Customary Arbitration Research Articles

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

Dispute is a natural consequence of human interactions and dispute resolution mechanisms are critical to the peace and harmonious coexistence of every society. In pre-colonial times when there were no Western-styled public courts in many African societies, customary arbitration was an integral part of the dispute resolution mechanisms, and it is argued that it has remained even so today. In Nigeria, customary arbitration remains relevant and has received judicial approval by the Supreme Court in a plethora of cases. This article discusses recent judicial developments on customary arbitration focusing on a recent judgment of the Nigerian Supreme Court – Umeadi v. Chibunze and its implications on customary arbitration in the highly plural Nigerian legal system. Umeadi v. Chibunze recognised the validity of traditional oath-taking as a feature of customary arbitration for parties who rely on it. This article argues that customary arbitration remains one of the most common indigenous dispute resolution mechanisms in Nigeria. 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 feature of customary arbitration in Nigeria. This article will also suggest some reforms to improve the utility of customary arbitration in Nigeria.

Studies in Litigation Against the Church in Nigeria: The Case of Basilica of Grace, Abbi

This study captures in vivid perspectives, the legal battles that the Church has come to face in recent times in Nigeria over land. For this case-study that is focused on the Basilica of Grace, Abbi in Ndokwa West Local Government Area of Delta State Nigeria, attempt shall be made to concentrate on the legal struggles the Church began to face in recent times arising from land hunger and the emergence of the commercializing influence of capitalism on the Church in Nigeria. The Church in Nigeria has become hugely wealthy that attack on it has become quite fashionable with the hope and aim that in the calculated process of litigating with the Church over land, the Church may cave into settlement with the disputants and in the process, the disputants may ‘hack into the finances of the Church’ and ‘chop out a large chunk-of-cash from the tilt of the Church’ in order for the Church to have peace. This study which adopts the doctrinal method interrogates the circumstances that led the Basilica of Grace, Abbi (under the Registered Trustees of Diocese of Ndokwa Church of Nigeria Anglican Communion) into a pernicious legal battle with Femi Ojuyenum and six others representing Ogwezzi-Amacha family of Umu-Onyugba Street of Abbi. The study traces the origin of the grant of the land to the Church, the ceding of a part to the State for School as a Missionary Society and the pseudo reversionary claim of the Ogwezzi-Amacha family and the conveyance of same to unscrupulous ‘money bags’ in Abbi community who have taken turns to transfer the land in millions from one ‘Barron’ to another to the discomfiture of the Church at Abbi. It further interrogates the legal processes and pleadings of the parties through the trial court to the various appellate courts in details and captures the socio-legal influences driving the litigation. The study finds that those who dabbled into the litigation with the Basilica of Grace did so for selfish interest and in a calculated desire to upturn the grant made by the early fathers of Abbi community to the Christian Missionary Society on the spurious claims that those forefathers who made the grant in relative antiquity were merely overwhelmed by European civilizing influence and uninformed of the ancient and current value of land. The study found further that the litigation was being fought in the face of a customary arbitration against the antagonists of the Church. The study therefore suggests and recommends that the claims and attacks against the grant and the Church should be repudiated and dropped by the defendants to ‘allow sleeping dog lie’.

Customary Arbitration: Religion, Culture, and Law in Igboland

The Igbo traditional religion provides institutions for the amicable, natural, and lasting resolutions of conflicts within Igboland. One of such institutions is the Igbo customary arbitration mechanism. This article aims at unavailing and bringing to the fore, the numerous positive aspects of customary arbitration which include the quick dispensation of justice, less financial implications, and purposeful and acceptable awards. It uses indigenous procedures and actors in arriving at an award. It focuses on the deployment of cultural, religious, and legal components in its procedures and findings. It therefore offers a better alternative as litigants could benefit from it. The practice also encourages cultural revival. This study makes use of documents, interviews, and observational methods while deploying a sociological (functionalist) methodology in its analysis.

Reflections on the “Autonomous Alternative Justice System Institutions” in Kenya’s Alternative Justice Systems Policy Frameworks

On 27th August 2020, the Kenyan Judiciary together with its partners formally launched the AJS Framework Policy and the AJS Baseline Policy (AJS Policy Frameworks) which coincided with the ten-year anniversary of the promulgation of the 2010 Constitution of Kenya. The launch of the policy was awaited with huge expectations, as it was hoped that it would provide an appropriate framework for the operationalisation of “Autonomous Alternative Justice System” (AAJS) which is one of the institutions approved by the AJS Policy Frameworks to anchor Kenya’s emergent alternative justice system. This paper evaluates some of the options adopted by the AJS Policy Frameworks in the conception and implementation of the AAJS. Comparative lessons from the jurisprudence of ‘customary arbitration’ in Nigerian and Ghana, which are similar to the AAJS, are utilised to argue for more care and caution in the operationalisation of the AAJS Institutions in Kenya.

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

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

Analysing the Efficacy of Customary Arbitration for Settlement of Land Disputes in Nigeria

A number of cases in court with respect to the recognition and enforcement of customary arbitration awards relate to land disputes. Customary arbitration awards and the resort to traditional oath taking seem to be one of the ways by which title to land is established, particularly under customary law. The courts in Nigeria have been very active on the resolution of land disputes even after the conduct of customary arbitration. This is probably due to the uncertainty emanating from whether a customary arbitration award can be deemed to be final, binding or enforceable where a party decides to reject the award. Relevant judicial decisions however show that the perceived confusion or uncertainty over the efficacy of customary arbitral award is lack of understanding of the peculiar facts and decision in each case. This article adopts the doctrinal research methodology by relying mainly on relevant judicial decisions and literature to analyze the efficacy of customary arbitration as a dispute resolution mechanism for settlement of land dispute in Nigeria. It finds that a customary arbitration award estops another party from reiterating the same issue in court.

A review of the legislative reform of customary arbitration in Ghana

Due to the phenomenon of legal pluralism that colonial rule left in its wake, customary arbitration is still a method of dispute resolution in Ghana despite the formal judicial system. But until 2010, customary arbitration practice was regulated only by case law. To put it on a firmer legal foundation and streamline its practice and procedures, the Alternative Dispute Resolution Act 2010 codified customary arbitration as an ADR method. In this article, we examine the legislative reform of customary arbitration in Ghana and assess the extent to which the ADR Act has improved it.

Customary Arbitration Template in Nigeria; Synergy or Energy

Two forms of arbitration exist in present-day Nigeria; the first is indigenous to the various communities in the country and it is determined by the customs and traditions of the individual community. The second, which was imported, derives its source from the general laws and practice in England. The latter, which is arguably alien to the culture and tradition of traditional Nigerian communities, has often been superimposed and applied by courts. The continuing subjugation of customary arbitration can be seen in the attitude of the Nigerian courts, whereby reliance is placed on the parameters of modern arbitration in the determination of a valid customary arbitration award in Nigeria. Consequently, the article examines the extant parameters to which the Nigerian courts subject the characteristics of customary arbitration in Nigeria. The article discusses the need for a paradigm shift in order for customary arbitration to respond to the exigencies of customs. This article contends that the attitudes of courts in the determination of the binding nature of an award given under customary arbitration, using the parameters of modern arbitration, has caused considerable damage to the essence and potency of customary arbitration practice in Nigeria. The article concluded that in order to be authentic, it is paramount that judicial development of customary arbitration, must respond to the traditions, attitudes and goals of the people whose society is under consideration. It should not be subject to a validity test by reference to orthodox arbitration or arbitration under the received English law.

Ibn ʿAbd al-Wahhab

Ibn ʿAbd al-Wahhab

Recognition and Enforcement of Customary Arbitral Awards in Nigeria

Customary arbitration is a concept founded on customary law. Customary laws are those generally accepted, primordial but dynamic rules binding on natives of a given community. They are primordial in the sense that they take their roots from ancient times; and dynamic, because they are susceptible to the vagaries of the time. They have become the mirror of the accepted usage. In Nigeria, the British met a body of these indigenous rules when they came. They chose not to throw away the baby with the bath water. The imperial regime recognised the premium, which the native placed on their customary arbitral rules. In their wisdom, they preserved those rules provided they met certain prescriptions. A custom, therefore, would be enforced where it was found not to be: Repugnant to natural justice, equity and good conscience; Incompatible, either directly or by implications, with any written law in force; and Contrary to public policy.

Customary arbitration in Nigeria: a review of extant judicial parameters and the need for paradigm shift

Two forms of arbitration exist in present-day Nigeria; the first is indigenous to the various communities in the country and it is determined by the customs and traditions of the individual community. The second, which was imported, derives its source from the general laws and practice of England. The latter, which is arguably, alien to the culture and tradition of traditional Nigerian communities, has often been superimposed and applied by courts. The continuing subjugation of customary arbitration can be seen in the attitude of the Nigerian courts, whereby reliance is placed on the parameters of modern arbitration in the determination of a valid customary arbitration award in Nigeria. This article contends that the attitudes of courts in the determination of the binding nature of an award given under customary arbitration, using the parameters of modern arbitration, has caused considerable damage to the essence and potency of customary arbitration practice in Nigeria. In order to be authentic, it is contended that judicial development of customary arbitration, must respond to the traditions, attitudes and goals of the people whose society is under consideration. It should not be subject to a validity test by reference to orthodox arbitration or arbitration under the received English law. Consequently, the article examines the extant parameters to which the Nigerian courts subject the characteristics of customary arbitration in Nigeria. The article discusses the need for a paradigm shift in order for customary arbitration to respond to the exigencies of customs. Keywords : Arbitration, custom, tradition, dispute resolution, English law, Nigeria.

Customary Law, Social Development and Administration of Justice in Nigeria

Customary law is the law that captures the norms, traditions and rules of behaviour of the people. It is the law propelled by the worldview, beliefs, philosophies and value system of the people. In traditional societies, customary laws were largely unchallenged save by compelling innovations that re-channeled aspects of the practices of the people and subsequently altered its traditions. Since the introduction of English law in the administration of justice in Nigeria about a century ago, customary law has been fighting for breath and a large chunk of it has not survived the conflict that was the necessary outcome of the contact. This paper has discussed the nature of justice that the hybrid legal system has produced. It has answered the question whether the judicial system that yields legal justice has produced social justice as well. It has also made projections into the future of customary law and examined the imperatives of a smoother marriage of convenience between the borrowed English legal system and native law and custom so as to achieve justice that is real and answers to the needs of the society. The topic is discussed under six sub-heads, namely: Introduction; conceptual analysis; application of customary law in Nigeria; customary law and justice; customary law and arbitration; and conclusion. Under conceptual analysis, the meaning, sources and progressive development of customary law have been examined including their relationship with the English common law. On the application of customary law, the standard requirements for the validity and enforcement of the law have been discussed critically. The capacity of customary law to produce both legal and social justice has been evaluated under the sub-head of customary law and justice while the content, context and legal status of customary arbitration and customary awards have been treated under customary law and arbitration. The co-relation between customary law and social development was examined and practical policy formulations suggested for enhancing the role of customary law in social development. The conclusion summarized salient points raised and evaluated in the work and projected the capacity of customary law to play a more pro-active role in the administration of justice in Nigeria when and after obvious negative tendencies by the operators have been eliminated or at least minimized.

The Scope and Relevance of Customary Arbitration in the 21st Century Dispute Resolution in Nigeria

This paper reveals the fact that Customary Arbitration existed in Nigeria long before the emergence of the adversarial system of conflict resolution introduced by the British colonial masters. Customary arbitration which is arbitration in dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either the Chiefs or the Elders of their community, has been widely tested before the courts in recent times. The paper demonstrates the validity of customary arbitration proceedings which is anchored on the fulfillment of prescribed conditions which have been pointed out in a plethora of cases before the appellate courts in Nigeria. Owing to the evolution of the world, and numerous challenges confronting the practice of customary arbitration, Common Law arbitration has taken the front seat while relegating customary practices to play second fiddle.

The Binding Effect of a Customary Arbitration Award: Exorcizing the Ghost of Agu v Ikewibe

AbstractAgu v Ikewibe has been widely interpreted as holding that a customary arbitration award is binding only if none of the parties rejected the award after it was made; it has been widely criticized for this reason. However, the Nigerian Supreme Court has reached decisions, subsequent to though not as notorious as Agu v Ikewibe, to the effect that post-award consent is not necessary to found a binding customary arbitration award. This article contends that Agu v Ikewibe did not indeed decide what has been ascribed to it over the years, or that, even if it did, that decision is not supported by the previous judicial authorities upon which it claimed to have relied. Reference is also made to the current predominant indications from the Nigerian Supreme Court that post-award consent is not necessary to establish a binding customary arbitration award.

The New Ghana ADR Act 2010: A Critical Overview

This article critically analyses the provisions on arbitration, customary arbitration and mediation in the new Ghana ADR Act 2010. The provisions on arbitration in the new Act are based on internationally recognised principles such as autonomy of the arbitration agreement and supremacy of party autonomy. It however pushes the boundary of current standards in arbitration laws by, for example granting the appointing authority an expanded role in the arbitral process. The new Act also breaks new grounds in legislating on customary arbitration and granting the settlement agreement from mediation proceedings an enhanced status akin to an arbitral award. This article concludes that this new ADR Act is comprehensive, modern and forward looking and should enhance Ghana’s chances of being chosen by parties as seat of their arbitration references within sub-Sahara Africa.

Customary Arbitration in Nigeria: Development and Prospects

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

Enforcement of Arbitral Awards in Nigeria: An Appraisal of Emerging Trends

This research is an analysis of the enforcement of domestic and foreign arbitral awards by Nigerian courts and the court's underlying policy considerations in light of the country's aim to join the comity of nations in ensuring expeditious enforcement of arbitral awards. It seeks to show the significance of the national courts’ role in the arbitration process in consideration of the present day exercise on the reform of the Arbitration and Conciliation Act, the principal legislation governing arbitration in Nigeria. The need for the use of arbitration in international and sometimes national businesses is necessitated by the Courts seeming lack of promptness in dispensing matters relating to business and investment. This problem is more pronounced in disputes involving foreign investments where courts may be ill equipped to handle its technicalities. Although there are calls for the reform of Nigerian legislation on Arbitration, it is equally important to understand the reasons behind the attitude of the court by analyzing the development of case law in this area of Law in Nigeria. The analysis will look the legal regime on the recognition and enforcement of domestic and foreign arbitral awards. It would include an examination of the use of Customary Arbitration and the effect of the recognition and enforcement of customary arbitral awards.

Customary arbitration and the plea of estoppel under Nigerian law

This article examines the process of customary arbitration, which is recognised under Nigerian law as a valid dispute resolution mechanism. It attempts to answer the question whether an award by a customary arbitral panel can give rise to the plea of estoppel per rem judicatam.

Where does Islamic Arbitration fit into the Judicially Recognised Ingredients of Customary Arbitration in the Nigerian Jurisprudence?

In recent times, there has been a renaissance of the Islamic heritage in the consciousness of adherents of the Islamic faith and this has sought expression in their quests to conduct their affairs in accordance with Islamic injunctions. This has become noticeable in areas where Islam is the predominant religion. In northern Nigeria, in the past decade, there has been a renewed focus on the Islam Shariah Law system, with six of the nation's thirty-six states symbolically adopting it in public proclamation. There is, however, a dearth of scholarly research on the operation of Islamic conflict resolution mechanisms in Nigeria. This situation has led to arbitrariness and uncertainty in the use of these mechanisms. This article analyses the nature and principles of Islamic arbitration, and its applicability within the wider Nigerian legal framework vis-à-vis judicially recognised alternative dispute resolution mechanisms, particularly the principles and practice of customary arbitration. African Journal on Conflict Resolution Vol. 8 (2) 2008: pp. 103-130

The Internationalisation of African Customary Law Arbitration

chiefdoms at different levels of political and economic development, 1 had their indigenous ways of settling economic and social disputes. They had well-established customary laws that governed their lives and business, providing guidance in both domestic and inter-kingdom or inter-chiefdom affairs in peace and in war. Amongst the prominently developing areas of that law were such dispute resolution mechanisms as litigation, arbitration and the ADRs such as mediation, conciliation and negotiation. Arbitration and the ADRs were certainly not called these English names and in several places may not even have had names distinguishing one from the other. Their characteristics (such as between arbitration and conciliation) were also no doubt, overlapping. That is why those trained in the British and other European or American systems have often had diffi culties distinguishing between them. 2 Those facts notwithstanding, Arbitration and the ADRs were mostly favoured and in vibrant employment by all segments of the society. They much more engendered a peaceful settlement of disputes and preservation of the pre-dispute cordial social or business relationships than litigation. The preference for peaceful or amicable settlement of disputes and restoration of pre-dispute cordiality has always been a part of African culture stemming from the deep-seated African principle of everyone being his brother’s keeper. In the colonisation process, each African kingdom or chiefdom was wholly or partly dismantled for the emerging colony to take root, with the result that