Notwithstanding the many controversies surrounding the practice of customary arbitration in Nigeria, it is evident that this uncodified practice has always been a fundamental part of the dispute resolution system in Nigeria. The case of Agala v Okusin166 shows that customary arbitration still remains an existing, successful and legal binding method of resolving disputes in Nigeria.167
It has grown from a traditional and unregulated practice to one under the guidance of Nigerian courts. However, customary arbitration agreements still remain largely unwritten and therefore beyond the purview of the governing arbitration framework in Nigeria, the Nigerian Arbitration and Conciliation Act 2004. As discussed in Chapter Four, Section 1 of the said Act168 provides that all arbitration agreements be in
writing. Unfortunately, customary arbitration agreements are usually oral and this explains why the Supreme Court has severally required that the existence of a customary arbitration agreement be proven through evidence.169
This omission is sad because this pre-existing practice is indigenous and therefore well suited to the peculiarities of Nigeria as a nation. As Professor Andrew Chukwuemerie rightly noted, “it would be suicidal in a sense to attempt stifling customary law arbitration or to foist alien rules upon it without such rules going through the people’s daily usage and culture to first of all gain acceptance”.170 Unfortunately, for reasons best known to them, Nigerian lawmakers chose to enact a replica of the UNCITRAL model law in Nigeria without taking into consideration existing practices. It is submitted that this failure to adapt the law to the cultural and political idiosyncrasies of the country has inhibited the growth and practice of a very functional domestic arbitration in Nigeria.171
166Agala v Okusin (2010) 10 NWLR (PT 1202) 412.
167 See also Okoye v Obiaso (2010) 8 NWLR (Pt. 1195) 145 at 171-172; Achor v. Adejoh (2010) 6 NWLR
(Pt.1191) 537 at 569; Okereke v. Nwanko (2003) 9 NWLR (Pt. 826) 592; Egesimbe v. Onwuzurike (2002) 15 NWLR (pt. 791) 446.
168Nigerian Arbitration and Conciliation Act 2004. 169 ibid.
170 Andrew Chukwuemerie, ‘Salient Issues in the Law and Practice of Arbitration in Nigeria’ (2006) 14
African Journal of International and Comparative Law 1, 6.
170
As we will see in Chapter Six, Ghana a country with a similar cultural, legal and even colonial history as Nigeria, recently incorporated her successful and generally accepted customary arbitration practice into the country’s alternative dispute resolution statutory framework.172 As we will also see, the said framework was introduced in response to challenges encountered in the administration of justice at the Ghanaian courts.173 For example, Ghana like Nigeria also has overburdened courts and there was need to provide viable alternatives.174
To aid the development of a successful domestic arbitration practice in Nigeria and by extension provide a viable alternative to litigation, it is submitted that there is need to put into place an Arbitration Act that provides for all strata of the Nigerian society: the young and old, the rich and poor, the educated and uneducated. There is also a need to provide a framework that creates a balance between the idiosyncrasies of the Nigerian nation and the basic principles of arbitration. Rather than blindly adopting a model law, a country has a duty to ascertain its suitability and make adjustments as necessary. A cue should be taken from the United Kingdom which only adopted suitable parts of the Model law into the English Arbitration Act 1996.175
Nigeria (and indeed Africa) needs to get her act together as her long desired and awaited change can only come from within. Stakeholders need to address these internal problems rather than attempting cosmetic changes. Adopting a model framework does not necessarily guarantee or foster a development of Nigeria’s arbitration practice. Professor Abiodun Alao during his recently delivered Inaugural lecture at Kings College rightly stated that “…Africa should take over the process of controlling its own narratives. Dogmatic acceptance of narratives from outside is not only banal and devoid of any logical thinking but actually wrong and potentially
172 Ghanaian ADR 2010.
173 While we commend Ghana for taking this initiative, the approach is not without its criticisms. See
Section 1.1.2 of Chapter Six.
174 Kwadwo Sarkodie, ‘Arbitration in Ghana-The Alternative Dispute Resolution Act 2010’
1<www.mayerbrown.com/files/Publication/5ee1223112954559816789d93cdf2a06/Presentation/Publ icationAttachment/91e048fe-67d44e3f9d108bbf9861e753/ArbitrationGhana_Sarkodie.pdf> accessed 28 January 2015; Paul kirgis, ‘Customary Arbitration in an Evolving Africa’ <www.indisputably.org/?p=2592> accessed 28 January 2015, <http://jtighana.org/new/actdetails.php?id=21> accessed 15 January 2015.
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harmfully”.176 Efforts should be made towards developing and consolidating local and existing frameworks before attempting to import new systems.
176 Abiodun Alao, ‘Africa: A Voice To Be Heard, Not A Problem To be Solved’ (Inaugural Lecture
delivered at Kings College, London on April 26 2016) < http://blogs.premiumtimesng.com/2016/04/27/172515> accessed 30 April 2016.
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CHAPTER SIX
A DOMESTIC ARBITRATION ANALYSIS OF THE GHANAIAN ALTERNATIVE DISPUTE RESOLUTION ACT 2010, THE UNCITRAL MODEL LAW 2006, THE
ENGLISH ARBITRATION ACT 1996 AND THE UNIFORM ACT ON ARBITRATION 1999
INTRODUCTION
In Chapter Four, we described the domestic arbitration framework and practice in Nigeria. More importantly, we examined some of the controversial issues arising from the framework, which have in turn affected the development of arbitration in Nigeria. We concluded that chapter by making a case for reforms.
Apart from the shortcomings of the existing arbitration framework in Nigeria as discussed in Chapter Four of this thesis, it is argued that the domestic (and even the international) arbitration framework in Nigeria is also outdated. In the almost thirty years in which the Nigerian framework has been in existence, a number of beneficial changes, trends and developments have occurred within the sphere of arbitration, which have proven to be very useful in the practice of arbitration in other jurisdictions and from which the framework and practice in Nigeria would benefit immensely. For example, in order to properly tackle the issue of congestion plaguing its courts, the Ghanaian government recently replaced its 1961 Arbitration Act with a framework that amongst other things, incorporates its deeply rooted customary arbitration framework into its new statutory framework. Furthermore, the UNCITRAL Model Law which the Nigerian arbitration framework is modelled after has since been revised to suit the demands of commercial practice. For these and other reasons, there is a need to revisit the Nigerian Arbitration framework.
In our quest to suggest a new and practical framework for Nigeria, this chapter examines the domestic aspects of four more developed but relevant arbitration frameworks: the Ghanaian Alternative Dispute Resolution Act 2010, the UNCITRAL Model Law 2006, the English Arbitration Act 1996 and the Uniform Act on Arbitration 1999. This discussion provides useful insight into developments that have occurred
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within the field of arbitration and from which this thesis, indeed the Nigerian arbitration practice in general, can draw.
This chapter is divided into four parts. In the first part, we examine the new arbitration framework in Ghana as contained in its Alternative Dispute Resolution Act 2010 (the ADR Act). Specifically, we justify this selection and provide a brief background of this Act. In the process of critically analysing this framework, we also distinguish between the Ghanaian and Nigerian arbitration frameworks. Among the many other provisions contained in the ADR Act, we specifically acknowledge the bold and pioneering efforts of the Ghanaian legislature in incorporating customary arbitration into its statutory framework. Hitherto, customary arbitration in Ghana and even Africa was regulated by case and customary law.
Notwithstanding the fact that the Ghanaian ADR Act recognizes and incorporates customary arbitration into statute, it in a way differentiates customary arbitration from the other types of arbitration1 by providing for both practices in separate parts of the Act. In other words, while customary arbitration is provided for in Part Three of the Act, arbitration (in the general sense in which it is known) is provided for in Part One of the Act. Interestingly, both parts of the Act have similar provisions and so this writer questions the idea behind separating these two parts of the Act. A number of controversial issues arising from the ADR Act are also dealt with in this part. In Chapter Four, we pointed out that the Nigerian Arbitration and Conciliation Act is largely modelled after the 1985 version of the UNCITRAL Model Law. For this reason, we will not repeat the discussion on the provisions of the UNCITRAL Model Law. Instead in the second part of this chapter, we critically analyse the relevant improvements that have been made to the 2006 version of the Model Law. This also provides a suitable background for the third part of this chapter.
The third part of this chapter involves a comparative analysis of the Nigerian, Ghanaian, UNCITRAL and the English arbitration frameworks. It highlights the differences that exist between these frameworks, especially as they relate to domestic
1 Here we refer to arbitration in the traditional sense in which it is known all over the world. This
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arbitration. In the course of this chapter, we submit that the English Arbitration Act provides the most detailed and practical arbitration framework of all the frameworks under consideration including the UNCITRAL Model Law.
In the final part of this chapter, we introduce the Organization for the Harmonization of Business Law in Africa Treaty (“OHADA treaty”). This treaty was conceived to encourage the development of commercial relations in Africa as well as encourage legal certainty through the unification of business laws in Africa.2 We note that despite the best intentions of the promoters of this treaty, only seventeen Francophone countries have signed the treaty till date. One reason which we identified in this thesis is the fact that the OHADA treaty bases its framework on Civil law, a law incompatible with the legal system in many African countries. For example, Nigeria and Ghana amongst others, by virtue of their colonial history, practise common law. We conclude this chapter by critically analysing the Uniform Act on Arbitration 1999 (the common arbitration framework for the OHADA member States) as against the other arbitration frameworks which we have discussed in this thesis.
1.0 THE ARBITRATION PRACTICE IN GHANA