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ARBITRATION AGREEMENT MUST SATISFY THE NORMAL REQUIREMENT OF A CONTRACT

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My Lords, every Arbitration Agreement must satisfy the normal requirement of a contract such as consensus, capacity and legal relationship. Like any other contract, the terms must be clear and certain. The Court would, however, lean towards a construction that will give effect to the intentions of the parties. Thus, where a contract contained an arbitration clause which merely reads “Arbitration if any, by the I.C.C. Rules of London”, the Court held that the words “if any” which were the basis of the opposition were either surplusage or abbreviation for “if any dispute arises” and therefore sufficient. See MANGISTAURAUNAIGAZ OIL PRODUCTION ASSOCIATION v. UNITED WORLD TRADE INC. (1995) LLYOD’S REP. 617. There must also be a valid underlying substantive contract in existence and an arbitration agreement the terms of which are certain and enforceable. The essence of the arbitration agreement is to refer disputes arising between parties to arbitration. The words by which the reference is made must therefore be clear and express, as an inference will not be implied. So also, what is referred must be clearly and sufficiently stated to ensure that jurisdiction is conferred on the arbitrator.

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

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HIGH COURT DOES NOT SIT ON APPELLATE FUNCTION OVER ARBITRAL PANEL

In the case of Baker Marine Nigeria Limited v. Chevron Nigeria Limited (2000) 3 NWLR (Pt. 681) 939 @ 410, it was held that an application to set aside an arbitral award: “The lower Court was not sitting as an appellate Court over the award of the arbitrators. The lower Court was not therefore empowered to determine whether or not the findings of the arbitrators and their conclusions were wrong in law. What the lower Court had to do was to look at the award and determine whether on the state of law as understood by them and stated on the face of the award, the arbitrators complied with the law as they themselves rightly or wrongly perceived it. The approach here is subjective. The Court places itself in the position of the arbitrators, not above them, and then determines on that hypothesis whether the arbitrators followed the law as they understood and expressed it.”

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TIME LIMIT TO SET ASIDE AN ARBITRATION AWARD

It can easily be observed that the provisions of Section 29 are complementary to the provisions of Section 32 in that they only provide the time limit and the discretion to set aside an award on proof that it contains decisions on matters beyond the scope of the submission to the arbitration. The provisions of the two (2) sections are therefore neither in conflict nor mutually exclusive of each other as erroneously argued by the learned counsel for the Appellant.

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

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JURISDICTION CAN BE RAISED AT ANYTIME NOT APPLICABLE TO ARBITRATION

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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ARBITRATION AND LITIGATION ARE NOT MUTUALLY EXCLUSIVE

By the provisions of the Arbitration and Conciliation Act, parties to a contract can include an arbitration clause which allows for disputes to be settled by arbitration instead of litigation. At the end of the arbitration process, the agreement reached (i.e the award) will be enforced by the Courts after registration in Court. Where parties opt to arbitrate over disputes, it does not automatically oust the jurisdiction bestowed on the Court by the 1999 CRFN. Section 2(2) of the Arbitration Act states follows: “Unless a contrary intention is expressed therein, an arbitration agreement shall be irrevocable except by agreement of parties or by leave of the Court or judge.” (emphasis mine) Although it is preferable in many cases to go to arbitration rather than go to Court, it should be noted that arbitration and litigation are not mutually exclusive. Indeed the Court often complements and supplements the functions and powers of the arbitrator. For example, by stay of Court proceedings in appropriate cases; by the issue of subpoena; by making appointments where the parties cannot agree or where a party defaults; for the enforcement of awards and for setting aside awards where necessary. In these cases, the Court intervenes to ensure the proper functioning of arbitration.

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

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ARBITRAL AWARDS HAVE SAME FORCE AS A JUDGEMENT OF A COURT

Onwu v. Nka (1996) 7 NWLR (Pt.458) 1 at 17 paragraph E, where the Supreme Court, per Iguh JSC. had this to say: “The law is well settled that where disputes or matters in difference between two or more parties are by consent of the disputants submitted to a domestic forum inclusive of arbitrators or a body of persons who may be invested with judicial authority to hear and determine such disputes and matters for investigation in accordance with customary law and general usages, and a decision is duly given, it is as conclusive and unimpeachable (unless and until set aside on any of the recognized grounds) as the decision of any constituted court of the land, such a decision is consequently binding on the parties and the courts in appropriate cases will enforce it.”

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GENERAL PRINCIPLES APPLICABLE IN REGULAR COURTS ARE NOT APPLICABLE IN ARBITRATION PROCEEDINGS

In this context, the general principles of law laid down and applicable to and in proceedings of the regular Courts in the process of judicial adjudication of causes or matters before them do not ordinarily apply to such quasi judicial arbitral proceedings which the parties by their free and voluntary choice, opted to resort to in the settlement of their disputes rather than the judicial/adjudication of the regular Courts.

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

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