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The Federal Capital Territory High Court sitting in Wuse Zone 2, Abuja Coram: Nwosu-Iheme J. handed down a landmark decision giving appropriate procedural directions on the steps to be taken in the process of facilitating the recognition and enforcement of an Arbitral Award in Suit No. FCT/HC/CV/620/2022 between Dr. Marianne J. Ngoulla v. The Economic Community of West African States (ECOWAS) on the 28th day of March, 2023.

The Court refused to recognize and enforce an international Arbitral Award published by an Ad-Hoc arbitral Tribunal on the 30th day of May, 2022 for constituting an abuse of court process in light of the earlier proceedings for the annulment of the same award.

The decision stems from an Originating Motion filed by the Applicant; Dr. Marianne Ngoulla, a Belgian/Cameroonian National, to enforce an award in the sum of $3,365,444.00 (Three Million, Three Hundred and Sixty-five Thousand, Four Hundred and Forty-four US Dollars) only against the ECOWAS Commission owing to alleged outstanding financial entitlements arising from a consultancy contract.

Before the commencement of the enforcement proceedings before Nwosu-Iheme J, the Award-Debtor – ECOWAS Commission had filed a Motion to set aside the Award on several grounds as provided in the enabling law. Consequent upon receipt of the Motion to set aside the Award, the Award-Creditor the filed a motion for the recognition and enforcement of the Award before a different division of the Federal Capital Territory High Court, whilst opposing the application for annulment of the Award before a different court.

Premised on this apparent abuse, the Award Debtor filed a preliminary objection challenging the competence of the Originating Motion and by extension the jurisdiction of the court to entertain the Motion for recognition and enforcement. In reaction to the objection, the Award-Creditor filed a Motion before Nwosu-Iheme.J for consolidation of the two applications which were not before same Judge but before two different divisions of the court.

The Learned Trial Judge in upholding the objection and striking out the motion to recognize and enforce, held thus:

“31. (1) An arbitral award shall be recognised as binding, and subject to this section and section 32 of the Acts, shall upon application in writing to the court, be enforced by the court. (32). Any of the parties to an arbitration … may request the court to refuse recognition or enforcement of the award. It is evident and uncontroverted that the application to set aside the award is first in time and thus application to enforce the award is later in time. The application before me is clearly comprised of same parties and same subject matter which is a multiplicity of actions. The sections 31 and 32 of ACA are clear, the award cannot be enforced when an application to set aside the award is being sought.”

(See also section 58(3) of the Arbitration & Mediation Act, 2023).

The Trial Judge Further held thus:

“It is clear that the application before me presently in view of the matter already before my Learned Brother Hon. Justice Agbaza to set aside the award amount to an abuse of court process”.

The law is trite that when an action is subject or contingent on another, the act must await the corresponding action. For this proposition as it relates to Arbitral Awards see the cases of RAZ PAL GAZI CONSTRUCTION LTD. v. FCDA (2001) LPELR-2941 SC and SHELL TRUSTEES NIG LTD v. IMANI & SONS LTD. (2000) 6 NWLR (PT.662) Page 639.

Furthermore, the Trial Judge held that the application for consolidation of both motions is without merit as the two applications were not before the same court to enable him consolidate both and entertain them together. Contrariwise, the appropriate procedure under the Rules of Court is to apply to the Honourable Chief Judge of the Court to transfer the later application for recognition and enforcement to the court which was first seized with the application that is earlier in time for annulment of the same award, in order to entertain both applications involving the same subject matter.

The Trial Court agreed with our arguments advanced by our Lead Counsel; Michael Jonathan Numa, SAN and accordingly struck out the Originating Motion for constituting an abuse of judicial process.

We are pleased to have represented the ECOWAS Commission in this contentious litigation. Our dispute resolution team who participated in these proceedings includes Michael Jonathan Numa SAN, Emmanuel C. Sogo, and J. P. Okako (Miss).

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