![Non-Signatory Consent, Arbitrability of Fraud, and Finality of Awards: Lessons from Nigerian Supreme Decision in EMTS v Afdin Ventures [2026]](https://dailyjus.com/wp-content/uploads/2026/08/2026-08-OALP-dj.jpg)
THE AUTHORS:
Muyiwa Balogun, Partner at Olaniwun Ajayi LP
Isaac Ibikunle, Team Lead at Olaniwun Ajayi LP
Israel Ekpo, Associate at Olaniwun Ajayi LP
Oluwabusayo Ifonlaja, Associate at Olaniwun Ajayi LP
Introduction
The Nigerian Supreme Court has delivered a landmark judgment in EMTS v Afdin Ventures Ltd & Ors [2026] LPELR-83327 (SC) that will reshape how arbitration agreements are interpreted and arbitral awards are enforced in Nigeria. Three holdings stand out from the decision. First, a non-signatory to a contract that benefits from the contract or participates in its performance may be bound by the contract’s arbitration clause. Second, allegations of fraud do not oust the arbitral tribunal’s jurisdiction, unless the arbitration clause itself is tainted by the fraud. Third, an arbitral tribunal remains the final arbiter of questions of fact and, during enforcement or setting aside proceedings, Nigerian Courts would refrain from disturbing the factual findings made by the tribunal. Taken together, these holdings place Nigeria firmly in alignment with modern international arbitration practices and further position Nigeria as an attractive arbitration jurisdiction.
This commentary examines the key holdings and highlights the relevant lessons for arbitration users who engage with or are otherwise interested in Nigeria’s arbitration landscape.
Background Facts
Through a private placement scheme, the 5th Respondent (Karington Telecommunications Limited), through the Appellant (Emerging Markets Telecommunications Services Limited, “9Mobile”), offered for sale in Nigeria its shares in the 6th Respondent (Premium Telecommunications Holdings N.V.), which shares the 1st and 2nd Respondents (Afdin Ventures Limited and Dirbia Nigeria Limited, the “Award Creditors”) purchased. The transaction was governed by an Offer of Terms and a Custodial Agreement, both containing arbitration clauses. 9Mobile was not a party to either agreement. The agreements were governed by Nigerian law. The Award Creditors subsequently initiated an arbitration to recover the purchase price on the ground that the placement was based on misrepresentation and false pretence. The tribunal delivered its award in favour of the Award Creditors, ordering 9Mobile, the 5th and 6th Respondents to pay the Award Creditors the sum of USD 13,300,910 (Thirteen Million, Three Hundred Thousand Nine Hundred Ten United States Dollars) and USD 30,030,040 (Thirty Million Thirty Thousand Forty United States Dollars).
Dissatisfied with the award, 9Mobile challenged the award before the Lagos Division of the Federal High Court on the ground that it was not a party to the arbitration agreement, among other reasons, and thus, the award exceeded the scope of submission and it must be set aside or refused enforcement. On their part, the Award Creditors moved before the Abuja Division for recognition and enforcement of the award. When the enforcement application came up sometime in 2023, 9Mobile’s lead counsel was unavailable, a junior counsel declined to adopt the filed processes, and the court, refusing an adjournment, struck out 9Mobile’s counter affidavit filed against the application to enforce. The court went ahead to grant the enforcement order. 9Mobile’s appeal to the Court of Appeal failed. This necessitated a further appeal to the Supreme Court.
In its ruling this year, 2026, the Supreme Court made some landmark pronouncements.
Affirming Preliminary Objection Without Dismissing the Appeal: An Unusual Practice
Before reaching the substance of the appeal, the Court determined a preliminary objection raised by the Award Creditors. They contended that 9Mobile had failed to deposit the award sum with the Federal High Court’s Chief Registrar as ordered by the trial Court — an order whose appeal had already been dismissed — and had also failed to comply with Order 6 Rule 3(5) of the Supreme Court Rules 2024, which mandatorily requires an appellant to file evidence of payment of all costs ordered into an escrow account within twenty-one days of filing its Notice of Appeal. 9Mobile did not dispute its non-compliance.
The Court found the default fatal to the appeal but nonetheless invoked Section 22 of the Supreme Court Act to proceed to the merits, reasoning that dismissing the appeal on procedural grounds would not resolve the controversy but would merely generate further proceedings, entrench delay, and undermine the policy values of expedition and finality that underlie the Arbitration and Mediation Act 2023 (“AMA”).
Non-Signatories and Arbitral Jurisdiction
At the heart of the appeal was whether an arbitral tribunal has jurisdiction over a party that never signed the arbitration agreement. 9Mobile answered in the negative on the basis that privity is a foundational principle, not a technicality, and the Tribunal’s assertion of jurisdiction on the basis that 9Mobile was “inextricably intertwined” with the transaction had no legal basis. The Award Creditors and the 3rd and 4th Respondents disagreed, arguing that a party which actively participated in and benefited from a contract cannot invoke privity to escape its arbitration clause— Olaniwun Ajayi LP represented the 3rd and 4th Respondents in the arbitration and in this appeal. The Supreme Court agreed. It held that consent to arbitrate is not a matter of signature alone. It is also a matter of intention, and intention may be expressed through conduct as powerfully as through any written instrument. The critical question is not whether a party signed the document, but whether its conduct demonstrated an intention to submit disputes arising from the transaction to arbitration.
The Court then proceeded to identify and endorse three broad statutory, judicial and doctrinal sources supporting this proposition.
First, the Court referenced Section 57 of the Arbitration and Conciliation Act 2004 (“ACA”) (now Section 91 of the AMA), which defines “party” to an arbitration agreement to include “any person claiming through or under” a party. The Court described this language as deliberate and expansive, a legislative recognition that the reach of an arbitration agreement is not confined to the literal signatory.
Second, the Court aligned itself with the judicial development in other jurisdictions by placing reliance on five equitable doctrines under which a non-signatory had been found to have an intention to arbitrate or to be otherwise bound by an arbitration agreement. The first is equitable estoppel. A party that has knowingly received the benefits flowing from a contract cannot in good conscience repudiate the mechanism by which disputes under that contract are to be resolved. The second is the group of companies doctrine, where a non-signatory entity within a corporate group played a decisive role in the negotiation, performance, or termination of the contract and conducted itself as though it were a party, it may be bound. The third is agency. A principal whose agent signs an arbitration agreement on its behalf is bound by that agreement. The fourth is assignment. The arbitration clause travels with the assignment of the underlying contract, and an assignee who takes the benefits of the agreement cannot disclaim its arbitral covenant. The fifth is the alter ego doctrine. Where corporate separateness has been used as an instrument of fraud or injustice, a court may disregard it and hold the entity behind the corporate veil to the arbitration agreement.
Third, the Court also turned to domestic judicial development, the case of Metroline v Dikko [2018] LPELR-46853 (CA) at pp. 12–24, para. B-B, where the intermediate appellate Court had held that a non-signatory was bound because its role in the transaction formed the nucleus of the dispute before the tribunal.
Applying this legal analysis to the facts, the Court noted that the tribunal had found that 9Mobile, the 5th and 6th Respondents received over USD 43 million directly from the Award Creditors, funds that flowed from the very agreements containing the arbitration clause, and that its role was central and inseparable from the transaction. Those findings grounded a powerful estoppel.
Fraud and Non-Arbitrability
9Mobile’s second substantive argument was that the tribunal had made findings of criminal misrepresentation, a matter exclusively for the courts and therefore beyond arbitral jurisdiction. The Award Creditors and the 3rd and 4th Respondents disagreed, contending that jurisdiction is determined by the nature of the reliefs claimed, not by how a defendant chooses to characterise the claim, and that the reliefs granted, restitution and breach of fiduciary duty, were entirely civil in nature.
Again, the Court sided with the Award Creditor and the 3rd and 4th Respondents. The Court held that jurisdiction is determined by the claimant’s pleadings, not by how the defendant chooses to characterise the claims. The reliefs sought and granted (restitution and breach of fiduciary duty) were civil in nature. The fact that the same underlying facts might theoretically disclose a criminal wrong does not transform a civil claim into a non-arbitrable one. Also, no criminal sanction was imposed. The tribunal adjudicated a commercial dispute and awarded civil remedies. That is squarely within the proper scope of arbitral authority.
The deeper answer lies in the separability doctrine, codified in Section 14(2) of the AMA. An arbitration clause is independent of the contract in which it is embedded and survives any challenge to the main contract unless the clause itself is directly attacked. 9Mobile had raised no such objection before the Tribunal and could not deploy it for the first time at the enforcement stage.
Sanctity of Tribunal’s Factual Findings
Instructively, while reaching the conclusion that 9Mobile was bound by the arbitration clause, the Court noted that the tribunal’s findings that 9Mobile derived benefits from the agreement and that 9Mobile is inseparable from the agreement cannot be disturbed by the Court. This is because under Nigerian law, the tribunal remains the ultimate arbiter of facts.
Lessons for Arbitration Users
As a starting point, the apex Court’s reliance on the statutory definition of “party” as including non-signatories provides an important statutory anchor that gives arbitral tribunals a clear textual basis in Nigerian law for asserting jurisdiction over non-signatories, besides the equitable doctrines that had formed the fulcrum of the debate before this judgment.
Also, the significance of this decision extends well beyond the parties to this suit. It is instructive for commercial lawyers and generally for award creditors and debtors.
For commercial lawyers advising on transaction structuring, it is now clear that absence of a formal execution is not a reliable shield against arbitral jurisdiction. Thus, where a related entity such as a parent company, a subsidiary, an affiliate, or a special purpose vehicle is intended to receive benefit from a contract, participate in its negotiation or performance, or otherwise connected to the fabric of the transaction, it may find itself bound by the arbitration clause without ever having signed it. It may therefore be expedient to include some language that would make it clear that the non-signatory company is not a party to the arbitration clause.
For award creditors, the decision strengthens the enforcement position considerably. Nigerian courts will not re-examine arbitral findings of fact, will not permit fraud allegations to oust jurisdiction unless the arbitration clause itself is impugned, and will not allow procedural practice to defeat awards of genuine commercial importance. The combined effect of these holdings is that Nigerian award enforcement proceedings remain reliable and less susceptible to the kind of peripheral litigation that has historically been used to delay or defeat valid awards.
For award debtors, the warning is equally clear. The Court is likely to treat with deep scepticism any jurisdictional or non-arbitrability objection raised only at the enforcement stage. The threshold for setting aside an award, or for resisting its recognition and enforcement, is now demonstrably high in Nigeria. More importantly, an award debtor that pursues weak or belated objections does so at great risk, including at the risk of attracting punitive costs. In this case, the Court did more than reject 9Mobile’s challenge. It deprecated 9Mobile’s conduct and awarded costs of ₦10 million against it, an unusually substantial cost order by the Court’s practice.
Conclusion
This decision is a watershed in Nigerian arbitration jurisprudence. It establishes with binding authority that non-signatories may be bound by arbitration agreements through Nigeria’s statutory framework, equitable doctrines such as estoppel, agency, assignment, and the alter ego principle. It confirms that fraud allegations do not displace arbitral jurisdiction unless the arbitration clause itself is directly impugned. It affirms the finality of arbitral awards on questions of fact. And it demonstrates the Supreme Court’s resolve to protect the integrity of arbitration enforcement proceedings from procedural abuse.
ABOUT THE AUTHORS
Muyiwa Balogun, Partner, oversees the Arbitration and Dispute Resolution Practice at Olaniwun Ajayi LP and he is a seasoned dispute resolution lawyer with over three decades of active legal practice, reflecting a rare combination of depth and versatility — spanning high-stakes arbitrations and litigation across corporate investments, asset management, contracts, white-collar crimes, receivership, and banking operations. He is regularly instructed by leading domestic and international institutions.
Isaac Ibikunle, Team Lead, steers the Arbitration Practice at Olaniwun Ajayi LP and is recognised for his expertise in international arbitration, cross-border litigation, and international law. Qualified in Nigeria and New York and trained at Harvard, he has represented clients in energy, finance, construction and other commercial disputes under ICC, LCIA, ICSID, UNCITRAL, and ad hoc rules. An active scholar and editor for leading international law publications, he supports young practitioners through his leadership roles with Young ICSID, Young ICCA, and the African Society of International Law.
Israel Ekpo is an Associate in the Arbitration and Dispute Resolution Practice of Olaniwun Ajayi LP, with experience in complex commercial arbitration, litigation, and cross-border disputes. An Associate of the Chartered Institute of Arbitrators (UK), he has represented clients in ad hoc and institutional proceedings across the energy, construction, finance, and public sectors. His practice spans high-value commercial disputes, enforcement and setting aside of arbitral awards, regulatory matters, and appellate advocacy before Nigerian superior courts.
Oluwabusayo Ifonlaja is an Associate in the Arbitration and Dispute Resolution Practice of Olaniwun Ajayi LP, with experience in complex commercial litigation, arbitration, and regulatory disputes. An Associate of NICArb and ICMC, he has represented clients across the energy, financial services, telecommunications, and insurance sectors in enforcement, appellate, and regulatory proceedings before Nigeria’s superior courts. Graduating as valedictorian at both university and the Nigerian Law School, he brings analytical rigour and precision to his practice, including transactional work.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
