By Dr. Raphael Christopher CIM Senior Lawyer Nigerian Bar Association Enugu Branch
![](https://thenigerialawyer.com/wp-content/uploads/2026/09/NBBSPIDEL.png")
![](https://thenigerialawyer.com/wp-content/uploads/2026/05/2026-Summer-IDRI-Masterclass.jpg")
The recent judgement in the case of Nigeria v. Process & Industrial Development Limited [2023] EWHC 2638 (Comm) delivered yesterday 24th October 2023, while bringing clarity to when and where issues of fraudulent conduct alleged in arbitration cases can constitute valid grounds upon which serious irregularities may be alleged, evidenced and used to validly set aside a judgement obtained by arbitration, at the same time, has raised difficult questions as to how issues of documents unlawfully obtained and used in evidence, could be considered.
This case concerned an Arbitration award of $11bn obtained against the Federal Government by the Oil and Gas company Process and Industrial Development Limited.
The Federal Government had challenged this award based on serious irregularities including fraud according to section 68 (g) of the Arbitration Act 1996.
The stakes were very high given that the arbitration award of $11bn given against the Federal Government was quite substantial and significant being nearly the amount of the Federal budget for the whole of Nigeria. If this award was enforced, it would have spelled severe financial disaster for Nigeria.
Moreover, the legal fees alone for the defendant lawyers was estimated to came to around £3.4bn. These were very high sums of money.
It was a big relief that The Federal Government, in my opinion, quite rightly, succeeded in overturning the Arbitration award and won the case.
What was the reason for the Federal Government’s success? The reason was the fraudulent conduct or misconduct of the Lawyers for the defendants company.
What were the particulars of the fraudulent conduct or misconduct alleged?
It was that they had come into possession of The Federal Government’s internal legal privileged documents which they were not entitled to see or use but they saw them and used them. The fact that they knew they were in possession of privileged documents and did nothing to alert the other side was concluded by the Court as being fraudulent conduct or misconduct serious enough to found serious irregularities and therefore the arbitration award was set aside.
What should the lawyers for the defendants company have done?
They should have as legal professionals know they were not entitled to see these documents. They should have put a stop to it by informing The Federal Government of Nigeria or immediately return the documents they knew were received.
This case and its facts raises valid and difficult issues and questions regarding the Arbitration and Mediation process and how such issues can be addressed in Arbitration or Mediation proceedings that do get challenged in the courts.
Some of those difficulties are, firstly, does it necessarily follow that an Arbitration award or Mediation award validly obtained should be set aside? And if it should, why?
Second issue is that should the consideration of the award itself not be be separate to the issue of the alleged misconduct or fraudulent conduct ?
Thirdly, should there not be a separate consideration of whether or not, presumably, if the documents, although privileged, were genuine and contents not in any dispute, and sufficient to support the Award, so that, if the documents had been properly obtained, there would be no doubt about the validity of the Award or its correctness in law and in fact?
Lastly, given the standard of proof in Arbitration and Mediation process and rules of evidence in relation to improperly obtained documents, what evidential issues does this raise and how should the courts treat such cases, especially, where, as it is in this case, both parties has accepted the documents as genuine and is it not the courts duty to ensure fairness and justice?
It is important to note that whilst only a very small number of Arbitration awards, relative to the volume of Arbitration proceedings, are challenged in the courts.
Some of the reasons why this is so, includes lack of finances to pursue a court proceeding; the length of time already spent on arbitration; availability of witnesses and documentation etc etc.
However If the Federal Government had not decided to challenge this award in the Courts, the instant case would not have been challenged in court or overturned as has happened in this case.
It is staggering to think of how many of such Arbitration and Mediation awards are going unchallenged worldwide for the reasons I have given above and many being disadvantaged as a result.
Yet, regard has to be had, here, that if the legal professionals had not used privileged documents, it is unlikely that the defendants would have lost in the court because apart from the issue of fraudulent conduct in regards to the documents, their claims were quite strong and had been tested before a strong Arbitration tribunal and had passed.
Let me state for the avoidance of doubt that the above reasonings also apply to Mediation proceedings and if they do not already, there is a strong case to make sure that they should apply, due to the importance that Mediations should like Arbitrations, be conducted without fraud or misconduct.
It is clear to me, looking at the caselaw, current law and regulatory structure governing Arbitration and Mediation, that the present situation and regime regarding the conduct of Arbitration and Mediation are wholly inadequate to deal with the issues of fraud and fraudulent conduct in cases, where there are high stakes; large amounts; states and parties; the value and complexity of the matter presented for Arbitration and Mediation are enormous and have a complicated factual matrix. In such cases, and in medium value cases, there should be a clear statutory and personal requirement for Arbitrators and Mediators to be alert to the issue of fraudulent conduct in relation to documents and evidences that may have been obtained improperly and lay a positive obligation upon all parties to the Arbitration and Mediation to ensure they act with integrity and in compliance with all applicable professional conduct standards, rules and obligations.
These measures, if adopted and implemented worldwide, would enhance transparency, deepen confidence and protect the fairness in Arbitration and Mediation process worldwide and strengthen their place as valuable dispute resolution and settlement mechanisms worldwide.
Interested buyers are encouraged to place their orders and enquiries via:
0704 444 4777, 0704 444 4999, 0818 199 9888
Website: www.alexandernigeria.com
