Appeals Against An Arbitral Award, A Threat To A Speedy Arbitration Process In Nigeria – Mekwunye V. Imoukhuede

By Precious Okoh, Esq.

Foremost among the core objectives of arbitration is the speedy dispensation of commercial disputes. Apparently, corporations, SMEs and multinationals are not interested in the long-term thread of litigation hence would embrace any means that would easily resolve any commercial dispute arising out of contract – this is why arbitration naturally becomes an easy choice.

However, in a recent decision of the Supreme Court of Nigeria, the essence of arbitration was not met. In Mr. Charles Mekwunye v. Mr. Christian Imoukhuede (2019) 13 NWLR (Pt. 1690) 439, the parties had executed a tenancy agreement which contained an arbitration clause. When dispute arose between parties, the appellant commenced arbitration by a notice of arbitration served on the respondent. After the arbitration proceeding, an award was made in 2007. The respondent by an Originating Motion sought to set aside the arbitral award. The trial court refused to set aside the award, hence another appeal to the Court of Appeal.

At the Court of Appeal, the award was set aside on the following grounds:

1. The notice of arbitration was defective for non-compliance with Article 3(3) of the Arbitration Rules.
2. The arbitration institution referenced in the arbitration agreement was non-existent.
3. The arbitrator was not validly appointed as the appointing authority had only merely recommended her, and
4. The arbitrator was in error when a letter of adjournment was written by the arbitrator on a firm’s letter-head rather than on the arbitrator’s personal letter-head.

Upon further appeal to the Supreme Court, the apex court reversed the decision of the Court of Appeal on the grounds that the respondent had waived his rights to challenge the arbitral award having taken part in the proceedings without any objections.

Comments

Mekwunye’s case is typical of a case which justice would have been side-stepped on the basis of technicality. Apparently, the decision of the Court of Appeal tilted more towards the technicality of the case rather than on the merit. Thankfully, the Supreme Court refused to take this reasoning as the apex court chose to focus more on the merit of the case.

The case lingered up to the Supreme Court from a tenancy agreement dispute which started in 2007 and for twelve (12) years a dispute which ought to have been resolved by arbitration in the shortest time, say three months, now lasted for more than a decade.

Mekwunye’s case shows us a typical instance when further litigation on an arbitral award would ultimately deprive parties of the primary aim of arbitration.

RECOMMENDATIONS

1. Having realized that the delay in time in Mekwunye’s case is perhaps not due to a flaw in the arbitration process in Nigeria but in the consequent litigation which usually follows an arbitral award, it is suggested that perhaps those consequent litigations resulting from an arbitral award be time-bound. Hence, just like in election petitions where appeals are time-bound, appeals from an arbitral award ought to be time-bound.
2. In order to prevent the technicalities which, the Court of Appeal hinged their decision on, an arbitration expert should be employed to produce top-notch arbitration agreements.