Equilibrating the Organic Fluidity of Customary Law Arbitration and the Rigidity of Judicial Precedent

Abstract

Customary arbitration is about the most utilized mode of arbitration in Nigeria. However, in recent times, resort to customary law arbitration has been on the decline. While the courts to a large degree have contributed to the development of customary law arbitration in Nigeria, this article argues that the application of some aspects of the validity parameters set by the courts and reinforced overtime in line with the doctrine of stare decisisi have to a large extent contributed to the stultification of the growth of customary law arbitration. In providing a comprehensive insight into the underlying challenges, the paper draws from some selected landmark case law and questions the propriety of judicial legislation with specific regards to customary law. The paper concludes that while it is imperative to ensure predictability and certainty in the law and practice of customary law arbitration, these qualities would be better secured if the inherent organic nature of the Nigerian customary law is retained.