APPRAISAL OF CUSTOMARY LAW ARBITRATION IN NIGERIA

APPRAISAL OF CUSTOMARY LAW ARBITRATION IN NIGERIA

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CHAPTER ONE

GENERAL INTRODUCTION

1.1.        Background of the Study

Disputes, in their various guises, are an inevitable part of human interaction.[1]  No society exists of which there have never been differences.[2]  Indeed, conflicts among human beings are as old as life itself and will always exist.[3]

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.[4]  It could occur on account different subject matters, such as ideas or beliefs, values, material resources, roles and responsibilities[5] or from personal disagreements, religious crises, political, ethnic, marital disputes, chieftaincy matters, land and community boundary disputes and even economic conflicts.6

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.[6]  

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.11

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,15 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.16

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.17

1.1.2.1 Arbitration in the Light of Christianity

The Bible18 is the sacred writings of the Jews and the Christian church.  It comprises of sixty six books, divided into two parts, namely the Old Testament and the New Testament.  The original version of the Bible was written in Hebrew, Aramaic, and Greek languages.  The first English version, which was made from direct translation from the original Hebrew and Greek version and the first to be printed, was the work of William Tyndale.  This work was,

12

  See generally, C. K. Meek, Ibo Law (1931); W. R. T. Milne, Nsukka Division: Intelligence Report on the Town of Adani, Nsukka Division – Onitsha Province, (27th  Nov., 1934); Cadet Dixson, Intelligence Report on the Uvuru, Nimbo, Ugbene, and Abi Towns – Nsukka Division, (5th June, 1934).

13

  The Bible, 1 Kings 3: 28; Zechariah 8: 10; 1 Corinthians 6:5.  

14

   Holy Koran 4: 35. 15

  See for example, Gray B. Born, International Commercial Arbitration,Vol. 1, (The Netherlands:  Wolter

Kluwer Law and Business, 2009), pp. 21-22.Culled from online, <http://books.google.com>.  This source says that arbitration was known in ancient Egypt, with convincing examples of agreements included in funerary trust arrangements in 2500BC and 2300BC.  This website was last visited on 30th May, 2015. 16

   Watner, op. cit.

17

   See also, Nwakoby, op. cit., p. 1.

18

   The Bible is also called the Scriptures or the Holy Scriptures.

however, greeted with bitter opposition and its author and translator Tyndale was accused of wilfully perverting the meaning of the scriptures and his new testament were ordered to be burnt as “untrue translations.”  Tyndale was eventually betrayed into the hands of his enemies, and in October, 1536 was publicly executed and burnt at the stake.  Notwithstanding the circumstances of his demise, Tyndale’s work has become the foundation of subsequent English translations.[10]

The use of arbitration for the settlement of disputes is neither alien to the Jews nor Christianity. For example, in the Old Testament, King David acted as arbitrator on several occasions.[11][12] Account is also given in the Old Testament that between 900-1000 B.C., a dispute between two neighbours, who incidentally were harlots in the city of Judah (one of the twelve tribes of Israel) was amicably settled in a manner that is akin to arbitration.  According to the Biblical account, the disputants voluntarily submitted the dispute between them to a neutral and impartial third party, King Solomon, who incidentally was the King of that community, Israel.  The King arbitrated upon the dispute in accordance with the native laws and customs of the community.  He gave both parties to the dispute equal opportunities to state their own sides of the matter and expectations, which is a mark of fair hearing.  Incidentally, none of the parties called any witness because according to them, no witness was around when the incident occurred.   The King was said to have handed down the arbitral award after hearing both sides in a judicial manner.  The award was definite, unambiguous, in favor of one of the disputants, against the interest of one of the disputants, it finally disposed all the disputes submitted by the parties for arbitration, and both parties accepted the award as binding and final between them.  To this end, the Bible says, “And all Israel heard of the judgment which the King had rendered; and they stood in awe of the king, because they perceived that the wisdom of God was in him, to render justice.”[13][14]   Further, in support of the use of arbitration for the settlement of dispute among Christians, it was stated: “These are the things that you should do:  speak the truth to one another, render in your gates judgments that are true and make for peace, do not device evil in your hearts against one another, and love no false oath, for all these things I hate, says the Lord.”[15]

Furthermore, in the New Testament Christians were challenged, thus:  “I say this to your shame.  Can it be that there is no man among you wise enough to decide between members of the brotherhood, but brother goes to law against brother, and that before unbelievers?”[16][17] Jesus professed that the ancient philosophy paved the way for the modern philosophy and Him as the continuation of the old philosophy, as well as a reconciliation of the contradictions in the old philosophies.  Experience has shown that in many cases of disagreements in businesses, family disputes, and so on, Christians frequently resort to arbitration.  It is common for both parties to agree on one arbitrator, usually a Reverend Father, a Pastor, or any believer whose faith and reputation for fairness is well established within the community of believers.  Sometimes, an arbitral tribunal comprising of more than one arbitrator may be chosen as when a dispute between parties is submitted to the church elders or council for arbitration.

These clearly suggest that in the light of Christianity, God is the fountain of arbitration.  

1.1.3. Arbitration in the Light of Islam

In Arabic language, arbitration is known as Tahkim whilst an arbitrator is tagged Hakam.[18] Long before the arrival of Islam, the Arabs were aware of arbitration and used arbitration for the settlement of disputes.  

This opinion was equally captured in a scholarly article, titled: Arbitration under Islamic Shariah, where Zeyad Alqurashi observed as follows:

Resort to arbitration in the pre-Islamic period was optional and left to the free choice of the parties.  It relied on tribal justice administered by the chief of the tribe and trustworthy individuals instead of an organized judicial justice.  Likewise, arbitral awards were not legally binding unless there was an agreement between the parties to this extent.  In that period, there were no specific rules to limit the arbitrable subjects.  The arbitral proceedings were simple and rudimentary.  The arbitrator when hearing the dispute does not abide by any certain procedure, except for a number of certain procedures such as the obligation to hear the disputing parties on equal basis and the respect of the customary rules when examining the proofs presented by the parties.[19]

According to historical records, Islam came into being as a result of the revelation of the Koran to Prophet Mohammed in the 7th Century A.D.  When Islam came, it did not abolish the pre-existing method of settling disputes through arbitration.  Rather, it recognized and confirmed the system with some modifications.  Thus, Islamic jurisprudence recognizes arbitration as a valid mechanism for the settlement of disputes.  In addition, Islamic jurisprudence attaches great importance to the issue of arbitration.  This is amply demonstrated by the four sources of the Shariah, namely the Koran,26 the Sunna,[20] the Qiyas,[21] and the Idjma,[22]  as well as the four main Islamic schools, namely Maliki, Hanbali, Hanafi, and Shafi.30

Although, the validity of arbitration under Islam is not in doubt, dispute resolution is one of the richest areas of divergent opinion for the different schools of Islam.  For example, there is a division of opinion among Muslim scholars and jurists over the concept of arbitration based on the fact that the word Hakam is capable of different meaning.  Also, resort to arbitration by Caliph Ali Ben Abi Taleb in his dispute with Muawya Bin Abi Sofian was opposed by the Khawarege.31  According to one view, the objection is of little or no moment because even under the Western system of law, arbitration encountered similar controversies in its evolution.  But the others would insist that arbitration is a form of conciliation, close to amicable composition, which is not binding on the parties, and which is neither binding nor final unless it is accepted by the parties.32  According to the protagonists of this view, the following verse from the Koran is authority.   It reads, “If you fear a breach between them twain (the man and his wife), appoint (two) arbitrators, one from his family and the other from her’s; if they both wish for peace, Allah will cause their reconciliation.”33

The foregoing arguments, notwithstanding, the Koran is replete with instances supporting the use of arbitration for settlement of disputes among the Muslim faithful on several occasions.  In fact, experience has shown that Muslims frequently resort to arbitration for settlement of disputes arising between them. This is based on the belief that Islam is a religion, a way of life, as well as a form of governance.  The Koran says, “Indeed Allah is Ever All Knower, Well Acquainted with all things34… Verily, Allah commands that you should render back the trust to those, to whom they are due; and that when you judge between men, you judge with

each party appointed his arbitrator.  The two arbitrators were to decide who was to be the Caliph.  The two  arbitrators were nominated in the arbitration agreement document and drafted the arbitration agreement.  

30

  The characteristics of each of these Islamic schools were fully examined by, the Islamic Scholar, Zeyad  Alqurashi in his work, Alqurashi,supra; and we do not intend to repeat same here.  

31

   Alqurashi,loc. cit. 32

   Abdul Hamid El-Ahdab, Arbitration with the Arab Countries, (The Hague:  Kluwer Law Int’l, 1999) p. 16. 33

   Koran 4: 35.

34    Ibid.

justice.”35 Islam regards an arbitrator in the same way as a Judge, the qualities of which were clearly espoused in a letter written by Imam Ali to Malik Al-Ashtar, the Commander of the Faithful.  The letter reads, in part:

Select, as your Chief Judge from the people, one who is by far the best among them; one who is not obsessed with domestic worries; one who cannot be intimidated; one who does not err too often; one who does not turn back from the right part once he finds it; one who is not self-centred or avaricious; one who will not decide before knowing the full facts; one who will weigh with care every attendant doubts and pronounce a clear verdict after taking everything into full consideration; one who will not grow restive over the arguments of advocates and who will examine with patience every new disclosure of fact and who will be strictly impartial in his decision; one whom flattery cannot mislead; one who does not exult over his position.  But such people are scarce.36

Even though, detailed discussion of arbitration in accordance with Islamic law is beyond the scope of this dissertation, it must be noted that there is a dearth of reported cases on the operation of Islamic law arbitration in Nigeria.  It is now more than 50 years since Nigeria gained independence from the British colonial masters but the Supreme Court of Nigeria, the apex court in the land is yet to be seized of any opportunity to deal with any issue or issues arising from arbitration in accordance with Islamic law, which is one of the pillars of customary law in Nigeria.37

1.1.4. General Historical Evolution of Arbitration

Arbitration is not a new phenomenon.  It is one of the oldest methods of settling disputes.  It is as old as creation itself38 and can be traced into antiquity.39  As an institution, arbitration certainly pre-dates the State, the State Judiciary and the court system of adjudication,

35

   Koran 4: 58.

36

   Beheshi, loc. cit. 37


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