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

Journal of African Law

Volumn 41, Issue 2, 1997, Pages 201-214

  Igbokwe, Virtus Chitoo ^a  

^a NONE   (Canada)

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EID: 84859458641     PISSN: 00218553     EISSN: 14643731     Source Type: Journal    
DOI: 10.1017/S0021855300009402     Document Type: Article

References (56)

1. See Ezediaro, “Guarantee and incentive for foreign investment in Nigeria”, (1971) 5 International Law 770 at 775
2. See Ajayi, “The interaction of English with customary law in Western Nigeria”, (1960) 11 J.A.L 98 at 103
3. Ayua “The blend of customary law with English law”, (1986–1990) 4–8 Ahmadu Bello University Law Journal 1, 5–6.
4. See also Gordon R. Woodman, “Some realism about customary law: the West African experience”, (1969) Wisconsin Law Review 128.
5. See B.O. Nwabueze, The Machinery of Justice in Nigeria, 1963, 45.
6. See also Amazu A. Asouzu, “The legal framework for commercial arbitration and conciliation in Nigeria”, (1994) 9 F.I.L.J. (I.C.S.I.D. Review) 214
7. Asiedu-Akron, “Judicial recognition and adoption of customary law in Nigeria”, (1989) 37 American Journal of Comparative Law 571 at 572–573.
8. (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.
9. See also Ohiaeri v. Akabeze (1992) 2 N.W.L.R 1. The Supreme Court followed the decision in Agu's case.
10. N.W.L.R, 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.
11. See T.O. Elias, The Nature of African Customary Law, Manchester, 1956, at 212 (emphasis supplied).
12. (1988) 4 N.W.L.R. (part 90) 554.
13. N.W.L.R, at 566
14. N.W.L.R, at 571–573
15. (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.
16. N.W.L.R, at 586–587. Italics supplied.
17. N.W.L.R at 412.
18. See Spencer-Bower and Turner, Estoppel (2nd ed.) at 21–22.
19. [1957] 2 F.S.C 39.
20. [1972] ECNLR 199.
21. ECNLR, at 208.
22. [1973] 3 ECSLR Pt. 1, 90.
23. [1974] 4 ECSLR 251.
24. (1926) 6 Eastern Nigerian Law Report 10.
25. Eastern Nigerian Law Report, at 14.
26. [1958] 3 FSC 84.
27. FSC, at 86.
28. [1975] 5 ECSLR 221.
29. Ohiaeri v. Akabezt above, n. 4 at 24–25.
30. See also Idika v. Erisi [1988] 2 N.W.L.R. [pt. 78] 983 at 986. “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 entided to that plea. Similarly, if it qualifies as issue estoppel, each party will be entitled to that plea”.
31. (per Obaseki, J.S.C.)
32. See generally George Elombi, “Customary arbitration: a Ghanaian trend reversed in Nigeria”, [1993] 5 African Journal of International and Comparative Law 803.
33. African Journal of International and Comparative Law.
34. [1930] 1 WACA 1.
35. See also Kmeku Assampong v. Kweku Amuaku (1930) 1 W.A.C.A. 192
36. Kwasi v. Larbi (1956) 13 W.A.C.A. 76, Privy Council.
37. Elombi W.A.C.A, n. 27.
38. Antony Allott, Essays in African Law, London, 1960, 126.
39. J.N. Matson, “The Supreme Court and the customary judicial process in me Gold Coast”, (1953) 21 I.C.L.Q. 47 at 58.
40. Elombi, I.C.L.Q, n. 27, 820.
41. See Michael Barkun, Law Without Sanctions: Order in Primitive Societies and the World Community, Yale, 1968, 17 “The way in which a society is organised has a marked effect on the way order is achieved within it”
42. P.H. Gulliver, “Dispute settlement without courts: the Ndendeuli of Southern Tanzania”, in Laura Nader (ed.), Law in Culture and Society, Chicago, 11
43. Max Gluckman, “The judicial process among the Barotse of Northern Rhodesia”, in Csaba Varga (ed.), Comparative Legal Cultures (Vol.1), Aldershot, 1992, 225
44. William L.F. Felstinen, “Influences of social organisation on dispute processing”, (1974) 9 Law and Society Review 62–63 “The dispute processing practices prevailing in any particular society are a product of its values, its psychological imperatives, its history and its economic, political and social organisation.”
45. Generally in Africa, the meaning attached to die word “family” is not restricted to nuclear family but refers to a corporate body created upon the death of die founding father. It includes all his descendants in the male line (in the case of agnatic lineage) or in both male and female lines (in the case of agnatic descent group). New members of the group acquire their membership by virtue of their birth and they accede to dieir rights at die time of their birth. Thus, die family is made up of multiple generations: parents and children, grandparents, aunts, uncles, cousins, etc. There is always a nexus between one family and anodier. See generally Gordon Woodman, “The family as a corporation in Ghanaian and Nigerian law”, (1974) 11 African Law Studies 1.
46. See generally Peter Just, “Conflict resolution and moral community among die Dou Donggo”, in Kevin Avruch et al. (eds.), Conflict Resolution: Cross-Cultural Perspectives, New York, 1991, 107–108
47. O. Adigun, “The equity in Nigerian customary law”, in Osibanjo and Kalu (eds.), Towards a Restatement of Nigerian Customary Laws, 1991, 8
48. Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi and Gambia, Cambridge, 1985
49. Sally Engle Merry, “Disputing widiout culture: review essay on dispute resolution”, (1987) 100 Harvard Law Review 2057 at 2063. The learned writer righdy noted that “Disputing is cultural behaviour, informed by participants' moral views about how to ‘fight’, die meaning participants attach to going to court, social practices diat indicate when and how to escalate disputes to a public forum and participants' notion of rights and entidements. Parties to a dispute operate widiin systems of meaning… The normative framework shapes the way people conceptualise problems, the way diey pursue diem, and the kinds of solutions they look for.”
50. See Geoffrey Sawer, “The Western conception of law”, in René David et al. (eds.), International Encyclopaedia of Comparative Law, 1978, at 17.
51. Yosiyuki Noda, “The Far Eastern conception of law”, in David et al., International Encyclopaedia of Comparative Law, at 120.
52. Keba M'Baye, “The African conception of law”, in David et al., International Encyclopaedia of Comparative Law, at 138.
53. See Chin Kim and Craig M. Lawson, “The law of the subde mind: the traditional Japanese conception of law”, (1979) 28 I.C.L.Q. 491: “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.”
54. P.H. Gulliver; “Case study of law in non-Western societies: an introduction”, in Nader, Law in Culture and Society, 11.
55. See Lewis v. Bankole (1929) 1 NLR 82 at 84.
56. See Owonyin v. Omotosho (1961) 1 ANLR 304.