APPRAISAL OF CUSTOMARY LAW ARBITRATION IN NIGERIA

posted on June 27, 2018

APPRAISAL OF CUSTOMARY LAW ARBITRATION IN NIGERIA

CHAPTER ONE

GENERAL INTRODUCTION

1.1. Background of the Study

Disputes, in their various guises, are an inevitable part of human interaction. No society exists of which there have never been differences. Indeed, conflicts among human beings are as old as life itself and will always exist.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. It could occur on account different subject matters, such as ideas or beliefs, values, material resources, roles and responsibilities or from personal disagreements, religious crises, political, ethnic, marital disputes, chieftaincy matters, land and community boundary disputes and even economic conflicts. 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, 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. 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 behave exactly as he likes. As soon as a second arrives, however, the two of them must come to some arrangement or agreement as to how they are going to get along together … Every society in every age has found it essential to work out a code of rules to which its members must conform, for otherwise there would soon be no society at all – only rival gangs of thieves fighting endless vendettas against one another. [7]

Similarly, the African Mediation and Community Service posited that:[8]

Disagreements and misunderstanding are key characteristics of human relationships whether the relationship is a domestic, national or international one. The potential for disputes is even higher where the parties are from different cultural, economic and political backgrounds with different legal systems. Since disputes are such a critical part of human relationships, many countries have mechanisms to resolve them in a manner, which maintains the cohesion, economic and political stability of the state.

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.[9] 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 universal human institution. It is the product of a universal human need and desire for the equitable resolution of differences invariably arising from time to time between people by an impartial person having the confidence and authority from the disputants themselves. 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, and anthropological records;12 the Bible;13 Koran;14 and in records from the ancient Egypt, 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. 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.

[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-articles/73-history/391arbitration-in-islam>. This website was last visited on 14th May, 2015.

[3] For example, Olubayo Oluduro, “Customary Arbitration in Nigeria: Development 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.

[6] See also, Beheshi, loc. cit.

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

[8] African Mediation & Community Service, <http://www.metros.ca/amcs/international.htm>. This website was last visited on 2nd November, 2014.