It is important to note here that all these facts were before Longe J when the application which led to this appeal was being considered. It is also equally important to say that it was open to either of the parties to apply to the Court in England to set aside, the award if either felt that the arbitrator had misconducted himself or that the award on its face was wrong. The necessary consequence of the award is that if neither of the parties applied to set it aside, it was liable to be enforced as binding on the parties.

— Oguntade, JCA. Adwork Ltd. v Nigeria Airways Ltd. (1999) – CA/L/156/99

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In Celtel Nigeria BV v. Econet Wireless Limited (2014) LPELR-22430(CA) @ 60 explained, succinctly, the nature of arbitral proceedings before an Arbitration Tribunal as follows: “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.”

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✓ In O.S.H.C v. OGUNSOLA (2000) 14 NWLR Pt. 687 Pg. 431CA, the Respondent claimed the sum of N1,969,861.20 and Pleadings were filed and exchanged. Before the case went on trial, the Defendant/Appellant applied in limine to stay proceedings in the case pending a reference of the dispute to arbitration in accordance with the agreement signed by both parties. The application was refused and dismissed by the trial Court and the case was ordered to proceed to trial where judgment was given in favour of the Respondent. At the Court of Appeal, the Respondent argued that the issue of arbitration clause was not raised and was never sought by the Appellant throughout the proceedings. The Court held that there is consensus by both parties that they are bound by the terms of the contract agreement which they duly executed or signed. What was in dispute in that case and emphasized was whether or not there was a formal request (or application) before the lower Court for the proceedings to be stayed and for the dispute to be referred to arbitration. The Court of Appeal held that since the Appellant had acted timeously by making his request or application for stay of proceedings atthe lower Court pending arbitration, the learned trial judge should have ordered a stay of proceedings and referred the matter to a referee for arbitration. Judgment was awarded in favour of the Appellant. The Court also held that parties to a written contract are bound by the terms of the contract provided such terms are not illegal or contrary to public policy. The application was brought in that case under Section 5 of the Act.

✓ In “M. V.” PANORMOS BAY v. OLAM (NIG) PLC (2004) 5 NWLR Pt. 865 Pg. 1CA, the Appellant’s action was filed pursuant to Section 4(1) and 5(1) of the Arbitration and Conciliation Act. The issue there was whether the trial Court was right to hold that there was valid, subsisting, binding and irrevocable arbitration agreement between the parties. Also, whether a finding by the trial Court that the Defendants who were the applicants and who had not taken any steps in the proceeding had enough grounds to have entitled the trial judge to order the parties therein to go for arbitration outside the jurisdiction of this Country having regards to Section 20 of the Admiralty Jurisdiction Decree and Section 5(2) of the Arbitration and Conciliation Act. The Court held Per Galadima J.C.A (as he then was) thus: “I have held that Section 20 of the Admiralty Jurisdiction Decree (supra) is a statutory limitation to the enforcement of the purported arbitration agreement contained in the bills of lading herein. Therefore by reference to the clear provisions of the said Section 20 of the Decree, this Court could declare the arbitration agreement null and void. Alternatively, if however this position is unattainable in law, then a finding by the learned trial Judge that there is a valid, subsisting, binding and irrevocable arbitration agreement between the parties and that the defendant had not taken any steps in the proceedings could not in any case have entitled the trial judge to order the parties herein to go for arbitration outside the jurisdiction of this Country since Sections 2 and 4 of the Arbitration and Conciliation Act are controlled and limited by Section 5(2) of the same Act.”

✓ In ONWARD ENTERPRISES LTD. v. M.V MATRIX (2010) 2 NWLR Pt. 843 Pg. 530 CA, the issue in that case was whether the trial Court exercised its discretion under Section 5 of the Arbitration and Conciliation Act judicially and judiciously. When the Respondents in this case brought their application for stay of proceedings, they tendered certain documents which indicated that they had appointed their own arbitrator and had communicated same to the Appellant. The Court held that by appointing their arbitrator in compliance with Clause 40 of the charter-party agreement endorsed by both parties, the Respondents fulfilled their own obligation. The approach of the Respondents clearly indicated that they were ready and willing to do all things necessary for the proper conduct of the arbitration in line with Section 5(2) of the Arbitration and Conciliation Act.

✓ In M.V. LUPEX V. NOC & S. LTD (2003) 15 NWLR pt. 844 Pg. 469SC, the parties in this case agreed to refer their disputes to arbitration in London under the English law. The Tribunal in England had started hearing the dispute and parties had begun to present their respective cases before it. This Court overturned the judgments of the two Courts below which refused stay and ordered a stay of proceedings. On the issue of discretion, the Court held per Uthman Mohammed JSC thus: “Ephraim Akpata, JSC in the book “The Nigerian Arbitration Law” is apt on the issue of staying proceedings where parties have agreed to refer their dispute to arbitration in a contract. He expressed his opinion in the following exposition: “That the power to order a stay is discretionary is not in doubt. It is a power conferred by statute. It however behoves the Court to lean towards ordering a stay for two reasons; namely; a) The provision of Section 4(2) may make the Court’s refusal to order a stay ineffective as the arbitral proceedings “may nevertheless be commenced or continued” and an award made by the arbitral Tribunal may be binding on the party that has commenced an action in Court. b) The Court should not be seen to encourage the breach of a valid arbitration agreement particularly if it has international flavour. Arbitration which is a means by which contract disputes are settled by a private procedure agreed by the parties has become a prime method of settling international commercial disputes. A party generally cannot both approbate and reprobate a contract. A party to an arbitration agreement will in a sense be reprobating the agreement if he commences proceedings in Court in respect of any dispute within the purview of the agreement to submit to arbitration.”

✓ In SAKAMORI CONSTRUCTION (NIG) LTD v. LAGOS STATE WATER CORPORATION (2021) LPELR 56606(SC), the Appellant filed the matter in the Court of trial and applied for summary judgment on 15/07/2009. But the Respondent, for reasons best known to it, neither entered appearance nor reacted to the Appellant’s originating processes et al, inspite of the proper service evidently effected on it. The Appellant’s application for summary judgment in question was heard and ruling was reserved for delivery on 11/12/2009. It was at that point in time on 11/12/2009, that the Respondent deemed it expedient to wake up from slumber and file an application for stay of proceedings, thereby seeking to momentarily arrest the judgment of the trial Court. This Court held Per Ibrahim Mohammed Musa Saulawa, JSC thus: “In my considered view, the answer to that pertinent question is not far-fetched. This Court has had cause in a plethora of authorities to reiterate the fundamental principle, that any agreement to submit a dispute to arbitration, does not automatically oust the jurisdiction of the Court. Therefore, either party to such an agreement may, prior to when submission to arbitration or award is made, commence legal proceedings regarding any claim or cause of action contained in the submission. See HARRIS VS. REYNOLDS (1845) 7QB71, OBEMBE VS. WEMABOD ESTATES LTD (1977) LPELR-SC466/1975.”

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The provisions simply provide any of the parties to an arbitration award a discretionary right to request, pray for or seek from a Court of law, an order refusing or declining to accord judicial recognition or enforcement of the arbitral award between them. By dint of the provisions, a party to an arbitral agreement is vested with and possesses the unfettered right to approach a Court of law to request that the arbitration award between the parties, should not be recognized and enforced by the Court. The provisions merely provide a right of access to a Court of law for the sole purpose of requesting for or seeking an order that would refuse to recognize and/or enforce an arbitral award the parties thereto, to any one of them.

– Garba, JCA. Dunlop v. Gaslink (2018)

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The Courts have always upheld the autonomy and independence of the arbitration clause in the contract. The arbitration agreement may be drawn up separately or may form part of the transaction between the parties. Where the arbitration clause is part of the contract, it is nevertheless regarded in law as a separate contract. In HEYMAN v. DARWIN LTD (1942) A.C 356 at pp. 373-4, the Court in the United Kingdom in considering the legal status of such a clause in a contract, observed: ” … an arbitration clause in a contract is quite distinct from the other clauses. The other clauses set out the obligations which the parties undertake towards each other, but the arbitration clause does not impose on one of the parties an obligation in favour of the other. It embodies the agreement of both parties that, if any dispute arises with regard to the obligations which the one party has undertaken to the other such dispute shall be settled by a Tribunal of their own Constitution.”

— H.M. Ogunwumiju, JSC. UBA v Triedent Consulting Ltd. (SC.CV/405/2013, July 07, 2023)

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For instance, the general position of the law that the issue of jurisdiction of a Court can be raised at any stage of the proceedings of a case, even for the first time at the appellate stage, is not applicable to arbitral proceedings before an arbitral Tribunal because the Act, in Section 12(3) has provided the stage at which a challenge to the jurisdiction of the arbitral Tribunal is to or may be raised by a party.

– Garba, JCA. Dunlop v. Gaslink (2018)

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582. Regardless of my decision, I hope the facts and circumstances of this case may provoke debate and reflection among the arbitration community, and also among state users of arbitration, and among other courts with responsibility to supervise or oversee arbitration. The facts and circumstances of this case, which are remarkable but very real, provide an opportunity to consider whether the arbitration process, which is of outstanding importance and value in the world, needs further attention where the value involved is so large and where a state is involved. 583. The risk is that arbitration as a process becomes less reliable, less able to find difficult but important new legal ground, and more vulnerable to fraud. The present case shows that having (as here) a tribunal of the greatest experience and expertise is not enough. Without reflection, then a case such as the present could happen again, and not reach the court.

— R. Knowles CBE. FRN v. Process & Industrial Developments Limited [2023] EWHC 2638 (Comm)

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