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Arbitration as an alternative method of conflict resolution among the Ibibio of South-East Nigeria Abia, Offiong Timothy1 and Ekpoattai, Ime Tim2 1

Department of History and International Studies, University of Calabar [email protected] 2

Department of History and International Studies, University of Uyo [email protected] Abstract Arbitration, widely accepted as a means of conflict resolution, ranges from customary arbitration to arbitration under the Act. This article describes customary arbitration and its importance in conflict resolution among the Ibibio of South-East Nigeria. Conflict resolution is not only hierarchical but also structured to reconcile parties to bring back to their pre-dispute status while ensuring peaceful co-existence and justice. The study adopts a multi-disciplinary approach supported by primary and secondary data sources. Keywords:

Arbitration, Conflict Resolution, Adjudication, Settlement

INTRODUCTION Nigeria is one of the largest political units in West Africa and it became a British colony in 1914 after the amalgamation. Before the advent of the European rule, the country had several sophisticated and civilized kingdoms, chieftains, tribal groups and communities. Kingdoms as the Bini, Nupe and Borno were known to have long established traditions of sophisticated monarchical governments (Jakande, 1974: 241). Other less hierarchically-organized ethnic groups include Ibibio, Igbo, Efik, Tiv, Gwari and Ijaw and they maintain the tradition of cult and theocracy (Njeze, 1983:1). In the 19th century, the establishment of colonial rule imposed by the British worked well in the western and northern regions. But in the south-east region, the system encountered difficulties that brought about the warrant rule system with abuses (Afigbo, 1972: 255-299; Anene, 1966: 250,257). In

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the area of conflict resolution, foreign rule recognized the traditional means of resolving conflict even though the British common law had been introduced. Consequently, in Ibibio communities, the office and authority of chiefs, elders, and clan heads continued to serve as a very reliable traditional channel of dispute resolution. The above practice was carried out because in Ibibio traditional system of administration, the duty of observing the rules of law was not restricted to government officials; all public functionaries, institutions and families shared the responsibility of ensuring compliance with the rules of law. In fact, traditional institutions were to responsively observe compliance; these institutions were headed by the chiefs and elders as they were close to the grassroots and had dominance over traditional justice. The chief, truly, had a duty to act with a sense of justice, fairness

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and equity. He must not allow his personal interest, sentiments or belief to becloud his sense of reasoning. Whoever comes to his courtyard seeking redress for injury or wrong done to him must be treated with a sense of equality, irrespective of ethnic group, political leaning, religious or socioeconomic standing in the society. With the enthronement of foreign rule, an effective way of achieving the right results in the handling of cases was to be reasonably practicable by following the laws of the land, i.e. the constitution, the statutes and various decisions of the western courts and upholding the customary law. The position of the chiefs was enhanced by the fact that courts in civil cases did encourage out of court settlement for actual and last resort settlement. Chiefs played significant role in the maintenance of peace and stability within their domain. In fact, both the chiefs and elders were empowered initially by the colonial authority and later by the Nigerian government to arbitrate on disputes for settlement within their domain. For instance, some of the chiefs were members of the Native Courts established by the colonial administration and by receiving the backing of colonial police they became more powerful. ALTERNATIVE METHODS OF CONFLICT RESOLUTION Apart from litigation method, there are other methods of non-conventional peaceful and alternative methods of settling disputes and resolving conflicts using less expensive methods. Discussing alternative dispute resolution methods in peace making, Olagunje (2002:10-12) argues that conflict has a bad name because of negative conflict management, otherwise conflicts, are not themselves bad. He further reveals that once conflict is open, there are many non-violent methods of resolving them. Hence the

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alternative dispute resolution method is identified as one of such methods. In Africa, Best (2007: 93-109) confirms that African alternative dispute resolution is rooted in history, tradition, and culture strongly supporting the relevance of alternative dispute resolution methods such as conciliation, mediation, negotiation and arbitration (customary Arbitration and Arbitration under the Act). These methods of settling disputes all depend on dialogue, negotiation and communication. 1. Conciliation The conciliation method of resolving conflict comes in to play when an aggrieved party reports the dispute to elders either in the family or community as the case may be. On listening to the two parties the family head recommends a solution which whether they like it or not, must be accepted by the parties. In conclusion, there might be no prescribed sanction for non-compliance, but the parties are obliged to abide by the decision handed down (Essien, interviewed 24/6/2012). Conciliation involves reconciling, appeasing, uniting and winning the other party over. In recent times, the systematic use of conciliation in dispute resolution has assumed more importance because of its efficiency. Conciliation is also regarded as a third party non-adversarial intervention process, where the intervener conducts a form of „shuttle diplomacy‟ between disputing parties in a bid to achieve a mutually acceptable terms of conflict resolution for them. The conciliator may suggest „best‟ solution for the disputing parties which, depending on what the consequence might be for them, may or may not be regarded as binding by the parties. Although in most cases mediation and conciliation are used inter-changeably, the notable difference between them is that in mediation, the mediator does not decide for

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the parties but uses dialogue to drive or reach at the settlement. 2. Mediation Mediation is a type of conciliation where third party is called „mediator‟. Unlike the conciliator, mediators rarely inquire the facts of the case. But like arbitrators, mediators do not attempt to apportion blame; rather, they provide acceptable compromise. Consequently, in mediation, where the third party intervenes, or called upon to help in settling disputes, the mediator does not give a decision but encourages the parties to find a middle ground where both parties are happy and have a feeling of winning. Consequently, mediation is the intervention in a negotiation or a conflict of an acceptable, impartial neutral third party with no authority in decision making, but can assist the disputing parties to voluntarily reach a mutually acceptable settlement of issues in dispute. Mediation may also strengthen and establish relationships of trust and respect between the parties, or terminate relationships in a matter that minimizes costs and psychological harm. Mediation is therefore useful in highly polarized disputes where the parties have been talking and have reached a seemingly insurmountable impasse. A mediator makes primarily, procedural suggestions regarding how the parties can reach agreement. In some cases, a mediator may suggest some substantive options as a means of encouraging the parties to expand the range of possible resolution under consideration. The mediator often works with parties individually to explore acceptable resolution options or to develop proposal that might move parties closer to resolve the issue. A mediator is quick to identify statements of voluntary vulnerability, bringing about acknowledgement between willingness to

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ask for forgiveness and to be forgiven; this manifested in a land dispute between Chief Thomas Ebitu on behalf of Ntafri village v. Chief U. A. I. Udonden of Ikot Akpatek in 1975 where the secretary, Eket Local Government Area invited the parties for inspection of the disputed land and mediation on the issues as a means of stating the traditional history and title of Government School land at Ntafri (Memo by Akpan-Amasi, 1975). 3. Negotiation Negotiation could be defined as “a basic means of getting what one wants, from others” (Latz, 2006:18; Fisher, Ury & Paton, 1955: xiii). It is a type of dispute settlement mechanism where one party takes half the empty glass away and the other takes away half of the full glass. This method of conflict resolution refers to discussions between conflicting parties using ideas, information and other options to reach an acceptable agreement. The parties in this situation discuss matters between themselves in bipolar relationship. Even if facilitators are present, communications are essentially between the conflicting parties. In negotiation processes, the parties are free to terminate the negotiation and pursue other forms of dispute resolution. Most times in negotiation there is deficit as to the intention of parties negotiating. Trust is the most important element in any negotiation. For each party‟s objectives for negotiation to be worthwhile, it ought to take both parties interest and needs to consideration. For instance, between 1798 and 1880, George Watts, a British merchant negotiated with Ibeno people for the establishment of a trading station at the mouth of the Qua Iboe River and by the beginning of 1881, a store was built there for the benefit of the company and the people by way of development and employment; the store is now the property of the Ibeno Council.

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4. Arbitration Arbitration is defined as a third party intervention in settling dispute. It is the use of neutral persons called arbitrators who listen to and receive evidence from the different parties and thereafter give a verdict known as „award‟ which is expected to be binding on the people (Best, 2007:109). Arbitration is a step higher than mediation in conflict management and conflicting parties to a dispute may agree to settle for arbitration as a non-violent means of resolving their dispute. Once that is the case, such parties no more have control over the matter as compared to parties that choose mediation or other means of conflict management. Arbitration is similar to mediation, and close to adjudication but different from both (Best, 2007:109). In arbitration, decisions are binding even though it is different from litigation in the sense that it is done outside the courts and its enforcement mechanism differs from those of court jurisdiction. Arbitration is either customary or arbitration by Act. 5.

Customary Arbitration among the Ibibio Customary arbitration basically involves the voluntary arbitration of disputes by the parties to a non-judicial body for settlement in accordance with customary law. In fact, customary arbitration has remained one of the outstanding methods of setting civil disputes in Ibibioland. In pre-colonial time, every village in Ibibioland had a body of elders that arbitrated on local disputes such as matrimonial cases dealing with the payment or refund of dowries and compensation for adultery. They also imposed fines for breaches of town laws such as failing to clean the village paths or squares, or steeping cassava at water places set aside for drawing of drinking water (NAE, 1932:85). However, the body varied

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in personnel and judgment was enforced by the Ekpo society and through sanctions (Ekong, 2001:123). Customary arbitration was subsequently upheld all over Ibibioland by the colonial government. Consequently, traditional rulers were empowered to perform these functions in order to maintain peace, order and good governance in their domains. In the case of Ukat Aran – Uyo Division v. Edem Idim Okpot – Eket Division in 1906, the plaintiffs claimed that the dispute was settled by customary arbitration and claimed res judicata (NAE, cal Prof/71/1160/1946). Also, in a disputed land case between Adiasm, Ikot Ekpene Division v. Ikot Ebebi, Afaha Obong, Abak Division in 1951, after intervention by the Chiefs and Elders, the District Officer sent a memorandum to the Senior Resident, Calabar Province and advised that the parties had accepted peace making through arbitration (NAE, 1951:3). Even though the British common law and courts were introduced in Ibibioland with the establishment of colonial rule, circumstance in the society made the settlement of disputes by arbitration inevitable. Notably, when aggrieved parties could not access the regular court for litigation, because either none existed in their locality, or they could not afford the cost; they resorted to arbitration particularly after negotiation, or conciliation might have failed to provide succor (Abia, interviewed 20/11/2011). Furthermore, arbitration was the hallmark of the Ibibio traditional judicial system; kinsmen in dispute were usually helped by the traditional authority to resume and maintain kinship solidarity (NAE, C.B. 776/152:1934). This manifested in a memo signed by Chief John Ekere, Secretary and Chief Sunday Atiata, Chairman Oniong Clan

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Council and fourteen other chiefs, and forwarded to secretary, Eket Traditional Ruler‟s Council presenting Chief Udo Akpan Obot as village head of Akata village for recognition. The village head elect was advised by the elders to: “ humble himself in his high office, to show sympathy towards the poor and widow, to shun discrimination among people, to be fair and just to all people no matter their nationality, to ensure peace and amicable settlement of civil disputes among the people and to uphold the truth in all words and actions, treat all subject equally before the law and show fairness in all his mediation and arbitration among his people” (Akata Village Council, 1985:94). SCOPE OF CUSTOMARY ARBITRATION A distinctive failure of customary arbitration is that agreement to conduct same is oral and its proceedings and decisions were not normally recorded in writing (Suit no 23/98). Nevertheless the award is recorded and signed in modern times since the Ibibio had adopted writing and recording as part of their meeting procedure even in the villages. But in pre-colonial times, everything was oral. This can serve as proof and evidence that the customary arbitration took place. In this case the proceedings and award must be recorded and presented in court. Though customary arbitration is not regulated by the repealed Arbitration Act, but it is popular among people in the villages and is recognized by the courts. In case of a disagreement as to whether there was in fact, a properly constituted arbitration between the parties, the court can make a specific finding of facts in the question (Uwaifor, 1974: 253; Inyang v. Essien, 1957: FSC 39; Alapo v. Agbokere, 2011:194). In a decided case in Accra, the West African Court of Appeal stated rightly that… “where matters in dispute between parties are, by mutual

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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” (Deans, 1932: 201). However, the decisions or award of a customary arbitration is not a judgment of a court of law. It has no force of law and therefore cannot be enforced like such judgment until it is pronounced upon by a competent court. But the court does not make such as approving pronouncement unless the award is specifically pleaded and proved in proceedings before it, involving the parties to the arbitration and their privies. When this is done the award may be accepted as creating a bar by way of res judicata, provided that the person or body that conducted the arbitration was a judicial tribunal which handed down judicial decisions. It is believed that this judicial pronouncement should be construed to mean that the person or body must have reached its decision judicially or in a judicial manner. In other words, the award must be made on the basis of evidence led by the parties and their witnesses before the arbitrator at proceedings in which the parties are given fair hearing. Though traditional in nature, customary arbitration as an exercise of judicial powers of a non-judicial body in accordance with customary law through the adjudication and determination of disputes voluntarily referred to it by the parties, is fully recognized under the Nigerian legal system. In the case of Egesimba v. Onuzorike, Justice Niki Tobi (2002: 2425) made the pronouncement that arbitration under customary law is recognized in Nigerian jurisprudence; therefore any decision to the contrary is a bad law. However, the source of the judicial powers of customary

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arbitration tribunals and the binding effect of their decisions has been in doubt. In the case of Inyang and Ors v. Essien and Ors (1957: FSC. 39), the plaintiffs commenced action against the defendants in a native court for a declaration of title to a piece of land. At the instance of the defendant, the action was withdrawn from the court and the District Officer in charge of the area directed the Iman Council – a traditional body, to settle the matter. The decision of the Council was not accepted by the plaintiffs who instituted a court action. The question then was did the decision of the council bind the parties to constitute res judicata. The federal Supreme Court held that it did not, on grounds that what the council did was an attempt to settle the dispute and make peace between the parties; but the attempt had failed. Consequently any decision given by the council which was not accepted by any of the parties had no binding effect and could not constitute res judicata. The federal Supreme Court pronouncement on this matter (Inyang v. Essien) has been severely criticized and the conclusion is that the court was in error in holding that the decision of Etinan and Iman Council did not constitute res judicata on the ground that the council was not a native court set up under the Native Court Ordinance, cap. 142 of the laws of Nigeria (Inyang v. Essien, 1957: FSC. 39). This had no binding effect on the party who rejected it since the two bodies were not native courts. Rather, the powers of the Etinan and Iman councils were limited to negotiating a settlement between the parties and not adjudication. This decision of Federal Supreme Court was clearly an erroneous view since it is recognized that such non-judicial bodies could, in certain circumstance, make valid and binding decisions, which could operate as a bar that prevents the people from denying. The rationale behind the doctrine of a bar is expressed in the legal maxim – Interest

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reipublicoe ut sit finis litium. It is the interest of the state that there must be an end to litigation (Alapo v. Agbokere, 2011:194). REQUIREMENT FOR CUSTOMARY ARBITRATION The requirements, usually accepted as constituting the essential ingredients or characteristics of a binding customary arbitration, include voluntary submission of the dispute to the arbitration of the individual or body; agreement by the parties either expressly or by implication that the decision of the arbitrators will be accepted and binding; the arbitration was in accordance with the custom of the parties; the arbitrators reached a decision and published their award; neither of the parties rescind from the decision so pronounced (Ezejiofor, 1997:22; Udofa, 2010:17). In Agu v. Ikewibe (Karibi-Whyte, 1991:583) the Supreme Court further pronounced that for a customary arbitration to be valid it must be shown: (a) that the parties voluntarily submit their dispute to a non-judicial body, to their elders or chiefs as the case may be for determination; (b) the indication of the willingness of the parties to be bound by the decision of the non-judicial body or freedom to reject the decision; (c) that neither of the parties had rescind from the decision so pronounced If the party to a dispute is compelled to participate, the decision or judgment shall not be binding. In a situation where an aggrieved is unable to summon the other party before chiefs and elders for settlement of dispute then there is no valid customary arbitration agreement. As non-judicial body there is no power to force summons to be issued to compel appearance of the parties before them. The party then has the right to

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go to court for adjudication of their dispute. Furthermore, for the decision of customary arbitration to be valid there shall be an agreement binding the parties. The early judicial authorities were consistent in holding that a prior agreement whether expressed or implied was an essential ingredient where the parties choose the arbitrators to be their judge; they cannot reject the award/judgment whether it is good or bad. In arbitration in accordance with custom and tradition, the pleading must aver all the elements of a valid arbitration under customary law. It must plead that both parties voluntarily submitted the matter in dispute to arbitrators according to custom and agreed, either expressly or by implication to be bound by the decision of the arbitrators and that the arbitrators reached a verdict. The arbitrator(s) must be the recognized person(s) under customary law as capable of settling disputes by arbitration. Such persons are usually family heads, chiefs and elders of the community who by virtue of their positions are knowledgeable of their custom to perform judicial functions and settle disputes between their subjects. In the case of Folic v. Larbi (1930:1), the arbitration was not conducted by an elder, chief or members of the indigenous society in the traditional judicial process but by a judge of the Supreme Court, consequently, the award was rejected as customary arbitration.q The procedures adopted throughout the customary arbitration must conform to the customs of the parties. In Ibibio society, parties were expected by custom to pay certain fees, in case of land dispute, for inspection or Locu in-quo (land inspection) as indication of their submission of the dispute to the arbitration panel for settlement; also oath taking may be involved (Karibi-Whyte, 1991:135). Also, the party seeking to rely on customary arbitration

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must not only plead the decision/judgment or award of customary arbitration but must also plead the ingredients that projected it as creating an estoppel (Karibi-Whyte, 1991:33). In Agu v. Ikewibe, it was stated that where it is clearly averred by a party that there was a previous customary arbitration which was in his favor and that he will be relying on it as creating a bar, it will not be necessary to plead the ingredients establishing the bar; the party will have to adduce credible evidence of the relevant ingredient necessary to sustain the material plea of bar by customary arbitration (KaribiWhyte, 1991:36). As observed by Udofa (2001:17), there seems to be no consensus and certainty as to the actual ingredients of valid customary arbitration in Nigeria. The courts treatment of customary arbitration for the purpose of res judicata has neither been consistent nor satisfactory. The Supreme Court in the case of Egesimba v. Onuzuarike (2002:103) laid down two different sets of requirements that: (a) The arbitrators reach a decision and publish it, i.e. for a customary arbitration to be valid and binding; the arbitrators must reach a decision and announce the award or judgment. Where no decision was reached and published, the arbitration will be regarded as inconclusive and not binding. The decision or award must be clearly stated, précised, final and unconditional. (b) Acceptance of decision or freedom to reject it. The jurists and lawyers are somehow divided on this issue. Some are of the opinion that the parties deserve the right to withdraw at anytime from the arbitration or reject the decision at the time it is made or within a reasonable time; while some are of the position that the decision of the

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arbitrators is binding on the parties as it will be too late to rescind from the decision. In Oline v. Obodo (1958:84), the Federal Supreme Court held that: “Where the parties submitted their dispute for settlement by arbitration in accordance with native law and one party withdraw from the arbitrators before it was completed, the award of the arbitration was nevertheless binding on all parties. In the present case there is a finding of fact against the appellant that they attended the arbitration and that they be bound by the award of the arbitrators”. The decision of a non-judicial body cannot be binding except it is accepted by the parties. But the agreement to be bound must be made prior to the decision and not subsequently, and the parties have no right to rescind from the award when pronounced. In the Supreme Court decision in Raphael Agu v. Christian Ikewiba earlier cited, the plaintiff based their claims on traditional history, acts of possession and ownership, and relied on customary arbitration by the chiefs and elders of their community. The trial judge rejected and dismissed the claims (Karibi-Whyte, 1991:538). When the case was appealed the Court of Appeal held that there was a binding arbitration between the parties; and appellant was barred from denying the respondent title to the land. On further appeal to Supreme Court, the apex court agreed with the Court Appeal. The Supreme Court held that customary arbitration is the voluntary submission of a dispute to a third party for a solution. In a leading judgment, Karibi-Whyte emphasized that “It is well accepted that one of the many African customary modes of settling disputes is to refer to the family or an elder or elders of the community for a compromise solution based upon the subsequent acceptance of both parties, of the suggested award which becomes binding only after such signification of its

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acceptance and from which either party is free to rescind at any stage of the proceedings up to that point” (Karibi-Whyte, 1991: 583). CONCLUSION Customary arbitration has been recognized and accepted as one of the methods of resolving conflict in Ibibioland as well as in other African communities. It is a mechanism whereby the elders in the community play a major role in maintaining peace. They use different approaches such as mediation, conciliation, negotiation and arbitration. The arbitration approach used is commonly known as customary arbitration. The judgment or award is normally binding on the parties. This is not a judgment of court. The customary arbitration is voluntary submission of the parties in dispute to the tribunal other than the regular court to settle the dispute. The tribunal is not a regular court but exercises judicial powers in accordance with customary laws in matters which are voluntarily submitted to them. As the arbitrators are made up of members of the same local communities and are familiar with their customs and traditions, the integrity of the parties is also known. The panel members are trusted and straightforward with good character so they are always seen as living examples of the rule of law. Arbitration does not encourage win and lose character of adjudicatory process which works against future harmony between parties. The mechanism serves time and avoids delay and uncertainties of adjudicatory trials. It minimizes cost and psychological harm; it also enables the parties to control their own fate rather than relinquishing the power to decide their right to an adjudicator.

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REFERENCES 1 Afigbo, A. (1972). The Warrant Chiefs: Indirect Rule in South Eastern Nigeria 1891 – 1929. London: Longman. 2 Anene, J.C. (1966). Southern Nigeria in Transition, 1885-1906. Cambridge, University Press. 3 Alapo v. Agbokere & Anor (2011). 202 I RCN 194. 4 Best, S.C. (2006). Introduction to Peace and Conflict in West Africa, Ibadan: Spectrum Books. 5 Cap 134 Laws of Akwa Ibom State of Nigeria (2002). S. 1.7. (I) F. 6 Cap 134 Laws of Akwa Ibom State of Nigeria (2002). S. 1.7. 2 (K) F. 7 Deans, C.J. (1932), in Assampong v. Kweku and Ors. IWACA 192 at p. 201. 8 Ekong, Ekong E. (2001). Sociology of the Ibibio: A Study of Social Organization and Change. Uyo: Modern Business Press. 9 Ezejiofor, C. (1997). The Law of Arbitration in Nigeria, Lagos: Longmans. 10 Fisher, R., Ury W. and Pahen, B. (1955). Getting to Yes – Negotiating an Agreement without Giving In. New York: Century Business. 11 Folic v. Larbi (1930). IWACA I. 12 Inyang v. Essien (1957). FSC. 39. 13 Jakande, l. ed. (1974). West Africa Annuals, Lagos, Daily Times. 14 Karibi-Whyte, J.S.C. in Agu v. Akewibe (1991). 13 NWLR (Pt. 180) 135. 15 Latz, M.E. (2006). Gain the Edge: Negotiation to get what you want. First St. Martins Edition. 16 Mungazi, D.A. (1996). The Mind of Black Africa, London: West Post. 17 National Archives, Enugu (n.d) D.A.F. Smith, District Officer, Ikot Ekpene to Senior Residence, Calabar Province.

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