A

AR "When parties enter into agreement and there is an arbitration clause whereby the parties must first go for arbitration, the defendant in a case where the other party has filed a suit should ask for a stay of proceedings pending arbitration. That does not amount to a submission to trial. See Fawehinmi Construction Company Ltd V. O.A.U (1998) LPELR - 1256 SC per Belgore JSC. Where a defendant fails to raise the issue of arbitration clause and rely on same at the early stage of the proceeding but rather takes positive step in the action, he would be deemed to have waived his right under the arbitration clause.

 

An application for stay of proceedings pending arbitration should be made in time as provided by Section 5 of the Arbitration and Conciliation Act.

See Akpaji V. Udemba (2002) LPELR - 7071 CA page 13 per Ubaezonu JCA, BCC Tropical Nig. Ltd V. Government of Yobe State (2011) LPELR - 9230 pages 16 - 17 per Dongban Memsem JCA. Section 5 of the Arbitration Law Cap 10 Laws of Adamawa State 1997 provides as follows: "If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any Court against any other party to the submission, or any other person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that Court to stay the proceedings, and that Court if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings."

 

Per ABIRIYI, J.C.A