Sep 19, 2016

Taking steps frustrates Arbitration in Nigeria - kayode Omosehin Esq.




Preliminary View
Arbitration is an old dispute resolution mechanism. Some authors have traced its adoption to the reign of King Solomon in the Bible. It is recorded that the dispute between the two women over the living son was resolved by Kind Solomon in a manner consistent with arbitral proceedings. Modern arbitration has proved useful in many respects in commercial and industrial dispute settlement. Arbitration is partly regulated by law (in terms of form and procedure), it is however largely based on agreement by parties.


Arbitration agreement simply implies that parties shall resolve any dispute arising from their agreement by an arbitral panel and be bound by the decision from resolution. When parties freely enter into an arbitration agreement, either of the parties cannot resolve a dispute by resorting to a regular court. Where a party sues in court, the other party can object to the suit and pray that the judicial proceedings be stayed (i.e. put on hold) and urge the court to refer the dispute to arbitration in accordance with the agreement of both parties.

However, agreement on arbitration, like other private arrangements, may suffer failure from unenforceability in some circumstances. Such circumstances are only called into question when the court has to determine the defendant’s objection to the suit or application for stay of judicial proceedings in order to enable parties settle their dispute by arbitration in accordance with their agreement. One of such circumstances is when the defendant “takes a step” in the judicial proceedings rather than objecting or before objecting to the suit. In the said circumstance, the defendant would be deemed to have taken steps and as such has waived his right to insist on the arbitration agreement. The court would not recognize the agreement that dispute be resolved by arbitration. What constitutes these “steps” has however not been a subject of a settled law in the Nigeria.

It would appear that the decision of a court on the question of what amounts to taking steps will turn of the peculiarities of the facts of each case. The determining factor is whether the step taken is so clear as to amount to a total waiver or abandonment of the right to insist on arbitration agreement. The foregoing will ultimately turn on the following:

  • (a) the nature of the process (if any) filed by the defendant or any other act or conduct undertaken by the defendant before raising the objection on ground of arbitration agreement and/or applying for a stay of proceedings; and
  • (b)  the inconsistency of any such step taken with the application for stay of proceedings to such extent as to make the court to conclude that the right to apply for stay of proceedings ought to be deemed to have been waived.
  •  
There is an uncertainty in the state of the law. The misfortune created by uncertainty in the state of the law appears to have stemmed from the blanket pronouncement of Fatai-Williams JSC in the case of Obembe v. Wemabod Estates to the effect that “A party who makes any application whatsoever to the court, even though it be merely for application for extension of time, takes a step in the proceedings”
A review of the line of subsequent cases would provide insights into the misunderstanding of the facts and decision in the Obembe’s case leading to the pronouncement made by Fatayi-Williams CJN.

The First Step Taken
The checkered history of the concept of taking steps before making an application for stay of proceedings in Nigerian courts began with the case of Obi Obembe v. Wemabod Estates Ltd. (1977) All NLR 130. If there was any earlier Nigerian case on the point, it was neither referred to nor considered in the Obembe case. 

In the Obembe case, the appellant sued the respondent in the High Court of Lagos State for wrongful termination of appointment as a consulting engineer claiming balance of fees and reimbursable expenses for engineering work done in respect of a building project for the respondent. The disagreement arose from their differences in the quantity of steel recommended by the appellant for the project. The amount claimed was based partly on the scale of fees laid down in a booklet published by the Association of Consulting Engineers in London (Exhibit 3).

The respondent defended the suit and did not file any motion for stay of proceedings even though clause 17 in part 11 of Exhibit 3 contained reference to arbitration in case of dispute. In the judgment of the High Court, the appellant’s case was dismissed on the ground that the appellant did not prove his case as he did not lead any evidence or put in any document to support his case. However, the judge went further to observe that even if the appellant succeeded in proving the amount claimed, he (the judge) would have been unable to enter judgment in his favour in view of clause 17 in part 11 of Exhibit 3.

On appeal to the Supreme Court, it was held that the lower court was in error to have made the observation. It is in the judgment of the Supreme Court that Fatayi-Williams CJN made the general statement that has generated the confusion in the state of the law regarding what constitutes steps before making application for stay of proceedings pending arbitration. His lordship said at page 141 that:

“In order to get a stay, a party to submission must have taken NO step in the proceedings. A party who makes any application whatsoever to the court, even though it be merely for application for extension of time, takes a step in the proceedings. Delivery of a statement of defence is also a step in the proceedings.” (Emphasis mine)
It is consoling, at least for the purpose of permitting a distinction between the Obembe case and other cases, that the Supreme Court itself stated the peculiarities of the Obembe’s case to indicate the limited usefulness that the statement of Fatayi-Williams CJN can serve in determining what constitutes steps in a proceedings when the court observed at page 141 that:
“No stay was asked for the defendants/respondents after they were served with the writ of summons. On the contrary, they accepted service of the statement of claim, filed their own statement of defence, testified in their defence, and took part in the proceedings.”

Other Steps Taken So Far
It is important to review few of the cases in which the courts have had opportunity to determine what constitute steps in a judicial proceedings to defeat the right of a defendant to insist that the dispute in a judicial proceedings be referred to arbitration.

1.     K.S.U.D.B. v. Fanz Construction Ltd (1990) 4 NWLR (Pt. 142) 1.
On the day this case came up in Court, the defendant’s counsel applied to Court for an order of pleadings and the Court ordered pleadings to be filed, giving plaintiff twenty-one (21) days and defendant forty (40) days as requested by counsel. The Plaintiff filed a statement of claim accordingly. Thereafter the defendant applied for stay of proceedings. The application was rightly refused.

1.     Fawehinmi Construction Co. Ltd. v. O. A. U [1998] 6 NWLR (Pt. 553) 171.
In 1998, the Supreme Court had a golden opportunity to lay down the rule and correct the palpable error that may arise from the wholesale adoption of the blanket judicial statement of Fatayi-Williams CJN in the Obembe case. The opportunity arose in Fawehinmi Construction Co. Ltd. v. O. A. U. But rather than overruling itself, the Supreme Court towed the easier path of distinguishing the Obembe case from the Fawehinmi case and held that the Obembe case has no application to the case before it, thus, living the state of the law hazy and susceptible to erratic interpretations of the sweeping statement of Fatayi-Williams CJN in Obembe case.

In the Fawehinmi case, the appellant (as plaintiff) took out a writ of summons against the respondent (as defendant) claiming damages for breach of contract and wrongful detention of its plants and machinery. On the same day the writ of summons was filed, the appellant also filed a motion for mandatory injunction compelling the release of its plants and machinery which motion was fixed for hearing on 3rd June 1987. On 25th May 1987, the respondent filed a motion for stay of proceedings pending reference to arbitration in accordance with Clause 35 of the contract between the parties. The motion for stay of proceedings was argued and was later dismissed. Thereafter, the Court adjourned for hearing of the substantive suit.

The appellant filed a Statement of Claim and served same on the respondent. The respondent did not file any Statement of Defence but rather it raised the issue that the suit was not properly before the Court on ground that Section 46 of the University of Ife Edict on pre-action notice was not complied with. The High Court overruled the objection holding that the respondent had waived his right by taking steps in the proceedings. The respondent’s appeal to the Court of Appeal was upheld and the appellant’s suit was struck out by the Court of Appeal. The appellant’s appeal to the Supreme Court was refused. 
It is noteworthy that, though the defendant in this suit went beyond arbitration agreement by invoking statutory provision in order to make the suit incompetent, the Supreme Court nonetheless held that the trial court ought to have upheld the objection to the suit on ground that the plaintiff did not comply with the arbitration clause in their contract.

On what amounts to “taking a step in a proceeding”, the Supreme Court held at pages 183 – 184 as follows:

“Now by appearing before the trial in a court to raise preliminary issue of clause on arbitration to be resorted to first before the trial in a court of law, could the defendant be said to have waived its right? When parties enter into agreement and there is an arbitration clause whereby the parties must first go for arbitration before trial in Court it is natural for the defendant in a case where the other party has filed a suit to ask for stay of proceedings pending arbitration. That does not amount to submission to trial. In the case where such application is refused the next step is to invoke a statutory right where it exists if that right will make the suit incompetent. In the present case, s. 46(1) of the Edict, (supra) was invoked by the defendant and the learned trial judge held it was too late and that the defendant had waived its right. The right under s.46(1) is very wide. Waiver is not all that simple, appearance by way of demurrer is not enough to amount to waiver. When party has a right whether by way of agreement or under statute he can exercise it at the earliest time and can equally waive it if the statutory right is not absolute and mandatory. The waiver must be clear and unambiguous like allowing all evidence to be taken or even decision given before challenging the hearing. It will then be shown that the party, deliberately refused to take advantage of the right when it availed him. Such failure to take advantage of a right must be so clear that there will be no other reasonable presumption than that the right is let go. The preliminary skirmishes in this case at the trial Court could not by any imagination be presumed to be a waiver. The defendant had not filed his statement of defence and service of the statement of claim on it is certainly not a waiver by it. Had it filed a statement of defence but with indication that the preliminary objection will be raised that the suit was not properly before the Court, it would not (sic) have been a waiver. This would have distinguished the dictum in Kano State Urban Development Board v. Fanz Construction Ltd. (1990) 4 NWLR (Pt. 142) 1. It is therefore clear, that the defendant had not taken any step in having the case heard by the trial Court and had not waived its right under s.46(1) of the Edict. Obembe v. Wemabod Estates Ltd. (1977) 5 SC 115, 131-2 has no application in this case. There is no evidence of waiver in this case.”

Of particular interest is the dictum of the Court of Appeal in the above case quoted with approval by Ogundare JSC (in the concurring judgment) at page 187 of the report. It was held as follows:

“It is not enough to say that the appellant entered an unconditional appearance and therefore he has waived his (sic) right to complain about jurisdiction. The decision in Muni v. Worsfold (supra) which was followed in the case of U.B.A. Trustees Ltd. v. Nigergrob Ceramic Ltd. (sura) has determined that entering an appearance, even unconditional, does not constitute a waiver of the right to object. It is therefore not enough to say that the appellant having entered unconditional appearance cannot raise the objection on the decision of the court. For it is clear from the record that as soon as the appellant entered appearance, the first step taken by its counsel was to protest against the jurisdiction of the court by seeking a stay of its proceedings with a view to referring the case to arbitration as set out in the agreement between the parties. The only step taken after appearance therefore by the appellant was to protest against the court hearing the case. If any step could be said to have been taken. (sic) it is only in protestation.”
3. Confidence Insurance Ltd. v. Trustees of O.S.C.E. (1999) 2 NWLR (Pt. 591) 373 
In this case, upon the commencement of the suit and service of the originating process, parties exchanged pleadings. In its statement of defence, the appellant averred that the respondent’s action was premature as the respondents did not exhaust arbitration as agreed in the trust deed before resorting to litigation. Judgment was entered against the appellant and he appealed against the refusal to stay proceedings. The appeal was dismissed with the following dictum at page 388 paragraphs A-D as follows:

“While certain acts done by a party may or may not constitute steps in the proceedings, nevertheless some acts will surely be construed to mean “taking steps in the proceedings.” For example, exchange of correspondence between parties or their counsel after entering appearance or efforts made out of court to settle the matter in controversy between the parties or moving the court to seek a party’s desire that the matter be placed before arbitration panel cannot ordinarily amount to taking other steps in this proceedings as to defeat a party’s right to rely on the arbitration provision.”

4. M. V. Lupex v. N. O. C. (2003) 15 NWLR (Pt. 844) 469
The next case to be considered is the case of M. V. Lupex v. N. O. C. The dispute in this case arose between the parties in respect of a charter-party agreement which contained a clause that disputes should be resolved by arbitration. The Respondent sued the Appellant at the Federal High Court claiming damages for breach of the charter-party and thereafter obtained an order ex parte for the arrest of the chartered vessel (M.V. LUPEX) which at the time had berthed at the port of Warri. On becoming aware of the ex parte order, the Appellant filed a motion on notice for the following orders:

1.     An order setting aside the order for the arrest of the vessel, alternatively;
2.     An order for the release of the arrested vessel unconditionally or upon such terms as the Court may direct;
3.     An order for stay of proceedings in the suit sine die.

The Federal High Court held that it had jurisdiction and refused the Appellant’s prayer to stay proceedings. Also, the Court released the vessel on monetary condition. The Appellant appealed to the Court of Appeal. The Court of Appeal dismissed the appeal. The Appellant further appealed to the Supreme Court. The Supreme Court allowed the appeal and granted stay of proceedings sine die to enable parties resort to arbitration.

Mohammed JSC held at pages 488-489:
“Taking into consideration all what I have considered above in this judgment, it is crystal clear that the trial High Court could only have acted judicially and judiciously if it exercised its discretion by ordering a stay of proceedings in the case at hand. It is abundantly clear that the trial court had acted on wrong principles of law and that it misapprehended the facts of this case when it refused to grant the appellant’s application for stay of proceedings of the action filed before it by the respondent. The court below is therefore in error to affirm the decision of the trial Federal High Court in refusing to grant a stay of proceedings.”

5. Enyelike v. Ogoloma (2008) 14 NWLR (Pt. 1107) 247
In Enyelike v. Ogoloma, the dispute arose between the parties from a lease agreement which contained an arbitration clause. The Respondent sued the Appellant on 14th March 2000 before the High Court of Rivers State contrary to the arbitration agreement. On 22nd February 2000, the Appellant filed a Notice of preliminary objection seeking to dismiss the suit. Thereafter the Appellant filed a conditional appearance out of time and a motion for extension of time to file and serve his statement of defence and counterclaim dated 12th February 2001. The Appellant pleaded the arbitration agreement in his statement of defence and counterclaim.

The High Court of Rivers State held (quoted at page 254 of the report) as follows:

“As can be seen in all the authorities to above, there is something that a party to an arbitration cannot do……he must not have taken any tangible step in the proceedings or as section 5 of the Arbitration Law, cap 10 put it, “taking any other steps”. In this instant matter, the defendant/applicant not only entered a conditional appearance out of time, after filing a motion for to enter appearance out of time, but filed a motion on notice for an extension of time within which he can file and serve his statement of defence and counterclaim dated 12/2/2001, and this motion dismissing (sic) the suit for lack of jurisdiction. All these constitute an act of “taking any other steps” committed by the defendant/applicant and having done so, he cannot be heard to raise the issue of non-compliance with the arbitration clause.” (Emphasis mine)

The Court of Appeal, Port Harcourt agreed and held at pages 257-258 as follows:

“By virtue of the provisions of subsection (1) of section 5 of the Arbitration and Conciliation Act (supra), either the appellant or the respondents have the right to, at any time after entering an appearance but before filing any pleadings (including statement of defence) or taking any other steps (e.g. filing of motions etc), apply to the court to stay proceedings. In the instant case, it’s rather obvious that the appellant having already deemed it fit or expedient to file (i) a statement of defence (ii) a counter claim to the respondents’ suit, it was rather most inappropriate, to say the least for him to file the notice of preliminary objection in question seeking that the suit be dismissed.” (Emphasis mine)

6. Onward Enterprises Ltd. v. MV Matrix & Ors (2010) 2 NWLR (Pt. 1179) 530
This is another case in which the Court of Appeal did not follow the hardship in Obembe case though distinguished the earlier case from the present one. The appellant (as plaintiff) sued the respondent claiming damages for breach of contract of affreightment and obtained an ex parte order on 2nd July 2002 for the arrest and detention of the respondent’s vessel (M.V. Matrix). On 15th July 2002, the respondent filed two applications. While the first application was for release of the vessel, the second application sought to shift the vessel to anchorage pending the hearing of the application for release. The appellant consented to the release of the vessel on 26th July 2002. On 11th July 2003, the respondent filed a motion for stay of proceedings pending reference to arbitration in London. The Court granted the motion for stay of proceedings.

The Court of Appeal at page 551 took a step to state certain steps which can be regarded as waiver of the right to insist on arbitration agreement wherein Mshelia JCA held as follows:

“In the instant case, respondents entered conditional appearance and filed two motions on notice before the application for stay. One sought the release of the vessel, while the second sought an order to shift the vessel to anchorage. The application for stay of proceedings was the third application filed by the respondents. For the appellant, the application to shift the vessel in particular amounts to a step taken in the proceedings. It is evident from the record that the respondents did not file any statement of defence nor applied for extension of time to file any statement of defence. I agree with the submission of respondents’ counsel that neither the application for the release of the vessel nor the application to shift the vessel to anchorage pending the determination of the application to release her from arrest constitute steps taken within the contemplation of section 5 (1) of the Arbitration and Conciliation Act. It is only acts done in furtherance of the prosecution of the defence that could be said to amount to steps taken in the proceedings.”

7. Nissan (Nig.) Ltd. v. Yaganathan & Anor (2010) 4 NWLR (Pt. 1183) 135. 
The dispute in this case arose from a contract in restraint of trade between the 1st Respondent and the Appellant (his former employer). The contract contained arbitration clause. The Appellant sued the 1st Respondent at the High Court of Lagos State for taking up a new employment with the 2nd Respondent. On being served with the writ of summons and other court process, the Respondents filed a notice of preliminary objection seeking orders:
1.     To strike out the suit against the 2nd Respondent for non-disclosure of a reasonable cause of action and for being improperly joined in the suit;
2.     To strike out the suit for being incompetent and non-compliant with the arbitration agreement; and
3.     For such further orders as the Court may make in the circumstances.
The High Court granted prayers (i) and (ii). Also, the Court stayed further proceedings in the suit which was not one of the prayers in the notice of preliminary objection. At the Court of Appeal, Lagos, one of the issues was whether the High Court was right to grant a relief not claimed. The Court of Appeal allowed the appeal in part, holding at pages 156-157 as follows:
“From decided authorities, it is clear that the application to refer the matter to arbitration would succeed if the application is made at any time after the applicant enters appearance but before filing pleadings or taking any other steps in the proceedings. In this case, the respondents entered conditional appearance on 15th January 2007 and the next day, 16th January 2007 filed a preliminary objection seeking order of the court striking out the suit for non-compliance with the arbitration clause. It ought to have been not for striking out the suit, but for stay of proceedings to enable the parties go to arbitration. ………… The order granting a stay of proceedings pending resolution of their disputes by arbitration as agreed between the parties is correct notwithstanding that the respondents asked that the suit be struck out.”

8. Williams vs Williams & 3 Ors. (2013) 3 CLRN 114.
The Appellant petitioned for the winding up of the 4th Respondent on the grounds of alleged commission of sundry illegalities by the 1st and 2nd Respondents, the alter ego of the 4th Respondent; and the oppressive and discriminatory conduct of members of the 4th Respondent in relation to the running of the affairs of the 4th Respondent.

Pursuant to section 5 of the ACA, the 1st and 2nd Respondents filed a motion for stay of proceedings pending arbitration as agreed by parties. Before the motion was heard, counsel to the 1st and 2nd Respondents did the following:
(a) orally applied to the court for an adjournment;

(b) gave an undertaking in respect of a pending motion on notice in the substantive suit; and

(c) prayed the trial court not to grant the prayers of interim injunction in the terms sought by the Appellant.
The Appellant contended that the 1st and 2nd respondents took steps in the substantive suit in view of the above. The foregoing contention notwithstanding, the court upheld the 1st and 2nd Respondents’ motion and stayed its proceedings in the matter pending arbitration. The court further directed the Appellant to commence arbitral proceedings pursuant to the parties’ written agreement. Dissatisfied with the ruling of the trial court, the Appellant appealed to the Court of Appeal where the Appellant, relying on the Obembe’s case, forcefully contended that the 1st and 2nd Respondents had taken a step in the proceedings. Accordingly, the Appellant submitted that the 1st and 2nd Respondents had lost their right to ask for a stay of proceedings pending arbitration. The Appeal was refused.

9. S. A. & Ind. Co. Ltd. v. Ministry of Finance Incorp (2014) 10 NWLR (Pt.1416) 515.
The dispute in this case arose from a contract for supply of fertilizer between the 1st Appellant and Kano Government (represented by the 2nd Respondent). The contract contained arbitration clause. The Respondents sued the Appellants at the High Court of Kano State for balance due under the agreement and for damages. Upon being served with the originating process, the appellants filed their respective memorandum of conditional appearance under protest. Thereafter, without delivering pleadings, the appellants filed a motion for stay of proceedings pending arbitration (though the third appellant filed a motion to strike out the suit). 

The High Court refused the application for stay of proceedings. The Court of Appeal overruled the lower court and granted stay of the proceedings. Nothing is said about taking step as it was not in issue. However, the Court adopted the views expressed in Confidence Insurance Ltd. v. The Trustees of Ondo State College of Education Staff Pension (1999) 2 NWLR (Pt. 591) 373 at 386-387 paragraphs C-G where Achike, JCA as follows:

“It is perfectly clear to me that mere entering an appearance by the appellant, be it conditional or unconditional appearance, is not controlling nor relevant to the party’s right to rely on the arbitration clause inserted in the parties’ agreement. On the contrary, it is in fact what happens after a party has entered an appearance that matters in determining whether or not such a party can still take advantage of the aforesaid arbitration clause.”

Making a Case against Obembe v. Wemabod
In the determination of the application to stay judicial proceedings in order that parties may go to arbitration, the relevant question the court should consider is whether the party applying for stay is “guilty” of doing something in the judicial proceedings which negates his application for stay of judicial proceedings so as to constitute waiver of his right to insist on arbitration. If the question is answered in the affirmative, the application for stay of judicial proceedings should be refused. Otherwise, stay should be granted. 

However, the determination of whether the particular step taken qualifies for waiver is not a simple straight-forward task particularly in the face of Obembe case. Although, as already indicated in the list of cases considered above, the courts have done well in some cases by distinguishing the peculiarities in the Obembe case from the one being decided to avoid the application of the sweeping statement of Fatayi-Williams CJN that “A party who makes any application whatsoever to the court, even though it be merely for application for extension of time, takes a step in the proceedings”. The Obembe case still appears to be a law to which a lazy recourse can be easily had where there is no judicial willingness to distinguish the facts of the case being decided from those in Obembe case to avoid the application of the far-reaching statement of Fatayi-Williams CJN.

With due respect, the Obembe case is not a useful authority for any issue bordering on whether a party has taken steps that constitutes waiver. Also, the popular statement of Fatayi-Williams CJN is not a statement of the law, rather it is a statement made in error as it arose from the Supreme Court’s determination of a ground of appeal complaining against an observation made in passing by the trial judge. The trial judge observed that “Had I been in a position on the facts to find any of the plaintiff’s claims proved I would have been unable to enter judgment in his favour in view of the Arbitration Clauses 17 of Exh. 3 at page 37 which parties had agreed would govern their contract.” The foregoing observation of the trial judge, in my respectful view, is an obiter dictum as it did not form the basis of his dismissal of the plaintiff/appellant’s case. 
The law is trite that it is only against the ratio decidendi in a judgment and not an obiter dictum that an appeal (if any) can be lodged. The Supreme Court in A.I.C. LTD V. NNPC (2005) 22 NSCQLR 903, at 925 (2005) 5 SC (PT. 11) 60 defined ratio decidendi and obiter dicta as follows: "The ratio decidendi of a case represents the reasoning or principle or ground upon which a case is decided. Obiter simply means in passing, incidental, cursory. Obiter dicta reflects, inter alia, the opinions of the Judge, which do not embody the resolution of the Court."

The ground and issue formulated by the appellant in the Obembe case in respect of the observation made by the trial judge ought to have been struck out by the Supreme Court for being incompetent. Failure to strike out the ground and the issue led to the popular statement by Fatayi-Williams CJN that “A party who makes any application whatsoever to the court, even though it be merely for application for extension of time, takes a step in the proceedings”. In CHAMI V. UBA PLC. (2010) 6 NWLR (PT. 1191) 474 at 493 PARAGRAPHS E- F, the Supreme Court made the point so clear that grounds of appeal must attack the ratio, when it held thus: "It is settled law that issues for determination must be distilled from Grounds of Appeal which Ground(s) must attack the ratio decidendi of the judgment not anything said by the way, or obiter dicta or be formulated in vacuo, as issue 5 in the instant case.” It is therefore my humble view that the statement of Fatayi-Williams CJN was made per incuriam which ought to be overruled or jettisoned by subsequent courts. It must be noted however that even though the Supreme Court can depart from or overrule the Obembe case, the Court of Appeal and all other inferior courts are bound by it.

Generally speaking the Supreme Court may depart from or overrule its previous decision under certain circumstances and in accordance with laid down principles of law, such as where it is shown or demonstrated that the earlier decision is either erroneous in law, or given per incuriam or that it has become an instrument of injustice etc, see Veepes Industries Ltd vs Cocoa Industries Ltd (2008) ALL FWLR (Pt.425) 1667 at 1687; Bakare v. NRC (2007) ALL FWLR (Pt.391) 1663. In addition to the above, where the decision complained of hinders the proper development of the law (e.g. the law of arbitration) in which a broad issue of public policy was involved, the Supreme Court may depart from such a decision. It is therefore my humble submission that the decision in Obembe case should be overruled by another panel of the Supreme Court for being a major impediment to the development of arbitration law in Nigeria.

The Way the Law should Go
It is clear from the totality of cases considered that if the arbitration law must develop and be seen to be developing in Nigeria, the court should be more inclined to granting stay of arbitration than refusing it. The steps that a defendant is alleged to have taken in a judicial proceeding to defeat his right to arbitration must be so clear and positive as to constitute a waiver of his right to insist on the resolution of the dispute by arbitration. The following steps have been highlighted, though not exhaustive, on what a defendant can do to frustrate his right to go to arbitration, namely:

1.     filing an affidavit in opposition to summons or motion for summary judgment, or
2.     filing and/or service of a statement defence, or
3.     filing an interpleader summons, or
4.     filing of a counterclaim, or
5.     filing an application for leave to serve interrogatories, or
6.     filing an application for stay of proceedings pending the giving of security or costs
7.     filing an application for extension of time to file and/or serve a statement of defence
8.     filing an application for an order for discovery
9.     filing an application for an order for further and better particulars,
10.                        filing a motion to commence a third party proceeding


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