Enforcement Of Arbitral Awards Under The Provisions Of The Arbitration And Mediation Act, 2023 And Other Extant Statutes In Nigeria

INTRODUCTION:

Arbitration is an alternative dispute resolution mechanism that is duly recognized by the law. The Arbitration and Mediation Act, 2023 defines 'Arbitration' to mean "a commercial arbitration whether or not administered by a permanent arbitral institution." This definition does not state the meaning of the word 'Arbitration' but merely refers to arbitration as commercial arbitration. This definition is not helpful as it does not assist anyone to know the meaning of Arbitration. Consequently, we will have to make reference to other sources towards finding out the meaning of the word 'Arbitration.'

Halsbury's Laws of England ² defines Arbitration thus:

"Arbitration is the reference of a dispute or difference between not less than two (2) parties for determination after hearing both sides in a judicial manner, by a person or persons other than in Court of competent jurisdiction."

Barnstein in his Book Handbook of Arbitration Practice ³, defined arbitration as:

"... a mechanism for the resolution of disputes which takes place, usually in private

pursuant to an agreement between two or more parties under which the parties

agrees to be bound by the decision to be given by the Arbitrator according to law

or if so agreed, other considerations, after a fair hearing, such decision being enf-

orceable at law."

The Supreme Court of Nigeria per Ogbuagu, JSC (as he then was), in NNPC vs. Lutin Invest. Ltd. ⁴, elucidated the meaning and nature of Arbitration as follows:

"An Arbitration is the reference of a dispute or differences between not less than two (2) parties for determination, after hearing both sides in a judicial manner, by a person or persons other than in Court of competent jurisdiction. The Arbitrator, who is not an umpire, has the jurisdiction to decide only what has been submitted to him by the parties for determination. If he decides something else, he will be acting outside his authority and consequently the whole proceedings will be null and void and of no effect. This will include any award he may subsequently make."

Broadly speaking, arbitration is a contractual proceeding whereby the parties to any controversy or dispute, in order to obtain an inexpensive and speedy final disposition of the matter between them, select Judge(s) of their own choice and by consent submit their controversy to such Judge(s) for determination, in the place of the tribunal provided by the ordinary process of law. The Judge(s) in arbitral proceedings are called Arbitrator(s). It is the Arbitration Agreement that empowers the Arbitral Tribunal to hear, determine and resolve the dispute. In the event that the contract is bereft of this agreement, there can be no Arbitral Tribunal or Panel. The Arbitral Agreement is always part of the main contract which provides the rights and duties of the parties for the resolution of disputes within the transaction/contract.

The appointment of an Arbitrator must be a consequence of an already existing dispute between the parties. The Arbitral process seeks to resolve disputes between the parties to the Arbitration Agreement. The requirement of an already existing dispute is a key element of the arbitral process. There must be an actual dispute which has arisen; otherwise, there will be no arbitration. It is the parties who choose the Arbitral Tribunal or select a process by which the Arbitral Tribunal may be constituted in the arbitration agreement or in rules of arbitration which the parties have adopted. In default of any process being specified or agreed, the Courts at the seats of Arbitration may have to appoint the Arbitral Tribunal. The relationship between the parties and the arbitral tribunal is founded in contract although the role of the arbitral tribunal is quasi-judicial.⁵

The Arbitral Tribunal must reach an award and such award enrolled and made available to the parties. An arbitral Tribunal is obliged to resolve the dispute and deliver an award. Once an award is made or delivered, the Arbitral Tribunal becomes functus officio in respect of the matters that were decided within the award and the issues are thereafter res judicata. The Arbitral award is final and binding as to the matters which it decides. The binding nature of the award owes its existence to the law of the seat of arbitration. The decision of an Arbitrator is final and legally binding on all the parties involved in the arbitral proceedings. An award must comply with any requirements within the arbitration Agreement or any applicable rules and the law of the seat of the arbitration.⁶ It must also be certain that the parties can ascertain from the award what is required of them.⁷

Notwithstanding the foregoing, the whole essence and value of an Arbitral Award lies in its enforcement, that is, for the specific pronouncements and reliefs granted in the said Award to be practically carried into effect. Without the enforcement of an Arbitral Award, the whole proceedings of the arbitration will be an exercise in futility. An arbitral award duly entered by an Arbitral Tribunal is to be recognized as binding and complied with by the parties to the Arbitration agreement. However, any failure to comply with the binding nature of the award raises the question of recognition and enforcement, which the process thereof will be carried out or pursued by the victorious party.

The Arbitration and Mediation Act, 2023, being the extant Arbitration Statute in Nigeria provides in section 57 (1) that an Arbitral Award must be recognized by a Court of competent jurisdiction before it can be enforced by the same court. It is clear that although the words 'recognition' and 'enforcement' are connected by the conjunction 'and' in the same statutory provision, the two words do not mean the same thing. Legally, they evoke dissimilar denotation and connotation. A court's 'recognition' of an Arbitral Award means that the Court acknowledges that the award is valid and binding as well. It gives a protective shield by guarding and protecting its content as it cannot be re-litigated or re-arbitrated on similar terms by the same parties. On the other hand, 'enforcement' denotes the process through which an Award transmutes into the judgment of the court so that the victorious party will reap the fruit of the Arbitral Award. This will expose the party that lost to a possible contempt of court, in the event of disobedience or non-compliance with the judgment of the court.

PROCEDURE FOR THE RECOGNITION AND ENFORCEMENT OF A DOMESTIC ARBITRAL AWARD UNDER THE ARBITRATION AND MEDIATION ACT, 2023

As earlier stated, an Arbitral Award is final and binding on the parties to the arbitration. However, an Arbitral Tribunal has no power to enforce its Arbitral Award. This is where the Court of law comes in. It is on this basis that the Arbitration and Mediation Act, 2023,⁸ provides the procedure for the recognition and enforcement of an Arbitral Award as follows:

(1) "An Arbitral award shall, irrespective of the country or state in which it is made, be

recognized as binding, and on application in writing to the Court, be enforced by

the Court subject to the provisions of this section and section 58 of this Act".

(2) "The party relying on an award or applying for its enforcement shall supply:

(a) the original award or a certified copy of it;

(b) the original arbitration agreement or a certified copy of it; and

(c) where the award or arbitration agreement is not made in the English language, a

certified translation of it into the English Language".

(3) "An award may, by leave of the Court, be enforced in the same manner as a judgment

or order to the same effect".

In furtherance of the above, the Arbitration Proceedings Rules, 2020 provides thus: ⁹

"(1) An application to enforce an award or an interim measure of protection in the same

manner as a judgment or order shall be made by Originating Notice of Motion".

(2) The supporting Affidavit shall -

(a) exhibit the arbitration agreement and the original award or decision containing

the interim measure of protection, or in either case certified copies of each;

(b) state the name and the usual or last known place of abode or business of the Applicant

and the person against whom it is sought to enforce the award or interim measure of

protection; and

(c) state, as the case may require, either that the award or interim measure of protection

has not been complied with or the extent to which it has not been complied with at the

the date of the application".

(3) An award made by an Arbitrator or a settlement reached at the Abuja Multi-Door

Courthouse or at any lawfully registered ADR institution may by leave of the Court

be enforced in the same manner as a judgment or order of Court."

Similarly, the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2025, provides thus: ^x

"(1) "Subject to the provisions of Arbitration Proceedings Rules made pursuant to the Arbi-

tration and Mediation Act, every motion on notice to set aside, remit or enforce an ar-

bitral award shall state the grounds of the application".

(2) The party relying on an award, or applying for its enforcement shall provide:

(a) the duly authenticated original award or a certified copy; and

(b) the original arbitration agreement or a certified copy.

(3) An award made by an Arbitrator or a settlement reached at the Abuja Multi-Door Co-

urthouse or at any lawfully registered ADR institution may by leave of the Court be en-

forced in the same manner as a judgment or order of Court."

(4) An application to set aside or remit an award may be made within 3 months after such

award was published."

The above reproduced provisions of section 57 of the Arbitration and Mediation Act, 2023; Order 7, Rule (1) and (2) of the Arbitration Proceedings Rules, 2020; and Order 30, Rule 5 (1) – (4) of the High Court of the Federal Capital Territory Civil Procedure Rules, 2025, clearly provide for the procedure for the recognition and enforcement of a domestic Arbitral Awards, that is, arbitral awards delivered by Arbitral Tribunals which held their arbitral proceedings and delivered their awards in Nigeria. By virtue of the above provisions, the first step that a person who desires the Court to recognise and enforce an Arbitral award will take is to file a Motion on Notice in the High Court of the Federal Capital Territory, the High Court of any State in Nigeria or the Federal High Court, wherein he/she will seek the leave of the Court to recognise and to enforce the said Arbitral Award. The aforesaid statutory provisions did not make any mention of an Ex parte Motion; hence a Motion Ex parte is not the type of Motion prescribed for the recognition and enforcement of an Arbitral Award in Nigeria. It has been held by several decisions of the superior courts in Nigeria, one of which is the case of CITEC INTERNATIONAL ESTATES LTD. vs. FEDERAL HOUSING AUTHORITY (F.H.A.)^xi where the Appellate Court held, inter alia, that a Motion Ex parte is not an appropriate procedure for an application for the recognition and enforcement of an Arbitral Award. A Motion Ex parte is not a prescribed procedure for an application for the enforcement of an Arbitral Award because it does not afford the Respondent an opportunity to know and then respond or react to the Applicant's application for the recognition and enforcement of an Arbitral Award.

The procedure for application for the recognition and enforcement of arbitral award is by Motion on Notice which will have the mechanism of putting the adverse party on notice of the pending application. The Courts have repeatedly held that an application for the recognition and enforcement of arbitral award must be through an Originating Motion or Motion on Notice with an Affidavit in support thereof and certain documents attached to the said Affidavit. We refer to the Court of Appeal's decision in EMERALD ENERGY RESOURCES LTD. vs. SIGNET ADVISORS LTD.^xii The aforesaid cited and quoted provisions of the Arbitration and Mediation Act, 2023, the Arbitration Proceedings Rules, 2020 and the High Court of the Federal Capital Territory Civil Procedure Rules, 2025, further provides that an Applicant to the Court for the recognition and enforcement of an Arbitral Award must attach to the Affidavit in support of the said application the following documents, which are: the original award or a certified copy of it; the original arbitration agreement or a certified copy of it; and where the award or arbitration agreement is not made in the English language, a certified translation of it into the English Language.

It is worthy to note that the said cited and quoted provisions of the Arbitration and Mediation Act, 2023, and that of the High Court of the Federal Capital Territory Civil Procedure Rules, 2025, on the power of recognition and enforcement of arbitral awards by the Court appear quite simple. But, the above innocuous provisions may still give rise to other legal questions. In COMMERCE ASSURANCE LIMITED. vs. BURAIMOH,^xiii, the enforcement of the arbitral award was challenged, among other grounds, that the arbitration clause as contained in clause 8 of the Policy of Insurance does not constitute a valid submission to arbitration and that the clause does not confer jurisdiction on the Arbitrator consented to by both parties. There was also a contention whether the terms of reference of an Arbitrator need to be contained in a single or formal document. In this case, both the Oyo State High Court and the Court of Appeal found for the Appellant. However, the Supreme Court held differently. Nnaemeka-Agu JSC (as he then was), who delivered the lead judgment of the apex Court, held, inter alia, as follows:

"Although, it is the law that to constitute a proper arbitration which the Court can enfor-

ce, there must be an agreement to submit the matter to arbitration. It is equally true that

a policy of insurance constitutes a contract between the Insurer and the Insured. A clau-

se in such a policy such as that dated 20th July, 1976, which provides that any dispute as

to a claim by the insured against the Insurers shall be referred to arbitration is a sufficie-

nt agreement to submit the dispute to arbitration, and any award by an arbitrator so ap-

pointed shall be binding on both parties thereto. It is important to remember that when

an award is presented before the Court for purposes of enforcement; it is actually like co-

mmencing a new proceeding as the motion on notice then becomes the originating process".

The Court is statutorily bound to grant an Applicant's application for the recognition and enforcement of an arbitral award because the successful party at the Arbitral proceedings ought to be allowed to enjoy the fruit of his/her victory at the arbitral proceedings, unless valid grounds exist for such application to be refused.¹⁴ Upon the recognition of the said Arbitral award, the Court ought to grant an order that will ensure that the specific reliefs granted in the Arbitral award in favour of the Applicant by the Arbitral Tribunal comes to fruition or becomes a reality. This the Court can do by granting a Garnishee Order Nisi, a Writ of Attachment/Fieri Facias (which is abbreviated as a writ of fifa) or any other means of the enforcement of a Court judgment through an appropriate application which the Applicant/Judgment Creditor will file before the Court.

PROCEDURE FOR THE RECOGNITION AND ENFORCEMENT OF A FOREIGN ARBITRAL AWARD UNDER THE ARBITRATION AND MEDIATION ACT, 2023.

The purpose of arbitration, which reflects the intrinsic element of the parties' agreement, is to arrive at a binding decision on the dispute.¹⁵ This element is set out in most leading international Rules of Arbitration such as the UNCITRAL Rules, ¹⁶ the ICC Rules, ^xvii and LCIA Rules ¹⁷. Implicit in the consent to arbitrate is that the resulting award will be binding on the parties and the parties will comply without the necessity of resorting to national Courts for enforcement. While voluntary performance of the award is expected, it is relatively uncommon in practice. There are instances where the losing party may feel dissatisfied with the arbitral award and refuse to comply thereto. In this case, the winning party will need to take steps to give effect to the award. The relief against a losing party's refusal to perform the award is for the winning party to seek enforcement proceedings in a National Court, a possibility contemplated by the parties from the outset of the arbitration. In this regard, an arbitral award is compared to a binding decision of a National Court being the judgment, but unlike the National Court, an Arbitral Tribunal cannot enforce its decision.

Generally, recognition and enforcement relate to giving effect to the award, either in the State where the award was made (primary jurisdiction) or in some other States (secondary jurisdiction). Enforcement of award in the State of origin or 'seat' of the arbitration is relatively easy and subject to the regime applicable to domestic arbitration. However, when enforcement is sought outside the territory of the State where the award was made, the award assumes the character of 'foreign' or 'international award, and presents a more complex situation. The enforcement of foreign awards is guided by private international law principles of party autonomy and respect for parties' contracts which has become the forte of the New York Convention.^xix

The procedure for the recognition and enforcement of a foreign arbitral award is regulated/governed by the following Laws, Conventions and Rules:

1. New York Convention on the Recognition and Enforcement of Foreign Awards, 1958;

2. United Nations Commission on International Trade Law (UNCITRAL);

3. Foreign Judgments (Reciprocal Enforcement) Act CAP F35 L.F.N., 2004;

4. International Centre for the Settlement of Investment Disputes (ICSID).

NEW YORK CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN AWARDS, 1958:

The applicability of the provisions of the New York Convention on the Recognition and Enforcement of Foreign Awards, 1958 to the recognition and enforcement of foreign awards in Nigeria is regulated by the provision of section 60 of the Arbitration and Mediation Act, 2023, which provides thus:

"Without prejudice to sections 57 and 58 of this Act, where the recognition and enforceme-

nt of any award made in an arbitration in a Country other than Nigeria is sought, the

New York Convention on the Recognition and Enforcement of Foreign Awards set out

in the Second Schedule to this Act applies to an award, provided that the:

(a) the country is a party to the New York Convention; and

(b) differences arise out of a legal relationship, whether contractual or not, conside-

red commercial under the laws of Nigeria."

The New York Convention of 1958 (the 'Convention') is intended to facilitate the recognition and enforcement of international arbitration agreements and awards, by adopting "uniform international standards mandating the presumptive validity of such awards and limiting the circumstances for denying their recognition."²⁰ The policy objective of the Convention is to promote cross-border arbitrations by providing an international minimum standard of rules to encourage international trade and commerce.²¹ The Convention generally applies to "the recognition and enforcement of arbitral awards made in the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal." To this end, therefore, Article III of the Convention mandates Contracting States to "recognise arbitral awards as binding and enforce them in accordance with the Rules of procedure of the territory where the award is relied upon" and also charges them not to impose "substantially more onerous conditions ... on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards."

The advent of the Convention is also aimed at addressing the inadequacies of the Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 (which existed prior to the Convention). One of such inadequacies is the requirement that an award must be final in the forum State. Specifically, it provides that to obtain recognition or enforcement, it is necessary to prove that the "award has become final in the country in which it was made, in the sense that it will not be considered as such if it is open to opposition, appeal ... ". ²² This was interpreted to mean that the award has to be declared as 'final' by the Court of the seat of arbitration (the first 'exequatur') as a condition for its recognition and enforcement in a foreign jurisdiction (the second exequatur). Where either Court denies exequatur, the award will not ultimately be recognized and enforced. This greatly undermined the efficacy of the 1927 Geneva Convention, by making the processes cumbersome, slow and uncertain, notwithstanding that the parties' dispute has, supposedly, been finally resolved by arbitration.²³ In addressing these inadequacies, the Convention deliberately uses the text 'binding' to avoid the problematic double exequatur. This reflects global best practices of encouraging the finality of arbitral awards, regardless of where they were issued. ²⁴ It does not however mean that National Courts do not possess residual powers upon application, to determine within the narrow compass allowed by the applicable law and other rules of procedure, whether the award is binding on the parties.²⁵ This discretion implies that even where there exists a ground for refusal to enforce such as annulment of award at the seat, a foreign Court may still enforce it. ²⁶

UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW (UNCITRAL):

The United Nations Commission on International Trade Law (UNCITRAL), hereinafter referred to as the 'UNCITRAL Model Law', was adopted by the United Nations Commission on Trade Law on the 21st of June, 1985. In 2006, the UNCITRAL Model Law was amended to include more detailed provisions on interim measures. The UNCITRAL Model Law is designed to assist States in reforming and modernizing their laws on arbitral procedure so as to take into account the peculiar and distinctive features and needs of international commercial arbitration. It covers all stages of arbitral processes and contains the following:

1. Special procedure regimes for international commercial arbitration;
2. Arbitration Agreement;
3. The composition of Arbitral Tribunal;
4. Jurisdiction of the Arbitral Tribunal;
5. Conduct of Arbitral proceedings;
6. Making of award and termination of proceedings;
7. Recourse against award; and
8. The extent of Court intervention through the recognition and enforcement of the Arbitral

award.

The UNCITRAL Model Law reflects worldwide consensus on key aspects of international arbitration practice having been accepted by States ²⁷ of all regions and the different legal or economic systems of the world. The law applies to international arbitration, subject to any agreement in force between the State and any other State or States ²⁸. The provisions of this law, except Articles 8, 9, 17 H, 17 I, 17 J, 35 and 36 apply only if the place of the arbitration is in the territory of the State ²⁹. It is important to note that the UNCITRAL Model Law did not allow parties to conjecture as to the exact meaning of what International Arbitration is as it expressly and verbosely provided the meaning as follows:

"An Arbitration is international if:

1. The parties to and arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States; or

1. One of the following places is situated outside the State in which the parties have their places of business:

1. The place of arbitration if determined in, or pursuant to, the arbitration agreement;

1. Any place where a substantial part of the obligation of the commercial relationship is to be performed or the place with which the subject matter of the dispute is most closely connected;

1. The parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one Country."³⁰

The term 'commercial' is to be given a wide interpretation as to cover matters arising from all relationship of a commercial nature, whether contractual or not. Relationships of a commercial nature include the following transactions: (a) Any trade transaction for the supply or exchange of goods and services; (b) Distribution agreement; (c) Commercial representation of agency; (d) Factoring; (e) Leasing; (f) Construction of works; (g) Consulting; (h) Engineering; (i) Licensing; (j) Investment; (k) Financing (l) Banking (m) Insurance (n) Exploitation agreement or concession; (o) Joint venture and other forms of industrial or business cooperation; and (p) Carriage of goods or passengers by air, sea, rail or road.

For the recognition and enforcement of Arbitral awards, we refer to the provision of Article 35 of the UNCITRAL Model Law, which provides as follows:

(1) "An arbitral award, irrespective of the country in which it was made, shall be recogn-

ized as binding and, upon application in writing to the competent Court, shall be enf-

orced subject to the provisions of the article and article 36"

(2) "The party relying on an award or applying for its enforcement shall supply the duly

authenticated original award or a duly certified copy thereof, and the original arbit-

ration agreement referred to in article 7 or a duly certified copy thereof. If the award

or agreement is not made in an official language of this State, the party shall supply a

duly certified translation thereof into such language"

(3) "Filing, registration or deposit of an award with a Court of the country where the award

was made is not a pre-condition for its recognition or enforcement in this State."

The above cited and reproduced provisions of the UNCITRAL Model Law is similar to the provisions of other domestic and international Laws and Rules on the recognition and enforcement of Arbitral awards.

FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT) ACT CAP F35 L.F.N., 2004:

The Foreign Judgments (Reciprocal Enforcement) Act was enacted in 1960 to create a provision for enforcement in Nigeria of judgments given or delivered in foreign Countries, which accord reciprocal treatment to judgments given in Nigeria. Thus, for this legislation to apply, the doctrine of reciprocity is essential to the enforcement of foreign judgments in Nigeria.

An award is considered a Judgment in Nigeria. The Foreign Judgments (Reciprocal Enforcement) Act, a judgment means:

"A judgment or order given or made by a Court in any civil proceedings and shall include an award in proceedings on an arbitration if the award has in pursuance of the law in force in the place where it was made become enforceable in the same manner as a judgment given by a Court in that place, or a judgment or order given or made by a Court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party."³¹

In a similar vein, the Supreme Court in EKWUNIFE vs. WAYNE W/A LTD. (1989) 5 NWLR (Pt. 122), p. 422 at p. 446, per Nnaemeka Agu, JSC, defined 'judgment debt' thus:

"Debt or damage or other monetary award which has been pronounced upon by a Court

of competent jurisdiction."

However, for a foreign award to qualify for enforcement under the Act, it must be an award relating to money. This is in view of the fact that the Act only makes provision for judgment debts in monetary terms. Section 4 of the Foreign Judgments (Reciprocal Enforcement) Act provides for the procedure for the enforcement of a foreign award. The said section 4 provides that a Judgment Creditor may apply to a superior Court in Nigeria at anytime within six (6) years from the date of the said Judgment or where there had been an appeal against the said Judgment, after the date of the Judgment in the said appeal, to have the said Judgment registered in such Court. However, in MARINE AND GENERAL ASSURANCE vs. OVERSEAS UNION & 7 ORS.,³² the Supreme Court held, inter alia, that section 3 (1) of the Foreign Judgments (Reciprocal Enforcement) Act had subjected the coming into force of the provisions of Part 1 of the Act (which contains section 4 of the Foreign Judgments [Reciprocal Enforcement] Act extending the period of registration to six [6] years) to an Order to be made by the Minister of Justice directing the extension of Part 1 of the Act to relevant foreign Countries. Also, section 9 of the Foreign Judgments (Reciprocal Enforcement) Act had unequivocally preserved the effect of the Ordinance pending the promulgation of the Order envisaged under section 3 (1) of the Foreign Judgments (Reciprocal Enforcement) Act by the Minister of Justice. Therefore, time is limited to twelve (12) months.³³

There are three (3) categories of foreign judgments which qualify for enforcement under the Foreign Judgments (Reciprocal Enforcement) Act, which are:

1. Judgments made in Courts of any part of the Commonwealth other than Nigeria or in relation to those parts of her Majesty's Dominions ³⁴. In MERCANTILE GROUP (EUROPE) A.G. vs. VICTOR AIYELA³⁵, the Court of Appeal confirmed the position of such judgments upon an interpretation of Section 9 of the Foreign Judgments (Reciprocal Enforcement) Act:
2. Foreign Judgments of a superior Court given by an original Court in a Country, which the Minister of Justice in Nigeria recognizes pursuant to an order under Section 3 of the Foreign Judgments (Reciprocal Enforcement) Act, if the Minister is satisfied that substantial reciprocity of treatment will be accorded to the enforcement of judgments of superior Courts in Nigeria in such foreign Country; and

• Foreign Judgments which had hitherto been registered under the Reciprocal Enforcement of Judgments Ordinance of 1958³⁶ at the time of coming into operation of any powers vested by section 3 of the Foreign Judgments (Reciprocal Enforcement) Act. Such judgments are to be treated as if they were registered under the Act and once compliance with the provisions of the Ordinance had already been met; the judgment(s) shall be taken to have satisfied the requirements of the Foreign Judgments (Reciprocal Enforcement) Act by operation of law.

In MACAULAY vs. R.Z.B. OF AUSTRIA ³⁷, Counsel had argued that the Reciprocal Enforcement of Judgments Ordinance of 1958 had been repealed and has no place in the enforcement of foreign Judgments in Nigeria anymore. The Court rejected that argument and held that the Foreign Judgments (Reciprocal Enforcement) Act, under review, saves the Reciprocal Enforcement of Judgments Ordinance of 1958 from extinction. Equally, judgments made in a foreign Country before the commencement of any order by the Minister of Justice under section 3 of the Foreign Judgments (Reciprocal Enforcement) Act may be registered within twelve (12) months from the date of the judgment or such longer period as may be allowed by a superior Court in Nigeria ³⁸. In essence, a foreign judgment can be made unenforceable in Nigeria by the Minister of Justice in Nigeria, where there is no reciprocal gesture from the Country in which the award was delivered, towards judgments of the superior Courts in Nigeria.

INTERNATIONAL CENTRE FOR THE SETTLEMENT OF INVESTMENT DISPUTES (ICSID):

The International Centre for the Settlement of Investment Disputes (ICSID) provides a neutral forum for the resolution of disputes between nations and foreign investors ³⁹. The ICSID is an autonomous international institution established under the Convention on the Settlement of Investment Disputes between States and Nationals of other States (the ICSID or the Washington Convention) with over 140 member States. The ICSID Convention was ratified by Nigeria on the 23rd of August, 1965 and the provisions were domesticated two (2) years later, which was in 1967, through the International Centre for Settlement of Investment Disputes (Enforcement of Awards) Act ⁴⁰. This Convention derived the name 'Washington Convention' from the fact that it was first convened at Washinton, which went on to become the seat of the centre. The Washington Convention was promulgated to attend solely to disputes arising out of investment issues between States and nationals of other States. However, it is possible for a State to participate in ICSID Arbitration through the instrumentality of an agency of the State, which is closely identified with the State that it qualifies as a State for the purpose of the Convention. Such Agency must be designated to the centre in writing, by the State. Nigeria, for instance, can designate the Nigerian National Petroleum Corporation (NNPC) to be the centre for ICSID Arbitration.

An Arbitration exercise can be conducted under the Convention where the following constituents exist:

1. The parties to the dispute mutually agree to refer the dispute for resolution under the platform of the International Centre for Settlement of Investment dispute;

1. The dispute or controversy between the parties must centre on investment; and

• Only a contracting State and Nationals of other contracting States qualify as proper parties under the ICSID.

There is also a special provision known as the ICSID Additional Facility. This is a facility established for parties who do not fall within the ambit of the purpose of ICSID. For instance, Cameroon is not a State party to ICSID but can be a party to an ICSID dispute under additional facility.

An ICSID award must, unless the period is extended, be made within 60 days after the closure of the proceedings. It may incorporate any concurring or dissenting opinion of any Arbitrator. The award, which is binding on the parties, is not subject to any appeal or any other remedy except those provided for in the Convention. ICSID awards are not subject to any National Laws, and as such, every contracting State to the Convention is enjoined to recognize and enforce awards made pursuant to arbitral processes held under the auspices of the ICSID. Each Contracting State undertakes to recognize the award as binding and to enforce the pecuniary obligations imposed by the award within its territory as if it were a final Judgment of the State's Court of final resort. It is thus provided under Article 54 of the Convention thus:

"Each contracting State shall recognize an award rendered pursuant to this Convent-

ion as binding and enforce the pecuniary obligation imposed by that award within

its territories as if it were a final judgment of a Court in that State. A contracting St-

ate with a Federal Constitution may enforce such an award in or through its Federal

Courts and may provide and may provide that such Courts shall treat the award as

if it were a final Judgment of the Courts of a constituent State."

It follows therefore that an ICSID award cannot be challenged in the courts of the place of Arbitration or indeed before any other court. However, it can also be argued that ICSID awards lack finality because of the possibility of annulment by an ad-hoc Committee. Thankfully, this has not affected the popularity of the ICSID Arbitration. An ICSID Arbitral Award is a distinct award and usually in a class of its own. One of the reasons is the fact that it is enforced at the apex court of the contracting States. A party seeking to enforce an ICSID award in Nigeria shall file a copy of the award, certified by the Secretary General at the Centre, at the Supreme Court of Nigeria, who shall register and deem it as an award contained in its final judgment. The effect of registration of the award is to make the award, from the date of registration, acquire the status of a final judgment. Section 1 (1) of the International Centre for Settlement of Investment Disputes (Enforcement of Awards) Act, provides as follows:

"Where for any reason it is necessary or expedient to enforce in Nigeria an award ma-

de by the International Centre for Settlement of Investment Disputes, a copy of the

award duly certified by the Secretary-General of the Centre aforesaid, if filed in the

Supreme Court by the party seeking its recognition for enforcement in Nigeria, shall

for all purposes have effect as if it were contained in a final Judgment of the Supreme

Court, and the award shall be enforced accordingly."

Worthy of note is the fact that section 1 (2) of the International Centre for Settlement of Investment Disputes (Enforcement of Awards) Act provides that the Chief Justice of Nigeria is empowered to make Rules of Court or adapt any Rules of Court that is necessary, to give effect to the Act.

CHALLENGE TO THE RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARD UNDER THE ARBITRATION AND MEDIATION ACT, 2023.

The grounds or basis for the courts to refuse the recognition and enforcement of Arbitral Awards in Nigeria is as provided by section 58 (2) of the Arbitration and Mediation Act, 2023. The Arbitration and Mediation Act, 2023 allows a party to an arbitration agreement to request the court to refuse recognition or enforcement of the award ⁴¹. Although Nigerian Courts generally favour enforcement of Arbitral Awards, there are limited grounds on which a court may refuse to enforce an award. These grounds are provided in section 58 (2) (a) (i) – (viii) and (b) (i) – (ii) of the Arbitration and Mediation Act, 2023 (for both domestic and foreign awards) and reflects international best practice, particularly the New York Convention. The aforesaid grounds include:

1. Legal Incapacity of a Party to the Arbitration Agreement: Where a party to the Arbitration Agre-

ement is under some legal incapacity.

1. Invalid Arbitration Agreement: The Arbitration Agreement is not valid under the law to which the parties have indicated should be applied, or that the Arbitration Agreement is not valid under the law of the Country where the award was made.

iii. Lack of Proper Notice and/or Lack of Fair Hearing/Inability to Present His/her Case: The party against whom the award was invoked was not given proper notice of the appointment of an Arbitrator or of the Arbitral proceedings or was otherwise not able to present his case.

1. The Arbitral Award is Outside the Parties' Submission to Arbitration: The Arbitral Award deals with a dispute not contemplated by or does not fall within the terms of the submission to arbitration.

1. The Arbitral Award is Ultra-Vires/Excess of the Jurisdiction of the Arbitral Tribunal: The award contains decisions on matters which are beyond the scope of the submission to arbitration, so however that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced.

1. Improper Composition of Arbitral Tribunal or Procedure under the Arbitration Agreement or the Law of the Country of the Arbitration: The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties. Where there is no agreement between the parties as aforesaid that the composition of the arbitral tribunal or the arbitral procedure, was not in accordance with the law of the Country where the arbitration took place.

vii. Award not yet Binding or Has been Set Aside: The award has not yet become binding on the parties or has been set aside or suspended by a Court of the Country in which, or under the law of which, the award was made.

viii. Subject matter not Capable of Settlement by Arbitration: The subject matter of the dispute is otherwise not capable of settlement by arbitration under the laws of Nigeria.

1. Against Public Policy of Nigeria: If enforcement of the award would be contrary or is against the public policy of Nigeria.

Where an application to set aside or suspend an award has been made to a court referred to in subsection 2(a)(viii), the court before whom recognition or enforcement is sought may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.⁴²

It is pertinent to state here that while the provision of section 58 of the Arbitration and Mediation Act, 2023 provides the grounds under which the Court may refuse to recognize and enforce an Arbitral Award in Nigeria, on the other hand, section 36 of the UNCITRAL Model Law, Article V of the New York Convention on the Recognition and Enforcement of Foreign Awards, 1958, section 6 and 7 of the Foreign Judgments (Reciprocal Enforcement) Act and Article 52 of the International Centre for Settlement of Investment Disputes (Enforcement of Awards) Act, respectively provides the grounds upon which the Court may refuse to recognize and enforce a foreign/international Arbitral Award.

LIMITATION PERIOD FOR THE RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS:

The limitation period for the recognition and enforcement of an Arbitral Awards in Nigeria is governed by statutes. Generally, statute of Limitation is the law which sets out time within which an aggrieved person can present or file his matter for determination by the Court or any other body established for that purpose. The origin of the statute of limitation in Nigeria dates back to the introduction of English Law into Nigeria by Ordinance No. 3 of 1863. The English Limitation Act, which is a statute of general application was the first statute of limitation in Nigeria though same was later repealed by the provisions of section 70 of the Limitation Act, 1966.

An Arbitration Agreement is not in any way different from any other contract entered into by the parties. The Limitation Act, 1966 in section 59 defines 'Arbitration' and 'Arbitral Awards' for the purposes of the Act. It also declared that the provisions of the Act and any other limitation enactment apply to arbitration as they apply to action in the Court. It has to be mentioned that the Arbitration and Mediation Act of Nigeria and the New York Convention did not specify anytime for the enforcement of its award. The Foreign Judgments (Reciprocal Enforcement) Act Cap F 35 prescribed six (6) years within which to enforce foreign awards. It is because of the absence of the time limitation provisions in the provisions of the Arbitration and Mediation Act of Nigeria and the New York Convention that emphasis will be placed on the Limitation Act of Nigeria and the Limitation Laws of the various States in Nigeria.

The Limitation Act or Law is very important to both arbitration and litigation. This is because any right that is statute-barred is an imperfect and incompetent right which cannot be enforced. The operation of time Limitation is important as long as dormant claims are more of cruelty than justice. Where a party is allowed to bring his action at any time against the Defendant, it is envisaged that an action will be filed years after the Defendant must have believed that everything had ended and may have lost all the material evidence for his defence in the suit. It is expected that parties with good causes of action should pursue them diligently and without delay.

The Limitation Act has placed the time limitation period for bringing an action based on simple contracts (including arbitration agreements) and torts to six (6) years. The question which is of concern to us is, when does the six (6) years period start to run? To answer this question, we refer to the case of M.S.S. LINE vs. KANO OIL MILLERS LTD. ⁴³ The Plaintiff brought his action on the award less than six (6) years from the date the Defendant breached the Charter Party Agreement. On Appeal, the Plaintiff argued that time ran from the date of the award in 1966 but the Defendant argued that time ran from the date of the breach of the Charter Party Agreement in 1964. On appeal to the Supreme Court Elias, CJN (as he then was), delivering the leading judgment held that "the statutory period of limitation must begin to run from the breach of the charter-party in 1964 and not from the making of the award in Moscow in 1966," that is to say, from the date when the Claimants first acquired either a right of action or a right to require that arbitration takes place upon the dispute.

In another case of KSUDB vs. FANZ CONSTRUCTION CO. LTD. ⁴⁴, the Supreme Court held that an Award once published extinguished any right of action in respect of the substantive matter in dispute and gives rise to a new cause of action based on the agreement between the parties to perform the award implied in every arbitration Agreement. Also, in CITY ENGINEERING NIG. LTD. vs. FEDERAL HOUSING AUTHORITY ⁴⁵, the Supreme Court held that the limitation period for the enforcement of an Arbitral Award is six (6) years and that time starts to run from the date of the accrual of the cause of action in the arbitration agreement and not from the date of making the arbitration award except where the arbitration is done under SCOTT vs. AVERY provision in which case right of action is suspended until after the making of an award and in which case time shall run from the making of an award.

It is my candid opinion that the above decision of the Supreme Court appears unsatisfactory. This is because the law does not command the impossible and should not be made to promote injustice. It is not right, rational and legally appropriate that time should start to run before the making of the award. In addition, an arbitration agreement constitutes two (2) distinct contracts, namely the contract to submit dispute to arbitration when one does occur, and secondly, the contract or agreement to comply with the terms of the award made. In KANO STATE URBAN DEVELOPMENT BOARD vs. FANZ CONSTRUCTION CO. LTD. (supra) per Agbaje, JSC declared that an award by arbitration constitutes an independent cause of action. Also, in TURNER vs. MIDLAND RAILWAY CO. ⁴⁶ the English Court decided that "when an action is brought upon an award, the six (6) year period of time limitation runs from the date of the award and not from the moment when the claim arose, for the award itself gives rise to a new cause of action." In another English Court decision in AGROMET MOTOR IMPORT LTD. vs. MAULDEN ENGINEERING CO. (BEDS) LTD. ⁴⁷, where the Court decided that time begins to run from the date of the breach of the implied term to perform the award and not from the date of the accrual of the original cause of action giving rise to the submission.

Consequently, it is the view of this author that it will be in the interest of justice for the apex court to depart from its decision in KANO STATE URBAN DEVELOPMENT BOARD vs. FANZ CONSTRUCTION CO. LTD. (supra) on the above legal position so as to align with the above cited English decisions TURNER vs. MIDLAND RAILWAY CO. (supra), to the effect that time begins to run from the date of the breach of the implied term to perform the award and not from the date of the accrual of the original cause of action giving rise to the submission. This legal position is more rational, accords with the modern position of the law and will not occasion injustice to the Judgment Creditor who has suffered to secure an arbitral award especially considering the time that may have elapsed in the course of trying to resolve the issue with the Judgment Debtor before the arbitral proceedings is instituted, heard and then decided by the Arbitral Tribunal.

CONCLUSION:

This article has discussed in great detail some of the most vital/fundamental legislations applicable to the recognition and enforcement of foreign arbitral awards. Some of these legislations have been in force over the years and are due for amendment to be tailored or suited to the modern/current needs of disputants in an arbitration agreement and proceedings. Recognition and enforcement or execution are important legal concepts to be considered once an arbitral award is rendered in order to ensure that the outcome of arbitration is effective and binding across borders. While there are several conceptual differences between them, their content and regime largely depend on international treaties and national laws.

Understanding the enforcement of arbitral awards is fundamental for businesses and legal practitioners engaged in international transactions. The ability to enforce arbitral awards within Nigeria ensures that arbitration remains a viable and effective dispute resolution mechanism. By familiarising themselves with the legal frameworks, procedural steps, and practical considerations involved in enforcement of arbitral awards, parties can navigate the complexities of cross-border arbitration more effectively. As the global landscape continues to evolve, staying informed about developments in arbitration law and enforcement practices will be essential for successful dispute resolution. With the right knowledge and strategies, parties can ensure that arbitral awards are not only rendered but also enforced, fostering trust and collaboration in international business relationships. The enforcement of arbitral awards is a critical juncture in the arbitration process, where the theoretical framework of dispute resolution meets the harsh realities of legal execution. As this Article has demonstrated, the journey from arbitral award to actual enforcement is fraught with both procedural intricacies and substantive legal challenges. Yet, it is in overcoming these hurdles that arbitration earns its place as a credible and effective alternative to traditional litigation. An award that cannot be enforced is tantamount to no award at all; therefore, enforcement is not merely a legal afterthought, it is the linchpin of the entire arbitration mechanism.

In the Nigerian context, the legal framework for enforcement is largely in alignment with international standards, particularly with the enactment of the Arbitration and mediation Act, 2023, and Nigeria's commitment to the New York Convention. These instruments collectively provide a solid foundation for recognizing and enforcing both domestic and foreign arbitral awards. However, as also highlighted, the mere existence of a legal framework does not automatically guarantee efficient enforcement. The interpretation and application of their laws by Nigerian Courts play a pivotal role in shaping enforcement outcomes. Moreover, for arbitration to truly fulfil its promise as an effective means of dispute resolution, stakeholders including legal practitioners, corporations, and policymakers-must be proactive. Legal Practitioners must draft arbitration clauses carefully, taking into consideration the jurisdiction where enforcement may eventually be sought. Policymakers must ensure that the domestic legal environment supports rather than stifles arbitration. And finally, corporations must assess not just the ability to win a case, but also the strategic feasibility of enforcing an award in target jurisdictions.

The role of comparative law cannot be overstated in this regard. Jurisdictions like Singapore and the United Kingdom have cultivated robust, predictable, and arbitration friendly legal environments, serving as global benchmarks. Nigeria can draw valuable lessons from these systems to refine its enforcement regime. Adopting best practices, simplifying procedural requirements, and strengthening international support for arbitration can dramatically enhance Nigeria's reputation as a reliable venue for resolving international commercial disputes. Looking forward, the evolution of enforcement practices in Nigeria will likely be shaped by a combination of judicial precedent, legislative reform, and increasing exposure to international arbitration norms. As Nigeria continues to expand its global economic footprint, especially in sectors such as oil and gas, infrastructure, and technology, the need for a stable and credible dispute resolution mechanism will become even more pronounced. Ultimately, the enforcement of arbitral awards is more than just a legal process; it is a test of a jurisdiction's commitment to the rule of law, commercial integrity, and international cooperation. When enforced efficiently, arbitral awards become powerful instruments of justice, offering parties finality and certainty. When enforcement falters, it sends a signal that contractual obligations and dispute resolution mechanisms are unreliable.

Finally, a critical understanding of the enforcement of arbitral awards reveals the delicate interplay between law, policy, and judicial discretion. It is a reminder that legal systems must continually evolve to meet the expectations of global commerce and to uphold the legitimacy of arbitration. For Nigeria, the path forward lies in embracing legal reform, judicial consistency, and international best practices. Only then can the promise of arbitration be fully realised and enforced.

I hereby recommend that to ensure the effective enforcement of the extant provisions of the Arbitration and Mediation Act, 2023 vis-a-vis the provisions of other domestic and international legislations discussed above, our Courts ought to adopt a proactive approach in the interpretation of the aforesaid statutory provisions to reflect the actual intendment of the draftsmen, to ensure that the said legislations are given due effect and they achieve their intended purpose.

Footnotes

1 David C. Maduka is a Director at Alliance Law Firm, Abuja, Nigeria.

2 Third Edition, Vol. 1, at page 180.

3 Barnstein in his Book Handbook of Arbitration Practice, 1988, page 9.

4 (2006) 2 NWLR (Pt. 965) 506 at p. 542-543, paras. G-A.

5 Tweedale, A. and Tweedale K., Arbitration of Commercial Disputes; International and English Law and Practice, Oxford, OUP, 2005.

6 Section 47(1)-(4), Arbitration and Mediation Act, 2023.

7 Hagler Okorie, Arbitration Law: Practice and Procedure, page 6, First Publication, 2024.

8 Section 57, Arbitration and Mediation Act, 2023.

9 Order 7, Rule (1) and (2), Arbitration Proceedings Rules, 2020.

10 Order 30, Rule 5 (1) – (4), High Court of the Federal Capital Territory Civil Procedure Rules, 2025.

11 (2019) LPELR – 48066 (C.A.).

12 (2020) LPELR – 51389 (C.A.).

13 (1992) 3 NWLR (Pt. 232), p. 710 at p. 734.

14 Section 58(1)-(3), Arbitration and Mediation Act, 2023.

15 Nigel Blackaby Et al (7^th Edition) 2023, Kluwer Law International; Oxford University Press, p. 11.1

16 United Nation Commission on International Trade Law (UNCITRAL) Arbitration Rules, Article 34.2

17 International Chamber of Commerce (ICC) Rules, Article 35.6

18 London Court of International Arbitration (LCIA) Rules, Article 26.8

19 The New York Convention also applies to arbitral awards that are 'not considered as domestic awards in the State where their recognition and enforcement is sought. See Article 1 (1) of the New York Convention.

20 Gary B. Born, International Commercial Arbitration, (3^rd Ed., 2021), Kluwer, 26.03; Mobil Cerro Negro Ltd. vs. Venezuella, 87 F. Supp. 3d 573, 594 (S.D.N.Y. 2015) ("The New York Convention was negotiated in 1958 and entered into force in 1959. It was adopted to facilitate international enforcement of arbitral awards"); Four Seasons Hotels & Resorts BV vs. Consorcio Barr, SA, 613 F. Supp. 2d 1362, 1367 (S.D. Fla. 2009) ("there is a general pro-enforcement bias' manifested in the Convention").

21 Article 1 (1) of the New York Convention.

22 Article 1 (d) of the Convention on the Execution of Foreign Arbitral Awards Signed at Geneva on the 26^th day of September, 1927; see also Article 4 (2) of the Geneva Convention.

23 Born, Gary B., supra note 14.

24 Lew J.M.D., Mistelis L. A. & Kroll S. M., (2003) Comparative International Commercial Arbitration, Kluwer, p. 20.

25 Article 34 and 36 of the UNCITRAL Model Law and Article V, of the New York Convention.

26 Article V (1) (e) of the New York Convention.

27 State here means a Country with powers and authority over its territorial boundaries and do not refer to a region or any part of a Country.

28 Article 1 (1) of the UNCITRAL Model Law (as Amended)

29 Article 1 (2) of the UNCITRAL Model Law (as Amended)

30 Article 1 (3) of the UNCITRAL Model Law (as Amended)

31 Section 2 (1) of the Foreign Judgments (Reciprocal Enforcement) Act

32 (2006) 4 NWLR (Pt. 971), p. 641

33 F. Obisanya, Enforcement of Foreign Arbitral Awards in Nigeria: An Overview, Enforcement of Foreign Arbitral Awards in Nigeria – Rouk & Co. (roukco.com). Accessed on the 22^nd of August, 2025.

34 Section 9 of the Foreign Judgments (Reciprocal Enforcement) Act

35 Suit No.: CA/L/348/92 of the Lagos Division of the Court of Appeal, delivered on the 1^st of July, 1996.

36 Cap 175, L.F.N. 2004

37 (2006) 4 NWLR (Pt. 971), p. 641

38 Section 10 of the Foreign Judgments (Reciprocal Enforcement) Act

39 McArthur and Ormachea, International-State Arbitration: An Empirical Analysis of ICSID Decision on Jurisdiction, 28 Rev. Litig. 5559 (2009); Comment: ICSID's Resurgence in International Investment Arbitration: Can the Momentum Hold?, 23 Penn. St. Int'l L. Rev. 147 (2004); Amerasinghe, The International Centre for Settlement of Investment Disputes and Development Through the Multinational Corporation, 9 Vand. J. Transnat'l L. 793 (1976). http://icsid.worldbank.org/ICSID/Index.jsp. Cited in ML Moses, The Principles and Practice of International Commercial Arbitration, 2^nd Edition (Cambridge University Press, USA, 2012).

40 1967 No. 49. This is currently contained in Cap. 120, Laws of the Federation of Nigeria (L.F.N.), 2004.

41 Section 58 (1) of the Arbitration and Mediation Act, 2023.

42 Section 58 (3) of the Arbitration and Mediation Act, 2023.

43 (1974) LPELR – 1927 (SC) at page 11.

44 (1990) 3 NWLR (Pt. 142) 1

45 (1997) 9 NWLR (Pt. 520) 224

46 (2012) EWCA Civ 1470

47 (1985) 1 WLR 762

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.