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Doctrine of Covering the field and Arbitration in Nigeria

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Doctrine of Covering the Field and Arbitration in Nigeria

The doctrine of covering the field continues to attract some attention in relation to arbitration law and practice in Nigeria. As has been discussed recently, its relevance is being raised in the particular context of whether a state arbitration legislation can be or remain valid in light of the existence of the federal Arbitration and Conciliation Act. The particular legislation that has been raising the dust is the Lagos State Arbitration Law of 2009 and suggestions continue to be  made that the law either needs to be amended (or cannot even stand) in light of the federal legislation, owing to the doctrine of covering the field.

The constitutional aspect of legislative competence over arbitration in Nigeria, especially as between the federal and state legislatures, has already been discussed extensively. This present entry merely seeks to reiterate the point that the doctrine of covering the field is simply inappropriate for addressing the question of legislative competence over arbitration in Nigeria.

In the first place, it has just not been demonstrated how the federal legislature has shown an intention to legislate exhaustively and exclusively on arbitration – which is a prerequisite for the invocation of the doctrine of covering the field on that legislative subject matter. It is not enough to point out that the Arbitration and Conciliation Act is applicable throughout Nigeria when the Act clearly and, arguably, deliberately did not repeal the numerous state legislation on arbitration which already existed at the time of its own promulgation or give any indication that states cannot legislate on arbitration. A better way to approach the federal legislation is that it makes its own regime available optionally but not mandatorily throughout the federation.

The oft stated and repeated objective of making Lagos in particular and Nigeria generally an attractive venue for the conduct of arbitration proceedings also dictate a requirement of careful consideration when thinking of invoking the doctrine of covering the field. In order to achieve the aim of making Nigeria an arbitration venue all relevant parties (policy makers, legislature, judiciary, arbitrators, counsel, academics, among others) need to demonstrate understanding of important doctrines and principles underlying arbitration.

A key doctrine underlying and running through arbitration is the doctrine of party autonomy. One aspect of this is that the parties are free to choose the law(s) governing the various aspects of the arbitration including especially the lex arbitri. In order to make Lagos and Nigeria an attractive arbitration venue, it is necessary to demonstrate that if parties to arbitration wish to invoke the Lagos State Arbitration Law as the lex arbitri, the Nigerian legal system will respect that choice.

On the other hand, it is a sobering thought that the result of the invocation or application of the doctrine of covering the field would be to deny the arbitral parties of such a choice. And of course that would be the path to jeopardising the desired objective of making Lagos in particular and Nigeria as a whole an attractive arbitration venue.

Arbitration and the Nigerian Constitution

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Arbitration and the Nigerian Constitution

Since 1988 the legislation typically invoked in Nigeria as the framework legislation concerning commercial arbitration has been the federal Arbitration and Conciliation Act 1988 – although many states continue to have legacy arbitration legislation from Nigeria’s colonial era on their statute books. The introduction and enactment of the Lagos State Arbitration Law of 2009, as an alternative to the federal legislation, and that state’s argument that it has the necessary competence under the Nigerian Constitution of 1999 has ignited a serious constitutional debate about legislative competence over arbitration – especially arbitration concerning transactions or disputes with connections to more than one state or beyond Nigeria.

The purpose of this brief essay is to summarise a generally overlooked line of argument, based on a conceptual appreciation of arbitration and extant Nigerian judicial authority, that the 1999 Constitution is consistent with the conclusion that both the federal and states’ legislatures have competence to enact arbitration legislation in respect of transactions or disputes with connections to more than one state or beyond Nigeria.

The matter of constitutional legislative competence over arbitration has been the subject of an ongoing fierce and quite impressively stimulating academic debate. On the other hand, when presented with a recent opportunity to address or, in light of a previous decision, to revisit the issue the Nigerian Court of Appeal chose in the particular circumstances to exercise judicial economy saying that it would “refuse to be dragged down into a snake pit”; Stabilini Visinoni Limited v Mallinson & Partners Limited [2014] 12 NWLR (part 1420) 134, 175.

The constitutional debate centres around whether the current Nigerian Constitution of 1999 clearly determines which legislature, as between the federal legislature and states’ legislatures, has the legislative competence to enact a framework arbitration legislation – especially as it relates to interstate and international commercial activities and disputes arising out of them.

The two legislative lists, the Exclusive and Concurrent Lists, through which the Constitution primarily sets out the respective legislative competences of the federal and states’ legislatures do not expressly mention arbitration. This has led to the question of whether legislative competence over arbitration is addressed in the constitution at all or whether it can be said to have been addressed as part of or incidental to another heading that is expressly mentioned. In the extant debate, the provisions of the 1999 Constitution which are usually invoked as capable of being treated as providing for legislative competence over arbitration are contained in items 62, 62(a) and 68 of the 1999 Constitution as set out below for ease of reference:

62

“Trade and commerce, and in particular –

(a) trade and commerce between Nigeria and other countries … and trade and commerce between the states”

 68

“Any matter incidental or supplementary to any matter mentioned elsewhere in this list.”

Naturally, viewpoints and opinions as to whether these provisions cover the question of legislative competence over arbitration are polarised. The prevalent and most common interpretation and invocation of the provisions in relation to legislative competence over arbitration holds that in light of item 68, arbitration is incidental or supplementary to trade and commerce mentioned in item 62. Accordingly, the argument goes on, the federal legislature has exclusive competence in respect of arbitration concerning international and interstate commerce (the latter being sometimes confusingly referred to as “inter-state arbitration”). Further, according to this line of argument, states’ legislatures would have legislative competence to enact arbitration legislation in respect of purely “intra-state arbitration” (i.e. an arbitration with connections solely to the concerned state) – as this would be a residual matter which, not being addressed in the constitution, falls within the legislative competence of the states.

On the other hand, it has been argued quite forcefully to the contrary that the provisions of items 62 and 68 of the Exclusive List of the 1999 Constitution cannot be invoked to determine legislative competence over arbitration in that they do not expressly or clearly address the matter. It is thus contended under this line of argument that the federal legislature does not even have legislative competence over arbitration at all; that as arbitration is not mentioned in the 1999 Constitution, it is entirely a residual matter left for the legislative competence of states’ legislatures to the exclusion of the federal legislature.

 At this point it is important to make the clarification that, under each of the lines of argument summarised so far, it is accepted that legislative competence to implement Nigeria’s international obligations concerning arbitration lies with the federal legislature. This is for example and in particular in relation to Nigeria’s commitments in respect of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. It is also not in issue that the federal legislature has competence to enact arbitration legislation for the Federal Capital Territory or that states’ legislatures have competence to enact arbitration legislation concerning transactions and disputes with connections solely to the concerned state.

As things stand at present, the position of the courts in relation to the ongoing constitutional debate about legislative competence over arbitration is not entirely clear. In Stabilini, the Court of Appeal seemed to implicitly favour a middle course. Whilst the court decided the matter before it on the basis that the parties’ actions and the circumstances of the particular case dictated that the extant federal Arbitration and Conciliation Act 1988 should be applied, the court seemed to recognise that it could be open to parties to arbitration (in Lagos) to choose to invoke the Lagos State Law instead. The decision in Stabilini sits very uneasily with an older decision of the same Court of Appeal (albeit a different judicial division) in Compagnie Generale de Geophysique v Dr Jackson D Etuk [2004] 1 NWLR (part 853) 20. In the older case, the Court of Appeal held that by the Arbitration and Conciliation Act of 1988 the federal legislature has “covered the whole field of arbitration” and that ‘inconsistent’ provisions of state legislation on arbitration are null and void.

The doctrine of “covering the field” invoked by the court in the Etuk case also has some support in the academic literature. However, if the decision in Etuk and the “covering the field approach” were correct, the Court of Appeal in Stabilini could simply have held that the Lagos State Law of 2009 is null and void to the extent of inconsistency with the 1988 federal legislation. The Stabilini court did no such thing! Rather the court in fact commended the Lagos State legislation for making it possible for parties to arbitration within Lagos to choose either that law itself or another law – including of course the 1988 federal legislation. The court said this approach “makes sense because arbitration is a subject area that can be said to be ‘without borders’”.

In a recent contribution to the ongoing debate ((2016) 19(1) International Arbitration Law Review), it has been demonstrated that the “covering the field” approach is entirely inappropriate in the context of legislative competence over arbitration in Nigeria. More, specifically it was also demonstrated that the invocation of the doctrine by the Court of Appeal in Etuk did not even comply with the parameters for the invocation of the doctrine as laid down by the Supreme Court in cases such as, among others, Attorney-General of Ogun State v Attorney-General of the Federation (1982) 1–2 SC 13. More significantly the contribution demonstrated, in terms summarised below, that extant Supreme Court authority on the interpretation of the phrase “trade and commerce” in the equivalent exclusive legislative list of Nigeria’s previous 1979 Constitution and other related provisions as well as general doctrine support the conclusion that both the federal and state legislatures have competence to enact arbitration legislation concerning inter-state and international transactions.

In the first place, on a purely conceptual level, arbitration is actually part of and encompassed within the phrase “trade and commerce” and it is surprising that the debate has mostly focused on whether arbitration is “incidental” to trade and commerce. Arbitration itself is big business and is widely so regarded; it is not merely a dispute resolution mechanism but indeed a veritable business sector that many countries and cities wish to encourage and develop for revenue generation purposes. Recently, it was announced that the Bahamas planned to become an arbitration centre in “a bid to tap into a possible lucrative business sector for the country.” In similar vein, a commentator recently noted that “London, for example, handles in any given year international arbitrations with a combined value of £40-£50 billion ….” Once arbitration is seen as the big business that it is, apart from being merely a dispute resolution mechanism, it is not altogether difficult to see arbitration as within “trade and commerce” and thus within the legislative competence of the federal legislature to the extent constitutionally provided for.

The approach of regarding arbitration as within the phrase “trade and commerce” in the Nigerian Constitution is consistent with the decision of the Nigerian Supreme Court directly on that phrase in Attorney-General of Ogun State v Aberuagba & Ors, (1985) 1 NWLR (part 3) 395. In Aberuagba, the Supreme Court noted that the mere fact that an item is not specifically included in the Exclusive Legislative List does not automatically mean that the federal government has no legislative power on the matter. It was clear that all the members of the court considered that the phrase “trade and commerce”, as such, has a wide and embracing meaning. Eso JSC, borrowing from the American Supreme Court, observed that to restrict the word “commerce” merely to buying and selling would be to “restrict a general term, applicable to many objects, to one of its significations.”

In light of the conceptual consideration of arbitration as a business sector in its own right as well as the embracing approach to the interpretation of “trade and commerce” by the Supreme Court, it is entirely appropriate to conclude that arbitration is encompassed within the phrase “trade and commerce” in item 62 of the exclusive legislative list of the 1999 Constitution. It follows at the least that the federal legislature has legislative competence over arbitration at least as it concerns interstate or international trade and commerce.

As far as states’ legislatures are concerned, once again both the Aberuagba case and general doctrine provide insights consistent with the conclusion that states’ legislatures also have legislative competence over arbitration concerning interstate or international transaction disputes. Even whilst holding that the federal legislature has exclusive competence in respect of international and interstate trade and commerce, the Aberuagba case acknowledged that the federal legislature did not have completely exclusive power over trade and commerce and that state and even local governments “have their respective shares to control trade and commerce.” Further, the court also held, in light of item H paras 18 and 19 of the Concurrent List of the 1979 Constitution, that  a state legislature has competence to enact laws concerning trade and commerce within its borders; and that a state legislature has competence to enact laws for the industrial and commercial development of the state.

In light of the immediately foregoing, it would follow that to the extent that a state’s law on arbitration concerns trade and commerce within its borders, and/or has as one of its objectives the industrial and commercial development of the state, such a law would ordinarily be within the constitutional legislative competence of the state. On the other hand if such a state law were to also concern matters of interstate or international trade and commerce the question would still arise if this is not straying into an area of exclusive competence of the federal legislature. To address this particular difficulty, some supporters of the Lagos Law have invoked the common law doctrine of “pith and substance” (particularly associated with Canada).

Incidentally, a criticism of the Lagos invocation of the doctrine of pith and substance is that the approach did not clearly establish the state’s constitutional legislative competence over arbitration in the first place. As it happens, that criticism has been met in this essay and in the more detailed journal article in tracing a state’s power to enact arbitration legislation to its powers in respect of trade and commerce and for the industrial and commercial development of the state. Nevertheless, there is even so a need to address the matter of potential straying into an area of federal legislative competence. In this respect an extension of the pith and substance argument, by considering and invoking a further principle called “the concurrency principle” (also particularly associated with Canada), together with constitutional interpretation principles laid down by the Nigerian Supreme Court, as well as the private nature of and party autonomy principles underlying arbitration,  provide a sound doctrinal basis for accepting that both the Nigerian federal and states’ legislatures can have coexisting legislative competences over arbitration – even in relation to interstate and international disputes.

The concurrency principle is to the effect that where constitutional powers of the federal and state authorities overlap, the features of a law passed by one of them relating to its area of competence may be as important as those which touch upon the other’s areas of competence. In such case, it would not be possible to allocate legislative competence exclusively to either government. In other words, each of the legislatures concerned would be within its constitutional authority to enact such legislation. In respect of arbitration legislation in particular, this should not really pose a problem in a federal structure since separate federal and state legislation both extending to interstate commerce arbitration and international arbitration can coexist without conflict – even if they contain provisions differing in particular respects. As the Supreme Court has acknowledged, the mere existence of differing provisions does not alone ipso facto create inconsistency; see Attorney-General of Ogun State v Attorney-General of the Federation, especially per Fatayi-Williams CJN and Idigbe JSC.

In relation to constitution interpretation principles, the Supreme Court reiterated in Aberuagba that the fundamental principle is that such interpretation as would serve the interest of the Constitution and would best carry out its objectives and purpose should be preferred and that relevant provisions must be read together, not disjointly. On the private nature of arbitration and the principle of party autonomy, it is widely accepted that the parties should have the freedom to determine the law applicable to their arbitration not only in terms of substantive law but also in respect of the overarching lex arbitri. In that respect an approach which widens and enhances such choice is to be preferred to an approach which restricts choice. In the Nigerian context, the approach which enhances choice is that which allows a federal arbitration regime to exist side by side with state regimes, leaving informed parties with the ability to select the most suitable for their purposes. This much seemed to be acknowledged by the Court of Appeal in Stabilini and was commended as “making sense”. It is also the approach followed by the court of first instance in Etuk and, it is submitted, a far superior approach to the “covering the field” approach later invoked by the Court of Appeal in the same case.

As proposals for new arbitration legislation are still going through parliamentary processes, it is considered that a future federal arbitration legislation should not repeal or jeopardise state arbitration legislation. Rather, it should follow the approach of the Lagos State legislation which was commended by the Court of Appeal in providing that parties to arbitration arising out of an interstate or international transaction have the choice to select as between the federal legislation and an appropriate state arbitration legislation. It is submitted that this is the approach most suitable for advancing the causes of attracting trade and investment to Nigeria generally, of attracting arbitration business to Nigeria and specific Nigerian states, and for advancing the long pursued goal of presenting Nigeria as an arbitration friendly jurisdiction and viable arbitration centre.

Third Party Challenge of Arbitration Agreement in Nigeria

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A recent decision of the Nigerian Court of Appeal on whether a third party can challenge an arbitration agreement in Nigeria, i.e. whether a person who is not a party to an arbitration agreement can bring an action in the courts to challenge the arbitration proceedings based on the agreement, has stirred up some controversy. The judgment of the Court of Appeal in Statoil Nigeria Ltd & Anor v Federal Inland Revenue Service & Anor which was delivered in June 2014 has been reported recently in (2014) LPELR-23144.

In essence, the Court of Appeal held that the Federal High Court was justified to refuse an application to stay its proceedings in which the arbitration agreement and proceedings were challenged by a third party on the basis that the third party had locus standi to bring the challenge before the courts. The key facts of the case are as summarised below.

The Nigerian National Petroleum Corporation (NNPC) entered into a production sharing contract with Statoil (and others); the production sharing contract contained a clause that disputes should be referred to arbitration; following a dispute, the parties commenced arbitration under the Nigerian Arbitration and Conciliation Act.

The Federal Inland Revenue Service (FIRS) which was not a party to either the production sharing contract or arbitral agreement or, for that matter, the arbitral proceedings took the view that the issues/disputes between the parties before the arbitral tribunal were “in essence, issues, and controversies arising from the differing interpretations of the Petroleum Profit Tax Act and other tax Legislations and that these issues/disputes and controversies are within the jurisdiction of the Federal High Court.” Accordingly, the FIRS commenced an action by Originating Summons in the Federal High Court seeking declaratory reliefs including whether the arbitral tribunal had jurisdiction to entertain a matter dealing with taxation – especially as an award might impinge on the right of the FIRS “to assess and collect tax and generate revenue for the Federal Government of Nigeria.”

According to the Report of the case, the challenge by Statoil (and Texaco) to the jurisdiction of the Federal High Court to hear and determine the originating summons was based on the grounds that FIRS was not a party to the arbitration agreement and lacked legal standing to institute the summons; that the Originating Summons constituted an abuse of the court process; that the Originating Summons was filed in violation of the Arbitration and Conciliation Act. It was also contended that the Originating Summons was vexatious, oppressive and an abuse of judicial process based on an allegation of collusion between the NNPC and the FIRS in the filing of the Originating Summons.

The Federal High Court dismissed the objections to its jurisdiction and the request to stay its proceedings and it was this dismissal that went on appeal to the Court of Appeal. In reaching its decision that the Federal High Court was justified to dismiss the objections to its jurisdiction, the Court of Appeal seemed to focus mainly on the question whether the FIRS had locus standi to commence the Originating Summons before the Federal High Court in the extant circumstances. The Court said that considering that a party to an arbitration agreement can challenge the jurisdiction of the tribunal or claim that the arbitration agreement was void, then a person or authority (e.g. FIRS) who was not a party to the arbitration agreement should not be debarred from seeking declaratory remedies from the court, if he complains that the arbitral proceedings or an award made under the arbitral agreement would “constitute an infringement of some provisions of the Constitution or the laws of the land or impede her constitutional and statutory functions, or powers.”

The Court of Appeal also held that the appellant oil companies had made a tacit admission that FIRS had locus standi to commence the Originating Summons by accepting in their affidavit that an arbitral award favourable to them would direct that tax returns prepared by them (rather than NNPC) should be filed with the respondent (FIRS) and had conceded that the FIRS had a statutory duty (inter alia) to assess and collect tax.

The Court of Appeal also noted that in Nigerian Ports Authority vs Panalpina World Transport (Nig) Ltd (1973) 1 All NLR (Pt.1) 486, the Supreme Court held that an arbitral award made by a body called the Arbitration Board was given in excess or lack of jurisdiction and was thus illegal and null; that having so held, the Supreme Court also granted consequent declaratory reliefs in respect of assets including immovable property situated outside the jurisdiction of the trial court. The Court of Appeal thus took the view that the importance of the Supreme Court decision was “to show that an arbitral agreement could be challenged and declared a nullity by a competent Court in a substantive action or originating summons on grounds of excess or lack of jurisdiction on the Arbitral Tribunal, or that the agreement was ab initio, null and void, having no effect in law or in fact.”

The Court of Appeal also relied on Order 3 rules 6 and 7 of the Federal High Court (Civil Procedure) Rules, 2009, to the effect that any person who claims “to be interested under a deed, will enactment or other written instrument” or who claims “any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment” is entitled to seek declaratory reliefs by Originating Summons.

Finally, the Court of Appeal dismissed the allegation of collusion between the NNPC and the FIRS; it held that a person, body or authority that instituted an action in a Court of Justice to protect or secure statutory or constitutional rights, privileges, or immunity, etc, could not be said to be acting in collusion.

On the face of it, there is logical internal consistency to the decision of the Court of Appeal. On the other hand, the problems with the decision seem to stem more from what it overlooks than what it actually decided. It is true, for example, that Order 3 Rule 6 of the Federal High Court Rules allows a person to commence action by Originating Summons if he claims “to be interested under a deed, will enactment or other written instrument”. It would have been more helpful, however, if the court had undertaken a more detailed examination to conclude that “other written instrument” in that language encompasses an arbitration agreement or to decide whether it is to be interpreted more restrictively.

The predication on Order 3 Rule 7 of the same provision, that a person is entitled to commence action by Originating Summons if the interpretation of an enactment is in issue, appears stronger. Nevertheless, a consideration of other factors which the court seemed not to take into account would suggest that even that is not really as strong as it appears in the circumstances of a third party challenge to an arbitration agreement.

Arguably, the most critical factor that was overlooked or at least insufficiently considered is in terms of the provisions of the Nigerian Arbitration and Conciliation Act. In the first place, section 34 of that Act provides that a court shall not intervene in any matter governed by the Act except where so provided in the Act itself. The Preamble to the Act says that its purpose is “to provide a unified legal frame work for the fair and efficient settlement of commercial disputes by arbitration and conciliation” and also to make the New York Convention on the Recognition and Enforcement of Arbitral Awards applicable in Nigeria. Following on from the Preamble and considering its specific provisions, it is fairly clear that matters governed by the Act include arbitration agreements, arbitral proceedings as well as the recognition and enforcement of arbitral awards.

Section 4 of the Arbitration and Conciliation Act provides that if an action which is the subject of an arbitration agreement is brought before a court the court shall stay its proceedings if so requested by a party who makes the request not later than when filing his statement on the substance of the dispute. An interesting observation about the language of section 4 is that its focus seems to be on the parties before the court and not necessarily the parties to the relevant arbitration agreement; compare for example section 5 of the same Act which clearly focuses on circumstances when the parties before the court are also the parties to the arbitration agreement. Nevertheless, the terms of section 4 give us an indication of how the Court of Appeal might have approached the instant case differently.

As alluded to earlier, the focus of the Court of Appeal was principally on whether the FIRS had locus standi to bring the Originating Summons before the court. In fairness, it also seems that this was the first line of argument pursued on behalf of the oil companies. However, the fact that a party before a court might have locus standi and might be properly before the court is not of itself sufficient to deprive the court of its ability to exercise its jurisdiction to stay the proceedings. The terms of section 4 of the Arbitration and Conciliation Act contemplate that the parties in the action before the court might be properly before the court; hence it says that the party seeking a stay of proceedings must do so no later than when it submits its first statement on the substance of the dispute. It is also important to bear in mind the use of the imperative “shall” in section 4 i.e. the court “shall” stay its proceedings which suggests, at least prima facie, that the court must stay its proceedings following a prompt request.

Beyond section 4, the Arbitration and Conciliation Act also provides in section 12 that an arbitral tribunal shall be competent to rule on matters pertaining to its own jurisdiction. Ordinarily, this suggests that it is for the tribunal to decide on its own jurisdiction; however, it may be argued that this is not a total preclusion in all circumstances of the ability of courts to rule on the jurisdiction of an arbitral tribunal. The Court of Appeal pointed to the example of the Panalpina case where the Supreme Court held that the Arbitration Board lacked or exceeded jurisdiction. Another argument that may be raised along this line might depend on section 35 of the Act (also mentioned by the Court of Appeal) which provides that the Act’s provisions do not affect any other law by which certain disputes are not arbitrable or are only arbitrable on stated conditions. On the other hand, there is one important distinction from the Panalpina case which the Court of Appeal did not seem to address directly. The Panalpina case concerned a situation where an award had already been made whereas the present case is to prevent the holding of arbitral proceedings at all.

In light of the foregoing, while the Court of Appeal’s decision that the FIRS had locus standi in respect of the Originating Summons before the Federal High Court has a consistent logic to it, the decision’s main shortcoming is in terms of inadequate consideration of directly relevant provisions of the Arbitration and Conciliation Act. Specifically, the court should have paid attention to the provisions that require the lower court to stay its own proceedings, irrespective of whether the parties have locus standi and are properly before the court, at the request of a party who acts promptly when the matter before the court is the subject of arbitral proceedings.

The Court of Appeal’s decision might also have better reflected awareness of sensitivities about supporting and promoting international commercial arbitration and Nigeria’s perception as an arbitration friendly centre. It is in this respect that some of the critical commentaries on the Court of Appeal’s decision have been focused. Some of the already extant commentary suggest that the decision reverses the positive impressions that had been generated by recent decisions including especially Nigerian Agip Exploration Limited (NAE) v Nigerian National Petroleum Corporation (NNPC) & Anor CA/A/628/2011 of February 2014; and, Statoil Nigeria Ltd & Anor v NNPC & 2 Ors 2014 NWLR (Pt 1373) 1; (2013) 7 CLRN 72.

It may be that the Court of Appeal’s decision in Statoil v NNPC under consideration here is not as damaging as it might first appear. The decision should not be read as an open cheque for third party challenge of arbitration agreements in Nigeria. Rather the decision should be read as simply to the effect that in some circumstances a third party to an arbitration agreement has locus standi to file an action before the courts challenging the arbitration agreement. The decision is not per se to the effect that the court cannot stay its jurisdiction in such an action. It is thought that commentary highlighting this distinction and stressing the importance and need to exercise the courts’ jurisdiction to stay proceedings is more likely to be beneficial to the courts in appreciating the fine distinctions that often need to be made and the important sensitivities about arbitration friendliness. In any event, an authoritative decision on the matter by the Nigerian Supreme Court would be most welcome.