Agu V Ikewibe [1991]3 NWLR (Pt 180) 385: Arbitration has recently risen to become one of the preferred ways of resolving disputes between parties largely because of its informality. It has been defined by the halsbury laws of England as the reference of a dispute between two or more parties for resolution in a judicial manner by some appointed persons other than a law court of competent jurisdiction. The decision handed down by this panel is called an award and the body itself is referred to as an abitral tribunal.

Before English style of Arbitration was introduced into the Nigerian society, there existed before that some form of arbitration which has come to be known as Customary arbitration.

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Customary arbitration was defined by Agu v Ikewibe to mean the arbitration of a dispute which is founded on the voluntary submission of the said parties to the decision of the arbitrators who are either the chiefs or elders of the communities which the dispute arises.

This kind of arbitration has received both judicial and extra judicial recognition. For the award of the customary arbitration tribunal to be valid it must first of all be approved by a court of law, when the said award is approved it consistutes estoppel per rem judicata so long as the arbitration was conducted by a judical tribunal which hands down judicial decisions.

In the case of oline v obodo, the court held that if parties voluntarily agree to submit their dispute to an arbitration and promise to abide by the decision of the arbitrators, none of the parties shall be allowed to repudiate the decision merely because it does not favor him.

In kwasi v Larby, the court equally stated that once a party has voluntarily submitted to an arbitration and agreeded to abide by the resolution of the tribunal then the said party could not withdraw mid stream except he/she has previously reserved the right to do so.

In Igwego v Ezeugo the court provide four main ingredients that must be provided for before a valid customary arbitration can take place :

a. Voluntary submission of the dispute title arbitration by the parties involved.

b. Agreement by the parties, expressly or by implications to be bound by the award.

c. Conduct of the arbitration according to customary law

d. Publication of an award after deliberations.

The court has been very inconsistent when it comes to the ingredients of a valid customary arbitration. It has been unable to settle on what really constitutes a valid customary arbitration. This can seen in their decisions over the years.

In the case of Agu v ikewibe which is analyzed below, the court held added two extra ingredients to the list:

1. There must be non-withdrawal of a party from the abitral process until an award is made.

2. There must be acceptance of the award by both parties when it is made.

This is wrong as the correct ingredients of customary arbitration remains that stated by the court in Igwego v Ezeugo.

Issue raised in Raphael Agu V Christian Ozurumba Ikewibe

a. Whether the acceptance of an award by a party to arbitration is a key ingredient of the arbitration?

b. What is the correct ingredient of customary arbitration?

Also see: Mojekwu v Mojekwu: Facts, Issues and decision of the court

Fact summary of Agu V Ikewibe

The facts of Agu v ikewibe are as follows the respondent in the case as plaintiff brought an action seeking the declaration of his tittle to a piece of land. His argument was the matter had been decided under a customary arbitration by the chief and elders of their locality and award rendered in his favor. The appellants denied that any arbitration had taken place between them and that even if the said arbitration had occurred, the arbitration which the respondent in was referring to was different from that in which an award was rendered in favor of the respondents.

The high Court dismissed the claim of the respondent, he was dissatisfied and immediately went on appeal against the judgement of the high Court. The court of appeal over turned the decision of the high Court and held that there had been a binding arbitration between the parties and consequently the appellants could not deny that the  respondent had a valid tittle to the property in question.

Dissatisfied with this decision of the court of appeal, a futher appeal was made to the Supreme Court of Nigeria by the appellants. At the Supreme Court, two major issues arose to be decided, they were:

a. Whether the alleged arbitration had been properly pleaded and established on evidence and if so could it consistutes res judicata?

The Supreme Court of Nigeria in trying to determine what constituted a valid customary arbitration had added two extra ingredients that their must be non withdrawal until award and that the award must be accepted by both parties before it could be valid.

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Decision of the court in Agu V Ikewibe

Agu v ikewibe is a locus clasicus case when it comes to customary arbitration. The main issue in this case was whether the acceptance of an award was a valid ingredient of the arbitration. In the case the plaintiff had brought an action against the defendants claiming tittle to a particular piece of land.

According to the plaintiff, he has obtained tittle to this land by customary arbitration which ruled in his favor, this was however denied by the defendants who contended that no arbitration took place. The high Court/trial Court ruled in favor of the defendants. The plaintiff went on an appeal and the court of appeal ruled in his favor.

The defendants dissatisfied with the decision of the court of appeal went on an appeal to the Supreme Court. The  Supreme Court while deciding this case added two ingredients to that initially propounded in the case of Igwego v Ezeugo when it stated that their must be non withdrawal until award and that the award must be accepted by the parties.
It is submitted that this decision is wrong as the correct ingredient of the arbitration are those stated in the case of Igwego v Ezeugo.

The legislature are called upon to enact laws that would once and for all state what constitutes a valid customary arbitration.

Edeh Samuel Chukwuemeka ACMC

Edeh Samuel Chukwuemeka, ACMC, is a lawyer and a certified mediator/conciliator in Nigeria. He is also a developer with knowledge in various programming languages. Samuel is determined to leverage his skills in technology, SEO, and legal practice to revolutionize the legal profession worldwide by creating web and mobile applications that simplify legal research. Sam is also passionate about educating and providing valuable information to people.