Introduction

Arbitration is one of the means through which disputes can be settled in law. It is used in civil

matters. It is one of the alternatives to litigation. It is being used more frequently in recent

times due to the speedy and flexible nature of the process, unlike the slow, rigid, technical

procedure of litigation and its cumbersome time consuming enforcement procedure. The end

product of arbitration is the arbitral award which has to be recognized by the court as binding

before it can be enforced by the court. The Arbitration and Conciliation Act did not specify

any particular mode for the recognition and enforcement; this has been left for the High Court

Rules. The question now is, are the forms provided for by the rules of court suitable or not?

This paper will focus on identifying the issues with the domestic enforcement procedure in

Nigeria as well as other issues involved with enforcement of arbitral awards and proffer

solutions accordingly.

Overview of Arbitral Process

The arbitration proceedings leading up to the award are as follows

Initiation of Arbitration Process

A party has to inform the other party in writing when a dispute in respect of a particular

transaction subject to an arbitration agreement has arisen. This is known as the declaration of

dispute. This serves as a notification of dispute to the other party. The day this notification is

received from the other party, arbitration commences1. Contents of the notice of arbitration

include a request that the dispute be referred to arbitration, the names and addresses of the

parties, a reference to the arbitration clause in the agreement or the independent arbitration

agreement, a reference to the contract out of or in relation to which the dispute arises, the

general nature of the claim and an indication of the amount involved if any, the relief or
1
Ogundari, B. 2017. Arbitration Principles. Seminar. Law. University of Ibadan. v + 18.
remedy sought, a proposal as to number of arbitrators to be appointed if the parties had not

previously agreed on it.

Appointment of Arbitrators

An arbitrator can be appointed in one of the following ways –

By the Parties

Parties to a dispute can appoint arbitrator(s) to settle their dispute. There could be a prior

appointment in the contract or appointment could be made after a dispute has arisen. Where

the clause provides for only one arbitrator, the parties would agree together, however where

there is provision for three arbitrators, each party may appoint one arbitrator while the

tribunal may appoint a third one or the two arbitrators shall appoint a third one.

By an Institution

An arbitration agreement can name an institution or vest in the institution the power to

appoint arbitrator(s). The court has power to appoint arbitrator(s) on behalf of the parties2, the

death of a party after the appointment of an arbitrator will not affect such appointment3.

Preliminary Meeting

It is desirable and necessary for arbitrators to have a meeting with the parties before the

commencement of hearing. This meeting, just like pre- trial conference will afford the parties

to agree on issues and narrow down the issues that are subject of the dispute. This meeting

can be conducted in any manner the tribunal deems to be appropriate. At this meeting, issues

like venue for the arbitration, date for arbitration, fees to be paid, are discussed.

2
Article 6 of Arbitration Rules.
3
Section 5(2) Lagos State Arbitration Law, 2009.
 Submission of Points of Claim and Defence

The parties during the preliminary meeting may have agreed on the procedures for filing

these papers as well as other documents. The Points of Claim is filed by the party who

initiated the arbitration. This document contains the following facts supporting the claim, the

points at issue, the reliefs or remedies sought and the names and addresses of the parties4. The

Points of Claim shall be served on the other party and the arbitrators. A copy of the contract

and arbitration agreement, if it is not contained in the contract together with all documents

considered to be relevant to the proceedings shall accompany the Points of Claim5. The other

party in reply to the Points of claim shall file his Points of defence which will contain a reply

and defence to the Points of claim. If he has a counter claim, he is free to set it out after his

defence. And the other party shall equally serve his Points of defence to the counter claim on

the claimant and arbitrators, together with all documents he wishes to rely on in evidence.

Including written statement of the evidence of witnesses for the parties.

The Trial

There are no strict laid down procedures for the arbitral hearing so far as no miscarriage of

justice is occasioned, however the arbitrator(s) may apply the provisions of the Evidence Act

2011 in determining certain procedural matters. On the other hand, the parties may agree on

the procedure to use. If there is no such agreement, the arbitral tribunal may decide to hold

oral presentations of evidence or arguments or conduct the proceedings on the basis of

documents or other materials filed by the parties or conduct the proceedings by taking both

oral evidence and arguments and on the basis of documents and other materials before

it6.There is no limitation of evidence, although a presiding arbitrator has the power to fix a

date after which no evidence would be accepted. The parties may agree on the manner in
4
Section 19(1) Arbitration and Conciliation Act
5
Section 19 (2) Arbitration and Conciliation Act
6
Section 20 (1) Arbitration and Conciliation Act.
which the proceedings on evidence are conducted. They may decide to use services of private

expert witnesses or even have them heard by the arbitral tribunal. The trial is held rather as a

meeting, third parties are not allowed to attend it and the arbitrator(s) undertake to keep the

information about the trial confidential, thus nobody from outside gets familiar with the

relevant proceedings or result.

Non service of processes is a root issue in arbitration, all parties involved must be served with

the appropriate processes and notified of the time and place for hearing. If the arbitrators are

of the opinion that the disputes can be resolved through documents pleaded alone, then there

will be no need to go into full trial. A party to an arbitral dispute may present his case

personally or through a legal practitioner. The arbitrator(s) may bring experts to assist in the

proper determination of the case. The expert is entitled to relevant information that will assist

him. Where the tribunal so orders, a copy of the expert’s terms of reference shall be

communicated to the parties by the tribunal. The tribunal in turn shall send copies of the

report to the parties for the parties to study. The expert can be interviewed or interrogated

based on the content of his report by the parties and where expedient, parties may bring an

expert to corroborate the evidence of the expert. Where parties are represented by legal

practitioners, they are expected to file their final addresses summing up evidences adduced

during the hearing and legal authorities to back them up.

Elements of an Arbitral Award

Made in writing

It has not always been an essential feature of awards that they are made in writing,

particularly in disputes that occurred within the commodity and trade businesses; it was not

unlikely that the umpire would decide an outcome and inform both parties on the spot;

however, modern arbitration practice does not contemplate on oral awards as clearly stated
under section 5 (26), of Arbitration and Conciliation Act and this is for a very good reason.

Cordially, the formalization of award is now such that rules prescribed their content (dates

and so on) and each arbitrator has to give reasons for his or her decision. Whenever an

arbitrator is unable to sign the award, reasons should be given for that inability and the fact of

the inability must be shown on the face of the award.

Decision

An award is a decision that disposes of all issues submitted by the parties. Single arbitrators

will often reflect on material law and arguments made to them during the course of

arbitration. A panel, on the other hand, will have to approach its decisions in a more

deliberative manner. The chairman generally seeks the viewers of the other panel members,

when consensus is reached, a decision will emerge. However, for situations in which

unanimity cannot be achieved, most modern laws provide for majority voting. It is not

inconceivable that the panel may vote in three different ways. The award must be a

meticulously prepared report containing a narrative of the dispute, a recital of the parties,

contentions and the conclusions of the arbitrator showing how he or she came to the decision.

The award is made by the arbitrator and contains his or her final decision which is binding

and enforceable on the parties.

Made by the Arbitrator

The Jurisdiction to determine disputes is conferred by the parties on arbitrators and not third

parties. Therefore, however, forcefully they may be the decisions of assessors, experts or

surveyors relied upon by arbitrators but cannot be relied on as awards. In other words, an

award is a decision delivered by the body designated by the parties for dispute resolution.

Final
Preliminary orders or directions are not final decisions and consequently cannot qualify as

awards. An award must also be final in the sense that it is not provisional but final and

binding and nothing remains to be done to make it so. It also means that the award should

dispose of all the issues without leaving any of them for a third party to decide7.

Binding and Enforceable

The requirement for a binding decision is a constant refrain in arbitration rules. Indeed, the

point of an agreement to arbitrate is to bring about a result that binds the parties8. The parties

expect to be given a determination that affects one party or both parties and this must be

reflected in the award.

Even an award that gives declaratory reliefs binds the parties, although it might not lend itself

to immediate enforcement because it does not direct any particular conduct. Arbitrators,

therefore, have a duty to ensure that their awards are binding and ultimately enforceable. This

is emphasized by particular 35 of the International Chamber of Commerce Rules which

provides that: ‘‘in all matters...the arbitral tribunal shall act in the spirit of these rules and

shall make every effort to make sure that the award is enforceable at law.’’ An award does

not carry any element of sanction until a court of law breathes enforcement or sanction into it

[5]. At the completion of the arbitration, an award is a toothless dog that cannot bite until a

court of law gives it teeth. This has led some courts to conclude, as did the court in the case

of Ofomata v Anoka & Ors (1974), 4 ECSLR 251 at 253 where the decision of arbitration

lacks intrinsic or inherent force until pronounced upon by a competent judicial authority. A

better approach was put forward by the Supreme Court in the case of Okechukwu V

Etukokwu, (1999), 8 NELR (pt 562) 513 at 529 - 530 in which the court held that an award is

7
G.C. Nwakoby. “The Law and Practice of Commercial Arbitration in Nigeria” 2 nd (ed), Enugu, Snaap Press Ltd.
2004, pp. 1
8
C.A. Candid-Johnson, and O. Shasore. Commercial Arbitration Law & International Practice in Nigeria.
Pietermaritzburg:interpak Books, 2012, pp.7-11pp.141
inherently binding. Section 31 (1) of ACA, LFN 2004, also provides that ‘‘An arbitral award

shall be recognized as binding and subject to this section and section 32 of the Act, shall upon

application in writing to the court, be enforced by the court’’

THE SCOPE OF THE POWERS OF THE HIGH COURT IN ARBITRAL AWARDS

Having discussed above the overview of an arbitral award, we shall be looking at what roles

the courts play with regards arbitral awards. The duties of the court include enforcement of

the arbitral award and every other thing that follows. Below are the sections where the court

may be needed to play a part.

Enforcement of an Arbitral Award

Ideally, at the end of the arbitration, one or more of the parties will emerge successfully.

Indeed, a good award will categorically state the steps to be taken, including payments to be

made. It will establish liability and make a consequential order that follows the decision. An

award, though it is like a judgement in that they are both adjudicatory, cannot be executed

like the judgement of a court. It does not mean, of course, that a party cannot obey the

direction in an award. The party against whom the award is made may voluntarily obey the

order and comply since the award is binding as between the parties and their agents. Every

arbitral award dully made is to be recognized as binding and is expected to be complied with.

It is when, it is not comply with, that the question of enforcement by the winning party

arises9. While an award may be recognized without being enforced, e.g where it is

successfully pleaded as res judicata, an award can only be enforced, e.g recognized as

binding. In this connection, section 31 (1) ACA provide that ‘‘An arbitral award shall be

recognized as binding and subject to this section and section 32... Shall upon application in

writing to the court be enforced by the court.’’ The provisions for recognition and
9
O.J. Orojo. and M.A. Ajomo. Law and Practice of Arbitration and Conciliation in Nigeria, pp.238. Mbeyi &
Associate 1991, pp.4-6., (1989), 1 NWLR (Pt 98) 419
enforcement of award are contained in sections 31 and 51 of the Arbitration and Conciliation

Act. While section 31 applies to domestic arbitral awards, section 51 applies to international

arbitral awards. Section 31 (3) is the traditional provision for summary enforcement. While

Section 51, of the Act, is taken from Article 35 of the UNCITRAL model law on

International Arbitration. The provisions of section 31 (1) and (2) on the one hand and of

section 31 (3) on the other hand are designed to perform the same function. There are two

methods of enforcement of award available in the country, namely Summary Enforcement of

Award and Enforcement by Action. For the purpose of this paper, I shall consider the

domestic awards and then the foreign awards

Enforcement of Domestic Awards

Summary enforcement of an award under section 31. Section 31 of the Arbitration and

Conciliation Act provides as follows:

(i) An Arbitral Award shall be recognised 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,

(ii) The party relying on an award or applying for its enforcement shall supply: (a)

The duly authenticated original award or a duly certified copy thereof; (b) The

original arbitration agreement or a duly certified copy thereof.

(iii) An award may by leave of the court or a judge be enforced in the same manner as

a judgement or order to the same effect. However, subsections (1) and (3) of this

section are designed for the same purpose and so appear to be, an unnecessary

duplication.
They both require an application to the court for enforcement. This is the common method of

enforcing awards including agreed awards which order section 26 of the Act as deemed to be

awarded.

Procedure for Application and for Leave

The application in each case is made ex parte, by originating summons, but the court may

order that notice be given. In this connection, it is important to note the decision of the

Supreme Court in Kotoye V Central Bank of Nigeria (1989), 1 NWLR (Pt 98) pp.419 where

it was stated that an application to the Court in a civil matter must always be subject to the

provisions of a fair hearing under section 33 (1) of the 1999 constitution (as amended). Thus,

if the court is of the view that the interest of the respondent is involved to the extent that an

order made against him is ex parte without giving him a hearing before the decision is made,

then it will offend his constitutional right of fair hearing, and then the court will order the

other party to be served with the application. The application is supported by an affidavit

which will exhibit particulars prescribed by section 31 (2) and 51 (2); namely;

(a) The duly authenticated original award or duly certified copy thereof; and

(b) The original arbitration agreement or a duly certified copy thereof.

(c) Where the award or arbitration agreement is not in the English language, a certified

translation in English-language.

The applicant must also make full disclosure of any matters which he knows may affect the

granting of the leave to enforce the award10. The court will normally grant the leave or

application unless it has reason under section 32 to refuse the enforcement of the award.

Section 31 (3) of the Act provides that if leave is given, it is usually given on terms that the

10
O.J. Orojo. and M.A. Ajomo. Law and Practice of Arbitration and Conciliation in Nigeria, Mbeyi & Associate
1991, pp.8-11
award may be enforced in the same manner as a judgement or order of the court to the same

effect and that this means, that all the methods of enforcing a judgement of the court are then

available to enforce the award including an injunction.

Objection to Enforcement Of An Award

Section 32 of the Arbitration and Conciliation Act provides that: ‘‘Any of the parties to an

arbitration agreement may request the court to refuse recognition or enforce of the award’’ A

person who wishes to object to the recognition or enforcement of the award can apply to the

court at any time after the award is made, especially as the application and order for

enforcement may be made ex parte. As will be noted, section 32 does not provide any guide

to the court as to what to take into account in refusing recognition or enforcement. It is

noteworthy that although no guidance is given in this section on the refusal of recognition

and enforcement of domestic awards, section 52 sets down a long list of grounds for refusal

of recognition or enforcement since no specific grounds are set out in section 32, then the

court should be free to use its discretion which must be judicially and judiciously exercised.

With regard to section 26 of the repealed English Arbitration Act, 1950 which is in pari

mathia with our section 31 (3), it has been suggested that the main defence when the

successful party brings an action on the award or applies under the summary procedure under

section 26 is that the arbitrator had no jurisdiction to make the award, or to make some part of

it. Other grounds that may be taken into consideration are as follows:

(1) That there was no valid submission; so that the entire arbitration or some part of it was a

nullity.

(2) That the arbitrator was disqualified in that he did not possess such membership of a

specific association, or
(3) That the award, though valid when made, has leased because it has subsequently been

discharged, e.g. by a subsequent agreement between the parties.

The grounds listed in section 51 can also be of a guide to the court, as to whether or not to

refuse recognition or enforcement under section 31. In law and practice of Arbitration and

Conciliation in Nigeria, the learned authors listed eight cases when an award will not be

enforced as a judgement pursuant to section 26 of the Act. These are;

(a) When the arbitration agreement is by parole;

(b) When the award is merely declaratory;

(c) Where there is real ground for doubting the validity of the award;

(d) Where the award is lacking in clarity;

(e) In some cases where the award is a foreign awards;

(f) Where the court cannot give judgement to the same effect;

(g) Where the ward is made in foreign currency and;

(h) Where the award is made under a statute which expressly provides how it is to be

enforced.

Enforcement by Action on The Award

The basis of this action has been explained as follows: ‘‘Parties to an arbitration agreement

impliedly agree to perform a valid award. If the award is not performed, the successful

claimant can proceed by action in the ordinary courts for breach of this implied promise and

obtain a judgement for the amount of the award, or damages on failure to perform the award.

It may also, in appropriate cases, decree specific performance of the award, or make a
declaration that the award is valid, or as to its construction and effect’’ Although the

enforcement by summary application is by the commonest method of enforcement and is

intended to provide a quicker method than that of action, yet the method of action on the

award remains available in an appropriate case, especially when the summary method is for

any reason not available. Thus, on the being that the arbitration agreement contains an

implied obligation to perform the resulting award, any failure to do so is a breach of the

arbitral agreement in page 303, and the successful party would be entitled to bring an action

in respect of such breach and to obtain a judgement in the terms of the award this is a

common-law action and it has also been suggested that the essential elements for the claimant

to plead and prove are:

(a) An arbitration agreement;

(b) That a dispute has arisen which falls within the arbitration agreement;

(c) The appointment of an arbitral tribunal in accordance with the agreement

(d) The making of the award pursuant to the arbitration agreement; and

(e) Failure of Respondent to perform the award.

Defences to an Action On The Award

The court has the discretion to accept or reject a defence against the action. Any defence that

shows that there is a fundamental breach of natural justice or that shows that it will be unjust

to enforce the award will be good ground for the court to refuse the enforcement. Thus, it will

be good defence to the action to enforce an award that the award is void for failure to comply

with some formal or substantial requirement, or that it was made in excess of jurisdiction, or

that it has been set or remitted or that the authority of the arbitrator was validly revoked

before he made his award.

Before the Arbitration and Conciliation Act, the two methods of enforcing foreign awards

were by registration under the foreign judgements (reciprocal enforcement) Act and under the

New York Convention, 1958. Section 2 and 4 of the Foreign judgements (Reciprocal

Enforcement) Act, provides in effect, that a foreign award may be registered in the High

court at any time within six years after the date of the award, if it has not been wholly

satisfied and if at the date of the application for registration, it could be enforced by the

execution in the country of the award. With the Act, there is no need for registration, for

section 51, makes it clear that such an award shall be recognized as binding and shall be

enforced by the court on an application under section 51. Section 51, of the Arbitration and

Conciliation Act, provides as follows:

(1) An arbitration award shall, irrespective of the country in which it is made, be recognized

as binding, and subject to this section, and section 32 of this Act upon application in writing

to the court be enforced by the court.

(2) The party relying on an award or applying for it enforcement shall supply:

(a) The duly authenticated original award or a duly certified copy thereof; and

(b) The original arbitration agreement or a duly certified copy thereon;

(c) Where the award or arbitration agreement is not made in English-language a duly certified

translation thereof into English-language.

Procedure for Enforcement

The procedure for enforcement is the same as for a domestic award in section 31, i.e. by a

motion ex parte supported by an affidavit which inter alia exhibits the arbitration agreement
and the award or certified true copy of each under Arbitration and Conciliation Acts, section

51 (2) (a) & (b) and a translation into English where appropriate under section 51 (2) (c).

Grounds for Refusing Recognition or Enforcement

Section 52 (1) of the Act provides that; ‘‘Any of the parties to an arbitration agreement may

request the court to refuse recognition or enforcement of the award This section then

proceeds to set down in details the grounds on which the court may refuse to recognize or

enforce an award. ‘‘where recognition or enforcement of an award is sought, or where an

application for refusal of recognition or enforcement thereof is brought; and this is

irrespective of the country in which the award is made under Section 52 (2)’’ based on the

following;

(1) Incapacity of a party to the arbitration agreement. This arises if, under the law governing

the agreement, one of the parties such as a corporation has no capacity to enter into such

agreement. This must, of course, be proved to the satisfaction of the court and foreign expert

evidence may be required.

(2) Arbitration agreement not valid. Where the parties had indicated in their agreement the

applicable law, then the agreement must be valid according to that law. If no law is indicated,

the arbitration agreement must be valid under the law of the country where the award was

made. Failing any of these, the award can be refused recognition or enforcement.

(3) Absence of proper notice of appointment of arbitrators or of the proceedings. The failure

to give proper notice of the appointment of an arbitrator or of the arbitral proceedings or any

default that otherwise prevents a person from being able to present his case will be grounded

for the refusal of recognition or enforcement.

dispute not contemplated by or not falling within the terms of the submission to arbitration

under S. 52 (2) (a) (iv). The recognition or enforcement will be refused because the arbitrator

has no power to make such an award.

(5) Award beyond the jurisdiction of the tribunal. Recognition and enforcement will be

refused if the award contains decisions on matters which are beyond the scope of the

submission to the arbitration. If, however, the decision on matters submitted to arbitration can

be separated from those not submitted to arbitration may be recognized or enforced.

(6) Composition of arbitral tribunal or procedure contrary to agreement of parties. If the

composition of the arbitral tribunal, or the tribunal procedure was not in accordance with the

agreement of the parties, then recognition or enforcement will be refused under Section 52

(2) (a) (vii).

(7) Composition of the tribunal or procedure contrary to law. Where there is no agreement

between the parties as to the composition of the tribunal or as to the arbitral procedure, then

the composition of the tribunal and the arbitral procedure must be in accordance with the law

of the country where the arbitration took place, otherwise, recognition or enforcement may be

refused.

(8) Award not binding, set aside or suspended. Recognition or enforcement of an award may

be refused if it is proved that the award has not yet become binding on the parties or has been

set aside under Section 52 (2) (a) (viii) or suspended by a court of the country in which or

under the law of which the award was made. Furthermore, section 52 (3) provides that were

an application for the recognition or enforcement of an award has been made to a court under

this paragraph, the court before which the recognition or enforcement is sought may; if it

considers it proper, postpone its decision and may on the application of the party claiming
recognition or enforcement of the award, order the other party to provide appropriate

security.

(9) Subject matter not arbitrable i.e. that the subject matter of the dispute is not capable of

settlement by arbitration under the laws of Nigeria. For example, disputes arising from a

criminal conspiracy cannot be settled by arbitration under the Nigeria law. If an award is

made in respect of such a matter, it will not be recognized or enforced.

(10)Against public policy. Enforcement or recognition may be refused if such recognition or

enforcement will be contrary to the public policy of Nigeria. For example, an award, on an

arbitration agreement to resolve the difference in a narcotic drug transaction will be clearly

illegal and contrary to public policy