Azubike Okoye | University of Miami School of Law (original) (raw)

Papers by Azubike Okoye

Social Science Research Network, Dec 31, 2023

Social Science Research Network, 2022

SSRN Electronic Journal, 2022

SSRN Electronic Journal, 2022

SSRN Electronic Journal

Negotiation is a veritable tool employed by parties to an agreement in discussing terms of an agr... more Negotiation is a veritable tool employed by parties to an agreement in discussing terms of an agreement prior to signing. It is also an indispensable mechanism in amicable talks about resolution of a dispute. It is, therefore, very material in international sphere. This article centers essentially on the strategies to adopt in international negotiations. It also encapsulates one of the most important elements to adopt in international negotiations having regard to the effectual results emanating from various case laws considered and used in this article.

SSRN Electronic Journal, 2022

Arbitration clauses constitute one of the salient dispute resolution clauses in legal agreements.... more Arbitration clauses constitute one of the salient dispute resolution clauses in legal agreements. One of the well-known essences of having such clauses in agreements —apart from amicable resolution of grievances—is to foster business relationships without the need of proceeding to the regular court system, thereby circumventing uncertainties as to time.

This article focuses on the importance of properly drafted arbitration clauses and how best to generally avoid early litigation costs arising from improperly drafted arbitration clauses. Various Nigerian court decisions emanating from contentions of refusing parties to arbitration were reviewed. The court decisions demonstrated how refusing parties sought to use improperly drafted arbitration clauses as a legal reason to avoid proceeding with arbitral proceedings or to set aside unfavorable arbitral awards under the guise that the clauses were ill-drafted.

The litmus test adopted by the courts in determining whether an arbitration clause was improperly drafted was to determine whether there is any intent shown by the parties to resort to arbitration in the first instance once a dispute is declared. In those decisions, once the court confirms the existence of such intent, the court always compels arbitration. Interestingly, some of the Nigerian courts relied on a plethora of U.S. court decisions to order parties to arbitrate. This study frowns at the position of the refusing parties in opting for court proceedings rather than resorting to arbitration as agreed.

SETTING ASIDE AN ARBITRAL AWARD ON GROUNDS OF MISCONDUCT, Mar 1, 2016

The general rule is that when parties choose to submit to Arbitration of a dispute and agree on a... more The general rule is that when parties choose to submit to Arbitration of a dispute and agree on an Arbitrator to be the judge in the dispute, they cannot, when the award is not favourable on its face, object to the decision of the Arbitrator either upon law or the facts. See Hodgkinson v Fernie 3 CB (NS) 189, 202, 140, ER 712 - 717

Oando Plc. v. Farmatic Biogas West Africa Ltd & Anor. (2018) LPELR-45564 (CA), 2018

IN THE COURT OF APPEAL IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS ON FRIDAY, 25TH MAY, 2018 B... more IN THE COURT OF APPEAL IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS ON FRIDAY, 25TH MAY, 2018 Before Their Lordships: TIJJANI ABUBAKAR, JCA BIOBELE ABRAHAM GEORGEWILL, JCA ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA Appeal No: CA/L/148/2017 CITATION: (2018) LPELR (CA) A. CONSTITUTIONAL LAW BETWEEN OANDO PLC (APPELLANT) AND FARMATIC BIOGAS WEST AFRICA LTD JONATHAN IRABOR (RESPONDENTS) PRONOUNCEMENTS 1. Breach of Fundamental Rights Obligations of a party alleging breach of fundamental rights Duty of a party alleging breach of fundamental rights The settled position of the law in cases of allegation of violation of fundamental rights is that a mere allegation or deposition in an affidavit stating that an Applicant was arrested is not sufficient to constitute proof of infringement or infraction on the rights of an applicant, the specific facts of the alleged detention and the duration must be proved in substantial details. See: ADESANYA Vs.

Minnie Ajuwede v. Ecobank Nigeria Limited (2018) LPELR-45563 (CA), 2018

RATIO ABUSE OF COURT PROCESS OS A FUNDAMENTAL DEFECT Abuse of Court process has been defined in a... more RATIO
ABUSE OF COURT PROCESS OS A FUNDAMENTAL DEFECT
Abuse of Court process has been defined in a host of cases and in different scenarios but the most direct is the improper use of legitimate Court process and the effect is liable to dismissal. It is a fundamental defect which is not an irregularity that can be pardoned, it leads to a dismissal of the process. Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A
WHAT IS A PRE-ACTION NOTICE?
A pre-action notice in a statute is mandatory and must be complied with. It is tantamount to a condition precedent to the filing of an action; it also must be definitive and contain relevant facts to the intending action. Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment)
This is an appeal against the Ruling of the Investment and Securities Tribunal, holden at Lagos and delivered on the 8th of December, 2014 by the Honourable Chairman of the tribunal – DR. NGOZI CHIANAKWALAM in respect of the preliminary objection filed by the 1st, 2nd & 3rd Respondents. The Appellant been dissatisfied with the decision filed a Notice of Appeal on 9th February, 2015. Parties joined issues on their briefs.
The Appellant filed its brief on 18th March, 2015 wherein 3 issues were formulated for determination thus:
1. Whether the Investment and Securities Tribunal has jurisdiction to determine the issues placed before the tribunal.
2. Whether this case is an abuse of Court processes as contemplated in the Supreme Court case of TOMTEC (NIG) LTD v FHS [2009] 18 NWLR (PT.1173) 358
3. Whether the letter dated 26th August 2012 which was equally sent to the 2nd, 3rd and 4th Respondent is a valid pre-action notice in the circumstances of this case.
The Appellant also filed a reply to the 1st, 3rd and 4th Respondent filed on 20/2/2017 but deemed 8/2/18. The 1st Respondent’s brief was filed on 3rd April, 2016 and it formulated 3 issues for determination:
1. Whether the Investment and Securities Tribunal has Jurisdiction to determine the Appellant’s reliefs as presented at the lower tribunal
2. Whether the Investment and Securities Tribunal rightly dismissed this suit for bring an abuse of Court process in view of suit number FHC/L/CS/228/2014 at the Federal High Court, Lagos division between the parties over same set of facts
3. Whether the letter dated 26 August 2015 constitutes a valid pre-action notice to the 2nd and 3rd Respondents
2nd Respondent’s brief is filed on 21/9/15 but deemed 8/2/18 and formulated 3 issues:
1. Whether the honourable Tribunal possesses the requisite Jurisdiction to adjudicate this matter.
2. Whether the suit constitutes a flagrant abuse of Court process
3. Whether a valid pre-action notice was issued to the 2nd Respondent.
The 3rd Respondent filed on 22/2/16 but deemed properly filed 8/2/18 wherein 3 issues were also formulated:
1. Whether the failure and/or the refusal of the plaintiff to issue the 3rd Respondent with a notice in writing of her intention to institute action against it as required by Section 289 of the Investment and Securities Act, 2007 does not render the Appellants suit incompetent
2. Whether from the pleadings of the claimant the claimant has disclosed any cause of action as to confer Jurisdiction on the Investment and Securities Tribunal.
3. Whether the Appellant’s institution of suit No: FHC/L/CS/228/2014 at the Federal High Court.

Mrs. Ganiat Yetunde Elias & Anor. v. Ecobank Nigeria Plc (2016) LCN/9290(CA) or 2016) LPELR-40216 (CA), 2016

In The Court of Appeal of Nigeria On Friday, the 8th day of April, 2016 CA/L/873/2014 MRS. GANIAT... more In The Court of Appeal of Nigeria On Friday, the 8th day of April, 2016 CA/L/873/2014 MRS. GANIAT YETUNDE ELIAS & ANOR v. ECOBANK NIGERIA PLC (2016)LCN/9290(CA) or 2016) LPELR (CA) AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria Between 1. MRS GANIAT YETUNDE ELIAS 2. MR. OLUSOLA ELIAS Appellant(s) AND ECOBANK NIGERIA PLC Respondent(s) RATIO EVIDENCE: TEST FOR DETERMINING EXTRANEOUS MATTER Section 115 (2) of the Evidence Act 2011 insists that an Affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion. True enough, it is sometimes a problem to discern a particular extraneous matter, however, Uwaifo, JSC, explained as follows in Bamaiyi V. State (2001) 8 NWLR (Pt. 715) 270 at 289 that The test is to examine each of the paragraphs deposed to in the Affidavit to ascertain whether it is fit only as a submission, which counsel ought to urge upon the Court if it is, then it is likely to be either an objection or legal argument, which ought to be pressed in oral argument; or it may be conclusion upon an issue, which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence, which a witness may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances, which may be deposed to in an Affidavit. It, therefore, means that prayers,

Customary Arbitration in the Nigerian Jurisprudence: Effect and Enforcement., May 22, 2020

Arbitration is the determination of disputes by a person other than the regular court. The person... more Arbitration is the determination of disputes by a person other than the regular court. The person(s) before whom the dispute is referred are called arbitrators...

A mandatory Injunction is not granted as a matter of course., Mar 15, 2016

An injunction is an equitable judicial remedy by which a person is ordered to refrain from doing ... more An injunction is an equitable judicial remedy by which a person is ordered to refrain from doing or to do a particular act or thing. It is often seen as a restorative order invoked by the Court to deal with a defendant who has no respect for the court of law.

Books by Azubike Okoye

Book on Commercial Mediation in the Digital Era, Sep 2022

This book presents broader trigger perspectives and techniques about mediation process which incl... more This book presents broader trigger perspectives and techniques about mediation process which includes preparation, ethic rules, using mediation styles, negotiation and bargaining, role of counsels and settlement via either prestigious authors’ knowledges and experiences or sample ODR Platform Rules and application such as Italian and South American during the online commercial mediation. Moreover, it seeks whether artificial intelligence may be used during negotiation and presents how to build “decision- tree analysis” including risk analysis and cost and benefit analysis for banking, financial and other commercial disputes. Lastly, it introduces international rule making activities, enforcement procedure for Mediation Settlement Agreement in the Digital Era within the shadow of Singapore Convention on Mediation and questions whether it creates access to justice via online dispute resolution

Social Science Research Network, Dec 31, 2023

Social Science Research Network, 2022

SSRN Electronic Journal, 2022

SSRN Electronic Journal, 2022

SSRN Electronic Journal

Negotiation is a veritable tool employed by parties to an agreement in discussing terms of an agr... more Negotiation is a veritable tool employed by parties to an agreement in discussing terms of an agreement prior to signing. It is also an indispensable mechanism in amicable talks about resolution of a dispute. It is, therefore, very material in international sphere. This article centers essentially on the strategies to adopt in international negotiations. It also encapsulates one of the most important elements to adopt in international negotiations having regard to the effectual results emanating from various case laws considered and used in this article.

SSRN Electronic Journal, 2022

Arbitration clauses constitute one of the salient dispute resolution clauses in legal agreements.... more Arbitration clauses constitute one of the salient dispute resolution clauses in legal agreements. One of the well-known essences of having such clauses in agreements —apart from amicable resolution of grievances—is to foster business relationships without the need of proceeding to the regular court system, thereby circumventing uncertainties as to time.

This article focuses on the importance of properly drafted arbitration clauses and how best to generally avoid early litigation costs arising from improperly drafted arbitration clauses. Various Nigerian court decisions emanating from contentions of refusing parties to arbitration were reviewed. The court decisions demonstrated how refusing parties sought to use improperly drafted arbitration clauses as a legal reason to avoid proceeding with arbitral proceedings or to set aside unfavorable arbitral awards under the guise that the clauses were ill-drafted.

The litmus test adopted by the courts in determining whether an arbitration clause was improperly drafted was to determine whether there is any intent shown by the parties to resort to arbitration in the first instance once a dispute is declared. In those decisions, once the court confirms the existence of such intent, the court always compels arbitration. Interestingly, some of the Nigerian courts relied on a plethora of U.S. court decisions to order parties to arbitrate. This study frowns at the position of the refusing parties in opting for court proceedings rather than resorting to arbitration as agreed.

SETTING ASIDE AN ARBITRAL AWARD ON GROUNDS OF MISCONDUCT, Mar 1, 2016

The general rule is that when parties choose to submit to Arbitration of a dispute and agree on a... more The general rule is that when parties choose to submit to Arbitration of a dispute and agree on an Arbitrator to be the judge in the dispute, they cannot, when the award is not favourable on its face, object to the decision of the Arbitrator either upon law or the facts. See Hodgkinson v Fernie 3 CB (NS) 189, 202, 140, ER 712 - 717

Oando Plc. v. Farmatic Biogas West Africa Ltd & Anor. (2018) LPELR-45564 (CA), 2018

IN THE COURT OF APPEAL IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS ON FRIDAY, 25TH MAY, 2018 B... more IN THE COURT OF APPEAL IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS ON FRIDAY, 25TH MAY, 2018 Before Their Lordships: TIJJANI ABUBAKAR, JCA BIOBELE ABRAHAM GEORGEWILL, JCA ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA Appeal No: CA/L/148/2017 CITATION: (2018) LPELR (CA) A. CONSTITUTIONAL LAW BETWEEN OANDO PLC (APPELLANT) AND FARMATIC BIOGAS WEST AFRICA LTD JONATHAN IRABOR (RESPONDENTS) PRONOUNCEMENTS 1. Breach of Fundamental Rights Obligations of a party alleging breach of fundamental rights Duty of a party alleging breach of fundamental rights The settled position of the law in cases of allegation of violation of fundamental rights is that a mere allegation or deposition in an affidavit stating that an Applicant was arrested is not sufficient to constitute proof of infringement or infraction on the rights of an applicant, the specific facts of the alleged detention and the duration must be proved in substantial details. See: ADESANYA Vs.

Minnie Ajuwede v. Ecobank Nigeria Limited (2018) LPELR-45563 (CA), 2018

RATIO ABUSE OF COURT PROCESS OS A FUNDAMENTAL DEFECT Abuse of Court process has been defined in a... more RATIO
ABUSE OF COURT PROCESS OS A FUNDAMENTAL DEFECT
Abuse of Court process has been defined in a host of cases and in different scenarios but the most direct is the improper use of legitimate Court process and the effect is liable to dismissal. It is a fundamental defect which is not an irregularity that can be pardoned, it leads to a dismissal of the process. Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A
WHAT IS A PRE-ACTION NOTICE?
A pre-action notice in a statute is mandatory and must be complied with. It is tantamount to a condition precedent to the filing of an action; it also must be definitive and contain relevant facts to the intending action. Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment)
This is an appeal against the Ruling of the Investment and Securities Tribunal, holden at Lagos and delivered on the 8th of December, 2014 by the Honourable Chairman of the tribunal – DR. NGOZI CHIANAKWALAM in respect of the preliminary objection filed by the 1st, 2nd & 3rd Respondents. The Appellant been dissatisfied with the decision filed a Notice of Appeal on 9th February, 2015. Parties joined issues on their briefs.
The Appellant filed its brief on 18th March, 2015 wherein 3 issues were formulated for determination thus:
1. Whether the Investment and Securities Tribunal has jurisdiction to determine the issues placed before the tribunal.
2. Whether this case is an abuse of Court processes as contemplated in the Supreme Court case of TOMTEC (NIG) LTD v FHS [2009] 18 NWLR (PT.1173) 358
3. Whether the letter dated 26th August 2012 which was equally sent to the 2nd, 3rd and 4th Respondent is a valid pre-action notice in the circumstances of this case.
The Appellant also filed a reply to the 1st, 3rd and 4th Respondent filed on 20/2/2017 but deemed 8/2/18. The 1st Respondent’s brief was filed on 3rd April, 2016 and it formulated 3 issues for determination:
1. Whether the Investment and Securities Tribunal has Jurisdiction to determine the Appellant’s reliefs as presented at the lower tribunal
2. Whether the Investment and Securities Tribunal rightly dismissed this suit for bring an abuse of Court process in view of suit number FHC/L/CS/228/2014 at the Federal High Court, Lagos division between the parties over same set of facts
3. Whether the letter dated 26 August 2015 constitutes a valid pre-action notice to the 2nd and 3rd Respondents
2nd Respondent’s brief is filed on 21/9/15 but deemed 8/2/18 and formulated 3 issues:
1. Whether the honourable Tribunal possesses the requisite Jurisdiction to adjudicate this matter.
2. Whether the suit constitutes a flagrant abuse of Court process
3. Whether a valid pre-action notice was issued to the 2nd Respondent.
The 3rd Respondent filed on 22/2/16 but deemed properly filed 8/2/18 wherein 3 issues were also formulated:
1. Whether the failure and/or the refusal of the plaintiff to issue the 3rd Respondent with a notice in writing of her intention to institute action against it as required by Section 289 of the Investment and Securities Act, 2007 does not render the Appellants suit incompetent
2. Whether from the pleadings of the claimant the claimant has disclosed any cause of action as to confer Jurisdiction on the Investment and Securities Tribunal.
3. Whether the Appellant’s institution of suit No: FHC/L/CS/228/2014 at the Federal High Court.

Mrs. Ganiat Yetunde Elias & Anor. v. Ecobank Nigeria Plc (2016) LCN/9290(CA) or 2016) LPELR-40216 (CA), 2016

In The Court of Appeal of Nigeria On Friday, the 8th day of April, 2016 CA/L/873/2014 MRS. GANIAT... more In The Court of Appeal of Nigeria On Friday, the 8th day of April, 2016 CA/L/873/2014 MRS. GANIAT YETUNDE ELIAS & ANOR v. ECOBANK NIGERIA PLC (2016)LCN/9290(CA) or 2016) LPELR (CA) AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria Between 1. MRS GANIAT YETUNDE ELIAS 2. MR. OLUSOLA ELIAS Appellant(s) AND ECOBANK NIGERIA PLC Respondent(s) RATIO EVIDENCE: TEST FOR DETERMINING EXTRANEOUS MATTER Section 115 (2) of the Evidence Act 2011 insists that an Affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion. True enough, it is sometimes a problem to discern a particular extraneous matter, however, Uwaifo, JSC, explained as follows in Bamaiyi V. State (2001) 8 NWLR (Pt. 715) 270 at 289 that The test is to examine each of the paragraphs deposed to in the Affidavit to ascertain whether it is fit only as a submission, which counsel ought to urge upon the Court if it is, then it is likely to be either an objection or legal argument, which ought to be pressed in oral argument; or it may be conclusion upon an issue, which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence, which a witness may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances, which may be deposed to in an Affidavit. It, therefore, means that prayers,

Customary Arbitration in the Nigerian Jurisprudence: Effect and Enforcement., May 22, 2020

Arbitration is the determination of disputes by a person other than the regular court. The person... more Arbitration is the determination of disputes by a person other than the regular court. The person(s) before whom the dispute is referred are called arbitrators...

A mandatory Injunction is not granted as a matter of course., Mar 15, 2016

An injunction is an equitable judicial remedy by which a person is ordered to refrain from doing ... more An injunction is an equitable judicial remedy by which a person is ordered to refrain from doing or to do a particular act or thing. It is often seen as a restorative order invoked by the Court to deal with a defendant who has no respect for the court of law.

Book on Commercial Mediation in the Digital Era, Sep 2022

This book presents broader trigger perspectives and techniques about mediation process which incl... more This book presents broader trigger perspectives and techniques about mediation process which includes preparation, ethic rules, using mediation styles, negotiation and bargaining, role of counsels and settlement via either prestigious authors’ knowledges and experiences or sample ODR Platform Rules and application such as Italian and South American during the online commercial mediation. Moreover, it seeks whether artificial intelligence may be used during negotiation and presents how to build “decision- tree analysis” including risk analysis and cost and benefit analysis for banking, financial and other commercial disputes. Lastly, it introduces international rule making activities, enforcement procedure for Mediation Settlement Agreement in the Digital Era within the shadow of Singapore Convention on Mediation and questions whether it creates access to justice via online dispute resolution