




































NWACHUKWU: An Appraisal of the Relationship between the Courts and Arbitral Process in Nigeria 

Page | 72 
 

AN APPRAISAL OF THE RELATIONSHIP BETWEEN THE COURTS AND ARBITRAL PROCESS 

IN NIGERIA* 

 

Abstract 

Arbitration is an accepted form of dispute settlement in many countries today. Nigerian courts initially saw 

arbitration as a rival that must not be allowed to take roots in Nigeria. Then the courts were reluctant in 

recognizing the decisions of arbitral tribunals and viewed such decisions with suspicion. As time goes on, the 

attitude of the courts began to change. Now courts have played and have continued to play both supervisory and 

supportive roles in ensuring that arbitration process in Nigeria performs its role in dispute resolution. This paper 

aimed at appraising the relationship between the courts and the arbitral process with a view to determining how 

far arbitral process is dependent on the court. The researcher adopted the doctrinal methodology relied on library 

based materials and internet sourced materials. It found that the relationship between the duo is a symbiotic 

relationship. The courts are involved in the process of arbitration from commencement to recognition and 

enforcement of the arbitral awards as well as its setting aside. It is recommended that the intervention of the court 

should not be allowed to be over excessive so that the beauty of arbitration as a process of dispute resolution will 

not be eroded. 

 

Keywords: Arbitration, Arbitral Process, Arbitral Award, Courts.  

 

1. Introduction 

Arbitration is a private dispute resolution method which has gained its ground in the commercial transactions. 

Ezejiofor describes it as the fair resolution of a dispute between two or more parties by a person or persons other 

than by a court of law and concludes that an exercise is not arbitration if it does not answer this definition.1 This 

definition seems not to have captured all the elements of an arbitration process. The definition failed to state that 

the parties must voluntarily submit their dispute to the third party who will give a decision called an award. 

Halsbury’s Laws of England defines it as: ‘The process by which a dispute or difference between two or more 

parties, as to their mutual legal rights and liabilities, is referred to and determined judicially and with binding 

effect by the application of law by one or more persons (the arbitral tribunal) instead of by a court of law.’2 The 

above definition is a more encompassing one as it seems to capture all the elements of the arbitral process. An 

arbitral tribunal derives its authority solely from the parties’ agreement to arbitrate. ‘Court’, on the other hand, is 

an organ of the government, belonging to the judicial department, whose function is the application of laws to 

controversies brought before it and the public administration of justice. It is that body in the government to which 

the administration of justice is delegated.3 Courts are, therefore the bastions of justice created by law and vested 

with the power to determine disputes.4 The courts are creation of the constitution5. The 1999 Constitution of 

Nigerian sets up the court system and vests in them the right to determine controversies between persons in 

Nigeria. Access to court is therefore a fundamental right of every Nigerian citizens6.  Judicial courts and arbitration 

panels are often perceived as two distinct worlds. This is because the essence of arbitration is that the dispute 

between the parties is taken out of the formal court process and determined by arbitrators chosen by the parties or 

appointed for them by the court or arbitral institute.7 More so, the intention of the parties who go before an arbitral 

tribunal is to exclude the intervention of the court in their case8. But the truth is that as much as these mechanisms 

are exclusive one from the other that is, they demand a choice by the disputing parties on the forum to solve their 

disputes, there are nevertheless points of convergence between the two. Arbitration needs and receives the support 

of the courts. Indeed both work hand in hand to ensure the efficient and effective administration of justice. Courts 

have an important role to play which is complimentary to arbitration. The courts have played and have continued 

to play supportive role in ensuring that arbitration process in Nigeria is strengthened and empowered to perform 

its role in dispute resolution. This work looked at the various roles of the court in arbitral proceedings in order to 

portray the relationship between the duo. The relationship between courts and arbitral tribunals has been described 

as one of constant shifts and changes. It can also be described as that of ‘partnership’. It is one in which each has 

                                                           
*By Tochukwu Nkiruka NWACHUKWU, LLB, BL, PGD (Management), LLM, PhD Candidate, Faculty of Law, 

Nnamdi Azikiwe University, Awka. Phone No: 08067673140. E- Mail: tochianaje@yahoo.com 
1 G. Ezejiofor, The Law of Arbitration in Nigeria, (Ikeja: Longman, 1997), p.3  
2 Halsbury’s Laws of England, 4th ed. Vol. 2, (London: Butterworths, 1986) p. 332 cited in C. A. Obiozor, Nigerian Arbitration 

Jurisprudence, (Onitsha: Allied Press & Co, 2010), p. 1 
3C. A. Obiozor, Courts and the Framework for Domestic Arbitration under the Act in Nigeria, (Onitsha: Allied Press & Co, 

2010) p. 1 
4 Ibid, pp. 2 & 3 
5 1999 Constitution of The Federal Republic of Nigeria, Section 6. 
6 A. Law, The Role of the Court in Arbitration under the Arbitration and Conciliation Act 2004, https:www.djetlawyer.com 

accessed on 15th Feburary, 2022.  
7 G. C. Nwakoby, The Law and Practice of Commercial Arbitration in Nigeria, (Enugu: Snap Press Ltd, 2004) p. 409 
8 Ibid. 



 African Customary and Religious Law Review 1 (2020) 

Page | 73  
 

a different role to play at different times9. The nature of this relationship has been described as a relay race where 

initially ‘the baton is in the grasp of the court’ as it is the sole organization with power to give effect to the 

arbitration agreement.10 Then the arbitrators take over until making an award and once the award is made, their 

function is fulfilled so the baton is once again handed to the courts to ‘lend its coercive powers to the enforcement 

of the award’.11  It is also observed that under the Nigerian Arbitration and Conciliation Act, there are sections 

providing for court’s involvement in arbitration. Though, Arbitration may depend upon the agreement of the 

parties, it is also a system built on law and which relies upon that law to make it effective both nationally and 

internationally. It is therefore a true statement that courts can exist without arbitration, but arbitration cannot exist 

without the courts12. Nwakoby13, opined that: 

… It is very difficult to exclude in its entirety the intervention of the court in arbitral 

process. Arbitration will be rendered unattractive and hopeless if the court is completely 

excluded from the same. This is because the arbitral tribunal has certain obvious limitations 

based on law  

 

One would expect that a party having chosen arbitration as a faster means of dispute resolution will be free entirely 

from the intervention of court, invariably eliminating delay, though that is usually not the case. In fact, a party 

who agrees to refer dispute to arbitration chooses a private system of justice and this, in itself, raises issues of 

public policy.14 Having established this foundation, the essence and real issue here is to define the point where the 

reliance of arbitration on national courts begins and where it ends. 

 

2. The Converging Points of Courts and Arbitral Process 

The Arbitration and Conciliation Act15 being the canon law of arbitration in Nigeria allows the involvement of 

court in arbitral process but also stated the limits of the involvement. It has provided in its section 3416 that ‘a 

court shall not intervene in any matter governed by this Act except where so provided in this Act’. This section 

of the Arbitration and Conciliation Act is in pari materia with Article 5 of the UNCITRAL Model Law. sBy virtue 

of the provisions of section 34 of the Act, there exists a relationship between the arbitral process and the court. 

The essence of section 34 is to strike a balance between the supervisory power of the court and the freedom of the 

arbitral process.17 It is also to ensure that the formal courts do not interfere with arbitration proceedings 

unnecessarily. The intendment of the section is not to limit the jurisdiction of any court in the determination of 

matters within its jurisdiction but rather that no application may be made to the court in any matter where there is 

an available process in the Act. The essence is to ensure that arbitral process is not rendered nugatory and 

unattractive within our jurisdiction by incessant and unnecessary intervention by the courts.18 By section 34, 

therefore, courts will only supervise and where necessary assist the arbitration process. It is pertinent to state that 

courts supervision and assistance does not threaten the future of arbitration as a form of dispute resolution. Rather 

it supports and insures its continued viability. Courts intervention is prevalent and indeed inevitable. The Act also 

defines court to mean the high court of a state, the high court of the Federal Capital Territory or the Federal High 

Court19. It is to any of these courts that arbitral matters could be referred by the parties to arbitration agreement. 

Flowing from sections 34 and 57 of the Act it means that the Act makes provisions for the intervention of the 

Courts in the arbitral process and these areas where courts can intervene are the areas of convergence between the 

courts and the arbitral process. These occasions for intervention are as follows: 

 

Revocation of Arbitration Agreement 

Arbitration is based on a valid agreement to arbitrate. As stated earlier, an arbitration is a product of an agreement 

by the parties to refer any or all existing or future disputes arising from their legal relationship to a neutral person 

or persons for determination of their respective rights and liabilities, in relation to the dispute under reference.  

                                                           
9 A. I. Idigbe, ‘Court Control of Arbitral Process’, A paper presented at the Nigerian Bar Association Section on Business 

Law, 2- Day Workshop on ADR as an Alternative and Expeditious and Cost Effective Means of Dispute Resolution. At Eko 

Hotels, Victoria Island, Lagos on 5th July, 2006.    
10 L. Mustill, ‘Comments and Conclusions in Conservatory Provisional Measures in International Arbitration, 1993, 9th Joint 

Colloquium, ICC Publication p. 118    
11 Ibid  
12 A. I. Idigbe, op. cit. 
13 G. C. Nwakoby, op. cit. p. 409 
14 A. I. Idigbe, op.cit. 
15 Cap A 18, Laws of Federation of Nigeria, 2004. 
16 Arbitration and Conciliation Act, Cap A 18, Laws of Federation of Nigeria, 2004. 
17 Mustil & Boyd, The Law and Practice of Commercial Arbitration in England, 1989, 43, cited in G. C. Nwakoby, Op. cit, p. 

410 
18 G. C. Nwakoby, op. cit, pp. 409 -410. 
19 Arbitration and Conciliation Act, op.cit, s. 57. 



NWACHUKWU: An Appraisal of the Relationship between the Courts and Arbitral Process in Nigeria 

Page | 74 
 

Arbitration is a creature of consent, and that consent should be freely, knowingly, and competently given.20 

Therefore, to establish that parties have actually consented, the Act provides that the agreement must be in writing 

and signed by both parties. Section 221 provides that ‘unless a contrary intent is expressed therein, an arbitration 

agreement shall be irrevocable except by agreement of the parties or by leave of court or a judge’.  Even the death 

of any party does not revoke or render the agreement invalid, as it shall be made enforceable by or against the 

personal representatives of the deceased.22 The choice of arbitration does not bar resort to the courts to obtain 

security for an eventual award.23 It is pertinent to state that the private nature of arbitration does not oust 

jurisdiction of the courts, all that the agreement does is to postpone the right of access to court.24 Since, the parties 

to a contract are allowed within the law to regulate their rights and liabilities themselves,25 all that the court is 

required to do is to give effect to the intention of the parties as it is expressed in and by their contract.26 This calls 

for two things from the courts. First, it must determine whether an arbitration agreement is valid and then whether 

to enforce a valid arbitration agreement which has not been mutually abandoned.27 Once parties enter into a valid 

arbitration agreement, one of them cannot unilaterally revoke it, he must apply to the court for revocation under 

Section 2 of the Act.  The arbitration agreement was freely and voluntarily entered into by the parties. To depart 

from it, the party seeking a revocation has to show good reason. One of such circumstances is when something 

happens which makes the performance of the arbitration agreement impossible or which destroys the foundation 

of the contract to arbitrate.28 Like any other contract, the arbitration contract will be frustrated and can be formally 

revoked by the court on application by a party. The court will then be empowered to exercise the power of 

revocation in the event of a supervening impossibility causing a frustration of the objects of the arbitration 

agreement.29 In addition, where some supervening issues of law would arise to make a continuation of the 

performance of the arbitration agreement illegal,30 the contract will be deemed frustrated and an application for 

revocation on this ground by a party where the other party does not agree will be held by the court. Arbitration 

will only apply when the dispute or difference which the parties to an arbitration agreement agree to refer is a 

justiciable issue which can be tried as civil matters.31 The court’s role is to decide whether a dispute is arbitrable 

or not. The court will revoke an agreement to arbitrate when the agreement relates to disputes that cannot be 

settled by arbitration.32  

 

Stay of Court Proceedings 
In every arbitral process, it is presumed that the parties to arbitration have agreed that their dispute shall be settled 

by arbitration. This is a solemn contract like any other and so a party to the agreement will not be allowed to 

unjustifiably breach that agreement by bringing a court action in respect of the same subject matter33. But this is 

not always the case. A party to an arbitration agreement may decide to institute proceedings in court, rather than 

explore arbitration as agreed by parties. If the other party agrees, the court action will proceed. Where the 

Defendant insists on his right to have the matter resolved by means of arbitration, the court’s responsibility is to 

ensure that the parties’ agreement is enforced by referring them to arbitration.34  The Act has given the court the 

power to stay proceeding in situations like this in its sections 4 and 535.  By the combined effect of sections 4 and 

5 of the Act, the court has the jurisdiction to grant stay of proceedings in respect of matters brought before it by a 

party to an arbitration agreement in breach of the terms of his agreement with his fellow. It is a breach of arbitration 

agreement for one party to commence an action in court without first reverting to the arbitration tribunal in 

accordance with the terms of his agreement36. Where a party to an arbitration agreement decides to file his case 

in court instead of reverting to arbitration in accordance with the agreement he entered into with the other party, 

the aggrieved party is not without remedy in law. In accordance with sections 4 and 5 of the Act, the aggrieved 

                                                           
20 O. Bamigboye, ‘Arbitration Law and Practice in Nigeria: Does National Court Involvement Undermine the Arbitration 

Processes?’ February, 29 2015, https:www.papers.ssrn.com/so13/papers.cfm?abstract_id=2858812 accessed on 12th August, 

2021.   
21 Arbitration and Conciliation Act, op. cit. 
22 Ibid, s. 3  
23 Scheep v. Mv Araz (2000) 15 NWLR (pt 691) 622. 
24 City Eng. (Nig) Ltd v. Federal Housing Authority (1997) 9 NWLR (pt. 520) 224 at 248.   
25 Gott v. Gandy 2 E & b 845 at p.847 per Erle, J, cited in O. Bamigboye, op. cit. p. 14. 
26 Sonar (Nig) Ltd. v. Nordwind (1987) 4 NWLR (pt. 66) p. 520, para G..  
27 Kurubo v. Zach Motison (Nig.) Ltd (1992) 5 NWLR (pt. 239) p. 102.  
28 Mustill & Boyd, op.cit, p. 508. 
29 Ibid  
30 I. E Sagay, Nigeria Law of Contract, (Ibadan: Spectrum Books Limited, 2009) pp. 359-456  
31 G. Ezejiofor, op.cit. p. 16 
32 KSUDC V. Fanz Construction Ltd, 4 NWLR (1990) (Pt 142 ) 1 at 32  
33 J. O. Orojo & M. A. Ajomo, Law and Practice of Arbitration and Conciliation in Nigeria, (Lagos: Mbeyi & Associates 

(Nigeria) Ltd, 1999), p. 316   
34 A. I Idigbe, op. cit, p. 4 
35 Arbitration and Conciliation Act, op. cit. 
36 G. C. Nwakoby, op.cit, p. 417 



 African Customary and Religious Law Review 1 (2020) 

Page | 75  
 

party has a right to apply for a stay of proceedings in the court in which the suit is pending.37 A stay of court 

proceedings literally means the postponement or halting judicial proceedings or an order to suspend all or part of 

such proceeding.38 Therefore, Sections 4 and 5 of the Arbitration and Conciliation Act39 empowers the court to 

stay proceedings and preserve the res.40 It is a well settled principle of law that proceedings in the court may be 

stayed, pending arbitration, in circumstances where an arbitration clause is inserted in the agreement between the 

parties in order that a stay might be granted.  The court ought to give due regard to the voluntary agreement of the 

parties by enforcing the arbitration clause as agreed to by them. However, for the court to exercise such 

discretionary powers conferred by statute, the applicant for a stay of court proceedings must have asserted the 

right to evoke the arbitration provision before taking other steps in the proceedings. Orojo and Ajomo41 suggest 

that this application must be made after appearance and before the applicant has delivered any pleadings or taken 

any other steps in the proceedings.   The court is bound to stay proceedings unless it is satisfied that there is 

sufficient reason to justify a refusal to refer the dispute to arbitration despite the agreement of the parties. The 

court may only refuse to order a stay of proceedings where the defendant establishes that he would suffer injustice 

from the arbitration tribunal or that agreement between the parties is null and void, inoperative and incapable of 

being performed.42 

 

Power to Appoint Arbitrators 

Once a decision to refer a dispute to arbitration has been made, selecting an arbitrator is critical not only for the 

reputation of the arbitral tribunal process but for its standing. The usual practice is for the parties to appoint their 

arbitrators, prescribe their qualification, and state the number of arbitrators who shall arbitrate for them or in the 

alternative, name the arbitrator or a particular office holder as their arbitrator. The court does not have an inherent 

jurisdiction to appoint an arbitrator or umpire or to compel any party to the agreement of reference to do so43except 

where the parties have failed to make adequate provision for the constitution of the arbitral tribunal, or fail to 

agree on one arbitrator or the two arbitrators fail to appoint a third arbitrator.44 Section 7 of the Act45 provides for 

the intervention of the court in domestic arbitration to appoint an arbitrator on the application of any party to the 

agreement.  Section 7 of the Arbitration and Conciliation Act provides thus:  

7. (1) Subject to subsection (3) and (4) of this section, the parties may specify in the 

arbitration agreement the procedure to be followed in appointing an arbitrator.   

(2) Where no procedure is specified under subsection (1) of this section-  

(a) in the case of an arbitration with three arbitrators, each party shall appoint one arbitrator 

and the two thus appointed shall appoint the third, so however that-  

(i) if a party fails to appoint the arbitrator within thirty days of receipt of request to do so 

by the other party; or  

(ii) if the two arbitrators fail to agree on the third arbitrator within thirty days of their 

appointments, the appointment shall be made by the court on the application of any party 

to the arbitration agreement;  

(b) in the case of an arbitration with one arbitrator, where the parties fail to agree on one 

arbitrator, the appointment shall be made by the court on the application of any party to the 

arbitration agreement made within thirty days of such disagreement.  

(3) Where, under an appointment procedure agreed upon by the parties-  

a. a party fails to act as required under the procedure; or  

b. the parties or two arbitrators are unable to reach agreement as required under the procedure; 

or  

c. third party, including an institution, fails to perform any duty imposed on it under the 

procedure,  

any party may request the court to take the necessary measure, unless the appointment 

procedure agreed upon by the parties provides other means for securing the appointment.  

(4) A decision of the court under the subsections (2) and (3) of this section shall not be 

subjected to appeal.  

(5) The court in exercising its power of appointment under subsection (2) and (3) of this 

section shall have due regard to any qualifications required of arbitrator by the arbitration 

                                                           
37 Ibid, p. 418 
38 C. A. Johnson & O. shashore, Commercial Arbitration Law and International Practice in Nigeria, (Durban: LexisNexis, 

2011) p. 258  
39 CAP A18 LFN  
40 The subject matter of the dispute  
41 J. O. Orojo & M. A. Ajomo, op. cit. p. 316 
42 M.V Lupex v. Nig. Overseas Chartering & Shipping Ltd (2003) 15 NWLR (Pt 844) S.C. 469   
43 El-Assad v. Misr (Nig) Ltd (1968) NCLR 173 at 176  
44 J. O. Orojo & M. A. Ajomo, op.cit. p. 2    
45 Arbitration and Conciliation Act, op. cit. 



NWACHUKWU: An Appraisal of the Relationship between the Courts and Arbitral Process in Nigeria 

Page | 76 
 

agreement and such other consideration as are likely to secure the appointment of an 

independent and impartial arbitrator.  

 

Power to Compel the Attendance of Witnesses 

In arbitral proceedings, it is ordinarily expected that a party should attend the proceedings with his own witness. 

A witness of a party may voluntarily attend and testify at an arbitral proceeding either to give evidence or 

corroborate already adduced evidence, but sometimes a witness may not wish to attend voluntarily and it then 

becomes necessary to compel his attendance where the applicant who requires it shows that the evidence is 

relevant.46 Since the arbitral tribunal has no coercive power, it relies on the court to exercise such powers and 

assist the arbitral process by compelling attendance before any tribunal of a witness wherever he may be within 

Nigeria. It may also order to bring up a potential witness in prison for examination before the arbitrator. Section 

23 of the Act47 provides inter alia as follows:  

(1) The court or the judge may order that writ of subpoena ad testificandum or of subpoena 

duces tecum shall issue to compel the attendance before any arbitral tribunal of a witness 

wherever he may be within Nigeria.  

(2) The court or a judge may also order a writ of habeas corpus ad testificandum shall issue 

to bring up a prisoner for examination before any arbitral tribunal.  

  

The application for the issuance of the witness summons and attendance of the witness shall be made by the party 

to the arbitral proceedings who desires his attendance. 

 

Recognition and Enforcement of award 

At the end of the arbitral process, the tribunal gives an award which is binding on parties. Every arbitral award 

duly made is to be recognized as binding and is expected to be complied with.48  Section 31(1), (2) (a) (b) and (3) 

provides that- an arbitral award shall be recognized as binding, and subject to section 32 of the Act49, shall upon 

application in writing to the court, be enforced by the court. Also an arbitral award may, by leave of the court or 

a judge, be enforced in the same manner as a judgment or order to the same effect. By virtue of the above stated 

provision of section 31, it is obvious that an arbitral tribunal has no machinery for enforcing its award. The arbitral 

tribunal becomes functus officio on rendering of its final award50. This indeed has created a vacuum in the 

arbitration process which the Act has permitted the Court to fill up. Without a legal framework for recognizing or 

enforcing arbitral awards, the arbitration process would be of little value to anyone. An award will only be worth 

it for the winning party when such a party can enforce the stipulations of the award against the losing party51. For 

an award made pursuant to the Act to be enforceable, the award must be in writing, signed and dated, the reasons 

upon which it is based must be stated unless the parties agreed that the reasons are not to be given, and the place 

of the arbitration must be stated. The award must be published to all the parties. This means that it is the court that 

gives effect to the award made by the arbitration tribunal. An award which cannot be enforced at the end of the 

day is useless. Every arbitral award duly made is to be recognized as binding52 and is expected to be complied 

with. Thus, while Section 31(1) recognizes the award as binding, it is only upon application in writing to the 

court53 that it can be enforced. Nikki Tobi, opined that ‘an arbitral award per se lacks enforcement or 

enforceability…., and is a toothless dog which cannot bite until a court of law gives teeth to it54‘ 

  

Impeachment of Arbitral Awards  

This is another area where arbitration process is dependent on the court and has to relate with the court. The 

arbitral tribunal has no jurisdiction to impeach its own award save and except for ICSID awards. A party to the 

arbitral proceedings who is not satisfied with the award for any good reason has a right to apply to the court to set 

aside the award.55  Sections 29 and 30 of the Act56 clothe the court with the jurisdiction to impeach an arbitral 

award for reasons of misconduct, lack or excess jurisdiction. The combined effect of these sections allows a party 

who is aggrieved by an arbitral award57to, within 3 months from the date of the award or in a case falling within 

Section 28 of the Act, from the date the request for additional award is disposed of by the arbitral tribunal apply 

                                                           
46 O. Bamigboye, op. cit, p. 20  
47 Arbitration and Conciliation Act, op. cit. 
48 G. C. Nwakoby, op. cit. p. 431 
49 Arbitration and Conciliation Act, op. cit. 
50 G. C. Nwakoby, op. cit. p. 431 
51 O. Bamigboye, op. cit. p. 23  
52 This is the basis for res judicata which means that an award operates as a bar to a fresh arbitration or action unless an award 

as been nullified. See Ajogwu F. op. cit. page 130. According to Oguntade JCA in Okpuruwu v.  Okpokam supra, ‘…it operates 

as estoppels per rem judicatam’  
53 Emphasis mine 
54 Arbico Nigeria Ltd v. Nigerian Machine Tools Ltd  (2000) 15 NWLR (pt 789) 1 CA at p.32 
55 G. C. Nwakoby, op. cit. p. 429 
56 Arbitration and Conciliation Act, op. cit. 
57 This must be a party to the agreement and consequently to the arbitral award and not under any contractual incapacity.   



 African Customary and Religious Law Review 1 (2020) 

Page | 77  
 

to the court to set aside the award. If the application is not made within the stated time limit, the right is lost and 

barred.58 Like a judgment, there is a rebuttable presumption in favour of an arbitral award and the burden of proof 

is on the party who is aggrieved and wishes to set aside the award59 and such application must be made by a party 

to the agreement or his personal representative60  

 

Protection of the Res 

The arbitral tribunal has a right to order for the protection of the property forming the subject matter of arbitration 

so as to ensure that the proceeding is not rendered nugatory by the destruction of the subject matter or the scale 

of same by either of the parties to the arbitration agreement or their agents61. Section 13 of the Act62 vests the 

tribunal with powers to order any party to take such interim measures of protection as the arbitrator may consider 

necessary in respect of the subject matter of the dispute and request any party to provide appropriate security in 

connection with the subject matter.63 The implication of this provision is that the Arbitral Tribunal shall have the 

power to make interim orders directing either party to preserve the res pending the completion of the proceedings. 

It should be noted that this provision applies only where the property to be protected is in the custody of one of 

the parties.  Where the property is in the hands of a third party, the Arbitral Tribunal (for obvious reasons) has no 

such power against a third party. This means that power and jurisdiction of the arbitration tribunal to make order 

to protect the res is not absolute. This is because when the order is to affect a third party then the arbitral tribunal 

lacks the jurisdiction to do so. The tribunal only has jurisdiction to make order with respect to the parties appearing 

before it and no other. The tribunal has no right to make orders which could bind third parties64. In this situation 

the court will come to the rescue of the arbitral process. An application has to be made to the court for it to make 

an interlocutory order protecting the properties forming the subject matter of the arbitration. Article 26 (3)65 of 

the Arbitration and Conciliation Act which applies by virtue of Section 53 of the Act provides that ‘...A request 

for interim measures addressed by any party to court shall not be deemed incompatible with the agreement to 

arbitrate, or a waiver of that agreement. Such interim measures includes ‘measures for the conservation of the 

goods forming the subject-matter in dispute, such as ordering their deposit with a third person or the sale of 

perishable goods’ This provision can also be extended to a situation where a party as a first step approaches the 

court for an order of preservation or conservation of the res pending the constitution of the arbitral tribunal.66 

 

Refusal of Recognition and Enforcement of award 

Section 32 of the Act provides for any of the parties to an arbitration agreement to request the court to refuse 

recognition or enforcement of the award; this application must be made at any time after the award is made, 

especially as the application and order for enforcement may be made ex parte.67 The grounds upon which the 

court is to refuse recognition or enforcement of the award is not stated under this section, nevertheless Section 

52224 provides for grounds upon which an application for recognition and enforcement may be refused in 

international arbitrations; and the Courts have in the exercise of their discretion applied them to domestic 

arbitrations in Nigeria. 

 

Remission of Award 

Section 29(3)68 provides for the remission of an award to the arbitrators in limited circumstances. It provides that 

where an application is brought before the court for setting aside an award under subsection (1) of this section, 

the court may at the request of one of the parties, suspend proceedings for such period as it may determine to 

afford the arbitral tribunal an opportunity to resume the arbitral proceedings or take such other action to eliminate 

the ground for setting aside of the award.69 This provision shows that the court has a statutory jurisdiction to remit 

                                                           
58 Araka v. Ejeagwu (2000) 15 NWLR (pt. 692) 684; United Insurance v. Stocco (1973) 8 NSCC. 96; Middlelemis & Gould v. 

Hartlepool Corpn (1971) I WLR. 1646; (1973) All E.R. 175   
59 Section 29(2) Arbitration and Conciliation Act ‘…if the party making the application furnishes proof that the award contains 

decisions on matters which are beyond the scope of submission to arbitration…’    
60 O. Bamigboye, op. cit. p. 22 
61 O. Bamigboye, op. cit. p. 23  
62 Arbitration and Conciliation, op. cit  
63 This is in order to maintain the status quo as between the parties to prevent one party suffering detriment against the other. 

It could be by a Mareva injunction, appointment of receivers, detention, custody and preservation.  
64 G. C. Nwakoby, op.cit. p. 434 
65 (borrowed from Article 26 of the UNCITRAL Arbitration Rules)  
66Busari O. 2012. Protecting the Res In Arbitration – Recent Developments In International Commercial Arbitration. 

Arbitration and ADR Committee Session of the 6th Business Law Conference of the Nigerian Bar Association Section on 

Business Law, Lagos, Nigeria 17th-20th June, 2012.  
67 K.S.O & Allied Products Ltd. v. Kofa Trading Co.  Ltd. (1996) 3 NWLR 244 at page 254 where the Supreme Court approved 

the use of originating Notice of Motion and followed earlier decisions that ‘…where it is sought to enforce a right conferred 

by a a statute and in respect of which no rules of practice and procedure exist, the proper procedure is an originating Notice 

of Motion. 224 Part III of the Arbitration and Conciliation Act  
68 Arbitration and Conciliation Act, op. cit. 
69 J. O. Orojo & M. A. Ajomo, op. cit. p. 325 



NWACHUKWU: An Appraisal of the Relationship between the Courts and Arbitral Process in Nigeria 

Page | 78 
 

the matters referred for the reconsideration of the arbitrator. It has been stated that the effect of this remission to 

the arbitrator is that the award may be so altered that there is no more ground to set aside under this section and 

that a party may only make the request where there is a pending proceeding for setting aside the award.70 This 

work agrees that this will help save some awards from failure.  

 

3. Conclusion and Recommendations 

Flowing from the ongoing, it is crystal clear that arbitration process has a lot of relationship with the court. It is a 

process which shall be meaningless and unattractive without its relationship with the court. This is because the 

arbitral tribunal has a lot of limitations imposed on it by the law. The courts assist the arbitral tribunal in those 

areas where it has limitations. It is discovered in the course of this work that, the courts are involved in the process 

of arbitration from commencement to recognition and enforcement of the awards. Most of the courts and the court 

systems are supportive rather than interfering with the arbitral process. The Nigerian judicial system and its 

enabling legal framework can be conveniently be described as one supportive system, this is evidence in current 

trend of our various High Court Civil Procedure Rules across the 36 state. It is therefore, a truism that the court 

can exist without arbitration but the arbitration process cannot exist without the court. This work recommends that 

the involvement of the court in arbitral process should be within the ambits of the Act and should not be allowed 

to amount to interference in order that the arbitral process will lose its sanctity as an independent and efficient 

private dispute resolution process. There is need for a more harmonious relationship between the court and the 

arbitral process. In view of the foregoing, this work recommends the following in other to harmonize the 

relationship between the courts and the arbitral process: The Act needs to be amended to increase and widen the 

powers of the arbitral tribunal in other to reduce their areas of limitations. For example, as arbitrators have power 

to make interim order preserving the res, the power to make interim order should not be limited to the parties in 

arbitration. It should be widened to also include third parties. This will also go a long way to reduce the 

involvement of court in arbitral process. It is recommended that a provision which allows the tribunal to adopt 

procedures suitable to the circumstances of the particular case should be inserted in our Act. There is a need to 

further reinforce the arbitral process in order to reduce the degree of intervention in the arbitral process and to 

ensure that the concept of party autonomy is not restrained in the practice of arbitration.  

 

 

                                                           
70 O. Bamigboye, op. cit., p. 23 


