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The law and practice of customary arbitration in Nigeria: Agu v. Ikewibe and applicable law issues revisited

Published online by Cambridge University Press:  28 July 2009

Virtus Chitoo Igbokwe
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Extract

“Reservations about any concept do not automatically discredit it but allow for healthy and open debate to take place… the discussions that can arise from any such criticism, constructive or otherwise, can often lead to a greater awareness of the values of the system and ways in which it can be strengthened and made more effective in the interests of the general public.”

This article critically examines the controversies surrounding the law and practice of customary arbitration in Nigeria against the background of the decision of the Nigerian Supreme Court in Agu v. Ikewibe. The case law on customary arbitration is briefly reviewed with a view to demonstrating that prior to the Agu case, there existed a divergence of opinion among judges on some fundamental principles of the law and practice of customary arbitration in Nigeria, particularly with respect to the right of the parties to withdraw at any stage of the arbitration proceedings or even after the award is rendered. The article disagrees with the views of some judges and learned scholars that theres no distinction between customary arbitration and other consensus-oriented dispute resolution methods such as negotiation and conciliation. In disagreeing with these views, it is argued that in distinguishing customary arbitration from negotiation or conciliaion, the nature of the decision-making process should be of paramount consideration. It will further be argued that the binding nature or enforcement of the decisions of a judicial or quasi-judicial body differs from society to society. These enforcement mechanisms should not be divorced from the social relationships existing in a particular society. In conclusion, the article endorces the decision of the Supreme Court in Agu v. Ikewibe as the correct restatement of the law and practice of customary arbitration in Nigeria.

Type
Articles
Information
Journal of African Law , Volume 41 , Issue 2 , Autumn 1997 , pp. 201 - 214
Copyright
Copyright © School of Oriental and African Studies 1997

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References

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4 (1991) 3 Nigerian Weekly Law Reports, (part 180, hereinafter N.W.L.R) 385. The Supreme Court is the highest court in Nigeria and as a result, the judgment of the court takes precedence over any other case laws, be it foreign or local. See also Ohiaeri v. Akabeze (1992) 2 N.W.L.R 1. The Supreme Court followed the decision in Agu's case.Google Scholar

5 ibid, at 407. Italics supplied. The controversial issue is whether a party in those proceedings can withdraw from the process at any stage before or after the award. This is discussed below.

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7 (1988) 4 N.W.L.R. (part 90) 554.

8 ibid, at 566

9 ibid, at 571–73

10 (1985) 2 N.W.L.R. (part 78). The Nigerian Court of Appeal is one but is divided into various judicial divisions for administrative convenience and accessibility. A decision of Lagos division for instance has to be applied and followed by Kaduna division. Appeals from the Court of Appeal go to the Supreme Court of Nigeria.

11 ibid, at 586–87. Italics supplied.

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19 [1973] 3 ECSLR Pt. 1, 90.

20 [1974] 4 ECSLR251.

21 (1926) 6 Eastern Nigerian Law Report 10.

22 ibid. at 14.

23 [1958] 3 FSC 84.

24 ibid. at 86.

25 [1975] 5 ECSLR 221.

26 Ohiaeri v. Akabeze above, n. 4 at 24–25. See also Idika v. Erisi [1988] 2 N.W.L.R. [pt. 78] 983 at 986.Google Scholar “Whether the decision will operate as estoppel per rem judicatam or issue estoppel can only be decided when the terms of the decision is known and ascertained. If it qualifies to operate as res judicata, both parties are entitled to that plea. Similarly, if it qualifies as issue estoppel, each party will be entitled to that plea” (per Obaseki, J.S.C.).

27 See generally Elombi, George, “Customary arbitration: a Ghanaian trend reversed in Nigeria”, [1993] 5 African Journal of International and Comparative Law 803.Google Scholar

28 Ibid.

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38 Yosiyuki Noda, “The Far Eastern conception of law”, in David et al., Ibid., at 120.

39 Keba M'Baye, “The African conception of law”, in David et al., Ibid., at 138.

40 See Kim, Chin and Lawson, Craig M., “The law of the subtle mind: the traditional Japanese conception of law”, (1979) 28 I.C.L.Q. 491CrossRefGoogle Scholar: “Westerners are accustomed to the idea of justice under a system of rational and impersonal laws. Western society is litigation-oriented; social problems become legal problems, thrashed out in open court.”

41 Gulliver, P.H., “Case study of law in non-Western societies: an introduction”, in Nader, Law in Culture and Society, 11.Google Scholar

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