Is_It_Permissible_Under_Nigerian_Law_to_Waive_the_Right_to_Apply_to_Set_Aside_an_Arbitral_Award

Is it permissible under Nigerian law for an aggrieved party to waive the right to apply to set aside an Award. by Richard Ayodele Akintunde* Introduction Many Joint Operating Agreements (“JOA”) in the Oil industry in Nigeria today prescribe Arbitration as a dispute resolution mechanism. This is not surprising because business men elect for arbitration in commercial disputes (despite its cost implication) to get results within a short time. With contracts involving huge sums of money Arbitration is key to getting effective results without delay as it is meant to dispose of cases with speed. One of the advantages of arbitration over litigation is that parities have a freedom of choice of tribunal, venue, law and procedure. A fair number of the Arbitration clauses in these JOAs prescribe institutional arbitrations as opposed to ad hoc arbitrations. It is typical to find clauses in the arbitration agreements which prescribe the incorporation of the rules of the arbitral institutions into the agreement. A typical example is a clause like this: “Any dispute, controversy or claim arising out of or in connection with this Agreement or the operations carried out under this Agreement, including, without limitations, any question as to its construction, existence, validity, interpretation, enforceability or termination, shall be referred to and finally resolved by arbitration under the Rules of the London Court of International Arbitration (the “LCIA Rules”) which Rules are deemed to be incorporated by reference in this Article.” One notable rule in the rules of the London Court of International Arbitration (“LCIA Rules”) is Article 26.9 which provides as follows: “All awards shall be final and binding on the parties. By agreeing to arbitration under these rules, the parties undertake to carry out any award immediately and without any delay (subject only to Article 27); and the parties also waive irrevocably their right to any form of appeal, review or recourse to state court or any other judicial authority, in so far as such waiver may be validly made. Article 27 of the LCIA Rules referred to in Article 26.9 only deals with “Correction of Awards and Additional Awards”. The underlying reason for Article 26.9 of the LCIA rules is apparently to ensure that arbitrations conducted under the LCIA Rules have a note of finality so that the rights and obligations of the parties are conclusive without further subjecting them to delays by reviews, appeals and recourse to National courts. The doctrine of estoppel by conduct, though a common law principle has been enacted into the body of laws in Nigeria as section 151 of the Evidence Act. It is in these terms: “When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.” Consequently, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him. See: Tikatore Press Limited v. Abina The question therefore is – Is it permissible under Nigerian law for an aggrieved party to waive the right to apply to set aside an Award' This question is timely because of the increasing spate of applications to set aside Awards once the decision is not favourable to a party. The applications are undermining arbitration as an effective mode of dispute resolution by causing severe delays and prejudice to the successful party who is unable to enforce the arbitral award for several years. If such waiver can be validly made it will definitely nip in the bud many of such applications and save time. Judicial Powers of Nigerian Courts under Section 6 of the 1999 Constitution. It is not in doubt that Section 6 of the 1999 Constitution of the Federal Republic of Nigeria vests judicial powers of the federation and the States in the Courts in Nigeria and defines the nature and extent of such judicial powers. Section 6(6) (a) & (b) of the Constitution provides that: “(6) The judicial powers vested in accordance with the foregoing provisions of this section – (a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law; (b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligation of that person;” To determine the extent of judicial powers of Nigerian Courts under Section 6 of the 1999 Constitution, one must ask the question: What is the main objective of Section 6 of the Constitution' In the case of N.N.P.C. v. Fawehinmi , Ayoola J.C.A. (as he then was) provided the answer to the objective of Section 6 of the 1979 Constitution (which is in pari materia with Section 6 of the 1999 Constitution) thus: “Section 6 of the Constitution which vests judicial powers of the Federation and the States in the courts and defines the nature and extent of such judicial powers, does not directly deal with the right of access of the individual to the Court. The main objective of Section 6 is to leave no doubt as to the definition and delimitation of the boundaries of the separation of powers between the judiciary on the one hand and other organs of government on the other in order to obviate any claim of the other organs of government, or even attempt by them to share judicial powers with the courts. It is not intended to be a catch all, all purpose provision to be pressed into service for determination of questions ranging from locus standi to the most uncontroversial questions of jurisdiction.” Also in the case of Amadi v. N.N.P.C Karibi-Whyte J.S.C. on this same point stated thus: “It is clear that apart from the definition of the nature and extent of judicial powers, section 6 does not deal directly with the right of access to court. It is obvious that section 6 concerns itself with the delimitation of the separation of powers between the judiciary and the other departments of the constitution……. The constitutional right of access to court does not however preclude statutory regulations of the exercise of this right….. Regulations of the right of access to court abound in the rules of procedure and are legitimate.” Section 6 of the 1999 Constitution is therefore not a catch all provision and it does not deal directly with the right of access of the individual to court. Statutory regulations and rules of procedure in addition to relevant provisions of the Constitution conferring jurisdiction and directing the manner for invoking the judicial powers are the relevant and legitimate materials which deal directly with the right of access of the individual to court. On this topic, it is the Arbitration and Conciliation Act, Cap A18, LFN 2004 that regulates the manner for invoking the judicial powers of Courts in arbitration matters. Section 29(1) of the Arbitration and Conciliation Act Section 29(1) of the Arbitration and Conciliation Act, provides that: “A party who is aggrieved by an arbitral Award may within 3 months- (a) From the date of the Award; or (b) In a case falling within section 28 of this Decree, from the date the request for additional award is disposed of by the arbitral tribunal, by way of application for setting aside, request the court to set aside the award in accordance with subsection (2) of this section. In the case of Araka v. Ejeagwu the Supreme Court per Kastina-Alu J.S.C. (as he then was) stated thus: “In the present case, although the award was made on the 8th of September 1994, the motion to set aside was brought on 25th April, 1995. Consequently, since the motion on notice to set aside the award was filed long after three months in violation of Section 29(1) of the Arbitration and Conciliation Act, it was incompetent and the trial High Court had no jurisdiction to entertain it. It is trite law that without jurisdiction a Court cannot invoke its judicial powers under Section 6 of the Constitution. In the case of Awoniyi v. AMORC , Karibi-Whyte J.S.C stated thus: “I find it somewhat strange to accept the submission of Mr. Olufon that this court can, relying on the provisions of Section 6(6) (a)&(b) of the Constitution 1979 make consequential orders against any person whatsoever. The constitutional provision referred to and relied upon are very clear. They only enable the exercise of inherent powers where there is jurisdiction. In other words, a court cannot in the absence of jurisdiction exercise inherent powers.” In the case of Maritime Academy of Nig. v. A.Q.S. the Court of Appeal per Owoade J.C.A stated thus: “Arbitration and Conciliation Act was made for easy settlement of commercial disputes and ordinarily or as a general rule does not want the intervention of the courts in proceedings subjected by the Agreement of the parties to the jurisdiction of the arbitration panel. The commencement portion of the Arbitration and Conciliation Act, Cap. 19 Laws of the Federation of Nigeria, 1990 says: ‘An Act to provide a unified legal framework for the fair and efficient settlement of commercial disputes by arbitration and conciliation; and to make applicable the Convention on the Recognition and Enforcement of Arbitral Awards (New York Convention) to any award made in Nigeria or in any contracting state arising out of international commercial arbitration’, and in section 34 of the Act: ‘A court shall not intervene in any matter governed by this Act except where so provided by the Act.” It is therefore clear from the foregoing, that the jurisdiction of a Nigerian Courts to exercise the judicial powers as enshrined in Section 6 of the 1999 Constitution in Arbitration matters can only be invoked in the manner provided for in the Arbitration and Conciliation Act pursuant to Section 34 of the Act. A-G Bendel State v. A.G Federation & Ors. Some have argued that the decision of the Supreme Court of Nigeria in the case of A-G Bendel State v. A.G Federation & Ors., is authority for the principle that a State or individual cannot contract out a constitutional provision or rule of public policy laid down by a statute. The main issue presented for determination in the case was the constitutional validity of the Allocation of Revenue (Federation Account etc.) Act 1981. One of the issues considered by the Supreme Court was whether since the Plaintiff (Bendel State) has collected its own allocation of the revenue and has therefore taken benefit under the Act, it is not open to question its validity. It was further submitted that the Plaintiff as a consequence has waived its right to ask for declaration as to the validity of the Act. The full excerpts of the relevant portions of the decision of Fatai-Williams CJN at pages 338 to 339 of the judgment reads thus: “There is another answer to this submission. Neither a State nor an individual can contract out of the provisions of the Constitution. The reason for this is that a contract to do a thing which cannot be done without a violation of the law is void. See Maritime Electric Co. Ltd. v. General Dairies Ltd (1937) A.C. (P.C.) 610 at pp. 620-621; and South Ottawa v. Perkins U.S. Supreme Court Reports, (24 Lawyers Edition) 154 at page 157 where Mr. Justice Bradley who delivered the opinion of the court observed, rightly in my view, as follows:- ‘There can be no estoppel in the way of ascertaining the existence of a law. That which purports to be a law of a State is a law or it is not a law, according as the truth of the fact may be, and not according to the shifting circumstances of parties. It would be an intolerable state of things if a document purporting to be an Act of the Legislature could thus be a law in one case and for one party, and not a law in another case for another party; a law today, and not a law tomorrow; a law in one place, and not a law in another in the same State. And whether it be a law or not a law is a judicial question, to be settled and determined by the courts and judges. The doctrine of estoppel is totally inadmissible in the case. More importantly, it seems to me that the plaintiff (Bendel State), when it received its allocation of revenue, received it in its capacity as a government with obligation to make financial provision for the services which it provides for the people of Bendel State. It will only not be in the public interest, but it will also be contrary to public policy and to refuse money needed for such services on the ground that there is a claim with respect to the allocation in Court. (Spencer Bower on “Estoppel by Representation” – 2nd Edition – paragraph 141 at page 135). It would have been most irresponsible for it to do so. In these circumstances, the contention that Bendel State is estopped from instituting these proceedings or that it has waived its right to sue has no merit whatsoever and I reject it in its entirety.” Bello J.S.C. in his contribution on this issue at page 344 of judgment stated thus: “However, despite our several requests to learned counsel during the hearing of the case for authorities, no relevant case has been brought to our attention showing that a State may be estopped from challenging the constitutionality of a statute enacted for the general public interest of its entire citizens, such as the Act in dispute, because the State has taken benefit for its citizens from the statute. It is significant, however, to observe that estoppel is an equitable doctrine which rests on substantial grounds of prejudice or change of position and not on mere technicalities: Ashwander v. T.V.A. 279 U.S. 288 at 348 (56 S.Ct. 466 at 472); United Overseas Bank v. Jiwani (1977) 1 All E.R. 733. The doctrine is founded on sound principle of equity which is an integral part of the law of Nigeria. I would readily apply it to appropriate constitutional cases but I would refrain from doing so in the case in hand partly because I have not been convinced that estoppel can be applied to a State under the circumstances of the case and partly because the learned Attorney-General of the Federation has not shown that the Federal Government has in any way been prejudiced by reason of the fact that Bendel State has been receiving its share of the revenue under the Act in dispute or that the Federal Government has altered its position in a way it would not have done if Bendel State had not been receiving its share of the revenue under the Act.” A careful look at the Supreme Court’s decision in the case of A-G Bendel State v. A.G Federation & Ors. [supra] will show that it cannot be authority for the principle that a party cannot waive a statutory right. In that case a public right was in contention whereas in the right to waive pursuant to Article 26.9 of the LCIA Rules is a purely personal, private and domestic right. It is also evident from the judgment of Fatai-Williams C.J.N. and Bello J.S.C. that (1) a contract to do anything which is not in violation of any law is not void; (2) estoppel is not permissible when the question is a determination of the existence of a law; (3) estoppel is an integral part of the law of Nigeria and will be applied in appropriate constitutional cases and (4) estoppel and waiver were not applicable to the specific facts and circumstances of the case of A-G Bendel State v. A.G Federation & Ors. [supra]. The case of Attorney-General Bendel State [supra] had nothing to do with arbitration which is regulated by the Arbitration and Conciliation Act. Under the Arbitration and Conciliation Act, jurisdiction of Courts to intervene in Arbitral matters is regulated by Section 34 of the Act which specifically states that; ‘A court shall not intervene in any matter governed by this Act except where so provided by the Act. Each case must be considered on its own peculiar facts and circumstances. In the case of Skye Bank Plc v. Akinpelu Ogbuagu J.S.C at pages 213 to 214 on the principle stated thus: “Before concluding this appeal, it must be borne in mind always that each case must be considered on its own facts and circumstances. No one case is identical with the other or another. They may be similar but never identical. So it is with the instant case leading to this appeal. This must be so, as it is settled that a decision is only an authority for what it decides and nothing more. See the cases of Western Steel Work Ltd. & Anor. V. Iron & Steel workers Union of Nigeria & Anor. [1987] 1 NWLR Pt. 49; 284…. Okafor & 3 Ors v Nnaife [1987] 4 NWLR Pt. 64; 129.” A party who with his eyes wide open voluntarily enters into a JOA incorporating the LCIA Rules should not be allowed to resile from same. In the case of Ariori V. Elemo Eso J.S.C. reviewed the earlier decision of the Supreme Court in the case of A-G Bendel State v. A.G Federation & Ors. [supra] and went on to hold at page 13 of the judgment that waiver is permissible for: “Fundamental rights that are for the sole benefit of the private individual” Also, in the case of Odu’a Investment Company Limited v. Talabi the Supreme Court per Ogundare J.S.C. at page 83, paras B – C on waiver of statutory provisions stated thus: “The law appears to me to be that a person who is sui juris can waive a right conferred on him by a statute where the right is for his sole benefit and the State has no interest. Where the State has an interest in the matter in the sense that public policy is involved, such a right cannot be waived.” Rights for the sole benefit of individual One must then ask the question: Is the right to apply to set aside an Award under Section 29(1) of the Arbitration and Conciliation Act for the sole benefit of an aggrieved party' It is clear from the provisions of Section 29 of the Act that only “a party who is aggrieved by an Arbitral Award “may” within 3 months from the period specified in paragraphs (a) and (b) apply to set aside the Award. The right is not shared by members of the public or the public at large but it is one specific to the Applicant. Section 29 of the Act uses the word “may” instead of “shall” to describe what an aggrieved party may do. We submit that the use of the word “may” in this section means that it is not mandatory for an aggrieved party to apply to set aside an Award. In the case Odedo v. INEC Tobi J.S.C. on the dichotomy between the words “shall” and “may” stated thus: “And what is more the submission of Mr. Nzelu underrates the time tested, time honoured and time proved principle of construction of statute by drawing the cleavage or dichotomy between the words “shall” and “may” as construing a mandate, obligation or command and permissiveness or discretion respectively” Section 29 of the Act also requires the Applicant to apply to set aside the Award within three (3) months for a Court to invoke its judicial powers. In the book – “Law and Practice of Arbitration and Conciliation in Nigeria” , the learned authors on this same point at page 271 under the heading “Time for Application” stated thus: “The application must be made within 3 months either from the date of the award or, where an additional award has been made by way of correction or interpretation under section 28, within 3 months of the date when the request for additional award was disposed of by the arbitral tribunal. If the application is not made within the stated time limit, the right is lost and barred. The right of an aggrieved party to apply to set aside the Award is a purely personal, private and domestic right and for its sole benefit. The right is not shared by members of the public or the public at large but it is one specific to the aggrieved party and can be waived. In the case of F & F farms (Nig.) Ltd. v. NNPC , Tobi J.S.C at page 401 paras. D – H on waiver of right contained in a statutory provision stated thus: “In my view, for purposes of waiver, matters affecting the jurisdiction of the court should be categorized in two areas of compartments. These are jurisdictional matters affecting the public in the litigation process and those affecting the personal, private or domestic rights of the party. While the former cannot in law be waived, the latter can be waived in law. An example of the former is filing an action in a court that has no jurisdiction to hear the matter. For example, filing an action in the High Court to determine a dispute between two States in the Federation of Nigeria. Certainly, a State High Court has no jurisdiction and as the issue involves a public right, none of the parties has the competence to waive it. I come to the second one. A good example is pre-action notice. In my view, service of pre-action notice is a personal, private or domestic right of the party to be served. He is the beneficiary of the service and so can waive it at will or on his terms. The right is not shared by members of the public or the public at large but is one specific to the party. If he decides to respond to the writ without service on him, he has the right to do so and the courts cannot hold that as the issue affects jurisdiction, he cannot waive his right to be served. In my view, where an issue of jurisdiction, like the issuance of pre-action notice is domestic to the parties, it can be waived at the pleasure and choice of the beneficiary. I seem to be repeating myself. I need the repetition.” Waiver of right to object Section 33 of the Arbitration and Conciliation Act under the head “Waiver of right to object” provides as follows: “A party who knows- (a) That any provision of this Act from which the parties may not derogate; or (b) That any requirement under the arbitration agreement Has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance within the time limit provided shall be deemed to have waived his right to object to the non-compliance.” A party who voluntarily agrees to arbitration under the LCIA Rules and fully participated in same without any objection as to any derogation from any provisions of the Arbitration and Conciliation Act including Section 29 of the Act should be estopped and precluded from applying to set aside a LCIA Award as in accordance with Section 33 of the Arbitration and Conciliation Act it has waived whatever right (if any) it has to object to the provisions of Article 26.9 of the LCIA Rules. By incorporating the rules of the LCIA into the JOA by reference, the rules of the LCIA have been elevated from just rules of procedure to an integral part of the terms and conditions of the JOA between the parties. In the case of Iwuoha v. N.R.C. the Supreme Court per Kutigi J.S.C. on the principle or doctrine of incorporation by reference stated thus: “The principle or doctrine of incorporation by reference is one that is frequently applied in the construction of documents where from the documents or document produced by the parties, it is clear that some other evidence must have been in the contemplation of the parties. In such a case the document put forward compels the court to look beyond and ascertain precisely the other evidence which by necessary implication the parties must have had in their minds at the time of the contract.” See also: Awolaja v. Seatrade G.V. where Ayoola J.S.C stated that: “An operative incorporation clause is a clear manifestation of the intention of the parties that the terms of one document be incorporated by reference in the other.” Shell Egypt West Manzala GmbH & anor v Dana Gas Egypt Ltd In the case of Shell Egypt West Manzala GmbH & anor v Dana Gas Egypt Ltd , Mr. McCauhran QC who appeared for Shell relying on the judgment of Ramsey J. in Essex County Coucil v. Premier Recycling Ltd. submitted that for the purposes of Section 69 (1) of the 1996 Arbitration Act (which deals with leave to appeal on a point of law) any agreement to exclude the effect of the section must be clear and it was not difficult to draft such terms. He referred to examples that achieved such a result i.e Article 26.9 of the rules of the LCIA and Article 28.6 of the ICC Rules. In her judgment - Gloster J. followed the case of Corner v. C and C News PTY Ltd (unreported, 17th of March 1989, Supreme Court of New South Wales) per Yeldam J. where he stated thus: “… In my opinion both these comments properly reflect what is required in order that there may be a valid exclusion agreement. Such an agreement must demonstrate that the parties have adverted to the right of appeal which within the limits of the legislation would otherwise exist, and they must expressly exclude it.” The case of Shell Egypt West Manzala GmbH & anor v Dana Gas Egypt Ltd is authority for the point that by agreeing to arbitration under the LCIA Rules an aggrieved party has WAIVED IRREVOCABLY its right to any form of appeal, review or recourse to any state court including the Courts in Nigeria or other judicial authority in respect of the Award. Public policy Some have argued that to enforce the agreement in Article 26.9 of the LCIA Rules is to proceed against the rule of law and public policy. This argument cannot hold water because the right under Section 29 of the Act to apply to set aside an Award is for the sole benefit of the aggrieved party and not for the benefit of the public. It is a purely personal, private and domestic right of the party for its sole benefit. The right is not shared by members of the public or the public at large but is one specific to the aggrieved party and can be waived. To hold otherwise on the grounds of “public policy” will be dangerous. In the case of Sonnar Nigeria Limited v. Partenreederi M.S. (Owners of the Ship M.V. Norwind) & Anor. Eso J.S.C on whether it is proper to base its decision mainly on public policy stated thus: “…. It is dangerous for a court to base its decision mainly on public policy which indeed would be another means of avoiding the rules, law and procedure which govern a matter. Public policy is usually equated to public good. To ask a court to decide only as a result of public good, goes beyond the measure of liberalism in the application of the law or even viewing a matter from the socio-economic context of law.” Also in the case of W.C.C. Ltd. v. Batalha the Supreme Court per Pats-Acholonu J.S.C. followed the decision in the case of Printing and Numerical Registering Co. v. Sampaon (1875) L.R. 19 Eq. 462, 165 where Jessel, M. R. said: “it must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy, requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely, and voluntarily shall be held sacred and shall be enforced by courts of justices therefore, you have this paramount public policy to consider – that you are not likely to interfere with freedom of contract.” Where parties have entered into a contract or agreement voluntarily and there is nothing to show that same was obtained by fraud, mistake, deception or misrepresentation, they are bound on the grounds of public policy by the provisions or terms of the contract or agreement. This is because a party cannot ordinarily resile from a contract or agreement just because they later found that the conditions of the contract are no longer favourable to them. This is the whole essence of the doctrine of sanctity of contract and agreement. Doctrine of sanctity of contract In the recent decision of A.G. Rivers State v. A.G. Akwa Ibom State which involved contractual agreements between two State governments and an attempt by one of the States to resile from same, the Supreme Court of Nigeria through the Chief Justice of Nigeria (Kastina-Alu C.J.N) who read the lead judgment articulated clearly the whole essence of the doctrine of sanctity of contract and the approach of the Supreme Court of Nigeria to the issue at pages 82 to 85 of judgment thus: “As I have already pointed out the parties faithfully implemented the agreement for sometime before Akwa Ibom opted out. The agreement it can be seen above brought the dispute to an end. The parties are bound by the agreement. The parties are estopped by their conduct from disclaiming their acts. The doctrine of estoppel by conduct, though a common law principle has been enacted into our body of laws as section 151 of the Evidence Act. It is in these terms: “When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.” Also called estoppel in pais, this common law principle, which as shown above, has gained statutory acceptance in Nigeria, forbids a person from leading his opponent from believing in and acting upon a state of affairs, only for the former to turn around and disclaim his act or omission. Both the common and statutory law do not permit this conduct; that is why section 151 of the Evidence Act has used the emphatic phrase “neither he nor his representative in interest shall be allowed …” This principle was explained better in Ude v. Osuji (1998) 10 SCNJ at 22; (1998) 13 NWLR (Pt. 580) 1 at 8 paras. F-G thus: “The principle of estoppel by conduct is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted upon accordingly, then, once the other party had taken him at his word and acted on it, then the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance has been made by him. He must accept their legal relation as modified by himself even though it is not supported in point of law by any consideration, but only by his word or conduct. See Combe v. Combe (1951) 1 All ER 767 at 770.” See also Buhari v. I.N.E.C. (2009) All FWLR (Pt. 459) 419 at 517; (2008) 19 NWLR (Pt. 1120) 246. In the present case, the defendant must accept the legal relations as modified by them in the agreement they voluntarily entered into with the plaintiff. Surely, it will be inequitable to permit the defendants to walk out of the agreement which on the evidence before me was not obtained by fraud, misrepresentation or deception. In law, estoppel is an admission of something which the law views as equivalent to an admission by its very nature, it is not important and conclusive that the party whom it affects will not be allowed to plead against it or adduce evidence to contradict it. See Yoye v. Olubode (1974) 1 All NLR (Pt. II) 118; Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127 and Koiki v. Magnusson (2001) FWLR (Pt. 63) 167; (1999) 8 NWLR (Pt. 615) 492. In the present case, the defendants are estopped from resiling from the terms of the agreement they entered into with the plaintiff, they are strictly bound by them and this court will not allow them either to plead against them or to adduce evidence in their possession against them. I must stress here and this is also settled law that if parties enter into an agreement, they are bound by its terms. See also Hilary Farms Ltd. v. M/V Mahtra (2007) All FWLR (Pt. 190) 1417 at 1435; (2007) 14 NWLR (Pt. 1054) 210. It does not matter that in the instant case, the defendants have suddenly realised that the terms of the agreement they had entered into with the plaintiff are not favourable to them. Thus in Arjay Ltd. v. Airline Management Support Ltd. (2003) FWLR (Pt. 156) 943 at 990; (2003) 7 NWLR (Pt. 820) 577, the Honourable Court held as follows: “it is elementary law that where parties have entered into a contract or an agreement, they are bound by the provisions of the contract or agreement. This is because a party cannot ordinarily resile from a contract or agreement just because he later found out that the conditions of the contract or agreement are not favourable to him. This is the whole essence of the doctrine of sanctity of contract or agreement.” The defendants in the instant case have, by amassing further evidence, evinced an intention to, after setting aside the terms of agreement they voluntarily entered into, pursue the substantive matter to a logical determination on the merits. This smart move is not sanctioned by law. Thus, in the owners of the M.V. Lupex v. Nigerian Overseas Chartering & Shipping Ltd. (2003) FWLR (Pt. 170) 14-28 at 1445; (2003) 15 NWLR (Pt. 844) 469 at 491 para. G., this Court held thus: “The law is also settled that the mere fact that a dispute is of a nature eminently suitable for trial in a court is not a sufficient ground for refusing to give effect to what the parties have, by contract, expressly agreed to. See Re: an application by the Phoenix Timber Company Ltd. (Appeal of V/O Sovfracht) (1958) 1 Lloyd’s Rep. 305 at 308.” ……. No Court, a fortiori the Supreme Court, will allow itself to be used as an instrument of bad faith and breach of contractual obligations voluntarily entered into by parties before it. This court will be shirking in its judicial responsibility as the last court of the land if it refuses to intervene to stop a party before it from foisting bad faith and subterfuge on the other party or even the court itself. This is a proper case calling for this court’s intervention; because this is a court of justice, where justice is not only to be done but also to be seen to be done to the hilt. Conclusion In the light of the foregoing, the mere fact that Section 29 of the Arbitration and Conciliation Act gives a party a discretionary right to apply to set aside the Award is not a sufficient ground for refusing to give effect to what the parties have, by contract, expressly agreed to. Our courts in Nigeria will be shirking in their judicial responsibility if they refuse to intervene to stop a party before it from foisting bad faith and subterfuge on the other party or even the court itself. Our courts are courts of justice, where justice is not only to be done but also to be seen to be done. It is therefore my respectful view that the waiver of the statutory right granted to an aggrieved party in Section 29 of the Arbitration & Conciliation Act Cap A18 Laws of the Federation of Nigeria to apply to set aside an award is permissible under Nigerian law.