LEGAL PRINCIPLE: CUSTOMARY LAW – Customary Arbitration – Need for Circumspection in Land Disputes
PRINCIPLE STATEMENT
It is a common feature of customary arbitration in a closely knit community that some of the arbitrators if not all, not only have prior knowledge of the facts of the dispute, but also have their prejudices and varying interests in the matter, and are therefore sometimes judges in their own cause and are likely to pre-judge the issue. Prior knowledge and pre-judging issues are more pronounced in land disputes having bearing with the founding of the village and how families migrated to the village and come to occupy parcels of land. The arbitrators are well informed on these matters. The position however is that traditional history is sometimes transmitted, received or construed with a slant by the person using it for a purpose. Hence it is essential before applying the decision of a customary arbitration as an estoppel for the court to ensure that parties had voluntarily submitted to the arbitration, consciously indicated their willingness to be bound by the decision and had immediately after the pronouncement of the decision unequivocally accepted the award.
RATIO DECIDENDI (SOURCE)
"It is a common feature of customary arbitration in a closely knit community that some of the arbitrators if not all, not only have prior knowledge of the facts of the dispute, but also have their prejudices and varying interests in the matter, and are therefore sometimes judges in their own cause and are likely to pre-judge the issue. Prior knowledge and pre-judging issues are more pronounced in land disputes having bearing with the founding of the village and how families migrated to the village and come to occupy parcels of land. The arbitrators are well informed on these matters. The position however is that traditional history is sometimes transmitted, received or construed with a slant by the person using it for a purpose. Hence it is essential before applying the decision of a customary arbitration as an estoppel for the court to ensure that parties had voluntarily submitted to the arbitration, consciously indicated their willingness to be bound by the decision and had immediately after the pronouncement of the decision unequivocally accepted the award."
EXPLANATION / SCOPE
Customary arbitrators in close-knit communities often have prior knowledge, prejudices, and interests—sometimes acting as judges in their own cause. This is more pronounced in land disputes involving village founding and family migration. Before applying a customary arbitration decision as estoppel, the court must ensure: (1) voluntary submission; (2) conscious indication of willingness to be bound; (3) immediate and unequivocal acceptance of the award. The principle recognises the potential for bias in customary arbitration. Traditional history may be slanted. The court must scrutinise the arbitration carefully. The party seeking to rely on the arbitration must prove these elements. The court will not enforce an arbitration that was not fair or voluntary. The principle protects parties from being bound by biased arbitrators.