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CRIMINAL MATTERS & FRAUD ARE NOT ARBITRABLE

Dictum

Disputes which are subject of an arbitration agreement must be arbitrable. Matters like criminal matters or where fraud is alleged and raised as a matter of public policy are not to be settled privately by arbitration. See B. J. EXPORT & CHEMICAL CO. LTD v. KADUNA PETRO-CHEMICAL CO. LTD. (Supra).

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

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PROOF REQUIRED UNDER EVIDENCE ACT NOT APPLICABLE TO ARBITRATION PROCEEDINGS

Proof as required under the Evidence Act is not applicable in arbitral proceedings as provided for in Section 256(1)(a) of the Act which says that: “This Act shall apply to all judicial proceedings in or before any Court established in the Federal Republic of Nigeria, but it shall not apply to – (a) Proceeding be an arbitrator.” Absence of evidence in proof of facts submitted to an arbitrator, required under the Evidence Act, is not a ground for setting aside an arbitral award.

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

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CONSIDERATIONS OF PUBLIC POLICY IN ARBITRAL PROCEEDINGS

As to public policy, in Cuflet Chartering v. Carousel Shipping Co Ltd [2001] 1 Lloyd’s Re 707 Moore-Bick J (as he then was) said: “Considerations of public policy can never be exhaustively defined, but they should be approached with extreme caution … It has to be shown that there is some illegality or that the enforcement of the award would be clearly injurious to the public good or, possibly, that enforcement would be wholly offensive to the ordinary reasonable and fully informed member of the public on whose behalf the powers of the state are exercised.”

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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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PARTY CANNOT RESILE AFTER SUBMISSION TO CUSTOMARY ARBITRATION

On these facts of the customary arbitration by the Abuloma Council of Chiefs before whom the parties herein lead consensually submitted themselves to for the resolution of their dispute and the verdict of which arbitration was acceptable to all of them, it would no longer be open to either of the parties to subsequently back out or resile from the decision or verdict reached and pronounced upon the arbitration. See Oparaji v. Ohanu (1999) 9 NWLR (Pt. 618) 290, (2001) FWLR (Pt. 43) 385. The appellants are now estopped from resiling out of the customary arbitration of the Abuloma Council of Chiefs, which they voluntarily submitted their dispute with the respondents to, and agreed to accept the verdict of. Apart from this specie of estoppel operating as estoppel per rem judicatam; it also operates as estoppel by conduct by virtue of section 150 of the Evidence Act, 1990 (now section 169 of the Evidence Act, 2011). It is, therefore, unconscionable for the appellants, having by their words or conduct made the respondents to believe that they would be bound by the verdict of the Abuloma Council of Chiefs, to resile out of it and set up the suit, the subject of this appeal. See Joe Iga & Ors. v. Ezekiel Amakiri & Ors. (1976) 11 SC 1 at pages 12 – 13.

— Eko JSC. Benjamin v Kalio (2017) – SC/207/2006

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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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ARBITRAL AWARD IS BINDING ON PARTIES

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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