By Oliver Azi
Here is a legal argument that has been used in Nigerian courts for years. A party participates deeply in a business transaction; it receives and makes profit from that transaction. And then, when an arbitral tribunal rules against it and orders it to repay, it walks into court, opens a contract law textbook, and announces with great calm: “I never signed the arbitration agreement. The tribunal had no jurisdiction over me. The award is a nullity.”
It is a clever argument, dressed in the language of jurisdiction, privity, and consent but there are three things Nigerian courts take very seriously. And it almost always forces the other side into a lengthy battle just to enforce what the arbitrator already decided. On 6 March 2026, the Supreme Court of Nigeria heard that argument from 9Mobile and said a plain and final: No.
The decision in EMTS Ltd v. Afdin Ventures Ltd & Ors (SC/CV/1096/2024) is not just about a telecommunications company and two investment firms. It is about a question that sits at the heart of commercial arbitration in Nigeria: can a party that never signed an arbitration agreement still be bound by it? And the Supreme Court’s answer will reshape how lawyers advise clients; how arbitral tribunals exercise jurisdiction and how Nigerian courts deal with award enforcement going forward.
The Facts of the Case
The dispute traces to Suit No. FHC/ABJ/CS/288/2018, filed before the Federal High Court, Abuja Division. Two investment companies; Afdin Ventures Limited and Dirbia Nigeria Limited had placed funds into a structured investment arrangement connected to the 9Mobile telecommunications business. The governing documents were an Offer of Terms and a Custodial Agreement. Both contained an arbitration clause. Emerging Markets Telecommunications Services Limited (EMTS), the company operating the 9Mobile brand, was not listed as a signatory to either document.
The investment sums were not small. Afdin put in USD 13,300,910 and Dirbia put in USD 30,030,040. The Sole Arbitrator later found, on concrete and cogent evidence, that those funds were received by EMTS.When the investment arrangement broke down, Afdin and Dirbia sued in court.
Here is the crucial detail: it was the defendants, including EMTS that applied to have the matter referred to arbitration, invoking the arbitration clause in the very agreements EMTS would later claim had nothing to do with it. The Federal High Court, per Nyako J., referred the matter on 11 December 2019 with the concurrence of all parties and a sole arbitrator was appointed and proceedings ran for nearly three years.
On 2 September 2021, the Tribunal delivered a Partial Award on jurisdiction and on the 26th of September 2022, it delivered its Final Award. Typographical corrections followed on 18 October 2022 and 31 October 2022. The result was EMTS, together with the 5th and 6th Respondents Karington Telecommunications Limited and Premium Telecommunications Holdings N.V. was ordered, jointly and severally, to refund both sums to the investors.
What EMTS did next defines the entire shape of this litigation. On 31 October 2022, the very month the award was corrected and finalised, EMTS filed a separate action at the Lagos Division of the Federal High Court to set the award aside. Meanwhile, on 18 January 2023, Afdin and Dirbia moved before Nyako J. in Abuja to have the Final Award recognised and enforced under the Arbitration and Conciliation Act and the Federal High Court (Civil Procedure) Rules, 2019. The enforcement hearing came up on 26th of April 2023. EMTS’s counsel sought an adjournment on grounds of the lead counsel’s unavailability but the trial judge refused and counsel was invited to adopt the processes already filed on EMTS’s behalf.
The Counsel declined and the trial court struck out EMTS’s counter-affidavit and written address and granted the application for recognition and enforcement. EMTS appealed. The Court of Appeal dismissed the appeal in its entirety on 22 November 2024, affirming the trial court in Appeal No. CA/ABJ/660/2023. EMTS filed its Notice of Appeal to the Supreme Court that same day which was the 22nd of November 2024.
The Preliminary Objection: A Winning Argument That Still Lost
Before the Supreme Court heard a word about jurisdiction or privity, Afdin and Dirbia raised a preliminary objection. It had two independent grounds, and both were powerful.
The First Ground: The deposit order. On 2nd June 2023, the trial court granted a stay of the enforcement proceedings on condition that EMTS deposit the full judgment sum with the Chief Registrar within one month. EMTS never complied. It appealed the deposit order and the Court of Appeal dismissed that appeal on 10th October 2024. No further appeal was filed. The order stood, binding, and completely ignored.
The respondents relied on Oleksandr & Ors v. Lonestar Drilling Co. Ltd & Anor (2015) LPELR-24614(SC), Uwazurike & Anor v. Nwachukwu & Anor (2012) LPELR-19659(SC), NALSA & Team Associates v. NNPC (1991) LPELR-1935(SC), and Drexel Energy & Natural Resources Ltd & Ors v. Trans-International Bank Ltd & Ors (2008) LPELR-962(SC), arguing that a party in contempt of court cannot seek discretionary relief. They also relied on Military Governor, Lagos State & Ors v. Ojukwu (1986) ALL NLR 233.
The Second Ground: Order 6 Rule 3(5) of the Supreme Court Rules, 2024. This rule requires that within twenty-one days of filing a Notice of Appeal, an appellant must file proof that all cost orders have been paid into an escrow account in the Chief Registrar’s name. Failure to comply renders the appeal liable to dismissal. EMTS did not comply. The Court of Appeal Registrar filed a certificate of non-compliance on 24th February 2025. EMTS filed no reply brief to the preliminary objection at all.
The Supreme Court found the objection meritorious on both grounds. Citing Management Enterprises Ltd v. Otusanya [1987] 2 NWLR (Pt. 55) 179, Balogun v. Adejobi [1995] 2 NWLR (Pt. 376) 131, Odiase v. Agho & Ors (1972) 1 All NLR (Pt. 1) 170 at 176, Melifonwu v. Egbuji (1982) 9 SC 145 at 165, and Johnson v. Williams 2 WACA 248 at 254, the court confirmed that a subsisting court order must be obeyed whether it was correctly made or not. On the mandatory nature of Order 6 Rule 3(5), it relied on Chukwuogor & 3 Ors v. Chukwuogor & Anor [2021] 15 NWLR (Pt. 1799) 357 at 373, where the court held that “shall” is mandatory and admits of no discretion and Chairman, CEO, NDLEA Headquarters, Lagos & Ors v. Umah & Anor (2018) 7 NWLR (Pt. 1617) 350, which held that a certificate of non-compliance is ordinarily fatal. EMTS’s non-compliance was described by the court as “glaring,” “deliberate,” and “deprecated in the strongest terms” Despite all of that, the court proceeded to hear the appeal.
The reasoning is important and must not be misread. The court drew a clear distinction between defects that strip it of constitutional jurisdiction and defects that are serious but remain manageable through its inherent and statutory authority. It invoked Section 233 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which confers its appellate jurisdiction and Section 22 of the Supreme Court Act which empowers it to
“Make any order necessary for determining the real question in controversy.” The court held that EMTS’s procedural defaults, as grave as they were, did not extinguish its constitutional jurisdiction.
The court was equally open about the bigger reason it pressed on. This was not a routine civil appeal. It arose from the recognition and enforcement of a commercial arbitral award under the Arbitration and Mediation Act, 2023 a matter with implications for Nigeria’s standing in the international commercial community. Relying on its earlier decision in Metroline Nigeria Ltd v. Dikko [2021] 16 NWLR (Pt. 1761) 422(SC) at page 45, paras. A–F, where Rhodes-Vivour JSC had warned that litigants bringing “unsubstantiated and spurious challenges against otherwise good arbitration awards” ought to be discouraged, the court framed its decision to proceed as a deliberate policy choice to settle arbitration jurisprudence, restore investor confidence and demonstrate that arbitration in Nigeria need not be the beginning of an endless journey of “impediments, hick-ups, hurdles and uncertainties.“ The lesson for practitioners is unambiguous: this was a one-off exercise of inherent jurisdiction in circumstances of systemic commercial importance. It is not an invitation to treat Supreme Court Rules as optional in any case where the stakes are high.
The Main Question: Can a Non-Signatory Be Bound by an Arbitration Clause?
This is the question the case will be remembered for and it must be approached with the same precision the court used. EMTS, through her counsel, Paul Usoro SAN, raised two issues for determination:
The heart of the case was Issue One.
EMTS’s argument was doctrinally structured. An arbitral tribunal, like a court, gets its jurisdiction from the arbitration agreement. The arbitration agreement is a contract and a contract binds only its signatories. EMTS did not sign the Offer of Terms or the Custodial Agreement. The Tribunal itself acknowledged that EMTS was not a signatory, yet proceeded on the basis that EMTS was “inextricably intertwined” with the transaction. EMTS argued that reasoning was legally untenable.
EMTS relied on Madukolu & Ors v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 ALL NLR 587 for the principle that proceedings without jurisdiction are nullities; Dairo v. Union Bank of Nigeria Plc & Anor [2007] 16 NWLR (Pt. 1059) 99 at 139–140 and Awuse v. Odili & Ors [2003] 18 NWLR (Pt. 851) 116 at 158 for the principle that jurisdiction cannot be conferred by consent; Kano State Urban Development Board v. Fanz Construction Co. Ltd [1990] 4 NWLR (Pt. 142) 1 and NNPC v. Lutin Investments Ltd & Anor [2006] 2 NWLR (Pt. 965) 506 for the proposition that an arbitrator who exceeds jurisdiction renders the award liable to be set aside; and Dunlop Pneumatic Tyre Co. Ltd v. Selfridge & Co. Ltd [1915] AC 847 (HL), African Insurance Development Corporation v. Nigeria LNG Ltd [2000] 4 NWLR (Pt. 653) 494, and Ikpeazu v. African Continental Bank Ltd (1965) NMLR 374 for the doctrine of privity.
EMTS also argued a second limb: that the Tribunal had entertained allegations of fraud and criminal misrepresentation, matters that are non-arbitrable relying on UBA Plc v. Trident Consulting Ltd [2023] 14 NWLR (Pt. 1903) 95 and B.J. Export & Chemical Co. Ltd v. Kaduna Petrochemical Co. Ltd [2003] 7 NWLR (Pt. 819) 489. The respondents; Afdin and Dirbia through Igwe SAN and Magaji SAN, and the 3rd and 4th Respondents (First Bank of Nigeria Plc and First Nominees Nigeria Limited) through Ige, pushed back comprehensively.
On the failure to use the statutory set-aside procedure: The provision of Section 29(1) and (2) of the Arbitration and Conciliation Act, Cap A18 (applicable when the award was delivered on 26 September 2022), now re-enacted as Section 55(1)–(3) of the Arbitration and Mediation Act, 2023, gives an aggrieved party three months from receipt of an award to apply to court to have it set aside. EMTS did not comply with that mandatory timeline. Reliance was placed on Gusau v. Lawal & Ors (2023) LPELR-60152(SC), Okoronkwo v. INEC (2025) LPELR-80425(SC), Folarin v. Augusto (2023) LPELR-59945(SC), Mekwunye v. Imoukhuede (2019) LPELR-48996(SC), Amadi & Anor v. INEC (2012) LPELR-7831(SC), and Commerce Assurance Ltd v. Alli [1992] 9 NWLR (Pt. 232) 710. By declining to adopt its processes at the enforcement hearing, EMTS was deemed to have admitted the depositions in the respondents’ affidavit relying on Ugwuanyi v. NICON Insurance Plc (2013) LPELR-20092(SC) and Mabamije v. Otto (2016) LPELR-26058(SC).
On the non-signatory question, the respondents invoked Section 57 of the Arbitration and Conciliation Act (now Section 91 of the Arbitration and Mediation Act, 2023), which defines “party” to include “any person claiming through or under” a party to the arbitration agreement. They argued that recognised exceptions to privity, assignment, agency, alter ego, estoppel, and the group of companies’ doctrine all applied to the facts. They relied on Metroline Nigeria Ltd & Ors v. Dikko (2018) LPELR-46853(CA) and its Supreme Court sequel Metroline Nigeria Ltd v. Dikko [2021] 16 NWLR (Pt. 1761) 422(SC), as well as comparative authorities.
On fraud, the respondents relied on the doctrine of separability, Section 12(2) of the Arbitration and Conciliation Act, mirrored in Section 14(2) of the Arbitration and Mediation Act, 2023 affirmed in UBA Plc v. Trident Consulting Ltd [2023] 14 NWLR (Pt. 1903) 95 at 130, paras. B–F, and the House of Lords in Fiona Trust & Holding Corporation v. Privalov [2007] UKHL 40.
The Court’s Resolution
