A COMPARATIVE STUDY OF MODERN AND CUSTOMARY ARBITRATION IN NIGERIA

A COMPARATIVE ANALYSIS ON THE CONCEPT OF FREEDOM OF RELIGION UNDER THE SHARI‘AH AND INTERNATIONAL LAW
March 26, 2018
A COMPARATIVE STUDY OF WIFES RIGHT TO MAINTENANCE IN ISLAMIC AND STATUTORY LAWS IN NIGERIA: A CASE STUDY OF ZARIA AND SABON-GARI COMMUNITIES OF KADUNA STATE.
March 26, 2018

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ABSTRACT

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This thesis conceptualized dispute as an integral part of man’s existence and a common
occurrence in human societies which could arise as a result of differences in opinion, political
ideologies, bad governance, ethnic nationalism, land matters, family issues, some economic
or religious reasons, and in some cases a combination of two or more of these factors which
may lead to conflicts. These conflicts may result in strained relationships, loss of lives and/or
properties, hence the need for a dispute settlement mechanism which may be modern or
traditional. The major issues for determination are, whether arbitration is a necessity and has
been a successful tool in amicable resolution of disputes; and whether customary arbitration
is more effective than modern arbitration. It is in the light of the foregoing that this work
compared modern arbitration to customary arbitration. The comparison is with a view to
realizing which option would be more practicable in terms of amicable resolution of disputes.
The research methods adopted are doctrinal and empirical. Judicial decisions, statutes and
books on arbitration were useful to this research. Data was also collected through distribution
of questionnaires. This thesis examined the concept of arbitration as a dispute resolution
process. It also examined some provisions of the Arbitration and Conciliation Act, Cap A18,
LFN 2004 and some case laws on the essential ingredients of arbitration. It noted that
arbitration has been used successfully over the years to achieve amicable resolution of
disputes. However, inspite of its tremendous achievements, arbitration is faced with some
challenges. These include the attitude of Nigerian courts towards enforcement of customary
arbitral awards, high level of illiteracy of the customary arbitrators, highly formalized and
legalistic nature of modern arbitration. At the conclusion of the research, it was found among
other things that modern arbitration is expensive and may not be accessible to the common
man. It was also found that feuding parties in traditional communities use traditional
approaches to resolve their conflicts because they find customary arbitration more accessible,
quick and cheap. Consequently, the thesis recommended for the promotion of modern
education and capacity building in the form of paralegal training for the operators of
customary arbitration and that priority should be given to customary arbitration which is
cheaper, faster, less formal and accessible to the common man.
TABLE OF CONTENTS
Title page i
Declaration ii
Certification iii
Dedication iv
Acknowledgements v
Table of cases vii
Table of statutes ix
Abbreviations x
Abstract xi
Table of contents xii
CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background to the Research 1
1.2 Statement of the Search problem 2
1.3 Objectives of the Research 4
1.4 Justification 4
1.5 Scope of the Research 4
1.6 Literature Review 5
1.7 Research Methodology 8
1.8 Organizational Layout
CHAPTER TWO
CONCEPTUAL CLARIFICATION
2.1 Introduction 10
2.2 Meaning, Goal and processes of ADR 11
2.2.1 Meaning 11
2.2.2 Goals 11
2.3 Conciliation 12
2.4 Mediation 13
2.5 Negotiation 15
2.6 Mini-Trial 18
2.7 Med-Arb 19
2.8 Litigation 19
2.9 Arbitration 20
2.9.1 Types of Arbitration 23
2.9.1.1 International Arbitration 24
2.9.1.2 Domestic Arbitration 25
2.9.1.3 Institutional Arbitration 26
2.9.1.4 Ad hoc Arbitration 26
2.10 Advantages and Disadvantages of Modern Arbitration 27
2.10.1 Advantages 27
2.10.1.1 Privacy 27
2.10.1.2 Convenience 28
2.10.1.3 Speed 28
2.10.1.4 Simplified Procedures 28
2.10.1.5 Autonomy 28
2.10.2 Disadvantages 28
2.10.2.1 Autonomy 29
2.10.2.2 Speed 29
2.10.2.3 Cost 29
2.10.2.4 Finality 29
CHAPTER THREE
OVERVIEW OF CUTOMARYARBITRATION
3.1 Introduction 30
3.1.1 The Yorubas 30
3.1.2 Igbo Community 32
3.1.3 The Hausas 33
3.2 Customary Arbitration in Nigerian Jurisprudence 35
3.3 Essential Ingredients of Customary Arbitration 37
3.3.1 Voluntary Submission to Arbitration 42
3.3.2 Agreement by the parties that decision of the Arbitrators
Would accepted as final and Binding 44
3.3.3 Arbitration was in accordance with the Custom of the parties or their
Trade/Business 45
3.3.4 The Arbitrators reached a decision and published their award 46
3.3.5 That Decision was accepted by the parties at the time of the award 48
3.4 Advantages of Customary Arbitration 49
3.5 Disadvantages of Customary Arbitration 51
CHAPTER FOUR
4.1 Introduction 53
4.2 Similarities 53
4.3 Differences 55
4.3.1 Submission under Customary Arbitration Vis-à-vis ModernArbitration 55
4.3.2 Right to Resile 58
4.3.3 Role of the Parties 59
4.3.4 Oath taking 60
4.3.5 Writing 62
4.3.6 Effects of Customary and Modern Arbitration 62
4.3.7 Qualification of Arbitrators 64
4.3.8 Sources of Arbitration 64
4.3.9 Theoretical Difference 64
CHAPTER FIVE
CONCLUSION
5.1 Summary 71
5.2 Findings 72
5.3 Recommendations 75
BIBLIOGRAPHY
Books 77
Articles 79
Internet Sources 81
Appendix 82

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