Daily Law Tips (Tip 816) By Onyekachi Umah, Esq., LL.M, Aciarb(UK)

Introduction:  

Ahead of the intrusion of the Africa by the European plunderers and colonial master looters, Africa was lawful within its various unwritten native laws and customs. The traditional and religious rulers in Africa maintained law and order within their territories, and resolved disputes in shrines, palaces and village squares (town halls). On the exit of the direct economic pillagers of Britain from Nigeria -at the independence of Nigeria- the new Nigeria was left with western laws and western-inclined institutions as well as a few native laws and customary institutions. Among the few surviving native institutions at independence, were the traditional leaders, religious leaders, village and family heads, youth leaders and the leaders of markets.

According to The Hague Institute for Innovation of Law (HIIL), there are over 25 million legal problems per year in Nigeria, with only 10% problems reaching lawyers. Today, the inadequacy/poor geographical spread of government-created-and-funded courts and their notorious sluggishness, bureaucracy, allegedly corruption and gradual loss of public trust have made the courts unpopular. Even as disputes are inevitable, the gap in government-created-and-funded courts, means that Nigerians are seeking alternative dispute resolution options, to solve legal problems or rather seeking self-help. The spread of traditional palaces and the popularity of religious centers (shrines) have made dispute resolution by and in such institutions common. There are many judgements from the offices of the offices of the Chief Priests and that of Paramount Rulers.

No doubt, the modus operandi of palaces and shrines are often unorthodox and far from the imported English procedures, and this makes many to question the dispute resolution practices in such places. This work reveals why some of the judgements (awards) from shrines, palaces and village meetings are valid. It shows why the government-created-and-funded courts in Nigeria will honour, respect and enforce a judgment (award) from shrines, palaces and village meetings in Nigeria. It considers: Dispute Resolution Outside the Government-Created-and-Funded Courts; Dispute Resolution in Shrines, Palaces and Village Meetings; and the Legality of Judgments (Awards) from Palaces, Shrines and Village Meetings. Issues of Trial in Secret Cult and Societies; Witchcraft, Juju and Trial; Trail by Ordeal; Submission to Alternative An alternative dispute resolution body and its Decision; Fair Hearing in Shrines and Palaces; and Criminal Law and Unprofessionalism in Shrines and Palaces.  Parts of the Arbitration and Conciliation Act, the Penal Code, the Criminal Code and the Constitution of Nigeria were also considered.

Dispute Resolution Outside the Government-Created-and-Funded Courts:

The Constitution of Nigeria has established courts across Nigeria to resolve disputes in Nigeria. This includes the Supreme Court of Nigeria, the Court of Appeal, Customary Court of Appeal, Sharia Court of Appeal, the National Industrial Court, Federal High Court and the States High Courts. The constitution further empowers state legislatures to make laws creating state government funded courts in states across Nigeria, to resolve disputes in states across Nigeria. Like the Magistrate Courts, District Courts, Area Courts, Sharia Courts, Customary Courts and several states Tribunals. Click to read more on courts in Nigeria and their powers.

However, there is no way government-created-and-funded courts can resolve all disputes in any country and even if they can, some people may not trust them. Also, some disputes are better resolved outside the public eyes and in a less dramatic and procedural venue. By the way, the Nigerian courts are not enough for the disputes in Nigeria. This and many other reasons, are why there are non-government-created-and-funded courts across the world. The non-government-created-and-funded courts are private efforts towards resolving disputes outside the government-created-and-funded courts, in less technical procedures and in accordance with the procedures elected by parties.

The non-government-created-and-funded courts includes, the standing and adhoc institutions that employ negotiation, mediation, arbitration or any other alternative dispute resolution mechanism in resolving disputes outside the government-created-and-funded courts. Popular among the non-government-created-and-funded courts for alternative dispute resolution are; Royal Palaces, Council of Chiefs, Family Meetings, Village Heads, Shrines, Religious groups, Television Courts, Radio Arbitration, Workplace Arbitration/Courts and all other informal courts. They can easily be grouped as an alternative an alternative dispute resolution body. It important to note that the government-created-and-funded courts sometimes employ alternative dispute resolution mechanisms and also, government in some rare cases, create and fund alternative dispute resolution institutions, too.

To standardize the practices and procedures in arbitration (a popular alternative dispute resolution option), the federal government has a federal law (Arbitration and Conciliation Act) and there are similar laws in states across Nigeria. The laws support all forms of arbitration and conciliation in Nigeria. Click to download free copy of the Arbitration and Conciliation Act. The legislations also form basis for any person or group of persons to create any form of informal and lawful alternative dispute resolution outfit. It is part of the authority of Royal Palaces, Council of Chiefs, Family Meetings, Village Heads, Shrines, Religious groups, Television Courts, Radio Arbitration, Workplace Arbitration/Courts and all other informal courts that resolve civil disputes across Nigeria.

Dispute Resolution in Shrines, Palaces and Village Meetings:

Till date, native laws and customs are valid in Nigeria, so far as there are not contrary to the Constitution of Nigeria and other written laws in Nigeria. For example, the native laws in most cultures in Nigeria that allow children to inherit the property of their parents are recognized and valid in courts in Nigeria but the part of the culture that disinherits girls and women has been declared invalid by the Supreme Court of Nigeria. So, the Nigerian Constitution and laws, being supreme and superior to all native laws and customs in Nigeria, has the powers to “pick or drop” any native law that aligns or contradicts it.

Over time, many religions have affected and dominated the culture and way of lives of its practitioners. Religion as a core part of social hereditary has also written and unwritten laws and regulations, geared towards morality and a better life after earth. The supremacy of the Constitution of Nigeria of Nigeria beclouds all religious rules, regulations, morals and teachings. As such, any religious regulation that conflicts with the constitution of Nigeria is invalid. However, where a religious regulation does not violate any law in Nigeria, then it could be a good customary law for its members. This is often the source of law being used in determined disputes in religious centers and shrines.

There are no laws banning and stopping informal dispute resolution mechanisms and institutions. So, dispute resolution in Royal Palaces, Council of Chiefs, Family Meetings, Village Squares, Shrines and Religious groups according to native laws and customs or the bye-laws of the concerned organization is valid and recognized by Nigerian laws, so far as it does not contradict any part of Nigerian laws.

There are circumstances or situations wherein the judgments of the Nigerian courts and their practices could be declared invalid and as such nullified. Also, there are circumstances that could make the judgments (awards) from Royal Palaces, Council of Chiefs, Family Meetings, Village Squares, Shrines and Religious groups or any non-government-created-and-funded courts to be invalid and nullified. The circumstances are considered below.

The Legality of Judgments (Awards) from Palaces, Shrines and Village Meetings: 

The legality of the judgment (awards) from palaces, shrines, village meetings and any other alternative an alternative dispute resolution body, is among the major issues that may deter disputants from seeking alternative dispute resolution. Can such judgements (awards) be recognized and enforced? Answering the questions is giving voice to alternative dispute resolution bodies in Nigeria.

Nothing answers the above questions better than the words of the learned jurist at the Court of Appeal in Nigeria. Justice MOORE ASEIMO ABRAHAM ADUMEIN stated that;

“It is well accepted that one of the many African customary modes of settling dispute is to refer the dispute to the family head or an elder or elders of the community for a compromise solution based upon the subsequent acceptance by both parties of the suggested award, which becomes binding only after such signification of its acceptance, and from which either party is free to resile at any stage of the proceedings up to that point. This is a common method of settling disputes in all indigenous Nigerian societies. It is this kind arbitration which the Court considered in Assampong v. Kwelu & Ors. (1932) 1 WACA 192. In Phillip Njoku v. Felix Ekeocha (1972) 2 ECLR 199 Ikpeazu, J., held that: “Where a body of men, be they Chiefs or otherwise, act as arbitrators over a dispute between two parties, their decision shall have a binding effect, if it is shown firstly that both parties submitted to the arbitration. Secondly that the parties accepted the terms of the arbitration, and thirdly, that they agreed to be bound by the decision, such decision has the same authority as the judgment of a judicial body and will be binding on the parties and thus create an estoppel.” This is a good and acceptable definition of customary arbitration.” Per, MOORE ASEIMO ABRAHAM ADUMEIN, JCA (Pp. 18-20, paras. C-B) in the case of MR. HENRY OSARUMWENSE OBASOHAN v. MR. JULIUS OSARENOMA OBASOHAN {JNR} (2019) LPELR-47187(CA)

The essence of dispute resolution is to understand parties and their misunderstanding and then aid parties to return to a state of no disagreement. The end product of a dispute resolution is a decision (judgment/award) and the validity of a decision (especially in non-government-created-and-funded courts) hovers on the authority of the alternative dispute resolution body, its conduct and procedure as well as the submission of parties to such body and its decision. Decisions of non-government-created-and-funded courts are lawful and legally binding on parties, unless in few circumstances, where it can be proven that submission of the parties to the authority and decision of an alternative dispute resolution body, or its conduct and procedure are defective.

Trial in Secret Cult and Societies:

Generally, operating, managing, joining or participating a secret society, unlawful society or cult is a criminal offence in all part of Nigeria. The Constitution of Nigeria at section 38(4) expressly prohibits secret societies, their activities and members. Hence, any non-government-created-and-funded courts that is an unlawful society or cult cannot give a valid decision. Some shrines, religious and cultural groups are secret cults and as such their dispute resolution efforts will never result to a lawful, valid and binding decisions.

In southern part of Nigeria, the punishment for managers of unlawful societies in is seven (7) years imprisonment and the punishment for members is three (3) years imprisonment. In the Northern part of Nigeria, the punishment for joining an unlawful assembly is imprisonment for one (1) year or fine or both. Where such a member is armed with a deadly weapon, the punishment is imprisonment for two (2) years or fine or both. Knowingly joining an unlawful assembly that has been ordered to disperse is punishable with five (5) years imprisonment or fine or both.

Witchcraft, Juju and Trial:

Witchcraft, Juju, Charms, Black Magic, Religious and Spiritual Manipulations and Misrepresentation, Administration of Concoctions and Practice of Mysticism are all unlawful and criminal in Nigeria. However, it is common to find such practices in religious centers, shrines, palaces and many other venues and in procedures of non-government-created-and-funded courts. Expectedly, any non-government-created-and-funded courts (an even the government-created-and-funded courts) that features any unlawful practices is criminal and as such, its decisions are tainted, unlawful and invalid.

In the states in the south of Nigeria, the punishment for using, buying, selling, witchcraft, juju or charm is two (2) years imprisonment. The punishment for any chief that promotes or supports the use, worship or invocation of witchcraft, juju or charm is imprisonment for three (3) years. Production, sell or hire of charms is punishable with imprisonment for five (5) years. In the Northern Nigeria, the punishment for dealing, production, sell or hire of on Juju, witchcraft is imprisonment for two (2) years or fine or both.  And the where a person uses or is in possession of juju or witchcraft for the commission of an offence, the punishment is five (5) years imprisonment, or fine or both, while eating any part of human corpse is punishable with two (2) years imprisonment, or fine or both.

Trial by Ordeal:

Trial by ordeal (trial by water, trial by fire, trial by deities, trial by any painful or dangerous means, trial by chance, trial by luck and guess work) is unlawful in Nigeria. A trial that results in loss of body part, death or violation of any human right is unlawful and criminal. It is common to find dispute resolutions in palaces and shrines that involve the administration of concoctions to disputants or disputants being made to take oath to deities and “holy items”.  These practices are unlawful in Nigeria and as such the outcome of such trials is a waste of time, a criminal offence and at best the violation of the human rights of disputants.

In the south of Nigeria, the punishment for trial by ordeal is ten (10) years imprisonment for the persons that controlled or presided in such trial and one (1) year imprisonment for any person that assist in the trail. In the Northern part of Nigeria, trial by ordeal is punishable with imprisonment for ten (10) years or fine or both, but where it leads to death, the punishment is death.

Submission to Alternative An alternative dispute resolution body and its Decision:

Willful submission of disputants to the powers of a non-government-created-and-funded courts is key for a non-government-created-and-funded courts to have powers over disputants. The power of choice is an important feature of any alternative dispute resolution procedure; parties have the absolute power to submit or refuse to submit to an alternative dispute resolution body.

Also, parties have to agree to be bound by the decisions of an alternative dispute resolution body. Where parties submit to an alternative an alternative dispute resolution body, they have to also agree to be bound by the decision of the body at all stages of trial and even after a decision is reached. If the free submission of parties either to the body or to the decision of the body is missing, then the alternative dispute procedure is missing. This is far from what is obtainable in the government-created-and-funded courts, where such courts employ their government powers and officers to compel parties to submit to it, without giving any power of choice to parties (especially, the party dragged to court).

So, where an alternative dispute resolution body drags parties to appear before it by force or fraud, the decision of the dispute body is invalid. Many shrines and palaces force persons to appear before them, some use juju, charms, deceit or threat to life to compel attendance and participation. Such practice is an infringement of human rights and a violation of parties right to submit and not to submit to a non-government-created-and-funded court and its decisions. Hence, the decision of an alternative dispute resolution body that is based on the fake submission of parties gotten by fraud or force is invalid and illegal.

Fair Hearing in Shrines and Palaces:

Fair hearing is key to any determination and resolution of dispute. Parties must be given adequate and equal opportunity to prosecute their cases. This does not mean that parties will be offered forever to prosecute their cases. However, failure to offer fair hearing to parties can invalidate the decision of non-government-created-and-funded courts (and any other court). Also, non-government-created-and-funded courts must adhere to only the issues laid before them by parties to resolve and as such must abstain from acting beyond their powers.

Criminal Law and Unprofessionalism in Shrines and Palaces:

Expectedly, a negligent, biased and unprofessional alternative dispute resolution body cannot beget a lawful and binding decision. Also, criminal cases are matters that cannot be handled by non-government-created-and-funded courts, rather only government-created-and-funded courts can handle them, in line with laws that create such crimes. So, an attempt to resolve a criminal dispute by a palace or shrine or an alternative dispute resolution body is a sheer waste of time.

Conclusion:

Royal Palaces, Council of Chiefs, Family Meetings, Village Squares, Shrines and Religious groups (non-government-created-and-funded courts) have powers to resolve disputes, where and when disputants willfully submit to them and their decisions. In resolving disputes, the non-government-created-and-funded courts must exercise their powers lawfully and ensure there is no abuse of human rights or abuse of justice. Where there is an abuse, the decisions of a non-government-created-and-funded court are jeopardized and may be invalidated.

In summary, “For a customary arbitration to be valid, it must be shown: (a) that parties voluntarily submit their disputes to a non-judicial body, to wit, their elders or chiefs as the case may be for determination; and (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 decision so pronounced.” BITRUS GYARAZAMA SANGA, JCA in the case of ELDER MACAULAY EKEZIE & ORS v. ELDER FRIDAY O. TASIE & ORS (2019) LPELR-46451(CA).

My authorities, are:

  1. Sections 1, 2, 3, 4, 5, 6, 36, 38(4), 230, 231, 236, 237, 238, 249, 250, 254, 256, 260, 261, 265, 266, 270, 271, 275, 276, 280, 281, 287, 291, 292 and 318 and 319 of the Constitution of the Federal Republic of Nigeria, 1999.
  2. Sections 1 to 58 of the Arbitration and Conciliation Act.
  3. Sections 62, 62A, to 68, 207 to 213 of the Criminal Code Act, 1916.
  4. Sections 1, 3, 4, 5, 100 to 105, 214 to 219 of the Penal Code Act, 1960.
  5. The judgment of the Supreme Court of Nigeria (on the meaning and nature of arbitration) in the case of KANO STATE URBAN DEVELOPMENT BOARD v. FANZ CONSTRUCTION COMPANY LIMITED (1990) LPELR-1659(SC)
  6. Judgment of the Court of Appeal (on nature and practice of Customary Arbitration) in the case of HENRY OSARUMWENSE OBASOHAN v. MR. JULIUS OSARENOMA OBASOHAN JNR} (2019) LPELR-47187(CA)
  7. Judgment of the Court of Appeal (on conditions for customary arbitration to be binding) in the case of ELDER MACAULAY EKEZIE & ORS v. ELDER FRIDAY O. TASIE & ORS (2019) LPELR-46451(CA)
  8. The Hague Institute for Innovation of Law, “Justice Needs and Satisfaction in Nigeria 2018” (HIIL, 2018) https://www.hiil.org/wp-content/uploads/2018/07/HiiL-Nigeria-JNS-report-web.pdf accessed 25 July 2021
  9. Onyekachi Umah, “Legality of the New Bishop’s Court of Onitsha Anglican Diocese” (LearnNigerianLaws.com, 28 June 2021) < https://learnnigerianlaws.com/legality-of-the-new-bishops-court-of-onitsha-anglican-diocese/> accessed 25 July 2021
  10. Onyekachi Umah, “Can The Evidence Act Apply To Arbitration Or Customary Court Of Appeal” (LearnNigerianLaws.com, 10 April 2019) <https://learnnigerianlaws.com/can-the-evidence-act-apply-to-arbitration-or-customary-court-of-appeal-daily-law-tips-tip-308-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 25 June 2021
  11. Onyekachi Umah, “Are courts in Nigeria Administratively Independent of the Chief Justice of Nigeria and the Supreme Court?” (LearnNigerianLaws.com, 20 April 2020) <https://learnnigerianlaws.com/are-courts-in-nigeria-administratively-independent-of-the-chief-justice-of-nigeria-and-the-supreme-court-daily-law-tips-tip-551-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 25 June 2021.
  12. Onyekachi Umah, “The Nigerian Court For Ships and Aircrafts Matters” (LearnNigerianLaws.com, 11 November 2020) <https://learnnigerianlaws.com/the-nigerian-court-for-ships-and-aircrafts-matters/> accessed 25 June 2021
  13. Onyekachi Umah, “Courts That Can Hear Cases of Fundamental Human Rights In Nigeria” (LearnNigerianLaws.com, 2 May 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-92-courts-that-can-hear-cases-of-fundamental-human-rights-in-nigeria/> accessed 25 June 2021.
  14. Onyekachi Umah, “ECOWAS Court as a Weak Alternative to Nigerian Courts” (LearnNigerianLaws.com, 20 May 2021) <https://learnnigerianlaws.com/ecowas-court-as-a-weak-alternative-to-nigerian-courts/> accessed 25 June 2021
  15. Onyekachi Umah, “An Alternative to Courts for Human Rights Cases” (LearnNigerianLaws.com, 14 May 2021) <https://learnnigerianlaws.com/an-alternative-to-courts-for-human-rights-cases/> accessed 25 June 2021
  16. Onyeakchi Umah, “How To Know If A Judge Is Fair Or Not: The Test For Justice” (LearnNigerianLaws.com, 15 September 2020) <https://learnnigerianlaws.com/how-to-know-when-a-judge-is-fair-or-not-the-test-for-justice/> accessed 25 June 2021
  17. Onyekachi Umah, “What is Plea Bargain, If Criminal Cases Cannot be Settled Out of Court?” (LearnNigerianLaws.com, 10 July 2020) <https://learnnigerianlaws.com/what-is-plea-bargain-if-criminal-cases-cannot-be-settled-out-of-court-daily-law-tips-tip-606-by-onyekachi-umah-esq-ll-m-aciarbuk/> accessed 25 June 2021
  18. Onyekachi Umah, “Which Court Can Hear Cases Of Land Disputes In Villages And Rural Communities In Nigeria” (LearnNigerianLaws.com, 12 December 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-247-which-court-can-hear-cases-of-land-disputes-in-villages-and-rural-communities-in-nigeria/> accessed 27 June 2021.
  19. Onyekachi Umah, “Which Court Can Try Cases Of Bounced/Dud Cheque In Nigeria?” (LearnNigerianLaws.com, 18 October 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-208-which-court-can-try-cases-of-bounced-dud-cheque-in-nigeria/> accessed 27 June 2021.

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