STAY OF COURT PROCEEDINGS PENDING ARBITRATION: AN ANALYSIS OF SECTION 4 AND 5 OF THE ARBITRATION AND CONCILIATION ACT 1988
SERIKI ABIMBOLU AJOKE
MATRIC NUMBER. 14/68IN031
BEING A GRADUATE SEMINAR SUBMITTED TO THE FACULTY OF LAW,UNIVERSITY OF ILORIN, ILORIN , NIGERIA, IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE AWARD OF THE DEGREE OF MASTERS IN LAW (LL.M)
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The court proceeding would therefore be stayed pending arbitration. However, this paper contends that the section 4 and 5 of the Act are contradictory. While section 4 mandates the court to grant stay of proceedings, section 5 gives the court the discretionary power to grant stay of proceedings. A critical analysis of the sections is attempted in the work. The research will distinguish the sections objects and scope and identifies flaws and interpretation. The research shall attempt to reconcile both sections.
The Arbitration and Conciliation Act of 1988 which this work sets to research upon is, to say the least, is fraught with controversies. Sections 4 and 5 of the Act border on stay of legal proceedings to allow parties to arbitrate. A careful examination of these sections brings up conflicts. While the wordings of the draftsmen in section 4 of the Act portends a mandatory duty on the court to stay legal proceedings pending an arbitral process is concluded, the next section which is section 5 presents a disturbing and conflicting thought. The court is to exercise discretion on the stay of proceedings when such an application is made. This work will do a critical analysis of section 4 and section 5 of the Act. Pertinent to this research is the consequences of the restriction placed on the judicial powers. It is important to note that before the rights of parties to invoke the judicial powers of the court to enforce arbitration agreement was included in the statute books; the courts have recognized the agreement of parties to suspend litigation proceedings pending the conclusion of the arbitration and making of arbitral award. A provision known as the SCOTT V AVERY CLAUSE is included in the terms of a contract to the effect that no action shall be brought in respect of a dispute arising from the contract until arbitration has been concluded and award has been made.
Historically, one of the enduring provisions in arbitration law and practice is the power of the national court to stay a case pending before it in favour of arbitration proceeding.
A stay of proceeding is always considered at the request of a party to an arbitration agreement. The disposition of the court towards ordering stay of proceedings was conditioned on a party fulfilling procedural and substantive provisions of the law. Under most states laws, the courts powers to stay proceedings were discretionary. A stay of proceedings is a ruling of the court in a civil or criminal procedure, halting further legal process in a trial. The court can subsequently lift the stay and resume proceedings. However, a stay is sometimes used as a device to postpone proceedings indefinitely.
Nigerian courts must not interfere...