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