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Home » Articles » The Scope of Shariah Based ADR (Tahkeem & Sulh) in Nigeria – Adamu Adamu Jauro

The Scope of Shariah Based ADR (Tahkeem & Sulh) in Nigeria – Adamu Adamu Jauro

The Scope of Shariah Based ADR (Tahkeem & Sulh) in Nigeria

Abstract

This article illustrates the need for alternative ADR under Islamic law and offers analysis of different forms of ADR including Tahreem (arbitration) and Sulh (reconciliation). The benefits of ADR have gained global recognition as a substitute for litigation. The article begins with providing the foundation and nature of ADR in Islamic law. This paper examines the way and manner in which the Sunni school and the process of ADR recognize in Islamic law. This paper looks at the foundation of ADR in Nigerian law in arbitral proceedings and it further looks at the distinction and limitation of ADR under the Nigerian law, it also highlight the relationship between ADR and court in the relevant practical aspect of ADR. Additionally, it gives a brief overview of binding nature of arbitral award with applicability of ADR especially in sharia law. Moreover, this paper point out the jurisdiction of the Sharia Court of Appeal on ADR in Nigeria and listed some decided cases in Nigeria and finally arriving at conclusion.

Кey Words: Arbitration, tahkim, conciliation, sulh, Sharia law, Islamic Jurisprudence. Case law

Introduction

In Islam, arbitration is one of the many methods of solving disputes. It can be seen, in a contemporary manner, as an alternative to litigation. Although being an alternative to adjudication and becoming a fresh global term of the 20th century, arbitration has been revolutionized as a legal tool and fully practiced since the introduction of Islam in (610 C.E).[1]

Disputes and disagreements have been as old as man himself right from his creation by the Almighty Allah. This is due to the complexity of the nature of man. The crucial intermingling of a man and their interaction among themselves makes dispute and disagreement inevitably inseparable parts of life.

Dispute may occur between individual of the same families, tribes and community of the same country, sovereign nation, corporate bodies, institutions, political parties, religious bodies and so on and so forth. It is a typical fact in the countries such as ours with cultural, lingual and religious contrast. Dispute, if not quickly managed by settlement often result into bloody clashes and wars, which consequences are bitterly painful, undesirable of unfavorable results with irreparable damages and hardship. 

In order to checkmate disputes in whatever form; individual, societal, tribal, political, commercial, environmental, local or international, there must be a thoughtful and well researched approach to bring about peace and resolution between the disputing and warring parties, communities or nations. This is the primary goal and objective of Alternative Dispute Resolution.[2]

The concept of tahkeem is well developed in Islamic jurisprudence with additional elements that are inherently part of the process such as amiable compositions.  The ultimate goal of tahkeem is not to replicate the normal adjudicatory technicalities in the regular courts, but to employ the principles of fairness, equity, justice and parity in settling the dispute without infringing on any fundamental principle of Islamic law.[3]

Meaning and Foundation of ADR In Islamic Law

There are two words in Arabic used frequently to refer to ADR – Tahkim and Sulh. Tahkim is derived from the root hukm and means the involvement of another person. That person is an arbiter – Hakam or Muhakkam. The Parties or litigants choose the arbiter to solve their conflict and the arbiter makes them a binding decision.

There are 209 places in Qur’an that you can see the root of the word tahkim in 14 different forms. The term hakkama comprises the meanings as appointing a judge from someone or trusting the judgment to somebody else.  The Quran state; “But no, by your Lord, they will not [truly] believe until they make you, [O Muhammad], judge (yuhakkimuka) concerning that over dispute among themselves and then find within themselves no discomfort from what have judges and submit un [full, willing] submission.”[4]

There were two famous traditional pieces of evidence to be pointed out where the word al-tahkeem surfaces as arbitration of settling conflicts peacefully in public international and civil matters. Both the cases took place in the earliest Century of the Islamic era the first was between Muhammad (pbuh) and Jewish tribe Banu Quraysh, In this case, Banu Quraysh joined the enemy in the Battle of Ditch broke the promised alliance with the Prophet (pbuh).

When Muslims won the battle, the Prophet (pbuh) sent Ali (r.a.) to question the reason for their betrayal, but they replied by insulting Ali (r.a.). Once Banu Quraysh understood that they were unable to stand against Muslims, they agreed to submit the matter to Sa’d ibn Mu’adh (r.a.) to arbitrate and the Prophet (pbuh) agreed. The award of Sa’ad (r.a.) was in according to (Deuteronomy 20:10-18 of the Bible). Given that Jews had won the battle in which they would have killed men, women, and Muslims’ children.[5]

While the second is the case, between Ali Ibn Abi Talib (r.a.) and Muawiya Ibn Abi Sufyan (r.a.) The second example of the arbitration held was after an inconclusiveness of a four-month war called the Battle of Siffin (36 A.H. – 657 A.D.), which was occurred during the first Muslim Civil War (36-40 A.H. / 656-61 A.D.). The conflict was due to the fitnah that started after the assassination of the 3rd Caliph – Othman ibn Affan (36 A.H. / 656 A.D.)[6]

In the end, the last Rightly Guided four Caliphs – Ali (r.a.) and the first Umayyad caliph of the coming future -Muawiya (r.a.) mutually accepted to submit their disputes to arbitration to cease skirmishing conflicts. Muawiya (r.a.) designated Amr Ibn al-As; and Ali (r.a.) appointed Abu Musa al-Ashari to be an arbiter for him under the impulse of the faction of Qurra (Qur’an readers). After a course of discussions of arbitrators in Adhruh (38 A.H. / 659 A.D.), Amr convinced Abu Musa to depose both opponents and let the Muslims elect a new caliph through popular election (shura) to restore the peace.[7]

Tahkeem (Arbitration) is the best mechanism for resolution of any dispute and conflict between the involved parties in a business that is based on Islamic principles. This method is necessary because of the absence of Islamic laws for business, finance, and investment in the countries where Muslim minorities are present. Applying common law to such business dealings will be misapplication of the law and could result in further abuse of injured parties. And the good thing is that arbitration is even accepted in common law. Therefore, Muslim minorities should take legal benefit of such provision.

On the subject of Tahkeem (arbitration) the (Quran 4 Verse 35) states: “If you fear a breach between them (the man and his wife), appoint (two) arbitrators, one from his family and the other from her’s; if they both wish for peace, Allah will cause their reconciliation. Indeed Allah is Ever All Knower, Well Acquainted with all things”. Furthermore, Arbitration should be based on the important virtue and that is Adil (justice).

In any proceeding and decisions making the parties and the learned person or a group of learned persons who may be part of the arbitration should not lose the sight of Adil (justice). The (Quran 4 Verse 58) states “Verily! Allah commands that you should render back the trusts to those, to whom they are due; and that when you judge between men, you judge with justice”.[8]

It is interesting to note that ADR is not alien to Islamic law, though ordinarily one will ask what Islamic law has gotten to do with ADR. This kind of conclusion or notion is reached because of lack of understanding of the Islamic law and what it’s all about. The comprehensiveness of the Islamic law, otherwise known as Al-shari’ah, as a universal and an accomplished law needs no emphasis. This is evident from the fact that, Islam for decades before the modern civilisation brought about by Europe was the torchbearer of learning, sciences and scholarship.

It was an acclaimed system of religion, governance, politics, economics and adjudication. Shari’ah law which derives its origin from the divine message revealed to mankind through the noble Prophet Muhammad (pbuh) is universal in character, as it leaves no aspects of life and man without given adequate attention. The Supreme Court of Nigeria declared in the case of Alkamawa v Bello as thus: Islamic law is not same as customary law as it does not belong to any particular tribe. It is a complete system of universal law, more certain and more permanent and universal than English Common Law.[9]

ADR by the Sunni schools of Islamic Law

All sources of Sharia recognize arbitration; it does not receive any attention in the writings of the four Islamic schools. Though, the Islamic schools of thought recognize arbitration as a locum for a normal courts/litigation. This part will shade more light in brief on each school’s view.

The Hannafi School

According to the Hannafi School, the parties can submit their dispute to arbitration in all matters except matters relating to crime.[10] The scholars of this school uphold the contractual nature of arbitration and confirm that arbitration is legally similar to conciliation and agency.[11] They consider that an arbitrator works as an agent on behalf of the person who appointed him. The Hannafi School also stresses the connection between arbitration and conciliation.[12] For this school an arbitral award is more similar to conciliation than to the judgment of court and has less force than the judgment of a court.[13]

Shafi’i School

Scholars in this school allow arbitration to proceed in all commercial matters but not criminal matters. Arbitration in the Shafi’i school is a legal practice if there is no a judge in the place where the dispute has arisen.[14] According to the Shafi’i school, the award of the arbitrators is inferior to that of judges because arbitrators under this school are liable to be revoked by the parties until the issuance of the award.[15] Therefore, it is compatible with the law of the Majalla unless the judge confirms the appointment of the arbitrator.[16]

Hanbali School

The Hanbali School is that arbitration is permitted in commercial matters, and the arbitrator has the same jurisdiction as a judge.[17] According to this school, an award made by an arbitrator has the same binding nature as the judgment of a court, but an arbitral award has no value without a judicial review.[18]

Maliki School

The Maliki School believes that the application of arbitration is limited to commercial matters.[19] This school has great trust in arbitration and accepts that one of the parties can be chosen to be the arbitrator by the other disputing party in the same dispute that he is a party.[20] In addition, they believe that the arbitrator’s award is binding unless there is ‘flagrant injustice’.[21]

Forms and process of ADR in islamic law

Islamic law contains the following processes as means of dispute resolution:

 Sulh; Negotiation, Mediation and Conciliation, Compromise of action. Tahkim; Arbitration.

Sulh

Sulh is diverted from the root salaha, was another Arabic word that you would use when referring to arbitration, which contains, mainly, the idea of reconciliation. In the Qur’an, the word contains the meaning of a settlement made through peace and, or negotiation. One of the many Quranic references of the Sulh Said: “And if a woman fears from her husband contempt or evasion, there is no sin upon them if they make terms of settlement (sulhan) between them – and settlement is best.” [22]

Sulh was first practised by the Prophet (pbuh) in his early disciples upon whom the peace of Allah (S.W.A) during the incident that occurred between Makkah and Madinah called Al-Hudaybiyyah. This was when the Prophet (pbuh) wanted to perform lesser Hajj (Umrah) after he had been forced out of Makkah and migrated to Madinah. The incident took place towards the end of the sixth year of the hijrah; the Prophet left Madinah with a party consisted of about 1400-1500 men.

On hearing of the Prophet’s approach, the Makkans decided to oppose the entry of the pilgrims by a strong armed force under the leadership of Khalid bn Walid (who after embraced to Islam less than two years). When Prophet Muhammad (pbuh) became aware of this, he turned back and settled at a place known as Al-Hudaybiyyah.

When the representatives of the Makkan oligarchy met with the Muslims and they both decided to conclude the truce, a treaty was drawn to all warfare between Makkah and Madinah to be suspended for 10 years, that no entrance to Makkah by any of the disciples of the Prophet for that year; that any Makkan citizens who came over to the Prophet must be sent back to Makkah, but if the person is from the Prophet side, such person will not be sent back.

Islamic Jurisprudential Maxims, conciliation is the most honourable decision, al-sulh sayyid al-ahkam. This truce of Hudaybiyyah became a great event of history in Islam. Peace and tranquillity flourished for the first time between Makkah and Madinah; Islamic ideas perpetrated the Arabian Peninsula springs up unity between the communities which later prepared for the triumph in Islam and the entrance of the Prophet (pbuh) to the city of Makkah, the following year on pilgrimage with his disciples without any hostility or resistance. Tahkim and sulh are the terms that are well-treated in fiqh the legal doctrine of Islam.

Firstly, when it comes to scholarly definitions of the word tahkim, it is a process through which parties mutually agree to appoint a third person to act as an arbitrator of the conflicting case between them. The concept has been used actively since the creation of societies. It has tried to solve conflicts informally and has been favored almost by any nations under different names, definitions, or using another order of procedures interchangeably.[23]

The Prophet (pbuh) was reported to have said: “He who makes peace (sulh) between the people by inventing good information or saying good things (in his attempt to please the disputants) is not a liar.”[24]

The Prophet (pbuh) also gives preference to dispute resolution on prayer (salat), charity and alms (sadaqah and zakah) and fasting. He says: “Shall I inform you of a deed more rewarding than fasting, prayer and charity? It is the act of settlement between people, for bad relationships and disputes are like a razor (which can eliminate a community).”[25] Another evidence of the historic significance Islam attaches to settlement of conflicts and disputes is what was documented in the famous letter of Umar bn Al-Khattab (r.a) the Second Caliph of the Prophet to Abu Musa al-Ash’ariy (r.a) on the latter’s appointment as a Qadi (judge) which contains numerous injunctions relating to the administration of justice. One of those deal with sulh, “All type of compromise and conciliation among Muslims are permissible except, those which make unlawful (haram), lawful (halal).”[26]

The Prophet (pbuh) upheld the cause of sulh at a very difficult situation even when derogatory reactions were made against his noble personality and his mission. It is reported thus: When Allah’s apostle concluded the peace treaty of Hudaybiyyah, Ali bn Abi-Talib (r.a) was to put it into writing; at the opening chapter of the document, where he wrote: “between Muhammad the Allah’s messenger…” The non-Muslim object the part claiming if he (the Prophet) is an apostle of Allah, they would not fight with him. Allah’s Messenger asked Ali (r.a) to delete that statement. While Ali (r.a) declined saying that, he will not be the one to rub it off. The Prophet (pbuh) rose and rubbed it off in the interest of peace and settlement.[27]

The following are the essentials of Sulh agreement

  1. Al-Musalih Lahu (one who makes a declaration of claim).
  2. Al-Musalihu Alaihi (one against whom the claim is declared).
  3. Al-Musalih Anhu (Subject-matter in respect of which the claim is lodged) the subject matter of Sulh should be property (Ma’al) of value. The subject matter of sulh may emanate from dispute over anything lawful-be it dispute involving monetary claims, property, issues concerning marriage and divorce and lots of civil cases to the exclusion of Hudud cases.
  4. AL-Ijab and Al-Qubul (Offer and acceptance): Like any other contract under Islamic law, offer and acceptance are essential ingredients of Sulh. The offer as well as the acceptance may be conveyed in any expression that clearly illustrates the mutual consensus of the parties.
  5. Al-Musalih Bihi/Badl al-Sulh (the object offered for the Sulh/Consideration) this is the object or thing tangible or otherwise upon which the parties to the Sulh agree to be given as consideration in place of the right forgone by way of sulh. It must be Halal, valuable and beneficial. Al-Musalih Lahu and Al-Musalih Alaihi: the two conflicting parties (al-Masalih) should be persons who possess the legal capacity to surrender their rights, donate or make a gift and not otherwise. In accordance with the principle, an insane, a minor, a guardian over orphan’s property, an administrator over endowment funds (waqf), Shall have no legal capacity to validly dispose under Islamic law.[28]
  6. Tahkim
See also  Capacity to Contract (NG)

Tahkim is the translation of the word in Arabic called “arbitration” In Arabic form it was a verbal noun called “hakkama” (that signifies the turning of man back from his wrongful doing). Al-Zamakhshari defines the word ‘hakkama’ as making someone to be arbitrator (hakam/muhakkam).[29] Literally, tahkim means making someone an arbitrator (hakam) and to authorise him to pass judgment.[30]

According to Al-Mawardi, the word tahkim is an appointment by two disputing parties of the community to judge on a matter of both parties in dispute.[31] Wider also, gave his own definition, by a current Muslim scholar, Al-Zuhayli, who defined it, as an agreement by the parties to appoint a qualified person to settle their dispute in reference to Islamic Law.[32] According to the Majallah al-Ahkam al-Adliyyah,[33] tahkim signifies appointing a third party as hakam in an agreement by disputing parties to resolve their dispute.[34]

Arbitration tends to mention alongside settlement by an appointed judge (qaḍi). Arbitration is the lesser form of dispute resolution. In as much as, it undertakes pursuant to private authority, whereas settlement is by appointing a judge to perform pursuant to public authority.[35]

The word “Arbitration” is translated into Arabic form as ‘tahkim’. The Short Oxford English Dictionary defines it as “settlement of a question in issue by one, whom the parties agreed to refer their claims in order to obtain an equitable decision.”[36]

The Qur’an has also narrated another story indicating how a dispute was resolved by Prophet Suleiman and his father (peace be upon them) in the following words: “And remember Dawud and Suleiman, when they gave a judgment in a matter. Which sheep of a certain people to stray at night: We did witness their judgment. Prophet Suleiman (pbuh), we inspire the (right) and understand the matter of each of them. We gave Judgment and Knowledge”.[37]

Prophet Muhammad (pbuh) also narrated a similar story to his companions thus;

“There were two women, each of whom had a child with her and a wolf takes away a child belonging to one of them, the ladies where both contemplating on who’s baby the wolf took. They both carried the matter before Dawud (pbuh) who judged that, the living child should be given to the eldest lady. So both of them went to Suleiman the son of Dawud and informed him (on the case). He said, ‘Bring a knife and cut the child into two pieces and distribute it between yourself.’ The younger lady among said, May Allah’s blessing be with you! ‘Don’t do that, the child is hers’, (i.e. the eldest). He then handed the child to the younger lady.”[38]

The system of resolving disputes through arbitration has been known by the Arabs prior to the emergence of Islam and was an indicator of civilisation in the society. Tribal disputes and individual disputes were resolved through arbitration as there was no central power that could maintain order and also protect the rights of individuals during that period. Tribal princes and people renowned their superior wisdom, intelligence and justice used to stand as arbitrators.[39]

With the emergence of Islam, some Arab customs were adopted while many others were abolished. Arbitration happens to be one of such customs that was accepted and encouraged by Islam. The holy Quran mentions arbitration in several places. One of it is Suratul Al-Nisa (The women). Where Allah says: “Ye, fear the breach between the twain and appoint (two) arbiters, one from his family, and the other from her own, if they wish peace, Allah will cause their reconciliation: Allah hath full knowledge, and is acquainted with all thing.”[40]

Foundation of ADR in Nigerian Law

Alternative Dispute Resolution refers to various dispute management techniques, which allows for introduction of a neutral third party intervention. It denounces the gamut of traditional adversarial processes. Alternative Dispute Resolution only involves all forms of conflict management mechanisms, which are not ad-judicial; these include negotiation, mediation, and arbitration.[41]

ADR unravels systematic and professional ways through which third party neutrality can create opportunities to promote creative joint problem solving culture as well as supervision and facilitation of mutual good agreements, which consider the needs of the parties rather than their positions. But court adjudication basically considers positional views of the parties.

Before adopting ADR approach for the resolution of any conflict, the parties in dispute should ask the following questions: Despite the broken alliance or relationship, is there any need to restore the conflict-ridden relationship? Are there any communication problems, and is it necessary to seek for the assistance of skilled neutral third party intervention, and consider the reliability of such intervention? Are we (the parties) willing to meet to settle the areas of dispute? What level of importance do we (the parties) attach to confidentiality? Do we (the parties) wish to retain full control over the outcome? How important is time?[42]

Forms of ADR

Over the years, several alternatives have been found to litigation. ADR may be classified into two, mainly Binding and Non-binding ADR. Non-binding ADR includes Negotiations, Mediation, Conciliation and Neutral Evaluation. These methods of ADR are mainly consensual and reconciliatory. Binding ADR includes Arbitration, Mini-Trial Expert Determination and Mediation-Arbitration, also known as Med-Arb.[43]

 1. Arbitration

Ronald Davision; “Arbitration is a reference to a dispute for adjudication to a third party chosen by the parties in dispute, it has been described as a proven, useful and well understood method.”[44] Where two or more persons agreed on a dispute between them shall be decided in a legally binding by one or more impartial persons in a judicial manner. That is upon, the evidence put before him or them, the agreement is called arbitration.[45]

According to Roman M. R in the case of Collins v Collins;[46] Arbitration refers to a decision of one or more person either with or without an umpire, on a particular matter that arises between the parties. This is an agreement between the parties, that dispute between them should be settled by tribunal of their choice.[47]

There are two types of arbitration:

1). Voluntary Arbitration; and 2). Compulsory Arbitration.

Voluntary Arbitration

Voluntary arbitration is a binding, adversarial dispute resolution process in which the disputing parties choose one or more arbitrators to hear their dispute and to render a final decision or award after an expedited hearing. Voluntary arbitration implies that the two contending parties, unable to compromise their differences by themselves or with the help of mediator or conciliator, agreed to submit the dispute to an impartial authority, whose decisions are ready to accept. In other words, under voluntary arbitration the parties to the dispute can and do refer voluntarily any dispute to arbitration before it is referred for adjudication. This type of reference is known as “Voluntary Reference”, for the parties themselves volunteer to come to a settlement through arbitration machinery.

The essential elements in voluntary arbitration are:

The voluntary submission of dispute to an arbitrator, the subsequent attendance of witnesses and investigations and the enforcement of an award may not be necessary and binding because there is no compulsion.

Voluntary arbitration may be specially needed for disputes arising under agreements.[48]

Compulsory arbitration

Compulsory arbitration, on the other hand, is a non-binding, adversarial dispute resolution process in which one or more arbitrators hear arguments, weigh evidence and issue a non-binding judgment on the merits after an expedited hearing. The arbitrator’s decision addresses only the disputed legal issues and applies legal standard. Either party may reject the ruling and request a trial de novo in court. Compulsory arbitration is where the parties are required to accept arbitration without any willingness on their part. When one of the parties to a dispute feels aggrieved by an act of the other, it may apply to the appropriate government to refer the dispute to adjudication machinery. Such reference of a dispute is known as “Compulsory” or “Involuntary” reference, because reference in such circumstances does not depend on the will of either the contending parties or any party to the dispute.

Under Compulsory Arbitration, The Parties Are Forced To Arbitration By The State When:

The parties fail to arrive at a settlement by a voluntary method.

When there is a national emergency, which requires that the wheels of production should not be obstructed by frequent work stoppages.

The country is passing through a grave economic crisis.

There is a grave public dissatisfaction with the existing industrial relations.

Public interest and the working conditions have to be safeguarded and regulated by the state. Compulsory arbitration leaves no scope for strikes and lock-outs; it deprives both the parties of their very important and fundamental rights.[49]

In Court of Appeal case C.N Onuselogu Ent. Ltd v Afribank (Nig) Ltd, defined arbitration in the following terms: “An arbitration agreement is where two or more persons agree that a dispute or potential dispute between them shall be resolved and decided in a legally binding way by one or more impartial persons in a judicial manner, upon evidence put before him or them”[50] In Supreme Court of Nigeria in the case of NNPC v Lutin Investment Ltd (which define arbitration by Halbury’s Laws of England. “Reference of a dispute or difference between not less than two parties for determination, after hearing both sides in a judicial manner, by a person or persons other than a court of competent jurisdiction.”[51]

However under the Arbitration and Conciliation Act, the arbitral proceedings are determined either by statute or by the arbitral tribunal. In accordance with the procedure contained in the

“The proceeding before the Arbitral Tribunal shall be governed by some Rules and where these Rules are silent, by any rules which the parties failing them in the Arbitral Tribunal may settle on, whether or not reference is thereby made to the rules of procedure of national law to be applied to the arbitration”.[52]

Arbitration has been classified into different other types by Nigerian courts. For example, the Supreme Court of Nigeria in the case of Ohiaeri v Akabeze defines “customary arbitration” as: “An arbitration in dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either the chiefs or elders of their community, and the agreement to be bound by such decision or freedom to resiled where unfavorable”[53]

The courts are always wary in holding that a particular customary arbitration has extinguished a party’s right to litigate on a matter. Apart from the fact that the arbitrators might be largely illiterate, personal or family prejudices and alliances may operate to the detriment of one of the parties to the dispute.

Akpata JSC stated the rational for the caution by the courts in the following words: “It is a common feature of arbitration in a closely knit community that some of the arbitrators, if not all, not only have prior knowledge o f the facts of the dispute, but also have their prejudice sand varying interest in the matter and are therefore sometimes judge s in their own cause and are likely to prejudge the issue.”[54] Likewise, there has also been a reference to “domestic arbitration” which means arbitration between parties who are residents of the same country. These parties have commercial contracts, which guide their businesses in that country. Any disagreement resulting from operating the contracts can be resolved via domestic arbitration.

2. Negotiation

This involves discussion or dealing about a matter, with a view of reconciling difference and establishing areas of agreement, settlement or compromise that could be mutually beneficial to the parties or that would satisfy the aspiration of each party to the negotiation. This is usually the first step in most ADR, negotiation is certainly one of the oldest form of ADR. It consists of a “Quid pro Qou” of a sort, which is giving up something in order to get something in return. Compromise here insinuate flexibility on both sides, and flexibility derive from a genuine desire on the part of the parties to reach to an agreement.[55]

In Negotiation for Settlement does not blind on the parties unless they agree to be bound by it. In an illustration in the case of Ekwueme v Zakari[56] in that case, dispute between the parties arose in respect to management of an hostel business jointly operated by the parties. Friends to the parties Suo Motu invited them with the view of helping them resolve their differences. After hearing the disputing parties, the friends rendered decision on the dispute. One of the parties rejects the decision. Consequent upon which the other party sued to enforce the decision. The court dismissed the action holding that the parties were not bound by the decision since they did not prior to the negotiation agree to the bound by the decision. However a decision in a negotiation for settlement will become binding on the parties if they accept it. In that instance it transaction into settlement.

In Ras Pal Gazi Construction Company Ltd v Federal Capital Development Authority, the Supreme Court held that; “Parties may settle their dispute by consent in course of trial, such settlement is a compromised in order to have binding effect on the parties, it is important to have the blessing of their courts. So when the courts adopt the term of their settlement and makes it its judgments, then the judgment assumes the position of a consent judgment binding upon the parties.”[57]

Thus where the parties are still in court they can still adopt this method of ADR and most important feature of this settlement is unlike arbitration award, which cannot be converted into court judgment, but settlement can be made a court judgment.[58]

3. Mediation and Conciliation

The conciliation is usually a respected a trusted person of the parties in dispute, he is a neutral concerned third party seeking to know whether they are willing to settle their dispute amicably. If the parties agrees, they meet jointly listen to them as they meet their prospective issues, followed by questioning and draw out the various issue raised by the parties. He then analyse the issues on both sides aided by documentary evidence furnished where applicable and parties are free to accept or reject the drawn up proposal offer.[59]

Though much like the conciliation, a mediator does not decide a dispute between the parties. However the conciliator and the mediator never get the extend providing a proposed solution to the parties. Mediator he being a respected and trusted third party, merely works to get the parties resolve their differences by themselves with his assistance. He employs all or some of the method used by the conciliator as stated. But does not propose any solution to the parties and has no power to coerce the parties in reaching into a settlement.[60]

Mediation is often referred to as conciliation where the two terms are in most cases used interchangeably as if they are the same. It is also a non-binding procedure. This implied when parties agreed to submit their dispute to mediation, no decision can be forcefully imposed to a party. In order for a peaceful settlement, the parties must all agrees to accept it. Mediation is a facilitative process in which disputing parties engaged the services of neutral third party trusted by them who acts as a mediator, a facilitating intermediary providing a nonbinding assessment of the merit of the dispute, if so mandate, who cannot make any binding adjudicatory decision.[61]

Mediation could be contrasted with conciliation by relying in the literature of Redfern and Hunter, whereas they stated the terms of mediation and conciliation are sometimes used as if they are interchangeable and there are no general agreements on how they should be defined. A mediator is usually taken to be a person accepted by parties whose role is to help them reached to an agreed settlement. He will see each party and listen to their respective views.[62]

4. Facilitation

When a neutral party enters discussions to help the parties work towards consensus, the process is described as – “facilitated negotiation” or “facilitation”. The “facilitator” does not concentrate on the substance of the issues for discussion.  Rather, he or she assists the parties to focus on the salient issues to improve their chances of reaching an agreement.[63]

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5. Mini-Trial

The mini-trial is a form of evaluative mediation, which is a non-binding ADR process; it assists the parties to a dispute to gain a better understanding of the issues in dispute, and so enables them to enter  into settlement negotiation on a more informal basis.[64] The mini-trial procedure is recently developed. 

It is intended to facilitate the exchange of information among parties and provide the necessary basis for the parties to fashion a settlement.  It resembles a trial, in that a Lawyer for each party presents the party’s case.  The presentations are short, typically for about four hours duration and are heard not by a judge but by representatives of each of the parties who have authority to enter into a settlement.

In many cases, a neutral third party is engaged to preside and assist the parties in reaching agreement.  Following the presentations, the party representatives meet (with or without the neutral) to negotiate a settlement.  At the discretion of the parties, the neutral can offer an advisory opinion to facilitate discussions. There are no rules governing the conduct of mini-trials.  Typically, procedures are agreed upon by the parties in writing, prior to initiation of the process.[65]

A mini-trial provides a means for exchanging information necessary to the development of a settlement.  It allows opportunity for advocacy while keeping the dispute narrow and eliminating many of the legislative and collateral issues that arise in litigation.  It is the responsibility of the representatives designated by the parties to resolve the dispute.  Even where no settlement is reached, the information and perspective gained through the procedure, typically, are beneficial and result in expediting resolutions of the matter at trials or other more formal proceedings.

A mini-trial is often meaningfully employed after negotiation has broken down, mediation has been tried or rejected and the parties already have a considerable investment in pending litigation, but are willing to try a structured but none binding way to expedite a settlement. If the case is already in litigation when they decide to attempt a mini-trial, they may consider seeking a stay of the action; then, they must draw up a mini-trial agreement.  The agreement should be dispute.[66]

6. Expert Determination (E.D)

Expert Determination is a voluntary process in which a neutral third party, who is usually an expert in the field in which the dispute arises, gives a binding determination on the issues in dispute. A dispute may be referred to Expert Determination either by means of a term in a pre-existing agreement or on an ad hoc basis. It is quick, inexpensive and private method of resolving disputes. Unlike an arbitrator, an expert has no obligation to act judicially, although he must act fairly. The decision of an expert is, generally, only challengeable on very limited grounds. This method of ADR has only begun to grow in this part of the world but is very common in Europe and some commonwealth jurisdictions. It is particularly well established in the construction industry, particularly in the form known as “adjudication.”[67]

7. Mediation-Arbitration (Med-Arb)

Mediation-arbitration is a two-step dispute resolution process involving both mediation and arbitration.  In Mediation-Arbitration, parties try to resolve their differences through mediation, where mediation fails to resolve some or all the areas of dispute, the remaining issues are automatically submitted to binding arbitration. In its traditional form, mediation-arbitration uses a neutral that must be skilled in both procedures, in other to guide parties through the mediation phase and to preside over the arbitration and render a final, binding decision.  The final result in a mediation-arbitration combines any agreement reached in the mediation phase with the award in the arbitral phase.[68]

Relationship between adr and court

In Mitshibushi Motor Corporation v Solar Chrystal Phymouth Inc. Blackman J. of the United States Supreme Court observes that,

“The judicial desirability of arbitration and the competence of arbitral tribunal inhibited the development of the arbitration as an alternative means of dispute resolution.”[69]

In Scott v Avery, lord Campbell (as he then was) summarized the court relationship with that of ADR as:

“ There is no disguising the fact that as formally, the emolument of the judge depend mainly or almost entirely upon fees and they hard no fixed salary, there was a great competition to get much in litigation in Westminster Hall, and a great scramble in Westminster Hall for the division of the spoil, and hence the dispute between the different courts about the effect of (latital a capias and a quo minus the latital) bringing business into the court of Queen’s bench, the capias in the common plea,  and quo minus into Exchequer. They had jealousy of arbitration whereby Westminster Hall was robbed of those cases which came neither into the Queen’s Bench nor Common Plea or Exchequer.”[70]

In a Nigerian case where Per Justice G Oguntade JCA (As He Then Was) delivered a dissenting judgment;

“The regular court in the early stage of Arbitration were reluctant to accord recognition to the decisions or award of the arbitrations. The attitude shows substantially from reasoning that arbitration constitute a rival body to the courts. But its was latter realized that arbitration may be the best type of settling some court dispute. The attitude of the regular courts to arbitration latter gradually changed ”[71]

The Court includes the Nigerian Courts, which began to play a facilitative role in ADR. The existing provision for ADR is in High Court Rules of various States in Nigeria.[72]

A. Power of Court in Arbitration

The Arbitration Act of various Country incorporated within it provisions which empowered the Court to intervene in the arbitral process. In Nigeria, the Arbitration and Conciliation Act, which provided the intervention of the Nigerian, courts in arbitral process? These interventions are namely; Revocation of arbitration agreement.[73] An order for stay of proceeding.[74] Power to appointed and remove arbitrator.[75] Power to order for attendance of witness.[76] Power to impeached award.[77] Power to recognized and enforce an award.[78]

Recovery of Arbitration Agreement. In Section 2 of the Arbitration and Conciliation Act, Cap 19 provide that. “Unless a contrary intention is expressed therein, an arbitration agreement is irrevocable except by agreement of the parties or by leave of the court or judge.” The same Section failed to make provision for such circumstances that rise the revocation of arbitration agreement by Court or Judge. The application to revoke the arbitration agreement by the Court is based on thwarting of the arbitration agreement.[79]

2. Power to Grant Stay of Proceedings

It was held in the case of Hallam v. A.G. Plateau State, “An agreement made by the parties stipulate that any dispute arising must be referred to a referee, it would amount to jumped the queue for any of the parties to resolve in the court first before the dispute between them is referred to an appointed arbitrator.” Also in the case of Commerce Assurance Ltd v. Alli.“Compliance with the agreement of the parties by moving to arbitration is a condition to be notice before the commencement of an action in Courts.”[80]

Consequence follow up with section 4 and 5 of this Act, the provision of these two section has been elaborated as follows. Section 4 (1) of the Act provide that, “A court which the subject matter is Arbitral Agreement is brought shall, Any party so requests not later than when submitting his first statement on the substance of the dispute, may order a stay of proceedings and refer parties to Arbitration.”[81]

Section 5 (1) Provide that; “Any party to an Arbitral agreement commenced action in any court with respect of any matter which is the subject to an arbitral agreement and any party to the agreement may, at any time after appearance and before delivering any pleadings or take any other steps in the proceedings, apply to the court for stay of proceedings.”

Section 5 (2) provide that, a court to which an application is made under sub section (1) of this section may, if satisfied, that there is no sufficient reason as to why the matter should not be referred to arbitration in accordance with the arbitration agreement, and that the applicant was at the action was commenced and still remains ready and willing to do all things necessary to the proper conduct of arbitration, an order made for stay of proceedings.[82]

For a court to grand to grand stay of proceedings in arbitration agreement, which there must be a filed application made by the parties and only the party can do so in respect to such agreement. In the case of African Insurance v Nigeria LNG, where the court held; “Evidence from provision of Section 5 (1) that the applicant for Stay of proceedings must be party to the arbitral agreement, and the subject matter to the action must be with respect to the arbitration agreement.”[83]

3. Power to Appoint Arbitrators

An application shall be made to court with competent jurisdiction to determine the subject matter in respect of arbitration agreement. In the appointment of arbitrators by the court is the fundamental basis pursuant to the court is enjoined and exercises his discretional power to determine the following factors.  Whether the dispute complained falls within the agreement of the parties or whether the parties have failed, refuses or neglect to appoint the arbitrators to slog the dispute.[84] The court at this level is not expected to determine the merit and demerit of the dispute, which has, arise, this will amount usurpation the functions of Arbitrators sought to be appointed by the court.[85] In this case the only duty of the court is to determine whether the dispute has arisen within the armpit of Arbitration Agreement of the parties.[86]

4. Power to Compel Attendance of Witnesses

Section 23 (1) of an Act provides that,” the court or judge may order for Subpoena ad Testificandum to compel any witness to appear before the Court wherever he may be within Nigeria.”[87] This application issued is to call upon a witness to testified-in-chief before a court of competent jurisdiction and to be cross examined by the other party. Where a person to testify is in the Nigerian Prison knows Correctional Centre, the Court or Judge will issue an order for his attendance. Section 23 (2) of this Act stated that, “The Court may issue a writ of habeas corpus ad testifandum to Summon a prisoner for examination in any tribunal court.[88] As regarding services of witness summons or court order, the provision of the law relating to that, is service or execution outside the State. Such subpeana or order for production of a prisoner issued or made in civil proceedings by the High Court shall be applied.[89]

5. Impeachment of Arbitral Awards by Court

The arbitral tribunal has no jurisdiction to impeach its own award save and accept for ICSID award.[90] A party to the arbitral proceedings who is not satisfied with the award for any good reason has a right to apply to the court to set side the award. Section 29 & 30 of the Act, the court has conferred with the jurisdiction to impeach an arbitral award for misconduct, lack of jurisdiction.[91] In a decided case of Kano State Urban Dev. Board v Fans Constitution Co. Ltd, the Supreme Court set out the principles of impeachment of arbitral award as follows. Improperly procured of award for example, if the arbitrator have been deceived or a material evidence has been fraudulently concealed, and that the arbitrator has misconducted himself or the proceedings. That, there is error at law in the face of the award. If the arbitration is in several stages, the ground for setting aside the award must be found on the stage that has been reached.”[92]

In addition if and award is impeached based on surfeit jurisdiction which could be procedural or substantive. The limitation period within which an award can be impeach by court for lack of jurisdiction in Nigerian is within three months[93] In this supreme court case of Arake v. Ejeagwu stated that three months period as in Section 29 of this Act also applies to Section 30 of the Act which is impeachment for reason of misconduct.[94] According to Katsina Alu (JSC) as he then was. In the case K.S.U.B.D v. Franz Const. Co. Ltd. “The Prescribed time within which to make application to set aside arbitral award under the Arbitration and Conciliation Act, of 1988 is three months form the date of the award irrespective of whether the application is predicted under Section 29 or 30 of the Act.[95]

6. Power to Recognize and Enforce an Award

For an arbitral tribunal to become functus officio rendering it final award, which must be in writing, signed and dated. Unless the parties have agreed as on reason for place of arbitration must be stated. All parties must publish the award.[96]

Where arbitral award can be enforced by law, where action will commence by writ of summons and ordinary or specially endorsed the writ. Section 31 (1) (2)(a) (b) and 3 of the Act, an arbitral award shall be recognizes by binding subject to Section 32 of the Act, shall upon an application in writing to the court, shall be enforced by the court. Arbitral award may by leave of court or judge be enforced in the same matter as a judgment. The procedure for enforcement is by leave of court or judge vie originating summons and must be served on the adverse party.[97]

Binding Nature Of Arbitral Award In Sharia Law

According to Gemmel: “Only a minority of Shafi’i scholars dissent from the generally accepted view that arbitration awards have the same res judicata effect as a judgment made by a Qadi”. Maliki and Hanbali commentators consider an arbitration award as binding and enforceable as an ordinary court judgment. Most Hannafi scholars and the Medjella require no affirmation of an arbitration award by a Qadi.[98]

Thus, the arbitral award is binding where the agreement to arbitration is revocable under Sharia law[99] The general rules of contract law are applied to arbitration agreements under Sharia.[100]

Applicability Of Adr In Sharia Courts In Nigeria

This paper shall focus on Katsina State as a case study. Katsina State is one of the 36 states of the Federal Republic of Nigeria Created by the Laws of the Federation practice of Islamic law is operative and well-practices. The State Judiciary to some Northern States presently consists of two types of Courts, the first one is Common Law based and the second is Islamic law based. The constitutionally recognized courts in Nigeria can also be classified in such manner, while the High courts mainly preside over by the Common law. The Sharia Courts of Appeal governed by some aspects of Islamic law and the Customary Court of Appeal governed by customary law.[101]

It is worthwhile to reiterate that Islamic law is an independent Legal System in Nigeria, distinct in body, structure and source from any other law, the term ‘Sharia Court’ refers to Islamic law based Courts, their organizational structure exists in hierarchy, in Katsina State the Courts that governed Islamic law matters are; Sharia Court, Upper Sharia Court and Sharia court of Appeal this is similar to most other states wherein there are Area court, Upper area court and Sharia Court of Appeal. While the Sharia Court/Area Court, Upper Sharia Court/Upper Area Court exist as lower courts and are established by statutes the Sharia Court of Appeal is a creation of the constitution and maintains the position of a superior court of record.[102]

The Sharia courts in Katsina State like most other states where these courts operate e.g. Kwara State adopts the Maliki School of jurisprudence to the extent that inference and reference will only be made from other schools in instances when the Maliki school is silent or seems insufficient on the subject matter to be adjudicated upon. To this end the Sharia Courts preside over Civil Cases, Criminal Cases (in some instances), and also it gives room to the institution of Tahkeem/Sulh as provided for by the Maliki School of jurists in their works. The practice of Tahkeem/Sulhu is placed on the provisions that States as follows;

‘A court may, with the consent of the parties to any proceedings, order the proceedings to be referred for arbitration to such person or persons and in such manner and on such terms as it thinks is just and reasonable.’[103] As cited above, it serve as the legal basis for Sharia Courts on the application of Tahkeem/Sulh (Amicable settlement) also it indicates that party are at liberty to have their disputes referred by the court to a professional arbitrator to avail them the opportunity to settle the dispute out of court.

See also  Fundamentals of Appeal (Right, Ground, Cross) - Ega Chinedu Bright

Jurisdiction of Sharia Court of Appeal on Adr In Nigeria

Jurisdiction can be defined as the power or competence of a court to adjudicate or exercise judicial power over any subject matter, jurisdiction has also been described as the life wire of any case to the extent that a court that lacks jurisdiction and adjudicates, no matter how excellent the adjudication is has embarked on a futile exercise.[104] Therefore it is quite important to examine whether or not the Sharia Courts have the jurisdiction over cases amenable to Sulh.

The Sharia Courts administer Islamic law matters using the Primary and Secondary sources as the: Holy Quran (Almighty Allah’s words), Hadith (The deeds of the Messenger of Allah), Qiyas (Analogical deduction) Ijmaa (Consensus of agreement), Ijtihad (Independent Reasoning) and also sometimes the Tertiary sources will be used as: Istihsaan, Maslaha Mursalah, Sadd-d-Daree’ah among others. It can be derived from these sources that Tahkeem/Sulh is recommended, some of the textual authorities indicating such have been referenced to above.

Therefore since the practice of Sulh can be traced to the sources of Islamic law that are the judicial instruments of the Sharia Court and it is not inconsistent with the laws of the country especially the Constitution it is correct to conclude that the Sharia Court has jurisdiction to administer cases amenable to Arbitration Tahkeem/Sulh. The types of cases amenable to sulh before the Katsina state sharia courts are normally those that fall within the jurisdiction of the sharia courts in matters involving the application of Sharia law over disputes arising between Muslim. These include cases involving divorce, custody of children, marital causes, inheritance, and contract among others. Regarding matrimonial cases, upon institution of an action before the Sharia Court, the parties are usually given the opportunity to explore avenues for out of court settlement which is a respite period given to the parties to return home to consider the issues at stake with a view of settling. There upon the court will request for Al-Hakamain (Arbitrators) from the families of the two parties pursuant to the Quranic injunction.

After Sulh has resolved the matter two options are available to the Courts, which are whether to confirm the award or resolution reached by the Sulh and adopt same as judgment or to set it aside and hear the case all over, this is provided in

Order 12 Rule 2 of the Sharia Court Civil Procedure Rules, which states: On consideration of the report or award of the arbitrator the court may: –

A. Confirm any award of the arbitrator and enter it as judgment of the Court; or

B. Set aside the award and fix a date for the hearing of the case by the court and proceed to the hearing of the case accordingly. The second option will be opted only when Sulh failed.

Evaluation of Cases Citing Adr

It is pertinent to review some of the decided cases of the Sharia Court that are illustrative of the principles of Sulh, within the judicial system.

In the case of HADIZA YAHAYA V SHU’AIBU MARAFA, the plaintiff complained of deprivation of sexual union and for bad inter-personal relationship by her husband thereby seeking for the dissolution of their marriage. The husband disputed the allegation that it was the wife who was not co-operating with him and the husband requested that the wife should return back all what he had spent on her in the process of contracting the marriage for him to agree to their separation. The court sought for the appointment of Hakamaan for the parties. Following the agreement of the parties i.e. their mutual consent of ending the dispute through Khul’u, the court eventually ordered the separation of the parties by way of Khul’u for the wife to payback the amount of dower settled upon her by her husband.[105]

In the case of HAMZA ALIYU V MAKAMA ABDULLAHI, the plaintiff and one Alhaji Adamu Idris were neighbours who own adjacent lands and the said Alhaji Adamu Idris sold his plot of land to the defendant. The plaintiff complained that the defendant had encroached upon certain portion of his land by building a fence that extends to almost three feet. When the plaintiff complained to the defendant, he replied that he only builds upon what has been sold to him by the plaintiff’s neighbour Alhaji Adamu Idris. But when the court called Alhaji Adamu Idris, it became evident that the defendant stepped into the plaintiff’s land by some three feet. The defendant later pleaded with the plaintiff that he had already spent money by erecting a fence unto the plaintiff’s land the plaintiff should kindly collect something in place of the three feet’s encroached by the defendant. The parties therefore reached a sulh that the plaintiff should forgo his right over the piece of land encroached by the defendant and that the defendant should pay to the plaintiff its monetary cost. In this type of sulh, it is much more reminiscent of asale contract and that Sulh as a contract ordinarily have the effect of being a sale where there is exchange of something in lieu of the right relinquished by the other party.[106]

In the case of ALHAJI USMAN YA’U V LAWAL MUSA, the plaintiff who is a trader was approached by the defendant to grant him 5 bags of fertilizer totalling N20,000 on credit, the Defendant to settle the amount at the end of the farming session. It took on more than two months after agreed period without the defendant appearing to give back the amount of the fertilizers he collected nor did he give information about what happened.

The plaintiff’s complain was therefore a demand of the #20,000 as debt against the defendant. From his own side, the Defendant requested the plaintiff to passionately grant him more time till when the market price of his farm produce has increased for him sell same and settle the plaintiff or that the plaintiff should agree to collect some bags of maize equivalent to the value of his money. The parties finally reach to a sulh that, the defendant should settle the debt in the next forty days and as a result, the plaintiff thereby agreed to withdraw the case whenever the amount is finally paid. A look in to this case will show that Sulh is advantageous to the two side, while the plaintiff has been relieved of the burden to proof the guilt of the defendant and the stress of going to court repeatedly, the defendant on the other hand has been granted an extension of time within which he can pay his debt.[107]

Conclusion

All in all, arriving at this point, there are areas of compatibility between Islamic law and English law as regards to ADR in Nigeria and there is a need for Islamic ADR methods to enjoy the benefits of their applications and appreciation of ADRs and Islamic solutions to its cons must be considered.

Although the Islamic legal practice of arbitration (Tahkim) and reconciliation (Sulh) gain recognition according to Quran and Sunnah and it’s flexible, integration and adaptation as to help or satisfied option than litigation. Besides, the modern success of ADR, especially Islamic ones proves that this is the most promising way of solving conflicts/dispute outside the courtrooms without leaving contemporary legal frameworks. So the total process would be for its soul purpose and practiced in all civil cases, family issues and if it is practiced properly the burden of cases would definitely reduced.

There are many verses in Qur’an, which confirm that, along with several cases that happened and resolved by ADR in early period of Islam. Shari’ah has an open conception with regards to arbitration and it encourages this means of ADR. Meanwhile, it has shown that Shari’ah is more flexible than the Western laws in some areas that relate to arbitration (Tahkim). We note that there are texts in the Holy Qur’an encouraging disputing parties in family issues to appoint arbitrators to settle their disputes

The Islamic law of Jurisprudence, according to Hanbali School, allows the use of ADR for the settlement of all kinds of disputes, be it civil/criminal or family issue. Unlike English legal system that limits the use of arbitration to those cases, which is regarded as commercial and civil beside to some family issues. Undoubtedly, this views the encouragement of Islam to the use of ADR and gives Shari’ah the advantage and disadvantages over other systems and latter prohibit/limitations recourse to ADR in those fields.

The judicial authorities in Nigeria should refer to such as condition and list it on the top of qualifications and conditions that parties must resort to ADR before going into litigation. Otherwise, it would be regarded as a large breach to Shari’ah and Nigerian System of country. It should also give a legal interpretation as to what personal status of disputes, are not capable of settling by ADR.


[1] Cherine F, ‘The Evolution of Arbitration in the Arab World’ http://arbitrationblog.kluwerarbitration.com/2015/07/01/the-evolution-of-arbitration-in-the-arab-world> Accessed 5 Decmber, 2023

[2] Hon. Justice Idris Abdullahi Haroon, FHNR ‘The Use of Alternative Dispute Resolution Sulh in Sharia Cases.’ National workshop for Area/Sharia/Customary Court Judge/Directors and Inspectors (Organized by National Judicial Institute, Abuja 2017) p. 3

[3] Rashid, SK, ‘Alternative Dispute Resolution on the Context of Islamic Law.’ The Vindobona Journal of International Commercial Law and Arbitration 8 (1), (2004): 95-118.

[4] Quran 4 Verse 65

[5] Mirza, Bashiruddin, “Life of Muhammad.” Reprint UK: Islam International Publications Ltd. (2013)

[6] Wilferd Madelung, ‘Succession to Muhammad, Study of the Early Caliphate’. (Reprint: United Kingdom Cambridge University Press. 1997)

[7] Majid Khadduri, ‘War and Peace in the Law of Islam’ (Reprint. New Jersey: The Lawbook Exchange, Ltd. 2010)

[8] Dr. Mohammad Manzoor Malik, Islamic Social Contract on Finance for Muslim Minorities

[9] Sharia Quarterly Law Report (2013), Vol. I Pt. I, p.13

[10] Abdul Hamid El- Ahdab, ‘Arbitration with the Arab Countries’ (Kluwer law international 1999) 16; Baamir (n 24); Kutty (n 25); Gemmell (n 114) 17

[11] Baamir (n 24) [60]–[61]

[12] Gemmell (n 114) 175; Baamir (n 24)

[13] Gemmell [n 114] 175; Kutty [n 25) 598.

[14] Samir Saleh, ‘Commercial Arbitration in the Arab Middle East: A Study in Shari’a and Statute Law’ (1st ed, Graham & Trotman 1984) 12

[15] See Baamir (n 24) 61; Gemmell (n 114) 175– 176; See also Kutty (n 25) 598

[16] Under article 1847 of the Majalla citied in Baamir (n 24) 61

[17] See Baamir (n 24) [75]–[80]

[18] Baamir (n 24) [75]–[80].

[19] Ahdab 19; Gemmell (n 114) 176; Baamir (n 24) 61

[20] Baamir (n 24) 61; Citied in Gemmell (n 114) 175; see also Ahdab 19.

[21] Kutty (n 25) 598

[22] Quran 4 verse 128

[23] Martin, Gunther. ‘The Oxford Handbook of Demosthenes’. (Oxford University Press. 2019)

[24] Muhammad Muhsin Khan ‘Sahih al-Bukhari (English Translation)’ Vol.3, pg. 533.

[25] Sa’dy, ‘Tafsir’ Vol.1, pg. 202.

[26] Journal of Asiatic ‘Society’ 307 at pg. [311]-[312] (A. A. Fayzee), ‘Modern Approaches to Islam,’ pg. 41-46

[27] Tafsir Sa’dy, Vol.3, pg. 533

[28] A paper Being presented by: Hon. Justice Idris Abdullahi Haroon, FHNR ‘The Use of Alternative Dispute Resolution (Sulh) in Sharia Cases’

[29] Al-Zamakhshar, M., (1985), Asas Al-Balaghah. Egypt, al-Hai’ah al-Misriyyah al-‘Ammah.

[30] Ibn Sayyidah, A., (n.d.), Al-Makhsas, Beirut, Dar al-Fikr

[31] Zahraa, M and Hak, N: Tahkim (Arbitration) in Islamic Law Within the Context of Family Disputes, (Arab Law Ouartelv 20. 2006), P.2-42

[32] Al-Zuhayli, W, Al-Fiqh Al-Islam wa ‘Adillatuhu. (Damascus, Dar al-Fikr 1989)

[33] It is the first civil codification of Muslim law. It represents an attempt to codify part o f Hanafi fiqh on mu’amalot (transaction) in the Ottoman Empire

[34] Majallah al-Ahkam al- ‘Adliyyah, article 1790

[35] Ibn ‘ bidīn, Ḥāshiyah Radd al-Muḥtār, 5:428.

[36] The Shorter Oxford English Dictionary. (3rd ed, 1969).

[37] Quran 21 Verse 78 and 79.

[38] Bukhari, M., Sahih Bukhari’s, 4, (55:637), available at: httD://www.usc.edu/schools/college/crcc/engagement/resources/texts/muslim/hadith/bukhari/055.sbt.html.> Accessed 11 November, 2021

[39] Zahraa, M. and Hak, N: Tahkim (Arbitration) In Islamic Law Within The Context Of Family Disputes. (Arab Law Ouartelv, 20, 2006) P 2-42.

[40] Quran 4 Verse 35.

[41] Burgess, H. and Burgess, G.M, Encyclopedia of conflict Resolution, Santa Barbara, ABC – CLIO (1997).

[42] Goldberg, Stephen: Sander, Frank E. A.; Rogers, Nancy H. Dispute Resolution: Negotiation, Mediation and other processes, Little, Brown and Co (1992).

[43] Orojo, J.O and Ajomo, M.A: Law and Practice of Arbitration and Conciliation in Nigeria, (Mbeyi and Associates, Lagos. 1999)

[44] Rt. Hon Ronald Davision, “Arbitration the journal of chartered institute of arbitration.” Arbitration its feature and its prospects. Vol, 50, (1982): p. 147

[45] John Parris, The Law And Practice Of Arbitration. (London; George Godwin Ltd 1974). p. 1

[46] Collins v Collins 28 LJCH. p. 186.

[47] Ronald Berstein,.Handbook of Arbitration practice. (Sweet and Maxwell London 1985). p. 9

[48] Sokefun, P. J. and Akono, M. M, Alternative Dispute Resolution I. (National Open University. Abuja Nigeria, 2011). p. 46-47.

[49] Ibid p. 48.

[50] [2005] 1 NWLR [Pt. 940] p. 577

[51] [2006] 12 NWLR [Pt. 96] at, p. 504

[52] Arbitration and Conciliation Act. Sections 15 (1) and (2).

[53] [1993] 2 NWLR [Pt 221] p. 1

[54] In Ohiaeri V Akabeze (supra)

[55] Prof. M. A Ajomo, ”Alternative Dispute Resolution” Continuing Legal Education Association of Nigeria. (CLEAN) Journal Vol. 1 (2006), p. 4

[56] [1972] 2 ECSLR 221 p. 244

[57] [2001] 5 SCJ 234 p. 244

[58] Ibid p. 245

[59] Article 13 (3) of Schedule 13, Conciliation Rules Arbitration and Conciliation Act Cap 19 Laws of Federation of Nigeria 1990.

[60] Ibid

[61] Prof. M. A Ajomo, Alternative Dispute Resolution, Continuing Legal Education Association of Nigeria. (CLEAN) Journal(2006) 1, 4

[62] Redfern and Hunter, Law and practice of international commercial arbitration.. Sweet and Maxwell (1999), p. 27

[63] Paul Mitchard, International Arbitration and Disputes Resolution Directory. “A Summary of Dispute Resolution Options” (1997).  p. 15.

[64] Hon. Dr. Olakunle Orojo CON, OFR, FCI Arb. Arbitration as a means of disputes Resolution (A paper presented at a seminar Lagos) p 1 – 1.  See also N. L. Craig at p. 10

[65] Marguerite Millhauser, Alternative Dispute Resolution Techniques (ALI-ABA Course on Incorporating ADR in your Law Practice) p. 6.

[66] See Paul Mitchard,. Head of Litigation, Simmons & Simmons Martindale. International Arbitration and Dispute Resolution Directory  “A Summary of Dispute Resolution Options” (Hubbel 1997) p. 16

[67] Ibid p. 10.

[68] Henry J. Brown and Arthur L. Marriot, ADR Principles and Practices. (3ed, London: sweet and Maxwell1993), p, 275.

[69] (1985) US 614

[70] 1988). 4 NWLR [Pt. 90] p 544

[71] Okpuruwu v Okpokam, (1988) 4 NWLR [Pt. 90] p. 554

[72] Order 29 of the High Court Rules of Anambra State (1986)

[73] Arbitration and Conciliation Act, Section 2

[74] Ibid, Section 4 and 5

[75] Ibid, section 7

[76] Ibid, Section 23

[77] Ibid, section 29 and 30

[78] Ibid, Section 31, 51 and 54

[79] L. O Orojo and M. A Ajomo, Law and practice of Arbitration and Conciliation in Nigeria. (Legos: Mbeyi and Associate. 1999) p. 321.

[80] Commerce Assurance Ltd v. Alli. (1992) 3 NWLR [pt. 232] p. 701. Mbeledogu v. Aneto (1992) 2 NWLR [pt. 429] p. 157

[81] English Arbitration Act 1950, Section 4 (1)

[82] English Arbitration Act 1950, Section 5 (1) and (2)

[83] [2002] 2 SCNJ p. 19 at 27.

[84] Bendex Engineering Corporation & Anor v Efficient Petroleum Nig. Ltd. [2001] 8 NWLR (pt.715) p. 333 at 338. Felix Ogunwale v Syrian Arab Republic [2002] 9 NWLR (pt.771) p.127 

[85] Dr. Grey C. Nwakoby, Appointment of Arbitrators. (MPLFI, Vol. 5, 2001). p. 359..

[86] K.S.U.D. B v Const. Co. Ltd [1990] 4 NWLR (pt.142).

[87] Section 23 (1) of Arbitration and Conciliation 1990

[88] Ibid 23 (2).

[89] Ibid 23 (3).

[90] Article 50, 51 & 52 of ICSID Convention 1966

[91]  Arbitration and Conciliation 1990, Section 29 and 30 

[92] See, Article of ICSID Convention 1966

[93] Ibid Section 29 (1)

[94] [2000] 15 NWLR (p. 685 at 688)

[95] K.S.U.B.D v.  Franz Const. Co. Ltd (Supra) 658 at 688. See Also Home Development Ltd v. Scancila Contracting Co. Ltd [1994] 8 NWLR (pt. 362) p. 252

[96] Section 26 of Arbitration and Conciliation Act

[97] P.A Adene v. UNIC [1972] UILR (p. 344). Kuforoji v. Nigerian Railway Corporation (1972) UILR 29

[98] See Gemmell (n 114) 184.

[99] See also Gemmell (n 114) 184

[100] Baamir (n 24) [77]–[85]

[101] Constitution of the Federal Republic of Nigeria 1999, (As Amended), Section. 272

[102] Constitution of the Federal Republic of Nigeria 1999, (As Amended), Section, 6 (5).

[103] Order 12 Rule 1 of the Katsina State Sharia Court of Appeal

[104] Muhammad Abacha v. F.R.N [2014] 9 NWLR (Pt. 1422)

[105] (Unreported) case No. [118], complaint No. 10, Sharia Court Kaita, (judgment delivered on 7/05/2012)

[106]  (Unreported) Case No. [107/122/2012], Sharia court, Kaita, (judgment delivered on 16/08/2012)

[107] (Unreported) Case No. [293/213/2012], Sharia Court Funtua, (Judgment delivered on 12/12/2012)


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Adamu Adamu Jauro *LLB (Hons), BL, Federal High Court,. Email: [email protected], +2348066826024.

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