This blog is written by Nwachukwu Favour, a Fourth-year law student of Enugu State University Of Science And Technology, Esut.

INTRODUCTION

Within the intricate tapestry of Nigerian jurisprudence, the hurdle of the dichotomy of dispute and dispute resolution has remained recurrent in human society. One of the means of settling these disputes is by arbitration. Arbitration is the reference of a dispute or difference between none less than two parties for determination, after judicially hearing both sides, by a person or persons other than a court of competent jurisdiction.[1] The Supreme Court in the case of OHIAERIi V. AKABEZE,[2] adopted the definition of customary arbitration in AGU V. IKEWIBE[3], by defining customary arbitration as an arbitration in dispute founded upon the voluntary submission of the parties to the decision of the arbitrators and the agreement to be bound by such decision or freedom to recile where unfavorable.

An oath is a solemn declaration, accompanied by swearing to God or a reverend person or thing that one's statement is true or that one will be bound to a promise. The legal consequence of an oath is to subject the maker of an oath to punishment for oath breach if the declaration is false.

Oath-taking is an accepted feature of customary law and is used most of the time in the settlement of disputes to establish the truthfulness of the claim of the land. Perhaps one of the earliest pronouncements on this score is the dictum of Agbaka J in OFORMATA & ORS V. ANOKA & ORS[4], by the view of His Lordship, oath-taking is a recognized and accepted form of proof existing in certain customary judicature, and therefore the decision to swear an oath is not illegal, although it may be obnoxious to Christian ethics. It remains to be seen whether this practice of oath-taking can remain validly a compulsory part of customary law in the light of modernity, unresolved questions of reliability with precision, religious persuasions, and the demand of constitutional imperatives.

THE VALIDITY OF OATH-TAKING AT CUSTOMARY LAW ARBITRATION IN NIGERIA

It is pertinent to note that the determination of the certainty and efficacy of an oath of juju to be employed in the resolution of a dispute has remained a challenge to the courts. The likelihood of impartiality of the juju priest in the process, and the manipulation of antidotes to the juju oath by some elders and veterans in the act, have also not been of considerable concern to disputants but are cause of inquiry for the courts.[5] Besides, an arbitral award made contingent on oath-taking is not and cannot be final until the manifestation of the end event, which is usually the death or survival of the oath-taker. The law is that the court will not approve or enforce an award unless it is satisfied that such an award is certain, reasonable, legal, and possible of execution and dispose of all differences submitted in arbitration.

Also, worthy of consideration is the fact that at the time of oath-taking ceremony at customary law, the medical status of the oath-taker is not taken into cognizance. The critical consideration is that death either occurs or does not occur within the stipulated time, usually one year. Thus, once the oath taker dies within one year of taking the oath, he loses the rest, usually land to the other party and it is immaterial whether the victim had cancer, kidney stones, pneumonia, or any other life-threatening ailments at the time of the oath-taking ceremony and died of the same afterward, or his death was consequent upon an accident. Oath-taking is shrouded in superstition, fetishism, mythology, mystery, and spirituality which are best-unseen forces, whose existence is merely fathomed in the realm of faith and belief. It is in the light of the foregoing that one appreciates and indeed applauds the powerful dictum of Ndoma–Egbe JCA in the case of IWUCHUKWU V. ANYANWU,[6] where he opined that oath-taking is of the past. This is supported by the Supreme Court Case of MARCUS NWOKE & ORS V. AHIWE OKERE & ORS,[7] where Kutigi JSC expressed amongst other things that it would be impossible to put a juju in a witness box for any purpose or enforce its decision in a law court for we have come a long way from the oracle.

THE CONSTITUTIONAL QUESTION

Apart from the unsustainability and unreliability of oath-taking outcome as judgment, the practice raises fundamental questions when the dispute involves non-adherents of traditional religion and rites, such as Christians and even Muslims. It must also be noted that resorting to oath-taking as a means of dispute determination at customary law is at the instance of the parties whose emphasis on the reference of the dispute to Customary Law arbitration does not ipso facto mean an automatic reference of the dispute to resolution by oath-taking without agreement. This perhaps explains why the Supreme Court in ONYENGA V. EBERE,[8] held that it is only when parties to a dispute voluntarily agree to the resolution of their dispute by oath-taking that neither of them can therefore refrain from the exercise of oath-taking.

The Christian Holy Book enjoins Christians not to swear to any oath at all.[9] The Constitution of the Federal Republic Of Nigeria 1999, unequivocally guarantees to every citizen the fundamental right of freedom of conscience and religion.[10] Since the Christian Bible encourages the Christian faithful not to swear at all, it would amount to an infraction on their fundamental right under the Constitution to subject the Christian party to a dispute in Customary arbitration to any fetish oath or indeed any oath at all.

CONCLUSION

There is no doubt that Customary Law arbitration is a veritable means of dispute resolution at the local level. To enhance its relevance and efficacy, its decision must not be predicated on fetish superstition, myth, mystery, and spirituality which lacks legal exactitude and proof.

References:

[1] Halsbury’s Law of England, 4th Ed, Vol 2, P.256.

[2] (1992) LPELR-2360 (SC); (1992) 2 NWLR (Pt. 221) 1.

[3] (1991) LPELR-253 (SC); (1991) 3 NWLR (Pt. 180) 385.

[4] (1974)4ECSLR 251 at P.254.

[5] Assoc. Prof. Agbo, African Customary Law Lecturer in ESUT Nigeria, August,2024, Lecture on Customary law arbitration in Nigeria.

[6] (2000) LLJR-SC.

[7] (1994) 5NWLR(Pt.343)159.

[8] (2004)13NWLR(Pt.889)20.

[9] The Holy Bible, King James Version, St. Matthew Chapter 5, Verses 34–37.

[10] Constitution of The Federal Republic Of Nigeria 1999, Section 38 of Chapter IV of the Constitution.