Enforcement of decisions of traditional courts
In spite of the ravaging effects of western civilization and modernization on all strata of African culture and tradition, Africans refused to be totally disconnected from their pre-colonial ways of life even as they evolved with time.
African mode of adjudication is still well alive as various African societies still practice their pre-colonial forms of dispute or conflict resolution with modifications in tandem with the flexibility nature of customs. This paper will look at traditional adjudication in Nigeria, its acceptability by the people and how to give decisions of traditional courts legal force in Nigeria.
Key words: Traditional adjudication, traditional court, palace court, traditional arbitration, traditional dispute and conflict resolution, enforcement of traditional courts decision, acceptability of decisions of traditional arbitration panel and legal recognition of traditional courts.
Before the advent of European rules in Africa, there existed a thriving judicial or adjudication system in various African societies. The people had in place legal structures for dealing with crimes as well as civil disputes which are distinct from the western form of adjudication.
When the European colonial powers came, they condemned most of Africans’ ways of life including religions, governments and legal structures to mention but a few. Elegido posits that some writers have denied that African indigenous systems of social control contained any legal element. The learned scholar identified three main arguments canvassed by those who believe African societies have no legal element in their modes of adjudication to wit: lack of legislatures, formal courts and specialized legal officials; absence of efficient sanctions where procedures for arbitral or conciliatory settlement of disputes existed; and finally that what existed in African traditional societies in the pre-colonial era was an unrestrained exercise of power by single chiefs, by councils or by popular assemblies rather than the application of rules which is characteristic of law.
Elegido while opposing the position of the anti African judicial system argues thus: None of these three arguments is convincing. In relation to the lack of formal legislatures it should be enough to point out that it concentrates on the form of social arrangements rather than their function.
Certainly, one cannot find in traditional African societies, a Parliament with all its modern trappings. But there were specific procedures for creating new rules and amending old ones The charge of the absence of judges should receive a similar answer. Of course there were no bewigged gentlemen sitting in oak-paneled rooms. But there certainly were persons or bodies which specialized in deciding disputes concerning legal norms and their implementation. There existed also in many of these societies specialized officials whose function was to help in the enforcement of the rulers decisions and keeping order. One can safely infer from the above submissions of the learned writer that the fact that the pre-colonial African legal frameworks were not structured along the European pattern does not mean there existed no legal element in Africans forms of adjudication.
It should be noted that African form of adjudication in present time is merely an informal mode of arbitration and conflict resolution without any legal force to compel obedience to decisions emanating from such traditional adjudication body of panel. It is our humble submission that the toothless bulldog nature of traditional African court system has its roots in the condemnation of the African traditional judicial system hitherto in place before the advent of the European colonial powers.
It is therefore our aim to clearly disabuse the minds of those who belong to this school of thought and to encourage them and to suggest how traditional African courts can be accommodated and enhanced in our modern judicial system.
Traditional Judicial System in Modern Age
Traditional judicial system has gained more recognition in modern times in spite of attempts to silence it by European colonial powers. It seems judicial stakeholders all over the world are now coming to terms with the imperative nature of traditional judicial system.
The British Council while stressing the importance of traditional judicial system is of the view that: traditional rulers enjoy respect and confidence from the public because the legal systems are based upon local tradition, culture, history and religion. The public is able to accept traditional law better than the formal system of police and courts. The public sometimes finds these systems to be alien with no interest in the social harmony or the culture and religion of the people”.
Dr. Bob Arnot while emphasizing on the advantage of the traditional form of dispute resolution posits that: the physical environment or venue of the dispute resolution is the house (living room) of the traditional rulers or it may be the house of one of the disputants or even the market square. The process does not insist on any formalities such as a definite venue for the mediation to take place, as would be the case in the court system. Such informality and proximity to the community has several advantages.
It reduces tension and increases the disputing parties confidence to talk, as they find themselves in a familiar environment. Then, they need not spend any money on transport. Dispute resolution services are also rendered free of charge. Those who seek access to justice therefore do not pay what they would pay in a court of law, e.g., filing fees. Another advantage is that dispute resolution takes place in the local language. This means the parties involved understand the procedure, which is devoid of technicalities. It is as simple as daily life.
The system is effective because the solutions preserve social harmony, and relationships are prolonged instead of broken. The objective of this process is to reconcile the parties so that whatever relationships exist are preserved. It does not encourage apportioning blame or having a winner and a loser. It is based upon the idea of restorative justice”.
Like any other human endeavours, Dr. Bon Arnot of the British Council argues that traditional judicial system has its own disadvantages too. In his words he posits that: “The system is patriarchal with low or poor appreciation of human rights standards by the lower cadre of traditional rulers. As a result, they may not adhere to human rights principles.
Coupled with the low level of rights awareness within the population, it makes people vulnerable to exploitation. In such rural communities, there may be no civil society organizations or not-for-profits to provide assistance, which in this context would include legal assistance or legal education to those who cannot afford to challenge the violations of their rights or may not even know their rights have been violated. But there are further weaknesses: Some traditions do not allow women or children to speak in the midst of men; yet there is no separate arrangement available for them where women are involved as complainants or victims.
Then, compliance with decisions of traditional rulers depends on the respect people have for the ruler in question and the traditions of the community. He does not have coercive powers to compel compliance. And finally, due to absence of record-keeping, disputes that have been resolved can be reopened.”
We humbly disagree with some of the positions of Dr. Arnot as stated above. It should be noted that traditional rulers in modern societies are increasingly aware of human rights and are now observing its tenets while adjudicating.
Traditional adjudication panels are also now embracing documentation of proceedings in traditional arbitration proceedings. The composition of Olubadan-in-Council (a traditional court) is instructive here. Isaac Olawale Albert (et al) states the composition of Olubadan-in-Council thus: “The Olubadan-in-Council consists of the Olubadan and all his high chiefs drawn from the Balogun and Olubadan lines. Therefore, a typical council meeting for resolving disputes and state matters is chaired by the Olubadan himself. The other members in attendance are the Iyalode, who represents womens interests; from the Balogun (military) line come the Balogun, Otun Balogun, Osi Balogun, Asipa Balogun, Ekerin Balogun, Ekarun Balogun; and from the Olubadan line come the Otun Olubadan, Osi Olubadan, Asipa Olubadan, Ekerin Olubadan, Ekarun Olubadan. The secretary of the council is officially known as Gbonka Olubadan.” Emphasis ours.
We therefore humbly submit that if documentation of the proceedings is not part of traditional courts in modern era there would not have been the need for the inclusion of Gbonka Olubadan as the secretary of the Council.
We further submit that traditional courts such as Olubadan-in-Council now receive written petitions from aggrieved parties. Isaac Olawale Albert (et al) further explains thus: If the issues in dispute have been documented in the form of a petition, the Gbonka Olubadan has to read the petition to the gathering. But if the evidence has to be given verbally the complainant is asked to state his case” We therefore submit that the filing of a written petition before a traditional court presupposes the inclusion of documentation of proceedings in traditional courts in modern era.
Traditional courts and their operators i.e. traditional rulers in modern societies are now embracing and committed to reforms to ensure that traditional justice system in Nigeria complies with acceptable global standards. This notion has been rightly noted by Dr. Arnot when he states thus: “The J4A (Justice for All) programme has sought to assist reform-minded traditional rulers to counteract these problems within the traditional justice system, through training and reference material on human rights and alternative dispute resolution.
The Emir of Dutse in Jigawa State, where the pilot scheme involved more than 1,500 traditional leaders, is committed to reforming the traditional justice system and has welcomed the intervention The lower-cadre traditional rulers within the hierarchy have absolute trust and loyalty in the emir and view the reforms as good for society and justice; they were therefore open to the intervention as well.
The acceptance is strengthened by the fact that the reform makes the rulers more competent to discharge their responsibilities that are deeply rooted in their religion and culture.”
It is therefore clear from the submission of Dr. Arnot above that traditional Courts are now embracing reforms to assist them in dispensing justice in compliance with acceptable global standards.
Enforcement of Decisions of Traditional Courts
We will confine ourselves to the enforcement of decisions of traditional Court in civil proceedings and not in criminal adjudication. This is because criminal proceedings are no longer within the jurisdiction of traditional courts as far back as the coming of the European overlords. It is even pertinent to state that the Constitution of the Federal Republic of Nigeria, 1999 (as amended) takes away criminal jurisdiction from some formal courts such as Customary Courts a fortiori traditional rulers’ courts.
One of the major challenges of the Traditional Courts in modern Nigeria is the enforcement of decisions emanating from civil proceedings of such Courts. It is a fact that litigants in civil matters before traditional courts often flout decisions and orders made by the courts. Some litigants even go to the extent of approaching conventional courts to quash such decisions.
As rightly noted by many scholars, decisions from traditional courts are seen by people as informal without any legal bite. So people tend to disobey such decisions with impunity. Compliance with decisions of traditional rulers depends on the respect people have for the ruler in question and the traditions of the community. The traditional ruler does not have coercive powers to compel compliance”.
The attitude of non compliance with the decision of the traditional court being exhibited by the people is tacitly aided by our legal system. The Constitution which is the grundnorm of the Nigerian legal structures and other extant laws does not accord traditional Courts any legal recognition thereby exposing them to ridicule.
Prospect of legal enforcement for decisions of Traditional Courts. In spite of the lukewarm attitude of people towards compliance with decisions of traditional courts manned by traditional rulers, there is hope that enforceability of such decision is gradually coming to the forefront.
Though there are no legal codifications backing the enforcement of traditional courts decisions, nevertheless, Nigerian conventional courts have given judicial force to these traditional courts decisions provided certain conditions are met.
In the case of Agu v IkewibeJustice A.G. Karibi-Whyte of The Supreme Court of Nigeria made the following statement: I venture to regard customary law arbitration as an arbitration in dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either CHIEFS or ELDERS of their community, and the agreement to be bound by such decision or freedom to resile where unfavorable.”
There is a long line of cases decided by courts in Nigeria predating independence in 1960, in which the courts have recognized and given effect to customary arbitration employed to resolve disputes by bodies vested with traditional judicial functions. The relevant point about this is that it shows that there has been a form of recognition of the informal system of conflict resolution by the formal system. A discussion of some of these cases would enable us to see the attitude adopted by the courts.
The plaintiff in the case of Agu v Ikewibe supra brought an action for the declaration to title to a piece of land and for damages for trespassing against the defendant. In his statement of claim, the plaintiff averred that this matter had been settled between him and the defendant previously when he had reported the matter to the chief and elders of their town who had given judgment in his favour.
The Supreme Court held that the arbitration by the elders was binding on both parties as a valid customary arbitration and that both parties were estopped from denying the validity of the arbitral decision. The court held that if the following conditions were satisfied then the courts would recognize a customary arbitration as valid and binding on the parties: If parties voluntarily submit their disputes to a non-judicial body, to wit, their elders or chiefs as the case may be, for determination; and the indication of the willingness of the parties to be bound by the decision of the non-judicial body or freedom to reject the decision where not satisfied. That neither of the parties has reviled from the decisions so pronounced.
From this, it is obvious that according to the law in Nigeria, a body such as the Olubadan-in-Council (or Ugha-in-Council in Ondo, Ile-Oluji and Idanre), is a panel whose decisions would be respected by a court of law, provided certain conditions are met. Care must be taken by anybody seeking to rely on the decisions of such a customary arbitral body to make sure that these conditions are present.
It is therefore our humble submission that Nigerian Courts through judicial activism have given force albeit tacitly to decisions made by traditional courts in Nigeria by declaring such decisions binding on the parties in a plethora of judicial authorities provided certain conditions as enumerated above are met.
It is the preliminary findings of this researcher that traditional Courts are not accorded its rightful place in Nigerian legal system in spite of its numerous advantages to our dispute adjudication and resolution system. Parties to proceedings before traditional Courts flout decisions and orders from such courts with impunity even despite the judicial recognition accorded such decisions by the Nigerian conventional courts in recent times.
In view of the above stated position, it is hereby suggested that there is need for the codification of the powers, functions and responsibilities of traditional Courts in Nigeria in a particular or specific statute in order to give it legal force. There is also the need to codify judicial pronouncements of the binding nature of traditional courts decisions on litigants before them. These judicial reforms will go a long way in giving force to decisions, awards, orders and judgments emanating from traditional courts in Nigeria.
In conclusion, it is our humble submission that the enforcement of decisions and orders of traditional courts in modern day Nigeria cannot be said to be encouraging. Governments at all levels still need to do more to ensure that traditional courts which enjoy the trust and confidence of people more than the conventional courts are given their rightful place in our jurisprudence.
Piece by Olaleye Steve Akintububo , Esq, During a day seminar on restructuring and strengthening of Palace Courts in Ondo State