1 See for example the cases of Foli v Akese (1930) 1 WACA 1; Assampong v Kweku Amuaku and Others (1932) 1 WACA 192; Eguere Inyang v Simeon Essien (1957) 2 FSC 39; and Kwasi v Larbi (1952) 13 WACA 76.

2 (1991) 3 NWLR (pt 180) 385.

3 See also Ohiaeri v Akabeze (1992) 2 NWLR (pt 221) 1; Eke and Others v Okwaranyia and Others (2001) 12 NWLR (pt 726) 181; Okereke v Okonkwo (2003) 4 SCNJ 211; Okoye v Obiaso (2010) 8 NWLR (pt 1195) 145.

4 For example Larbi v Kwasi (1952) 13 WACA 81; Kwasi v Larbi, above at note 1; Ekua Ayafie v Kwamina Banye (1884) Sabrah's Fanti Law Reports on Arbitration 38; and Mensah v Takyiampong and Others (1940) 6 WACA 118.

5 Above at note 1.

6 Id at 201.

7 Allot, A “Customary ‘arbitrations’ in Nigeria: A comment on Agu v Ikewibe” (1998) 42/2Journal of African Law 231CrossRefGoogle Scholar.

8 Id at 234, for this contention.

9 See: ibid; Igbokwe, VC “The law and practice of customary arbitration in Nigeria: Agu v Ikewibe and applicable law issues revisited” (1997) 41/2Journal of African Law 201Google Scholar; Ogbuabor, CA “Recurrent issues in the validity of customary arbitration in Nigeria” in Amucheazi, O and Ogbuabor, CA (eds) Thematic Issues in Nigerian Arbitration Law and Practice (2008) 88Google Scholar; Ezejiofor, G “The prerequisites of customary arbitration” (1992–93) 16 Journal of Private and Property Law 32Google Scholar; Okekeifere, AI “The recent odyssey of customary law arbitration and conciliation in Nigeria's apex courts” (1998) 5/2Abia State University Law Journal 1Google Scholar at 1, 2 and 12.

10 Igbokwe ibid.

11 See Oline v Obodo [1958] 3 FSC 84, a decision of the Federal Supreme Court at the time.

12 See Agu, above at note 2 at 413.

13 Yoye v Olubode (1974) 1 All NLR (pt 2) 118; Achiakpa v Nduka (2001) 14 NWLR (pt 734) 623.

14 [1991] 6 NWLR (pt 196) 127 at 158.

15 (1980) 3–4 SC 31 at 48.

16 Above at note 13.

17 See for example: Agu; Okoye v Obiaso, above at note 3; Oparaji v Ohanu [1999] 9 NWLR (pt 618) 290; Igwego v Ezeugo [1992] 6 NWLR (pt 249) 561; and Idika v Erisi [1988] 2 NWLR (pt 78) 563.

18 Igwego, id at 585 and 587.

19 Ukaegbu v Ugoji, above at note 14; Owonyin v Omotosho (1961) SCNLR 57; Obanye v Okwunwa (1930) 10 NLR 8.

20 Above at note 3.

21 Id at 24–25 (emphasis added).

22 It is instructive that the head-note to the full text of the report omits the word “not” (see page 8 of the report). Apparently the editor of the law report took the view that the word “not” in the judgment must have been the printer's devil, taking a holistic view of his lordship's reasoning in the judgment.

23 (2001) 4 SC (pt II) 71 and above at note 3.

24 (2002) 15 NWLR (pt 791) 466.

25 Id at 505. The view of Ogbuagu JSC in the subsequent case of Agala v Okusin [2010] 10 NWLR (pt 1202) 412 at 449 would seem to suggest that it may be necessary not only to plead the contents of the relevant custom relating to arbitration, but also to plead the ingredients that would found a plea of estoppel on the award.

26 Ibid.

27 Id at 531 (emphasis added). The need to plead the relevant customs of the parties relating to arbitration may undermine the force of Prof Ezejiofor's view that it would be sufficient to plead that the dispute was the subject of arbitration in accordance with customary law, that there was an award and that the award would be relied upon to found a plea of estoppel: Ezejiofor “The prerequisites of customary arbitration”, above at note 9. It is unlikely that the courts would permit evidence of the specific customs of the parties to be led if the details of the customs are not pleaded.

28 Akpan v Otong [1996] 10 NWLR (pt 476) 108 at 125–27.

29 [1958] NSCC 60.

30 Id at 62 (emphasis added).

31 Agu at 404.

32 Ibid.

33 Ibid.

34 Id at 407 (emphasis added).

35 Ibid.

36 Id at 408.

37 Above at note 4.

38 Id at 119.

39 Above at note 1. In the lead judgment, delivered by Kingdon CJ, Nigeria, the question was put as follows (at 193): “The defendants now appeal to this Court against the judgment nominally on seven grounds, but in reality on two only - (1) judgment against the weight of evidence and (2) Estoppel per rem judicatam. I will deal with the second ground first.” His lordship concluded his opinion on the issue as follows (at 198): “I am of the opinion, therefore, that the fourth defendant has succeeded in establishing all the constituent elements of an estoppel per rem judicatam, and that the plaintiff is accordingly estopped from disputing or questioning the fourth defendant's title to the land upon which the trespass is alleged to have taken place. Having come to that conclusion it becomes unnecessary for me to examine in detail the other ground of appeal.”

40 Id at 201.

41 Above at note 4.

42 Above at note 1. In that case the party (the appellant), who urged the court not to recognize the award, withdrew mid-way through the course of the arbitration proceedings; the arbitration tribunal nevertheless proceeded with the arbitration and rendered an award.

43 Id at 76.

44 Id at 78.

45 Id at 80 (emphasis added). It is also submitted that the Privy Council's attitude to the principle sought to be distilled from Abotche Kponuglo and Adja Kodadja, when such principle (though apparently suggested in the case) did not arise from the facts of the case on which the court's decision was founded, supports the authors’ contention that the statement of Karibi-Whyte JSC in the first part of his judgment in Agu, which did not form part of his decision in the case, cannot be relied upon as authority for the proposition contained in it.

46 Above at note 1.

47 Id at 41.

48 Ibid.

49 It is also to be noted that the learned justice of the Supreme Court may not have been right when he reasoned that the controlling reason for the Federal Supreme Court decision to refuse to treat the decision of the Imam Council as operating as estoppel per rem judicatam was because the Imam Council was not a native court. As indicated earlier, the Federal Supreme Court reached that decision on the basis that the Imam Council's mandate was to make peace between the parties, which would in technical parlance amount to either a mediation or conciliation proceeding.

50 Above at note 17.

51 Id at 571. The relevant portion of the Supreme Court judgment on the issue is (at 575) as follows: “The Court of Appeal was therefore right in confining its decision to that very narrow compass of the absence of that relevant finding of what the decision was. This is more so as the parties relied heavily on the decision of the arbitrators. As the duty of making findings of fact is pre-eminently the function of a trial Judge, the Court of Appeal was justified in not embarking on the task but instead made an order of retrial by the High Court. Whether the decision will operate as estoppel per rem judicatam or issue estoppel can only be decided when the terms of the decision is [sic] known and ascertained.”

52 (1973) 3 ECSLR (pt 1) 90.

53 (1972) 2 ECSLR 199.

54 (1974) 4 ECSLR 251.

55 The concluding paragraph of the judgment is (above at note 52 at 97): “I am satisfied from the totality of the evidence before me that the plaintiff, in accordance with the principles set out in the case of Ntoe Ekpo v Chief Eta Ita XI NLR, page 68 has ‘discharged the onus on him to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that he and his family are the exclusive owners of the land in dispute’. In view of the foregoing, I hold the view that the plaintiff's claim must succeed. I accordingly decree judgment for the plaintiff.”

56 Id at 96.

57 Ibid.

58 The court in Mbagbu would however be right if it is implied that the council of chiefs had no judicial authority because the parties did not give it the mandate to render a binding decision. However, later in its judgment, it would seem that the learned judge in that case regarded every tribunal that is constituted by elders of a community as a non-judicial body, when he said (at 96): “It seems to me that the validity of decision of any non-judicial body such as a body of elders will depend on two factors”.

59 In this regard the court held (above at note 54 at 256): “But I must add that even without considering the weakness of [sic] defendants’ case the plaintiffs’ evidence on traditional history and acts of ownership and possession contained sufficient material to entitle it to a decree … and I accordingly grant it.”

60 With regard to the relevant issue on customary arbitration, ie whether the arbitration resulted in a final and binding award when the oath directed by the tribunal had not been taken, the court resolved the question in the negative.

61 Id at 253.

62 Agu, above at note 2 at 410 and 412.

63 Id at 413. As noted above, neither of these arguments founded the decision of the Federal Supreme Court on the matter.

64 Id at 414, referring to Elias, TONature of African Customary Law (1956, Manchester University Press)Google Scholar at 212.

65 Agu, id at 414 (emphasis added).

66 It should be noted that, in its judgment, the Supreme Court rightly ignored the appellant's argument that it did not accept the award after it was made. Even though the Supreme Court did not say so, it would seem that the argument was ignored because it amounted to setting up a different case from the case set up by the appellant in its statement of defence, ie the absence of the arbitration alleged by the plaintiff (respondent at the Supreme Court).

67 The learned justice took the view that what took place was not arbitration because the plaintiff had pleaded in his statement of claim that the defendant was “summoned” before the chiefs and elders (id at 420).

68 His lordship listed (id at 418–19) the four ingredients of a binding arbitration for the purpose of founding a plea of estoppel as: “(i) that there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons; (ii) 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; (iii) that the said arbitration was in accordance with the custom of the parties or of their trade or business; and (iv) that the arbitrators reached a decision and published their award”. Reliance for this proposition was correctly placed on Foli v Akese, above at note 1, Kwasi v Larbi, above at note 1, Assampong, above at note 1, and other decisions of appellate courts.

69 Agu, id at 419.

70 [1991] 5 NWLR (pt 191) 296.

71 Id at 308.

72 Id at 314.

73 Three of the five justices who sat on the appeal, Nnaemeka-Agu, Karibi-Whyte and Wali JJSC, also sat on the appeal in Agu. In his concurring judgment, Karibi-Whyte JSC, who read the judgment of the Supreme Court in Agu, said (at 317): “I have read a draft of the judgment just delivered by my learned brother P Nnaemeka-Agu, JSC in this appeal. I agree entirely with both the reasoning and the conclusion that this appeal should be dismissed.”

74 Above at note 2 at 23. His lordship later added that the “observation [of Karibi-Whyte JSC] is in essence the opinion of TO Elias in his Nature of African Customary Law (1956) page 212. Karibi-Whyte JSC made this plain at page 414 in the case under reference.” The authors would however repeat their argument that Karibi-Whyte JSC placed reliance on the opinion of Dr Elias on the issue of whether a tribunal of elders under customary law could exercise judicial function, and not with regard to the right to resile from an award.

75 Nnaemeka-Agu JSC seemed however to have concerned himself in Ohiaeri with the adequacy of pleadings. He stated (id at 32): “I also agree with the treatment of the issue of arbitration in the said judgment. The ingredients of a binding customary arbitration were not pleaded and proved. It was not pleaded as estoppel; so there was no question of its barring the plaintiffs from asserting their ownership of the land in these proceedings.” It is to be noted however that, in Awosile v Sotunbo [1992] 5 NWLR (pt 243) 514, Nnaemeka-Agu JSC had repeated the preconditions of a customary law arbitration in his judgment, even though Wali JSC, who read the judgment of the court in that case, did not consider the question of arbitration that was raised in the appeal after he had decided the appeal on another point of law.

76 Above at note 17. The leading judgment in the case was read by Ogwuegbu JSC, with Nnaemeka-Agu, Kawu, Ogundare and Karibi-Whyte JJSC concurring.

77 [1996] 10 NWLR (pt 477) 133 at 144. Ugwuegbu JSC (who later sat on the Eke panel in 2001, above at note 3) read the leading judgment.

78 Above at note 17.

79 Id at 304. Later in the judgment (ibid), Igu JSC relied on Agu for the same proposition that a party cannot repudiate a customary arbitration award after it has been rendered. It is submitted that his lordship was right because, as argued earlier, Agu did not decide that a party to a customary arbitration is entitled to resile from the award after the award.

80 See also the leading judgment of Ayoola JSC in Egesimba v Onuzuruike [2002] FWLR (pt 128) 1386. While he relied on Agu and Ohiaeri on the point that a binding customary award would sustain a plea of estoppel, he did not include the requirement of post-award consent as one of the ingredients for a binding customary arbitration award (id at 1413). Nevertheless, Ogundare JSC included the requirement of post-award consent in his contributing judgment (id at 1415).

81 [2003] 9 NWLR (pt 826) 592.

82 Above at note 75. It would appear however that the dictum of Nnaemeka-Agu JSC in this case was misapplied by Edozie JSC in support of his recognition of the right of a party to a customary law arbitration to resile from an award after it has been made. Nnaemeka-Agu's opinion was not that the plaintiff was not bound by an award that resulted from an arbitration after he rejected it; rather his lordship found as a fact (at 533) that what transpired in that case was not an arbitration but “at best an attempt at a settlement”.

83 (2001) 6 NWLR (pt 708) 12. While this case may be cited as authority for the ingredients of a binding customary arbitration award (including the requirement for post-award consent), it is not a direct authority on the requirement for post-award consent as the issue did not arise in the case. On this, the court also wrongly relied on Assampong, Inyang, Idika, and Kwasi v Larbi, none of which is authority for the requirement of post-award consent. It is only the High Court case of Mbagbu, above at note 52, that (subject to the authors’ opinion on the case above) provides some support for the proposition.

84 Above at note 81 at 613.

85 Ezejiofor, GThe Law of Arbitration in Nigeria (1997, Longman)Google Scholar at 26.

86 (2002) 15 NWLR (pt 791) 466; (2002) 9–10 SC 1; [2002] FWLR (pt 128) 1386 at 1413. See also the dictum of Tobi JSC in Onyenge v Ebere [2004] 13 NWLR (pt 889) 20 at 40 as follows: “One fairly curious aspect in this case is that the appellants, who were instrumental to the exercise of oath-taking, are trying to resile from it. I do not think that such a position is available to them in law.” In Oparaji, above at note 17 at 304, Iguh JSC correctly made the point: “I think I ought to start by restating the well settled principle of law that where two parties to a dispute voluntarily submit the issue in controversy between them to an arbitration according to customary law and agree expressly or by implication that the decision of such arbitration would be accepted as final and binding, then once the arbitrators reach a decision, it would no longer be open to either party to subsequently back out or resile from the decision so pronounced.”

87 See also Okoye v Obiaso, above at note 3 at 171, where Adekeye JSC in her contributing judgment roused the ghost of Agu after the point in issue had been determined based on the admissibility of the written record of the arbitration proceedings and award. In that case, both sides accepted that a binding arbitration took place, but were divided on the arbitrators’ decision, each side claiming that the decision was in its favour. Indeed, Onnogben JSC, who read the leading judgment of the Supreme Court, referred (at 163) to the question relating to customary arbitration in the suit as follows: “It must be pointed out that the argument of learned counsel for the appellant on issue 2 is limited to the issue of admissibility of exhibit J and does not extend to the consequences of the decision of the arbitration panel evidenced in exhibit J.”

88 This statement, above at note 25 at 448–49, may have signalled a change in attitude. In that case, his lordship listed four conditions precedent to a binding customary arbitration: “(a) there must have been a voluntary submission of the disputes by the parties to the non-judicial body; (b) the parties must have agreed to be bound by the decision of the non-judicial body as final; (c) that decision was in accordance with the custom of the people or of their trade or business; and (iv) that the arbitrators reached a decision and published their award.” In approving the decision and reasoning of the trial court to the effect (id at 449) that: “If it is pleaded and proved that both parties agreed to be bound by the decision of the arbitrators, the resilience of [repudiation of the award by] any of the parties after the verdict would be immaterial as the decision will properly be treated as constituting an estoppel per rem judicatam provided of course that the submission to the body was voluntary” (emphasis added), Ogbuagu JSC would clearly seem to have disapproved of the requirement for post-award consent. Curiously (on the basis of the apparently popular view, but rightly in the authors’ view), the trial court relied on the decision of Karibi-Whyte JSC in Agu as authority for the proposition.

89 Above at note 86 at 40.

90 Above at note 3.

91 See also Igbokwe “The law and practice of customary arbitration” above at note 9 at 214.

92 For example, having found “irregularities … in the alleged arbitration”, Uwaifo JSC who read the leading judgment in Eke, above at note 3 at 208–09, concluded that “[t]he so-called arbitration is worthless”. In Ohiaeri (above at note 3 at 16–17 and 19) and Okereke (above at note 81 at 610–11), the evidence of traditional history and acts of possession of the defendants was so unreliable that no reasonable tribunal could have found for the defendants; however in each case a customary arbitration tribunal was alleged to have given an award in favour of the defendants.

93 Okekeifere “The recent odyssey of customary law” above at note 9 at 13–14.

94 (2003) 7 NWLR (pt 818) 139.

95 Id at 159 (emphasis added).

96 Okekeifere “The recent odyssey of customary law”, above at note 9.