resolve the controversy surrounding the existence and validity of customary arbitration, gave birth to a new and more intense controversy, especially in respect to the condition which enabled a party to resile from a customary arbitral process.140 The Supreme Court in its more recent decisions however seems to have deviated from the principle in Agu v Ikewibe.141 For example, in the case of Igwego v Ezeugo,142 the Supreme Court “omitted” the controversial condition which gives parties the right to resile. The dispute in this case was over a parcel of land known as Ezeugo land situate at Umueze family of Adazi-Ani and clearly shown on the Plan E/GA.1054/75. The dispute was mutually referred to a traditional institution known as the Peace Committee for arbitration. The arbitrators’ decision, which was against the appellant, was upheld by both the High Court and the Court of the Appeal, subsequent upon
135 (1991) 3 NWLR PT 180. 136 ibid.
137 Tochukwu Maduka, ‘The Binding Effect of a Customary Arbitration Award: Exorcizing the Ghost
of Agu v Ikewibe’ (2014) 58(2) Journal of African Law 328, 350.
138 (1991) 3 NWLR PT 180. 139 Ibid.
140 The Court of Appeal in a series of decisions followed Agu v Ikewibe. See Ebere v Onyenge (2000) 2
NWLR (Pt 643) 62 and Obioha v Akukwe (2002) 5 NWLR (Pt 658) 699 among others.
141 (1991) 3 NWLR PT 180. 142 (1992) 6 NWLR (Pt 249) 561.
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which he appealed again to the Supreme Court claiming that the decision of the Peace Committee could not stand as a ground for a plea of estoppel per rem Judicatam. Honourable Justice Nnaemeka-Agu in support of the majority decision of the court held that “where parties to a dispute voluntarily submit their dispute to a customary body of persons such as the Peace Committee in this case for adjudication and agree to be bound by the decision of the body on the issues in controversy between them, if the body goes into the matter, hears both sides and reaches a decision, the law takes the view that the parties to the dispute had chosen their own forum rather than the courts. None of the parties will be allowed later to back out of the decision if it does not favour him. He will be bound thereby and the successful party can plead the decision as estoppel”.
It should be observed that the Supreme Court in Igwego’s case limited its pronouncements to the validity of an arbitration award and not the agreement itself. It would seem that the Supreme Court was only willing to enforce the arbitration agreement if the parties successfully went through the customary arbitration proceeding. It however did not address a situation where parties enter into a customary arbitration agreement and one of the parties refuses to submit to the arbitration proceeding. Was a party allowed to resile from his arbitration agreement by refusing to submit to the customary arbitration panel or could the court give an order mandating him to submit to the customary arbitration tribunal by virtue of his arbitration agreement?
Without expressly addressing this question, the Supreme Court in Okparaji v Ohanu143 somewhat expressed its willingness to enforce a customary arbitration agreement if given the opportunity to do so. This case was a claim for customary declaration of title to land. The court in this case held that “Nigerian law recognizes and accepts the validity and binding nature of arbitration under customary law, if it is established;
1. that both parties submitted to the arbitration;
2. that the parties accepted the terms of the arbitration and;
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3. that they agreed to be bound by the decision of the arbitrators”.
This decision obviously takes care of a situation where a party to a customary arbitration agreement suddenly becomes uncooperative and refuses to submit to an arbitrator’s jurisdiction and/or attend arbitration proceedings. Even though this has not been tested yet under Nigerian law, it seems safe to submit that going by the decision of the court in the Okparaji v Ohanu,144 a party to an arbitration agreement can
successfully approach the court to obtain an order mandating an uncooperative party to participate in customary arbitration proceedings if he successfully shows the existence of the conditions stated in the case.
The Supreme Court however seemed to take a step backwards in the case of Onyege v Ebere.145 This case was a claim for Customary right of Occupancy over a piece of land called Egbelu Ulogor. According to the respondents, their ancestors had pledged the land in question to the appellants for four hundred (400) manilas. For many years, the pledge went unredeemed until the respondent’s father assumed the position of the head of the family and attempted to pay back the debt. The appellant refused the respondent’s claim of ownership and so parties referred the dispute to the chief priest of the local god for arbitration. Both parties were given an opportunity to present their case after which parties and their arbitrators agreed to swear an oath. While the respondent willing took oath before the local god, the appellant refused. The arbitrator subsequently gave the appellant eight (8) days to submit an acceptable god or juju for oath swearing. The appellant did this and the respondent swore an oath again and the waiting period began.146 The respondent survived the one (1) year waiting period after which he moved to take over possession of the land. The appellant refused this attempt and so the respondent approached the court. Justice Nikki Tobi held among other things that the Supreme Court “recognizes oath taking as a valid process under customary law arbitration”. He went on to hold that once parties adopt it as the process
144Ibid.
145 (2004) 6 SCNJ.
146 We mentioned earlier that there was always a waiting period after the oath swearing. This waiting
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of resolving their disputes, it was no longer open to any of them to resile from the arbitration proceedings (and by extension the agreement).
This decision is definitely a step back from the decision in Okparaji v Ohanu.147 A mischievous party may decide to argue that this decision allows for parties who are not sworn on oath, to resile from their arbitration proceedings and/or award if they choose to. The Onyege v Ebere148 decision takes us back to the problem in the Igwego v
Ezeugo149 case because both decisions seem to hold that an arbitration agreement is only enforceable when a dispute has been submitted to an arbitral tribunal. They however differ in respect to how far the proceedings must have progressed before the agreement can be enforced. While Onyege v Ebere150 holds that parties cannot resile
once they swear on oath (which is usually at the beginning), Igwego v Ezeugo151 seems
to suggest that they can still resile until an award has been given.
The decision of the Supreme Court in Agala v Okusin152 does not necessarily help matters. The dispute in this case had to do with a disagreement over the headship of the Okusin compound. It was the contention of the respondents that the appellant was not a chief of the Okusin compound and so could not be made the paramount head of the Okusin compound under the Kalabari native law and custom.153 The dispute was subsequently referred to arbitrators who ruled against the respondent. The respondents attempted to institute another arbitration proceeding, which was rejected by the appellant. This resulted in the present court action. The appellants in their amended statement of defence denied the respondents’ allegations, adding that at the initial arbitration, both parties paid the arbitration fees and were sworn on oath under pain of death. They therefore relied on the defence of waiver, estoppel per rem judicatam and estoppel by conduct.
147 (1999) 9 NWLR (Pt 618) 290. 148 (2004) 6 SCNJ. 149 (1992) 7 SCNJ 284. 150 (2004) 6 SCNJ. 151 (1992) 7 SCNJ 284. 152 (2010) 10 NWLR (Pt 1202) 412 153 Kalabari is a tribe in Nigeria.
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Honourable Justice Ogbuagu in his judgement submitted that going by the provisions of Section 6(1) & (5) of both the 1979 and 1999 Constitution, it is the courts and not non judicial bodies that have the right to exercise judicial powers in Nigeria. He went further to hold that parties have a choice to either "…follow the normal channel for determination of any controversy through the machinery of the courts or to submit the matter voluntarily to a non-judicial body for a decision. If they choose the former; the decision of a court of competent jurisdiction on such a matter would constitute estopel per rem judicatam. Where they choose the latter and there is an intervention by a non-judicial body, then the court ought to be satisfied that a number of conditions precedent were satisfied …“154
These conditions are:
1. There must have been a voluntary submission of the dispute by the parties to the non-judicial body;
2. The parties must have agreed to take the decision of the non-judicial body as final;
3. The decision must be in accordance with the custom of the people or of their trade or business; and
4. The arbitrators must have reached a decision and published their award. The learned jurist went ahead to state that “parties to disputes must remember that such persons or bodies … though highly placed and respected, are not judicial bodies. Before their decision on any matter in dispute between parties can be relied upon as estoppel, all the above requirements of a binding customary arbitration must be shown to have been observed".155
It is clear from the foregoing cases that the decision of the court in Agu v Ikewibe156 is
no longer good law. It is also clear that there is no controversy on the status of a customary arbitration agreement once an award has been delivered. One is however left in doubt as to the validity of a customary arbitration agreement before the
154(2010) 10 NWLR (PT 1202) 412, 47-48. 155 Ibid.
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proceedings have begun. The question then arises as to how we may be able to reconcile the decision of the court in Okparaji v Ohanu157 with Agala v Okusin.158
The Supreme Court in National Electric Power Authority v Mrs P.O Onah and 7ors 159
held that “where there is no discernable ratio decidendi common to the decisions of a superior court and the court has handed down conflicting decisions, the lower court or court of co-ordinate jurisdiction is free to choose between the decisions which appear to it to be correct. “
Going by this, it is clear that until such a time as when we have a decision which consolidates Okparaji v Ohanu160 and Agala v Okusin161 into one, both decisions stand
and the lower courts have a discretion to choose which of the decision they believe is right and will achieve the ends of justice in a particular matter. It is suggested that the better and general position of the law should be that parties are bound by their oral agreement to arbitrate. This suggestion is to encourage certainty and prevent chaos.162 A party who however believes he has justifiable reasons to resile from his arbitration agreement may be allowed to do so further to an order of the court only.
In concluding this part of the chapter, it is submitted that going by the decisions of the court in Igwego v Ezeugo,163 Okparaji v Ohanu164 and Agala v Okusin,165 the customary quasi arbitration practice in Nigeria can be said to have evolved from a quasi- arbitration practice into a full arbitration practice. A decision by the Supreme Court consolidating these decisions will however be helpful in dispelling any remaining doubts. 157 (1999) 9 NWLR (Pt 618) 290. 158 (2010) 10 NWLR (Pt 1202) 412. 159 (1997) 1 SCNJ 220. 160 (1999) 9 NWLR (Pt 618) 290. 161 (2010) 10 NWLR (Pt 1202) 412.
162 Olubayo Oluduro (n 103) 324; Mustapha Akanbi (n 104) 72 163 (1992) 7 SCNJ 284.
164 (1999) 9 NWLR (Pt 618) 290. 165 (2010) 10 NWLR (Pt 1202) 412.
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