man among you wise enough to decide between members of

the brotherhood, but brother goes to law against brother, and that before unbelievers?”23 Jesus

professed that the ancient philosophy paved the way for the modern philosophy and Him as the continuation of the old philosophy, as well as a reconciliation of the contradictions in the old philosophies.  Experience has shown that in many cases of disagreements in businesses, family disputes, and so on, Christians frequently resort to arbitration.  It is common for both parties to agree on one arbitrator, usually a Reverend Father, a Pastor, or any believer whose faith and reputation for fairness  is  well established  within the community  of believers. Sometimes, an arbitral tribunal comprising of more than one arbitrator may be chosen as when a dispute between parties is submitted to the church elders or council for arbitration. These clearly suggest that in the light of Christianity, God is the fountain of arbitration.

1.1.3.  Arbitration in the Light of Islam

In Arabic language, arbitration is known as Tahkim whilst an arbitrator is tagged Hakam.24

Long before the arrival of Islam, the Arabs were aware of arbitration and used arbitration for the settlement of disputes.

21   1 Kings 3:28.

22     Zechariah 8: 16-17; See also, Luke 12: 58; Matthew  5: 25.

23   1 Corinthians 6: 5.

24   Zeyad Alqurashi, “ Arbitration under Islamic Shariah” Nigerianlawgu ru.com

<www.nigerianlawguru.com/…/arbitration>. This website was last visited on 20th October, 2011.

This opinion was equally captured in a scholarly article, titled: Arbitration under Islamic

Shariah, where Zeyad Alqurashi observed as follows:

Resort to arbitration in the pre-Islamic p eriod was optional and l eft to the free choice of th e parties.   It relied on tribal justice administered by the chief o f the trib e and trustworthy individuals instead of an org anized judicial  justice.    Likewise,  arbitral awards were not legally binding unless there was an agreement b etween the parties to this extent.  In that period, there were no speci fic rul es to limit the arbitrable subjects. The arbitral proceedings were simple and rudimentary.   The arbitrator when hearing the dispute does not abide by any certain pro cedure, except  fo r a number o f certain procedu res su ch as th e obligation to hear the disputing parties on equ al basis and the

respect of the customary rules when examining the proo fs presented by the parties.25

According to historical records, Islam came into being as a result of the revelation of the Koran to Prophet M ohammed in the 7th Century A.D.  When Islam came, it did not abolish the pre-existing method of settling disputes through arbitration.   Rather, it recognized and

confirmed the system with some modifications.   Thus, Islamic jurisprudence recognizes arbitration as a valid mechanism for the settlement of disputes.   In addition, Islamic jurisprudence  attaches  great  importance  to  the  issue  of  arbitration.     This  is  amply

demonstrated by the four sources  of the Shariah, namely  the Koran,26  the Sunna,27  the

Qiyas,28 and the Idjma,29   as well as the four main Islamic schools, namely M aliki, Hanbali, Hanafi, and Shafi.30

25     Alqurashi,loc. cit.

26    Ibid;The Koran is the s acred book o f the Muslims.   It contains the word o f Allah (God ) as  revealed to theProphet Muhammed (Peace b e unto Him), about 1400 years ago.   It was originally written in Arabic

language.  Islamic Shariah law, and ind eed the Koran only apply to those who hav e accepted Islam as their religion, value system and way o f li fe.  In many parts o f the form er North ern region o f Nigeri a, Islam is the main religion and way of lives of the people.

27    Alqurashi,Ibid;The  Sunna  is  usually  described  as  the  acts  or  good  examples  and  the  sayings  o f

ProphetMohammed.  It reiterates that the Prophet, Mohammed recogni zed and actively practiced arbitration. For example, the Prophet appointed arbitrators and accept ed their awards.  He also acted as an arbitrator on several occasions to resolve disputes between sev eral Arab tribes reg arding which o f th em will have the honour of li fting and placing the Black Stone after rebuilding the Kaaba.  He put the Black Stone in his outer garment and judged that every tribe should choose a rep res entative and that all the repres entatives should carry the g arment togeth er to the place o f th e Stone. He also acced ed to arbitration to settle the di fferen ces between himsel f and one Bani Anbar.

28   Alqurashi,Ibid;This is popularly referred to as “ reasoning by analogy” among Islamic Scholars.

29   Alqurashi,Ibid;The Idjma is the consensus of opinion of Islamic scholars and jurists.  The leading case where arbitration was used by the companions o f the Proph et Mohammed was in the famous political dispute

between Ali Ben Abi Taled (the 4th  rightly guided Caliph) and Muawya Bin Abi Sofian (the Governor o f

Assham,  which is Syria,  Lebanon, Palestine,  and Jordan).   The Governor had refused to recogni ze the

Caliph’s right to the Caliphate. The dispute led to a civil war between the two parties.  As the war was going on, the Governor demand ed the settlement o f this dispute through arbitration.  The Caliph accepted that and

Although, the validity of arbitration under Islam is not in doubt, dispute resolution is one of the richest areas of divergent opinion for the different schools of Islam.  For example, there is a division of opinion among M uslim scholars and jurists over the concept of arbitration based on the fact that the word Hakam is capable of different meaning.  Also, resort to arbitration by Caliph Ali Ben Abi Taleb in his dispute with M uawya Bin Abi Sofian was opposed by the

Khawarege.31   According to one view, the objection is of little or no moment because even

under the Western system of law, arbitration encountered similar controversies in its evolution.   But the others would insist that arbitration is a form of conciliation, close to amicable composition, which is not binding on the parties, and which is neither binding nor

final unless it is accepted by the parties.32   According to the protagonists of this view, the

following verse from the Koran is authority.   It reads, “If you fear a breach between them twain (the man and his wife), appoint (two) arbitrators, one from his family and the other

from her’s; if they both wish for peace, Allah will cause their reconciliation.”33

The foregoing arguments, notwithstanding, the Koran is replete with instances supporting the use of arbitration for settlement of disputes among the M uslim faithful on several occasions. In fact, experience has shown that M uslims frequently resort to arbitration for settlement of disputes arising between them. This is based on the belief that Islam is a religion, a way of life, as well as a form of governance.  The Koran says, “Indeed Allah is Ever All Knower,

Well Acquainted with all things34… Verily, Allah commands that you should render back the

trust to those, to whom they are due; and that when you judge between men, you judge with

each p arty appointed his arbitrator.  The two arbitrators were to d ecide who was to b e the Caliph.  The two arbitrators were nominated in the arbitration agreement document and draft ed the arbitration agreement.

30    The characteristics o f each o f these Islamic schools were fully ex amined by, the Islamic Scholar, Zeyad

Alqurashi in his work, Alqurashi,supra; and we do not intend to repeat same here.

31     Alqurashi,loc. cit.

32     Abdul Hamid El-Ahdab, Arbitration with the Arab Countries, (The Hague:  Kluwer Law Int’l, 1999) p. 16.

33     Koran 4: 35.

34     Ibid.

justice.”35 Islam regards an arbitrator in the same way as a Judge, the qualities of which were clearly espoused in a letter written by Imam Ali to M alik Al-Ashtar, the Commander of the Faithful. The letter reads, in part:

Select, as your Chief Judge from the people, one who is by far the b est among them; one who is not obsessed with domestic worries; one who cannot be intimidated; one who does not err too o ften; one who does not turn back from the right part once he finds it; one who is not self-centred or av aricious; one who will not decide b efo re knowing the full  facts; on e who will weigh with care ev ery attendant doubts and pronoun ce a clear verdict aft er taking ev erything into full consideration; one who will not grow restive over the arguments o f advocates and who will examine with p atience every new disclosure o f fact  and who will be strictly impartial in his decision; one whom flattery cannot mislead; one who does

not exult over his position.  But such people are scarce.36

Even though, detailed discussion of arbitration in accordance with Islamic law is beyond the scope of this dissertation, it must be noted that there is a dearth of reported cases on the operation of Islamic law arbitration in Nigeria.  It is now more than 50 years since Nigeria gained independence from the British colonial masters but the Supreme Court of Nigeria, the apex court in the land is yet to be seized of any opportunity to deal with any issue or issues arising from  arbitration in accordance with Islamic law, which is  one of  the pillars  of

customary law in Nigeria.37

1.1.4.  General Historical Evolution of Arbitration

Arbitration is not a new phenomenon.  It is one of the oldest methods of settling disputes. It is as old as creation itself38 and can be traced into antiquity.39   As an institution, arbitration

certainly  pre-dates the  State, the  State Judiciary  and  the court  system  of  adjudication,

35     Koran 4: 58.

36    Beheshi, loc. cit.

37    See, Oluwafemi A. Ladapo, “ Where Does Islamic Arbitration Fit into the Judicially Recognized Ingredients of Customary Arbitration in the Nigerian Jurisprudence?”

<se1.isn.ch/serviceengine/Files/ISN/98430/ichaptersection_singledocum ent/FDAB9607-437F…>. This website was last visited on June 5, 2012.

38   See especially,  Ephraim  Akpata,  The Nigerian Arbitration Law  in focus,  (Lagos:    West  African Book

Publishers Limited, 1997) p. 1.

39  Gary B. Born, International Commercial Arbitration, Vol. 1, (The Netherlands:   Wolter Kluwer Law & Business, 2009) pp. 21-22.

commonly known as litigation that we find in use in contemporary nation-state.40   Records have it that arbitration became well established under the Roman law by the 1st Century B. C.41 In fact, in classical Roman times, litigation was no more than private arbitration with the

approval and assistance of a magistrate, the Praetor, elected annually solely to arbitrate over disputes.42

Arbitration was mentioned in the writings of Plato, the famous Greek philosopher in 350

BC.43    Also, another Great philosopher, Cicero in one of his numerous thought-provoking works, wrote, “None would our ancestors permit to be a judex even in the most trifling

money matters, not to speak of offers concerning the dignity of man, unless the offering parties were agreed upon him.”44

About arbitration in ancient Greece, Hunter wrote:45

Private arbitration … had a long history, extending back to the time of Homer and Hesiod, befo re the em ergen ce o f the State … it is a private mechanism evolved to serve th e needs o f a society where kinship and the reciprocal obligations o f kin and friends predominate.   With the emergen ce o f the State, priv ate arbitration did not disappear but continued in us e.   The courts were only a fin al stage in a complex disputing process which allowed, and indeed en couraged adjudication to coexist with

arbitration and mediation.46

In England,  arbitration was  purposefully  used long before there was  any  uniform legal system.  It  was  said  that  long before  the  King’s  court  founded  any  way  of enforcing contractual obligations, English merchants and traders had become accustomed to the use of

arbitration in the resolution of disputes involving them.47

40    Jerzy Jakubowski, Loc. cit.

41   See, Mogens Herman Hansen & Ku rt A. Reafland (Eds.), Studies in Ancient Greek Polis, (Germany:  Franz

Steiner Verlag Stuttgart, 1995) p. 148.

42     Nwakoby, op. cit., p. 1.

43     Ibid.

44     Cicero, cited by John Paris, The Law and Practice of Arbitration (Great Britain: George Godwin Ltd., 1974)

p. 1.

45    V. J. Hunter, Policing Athens:  Social Control in the Attic Lawsuits, 420-320 BC., (Princeton:  Princeton

University Press, 1994) p. 67.

46     Ibid.

47    Tony Bingham, “ Arbitration”, online: <http://www.tonybingham.co.uk/arbitration.htm>. This website was visited on 2nd Nov., 2011; Cf., Nwakoby, op. cit., p. 1.

Holdsworth unequivocally noted that:48

The practice o f arbitration therefo re,  cam e,  so to speak,  naturally to primitive bodies of law, and after courts have b een established by the State and a recou rse to them has become the n atural m ethod o f settling disputes, the practice continues becaus e the parties to the dispute wants to settle them  with less formality and expense than involved in a recourse to the courts.

Opinions are, however, divided as to the exact date when the first case involving arbitration under the English common law was first recorded.  Whilst some authorities have it that the earliest case involving arbitration under the English common law was first recorded in 1231,

others would insist on 1340.49    Be that as it may, it is a well-known fact that for several

hundreds of years, particularly during the medieval era, arbitral tribunals composed of Anglo- Saxon merchants and guildsmen settled the most important trading and commercial disputes of England and much of Europe.50    In most situations, the law merchants constituted “the body of customary rules and principles relating to merchants and mercantile transactions and adopted by traders themselves for the purpose of regulating their dealings.”51

These commercial arbitrators  decided according to such notions as  commercial men had about commerce. Thus, being experts in their professions and/or trade, the arbitrators applied those  standards  to  which they  have  become  accustomed  in  the particular  trade  and/or profession  but as the decades rolled by and the industrial age unfolded, so too common law

and statute began to regulate and interfere with certain notions and even customs.52

Again, in the United States of America, although arbitration is generally used as a substitute for  judicial  systems,  particularly  when  the  judicial  processes  are  viewed  as  too  slow, expensive or biased, arbitration is also used by communities, which lack formal law, as a

substitute for formal law.   Such arbitration is  usually  conducted in accordance with the

48     Holdsworth, History of English Law, Vol. XIV (1964) p. 187.

49     Ibid;See also, F. D. Emerson, History of Arbitration Practice and Law, (Clv. St. L. Review, 1970) p. 155; E.

J. John,  “Commercial Arbitration and Rules of Law” University of Toronto Law Journal, (1994) 1, p. 19; F.

Kellor,  American Arbitration Practice, (Harper & Bros., 1984) p. 3; Nwakoby, op. cit., p. 1.

50   Watner, op.cit.

51   Ibid.

52   Bingham, op. cit.

custom of the parties or their trade or profession. This practice can be equated to customary law arbitration practices in Nigeria where resort is made to native laws and customs of the parties. In comparison with Ghana, the following excerpt is illustrative:

Ghana has long had a court system on the Anglo-American model, with a Supreme Court, intermediate app ellate cou rts, and a vari ety o f trial cou rts. The trial courts are far too few to adequat ely cov er th e entire country, ho wever, resulting in huge backlogs. With the reach o f the courts limited this way, the traditional system of dispute resolution conducted by chiefs remains vital. Every city, town, and village has a chief who sits at the top of the social pyramid for that community …. Their main public responsibility is to resolve local disputes. A party with a gri evan ce go es to the chief to requ est a h earing. The chief th en calls the respond ent to appear at the chief’s p alace. The parties indicat e their cons ent to the jurisdiction of the chief by paying a nominal sum of money. The chief holds a hearing in which the parties are entitled to submit evidence and argue th eir cases. Then the chie f issues a ruling, which has traditionally been oral. The system is, for all practical purposes, arbitration. It is referred to in Ghana as customary arbitration … The Ghan a ADR Act o f

2010 includes a set of fai rly detailed provisions governing customary arbitration.53

It is submitted that Nigeria can emulate the example of the Ghana ADR Act of 2010, which includes a set of fairly detailed provisions governing customary arbitration by amending the Arbitration and Conciliation Act, Cap. A18 Laws of the Federation of Nigeria 2004, which is the basic legal framework regulating written agreements to arbitrate in the country.   The contemplated amendment should aim at enlarging the scope of the Act to accommodate both provisions governing customary law arbitration and provisions regulating written agreements to arbitrate.   In the alternative, a separate legislation could be passed to lend legislative blessings to the law and practice of customary law arbitration in the country.

1.1.5.  Nigerian Historical Evolution of Customary Law Arbitration

In Nigeria, the original source of customary law arbitration is the Nigerian customary law. Customary law in Nigeria comprises of the indigenous customary law and the Islamic law. History is replete with abundant evidence in support of the existence and use of arbitration

for the settlement of disputes in accordance with native laws and customs or customary law

53    See, Customary Arbitration in an Evolving Africa, <http://www.indisputably.org/?p=2592>.  This website was last visited on 9th June, 2015.

long before any form of colonization in Africa.54   Prior to the advent of the British colonial masters  into  the  West  Coast  of  Africa,  there  were  about  250  nations  occupying the geographical entity now known as Nigeria.   These nations had their different methods of settling disputes, which were enshrined in their various native laws and customs. The native laws and customs were basically indigenous in character and each usually operates only within a given area.55    Customary law arbitration was one of the methods adopted by the native for the settlement of their disputes in accordance with their native laws.  The natives resorted to customary law arbitration because it is less formal, less rancorous, inexpensive, expeditious, culturally acceptable to them, relevant and suitable for their situations in lives. For example, in the former Western Region of Nigeria, arbitration was used for settling disputes among the people.  Such arbitration was usually conducted in accordance with the various native laws and customs of the diverse people occupying that area.  In the ancient Benin Empire, for example, the Oba (King of the Dynasty) or the Uzamas (Elders of the

Community) or the Enojies (Heads of Clans) or the Iyases (Special Advisers to the King) functioned as arbitrators on many occasions. In the former Eastern Nigeria, now South East Geopolitical Zone of Nigeria, arbitration in accordance with the indigenous customary laws and customs of the various people and communities occupying the geographical area was well known, and still  remains  a widely  used alternative for the settlement  of disputes, particularly land and family disputes whilst amongst the Hausa and Fulani people occupying the former Northern Nigeria, arbitration in accordance with Islamic law was used, and still remains an alternative method of settling disputes in that area.

Upon the arrival of the British colonial masters, and the subsequent introduction of English law, the diverse customs and laws of the different nations that constitute Nigeria were not

54 Bello, Adesina Temitayo, “Customary and modern arbitration in Nigeria:  ARecycle of Old

Frontiers”,Journal of Research & Development, Vol. 2, No. 1, 2014 online:

<www.arabianjbmr.com/pd fs/RD…/4.pdf> This website was last visited on 27th May, 2015.

55 Kuper and Kuper, African Law, Adaptation and Development, p. 7.

abolished. Rather, it was a renowned policy of the colonial masters to respect the established laws and customs of their subjects, in so far as the native laws and customs pass the three

basic tests set  by the colonial masters to standardize its  operation.56     Naturally, the non

abolition of the pre-existing customary laws of the various nations meant that each of the different ethnic group or nation that were united by the act of amalgamation by Lord Fredrick Lugard in 1914 came on-board the “new nation,” Nigeria with their own different native laws and customs.  Also, the non-abolition of the pre-existing customary laws in these nations led to  their  continued  existence  up  till  today.    A  smattering knowledge  of  constitutional development in Nigeria reveals that through this process, customary law, and indeed, customary  law  arbitration  is  saved.  Nigerian  customary  law,  therefore,  constitutes  an

important part of the country’s “existing laws” that are saved by the country’s Constitution.57

Evidently, it is through this source that the various customary laws of the various peoples of about 250 different nations that today constitute Nigeria found their way into Nigeria, with the result that today, customary law arbitration is recognized as one of the primary sources of

the law of arbitration in Nigeria.58

Regrettably enough, customary law arbitration had had to suffer grievous setback in Nigeria, and at the present time, the phenomenon is facing serious threat to its development and sustainability. In the early stages of arbitration in Nigeria, the regular courts were reluctant to recognize the decisions or awards of customary law arbitrators. Perhaps, this attitude flowed substantially from the rationale that arbitration constitutes a rival body to the then English type courts. It was, however, soon realized that arbitration may in fact prove the best way of settling some types of disputes amongst natives.  Thus, the attitude of the regular courts to

arbitration gradually changed and the courts (in keeping with the erstwhile colonial policy of

56   See, for example, the repugnan cy test.

57   See, S. 318 (1), Constitution of the Federal Republic of Nigeri a 1999, Cap. C23 Laws of the Federation of

Nigeria (hereafter LFN), 2004.

58     Gaius Ezejiofo r, The Law of Arbitration in Nigeria (Ikeja:  Longman Nigeria Plc, 1997) p. 15.

according respect to the established laws and customs of their subjects, provided that the native laws and customs in question pass the three basic tests set by the colonial masters to standardize its operation) started to accept customary law arbitration as a valid method of resolving disputes amongst natives.59

Unfortunately, this healthy development was truncated by a sudden change of attitude and reluctance on the part of the courts to recognize arbitration under customary law.  This was made manifest in Okpuruwu v. Okpokam,60    where their Lordships stated that “to talk of

customary law61  arbitration (having a binding force as  a judgment) in this country is …

somewhat a misnomer and certainly a misconception”.62

However, in swift reactions, some eminent  scholars  and jurists  frowned at this  negative development. For example, in a dissenting opinion, Oguntade, JCA (as he then was) said: “I find myself unable to accept the position that there is no concept known as customary or

native arbitration in our jurisprudence.”63   As luck may have it, shortly thereafter, customary

law arbitration was reconfirmed as a valid method of resolving disputes amongst natives in Nigeria as the courts began to recognize it again.64   Despite this positive development, it is still worrisome that the courts have continued to sing discordant tunes on issues concerning

customary law arbitration in Nigeria with the result that in Nigeria today, customary law arbitration  remains  one  of  the  special  areas  of  law  that  is  surrounded  with  lots  of

controversies.65

59    See, Assampong v. Kweku Amuaku and Others (1932) 1 WACA 192 at p. 201.

60     (1988) 4 NWLR (Pt. 90) 544; See also, Greg C. Nwakoby & Felicia Anyogu, “Institutionalizing Alternative

Dispute resolution Mechanism in the Nigerian Legal System”, Unizik Law Journal, Vol. 4, No. 1 pp147-

161<naulibrary.org/dglibrary/…/10274.pdf>.  This website was last visited on June 18, 2015.

61     Italics mine.

62   See also, Edu O. K., Effect o f Customary arbitral awards on substantive litigation: Setting Matters Straight

<www.nigerianlaw.guru.com/…/>.

63    See, Okpuruwu v. Okpokam (1988) 4 NWLR (Pt. 90) 554.

64    See, Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385.

65    See especially, Andrew Chukwuemerie, “ Salient Issues in the Law and Practice o f Arbitration in Nigeria”

African Journal of International and Comparative Law, Vol. 14 (2006) pp. 1-52 at p. 1; Gaius Ezejiofor,

Again, a similar fear was expressed in a recent study on African traditional dispute resolution, titled: Dispute Resolution Mechanisms and Constitutional Rights in Sub-Saharan Africa, by

Bolaji Owasanoye where he lamented, thus:66

African traditional  system  o f dispute resolution is  closer in nature  and ch aracter to arbitration than to the colonial system of adjudication.   But since African lawy ers are trained in the common law system o f adjudication which is integrated into the system of governan ce by the constitution backed by the establishment of courts, judges , the rule of procedu res and the en forcement o f the judgments, African lawy ers hav e come to rely on and trust the common law system more than any other form o f dispute resolution … As a dispute resolution method, arbitration ought to fascin ate Afri can lawy ers … That it is not promoted as much as it ought to in Africa can only be attributed to conservatism imbibed from the common law system.  Although Afri can dispute resolution mechanisms cannot be applied to commercial disputes except perhaps those dealing with community land, neverthel ess,  it  offers  an insight  into the options available outside the  adjudicatory system offered by the common law.

In a similar manner, Professor Osita Eze, in a scholarly article titled, Beyond the Courts – Community Tribunals and the Application of Customary Law,67 also remarked:

Because o f well-known problems associat ed with the fo rmal justice system, being out of cultural  context,  tenden cy to promote  antagonistic  relations rather  than lead to sustainable peace, cost, delay etc, and because 80% o f the population as a matter o f fact and practice resolve their disputes through … customary tribunals or arbitration process it is thought that more attention should be paid to the processes and methods of this customary tribunals i f justice is not to be denied to the majority who may nev er access

the form al courts.68

It is submitted that the foregoing views lend credence to the view earlier expressed in this study by the researcher to the effect that customary law arbitration in Nigeria is facing serious threat to its development and sustainability, and amply justify this study. Although, Professor Eze has since died, and is no more with us to fraternize and dine with us at Bar Conferences and Law Dinners (as was his stock-in-trade), his intellectual contributions to law, particularly

to the body of knowledge regarding customary law arbitration, remains fresh in the minds of

“The Prerequisites of Customary Law Arbitration” Journal of Privat e and Property Law, Vol. 16, 34; E. S. Nwauch e, “ Customary Law Arbitration and Customary Arbitration”  Nigerian Law and Practice Journal, Vol. 3, No. 1 (March, 1999); Virtus Chitoo Igbokwe, “The Law and Practice of Customary Arbitration in Nigeria:   Agu v. Ikewibe and Applicable Law Issues Revisited,” Journal of African Law, 41 pp. 201-214; Beheshi, loc. cit.; Ladipo, loc. cit.

66     Bolaji Owasanoye,  “ Dispute Resolution Mechanisms and Constitutional Rights in Sub-Saharan Africa”

<http://www.duhaime.org/LegalDictionary/A/Arbitration.aspx>. This website was visited on 2nd Nov., 2011.

67     Osita C.  Eze,  “ Beyond the Courts – Community Tribunals and the Application o f Customary Law”

<info.worldbank.org/etools/docs/library/92913/Henny/zip/jr_ africa/pd f/eze_p aper.pd f>.    This  website  was

last visited on November 1, 2011.

68     Eze, loc. cit.

those of us who cherish and seek for knowledge.   This research, no doubt qualifies inter alia as one of the much needed “more attention” in Professor Eze’s opinion that is required to be paid to customary law arbitration “if justice is not to be denied to the majority who may never access the formal courts”. It equally qualifies as a positive change of attitude regarding the “conservatism imbibed from the common law system” by many African lawyers that tend to trust and rely on the common law system more than any other form of dispute resolution. This negative attitude, to Bolaji Owasanoye has caused customary law arbitration not to be promoted as much as it ought to in Africa.

1.2     S tatement of Problem

It is sad to note that customary law arbitration, with all its enviable advantages of being inexpensive, expeditious, culturally acceptable, relevant and suitable, as well as its positive prospects for providing much needed access to justice, particularly at the grassroots is, at the present time, facing serious threats to its development and sustainability in Nigeria due to lack of adequate attention and commitment.  Bearing in mind that indigenous customary law, which is the bedrock of customary law arbitration in Nigeria as opposed to Islamic law, is lex non scripta in nature, imprecise, and differs from place to place, this is not surprising. It goes without saying that inadequate attention to the study of customary law arbitration and its importance in dispute resolution by previous researchers has continued to create a lacuna in the study and development of the law and practice of arbitration as an Alternative Dispute Resolution (ADR) mechanism in Nigeria. Thus, this study sets out to fill this knowledge gap. Further, the lopsided development  of the Nigerian  customary  law, vis-à-vis  indigenous customary  law  and Islamic law; the crude  methods  of enforcing customary  law  arbitral awards  in Nigeria;  the denial of women’s  full  participation in customarily  law  arbitral proceedings; and the inability of the courts to speak with one voice on issues concerning customary law arbitration in Nigeria have become a clog in the wheel of development of the

law and practice of customary law arbitration in Nigeria. Thus, adequate attention is urgently needed to surmount these problems but at the present time, this much needed attention is deficient.   Also worried about this development, Ike Ehiribe, in his work, The Validity of Customary Law Arbitration in Nigeria69  passionately asked the question, “Why is there a

subtle attempt to suppress customary law arbitration in Nigeria?”  There is no doubt that the

solution to Ike’s question, as well as other similar concerns must lie in more research of which this dissertation is a right step in the right direction.  Furthermore, it will be recalled that the then British colonial masters, many anthropologists, and early writers were reluctant to accept that customary law arbitration is a valid method of settling disputes by way of

arbitration.70 This initial reluctance has not only cast serious aspersions on the adequacy of

customary  law  arbitration as a valid ADR method but  has  also crippled its growth and sustainability.

Naturally, this brings to mind the philosophical concerns expressed by Rev. Fr. (Dr.) Nnamdi

Anacletus Odoemene, in his book, The Dynamics of Cultural Revitalization: A Case Study of the Igbos of Nigeria, where he admonish:

Where a culture su ffers sev ere distortion and disreg ard from another culture which claims to be sup erior, in that it could solve human n eeds easier and more effi ciently, the people o f this latter culture presume to be superio r beings worthy o f emulation, whereby  all  that  they do seems  to the best.   To save the culture and the people dominated   by   su ch   overbearing   culture   from   disintegrating,   splintering   into autonomous groups and searching for a false and unnatural identity, one must then revitalize the culture by first rewriting the history to correct historical erro rs which may have been created where the common history was written by people from the so-

called “ higher” culture.71

It is submitted that this research work is a right step in the right direction towards revitalizing the culture of settling disputes by way of customary law arbitration by first rewriting the

history to correct historical errors which may have been created by the history that was

69     Ike Ehiribe, “The Validity of Customary Law Arbitration in Nigeria” in Dennis Campbell and Susan Cotter, eds., Comparative Law Yearbook of International Business, (London:  Kluwer Law International Limited,

1996) p. 131.

70       See, Allot, Essays in African Law, 1960.

71       Nn amdi Anacletus Odoem ene, The Dynamics of Cultural Revitalization: A Case Study of the Igbos of

Nigeria, (Enugu: Harris Printing and Publishing Co. Limited, 1993) p. 29.

written by people from the so-called “higher” culture, that is to say, the British colonial masters, anthropologists, and early writers.

Finally, although much juristic ink, albeit not enough, has been spent on some of the issues herein canvassed, it is nevertheless intended to re-visit them with a view to reshaping such contributions to knowledge by way of agreement or outright refutation or plain addition or subtraction. As the American writer, philosopher, humourist, and philanthropist, Clarence Stephen Day would say:

The world of books is the most remarkable creation of man.   Nothing else that he builds ever lasts.  Monuments fall, nations perish, civilizations grow old and die out, and aft er an era n ew races build others.  But in the wo rld o f books are volumes that have seen this happen ag ain and again and yet live on, still young, still as fresh as the

day they were written, still telling men’s hearts of the heart of men centuri es dead.72

1.3     Literature Review

It  is pretty  inspiring to note that  several well researched works  have been written, and published; and a lot of juristic ink, though not enough, has been spent by jurists and scholars in studies on customary law arbitration in Nigeria.

Unfortunately, in a dissertation of this  nature, it  will be quite absurd to review  all the literature, written and published on the subject.   In consequence, therefore, only very few carefully  chosen works  in this  field of ADR technique, which are thought  vital for the attainment of the objectives of this research, shall be reviewed, as follows:

1.3.1   The Law of Arbitration in Nigeria

The work, The Law of Arbitration in Nigeria, written by Professor Gaius Ezejiofor readily provides a welcome insight into customary law arbitration in Nigeria and at the same time an

authoritative text on the Nigerian Arbitration Law.   The book is made up of 246 pages,

72    Clarence Stephen day (1874-1935),

<www.goodreads.com/quotes/show/61454quotationbook.com/quote/4583>. This website was last visited on the November 1, 2011.

inclusive  of  index,  and  is  divided  into  three  parts,  comprising of  14  chapters  in  all. Unfortunately, only about 10 pages out of its 246 pages were devoted to customary law arbitration in Nigeria – the rest deals on commercial arbitration, that is, written agreement to arbitrate.73

Notwithstanding that  the book is  principally  concerned with commercial arbitration, the

author took far reaching steps in the work to contribute to the body of knowledge in the field of customary law arbitration in Nigeria, which informs our decision to kick start the literature review for this dissertation with his work.  In that book, the author discussed customary law arbitration in Nigeria under Part 2, Chapter 2, which deals mainly on domestic arbitration. Under the sub-head, “customary law arbitration,” the basics of customary law arbitration in Nigeria was purposefully examined in the following order: nature and scope of customary arbitration; arbitration distinguished from negotiation for settlement; and common law or

customary arbitration?74

The author examines the distinction between customary law arbitration and mere negotiation for settlement.75   In customary law arbitration, the award binds the parties thereto, and their privies and it is enforceable by the court provided that it possesses the necessary attributes.

None of the parties is allowed to repudiate the arrangement at the end of the proceedings simply because the award does not favour that party. The Njoku case76 was used to illustrate

this point.     On the other hand, in mere negotiation for settlement, the decision of the

73     Before his death, Professor Gaius Ezejio fo r (lat e) was a Senior Advocate o f Nigeri a (SAN), a Pro fessor o f

Law, and a Senior Lecturer at the University of Nigeri a, Enugu Campus.

74      Ezejiofor, The Law of Arbitration in Nigeria, op. cit., pp. 22-29.

75      But cf., Allot, op. cit.

76      Njoku v. Ekeocha (1972) 2 ECSLR 199 at p. 205; See also, Aguocha v. Ubiji (1975) 5 ECSLR 221 at p. 224;

Onwusike v.  Onwusike (1962) 6 ENLR  10 at  p.  14;  Peter Ihekwoaba v.  James Aham &  Ors (1978) IMSLR 469.

“negotiator” or “peace maker” does not bind the parties unless and until it is accepted by both of them. Here, the author used Ekwueme v. Zakari77 to illustrate this stance.

Regarding the nature and scope of customary arbitration, the author stated:78

A distinctive feature o f customary law arbitration is that agreement to conduct the same is oral and its proceedings and decisions are not norm ally reco rded in writing. Because o f thes e factors, customary arbitration is not regulated by the Arbitration and Conciliation Act, which is concerned with written agreem ents to arbitrate.   It was also not regulated by the repealed Arbitration Act, which also deal only with written agreements.   It is, however, still popular among people in the villages and

recognized by the courts.79

The author agrees that if there is a disagreement as to whether there is in fact a properly constituted arbitration between disputing parties, the court ought to make a specific finding of

fact on that question.80   An award resulting from arbitration under native law and custom is

not a judgment of a court of law.   Therefore, such an award can only be enforced like a judgment of a court if it is specifically pleaded by parties having the legal rights to so do, and proved in a proceeding before a competent court, and approved by the court.

The author admonishes that arbitrators under native law and custom must act judicially and the parties to valid customary law arbitration must be given fair hearing.  He argues that if parties  voluntarily  agree to submit  their differences  to arbitration under native law  and custom, and to abide by the award of the arbitrator, they cannot repudiate such award when made. “The question,” says the author, “is whether they can, in those circumstances, resile

from the arrangement before an award is made?”81 In a bid to answer this question, the author

reviewed the decision of the Privy Council in the then Gold Coast82 case of Kwasi v Larbi,83

and then agreeing with the court, concluded that it would be wrong for any party to either

77     (1972) 2 ECSLR 631; See also, Inyang & Ors v. Essien & Ors (1957) 2 FSC 39.

78     Ezejiofor, op. cit., p. 22.

79     Ibid.

80    See also, Ofomata & Ors v. Anoka & Ors (1974) 4 ECSLR 251.

81     Ezejiofor, op. cit., p. 25.

82     Now, Ghana.

83     (1952) 13 WACA 76.

withdraw midstream or even after the award has been handed down.  Thus, from that case, and the likes of it, the author distilled the attributes of valid customary law arbitration as follows:

1.    Voluntary submission of the dispute to arbitration by the parties;

2.    Agreem ent by the parties before-hand to be bound by the decision or award o f

the arbitrator or arbitrators;

3.    Constitution of the arbitral panel  and condu ct o f the arbitral proceedings in

acco rdan ce with the custom of the community, and

4.    Pronouncement by the arbitral panel o f a d ecision or an award which is fin al

and unconditional.

If all  these requirements are met  in any given situation and provided there are no procedu ral or other irregul arities, the parties will be bound by the award and none o f them will be allowed to repudiat e the same b ecause it does not  favou r him.   If it is properly pleaded in an action the award will operate as an estoppel per rem judicatam.84

That being the case, the author frowned at the decision of the Supreme Court of Nigeria in Agu v. Ikewibe85and Ohiaeri v. Akabeze,86 where the court gave the impression that a party to arbitration under native law and custom can validly back out from an arbitration process

voluntarily and jointly constituted by him before the conclusion of the proceedings, thereby rendering the exercise a nugatory.   In the author’s humble opinion, the only requirement for a valid arbitration should be a voluntary agreement by parties to submit to arbitration by a particular individual or group of individuals, which voluntary submission or prior agreement to be bound is usually implied where there is no express statement that the parties reached

such an agreement.87

The author, however, happily noted at one of the footnotes in his book, now under review that these erroneous steps have been retraced by the Supreme Court of Nigeria.88     This development  notwithstanding, the author recommends  that the law  relating to customary

arbitration in Nigeria should further be streamlined by judicial process.89 Unfortunately, the

84     Ezejiofor, op. cit., p. 26.

85     (1991) 3 NWLR (Pt. 180) 385.

86     (1992) 2 NWLR (Pt. 221) 1.

87     Ezejiofor, op. cit., p. 28.

88   See, Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561; and Osuigwe v. Nwihim (1995) 3 NWLR (Pt. 386)

752.

89     Ezejiofor, op. cit., p. 28.

cold hand of death snatched the author away from us unexpectedly, so he could not live to witness contemporary development and the confusion galore that has continued to permeate this invaluable ADR method in Nigeria.    Apart from the work, The Law of Arbitration in Nigeria, Professor Ezejiofor has written a good number of well researched and published

scholarly  articles  and  these  works90   have  provoked  and  continues  to provoke  a  lot  of

discussions,  criticisms,  controversies,  as  well  as  admiration  among practicing lawyers, researchers and students of arbitration.

1.3.2   The Validity of an Award under Customary Law Arbitration: Nwosu v. Nwosu Another interesting work that is worthy of being reviewed for this dissertation is the scholarly article titled, The Validity of an Award under Customary Law Arbitration: Nwosu v. Nwosu91

written by Rev. Fr.   (Dr.) Edwin Obimma Ezike.92  In that work, the writer resourcefully

examines the validity of customary law arbitration awards in Nigeria against the backdrop of the Court of Appeal decision in Nwosu case.93  The topic covered and issues discussed in the work are essential not only for the growth and sustainability of customary law arbitration in

Nigeria but also for the determining of its adequacy or otherwise, hence its importance and this review.

In the work under review, the learned scholar reiterated that  an award of a  customary arbitration is not a judgment of a court of law and cannot be enforced as such judgment until such award is specifically pleaded, carefully examined, and approved by a competent court.94

This stance is totally in agreement with the earlier postulations of the late Professor Gaius

Ezejiofor, supra.

90   See for ex ample, Ezejiofo r, “The Prerequisites o f Customary Arbitration” Journal of Privat e and Property

Law, Vol. 16, 34.

91     (1996) 2NWLR (Pt. 428 64) C.A.

92    Rev. Fr. (Dr.) Edwin Obimma Ezike is a Senior Lecturer at the University of Nigeria, Enugu Campus.

93   E. O. Ezike, “The Validity of an Award und er Customary Law Arbitration: Nwosu v. Nwosu,” The Nigerian

Juridical Review, Vol. 7 (1998-1999), pp. 269-278.

94     Ibid, at p. 270.

Again,  like Ezejiofor, Ezike relying on the authorities  of Kwasi v. Larbi,95and Oline v. Obodo96 contends that the parties to customary law arbitration, by voluntarily submitting to arbitration under native law and custom are normally assumed to have agreed to be bound by

the decision of the arbitrator or arbitral tribunal or arbitral panel, as the case may be.  “It is, therefore, not competent for any party to resile from the arrangement simply because the award did not favour him,” the writer concluded.97

To further buttress the point, the writer cited with approval the work titled, The prerequisites

of Customary Arbitration,98  written by Professor Gaius Ezejiofor, to the effect that once disputing parties  voluntarily  agree  to  submit  their  dispute to  a particular  arbitrator  or arbitrators whom they believe would be fair and impartial, they are deemed to have agreed to accept the award. In fact, in the writer’s view, having agreed to be bound by the outcome of such arbitration, it  would be unacceptable for any  of the parties  to back out  from the arrangement after the arbitrator had handed down its award, simply because the award did not favour such a party as this would in ordinarily parlance amount to ‘eating ones cake, and demanding to have it back’.

Another very interesting aspect of Ezike,s work pertains to the “unanimity” or otherwise of the decision of customary law arbitration panel composed of more than one person. The

writer asks, “Was it (the Court of Appeal)99  right in demanding that the decision of the

arbitral panel (composed of 2 (two) Ezes [Chiefs] and their Cabinet)100 must be unanimous?” In answer, the writer says; “As  customary  arbitration usually  involves  many  elders  as

arbitrators, their decision could be unanimous.   But  where a unanimous  decision  is  not

95     (1952) 13 WACA 76.

96     (1958) FSC 84.

97     Ezike, loc. cit., at p. 269.

98     Ezejiofor, “The Prerequisites of Customary Arbitration” JPPL, loc. cit., at p. 32.

99    Bracket mine.

100   Again, bracket mine.

possible, a majority decision is sufficient to give validity to their award.”101 The writer further stated:

In customary law arbitration, the arbitrators need not reach a unanimous decision for their award to be valid … A majority decision is acceptable in customary arbitration. The important  thing is  that  the arbitration satis fies  the  essential  ingredients o f customary  law  arbitration  and  that  the  majority  decision  is  fair  and  just  and

acceptable to at least one party.102

Also, by relying on the authorities of Njoku v. Ekeocha103 and Oline v. Obodo104 the writer opined that for an award to be ratified and enforced by a court, the court must be satisfied that the arbitrators  gave the parties  a fair hearing and that  the award itself is  certain, final, reasonable, legal, possible of execution and disposes  of all the differences  submitted to arbitration; as  well as  that the parties  voluntarily  submitted to arbitration, and that they expressly or impliedly agreed beforehand to accept the decision of the arbitrators and that the arbitrator was selected in accordance with customary law.

Thus, disagreeing with the Court of Appeal decision in the Nwosu case, the learned scholar argued that “any insistence on other requirements (other than those listed above)105 will be stretching the customary arbitration too far and unhealthy for it.”106   He further argued that the validity of customary law arbitral award neither depends on compliance with the requirements of the Arbitration and Conciliation Act107  nor on the High Court Rules, as customary law arbitration is regulated by customary law.108

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