THE NATURE OF CUSTOMARY ARBITRATION

In west Africa, cases from Ghana presented the first opportunity for judicial determination by English type courts of the validity and incidents of customary arbitration. These cases,Footnote ⁴ typified by Assampong v Amuaku and Others (Assampong),Footnote ⁵ a decision of the West Africa Court of Appeal (WACA), decided that “where matters in dispute between parties are, by mutual consent, investigated by arbitrators at a meeting held in accordance with native law and custom and a decision given, it is binding on the parties and the Supreme Court will enforce such decision”.Footnote ⁶

The principles established in the Ghanaian cases were clearly followed by appellate courts in Nigeria until the decision of the Supreme Court of Nigeria in Agu, which has been widely interpreted to have departed from the basic principle in these cases, ie the absence of freedom to resile from an award. It has been argued that the leading Ghanaian cases on the subject may not truly reflect the state of the customs and practices of the relevant Ghanaian communities.Footnote ⁷ Nevertheless, on the basis of what appears in the record of the Supreme Court in Agu, it may not be truly asserted that the Nigerian Supreme Court did not express to be following the Ghanaian cases. It would therefore not be correct to conclude that, in Agu, the Nigerian Supreme Court consciously formulated principles that govern customary arbitration differently from the formulation of those principles in the leading Ghanaian cases.Footnote ⁸ While it is admitted that the presently popular view of Agu Footnote ⁹ may lead to this doubtful conclusion (ie that a customary arbitration award will bind the losing party only if he accepted the award after it was rendered), one way to treat this view, assuming it is valid, would be to regard that conclusion as an unintended consequence of a part of the statement (among other statements) of the law on the subject by Karibi-Whyte JSC in Agu. His lordship could not have anchored his decision on the Ghanaian cases and in the same breath formulated a principle of law different from what is unarguably the principle of law established in the cases upon which he based his decision. Also, while it may be true that there “existed a divergence of opinion among judges prior to [Agu] with respect to the right of parties to withdraw at any stage of the arbitration proceedings or even after the award is rendered”,Footnote ¹⁰ the law was nevertheless settled in Nigeria on the absence of such a right prior to Agu.Footnote ¹¹

Agu however presents no controversy on the general question of “enforcement” or the effect of binding customary arbitration awards in subsequent litigation. Furthermore, it would seem that, unlike awards arising from arbitrations under received English law or statute for which clear enforcement power and procedures exist in the courts, there does not seem to be any power or procedure in the courts for the direct enforcement of customary arbitration awards. Nigerian courts have nevertheless enforced customary arbitration awards indirectly by reference to the principle of estoppel and have therefore held that a binding customary arbitration award will constitute estoppel per rem judicatam.Footnote ¹²

A plea of estoppel per rem judicatam may however only be used as a shield and not as a sword.Footnote ¹³ This is because a successful plea of estoppel per rem judicatam operates to oust the jurisdiction of the court before which it is raised. A plaintiff who has brought a suit for adjudication by the court cannot therefore turn around to contend that the court lacks the jurisdiction to try the suit. Accordingly the plea is not available to a plaintiff in his statement of claim as he would thereby be impugning the jurisdiction of the court to which he has brought his action. The strict application of this rule of law would mean that the party in whose favour a customary arbitration award has been rendered may not sue on the award. In cases where an unsuccessful party refuses to perform the terms of a customary arbitration award, the successful party would have to wait until the unsuccessful party as plaintiff litigates the subject matter of the customary arbitration so that he may raise the plea, as defendant, in response to that suit. This would indeed constitute an unsatisfactory state of affairs.

However in Ukaegbu v Ugoji the Supreme Court held that the modern trend, exemplified in recent judicial decisions, is that “although the plea of estoppel is a shield for the protection of the defendant, it can also validly be employed as a sword by a plaintiff”.Footnote ¹⁴ The apex court relied on its earlier decision in Chinwendu v Mbamali and Another (Chinwendu).Footnote ¹⁵ The Supreme Court went further to state that the sentence dictum of Aniagolu JSC in Chinwendu appears to answer the observation in Yoye v Olubode Footnote ¹⁶ that a plaintiff cannot in the original pleading aver facts amounting to res judicata, since this will have the effect of ousting the jurisdiction of the court in which he has brought his suit. However, a plaintiff can plead such facts precluding the defendant from disputing or denying the existence of a fact, even if the fact relied upon is a previous judgment between the parties or their privies relating to the fact in issue. The courts have therefore permitted plaintiffs to raise the plea of estoppel in subsequent litigation on the fact of a customary arbitration award.Footnote ¹⁷ It would however appear that the proper plea in these cases would not be a plea of estoppel per rem judicatam; it should rather be a plea of the existing award as a fact relevant to the issue in dispute in the present case, ie issue estoppel. This point was very succinctly made by Ogundare JSC in Igwego v Ezeugo (Igwego) as follows:

A party relying on a decision of a judicial tribunal as constituting estoppel per rem judicatam is also required specifically to plead the same.Footnote ¹⁹ The question however arises as to exactly what he should plead in respect of customary arbitration. In Ohiaeri v Akabeze (Ohiaeri)Footnote ²⁰ the Supreme Court, per Akpata JSC, while approving of the dissenting judgment of Nnaemeka-Agu JSC in Agu on the point of pleadings, held:

This statement of Akpata JSC would seem confused. On one hand, his lordship seems to have approved the dissenting judgment of Nnaemeka-Agu JSC in Agu on the requirement to plead the ingredients establishing estoppel in relation to a customary arbitration award; he also added a fifth ingredient and stated that it would not be proper pleading to omit the ingredients that project the award as creating an estoppel. On the other hand, saying that “it will not be necessary for [the plaintiff] to plead the ingredients establishing the estoppel”Footnote ²² clearly contradicts his earlier statement, and throws doubt as to what he did in fact decide regarding whether or not the ingredients establishing estoppel should be pleaded. However, it is not in doubt that, whether or not the ingredients are pleaded, his lordship concluded that evidence of the ingredients must be led at the trial of the suit in proof of the plea of estoppel. It may therefore be possible to explain his lordship's conclusion on the basis of the principle of pleadings that only facts, not evidence, need be pleaded, and that pleading the existence of “a binding arbitration award” would permit evidence of the ingredients that make the award binding to be led at the trial of the suit.

Subsequently in Eke v Okwaranyia (Eke)Footnote ²³ the Supreme Court held more emphatically that the ingredients of valid customary arbitration must be pleaded and proved. The Supreme Court based its decision on two of its previous decisions: Agu and Ohiaeri. While the decision of the majority of the Supreme Court in Agu may not have provided the support as claimed for the decision in Eke, it is possible that Eke concluded that a holistic reading of the statements of Akpata JSC and the other justices of the Supreme Court who sat on the appeal must yield a conclusion that that case decided that the ingredients necessary to establish estoppel must be pleaded. However, in Egesimba v Onuzuruike (Egesimba),Footnote ²⁴ the Supreme Court per Ayoola JSC relied on the same statements of Akpata JSC in Ohiaeri not only as authority for the proposition that there is no requirement to plead the ingredients of a customary arbitration and award necessary to establish estoppel, but also to the effect that Ohiaeri approved the majority view in Agu.Footnote ²⁵ It need only be pointed out that any statements made as to the sufficiency of pleadings in Egesimba must be regarded as obiter dicta, as clearly stated by Ayoola JSC.Footnote ²⁶

There is however something to be said for the need to plead the ingredients of customary arbitration in a suit in which the resulting award is sought to be relied upon. In a good number of situations, the specific contents of customary law rules on the same subject vary from place to place. Thus, although judicial notice of a particular rule of customary law may have been taken by the courts in a general sense, where the specific contents of the rule of customary law sought to be asserted in a given case differ from the contents of the rule as judicially recognized, it would be necessary to plead and prove the specific contents of the rule sought to be asserted in the present case. It would therefore seem that the realization of this understanding of the nature of customary law influenced the attitude of Tobi JSC in his dissenting judgment in Egesimba when he stated that: “[a]lthough DWI and DW2 gave evidence in respect of the customary arbitration, the statement of defence did not plead the relevant customs of the Amala Umuobom as required by law. After all by the Evidence Act, customary law is a fact which must be proved in evidence”.Footnote ²⁷

It remains to be added that, in suits where proof of title to land is in issue, evidence of a customary arbitration award may be relied upon as an act of ownership and possession in proof of the title in issue, even where the customary arbitration award may not be relied upon to create an estoppel.Footnote ²⁸

BINDING NATURE OF A CUSTOMARY ARBITRATION AWARD

Until Agu, the law regarding the binding nature of a customary arbitration award seemed to have been well settled. The law, as enunciated by Quashie-Idun Ag FJ in Oline v Obodo and Others (Oline),Footnote ²⁹ is as follows: “[i]n the case of Opanin Asong Kwasi and others v Joseph Richard Obuadang Larbi (2), Privy Council Judgment, it was held that where the parties submitted their dispute for settlement by arbitration in accordance with Native Customary Law and one party withdraws from the arbitration before it was completed the award of the arbitration was nevertheless binding on all the parties.”Footnote ³⁰

In Agu, the plaintiff sued the defendant for a declaration of title and damages for trespass to land on the basis of traditional history and acts of possession. The plaintiff also relied on a customary arbitration award. The defendant denied the plaintiff's allegation that the dispute had been submitted to arbitration. The plaintiff's action failed at the High Court, whereupon he appealed to the Court of Appeal. The Court of Appeal held that there had been arbitration and that the result was binding on the parties, which estopped the defendant from denying the plaintiff's title to the land. In deciding the appeal, which was filed at the Supreme Court, Karibi-Whyte JSC who read the judgment of the Supreme Court, noted that “[t]he first issue is whether ‘the Plaintiff's pleading in paragraph 8 of the Statement of Claim … [could] properly be said to raise a plea of binding arbitration against the defendant’.”Footnote ³¹ In his argument on the issue, counsel for the defendant (appellant at the Supreme Court) argued, inter alia, that the pleading in paragraph 8 of the plaintiff's (respondent at the Supreme Court) statement of claim did not properly raise a plea of binding arbitration in his favour because a plea of arbitration under the rule of pleadings must be specifically pleaded “by supplying the necessary facts to be relied upon to establish the validity of the process”.Footnote ³² Further in his argument, counsel for the appellant contended that “the concept of customary arbitration is unknown to Nigerian law”.Footnote ³³ As will be shown later, the question whether the concept of customary arbitration was known to Nigerian law was not one of the issues that arose for determination in the Agu case. However, the learned justice of the Supreme Court, who read the leading judgment of the court in the case, took time to deal with this question. It was in that context that he unsettled the law regarding the binding nature of a customary arbitration award when he said: “[w]hat then is customary arbitration? I venture to regard customary law arbitration as an arbitration in dispute founded on the voluntary submission of the parties to the decision of Arbitrators who are either Chiefs or Elders of their Community, and the agreement to be bound by such decision or freedom to resile where unfavourable”.Footnote ³⁴ Continuing, the learned justice added: “[i]t is well accepted that one of the many African Customary modes of settling disputes 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.”Footnote ³⁵ He then laid down the conditions necessary for a valid customary arbitration (award) in the following words:

It would however seem that the decisions of the appellate courts cited by the learned justice as authority for his proposition that a party to a customary arbitration could repudiate the award after it had been rendered if he was not satisfied, while applicable to the inquiry at hand, actually apply as authority for the contrary proposition.

Mensah v Takyiampong Footnote ³⁷ did not decide whether a party to a customary arbitration is entitled to resile from an award after it is made. Rather in this case, the court decided, inter alia, that the proceeding in question was customary arbitration and that the resulting award was binding on the parties. There is however a sentence in the judgment of the lower court, which was approved by WACA, that may appear to have suggested that post-award consent was required to make a customary arbitration award binding on the parties. This is because, having found as a fact that the proceeding was in the nature of customary arbitration in which an award was rendered, the trial court went further to state: “I believe that both parties agreed to the arbitration, to the award, and to the subsequent demarcation of boundaries”.Footnote ³⁸ The better view would seem to be that reference to acceptance of the award by the trial judge would mean that, though the award was ordinarily binding on the parties, the losing party in an arbitration has a right to bring an action in court to seek to set aside the award, but that this action was not taken in that case (in which case the losing party could be said, in a manner of speaking, to have agreed to the award) - and not that a losing party to a customary arbitration was entitled, without more, to repudiate the award and treat it as ineffectual if it was unfavourable to him. However, since the question of post-award consent did not arise in the case, reference to it in the judgment of the trial court was immaterial and that point could not be said to have been decided and approved by WACA in that case.

While the issue that arose in Assampong Footnote ³⁹ was whether the decision of a native tribunal established under the relevant customary law could operate as estoppel per rem judicatam, Deane CJ of the Gold Coast Colony, stated in his concurring judgment, contrary to the statement of the law by Karibi-Whyte JSC in Agu, that “[i]t has frequently been laid down in the Courts of this Colony that where matters in dispute between parties are, by mutual consent, investigated by arbitrators at a meeting held in accordance with native customary law, and a decision is given, it is binding on the parties and the Supreme Court will enforce such decision.”Footnote ⁴⁰

In Larbi v Kwasi Footnote ⁴¹ the respondents contended that they resiled from the arbitration between the parties, but WACA, in dismissing the respondents’ contention, held that the arbitration was valid and binding and that it was repugnant to good sense to allow the losing party to reject the arbitrators’ decision with which he had previously agreed.

Kwasi v Larbi Footnote ⁴² is a judgment of the Privy Council. Two questions were presented to the court for determination in that case. The question relevant to our present purpose was framed by Lord Norman, who read the court's judgment, as “the nature and effect of proceedings, described as an arbitration in the Record”.Footnote ⁴³ It was argued by the appellants, inter alia, “that even if the proceedings in issue were of the nature of arbitration and not of negotiations yet either party was entitled to resile at least till the date when the award was made”.Footnote ⁴⁴ The Privy Council rejected the argument and gave effect to the arbitration award. While the question that was presented to the Privy Council in this case was whether the right to resile from a customary arbitration proceeding existed before an award was made, the question that arose in Agu was whether the right to resile from an award existed after the award had been made. The Privy Council nevertheless answered both questions as follows:

In Eguere Inyang v Simeon Essien (Inyang)Footnote ⁴⁶ the Federal Supreme Court did not rule on the effect of a rejection of an award by a party to a customary arbitration, having agreed with the finding of fact by the trial court that the tribunal, the Imam Council, whose decision was being urged upon the court as constituting estoppel per rem judicatam, was merely mandated to “bring the parties together and make peace between them”.Footnote ⁴⁷ It was for this reason that the court in that case held that “whatever decision they gave which was not acceptable to one of the parties had no binding effect and cannot constitute res judicata.”Footnote ⁴⁸Inyang could therefore not be authority for the proposition in Agu. The principle established in Inyang would however be relevant to Agu if it was intended to argue that what took place in Agu was not customary arbitration if the tribunal was merely empowered to make peace between the parties and not to render a binding decision.Footnote ⁴⁹

In Idika v Erisi (Idika),Footnote ⁵⁰ the Supreme Court of Nigeria considered whether the Court of Appeal was right in remitting the suit to the High Court for retrial for the reason that the judge who tried the matter at the High Court did not make a specific finding of fact as to which of two conflicting versions of the award of a customary arbitration tribunal was valid.Footnote ⁵¹ Since both sides sought to rely on the arbitration tribunal decision (with each one pleading that the decision was in its favour), the question of whether the arbitration was valid or whether the tribunal's decision was binding on the parties for the reason that one of the parties had resiled from it could not have arisen in the case, and the point was not even discussed in any part of the judgment. Idika is therefore not authority for the proposition of the law in Agu.

Mbagbu v Agochukwu (Mbagbu),Footnote ⁵²Philip Njoku v Ekeocha Footnote ⁵³ and Ofomata v Anoka (Ofomata)Footnote ⁵⁴ are all decisions of the High Court of East Central State of Nigeria, a court of first instance. In Mbagbu the plaintiff's claim for declaration of title to land succeeded on the basis of proof of acts of ownership. Although the court considered the question of the legal effect of the two separate arbitrations that were canvassed by the parties, this did not form the basis of the court's ultimate decision or have any impact on it.Footnote ⁵⁵ However, assuming that the case decided the legal effect of the arbitrations, it is arguable that the case is not authority for the proposition that a party to a customary arbitration award is entitled to repudiate it after it has been rendered. It is true that the court decided that none of the arbitration tribunals “was vested with judicial powers and their decisions unless accepted by the parties concerned could have no binding effect on either party”.Footnote ⁵⁶ However, in arriving at this decision, the trial court misdirected itself on the decisions in Assampong and Inyang on which it relied for its decision. With regard to Assampong, the court took the view that the relevant customary arbitration award constituted estoppel per rem judicatam because it was a decision of “a properly constituted court”;Footnote ⁵⁷ in respect of Inyang, the court was of the opinion that the Federal Supreme Court decision was based on the fact that the council of chiefs that considered the dispute had no judicial authority to make a decision that would bind the parties in the absence of their acceptance.Footnote ⁵⁸ This decision was also reached per incuriam [in a way which does not constitute a precedent] for the reason that the court did not make any reference to Oline, a decision of the Federal Supreme Court which laid down no such requirement.

The decision in Ofomata was also based on evidence of traditional history and sufficient acts of ownership and possession.Footnote ⁵⁹ The case nevertheless raised issues relating to customary arbitration law, none of which turned on whether a party is entitled to resile from a customary arbitration award after it has been rendered.Footnote ⁶⁰ There is however a passage in the judgmentFootnote ⁶¹ suggesting the existence of a right to withdraw from a customary arbitration before an award is rendered, purportedly relying upon the authority of Kwasi v Larbi. Nevertheless this passage, which is not supported by the authority of Kwasi v Larbi upon which it purports to rely, is not relevant to the proposition in support of which it was cited in Agu.

Karibi-Whyte JSC returned to the question of the ingredients of a binding customary arbitration award when he considered the real question that was presented to the court, ie whether the appellant was estopped by the decision in the arbitration from denying the respondent's title to the land in dispute.Footnote ⁶² The appellant's arguments on this issue were chiefly that estoppel was not pleaded in the respondent's statement of claim and the appellant did not accept the arbitration tribunal's decision. It is in relation to the second point canvassed by the appellant that it may be said that Agu decided the point that a party to a customary arbitration has the right to resile from the resulting award (if the award is not favourable to him). This is because, in reviewing the authority of Inyang upon which the appellant had relied for his contention that a party was free to resile from the award of a customary arbitration tribunal, the learned justice of the Supreme Court stated that the rationale of the case “was that the parties having not accepted the settlement of the Imam Council, the arbitration failed”, and not because the Federal Supreme Court had taken the view that the Imam Council, which constituted the tribunal in the case, was a judicial tribunal.Footnote ⁶³ Going further to show that a customary arbitration tribunal qualified as a judicial tribunal for the purpose of the application of the plea of estoppel per rem judicatam, the learned justice of the Supreme Court referred to a passage written by Dr TO Elias. According his lordship, Dr Elias described the “customary judicial process” employed by the parties in this case as: “referring a dispute to the family head or an elder of the community for a compromise solution based upon 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”.Footnote ⁶⁴

In the next paragraph of the judgment, the learned justice of the Supreme Court then pronounced what would seem to be the rationale of Agu as follows:

Since the final determination of the suit did not include a requirement or proof that the appellant did not resile from the decision of the customary arbitration tribunal as a condition for the successful invocation of the plea of estoppel (even after the appellant had futilely raised that point),Footnote ⁶⁶ it is difficult to conclude that Agu decided what has over the years been attributed to it, ie that a customary arbitration award will be binding on the party (or his privy) whom subsequent litigation seeks to estopp only if that party accepted the award at the time it was made. It is admitted that reference to the passage from Dr Elias's book, which included the right to resile from the award of a customary arbitration tribunal as a feature of customary arbitration, may have led to the confusion that Agu adopted Dr Elias's view of the law on the point. However, a careful reading of the relevant portion of the judgment as fully reproduced above would lead to the better view that the learned justice of the Supreme Court only relied on that passage to confirm his view that a customary arbitration tribunal qualified as a judicial tribunal. His statement immediately following his reference to Dr Elias's opinion (ie “[t]his was precisely what happened in this case”) can only sensibly be taken to refer to the fact that the arbitrators who decided the matter earlier were elders of the community as indicated in the scenario described by Dr Elias. Had the learned justice intended to decide the case on the basis of the freedom to repudiate an award principle or post-award consent requirement, he would have listed it as one of the conditions for the successful invocation of a plea of estoppel in the circumstances, considered the appellant's claim that he repudiated the award, and decided that specific point one way or the other.

The judgment of Nnaemeka-Agu JSC in the case (though he dissented from the majority of the court on the adequacy of the plaintiff's pleadings and the characterization of the nature of the proceeding before the tribunal)Footnote ⁶⁷ would seem to support the contention that Agu did not decide what has been popularly attributed to it.Footnote ⁶⁸ His lordship's dissenting judgment also clearly brought out the different rationales of Assampong and Inyang. He clearly distinguished the two cases to the effect that, while in Assampong the tribunal was empowered to reach a binding decision, the tribunal in Inyang was merely empowered to negotiate a settlement and so it exercised no judicial function.Footnote ⁶⁹

Ojibah v Ojibah (Ojibah)Footnote ⁷⁰ was decided two months after Agu. In that case the appellant, who was the plaintiff at the trial court, appealed against a Court of Appeal decision which was founded on the reasons that “he did not prove that he had exclusive ownership, and he did not establish the genuineness and validity of the Deed of Gift [on which he relied as the source of his title], and he could not resile from the decision given by the Obi and his Council”.Footnote ⁷¹ Issues for determination in the Supreme Court were therefore framed around these grounds, upon which the Court of Appeal decision had been founded. With regard to the third ground, ie the right of a party to resile from an award, Nnaemeka-Agu JSC who read the leading judgment held that the law was pretty settled that, where parties in dispute voluntarily submit their dispute to arbitration according to customary law and agree expressly or by implication that the decision of the arbitrators will be accepted as final and binding, then, once the arbitrators reach a decision, neither party is entitled to resile from it.Footnote ⁷² The plaintiff had contended in vain that he had rejected the award as soon as it was made. It is however to be noted that no reference was made to Agu either by counsel in their arguments or by any of the Supreme Court justices who sat on the appeal.Footnote ⁷³

The unanimous decision of the Supreme Court in Ojibah seemed to dispel the confusion that was apparently created by the statements of Karibi-Whyte JSC in Agu. However Ohiaeri soon unsettled the law. This case considered, inter alia, whether the arbitration proceedings pleaded by the defendants (appellants at the Supreme Court) created a valid estoppel in their favour. In the opinion of Akpata JSC, who read the leading judgment, not every decision of a customary arbitration automatically creates an estoppel; a decision creates an estoppel if, among other factors, the parties agreed to be bound by the decision. His lordship relied upon Agu,Footnote ⁷⁴ but no reference was made to Ojibah, which was decided after Agu but before Ohiaeri, even though Uwais, Karibi-Whyte, Belgore and Nnaemeka-Agu JJSC, who all sat on the Ojibah appeal, also sat on the Ohiaeri appeal.Footnote ⁷⁵

Shortly after Ohiaeri, the Supreme Court took the opportunity of Igwego Footnote ⁷⁶ to re-confirm the law as stated in Ojibah (a case in which the question of the right of a party to resile from an award was directly in issue). The Supreme Court also subsequently cited Ojibah with approval in Ume v Okoronkwo Footnote ⁷⁷ and later in Oparaji v Ohanu (Oparaji). Footnote ⁷⁸ In Oparaji, Igu JSC, who read the leading judgment, stated unequivocally:

While it is to be noted that the determination of the rights of the litigants in Igwego and Oparaji was ultimately founded on evidence of traditional history and not on the effect of the arbitrations that were canvassed in the cases, it would appear that approval of the Supreme Court decision in Ojibah in these cases, without reference to Ohiaeri, confirmed the lawFootnote ⁸⁰ in the wake of the confusion introduced by the statement of Karibi-Whyte JSC in Agu.

Okereke v Nwankwo (Okereke)Footnote ⁸¹ presented a very good opportunity for the Supreme Court firmly to re-confirm the law on the requirements of a binding customary arbitration award. In this case the respondents (as plaintiffs in the trial court) sued the appellants for a declaration of title to land. In their defence, the defendants led evidence that the dispute had been submitted to a panel of arbitrators, who decided in favour of the defendants; however the plaintiffs rejected the decision. One of the issues presented to the Supreme Court for determination was whether the decision of the council of elders was a binding arbitration award, creating an estoppel against the plaintiffs. Edozie JSC, who delivered the leading judgment, held that the decision of the council of elders was not binding on the plaintiffs because they did not accept the award after it was rendered. In reaching this conclusion, his lordship relied on principles which he distilled from Agu, Ohiaeri, Awosile v Sotunbo,Footnote ⁸²Oparaji and Odonigi v Oyeleke Footnote ⁸³ as follows: “the ingredients or preconditions for a valid customary arbitration may be stated to be as follows: … (2) that it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding; … (5) that the decision or award was accepted at the time it was made”.Footnote ⁸⁴

These requirements enunciated by Edozie JSC are no doubt distilled from the cases he enumerated. However it is unlikely that these requirements were ever intended to co-exist; nor did they co-exist in all the cases. This is because, if the parties have agreed to accept an arbitrators’ decision as final and binding prior to the commencement of arbitral proceedings, it will be contradictory for the law to grant them the right to resile from the award when it is made: a right which in effect means a repudiation, not simply of the award, but of the initial binding undertaking to treat the award as final and binding.Footnote ⁸⁵ In reaching its decision, the Supreme Court in Okereke did not consider the subject although, by way of obiter Ayoola JSC had stated in Egesimba, which was decided less than one year earlier, that:

While the ghost of Agu has continued to hover in the hallowed chambers of the Supreme Court,Footnote ⁸⁷ the statement of Ogbuagu JSC in Agala v Okusin (Agala)Footnote ⁸⁸ following the view of Ayoola JSC in Egesimba and the statement of Tobi JSC in Onyenge v Ebere (Onyenge),Footnote ⁸⁹ may suggest a changing attitude in the Supreme Court on the requirement of post-award consent. Unfortunately, none of the statements of Ayoola, Tobi and Ogbuagu JJSC in Egesimba, Onyenge and Agala represents the Supreme Court decision in any of the cases. The Supreme Court decision in Okereke (which directly and unequivocally decided the point of the requirement for post-award consent), and not Agu (which, in the authors’ view, did not decide the point), will continue to bind lower courts in Nigeria on the subject.

The rationale for the post-award consent requirement, which was explained in Ohiaeri, was reiterated by Uwaifo JSC in Eke Footnote ⁹⁰ to be the perceived risk of arbitrator bias, and the consequent need to protect a losing party from this risk by permitting him to resile from an award that is apparently tainted with bias or other irregularity.Footnote ⁹¹ The response to this reasoning may be two-fold. First that the risk of arbitrator bias or other procedural irregularity is not limited to customary law arbitration, which is why various statutes recognize bias and other procedural irregularities as grounds for setting aside an award. Secondly, the courts have an inherent jurisdiction to refuse to give effect to a customary arbitration award where it is shown that the award was tainted with bias or some other irregularity. It would also seem that the Supreme Court might have been affected by the evidence of bias or irregularity in some of the cases where it refused to give effect to customary arbitration awards on the basis of want of post-award consent.Footnote ⁹² If this speculation is correct, then the Supreme Court would seem not to have given consideration to the point that an arbitration award, though final and binding, is not enforceable in all instances: a court may set aside an award or refuse to enforce it if it finds features in the proceedings or on the face of the award which would make it unjust for the court to enforce or recognize the award.Footnote ⁹³

Fortunately, the decision of the Court of Appeal in Ehoche v Ijeagwa (Ehoche)Footnote ⁹⁴ has provided some relief from the harshness of the post-award consent requirement rule. In that case, following a contest between the appellant and the respondent for a chieftaincy title, the respondent took the matter to a traditional council which, after hearing the evidence of the parties and their witnesses, decided in favour of the appellant. Two years after the traditional council's decision, the respondent filed a suit in court in respect of the dispute. However, the appellant resisted the suit by way of a preliminary objection in point of law to the effect that the dispute had been decided by the traditional council, and that the respondent was therefore estopped from raising the issue again. The trial court dismissed the preliminary objection. The Court of Appeal however set aside the trial court decision and upheld the preliminary objection. With regard to the post-award consent requirement, it held:

The effect of the decision in Ehoche would therefore be that a party may only validly resile from a customary arbitration award immediately after the delivery of the award or at best within a reasonable time thereafter. It would no longer be open to the party against whom a customary arbitration award has been made and who does not intend to be bound by the award to sit back and wait for such a time that the successful party would wish to give effect to the award; the losing party in this circumstance would be deemed to have accepted the award and it would no longer be open to him to resile from the award.