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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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? Page 2 of 20

Onuiyi: Wow! But Prof is this ominous Juju arbitration recognised by law. Achebe: Well. Onuiyi: One-year waiting period? Prof. Achebe: Of course. when such beliefs are common. Onuiyi: What sort of calamity are we talking of here? Prof. even the polygraph test isn’t full proof. But when a whiteman has seen and experienced Juju first hand. if he or any member of his immediate family die or they receive the visitation of grave calamity by Ajo mmuo (Malevolent spirits). Page 3 of 20 . The West has lost its belief in the metaphysical. cheaper and they understand it. the proceedings are adjourned for the one-year waiting period. better for the indigenes because it is faster.. then he adjudged to have perjured and he loses his claim. and are taken under the pain of death. I have my own eyes. 34) who wrote after his Ghana sojourn. Juju oaths are potent and many have lost their lives on that path. No one will know if a person is lying or telling the truth. On the other hand.. in his own mysterious ways has harnessed one of the strangest powers of all – the thing they call Juju. how does a person die from simply perjuring.. After an oath is taken. Achebe: Not by any means! Ask Wole Soyinka. 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. (Awolalu: 1969). maybe you should talk to an African Law specialist or a traditional conflicts’ analyst.” (Onyenge vs. Achebe: Yes! To find out if the oath-taker will survive his self-curse. Ogun (god of Iron) and Aiyelala (goddess of justice) who is their answer to Themis. Achebe: This is the problem with the Western culture and its material empiricism. and this varies from locality to locality. my own intelligence to depend on. which is still very real in Africa. Onuiyi: Why do people still submit to the Juju arbitration in this 21st Century? Prof. If he does. But in essence the oath is a conditional self-curse.. Achebe: Young man! Young man! These are too many questions. Ebere 2004) Onuiyi: Are these Juju arbitrations peculiar to the Igbo people? Prof. that: if anyone had told me then that Black Magic. not [sic] being bogged down by the unnecessary and avoidable technicalities that beset the English [system]. can one use it for other disputes and will it still continue to hold in the future? Prof. Onuiyi: It must all be superstition. my injuries to confront me every waking hour of my life. most likely because of the perceived delay and corruption in the western styled justice system.Prof. Achebe: So young man you have no business toying with a Juju oath under the conception that it is “just” superstition. the Greek goddess of justice. The Yorubas approach the shrines of these gods for oath-taking arbitration in search of justice. The arbitrator then declares him the winner and he must thereafter make a public symbolic celebration of his success. Prof. he cannot deny it potency as was the case with Neal (1966: 13. is it binding. 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). or Juju. and ears to believe. Prof. would endanger my life almost continuously. There is no shred of doubt in my mind today that the African. Achebe: Oaths are serious things. invoking calamity on the oath-taker and his family in the event of him perjuring. [But]whatever (the) theories . then his oath was true and his claim just. And the Supreme Court of Nigeria “recognizes oath-taking as a valid process under customary law arbitration [because] it worked and still works. I would have laughed outright.

(1952: 80) etc. It might also happen that the losing party might reject the award as unfair to him.. investigated by arbitrators at a meeting held in accordance with native law and custom and a decision given. " The above decision of Justice Uwaifo found a ready ally in the earlier published opinion of Allott (1960: 126).. Simeon Essien. who opined that: “The term 'arbitration’…in the mouth of the African. Page 4 of 20 . Among the earliest judicial recognition of the concept of customary arbitration were the decisions on the Gold Coast (now Ghana) cases. Things are then as they were before the. However. (1973: 90) among others.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. (1988: 554) where Justice Uwaifo. ‘arbitration’ was made. Felix Ekeocha (197. so much as reconciliation of the two parties and removal of the disturbance of the public peace. an English scholar of African law. Amuaku & Ors (1932: 201) pronounced that: “.” The same has prevailed in a long string of authorities like Foli vs.. 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. Agochukwu. (1957: 39) Philip Njoku vs. The West African Court of Appeal. These lines of authorities were followed in by Nigerian courts in Eguere Inyang vs. Akese. by mutual consent..2. (1930: 1) Kwasi vs. surprisingly the Court of Appeal in 1988 adopted an extreme position in Okpuruwa vs. in Assampong vs.. refers to all customary settlements of disputes other than by the regular courts. it is binding on the parties and the Supreme Court will enforce such decision. Larbe. where matters in dispute between parties are.. by the West African Court of Appeal whose decisions were binding on Nigerian courts and still form part of Nigerian case law. The aim of such a transaction is not the rigid decision of the dispute and the imposition of penalties. Ekpokam..) and Mbagbu vs. 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.

with the overwhelming majority emanating from South-Eastern Nigeria. (1991: 406) held that : “It seems to me that Uwaifo. by overruling the reasoning of the majority decision in Okpuruwa’s case delivered by Justice Uwaifo. The debates have been engaged in over the definition of the concept “customary arbitration”. which operate on the same basis of voluntary submission.until a fresh attempt is made at reconciliation (perhaps by the intervention of a more powerful person as arbitrator)” The above notwithstanding. Ikewibe. These decisions have comprised of varying. Oguntade JCA dissented on this point. Oyeleke. over fifty decisions have been rendered on the subject by Nigeria’s appellate courts. In the last sixty years. held the view that customary arbitration was unknown to Nigerian law. I do not share the view that natives in their own communities cannot have customs. 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. JCA who wrote the judgement of the court. These differing judicial opinions have in turn given rise to a robust debate by and scholars. and upholding Justice Oguntade’s dissenting opinion. 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. sometimes seemingly contradictory opinions on a wide variety of issues.” The Supreme Court in several subsequent decisions has come to the rescue of customary arbitration. The right to freely choose an arbitrator to adjudicate with binding effect is not beyond our native communities. (2001: 27-8). the propriety of the terminology “arbitration” as it applies to African customary dispute resolution Page 5 of 20 . This practice has over the years become so strongly embedded in the system that they survive today as customs. The Supreme Court in Agu vs. It is somewhat of a surprise in view of the evidence before the learned trial justice of the Court of Appeal. Review of Literature on Customary Arbitration The predominant voice in the discourse on customary arbitration in Nigeria has been that of the judiciary. the dissenting opinion of Justice Oguntade in the same Okpuruwa’s case (1988: 586-7) is instructive. They referred them to elders or a body set up for that purpose.” The Supreme Court has further confirmed the existence of customary arbitration in Nigeria through its decision in Odonigi vs.

and from which either party is free to resile at any stage of the proceedings. 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. the distinction if any.” (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. and the ingredients required for valid customary arbitrations. distilled by the courts from its features. which becomes binding only after such signification of its acceptance. nebulous and incapable of any precise definition’ and that its definition can only be hazarded from its attributes. All the arbitral mechanisms have the hallmarks of voluntary submission to nonjudicial arbitral tribunals or judicial institutions acting in non-judicial capacities. and having needs for secure social structures. Ikewibe that: “. 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.” (Emphasis supplied) Page 6 of 20 . Watner (1997) has stated that all societies being organic in nature. Ndukwe (1999: 191) has opined that ‘regrettably enough. and the agreement to be bound by such decision or freedom to resile where unfavourable. between customary arbitration and customary law arbitration. Byzantine. Igbokwe (1999: 2003) has argued that the definition of customary arbitration expounded by the Supreme Court of Nigeria in Agu vs.. 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.. at elaborating on the issues written on as identified above. to regulate relationships in diverse places and at different times in the absence of authority backed judicial systems or alongside such authorities. except that of the Chinese who believed that going to law or court was evil. As such. An attempt will be made hereunder. the phrase “customary arbitration” is generic. Greek. Roman. Islamic and Christian systems. the Jewish. have evolved their own forms of arbitration. characteristics and features.processes. On the issue of the definition of customary arbitration. 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.

and Ubangwu (1989: 64) agrees with them. Igbokwe (1997: 211) disagrees with the postulations of Elias and Allott and distinguishes between arbitration under customary law and negotiated settlements. 1999). Ubangwu (1989: 62). evidence have been led to demonstrate that parties regard the decisions of their arbitrators as binding. Furthermore. even after the decision of the intervening third parties. 1979 (now section 315 Constitution of the Federal Republic of Nigeria. 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. in a plethora of cases. Igbokwe on his own part posits that the arbiters need not be persons holding judicial authority. 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). Igbokwe (1997: 204ff) and Ndukwe (1999: 193) have all examined the constitutional validity of customary arbitration proceedings. particularly the expatriate judges for slipping into the error of equating the African mechanisms with the common law concept of arbitration. On the other hand. 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. Allott also berated the judicial officers. The trio of Matson (1953: 58). and that they mean the same thing. 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. However. it being a process of negotiated settlement. The distinction between mechanisms for negotiated settlement and arbitration spring from the diverging views on whether or not parties can withdraw at any time. Elias (1956: 212ff). 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.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”. 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. and infusing it with all the connotations of the English common law concept of arbitration. as against the requirement for post “arbitration” ratification of decision by the Nigerian superior Page 7 of 20 .

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. 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. which are variety and peculiarity. Conduct of the arbitral proceedings in accordance with the custom of the parties. Submission to bodies or persons recognised as having judicial authority under the custom of the parties. Acceptance of the arbitral award by the parties. nor are they wholly representative of the customs of other communities in Nigeria. which has now been re-reversed in Egbesima vs. are not absolutely homogenous. With the utmost respect to their lordships. with the courts trying to impose what they conceive as ingredients to arbitral customs from all customary law backgrounds in Nigeria. 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. namely: (7) Non-withdrawal of any party before publication of the award by the arbitral tribunal. it is from these Igbo customs that the Nigerian courts have sought to deduce universal ‘ingredients’ of customary arbitration. A more appropriate approach it is suggested. Onuzuike (2002: 466). Now. which though bear keen similarities to one another. Agreement by parties beforehand to be bound by the decision of the arbitral tribunal. Ezejiofor (1997: 29) has in all identified six ingredients distilled by the courts through the years. Publication of the award. 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. 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 Page 8 of 20 . Ladapo (2008) has identified a seventh ingredient.courts of record as typified in Agu’s case. Ojibah (1991: 296). and used in varying combinations and they are: (1) (2) (3) (4) (5) (6) The voluntary submission by parties to arbitration. This is where the battle between the law courts and customs continue to rage over arbitral matters.

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”. 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. Ndukwe premises his opinion on the sacred nature of land to Nigerians and the uncertainties which plague dispute resolution mechanisms. where a dispute between or among them has been judicially adjudicated upon. Justice Ogundare of the Supreme Court. has held the view in Igwego vs. However. and the last of which though carried out in Oyo. It is clear from the literature reviewed above.individuals to participate in customary arbitrations and that such arbitral processes are not contrary to any statute. the first two of which were carried out among the Akans in Ghana. only the works of Matson. Allott and Morton-Williams were the results of field surveys. ingredients and judicial effect of customary arbitration still lie unresolved. which are in the majority of disputes submitted to customary arbitration proceedings which have gone before the courts. 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. especially in view of the divergent judicial decisions on the subject. equity and good conscience Ladapo (2008: 126ff). did not have customary arbitration as its main focus. 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 Page 9 of 20 . 3. There is therefore a gap in the research and literature. particularly as it affects the nature of customary arbitration in Nigeria. Nigeria. Chukwuemerie (2002: 216) posits that oath-taking as a conclusive manner of dispute resolution is no longer cognisable as customary arbitration. same being the dearth of field surveys which can serve as tests to verify the divergent judicial decisions on the subject. stands against the application of the doctrine of res judicata to land matters in particular. 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. “spiritual arbitration” and “juju arbitration”. It is also worthy of note that of all the literature reviewed. Ndukwe (1999: 196ff) on the other hand. It is hoped that scholars will beam their research lights on this gap and bring the much needed illumination. that questions on the existence. natural justice.

The extent to which oathtaking is used at different times and in diverse cultures is what varies. Page 10 of 20 . -Legally recognised ingredients vis-à-vis juju arb -Cultural Rights CFRN. And the Alaafin though being absolute. 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. Mirhardy 1991: 78-83).0 THE PAST OF OATH-TAKING/JUJU ARBITRATION Oath-taking is not peculiar to Nigeria and indeed to African cultures alone. 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. and that to equate the two will result in judicial anarchy. Morton-Williams (1960:362 ff) has reported that in the ancient Oyo empire. ACHPR. 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.strewn all over. what is the difference? Oath-taking arbitration is just part of the customary arbitral processes and every community has evolved its own process. The question now is that. though the Alaafin of Oyo was the absolute monarch and the final arbiter. which though may bear similar features to oneanother. The countries of the Western world have largely transited into a post-religious culture. that such practice are barbaric and must be distinguished from the judicially recognised concept of oath-taking arbitration. as elevated as their culture ascended. Similarly. legislate a physical visitation of penal sanction for discovered perjurers. inclusive of arbitral processes (Calhoun 1919: 20). which has removed the basis of oath-taking. still held firm religious beliefs and hence utilised oath-taking in dispute resolution mechanisms including arbitration. the Western world while retaining the vestiges of oath-taking in judicial mechanisms. in almost every culture where oath-taking has evolved. 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. Most cultures the world over have at one time or the other evolved the practices of oath-taking (Silving Helen: 1959). submits to the Ogboni for the dispute between him and the Oyomesi to be arbitrated upon and when a decision is reached. where disputes or issues arise between the Alaafin and the Oyomesi (high chiefs). insurrection and outright war. The Greeks. 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). Instead. it has been employed in dispute resolution. UNDHR etc 4.

It must however be noted that in the pre-colonial era. applicable in Nigeria.The Ogboni is structured in such a way that it has two arms: the mystical and the arbitral arms. When a dispute is submitted for arbitration of the Ogboni. In South-Western Nigeria among the Yoruba. as that will be against public policy (R vs. At the turn of the 20th Century. It is also a principle of the English Common Law.0 JUJU AND OTHER OATH-TAKING ARBITRATIONS IN THE PRESENT To a significant extent. except by an enactment of a legislative assembly. 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. Similarly. the classes (inter and intra-party. to arbitrations at shrines. listens to the parties and assesses their evidence in a judicial manner. inter and intra-community conflicts) and types (domestic. The question is which public. while the Apena (Way Maker) is heads the arbitral arm. in December 1901. The British colonial administration were however of the opinion that the Juju was as front for a slave sourcing racket. hence its destruction. Other classes of disputes which were not hitherto tabled at shrines for Juju arbitration. Where there is insufficient evidence on all the sides however. in terms of enforcement and in matters of capital offences. 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. Nigerians still submit disputes even those where criminal elements are present. land and criminal wrongs) of disputes submitted for oath-taking arbitrations have remained the same. 5. Blakemore 1850). that all criminal disputes are not arbitrable. the English or Nigerian public? Because it is clear that in the pre-colonial era and even up till today. the Oluwo is also called in to administer the oath of commitment on all the parties. The Oluwo (Lord of Mysteries) is the head of the mystical arm. the Apena takes the complaint. but which are now being submitted to the shrines include political disputes within the western style Page 11 of 20 . where a decision has been reached on evidence and there is a fear that the parties may not adhere to it. The Long Juju was known and feared by the local inhabitants of Arochukwu as an oracle which could adjudge between disputants and consume perjurers. during the governorship of Sir Ralph Moor. the Oluwo is called upon to administer an oath of rebuttal. matters of theft are regularly submitted to priests at Sango shrines for redress. Ogboni wield judicial powers (Morton-Williams 1960) and (Akintola 1992). where the court of a Yoruba king is weak.

The elder brother then appealed against Page 12 of 20 . Uba – Ngige Daniel – House of Assembly Andoni vs. The presiding judge consented and referred the matter as requested. where two brothers disputing over patrimony first tabled their dispute before a Western styled court. 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. Bonny 1869. Revered Father Emmanuel Edeh has been widely consulted since the 1970s for his Bible oath-taking object. 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. Before hearing commenced in the matter. Father Edeh communicated the transpiring to the court. Oath-taking using the Bible as the oath object and Jehovah as subject of oathing are on the increase. he grew cold feet and declined proceeding to take the oath for fear of his life. At this stage.democratic structures. which have been termed the by the court in Owonyin vs. the Christian and Islamic faiths have gained a large following and their adherents jointly. Reuben Onwuanumkpe & Another (1993: 186ff). church administration disputes. that their father had transferred the land in dispute to him during his life time. which is reputed to possess the same potency of death to perjurers as the native ofo and other jujus. A Roman Catholic priest. In the last century at least. An incident of this Bible oathing before Father Edeh came to judicial attention in the case of Raphael Onwuanumkpe vs. It is also worthy of note that Father Edeh has been a champion of Igbo metaphysics since the late 1960s. whereupon the court entered judgement in favour of the younger brother. Ogwugwu’s of Okija. western styled commercial disputes and disputes arising from illicit trafficking of drugs and persons. which assertion the younger brother denied. constitute over 95% of the Nigerian population. 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. things took a different turn when the epiphany came upon the elder brother that the oath was on pain of death. 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 two parties narrowed down the dispute to the contention of the elder brother. Customs. At Father Edeh’s pastorium.

The oath of rebuttal (Yaminul inkar) of the Islamic Sharia law is widely revered by Muslims. that the oath-taking arbitration process is not an open process. it is admitted that the mechanisms of Juju arbitration are not open. Umaru 2007: 983) Challenges of Juju Oath-taking Arbitration Over the years. in time. 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). 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. there are always some individuals who are unqualified in profession they hold themselves out to be experts and thus practice quackery. but even the seemingly open western styled judicial system is only open and cognizable to jurists. The net effect of this is that the Page 13 of 20 . Also. but also gets passed on to others they interact with. Second. in the wake of the Supreme Court decision in Onyenge. Islamic customs and traditions are not without oath-taking practices. the more light will be shed on them. and Fourth. The four most germane of these issues are: First. It is doubtful that the court of appeal will reach this same conclusion if a similar matter goes before it now. hence subject to rational inquiry. the more traditional dispute resolution systems are studied. it is a universal truth that in all fields of human endeavour. Third. 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. On the first issue. Oba II: 143ff) and it is used where there in no conclusive evidence adduced by any of the parties to a dispute. lawyers and those who study that system. On the second issue. 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).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. a certain Dr. 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. that because of its ritualistic nature.(cf. This is because as disputants test different service providers. these processes are susceptible to quackery and deceit (). Dr. the rule of market economics is sure to weed out quacks and charlatans in the Juju arbitration market. In recent years. Hence. a number of issues have been raised as being the challenges of juju arbitration. Ojo (1981: 335) has reported that in Lagos in the 1920s. (Awaki vs. This is also applicable to Juju arbitration. However. recognising oath-taking arbitration. 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.

suffice to state here that despite the opinions of Western and Western oriented African scholars. then it may be expected that people will still continue to seek justice at Juju shrines despite the pronouncements of the courts. economy and credibility. However. This being the position.inefficient arbitral service providers in terms of result and credibility. Akese 1930). And Juju arbitration is one of these binding dispute resolution mechanisms. but once chosen. will get passed over by patrons and eventually die out. the losing party may approach the court as the last resort of a sinking man to grasp at straws. Today. 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. 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. (Holleman 1973) If this is the position. 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. The reason for this is to find out which shrine or Juju is most suited for their dispute in terms of experience. on his decision to resile. efficiency. 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... Justice Blackall while delivering the decision of the West African Court of Appeal in Kwasi vs. the general rule is that as the parties have freedom of choose their own arbitrator. in arbitration. (Caplan 1993) Furthermore. 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 third issued raised has received some consideration in the discussion on the ingredients of customary arbitration.” 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. Page 14 of 20 . but tomorrow he will be back at the shrine over another dispute to find out if the gods will favour him. After the oath. It is also difficult to imagine how an oath taker is supposed to enter into negotiations with the Reaper. they are bound by his actions (Foli vs. 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. binding dispute resolution mechanisms were evolved by Africans and are still in use in many African communities today. because they have effectively delivered justice. The multitudes which are “trouble-less” go unnoticed. Larbi (1950: 82) had the right idea when he stated that: “.

This is in order to take advantage of the merits of speed. 2006: 394). Juju charms and oaths to secure the allegiances of their comrades and fighters preying upon the instrument of fear.So goes the ding-dong tripartite affair of the disputants. shrines and the courts. affordability. 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. It is opined that when the parties beckon of the courts to intervene in their customary arbitral awards. in view of the socio-political and economic challenges plaguing the continent. (Sarkin 2001: 164 ff). 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. the context in which oath based arbitrations will be used will also extend. and video conferencing of peoples in the Diaspora. with the aim of recording history and bringing closure to the painful experiences of victims (Freeman M. The media for administering this specie of arbitration will also broaden to include the telephone. 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. uncoloured by personal motives. (Corey and Joireman 2004: 81 ff). 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. at whichever forum she is called upon. 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. online Ifa divination is available.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. Oath-taking arbitration is especially fitting in the Africa context. They may be used in Truth and Reconciliation Commission (TRC) type conflict resolution models to elicit “objective truths”. all the courts should do is stand as guardians of justice and not allow unscrupulous individuals to rape her. where a large number of political leaders. wide spread nature. Again. warlords. These uncoloured truths are the essence of the TRC models. Charles Taylor and Fodey Page 15 of 20 . It is instructive to note that currently. in addition to machine guns and rocket propelled grenades. The likes of Mobutu Sese Seko. community participation and opportunities for truth-telling and communal healing which have also been identified in the Gacaca process. and have in their arsenals. militants and rebels fastidiously hold believes in the supernatural. 6. B. internet. This suggests that the circumstances to which Gacaca was employed as postgenocide justice machinery in Rwanda could also be fitting circumstances to employ customary arbitration and oath-based arbitration. the courts should not interfere with the freedom of citizens to forum-shop for their civil justice needs. and oath based arbitration is an important part of that answer. and Hayner P.

academic study and judicial the control of its excesses. vice is not far off”. for as it is commonly said: “where secrecy abounds. subject to public censure. then the superstructure (oath-taking arbitration) may correspondingly pine until it sails into oblivion. (McCormic 1994). if religion which is the substratum of oath-taking arbitration continues to wane. Driving it underground through proscription may have more dire consequences. then it could be concluded that as Nigerians attain greater economic power. 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. Bankole (1908: 100-101): that “[o]ne of the most striking Page 16 of 20 . 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. (Ellis 2003). have shelved it up as a relic of the past with no place in modern civilization (Kupolati: 2005). For as recognised by Chief Justice Osborne in Lewis vs. And with or without the benediction of courts.Sankoh were known to have used oaths and the fetish as major components of their political organising and military campaigns. 6. 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. An oath-taking arbitration chamber might be a significant African contribution to international criminal justice system.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. “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. their quest for the religious will wane. This oath-taking chamber could serve as an alternative track. 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. 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. The most plausible action is to keep it out in the open. 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. This thought is informed by one of the goals of the ICC which is recording factual accounts of war crimes. Flowing from the foregoing then. On a final peek into the future. it will appear that if the proposition of some scholars are correct. A death knell has also been said to be delivered to customary cum oath-taking arbitration by the superior courts in Nigeria (Oba: 2008).

the customary arbitration that it has facilitated may not be upheld. African Affairs. M. it appears to have been always subject to moves of expediency. Calhoun G. A. is its flexibility. Chukwuemerie. 55 Malan. 231-234. (2002) Studies & Materials in International Commercial Arbitration. (1992) The Reformed Ogboni Fraternity (ROF): Its Origin and Interpretation of Its Doctrines and Symbols. London. No. S. Akintola A.” p. Accord In studying any form of conflict mechanism. (1993) The Economics of Non-State Legal Systems Unpublished Thesis http://www. C. 1 p. A. B. Buttersworth & Co.gmu. Allott. I. 14 No. 22-23 REFERENCES Achebe. Classical Philology Vol.. (Compiled as chapter 9 in Chukwuemerie A. (1919) Papagpafh and Arbitration. I.) Page 17 of 20 . The Customary Oath in the Gold Coast. 42. pp.edu/departments/economics/bcaplan/thesis1. N. (1988) The Recent Odyssey of Customary Law Arbitration and Conciliation in Nigeria’s Apex Courts 5 Abia State Univ. 139147 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. Pp 20-21. London: Heinemann. Nwauche The Right To Freedom Of Religion And The Search For Justice Through The Occult And Paranormal In Nigeria 16 RADIC (2008) pp. Pp. Achebe C. particularly the values. (1962) Nigeria Magazine. “There is no doubt that were the shrine involved in Onyenge to reach the courts again.txt Accessed 29th May. A.features of West African native custom . 50. Caplan. 1951). 2007. 199 (Apr. Durban. N. the social context is important. 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.” Quamie-Kyiamah A.. Conflict Resolution Wisdom From Africa. Things fall apart.35 – 55. Allott. (1998) Customary “Arbitrations” in Nigeria: A Comment on Agu v Ikewibe Journal of African Law Vol. A. 20. Lawhouse Books. Ibadan: Valour (Publishing) Ventures Ltd. (1958). 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. beliefs and fear of ostracization and metaphysical retribution.. Port Harcourt. Jannie. E. and it shows unquestionable adaptability to altered circumstances without entirely losing its character. (1960) Essays in African Law. Vol. Law Journal.

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Article 29 African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act Chapter A9 Laws of the Federation of Nigeria 2004 7. 186. in the spirit of tolerance.Lewis vs. To preserve and strengthen positive African cultural values in his relations with other members of the society. dialogue and consultation and. Raphael Onwuanumkpe vs. Agochukwu. in general. Omotosho (1961) 1 All Nigeria Law Reports 304 at 309.12 at 27-8 Paras G-A. Oyeleke. Blakemore (1850) 14 Queens Bench 544. (1973) 3 East Central State Law Reports p. Bankole (1908) 1 Nigeria Law Reports 81 at 100-101 Mbagbu vs.. (2001) 6 NWLR Pt 708 p.90. Odonigi vs. Philip Njoku vs. Owonyin vs.. Reuben Onwuanumkpe & Anor.. 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. Page 20 of 20 . (1993) 8 NWLR Part 310 p.) Regina vs. Felix Ekeocha (197.

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