A Comparative Study of Modern and Customary Arbitration in Nigeria.
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
Table of cases vii
Table of statutes ix
Table of contents xii
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
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
184.108.40.206 International Arbitration 24
220.127.116.11 Domestic Arbitration 25
18.104.22.168 Institutional Arbitration 26
22.214.171.124 Ad hoc Arbitration 26
2.10 Advantages and Disadvantages of Modern Arbitration 27
2.10.1 Advantages 27
126.96.36.199 Privacy 27
188.8.131.52 Convenience 28
184.108.40.206 Speed 28
220.127.116.11 Simplified Procedures 28
18.104.22.168 Autonomy 28
2.10.2 Disadvantages 28
22.214.171.124 Autonomy 29
126.96.36.199 Speed 29
188.8.131.52 Cost 29
184.108.40.206 Finality 29
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
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
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
5.1 Summary 71
5.2 Findings 72
5.3 Recommendations 75
Internet Sources 81
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.
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