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A Comparative Study of Modern and Customary Arbitration in Nigeria

Filed in Current Projects, Law Project Topics by on July 3, 2020

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A Comparative Study of Modern and Customary Arbitration in Nigeria.

ABSTRACT

This thesis conceptualized dispute as an integral part of man’s existence and a common occurrence in human societies which could arise as a result of differences in opinion, political ideologies, bad  governance, ethnic  nationalism, land  matters, family issues, some economic  or religious reasons, and in some cases a combination of two or more of these factors which may lead to conflicts.

These conflicts may result in strained relationships, loss of lives and/or properties, hence the need for a dispute settlement mechanism which may be modern or traditional. The major issues for determination are, whether arbitration is a necessity and has been a successful tool in amicable  resolution of disputes;  and  whether  customary arbitration is more effective than modern arbitration.

It is in the light of the foregoing that this work compared modern arbitration to customary arbitration. The comparison is with a view to realizing which option would be more practicable in terms of amicable resolution of disputes. The research methods adopted are doctrinal and empirical.

Judicial decisions, statutes  and books on arbitration were useful to this research. Data was also  collected through distribution of questionnaires. This thesis examined the concept of arbitration as a dispute resolution process. It also examined some provisions of the Arbitration and Conciliation Act, Cap A18, LFN 2004 and some case laws on the essential ingredients of arbitration.

It noted that arbitration has been used successfully over the years to achieve amicable  resolution  of disputes. However, inspite of its tremendous achievements, arbitration is faced with some challenges.

These include the attitude of Nigerian courts towards enforcement of customary arbitral awards, high level of illiteracy of the customary arbitrators, highly formalized and legalistic nature of modern arbitration.

At the conclusion of the research, it was found among other things that modern arbitration is expensive and may not be accessible to the common  man. It was also found that feuding parties in traditional communities use traditional  approaches to resolve their conflicts because they find customary arbitration more accessible, quick and cheap.

Consequently, the thesis recommended for the promotion of modern  education and capacity building in the form of paralegal training for the operators  of  customary arbitration and that priority should be given to customary arbitration which is cheaper, faster, less formal and accessible to the common man.

 

TABLE OF CONTENTS

Title page i
Declaration ii
Certification iii
Dedication iv
Acknowledgements v
Table of cases vii
Table of statutes ix
Abbreviations x
Abstract xi
Table of contents xii

CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background to the Research 1
1.2 Statement of the Search problem 2
1.3 Objectives of the Research 4
1.4 Justification 4
1.5 Scope of the Research 4
1.6 Literature Review 5
1.7 Research Methodology 8
1.8 Organizational Layout

CHAPTER TWO
CONCEPTUAL CLARIFICATION
2.1 Introduction 10
2.2 Meaning, Goal and processes of ADR 11
2.2.1 Meaning 11
2.2.2 Goals 11
2.3 Conciliation 12
2.4 Mediation 13
2.5 Negotiation 15
2.6 Mini-Trial 18
2.7 Med-Arb 19
2.8 Litigation 19
2.9 Arbitration 20
2.9.1 Types of Arbitration 23
2.9.1.1 International Arbitration 24
2.9.1.2 Domestic Arbitration 25
2.9.1.3 Institutional Arbitration 26
2.9.1.4 Ad hoc Arbitration 26
2.10 Advantages and Disadvantages of Modern Arbitration 27
2.10.1 Advantages 27
2.10.1.1 Privacy 27
2.10.1.2 Convenience 28
2.10.1.3 Speed 28
2.10.1.4 Simplified Procedures 28
2.10.1.5 Autonomy 28
2.10.2 Disadvantages 28
2.10.2.1 Autonomy 29
2.10.2.2 Speed 29
2.10.2.3 Cost 29
2.10.2.4 Finality 29

CHAPTER THREE
OVERVIEW OF CUTOMARYARBITRATION
3.1 Introduction 30
3.1.1 The Yorubas 30
3.1.2 Igbo Community 32
3.1.3 The Hausas 33
3.2 Customary Arbitration in Nigerian Jurisprudence 35
3.3 Essential Ingredients of Customary Arbitration 37
3.3.1 Voluntary Submission to Arbitration 42
3.3.2 Agreement by the parties that decision of the Arbitrators
Would accepted as final and Binding 44
3.3.3 Arbitration was in accordance with the Custom of the parties or their
Trade/Business 45
3.3.4 The Arbitrators reached a decision and published their award 46
3.3.5 That Decision was accepted by the parties at the time of the award 48
3.4 Advantages of Customary Arbitration 49
3.5 Disadvantages of Customary Arbitration 51

CHAPTER FOUR
4.1 Introduction 53
4.2 Similarities 53
4.3 Differences 55
4.3.1 Submission under Customary Arbitration Vis-à-vis ModernArbitration 55
4.3.2 Right to Resile 58
4.3.3 Role of the Parties 59
4.3.4 Oath taking 60
4.3.5 Writing 62
4.3.6 Effects of Customary and Modern Arbitration 62
4.3.7 Qualification of Arbitrators 64
4.3.8 Sources of Arbitration 64
4.3.9 Theoretical Difference 64

CHAPTER FIVE
CONCLUSION
5.1 Summary 71
5.2 Findings 72
5.3 Recommendations 75
BIBLIOGRAPHY
Books 77
Articles 79
Internet Sources 81
Appendix 82

GENERAL INTRODUCTION

Background to the Research

Disputes are generally inevitable resulting from human interactions. They may be family disputes, land related disputes or disputes resulting from commercial transactions. Whenever dispute arises between two persons or more, there may be need for a neutral  party,  independent or non interested person as the case may be to intervene between the disputants with a view to solving the misunderstanding or dispute.

This ensures peace, harmony, order, security and overall development of the society. However, if dispute arises and effort is not made to resolve it, it can lead to break down of law and order in the society.1

The advent of colonialism in Nigeria did not merely distort the culture of Nigerians,  but brought with it many long lasting effects on the people. One area in which  this distortion is most noticeable is in the area of administration of justice, particularly in the methods or mechanisms for dispute resolution.

In the process of litigation, parties incur a lot of costs in the form of filing fees, professional fees of their lawyers and other incidental expenses. As human activities and interactions increased, people became more aware of their rights and also desirous of protecting those  rights. All these had an impact on litigation. Therefore, the courts became congested and the process, slower.

Despite the rise in the inherited colonial modes of justice and dispute resolution in Nigeria, indigenous or traditional modes of dispute resolution persist.

The practice of arbitration has always been a more economical and friendly method of  resolving disputes both in traditional and modern settings. Dispute settlement through the process of arbitration had been with various indigenous communities in Nigeria before the advent and introduction of English Legal System of court litigation or  what  we  call adversarial process. The various indigenous methods of resolving disputes include but not limited to negotiation, mediation and intervention by heads of clans or family  heads  and indeed arbitration.

Arbitration has been used successfully over the years to achieve amicable resolution  of  disputes without recourse to the tedious process of litigation. However, inspite of its tremendous achievements, arbitration is faced with some challenges.

These  include  the attitude of Nigerian courts towards enforcement of customary arbitral awards, high level of illiteracy of the customary arbitrators, highly formalized and legalistic nature of modern arbitration etc.

   Statement of the Research Problem

Disputes may arise in the course of daily human interaction.  These  disputes  may emanate from commercial activities, trade related disputes, contracts, family, land  or  communal disputes among neighbouring villages.

Whenever dispute of any nature arises and effort is not made towards amicable resolution, it may pose serious problems to the society. It can lead to killings, partial or total collapse of economic activities and break down of law and order which may ultimately lead to anarchy.

Customary arbitration proceedings have some major deficiencies. For example, it was a common practice for parties to contest their initial submission and to also  abandon  the  decision of the arbitration. This was due largely to the leeway created by some  decisions  of our superior courts regarding voluntary submission and the rights  given  to  parties  to withdraw midstream.5

While there is no contention about the existence and legitimacy of modern arbitration under Nigerian law, there are some judges who believe that customary arbitration is unknown to the law of the land.6 One reason why modern arbitration is settled  is the power of the statutes that  it enjoys.

Customary law, let alone customary arbitration is  generally not a written  law  and that constitutes a weakness because the records are not kept for easy reference. Furthermore, customary arbitral processes are usually administered by elders and chiefs who are mostly illiterate and as such may not keep to the basic rules of natural justice.

Modern arbitral process seems to have lost its early simplicity. It has become more complex, more legalistic and more institutionalized. In spite of these short comings, customary  arbitration which predates and is simpler than modern arbitration  seems  to  have  been relegated to the background.

The questions for determination are, whether arbitration is a necessity and has been  a successful tool in amicable resolution of disputes; and whether customary arbitration is more effective than modern arbitration.

BIBLIOGRAPHY BOOKS

Allot, N., Essays in African Law, Butterworth, (1960) London

Amazu, A., International Commercial Arbitration and African States. Practice, Participation and Institutional Developemt,Cambridge University Press (2001)

Elegido, J.M., Jurisprudence, Spectrum Law, (2001)

Emiola, A., Principles of African Customary Law, Eniola Publishers Ltd, Ogbomoso (1997)

Ezejiofor, G., The Law of Arbitration in Nigeria, Longman Nigeria, (1997)

Garner, B., Black’s Law Dictionary, St. Paul, West Group Publishing, (7th ed.), 1997 Halsbury, Laws of England, Butterworths, London ,(3rd ed.), (1994)

Leo, K., Cases and Materials on Alternative Dispute Resolution, American Casebook Series, West Publishing, Minnesota (1985)

Longman Dictionary of Contemporary English, (3rd ed.), Longman Publishers, 2000  Moore, C.W, The Mediation Process. Practical Strategies for Resolution of Conflict. (2nd ed.) , Jossy Bass, 1996

Orojo, J.O., Ajomo, M.A., Law and Practice of Arbitration and Conciliation in Nigeria, Mbeyi & Associates Nig. Ltd., Lagos (1999)

Paul, M., International Arbitration & Dispute Resolution Directory, “A Summary of Dispute Resolution Directory, (1997)

Peters, D., ADR in Nigeria, Principles and Practice, Dee-Sage Nigeria Limited, Lagos (2004)

Peters, D., Arbitration and Conciliation Act Companion, Dee-Sage Nigeria Limited, Lagos (2006)Qari, M., Holy Qur’an, Raj P Nigeria Ltd

Roberts, S., Palmer, M., Dispute Processes: ADR and the Primary Forms of Decision- Making, Cambridge University Press, New York (2005)

Roberts, S., Palmer, M., Dispute Processes: ADR and the Primary Forms of Decision-Making, Cambridge University Press, New York (2005)

Schapera, A., Hand book of Eswana Law and customs, Oxford (1959)

Wali, A.B. ‘The Viability of Sulh to Sharia based States in Nigeria’ In: Aliyu I.A(ed) Alternative Dispute Resolution and some contemporary Issues, Legal Essays in

honour of Hon. Justice Ibrahim Tanko Muhammad, M.O Press & Publishing Ltd Kaduna (2010)

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