NIGERIA Trends and Developments Contributed by: Muyiwa Ogungbenro and Stephanie Agbasi, Olajide Oyewole LLP
Courts respecting the seat: territorial limits on intervention A second, and arguably more consequential, trend concerns the limits of Nigerian courts’ supervisory jurisdiction over foreign-seated arbitrations. In Oil & Industrial Services Ltd v Hempel Paints ( South Africa ) ( Pty ) Ltd , a Nigerian company sought to have a High Court in Rivers State set aside an award rendered in a London-seated arbitration, alleging unfairness and arbitrator misconduct. The High Court declined juris - diction, holding that it had no competence to annul an award seated outside Nigeria. On appeal, the Court of Appeal upheld that reasoning, drawing a sharper line between two concepts that are often conflated in practice: the power to annul (set aside) an award – which belongs exclusively to the courts of the seat – and the power to refuse enforce - ment of a foreign award on recognised grounds, which remains available to Nigerian courts regardless of seat. This decision reinforces that choice of seat carries real consequences: a Nigerian court will not act as a supervisory court for an arbitration it did not host, even where a Nigerian party is directly affected by the outcome. Penalising bad-faith and belated challenges Nigerian courts have also shown a growing willing - ness to look past the technical form of a challenge to assess the conduct of the party bringing it. In Pan Ocean Oil Corporation ( Nigeria ) Limited v KCA Deutag Drilling GMBH and KCA Deutag ( Nigeria ) Limited , a matter that proceeded through the courts and ulti - mately to the Supreme Court, a party attempted to challenge a consent award on grounds of illegality. The party challenged the award despite having par - ticipated fully in the arbitration without raising that objection, and all through an application to register the award as a judgment. The Supreme Court was unsparing in its assessment, describing the attempt to resile from an award that the party had effectively performed as reprehensible conduct pursued in bad faith. The practical lesson is that timing and conduct matter as much as legal sub - stance: courts are increasingly attentive to whether a party is using a set-aside application as a genuine procedural safeguard or as a tactical device to escape
Nigerian Courts and Arbitration: How Recent Case Law Is Shaping the Post-AMA Landscape Introduction The Arbitration and Mediation Act 2023 (AMA) repealed the Arbitration and Conciliation Act with a framework designed to align Nigeria with global best practice. The Act introduces emergency arbitrators, third-party funding, a novel award review tribunal and clearer enforcement procedures. However, legislation only tells half the story; the real measure of reform is how the courts apply it. Three years into the AMA era, with many cases under the AMA regime still making their way to the appellate courts, a growing body of case law is giving practitioners a clearer picture of where Nigerian courts will defer to arbitral tribunals and where they will not. This briefing reviews the key trends. A high bar for “misconduct” challenges One of the most persistent grounds for resisting enforcement or seeking to set aside an award is an allegation that the arbitrator committed “misconduct”. The term is inherited from earlier legislation and has never been tightly defined, leaving room for parties to stretch it to cover almost any adverse ruling. Nigerian courts have been steadily narrowing that room. The Court of Appeal’s decision in NICON Insurance Ltd v Brighthouse Estate Ltd is instructive. Bright - house had secured an award against NICON in a prop - erty development dispute. NICON sought to set the award aside, arguing that the arbitrator exceeded his jurisdiction and mishandled the evidence – essentially, that the tribunal got it wrong. Both the High Court and the Court of Appeal rejected the challenge, declining to treat disagreement with an arbitrator’s evaluation of evidence as “misconduct” capable of vitiating an award. The message to practitioners is clear: courts will not use a misconduct challenge as a backdoor merits appeal. The High Courts and the Federal High Courts have also handed down several decisions since the AMA came into force. Many of them went the same way. Setting aside an arbitral award on grounds of miscon - duct remains difficult to establish.
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