Dato Inicial b
5.7. Resultados con mayor resolución
Chapter Two discusses the problems of the Nigerian judicial system in a bit of depth and very importantly provides a basis for this thesis. For example, we highlight the problems of delay in the administration of justice and perennial backlog of cases, long and very regular industrial strike actions, a largely incompetent and corrupt judiciary, bad and antiquated laws as well as poor court infrastructure amongst others.
We conclude this chapter by making a few suggestions, all in a bid to improve the effectiveness of the Nigerian judicial system. For example, we advocate for the financial autonomy of the judiciary, a more transparent appointment process of Judges, improved and continuous training for new and old Judges. Very important especially to this thesis is the fact that we recommend arbitration as a solution to many of the problems of the judiciary and as a viable alternative to litigation.
In Chapter Three, we introduce the reader to basic concepts and principles of arbitration, most of which would be useful in the course of this thesis. We also establish the viability of the arbitration mechanism as against popular dispute resolution mechanisms like mediation, conciliation and negotiation, which are classified under the umbrella head of Alternative Dispute Resolution (ADR).
7
We discuss the inability of the courts to adapt to the evolving commercial realities as well as justify our selection of arbitration as a viable alternative to litigation and as a solution to some of the problems plaguing the Nigerian judicial system. We conclude Chapter Three by introducing the reader to the existing domestic arbitration practices in Nigeria: the Nigerian Arbitration Act and the customary arbitration practice. Chapter Four takes our discussion a step further by introducing the reader to the domestic arbitration practice in Nigeria. Specifically, we argue that contrary to popular opinion, domestic arbitration is not necessarily limited to purely national or domestic matters. We opine that not only is the idea of domestic arbitration many times dependent on an understanding of international arbitration, knowledge of domestic arbitration is also a relevant aspect of the practice of international arbitration. Furthermore, we critically analyse the domestic arbitration practice in Nigeria with the aid of case law and statutory provisions as embedded in the Arbitration Act. The aforementioned analysis is significant as it provides an insight into the domestic arbitration framework in Nigeria, accentuates the gaps in the said framework as well as justifies our call for reforms in the light of the Nigerian situation. In addition, it provides a framework by which Nigeria’s domestic arbitration practice can be compared with the customary arbitration method as well as other more developed but relevant arbitration frameworks, thus highlighting any significant developments that have occurred within the sphere of arbitration between 1988 and date.
We also critically examine a report by a committee set up by the Federal Government of Nigeria for the reform and harmonization of arbitration and ADR laws in Nigeria. Drawing from discussions and conclusions made in the course of this chapter, we conclude Chapter Four by making a case for reforms.
Chapter Five examines the existing customary arbitration practice through the eyes of the court, which unlike its Ghanaian counterpart, is unable to operate under the existing arbitration statute. Specifically, we examine arguments surrounding the existence and validity of the practice in Nigeria. This chapter critically examines the
8
Nigerian Supreme Court’s decision in Agu v Ikewibe,25 a locus classicus on customary arbitration in Nigeria, as well as address arguments arising from this decision. In addition, we critically analyse recent decisions of the Nigerian Supreme Court on customary arbitration in the light of general principles of arbitration. We would at the conclusion of this analysis submit that customary arbitration has in the last two decades systematically evolved from a quasi-arbitration practice to a full arbitration practice. We conclude this chapter by making a case for reforms.
In Chapter Six, we examine the domestic arbitration framework in jurisdictions with more developed but relevant arbitration frameworks. This is in a bid to learn from the successes and failures of these more developed frameworks. Specifically, we consider the Ghanaian Alternative Dispute Resolution Act 2010, the revised UNCITRAL Model Law 2006, the English Arbitration Act 1996 as well as the Uniform Act on Arbitration 1999 of the OHADA region. This analysis also provides a useful insight into developments that have occurred between 1988 and now, and from which the proposed arbitration framework can pick a thing or two.
Chapter Seven closes this thesis. Drawing from arguments and conclusions made in previous chapters, we among other recommendations, advocate for a bespoke domestic arbitration practice for Nigeria. In arriving at the model framework, we in some instances advocate for a total repeal of existing statutory provisions. In some other situations, we advocate for more flexible provisions and procedures, in line with the level of development in Nigeria. In other instances, we introduce new structures or institutions in order to aid the development of the domestic arbitration practice in Nigeria. We also in some other cases borrow a leaf from the customary arbitration practice in Nigeria. In many places, we recommend new processes and structures independent of all the frameworks which we consider.
9
The result of all these is a specially tailored arbitration law that takes into consideration both the legal and social idiosyncrasies of the Nigerian nation as well as established and proven arbitration principles as practised in other jurisdictions.
10
CHAPTER TWO
THE JUDICIAL SYSTEM IN NIGERIA: THE NEED FOR AN ALTERNATIVE
INTRODUCTION
Over the past few years, the performance and reputation of the Nigerian judiciary has come under intense scrutiny and criticism. Not only has the judiciary been trailed by allegations of corruption, the courts at various levels have been unable to decide cases at the same speed at which they are being instituted. This has resulted in a backlog that dates as far back as three decades.1 In addition, the Nigerian judiciary continues to suffer from periodic and very lengthy industrial strike actions, which have not only contributed to the already existing backlog, but more importantly denied citizens of their constitutional right of access to the courts.2
Furthermore, the laws governing the jurisdiction of many of the superior courts in Nigeria have been enmeshed in a lot of controversy. This has resulted in conflicting and very questionable decisions, thus complicating an already bad situation. As we will in the course of this thesis come to see, the inefficiency of the Nigerian judiciary has led to dissatisfaction among the Nigerian citizenry, which in many instances has encouraged the total breakdown of law and order.3 As at the time of writing this chapter of the thesis, the Nigerian judicial system is in a state of crisis.
Jim O’ Neill, the BRICS proponent, recently identified Nigeria as one of the next economic giants.4 Following the recent rebasing of her economy, Francisco Ferreira, the Chief Economist (African Region) of the World Bank, has speculated that the next couple of years will witness an unprecedented increase in investment activities in
1 Osita Ogbu, ‘The Judiciary in a Polity: A force for Stability or Instability?: The Nigerian Experience’
(1999) 11 African Journal of International and Comparative Law 724, 735.
2 As at the time of writing this part of the thesis in March 2015, the various Superior Courts in Nigeria
had been on strike for periods ranging between five months and eight months.
3 BBC editorial, ‘Nigeria's vigilante 'jungle justice' BBC News (28 April 2009)
<http://news.bbc.co.uk/1/hi/world/africa/8021468.stm> accessed 20 November 2015.
4 According to this Economist, the other giants include Mexico, Indonesia and Turkey, hence the
popular acronym MINTS. ‘The Mint countries: Next economic giants?’ BBC News (6 Jan 2014)
11
Nigeria.5 This will of course result in a plethora of specialised and technical disputes,6 thus emphasizing the need for an efficient dispute resolution system.7 In view of the existing and very many problems of the Nigerian judiciary, one is forced to question her physical and technical capacity to accommodate this new and varied workload. This chapter discusses the problems of the Nigerian judicial system in depth and very importantly, serves as one of the basis for this PhD thesis. In this chapter, we justify the need to devise a new and bespoke means of resolving domestic disputes in Nigeria, and so while we highlight as well as critically discuss some of the major problems of the Nigerian court system (like the heavy workload of the courts, the recurrent industrial strike actions, incompetent and/or corrupt staff, among many others), among other recommendations, we conclude this chapter by suggesting arbitration as a solution to the aforementioned problems and as a viable and practical alternative to the existing litigation practice in Nigeria.
In terms of structure, this chapter is divided into three major parts. By way of background to the existing judicial system, Part One highlights and examines very briefly, the pre-colonial mechanisms of resolving disputes in traditional Nigeria; the traditional court system, customary arbitration as well as the customary mediation and reconciliation mechanisms. By these, we establish that prior to colonization, the geographical location now known as Nigeria had its own local methods of resolving domestic disputes.8 Unfortunately, these mechanisms which arguably have the capacity to take off some of the burden from the courts, have gradually faded into oblivion mainly because of their lack of recognition by Nigerian law.9
5 Ndubuisi Francis, ‘W’Bank: Rebased GDP Has Exposed Nigeria to Global Businesses’ Thisday Live (13
April 2014) <www.thisdaylive.com/articles/wbank-rebased-gdp-has-exposed-nigeria-to-global- investors/176037/> accessed 20 March 2015.
6 B.A Bukar, ‘Legal Framework for the Resolution of International Commercial Disputes: An
examination of Nigeria’s Arbitration Laws’ (1999) 16(1) Journal of International Arbitration 47, 48.
7 Koyinsola Ajayi, ‘Nigeria’s New Arbitral and Conciliatory Process’ (1989) 7(9) International Banking
Law 140.
8 This discussion and distinction will also be useful when we discuss the customary arbitration practice
in Nigeria in Chapter Five of this thesis.
9 As we will come to see in Section 1.0 of this Chapter and also in Chapter Five of this thesis, currently
12
In Part Two, we examine the judicial structure in modern Nigeria. We highlight the various Superior Courts of Record in Nigeria and briefly discuss the scope of each of their jurisdictions. In the third and final part of this chapter, we critically discuss the major problems of the Nigerian judiciary. We conclude this chapter by making recommendations to improve the efficiency and standard of the courts.10 Most important of these recommendations, is the introduction of a new, bespoke and viable domestic arbitration practice in Nigeria.
1.0 BACKGROUND
Prior to the colonization of Africa, the geographical area now known as Nigeria was made up of independent groups of people, each having its own and somewhat unique culture.11 This culture encapsulated the different institutions and practices with which the people administered the various aspects of their life.12 One of the most important of all these was a very successful dispute resolution system, which the people used to administer economic and social disputes.13 As Dr Laibuta rightly noted, conflict is an integral feature of human relations and so the existence of suitable and efficient dispute resolution mechanisms was critical to the maintenance of social order.14 According to Dr Oluduro, “to deny the fact that Africans had their own ways of resolving conflicts that differ from that of the English is to swim in the ocean of misconception which is polluted with the waters of ethnocentrism and cultural shock.”15 It was agreed that disputes were inevitable.16 Traditional Nigeria had such
10 For example, we advocate for the financial autonomy of the judiciary, the introduction of a more
transparent appointment and training process for Judges, the provision of an enabling working environment for Judges, amongst others.
11 Restatement of Customary Law of Nigeria as adopted and promulgated by the Nigerian Institute of
Advanced Legal Studies (Nigeria, 20 April 2013) 3.
12 These different institutions and practices shared similar characteristics.
13 Akintunde Obilade, The Nigerian Legal System (Sweet and Maxwell 1979) 17; L.A. Ayinla, ‘ADR and
the Relevance of Native or Customary Arbitration in Nigeria’ (2009) 5 The University of Ilorin Law Journal 254, 255; Andrew Chukwuemerie, ‘The Internationalisation of African Customary law arbitration’ (2006) 14(2) African Journal of International and Comparative Law 143.
14 K.I. Laibuta, ‘ADR in Africa: Contending with Multiple Legal Orders for Wholesome Dispute
Resolution’ (2016) 82(1) Arbitration, 63,67.
15 Olubayo Oluduro, ‘Customary Arbitration in Nigeria: Developments and Prospects’ (2011) 19(2)
Journal of International and Comparative Law 307, 321.
16 A number of Nigerian proverbs emphasize the importance of dispute resolution mechanisms. A
13
dispute resolution mechanisms as litigation, arbitration and the ADRs such as mediation, conciliation and negotiation.17 However as the learned Professor
Chukwuemerie rightly submitted, these systems certainly did not go by any of the aforementioned English names. Each of these systems went by different native names, depending on the community in question.18 At the head of these systems was the Kings’ Traditional Court (“Kings’ Court”).19 This court was supreme to the customary arbitration and customary mediation mechanisms. All these mechanisms differed in terms of jurisdiction, the process of initiating proceedings, personnel, parties’ autonomy and involvement in the proceedings, as well as the enforcement process. For example, the Kings’ Court had jurisdiction over criminal matters as well as matters which affected and were likely to disrupt the corporate existence of the community as a whole.20 Dr Oluduro submitted that “the King (Oba) and his council, who constituted the Supreme Court, handled serious cases like rape, murder, manslaughter, arson, kidnapping, putting dangerous medicine in a public place, assaulting a Chief or Oba’s wife, adultery with an Olori (Oba’s) wife, land cases etc.”21 The Kings’ Court also entertained appeals arising from the other dispute resolution methods 22 and was the final “bus stop” for disputes arising within the community.23 Customary arbitration was however used to resolve private and trade disputes between members of the community as well as disputes arising between two independent communities. Customary mediation on the other hand was used to administer domestic disputes in smaller social orders like the family.24 It must be
together and not have disagreements, not finding solutions to the constant conflict is what is condemnable).
17 Andrew Chukwuemerie, ‘Salient Issues in the Law and Practice of Arbitration in Nigeria’ (2006) 14
African Journal of International and Comparative Law 1, 4.
18 D.A Offiong, ‘Conflict Resolution among the Ibibio of Nigeria’ (1997) 53 Journal of Anthropological
Research 423, 431; Olubayo Oluduro (n 15) 331.
19 This was the central and Supreme Court of the land.
20T.O Elias, The Nature of African Customary Law (1st edn, Manchester U.P 1956) 213. 21 Olubayo Oluduro (n 15) 312.
22 Martin Chukwuka Okany, The Role of Customary Courts in Nigeria (Fourth Dimension Publishing Co
ltd 1984) 3.
23 Ben Nwabueze, Machinery of Justice in Nigeria (1st edn, Butterworth’s, 1963) 45; Olubayo Oluduro,
‘Customary Arbitration in Nigeria: Developments and Prospects’ (n 15) 312.
24 O Adekile, ‘Legal Frameworks for Settling Marital Disputes through Reconciliation in Nigeria’
14
pointed out that the African idea of family is more inclusive than the western idea.25 For example, a marriage between a man and a woman is said to be a marriage between their families and in certain instances, their communities.26
In concluding this section, it is important to emphasize that of all the pre-colonial methods; only the customary arbitration mechanism is legally recognised by the current Nigerian law.27 Today, the Kings’ Court is of no legal and/or binding significance in modern Nigeria. This is attributable to the advent and use of the English styled laws and courts in Nigeria. Section 6(1) of the 1999 Constitution of the Federal Republic of Nigeria28 (“the Nigerian Constitution”) expressly vests all forms of judicial power in what it refers to as Superior Courts of Record. Section 6(5) of the Constitution goes on to list these courts, which does not directly or indirectly include the Kings’ Court.29
In replacing the Kings’ Court, many States have through their legislative bodies established Area or Customary Courts in the remotest communities.30 This power is exercised pursuant to Section 6(5) (k) of the Nigerian Constitution, which empowers the State House of Assembly to create lower courts as they may deem necessary.31 These Area and Customary Courts take the place of the Kings’ Court within these societies. Any attempt by any King or Chief to exercise any form of binding judicial power in modern Nigeria is therefore inconsistent with the provisions of the Constitution and to the extent of this inconsistency, null and void.32
25 Nonso Okoreafoejeke, Law and Justice in Post-British Nigeria: Conflicts and Interactions between Natives and Foreign Systems of Social Control in Igbo (1st edn, Greenwood Publishing 2002) 128.
26 African Marriage <www.africanmarriage.info/> accessed 6 April 2016.
27 The mechanism is integral to this thesis and is discussed in greater detail in Chapter Five. 28 This is the Constitution currently in force in Nigeria.
29 We highlight and discuss these courts in Section 2.0 of this Chapter.
30 Charles Mwaluma, The Nigerian Legal System (Vol 1, Peterland Publishers 2008) 32. 31 The 1999 Constitution of the Federal Republic of Nigeria.
15