CUSTOMARY ARBITRATION, THE ROLE OF TRADITIONAL INSTITUTIONS AND THE DECONGESTION OF COURTS IN NIGERIA | T.S. Adebiyi, Esq., LL.M.

INTRODUCTION

The administration of justice in Nigeria continues to face significant challenges, particularly the persistent problem of delay and congestion within the formal court system. The increasing volume of litigation, procedural complexities, cost of legal proceedings and limited judicial resources have combined to make timely access to justice a continuing concern. Although the formal court system remains indispensable to the administration of justice and the protection of legal rights, the realities of the Nigerian justice system necessitate the exploration and strengthening of complementary mechanisms for the resolution of disputes.

One such mechanism is customary arbitration, an indigenous system of dispute resolution that predates the emergence of the modern Nigerian judicial system. Before the establishment of the formal courts, Nigerian communities developed mechanisms through which disputes were resolved by family heads, chiefs, elders and other persons recognised under the applicable customs as possessing the authority, wisdom and experience to intervene in disputes.

Traditional dispute resolution was often not exclusively concerned with determining a winner and a loser. It was equally directed towards reconciliation, restoration of social harmony, preservation of relationships and maintenance of peace within the community. In this respect, customary dispute resolution was closely connected with the social and communal structure of the societies in which it operated.

The emergence and development of the formal judicial system did not completely extinguish these indigenous mechanisms. Rather, Nigerian courts have, over several decades, recognised customary arbitration as part of Nigeria’s pluralistic legal system. The jurisprudence of the Supreme Court in AGU V. IKEWIBE (1991) 3 NWLR (PT. 180) 385, OHIAERI V. AKABEZE (1992) 2 NWLR (PT. 221) 1, AWOSILE V. SOTUNBO (1992) 5 NWLR (PT. 243) 514, EKE V. OKWARANYIA (2001) 12 NWLR (PT. 726) 181, EGESIMBA V. ONUZURUIKE (2002) 15 NWLR (PT. 791) 466, OKEREKE V. NWANKWO (2003) 9 NWLR (PT. 826) 592, NRUAMAH V. EBUZOEME (2013) 13 NWLR (PT. 1372) 474, AND OKALA V. UDAH (2019) 9 NWLR (PT. 1678) 562, among others, demonstrates the progressive development of the law relating to customary arbitration and the role of traditional institutions in dispute resolution.

The recent decision of the Supreme Court in ODOEMELAM V. OJIAVO (2026) 11 NWLR (PT. 2052) 397 further enriches this jurisprudence by demonstrating the significant consequences that may flow from the voluntary submission of parties to traditional arbitration.

This article examines the recognition of customary arbitration under Nigerian law, the role of traditional institutions in its operation, the conditions necessary for a valid and binding customary arbitration, and the potential of customary arbitration to contribute to the decongestion of Nigerian courts. It argues that customary arbitration, properly utilised and subject to appropriate legal safeguards, can provide an effective complementary mechanism for access to justice, reconciliation, finality of disputes and reduction of unnecessary or repetitive litigation.

1. RECOGNITION OF CUSTOMARY ARBITRATION IN NIGERIAN LAW

Customary arbitration is not a recent invention of Nigeria’s modern Alternative Dispute Resolution framework. It is an indigenous mechanism of dispute resolution that has historically existed within Nigerian communities and has continued to receive judicial recognition.

The foundational recognition of customary arbitration can be traced to AGU V. IKEWIBE (1991) 3 NWLR (PT. 180) 385, which established an important basis for the recognition of customary arbitration within modern Nigerian jurisprudence.

The principle was subsequently reflected in OHIAERI V. AKABEZE (1992) 2 NWLR (PT. 221) 1, where the Supreme Court recognized that one of the customary modes of settling disputes is to refer a dispute to a family head or an elder or elders of the community for a compromise solution, subject to the subsequent acceptance of the suggested award by the parties.

The recognition of customary arbitration was further reaffirmed in EKE V. OKWARANYIA (2001) 12 NWLR (PT. 726) 181, where the Supreme Court described customary law arbitration as an arbitration founded upon the voluntary submission of the parties to the decision of arbitrators who are chiefs or elders of their community, together with the agreement concerning the binding effect of the decision.

Similarly, in OKEREKE V. NWANKWO (2003) 9 NWLR (PT. 826) 592, the Supreme Court reiterated that customary arbitration is founded upon the voluntary submission of disputing parties to chiefs or elders of their community and their agreement concerning the decision of the arbitrators.

The position was authoritatively restated in OKALA V. UDAH (2019) 9 NWLR (PT. 1678) 562, where the Supreme Court expressly recognized customary arbitration as one of the modes of settlement of disputes recognized under Nigerian law, particularly where the subject matter of the dispute falls within the domain of customary law.

The significance of these authorities is that they establish customary arbitration as part of Nigeria’s pluralistic justice system. It is therefore incorrect to regard customary arbitration merely as an informal social practice devoid of legal consequence. Where the requisite conditions are satisfied, a customary arbitration may result in a decision capable of recognition and enforcement under Nigerian law.

1. THE EVOLUTION OF JUDICIAL RECOGNITION OF CUSTOMARY ARBITRATION

The recognition of customary arbitration by Nigerian courts is particularly significant when considered against the historical development of Nigeria’s justice system.

The jurisprudence reveals that the courts have progressively moved towards recognizing customary arbitration as a legitimate component of Nigeria’s legal order. The earlier recognition of customary arbitration in AGU V. IKEWIBE was followed by subsequent decisions which clarified its nature, requirements and legal consequences.

The development of this jurisprudence demonstrates the judicial acceptance that Nigeria’s justice system is not necessarily confined to dispute resolution through formal courts. Rather, the country’s pluralistic legal environment accommodates indigenous mechanisms of dispute settlement, provided they satisfy the requirements established by law.

The recognition of customary arbitration also reflects the practical reality that formal courts cannot, by themselves, be expected to resolve every dispute arising within a complex and diverse society. Indigenous dispute-resolution mechanisms may, in appropriate circumstances, provide an additional avenue through which disputes can be resolved.

Thus, the recognition of customary arbitration is not simply an acknowledgment of cultural tradition. It presents an opportunity to develop a more multi-door and multi-layered justice system, in which formal courts, statutory Alternative Dispute Resolution mechanisms and legitimate customary institutions complement one another.

1. THE VOLUNTARY NATURE OF CUSTOMARY ARBITRATION

A fundamental principle running through the authorities is that customary arbitration is based upon the voluntary submission of the parties.

In EKE V. OKWARANYIA AND OKEREKE V. NWANKWO, the Supreme Court emphasised that customary arbitration is founded upon the voluntary submission of the disputing parties to chiefs or elders who act as arbitrators.

The requirement of voluntariness is central to the legitimacy of the process. A chief, elder or traditional ruler does not automatically acquire the power to impose a binding customary arbitration upon every member of a community merely by virtue of occupying a traditional position.

The parties must voluntarily submit their dispute to the customary process, and there must be an intention, either express or implied, concerning the binding effect of the eventual decision.

The principle protects party autonomy and ensures that customary arbitration remains consensual in character. Parties who voluntarily choose to submit their disputes to customary arbitration should generally be held to the consequences of that choice, provided that the process satisfies the legal requirements for validity.

This principle is particularly relevant to the question of court decongestion. Customary arbitration can only operate as an effective alternative to litigation where parties have confidence in the process and understand that a valid decision will bring finality to the dispute.

The recent decision of the Supreme Court in ODOEMELAM V. OJIAVO (2026) 11 NWLR (PT. 2052) 397 AT 413–414, PARAS. G–E, significantly reinforces this principle.

In that case, the parties were involved in a dispute over title to land and voluntarily submitted themselves to a traditional arbitration process involving oath-taking. The appellant pleaded and testified that he had submitted to the arbitration and agreed to be bound by its outcome. Although he subsequently rejected the outcome and presented the dispute before a Customary Court, the Supreme Court held that his voluntary submission and agreement to be bound had significant legal consequences.

The Court held, in substance, that where parties to a dispute over title to land voluntarily decide to be bound by traditional arbitration resulting in oath-taking, the ordinary common law principles concerning proof of title to land no longer apply in the determination of the dispute. Rather, ownership or title is to be determined according to the rules applicable to the traditional arbitration resulting in oath-taking.

The decision is significant because it demonstrates that the voluntary submission of parties to customary arbitration may affect not only the forum for resolving the dispute but also the rules and evidential framework according to which the dispute is to be determined.

The Supreme Court acknowledged that oath-taking may appear subjective, unverifiable, irrational or unreliable as a method of proving ownership of land when compared with conventional and objectively verifiable evidence such as genealogical history and root of title. Nevertheless, the Court recognized that established case law accepts such a customary process where parties have voluntarily submitted themselves to it and agreed to be bound by its outcome.

Thus, ODOEMELAM V. OJIAVO represents a significant affirmation of party autonomy in customary arbitration.

It demonstrates that a party cannot voluntarily select a customary process, agree to be bound by its outcome and subsequently, merely because the result is unfavourable, seek to discard the process and insist that the dispute be determined exclusively according to the rules of formal litigation.

1. THE ESSENTIAL INGREDIENTS OF A VALID CUSTOMARY ARBITRATION

The judicial recognition of customary arbitration does not mean that every proceeding conducted before a chief, elder, family head or community body will automatically constitute a valid and binding customary arbitration.

Nigerian case law has established certain essential requirements that must be satisfied before a customary arbitral decision can be accorded binding legal effect.

In EGESIMBA V. ONUZURUIKE (2002) 15 NWLR (PT. 791) 466, the Supreme Court, per Ayoola, JSC, identified four essential characteristics of a binding customary arbitration:

1. Voluntary submission of the dispute to the arbitration of an individual or body;
2. Agreement by the parties, either expressly or by implication, that the decision of the arbitrator will be accepted and will be binding;
3. Conformity with the custom of the parties; and
4. A decision by the arbitrator and publication of the award.

The Court, referring to OHIAERI V. AKABEZE, held that the customary arbitration in the case was valid because the evidence established the necessary ingredients.

The decision is important because it demonstrates that the validity of customary arbitration depends upon identifiable legal requirements rather than merely upon the fact that a dispute was brought before a traditional ruler or community elder.

The first requirement—voluntary submission—protects the autonomy of the parties.

The second—the agreement to be bound—ensures that parties do not treat customary arbitration merely as a preliminary step before commencing litigation.

The third preserves the customary character of the process, ensuring that the arbitration is conducted in accordance with the applicable customs of the parties.

The fourth ensures that the arbitrator actually reaches and publishes a decision capable of being identified and relied upon.

The requirements identified in EGESIMBA V. ONUZURUIKE were subsequently elaborated upon by the Supreme Court in OKALA V. UDAH (2019) 9 NWLR (PT. 1678) 562, where the Court identified five conditions for establishing a binding customary arbitration capable of operating as estoppel per rem judicatam.

The five conditions are that:

1. The parties voluntarily submitted their dispute to the customary arbitration panel for determination;
2. The parties expressly or impliedly agreed that the decision of the arbitrators would be final and binding;
3. The arbitration was conducted in accordance with the customs of the parties or their trade or business;
4. The arbitrators reached a decision; and
5. The decision or award was accepted at the time it was made.

The formulation in OKALA V. UDAH may therefore be understood as a refinement or elaboration of the earlier jurisprudence. In particular, the express identification of acceptance of the award at the time it was made adds an important dimension to the analysis of the binding effect of customary arbitration.

The two decisions, read together, establish the essential foundation of customary arbitration: consent, intention to be bound, conformity with custom, an actual determination and acceptance of the resulting award.

1. THE BINDING EFFECT AND FINALITY OF CUSTOMARY ARBITRATION

The legal recognition of customary arbitration would have limited practical value if parties were free to disregard valid decisions whenever they became dissatisfied with the outcome.

The Supreme Court addressed this issue comprehensively in OKALA V. UDAH.

The Court held that the binding effect of customary arbitration derives from the fact that parties who have the right to have their disputes determined by the courts may voluntarily choose to have their dispute decided by a non-judicial customary body and agree to be bound by the result.

Once the parties have voluntarily created such a position, neither party should ordinarily be permitted to resile from it.

The principle is rooted in both law and equity. A party cannot voluntarily submit a dispute to customary arbitration, participate in the process and then, merely because the outcome is unfavourable, reject the decision and seek a fresh determination before the formal courts.

The Supreme Court’s decision in OKALA V. UDAH, involving the Ibaa Council of Traditional Rulers, is particularly significant to the present discussion. The Court held that the decision of the Council was binding on the appellant and constituted estoppel per rem judicatam in respect of the issue already determined.

This principle is vital to court decongestion. A customary arbitration mechanism cannot effectively reduce litigation if parties are permitted to disregard valid awards and re-litigate the same disputes before the formal courts.

The enforceability and finality of a valid customary arbitral decision therefore provide an important incentive for parties to utilise customary arbitration in appropriate cases.

1. THE EFFECT OF VOLUNTARY SUBMISSION ON THE RULES OF DETERMINATION: ODOEMELAM v. OJIAVO

The decision in ODOEMELAM V. OJIAVO (2026) 11 NWLR (PT. 2052) 397 adds an important dimension to the established jurisprudence.

The case demonstrates that the consequences of voluntary submission to customary arbitration may extend beyond the binding effect of the eventual award. The choice made by the parties may also determine the rules by which the dispute is to be resolved.

In the case, the dispute concerned title to land. The parties voluntarily subjected the dispute to traditional arbitration involving oath-taking and agreed to be bound by the outcome.

The Supreme Court held that, in such circumstances, the ordinary common law principles concerning proof of title to land no longer applied in the same manner. Instead, the ownership or title was to be determined according to the rules applicable to the customary arbitration which the parties had voluntarily adopted.

This is significant because it confirms that customary arbitration may constitute a self-contained dispute-resolution framework.

The parties’ decision to submit themselves to customary arbitration may have consequences in relation to:

1. The forum for determination;

1. The identity and authority of the arbitrators;
2. The applicable customary rules;
3. The evidential method to be employed;
4. The procedure for reaching a decision; and
5. The binding effect of the final outcome.

The Supreme Court’s reasoning illustrates the principle that a party cannot voluntarily choose a particular dispute-resolution mechanism and subsequently insist on applying an entirely different set of rules merely because the chosen process has produced an unfavourable result.

The decision therefore reinforces the principle against approbation and reprobation.

A party cannot, in effect, say:

“I accept the customary arbitration when it is favourable to me, but when the outcome is unfavourable, I reject the customary process and demand that the dispute be determined according to the rules of formal litigation.”

The law does not permit such inconsistent conduct where the requirements for a valid customary arbitration have been satisfied.

1. CUSTOMARY ARBITRATION, ESTOPPEL AND THE JURISDICTION OF THE COURTS

The legal consequences of a valid customary arbitration extend beyond the resolution of the dispute between the parties. Where a customary arbitration is properly constituted, duly pleaded and proved, and satisfies the requirements for validity, its decision may operate as an estoppel and thereby prevent the parties from re-opening the same dispute before a formal court.

This principle was clearly established by the Supreme Court in AWOSILE V. SOTUNBO (1992) 5 NWLR (PT. 243) 514 AT 533, PARAS. F–G.

The Court held that the consequence of the fact that a customary arbitration, duly pleaded and proved, can operate as estoppel is that, like an estoppel arising from a valid judicial decision, it deprives the court of jurisdiction to adjudicate upon the matter again.

The Court considered it contradictory for a plaintiff to assert that a dispute had already been validly and finally determined through arbitration by the Akarigbo and yet subsequently submit the same dispute to the court for adjudication.

The significance of AWOSILE V. SOTUNBO is considerable. It demonstrates that a valid customary arbitration is not merely an informal settlement which parties may freely disregard. Where the necessary conditions have been established, the decision may have a final and legally binding effect capable of preventing further adjudication of the same dispute.

The principle established in Awosile reinforces the doctrine of finality of litigation. A party should not be permitted to have two opportunities to litigate the same dispute—first before a valid customary arbitration and subsequently before a formal court, simply because the outcome of the first process was unfavourable.

The decision, therefore establishes an important connection between customary arbitration and the formal judicial system. The formal court does not necessarily become a second forum for a fresh determination of a dispute that has already been validly and finally resolved through customary arbitration.

This has direct implications for court decongestion. The contribution of customary arbitration is not limited to keeping disputes out of court at the initial stage. It may also prevent duplicative litigation and unnecessary re-litigation of disputes already determined through a valid customary process.

1. CUSTOMARY ARBITRATION, ESTOPPEL PER REM JUDICATAM AND RES JUDICATA

The decisions in AWOSILE V. SOTUNBO, NRUAMAH V. EBUZOEME and OKALA V. UDAH can be read together to demonstrate the significant legal consequences that may attach to valid decisions of customary institutions.

In AWOSILE V. SOTUNBO, the Supreme Court held that a valid customary arbitration can operate as estoppel and thereby deprive the court of jurisdiction to adjudicate upon the same matter again.

In NRUAMAH V. EBUZOEME (2013) 13 NWLR (PT. 1372) 474, the Supreme Court recognized that even an unrecorded decision of a body that would not ordinarily be regarded as a court could create an estoppel by way of res judicata, provided that it was established that the decision was in fact pronounced and affected the parties or their privies.

The Court, however, made an important qualification: the persons who gave the decision must have been exercising judicial functions recognised by customary law and must have been duly authorized by customary law to adjudicate upon the dispute referred to them.

In OKALA V. UDAH, the Supreme Court reaffirmed the binding effect of customary arbitration where the recognized conditions for validity are satisfied.

The combined jurisprudence therefore establishes a powerful chain of principle:

Valid customary arbitration leads to a final and binding decision, which may give rise to estoppel or res judicata, thereby precluding re-litigation and contributing to finality and efficiency in dispute resolution.

This jurisprudential position demonstrates that customary arbitration is not merely a culturally significant institution. It can have substantive and procedural consequences within the formal legal system.

1. THE ROLE OF TRADITIONAL INSTITUTIONS IN CUSTOMARY ARBITRATION

The role of traditional institutions is central to the operation of customary arbitration.

The Supreme Court authorities identify chiefs, elders, family heads and other recognized community authorities as persons who may perform important dispute-resolution functions.

In EKE V. OKWARANYIA and OKEREKE V. NWANKWO, chiefs and elders are recognized as customary arbitrators.

In OHIAERI V. AKABEZE, the Court recognized the role of the family head or elders of the community in providing compromise solutions to disputes.

In AWOSILE V. SOTUNBO, the dispute had been determined through arbitration by the Akarigbo, demonstrating the potential role of a traditional ruler in the customary dispute-resolution process.

In OKALA V. UDAH, the Ibaa Council of Traditional Rulers was recognized in the context of the customary arbitration that had taken place between the parties.

The traditional institution therefore constitutes an important component of the indigenous justice structure.

Traditional rulers and community elders often possess:

1. Knowledge of local customs and traditions;

1. Understanding of communal history;
2. Familiarity with family and lineage relationships;
3. Knowledge of traditional land boundaries;
4. Social legitimacy within the community; and
5. The confidence of parties who voluntarily submit disputes to them.

These qualities can make traditional institutions particularly suitable for resolving disputes that are fundamentally rooted in customary law.

Traditional dispute resolution may also be more accessible to ordinary members of rural communities who may find formal litigation expensive, procedurally complex or geographically distant.

The role of traditional institutions is therefore not limited to determining disputes through arbitration. They may also intervene at an earlier stage through mediation, reconciliation and compromise.

1. TRADITIONAL INSTITUTIONS AND ACCESS TO JUSTICE

One of the most compelling arguments for strengthening traditional institutions within Nigeria’s dispute-resolution framework is their potential contribution to access to justice.

Formal courts remain indispensable, but access to formal justice can be affected by the cost of litigation, legal representation, geographical distance and procedural delay.

Traditional institutions, by contrast, are often situated within the communities in which disputes arise.

For a person living in a rural community, approaching a family head, chief or council of elders may be considerably easier than commencing formal litigation.

The traditional institution may also understand the social context of the dispute and the customs applicable to the parties.

This does not mean that customary dispute resolution should be romanticized or treated as inherently superior to formal adjudication. Traditional institutions, like all institutions exercising authority, require appropriate safeguards against abuse, arbitrariness and violations of rights.

Nevertheless, their accessibility and community legitimacy provide a strong basis for considering their role within a broader multi-door justice system.

1. CUSTOMARY ARBITRATION AND THE DISTINCTION BETWEEN ARBITRATION, MEDIATION AND COMPROMISE

The decision in OHIAERI V. AKABEZE introduces an important distinction that should not be overlooked.

The Supreme Court recognized that one of the customary modes of settling disputes is the referral of a dispute to a family head or community elders for a compromise solution, with the proposed award becoming binding after acceptance by both parties.

This demonstrates that traditional institutions may perform several distinct functions.

They may act as:

1. Mediators, facilitating communication between parties;

1. Conciliators, proposing terms for settlement;
2. Community elders, facilitating reconciliation;
3. Customary arbitrators, determining disputes submitted to them; or
4. Customary adjudicatory bodies, exercising judicial functions recognised by customary law.

The legal consequences of each process may differ.

This distinction is important to the argument for court decongestion. The contribution of traditional institutions should not be measured only by the number of binding customary arbitral awards they produce.

A traditional ruler who prevents a dispute from escalating into litigation through mediation or reconciliation has also contributed to reducing the workload of the courts.

Thus, the broader role of traditional institutions may be understood as comprising a continuum of dispute resolution, beginning with informal intervention and reconciliation, progressing to mediation and compromise, and, where appropriate, culminating in customary arbitration or adjudication.

 

1. CUSTOMARY ARBITRATION AS A MECHANISM FOR DECONGESTING THE COURTS

The persistent congestion of Nigerian courts requires a multi-dimensional response. Judicial reforms, improved case management, increased judicial capacity and procedural reforms remain necessary. However, these measures can be complemented by greater utilization of appropriate dispute-resolution mechanisms outside the formal court system.

Customary arbitration offers one such mechanism.

Where a dispute is suitable for customary resolution and the parties voluntarily submit it to recognized customary arbitrators, the dispute may be resolved without the need for prolonged formal litigation.

Where traditional institutions successfully mediate or reconcile parties, litigation may be avoided entirely.

More importantly, where a valid customary arbitration has already determined a dispute, the principle in AWOSILE V. SOTUNBO indicates that the formal courts may be precluded from re-adjudicating the same matter where the customary decision operates as estoppel.

The potential benefits include:

1. Reduction in the number of cases filed before the courts;

1. Faster resolution of suitable disputes;
2. Reduction in litigation costs;
3. Improved access to justice;
4. Preservation of family and communal relationships;
5. Promotion of reconciliation;
6. Reduction of the workload of judges; and
7. Avoidance of repetitive litigation where a valid customary arbitration has already determined the dispute.

The contribution of customary arbitration to court decongestion can therefore be understood at three distinct levels.

FIRST: PREVENTION OF LITIGATION

Where traditional institutions successfully mediate, reconcile or settle disputes, the parties may never commence proceedings before a formal court.

SECOND: ALTERNATIVE DETERMINATION

Where the parties voluntarily submit their dispute to customary arbitration and the process satisfies the requirements established by law, the dispute may be finally determined outside the formal court system.

THIRD: PREVENTION OF REPETITIVE LITIGATION

Where the customary arbitration is validly conducted and its decision operates as estoppel, Awosile v. Sotunbo demonstrates that the parties may be precluded from taking the same dispute before the courts for a fresh determination.

This third dimension is particularly important. It means that customary arbitration may contribute to court decongestion both positively and defensively.

It contributes positively by resolving disputes before they reach the courts. It contributes defensively by preventing the courts from being used to re-litigate matters that have already been validly and finally determined through customary arbitration.

The recent decision in ODOEMELAM V. OJIAVO strengthens this argument further. By holding that parties who voluntarily submit themselves to a traditional arbitration involving oath-taking may be bound by the customary rules governing that process, the Supreme Court reinforces the principle that a dissatisfied party cannot simply abandon the chosen mechanism and seek a fresh determination of the dispute under a different evidential framework.

The implication is that finality begins with the choice of the dispute-resolution mechanism.

Where parties have voluntarily chosen customary arbitration, the formal courts should not ordinarily become a second opportunity for a dissatisfied party to re-open the dispute or substitute the rules of customary arbitration with a different set of legal principles.

Thus, ODOEMELAM V. OJIAVO complements AWOSILE V. SOTUNBO: while Awosile demonstrates the preclusive effect of a valid customary arbitration, Odoemelam demonstrates the potentially wider consequences of voluntarily submitting to customary arbitration in the first place.

1. TRADITIONAL INSTITUTIONS AND THE AKARIGBO: THE SIGNIFICANCE OF AWOSILE v. SOTUNBO

The reference to the Akarigbo in AWOSILE V. SOTUNBO is particularly relevant to the role of traditional institutions.

The case demonstrates that traditional rulers have historically played a recognized role in resolving disputes within their communities. Where parties voluntarily submit themselves to the authority of a traditional institution for the resolution of a dispute in accordance with customary law, the resulting process may, where the legal requirements are satisfied, carry consequences recognized by the formal judicial system.

This illustrates the potential of traditional institutions to serve as a first-line dispute-resolution mechanism within their communities.

Traditional institutions may therefore contribute to the administration of justice through:

1. Early intervention in disputes before they escalate;
2. Mediation and reconciliation between disputing parties;
3. Compromise and settlement;
4. Customary arbitration where parties voluntarily submit their dispute for determination; and
5. Customary adjudication, where the institution possesses recognised customary authority to exercise judicial functions.

The role of the traditional institution should, however, be distinguished from that of the formal court. The traditional institution does not necessarily exercise the constitutional jurisdiction of the courts. Rather, its authority derives from custom, the voluntary submission of parties and the recognition accorded to customary dispute-resolution processes by Nigerian law.

This distinction preserves the constitutional role of the formal courts while recognizing that traditional institutions can provide a complementary avenue for resolving disputes.

1. THE NEED FOR LEGAL SAFEGUARDS

The greater utilization of customary arbitration and traditional institutions must be accompanied by appropriate safeguards.

First, the requirement of voluntary submission must be respected.

Second, there must be clarity concerning the jurisdiction and customary authority of the institution or arbitrator.

Third, parties should understand the legal consequences of submitting their disputes to customary arbitration.

Fourth, the process must satisfy applicable standards of fair hearing and natural justice.

Fifth, there should be mechanisms for distinguishing a valid customary arbitration from an informal settlement that has not acquired binding legal effect.

Sixth, there should be adequate mechanisms for the recognition and enforcement of valid customary arbitral awards.

These safeguards are necessary not to undermine customary arbitration but to strengthen public confidence in it.

The objective should be to create a framework in which customary institutions can perform their legitimate dispute-resolution functions while remaining consistent with fundamental principles of justice and the rule of law.

The lesson from ODOEMELAM V. OJIAVO is particularly instructive in this regard. The fact that customary arbitration may produce consequences different from those associated with conventional litigation reinforces the need for parties to understand clearly the nature of the process to which they are submitting.

The legitimacy of customary arbitration is ultimately strengthened, rather than weakened, when its consensual foundation and legal consequences are clearly understood.

1. THE JURISPRUDENTIAL DEVELOPMENT: A SYNTHESIS OF THE AUTHORITIES

The authorities considered in this article reveal a clear and progressive development of customary arbitration jurisprudence in Nigeria.

Agu v. Ikewibe (1991) provides the foundational recognition of customary arbitration as a legitimate indigenous mode of dispute resolution.

Ohiaeri v. Akabeze (1992) recognizes the role of family heads and community elders in compromise-based dispute resolution and highlights the significance of acceptance before a compromise award becomes binding.

Awosile v. Sotunbo (1992) establishes that a valid customary arbitration can operate as estoppel and prevent the formal court from re-adjudicating the same dispute.

Eke v. Okwaranyia (2001) reaffirms customary arbitration founded upon voluntary submission to chiefs or elders and agreement concerning the binding effect of their decision.

Egesimba v. Onuzuruike (2002) identifies four essential ingredients of a binding customary arbitration: voluntary submission, agreement to be bound, conformity with custom, and a decision and publication of the award.

Okereke v. Nwankwo (2003) further affirms the consensual nature of customary arbitration and the role of chiefs and elders.

Nruamah v. Ebuzoeme (2013) demonstrates that decisions of customary bodies exercising recognized judicial functions may create res judicata consequences, notwithstanding that such bodies are not formal courts.

Okala v. Udah (2019) consolidates the jurisprudence by recognising customary arbitration as a mode of dispute resolution under Nigerian law, affirming the binding effect of valid customary arbitration and identifying five conditions for establishing its final and binding character.

Finally, Odoemelam v. Ojiavo (2026) adds a further and contemporary dimension by demonstrating that the consequences of voluntary submission to customary arbitration may extend beyond the binding effect of the award itself. Parties may also be bound by the customary rules and evidential procedures which govern the arbitration they voluntarily selected.

The jurisprudential progression may therefore be summarized as follows:

1. Recognition of customary arbitration;
2. Voluntary submission of parties;
3. Chiefs, elders and traditional institutions as customary arbitrators;
4. Customary authority and conformity with applicable custom;
5. Decision and acceptance of award;
6. Binding effect and finality;
7. Estoppel / res judicata;
8. Prevention of re-litigation;
9. Reduction of unnecessary court proceedings; and
10. Contribution to court decongestion.

The central proposition emerging from these authorities is therefore that the Nigerian legal system recognizes customary arbitration as a legitimate indigenous mechanism for dispute resolution, particularly in matters governed by customary law. Where parties voluntarily submit their dispute to a recognized customary arbitral institution, agree to be bound by the outcome, and the process satisfies the requirements established by law, the resulting decision may be final and binding, capable of operating as estoppel or res judicata, and may prevent the formal courts from re-adjudicating the same dispute.

The recent decision in Odoemelam v. Ojiavo further establishes that the legal consequences of such voluntary submission may extend to the rules and evidential procedures by which the dispute is determined. The parties’ voluntary choice of customary arbitration may therefore carry consequences that go beyond the mere selection of an alternative forum.

1. CRITICAL REFLECTION: CUSTOMARY ARBITRATION AS A COMPONENT OF NIGERIA’S MULTI-DOOR JUSTICE SYSTEM

The Nigerian justice system has increasingly recognized the need for mechanisms that can resolve disputes outside the conventional court process. The growth of Alternative Dispute Resolution has demonstrated that justice need not always be achieved through adversarial litigation.

Customary arbitration represents an indigenous expression of this philosophy.

Its greatest strength may lie in its potential to combine accessibility, cultural legitimacy, speed, reconciliation and finality.

However, the modern utilisation of customary arbitration must be approached carefully.

The objective should not be to romanticise traditional institutions or assume that every customary process is automatically fair or legally binding. Nor should customary arbitration be regarded as a substitute for the formal courts in every circumstance.

Rather, customary arbitration should be understood as part of a broader multi-door justice system in which different mechanisms are available for different categories of disputes.

Some disputes may be best resolved through formal adjudication. Others may be suitable for mediation or conciliation. Some disputes, particularly those deeply rooted in customary law and community relationships, may be more appropriately resolved through customary mechanisms.

The key is therefore choice, legitimacy, legality and fairness.

Where parties freely choose customary arbitration and satisfy the requirements established by the courts, the law should respect the choice and give appropriate effect to the resulting decision.

This approach would enable traditional institutions to complement rather than compete with the formal judiciary.

CONCLUSION

The jurisprudence of the Supreme Court demonstrates that customary arbitration occupies a recognized and potentially significant place within Nigeria’s pluralistic legal system. From AGU V. IKEWIBE AND OHIAERI V. AKABEZE, THROUGH AWOSILE V. SOTUNBO, EGESIMBA V. ONUZURUIKE, EKE V. OKWARANYIA AND OKEREKE V. NWANKWO, TO NRUAMAH V. EBUZOEME, OKALA V. UDAH and, most recently, ODOEMELAM V. OJIAVO, the courts have progressively developed a legal framework for recognizing and giving effect to customary dispute-resolution processes.

The authorities establish that customary arbitration is fundamentally rooted in voluntary submission, customary authority, party autonomy and finality. They further demonstrate that traditional institutions—particularly chiefs, elders, family heads and recognized community bodies—have historically and legally occupied an important position in the resolution of disputes.

The significance of AWOSILE V. SOTUNBO is particularly noteworthy in the context of court decongestion. The decision demonstrates that the contribution of customary arbitration is not limited to keeping disputes out of court in the first instance. Where a valid customary arbitration has already finally determined a dispute, its operation as estoppel may prevent the formal court from adjudicating upon the same dispute again.

The decision in ODOEMELAM V. OJIAVO (2026) has now added a significant contemporary dimension to this jurisprudence. It reinforces the principle that customary arbitration is not an empty or inconsequential ritual but a legally recognized mechanism whose consequences may extend to the substantive and evidential determination of disputes.

Where parties voluntarily submit themselves to a traditional arbitration process and agree to be bound by it, they may also be bound by the customary rules governing that process. The fact that a party subsequently considers the customary procedure or its outcome less favourable than the conventional rules of formal litigation does not, without more, entitle that party to abandon the process voluntarily chosen.

Read alongside OKALA V. UDAH, the case strengthens the principle that parties cannot approbate and reprobate in relation to customary arbitration. Read alongside AWOSILE V. SOTUNBO, it further demonstrates how customary arbitration can contribute to finality and prevent the formal courts from becoming a forum for repetitive litigation. Read alongside NRUAMAH V. EBUZOEME, it confirms the continuing legal significance of decisions rendered by customary institutions exercising recognized functions under customary law.

The contemporary jurisprudence therefore supports a broader proposition: customary arbitration is not merely a historical relic or an informal community practice; it is a legally recognized component of Nigeria’s pluralistic dispute-resolution architecture.

Its value lies not only in its capacity to resolve disputes quickly and locally but also in its potential to promote reconciliation, preserve social relationships, provide accessible justice and prevent unnecessary litigation.

Traditional institutions, operating within the limits of their legitimate customary authority and subject to appropriate safeguards, can consequently become important components of a modern Nigerian justice system that recognizes both the value of formal adjudication and the continuing relevance of indigenous mechanisms of dispute resolution.

The challenge, therefore, is not whether customary arbitration should exist alongside the formal courts, it already does and has been judicially recognized but how Nigeria can responsibly strengthen, regulate and integrate it into the broader architecture of justice administration.

Properly harnessed, customary arbitration can serve as an instrument of access to justice, reconciliation, dispute finality and court decongestion. Traditional institutions can play an important role in resolving disputes at the community level, while the formal courts remain available for matters requiring judicial adjudication and for the protection of constitutional and legal rights.

The future of justice administration in Nigeria may therefore lie not in choosing between formal courts and customary institutions, but in constructing a coherent justice architecture in which courts, statutory ADR mechanisms and legitimate traditional institutions complement one another.

In such a framework, traditional institutions can serve as an important first layer of dispute resolution; customary arbitration can provide a legally recognized avenue for the final determination of appropriate disputes; and the formal courts can remain available as the ultimate guarantors of legality, fairness and justice.

Ultimately, the future of court decongestion in Nigeria may require looking beyond the courthouse. A justice system that effectively combines formal adjudication, statutory Alternative Dispute Resolution and legitimate customary dispute-resolution institutions may be better positioned to deliver timely, accessible and culturally responsive justice.

Customary arbitration, when voluntarily invoked and properly conducted, can therefore serve not only as a means of resolving individual disputes but also as a strategic instrument for reducing the burden on Nigeria’s formal courts, promoting finality in disputes and strengthening the overall administration of justice.

T.S. Adebiyi, Esq., LL.M.
Principal, T.S. ADEBIYI CHAMBERS