Legality of the New Bishop’s Court of Onitsha Anglican Diocese.

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Legality of the New Bishop’s Court of Onitsha Anglican Diocese. Daily Law Tips (Tip 813) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction:

The Anglican diocese in Onitsha has created a court for its parishioners to settle their differences. According to a law blogger (theNigerialawyer.com), “The Bishop, Diocese on the Niger, Rt. Rev. Dr. Owen Nwokolo, disclosed this during a plenary on the third day of the synod of the Diocese ….”. It was reported that the Bishop informed his followers that the Bishop’s Court will commence work in September 2021 and will assume every form of adjudication power, like the conventional civil courts (the courts of law created by government).

Bishop Nwokolo was reported to have said that; “No member of the Diocese will take a fellow parishioner to public court until the matter has gone through this one in the Diocese. If you do that, we will bring you back. You will be asked whether you have followed the Diocesan procedure as enshrined in the Diocesan constitution.”

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This work examines the propriety of the Bishop’s Court and the procedures mentioned in the statement of Bishop Nwokolo; will the procedures threaten and violate the fundamental human rights of the parishioners? It compared the Bishop’s Court with the Courts of law, generally and highlighted the powers and jurisdictions of the informal courts (arbitration panels) in Nigeria. Furthermore, the Bishop’s Court is juxtaposed with some specific courts of law (the Sharia Court, the Customary Court, the Sharia Court of Appeal and the Customary Court of Appeal). It also answers the question; whether all parishioners are bound to use the Bishop’s Court as ordered by Bishop Nwokolo or not?

The Bishop’s Court and the Courts of Law:

The Constitution of Nigeria creates the major/superior courts in Nigeria. This includes the Supreme Court of Nigeria, the Court of Appeal, Customary Court of Appeal, Sharia Court of Appeal, the National Industrial Court, Federal High Court and the States High Courts. The constitution also gives powers to the State Legislators across the states in Nigeria, to make laws and create courts for their states. This is the legal basis for the Magistrate Courts, District Courts, Area Courts, Sharia Courts, Customary Courts and several states Tribunals. Click to read more on courts in Nigeria and their powers.

Before the arrival of the wicked colonial masters and western fraudsters, there has been disputes in the now Nigeria (then, a collection of related and unrelated communities/settlements) among inhabitants. And, somehow, the disputes were resolved by native people-oriented institutions, religious institutions and royal institutions. Popular among such dispute resolution institutions are; the Royal Palaces, Council of Chiefs, Family Meetings, Village Heads, Shrines and Religious groups.

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There are no laws banning and stopping informal dispute resolution mechanisms and institutions. Most of the above-mentioned institutions are still in existence and where never abolished or banned from performing their dispute resolution roles. They have been operating before the importation of English courts into Nigeria. Most of the native institutions have metaphorized into modern arbitration and mediation institutions, that are proud of their roots. This is where the Bishop’s Courts, Customary Arbitration, Television Courts, Radio Arbitration, Workplace Arbitration/Courts and all other informal courts, fall into.

The federal law (Arbitration and Conciliation Act) and similar laws in states across Nigeria, support all forms of arbitration and conciliation in Nigeria. Click to download free copy of the Arbitration and Conciliation Act. This is the reason any person or group of persons can create any form of informal dispute resolution outfit. For example, in Abuja, the popular informal courts of arbitration are; the Abuja Multi Door Court House, the International Centre for Arbitration & Mediation Abuja (ICAMA), Janada International Centre for Arbitration and Mediation, Chartered Institute of Arbitration (UK) Abuja Chapter and so many others.

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The courts of law, created by government to enforce law (whether federal law or state law) have the force of law. Hence, they can summon persons, institutions, businesses and communities to appear before them. They can force a person to be remanded in prison and can also entertain criminal cases. They enjoy the greatest force of law. Often, the courts of law and their approaches seem too combative, the winner takes all, sluggish and riddled with procedural technicalities of the Evidence Act and others. The Evidence Act is a federal law that directs the technical and often confusing procedures of giving evidence in courts of law.

On the other hand, all the forms of arbitration will bind only the persons that willingly submit to them and volunteer to be bound by the decision of the arbitration. Hence, the arbitration courts cannot force any person to appear before them and cannot remand any person in prison or entertain criminal cases and many other areas of law. Arbitration and all other alternatives to the courts of law, are less combative, less complicated, faster and often not involved in the troubles of the Evidence Act.

Powers of the Bishop’s Court:

Arbitration or Arbitration Court/Panel is a sleeping court that has no powers of its own, until parties wake it up, dress it with powers, subject themselves to those powers and agree to be bound by its decisions. This means that persons in any part of Nigeria, can over certain disputes, choose to setup an arbitration forum to resolve their dispute, instead of approaching the courts of laws. This power of choice of disputants is the source of the power of arbitration courts and it does not violate any fundamental human rights or the powers of courts of law. By the way, many Rules of courts of law encourage disputants to resolve their disputes amicably and to seek alternatives to the courts of law.

Hence, parties to an agreement can by their agreement agree to resolve their dispute through alternatives to the courts of law; like arbitration, mediation and others. This is easily achieved by inserting an arbitration clause (a statement that parties to an agreement have agreed to resolve disputes arising from their contract, via some specific alternative resolution options; like mediation and arbitration). Furthermore, associations, clubs, schools, offices, communities, tribes, religions, groups and any formation, may agree to resolve disputes arising among their members through some alternative dispute resolution options. The group or community, may further setup rules and standing committees/panels to resolve the disputes among members. Non-members may or may not submit to such arbitration courts.

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While one may be wondering whether the courts of law in Nigeria, are jealous of the alternative informal courts for dispute resolution, it is important to note that the Nigerian courts promote alternative dispute resolution. Also, the Arbitration and Conciliation Act, bans the courts of law from attending to disputes brought to them, where there are proofs that parties had agreed to resolve their disputes outside the courts and that no attempt has been made to resolve the dispute out of court.

The Bishop’s Court, the Sharia Courts and the Customary Courts:

Among the courts of law in Nigeria is the Sharia Courts, the Customary Courts, the Sharia Court of Appeal and the Customary Court of Appeal. The Sharia Courts and the Customary Courts in Nigeria are created by state laws of different states in Nigeria. Their powers are contained in their enabling state laws. The Sharia Court of Appeal and the Customary Court of Appeal are created by the Constitution of Nigeria and their powers are enshrined in the Constitution. The Sharia Courts, the Customary Courts, the Sharia Court of Appeal and the Customary Court of Appeal have the power and force of law and government discussed above. They make up the judiciary and are empowered to interpret the laws in Nigeria.

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The Sharia Courts, the Customary Courts, the Sharia Court of Appeal and the Customary Court of Appeal are often wrongly perceived as religious courts. They are rather courts of law created by law to interpret customary laws. The names; the Customary Court and the Customary Court of Appeal are self-evident of the purpose of the courts. However, the names; the Sharia Courts and the Sharia Court of Appeal are often misunderstood as courts for Islamic religion. No, the Sharia Courts and the Sharia Court of Appeal are courts of law of Islam, but Islam as a custom and practice of the people that subscribe to Islamic religion (Muslims). Islam is both a religion and a custom, unfortunately both features of Islam are inseparable at all times. In formation of court, Islam earns a court not as a religion but as a custom and practise of Muslims.

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Unlike, Christianity and many other religions, Islam as a religion takes over the customs and practices of its followers. For example, traditional marriages and burial rites by Christians are mostly according to some native law and customary practices that are outside Christianity and that may be perceived as idolatry by Christianity. Traditional marriage and burial rites for a Muslim will not be according to any African customs per se, rather according to the teachings of Prophet Muhammed and the Holy Koran. To this extent and more, Islam unlike Christianity, is not just a religion but the customs of Muslims. Hence, while Christians that predominantly have African customs have Customary Courts in Southern Nigeria, the Muslims that have little or no African Customs have Sharia Courts in the Northern part of Nigeria.

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There are some largely undocumented arguments that Christians in Nigeria need their own religion-based courts. The arguments are based on the assumption that Muslims have their own courts (the Sharia Courts and the Sharia Courts of Appeal). This argument is baseless and it must be reiterated that the Constitution of Nigeria provides that the is no state religion. So, no state or government in Nigeria is to be seen as supporting or tilting towards any religion. The earlier discussion on the purpose of Sharia Courts and the Sharia Courts of Appeal debunks the arguments that Muslims have their own religious courts. The Sharia Courts are not courts of religion but courts of customs and practice of Muslims, since Muslims have no native laws and Customs, per se.

The Sharia Courts and the Customary Courts are courts created by government, while the Bishop’s Court is the court of the church of Anglican or the informal court of parishioners of the Bishop. The Bishop’s Court is a mere informal court of arbitration with the powers explained above and discussed further below. The Bishop’s Court does not have the powers of government and law like the Sharia Courts and Customary Courts. It is not a court of law crated by government and having the force of government. However, the decisions of the Bishop’s Court over certain civil disputes that were willingly submitted to it remains valid and recognizable by courts of law and government.

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Any misconduct of a judge in the Sharia Court can make the decision of the Sharia Court to go on appeal to the Sharia Court of Appeal and from there straight to the Supreme Court. This is also the pathway for the Customary Court of Appeal. Misconduct of the umpires in the Bishop’s Court may make the decision of the Bishop’s Court to be set aside (nullified/cancelled) by a High Court. And, an appeal on it can only go to the Court of Appeal and then to the Supreme Court. The Bishop’s Court is not on the same league with the Sharia Courts, the Customary Courts, the Sharia Court of Appeal and the Customary Court of Appeal and the Bishop’s Court is lower than them.

What the Bishop’s Court Cannot Do Exists:

“What God Cannot Do Does Not Exist” is a popular statement among the charismatic Christians. This statement is recently gaining popularity, all thanks to an online prayer movement (NSPPD), that has spread across Nigeria. Well, in the case of the Bishop’s Court and every other arbitration court in Nigeria, there are so many things they cannot do, after all, they are not God. So, What the Bishop’s Court Cannot Do Exists.

Analyzing the statement of the Bishop Nwokolo, may tempt one to wonder if truly there are things that the Bishop’s Court cannot do. This may spur parishioners to expect too much from the Bishop’s Court and to perceive the Bishop’s Court as an alternative to Courts of law on all issues of law. This may also give the operators of the Bishop’s Court an exaggerated self-worth that may tilt towards abuse.

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The concerned statement of Rt. Rev. Dr. Owen Nwokolo, is that; “No member of the Diocese will take a fellow parishioner to public court until the matter has gone through this one in the Diocese. If you do that, we will bring you back. You will be asked whether you have followed the Diocesan procedure as enshrined in the Diocesan constitution.” Simply, this statement suggests that members of the Diocese are henceforth forced and banned by the Bishop from accessing the courts of law, where there are disputes among members. And, that the Diocese has powers to drag back to the Bishop’s Court, members that access courts of law without first accessing the Bishop’s court over their common disputes.

The above statement may be understood to violate the fundamental human rights of members of the Diocese; especially their right to fair hearing and their rights to access the courts of law, as well as threatening to limit the powers of courts in Nigeria to entertain all cases. The right to fair hearing guarantees that parties will always be afforded equal and adequate opportunities by courts to present their cases. The Constitution of Nigeria, empowers the courts of law in Nigeria to entertain disputes from persons in Nigeria and in turn empowers Nigerians to bring cases to courts of law.

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It is important to note that the Bishop’s Court, like every other informal court (arbitration forum) is not on the same level with the courts of law. Rather, they assist the courts of law in the resolution of disputes and thereby decongest the courts of law. Unlike the courts of law, the Bishop’s Court cannot entertain issues of criminal law, tax, migration, constitutional elections, domestic violence, and termination of English Marriages, even when parishioners are involved. These are issues exclusively meant to be resolved by the courts of law created by the Governments in Nigeria.

 

Are All Parishioners Bound to Use the Bishop’s Court?

The Bishop’s Court can only bind parishioners that have signed and agreed to be bound by the decisions of the Bishop’s Court. This could be by signing and adopting the Constitution of the Diocese and by submitting to the trials of the Bishop’s Court. So, the question of whether all parishioners are bound to use the Bishop’s Court, is answered in the negative. It takes the submission of parties/disputants to an arbitration panel for the arbitration panel to have powers over disputants. So, there could be members of the Diocese that may wish to use the Courts of law or some other alternative dispute resolution options, instead of the Bishop’s Court.

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In line with the constitutional rights of persons in Nigeria, the parishioners and members of the Onitsha Diocese may elect to use the Bishop’s Court or not to use the Bishop’s Court. The moment the freedom of choice of parties to submit to arbitration is taken away from parties to an arbitration, then it is no longer arbitration and rather an unlawful trial. No person can be forced or cajoled into arbitration. The right of persons to access the courts of law cannot be forcefully withdrawn, they are constitutional rights that no association, club, religion, group or fraternity can deny its members. These rights, like any other human rights, are higher and above all religious teachings and doctrines in Nigeria.

Bishop’s Court and every other arbitration panel must uphold fair hearing in its proceedings. It must give adequate facilities and opportunity for disputants to present their cases fairly. Also, the arbitrators (umpires) must show that they are not biased and that they do not go beyond the case presented before them. Also, unlawful practices must be excluded from the procedures of the Bishop’s Court and all other arbitration outfit. For example, shrines as places of customary arbitration are encouraged by the courts of law and the laws in Nigeria, so far as their conducts are not unlawful or contrary to any law in Nigeria. Practices like drinking of human blood, killing of human being, fetish practices, detention of persons, handling cases beyond its jurisdiction.

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Like every other decision of an arbitration panel, the decision of the Bishop’s Court is final, to the extent that it cannot be appealed against in a court of law. No person that had his case decided by the Bishop’s Court on his own permission, can turn around to challenge the decision of the Bishop’s Court, unless the person can prove that the Bishop’s Court was involved in misconduct. Where the Bishop’s Court (or any arbitral panel) was negligent, biased and unprofessional in its conducts or has acted beyond its powers, its decision can be set aside and nullified by a High Court of a State. In this case, the Anambra State High Court can nullify, invalidate and make nonsense out of the decision of the Bishop’s Court, where the umpires of the Bishop’s Court are found to have misconducted themselves or to have acted outside their authority, among others.

Conclusion:

Ahead of the courts of law in Nigeria created by colonial masters and inherited by the Nigerian government, there have been informal dispute resolution institutions across communities in Nigeria. Like the courts of law inherited from the British, the informal dispute resolution institutions have been inherited from forefathers and passed on in communities for their well-being. The informal disputes resolution organs are often categorized into arbitration, mediation, negotiation and several other hybrids.

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The Bishop’s Court, Shrines, Community Meetings, Palace Courts, Arbitration Houses and Workplace Tribunals are among the popular informal dispute resolution options in Nigeria. They are lawful and legal. They assist the courts of law in resolving disputes, when and where disputants cloth them with powers and submit to them. However, the jurisdiction of the informal courts of arbitration is limited to civil disputes, unlike the courts of law that delve into all areas of law. Hence, the parishioners of the Onitsha Anglican Diocese may choose to donate powers to the Bishop’s Court, to appear before it and to be bound by its decisions, in certain civil disputes. So, the Bishop’s Court binds only members that still remain members and that have chosen to be bound by it.

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The Bishop’s Court is encouraged to publicize its Rules to enable the public understand its procedures and to promote its acceptance among its Parishioners. It will also assist legal practitioners that will appear before the Bishop’s Court to defend their clients (members of the Diocese). Like every other arbitrator, the umpires at the Bishop’s Court must adhere to the rule of law and the rules of their courts to enjoy public confidence. Congratulations to the good people of Onitsha and its Diocese.

 

At a time that the Nigerian Courts are just returning from almost a 3 months strike, having alternatives to the Nigerian Courts of law will decongest the courts of law and greatly increase access to justice. Other diocese, groups, communities, associations, forums and clubs should also setup their own arbitration forums to assist members and the general public with faster access to justice and to save tax payers fund that are often wasted in courts of law.

My authorities, are:

  1. Sections 1, 2, 3, 4, 5, 6, 36, 230, 231, 236, 237, 238, 249, 250, 254, 256, 260, 261, 265, 266, 270, 271, 275, 276, 280, 281, 287, 291, 292and 318 and 319 of the Constitution of the Federal Republic of Nigeria, 1999.
  2. Sections 1 to 58 of the Arbitration and Conciliation Act.
  3. The judgment of the Supreme Court of Nigeria (on the meaning and nature of arbitration) in the case of KANO STATE URBAN DEVELOPMENT BOARD v. FANZ CONSTRUCTION COMPANY LIMITED (1990) LPELR-1659(SC)
  4. The Supreme Court’s decision (on the finality of the Supreme Court) in the case of EFCC v. REINL (2020) LPELR-49387(SC)
  5. The Supreme Court’s decision (on the supremacy of the constitution) in the case of INDEPENDENT NATIONAL ELECTORAL COMMISSION v. ALHAJI ABDULKADIR BALARABE MUSA (2003) LPELR-24927(SC)
  6. The judgment of the Court of Appeal (on the meaning and nature of Customary Arbitration) in the case of HENRY OSARUMWENSE OBASOHAN v. MR. JULIUS OSARENOMA OBASOHAN JNR} (2019) LPELR-47187(CA)
  7. Unini Chioma, “Anglican Diocese Establishes Court In Anambra” (theNigerialawyer, 17 June 2021) <https://thenigerialawyer.com/anglican-diocese-establishes-court-in-anambra/> accessed 27 June 2021.
  8. Onyekachi Umah, “Can The Evidence Act Apply To Arbitration Or Customary Court Of Appeal” (LearnNigerianLaws.com, 10 April 2019) <https://learnnigerianlaws.com/can-the-evidence-act-apply-to-arbitration-or-customary-court-of-appeal-daily-law-tips-tip-308-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 25 June 2021
  9. Onyekachi Umah, “Are courts in Nigeria Administratively Independent of the Chief Justice of Nigeria and the Supreme Court?” (LearnNigerianLaws.com, 20 April 2020) <https://learnnigerianlaws.com/are-courts-in-nigeria-administratively-independent-of-the-chief-justice-of-nigeria-and-the-supreme-court-daily-law-tips-tip-551-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 25 June 2021.
  10. Onyekachi Umah, “The Nigerian Court For Ships and Aircrafts Matters” (LearnNigerianLaws.com, 11 November 2020) <https://learnnigerianlaws.com/the-nigerian-court-for-ships-and-aircrafts-matters/> accessed 25 June 2021
  11. Onyekachi Umah, “Courts That Can Hear Cases of Fundamental Human Rights In Nigeria” (LearnNigerianLaws.com, 2 May 2018) < https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-92-courts-that-can-hear-cases-of-fundamental-human-rights-in-nigeria/> accessed 25 June 2021.
  12. Onyekachi Umah, “ECOWAS Court as a Weak Alternative to Nigerian Courts” (LearnNigerianLaws.com, 20 May 2021) <https://learnnigerianlaws.com/ecowas-court-as-a-weak-alternative-to-nigerian-courts/> accessed 25 June 2021
  13. Onyekachi Umah, “An Alternative to Courts for Human Rights Cases” (LearnNigerianLaws.com, 14 May 2021) <https://learnnigerianlaws.com/an-alternative-to-courts-for-human-rights-cases/> accessed 25 June 2021
  14. Onyeakchi Umah, “How To Know If A Judge Is Fair Or Not: The Test For Justice” (LearnNigerianLaws.com, 15 September 2020) < https://learnnigerianlaws.com/how-to-know-when-a-judge-is-fair-or-not-the-test-for-justice/> accessed 25 June 2021
  15. Onyekachi Umah, “What is Plea Bargain, If Criminal Cases Cannot be Settled Out of Court?” (LearnNigerianLaws.com, 10 July 2020) <https://learnnigerianlaws.com/what-is-plea-bargain-if-criminal-cases-cannot-be-settled-out-of-court-daily-law-tips-tip-606-by-onyekachi-umah-esq-ll-m-aciarbuk/> accessed 25 June 2021
  16. Onyekachi Umah, “Which Court Can Hear Cases Of Land Disputes In Villages And Rural Communities In Nigeria” (LearnNigerianLaws.com, 12 December 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-247-which-court-can-hear-cases-of-land-disputes-in-villages-and-rural-communities-in-nigeria/> accessed 27 June 2021.
  17. Onyekachi Umah, “Which Court Can Try Cases Of Bounced/Dud Cheque In Nigeria?” (LearnNigerianLaws.com, 18 October 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-208-which-court-can-try-cases-of-bounced-dud-cheque-in-nigeria/> accessed 27 June 2021
  18. Photo Credit: hijcn.com

 

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