By Abdulkabir A. Badmos, Esq.
Over the years, yet-to-be litigants have agreed in advance on various modes by which any disagreement that may arise from their contractual relations may be settled. Arbitration is one of these alternative dispute resolution mechanisms which allow parties to settle their differences outside of the formal courtroom, with relaxed rules and greater chances of arriving at a win-win situation. This is in clear contrast with the “winner takes all” procedure obtainable in the courtroom litigation.
The Nigerian legal system has also seen the need to encourage the use of these alternative dispute resolutions and our jurisprudence is rich with several holdings of appellate courts endorsing these alternate techniques of disputes resolution as part of concerted efforts to attain substantial justice. The reasoning behind this is not far-fetched as many of these alternative dispute resolution mechanisms are products of contract. Thus, if the parties have, at the time of entering a contract, agreed that every or a specific type of disputes that may arise in the course of their relation must be resolved by arbitration, the law ought to enforce that their desire without a second thought.
Despite these seemingly settled judicial positions however, enforcement of arbitral awards in Nigeria still poses a significant challenge. Sometimes, it begs the question whether there was any merit in first submitting to arbitration and thereafter commencing the procedure for the enforcement and recognition of an award – a process which may end up ultimately in a litigation up to the Supreme Court.
Parties who are aggrieved by an award proffer all manner of excuses, many bordering on absurdities, to call on the High Court and later the appellate courts to set aside an arbitral award published by an Arbitrator. Some of these cosmetic conspiracies were resolved in the twin appeals before the Court of Appeal in Zamtrac Management & City Investment Ltd v. Hajiya Halima Babangida (CA/ABJ/CV/226/2022 & CA/ABJ/CV/494/2022, respectively).[1]
In this piece, the writer examines some of these legal issues and the recent resolution of the court on the appropriate mode of setting aside an arbitral award.
BRIEF FACTS OF THE CASE LEADING TO THE APPEALS
By a Property Development Agreement, the parties agreed to mutually beneficial terms contained in the said agreement. The contract was for the development of six (6) units of five-bedroom (5) terrace structures on the Respondent’s land. The Appellant, amongst other things defaulted in meeting up with the contractually agreed duration of construction and unilaterally extended the time for delivery of the houses to the Respondent. Despite its own extension, the Appellant still failed to meet its own newly set deadlines. The Respondent therefore, by a notice, terminated the contract.
Further aggrieved by the breach of contract, the Respondent commenced an action at the High Court of the Federal Capital Territory, Abuja sitting at Kubwa[2], against the Appellant – the Developer.
The FCT High Court, sitting in Kubwa, referred parties to arbitration, and the Appellant participated in the arbitral proceedings. Upon the conclusion of arbitral proceedings, an award was published in favour of the Respondent.
Consequently, upon the publication of the award, in compliance with the rules of the lower court as well as the Arbitration Rules, the Respondent filed a motion on notice before the High Court of the FCT sitting in Kubwa, which referred the matter to arbitration, to commence recognition and enforcement of the Final Award.
The Appellant (Zamtrac) served with the application, and in response to the application for enforcement of the award, the Appellant filed a counter affidavit/written address thereto on 10th March, 2021.
However, despite the pendency of these proceedings, the Appellant in the same breadth also proceeded to file an Originating Motion with a new suit number at FCT High Court, sitting in Gudu, Abuja, before
another Judge purportedly seeking to set aside the award of the Arbitrator AND staying the proceedings of the High Court in Kubwa.
Expectedly, the Respondent objected to the procedure adopted by the Appellant in filing a new suit but the Appellant insisted that the procedure was appropriate.
The application for enforcement and recognition of arbitral award before the FCT High Court in Kubwa therefore proceeded to hearing[3] and the court delivered a considered ruling recognizing and enforcing the arbitral award against the appellant.
The Appellant’s new suit (originating motion) before the FCT High Court sitting in Gudu was also heard on its merits and eventually declared an abuse of court process in view of the pendency of the proceedings to the knowledge of the Appellant, about the existence of those proceedings.
It is against these two rulings of the FCT High Court that the Appellant appealed to the court of appeal seeking to set aside the recognition and enforcement of the award of arbitrator in CA/ABJ/226/2022 and the ruling dismissing its originating application to set aside the award in CA/ABJ/494/2022, as abuse of court process.
ARGUMENTS AT THE COURT OF APPEAL
In respect of the its new suit that was dismissed on the ground of being an abuse of court process, the Appellant argued, quite correctly, that it is trite that where a legislation has prescribed a particular means of doing a thing, that mode and no other is acceptable in law.
It further relied on the provisions of section 29 and 30 of the Arbitration and Conciliation Act, 1988 and other judicial authorities[4] to submit that to enforce an arbitral award, an originating motion ought to be filed, instead of a motion on notice. It therefore urged the Court of Appeal to set aside the decision of the trial court as being flawed.
The Respondent on the other hand contended that the procedure for the enforcement and/or setting aside of an award is clear. She relied on the provisions of sections 29 and 30 of ACA as well as Order 43 Rules 1 (1) and (2) of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2018 which provides for the mode of bringing an application before the FCT High Court.
Specifically, it was argued that the rules of FCT High Court provides for manner of application for setting aside an award. Order 43 Rule 5
(1) of the Rules provides as follows:
“(1) Every motion on notice to set aside, remit or enforce an arbitral award shall state in general terms the grounds of the application and where any such motion is based on evidence by affidavit, a copy of the affidavit intended to be used shall be served with the notice of motion.”
(Underlining ours for emphasis)
Faced with these submissions, the Court of Appeal had to determine the intendment of the law makers as well as the drafters of the rules of court regarding the appropriate manner of commencing proceedings to either enforce or set aside an arbitral award; whether it is by an originating motion or by a motion on notice.
RESOLUTION OF THE COURT
The Court, in a unanimous decision delivered by H.A. BARKA, PJCA, held at pages 8-13 of the judgment as follows:
“In the resolution of this issue, it is my humble view that the area in dispute is indeed very narrow, being that the dispute flows from whether by the intendment of sections 29 and 30, of the Arbitration and Conciliation Act, an application for the enforcement of an arbitral award can only be
commenced by way of an originating summons as against a motion on notice. For proper appreciation of the two sections, I reproduce the contents of the two provisions thusly…. From a holistic understanding of the cited sections of the law, it is evident that the submissions of the learned Appellant’s counsel cannot be sustained. In the recent decision of the Apex Court in A.G. bayelsa
v. Odele (2025) 4 NWLR (Pt. 1982) 385, relying on its earlier decision in Nitel Ltd v. Okeke (2017) 9 NWLR (Pt.1571) 439 the fact that arbitration proceedings are sui generis was emphasized. An arbitral award is regarded as a final and conclusive judgment on all matters referred and the courts are enjoined as far as possible to uphold and enforce arbitral awards owing to the fact that it is a mode of dispute resolution voluntarily agreed by the parties. The method for the initiation of an application is governed by the rules of court, and as rightly argued by the learned counsel for the Respondent, the provisions of order 43 Rule 1 (1) and (2) of the High court of the Federal Capital Territory (Civil Procedure) Rules, 2018…. Furthermore, specifically providing for an application to set aside an Arbitral award, the manner of bringing the application to the court was stated in Order 43 Rule 5 (1) of the Rules as follows…. The learned counsel for the Appellant’s insistence that the application ought to have been made by way of an originating motion is clearly indefensible and unsustainable… I fail to see any iota of merit in this appeal, and accordingly dismiss the same.”
Her Ladyship, E. S. Nyesom-Wike, JCA, in her contribution to the lead judgment, held at page 4 thereof thus:
“For the records, Order 43 Rule 5 (1) of the High Court of the Federal capital Territory (Civil Procedure) Rules, 2018 provides that enforcement of award or application to set aside has to be by motion on notice. This method and no other, is allowed. Therefore the Appellant has relied on authorities unfavourable to it.
It should be noted that had there been no pending suit and the Respondent commenced his enforcement of the arbitral award by motion on notice, that motion on notice, whether designated as “Originating Motion” or not, remains an originating motion. Originating motion is just a motion that originates a proceeding or commences a suit. Whether the person commencing the suit adds “Originating” or not, does not make it less of an originating motion. What I am trying to say is that the word “originating” ahead of the motion on notice or even motion ex parte is only to indicate that it is an originating process and not just a mere motion. However, a motion is a motion. In the same vein, had there been no pending suit or enforcement proceeding for the award, any motion on notice to set aside the award, would be an originating motion, whether designated “motion on notice” or “originating motion”. Whatever be the case, there is no law that states that to set aside, it has to be done by a fresh action. Issue one of the Appellant, completely lacks merit.”
From the above holding of the Court of Appeal, it is without doubt that the Court has taken the view that going by the express provisions of the rules of the FCT High Court, a motion on notice is the appropriate mode of enforcement or setting aside an arbitral award. Mutandi mutantis, the trite position that where the law has prescribed a means of doing a thing, that means and no other is acceptable; applies.
It is worth noting that the obiter of Nyesome-Wike JCA seeks to deepen the jurisprudence when her Ladyship stated what ought to be the position in situations that are not exactly on all fours with the instant case. The learned justice’s declaration that “a motion is a motion” though may be wrongly construed as conflicting with her previous position that the mode recognized by law to set aside an award is by a motion on notice; it is indeed illustrative of other situations when a suit may not be pending and a party wants to challenge such award. Filing a Motion on Notice, even if it is not christened “Originating Motion on Notice” will suffice.
CONCLUSION
It is therefore safe to conclude that as it relates to the making of an application for the enforcement of an arbitral award, the acceptable mode is by a motion on notice.[5] Ditto, for an application to set aside an arbitral award. This, in the writer’s respectful view, is among the procedural challenges to the enforcement of arbitral awards that ought to be restricted by legislation.
Otherwise, for as long as seemingly ridiculous arguments as these are allowed in relations to enforcement of arbitral award proceedings, it defeats the entire essence of the arbitration which seeks to provide a more time/cost-efficient means of resolving parties’ disputes.
In any case, like the appellate court had stated in this case, a motion is a motion. It is the circumstance upon which the party is filing a “motion” that will be used to determine whether it is “originating’ or not.
Abdulkabir A. Badmos, Esq., a Legal practitioner writes from Abuja, Nigeria. aabadmos08@gmail.com, Tweets on X (formerly Twitter) at @MrBadmos_
18th August, 2025.
[1] Judgments were delivered in the two appeals on 11th April, 2025.
[2] Stating the specific judicial division(s) in this piece is important given that issues of abuse judicial process was the crux of Appeal No.: CA/ABJ/CV/494/2022.
[3] It is worthy of note that the Appellant’s counsel failed to adopt his processes in this suit on the ground that he does not have his client’s instructions to do so. The application was therefore largely unchallenged.
[4] KSUDB v. Fanz Const. Co. LTd (1990) 4 NWLR (Pt.142) 1.
[5] This position will apply to arbitral awards sought to be enforced/set aside in the Federal Capital Territory, Abuja Nigeria or any state that has provisions in pari materia in their respective State High Court Rules.