ABSTRACT
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.
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TABLE OF CONTENTS |
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Title
page |
i |
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Declaration |
ii |
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Certification |
iii |
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Dedication |
iv |
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Acknowledgements |
v |
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Table
of cases |
vii |
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Table
of statutes |
ix |
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Abbreviations |
x |
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Abstract |
xi |
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Table
of contents |
xii |
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CHAPTER ONE |
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GENERAL INTRODUCTION |
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1.1 |
Background
to the Research |
1 |
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1.2 |
Statement
of the Search problem |
2 |
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1.3 |
Objectives
of the Research |
4 |
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1.4 |
Justification |
4 |
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1.5 |
Scope
of the Research |
4 |
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1.6 |
Literature
Review |
5 |
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1.7 |
Research
Methodology |
8 |
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1.8 |
Organizational
Layout |
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CHAPTER
TWO
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CONCEPTUAL CLARIFICATION |
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2.1 |
Introduction | 10 |
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2.2 |
Meaning,
Goal and processes of ADR | 11 |
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2.2.1 |
Meaning | 11 |
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2.2.2 |
Goals | 11 |
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2.3 |
Conciliation | 12 |
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2.4 |
Mediation | 13 |
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2.5 |
Negotiation | 15 |
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2.6 |
Mini-Trial | 18 |
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2.7 |
Med-Arb | 19 |
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2.8 |
Litigation | 19 |
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2.9 |
Arbitration | 20 |
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2.9.1 |
Types
of Arbitration | 23 |
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2.9.1.1 |
International
Arbitration | 24 |
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2.9.1.2 |
Domestic
Arbitration | 25 |
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2.9.1.3 |
Institutional
Arbitration | 26 |
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2.9.1.4 |
Ad hoc
Arbitration | 26 |
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2.10 |
Advantages
and Disadvantages of Modern Arbitration | 27 |
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2.10.1 |
Advantages | 27 |
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2.10.1.1
Privacy |
27 |
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2.10.1.2
Convenience |
28 |
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2.10.1.3
Speed |
28 |
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2.10.1.4
Simplified Procedures |
28 |
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2.10.1.5
Autonomy |
28 |
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12 |
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2.10.2 |
Disadvantages |
28 |
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2.10.2.1
Autonomy |
29 |
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2.10.2.2 |
Speed |
29 |
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2.10.2.3
Cost |
29 |
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2.10.2.4 |
Finality |
29 |
CHAPTER THREE
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OVERVIEW OF CUTOMARYARBITRATION |
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3.1 |
Introduction |
30 |
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3.1.1 |
The
Yorubas |
30 |
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3.1.2 |
Igbo
Community |
32 |
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3.1.3 |
The
Hausas |
33 |
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3.2 | Customary Arbitration in Nigerian Jurisprudence |
35 |
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3.3 |
Essential
Ingredients of Customary Arbitration |
37 |
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3.3.1 |
Voluntary
Submission to Arbitration |
42 |
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3.3.2 |
Agreement
by the parties that decision of the Arbitrators |
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Would
accepted as final and Binding |
44 |
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3.3.3 |
Arbitration
was in accordance with the Custom of the parties or their |
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Trade/Business |
45 |
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3.3.4 | The Arbitrators reached a decision and published their award |
46 |
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3.3.5 |
That
Decision was accepted by the parties at the time of the award |
48 |
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3.4 |
Advantages
of Customary Arbitration |
49 |
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3.5 |
Disadvantages
of Customary Arbitration |
51 |
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CHAPTER FOUR |
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4.1 |
Introduction |
53 |
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13 |
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4.2 |
Similarities |
53 |
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4.3 |
Differences |
55 |
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4.3.1 |
Submission
under Customary Arbitration Vis-à-vis ModernArbitration |
55 |
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4.3.2 |
Right
to Resile |
58 |
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4.3.3 |
Role of
the Parties |
59 |
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4.3.4 |
Oath
taking |
60 |
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4.3.5 |
Writing |
62 |
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4.3.6 |
Effects
of Customary and Modern Arbitration |
62 |
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4.3.7 |
Qualification
of Arbitrators |
64 |
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4.3.8 |
Sources
of Arbitration |
64 |
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4.3.9 |
Theoretical
Difference |
64 |
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CHAPTER FIVE |
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CONCLUSION |
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5.1 |
Summary |
71 |
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5.2 |
Findings |
72 |
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5.3 |
Recommendations |
75 |
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BIBLIOGRAPHY |
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Books |
77 |
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Articles |
79 |
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Internet
Sources |
81 |
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Appendix |
82 |
CHAPTER ONE
GENERAL INTRODUCTION
1.1 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.
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.
A COMPARATIVE STUDY OF MODERN AND CUSTOMARY ARBITRATION IN NIGERIA
