Taiwo Onifade, ESQ
Customary arbitration is not a strange concept that has just been introduced. The courts have held in several cases that arbitration is not alien to customary jurisprudence. It is one of the numerous methods of settling civil disputes in Nigeria. It is a traditional system of dispute resolution in which traditional rulers, elders, age groups and deities are actively involved in dispute resolution to ensure social justice and harmony within and among the communities. The practice of customary arbitration involves a process of referring disputes to the family heads, elders or chiefs for a compromise solution based upon voluntary submission by the parties and the ensuing award which is binding and enforceable.
Essential ingredients of a valid customary arbitration in Nigeria
The courts in a number of cases have laid down some essential ingredients of a valid customary arbitration. In the case of Agu v Ikewibe[1] the respondent as plaintiff instituted an action in the Umuahia High court against the appellant, claiming a declaration of title to a piece of land called “Okroto Aguzie” and fifty pounds damages for trespass. The respondent based his claim on traditional history, acts of possession and ownership. The respondent also relied upon the issue of arbitration in accordance with customary law carried out sometime in 1970.
The respondent averred in his statement of claim that when the defendant trespassed into the land in dispute, he was summoned before the chiefs and elders of the town who gave judgment in favour of the plaintiff and warned the defendant not to trespass again into the land. The defendant denied the plaintiff’s contention. At the end of the hearing, the trial judge rejected all the grounds relied upon by the respondents and dismissed all his claims. The respondent appealed to the Court of Appeal where it was held that there was an arbitration and that the result was binding on the parties and consequently, the appellant was estopped from denying the respondent’s title. The Court of Appeal therefore set aside the judgment of the trial judge. The appellant then appealed to the Supreme Court and the appeal was dismissed. The Court therefore identified the following as the essential ingredients of a valid customary arbitration:
- That there had been voluntary submission of the matter in dispute to an arbitration of one or more persons.
- That it was agreed by the parties either expressly or by implication that the decision of the arbitrators would be accepted as final and binding.
- That the said arbitration was in accordance with the custom of the parties or of their trade or business.
- That the arbitrators reached a decision and published their award.
- That the decision was accepted by the parties at the time of the award.
Status of a Customary Arbitral Award in Nigeria
The decision of a customary arbitration which is called an award must be shown to be certain, final, reasonable, legal, possible and must be shown to have disposed of all differences submitted to the arbitration. Unlike the judgment of a regular court which has the force of a law until set aside, the decision of an arbitration lacks intrinsic or inherent force until pronounced upon by a court recognized by law.[2]
It must be stated at this juncture that parties still take recourse to orthodox courts after customary arbitration award. Such award is not a judgment of the court of law and consequently, it is devoid of the force of law until it is so pronounced by a court of competent jurisdiction. If the court finds that the customary arbitration complied with the conditions herein before discussed, then the court will accord recognition to the arbitral award. The law is that when a party to any customary arbitration has accepted such a decision neither such a party nor his successor in-title can resile therefrom.[3]
Since customary arbitral awards cannot be enforced as a judgment of court, it can only be used as a shield and not a sword.[4] It is not open to a plaintiff in his statement of claim as he would thereby be impugning the jurisdiction of the court to which he has brought his action. A successful plea of customary arbitral award as estoppel per rem judicata ousts the jurisdiction of the court before which it is raised.[5]A plaintiff may plead the previous judgment in his favor not as res judicata but as a relevant fact and the judgment will be conclusive of the facts which it decided.[6]
Enforcement of Customary Arbitral Awards in Nigeria
Customary arbitral awards cannot be enforced as a judgment of the court without the cloak of enforcement from the Court, firstly, because of their oral nature, secondly because the authorities that render the award are not among the institutions listed under Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, with the ability to adjudicate and thirdly because customary law is a fact until proven and judicially recognized in a court of law.[7] The Court, in the case of Assampong v. Amuaka,[8] held thus:
Where matters in dispute between parties are, by mutual consent, investigated by arbitrators at a meeting held in accordance with native law and custom, a decision given, it is binding on the parties and the supreme court will enforce such decision.[9]
An issue of customary law is a question of fact. Generally speaking, customary law is a set of unwritten code. We cannot but fall back on case law for its exposition. Customary arbitration is a component of customary law. Case law shows that customary awards are not capable of enforcement as such without more steps taken. Customary awards must firstly be validated by a court’s pronouncement on its status. This must be in proceedings between the parties or their privies in which the award is specifically pleaded and proved. Upon such validation, the award would constitute estoppel.[10]The basis for the insistence on the court’s validation is to afford the court an opportunity to scrutinize the award and verify the existence of a number of condition precedents in view of the fact that an award is to operate as equivalent of a court’s judgment, possessing the same force and effects.[11] The first step in the direction of enforcement of a customary award is to file an action by way of writ of summons and proceed therefrom to pleadings, specifically pleading the essential ingredients required for a valid customary arbitration.
Conclusion
This article seeks to show that Customary Arbitration is part of our indigenous way of settling disputes and has been before the advent of the modern form of litigation, there is the need to revisit customary arbitration to look at how it can be a continuous veritable tool in the settlement of disputes in Nigeria and to achieve this this article proffer’s the following solutions:
- That written records of Customary Arbitration proceedings be kept and recorded for posterity sake.
- Registration of the awards in court registry and enforcement of awards by the court.
- Training of members of the native arbitral tribunals.
- Customary arbitration be included in the various window of ADR in states that have established multi-door courts, this will ensure its growth, development, awareness and confidence in the system
[1] (1991) 3 NWLR (pt180) 345
[2]Ofomata v Anoka, n15 at 253
[3]Oparaji v Ohanu [2001] FWLR (pt 43) 385; Oline v Obodo [1958] 3 FSC 84 Onwu v Nka [1996] 7SCNJ 404; Ume v Okoronkwo [1996] 12 SCNJ 404; Ojibah v Ojibah [1991] 5 NWLR (pt 191) 396; Nzeama v Ugoacha [2001] F.W.L.R. pt 48 p 1299
[4] Ibid (n28) Pg. 213
[5] Igwego v Ezeugo [1992] 7 SCNLJ 284 at 311; Achiakpa v Nduka [2002] FWLR (pt 71) 1804; Yoge v Olubode [1974] 1 A11 NLR (pt 2) 118
[6] Igwego v Ezeugo; See also Ukaegbu v Ugorji [1991] 6 NWLR (pt 196) 124.
[7] F.O. Akinmoladun, Enforcement of Arbitral Awards in Nigeria: An Appraisal of Emerging Trends., Available at <http://ssrn.com/abstract=1556607> lasted visited on 17/7/2020 pp48-49
[8] Assampong v. Amuaka (1932) 1 WACA 192
[9] Assampong v. Amuaka (1932) 1 WACA 201
[10] Ibid. n9, pg22
[11] Awosile v. Sotumbo, (1992) 5 NWLR [Pt. 243] p.514 at p.532, per Nnaemeka Agu, JSC
