Fawehinmi Construction Co Ltd v. Obafemi Awolowo University (1998)

Fawehinmi Construction Co Ltd v. Obafemi Awolowo University (1998)

This SabiLaw case summary of Fawehinmi Construction sets out the facts, the issue, the decision of the Supreme Court of Nigeria and the lesson for lawyers and students who draft arbitration and dispute resolution clauses.

Click to download the Fawehinmi Construction case summary (PDF)

Court	Supreme Court of Nigeria
Report	(1998) 6 NWLR (Pt 553) 171
Lead judgment	Belgore, JSC
Area	Stay of proceedings for arbitration; waiver

Fawehinmi Construction: Facts of the Case

Fawehinmi Construction sued the University for breach of a building contract and for wrongful detention of its plant and equipment on site.

Relying on the arbitration clause in the contract, the University applied for a stay of proceedings under the Arbitration Act. The application was refused.

The University then objected that the suit was incompetent because the three-month pre-action notice required by the University of Ife Edict had not been given. The trial court held that the University had waived the objection; the Court of Appeal reversed.

Issue for Determination in Fawehinmi Construction

Whether, by applying for a stay pending arbitration and by its conduct in the proceedings, the University had waived its right to object to the suit.

Decision of the Supreme Court in Fawehinmi Construction

The appeal was dismissed.
Applying for a stay of proceedings in favour of arbitration is not a submission to trial on the merits.
Waiver must be clear and unambiguous. Raising objections before filing a defence did not amount to waiver, and the University had not waived its statutory right.

Lesson for Drafters from Fawehinmi Construction

Applying for a stay in favour of arbitration does not, by itself, give up a party’s other objections. Waiver must be clear, so record clearly which rights a party reserves when it takes a step in court.

The decision in Fawehinmi Construction is taught in the SabiLaw Academy course Drafting Arbitration and Dispute Resolution Clauses. Read the full text of the Arbitration and Mediation Act 2023 on SabiLaw.

Click to download the Fawehinmi Construction case summary (PDF)

This Fawehinmi Construction summary was prepared by SabiLaw for learning purposes. It is not the judgment of the court and is not legal advice. Refer to the full judgment before relying on it.

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