OBSERVANCE OF THE PRINCIPLE IN ‘SCOTT V AVERY CLAUSE’ IN CUSTOMARY ARBITRATION: A CONTEXTUAL OVERVIEW

Abstract

When colonial history claimed that a certain Mungo Park, a Scottish explorer, discovered the River Niger, it was quite startling. This is because African ancestors had for centuries known, explored and exploited the River Niger for their communal benefit. In like manner, observance of the principle of ‘condition precedent’ apparently more popularised in the classical case of Scott v Avery as the ‘Scott v Avery clause’ has become a hallowed creed in formal written arbitration. However, same observance has, mutatis mutandis, also been known and practised for centuries under native arbitration procedures. In the context of customary arbitration, dispute settlement procedures are systemic and ex fortiori, circumscribe and subsumed within the customary law usages and procedures of a given community. In this wise, such arbitration dispute settlement procedures commence at the lower units of a dispute settlement strata and proceed to higher levels in such a way that without the lower level intervention, there cannot be an upper level intervention in that regard. Such lower level arbitral intervention is a condition precedent which must be observed before the ‘jurisdiction’ of a higher level arbitration body could be invoked. Thus, will a disputant who harbours misgivings against his or her family head and family elders be compelled to take his or her dispute to a potentially hostile body to arbitrate? Or could compliance with this condition precedent in such circumstance be dispensed with to avert a miscarriage of justice? If a disputant is compelled in this regard, would the process still remain arbitration or something else? These questions will guide our discourse in this paper, using the doctrinal methodology of research. The paper posits that the whole essence of any veritable dispute resolution mechanism is to do justice to the disputants. Any derogation therefrom, will not only destroy confidence in the system but will approximate to a big minus from efforts to achieve a more peaceful and harmonious co existence in African indigenous communities.