SEEKING JUSTICE THROUGH JUJU ARBITRATION: THE STRUGGLE BETWEEN COURT AND SHRINE

Oluwafemi Alexander LADAPO

Abstract

In recent times, there has been a renaissance of the African traditional heritage in the

consciousness of most Africans and this has sought expression in their quests to conduct their

affairs in accordance with African customs and traditions. Afrocentricism has become noticeable

in all facets of life, including the choice of dispute resolution mechanisms. In Nigeria, this is

especially so because of the loss of faith in the efficacy of the Western styled justice system,

occasioned by widely held perceptions of the long drawn duration of law suits and corruption

which pervades the system, as testified to by Transparency International’s Corruption Index.

It has come to light within the last decade, that a sizeable number of disputes among

Nigerians, which were hitherto the almost exclusive preserve of Western styled courts, are now

being tabled before priests at juju shrines, for oath-taking arbitrations. Such disputes include

commercial disputes, church administration disputes and even political feuds. There have however

been a lot of reservations about the procedures employed in such arbitral proceedings, particularly

after the wide media coverage of the corpses of alleged oath perjurers strewn all over the bushes

around the Okija juju shrines in Anambra State. Furthermore, the Nigerian courts have generated

alot of uncertainties in the interpretation and application of the principles of this dispute resolution

mechanism.

This article examines the definitions, nature and basic principles of juju arbitration, the

extent of its use in the Nigerian society and its place as an alternative mechanism for the

attainment of justice and peace. The recognition and applicability juju oath-taking as a means of

truth seeking, within the Nigerian legal framework vis-à-vis statutorily and judicially recognised

alternative dispute resolution mechanisms will be analysed. Also to be considered is the cyclical

ding-dong phenomenon of routing disputes between shrine, court and back to shrine.

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1.0 INTRODUCTION

In this introductory part, we shall employ the Platonic dialogue mode of discuss, by staging a consultation by Onuiyi a sophomore English student, who’s ancestral origins are in the Ibo speaking peoples of South-Eastern Nigeria, but who is culturally cut off from his roots on account of him being brought up in the United States of America, and the revered African author, Professor Chinua Achebe of the “Things Fall Apart” fame, (written in 1958 and based on the interaction between Igbo traditions and European customs influenced by Christian values, all at the crossroad of civilizations). A discussion on the nature of oath-arbitration between the protagonists takes place at the office of the octogenarian professor at Brown University in Providence, Rhode Island, United States. And of course the discussions of the protagonists are entirely fictional.

Onuiyi: Hello Prof., can I trouble you for a moment?

Prof. Achebe: Sure, common in and sit down.

Onuiyi: Sir, my father is deceased. But before he died he told he owned a property in his village, which he inherited from his father. Now one of my uncles is challenging my father’s title to the land and I have been invited back there to swear to an oath to settle the dispute. I’d just like to know what the oath business is all about.

Prof. Achebe: Well young man you see, you have been invited for an oath challenge. It is a traditional mode of dispute management and it is now usually referred to as juju arbitration. (Oba, 2008: )

Onuiyi: What! Juju!

Prof. Achebe: Yes!

Onuiyi: Ain’t that some sort of fetish stuff?

Prof. Achebe: Well, you may call it that. But do you know the meaning of your name?

Onuiyi: No!

Prof. Achebe: Your name means “oath taker” in Igbo. Someone must have foreseen that you will be called upon to defend your patrimony through an oath challenge. All Igbo names have meaning, children are not named arbitrarily. They are named sequel to revelations and prophesies in dreams or by divinations. (Jell-Bahlsen, Sabine 1989)

Onuiyi: What is this oath thing all about?

Prof. Achebe: When there is a dispute over very important things like land, and evidence independent of the disputants is not available, then one disputant may challenge the other to an oath-duel or the arbitrator(s) may suggest an oath duel.

Onuiyi: How is it performed?

Prof. Achebe: A day is set for the challenge and the whole village is invited. The challenge usually takes place on the piece of the land in dispute. The challenger seeks out and produces the most potent Juju he can find; this may be the family’s ofo, (the ancestral spear) or a masquerade. This oath object is then handed over to the challenged to swear upon.

Onuiyi: What is this ofo thing?

Prof. Achebe: An ofo is a venerated object symbolising justice and ancestral authority, it is regarded as the connection between the earthly plane and the spiritual ancestral plane. It is made of a small piece of wood smeared with blood and ornamented with feathers and it is usually held in custody by the Okpara. (Edeh: 2007)

Onuiyi: Is there a swearing formula?

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Prof. Achebe: Of course, and this varies from locality to locality. But in essence the oath is a conditional self-curse, invoking calamity on the oath-taker and his family in the event of him perjuring.

Onuiyi: What sort of calamity are we talking of here?

Prof. Achebe: Oaths are serious things, and are taken under the pain of death. After an oath is taken, the proceedings are adjourned for the one-year waiting period.

Onuiyi: One-year waiting period?

Prof. Achebe: Yes! To find out if the oath-taker will survive his self-curse. If he does, then his oath was true and his claim just. The arbitrator then declares him the winner and he must thereafter make a public symbolic celebration of his success. On the other hand, if he or any member of his immediate family die or they receive the visitation of grave calamity by Ajo mmuo (Malevolent spirits), then he adjudged to have perjured and he loses his claim.

Onuiyi: It must all be superstition, how does a person die from simply perjuring. No one will know if a person is lying or telling the truth, even the polygraph test isn’t full proof.

Prof. Achebe: This is the problem with the Western culture and its material empiricism. The West has lost its belief in the metaphysical, which is still very real in Africa. The best attempt of a Western arm chair philosopher to explain otherwise inexplicable phenomena is presented by the very English jurist Glanville Williams (1961) who has suggested that an attempt to kill by conjurations or magic in a “backward territory” might well work through the mechanism of the victim’s mind, when such beliefs are common. But when a whiteman has seen and experienced Juju first hand, he cannot deny it potency as was the case with Neal (1966: 13, 34) who wrote after his Ghana sojourn, that: if anyone had told me then that Black Magic, or Juju, would endanger my life almost continuously... I would have laughed outright. [But]whatever (the) theories ... I have my own eyes, and ears to believe, my own intelligence to depend on, my injuries to confront me every waking hour of my life. There is no shred of doubt in my mind today that the African, in his own mysterious ways has harnessed one of the strangest powers of all – the thing they call Juju.

Prof. Achebe: So young man you have no business toying with a Juju oath under the conception that it is “just” superstition. Juju oaths are potent and many have lost their lives on that path.

Onuiyi: Why do people still submit to the Juju arbitration in this 21st Century?

Prof. Achebe: Well, most likely because of the perceived delay and corruption in the western styled justice system. And the Supreme Court of Nigeria “recognizes oath-taking as a valid process under customary law arbitration [because] it worked and still works, better for the indigenes because it is faster, cheaper and they understand it, not [sic] being bogged down by the unnecessary and avoidable technicalities that beset the English [system].” (Onyenge vs. Ebere 2004)Onuiyi: Are these Juju arbitrations peculiar to the Igbo people?Prof. Achebe: Not by any means! Ask Wole Soyinka, he’ll tell you that even the Yoruba people who did not operate an acephalous social system like ours still have their Sango (god of lightening), Ogun (god of Iron) and Aiyelala (goddess of justice) who is their answer to Themis, the Greek goddess of justice. (Awolalu: 1969). The Yorubas approach the shrines of these gods for oath-taking arbitration in search of justice.

Onuiyi: Wow! But Prof is this ominous Juju arbitration recognised by law, is it binding, can one use it for other disputes and will it still continue to hold in the future?

Prof. Achebe: Young man! Young man! These are too many questions, maybe you should talk to an African Law specialist or a traditional conflicts’ analyst.

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2.0 CONCEPT OF CUSTOMARY ARBITRATION

On the Existence of Customary Arbitration in Nigeria

The history of customary arbitration in Nigeria as a mechanism for conflict management and

dispute resolution extends far back into the pre-colonial era. This was recognised by the Western

styled judicial institutions of the colonial administration and has largely continued to be

pronounced as valid by the courts in the post-colonial era.

Among the earliest judicial recognition of the concept of customary arbitration were the decisions

on the Gold Coast (now Ghana) cases, by the West African Court of Appeal whose decisions were

binding on Nigerian courts and still form part of Nigerian case law. The West African Court of

Appeal, in Assampong vs. Amuaku & Ors (1932: 201) pronounced that:

“... where matters in dispute between parties are, by mutual 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.”

The same has prevailed in a long string of authorities like Foli vs. Akese, (1930: 1) Kwasi vs.

Larbe, (1952: 80) etc. These lines of authorities were followed in by Nigerian courts in Eguere

Inyang vs. Simeon Essien, (1957: 39) Philip Njoku vs. Felix Ekeocha (197....) and Mbagbu vs.

Agochukwu, (1973: 90) among others. However, surprisingly the Court of Appeal in 1988 adopted

an extreme position in Okpuruwa vs. Ekpokam, (1988: 554) where Justice Uwaifo, denied the

existence of customary arbitration in Nigeria by saying that:

"I do not know of any community in Nigeria which regard the settlement by arbitration between

disputing parties as part of its native law and custom"…I say by way of emphasis that we have no

equivalent of Akan Laws and customs in this country under which elders of the same description

in Ghana's circumstances perform recognised judicial functions consistent within our judicial

system. "

The above decision of Justice Uwaifo found a ready ally in the earlier published opinion of Allott

(1960: 126), an English scholar of African law, who opined that:

“The term 'arbitration’…in the mouth of the African, refers to all customary settlements of

disputes other than by the regular courts. The aim of such a transaction is not the rigid decision of

the dispute and the imposition of penalties, so much as reconciliation of the two parties and

removal of the disturbance of the public peace... It might also happen that the losing party might

reject the award as unfair to him. Things are then as they were before the, ‘arbitration’ was made,

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until a fresh attempt is made at reconciliation (perhaps by the intervention of a more powerful

person as arbitrator)”

The above notwithstanding, the dissenting opinion of Justice Oguntade in the same Okpuruwa’s

case (1988: 586-7) is instructive, he opined that:

“…in pre-colonial times and before the advent of regular courts, our people certainly had a simple

and inexpensive way of adjudicating their disputes between them. They referred them to elders or

a body set up for that purpose. This practice has over the years become so strongly embedded in

the system that they survive today as customs. I do not share the view that natives in their own

communities cannot have customs, which operate on the same basis of voluntary submission. The

right to freely choose an arbitrator to adjudicate with binding effect is not beyond our native

communities.”

The Supreme Court in several subsequent decisions has come to the rescue of customary

arbitration, by overruling the reasoning of the majority decision in Okpuruwa’s case delivered by

Justice Uwaifo, and upholding Justice Oguntade’s dissenting opinion.

The Supreme Court in Agu vs. Ikewibe, (1991: 406) held that :

“It seems to me that Uwaifo, JCA who wrote the judgement of the court, Oguntade JCA dissented

on this point, held the view that customary arbitration was unknown to Nigerian law. It is

somewhat of a surprise in view of the evidence before the learned trial justice of the Court of

Appeal, by both parties to the appeal before him and submissions of learned counsel that he can

hold and express such a strong view about a practice relied upon by both parties.”

The Supreme Court has further confirmed the existence of customary arbitration in Nigeria

through its decision in Odonigi vs. Oyeleke, (2001: 27-8).

Review of Literature on Customary Arbitration

The predominant voice in the discourse on customary arbitration in Nigeria has been that of the

judiciary. In the last sixty years, over fifty decisions have been rendered on the subject by

Nigeria’s appellate courts, with the overwhelming majority emanating from South-Eastern

Nigeria. These decisions have comprised of varying, sometimes seemingly contradictory opinions

on a wide variety of issues.

These differing judicial opinions have in turn given rise to a robust debate by and scholars. The

debates have been engaged in over the definition of the concept “customary arbitration”, the

propriety of the terminology “arbitration” as it applies to African customary dispute resolution

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processes, the distinction if any, between customary arbitration and customary law arbitration; and

the ingredients required for valid customary arbitrations.

An attempt will be made hereunder, at elaborating on the issues written on as identified above.

Watner (1997) has stated that all societies being organic in nature, and having needs for secure

social structures, to regulate relationships in diverse places and at different times in the absence of

authority backed judicial systems or alongside such authorities, have evolved their own forms of

arbitration. All the arbitral mechanisms have the hallmarks of voluntary submission to non-judicial

arbitral tribunals or judicial institutions acting in non-judicial capacities, to determine disputes on

the merit after listening to the parties and assessing evidence put forward and such decisions are

regarded as binding on such parties. As such, arbitration is a spontaneous universal reaction to

attempts to maintain social order and according to Watner arbitration has been favoured in all the

ancient legal systems some of which include, the Jewish, Roman, Greek, Byzantine, Islamic and

Christian systems, except that of the Chinese who believed that going to law or court was evil.

On the issue of the definition of customary arbitration, Ndukwe (1999: 191) has opined that

‘regrettably enough, the phrase “customary arbitration” is generic, nebulous and incapable of any

precise definition’ and that its definition can only be hazarded from its attributes, characteristics

and features. This mind set probably informed the trend for most writers on the subject tend to

cast their definitions based on the ingredients of customary arbitration, distilled by the courts from

its features.

Igbokwe (1999: 2003) has argued that the definition of customary arbitration expounded by the

Supreme Court of Nigeria in Agu vs. Ikewibe that:

“... Customary Law arbitration is an arbitration of a dispute founded on voluntary submission of

the parties to the decision of the arbitrators who are either the chiefs or elders of their community,

and the agreement to be bound by such decision or freedom to resile where unfavourable.”

(Emphasis supplied)

was the adoption of the earlier views of Elias (1956: 212) where he wrote that:

“[I]t is well accepted that one of the many African customary modes of settling disputes is to refer

the dispute to the family head or an elder or elders of the community for a compromise solution

based on the subsequent acceptance by both parties of the suggested award, which becomes

binding only after such signification of its acceptance, and from which either party is free to resile

at any stage of the proceedings.”

(Emphasis supplied)

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Nwauche (1999: 64) has stated that a review of appellate court judgements reveals that the term

“customary law arbitration” is used interchangeably with “customary arbitration”, and that they

mean the same thing. Allott (1998: 232) on the other hand blames the interpreters and others for

using the phrase “customary arbitration” as a catch all phrase for various types of voluntary

dispute resolution mechanisms, and infusing it with all the connotations of the English common

law concept of arbitration. Allott also berated the judicial officers, particularly the expatriate

judges for slipping into the error of equating the African mechanisms with the common law

concept of arbitration.

Ubangwu (1989: 62), Igbokwe (1997: 204ff) and Ndukwe (1999: 193) have all examined the

constitutional validity of customary arbitration proceedings. The trio agree that the Supreme Court

was right in its decision in Agu’s case where it pronounced that the customary arbitration being

part of the body of Nigeria’s customary laws, is constitutionally an “existing law” by virtue of

section 274 of the Constitution of the Federal Republic of Nigeria, 1979 (now section 315

Constitution of the Federal Republic of Nigeria, 1999). Furthermore, that the exercise of powers

by arbitrators is in no way a usurpation of the judicial powers conferred upon the courts by section

6 of the Constitution (both 1979 and 1999).

The trio of Matson (1953: 58), Elias (1956: 212ff), and Allott (1960: 126ff) express the view that

what has been termed customary arbitration is somewhat of a misnomer and that the dispute

resolution mechanism described belongs in the same class with conciliation and mediation, it

being a process of negotiated settlement. On the other hand, Igbokwe (1997: 211) disagrees with

the postulations of Elias and Allott and distinguishes between arbitration under customary law and

negotiated settlements. The distinction between mechanisms for negotiated settlement and

arbitration spring from the diverging views on whether or not parties can withdraw at any time,

even after the decision of the intervening third parties. However, in a plethora of cases, evidence

have been led to demonstrate that parties regard the decisions of their arbitrators as binding.

Matson and Allott who conducted field studies among the Akan of Gold Coast (now Ghana) held

the view that dispute resolution mechanisms ending in binding decisions exist and are presided

over by persons wielding traditional judicial authority, and Ubangwu (1989: 64) agrees with them.

Igbokwe on his own part posits that the arbiters need not be persons holding judicial authority.

Elombi (1993) has also highlighted the seeming reversal of the binding nature of the proceedings

of customary arbitration on persons submitting to it by the Ghanaian superior courts of record, as

against the requirement for post “arbitration” ratification of decision by the Nigerian superior

courts of record as typified in Agu’s case. Ezejiofor (1996: 27) celebrated the temporary

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reversal of the trend as typified by the adoption of Justice Nnaemeka-Agu’s dissenting

opinion in Agu’s case by the same Supreme Court in Ojibah vs. Ojibah (1991: 296), which has

now been re-reversed in Egbesima vs. Onuzuike (2002: 466). Ezejiofor (1997: 29) has in all

identified six ingredients distilled by the courts through the years, and used in varying

combinations and they are:

(1) The voluntary submission by parties to arbitration.

(2) Submission to bodies or persons recognised as having judicial authority under the custom

of the parties.

(3) Agreement by parties beforehand to be bound by the decision of the arbitral tribunal.

(4) Conduct of the arbitral proceedings in accordance with the custom of the parties.

(5) Publication of the award.

(6) Acceptance of the arbitral award by the parties.

Ladapo (2008) has identified a seventh ingredient, namely:

(7) Non-withdrawal of any party before publication of the award by the arbitral tribunal.

It appears that the preponderance of customary arbitration disputes which have come before the

Nigerian appellate courts for adjudication have originated from the Igbo customs of south-eastern

Nigeria, which though bear keen similarities to one another, are not absolutely homogenous, nor

are they wholly representative of the customs of other communities in Nigeria. Now, it is from

these Igbo customs that the Nigerian courts have sought to deduce universal ‘ingredients’ of

customary arbitration. With the utmost respect to their lordships, the trend of crystallising a set of

universal ingredients for ‘arbitral’ customs practiced in more than one community is antithetical to

the very nature of customs, which are variety and peculiarity.

This is where the battle between the law courts and customs continue to rage over arbitral matters,

with the courts trying to impose what they conceive as ingredients to arbitral customs from all

customary law backgrounds in Nigeria. The use of the term ‘ingredients’ as universally applicable

to the subject matter of customary arbitration is a misnomer with respect to the individuality and

distinctiveness of the several customary law traditions under which arbitration is conducted. A

more appropriate approach it is suggested, is for the courts to allow each custom to dictate its own

“ingredients” and for the court to only formulate guidelines which will ensure the freedom of

individuals to participate in customary arbitrations and that such arbitral processes are not contrary

to any statute, natural justice, equity and good conscience Ladapo (2008: 126ff).Page 8 of 20

Igbokwe (1997: 206ff) strongly supports the decision of the majority of the court in Agu’s case on

the applicability of the doctrine of res judicata to the decisions of valid customary arbitration. The

doctrine of res judicata both at common law and as codified in sections 54 and 55 of the Evidence

Act serves as a bar to further litigation over a dispute between or among parties or their privies,

where a dispute between or among them has been judicially adjudicated upon. However, Justice

Ogundare of the Supreme Court, has held the view in Igwego vs. Ezeugo (1999: 587-8) that a

customary arbitration award should only serve as material evidence to be tendered before a court

as a defence of estoppel. Ndukwe (1999: 196ff) on the other hand, stands against the application

of the doctrine of res judicata to land matters in particular, which are in the majority of disputes

submitted to customary arbitration proceedings which have gone before the courts. Ndukwe

premises his opinion on the sacred nature of land to Nigerians and the uncertainties which plague

dispute resolution mechanisms.

It is clear from the literature reviewed above, that questions on the existence, ingredients and

judicial effect of customary arbitration still lie unresolved, especially in view of the divergent

judicial decisions on the subject. It is also worthy of note that of all the literature reviewed, only

the works of Matson, Allott and Morton-Williams were the results of field surveys, the first two of

which were carried out among the Akans in Ghana; and the last of which though carried out in

Oyo, Nigeria, did not have customary arbitration as its main focus. There is therefore a gap in the

research and literature, particularly as it affects the nature of customary arbitration in Nigeria,

same being the dearth of field surveys which can serve as tests to verify the divergent judicial

decisions on the subject. It is hoped that scholars will beam their research lights on this gap and

bring the much needed illumination.

3.0 JUJU/OATH-TAKING ARBITRATION LEGAL RECOGNITION OF JUJU

ARBITRATION

Customary arbitration through oath-taking practices have been recognised by the courts and have

been referred to in some judicial decisions severally as “oath-taking arbitration”, “spiritual

arbitration” and “juju arbitration”. Chukwuemerie (2002: 216) posits that oath-taking as a

conclusive manner of dispute resolution is no longer cognisable as customary arbitration. Kupolati

(2004) while acknowledging the judicial recognition of oath-taking arbitration has fervidly

contended in the wake of the publicity given to the Okija juju arbitration shrines with corpses

strewn all over, that such practice are barbaric and must be distinguished from the judicially

recognised concept of oath-taking arbitration, and that to equate the two will result in judicial

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anarchy. The question now is that, what is the difference? Oath-taking arbitration is just part of the

customary arbitral processes and every community has evolved its own process, which though

may bear similar features to oneanother.

-Legally recognised ingredients vis-à-vis juju arb

-Cultural Rights CFRN, ACHPR, UNDHR etc

4.0 THE PAST OF OATH-TAKING/JUJU ARBITRATION

Oath-taking is not peculiar to Nigeria and indeed to African cultures alone. Most cultures the

world over have at one time or the other evolved the practices of oath-taking (Silving Helen:

1959). Similarly, in almost every culture where oath-taking has evolved, it has been employed in

dispute resolution, inclusive of arbitral processes (Calhoun 1919: 20). The extent to which oath-

taking is used at different times and in diverse cultures is what varies. The Greeks, as elevated as

their culture ascended, still held firm religious beliefs and hence utilised oath-taking in dispute

resolution mechanisms including arbitration. The countries of the Western world have largely

transited into a post-religious culture, which has removed the basis of oath-taking, which is

religion and the belief in the ability of the supernatural to intervene in the natural with visitations

of ill or calamity for the oath perjurer. Instead, the Western world while retaining the vestiges of

oath-taking in judicial mechanisms, legislate a physical visitation of penal sanction for discovered

perjurers. The African on the other hand is still deeply religious and holds strongly to the tenets of

oath-taking and the fear of metaphysical visitation of calamity (cf. Mirhardy 1991: 78-83).

Morton-Williams (1960:362 ff) has reported that in the ancient Oyo empire, though the Alaafin of

Oyo was the absolute monarch and the final arbiter, where disputes or issues arise between the

Alaafin and the Oyomesi (high chiefs), the only forum for redress open to the Oyomesi was to

lodge a complaint with the Ogboni cult of which the Oyomesi were members and the Alaafin

maintained a vicarious membership through the Osi Efa (the king’s eunuch on the left). And the

Alaafin though being absolute, submits to the Ogboni for the dispute between him and the

Oyomesi to be arbitrated upon and when a decision is reached, it is regarded as binding and the

fear of metaphysical sanction is invoked through oath-taking sealed with blood sacrifices to ensure

that all parties abide by the decision. An Alaafin who does not submit to the Ogboni in its arbitral

capacity risks the peril of other violent self-help alternatives such as mutiny, insurrection and

outright war.

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The Ogboni is structured in such a way that it has two arms: the mystical and the arbitral arms.

The Oluwo (Lord of Mysteries) is the head of the mystical arm, while the Apena (Way Maker) is

heads the arbitral arm. When a dispute is submitted for arbitration of the Ogboni, the Apena takes

the complaint, listens to the parties and assesses their evidence in a judicial manner. Where there

is insufficient evidence on all the sides however, the Oluwo is called upon to administer an oath of

rebuttal. Similarly, where a decision has been reached on evidence and there is a fear that the

parties may not adhere to it, the Oluwo is also called in to administer the oath of commitment on

all the parties. It must however be noted that in the pre-colonial era, where the court of a Yoruba

king is weak, in terms of enforcement and in matters of capital offences, Ogboni wield judicial

powers (Morton-Williams 1960) and (Akintola 1992).

At the turn of the 20th Century, in December 1901, the Ibini Ukpabi also Known as the Long Juju

of Arochukwu in the Cross river area of South-South Nigeria was sacked by a British

expeditionary force under the leadership of Colonel Montanaro, during the governorship of Sir

Ralph Moor. The Long Juju was known and feared by the local inhabitants of Arochukwu as an

oracle which could adjudge between disputants and consume perjurers. The British colonial

administration were however of the opinion that the Juju was as front for a slave sourcing racket,

hence its destruction.

5.0 JUJU AND OTHER OATH-TAKING ARBITRATIONS IN THE PRESENT

To a significant extent, the classes (inter and intra-party, inter and intra-community conflicts) and

types (domestic, land and criminal wrongs) of disputes submitted for oath-taking arbitrations have

remained the same. It must however be noted that the current Constitution of the Federal Republic

of Nigeria (1999: Section 36[1]) prohibits the criminalisation of any wrong, except by an

enactment of a legislative assembly. It is also a principle of the English Common Law, applicable

in Nigeria, that all criminal disputes are not arbitrable, as that will be against public policy (R vs.

Blakemore 1850). The question is which public, the English or Nigerian public? Because it is clear

that in the pre-colonial era and even up till today, Nigerians still submit disputes even those where

criminal elements are present, to arbitrations at shrines. In South-Western Nigeria among the

Yoruba, matters of theft are regularly submitted to priests at Sango shrines for redress.

Other classes of disputes which were not hitherto tabled at shrines for Juju arbitration, but which

are now being submitted to the shrines include political disputes within the western style

democratic structures, church administration disputes, western styled commercial disputes and

disputes arising from illicit trafficking of drugs and persons.

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Ogwugwu’s of Okija,

Uba – Ngige

Daniel – House of Assembly

Andoni vs. Bonny 1869,

The foregoing notwithstanding, a trend is beginning to emerge where oath arbitration users are

shifting their orientation of the potent spiritual beliefs from African traditional gods to deities

introduced from other parts of the world. Customs, which have been termed the by the court in

Owonyin vs. Omotosho (1961: 309) as “a mirror of accepted usage” have reflected this new trend

in the choice of objects and subjects of oaths employed during customary arbitrations. In the last

century at least, the Christian and Islamic faiths have gained a large following and their adherents

jointly, constitute over 95% of the Nigerian population. Oath-taking using the Bible as the oath

object and Jehovah as subject of oathing are on the increase. A Roman Catholic priest, Revered

Father Emmanuel Edeh has been widely consulted since the 1970s for his Bible oath-taking

object, which is reputed to possess the same potency of death to perjurers as the native ofo and

other jujus. It is also worthy of note that Father Edeh has been a champion of Igbo metaphysics

since the late 1960s.

An incident of this Bible oathing before Father Edeh came to judicial attention in the case of

Raphael Onwuanumkpe vs. Reuben Onwuanumkpe & Another (1993: 186ff), where two brothers

disputing over patrimony first tabled their dispute before a Western styled court. Before hearing

commenced in the matter, the two parties narrowed down the dispute to the contention of the elder

brother, that their father had transferred the land in dispute to him during his life time, which

assertion the younger brother denied. At this stage, they both agreed and sought the leave of the

presiding judge to refer the issue for oath-taking arbitration before Father Edeh on account of their

Christian faith. The presiding judge consented and referred the matter as requested. At Father

Edeh’s pastorium, things took a different turn when the epiphany came upon the elder brother that

the oath was on pain of death, he grew cold feet and declined proceeding to take the oath for fear

of his life. Father Edeh communicated the transpiring to the court, whereupon the court entered

judgement in favour of the younger brother, in accordance with the principle of oath-taking

arbitration that a party refusing to take an oath previously agreed to will be adjudged to hold the

weaker position in the dispute and hence loose his claim. The elder brother then appealed against

the decision of the lower court and the court of appeal reversed the decision on the ground that the

concept of “spiritual arbitration” is unknown to Nigerian law. It is doubtful that the court of appeal

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will reach this same conclusion if a similar matter goes before it now, in the wake of the Supreme

Court decision in Onyenge, recognising oath-taking arbitration. Also, Islamic customs and

traditions are not without oath-taking practices. The oath of rebuttal (Yaminul inkar) of the Islamic

Sharia law is widely revered by Muslims,(cf. Oba II: 143ff) and it is used where there in no

conclusive evidence adduced by any of the parties to a dispute. (Awaki vs. Umaru 2007: 983)

Challenges of Juju Oath-taking Arbitration

Over the years, a number of issues have been raised as being the challenges of juju arbitration. The

four most germane of these issues are: First, that the oath-taking arbitration process is not an open

process, hence subject to rational inquiry. Second, that because of its ritualistic nature, these

processes are susceptible to quackery and deceit (). Third, that the outcomes of customary

arbitrations (inclusive of juju oath-taking arbitration) are non-binding and as such ought not be

properly referred to as an “arbitral” mechanism (Allott); and Fourth, that the Nigerian courts have

through their decisions created hurdles and onerous requirements which must be scaled and met

before they recognise the outcome of this dispute management process (Oba: 2008).

On the first issue, it is admitted that the mechanisms of Juju arbitration are not open, but even the

seemingly open western styled judicial system is only open and cognizable to jurists, lawyers and

those who study that system. Hence, the more traditional dispute resolution systems are studied,

the more light will be shed on them. Ojo (1981: 335) has reported that in Lagos in the 1920s, a

certain Dr. Sapara was respected by the courts for his expertise in matters of Juju and that at in a

hearing in the November 1929 Assizes of Lagos, Dr. Sapara was called upon by the court to give

expert evidence on the nature of the Juju charms found on two robbery suspects standing trial

before it.

On the second issue, it is a universal truth that in all fields of human endeavour, there are always

some individuals who are unqualified in profession they hold themselves out to be experts and

thus practice quackery. This is also applicable to Juju arbitration. In recent years, the newly

established anti-fraud agency of Economic and Financial Crimes Commission (EFCC) has

apprehended and closed down the operations of rackets that have held themselves out as Juju

priests with powers to investigate issues and arbitrate over disputes. However, in time, the rule of

market economics is sure to weed out quacks and charlatans in the Juju arbitration market. This is

because as disputants test different service providers, they form opinions from their experiences

and these opinions not only inform their future decisions on whether or not to patronise the same

Juju shrine, but also gets passed on to others they interact with. The net effect of this is that the

inefficient arbitral service providers in terms of result and credibility, will get passed over by

patrons and eventually die out. (Caplan 1993)

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Furthermore, in arbitration, the general rule is that as the parties have freedom of choose their own

arbitrator, but once chosen, they are bound by his actions (Foli vs. Akese 1930). This being the

position, then there in an implied duty on disputants to conduct due diligence checks on whichever

prospective Juju or shrine they consider to submit their disputes to for arbitration. The reason for

this is to find out which shrine or Juju is most suited for their dispute in terms of experience,

efficiency, economy and credibility.

The third issued raised has received some consideration in the discussion on the ingredients

of customary arbitration. However, suffice to state here that despite the opinions of Western and

Western oriented African scholars, binding dispute resolution mechanisms were evolved by

Africans and are still in use in many African communities today. And Juju arbitration is one of

these binding dispute resolution mechanisms. It is hard to conceive of a point in the Juju

arbitration process where a disputant can resile and maintain that his oath is no longer binding.

After the oath, comes the visitation of death or calamity upon a perjurer and the messengers of

death or calamity believed to be metaphysical are not subject to discussions of any kind. It is also

difficult to imagine how an oath taker is supposed to enter into negotiations with the Reaper, on

his decision to resile. Justice Blackall while delivering the decision of the West African Court of

Appeal in Kwasi vs. Larbi (1950: 82) had the right idea when he stated that: “... the general

principles of native customary law are based on reason and good sense and it would take alot to

convince me that Akan customary law is so repugnant to good sense as to allow the losing party to

reject the decision of arbitrators to whom he had previously agreed.”

Finally on the fourth issue raised, despite the odyssey of customary arbitration qua Juju arbitration

at the superior courts of Nigeria, the practitioners and persons who submit their disputes to Juju

arbitrations have no concern for what the courts have said. In fact they are largely unaware of the

conflicting and inconsistent pronouncements of the courts as they daily flock to the shrine in

search of justice. It is only the few Black Swan (Taleb 2007) outcomes of these arbitrations which

become “trouble-cases” which come to the courts that are subjected to the odyssey of the judicial

system. The multitudes which are “trouble-less” go unnoticed, because they have effectively

delivered justice. (Holleman 1973) If this is the position, then it may be expected that people will

still continue to seek justice at Juju shrines despite the pronouncements of the courts. Today, the

losing party may approach the court as the last resort of a sinking man to grasp at straws, but

tomorrow he will be back at the shrine over another dispute to find out if the gods will favour him.

So goes the ding-dong tripartite affair of the disputants, shrines and the courts. It is opined that

when the parties beckon of the courts to intervene in their customary arbitral awards, the courts

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should not interfere with the freedom of citizens to forum-shop for their civil justice needs; all the

courts should do is stand as guardians of justice and not allow unscrupulous individuals to rape

her, at whichever forum she is called upon.

6.0 THE FUTURE OF JUJU AND OTHER OATH-TAKING ARBITRATIONS

It is foreseeable that Nigerians and indeed West Africans will continue to wax stronger in their

religious zeal or at least maintain the current fervour, in view of the socio-political and economic

challenges plaguing the continent. By the same token it is also foreseeable that oath based or oath

spiced arbitration will continue to be resorted to for answers to the questions of truth and justice.

The possible range of disputes to which oath-taking arbitration will be deployed will only be

limited by the imaginations of its users and researchers. It is anticipated that more day to day

disputes arising from modern and Western styled transactions will be increasingly added to the

repertoire of already existing oath arbitrable disputes. The media for administering this specie of

arbitration will also broaden to include the telephone, internet, and video conferencing of peoples

in the Diaspora. It is instructive to note that currently, online Ifa divination is available. Oath

based arbitration through all these media are foreseeable because of the belief that the spirit agents

who infuse the oaths with potency are ubiquitous and become potent upon being let airborne.

Again, the context in which oath based arbitrations will be used will also extend. They may be

used in Truth and Reconciliation Commission (TRC) type conflict resolution models to elicit

“objective truths”, uncoloured by personal motives. These uncoloured truths are the essence of the

TRC models, with the aim of recording history and bringing closure to the painful experiences of

victims (Freeman M. and Hayner P. B. 2006: 394).

Another stream to consider is the fact that customary arbitration is Nigeria’s and to a large extent

West Africa’s answer to the Rwanda’s Gacaca; and oath based arbitration is an important part of

that answer. This suggests that the circumstances to which Gacaca was employed as post-

genocide justice machinery in Rwanda could also be fitting circumstances to employ customary

arbitration and oath-based arbitration. This is in order to take advantage of the merits of speed,

wide spread nature, affordability, community participation and opportunities for truth-telling and

communal healing which have also been identified in the Gacaca process. (Sarkin 2001: 164 ff),

(Corey and Joireman 2004: 81 ff). Oath-taking arbitration is especially fitting in the Africa

context, where a large number of political leaders, warlords, militants and rebels fastidiously hold

believes in the supernatural, and have in their arsenals, in addition to machine guns and rocket

propelled grenades, Juju charms and oaths to secure the allegiances of their comrades and fighters

preying upon the instrument of fear. The likes of Mobutu Sese Seko, Charles Taylor and Fodey

Sankoh were known to have used oaths and the fetish as major components of their political

organising and military campaigns. (Ellis 2003), (McCormic 1994).

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Yet another idea to ponder upon is the possibility of creating an oath-taking arbitration chamber as

part of the International Criminal Court (ICC) mechanism. This oath-taking chamber could serve

as an alternative track, optional to complainants and defendants who share common beliefs in the

potency and efficacy oath-taking as a means of encouraging the telling of truth and spiritual

retributive justice. This thought is informed by one of the goals of the ICC which is recording

factual accounts of war crimes. This proposition may appear strange to persons without an

understanding of mindset of peoples who believe in and stand in awe of Juju oaths. The belief

usually is so strong that it evokes the telling of unblemished truth. An oath-taking arbitration

chamber might be a significant African contribution to international criminal justice system.

On a final peek into the future, it will appear that if the proposition of some scholars are correct,

that there is an inversely proportional relationship between the religious fervour of a on the one

hand and the level of infrastructural development and economic empowerment on the other, then it

could be concluded that as Nigerians attain greater economic power, their quest for the religious

will wane. Flowing from the foregoing then, if religion which is the substratum of oath-taking

arbitration continues to wane, then the superstructure (oath-taking arbitration) may

correspondingly pine until it sails into oblivion.

6.0 CONCLUSIONS

Some scholars have opined that reports of traditional African conflict management methods may

be “mere smacks of the ‘noble savage’ of romantic literature” (Zartman: 2000) and others with

particular reference to oath-taking arbitration, have shelved it up as a relic of the past with no

place in modern civilization (Kupolati: 2005). A death knell has also been said to be delivered to

customary cum oath-taking arbitration by the superior courts in Nigeria (Oba: 2008). This discuss

has established the place of oath qua juju arbitration as a vibrant and viable traditional dispute

management mechanism in Nigeria’s past and present. And with or without the benediction of

courts, “the unbelieving” and “the uneducated” (in the realm of oath arbitration) it appears that its

adherents will continue to resort to its mechanisms in search of justice. The most plausible action

is to keep it out in the open, subject to public censure, academic study and judicial the control of

its excesses. Driving it underground through proscription may have more dire consequences, for as

it is commonly said: “where secrecy abounds, vice is not far off”. Leaving it above ground may

lead to its refinement and the development of more novel and constructive ways of deploying its

mechanisms to the management of both local and international conflicts. For as recognised by

Chief Justice Osborne in Lewis vs. Bankole (1908: 100-101): that “[o]ne of the most striking

features of West African native custom ... is its flexibility; it appears to have been always subject

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to moves of expediency, and it shows unquestionable adaptability to altered circumstances without

entirely losing its character.”

Quamie-Kyiamah A. The Customary Oath in the Gold Coast. African Affairs, Vol. 50, No. 199 (Apr., 1951), pp. 139-147

P141

The oath is done after a legal inquiry and taken prior to giving evidence (or statement) in Court or before a customary body of arbitrators.

P142

(5) It was customary for a person to swear an oath to bind himself to abide by the decision of arbitrators or to fulfil an undertaking according to an agreement reached before witnesses.

P146

It is unlawful to swear a fetish oath in Ghana because if the antecedent deceit and extortion associated with the keepers or custodians of such oath.

E. S. Nwauche The Right To Freedom Of Religion And The Search For Justice Through The Occult And Paranormal In Nigeria 16 RADIC (2008) pp.35 – 55.

“There is no doubt that were the shrine involved in Onyenge to reach the courts again, the customary arbitration that it has facilitated may not be upheld.” p. 55

Malan, Jannie. Conflict Resolution Wisdom From Africa. Durban, AccordIn studying any form of conflict mechanism, the social context is important, particularly the values, beliefs and fear of ostracization and metaphysical retribution. Pp 20-21, 22-23

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Allott, A. N. (1998) Customary “Arbitrations” in Nigeria: A Comment on Agu v Ikewibe Journal of African Law Vol. 42. Pp. 231-234.

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Chukwuemerie, A. I. (1988) The Recent Odyssey of Customary Law Arbitration and Conciliation in Nigeria’s Apex Courts 5 Abia State Univ. Law Journal, (Compiled as chapter 9 in Chukwuemerie A. I. (2002) Studies & Materials in International Commercial Arbitration, Port Harcourt, Lawhouse Books.)

Corey, A. and Joireman, S. F. (2004) Retributive Justice: The Gacaca Courts in Rwanda, African Affairs No. 103, pp. 73–89.

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Edeh, E. (2007) Towards an Igbo Metaphysics, Muniteman Press, Brandbury, England

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Ellis, S. (2003) Young Soldiers and the Significance of Initiation: Some Notes from Liberia http://www.ascleiden.nl/pdf/conference24042003-ellis.pdf

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Ezejiofor, G. (1993) The Prerequisites of Customary Arbitration, Journal of Private and Property Law, Vol. 16, 17 & 18 pp. 19-29.

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Holleman J. F. (1973) Trouble-Cases and Trouble-Less Cases in the Study of Customary Law and Legal Reform: Law and Society Review, Vol. 7, No. 4, pp 599.

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Matson, J. N. (1953) The Supreme Court and the Customary Judiciary Process of in the Gold Coast, I.C.Q.L., 21.

McCormick, S. H. (1994) Zaire II: Mobutu, Master of the Game. Current History 93.

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Oba A. A. (2003) Traditional and Islamic Oaths in Judicial Proceedings in Nigeria. 1 UDUS Law Journal 143–161.

Oba A. A. (2008) Juju Oaths in Customary Law Arbitration and their Legal Validity in Nigerian Courts Journal of African Law, 52, 1 (2008), 139–158

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CITATION OF COURT CASES REFERRED TO

Agu vs. Ikewibe, (1991) 3 Nigeria Weekly Law Report (hereafter referred to as NWLR) (Part 180)

p.385 at 406 paras E-F.

Assampong vs. Amuaku & Ors (1932) 1 West African Court of Appeal (hereafter referred to as

WACA) p. 192 at 201.

Awaki vs. Umaru (2007) All Federation Weekly Law Reports Part 387 p. 975 at 983 Para A.

Eguere Inyang vs. Simeon Essien, (1957) 2 Federal Supreme Court 39.

Foli vs. Akese, (1930) 1 W.A.C.A. 1.

Kwasi v. Larbi (1950) 13 WACA p. 76 at 80.

Lewis vs. Bankole (1908) 1 Nigeria Law Reports 81 at 100-101

Mbagbu vs. Agochukwu, (1973) 3 East Central State Law Reports p.90.

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Odonigi vs. Oyeleke, (2001) 6 NWLR Pt 708 p.12 at 27-8 Paras G-A.

Owonyin vs. Omotosho (1961) 1 All Nigeria Law Reports 304 at 309.

Philip Njoku vs. Felix Ekeocha (197....)

Regina vs. Blakemore (1850) 14 Queens Bench 544.

Raphael Onwuanumkpe vs. Reuben Onwuanumkpe & Anor. (1993) 8 NWLR Part 310 p. 186.

Article 29 African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act Chapter A9 Laws of the Federation of Nigeria 20047.     To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well being of society

Oaths are used both as pre-decision truth verifiers and as post decision seals.

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