ENFORCEMENT OF ARBITRATION AWARDS IN NIGERIA: A CRITIQUE

TABLE OF CONTENTS
Title Page______________________________________ i
Declaration _____________________________________ii
Certification ____________________________________iii
Dedication _____________________________________iv
Acknowledgement _______________________________v
Table of Content _________________________________ix
List of Statutes ___________________________________xiii
Table of Cases ___________________________________xiv
Abbreviations ____________________________________xv
Abstract ________________________________________xvi

Chapter One:
INTRODUCTION
1.1 Background to study___________________
1.2 Statement of problem__________________
1.3 Aims and Objectives of Study____________
1.4 Scope of study________________________
1.5 Significance of study___________________
1.6 Research Methodology____________________
1.7 Limitations of the study____________________

Chapter Two:
LITERATURE REVIEW
2.1 Introduction
2.2 Theoretical Framework
2.2.1. Natural school of thought
2.2.2. Positive school of thought
2.2.3. Economic school of thought
2.3 Conceptual Framework
2.3.1. Arbitration
2.3.2. Dispute Resolution
2.3.3. Arbitral Tribunal
2.3.4. Arbitral Award
2.3.5. Enforcement
2.4 Summary of Review
2.5 Historical Evolution

Chapter Three:
LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE ENFORCEMENT OF
ARBITRAL AWARDS IN NIGERIA
3.1 The Constitution of the Federal Republic of Nigeria
3.2 The Arbitration and Conciliation Act 1988
3.3 Lagos State Arbitration Law 2009
3.4International Centre for the Settlement of Investment Disputes Act 1967
3.5 Foreign Judgments (Reciprocal Enforcement)Act
3.6 Institutions involved in the administration of arbitration in Nigeria
3.6.1 Lagos and Abia Multi Door Court House
3.6.2 Lagos Court of Arbitration
3.6.3 The Courts

Chapter Four:
APPRAISAL OF CHALLENGES AND PROCEDURE FOR THE ENFORCEMENT OF
ARBITRAL AWARDS IN NIGERIA
4.1. The arbitration agreement
4.2 Procedure for the Recognition and Enforcement of Arbitral Awards
4.3Grounds for Setting Aside Arbitral Awards in Nigeria
4.4 Impediments to the recognition and enforcement of arbitral awards

Chapter Five:
SUMMARY, CONCLUSION AND RECOMMENDATION
5.1 Summary
5.2 Conclusions
5.3 Recommendations
 CHAPTER ONE

INTRODUCTION

1.1 Background to the study

Recognition and enforcement are vital parts of arbitration. Without the likelihood for the winning

party to enforce the arbitral award in its desired country, the entire arbitration process becomes

pointless. Of course, if an unsuccessful party instantly carries out the terms of an arbitral award,

the question of recognition or enforcement of the award doesn't arise. Yet this is often largely not

the case. Generally and even with regard to foreign arbitral awards, the unsuccessful party may

be unwilling to go with the terms of the award or could even apply to challenge it. Lamentably,

the arbitrational process cannot by itself enforce its own award because an award simplicita

doesn't have the force of a judgment of court. As such, it usually implies that the victorious party

could have won the battle but is yet to win the war. The disposition of Nigerian courts to enforce

arbitral awards and also the ease or difficulty of doing so now, is the focus of this research.

Enforcement of an arbitral award is no doubt a topical issue. Arbitration is a private means of

resolving dispute which is resorted to, chiefly because the parties choose to avoid as much as

possible employing the state machinery for dispute resolution, namely the court and its dreaded

time consuming procedures and technicalities and to save time and money. One aspect of this

mode of resolving differences is its emphasis on party autonomy and timely enforcement of its

product, which is award.

The crux of this research is the recent developments in Nigerian case law, which are inimically

influencing arbitration law and practice. Taking into account the interdependent yet dichotomous

relationship between public dispute resolution system through the courts and private dispute

resolution systems of which arbitration is primus, there is a need to analytically and

appropriately position arbitration proceedings -insisting that arbitration as proceedings is ‘sui

generis’of itself.1 It is not a mere replica of public dispute resolution systems, typical of state

machinery. On the other hand, it is notable that despite Nigeria’s federal system of government,

it has a unified system of enforcement of foreign arbitral awards. So far, Nigerian Courts have

indicated through their arbitration-related judgments that Nigeria is an arbitration-friendly

jurisdiction. In February 2014, the Nigerian Court of appeal refused to grant an injunction to

restrain arbitration proceedings, finding that the domestic arbitration legislation provided

extremely restricted circumstances during which a domestic court may intervene. The Court

followed its 2013 decision wherein it held that domestic legislation doesn't empower a court to

grant an injunction to stay arbitral proceedings. In the case of Aye-Fenus Enterprise Ltd v.

Saipem (Nigeria) Ltd2 the Court of Appeal held that:

“…by virtue of the provisions of section 34 of ACA [(Arbitration and

Conciliation Act)], a court shall not intervene in any matter governed by the Act
except where so provided in the Act. If, in arbitration proceedings, an issue is
raised for decision and has been decided, that makes it final. The parties cannot
be allowed thereafter to reopen it. The reason is that just as the parties would not
be allowed to do so in the case of a judgment not appealed from, the point so
decided is res judicata. The only jurisdiction conferred on the court is to give

1
OlasupoShasore, SAN, Representation at Arbitration Proceedings compared to Litigation –The Recent Trend in
‘Shell v FIRS, Publication by African Law Practice, 2017. Retrieved from
https://www.alp.company/sites/default/files/Representation%20at%20Arbitration%20Proceedings%20compared
%20to%20Litigation%20.pdf (Accessed January 27, 2021)
2
Aye-Fenus Enterprise Ltd v. Saipem (Nigeria) Ltd(2007) JELR 51941 (CA)
 leave to enforce the award as a judgment unless there is a real ground for
doubting the validity of the award”.

While these are positive indications of the reluctance of the Nigerian courts to interfere within

the procedure of Arbitration Proceedings in Nigeria, the issue of recognition and enforcement of

arbitral awards in Nigeria both domestic and foreign is as a matter of course riddled with some

practical difficulties. Thus there is scope for a deeper historical and legal analysis of this area of

the law and its impact on the overall ease of resolving disputes through alternative dispute

resolution mechanisms and the quest for justice in contemporary Nigeria. That is the aim of this

long essay. It examines the lessons scholars and practitioners can learn by revisiting the origins

of the law which regulates the grounds of recognition and enforcement of arbitration awards in

Nigeria, and by critically reflecting on key evolutionary legal milestones in the field of

Arbitration which may have reshaped the law in the present day. The reason for venturing into

this topic is based on personal interest in the reliability of alternative dispute resolution methods

and the desire to shed more light on it by analyzing it critically. This work is therefore based on

the examination of the available domestic and international arbitration laws which are in force in

Nigeria. Its analysis shall include discussion on the nature of arbitration and the ultimate effect of

arbitral awards when reached.

1.2 Statement of the problem

The settlements of disputes through arbitration is, outside customary law, a much newer

phenomenon to the Nigerian legal structure than litigation. Although Nigeria appears to satisfy

the criteria for selecting a seat of arbitration, the reality is that few, if any, international

arbitrations take place in Nigeria - or indeed in most other African states. It is evident that even

Nigerian parties to international arbitration agreements do not generally choose Nigerian

arbitrators or choose Nigeria as the seat of their arbitrations, instead preferring the more famous

western seats such as London, New York, Paris or Geneva. This begs the question: what

challenges so riddle the arbitration process in Nigeria? Generally, the research takes the position

that there are two major challenges which limit Nigeria's attractiveness as a venue for arbitration.

The first is the obsolete status of the current national legislation on arbitration. After over 24

years of existence, the Arbitration and Conciliation Act has passed its sell-by date. It falls far

short of providing adequate answers to contemporary issues of great importance in the field of

international arbitration.

Due to the ever increasing court caseload, arbitration is gaining widespread acceptance in

business circles. There is need for innovative reforms to Nigeria's arbitration law and a focusing

of policy towards promoting arbitration and making Nigerian courts more arbitration friendly.

Commercial arbitration is used increasingly in the oil and gas sectors, telecommunications and

construction. The major disadvantage of arbitration over litigation and other forms of dispute

resolution is the tendency for the losing party to resist enforcement of the award in high value

disputes by instituting setting-aside applications. This thus brings the question of how

enforceable an arbitration award is in Nigeria in the face of an application challenging the very

enforcement of the award. On the other side of the problem with the enforcement of arbitration

awards in Nigeria is the attitude of courts. One of such is reflected in the granting of anti-

arbitration injunction affecting and halting the very proceedings of arbitration. Under the

Arbitration and Conciliation Act, the issues of arbitrability and public policy clearly constitute

grounds to set aside an arbitral award or to refuse recognition and enforcement of an award.

However, what the research has noted is that ongoing arbitrations have recently been halted on

the grounds that the subject matter of the disputes was not arbitrable under Nigerian law or was
against the public policy of Nigeria. This is troublesome because it contravenes section 34 of the

Arbitration and Conciliation Act, which expressly prohibits the court's intervention on any matter

governed by the act, except where it is so provided.

As regards anti-arbitration injunctions, the Singapore High Court held in Mitsui Engineering and

Shipbuilding Co Ltd v Easton Graham Rush3 that it had no power to grant an anti-arbitration

injunction restraining an arbitrator from proceeding with the arbitration, but made clear that it

could set aside the award if the circumstances so warranted. The Nigerian courts should take a

leaf from the book of the Singapore High Court in this regard - in particular, since undue court

intervention can significantly undermine the security of contracts.

1.3 Aims and Objectives of the Study

The aims and objectives of the research are as follows:

1. To examine the concept and the nature of arbitration, its current form and procedure in

Nigeria, and critically examine the mechanisms put in place for the implementation and

enforcement of arbitration awards in Nigeria.

2. To critically analyze the legal framework for facilitating the enforcement of arbitration awards

under the Nigerian Justice System, the purpose of the various laws identified, the impact of such

laws and the roles they play in ensuring the fair administration of arbitration process in Nigeria.

3. To highlight the problems facing the legal framework and the possible institutional

impediments causing hindrances to the effectiveness as well as efficiency of the laws identified

and the challenges or problems militating against the enforcement of arbitration awards in

Nigeria.
3
(2004) 2 SLR(R) 14, in Michael J Moser and John Choong, Asia Arbitration Handbook (Oxford University Press,
2011), p693.
After this analysis, parties will be able to understand the extent and scope of the rules of

arbitration in Nigeria and the legal and practical parameters for recognizing and enforcing

arbitration awards in Nigeria whether the seat of arbitration is within Nigeria or abroad.

1.4 Scope of the study

The topic of arbitration will always be subject to debate right from its scope and the nature to the

actual procedure towards preserving the rights of parties who prefer or mutually elect to resolve

their disputes through the process of arbitration as against litigation and the resultant judicial

process along the course to obtain justice in terms of enforcement. This research project reveals

the law and practice of arbitration in Nigeria within the scope of examining the legal and

institutional limitations identifiable in the system towards the recognition and enforcement of

arbitration awards. By nature all human beings are not equal, and disputes of civil and criminal

nature arise amongst them. To resolve it historically, justice has usually sought in the courts.

However, alternative dispute resolution methods have over time become preferable to the tiring

and combative process of litigation. Arbitration is one of the various methods of this alternative

dispute resolution and undoubtedly now the most popular, it is the reference of a dispute or

difference between not less than two parties for determination, after hearing both side in the

judicial manner, by a person or persons other than a court of competent jurisdiction.

In terms of the legal scope, the research explores various laws of the federation that provides for

and regulates domestic and international arbitration processes within the more special framework

of recognizing and enforcing arbitration awards in Nigerian Courts. The research also peruses the

old common law of England in some sort of comparative analysis with a view to highlight the

history, and extent to which the method of arbitration is entrenched in the Nigerian legal system.

The principal legislations which feature within the scope of this research include the Constitution
of the Federal Republic of Nigeria 1999 as amended being the grundnorm of all laws in Nigeria,

the Arbitration and Conciliation Act 1988 and relevant Case laws.

Geographically speaking, the research will attempt to assess the state of affairs as it applies all

over the country and is not limited to any focal area or state even though attention will be given

to certain states and laws more than others. The scope of this work shall not extend beyond the

boundaries and the local conditions of Nigeria except in the case as to assess the difference or

peculiarity obtainable in any foreign law found relevant in the course of this research. It will

cover the rules and conditions for challenging and enforcing arbitration awards in Nigerian

Courts both at the local and the state levels as well as the federal levels. This essay shall not

exceed the content of its title; it shall be within the purview prescribed by the topic. Though the

concepts of dispute resolution and arbitration now appear to be universal legal concepts, the

circumstances under which they apply and feature in the world today differs in some regards.

This essay has it main focus on the critical appraisal of the enforceability of arbitration awards in

Nigeria; the procedure and challenges as is evident under Nigerian law.

1.5 Significance of the study

Considering the need to enhance commercial activities in Nigeria and the indisputable right of

international parties to resolve disputes through arbitration, the need for Nigeria toreform the

laws on arbitration cannot be over emphasized. Indubitably, the administration of justice through

our regular courts is usually beleaguered with delays for diverse reasons. An attempt to combat

these delays and ensure speedy dispensation of justice has seen the emergence of arbitration in

its effective use in Nigeria even at an overwhelming proportion. This study is thus very

important as it contributes to the already existing literature towards the laws and processes

enhancing dispute resolution processes in Nigeria through mechanisms other than litigation and
thereof presents commercial stakeholders of economics, trade and commerce with the

background to facilitate the quick and efficient resolution of trade disputes.

Furthermore, the project would serve as a reference for further study to be conducted on the

same or related area; especially as it is fertile ground for future research concerning the

constantly growing preference for arbitration as against litigation. The significance of this paper

lies thus in the fact that it certainly contributes richly to water the ground for a much desired

reform of the laws regulating arbitration in Nigeria and an imminent review of the Arbitration

Act of 1988. The general populace will benefit from this study as it contains an exposition of the

alternative dispute resolution mechanisms in Nigeria and how to further protect one’s rights

within the frame work of the laws of arbitration. On the other hand, law students, jurists, legal

researchers and lawyers in general will very much appreciate the findings of this research in both

understanding the conditions militating against the enforcement of arbitration awards in Nigeria

and the ways to ensure that successful parties reap the fruits accruing them from the seat of

arbitration.

1.6 Research Methodology

This study warranted a variety of methods to obtain information. Nevertheless, the research

methodology employed was majorly Doctrinal. Documentary analysis or Doctrinal methodology

forms the major instrument of data gathering in this case and so several reports and journals,

international, regional and national business law documents were reviewed. Emphasis was

placed on two major sources; primary and secondary sources. The primary sources of research

materials include Nigerian Statutes, subsidiary legislations case laws and dictionary. The primary

sources of law to be consulted consists of, but not limited to; statutes like the Constitution of

Nigeria 1999 as amended, the Arbitration and Conciliation Act 1988 etc.
Secondary data was secured from documents and articles sourced from internet and textbooks,

journal articles, conference materials, newspaper publications etc. which were found necessary to

be reviewed in order to address the research question that reads, ‘Are arbitration awards easily

recognized and enforced by the Nigerian Courts? Hence, this research question is addressed

through desk research after having relevant materials useful in establishing the theoretical and

conceptual frame work at hand.

1.7 Limitations of the study

Although the research will attempt to reach its aims, there were some unavoidable limitations.

First, because of the time limit, the research could not hope to conclusively report the exact

number of cases in Nigeria in which incidences and issues concerning enforcement of arbitration

awards have been successfully adjudicated upon. Thus, the research cannot claim to have

successfully reviewed the entire gamut of case law relevant to this topic in its goal to

conclusively clarify the concept and application of the laws regulating arbitration under the

contemporary Nigerian legal structure for dispute resolution.

Sequel to the above, another limitation reflects in the distance factor between the thirty-six states

and the relative impossibility to assess the true state of facts across Nigeria within the available

time limit. The researcher is now also faced with the issue of paucity of funds which caused

reasonable challenge. Consequently, due to a lack of available and/ or reliable data to make a

conclusive report of the total incidences of judgements enrolled, with respect to issues of

enforcement of arbitration awards which have been delivered within Nigeria and beyond, the

researcher had to limit the scope of analysis and the size of obtainable data needed for the proper

execution of this research.

Finally, the design of this research was cross-sectional, which means that the data were gathered

at one specific point in time only. Cross-sectional analysis suffers from a temporal limitation and

in the case of this research, it is possible that the subject-matter or the law may reform over time

in response to legal and international developments and so this limitation should be kept in mind.

CHAPTER TWO

LITERATURE REVIEW

2.1 Introduction

Arbitration is a form of alternative dispute resolution (ADR) where the parties to a dispute refer

it to one or more persons called “arbiters” by whose decision the “award” they agree to be

bound. It is a settlement technique in which a third neutral party reviews the case of disputants

and decides on the basis of their claims. Alternative Dispute Resolution (ADR) is referred to by

the International Labour Organization (ILO) as being a substitute for the court system, namely: a

set of processes that comprise of negotiation, conciliation, mediation and arbitration. 4 On a

related note, it has been argued that the practice of disputes settlement using the process of

arbitration isas old as the existence of the Nigerian society. 5The practice of arbitration has

always been a more economical and friendly method of resolving disputes both in

traditional and modern settings. Dispute settlement through the process of arbitration had

been with various indigenous communities in Nigeria before the advent and introduction

4
International Labour Organization. (1997). Consensus Seeking Skills for Third Parties Training Package.
5
Igbokwe V.C. “Law and Practice of Customary Arbitration in Nigeria: Aguv.Ikewibe and Applicable Law Issues
Revisited.” [1997]Journal of African law(Vol. 41. No. 2), 201.
of English Legal System of court litigation or what we call adversarial process. The

various indigenous methods of resolving disputes include but not limited to negotiation,

mediation and intervention by heads of clans or family heads and indeed arbitration. 6The

study derives it foundation from various contributions on the subject matter of research. The

legal literature is divided on the precise distinction between the traditional dispute resolution

system of arbitration and the modern day arbitration process. In an article, Ladan 7 posits that that

most indigenous systems of customary law in Africa knew and recognized resort to traditional

arbitration before neighbors or elders of a clan or tribe. The author stated further that Nigerian

courts recognize and enforce the results of customary arbitration. He cited the case of Nwoke v

Okere,8where the Supreme Court held that customary arbitration constitutes estoppel per rem

judicatum, if the subject matter, parties and cause of action are the same in the arbitration as in

the court action. Many authors take the position that Arbitration and Alternative Dispute

Resolution (ADR) are not imported mechanisms in Nigeria. In fact, it is worthy of note that

litigation is the imported mechanism.

However, the review finds that although customary arbitration is recognized under the

Nigerian legal system it cannot meet the needs of modern business relationships.

Therefore with the advent of development came the need to have in place a suitable legal

framework for the conduct of arbitration and ADR in Nigeria. While customary arbitration is

governed largely by unwritten custom and tradition, modern day commercial arbitration is

governed by the arbitration and conciliation act. The Act simply defines arbitration as

6
Peters, D., Arbitration & Conciliation Act Companion, Lagos, Dee-Sage Nigeria Limited, 2006,368.
7
Ladan,M.T.,‘Alternative Dispute Resolution in Nigeria: Benefits, Processes and Enforcement’, 1998. Retrieved from
http://kubanni.abu.edu.ng/jspui/bitstream/123456789/5505/1/A%20COMPARATIVE%20STUDY%20OF
%20MODERN%20AND%20CUSTOMARY%20ARBITRATION%20IN%20NIGERIA.pdf Accessed January 29, 2021.
8
Nwoke v Okere(1994)5 NWLR 169
“commercial arbitration whether or not administered by a permanent arbitral

institution.”9However, the act does not define commercial arbitration. Instead it defines

“commercial” as “all relationships of a commercial nature including any trade transaction for the

supply of goods and services, distribution agreement, commercial representation or agency,

factoring, leasing, investment, financing, banking, insurance, exploitation agreement or

concession, joint venture and other forms of industrial or business co-operation, carriage of

goods or passengers by air, sea, rail or road.” Accordingly, commercial arbitration may be

defined as the voluntary submission of a dispute arising from relationships of a commercial

nature for determination in a judicial manner by a person or body of persons chosen by the

parties. Except otherwise indicated, any further reference to arbitration means commercial

arbitration. Ultimately, this chapter attempts to carry out a theoretical and analytical study of the

laws which regulate the enforcement of arbitral awards in Nigeria including its associated

concepts. It introduces the theoretical framework for the study assessing various theories of law

like Thomas Aquinas’ natural law theory of rights, the Positive law theory and the Realist law

school. The theories form a jurisprudential background for the assessment of the research topic

and provide the researcher with the tools for a more critical examination or analysis of arbitration

within the Nigerian legal framework. Consequently, it appraises the conceptual framework of the

study expatiating on the concepts of arbitration, its nature, form and classifications. Lastly, the

chapter will attempt tracing the historical development of the law of arbitration in Nigeria.

2.2 Theoretical Framework

This section of the study contains the description of the theories of law as a framework for

understanding the context and the concept of dispute resolution laws. Critically analyzing the

9
See Arbitration and Conciliation Act, s.57 (1)
theories of law will enable the researcher use the knowledge and understanding to reflect the

subject matter in more informed and effective ways. The researcher will examine the legal

theories such as the natural law and positive law theories as they intersect to provide the research

with the jurisprudential means to develop a balanced theoretical framework for understanding the

subject matter.

2.2.1. Natural school of thought

Famously, the natural law school presupposes the existence of a natural order of human affairs.

Consequently, the research shall briefly highlight the sense in which natural law is crucial to an

understanding of the law of arbitration. Natural law or the law of nature is law whose content

derives naturally from human nature or physical nature, and therefore has universal validity. In

natural law jurisprudence, the content of man-made positive law is related to natural law and gets

its authority at least in part from its conformity to objective moral standards. Natural law theory

attempts to define a “higher law” on the foundation of a universal understanding that certain

choices in life are good or evil, or that certain human actions are right or wrong. It can be seen as

that objective, eternal and immutable hierarchy of moral values, which are sources of obligations

with regard to man because they have been so ordained by the Creator of nature. It is opined that

the doctrine of natural justice pervades the procedural law of arbitration as its observance is the

pragmatic requirement of fair play in action. In a case before the United States Supreme Court, a

Jackson J. said: ‘Procedural fairness and regularity are indispensable essence of liberty. Severe

substantive laws can be endured if they are fairly and impartially applied’. ‘The doctrine of

natural justice seeks not only to secure justice but also to prevent miscarriage of justice.’ The

term ‘natural law’ is rather ambiguous. It refers to a type of moral theory. It is argued thus that
human behaviour is governed by moral standards which are derived objectively from the nature

of human beings and the nature of the world. According to natural theory of law, there is no

clean division between the notion of law and the notion of morality.

Natural law is a theory that says there is a set of rules inherent in human behaviour and human

reasoning that governs human conduct. Natural law is considered as pre-existing and is not

created in courts by judges. Many proponents have claimed that this kind of law is passed to man

through a divine presence. Natural law was espoused by Saint Thomas Aquinas, who viewed the

world as being created by God and understood that humans are rational beings capable of using

their intellect to comprehend the world. By extension, God enabled humans to reason in a natural

way to make ethical choices. Accordingly, Aquinas delineated two basic human inclinations:

1. To preserve one’s life

2. To preserve the human species

Accordingly, John Locke in his exposition on natural law argued that God gave earth (and the

animals that live on it) to mankind in common, so that it now becomes necessary to devise some

rule—adding labour to things—that separates private property from the commons. 10 It is clearly

the contention of naturalists that the principles of natural justice have been defined to mean 'fair

play in action.' They constitute the basic elements of a fair hearing, having ties roots in the innate

sense of man for fair play and justice, which is not the preserve of any particular race or country

but is shared in common by all men.As Salmond said Natural justice is justice in deed and in

truth, while legal justice is justice declared and recognized by law and enforced in law courts. He

maintains that natural justice is the ideal and the truth, of which legal justice is the more or less

10
Locke J., ‘Second Treatise of Government’, London: Printed for R. Butler, etc., 1690; Bartleby.com, 2010.
Retrieved from www.bartleby.com/169/ on January 29, 2021.
imperfect realization and expression. Therefore, we can always correct the legal justice so as to

be in consonance with justice in deed and truth. 11In the case of MethanexMotunui Ltd v Spellman

Fisher J opined that:12

If the parties [to a dispute] say that they want arbitration, but in the same breath

say that they do not want enforceable natural justice, their two statements are

incompatible. Arbitration is a process by which a dispute is determined according

to enforceable standards of natural justice.

This penetrating dictum goes to the heart of the issues surrounding the review of arbitral awards

by national courts for the breach of natural justice: even though arbitration is a private dispute

resolution mechanism, and (in large part) a creature of contract, the validity of its outcomes

ultimately remains subject to fundamental notions of procedural fairness. There thus exists a

policy tension between the putative autonomy of the arbitral system and the need to ensure, by

judicial supervision, compliance with the basic requirements of due process.

2.2.2. Positive school of thought

Legal Positivism13 is a school of jurisprudence first identified with the English philosopher John

Austin14 and later embraced by American judicial scholars such as Christopher Columbus

Langdell15 and Joseph Henry Beale.16

11
Sambit Swain & Mehak Khanna, ‘Arbitration and elements of Natural Justice’, Legal Services India. Retrieved from
http://www.legalserviceindia.com/articles/arrb.htm Accessed January 29, 2021.
12
MethanexMotunui Ltd v Spellman [2004] NZLR 95 (HC) at [50].
13
See, e.g., Hart, Positivism and the Separation of Law and Morals, 71 Harvard Law Review 593 (1958); Fuller,
Positivism and Fidelity to Law, 71 Harvard Law Review. 630 (1958).
14
"J. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 46-47 (1832); see also J. AUSTIN, LECTURES ON
JURISPRUDENCE: OR THE PHILOSOPHY OF Positive LAW (1863).
15
See, e.g., Langdell, Teaching Law as a Science, 21 AM. L. REV. 123 (1887), 3 LAWQ. REV. 123 (1887). Langdell,
Dean and Professor of Law at Harvard Law School from 1870 to 1895, was the primary originator of the "casebook"
method and the "socratic" method for teaching law, which is still found in most American law schools today.
16
J. BEALE, A TREATISE ON THE CONFLICT OF LAWS (1935).
Generally speaking, Legal Positivism is the traditional view that correct legal decisions are

determined by pre-existing legal precedent, and the courts must reach their decisions solely

based upon logical deduction, applying the facts of a particular case to a set of pre-existing legal

rules. Under this Formalistic legal theory, the law is viewed as a complete and autonomous

system of logical principles and rules. This perspective of law claims to see law as it is, not as it

ought to be or the reason for it. Positive law is called into being by certain peculiarities of human

nature and the human situation; and its task is to assure a stable and fruitful order in which men

can plan securely, carry on effective transactions with themselves and with the world, and can

reap the benefits that are latent in their nature and position. While natural law theory exaggerates

the relation of law and morality, positive law theory is a reaction against particularly that aspect

of natural law theory. It insists on a distinction between human law, which they call positive law

and moral laws. Positive law is the belief that law is established by the state for the benefit of the

state as a whole and thus the status of environmental laws can easily be seen as a system of

logical principles and rules necessary for the preservation of the state and its citizens and

validated by the legitimate man-made authority that created it. Positive law has no moral purpose

other than to ensure the survival of the state and its citizens. The crucial difference between legal

positivism and natural law theory, for purposes of analysis of the laws pertaining to the

environment, lies in the manner in which the validity of law is determined. In this regard,

positivism can be distinguished from a roughly-hewn version of a natural law theory which, to

the extent that legal validity matters at all, employs a test that focuses on what the legal standard

is, rather than how it was created. Natural law theory attaches validity to law when its content

passes a “moral test”, while legal positivism considers validity to depend on whether the law’s
source was authorized to make law and on whether formal requirements were satisfied in the

specific instance.17

2.2.3. Economic school of thought

This legal theory, also referred to as Marxism, is a social, political and economic philosophy that

examines the effect of capitalism on labor, productivity and economic development. Marxism

posits that the struggle between social classes, specifically between the bourgeoisie, or

capitalists, and the proletariat, or workers, defines the development of the state, and the

bourgeoisie seek to gain control of the factors of production from the "masses." According to

proponents of this theory, only by eliminating the control of the economy from private

ownership will the economy continue to grow.18

The systems of dispute resolution exists because people are always going to be riddled with

disputes in trade and other aspect of their private relationships. The central theme of the

economic theory from the Marxist view would simply then be that Arbitration is a resultant

necessity for the mitigation of class struggle. One may safely argue from this perspective that the

system of capitalism being so filled with risks of loss necessitated the introduction of a quicker

dispute resolution system more privately controlled than the Court system to mitigate continuous

class struggle. Marxists posits that the struggle between social classes specifically between the

bourgeoisie, or capitalists, and the proletariat, or workers, defines economic relations in a

capitalist economy and will inevitably lead to a revolutionary communism.

17
See Coleman, Negative and Positive Positivism, 11 J. Legal Stud. 139 (1982)
18
https://www.investopedia.com/terms/m/marxism.asp. accessed on September 1, 2019
Marx believed that capitalism is based on commodities, which are things bought and sold. In

Marx's view, an employee's labor is a form of commodity. However, since ordinary laborers do

not own the means of production, such as factories, buildings, and materials, they have little

power in the capitalist economic system. Workers are also readily replaceable in periods of high

unemployment, further devaluing their perceived worth. To maximize profits, business owners

have an incentive to get the most work out of their laborers while paying them the lowest wages

possible. They also own the end product that is the result of the worker's labor, and ultimately

profit from its surplus value, which is the difference between what it costs to produce the item

and the price for which it is eventually sold.

To maintain their position of power and privilege, the bourgeoisie employ social institutions as

tools and weapons against the proletariat. The government enforces the will of the bourgeoisie

by physical coercion to enforce the laws and private property rights to the means of production.

The media and academics, or intelligentsia, produce propaganda to suppress awareness of class

relations among the proletariat and rationalize the capitalist system. Organized religion provides

a similar function to convince the proletariat to accept and submit to their own exploitation based

on fictional divine sanction, which Marx called "the opium of the masses." Conflict arises not

only because of competing interests within the organization, but because of the division within

society between those who won or manage the means of production and those who have only

their labour to offer. Marxists regard state intervention via legislation and the creation of

arbitration tribunals as supporting management’s interest rather than ensuring a balance between

the competing groups.

2.3 Conceptual Framework

Certain terms will be used consistently in this study, it will thus be wise to explain these terms in

context of this work to rid them off any ambiguity alternative interpretation might cause.

2.3.1. Arbitration

In the 2019 case of Ikere Ekiti IbukunOluwa Teachers Cooperative Multipurpose Society Ltd v

Ajibua19, the Court of Appeal held on the nature of Arbitration thus:

“…Arbitration is a process of dispute resolution in which a neutral third party

called (arbitrator) renders a decision after a hearing at which both parties have an
opportunity to be heard. An Arbitration may be voluntarily or compulsory.
Voluntary arbitration is by mutual and free consent of the parties. On the other
hand, compulsory arbitration is that which occurs when the consent of one of the
parties is enforced by statutorily provisions. Examples of such are State Statutes,
requiring compulsory arbitration of labour disputes involving public employees.
Therefore, Arbitration is the reference of a dispute or differences between not less
than two parties for determination, after hearing both sides in a judicial matter by
a person or persons other than a Court of competent jurisdiction…”

Arbitration has been defined as a process whereby a dispute arising between two or more parties

is settled by a tribunal chosen by them. 20 It has also been defined as the 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. 21 Simply

put, arbitration is the voluntary submission of a dispute to a person or body of persons chosen by

the parties for a binding decision.22 This may result either from agreement of the parties to the

dispute or from a statute which requires the settlement of certain disputes by arbitration. It may
19
Ikere Ekiti IbukunOluwa Teachers Cooperative Multipurpose Society Ltd v Ajibua (2019) LPELR-48493(CA)
20
Orojo J. O and Ajomo M. A., Law and Practice of Arbitration and Conciliation in Nigeria, Lagos: Mbeyi& Associates
(Nigeria) Ltd., 1999, 3. Retrieved fromhttp://books.google.com.ng/books?
id=6FyjXwAACAAJ&dq=Law+and+Practice+of+Arbitration+and+Conciliation+in+Nigeria,&hl=en&sa=X&ei
=eityU5TzMu3n7Ab_joGADg&ved=0CDQQ6AEwAA
21
Hailsham, V., Halsbury’s Laws of England, 4ed, Vol. 2, London: Butterworth & Co. (Publishers) Ltd, 1978, 501.
22
Otuturu, G. G., ‘The Legal Environment of Business in Nigeria’, Port Harcourt, Ano Publication, 2003, 64
further arise by order of court. The Supreme Court also recently lent its mind on the issue when

it held per Kekere-EkunJ.S.C in the case of Mekwunye v Imoukhuede23 as follows:

"I wish to refer to the dictum of Nnaemeka-Agu, J.S.C in: Commerce Assurance
Ltd. Vs Alli (1992) 3 NWLR (Pt. 232) 710 @ 725 E - G, on the nature of
arbitration proceedings, His Lordship stated, inter alia: "The underlying principle
[of arbitration proceedings] is that parties to a dispute have a choice. They may
resort to the normal machinery for administration of justice by going to the
regular Courts of the land and have their disputes determined, both as to the fact
and to the law, by the Courts or, they may choose the arbitrator to be the judge
between them. If they take the latter course, they cannot when the award is good
on the face of it, object to the award on grounds of law or facts. Smith, L.J.
reiterated the principle in Montgomery Jones & Co. Vs Libenthal (1898) 7 L.T.
406 where he stated at p. 408: "I for my part, have always understood the general
role to be that parties took their arbitrators for better or worse both as the decision
of fact and decision of law." The West African Court of Appeal reiterated this
same principle in the case of Foli V. Akese (1930)1 WACA 1 at P.2; so also the
Privy Council in Larbi V. Kwasi & Ors. (1950)13 WACA P.82. A person who has
submitted to arbitration cannot turn to the Court to ask it to review the award
when he believes that it is too high. AJ the learned authors of Russell on
Arbitration (18th Edition) put it at p.314: "The Court has no power to alter an
award; it can only set it aside or remit it to the arbitrator." ...Where a person
affected by an arbitral award wishes to have it set aside, he must apply
timorously, and before the successful party takes steps to enforce the award or
have a judgment entered in his favour in terms of the award..." See also: Taylor
Woodrow of Nig. Ltd. V. Suddeutsche Etna - Werk GMBH (1993) 4 NWLR (Pt.
286) 127; (1993) LPELR - 3139 (SC) @ 12 - 13 F- E; Ras Pal Gazi Construction
Co. Ltd. V. F.C.D.A. (2001) LPELR - 2941 (SC) @ 13 B - F. The consensual
nature of the agreement to refer disputes to arbitration is the most distinguishing
feature of arbitration proceedings. The parties not only choose the method of

23
Mekwunye v Imoukhuede (2019) LPELR-48996(SC)
 resolving their dispute, they also chose the venue, the umpire and the law that will
govern the proceedings. This is why a valid award operates between the parties as
a final and conclusive judgment upon all matters referred. See: Ras Pal Gazi
Construction Co. Ltd V. FCDA…"24

The procedure is flexible. In most cases, the parties would state their cases and put questions to

the opposing parties and their witnesses. Where documents are tendered, as it is done these days,

the opposing parties are allowed to inspect them and ask questions on them. The decision of the

arbitrators is basically a compromise solution to the dispute between the parties. Arbitration has

also been described as a contractual proceeding whereby the parties to any controversy or

dispute, in order to obtain an inexpensive and speedy final disposition of the matter involved,

select judges of their own choice and by consent submit their controversy to such judges for

determination, in the place of the tribunal provided by the ordinary process of law. 25Ezejiofor

describes it as the fair resolution of a dispute between two or more parties by a person or persons

other than by a court of law and concludes that an exercise is not arbitration if it does not answer

this definition.26

2.3.2. Dispute Resolution

Dispute resolution or dispute settlement is the process of resolving disputes between parties. The

term dispute resolution is sometimes used interchangeably with conflict resolution, although

conflicts are generally more deep-rooted and lengthy than disputes. 27 Dispute resolution

techniques assist the resolution of antagonisms between parties that can include citizens,

corporations, and governments. Methods of dispute resolution include: lawsuits (litigation),

24
Ibid at Pp 62-64, Paras. A-A
25
Gates v. Arizona Brewing Co. (1939) Ariz 266,269,95,p.2d,49,50
26
Ezejiofor G.,The Law of Arbitration in Nigeria, Ikeja: Longman, 1997, 3
27
Burton, J., Conflict: Resolution and Prevention. New York: St Martin's Press, 1990.
arbitration, collaborative law, mediation, conciliation, negotiation, facilitation, avoidance

etc.28The legal system provides resolutions for many different types of disputes. Some disputants

will not reach agreement through a collaborative process. Some disputes need the coercive power

of the state to enforce a resolution. Perhaps more importantly, many people want a professional

advocate when they become involved in a dispute, particularly if the dispute involves perceived

legal rights, legal wrongdoing, or threat of legal action against them. The most common form of

judicial dispute resolution is litigation. Litigation is initiated when one party files suit against

another. In the United States, litigation is facilitated by the government within federal, state, and

municipal courts. The proceedings are very formal and are governed by rules, such as rules of

evidence and procedure, which are established by the legislature. Outcomes are decided by an

impartial judge and/or jury, based on the factual questions of the case and the application law.

The verdict of the court is binding, not advisory; however, both parties have the right to appeal

the judgment to a higher court. Judicial dispute resolution is typically adversarial in nature, for

example, involving antagonistic parties or opposing interests seeking an outcome most favorable

to their position. Due to the antagonistic nature of litigation, collaborators frequently opt for

solving disputes privately.29 Indeed, the involvement of lawyers does not always signal the end

of a collaborative relationship. The duration of the exchange or the familiarity with exchange

partners are important factors impacting the willingness of the firm to resolve disputes. Such

impact is contingent on whether a cooperative norm has been developed through the course of

the collaboration.30

28
Wikipedia, Dispute Resolution, Retrieved from https://en.wikipedia.org/wiki/Dispute_resolution#cite_note-1
Accessed January 29, 2021.
29
Lieberman, Jethro K.; Henry, James F., "Lessons from the Alternative Dispute Resolution Movement". [1986]The
University of Chicago Law Review. (Vol. 53, No. 2): 424. Retrieved from
doi:10.2307/1599646.JSTOR1599646Accessed January 29, 2021.
30
Lumineau, Fabrice; Oxley, Joanne E., "Let's Work It Out (or We'll See You in Court): Litigation and Private Dispute
Resolution in Vertical Exchange Relationships" [2011].Organization Science. (Vol. 23, Vol. 3): 820–834.
Retired judges or private lawyers often become arbitrators or mediators; however, trained and

qualified non-legal dispute resolution specialists form a growing body within the field of

alternative dispute resolution (ADR). In the United States, many states now have mediation or

other ADR programs annexed to the courts, to facilitate settlement of lawsuits.

2.3.3. Arbitral Tribunal

An arbitral tribunal (or arbitration tribunal) is a panel of one or more adjudicators which is

convened and sits to resolve a dispute by way of arbitration. The tribunal may consist of a sole

arbitrator, or there may be two or more arbitrators, which might include either a chairman or an

umpire. Members selected to serve on the tribunal are typically professionals with expertise in

law and mediation, although some scholars have suggested that the ideal composition of an

arbitral tribunal should include at least one economist, particularly in cases that involve questions

of asset or damages valuation.31The parties to a dispute are usually free to determine the number

and composition of the arbitral tribunal. In some legal systems, an arbitration clause which

provides for two arbitrators (or any other even number) is understood to imply that the appointed

arbitrators will select an additional arbitrator as a chairman of the tribunal, to avoid deadlock

arising. Different legal systems differ as to how many arbitrators should constitute the tribunal if

there is no agreement.32

In the 2014 case of CELTEL Nigeria BV v Econet Wireless Ltd &Ors 33, the Court of Appeal per

Ikyegh,J.C.A, lent its mind in the description of an arbitral tribunal as follows:

31
Gregory S. J., Economists as Arbitrators, 30 EMORY INT'L L. REV. 2105 (2016), Retrieved from
https://www.criterioneconomics.com/economists-as-arbitrators.html; Accessed January 29, 2021.
32
Wikipedia, Arbitral Tribunal, Retrieved from https://en.wikipedia.org/wiki/Arbitral_tribunal; Accessed January
29, 2021.
33
CELTEL Nigeria BV v Econet Wireless Ltd &Ors (2014) LPELR-22430(CA)
 "An arbitral tribunal is by nature an informal adjudicatory body lacking the
sophistication and technical know-how of Judges of regular courts. Arbitral
tribunals are also not bogged down in the procedural trappings of regular courts.
Arbitral proceedings are, therefore, treated with a broad, liberal/open mind
leaning on the side of dynamism, commercial sense, latitude and common sense.
In other words, arbitral proceedings are not to be subjected to scrutiny with the
finesse of a toothcomb. Suffice it to say that the object of examining proceedings
of an arbitral tribunal is to ensure that at the end of the day the arbitrator(s)
reached a practical, sensible, just and fair decision on the face of it, or that at first
sight, not beyond or beneath the face of the award made by it."34

2.3.4. Arbitral Award

An arbitral award could be defined as the final and binding decision made by a sole arbitrator or

an arbitral tribunal, which resolves, wholly or in part, the dispute submitted to his/its jurisdiction.

Under Nigerian law, any award made by a tribunal must be in writing and signed by the

arbitrator(s). The award is also to state the reasons upon which it is based (unless parties have

agreed otherwise or it is an award on agreed settlement terms), the date it was made and the

place it was made. A copy of the award made and signed by the arbitrator(s) is also to be

delivered to each party. In the case of DUNLOP Nig Plc. (Now DnTyre & Rubber Plc.) v

GASLINK Nig Ltd,35 the Court of Appeal addressed the binding effect of an arbitral award when

it held as reproduced below:

"This case brings to fore the distinctiveness of arbitration. It is a voluntary

submission to a neutral party for adjudication; a dispute between two parties who
have agreed to consent to the process. Once parties have consented to arbitration,
they have also consented to accept the final award by the arbitrator. The Appellant
herein submitted that it is disputing the Arbitration upon which the award was

34
Ibid at P.60,paras.A-E
35
DUNLOP Nig Plc. (Now DnTyre& Rubber Plc.) v GASLINK Nig Ltd (2018) LPELR-43642(CA)
 made in the absence of a dispute on the liability of the sum claimed. The law is
settled on the grounds for setting aside an arbitral award. In the case of THE
VESSEL MV NAVAL GENT & ORS v. ASSOCIATED COMMODITY INT'L
LTD (2015) LPELR-25973(CA), I held thus: "Furthermore an arbitral award can
be challenged on the ground that there was no valid arbitration agreement or that
the matters submitted before the Tribunal does not fall within that agreement,
whether for reasons of public policy or otherwise, see Section 48 of the
Arbitration and Conciliation Act." See also the decision of my learned brother,
IKYEGH JCA in the case of CELTEL NIGERIA BV V. ECONET WIRELESS
LTD & ORS (2014) LPELR-22430(CA) where he held thus: "What a Court
called upon to set aside an arbitral award and an appellate Court called upon to
adjudicate on the decision of the setting aside Court has to decide is, whether the
arbitral award was prima facie good or right on, the face of it, not whether the
reasons (whether of law or facts or both) given by the arbitral Tribunal for the
award were right or sound, unless the reason(s) form part of the award. See
Commerce Assurance Limited v. Alli (1992) 3 NWLR (pt. 232) 710 at 725 - 726
as follows "The underlying principle is that parties to a dispute have a choice.
They may resort to the normal machinery for administration of justice by going to
the regular courts of the land and have their disputes determined, both as to the
fact and the law, by the courts. Or, they may choose the arbitrator to be the judge
between them, if they take the latter course, they cannot, when the award is good
on the face of it, object to the award on grounds of law or facts." Per NIMPAR,
J.C.A. (Pp. 39-41, Paras. D-B)

Thus, it is agreed that the decision in arbitration is known as an award. It is final on all issues

submitted. There could also be an agreed award resulting from the settlement of the issues by the

parties themselves during the arbitral proceedings. In such a case, the arbitrators would terminate

the proceedings and, if requested by the parties, record the settlement in the form of an award on

agreed terms, which shall have the same status and effect as any other award on the merits of the
case. By virtue of section 31 of the Arbitration Act, an arbitral award shall be recognized and

enforced by the court upon the application of any of the parties to the award.

2.3.5. Enforcement

Enforcement lies in the act of making sure that people obey the law or comply with a directive or

order of Court. An arbitration award is enforceable in the same manner as a judgment obtained in

a court of law. The act provides that “an award may, by leave of the court or judge, be enforced

in the same manner as a judgment or order to the same effect.” 36 Thus, an application can be

made directly to the court or judge to enforce an arbitral award or to enter judgment in terms of

the award. After obtaining the judgment or order of the court, execution can be levied under the

sheriff and civil process act. 37However, the other party to the arbitration agreement may request

the court or judge to refuse to recognition and enforcement of the award and protracted litigation

may ensue and any aggrieved party may subsequently appeal to the court of appeal and

ultimately to the supreme court (Constitution of the Federal Republic of Nigeria 1999). 38With the

introduction of multi-door courthouses in some States, the procedure for the recognition and

enforcement of an award is much easier. Under the Lagos Multi-Door Court House Law, for

example, settlement agreements duly signed by the parties shall be enforceable as a contract

between the parties and when such agreements are further signed by an ADR Judge or any other

person as directed by the Chief Judge, they shall be deemed to be enforceable under section 11 of

the Sheriff and Civil Process Law,39 By these provisions, a settlement agreement, which includes

an arbitral award, signed by an ADR Judge becomes a judgement of the high court of Lagos state

and is enforceable under section 11 of the Sheriff and civil process law. Under section 11 of the

36
See Arbitration and Conciliation Act, s. 31(2).
37
Cap S6,Laws of the Federation of Nigeria, 2004.
38
Constitution of the Federal Republic of Nigeria 1999 (as altered), s. 242
39
Lagos Multi-Door Court House Law 2007, s. 19(1).
Sheriff and Civil Process Law, judgements of courts may be recovered by levy of execution

against the goods, chattels, movable and immovable properties of the judgement debtor that are

found within the jurisdiction of the court.

2.4 Summary of Review

Having looked at the concepts associated with the concept of arbitration asa means of dispute

resolution in Nigeria on the one hand; the research has also explored the theoretical framework

underlying the research subject by examining the existing and available literature on the subject

of arbitration from both classical and classic assertions, what seems common is that arbitration

proceedings may vary from the very informal at one extreme to court–like proceedings at

the other.An unprecedented number of nations have adopted legislations and procedures that

promote the use of Arbitration as an alternative means for resolving disputes. Arbitration can

however only be used in commercial disputes. Therefore, disputes bordering on tax, crime,

matrimonial, rape, labour related issues amongst others are not generally subject to arbitration.

Initially the Nigerian judiciary was quite reluctant to enforce arbitration agreements. It seemed

that they considered it to be trespassing on their authority. As such, despite the ACA providing

for the settlement of commercial disputes through arbitration, some judges were wont to

dismissing arbitration agreements on technicalities.

The review of literature has revealed the importance of the process of arbitration as a means of

settling commercial disputes in Nigeria and the problems affecting local policies and legislations

regulating the issues surrounding the recognition and enforcement of arbitral awards. The issues

surrounding the proceedings, contesting and setting aside of arbitral awards in are also some of

the concerns covered by the available literature. The review also reveals the judicial attitude

towards what constitutes customary arbitration under the Nigerian law and brings to light few
factors which must be taken into consideration when determining the validity of an arbitral

award on the basis of whether or not it complies with law and the principles of fairness and

natural justice. Nevertheless, extra effort would be made to fill in the gaps in some of the

literature on the context of the application, recognition and enforcement of awards issued by

arbitral tribunals and the preservation of the rights of parties to an arbitration under Nigerian law;

exploring emerging problems and suggest new ways of intervention in order for the special

alternative dispute resolution mechanism to fully actualize the intendment of the enactment of

the various laws and policies for the regulation of arbitration proceedings in Nigeria. These are

issues, not adequately covered by most of the literature on the subject matter of the review.

2.5 Historical Evolution

The concept of arbitration is not new in Nigeria. Arbitration and other alternative dispute

resolution methods were used to resolve conflicts. Extra-judicial settlement of dispute has always

been a feature of our indigenous customary law. Such settlements are accepted and enforced by

the courts, provided they satisfy certain requirements. 40Every community in what has become the

Federal Republic of Nigeria evolved their own extra judicial method of dispute resolution, with

similarity in formula and process. According to Akpata, JSC (of blessed memory), he posits: “It

is not hazarding a guess, but being factual to say that the Anglo-saxons, the Romans and indeed

every community that lived ‘under the sun’ in ancient times used arbitration or mediation or

conciliation, in one form or another to, to resolve disputes. As stated by Holdsworth, “the

practice of arbitration therefore, comes, so to speak, naturally to primitive bodies of law, and

after courts have been established by the state and a recourse to them has become the natural

40
Ezejiofor, ibidat note 26. P. 15
method of settling disputes, the practice continues because the parties to a dispute want to settle

them with less formality and expense than is involved in a recourse to the courts.41

However, with the advent of Colonialism by the British and the subsequent amalgamation of

southern Nigeria and Northern Nigeria in 1914, Nigeria became a part of the British Empire and

subject of the English legal system. The first formal statute on arbitration was promulgated for

the entire country on 31st December, 1914, that is, the Arbitration Ordinance 1914 based on the

English Arbitration Act 1889.42 Subsequently, the Ordinance was re-enacted as the Arbitration

Ordinance (Act), Laws of the Federation of Nigeria and Lagos, 1958. This enactment were also

adopted and formally incorporated by the four Regions comprising Nigeria at the time, namely:

Northern, Western Eastern and the Southern Cameroons Region. Note that the Arbitration

Ordinance (Act) 1958 provided only for local or domestic arbitration. It wasn’t until the

enactment of the Arbitration and Conciliation Decree, 1988 (which came into effect on 14th

March), that Nigeria adopted the Convention on the recognition and Enforcement of Foreign

Arbitral Awards, otherwise known as the “New York Convention” relating to international

commercial arbitration. It is pertinent to note at this juncture that Nigeria had adopted the New

York Convention before the 1988 Act and enforcement of foreign arbitral award in an

international arbitration made outside of Nigeria was only possible by the provisions of the

Foreign Judgment (Reciprocal Enforcement) Act Laws of the Federation of Nigeria No. 31 of

1960, provided, amongst other things it was registered in a High Court in Nigeria. Surprisingly,

though the enactment of the Arbitration and Conciliation Act 1988 was late in coming, it is also

eminent to note that a number of Nigerian companies and prominent legal practitioners have cut

their teeth in both domestic and international commercial arbitration outside Nigeria. Arbitration

41
ibid
42
Ibid 2-3
practice and other alternative dispute resolution methods today is vibrant in Nigeria and has

culminated in the establishment of several professional bodies i.e. the Chartered Institute of

Arbitrators (Nigeria), Association of Professional Negotiators and Mediators. There is also the

presence of several dispute resolution institutions with thriving patronage. For example, the

Abuja Multi-Door Court is one of such.

CHAPTER THREE
LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE ENFORCEMENT OF
ARBITRAL AWARDS IN NIGERIA
3.1 The Constitution of the Federal Republic of Nigeria
This is the fundamental law of the country by reference to which the validity of other laws is

determined. Generally, the 1999 Constitution does not expressly provide for commercial or

investment arbitration. However, being vital to the validation, interpretation, and application of

statutes, the 1999 Constitution still impacts the laws regulating national arbitration statutes.

Looking back to the year 1988, Nigeria's Federal Military Government promulgated the

Arbitration and Conciliation Decree (now the Arbitration and Conciliation Act) to provide a
unified legal framework for commercial arbitration throughout Nigeria. The important thing of

note here is that at the time of the decree's promulgation, the Federal Military Government had

unlimited competence to legislate over any matter in, and for all parts of, Nigeria. Now, under

Nigeria's current constitutional democracy and federal structure of government, legislative

powers are constitutionally shared between the Federal Government and the respective state

governments.43

The matter of constitutional legislative competence over arbitration has been the subject of an

ongoing fierce and quite impressively stimulating academic debate. On the other hand, when

presented with a recent opportunity to address or, in light of a previous decision, to revisit the

issue, the Nigerian Court of Appeal chose in the particular circumstances to exercise judicial

economy saying that it would “refuse to be dragged down into a snake pit”. 44The constitutional

debate centers around whether the current Nigerian Constitution of 1999 clearly determines

which legislature, as between the federal legislature and states’ legislatures, has the legislative

competence to enact a framework arbitration legislation – especially as it relates to interstate and

international commercial activities and disputes arising out of them. The two legislative lists, the

Exclusive and Concurrent Lists, through which the Constitution primarily sets out the respective

legislative competences of the federal and states’ legislatures do not expressly mention

arbitration. This has led to the question of whether legislative competence over arbitration is

addressed in the constitution at all or whether it can be said to have been addressed as part of or

43
Ikeyi, N., and Amucheazi, O., ‘Applicability of Nigeria's Arbitration and Conciliation Act: Which Field Does the Act
Cover?’, [2013] Journal of African Law (Vol. 57, No. 1) 126. Retrieved from
https://www.cambridge.org/core/journals/journal-of-african-law/article/abs/applicability-of-nigerias-arbitration-
and-conciliation-act-which-field-does-the-act-cover/627C2FB5EA2EB10FB113C88DF50693D6 (Accessed March 2,
2021)
44
StabiliniVisinoni Limited v Mallinson& Partners Limited [2014] 12 NWLR (part 1420) 134, 175.
incidental to another heading that is expressly mentioned. 45 In the extant debate, the provisions of

the 1999 Constitution which are usually invoked as capable of being treated as providing for

legislative competence over arbitration are contained in items 62, 62(a) and 68 of the 1999

Constitution as set out below for ease of reference:

62: “Trade and commerce, and in particular –

(a) trade and commerce between Nigeria and other countries … and trade and
commerce between the states”

68: “Any matter incidental or supplementary to any matter mentioned

elsewhere in this list.”

Naturally, viewpoints and opinions as to whether these provisions cover the question of

legislative competence over arbitration are polarized. The prevalent and most common

interpretation and invocation of the provisions in relation to legislative competence over

arbitration holds that in light of item 68, arbitration is incidental or supplementary to trade and

commerce mentioned in item 62. Accordingly, the argument goes on that the federal legislature

has exclusive competence in respect of arbitration concerning international and interstate

commerce (the latter being sometimes confusingly referred to as “inter-state arbitration”).

Further, according to this line of argument, states’ legislatures would have legislative

competence to enact arbitration legislation in respect of purely “intra-state arbitration” (i.e. an

arbitration with connections solely to the concerned state) – as this would be a residual matter

which, not being addressed in the constitution, falls within the legislative competence of the

states. On the other hand, it has been argued quite forcefully to the contrary that the provisions of

items 62 and 68 of the Exclusive List of the 1999 Constitution cannot be invoked to determine

45
Phillip Consultancy: ‘Arbitration and the Nigerian Constitution’, Phillip Consultancy Blog. Retrieved from
http://phillipsonsconsultancy.com/blog/arbitration-and-the-nigerian-constitution/ (Accessed March 2, 2021)
legislative competence over arbitration in that they do not expressly or clearly address the matter.

It is thus contended under this line of argument that the federal legislature does not even have

legislative competence over arbitration at all; that as arbitration is not mentioned in the 1999

Constitution, it is entirely a residual matter left for the legislative competence of states’

legislatures to the exclusion of the federal legislature.

Presently, the position of the courts in relation to the ongoing constitutional debate about

legislative competence over arbitration is not entirely clear. In Stabilini, the Court of Appeal

seemed to implicitly favour a middle course. Whilst the court decided the matter before it on the

basis that the parties’ actions and the circumstances of the particular case dictated that the extant

federal Arbitration and Conciliation Act 1988 should be applied, the court seemed to recognise

that it could be open to parties to arbitration (in Lagos) to choose to invoke the Lagos State Law

instead. The decision in Stabilini sits very uneasily with an older decision of the same Court of

Appeal (albeit a different judicial division) in CompagnieGenerale de Geophysique v Dr Jackson

D Etuk.46 In the older case, the Court of Appeal held that by the Arbitration and Conciliation Act

of 1988 the federal legislature has “covered the whole field of arbitration” and that ‘inconsistent’

provisions of state legislation on arbitration are null and void.

3.2 The Arbitration and Conciliation Act 1988

The enforcement of both domestic arbitral awards and foreign arbitral awards is generally

governed by the Arbitration and Conciliation Act of 1988 (ACA). 47 The law is modeled after the

United Nations Commission on International Trade Law (UNCITRAL) Model law and its

second schedule is based on the Convention on the Recognition and Enforcement of Foreign

Arbitral Awards (New York Convention). It repealed the Arbitration Ordinance 191434 and

46
CompagnieGenerale de Geophysique v Dr Jackson D Etuk[2004] 1 NWLR (part 853) 20
47
Cap A18, Laws of the Federation of Nigeria, 2004.
abolished common law arbitration with its section 1 which makes it compulsory for all

arbitration agreements to be in writing.48 The Act is composed of four parts and three schedules.

Part I deals with Arbitration and comprises of thirty-six sections. It is subdivided into the

following topics: arbitration agreement, composition of the arbitral tribunal, jurisdiction of the

arbitral tribunal, conduct of the arbitral proceedings, making an award and termination of

proceedings, recourse against award, recognition and enforcement of awards and general

provisions as the last subtopic. Part II relates to conciliation while Part III is titled “Additional

Provisions relating to International commercial Arbitration and Conciliation”.

Part III is subdivided into the following topics: making of awards and termination of

proceedings, recognition and enforcement of awards, application of arbitration rules set out in

the first schedule, application of convention on the recognition and enforcement of foreign

arbitral awards and finally, conciliation. Part IV is titled, “Miscellaneous.” The Act contains

three schedules, the first schedule covering the applicable Arbitration Rules under the Act. The

second schedule is a reproduction of the convention on the Recognition and Enforcement of

Foreign Arbitral Awards June 10, 1958. The third Schedule covers rules on Conciliation.

3.3 Lagos State Arbitration Law 2009

The Lagos State House of Assembly enacted the Lagos State Arbitration Law, No. 18 of 2009 on

18 May 2009 (the ‘LSAL’).49 The stated aim of the LSAL is the principle that “The object of

arbitration is to obtain the fair resolution of disputes by an impartial Tribunal without

unnecessary delay.”50 The Law is modeled on the 2006 version of the UNCITRAL Model Law

and, except where the parties agree otherwise, applies to domestic arbitration where all the

48
C.N. Onuselogu Enterprises Ltd v Afribank (Nigeria) PLC, [2005] 12 NWLR (prt 940) 577.(Court of Appeal)(Nigeria).
49
The 1914 Arbitration Law operates in the other thirty-five States of the Federation
50
Lagos State Arbitration Law 2009, Section 1(a)
elements emanate within Lagos State.51 Like the Arbitration and Conciliation Act of 1988, the

Lagos State Arbitration Law also provides for what may be referred to as the doctrine of

separability as contained in section 19(2) of the Lagos State Arbitration Law. The provisions

clearly state that “…an arbitration clause which forms part of a contract shall be treated as an

agreement independent of the other terms of the contract…” They go further to provide that a

decision that the contract is invalid shall not invalidate the arbitration clause. The parties’

decision to arbitrate their dispute is therefore protected by the doctrine. It has been argued that

the doctrine will however not apply where the existence of the arbitration agreement itself or the

main contract in which it is embedded is in issue. In that case there is nothing upon which to

found the existence of an agreement to arbitrate.52

This law established the Lagos Court of Arbitration and vests in it the power to promote

resolution of disputes within Lagos State by arbitration and other alternative dispute resolution

(ADR) mechanisms. The Lagos Court of Arbitration is also empowered to constitute an arbitral

tribunal and maintain a panel of neutrals which shall consist of arbitrators, mediators and other

dispute resolution experts for the purpose of providing administered dispute resolution

services.53The Lagos Arbitration Law contains similar provisions to the Arbitration and

Conciliation Act but the Lagos Law has introduced some innovations and improvement on the

federal law.54

3.4 International Centre for the Settlement of Investment Disputes Act 1967
The involvement of States, especially developing economies, in the exercise of sovereignty over

their natural resources have increasingly made them players in international trade. This usually

51
Lagos State Arbitration Law 2009, Section 2.
52
Fiona Trust and Holding Corporation & Others v. Yuri Privalov& Others. [2007] EWCA Civ. 20
53
Idigbe, A., Arbitration Practice in Nigeria, Distinct Universal Limited, Lagos, 2010 p. 11.
54
ibid
involves having State contracts with private parties who are more often than not foreign

investors. Indigenous corporations and foreign investors are usually engaged by States to

participate as partners in the exploration and exploitation of natural resources. 55 These

contractual relationships were laced foreign investor’s fears for domestic tribunals on grounds of

bias, impartiality and the strength of State immunity within the State. This possibility of bias,

lack of independence and neutrality of the judicial and adjudicatory system within the state

informed the creation of the International Centre for Settlement of Investment Disputes under the

United Nations Convention for the Settlement of Investment Disputes 1965 (Washington

Convention). For an international treaty that has been ratified by the Nigerian Government to

become binding, it must first be enacted into Law by the National Assembly. 56 Until such

enactment is made, the international treaty has no force of law in Nigeria. By implication, no

right created under such a treaty can be enforced in Nigeria.57

Once the treaty is enacted, it becomes binding and the courts must apply it like other laws that

fall within their judicial powers.58 Nigeria, in a bid to encourage foreign investment, ratified the

Convention in 1967 and passed the International Centre for the Settlement of Investment Decree

No. 49 of 1967 which is now an Act under section 315 of the 1999 constitution. The Act consists

of only two sections; the first section states and explains the right of a party to enforce an ICSID

award by registering the award at the Supreme Court from whence it can be enforced as a

judgment of the court. While the second section gives the Chief Justice of Nigeria the power to

make appropriate rules for the enforcement of such awards.

55
Nwakoby, G.C.,‘ICSID Arbitration Practice-Plea of Sovereign Immunity’, [2012] Modern Practice Journal of Finance
and Investment Law (Vol. 6, No.1-2), 27.
56
Medical & Health Workers Union of Nigeria v Minister of Labor and Productivity [2005]17 N.W.L.R. (prt 953) 90,
156 paras A-F (Court of Appeal)
57
Abacha v Fawehimi [2000] 6 N.W.L.R. (prt 660) 228 (Supreme Court).
58
Medical & Health Workers Union of Nigeria v Minister of Labor and Productivity, Supra at 157 paras B-E.
3.5 Foreign Judgments (Reciprocal Enforcement) Act
This Act was passed on 1st February 1961 and its short title explains its aims and objects which

is, “[a]n Act to make provision for the enforcement in Nigeria of judgments given in foreign

countries which accord reciprocal treatment to judgment(s) given in Nigeria, for facilitating the

enforcement in foreign countries of judgments given in Nigeria ……” It applies to awards under

section 2, the interpretation section, which defines “judgments” to include awards in arbitration.

It consists of two parts; the first part relates to the registration of foreign judgments and the

second part, on miscellaneous matters. Part I is divided into seven sections namely, power to

extend part I of act to countries giving reciprocal treatment; registration and application of

judgments for enforcement in foreign countries; rules of court; cases in which registered

judgments must or may be set aside; foreign judgments which can be registered not to be

enforceable otherwise; application of part I of act to Her Majesty’s Dominion other than

Nigeria;provisions respecting certain existing judgments. Part II deals with miscellaneous

matters namely, the general effect of certain foreign judgments; power to make judgments

unenforceable in Nigeria if there is no reciprocity and the issue of certificates of judgments

obtained in Nigeria. The Act gives the courts the power to register a foreign judgment and to

exercise discretion to permit such registration. It also gives the court the power to enforce such

registered judgments. But the courts do not have the discretion to enforce any foreign judgment

or award without registration.

3.6 Institutions involved in the administration of arbitration in Nigeria

These are institutions that have been specifically set up by the Nigerian government for the

promotion of arbitration in country. Some, like the multi-door court house have had technical

problems in carrying out their duties due to undue interference in their activities by the courts
they were annexed to. This has gradually reduced and given way to greater cooperation because

of the education of judges and the public on the role of the institution.

3.6.1 Lagos and Abia Multi Door Court House

The Multi-door courthouse is a court-connected alternative dispute resolution center which offers

a variety of alternative dispute resolution process.59 The objectives of the multi-door court house

is to (i) enhance access to justice by providing alternative mechanisms to supplement litigation;

(ii) minimize citizen frustration and delays in the delays in justice delivery (iii) serve as a focal

point for the promotion of alternative dispute resolution and (iv) to promote the growth and

effective functioning of the justice system through alternative dispute resolution methods. 60

There are presently only few multi-door court houses in the Federation. The focus of this

research will be employed towards the Lagos Multi-door court house and the Abia Multi-door

court house.

The Abia State Multi-Door Courthouse is the foremost court connected Alternative Dispute

Resolution Centre in the South East Nigeria. It was established in the year 2010 to serve as the

focal point for the promotion of Alternative Dispute Resolution in Abia State, Nigeria. At the

Abia State Multi-Door Courthouse, cases are subjected to the most appropriate alternative

dispute resolution methods for resolution. These methods include mediation, arbitration,

conciliation, negotiation, early neutral evaluation and other hybrid processes. The Abia State

Multi-Door Courthouse provides to disputants an enhanced, timely, cost effective and user

friendly Access to Justice. This is underscored in the core objectives of the Abia State Multi-

Door Courthouse provided for in Section 4 (1) of the Abia State Multi-Door Courthouse Law as

follows
59
Egbewole, W. O.,‘ADR and International Commercial Transactions’, [1999] Modern Practice Journal of Finance
and Investment Law, (Vol. 3, No. 4) 683,688.
60
Section 2 of Law No.21, A Law to establish the Lagos Multi-door Court House and other connected matters.
(1) To enhance access to justice by providing alternative mechanisms to supplement litigation in

the resolution of disputes;

(2) Minimize citizen frustration and delays in justice delivery by providing a standard legal

framework for the fair and efficient settlement of disputes through Alternative Dispute

Resolution.

Over the years, tremendous successes have been recorded at the Abia State Multi-Door

Courthouse regarding the number of cases that have been resolved successfully between

disputants. Every passing day sees disputants embracing the various options provided by the

Centre in the resolution of their disputes.61

The Lagos Practice direction of 24th February 2004 62 made pursuant to section 274 of the 1999

Constitution, prescribes the practice procedure for the Lagos Multi-door court house. Under

section 19(2) of the Lagos law on the creation of the Lagos Multi-Door Courthouse, the arbitral

awards made by the multi-door court house shall be enforced as provided for under the

Arbitration and Conciliation Act or such other amended legislation. Under the Lagos State High

Court Rules, the awards rendered by the Lagos Multi-door court house shall be enforced in the

same manner as an order or judgment of the Court. Under the same rules, the application to set

aside such an award must be made within six weeks of the rendering of the award. The question

is, which time limitation period will apply where the Arbitration and Conciliation Act has

provided for a period of three months? 63 The courts have the power to set aside a domestic award

specifically under the Arbitration and Conciliation Act. In Medical & Health Workers Union of

Nigeria v Minister of Labor and Productivity, the Court of Appeal described Rules of Court as
61
https://abiamultidoorcourthouse.org/home/
62
The procedure for arbitration proceedings is provided for under the Arbitration Procedure Rules 2004 under the
Practice Direction. 105Section 274 of the 1999 C
63
Vita Malt PLC v Ibrahim Abdullahi [2006] ALL F.W.L.R. (prt 341) 1304
subsidiary legislation that derive their authority from the powers of the Chief Justice of the

Federation and the States under the Nigerian Constitution. So it is safe to conclude that the

limitation period that will apply is that under the Arbitration and Conciliation Act which is, three

months. The options that are open through the multi-door court house include early neutral

evaluation, mediation, conciliation and arbitration. The Multi-door has handled mainly domestic

cases and in so doing reduced the work load of the courts. There is nothing in the legislations or

the rules of court that prevents it from being used for international arbitration especially by

foreign investors in Nigeria for such matters that come before the court that can be settled by

alternate means are referred to the multi-door which is at present annexed to the high courts of

the States in which they exist.

3.6.2 Lagos Court of Arbitration

The Lagos Court of Arbitration is an independent, private-sector driven, International Centre for

the resolution of Commercial disputes via Arbitration and other forms of alternative dispute

resolution (ADR). Ideally located within the International Centre for Arbitration and ADR

(ICAA), Lagos, Nigeria, the Lagos Court of Arbitration’s use of internationally recognized

neutrals, modern facilities and the adoption of innovative technology, make the Lagos Court of

Arbitration an efficient and best-in-class arbitration institution. The Lagos Court of Arbitration

was established under the Lagos Court of Arbitration Law, No. 17, 2009 to provide

institutionalized arbitration and ADR services. To achieve its mandate, the Lagos Court of

Arbitration was empowered to appoint an arbitral tribunal in respect of any disputes referred to it

and maintain a panel of neutrals which consist of arbitrators, mediators and other experts with

the requisite skills and experience to meet set functions. 64 The expertise of the Lagos Court of

64
https://www.lca.org.ng/about/#:~:text=The%20Lagos%20Court%20of%20Arbitration,alternative%20dispute
%20resolution%20(ADR).
Arbitration spans multiple industries, including Oil and Gas, Finance, Maritime, Construction,

Engineering, Telecommunications, Hospitality, Tourism, Insurance and so on. The Lagos Court

of Arbitration was officially launched on the 9th of November 2012, at the Kuramo Conference

—a biennial International Summit which brings together multi-disciplinary experts from the

public sector, academia and private enterprise. Since inception, the Lagos Court of Arbitration

has rapidly evolved into an ADR institution of status. Its ADR advocacy engagements and

workshops have spread progressively across various economic segments namely, the Nigerian

judiciary, the legal and business community.

The Lagos Court of Arbitration Rules and Mediation Guidelines, incorporate International best

practices and standards with industry-specific requirements and needs. Industry specialists at the

Lagos Court of Arbitration ensure the specifics of each sector are taken into account when

making decisions.

3.6.3 The Courts

Nigeria is a federal State with the Supreme Court as the apex court, followed in hierarchy by the

Court of Appeal. The decisions of the Supreme Court are binding on the court of appeal. The

decisions of these courts are binding on the high courts of the federation, the customary court of

appeal and the sharia court of appeal. The high courts, namely, the federal high court and the

high courts of the States and the Federal Capital Territory along with the customary and sharia

courts of appeal; are all courts of concurrent jurisdiction, that is, their decisions are only of

persuasive authority upon the other and are not binding on any of them. The Federal High Court

has exclusive jurisdiction on matters that are listed out in section 251 of the 1999 Constitution of

the Federal Republic of Nigeria some of which include admiralty and matters involving
government agencies. Other courts include the Customary or Shari a Court of Appeal which have

concurrent jurisdiction with the High Court of the State. These (specialized) courts are present in

the State only if the State wishes to have them. The Supreme Court, the court of appeal and the

federal high court have federal jurisdiction, which means that they can entertain matters from

any part of the federation.

The High Courts of the States have jurisdiction only on matters that arises within the territory of

the State in which they are located. The competent authority in Nigeria to enforce or recognize

an arbitral award would depend on the statute under which the enforcement and recognition

application is sought. Under the International Centre for the Settlement of Investment Disputes

Act, the competent authority under section 1 of the Act is the Supreme Court. Under the

Arbitration and Conciliation Act, the competent authorities are the Federal high court and the

State high court. This was observed in the case of CITEC INTERNATIONAL ESTATES LTD v.

FHA.65Initially the Nigerian judiciary was quite reluctant to enforce arbitration agreements. It

seemed that they considered it to be trespassing on their authority. As such, despite the

Arbitration and Conciliation Act providing for the settlement of commercial disputes through

arbitration, some judges were wont to dismissing arbitration agreements on technicalities.

An example is the case of Imoukhuede v. Mekwunye,66which was later addressed by the Supreme

Court of Nigeria. The case witnessed a situation where parties to an agreement inserted an

arbitration clause to the effect that disputes were to be referred to a Sole Arbitrator to be

appointed by the President of the “Chartered Institute of Arbitration (London) Nigerian

Chapter”. Faced with the question of the validity of the arbitration agreement, the Court of

Appeal held that the organization that exists is the “Chartered Institute of Arbitrators (Nigerian
65
CITEC INTERNATIONAL ESTATES LTD v. FHA(2019) LPELR-48066(CA)
66
Mekwunye v. Imoukhuede (2019) LPELR-48996(SC)
Chapter)” and that since there is in effect no body/organization known as the Chartered Institute

of Arbitration (London) Nigerian chapter, the arbitration clause was unenforceable.” Amongst

other things, the Supreme Court thereof expressed its mind when the matter came before it thus:

“…The Court below based its decision on the misconduct of the sole arbitrator
on the ground that her letter of 7th May, 2006 to the respondent adjourning the
arbitral proceedings to another day was signed by her on behalf of a law firm-
Sola Ajilola& Co, a separate legal personality distinct from the sole arbitrator
amounted to a delegation of her duty. This in my humble view is technicality
taken too far clearly leading to a perverse decision as substantial justice was
sacrificed for the trivial…67

However, through arbitral institutions such as the Charted Institute of Arbitrators and the ICC

Commission on Arbitration and ADR, numerous judicial trainings have been held and are still

periodically held, and the attitude of the judiciary has changed. Whenever a dispute arises out of

an agreement which has an arbitration clause, the courts will stay all proceedings pending the

determination by an arbitral tribunal. This is evidenced by cases such as Frontier Oil Limited v.

Mai Epo Manu Oil Nigeria Limited68 where the court held that “Courts of law have inherent

jurisdiction to decide disputes between parties, but where the parties by their own agreement opt

for arbitration the courts will always respect such agreements and decline jurisdiction”.

67
See Atolagbe v Shorun (1985) LPELR-592; UBN Plc v Chimaeze (2014) LPELR- 22699; Irolo v Uka (2002) 14 NWLR
(Pt.786) 195.
68
Frontier Oil Limited v. Mai Epo Manu Oil Nigeria Limited (2005) 2 CLRN 148
 CHAPTER FOUR

APPRAISAL OF CHALLENGES AND PROCEDURE FOR THE ENFORCEMENT OF

ARBITRAL AWARDS IN NIGERIA

4.1. The arbitration agreement

Arbitration agreement is the bedrock of every arbitral proceedings and it is the corner stone of

the jurisdiction vested on the arbitrators to arbitrate on any matter referred to them. The

agreement could take various forms and character (oral or written) depending on the governing

law. It is not all issues and subject matters that are arbitrable. Different national legislation and

public policy have limited the scope of arbitration with respect to the issue of arbitrability. 69At

common law, an agreement to refer a dispute to arbitration could be oral, or in writing. It was

held in Doleman & Sons v. Ossett Corporation70 thatfor an arbitration agreement to be valid and

complete there must be an existing dispute as well as actual reference thereof to a particular

arbitrator. Today, while the statute governs exclusively written agreements to arbitrate, the

common law still covers oral agreements. In Talbot v. Earl of Shrewsbury, 71 it was held that an

69
Nwakoby, G. C., Aduaka, C. E., and Orabueze. C. I., ‘Arbitration Agreement: The Issue of Arbitrability in Nigeria
Arbitration Practice’ [2018] International Journal of Law and Society. (Vol. 1, No. 2), 92.
70
Doleman& Sons v. Ossett Corporation(1912) 3K.B257
71
(1873) LR. 16 EQ, 26
oral agreement to arbitrate remains so and must be treated as such, even if the award is in

writing, or indeed under seal. The agreement whether oral or in writing to refer a dispute to

arbitration is regarded as a binding contract at common law and its breach attracts damages only

but it cannot be specifically enforced. The court under the common law has more powers of

intervention than under the statute. The parties also have the autonomy to control their arbitral

process. Thus, the parties have right to revoke the authority of an arbitrator especially one

appointed by oral agreement at any time before the publication of his award. The common law

courts did not possess such powers. It appears the parties are not obliged to assign reasons for the

revocation of the arbitrator's authority. But the court retains powers of intervention. Despite the

power to revoke, the arbitrator has a right of action at common law for damages the quantum of

which will depend on the stage of the proceedings and the nature of the injury the arbitrator has

suffered.

For Arbitration agreements under the Statutes, the Arbitration and Conciliation Act 72 has

provided regulations under section 1 which requires every arbitration agreement to be in writing

or to be contained in some form of document by way of correspondence or in exchange of points

of claim and of defence; or a document containing an arbitration clause. Section (1) of the Act

provides thus;

1. Every arbitration agreement shall be in writing contained –

a. In a document signed by the parties.
b. In an exchange of letters, telex, telegrams or other means of communication
which provide a record of the arbitration agreement; or
c. In an exchange of points of claim and of defence in which the existence of an
arbitration agreement is alleged by one party and not denied by another.

72
Arbitration and Conciliation Act Cap A18 Laws of the Federation of Nigeria, 2004
 2. Any reference in a contract to a document containing an arbitration clause
constitutes an arbitration agreement if such contract is in writing and the
reference is such as to make that clause part of the contract.

The effect of this is that only written agreements to arbitrate either pre- or post-dispute come

within the purview or contemplation of the Act. The Act, though does not insist on any particular

form of written Agreement it follows that any determinable evidence in writing of the intention

to arbitrate will thus suffice. This has been considered as a good check to technicalities

especially in documentary evidence in litigation. At all times, the law of arbitration looks at the

intentional willingness of parties to arbitrate on one hand and then some form of written

evidence of it on the other hand. The next important feature of Arbitration agreements under the

Act is that parties are free to put into their agreement such lawful terms as they desire, once the

terms are unambiguously spelt out. The parties in the agreement could also spell out and limit the

powers of the arbitral tribunal, so that both the tribunal and the parties are not left in any doubt.

The agreement does not have to contain the names of the arbitrator, but nothing precludes it from

so doing. It is allowed under the Act and recommended that the parties state the number of

arbitrators they desire; failing which, the Act provides for three.

On the issue of whether a person who was not a party to an arbitration agreement can benefit or

challenge the validity of same, it was the holding of the Supreme Court in the 2018 case of

Dangote Farms Ltd v. Plexux Cotton Ltd73 thus:

"On the issue of who was the actual party to the contract and the arbitral
proceedings as between the Appellant and Dangote Group of Companies,
which the Appellant's contended is an entity unknown to law, it does appear to
me and I so hold that in law under an arbitral proceedings, particularly in the
United Kingdom, an arbitral Panel is empowered to have recourse to the
73
Dangote Farms Ltd v. Plexux Cotton Ltd (2018) LPELR-46581(CA)
 provisions of the UK Arbitration Act to correct an error in an Arbitral Award
and therefore, in my finding the correction of name of Dangote Groups of
Companies, which on the Appellant's own showing is an entity unknown to law
going by its contention to that effect in this appeal, to the name of the
Appellant, undoubtedly a legal entity known to law, was in order and does not
in any way vitiate the arbitral award. See Section 70(2)(b) of the UK
Arbitration Act. At any rate, if the Appellant now contends that it was not party
to either the contract and or the arbitral award and that it was Dangote Group of
Companies that was the party, then under what legal status did the Appellant
filed its suit before the Court below to invalid the arbitral proceedings as well
as the arbitral award and can it in law do so? I certainly think not! This is so
because in law it is only a person who is a party to an arbitration
agreement that can take either the benefit or bear the liability of an
arbitration clause. Thus, it is only party to an arbitration agreement that can
challenge its validity. It follows therefore, a person who is a stranger to an
arbitration agreement, such as in Exhibit D, D2 and D3, would lack the
competence to challenge its validity. See Onwu V. Nka (1996) 7 NWLR (Pt.
458) 1 @ p. 13. So also the law would not allow a party to a contract who had
benefitted from the contract, particularly in the instant case in a self confessed
breach of the contract, to turn round to attempt to void or avoid the contract,
since equity will not permit a party to benefit from his own wrong. The
Appellant should perhaps start with gorging itself of all and whatever benefits
it had obtained under the contract with the Respondent, no doubt a tall order!
See A.I.D.C Nigeria LNG Ltd. (2000) 4 NWLR (Pt. 653) 494 @ pp. 506 - 507.
See also Adedeji V. National Bank of Nigeria Ltd (1989) NWLR (Pt. 96) 212."
74

The Arbitration agreement once entered into by the parties’ remains binding on them unless

discharged by the parties based on agreement or set aside with the leave of court or judge. The

implication of this principle is that an arbitration agreement is irrevocable unless discharged by

74
Dangote Farms Ltd v. Plexux Cotton LtdSupra, Per Georgewill, J.C.A. (Pp. 39-41, Paras. D-D)
the parties themselves or impeached by the court at the instance of either party to the agreement.

Section 2 of the Arbitration and Conciliation Act provides that unless a contrary intention is

expressed therein, an arbitration agreement shall be irrevocable except by agreement of the

parties or by leave of the court or a judge. It is very unfortunate that section 2 of the Act did not

furnish us with the grounds pursuant to which a court or a judge may impeach, set aside or

discharge an arbitration agreement. Arbitration agreement is a simple contract and any of the

grounds for the successful impeachment of simple contract will suffix. The grounds for

impeachment of arbitration agreement would among others include the following:

a) Formal invalidity of the arbitration agreement.

b) Arbitrability of the subject matter.

c) Capacity of the contracting parties.

d) Fraud, undue influence and improper procurement.

e) Misrepresentation.

An arbitration agreement shall pursuant to the provisions of section 2 of the Act be impeached by

the court if the applicant for leave furnishes the court with evidence of any of these grounds

listed above. Where parties have entered into arbitration agreement, none of them has right to

revert to the court for redress with respect to the subject matter of the arbitration agreement

without first referring the matter or dispute to the arbitrator for determination. Where a party

contrary to the arbitration agreement refers their dispute of differences to court, the aggrieved

party is not without remedy. The aggrieved party has the right to treat it as a breach of contract

and then sue for award of damages under the common law. He may also sue for specific

performance of the arbitration agreement.75 Summarily, an arbitration agreement is the bed rock

and the legal basis of every arbitration proceedings. Arbitration agreement under the Act has to
75
Royal Exchange Assurance v. Bentworth Finance Nig. Ltd. (1976) 6 UILR (Pt. 2) 293.
be in writing for it to be valid and enforceable. Arbitration has certain limitations placed against

it by State legislation and public policy. This is because not all subject matters are possible of

arbitration. Only matters which can be settled by accord and satisfaction can be subject of

arbitration. It must be emphasized at this point that not all matters can be referred to arbitration.

There are matters which cannot be referred to arbitration on the basis of public policy and

legislation. There are matters also which cannot be referred to arbitration on the basis of the

agreement of the parties.

4.2 Procedure for the Recognition and Enforcement of Arbitral Awards

Before going into the substantive grounds upon which the recognition and enforcement of an

arbitral award maybe sought, it is relevant to know the procedures by which such applications

can be brought before the court. The relevant sections make it mandatory for the applicant to

comply these provisions, whether the court would require strict adherence to the procedural

requirements is within the discretion of the court but complying gives the court more reason to

exercise its discretion in the applicant’s favor. Section 51 of the Arbitration and Conciliation Act

deals with the recognition and enforcement of commercial arbitral awards. It states, in subsection

(1), that ,“An arbitral award shall, irrespective of the country in which it is made, be recognized

as binding and subject to this section 32 of this Act, shall, upon application in writing to the

court, be enforced by the court. Subsection 2 gives the procedure for recognition under

subsection 1.It states that a party seeking recognition and enforcement will, in addition to their

application, bring before the court, the authentic and original award or its certified copy; the

original arbitration agreement or a certified copy and where either of these documents is not

made in English, a certified translation into English.

4.2.1 Foreign and International Arbitral Awards.

The first step in the recognition and enforcement of international arbitral awards is to determine

the nationality of the award. Secondly, the legal rules that apply to a nondomestic award by

reason of the agreement of the parties or by the applicable Nigerian law and in what

circumstances can and will such rules be applied. There are two different conceptual approaches

to the definition of the nationality of an award. The seat state, which determines the nationality

of the award, can be ascertained either by geographic location of the proceedings or by the

applicable law to the proceedings. The geographic location criterion asserts that the seat state is

where the arbitral award is made regardless of the applicable procedural law. The second criteria,

on the other hand, is based on the applicable procedural law, and states that the applicable law to

the arbitration agreement and the arbitral award will determine the seat state of the arbitration. 76

The former is followed by the United Kingdom where the arbitral award is considered to be of

the nationality of the State it was made regardless of where the award was signed, dispatched or

delivered to any of the parties. The latter is followed in France and Germany, where the award

will take on the nationality of the State whose procedural law governed the arbitral proceedings

regardless of the geographical location of the arbitral proceedings. 77In Nigeria, the nationality of

the award is not as relevant as the agreement of the parties to the agreement. Irrespective of the

country the arbitral award is made, the important consideration is that whether or not the

arbitration between the parties falls within the definition of international under the Act. This by

implication includes awards made in Nigeria and awards made outside Nigeria that have applied

the procedural law of Nigeria.

76
Contini, P., ‘International Commercial Arbitration, the United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards’,[1959], The American Journal of Comparative Law, (Vol. 12, No. 8)
283,292.
77
Section 53 and 100(2,b) Arbitration Act 1996(United Kingdom).
The second issue to look into is what rules will apply to the recognition and enforcement of

foreign and international awards. Firstly, the New York Convention as it applies under the

Arbitration and Conciliation Act will be examined followed by the Convention on the Settlement

of Investment Disputes as enacted under Nigerian Law. Before the Arbitration and Conciliation

Act, arbitral awards could be enforced under the Arbitration Act of 1914, Reciprocal

Enforcement of Judgments and Foreign Judgments (Reciprocal Enforcement) Act. In 1968 an

award made in London was held as unenforceable in Nigeria under the Arbitration Ordinance 78

rather the applicant should register the award under the Reciprocal Enforcement of Judgments

Act.79In another case of the recognition and enforcement of an international award, this time

made in New York, in Nigerian Courts; 80the court held that contrary to the award debtor’s

argument, foreign arbitral awards are enforceable in Nigeria through the following means,

(a) Sanction by a competent court in the foreign country so as to become a judgment of that
court;

(b) A treaty guaranteeing reciprocity;

(c) An Order-in-Council to that effect or

(d) New proceedings in Nigeria.

In spite of the pro enforcement trend during this period although through a longer process than

would be convenient for commercial disputes, the courts did refuse the enforcement of a Russian

arbitral award. Generally, the requirements for the enforcement of foreign arbitral awards in

Nigeria can be summarized as follows:

The party relying on an award or applying for its enforcement shall supply:

78
Mauritius Steam Navigation Co. Ltd v. International Shipping Lines Ltd (1969) 3 A.L.R. Comm. 34-35.
79
Asouzu, A., ‘The Adoption of the UNCITRAL Model Law in Nigeria: Implications on the Recognition and
Enforcement of Arbitral awards’ [1999], Journal of Business Law (Vol. 185, No. 1) ,2.
80
Edokpolor v. Alfred C. ToepferInc [1964] 1 All.Law.Report.Commercial. 322.
a. The duly authenticated original award or a duly certified true copy thereof;

b. The original arbitration agreement or a duly certified copy thereof; and

c. Where the award or arbitration agreement is not made in English Language, a duly certified

translation thereof into English Language.

The process of registering a foreign judgment varies depending on the circumstances of each

case. Generally however, where the application for registration and enforcement is unchallenged,

theprocess could last between six (6) months and one (1) year. It would invariably take longer

time however if the application is challenged by any of the available means, especially grounds

listed under Section 6 of the Act.81 Not only that, the judgment debtor may, if his application to

set aside is refused, appeal against the judgment, thereby leading to full blown litigation. To

avoid these attendant troubles, it is advisable for the judgment creditor to ensure strict

compliance with all rules throughout the process leading to the original judgment

4.2.2 Domestic Arbitral Awards

Section 31 of the Arbitration and Conciliation Act gives the court the power to recognize and

enforce domestic arbitral awards but does not give the grounds on which such recognition or

enforcement can be sought. It encapsulates the summary procedure of recognition and

enforcement. The first part of section 31(1) states that an arbitral award shall be recognized while

the award shall be enforced subject to the section 32 of the Act accompanied by an application in

writing to the court. The application shall be accompanied by a duly authenticated copy of the

original award and the original arbitration agreement or a duly certified copy. The award shall,

under Sub section 3 be enforced in the same manner as the court’s judgment. In Commerce

81
Foreign Judgments (Reciprocal Enforcement) Act
Assurance Limited v Alhaji Buraimoh Alli 82the Supreme Court held that there are two alternative

ways of enforcing an award; one by application to directly enforce the award or secondly by

application to enter judgment in terms of the award to enforce the judgment by one or more of

the usual forms of execution. The summary method referred to here is reflected in section 31

above. The main feature of the summary enforcement procedure is that the award is treated as an

existing judgment that is to be enforced. In an application to enforce an award, the Court of

Appeal83 held that the party must prove, the making of the contract which contains the

submission; that the dispute arose within the terms of the submission; that the arbitrators were

appointed in accordance with the clause that contained the submissions; the making of the award

and that the amount awarded has not been paid. 84 The court continued stating, “ parties who

make a submission to arbitrator … do so… to adopt a quick, simple, inexpensive and technicality

free procedure to resolve their dispute….[a] court should not therefore upset the expectation of

parties except for the clearest evidence of wrongdoing or manifest illegality on the part of the

arbitrator.” The question then is, can a court convert an arbitral award into its own judgment

instead of just recognizing it as binding between the parties? Secondly, can the court then award

interest on the arbitral award? These were the issues before the court in Ras Pal Gazi

Construction Company Limited v Federal Capital Development Authority 85 and Aloysius

Iyorgyer Katsina-Alu JSC, on the first issue held that only where the court adopts the terms of

settlement between the parties as its own judgment can the settlement assume the status of a

consent judgment. Secondly, arbitration is not a negotiation for settlement but rather it acts as a

final judgment on all matters brought before the court and has binding effect, which on

82
[1992] 3 N.WL.R. (Prt 232) 710
83
Clement C. Ebokan v Ekwernibe& Sons Trading Company[2001] 2 N.W.L.R (prt 696) 32 (Court of Appeal)(Nigeria).
84
Quoting Cockburn C.J. in Re Hopper L.R. 2 Q.B.367 [1867].
85
[2001] 10 N.W.L.R. Part 722 (Supreme Court)(Nigeria).
application in writing to the court can be enforced. Therefore, if an award is not “challenged,”

then it stands as a final and binding determination of the matters between the parties. The arbitral

award is thus res judicata, on all matters brought before the arbitral tribunal that had been

decided upon. The parties cannot be allowed to re-open the matter, therefore, an arbitral award

cannot be appealed against. The justice continued, that the only jurisdiction the court has is to

enforce the award as a judgment unless there are grounds for doubting its validity. The court has

no other business with regard to the award except as provided under the Act as stated in section

34 of the Arbitration and Conciliation Act. On the second issue, whether or not the court can

award interests on an arbitral award, the court held that since an arbitral award is a final

judgment of all issues between the parties, it is thus the responsibility of the arbitrator to make

any award of interests. The courts only responsibility is to enforce the award upon application if

the validity of the award is not in doubt.

In deciding whether an application for the recognition and enforcement of an arbitral award can

be made exparte or on notice, it was the reasoning of the Court in Allied Energy Ltd & Anor v.

Nigerian Agip Exploration Ltd86as follows:

"The Originating ex parte is the genesis of the journey leading to the

controversy in this appeal. Appellants argued that considering the nature of the
relief(s) sought by the Respondent, that is, to enforce the London Arbitral
Award against the Appellants, they ought to have been put on notice so as to
ensure that the Appellants were given fair hearing as enshrined in the 1999
Constitution given the magnitude of the Award. On the other hand, the
Respondent vehemently contended that Order 52 Rule 16(1) of the Federal
High Court Rules regulates the manner in which an application for the
enforcement of an award should be made, and prescribed that it can be made ex

86
Allied Energy Ltd & Anor v. Nigerian Agip Exploration Ltd (2018) LPELR-45302(CA)
parte as done in the instant case. Now, Section 31 of the Arbitration and
Conciliation Act, provides: (1) An arbitral award shall be recognized as
binding, and subject to this section and Section 32 of this Act, shall, upon
application in writing to the Court, be enforced by the Court. (2) ... (3) An
award may, by leave of the Court or a judge, be enforced in the same manner
as a judgment or order to the same effect. Whereas, Order 52 Rule 16 (1) of the
Federal High Court Rules, states that: "An application to enforce an award on
an arbitration agreement in the same manner as a judgment or order may be
made ex parte, but the Court hearing the application may order it to be made on
notice." Learned Counsel for the respective parties have referred this Court to
the decision in IMANI & SONS LTD Vs. BILL CONSTRUCTION CO. LTD
(Supra) where OGUNTADE, JCA (as he then was), while considering the
provisions of Section 31 of the Arbitration and Conciliation Act, pronounced as
follows: "The Lower Court reasoned that the purpose of an application brought
pursuant to Section 37 of the ABCA Cap. 19 was merely to inform respondent
on the application and that it was not meant that such respondent should file a
counter-affidavit. By that reasoning the Lower Court was also saying that a
respondent put on notice was not expected to even address the Court even on
point of law. That the Lower Court understood that Section 31 of ABCA Cap.
199 was manifest in what it proceeded to do immediately it refused
adjournment sought. Without asking the appellants' counsel what he intended
to do following the refusal by the Lower Court of the application for
adjournment, it proceeded to make the order sought on the Originating
Summons. A perusal of Section 37 of the ABCA shows that it is not prescribed
there under that a respondent to an application shall be put on notice but it
seems to me that since the procedure is one leading to the granting of an order
which may affect another's proprietary interest, I must read into it a provision
to the effect that a party against whom an order under Section 37 ABCA is
sought must be put on notice...." Expressing similar opinions, ADEREMI, JCA
(later JSC) (of blessed memory) observed as follows: "... To have construed
Section 37 of the Arbitration and Conciliation Act Cap. 19 Laws of the
Federation 1990 as carrying a legal force which denies a party who would be
affected by the eventual order or judgment of a Court hearing before such order
is made is a negation of fair hearing enshrined in our Constitution. And such
law must not be accorded any application for it defeats the course of justice and
erodes into the confidence which all law abiding citizens must have in the
administration of justice - an essential to social order and security..." The above
decision proceeded on appeal to the Supreme Court in BILL
CONSTRUCTION CO. LTD Vs. IMANI & SONS LTD [2006] 19 NWLR
(Pt.1031) 1, and while the Supreme Court found and held that the Court of
Appeal was in error in its decision that the Respondent therein was not granted
fair hearing, there was no pronouncement by the Supreme Court relating to the
position of the law stated by this Court that a person to be affected by an
application brought pursuant Section 31 of the ACA must be put on notice. In
the words of TABAI, JSC, at page 17 of the law report; "The learned trial
Judge, rightly in my view, refused that request for an adjournment in that such
a counter-affidavit could not be taken as an application to set aside the arbitral
award as provided for in Section 29(1)(a) of the Arbitration and Conciliation
Act which has to be made within three months of the delivery of the award.
The Lower Court, however allowed the appeal and set aside the order made by
the trial High Court. I believe that the Lower Court was in error in its decision
in the matter because the counter-affidavit sought to be filed by the respondent
could not serve any useful purpose. This is because, any request made in such
application to set aside the arbitral award could not be entertained by the Court
as it would not have been made within the three months stipulated by law for
making such application..." Contrary to the erroneous contention of the learned
Counsel for the Respondent, the decision of the Supreme Court setting aside
that of this Court was hinged on the fact that the Counter-Affidavit sought to be
filed by the Respondent therein will serve no useful purpose as the time
prescribed for the setting aside of the arbitral award had elapsed. It is also
striking that in that case the Respondent therein was indeed put on notice of the
motion seeking leave to enforce the Arbitral; but rather than file a counter
affidavit, it filed a preliminary objection (filed after three months of the
delivery of the award) which was subsequently over-ruled by the trial Court;
whereupon the Respondent sought an adjournment to file a counter-affidavit in
respect of the motion to enforce. This was not granted by the trial judge for the
obvious reason enumerated by the Supreme Court. Therefore, I am unable to
accept the Respondent's contention that the pronouncement of this Court in
IMANI & SONS LTD Vs. BILL CONSTRUCTION (Supra) with respect to
the construction of Section 31 of the ACA was overruled by the Supreme Court
on appeal. As I indicated above, there is nothing to that effect; as a matter of
fact, I adopt the reasoning that it must be read into the provision of Section 31
of the ACA that any application for the recognition and enforcement of
Arbitral award, which touches on the proprietary or pecuniary interest of
another, must be served on that person. For the avoidance of doubt, the
reasoning of this Court in the above case remains much more potent where, as
in the instant case, the Respondent seeks leave to enforce an arbitral award
within three months of the delivery of the said award. Looking at the decision
of the Supreme Court in BILL CONSTRUCTION (Supra), it is obvious that
the Court was persuaded to reach its conclusion primarily on the ground that
the three months prescribed for the filing of application to set aside an arbitral
award under Section 29 of the ACA had elapsed. That is not the situation in
this case. Order 52 Rule 1-6 (1) of the Rules of the Lower Court may have
given the learned trial judge the discretion to direct that application filed ex
parte for the recognition and enforcement of an arbitral award, be made on
notice, I believe the discretion will be shown to have been exercised judicially
and judiciously, not warranting interference by this Court, the learned trial
judge should have exercised restraint and ordered that the Appellants be put on
notice before any order is made against them, considering the peculiar
circumstances of this case, and in particular Section 29 of the ACA which
reads: "(1) A party who is aggrieved by an arbitral award may within three
months - (q) from the date of the award; or (b) in a case falling within Section
28 of this Act, from the date the request for additional award is disposed of by
the arbitral tribunal, by way of application for setting aside, request the Court
to set aside the award in accordance with Subsection (2) of this section."
Sections 29(1) and 31(1) of the ACA as well as Order 52 Rule 16 (1) of the
Federal High Court Rules, seem to me, plain to the effect that, an application
for the recognition and enforcement of arbitral award may be made either ex
parte or on notice; where it is made ex parte, the Court may direct as it deems
fit that the other party be put on notice. It is my view, that where the
Application is made within the three months the Award is made, the debtor is
permitted to apply to set aside the award, such application must be made on
notice or the Court should direct that the other party should be put on notice.
On the contrary, where the three months prescribed had elapsed, it implies that
the Award debtor does not intend to exercise his right under Section 29 of the
Act; and the shoreline is then clear for the Applicant to make his application ex
parte without the fear that the statutory right of the Award debtor is being
supplanted. In AYOADE Vs. SPRING BANK PLC [2014] 4 NWLR (Pt.1396]
93, the Court held that: "One of the cardinal requirement of law, to imbue a
Court with jurisdiction to hear a case, is that, the person to be affected by its
decision must be duly summoned or served with processes of Court and given
opportunities to be heard or defend themselves. That is an inalienable
constitutional right of every person. A Court has no jurisdiction to make orders
to bind a party that was not given opportunity to be heard by the Court before
issuing the order, except such persons are agents, servants, or privies of the
parties to the case, in which case they are contemplated..." Therefore, having
contemplated making the Appellants at the receiving end of the Originating
Application filed by the Respondent to enforce the Arbitral Award within three
months of its delivery, and as it is aimed at affecting them, the Court ought to
have directed that the Appellants be put on notice, to give them opportunity to
be heard before visiting on them the calamity of abrogating their statutory right
under Section 29 of the ACA, to have the award set aside within three months
of delivery. The learned trial judge adopted the decision of this Court relied
upon by the Respondent in UMAR Vs. ONWUDINE (Supra); but as will be
seen, both the Respondent and the Lower Court misconceived the reasoning of
the Court in that case. If the learned trial judge had carefully studied the
decision of this Court in that case, it would have reached a different conclusion.
At page 149 to 152 of the Report, this Court, per UMOREN, JCA, while
considering the question I earlier raised, as to whether an application should be
heard and granted ex parte, held as follows: "...I have examined the nature of
the orders made by the learned trial Judge. I am of the view that it entails
deliberation on a number of well-settled issues upon which the right of the
applicant to the grant of it depends... Clearly, whenever the need arises for the
determination of the civil rights and obligation of every Nigerian, this
provision (Section 33 of the 1979 Constitution, now Section 36 of the 1999
Constitution) guarantees to such a person a fair hearing within a reasonable
time. Fair hearing has been interpreted by the Courts to be synonymous with
fair trial and as implying that every reasonable and fair minded observer who
watched the proceedings should be able to come to the conclusion that the
Court or other tribunal has been fair to all the parties concerned... As this is so,
an order which ex-facie, as in this appeal, looks final, lacks at least one of the
attributes of fair hearing or as for example, equality of opportunity to both
sides to the contest... Once a party or an appellant as in this case shows that
there is an infringement on the principle of natural justice against him, it is my
view that he need to show nothing more. The finding that there is an
infringement of the principle is sufficient to grant him a remedy...." Without
any particle of doubt, there is nothing in the entire decision of this Court in
UMAR Vs. ONWUDINE (Supra) supporting the conclusion reached by the
Lower Court and the stance taken by the Respondent. To the contrary, this
Court clearly held that any provision of rules of Court or Act which states that
an Appellant cannot appeal against an ex parte order which is ex facie a final
order or decision is inconsistent, null and void with the Constitution. Also,
according to OMAGE, JCA at page 156 of the Report, a party against whom an
ex parte order is made has the option of approaching the Court to have same
vacated or elect to appeal, as done in that case. To sum it up therefore, the
 conclusion reached by the learned trial judge runs contrary to the decision it
relied upon; it cannot be allowed to stand. As earlier noted expressly in this
judgment, in so far as the application for leave to enforce the Arbitral Award
was not served on the Appellants before same was heard and determined, the
Appellants' right to fair hearing would be taken as having been breached,
thereby rendering the entire proceedings including the order made by the
Lower Court, a complete nullity, and therefore liable to be set aside. See EKE
Vs. OGBONDA (Supra); PURIFICATION TECHNIQUES (NIG) LTD Vs.
AG, LAGOS STATE [2004] 9 NWLR (Pt.879) 665."87

4.3 Grounds for Setting Aside Arbitral Awards in Nigeria

In the 2019 case of Mekwunye v. Imoukhuede,88 it was the holding of the Supreme Court as

regarding the setting aside of arbitral awards as follows:

"Generally speaking, arbitral award is regarded in legal parlance, as a final

judgment on all matters referred to an arbitrator and as such Courts are
enjoined to, as much as possible, uphold or affirm and enforce arbitral awards
when being approached especially in view of the fact that parties had
voluntarily resolved or agreed to submit to the jurisdiction of the arbitrator or
arbitrators to resolve their dispute. In the instant case, the parties have
voluntarily submitted to the jurisdiction of the arbitration by participating.
However, under our laws, there are grounds on which arbitral award can be set
aside. Some of these grounds include:- (a) Where the award is beyond the
scope of the reference; (b) Where the arbitrator has misconducted himself and
(c) Where the arbitral proceedings or award has been improperly procured. All
these circumstances or conditions under which arbitral award can be set aside
are provided in Sections 29 (2) and 30(1) of the Arbitration and Conciliation
Act, Cap. A18 Laws of the Federation of Nigeria as reproduced hereunder:-
"29(2) The Court may set aside an arbitral award, if the party making the
application furnishes proof that the award contains decisions on matter which
87
Allied Energy Ltd & Anor v. Nigerian Agip Exploration Ltd Per Abubakar, J.C.A. (Pp. 46-58, Paras. E-B)
88
Mekwunye v. Imoukhuede (2019) LPELR-48996(SC),
are beyond the scope of the submission to arbitration, so however that, if the
decisions on matters submitted to arbitration can be separated from those not
submitted, only that part of the award which contains decisions on matters not
submitted may be set aside. 30(1) Where an arbitrator has misconducted
himself, or where the arbitral proceedings, or award, has been improperly
procured, the Court may on the application of a party set aside the award. (2)
An arbitrator who has misconducted himself, may on the application of any
party be removed by the Court." In this instant case, the Respondent's reason
for seeking the setting aside of the award is hinged on alleged misconduct on
the part of the arbitrator. In the case of TAYLOR WOODROW (NIG) LTD V.
SUDDEUTSCHE ETNA-WERK GMBH (1993) 4 NWLR (PT. 286) 127 AT
142-144 A-E, this Court gave insight on what amounts to misconduct of an
arbitrator, especially in view of the fact that the Law/Act did not define what
amounts to misconduct. In the said case, this Court held that act of misconduct
entails the followings:- (1) Where the arbitrator fails to comply with the terms,
express or implied, of the arbitration agreement; (2) When, even if the
arbitrator complies with the terms of the arbitration agreement, the arbitrator
makes an award which on grounds of public policy ought not to be enforced;
(3) Where the arbitrator has been bribed or corrupted; (4) Technical
misconduct such as where the arbitrator makes a mistake as to the scope of the
authority conferred by the agreement of reference. This, however, does not
mean that every irregularity of procedure amount to misconduct; (5) Where the
arbitrator or umpire has failed to decide all the matters which were referred to
him; (6) Where the arbitrator or umpire has breached the rules of natural
justice; (7) If the arbitrator or umpire has failed to act towards both parties, as
for example; (a) by hearing one party but refusing to hear the other; or (b) by
deciding the case on a point not put by the parties. See Per AMIRU SANUSI,
J.S.C in NITEL V. OKEKE (2017) LPELR-46284(SC). In this instant case, I
am not convinced that the Respondent has shown any act of misconduct as it
was alleged or that the sole arbitrator, Mrs. Shola Adegbonmire, failed to
comply with the terms of the agreement. All these conditions were complied
 with and rightly met by the sole arbitrator, in my humble opinion. On the
award of N1,000,000'00 being estimated cost of repairs of the said property,
N108,333,33 for the Respondent holding over the property from July to
September, 2003 and N246,982.00 being cost of arbitration contained at pages
50-51 made by the arbitrator in favour of the Appellant, are claims as required
by law and evidential by the record. I am persuaded that the arbitrator was
correct in awarding them."89

Section 29, subsection (1) of the Arbitration and Conciliation Act explains the procedure for

setting aside of an award. It states “A party who is aggrieved by an arbitral award may within

three months- (a) from the date of the award; or (b) in a case falling under section 28 of this Act,

from the date of the request for additional award is disposed of by the arbitral tribunal”. This

section gives the time limitation for bringing an application for setting aside as three months. If

the application is not made within this time period, the right would be held to have lapsed and

the lost and the application will be statute-barred. 90 Section 29(2) provides for one of the grounds

on which an arbitral award may be set aside, namely the right of a party to bring such application

where the award was beyond the scope of the parties’ submission to arbitration. There is a

rebuttablepresumption in favor of arbitration, just like a judgment, and so the burden of proving

that the award was beyond scope will be that of the party alleging and who wishes to set aside

the award.91The court can, in addition, remit the award to the arbitral tribunal for it to “take such

… action to eliminate grounds for setting aside the award.” Section 30(1) and (2) gives two

additional grounds upon which an domestic arbitral award may be set aside, that is, misconduct

of the arbitrator(s)92 and where the award was improperly procured. The word “misconduct” is

89
Mekwunye v. ImoukhuedeSupraPer Abba Aji, J.S.C. (Pp. 28-32, Paras. D-A)
90
Orojo, O. J., AndAjomo, M. A.,‘Law And Practice Of Arbitration And Conciliation In Nigeria’, 1st Ed., (Mbeyi&
Associates(Nigeria)Limited 1ST ed. , 1999) .
91
Orojo, O. J., And Ajomo, M. A.,supra note 90, 272
92
Lagos State Development and Property Corporation v Adold/Stamm International (Nigeria) Limited, [1994]7
NWLR (prt 358) 545(Supreme Court)(Nigeria).
not defined by the Act; some cases have tried to define this generic term. Unfortunately, because

there is no general consensus legal representatives of parties tend to utilize this ground as a

“catch all” basis for setting aside an arbitral award and frustrating the finality of the process. In

Kano State Urban Development Board v Fanz Construction Company Limited,93 although based

on the Arbitration Law of 1958, the Court of Appeal made a list of actions that can amount to

misconduct for the purpose of setting aside the arbitral award. These are, breach of the rule of

natural justice; breach of the rule of audi alteram partem, examination of witnesses in the

absence of one party thus preventing the cross examination of such witnesses; receiving

inadmissible evidence but only where the error appears on the face of it; 340 fraud and

corruption of the arbitrator(s); and where the arbitrator acted ultra vires or in excess of his

jurisdiction. The Supreme Court added to the above list in Taylor Woodrow (Nig.) Ltd. V S.E.

GMBH,94 by including where, the arbitral tribunal fails to decide all matters which were referred

to it; the award deals with matters that were not referred to in the agreement of reference to

arbitration; the award is inconsistent, uncertain or ambiguous; where there are irregularities in

the proceedings; where the arbitral tribunal failed to act fairly towards either or both parties and

where the arbitrator(s) delegated their authority.

Error of law must be on the face before the award can be set aside on that ground as seen in

Baker Marine Nig. Ltd v Chevron Nig.Ltd.95 The courts exercised its discretion to set aside an

arbitral award. In the case, the arbitrators granted their award as “substantial damages” as a

compromise between aggravated damages and nominal damages. The courts held that there is no

concept in Nigerian contract law jurisprudence and the award could not be called punitive

93
Kano State Urban Dev Board v. Fanz Construction Coy Ltd (1990) LPELR-1659(SC)
94
2 N.W.L.R. (prt 286) 127 [1992].
95
[2000] 12 NWLR 39(Court of Appeal)(Nigeria).
damages because the tribunal itself had held otherwise. 96 This ground is a common law ground

for setting aside an arbitral award. It must be of such nature that is based on a legal proposition

that is erroneous on the face of the award 97as the basis of the award. In Taylor’s case, the

Supreme Court defined the limits of court interference based on the types of errors on the face of

the award.98gave two types of error on the face of an award, (i) where specific question of law is

submitted to the arbitrator; the court cannot interfere; (ii) where a matter or matters in which a

question of law becomes material are submitted, the court can and will interfere, if an error of

law appears on the face of the award. The second ground for setting aside under section 13 is

improperly procurement of the arbitration proceedings or award. Again the Arbitration and

Conciliation Act does not explain what would amount to improper procurement the learned

authors, J. Olakunle Orojo & M. Ayodele Ajomo have given their opinion on what may amount

to improper procurement. These are, misleading or deceiving the arbitrator which includes

fraudulent concealment of matters; bribing the arbitrator, that is giving money or property

without the knowledge of the other party; treating the arbitrator(s) with the intention of

influencing the decision but it must be shown that such treats influenced the decision for mere

evidence of such is not sufficient; and finally, employing an arbitrator for a reward such as

engaging in his services after the arbitration proceedings has been concluded or during the

pendency of such proceedings.

4.4 Impediments to the recognition and enforcement of arbitral awards

Despite the fact that the Nigerian Courts over the years have proved to be pro-arbitration, there

are still some major challenges affecting the due recognition and enforcement of arbitral awards

96
Olatawura, O. O., Nigeria: Punitive Damages, case comment, Int. A.L.R. 2001 4(2) N13-14 available at
westlaw@westlaw.com (Accessed March 3, 2021)
97
Taylor Woodrow (Nig.) Ltd. V S.E. GMBH,[1992] 2 N.W.L.R. (prt 286) 127
98
Orojo, O. J., And Ajomo, M. A.,supra note 90, 282
in Nigeria which militates against the idea of arbitrating in Nigeria. One of the problems would

easily be the near obsolete status of the Arbitration Act which was enacted in 1988. After over 30

years of existence, the Arbitration and Conciliation Act has passed its sell-by date. It falls far

short of providing adequate answers to contemporary issues of great importance in the field of

international arbitration.

4.4.1 Obsolete Arbitration Legislation

As noted above, with the most recent Arbitration law in Nigeria being enacted in 1988 there is no

doubt that Nigeria’s arbitration laws are long due for reform. Nevertheless, the Arbitration Law

of Lagos State 2009 presents the field of law with a bright spot with its progressive provisions.

The Law has attempted to address some of the challenges encountered in the enforcement of

foreign arbitral awards in Nigeria. For instance, with regards to the application of limitation laws

to arbitral proceedings, the Law makes a departure from the Supreme Court decisions in

Murmansk and City Engineering99 when it provides that in computing the time for the

commencement of proceedings to enforce an arbitral award, the period between the

commencement of the arbitration and the date of the award shall be excluded 100. Nevertheless,

the efficacy of the Law is limited in view of the fact that its application is limited to Lagos

State.101 Both the Vice-President of NICArb, Prof. Fabian Ajogwu (SAN), and the Chairman,

CIArb, Rhodes-Vivour, hold the common view that the Nigerian arbitration law, the ACA 1988,

has since become obsolete and was in urgent need of an amendment 102.Rhodes-Vivour said, “If

99
Murmansk State Steamship Line v. Kano Oil Millers Ltd(1974) 12 S.C. 1; and City Engineering Nigeria Ltd. v.
Federal Housing Authority (1997) LPELR-868(SC)
100
Section 35 (5).
101
Akolade, Olushola Abiloye and Jamiu. "Challenges in the Recognition and Enforcement of Foreign Arbitral
Awards in Nigeria." ACAS-LAW (2016). Paper presented at the 1st International Chamber of Commerce (ICC) Africa
Regional Arbitration Conference held in Lagos, Nigeria.
102
Available online at http://www.kennapartners.com/index.php/10-news-events/241-principal-partner-
advocates-amendment-of-legal-framework-and-adoption-of-nigeria-as-adr-venue
Nigeria is to take its rightful place as not only a preferred seat of arbitration but an investor-

friendly country, it is imperative that the legislative regime for arbitration be in line with the

latest developments in the international arbitration frame work.”

4.4.2 Unrestricted Appeals against Orders enforcing arbitral awards

Another challenge fronting the enforcement of domestic and foreign arbitral awards is the

proclivity for unsuccessful parties to appeal orders of the enforcing court – sometimes up to the

Supreme Court. Undoubtedly the right of appeal against the decisions of a High Court is

sheltered under the Constitution103. Nonetheless, the exercise of this right of appeal seems to be

making a ridicule of the nature of arbitration as being final and binding and a speedy means of

resolving disputes. At the end arbitration becomes a first step towards litigation rather than an

alternative to litigation. An example of this unrestricted appeal can be seen in the case of

Sundersons Limited & Milan Nigeria Limited v. Cruiser shipping PTE Limited & Universal

Navigation PTE Limited104. Here the Respondents (Applicants at the lower court) by an

Originating Motion dated the 27th day of September 2010 sought an order of Court to recognize

and leave to enforce the Final Arbitration Award delivered on the 15 th of October, 2009 as a

judgment of the court. Attached to the Respondents' application were a duly certified copy of the

arbitration award and a fax copy of the arbitration agreement. The Appellants (Respondents at

the lower court) challenged the recognition and enforcement of the award on the ground that an

original or duly certified copy of the arbitration agreement was not attached to the application for

enforcement. The Lower Court held that the arbitral award was recognizable and enforceable as

a judgment of the court. The Court further held that it was not against public policy to recognize

and enforce Arbitral Awards rendered in foreign venues agreed upon by the parties provided that
103
See section 241 of the Constitution
104
(2015) 17 NWLR (Pt. 1488) 357 C.A, (2014) LPELR-22561(CA)
it is just and proper to do so in the circumstances. The Court however decided that the award

shall be enforced upon the filing of a duly authenticated original arbitration award.

The Appellants dissatisfied with the ruling, appealed to the Court of Appeal on the same ground.

The Court of Appeal affirmed the decision of the lower court and held that failure to attach an

original copy of the arbitration agreement [contained in the charter party] to the application for

enforcement did not render the application incompetent. To it, a conditional enforcement was

proper in the circumstances in the absence of any injustice or violation of the principles of

fairness and equity. The Court further held that the ground on which the Appellants sought for

the refusal of recognition and enforcement of the arbitral award does not fall within the grounds

provided in Section 52 of the Arbitration and Conciliation Act. (This case may be ongoing at the

Supreme Court now).The decision of the Courts is commendable but the fact still remain that no

matter how frivolous the appellants’ ground of appeal may sound, he retains a right of appeal up

till Supreme Court, a situation which ensured that the award remained unenforced from 2009 up

until 2014. The advantage of quick dispensation of justice usually attributed to the Arbitration

process found itself lost for over five years during the time for enforcement of the award.

4.4.3 Procedural Delay

Another major challenge in the enforcement of arbitral awards in Nigeria is the ability of any of

the parties to employ delay tactics in the enforcement proceedings, usually with no effort on the

part of the relevant court to discourage or disallow such antics. Every application to enforce an

arbitral award, with or without a parallel application to set aside the award, is potentially open to

appeal from the court of first instance through the Court of Appeal all the way to the Supreme

Court, many times in relation to interlocutory matters 105.Apart from the delaying tactics of
105
Atake, Adewale. Beating The System: Enforcement of Arbitral Awards Against State-Owned Entities. Lagos Nigeria, 1 September, 2012.
http://www.templars-law.com/413-2/.
parties, the enforcement proceedings are also vulnerable to potential delay attributable to the

local courts and judges and court rules themselves.

An extremely vivid example of how the sort of delay referred to above plays out in practice was

on display in the multi-jurisdictional case of IPCO (Nigeria) Limited v Nigerian National

Petroleum Corporation106. The case involved a contract between the claimant, IPCO, and the

defendant, NNPC, to construct a petroleum export terminal. In October 2004, IPCO obtained an

award for US$ 150 million plus interest in an arbitration seated in Nigeria. Since then, there

have been many efforts to enforce and to challenge the award, in both Nigeria and the UK. In

particular, NNPC challenged the award in the Nigerian courts soon after it was rendered, alleging

that it was wrong in law and lacked adequate reasoning.

In late 2008, NNPC also raised allegations that the award had been procured by fraud.

By April 2008, the English court had ordered part payment of the award, but adjourned the

decision to enforce the award until NNPC’s challenge to it had been determined. In June 2009,

the parties agreed by consent that enforcement of the court’s order for part payment should be set

aside and that enforcement of the award should be adjourned pending the outcome of NNPC’s

challenge. At this point, the parties had expected the challenge to be resolved in the not too

distant future. However, by 2012, no substantive progress had been made in respect of NNPC’s

challenge to the award in Nigeria. Accordingly, IPCO applied to the English court under S. 103

of the Arbitration Act 1996 to further enforce part of the award (for US$ 100 million). The

Court of Appeal overturned Field J’s (High Court) decision and held that IPCO would be

permitted to further enforce part of the award provided the Commercial Court was satisfied that

106
(No. 3) [2015] EWCA Civ 1144 and 1145
it was not contrary to public policy. In doing so, the court took into account the competing

arguments that:

a. the on-going delay in determining the challenge in Nigeria (which showed no prospect of

being resolved any time soon) was causing IPCO prejudice; and

b. If it enforced part of the award, it might be permitting IPCO to benefit from an award

which it may have procured by fraud (the court accepted this was a bona fide allegation).

The Court of Appeal concluded that whilst it faced a “stark choice” between the two, if it

declined to order enforcement of the award, IPCO was unlikely to receive the “fruits of it for a

generation”. It decided that this was, “in commercial terms … absurd” and would be

“inconsistent with the principles that underpin the New York Convention, which was intended to

foster international trade by ensuring a relatively swift enforcement of awards and a degree of

insulation from the vagaries of local legal systems”. Whilst the court took into account of the

need for comity between the Courts of friend foreign states, especially when the Court in

question is the Court of the seat of the arbitration to which the parties have agreed”, it concluded

that the“judicial system in Nigeria has not kept pace with the need to give effect to the principles

underlying the New York Convention”. In circumstances where the proceedings in Nigeria had

become “sclerotic” and “a Gordian Knot”, the court held it had no option but to intervene and

permit IPCO to further enforce part of the award.107

4.4.4 Statutory Limitation Periods

107
Notwithstanding the above, the Court of Appeal made clear that the English courts should not be used as a
“reserve tribunal” for deciding questions on the validity of awards which should be determined at the court of the
seat. However, given the principles of the New York Convention, which it considered were not being adhered to in
this case, it was necessary to intervene. See,Davison, Mark. How long is too long? When will the courts permit
enforcement of an award when a challenge to enforcement overseas is taking too long? 20 January, 2016.
http://www.olswang.com/articles/2016/01/how-long-is-too-long-when-will-the-courts-permit-enforcement-of-an-
award-when-a-challenge-to-enforcement-overseas-is-taking-too-long/.
The question of when time begins to run for the purpose of commencement of enforcement

proceedings has been the subject of much debate. The debate stems from the conception of the

enforcement proceedings as an action instituted for the assertion of a right. It has to be

mentioned that the Arbitration and Conciliation Act of Nigeria (ACA), and the New York

Convention did not specify any time for the enforcement of its award. The Foreign Judgment

(Reciprocal Enforcement) Act prescribed six years within which to enforce foreign award. It is

because of the absence of time limitation provisions in the New York Convention and the ACA

of Nigeria that emphasis will be placed on the Limitation Act of Nigeria and the Limitation Laws

of the various States of Nigeria. The Limitation Act 1966 in section 59 defined arbitration and

arbitral award for purposes of the Act. It also declared that the provisions of the Act and any

other limitation enactment apply to arbitration as they apply to action in the court 108. Limitation

Law or Act is very important in both arbitration and litigation. This is because any right which is

statute barred is an imperfect right which cannot be enforced. In Nigeria, the time bar applicable

in any given situation would depend on the Limitation Law of the state in which the award is

being enforced.

The question which is of concern is, when does the six years start to run? In Murmansk State

Steamship Line v. Kano Oil Millers Ltd109, the plaintiff brought his action on the award more than

six years from the date the defendant breached the charter party. On appeal, the plaintiff argued

that time ran from the date of the award in 1966 but the defendant argued that time ran from the

date of the breach of the charter party in 1964. The Supreme Court decided that the period of

limitation runs from the date on which the cause of arbitration occurred, that is to say, from the

108
Limitation Act of 1966 otherwise known as Decree No. 88 of 31st December, 1966, sections 59 & 61.
109
(1974) 12 S.C. 1
date when the claimants first acquired either a right of action or a right to require that arbitration

takes place upon the dispute. In the words of learned Justice Elias CJN (as he then was);

“The present case is one of a simple reference of any dispute to arbitration and
contains no clause making an arbitration award a condition precedent to the
bringing of an action110; a plaintiff can always bring an action at common law
as soon as the cause of action arose. The action may then be stayed until the
arbitration is disposed of111. Even in the Case of Board of Trade v. Cayzer
Irvine & Co112, Lord Atkinson made it clear that Thompson v. Charnock is still
good law when he said at p. 625:

"Therefore, without overturning the case of Thompson v. Charnock, and

the other cases to the same effect, your Lordships may hold that, in this
case, where it is expressly, directly, and unequivocally agreed upon between
the parties that there shall be no right of action whatever till the arbitrators
have decided, it is a bar to the action that there has been no such
arbitration."

The period of limitation is deemed to run after the date of the award only when a party has by his

own contract expressly waived his right to sue immediately within the period which the cause of

action has occurred. If there is no such Scott v. Avery clause, the limitation period begins to run

immediately. A party is, however, precluded from setting up such an agreement as a defence if

he had waived his right to insist on arbitration as a condition precedent.” 113 It is clear from the

case above that for the limitation time to run from the date of award the contract, either instead

of or along with a clause submitting differences and disputes to arbitration, may provide that

there is no right of action save upon the award of arbitration. The parties in such a case made
110
Thompson v. Charnock (1799) 8 Term Rep. 139
111
Graham v. Seagoe (1964) 2 Lloyd's Report 564 (Sup. Ct., N.S.W.).
112
(1927) 43 TL.R. 625 HL
113
See also;Toronto Railway v. National etc. Insurance Co. (1914) 20 Com. Cas. 1 As Lord Wright has rightly
observed in Heyman v. Darwins Ltd.(1942) A.C. 336, at p. 377:
arbitration followed by an award a condition of any legal right of recovery on the contract. This

is a condition of the contract to which the court must give effect, unless the condition has been

waived, that is, unless the party seeking to set it up has somehow disentitled himself to do so 114.

The Supreme Court’s decision in Murmansk has been followed and applied in subsequent cases

such as City Engineering Nigeria Limited v Federal Housing Authority 115 and Tulip (Nig.) Ltd. V

Noleggioe Transport Maritime S.A.S116 where the Supreme Court held that it is six years from the

date of accrual of cause of action.

114
See also Russell on Arbitration, 18th Edition, at pp. 4 and 5 of which the following passage occurs:
"Date from which time runs: The period of limitation runs from the date on which the 'cause of arbitration'
accrued: that is to say, from the date when the claimant first acquired either a right of action or a right to require
that an arbitration take place upon the dispute concerned.
115
(1997) 9 NWLR (520) 244
116
[2011] 4 NWLR (Pt1237)254
 CHAPTER FIVE

SUMMARY, CONCLUSION AND RECOMMENDATION

5.1 Summary

Firstly, chapter one sets the tone for the discussion of the research topic, highlighting the fact that

arbitration is a private means of resolving dispute which is resorted to, chiefly because the parties

choose to avoid as much as possible employing the state machinery for dispute resolution,

namely the court and its dreaded time consuming procedures and technicalities and to save time

and money. The chapter traced the genesis of the issue of recognition and enforcement of arbitral

awards in Nigeria noting that the enforcement of both domestic and foreign arbitral awards in

Nigeria has grown to be muddled with legal and technical complications riddled with some

practical difficulties. In view of the problems and challenges undermining the attainment of the

main goals of the Arbitration and Conciliation Act in Nigeria, occasioned by the lack of attention

given to issues of arbitration under the 1999 Constitution vis-à-vis the limitations of the legal and

Institutional framework for arbitration, the objectives of this research become all the more

imperative.

Secondly, chapter two focused on reviewing the various literature engaged by this research with

the aim of scrutinizing the theoretical and conceptual frameworks of arbitration law. Conceptual

clarifications, thus, featured in this chapter include definitions of Arbitration, Dispute

Resolution, Arbitral Tribunal and Arbitral Award among others. It also examined the historical

evolution of arbitration in Nigeria whereof it states, the meaning, goals and importance of

arbitration law as it shed light on the philosophy behind the emergence of an alternative dispute
resolution system such as arbitration to regulate contemporary issues relating to commercial

transactions and other challenges. This served as a background against which the research

examined the commitment of the Nigerian legal structure towards the within the larger

international framework for commercial arbitration.

Thirdly, chapter three underscores the fact that the effectiveness and efficiency of the any system

depends on the laws in place and the institutions saddled with the responsibility of giving full

effect to the provision of the law. It considered the regime of laws such as the Arbitration and

Conciliation Act, the Constitution of the Federal Republic of Nigeria 1999 as amended, Lagos

State Arbitration Law, and the International Centre for the Settlement of Investment Disputes

Act amongst others.

Chapter four took a tour into the intricate problems and challenges facing the administration of

arbitration processes and the corresponding modes of enforcement of arbitral awards in Nigeria.

It examined that the problems appear to be manifest in both the area of the legal framework and

also the institutions saddled with the responsibility to administer the laws on arbitration and

enforce it. Thus, it exposes that there is dire need for reforms of the institutions responsible for

governing issues concerning arbitration in Nigeria. Furthermore the chapter examined the

prospects of arbitration under the regime of the near obsolete Arbitration and Conciliation Act

highlighting the potential of a better administered arbitration process which can only

befacilitated by a contemporary reform of the current lawson arbitration in Nigeria.

Lastly, in chapter five, the research identified some diversion options or schemes as alternative to

the ineffectiveness of the current legal regime regulating the enforcement of arbitration awards in

Nigeria. The chapter further lays down recommendations for the achievement of the goals of the

system of arbitration in Nigeria as the way forward.

5.2 Conclusions

This long essay has examined the legal regime regulating enforcement of arbitration awards in

Nigeria. It discussed the origin and evolution of commercial arbitration. It considered the effect

of Section 34 of the Act which provides that a court shall not intervene in any matter governed

by this Act except where so provided in the Act and has been able to establish that the principle

of party autonomy underscores the arbitral process. It also considered the express provisions in

the Act for the intervention of the court in the following areas: stay of proceedings, revocation of

arbitration agreement, appointment of arbitrator, attendance of witnesses, setting aside of award,

remission of an award, enforcement of award and refusal of enforcement of award. It also

established that sometimes, the relationship between national courts and arbitral tribunal is one

of “partnership”; although not a partnership of equals, but that the relationship is not only

complementary but necessary. It asserts that Arbitration may depend upon the agreement of the

parties, but it is also a system built on law and which relies upon that law to make it effective

nationally and internationally and contends that national courts could exist without arbitration,

but arbitration could not exist without the courts. Nevertheless, there is a need to further

reinforce the arbitral process in order to reduce the degree of intervention in the arbitral process

and to ensure that concept of party autonomy is not restrained in the practice of arbitration. It

now concludes by making recommendations for a more harmonious relationship between the

court and the arbitral process. Conclusively, if implemented, this will position Nigeria as a viable

global arbitral hub just like the United Arab Emirates, New York etc.
5.3 Recommendations

Having assessed the National and Sub-national legislations, this research proffers

recommendations with a view to facilitating reforms and changes in the process for the

enforcement of arbitration awards in Nigeria. These recommendations ensue in the following

areas:

i. As earlier noted in this long essay, the rationale behind the introduction of arbitration

to our jurisprudence was to relieve the courts of its heavy load of cases and to afford

the parties a quicker and cheaper method of dispute resolution. However, the fact that

the parties have to make recourse to the courts under certain circumstances defeats

the whole rationale behind arbitration because when this matters are brought before

the court, they join the backlog of cases that are already before the courts. In light of

this, it is recommended that courts should devise a system whereby arbitral matters

that are taken to the courts as of necessity via section 34 of the Arbitration and

Conciliation Act do not have to join the backlog of cases so as not to defeat the whole

rationale behind arbitration. The courts can make it mandatory for any matter taken

before it, which is the subject of arbitration to be heard in chambers.

ii. The Arbitration and Conciliation Act should have a list of grounds under which a

domestic arbitral award should be recognized and enforced. The UNCITRAL Model

Law that the Act is designed after did not state the grounds because the committee

decided that this area should be left for individual states to determine since this

directly involves their territorial and sovereign integrity.

iii. Section 4(2) of the Arbitration and Conciliation Act permits court proceedings and

arbitration to go on simultaneously. This .is provision is incongruous with the purpose

of arbitration and most likely to result in confusion and hardship. The court should

either order parties to honour their arbitration agreement by staying proceedings or

assuming jurisdiction to entertain the matter; depending on the facts of the case. The

pendulum of court's preference should at all time swing towards getting the parties

to .submit to arbitration.

iv. Although commercial arbitration is well developed in other jurisdictions, a lot still

has to be done to raise the consciousness of businessmen and the academia in Nigeria

to its importance. Increasingly, arbitration is now a subject of its own and there is a

shift from litigation to arbitration whenever there are commercial disputes. Given its

growing importance especially in international trade, the National Universities

Commission should develop the syllabus and list it if not among the core subjects to

be taught in the undergraduate levels in our Universities but as an optional subject.

The Council of Legal Education should also do ditto in its curriculum at The Nigerian

Law School.

v. The Arbitration and Conciliation Act is clearly in need of review and reform. This is

not an indictment of its drafters but the review and reform are aimed at properly

locating Nigeria in the commercial arbitration world. After all Nigeria was the first

African country to adopt the Model Law. This research recommends the expansion of

the requirement that an arbitration agreement must be in writing to include electronic

communication.