Bellview Airlines Limited V. Aluminium City Limited (2007)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A.

The synopsis of the genesis of the case is that the appellant and the respondent entered into an agreement on 30th January, 1998 by which the respondent as claimant was to execute works in respect of fast wall partitioning and fixing of suspended ceiling on the first-fifth floors of the appellant’s structure.

The contract includes an arbitration clause whereby disputes between the parties touching upon the contract shall be referred to an arbitration, if the parties are unable to reach an amicable settlement.

It was also agreed that the respondent should commence work on the 3rd January, 1998 and complete same on or about the 31st March, 1998 at a, cost of N10,600,000. There was subsequently a variation to the scope of the original contract by the inclusion of purchase and installation of carpets which increased the contract sum to N11,236,700.00

A firm of architects, Archiscope Limited, was appointed at the instance of the appellant to supervise the work in accordance with the provisions of clause 8.4 of the contract.

A dispute subsequently arose between the parties and was referred for arbitration by the arbitral proceedings instituted by the respondent claiming the following reliefs against the appellant.

“1. Payment of the sum of N3,928,535.00 (three million, nine five naira) being outstanding debt owed the claimant by the hundred and twenty-eight thousand, five hundred and thirty-Respondent on account of services rendered and products sold to the respondent.

2. Interest on the sum of N3,928,535 (three million, nine hundred and twenty eight thousand five hundred and thirty-five naira) claimed in sub-paragraph 1 above calculated at the rate of 22.5% per annum with effect from the 1st day of January, 1999 until the satisfaction or payment of the entire sum to the claimant.
3. Refund of the sum of money paid by the claimant as professional fee and expenses in this Arbitration to the Arbitrator.
4. Such further awards or orders as the arbitrator may deem fit to make in the circumstances.”

The respondent denied that the claimant was entitled to any monies contending that the claimant failed to satisfactorily nor quantitatively complete the works inline with their mutual agreement.

The arbitrator ordered pleadings and directed that witnesses be called in support of the various assertions or contentions, upon conclusion of the evidence adduced by the witnesses, the arbitrator with the concurrence of parties formulated a single issue and proceeded to trial.

Thereafter the arbitrator considered the testimony of the witnesses, the documents produced at the proceedings along with the written submissions of the respective learned counsel in the light of the sole issue and published the award.

The applicant before the court below was the respondent in the arbitral proceedings and its application was for the following –

“1. An order setting aside the Arbitration Award given in favour of the Respondent by Adedoyin Rhodes – Vivour (Mrs.)- Arbitrator delivered on the 7th day of February, 2004.

An order staying execution of the Arbitration Award given in favour of the Respondent by Adedoyin Rhodes – Vivour (Mrs.), Arbitrator delivered on the 9th day of February, 2004.

3. And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.”

The grounds upon which the application was brought as stated therein are as follows –

“(i) There are three (3) grounds of errors of law, which are apparent on the face of the Award, namely-

(a) The Arbitrator found and or held at page 9 lines 7-8 that “Though the works were not complete within the time stipulated in clause 8.2 of exhibit AB6, I am satisfied that both parties were responsible for the delay” and went ahead to penalize one party and left the other party unpenalised even though she found both wanting and this amounted to a miscarriage of justice.

(b) The Arbitrator found and held at page 13 lines 15 -17 that “Though the claimant has not been awarded all that it has claimed that is not a sufficient reason to depart from the general rule to deprive it of its costs.”

(c) The Arbitrator found and or held at page 9 lines 3 – 6 that “I have looked at the reliefs in the Respondent’s points of defence and it does not appear to me that there is a counter – claim. It appear that the respondent is putting up a defence of set off which it has failed to establish. ”

(ii) The issue of set off as identified by the Arbitrator is definitely beyond the scope of the submissions to arbitration, the arbitrator ought to have dealt with issue of counter – claim as submitted by the Applicant.

(iii) Relief No 3 in the award was never sought for by any of the parties and as such the Arbitrator has acted beyond her powers.

(iv) The Arbitrator has misconducted herself in that she failed to decide all the matters, which were referred to her more particularly the counter – claim of the Applicant.

(v) The award is inconsistent with the principles of arbitration.”

The application was supported by an affidavit and opposed by a counter affidavit. The respondent in addition filed a notice of intention to rely on a preliminary objection dated 12th April, 2004 with an affidavit in support.

Both parties contested the application as well as the preliminary objection on written addresses submitted by their respective counsel which addresses were subsequently adopted and reliance placed on them in court in respect of the two processes.

Learned trial judge, after reviewing all the issues canvassed, in a reserved and considered ruling, concluded as follows –

“1 I do not consider that the Arbitrator has misconducted herself in any manner; neither do I find that she has gone outside the claims brought by the parties for arbitration.

I also resolve this issue against the Applicant. Having resolved all the issues against applicant, I find it unnecessary to deliberate on the issue as to whether the motion filed by the Applicant is in compliance with the manner of institution of proceedings in the High Court as stipulated in the High Court of Lagos State (Civil Procedure) Rules 2004.

For the reasons given above, I find no merit in this Application and refuse the same.”

The applicant felt aggrieved and appealed against the decision on two grounds of appeal. The applicant (hereinafter referred to as appellant)

applied for leave to amend the notice of appeal which was granted on 5th June 2006. The amendment was to file an additional ground of appeal.

In compliance with the practice and procedure of this court, briefs of argument were filed and settled at appellant’s, respondent’s and appellant’s reply brief of argument. The appellants reply brief was struck out on 15/5/07, the day the appeal was heard and reserved for judgment.

In the appellant’s brief, the following issues, which were adopted in toto by the respondents, were identified for consideration and determination-

“ISSUES I

Whether the decision and ruling of the trial court refusing to set aside the Arbitral award is valid and proper in law having regards to the issues raised by the Appellant therein?

ISSUES II

Whether having regards to S.36 (1) of the 1999 Constitution, the decision and ruling of the trial court affirming the award which penalise one party where both are found wanting is not against the principle of fair hearing.”

Before considering the appeal itself, I propose to examine the respondents preliminary objection. The notice of intention to rely on a preliminary objection was duly given on 8th November, 2006. The same was duly argued in the respondent’s brief and accordingly responded to by the appellant in the Appellant’s reply brief. The said notice was withdrawn and struck out on the 15th May, 2007 at the hearing of the appeal.

Consequently, the appellant’s reply brief proffering an answer thereto was withdrawn. I believe the notice of intention to rely on a preliminary objection was erroneously struck out. At the stage the matter was withdrawn and struck out, both parties had been brought face to face. The objection having been strenuously contested by the parties, the respondent should have been made to face the consequence of its objection. The parties having been brought face to face the respondent should not have been permitted to escape through the back door or so lightly. The objection lack substance. It ought to have been dismissed.

The appellants first issue derives from grounds 1 and 2 of the grounds of appeal. In arguing this issue, learned counsel for appellant in the appellant’s brief, read the provisions of section 48 of the Arbitration and Cancellation Act, Chapter 19 of the Laws of the Federation of Nigeria, 1990. Learned counsel then read lines 3 – 6 at page 49 of the record of appeal and then contended that the issue of set off identified by the arbitrator was definitely beyond the scope of the submissions to the arbitrator as the arbitrator ought to have dealt with the issue of counter claim as submitted by the appellant rather than identifying issue of set off. It was further contended on behalf of the appellant that the relief of set off was never sought by either parties and by pronouncing on it the arbitration acted beyond her powers.

Learned counsel then submitted that the arbitrator misconducted herself for failure to decide all the matters particularly the issue of counter-claim. It was further submitted on behalf of the appellant, that learned trial judge mistook the question of set off for interest when it held at page 112 of the record of appeal as follows –

“It is again clear that this is a relief that was sought by respondent before the arbitrator. Indeed rather than grant interest at the rate sought of 22.5%, the Arbitrator reduced both amount claimed and the interest, the latter to 15%. The Applicants counsel is again in error.

I hold, in submitting that the award of interest was not claimed by the Respondent.”

Learned counsel for appellant further contended that it was clear from the application challenging the award that the arbitrator wrongly found at page 9 lines 3 – 6 of the award that –

“I have looked at the reliefs in the respondent’s point of defence and it does not appear to me that there is a counter claim. It appears that the respondent is putting up a defence of set off which it has failed to establish.”

It was then contended further that the trial court erred for holding that the foregoing would not amount to misconduct as it was their view that the arbitrator acted beyond the scope of dispute submitted to her for arbitration, and failed to address all the issues brought before her for arbitration. The trial court also mistook issue of set off complained against by the appellant for interest which tantamounts to granting a relief not asked for and relied on Olurotimi vs Ige (1993) 2 N W L R (pt 311) 257, 271 where the trial court awarded title to the land, which was not sought for, in addition to the damages for trespass and injunction sought by the plaintiff in that case. See also Kalio & Ors v. Daniel Kalio (1975) 2 S C 15, 17 – 19 and Nigerian Housing Development Society Ltd & Anor vs Mumuni (1977) 2 S C 57, 81.

It is submitted that the trial court should have invoked the provisions, of Article

5.2 (1) and (2) of the Arbitration and Cancillation Act to refuse to recognize of enforce the award the arbitrator having dealt with issue not contemplated by or not falling within the terms of the submission to arbitration or beyond the scope of the submission. He relied on the case Baker Marne Nig Ltd vs Chevron (Nig) Ltd 2000 12 N W L R (p 681) 412, 414.

On the other hand, on behalf of the respondent, it was submitted that the arbitrator by agreement of both parties formulated only one issue. And the arbitrator considered the sole issue along with interest and costs learned counsel for respondent contended.

I agree with the learned counsel for respondent’s submission that the learned arbitrator was not guilty of misconduct contrary to the submission of the learned counsel for appellant. The arbitrator with the concurrence of both parties identified or framed a sole issue when she stated as follows –

With agreement of the parties I formulated the issue for determination as follows:-

IS THERE ANY OUTSTANDING MONIES DUE TO BE PAID TO THE CLAIMANT BY THE RESPONDENT UNDER THE PROVISION OF THE PARTIES CONTRACT DATED THE 30TH DAY OF JANUARY, 1998?”

The learned arbitrator after painstakingly and exhaustively reviewing and evaluating the evidence, both oral and documentary, presented before her concluded as follows –

“1. The claimant’s claim succeeds.

2. The respondent shall pay to the claimant within 14 days of the date hereof the sum N1,740,000 (one million, seven hundred and forty thousand naira) in settlement of the claims made in this arbitration.
3. The respondent shall pay to the claimant N1,331,457.50 (one million, three hundred and thirty-one thousand, four hundred and fifty-seven naira, fifty kobo) as interest on the sum of N1,740,000 (one million, seven hundred and forty thousand) calculated from the first day of January, 1999 at the rate of 15% per annum until the date of this award.
4. The respondent shall pay to the claimant interest on the total sum of N3,071,457.50 (three million, seventy-one thousand, four hundred and fifty-seven naira fifty kobo) awarded in paragraph 2 & 3 above or on any amounts outstanding on same from 15th day of this award at the rate of 15% per annum until full payment.

The respondent shall pay fees and expenses in the total sum of N521,072.75 (five hundred and twenty-one thousand, seventy-two naira seventy-five kobo) as per fee note already delivered under separate cover provided that any amount thereof paid by the claimant shall be reinbursed by the respondent to the claimant forthwith and any amounts remaining unpaid shall bear interest at the rate of 15% per annum from the 15th day of this award.”

Before I proceed further I propose to observe that the awards made in paragraphs 3 and 4 are respectively pre-award as well as post award interests. The two awards emanated from the respondent’s second claim which is reiterated immediately hereunder-

“ii. Interest on the sum of N3,928,535.00 (three million, nine hundred and twenty-eight thousand, five hundred and thirty-five naira) claimed in sub-paragraph 1 above, calculated at the rate of 22% per annum with effect from 1st January, 1999 until the satisfaction or payment of the entire sum of the claimant.”

(Underlining mine)

This head of claim is rather clumsy. It is not drafted in accordance with the usual practice of drafting. It is, in short, inelegantly drafted. The arbitrator to avoid ambiguity decided rightly, in my view, to brake the awards into two, the pre-award interest and the post award interest which are in any case encapsulated in the respondent’s claim which has just been recited in this judgment. To, therefore, contend that the arbitrator made an award which was not claimed is grossly erroneous and clearly manifest a lack of understanding of the respondent’s claim just set out in this judgment.

The respondent, therefore, claimed both sets of interest. The arbitrator rightly awarded same in my respectful opinion.

The arbitrator merely reduced the interest rate to 15% rather than 22% claimed and in the same vain reduced the amount due from the sum of N3,928,535.00 claimed by the respondent to the sum of N1,740,000.00 that was established before her for the reasons stated in the award. The appellant unsuccessfully sought to set this aside in the court below. The reduction of the rate of interest as well as the amount claimed by the arbitrator and affirmed by the lower court are all in favour of the appellant. The decision not being against it, it was, therefore, not an aggrieved party or it had no legal grievance. A legal grievance mean a person against whom a decision has been given which has wrongfully deprived him of something or wrongfully refused him something which he had a right to demand: Ex parte official Receiver in re Reed, Bowen and Co 19 Q B.D 174, cited with approval by Federal Supreme Court in Akinbiyi v. Adelabu (1956) 1 SC 45, 47, the appellant is not an aggrieved person. Not being aggrieved the appellant has no right of appeal. The respondent which had legal grievance and is the party which properly entitled to appeal against the reduction of their claim and rate of interest declined to do so. It took the reduction with equanimity. Be that as it may, arbitration, just like a court, has power to award a lesser amount or interest rate than it was claimed.

What it has no jurisdiction or power to do is to award more than it was claimed.

The cases of Olurotimi v. Ige (1993) 2 NWLR (pt 311) 257, 271; Kalio & Ors v. Daniel Kalio (1975) 2 SC 15, 17 – 19; and Nigeria Housing Development Society Ltd & Anor v. Mumuni 19772 SC 57, 81, cited in the appellant’s brief are unhelpful to its case and irrelevant. The respondent from the wordings of the claim recited earlier in this judgment claimed for both pre-and post- award interests. The arbitrator did not act on the frolics of her own and awarded what was not claimed. It was the appellant that mis-read the claim of the appellant and thereby made a mountain out of a mole hill.

The arbitrator having framed only one issue with the agreement of both parties it follows that the counter-claim of the appellant (if any) was deemed abandoned with concurrence of the appellant who agreed to the arbitrator’s formulation of an issue. The single issue before the arbitrator does not include a counter-claim. The arbitrator’s jurisdiction is strictly or severely circumscribed by the issue the appellant’s subscribed to. The arbitrator was therefore not bound to examine and determine an issue that was not presented to it or not agreed to by the parties. Appellant is not entitled to resile, at this stage, from the issue it consented to at the arbitration. It is not open to it to approbate and reprobate. It has no right to agree to an issue at the arbitration only to come to the court below or this court to summersault and contend that there were more issues than the one, agreed upon: Ajide v. Kelani (1985) 3 N W L R (pt12) 248, 269.

The appellant did not file respectfully any counter-claim. This court was not referred to any counter-claim and it is unable to find one on the record. I am strengthened in this view by the fact that the respondent did not file a defence or a reply thereto. If there were a counter-claim, which has not been shown to the court, the respondent undoubtedly would have been invited to proffer a defence to it. In the absence of a counter claim, there would be no justification for the arbitrator to proceed to determine one.

The respondent’s claim before the arbitrator reads as follows:-

“20. WHEREOF the Respondent’ claims as follows:-

i. No outstanding balance, money or interest is owed the claimant whatsoever;

ii. The refund of the excess money paid to the claimant as at 10th December, 1998;

iii. The refund of the costs of arbitration;

iv. Such further award as may be deemed proper by the Arbitrator.”

If item ii is what the respondent/appellant terms as counter-claim, I think, the arbitrator after considering the evidence adduced by both parties took into account the money paid to the respondent herein. Learned arbitrator, after exhaustive consideration of the testimony of the parties, both oral and documentary, came to a conclusion on the letter written by the appellant, exhibit AB10, dated 4th December, 1998. Exhibit AB10, a letter, reads inter alia as follows –

“1. There is no outstanding payment on carpets.

2. N1 million. cheque to be paid on account.
3. Outstanding balance therefore would be N1,740,000.00 computed as follows:-

Contract value 10,600,000.00

Less work not carried out 1,500,000.00

9,100,000.00

Less payments 6,360,000.00

Balance at 04/12/98 2,740,000.00

(Note N1 million as per note 2 above has not been deducted).

4. That all outstanding jobs are completed before any further payment is made (e.g Doors on the 5th floor, cashier’s glass etc).
5. That your workmen be sent immediately to our office to replace the defective tiles with the new ones that have arrived.”

It, therefore, seems to me that the arbitrator having accepted the N1.740,000.00 contained in exhibit AB10 as the outstanding debt, instead of N3,928,535.00 respondent claimed before her, the appellant can no longer validly contend that the money paid to the respondent had not been accounted for. This had been taken into consideration to reduce the respondents’ claim of N3,928.535.00 to N1,740,000.00 only.

On the remark of the arbitrator to the effect that –

“I have looked at the reliefs in the respondent’s points of defence and it does not appear to me that there is a counter claim. It appears that the respondent is putting up a defence of set off which it failed to establish.”

Respectfully I am unable to find such a quotation at page 56 of the record of appeal to which the appellant referred the court. However, the same can be found at page 49 of the record of appeal. I am respectfully of the view that learned counsel for appellant had quoted it out of con. The passage when put in its true perspective reads as follows:-

“These letters were clearly written after the purported appointment of Maser Engineering and therefore do not support the evidence given by Mr Olaseinde. I have therefore decided not to accord any weight to paragraphs 14, 15, 16, 17 and 18 of the respondent’s witness statement objected to by the claimant in its application dated the 17th day of October, 2003. I have looked at the reliefs in the respondent’s points of Defence and it does not appear to me that there is a counter-claim it appears that the respondent is putting up a defence of set off which it failed to establish.”

Paragraphs 14, 15, 16, 17 and 18 of the respondent’s appellants herein point of defence sought to show that the appellant spent N5,033,800.00 to rectify the mistakes of the respondent. This was predicated on an invoice issued by the contractor, Maser Engineering of 24 Community Road off Allen Avenue, Ikeja, Lagos. There is, however, no relief sought by the appellant claiming the said sum of N5,033,800.00. The arbitrator rightly, in my view, ignored it, not being a father Christmas, she cannot scrounge for a relief which is not claimed and grant it. See Olurotimi v. Ige (supra); Kalio v. Kalio (1975) 2 S C 15, 22; Ekpeyong & Ors v. Nyong & Ors (1975)2 SC 71, 80-81; where it was held that

“It should always be borne in mind that a court of law is not a charitable institution, its duty, in civil cases, is to render unto everyone according to his proven claim”

It is therefore settled law that a court can only grant a relief sought by a party and any orders made outside such prayer must be refused. There is no power in a court to grant a relief not claimed except they are within orders that properly belong to area or contemplation of a consequential order which the relief sought is not: Akinbobola v. Plisson Fisko Nig Ltd (1991) 1N W L R (pt 167) 270, 278, and Nigeria Housing Development Society Ltd & Anor v. Mumuni (1977) 2 S C 57 at 81 and Bola Ige v. Olunloyo (1984) 1 S C 258, Okubukola v. Ayegbola (1990) 4 N W L R (pt.147) 732 and Ransome Kuti v. Attorney General of Federation (1985)2 NWLR (pt.6) 211.

Finally on the issue of counter-claim or set off the arbitrator did not raise any issue on them. She merely made a casual observation in passing apparently in response to the submission of learned counsel that

I have looked at the relief on the Respondent’s point of Denfence and it does not appear to me that there is a counter-claim. It appears that the Respondent is putting up a defence of set off which it has failed to establish.”

This, to my mind, is no more than obiter dictum which has not resulted in a miscarriage of justice. Notwithstanding the observation, the arbitrator remained focused and confined her determination to the sole issue presented to her for determination by both parties. She did not exceed her brief or portfolio. I am unable, therefore, to agree with the learned counsel for appellant that the arbitrator misconducted herself for she failing to decide all the matters which were referred to her, particularly the issue of counter- claim. No issue of counter-claim was forwarded to her. It seems to me that the grouse of the appellant is predicated on paragraph (d) of section 49 of Arbitration and Cancellation Act Cap 19 of the Laws of the Federation of Nigeria (1990) cited in the appellant’s brief of argument. It reads as follows:-

“(d) The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration.”

In this connection, after carefully considering the submissions of learned counsel, I am not persuaded that the arbitrator acted beyond the scope of the dispute submitted to her for arbitration and also failed to consider all the issues placed before her for arbitration. I have not been directed to any portion of the arbitration where the arbitrator failed, neglected or refused to comply with the terms of arbitration agreement. The award made by her was consequent upon the sole issue raised by her for determination on agreement by both parties. The award affirmed by the trial court is consistent with the principle of arbitration laid down in Article 33(3) of the Arbitration Rules First Schedule Cap 19.

On the finding of the learned trial judge, on the claim for interest at page 112 of the record of appeal, I am respectfully at sea to fathom the grouse of the appellant. The passage reads as follows:-

“It is again clear that this is a relief that was sought by the Respondent before the arbitrator. Indeed, rather than grant interest at the rate sought at 22.5%, the Arbitrator reduce both the amount claimed and interest, the latter to 15%. The Applicant’s counsel is again in error, I hold, in submitting that the award of interest was not claimed by the respondent.

(underlining by learned counsel for appellant)

I have read over and over again the passage set out in the appellant’s brief and repeated in this judgment, particularly the portion which the appellant emphasised therein. I am, respectfully, unable to appreciate the appellant’s complaint against the finding of the learned trial judge. It is manifestly clear that the learned trial judge was saying that not only was the arbitrator seised of the claim for interest but had also reduced both the amount claimed as well as the rate of interest thereon. Is it the case of the appellant that the arbitrator misconducted herself for reducing its liability. It cannot be otherwise because the respondent’s claim included both pre-and post award interest as earlier on amply demonstrated in this judgment.

I agree with learned counsel for respondent that, contrary to the express provisions of article 32 of the Arbitration Rules, First Schedule of the Arbitration and Cancellation Act Cap 19, the appeal is designed to frustrate the prompt execution or implementation of the award. Article 32 of the Rules provides as follow:-

“32 The award shall be made in writing and shall be final and binding on all the parties. The parties undertake to carryout the award without delay.”

It is pertinent to refer to a passage in Halsbury’s Laws of England, Fourth Edition paragraph 611 at page 323 on the binding effect of an award by an arbitrator on the parties to the agreement. It reads as follows”-

“611. Effect of award. The effect of the award is such as the agreement of reference expressly or by implication prescribes. Where no contrary intention is expressed and where such a provision is applicable, every arbitration agreement is deemed to contain a provision that the award is to be final and binding on the parties and any persons claiming under them.”

The provisions of r 32 of Cap 19 set out above is substantially covered by paragraph 611 of Halsbury’s Laws of England recited in this judgment.

Halsbury’s Laws of England as well as r 32 empahsised the finality and bindingness of an award. It extinguishes any right of action in respect of former action in difference. It however gives rise to a new cause of action based on the arbitration agreement between the parties to perform the award, which is implicit in any arbitration award: Kano State Urban Development Board v. Fanz Construction Co Ltd (1990) 6 SCNJ 77; (1990) 4 NWLR (pt.142) 1.

Appellant’s issue 1 is answered positively. Grounds 1 and 2 of the grounds of appeal from which it derives fail and are hereby dismissed by me.

Appellant’s issue no 2, identified from ground 3 is whether having regard to section 36(1) of the 1999 Constitution, the decision and ruling of the trial court affirming the award which penalised one party where both were found wanting is not against the principle of fair hearing.

Learned counsel for appellant commenced his argument under this issue by reading section 36 sub-section (1) of the relevant constitution and the decision of this court in Umar v. Onwudime (2002) 10 NWLR (pt.774) 150. He also referred the court to Deduwa v. Okorodudu (1976) 9-10 SC 329.

Learned counsel for appellant then contended that in the award published by the arbitrator, the latter having held thus –

“Although the works were not completed within the time stipulated in clause 8.2 of the exhibit AB6 I am satisfied that both parties were responsible for the delay”

Still went ahead to penalise the appellant herein alone. It seems to me that the learned counsel for appellant respectfully is acting under misapprehension of the import of sub-section (1) of section 36 of the constitution which provides thus –

36 (1) In the determination of his civil rights and obligations, including any function or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and un-partiality.”

(underlining mine)

The fair hearing provisions of the constitution means no more than to ensure that in all matters involving the determination of civil rights and obligations of a person before a court or tribunal established by law all parties who are affected must be afforded ample opportunity of being heard in the manner enunciated in Olawuyi v. Adeyemi (1990) 4 N W L R (pt 147) 746, 767.

There is no more freely acceptable idea of justice under the rule of law than the principle embodied in the maxim audi altrem partem. This principle is breached not only when there has been a hearing in the absence of a party as in the case of Fleet Mortgage v. Lower Maisionette (1972) 1 WLR 765 but also where though a party had been present throughout the proceedings an order is made during the proceedings which adversely affects his interest without hearing him or offering him an opportunity to proffer an explanation before it was made. The principle was applied to set aside the proceedings where a charge was dismissed and without hearing the defence on Whether to bound them over they were bound over. See Sheldon v. Bromfield J J (1973) 1 WLR 1502 where findings are made and conclusion reached on the evidence adduced by the prosecution before the accused entered upon their defence, it would come under the principle of audi alterum partem. In Deduwa & Others v. Okorodudu (1976) 9-10 S C 329, 346 – 347, the Supreme Court per Alexander C J N said –

” A fair hearing must, of course, be a hearing that does not contravene the principles of natural justice. Evershed, M.R., said in Abbot v. Sullivan (1952) 1 K.B 189, 195: “The principle of natural justice are easy to proclaim, but their precise extent is far less easy to defined.”

The scope of the principle of natural justice is wide and flexible. The acid test for fair hearing, which has been equated by the courts to fair trial, connoting that any reasonable and fair minded person watching the proceedings is satisfied that justice has not only been done in the case but has also been seen done. In other words, that the court had been even handed: Mohammed vs Kano Native Authority (1968) 1 All N L R 424, 426. See also the cases of Umar v. Onwudime (supra) and Deduwa v. Okorodudu (1976) 9-10 S C 329 cited in the appellant’s brief of argument Going into the nitty gritty of the case, the arbitrator, after her finding that both parties were responsible for the delay did not single one party out for punishment and let out the other to go scot free. Indeed, the arbitrator punished neither party for the delay justifiably because there was not such an issue before her. The arbitration solely determined the sole issue presented to it which was the liability of the appellant to the respondent under the contract. Apart form the determination of what was due to the respondent under the contract, the arbitrator did not published any other award touching upon the delay caused by either parties and if there were, learned counsel for the appellant failed to direct this court and the lower court to it.

There is no merit in this issue which consequently fails. The ground of appeal from which it was distilled equally fails and is dismissed. All the grounds of appeals on which the appeal is predicated having failed, the appeal equally fails and is dismissed. The decision of the learned trial judge affirming the arbitrator’s award, including the order as to costs, is hereby affirmed.

I make order as to costs, assessed at N10,000.00, in favour of the respondent.

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Other Citations: (2007)LCN/2499(CA)