NIGERIA Law and Practice Contributed by: Adeyinka Aderemi, Chinasa Unaegbunam, Omono Blessing Omaghomi and Ibukun Enigbokan, Streamsowers & Köhn
Tax Disputes Tax disputes are considered not arbitrable in Nige - ria. In Esso Exploration and Production (Nig) Ltd v FIRS [2017] LPELR-51618 (CA), the Court of Appeal decided that tax disputes are not arbitrable in Nigeria because tax is a matter regulated by statute and is a matter of public interest that cannot be settled by arbitration. Public Policy Considerations Regard would also be had to whether the contract sought to be enforced is contrary to public policy. For instance, if the subject matter of the contract is illegal, the Nigerian courts would refuse to enforce the award on the basis that it is contrary to the public policy of Nigeria to enforce illegal contracts. Time Limitation Section 8 (1)(d) of the Limitation Law of Lagos State (with similar provisions in the Limitation Laws of other states in Nigeria) provides that every application to enforce an arbitral award must be brought within six years from the date the award was given. The implica - tion is that a party cannot successfully bring an action for the enforcement of an arbitral award outside the statutory six-year limit. Judicial Interference: Merit Reviews of Arbitral Awards and Delays Nigeria recently enacted the Arbitration and Media - tion Act, 2023 (AMA), repealing the Arbitration and Conciliation Act, Cap A18, Laws of the Federation of Nigeria 2004 (ACA). The Act clearly seeks to eliminate the frequent interference by the courts in arbitral pro - ceedings and awards. Under the ACA and the Act, the national courts are precluded from interfering in arbitral proceedings and awards, except under strin - gent and limited grounds provided in the Act itself. Equally, the court cannot consider the merit of the arbitral award as the court is not sitting in appellate jurisdiction over the arbitral proceedings and award. Under the ACA, practitioners had frequently used the omnibus grounds of “misconduct of the arbitrator” or “an error on the face of the award” to ask the court to set aside awards. These omnibus grounds then became an unruly horse and weaponised delays to the enforcement of awards in the national courts.
• the judgment debtor satisfies the registering court that either an appeal is pending or they are entitled and intend to appeal against the judgment; or • the judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering court. The 2004 Act Under the 2004 Act, a judgment debtor may challenge the registration and enforcement of a foreign judgment in Nigeria on the grounds that: • the judgment sought to be registered and enforced is an interim or interlocutory order; • the judgment was obtained from an inferior court in the foreign country; • the judgment is not in respect of a monetary sum or, where it is in respect of a monetary sum, the sum is payable in respect of taxes or other charges of a similar nature; or • at the date of the application, the judgment had been wholly satisfied, or the judgment could not have been enforced by execution in the country of the original court. 4. Arbitral Awards 4.1 Legal Issues Concerning Enforcement of Arbitral Awards The legal issues relating to enforcement of an arbitral award are as follows. Arbitrability of the Subject Matter The arbitrability of the subject matter of the dispute is one of the key considerations by the courts in Nigeria
in the enforcement of arbitral awards. Invalidity of the Arbitration Agreement
Where the arbitration agreement is not valid under the law indicated by the parties in their contract or for whatever reason under the law of the country where the award was made, the arbitral award will not be enforceable.
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