What is Customary Arbitration?

Customary Arbitration is arbitration in dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either chiefs or elders of the community. It is uniquely distinct from arbitration under the statute.

At the centre of customary arbitration is the settlement of disputes by one or more arbiters in a community in accordance to the customs of the society with the aim of retaining the relationship between the parties and peace in the community.

This system of dispute resolution has been in operation in Nigeria for years before the advent of the British colonial administration introduced the Common Law System in the 19th Century. Even with the introduction of the common law, customary arbitration is still used today for settling of disputes such as title to landed properties within the communities.

Customary arbitration is an exception to Section 1 (1) of the Arbitration and Conciliation Act which states that every arbitration agreement shall be in writing because under the customary arbitration the agreement to arbitrate is usually oral and can also be implied by conduct, and the proceedings too are usually oral but may be reduced to writing depending on the arbitrator(s).

In the case of AGU V IKEWIBE [1991]3 NWLR (PRT 180) 385 at 407 (Supreme Court) (Nigeria) the Supreme Court stated its own definition of customary arbitration, when it stated that

“It is arbitration in dispute founded on a voluntary submission of the parties to the decision of the arbitrators who are either chiefs or elders of their communities and the agreement to be bound by such decision and freedom to resile when unfavourable.”

The constitutional legitimacy of customary arbitration is based on several provisions of the constitution that recognise customary law as an existing law. These include the creation of a Customary Court of Appeal in the states and Federal Capital Territory. The Arbitration and Conciliation Act also provides in Section 35 that: “This Act shall not affect any other law by virtue of which certain disputes -------------- (b) may be submitted to arbitration only in accordance with the provision of ----------- another law.”  The reference to “another law” may imply that customary arbitration is not prohibited by the operation of the Act.

A dispute resolved by customary arbitration must not fall under issues that are not arbitral under the Nigerian Law, such as criminal matters.

For a customary arbitration award to be enforced there must be consent by both parties to submit to arbitration and an agreement to be bound by the award which shall be regarded between the parties as final. The award must also be fair and not contrary to justice, equity and good conscience.

To plead and prove the existence of customary arbitration before the courts as the first step to enforce an award, it was held in EGE-SIMBA V ONWUZURUIKE [2002] 15 NWLR (part 221) 23 at 24 (supreme court) Nigeria;  “that where a body of men, be they chief or otherwise, acts as arbitrator over disputes between parties, their decision shall have binding effect, if  it is shown that the parties submitted to arbitration, accepted the terms of arbitration and agreed to be bound by them.”

In KWASI V LARBI Id [1956] 13 WACA, the court stated that customary arbitration award is binding and that it can be used as a shield such as estoppel in the form of defence and that it can also be used as sword in a cause of action where it is final, valid and certain.

A party seeking to enforce a customary arbitral award must prove to the court that:
  • There was an existing arbitral agreement and that the arbitral process that followed was a valid arbitration and not a negotiation for settlement.

  • The party must be able to prove that the other party consented to the arbitration either by word or conduct.

  • That the consent and subsequent submission was done voluntarily and not by coercion or undue influence.

  • The award must be final and certain and not contingent or conditional.

  • The party relying on it must specifically plead the matter before the court and finally the customary law rules relied on must be applicable.
Customary arbitration has evolved as a method of dispute resolution for communal harmony and vesting rights in landed properties.

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