Customary Arbitration as an Alternative Dispute Resolution Mechanism in Nigeria

CHAPTER ONE

INTRODUCTION

BACKGROUND OF THE STUDY

       It is a fact that life generally is a continuous succession of quarrels and disputes. Dispute is therefore part of life although a very sad part of it[1]. Also, the process of living and the imperative of interaction have all combined to make dispute inevitable. Thus, dispute is an inseparable part of staying alive. It is a part of growth and development. Disputes and conflict situations are not uncommon. Parties to conflicts or disputes may be individuals, corporate bodies, government institutions or different levels of government such as local, state or federal government. Within every, society, there is a mass of struggle moving at diametrically opposite directions, which invariably engenders disputes. Again there is a total lopsidedness of fortunes and opportunity leading to the improvement of the majority[2]. The rich jealously but selfishly guard their resources to the exclusion of the poor who are regarded as a mere caricature of human beings and are to be exploited at the slightest opportunity. This without doubt is a veritable breeding ground for disputes[3]. It follows therefore, that dispute may arise between individuals inter se and there may be diverse causes of disputes at that level. For instance, disagreement may arise as regards the terms of existing contracts between individuals. Be sides, such disagreement may arise as result of a claim or/and counter claim of ownership over a property. Still at the level of individuals, a claim for maintenance, custody of children, or other matrimonial reliefs may be the focus of matrimonial dispute.

       Secondly, a dispute may arise between an individual and the state. For instance a violation of the fundamental rights of individual by the state marks the beginning of a dispute between the individual and that State[4]. Furthermore, there could be a dispute between individuals and different institutions or components of the state. A common cause of such dispute may be as a result of contractual relationship.

       Again, in a federal political environment such as Nigeria with three tiers of governmental authorities, there are probabilities of disputes arising between the federating State inter se as well as between the federating states (or any one of them) and the federal governments[5]. Lastly, disputes do sometimes arise between sovereign nations[6].

       Irrespective of the type or nature of dispute, whether it is socio-political[7], commercial, industrial, environmental, local or international, it is always imperative that search be made for a resolution of the dispute as soon as possible. This is to checkmate possible escalation of such disputes. Thus, dispute and their resolution is a phenomenon which we cannot afford to ignore or sweep under the carpet, at least for our continued existence.

       In pre-colonial Africa, there were various mechanisms for resolution of disputes, prominent among this is the traditional or courts, which has become the contemporary term used when referring to popular justice structures as street or compound committees operating outside the formal justice system. One of the enduring attributes of the African traditional courts is that, it is cheap and accessible. The languages that is used is understood within the community with the opportunity of hearing civil and criminal cases flowing from the same set of facts simultaneously[8]. The traditional court is sensitive to local community’s values and is based on restorative justice[9]. The traditional African society attaches great importance to settlement of disputes without confrontation through litigation.

       It follows from the foregoing, that prior to colonial rule in Nigeria, our natives had already established traditional methods of resolving disputes through traditional institutions such as village heads, elders and family heads. Little wonders Ezediaro[10] stated that:

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

Also, the Supreme Court has in the case of Ohiaeri v. Akabueze[11], Judicially reaffirmed the historical existence of customary arbitration as a process of dispute settlement in Nigeria where it defined customary arbitration thus;

Arbitration in dispute resolution is founded upon voluntary submission to the decision of the arbitrators who are either chiefs or elders of their community and the agreement to be bound by such decision and a freedom to resile where unfavorable.

       Accordingly, it is safe to submit that customary arbitration process has for long been with Nigeria and is recognized as one method employed in the administration of justice. Significantly the use of customary arbitration in settlement of dispute is democratic in nature because of its characteristics feature, particularly, respect for tradition, fear of sanction and spiritual or legal effect of disobedience to decision[12]. This position is evidenced by the observation of Webster J.B and Bouhen A.A[13], that;

Quarrels between individual of different families in the ward were settled before the people in the ward, elders acting as arbiter. Quarrels between wards come before the full assembly… A man might attempt to settle with the individual who had aggrieved him, if this failed he could ask respectable elder (s) to intervene or call members of the family together, he could also ask the ward or village head to solve the case.

       The affirmation of the legality and validity of customary arbitration complemented the fact of its historical existence in dispute resolution in Nigeria even before the introduction of English litigation system through courts, inherited from the imperialist. This is equally captured by the supreme court pronouncement per Karibi Whyte[14] JSC where he said;

Where a body of men be they chiefs or otherwise, acts as arbitrators over a dispute between two parties, their decision shall have binding effect, if it is shown firstly, that both parties submitted to the arbitration, secondly that the parties accepted the terms of the decision, such decision has the same authority as the judgment of judicial body and will be binding on the parties and thus create an estoppel.

       It is instructive therefore to submit that the indigenous natives and communities in Nigeria have a well set of established and sophisticated mode of administering justice before the introduction of court litigation base of dispute settlement.

       However, over the years, dispute resolution mechanisms have constantly undergone continuous transformations throughout the history of man. In the middle ages, barbarism was the order of the day, might was right and right were enforced through physical means and sometimes the force of arms. With time, law entered the scene through the common law as a means of resolution of disputes. Later, the problems inherent in the strictness of the common law rules were subsequently to be mitigated through the introduction of equitable principles, today, it is common knowledge that some of the equitable principles hitherto held as being magical have proven inadequate. Many modern judicial systems now incorporate arbitration and other alternative dispute resolution (ADR) process for the effective and efficient resolution of various types of disputes.These other processes include negotiation, mediation conciliation, mini-trial, ombudsman, rent-a-judge, med-arb, arb-med, the multi-door court house, and Hi-Low arbitration etc.

       It should be noted however, that before the development of ADR as we now know it, the practice of Arbitration was developed as an alternative medium of resolving disputes. This was due to the fact that litigation no longer provided the kind of solution that litigants aspired for. Thus, research in this area becomes most relevant at this point in time in view of the current upsurge and global acceptance of alternative dispute resolution mechanism as against litigation in dispute resolution. This is fast growing world over because of the problems associated with court litigation. The problems of court litigation among which were identified include, delay in conclusion of cases, which has accounted for congestion of courts and prison of criminals awiating trial, the technicality involved in litigation, expensive nature of litigation, and that litigation hardly bring about mutuality in dispute settlement. That is, parties may not remain friends usually at the end of court litigation[15]. According to Taiwo[16], at the inception of the introduction of the English legal system, there was no problem of congestion in our courts because of the low level of awareness and the pedestrian level of our economic and commercial activities. However, no sooner had the level of our economic activities recorded a phenomenal growth than the issue of courts congestion became a serious problem for those who are concerned with quick dispensation of justice.

       Also, justice O.O. Oke[17] of the Lagos High court is of the view that the administration of justice system in Nigeria has capitulated as a result of congestion in the courts which has led to anger and agony to the parties. According to her;

Delay in resolution of disputes among parties is definitely a primary enemy of justice, peace and instability in any economy or society, frustration, distrust and anger keep rising during the trial or even at every court appearance. If we have been in bondage of case congestion in our courts, why can’t we explore other means of dispute resolution that will give us the freedom we need and bring giving to our justice delivery system[18].

       This researcher is certainly in agreement with Justice O.O. Oke that the administration of justice system in Nigeria is in bondage of court congestion since our economic activities have arisen and commercial organizations have been exploring new market and with the accompanied new technologies. The congestion is further exacerbated by the over zealousness of the counsel who files cases that ought to be settled in chambers apparently to display the ingenuity of their skills. It is also a well-known fact that our court rooms are ill-equipped, characterized by incessant power outages. The levels of our economic activities and inter-personal relationship have risen to such a level that exclusive reliance on the adjudicatory method of settling dispute is no longer satisfactory. Thus, this research is meant to discuss alternative dispute resolution methods with special emphasis on customary arbitration as an aspect of A.D.R. in Nigeria.

1.2 STATEMENT OF THE PROBLEM

       Over the years, litigation, a Western idea and concept of dispute resolution and justice dispensation, has held sway. The training and orientation of legal practitioners in Europe and America lend credence to this assertion. Its peculiar focus is on judicial intervention through adversarial procedure in the resolution of dispute between individuals inter se as between individuals and the state. With the demise of colonialism and the attainment of political independence, adjudicatory process of dispute resolution became a long lasting legacy of the British to the Nigerian state system. Yet, evidence abounds as to the existence of acceptable and accepted traditional methods of dispute resolution in the then British colonies. However, the effect of colonialism and the manipulation of an average educated Nigerian at that time made him forget or refuse to see the beauty of and wisdom behind his age-long traditional methods for resolving disputes which methods predated the arrival of the British in the Landmass constituting the present day Nigerian state. Thus, the adjudicatory system was accorded such orchestrated importance to the detriment and peril of the traditional African dispute resolution processes.

       It follows from the foregoing, that arbitration as a means of settlement of disputes is part of the customary norms of Nigeria. It is older than the courts in Nigeria and even before written history, communities and individuals were known to have chosen or appointed “arbitrators”, to settle disputes between them.

       However, it is unfortunate to observe that notwithstanding the advantages inherent in this system, parties to a dispute tend to ignore it in resolving their disputes. According to Chief Mrs. Tinuade Oyekunle, a local and international arbitration Practitioners:

The Nigerian society has over the years indulged in the over use of litigation processes for the resolution of most categories of disputes, which easily can be resolved by alternative settlement methods prior to reaching the court house. The litigation culture has become almost endemic in the Nigerian society so much so that family disputes, which were originally solved by the elders became court actions between both nuclear and extended families[19]

       Therefore, it is save to say that the advent of colonialism and its consequent introduction of English legal system which is litigation based, did a lot of harm to our customary system of dispute resolution. But, in our Nigerian society today, it is quite obvious to everyone that the litigation based system of dispute resolution has not been able to meet the yearnings and aspirations of disputants. For instance, it has been established that litigation lasts longer than necessary Ajani v. Giwa[20]court unfortunately observed that:

As at now, this case has been before the courts for 16 years. There is definitely something radically wrong with a system that takes up to 16 years before a claimant can know whether or not he is the owner of a piece of land.

       It has been equally established that litigation is too expensive[21]. Obviously, poor people will be unable to obtain judgment in court simply because they cannot afford to obtain the services of a legal practitioner as well as other necessary payments (filing fees).

       There is also the issue of unhealthy relationship which litigation creates on the disputing parties. This is because litigation merely brings to an end a dispute which does not, in strict sense, amount to resolution to the dispute; because, the parties to a dispute resolved by the court do nurse grudges against one another, months or years after the purported resolution of the dispute by the court[22]. Also, lawyers are not helping matters in this regard as they go extra miles to ensure that judgment is entered in their client’s favor. This they do by making a factually and ethically reprehensible case a good one in all conceivable and inconceivable way. This makes people to look at lawyers as liars[23].

       Thus, in the case of White House V. Jordan[24], the trial judge lambasted the lawyers for the plaintiff for ‘doctoring’ the expert evidence of their client to the detriment of the other party to the dispute in particular, and the interest of justice in general.

       In view of the above, and the global trend of finding and using appropriate means of dispute settlement, it is high time we explored the advantages inherent in customary arbitration as a means of settling disputes in Nigeria. As Ajayi has rightly posited:

“It is not surprising that after many years of British connection with and administration in Nigeria ranging in various parts from sixty to about one hundred years, English law and English legal concepts have not been received in total replacement of the customary laws of the country. History has shown that even conquerors of comparatively less advanced peoples than themselves have rarely even succeeded in replacing the old laws of the conquered in their entirety with those of the conquerors”[25].

1.3 RESEARCH QUESTION

       Having studied the Practice of customary arbitration as an alternative dispute resolution (ADR) mechanism in Nigeria, the following questions have been formulated, with the hope to addressing them in the course of this research.

  1. What is the meaning and nature of customary arbitration?
  2. What is the validity for the applicability of customary arbitration in Nigeria?
  3. Can a party to a customary arbitration resile from it midstream?
  4. Can customary arbitration constitute an estoppel?
  5. To what extent is the customary arbitration an effective ADR mechanism?
  6. What is the attitude of Nigerian courts to customary arbitration?

1.4 RESEARCH OBJECTIVES

     For every research, there must be an aim for the research. In this research, it is my paramount aim to do the following:-

  1. To examine the meaning and nature of customary arbitration
  2. To examine the validity for the applicability of customary arbitration
  3. To determine the rationale behind the withdrawal of parties to customary arbitration midstream and the effects therein.
  4. To determine whether or not customary arbitration can constitute estoppel.
  5. To explore the advantages of ADR over litigation, the features of customary arbitration and how it can effectively be used as an ADR mechanism in solving some of the problems inherent in our legal system which litigation has not been able to solve.
  6. To examine the attitude of Nigerian courts to customary arbitration.

1.5 RESEARCH METHODOLOGY

       The methodology applied in this work is the doctrinal research methodology. This involves the use of primary sources such as case laws, and the use of secondary sources of data collection such as textbooks written by eminent authors, journals, Articles, newspaper as well as internet sources etc.

1.6 RELEVANCE OF THE STUDY

       This research work will be of benefit to the generality of Nigerians, especially those poor ones who cannot afford the cost of litigation. This research will prove to them that indeed, poverty is not a barrier to getting justice as litigation made it to look. That through customary arbitration, issues or differences between parties can be resolved amicably and quick too.

       The research will equally attempt to resolve the argument whether or not customary arbitration can fit in as an Alternative Dispute Resolution mechanism in Nigeria.

       This research will also be relevant to the upcoming researchers who will intend to research in this field as it will serve as a guide to them.

       This project will serve as a guide to judges and practitioners as it intends to address the divergent issues as to what amounts to the criteria for a valid customary arbitration. This will be achieved through a critical research to get recent decided cases that will remove the confusion created by Agu V. Ikewibe,[26] and Oparaji V. Ohanu[27] .

       By explaining the advantages of Alternative Dispute Resolution (ADR) over litigation, this work will create awarness on Nigerians, to enable them to know the appropriate means of dispute resolution to adopt in the emergence of dispute between them.

       Also, since customary arbitration is not restricted to lawyers alone, none lawyers can practice it even without educational qualifications. This will be of greatest benefit to the people as they will now known where and how best to settle their dispute amicably.

1.7 SCOPE OF THE STUDY

       The concept as Arbitration like any other concept in law is very broad and needed to be restricted to customary arbitration as an ADR mechanism in Nigeria. The researcher tends to buttress the meaning, nature, advantages as well as the criteria for a valid customary arbitration in Nigeria. This work will also examine the attitude of courts towards customary arbitration in Nigeria. Above all, this research will examine the effectiveness of customary arbitration as an ADR mechanism in Nigeria.

1.8 LIMITATION OF THE STUDY

     Generally, in carrying out an effective research work, many huddles must be encountered. Thus, in this research, the following problems were experienced:

  1. The time frame was completely inadequate, therefore, one have to deny himself many things in order to meet up with the allotted time.
  2. Lack of sources was another challenge that faced the researcher as at the time of writing this work. For instance, lack of materials, especially recent decided cases in the law library posed a serious threat to the researcher.
  3. Money has always been the problem of the students, let alone a research student. Therefore, the money needed to facilitate this research work was the greatest set back in the course of the research work.

[1] L.O. Taiwo ‘Alternative Dispute Resolution Methods: The Panacea for Court Decongestion in Nigeria’ Ife Juris Review (2004), Vol.1 P.321.

[2]  Ibid.

[3] . Oputa C. J.S.C ‘Peace Building and Non-violent Conflict Resolution: Approaches in Nigeria’ in the guardian News paper, Lagos, May 15, 2003, P.13.

[4]. See Shugaba Darman V. Minister of Internal Affairs (1981) 2 NCLR, p. 459.

[5] . Attorney –General of Bendel State V. Attorney-General of the Federation and 19 Others [19981] 10- S.C.I.

[6]. For instance, the dispute between Nigeria and Cameroon over the Bakassi Penisula. etc

[7] . Odeyale and Anor. V. Babatunde and 3 Ors (2009) 11NMLR, P.301

[8]. See L.O. Taiwo, Op.Cit P.321

[9] . South African law Commission Issue Paper and Alternative Dispute Resolution, available at www.server.Law.wit/issue/p.8.

[10] . Ezediaro, Guarantee and Incentive for foreign Investment in Nigeria (1971) 5 International Law 770 at 775.

[11] [1992] 2 NWLR (Pt.221) 1 at 7

[12].I. Imam “ The Legal Regime of customary Arbitration in Nigeria Revisited” Available at ww.unilorin.edu.ng.

[13]. Webster J.B. and Bouhen A.A. (1967) The Revolutionary years of West Africa Since 1800; Longman (Nig) PP.102-103.

[14]. Egesimba V Onuzurike [2002] 9-10 SC 1 at 19 . see also Agu V. Ikewibe [1991]3 NLR (pt.180) 385.

[15] .www.Unilorin edu.ng.

[16] . L.O. Taiwo Op. Cit P.322

[17]. Hon Justice O.O. Oke (Mrs.), “Decongesting the court, the place of Lagos multi-Door courthouse” a paper presented at the workshop on the Lagos multi-Door court House Sept.30, 2003.P.I.

[18]. Hon.Justice O.O. Oke, Ibid. P. 3

[19] . Tinuade Oyekunle (Mrs.), “ The Lagos multi-door Courthouse and the Bar; A Success story”, A paper presented at the workshop on the Lagos multi-door courthouse, Sept. 30, 2003, P.4.

[20] . (1986) 3 N.W.L.R. (Pt.32)P.797

[21]. L.O. Taiwo, Op. Cit P. 322

[22]. See E.A. Odike and M.A. Ajanwachukwu, ‘Fundamentals of Nigeria Legal Methods’ (Enugu, Tink Graphics, 2008)P.193.

[23] . Ibid P. 209

[24] . [1980] ALL. E.R. 650

[25]. See Ajayi, “ the interaction of English with Customary law in Western Nigeria” , (1960) “ J.A.L. 98 at 103; Ayua “ The Blend of customary law with English Law”, (1986-90) 4-8 Ahmadu Bello University Law Journal 1, 5-6

[26]. (1991) 3 N.W. L.R. (pt.180) 385 at 407

[27] (1999) 9 NWLR (pt. 618) 291

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