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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

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

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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).

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
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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
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

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democratic structures, church administration disputes, western styled commercial disputes and
disputes arising from illicit trafficking of drugs and persons.

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
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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
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
Page 13 of 20
inefficient arbitral service providers in terms of result and credibility, will get passed over by
patrons and eventually die out. (Caplan 1993)

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.
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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
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
Page 15 of 20
Sankoh were known to have used oaths and the fetish as major components of their political
organising and military campaigns. (Ellis 2003), (McCormic 1994).

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
Page 16 of 20
features of West African native custom ... is its flexibility; it appears to have been always subject
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, Accord


In 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

REFERENCES

Achebe, C. (1958). Things fall apart. London: Heinemann.

Achebe C. A. (1962) Nigeria Magazine.

Akintola A. (1992) The Reformed Ogboni Fraternity (ROF): Its Origin and Interpretation of Its
Doctrines and Symbols. Ibadan: Valour (Publishing) Ventures Ltd.

Allott, A. N. (1960) Essays in African Law, London, Buttersworth & Co.

Allott, A. N. (1998) Customary “Arbitrations” in Nigeria: A Comment on Agu v Ikewibe Journal


of African Law Vol. 42. Pp. 231-234.

Calhoun G. M. (1919) Papagpafh and Arbitration, Classical Philology Vol. 14 No. 1 p. 20.

Caplan, B. (1993) The Economics of Non-State Legal Systems Unpublished Thesis


http://www.gmu.edu/departments/economics/bcaplan/thesis1.txt Accessed 29th May, 2007.

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.)

Page 17 of 20
Corey, A. and Joireman, S. F. (2004) Retributive Justice: The Gacaca Courts in Rwanda, African
Affairs No. 103, pp. 73–89.

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

Elias, T. O. (1956) The Nature of African Customary Law, Manchester, Manchester University
Press.

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

Elombi, G. (1999) Customary Arbitration: A Ghanaian Trend Reversed in Nigeria 5 African


Journal of International and Comparative Law p. 803.

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

Ezejiofor, G. (1997) The Law of Arbitration in Nigeria, Ibadan, Longman Publishers.

Federal Government of Nigeria (1979) Constitution of the Fedral Republic of Nigeria. Lagos:
Government Printer.

Federal Government of Nigeria (1999) Constitution of the Fedral Republic of Nigeria. Lagos:
Government Printer.

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.

Freeman M., Hayner P. B. (2006) Truth Telling. In C. Heyns and K. Stefiszyn eds. Human Rights,
Peace and Justice in Africa: A Reader, Pretoria. Pretoria University Law Press.

Jell-Bahlsen, S. (1989) Names and Naming: Instances from the Oru-Igbo, Dialectical
Anthropology, 13: 199-207.

Kupolati, T. Okija: Crossroad in Legal Civilisation, (Oct 19th and 26th, 2004) Nigerian Guardian
Newspaper.

Ladapo, O. A. ‘Where Does Islamic Arbitration Fit into the Judicially Recognised Ingredients of
Customary Arbitration in the Nigerian Jurisprudence?’. African Journal of Conflict Resolution vol. 8
No. 2, 2008.

Malan, J. (1997) Conflict Resolution Wisdom From Africa. Durban, Accord.

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.

Morton-Williams, P. (1960) The Yoruba Ogboni Cult in Oyo, Africa, Journal of the International
African Institute, Vol. XXX, No. 4, pp. 362-374.

Page 18 of 20
Nassim, N. T. (2007) The Black Swan. The Impact of the Highly Improbable. New York: Random
House.

Ndukwe, O. U. (1999) Comparative Analysis of Nigerian Customary Land Law, Calabar,


University of Calabar Press.

Neal, J. H. (1966) Juju in My Life. London: Harrap.

Nwauche E. S. (2008) The Right to Freedom of Religion and the Search for Justice Through the
Occult and Paranormal in Nigeria. 16 RADIC pp.35 – 55.

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

Ojo J. D., (1981) Supernatural Powers and Criminal Law: A Study with Particular Reference to
Nigeria, Journal of Black Studies Vol. 11 No. 3. pp 327 – 348.

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

Sarkin, J. (2001) The Tension between Justice and Reconciliation in Rwanda: Politics, Human
Rights, Due Process and the Role of the Gacaca Courts in Dealing with the Genocide, Journal of
African Law, Vol. 45, No. 2, pp. 143-172.

Silving, Helen: (1959) The Oath: I. The Yale Law Journal vol. 68 p 1329 at 1330ff.

Ubangwu, A. (1989) Is Customary Arbitration Part of Nigerian Jurisprudence? Gravitas Review of


Business and Private Law, Vol. 2 No. 7, 62.

Watner, C. (1997) Stateless Not Lawless: Voluntarism and Arbitration, Voluntaryist, No. 84.
Accessed in June, 2004 from www.voluntaryist.com

Williams, Glanville (1961) Criminal Law, The General Part, 2nd Edn, Stevens & Sons, London p.
652.

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.

Page 19 of 20
Lewis vs. Bankole (1908) 1 Nigeria Law Reports 81 at 100-101
Mbagbu vs. Agochukwu, (1973) 3 East Central State Law Reports p.90.
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 2004
7. 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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