State Responses to Outcomes of Traditional Justice Resolution Mechanisms in Commonwealth Africa: Customary Arbitration in Nigeria and Ghana

I. Introduction

This article examines the nature and extent to which Nigeria and Ghana serve as examples of how African States respond to outcomes of customary arbitration in traditional dispute resolution mechanisms in non-criminal matters.^[1] As the ensuing narrative reveals, customary arbitration in Nigeria and Ghana plays a crucial role in all spheres of private life in African communities including civil wrongs, land, and chieftaincy disputes.^[2] Comparing customary arbitration in Nigeria and Ghana is significant because of a similar jurisprudence that has been of mutual influence in case law,^[3] academic writing,^[4] and legislation.^[5]

The validity of outcomes of traditional justice mechanisms is a classic example of the interaction of the different legal orders in a plural state. African states are continuously faced with the challenge of managing the processes and consequences of the interaction of indigenous and state law as components of their plural legal order. One of the enduring challenges of plural legal orders is how dominant legal orders treat inferior legal orders. Nigeria and Ghana represent a model of the judicial articulation of principles gleaned from customary law for recognizing outcomes of customary arbitration. Ghana has moved a step forward by integrating customary arbitration into the Alternative Dispute Resolution framework through the Alternative Dispute Resolution Act 2010 that essentially reflects the rules of recognition developed by Ghanaian courts.

This article is organized into five parts. Part II examines customary arbitration in Nigeria, while in Part III, attention shifts to Ghana. Part IV compares customary arbitration in the two states. Concluding remarks follow in Part V.

II. Customary Arbitration in Nigeria

Nigeria generally accepts the outcomes of traditional dispute resolution mechanisms through validity and recognition rules crafted by the Nigerian judiciary. Crafting rules of recognition have arisen when parties to a case urge Nigerian courts to recognize arbitral awards of another legal order as dispositive of the case before the court. What follows in the rest of this section are different issues that have arisen from the jurisprudence of Nigerian courts including (1) the requirements of a valid customary arbitration, (2) judicial deference to the customary law framework of customary arbitration, (3) the constitutionality of customary arbitration, and (4) whether customary arbitration is conceived as part of an alternative dispute resolution system in Nigeria.

Requirements of a Valid Customary Arbitration

The case of Agu^[6] is usually regarded as the turning point in the articulation and elaboration of the rules of recognition of customary arbitration by Nigerian courts.^[7] In Agu, Karibi-Whyte JSC defined a customary arbitration and listed the ingredients of that concept which appeared to him to have become clear from a number of cases. According to him, customary arbitration is ‘an arbitration of a dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either the chiefs or elders of their community and the agreement to be bound by such decision or freedom to resile where unfavourable’.^[8] The ingredients of a valid customary arbitration were set out as follows:

(a) If the parties voluntarily submit their disputes to a non-judicial body, to wit elders or Chiefs as the case may be for determination; (b) The indication of the willingness of the parties to be bound by the decision of the non-judicial body or freedom to reject the decision where not satisfied (c) That neither of the parties has resiled from the decisions so pronounced.^[9]

In the aftermath of Agu, Nigerian courts have descended into controversies over the validity of the requirements of customary arbitration. On one side are judicial and academic opinion that holds that parties to a customary arbitration can reject the award. The Supreme Court panel that issued the Agu judgment was divided, which in turn seems to have fostered disagreements in later cases over whether a party to a customary arbitration can resile from the award. Nnaemeka-Agu JSC dissented in Agu essentially on whether the decision of the arbitrators is binding or whether the parties can withdraw at any time even after the award is made. Subsequent cases where the possibility of rejecting the award was upheld include the cases of Ohiaeri v Akabeze,^[10] Okereke v Nwankwo,^[11] Nweke v Nwuzi,^[12] Ugela v Tarvenda,^[13] and Okoye v Obiaso.^[14] Professor Ezejiofor^[15] contends that Ohiaeri extended the requirements in Agu such that the pre-requisites of a customary arbitration are the voluntary submission of the parties to the arbitration, a decision or ward to be published to the parties by the arbitrators, agreement by the parties to be bound by the award, non-withdrawal of a party from the arbitral process until an award is made, acceptance of an award by both parties when made, and conduct of the arbitral proceedings in accordance with customary law. Professor Allot is in the vanguard of academic opinion that supports the possibility of the rejection of an award.^[16] His support of Agu is predicated on the existence of numerous traditional justice mechanisms including the form that is recognised in the Agu decision.^[17] He concedes, however, that there may be customary arbitration where the parties are not at liberty to resile from the award.^[18] Prof Allot’s advice to Ghanaian courts to emulate Agu^[19] was not heeded. The next section of this paper reveals that Ghana has gone ahead to enact the ADR Act which as we shall see later, does not permit rejection of an award of a customary arbitration.

Yet another group agrees that a valid customary arbitration is one in which the parties cannot reject an award. This position gained support soon after Ojibah v Ojibah,^[20] where incidentally Karibi-Whyte JSC who read the lead judgment in Agu, also sat. In Ojibah, the Supreme Court held that parties to an arbitration cannot resile from an award. Subsequent cases such as Igwego v Ezeugo,^[21] Oparaji v Ohanu,^[22] Ume v Okoronkwo,^[23] Agala v Okusin,^[24] and Ogbogwu v Aigbo.^[25] affirm the view that a party to a customary arbitration cannot reject the award. It would seem, therefore, that the preponderance of academic opinion in Nigeria favours the position that a party cannot reject an award of a customary arbitration validly consented to.^[26]

The controversy over the requirement of consent to an award may continue for some time to come. It is to be noted that before the pronouncement of the Supreme Court in Agu^[27] two lines of cases were discernible on this question. The first set of cases agreed that this was a valid requirement.^[28] The second set of cases^[29] held otherwise. It is therefore no wonder that this controversy has lingered on after the Agu/Ohiaeri judgments. It is important to note, however, that the other requirements for a valid customary arbitration are capable of ambiguous interpretation. Take the question of consent to commence an arbitration around which there has been little discussion in Nigerian jurisprudence. As the later part of this article about customary arbitration in Ghana reveals, express conduct such as the payment of arbitration fees could be required to satisfy the consent of a party. Another plausible interpretation is that a party that continues with a dispute settlement mechanism after invitation transforms that mechanism into a customary arbitration.

It appears inevitable that a set of requirements crafted by a state court to recognize the outcomes of another legal order would generate such a controversy because of the different perspectives from which the customary arbitration may be viewed. The view that parties who have given consent to a process should not be allowed to resile from their undertaking can be understood from a perspective that regards customary arbitration as a process with integrity. It is also not difficult to imagine that state courts, being common law courts, would be seduced by a need for certainty as well as a desire to ensure that outcomes of customary arbitration closely resemble a court judgment worthy to be adopted by a Court.^[30] On the other hand, a standard set of requirements could be argued to be contrary to the basic features of customary law whose characteristics as a question of fact, stipulates that it is the relevant customary law governing the arbitration that should characterise the traditional dispute settlement mechanism both in content and procedure. It is to this characterisation that we now turn.

Judicial Deference to A Customary Law Framework of Customary Arbitration

As the jurisprudence on customary arbitration unfolded, hints of an alternative means of evaluating the outcomes of customary arbitration became stronger. By this process, Nigerian courts defer substantially to outcomes of customary arbitration based on the content of principles of customary law. Therefore, in determining whether a customary arbitration is valid, a court would rely on the principles of a relevant customary law governing the arbitration rather than the standard requirements in Agu/Ohiaeri or Ojibah.It should be remembered that since customary law is a question of fact which varies from community to community, each evaluation of the validity of a customary arbitration must commence from proof of the rule or principles of customary law^[31] that govern the arbitration as part of the process of determining compliance with that customary law. Evaluating a customary arbitration around a customary law framework acknowledges that customary law is a complete normative system capable of determining the validity of its dispute resolution mechanism. Concerning the controversy whether a party could resile from a customary arbitral award, it would be principles of customary law that would assist in determining whether a party could reject an award or otherwise, For example, a particular customary law system would determine whether a decision reached by members of a family meeting or a group of elders amount to a customary arbitration or otherwise. Several examples illustrate the point that is being made. In Aguocha v. Ubiji^[32] the court demonstrated complete reliance on customary law in determining the effect of the three arbitrations between the parties in the case. The only condition impliedly required by the court was the fact that the parties voluntarily submitted to the native law and custom of the parties as possessing the power to settle disputes. Another advantage of allowing the relevant customary law to determine the validity of the arbitration is demonstrated in Agu.^[33] In that case, one of the main reasons for the dissenting opinion of Nnaemeka-Agu JSC was that the plaintiff ‘summoned’ the defendant, which meant that the summoned party did not consent to the arbitration invalidating the proceedings. Perhaps, the relevant customary law would have helped determine the effect of the word ‘summoned’, which is to say, whether it meant that the party summoned could not refuse to attend the arbitration of the chiefs or elders or whether it was an invitation, in reality, allowing the party to agree or refuse to submit to the arbitration if he so wished.^[34] A simple way of resolving the problem could have been the ascertainment of the meaning of ‘summons’ in discovering the effect of submission to the customary law arbitration as provided for in the relevant customary law. Nwosu v. Nwosu^[35] is another example where the learned trial judge referred a matter before him to a group of arbitrators who arrived at a majority decision. The Court of Appeal held that the learned trial Judge was wrong in accepting a majority decision when a unanimous decision would have been preferable. It may well have been sufficient to refer to the relevant customary to find out whether unanimity is the hallmark of arbitral decisions in the community in question.

Furthermore, it is customary law that appears most appropriate in determining the capacity and jurisdiction of customary judicial bodies. In Igwego v. Ezeugo,^[36] where there was arbitration by two bodies, the Peace Committee and another traditional body, the Uku-na-Umuogu, counsel for the appellants argued that the Adazi-Ani Town Union had no legal authority to establish a body with judicial authority and that the Peace Committee is not a customary body with the power to determine disputes between the parties. He further pointed out that there is a customary body in Adazi-Ani, known as Uku-na-Umuogo, which has authority over the parties to this case. The Supreme Court did not dwell seriously on these arbitrations. However, Nnaemeka-Agu JSCregarded the Peace Committee as a ‘customary body of persons’.^[37] With due respect, it is the Adazi-ani customary law that should have identified the nature of the Peace Committee and its relationship to the Uka-na-Umuogo. Again, in Eke v Okwaranyia,^[38] the relevant native law and custom would have indicated the structure of the judicial process such as the channel of appeals. This may have enabled the Court to determine the status of the first arbitrator in the case whose decision was appealed to the traditional ruler of the community. In Egesimba v Onuzuruike,^[39] the court recognized that one of the traditional institutions endowed with customary judicial powers by the customary law of the community from where the parties hailed is the ‘Amala of Umuobom’ and that the decision of this institution would constitute, and indeed constituted, customary arbitration.

Another example of deference to principles of customary law by Nigerian courts is provided by the wholesale adoption of outcomes of customary judicial institutions that integrate aspects of the paranormal and African Traditional Religion (ATR) into their dispute resolution. Examples include traditional oaths,^[40] such as juju swearing, as well as the consultation of oracles and fortune-tellers. For example, even though there is a general process of traditional oath-taking, the consequences of oath-taking vary from community to community.^[41] In many cases, the rules and regulations are intricately woven with those of the community where the juju or oracle is located.

This point came out clearly in Okarika v Samuel,^[42] where the parties took themselves before the Alakiki juju where four members from the appellants’ side subscribed to an oath that they were owners of a piece of land and that there would be fatalities within one year if wrong. Within the first year, one of the swearers died. The parties disagreed on the consequences of this event. Those who took the oath contended that all the oath takers must die for the oath to be efficacious, while the other party contended that it was enough that one of the four swearers died. The custodian of the juju was not called to clarify the rules that govern the swearing of the oath, leading Fabiyi JCA to declare the customary arbitration inconclusive.^[43] It is obvious that had the custodian of the juju clarified the rules governing the administration of the oath the court would have been able to decide on the consequences of the death of one of the parties who took the oath.

Another example of the importance of relying on the relevant customary law governing the juju oath is found in Onyenge v Ebere,^[44] where the parties in a dispute over the status of an alleged pledge of a piece of land took the matter to a juju priest of the Akpam Juju which is a local juju. The party that asserted that the land was a pledge was ordered by the juju priest to swear to an oath of a juju to be provided by the other party who asserted otherwise. The other party refused to swear to abide by this decision but rather summoned the party asserting the pledge before another foreign juju, Ogwugwu Akpu. The foreign juju was brought to the locality where the party asserting the pledge took the oath. He survived the customary one year of oath-taking and celebrated the one year of survival in compliance with the relevant principle of customary law. Ordinarily, this principle of customary law recognizes the ownership of the person who survived the oath-taking. The other party asserted that the survival of the oath was not conclusive because the successful party did not enter the land and that the custodian of the foreign juju had stated that the oath-taking party will not be harmed if they do not enter the land. Anxious to enforce the terms of the arbitration because the losing party refused to yield possession,an action was commenced at the Ukwa Customary Court and ultimately reached the Supreme Court which recognized oath-taking as a valid process of customary arbitration. It is to be noted that in these cases of paranormal customary arbitration, Nigerian courts proceed without any meaningful engagement with the Agu/Ohiaeri or Ojibah tests.^[45]

Yet another example of deference to a relevant customary law is concerning whether the outcomes of dispute resolution by persons and institutions who are neither chiefs, elders, nor traditionally recognized institutions are customary arbitration. The answer from Nigerian case law is largely ambiguous. Several cases illustrate the fact that Nigerian courts do not make a distinction between dispute resolution by persons and institutions recognized by a relevant customary law or otherwise. For example, in Okpuruwu v. Okpokam, Uwaifo JCA. was prepared to accept that in a dispute in any community the parties involved may sometimes decide to refer it to a third disinterested party for resolution.^[46] In Njoku v. Ekeocha^[47], Ikpeazu J. said; 'A body of men be they chiefs or otherwise’could sit as arbitrators over a dispute between two parties.^[48] In Inyang v. Essien,^[49] those who acted as arbitrators were members of the District Council. In Ekwueme v. Zakari,^[50] they were a group of interested persons, possessing no authority recognized by customary law. In Obioha v Akukwe,^[51] it appears that the Court would have recognized the decision of a ‘Local Arbitration Panel’ headed by a traditional ruler. A close reading of Odonigi v Oyeleke,^[52] would indicate that the alleged customary arbitration was not upheld because there was no evidence that one of the parties voluntarily submitted to the arbitration and that the award was published to that party. This appears to be the preferred reading. After all, on the surface, it would appear that the arbitration was not upheld as customary arbitration because it was conducted by a local government official. In Ehoche v Ijegwa,^[53] the arbitral body was the Apa Local Government Traditional Council, a body of traditional rulers from different communities. Even though it is mandated to decide chieftaincy matters following the customary law of the parties, it appears to be a statutory body^[54] and not an institution endowed with customary judicial powers. Nonetheless, Obadina JCA noted that there was evidence that the ingredients of customary arbitration were complied with and upheld the arbitral award by the Local Government Traditional Council.

On the other hand, several cases demonstrate that persons and institutions outside a customary law framework cannot engage in dispute resolution that are customary arbitration. In Inyang v. Essien,^[55] the persons who acted as arbitrators under native law and custom were not elders but councilors under the District Council and therefore had no power to make any binding order. Thus as one of the parties did not accept their decision it was of no effect.^[56] In Ekwueme v. Zakari,^[57] the plaintiff and the defendant were from two different parts of the country and the arbitration that occurred was not under the auspices of any customary law because there was no evidence that it took place under the customary law of any of the parties to the case. Also, the composition of the panel of arbitrators, who were a group of people who volunteered to resolve the dispute between the parties, showed clearly that they were neither chiefs, elders nor a traditional institution. The process in Ekwueme v Zakari is a perfect example of dispute settlement in an urban setting between two people from different parts of the country and thus not subject to the same customary law. The decision of the Court, in that case, can be said to be two-fold. In the first place, the Court held that the arbitration outcome was not binding on the parties unless they agreed to submit the dispute to the panel and be bound by the decision of the panel. The Court said on this point: ‘The Agreement by the plaintiff and the defendant to be bound by the decision of the arbitrators was the only thing that would be said to have clothed whatever the arbitrators did with force of law’. Having thus held that the parties did not agree to submit to arbitration and be bound thereby, the learned trial judge went on to consider whether the decision reached by the panel of arbitrators could derive its authority from native law and custom. From the totality of the judgment, it seems clear that the matter would have been disposed of if evidence was led to show that the parties voluntarily submitted their dispute to the arbitrators and agreed to be bound by the award.

The Constitutionality of Customary Arbitration in Nigeria

Even though Okporowo was subjected to trenchant criticism for questioning the constitutionality of customary arbitration, that decision represents an unease in the reconciliation of the nature and extent of the plenary powers of Nigerian state courts and the outcomes of customary arbitration. In their reaction to Okporowo, Nigerian courts seem to have adopted an opposite stand, where customary arbitration is immunized from constitutional scrutiny. One aspect of constitutional scrutiny that is mandated by the supremacy of the Nigerian constitution is the evaluation of compliance by customary arbitral awards with Nigeria’s Bill of Rights in chapter four of the 1999 Constitution. Challenges of the constitutionality of an arbitral award because of a breach of any of the fundamental human rights is untested in any Nigerian court but would present considerable juridical difficulties. For example, imagine a constitutional challenge to customary arbitral awards affirmingdiscriminatory inheritance rules and practices in breach of the right to freedom from gender discrimination guaranteed by section 42 of the 1999 Constitution. Such a challenge will task Nigerian courts given the overwhelming evidence of Nigerian case law that recognises the rights of wives and daughters to inherit property.^[58] As a result, it is plausible that an arbitral award that promotes gender discrimination would not pass constitutional muster.

Rumblings of constitutional scrutiny have appeared in several cases, even though the most direct case concerns the legitimacy of juju oath arbitration in the Supreme Court decision in Achiakpa v Nduka,^[59] where the Court stated that the swearing to a juju before a native court is an archaic and unconventional method of deciding the justice of a cause. In the opinion of the court, it was better that a court appraises and evaluates competing evidence, rather than relying on the finality of oath-taking. The Court held that the decision reached therein would not constitute estoppel. In this case, the appellants instituted an action at the High Court against the respondents claiming a declaration of title to land. The appellants relied on a Native Court judgment delivered in 1925. The Native Court in its judgment ordered the third party through whom the respondent traced their title to swear to a juju. The Supreme Court was concerned with the nature of Nigeria’s empirical judicial system and the place of the paranormal in it.

Predictably, the last has not been heard of constitutional challenges to the validity of customary arbitration. It ought to be remembered, that disputes about the validity of customary arbitration have centered on the procedural aspects of the process. Indeed, the ingredients in Agu /Ohiaeri, as well as Ojibah, are all rules of procedural recognition ostensibly making a sojourn into substantive rules a sterile concern.

The Effect of An Arbitral Award: Customary Arbitration as Part of the ADR Process in Nigeria

It appears settled law that a customary arbitral award can only be used as a shield rather than as a sword.^[60] Accordingly, a plaintiff cannot seek to enforce an arbitral award except to the extent that the customary arbitration is pleaded as a fact in the claim.^[61] Such a pleading would make it difficult for the defendant to deny the fact of the arbitration. A defendant on the other hand is entitled to plead an arbitral award as a defence to a suit and invite a court to pronounce on the validity of the customary arbitration. Without such a plea, a losing party to a customary arbitration could frustrate a customary arbitral award. It is difficult to imagine how customary arbitration can significantly act as a positive pull to its capacity to provide ADR opportunities without the possibility that an arbitral award is enforceable ike the judgment of a court.

III. A Legislative Framework for Customary Arbitratoin: Ghana’s Alternative Dispute Resolution Act

Ghana, like Nigeria, generally accepts the outcomes of traditional dispute resolution mechanisms as ‘customary arbitration’ through common law validity and recognition rules. Recently, Ghana has formalized its recognition of customary arbitration by the promulgation of Ghana’s Alternative Dispute Resolution (ADR) Act 2010.^[62] Koblaive and Nyinevi assert that the ADR Act is a ‘codification’ of the common law rules of customary arbitration.^[63] Until the ADR Act, judicially articulated rules for customary arbitration were in force and governed how decisions of traditional authorities, such as Chiefs, were recognized by the Ghanaian common law.^[64]

In general, the ADR Act provides a legislative framework for customary arbitration. In doing so, it is coupled with other aspects of alternative dispute resolution in the ADR Act, such as arbitration in part one, mediation in part two, and the Alternative Dispute Resolution Centre in part four, as an overarching institutional mechanism for all aspects of alternative dispute resolution. Paul Kirgis’ opinion of the ADR Act captures this objective:

In recent years, Ghana has embarked on an experiment in the integration of traditional and state legal systems under the rubric of alternative dispute resolution. The primary vehicle for this experiment is the Alternative Dispute Resolution Act of 2010 (the “Ghana ADR Act”), an ambitious attempt to standardize the provision of commercial arbitration, mediation, and customary arbitration nationwide. It has simultaneously limited and formalized the adjudicative power of the chiefs and created a system of quasi-public, Western-style ADR, with arbitration and mediation conducted under the auspices of the courts.^[65]

Emilia Onyeama expresses a similar sentiment:

The provisions on customary arbitration in the new Act are evidently influenced by some aspects of modern arbitration law and practice, the proliferation and use of modern technological tools by Ghanaians and the increased literacy of the peoples bound by such customs.^[66]

These two opinions support the idea of an integrationist objective fueled by a belief that an ADR system is the best framework for customary arbitration to thrive.

Requirements of a Valid Customary Arbitration: Consent to Commencement of Arbitration

The requirement that parties to a customary arbitration must consent to arbitration was part of the requirements developed by the Ghanaian common law^[67] and recognised by the ADR Act.^[68] Within a traditional society, power asymmetries between ordinary citizens and traditional authorities suggest that compulsion of parties to a dispute poses grave dangers of injustice. It is a fact that an invitation by a traditional ruler to a subject to attend arbitral proceedings would be heeded by the latter. Where these traditional authorities exercise religious and spiritual power, this would be more so. The ADR Act reinforces the rejection of any form of compulsion by an express prohibition of force or coercion by person institutions or authority.^[69] Some forms of traditional religious arbitration as seen in the discussions about Nigeria would not be tenable under the ADR Act since parties summoned by juju shrines usually feel a compulsion to attend. Be that as it may, a customary arbitration is commenced and constituted by the payment by each party of an arbitration fee, or a token for arbitration, which constitutes consent to submit to customary arbitration and the appointment of the arbitrator.^[70] Ghanaian courts have interpreted consent, as a matter of fact, to be determined on the evidence, the conduct of the parties and the circumstances surrounding each case.^[71] Courts often struggle to discern consent from the evidence, which is usually a written record of the arbitration. It is not surprising that lack of consent has become a consistent ground of review of the validity of customary arbitration.

Closely related to the requirement of consent is the irrefutable presumption that is now part of the ADR Act, that once the customary arbitration has commenced, a party cannot withdraw from it.^[72] The inability of a party to a customary arbitration to reject an award would appear to be a welcome resolution of a problem that dogged the articulation of common law principles of customary arbitration in Nigeria. A preliminary point argued later is that Ghanaian courts should be careful in upholding the plea of a party who consents to a customary award but turns around to claim a lack of consent.

Substantive Content of Customary Arbitration

The substantive rules of customary arbitration are declared to be ‘natural justice’ and ‘fairness’.^[73] While the customary arbitrator is not obliged to apply any ‘legal’ rules of procedure in the arbitration, the customary arbitrator may conduct the arbitration under the auspices of the Alternative Dispute Resolution Centre or its modified rules. There is no express recognition of customary law as a plausible normative framework for customary arbitration, even though an award ‘in contradiction with the well-known customs of the area concerned’ is a ground to apply to a District, Circuit or High Court to set aside an award.

Procedural Rules for a Customary Arbitration

Procedural rules for a customary arbitration include time limits for issuing an award,^[74] a choice in the language to be used in the arbitration^[75] and whether the award should be in writing.^[76] Learned commentators have criticized the optional form of proceedings and suggested a mandatory writing requirement for customary awards.^[77] This recommendation is in order since a written customary arbitral award is needed for a registration of an award for enforcement at a District, Circuit or High Court.^[78]

The Effect of a Customary Arbitration

As stated earlier, the significance of customary arbitration is often in its effect on proceedings before state courts where a successful plea is a complete defence to a lawsuit. The challenge of using customary arbitration in a lawsuit is that its validity becomes a cause of action that is capable of being heard across the court system up to appellate courts. Furthermore, without a judicial proceeding in Nigeria, a customary arbitration may not be of much assistance since it is the judgment of the Court that transforms the customary arbitral award into a court decision. The ADR Act appears to chart a different course by stating that an award in a customary arbitration is binding between the parties and those claiming through them without a need to register the award.^[79] Furthermore, an award can be enforced in the same manner as a judgment of a Court.^[80]

Judicial Review of a Customary Arbitration Award

It is plausible to argue that the binding effect of customary arbitration, as seen above, is somewhat diminished by the provision for judicial review of arbitral awards. The possibility of a judicial review under section 112 of the ADR Act on three broad grounds suggests a conviction that customary arbitration is an inferior adjudicatory process of a lesser status than the other dispute resolution mechanisms under the ADR Act. Rather than broad grounds of review, the ADR Act is specific as to the grounds to challenge an arbitration award in section 58.^[81] Such specific grounds of appeal narrow the potential of overturning arbitral awards, rather than broad grounds of review that may contemplate wide discretion of the powers of a court of law.

The first ground on which the ADR Act provides that a customary arbitral award can be reviewed is that the award was made in breach of the rules of natural justice. The second ground is that the award constitutes a miscarriage of justice, and the third ground is that the award is in contradiction to known customs of the concerned area. These are broad grounds of review that may doom customary arbitral awards and render the process of little effect.

Concerning the first ground, there is a body of learning around the rules of natural justice in Ghanaian law, which are the right to fair hearing and the rule against bias. The rules for commencement of customary arbitration considered above promote the right to fair hearing and ensure that a party to a customary arbitration submits voluntarily to the process. The rule against bias of customary arbitrators^[82] is also addressed by the ADR Act. Thus, a customary arbitrator is required to disclose circumstances that affect the arbitrator’s independence or impartiality.^[83] Such circumstances also entitle a party to the arbitration to challenge the arbitrator which may result in the recusal of the arbitrator.^[84] Since the rules of natural justice are captured in the right to fair hearing recognized by section 33 of the Ghanaian Constitution, it is difficult to contend that other human rights may not be invoked to challenge an arbitral award. Similar rights that could be used to attack a customary arbitral process include the right to equality and freedom from discrimination and the right to fair administrative action. Furthermore, it would appear from the case of Republic vs High Court Ex Parte: Patrick Agudy Teye Nomo Agbosu Dogbeda^[85] that Ghana’s Supreme Court could exercise general supervisory jurisdiction over a customary arbitration as an adjudicating authority in terms of its powers granted by section 132 of the Ghanaian Constitution.^[86]

The second ground of review is a ‘miscarriage of justice’, which is very broad term, as is the third ground of review, which essentially provides that an award made in contravention to customary law may be set aside. It is plausible that the supervisory powers of the High Court imply an inferior status for customary law and customary arbitration. The declaration that an award is final and binding is of little consequence when parties to the award can seek review on broad grounds. It is to be remembered that customary arbitration has not been subjected to constitutional scrutiny in Nigerian courts.

The fourth ground of review, discernable from case law, is that the arbitral body has acted outside its jurisdiction defined by custom, policy, or legislation. For example, the Courts Act 1993^[87] and the Chieftancy Act 2008^[88] define the jurisdiction of Ghana’s chiefs and provide a basisfor review because the Chief acted outside endowed jurisdiction.^[89]

Customary Arbitration and Negotiated Settlement

One of the challenges of customary arbitration is the characterisation of outcomes of dispute resolution intervention by persons and institutions who ordinarily may not be part of a recognized customary hierarchy. The ADR Act conceives of these non-traditional persons and institutions as customary arbitrators through several provisions of the ADR Act. Parties to a dispute^[90] and a court of law- with the consent of the parties^[91]- have a right to submit their dispute to a qualified customary arbitrator that is defined as a person chosen by the parties. Traditional authorities such as chiefs and elders are favourites for the parties to a dispute. Yet institutions and persons unconnected to a customary community are contemplated as ‘customary arbitrators’ suggesting a broad categorization of customary arbitration to include ‘informal dispute settlement’ and further suggesting that the ADR Act is re-imagining what is traditionally regarded as customary arbitration. This point is buttressed by the fact that the Alternative Dispute Resolution Centre^[92] is also empowered to appoint a customary arbitrator^[93] from a list of arbitrators maintained by the Centre. Even though the Centre is encouraged to maintain a list of arbitrators supplied by traditional authorities^[94] nothing stops the Centre from appointing anybody, including persons ‘foreign’ to a community to act as a customary arbitrator. That said, Ghanaian courts^[95] and the ADR Act^[96] have used the entitlement of a party to reject an award as the distinguishing principle between customary arbitration and negotiated settlement. The latter process recognizes the right of parties to a settlement to withdraw from the proceedings at any time and reject the settlement. Reviewing the common law principles governing negotiated settlement, Elombi points out that negotiated settlement closely resembles the position in Agu/Ohiaeri, since in both cases, the parties to an award can successfully reject an award.^[97]

IV. An Overview of Customary Arbitration in Nigeria and Ghana

Customary arbitration in Nigeria and Ghana has been of mutual influence. While the principles of customary arbitration in Ghana have been largely consistent, it is understandable if an observer of the two national frameworks were to prefer the principles of customary arbitration outlined in Ghana’s ADR Act to the Nigerian framework, a system that appears to be in need of the measure of certainty brought by Ghana’s ADR Act. That said, it is clear that the judiciary in both countries has been involved in the development of the principles of customary arbitration. In standardizing the principles of customary law, the basic fact that customary law varies from community to community seems compromised in both countries. Standard requirements for the validity of the process enjoin courts to evaluate outcomes of customary arbitration by the judicially crafted rules rather than ascertaining the customary law framework. As the process unfolds in both countries, it is important to bring a contextual mindset in ascertaining the peoples’ customary law rather than remain slavish to principles of ‘judicial’ customary law. A contextual mindset recognizes that there are common principles in the ‘many’ customary laws in Nigeria and Ghana. It is with this contextual framework in mind, that a discussion ensues, of commendable or worrisome principles of the customary arbitration framework in each country.

Nigerian courts could do well to end the ambiguity as to whether a party to a customary arbitration can reject an award. The traces of conciliation in Nigerian jurisprudence and the concept of ‘negotiated settlement’ in Ghana’s ADR Act point to the importance of the recognition of a distinction between a process where parties are bound in customary arbitral proceedings and a process where informal dispute resolution processes are settled by the acceptance of the award by the parties to the process.

The recognition that a customary law framework is crucial in determining the outcome of a customary arbitration appears more ingrained in Nigeria than in Ghana. Even though more developed in the controversial practice of paranormal customary arbitration in Nigeria, the fact that the ADR Centre, as well as a court, can appoint ‘anybody’ as a customary arbitrator in Ghana belies the fact that customary arbitration is ‘customary’. Yet, an unquestioning acceptance of customary law seems to have led Nigerian courts to immunize customary arbitration from constitutional scrutiny. All legal orders in liberal democracies operate in the supremacy of a constitutional framework. The ADR Act commendably recognizes ‘natural justice’ that is encompassed in the right to fair hearing recognized by section 33 of the Ghanaian Constitution as a ground of review. The fact that other constitutional standards of human rights protection contained in the Bill of Rights in the Ghanaian constitution are not recognized in the ADR Act does not preclude constitutional scrutiny of fidelity of customary arbitral awards. Predictably, litigants will request Nigerian and Ghanaian courts to evaluate the compliance of customary arbitral awards with the Constitution.

The fact that the framework of customary arbitration is included, as part of the ADR Act seems to have influenced some of its provisions, a fact that must be borne in mind as the ADR Act unfolds. The fact that customary arbitration is generally used as a ‘shield’ rather than a ‘sword’ in Nigeria sheds light on the importance of ensuring that parties to a customary arbitral award should be entitled to a process to enforce an award rather than wait to be sued in a court of law. The fact that a customary arbitral award is enforceable in Ghana is commendable and enhances the capacity of customary arbitration to become a meaningful part of an ADR process.

It appears that customary arbitration practice in Ghana is more formalized with the statutory endowment of alternative dispute resolution functions on Ghana’s traditional institutions in addition to the ADR Act raises some issues of concern. For example, the fact that the ADR Act sets out procedures such as the payment of fees as evidence of consent to arbitration seems to have formalized the customary arbitration process arguably turning traditional institutions into courts. Even though the judicial development of ascertaining consent to arbitration stresses the importance of the circumstances of each case, the issue of consent to proceedings has become a recurrent ground of judicial review of customary arbitral processes. Emerging practice gleaned from Ghanaian case law points to an undue focus on lack of consent to nullify customary arbitral process. A focus on a contextual interpretation of consent is crucial to ensure a balance between asymmetrical power relations in communities and the obligations of traditional authorities to keep the peace and harmony of their communities. No litigant summoned before a state court can justify a refusal to obey. Yet, the idea that members of a community can summarily reject legitimate invitations of traditional authorities seems to have gained currency and may unwittingly thwart the customary arbitral processes. What appears worrisome is evidence of a strict interpretation of a lack of consent to commence an arbitral award.

In Nigeria and Ghana, substantive rules of customary law are not adequately reflected as a ground for the validity of customary arbitration. Even though it is true that a ‘miscarriage of justice’ is a ground of review of the customary arbitration award in Ghana, there is no indication whether this amounts to a miscarriage of customary justice based on a customary law framework. Two questions are especially pertinent in this regard. First, would a Ghanaian court respect an arbitral award that complies with procedural requirements but justifies the award on the need to promote ‘customary justice’ The second question is whether ideas about reconciliation forgiveness solidarity empathy humaneness respect care thought to be emblematic of customary law should be features that state courts should promote in their evaluation of customary arbitration.

V. Concluding Remarks

State court evaluation of outcomes of customary arbitration will remain a barometer of the function of customary law in a plural legal order. The role of the Ghanaian and Nigerian judiciary demonstrate the influence of the common law in the development of customary arbitration. Over the years, ideas of the substantive content of customary arbitration have taken a backseat to issues of procedural validity. What should be a dialectical relationship has turned into one-way traffic. The capacity of customary arbitration to influence the reform of the legal systems of both countries seems lost in precedents and legislation. The simple affordable and accessible processes of traditional dispute resolution mechanisms, such as customary arbitration have a lot to offer state courts and the common law. The question is whether we are able and willing to harvest these capacities in a manner that will allow state courts to encourage customary arbitration. Rather than imagine processes such as customary arbitration as inferior, it will do well for state courts to regard customary law as an equal source of the ‘new’ common law in African countries which must include customary law.