Triana Limited V. Universal Trust Bank Plc (2009)
LawGlobal-Hub Lead Judgment Report
JOHN INYANG OKORO, J.C.A.
The parties to this appeal and another Company, Globus Enterprises Limited entered into a tripartite warehousing management agreement on the 27th day of April, 1998 wherein the Appellant was supposed to warehouse skins belonging to Globus Enterprises Limited and could only release the warehoused skins upon the permission of the Respondent. The said agreement has an arbitration clause. In the course of the tripartite agreement and during stock taking in September, 2000, it was discovered that 16,165 skins valued at N8,082,500.00 were missing from the custody of the Appellant. The Respondent who financed the business through a credit facility claimed the sum of N8,082,500.00 from the Appellant as costs and value thereof. The Appellant denied liability and the matter, pursuant to the Arbitration clause, went for arbitration. Chief Bayo Ojo SAN, Mrs Funke Adekoya SAN and Mr. M Bello Adoke were appointed as Arbitrators. Chief Bayo Ojo SAN was the Presiding Arbitrator. The arbitral Tribunal after considering the evidence before it as filed by both parties awarded the Respondent the sum of N8,082,500.00 being the value of the missing skins.
The Appellant being dissatisfied with the award of the arbitral Tribunal applied to the lower Court by an originating motion to set aside the award on the ground that one of the arbitrators Mr. M. Bello Adoke who incidentally was appointed by the Appellant, did not disclose to them that he was solicitor to Liberty Merchant Bank in Suit No. K/413/99 which had Globus Enterprises Limited as a party. The Respondent, before the hearing of the Appellant’s originating motion, filed a motion on notice dated 30th December, 2001 for leave to enforce the arbitral award. The lower Court after hearing Counsel on both sides delivered its ruling on 17th February, 2003. It dismissed the Appellant’s application to set aside the arbitral award and granted the Respondent’s motion to enforce the award.
Aggrieved by the ruling of the Kano State High Court, the Appellant gave notice of appeal dated 17th February, 2003 which notice contains two grounds of appeal. Two issues are formulated by the Appellants for the determination of this appeal as follows:-
“1. Was the Learned Trial Judge wrong in refusing to set aside the Arbitral Award and/or is the Arbitral Award one which ought to be set aside in view of the facts of this case.
- Was the Learned trial judge wrong in granting leave to enforce the award since the application was brought by wrong process and the fact that the arbitral tribunal itself lacked jurisdiction to make the award due to non disclosure of interest of one of the arbitrators Mr Mohammed Bello Adoke.”
On receipt of the Appellant’s brief, the Respondent filed her brief on 27th November, 2007 which contains notice of preliminary objection and in the alternative distilled two issues for the determination of the appeal.
It is always the practice to settle preliminary issues before delving into the main appeal and I intend to do just that
PRELIMINARY OBJECTION:-
The notice given by the Respondent reads as follows:-
“TAKE NOTICE that the Respondent shall, by way of preliminary objection pray this Honourable Court to strike out aUthe issues formulated by the Appellant at page 6 of the Appellant’s brief of argument and to discountenance all arguments proffered by the Appellant in support of the said issues because the said issues do not relate to any of the grounds of appeal filed by the Appellant.”
The grounds upon which the objection is founded are that:-
“(i) The issues purportedly formulated do not relate to the grounds or any of the grounds of appeal hence the grounds have no issues formulated on them.
(ii) All the issues formulated by the appellant do not relate to any of the grounds of appeal filed by the Appellant.”
(iii) All the issues framed by the appellant were all attacking the proceedings and the award by the arbitral tribunal rather than the decisions of the lower Court.
(iv) The issues framed are more than the grounds of appeal filed by the Appellant. ”
The Appellant has filed a reply brief in answer to the preliminary objection.
The plank of the Respondent’s argument in the preliminary objection is that the issues formulated by the appellant are not related to the grounds of appeal and that any issue not related to the ground of appeal should be struck out. He cited the cases of Imo v. The State (1991) 9 N.W.L.R. (Pt. 213) 1, Owhoda v. AlPhonso Chukwuemeka Eupechi (2003) 9 – 11 S.C.N.J 12 and Afribank (Nig) PLC v. Osisanya (2000) 1 N.W.L.R. (Pt.642) 598. He then urged this Court to hold that since the issues are not related to the grounds of appeal, the grounds of appeal should be deemed abandoned for which he cited and relied on the case of Saidu & Ors v. Mahmood (1998) 2 N.W.L.R. (Pt.536) 130.
In response to this argument, the Learned Counsel for the Appellant submitted that the Respondent’s submission is a clear misconception of the meaning of issues for determination and urged this Court to hold that issues formulated by the Appellant satisfy all the known legal principles guiding the formulation of issues for determination. He cited the cases of F.R.N. v. Anache & Ors (2004) 3 M.J.S. I, Shitt” v. Fashawe (2005) 14 N.W.L.R. (Pt. 946) 671.
Let me state clearly here that the appellate jurisdiction of Courts are donated by statute and is usually ignited by a valid notice and grounds of appeal. Such grounds of appeal must be based and traceable to the decision of the trial Court. The appellant must also canvass only issues that are anchored on a ground or related grounds of appeal. Where an issue is formulated which has no bearing with the ground of appeal, such an issue is liable to be struck out and all arguments made on that incompetent issue must as a matter of fact be discountenanced. It is therefore trite that an issue for determination should arise and relate to a ground of appeal and an argument should also be based on an issue formulated from the ground of appeal. See Madumere v. Okafor (1996) 4 N.W.L.R. (Pt. 445) 637, Idika & Ors v. Erisi & Ors (1988) 2 N.W.L.R. (Pt. 78) 563, Biocon Agrochemicals (Nig) Ltd & 3 Ors Vs. Kudu Holdings Ltd & Anor (2000) 14 N.W.L.R. (Pt. 691) 493.
In order to decide whether the grounds of appeal and the issues formulated therefrom are related, it is necessary to reproduce them here for ease of reference. The grounds of appeal, without their particulars are as follows:-
“1 The learned trial Judge erred in law in refusing the Appellants’ prayer to set aside the Arbitral Award dated 20th July, 2001 and published by Chief Bayo Ojo, SAN, Mrs Funke Adekoya SAN and Mr Mohammed Adoke.
- The learned trial Judge erred in law when he granted leave to the Respondent to enforce the Award as the Ruling of the Court.”
The two issues formulated by the Appellants are as stated hereunder: –
“1. Was the learned trial Judge wrong in refusing to set aside the Arbitral Award and/or was the Arbitral Award one which ought to be set aside in view of the fact of this case
- Was the learned trial Judge wrong in granting leave to enforce the award since the application was brought by wrong process and the fact that the arbitral tribunal itself lacked the jurisdiction to make the Award due to non disclosure of interest of one of the Arbitrators Mr. Mohammed Bello Adoke.”
A glean at the two grounds of appeal vis – a – vis the two issues formulated by the appellant shows that the two issues naturally flow from the two grounds of appeal. I am at sea with the argument of the Respondent on this issue as even the Respondent has formulated two issues which are very similar to those of the Appellant. Hereunder are the Respondent’s two issues:-
“1. Was the Lower Court justified based on the position of the law and the evidence before it in refusing the appellant’s application to set aside the arbitral award.
- Should the Lower Court have granted the Respondent’s application to enforce the award based on the motion on notice filed by the Respondent.”
Clearly, the issues formulated by the Appellant and that of the Respondent have the same meaning but put in different forms.
Can it then be said that the issues of the Appellant are not based on the grounds of appeal but that of the Respondent are? This is not possible. No matter how one looks at the Appellant’s two issues, they are firmly rooted in the two grounds of appeal.
The Respondent had argued that there are more issues than the grounds of appeal. This argument is not anchored on facts before the Court. It is just from the blues and I think the only sensible thing to do in the circumstance is to disregard and discountenance same.
On the whole, it is my conclusion that the preliminary objection does not have merit at all. It is accordingly overruled and struck out.
The coast is now clear for me to consider the appeal before this Court. I have already set out the issues formulated by the parties. The two issues by the Appellant and those of the Respondent are the same and I intend to determine this appeal based on the two issues.
It is the contention of the Learned Counsel for the Appellant on the first issue that non disclosure by Arbitrator M. Bello Adoke is tantamount to misconduct within the provision of section 30 (i) of the Arbitration and Conciliation Act, 1988. That it is clear from the facts that M. Bello Adoke had acted for Liberty Merchant Bank in Suit No K/413/99 against Globus Enterprises Ltd and that the assets of Globus Enterprises being attached in Suit No K/413/99 included the warehouse in which the skins in dispute were warehoused. Referring to Article 9 and 10 (1) and (2) of the 1st Schedule to the Arbitration and Conciliation Act, 1988, Learned Counsel further submitted that a prospective Arbitrator ought to disclose to those who approach him for appointment any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. That the said Arbitrator Adoke failed to observe this. He urged this Court to hold that this was enough act of misconduct which the Learned Trial judge ought to have considered and set aside the arbitral award. The Learned Counsel cited the following cases to buttress his argument. Savoia Ltd v. Sonubi (2000) F.W.L.R. (Pt. 12), Taylor Woodrow Nig Ltd v. Suddeutehe Etna – Werk G.M.B.H. (1993) 4 N.W.L.R. (Pt. 286) 127. He also referred to Ronald Berstein’s Handbook of Arbitration Practice, page 55 paragraph 10 and Commercial Arbitration (2nd Edition) by Sir Mustill & Boyd QC.
It was a further submission of the Learned Counsel for the Appellant that the Arbitrator misconduct the proceedings by not dealing with all the issues before it. That the issue of receivership was raised in the issues for determination but that the Arbitrators failed to decide the issue and went on erroneously to make the award. That the award should therefore be set aside relying on the case of Savoia v. Sonubi (Supra). He then urged this Court to resolve this issue in favour of the Appellant. On the 2nd issue, the Learned Counsel for the Appellant submitted that the process by which the respondent brought this application for leave to enforce the award was wrong and contrary to set down rules and practice and as such argued that the decision to enforce the award by the High Court be set aside.
He referred to S. 26 of the Arbitration Act 1950.
Finally, that the Arbitral Tribunal lacked the jurisdiction to hear the matter due to non disclosure of interest on the part of one of the Arbitrators and that the lower Court was wrong to grant leave to the Respondent to enforce the arbitral award in the circumstance. That this decision for leave to enforce the arbitral award should be set aside.
The Learned Counsel for the Respondent submitted in reply that the fact that Mr. Adoke had acted for Liberty Merchant Bank which was not a party to the contract which gave birth to the arbitration is not the type of connection contemplated by Ronald Bernstein in his Handbook of Arbitration Practice page 55 that “the arbitrator should have no connection direct or indirect with the party such as creates an appearance of partiality.” That the type of connection envisaged by the learned author to debar Mr.
Adoke from acting as an arbitrator is where the said Mr. Adoke had acted for either of the parties to the arbitration. That it cannot by any stretch of imagination be stated that because a person had acted for another person who is not a party to the arbitration, he cannot be an arbitrator as that will be absurd. That as was held by the lower Court at page 295 of the record of proceedings, the case in which Mr Adoke acted for Liberty Merchant Bank does not relate to the subject matter of arbitration but concerns disputes with respect to interest charges between Globus Enterprises Limited and Liberty Merchant Bank Limited and that the only person who had contact or anything to do with the skins from the side of Liberty Merchant Bank was the Receiver they appointed in the person of Mr Kayode Adetokunbo SAN and not Mr Adoke.
That the case of Metropolitan Properties v. Lannon (Supra) cited at page 10 of appellant’s brief does not apply to this case because the facts are not the same.
Again, on the issue of receivership which the Appellant submitted that the arbitral Tribunal did not consider, Learned Counsel for the Respondent submitted that the lower Court at page 296 of the record of proceedings found as a fact that the issue of receivership raised by the appellant was considered by the arbitral tribunal and that there is no ground of appeal attacking the said finding of the lower Court. He cited the cases of Moses v. State, (2006) All F.W.L.R. 1437, Oshodi v. Eyifunmi (2000) F.W.L.R. (Pt. 8) 1271, Olukoya v. Ashiru (2006) All F.W.L.R. (Pt. 322) 1479.
Furthermore, that at page 178 of the record of proceedings, Counsel to the Appellant herein, who was respondent at the arbitral Tribunal, expressly informed the tribunal that the Appellant did not have any objection to the appointment of Mr M. Bello Adoke as arbitrator much more so when the Appellant and his Counsel knew that Mr Adoke had worked for Liberty Merchant Bank before appointing him as its own arbitrator. That having acquiesced to all the proceedings at the arbitral Tribunal with the knowledge of the state of things, the appellants are estopped from complaining now. He referred to the following authorities – L.S.D.P.C. v. Adold/Stamm International Limited (1994) 7 N.W.L.R. (Pt. 358) 545, Belchen v. Roedan School Site & Building Limited 85 LT 468, United Nigeria Insurance Company Limited v. Stocco (1973) N.S.C.C. 96 Middemiss v. Hartlepool Corporation (1972) 3 W.L.R. 163.
Finally on this issue, the Learned Counsel submitted that the award which is on appeal before this Court thoroughly determined all the issues submitted before the arbitrators and that the lower Court was justified in refusing the appellant’s originating summons.
On issue No.2 Counsel for the Respondent submitted that in view of the wording of Section 31 (1) of the Arbitration and Conciliation Act, 1988, it is absurd and preposterous for the appellant to insist that the application contemplated by the said Section is originating summons and not motion on notice. That all the foreign authorities cited in the Appellant’s brief on this issue were all interpreting Section 26 of the Arbitration Act of 1950 and not Section 31 of our own Arbitration and Conciliation Act, 1988.
On the issue of jurisdiction, Learned Counsel submitted that the tribunal had jurisdiction as there was no feature in the tribunal that could deprive it of jurisdiction. He urged this Court to resolve both issues in favour of the Respondent.
As can be noticed from my summary of the argument of both parties on the two issues in this appeal, I have not referred at all to the ten questions or what the Learned Counsel for the Respondent refers to as “subsidiary issues” contained on pages 6 – 7 of the Appellants brief of argument. The reason is not far fetched. The ten questions are challenging the proceedings of the arbitral tribunal directly in this Court as if an appeal lies from the arbitral Tribunal to this Court. For an issue to be worthy of consideration by this Court it must derive from the grounds of appeal which in turn must relate to the decision of the lower Court from which the appeal is lodged. Those ten questions ought to have been asked and determined at the High Court of Kano State where the originating motion was heard. The Court of Appeal as far as I can recollect does not have jurisdiction to hear appeals from the decision of arbitral Tribunals. See Bankole & Ors v. Pelu (1991) 8 N.W.L.R. (Pt. 211) 523, K.T.P. v. Glode & Hoff (Nig) Limited (2005) All F.W.L.R. (Pt. 272) 254, Galadima v. Masha (1994) 6 N.W.L.R. (Pt. 350) 377.
As the ten questions on pages 6 – 7 i.e. (a) – (j) of the Appellant’s brief of argument are referring to and challenging the arbitral award, the proceedings and/or findings of the arbitral tribunal, they are not properly raised in this Court. Accordingly, all those questions and the arguments therein are hereby discountenanced.
I now consider the two issues together. In arbitration proceedings, the general rule is that parties to the transaction choose their arbitrator or arbitrators as the case may be to judge both as to decisions of law and of facts in the dispute between them. Thus where the award is prima facie good on the fact of it, it does not lie in the mouth of one of the parties to object simply because the award is not in his favour. See Taylor Woodrow Nigeria Limited v. Suddentehe Etna – Werk G.M.B.H. (2003) 4 N.W.L.R. (Pt. 286) 127.
However, by virtue of Section 30 (1) of the Arbitration and Conciliation Act, 1988, the Court has power to set aside an award made by an arbitrator where he has misconducted himself. The word “misconduct” has not been defined in the Act or what would amount to misconduct on the part of an arbitrator to necessitate the setting aside of his award. But the Court is not without guidance. The Apex Court in Taylor Woodrow Nigeria Limited v. S.E.G.M.B.H. (Supra) having had recourse to the common law has determined what constitutes misconduct.
Several instances have been listed though it cannot be said to be exhaustive. I think each case should be treated based on its peculiar facts to determine whether or not an arbitrator has misconducted himself. Where an arbitrator had done anything either expressly or impliedly for which a reasonable by-stander would conclude that he was not fair to both parties, I think such act of the arbitrator would qualify as a misconduct.
For the avoidance of doubt, the following instances enunciated in the above case will certainly constitute acts of misconduct, that is to say:-
(i) where the arbitrator fails to comply with the terms, express or implied, of the arbitration agreement;
(ii) where, even if the arbitrator complies with the terms of the arbitration agreement, the arbitrator makes an award which on grounds of public policy ought not to be enforced;
(iii) where the arbitrator has been bribed or corrupted;
(iv) technical misconduct, such as where the arbitrator makes a mistake as to the scope of the authority conferred by the agreement of reference. This however does not mean that every irregularity of procedure amounts to misconduct;
(v) where the arbitrator or umpire fails to decide all the matters which were referred to him;
(vi) where, by his award, the arbitrator or umpire purports to decide matters which have not in fact been included in the agreement or reference, for example:-
(a) where the award contains unauthorized directions to the parties; or
(b) where the arbitrator has power to direct what shall be done but his directions affect the interests of 3rd parties; or
(c) where the arbitrator decided as to the parties’ rights, not under the contract upon which the arbitration had proceeded, but under another contract.
(vii) if the award is inconsistent, or is ambiguous or there is some mistake of fact which mistake must be either admitted or at least clear beyond any reasonable doubt;
(viii) where the umpire or arbitrator refuses to state a special case for himself or allow an opportunity of applying to the court for an order directing the statement of a special case;
(ix) where the arbitrator or umpire delegates any part of his authority, whether to a stranger or to one of the parties, or even to a co-arbitrator;
(x) where the arbitrator or umpire accepts the hospitality offered with the intention of influencing his decision;
(xi) where the arbitrator or umpire acquires an interest in the subject – matter of the reference, or is otherwise an interested party;
(xii) where the arbitrator or umpire takes a bribe from either party.
(xiii) where the arbitrator or umpire has breached the rules of natural justice.
(xiv) if there has been irregularity in the proceedings as, for instance:-
(a) where the arbitrator failed to give the parties notice of the time and place of meeting; or
(b) where the agreement required the evidence to be taken orally and the arbitrator received affidavits; or
(c) where the arbitrator refused to hear the evidence of a material witness; or
(d) where the examination of witnesses is taken out of the parties’ hands; or
(e) where the arbitrator failed to have foreign documents translated; or
(f) where, the reference being to two or more arbitrators, they did not act together; or
(g) where the umpire, after hearing evidence from both parties, received further evidence from one without informing or hearing the other; or
(h) where the umpire attended the deliberations of the appeal board reviewing his award.
(xv) If the arbitrator or umpire has failed to act fairly towards both parties, as for example:-
(a) by hearing one party but refusing to hear the other; or
(b) by deciding in default of defence without clear warning; or
(c) by taking instructions from or talking with one party in the absence of the other; or
(d) by taking evidence in the absence of one party or both parties; or
(e) by failing to give a party the opportunity of considering the other party’s evidence; or
(f) by using knowledge he has acquired in a different capacity in such a way as to influence his decision or the course of the proceedings; or
(g) by making his award without hearing witnesses whom he had promised to hear; or
(h) by deciding the case on a point not put by the parties.
See Taylor Woodrow Nig Ltd v. S.E.G.M.B.H (Supra). Kano State Urban Development Board Vs. Fanz Construction Company Ltd (1986) 5 N.W.L.R. (Pt. 39) 77.
In the instant appeal, the grouse of the Appellant is that one of the three Arbitrators Mr. M. Bello Adoke failed to disclose to the Appellant that he had acted for Liberty Merchant Bank in Suit No. K/413/99 against Globus Enterprises Nigeria Limited a member of the tripartite agreement. And that the said arbitrator was biased against her. On this matter, the findings and conclusion of the lower Court is on pp 295 – 296 of the record as follows:-
“I have considered the contentions of the Learned SAN but with due respect to him I am not convinced by his agents (sic) that failure by him to disclose that he was formerly a counsel to Liberty Merchant Bank was an act of misconduct as Liberty Merchant Bank is not a party to the arbitration and also counsel failed to show any interest that counsel has in the subject matter of the award animal skin a sputed busy (sic) by the respondents’ counsel the case which Adoke represented the Bank was based on interest charges entirely different from the subject matter of arbitration. That ground therefore fails.”
Now can it be said that having acted for Liberty Merchant Bank against Globus Enterprises Limited in a matter which had to do with interest charges only makes it an act of misconduct when he subsequently acts as arbitrator in a matter between the Appellant and the Respondent? No matter how the definition of misconduct is over stretched, this situation cannot be accommodated. On page 140 of the record of appeal is found the claim in suit No K/413/99 between Globus Enterprises Limited v. Liberty Merchant Bank which Mr. Adoke was involved. It states:-
“A declaration that the defendant’s rates of interest at various times charged on the plaintiff s Account and other so called miscellaneous charges on the plaintiff s Account are illegal and unlawful and contravenes the Central Bank of Nigeria (CBN) Prudential Guidelines on Guided Regulation Policy by Government as Regards Banks Interest Rates and all other Guidelines relating to this.”
Clearly, that was the case which Mr. Adoke was involved. It has nothing to do with the tripartite agreement. The Appellant had alleged that Mr. Adoke had obtained a Court order to seal up the warehouse of Globus Enterprises Limited in Suit No KM/195/99.
But a careful perusal of the said Court order as contained on pp 29 – 30 of the record of proceedings discloses that the order was obtained by one Sadi Zawiya of the law firm of Abdullahi and Company, and this corroborates the counter affidavit of Mr. Adoke as found on pp 31 – 32 of the record of appeal. Paragraph 14 therein states:-
“14. That upon the striking out of suit No K/413/99 for want of jurisdiction Mr. Kayode Adetokunbo SAN was appointed Receiver over the assets of the said Globus Enterprises Limited and that my firm ceased to have any further dealings with the said suit or happenings as it relates to Liberty Merchant Bank nor Globus Enterprises Limited.”
With all the above, I agree with the Learned Counsel for the Respondent that it is preposterous for Counsel for the appellant to submit in their brief that Mr. M. Bello Adoke had full knowledge of what was going on in Suit No KM/195/99 and that Mr. Adoke obtained a Court order in that suit when it is quite obvious that the Court order was obtained by one Sadi Zawiya Esq. in the law firm of Abdullahi & Co. for which Mr. Adoke is not a partner.
Another issue which tended to show the misconduct of Mr. Adoke is the submission that the assets which includes the skin, the subject matter of the dispute in the arbitration was also the subject matter of dispute in Suit No K/413/99 in which the Firm of Mr. Adoke represented Liberty Merchant Bank. As I had reproduced above, the findings of the Lower Court is that the case of the parties in Suit No K/413/99 relates to disputes on interest charges on the account of Globus Enterprises. This finding of the trial Court has not been challenged as there is no ground of appeal to that effect. Thus, as there is no ground of appeal challenging the findings of the Lower Court, the finding stands and any argument which tends to attack the said finding without a proper ground of appeal goes to no issue. See Moses v. The State (2006) All F.W.L.R., 1437; Oshodi v. Eyifunmi (2000) F.W.L.R. (Pt. 8) page 1271, Olukoya v. Ashiru (2006) All F.W.L.R. (Pt. 322) 147 at 1498.
It was a further contention by the appellant that issue of receivership was raised before the Tribunal but it failed to consider it and that where an arbitral tribunal fails to consider all the issues referred to it, the award should be set aside. On this the Lower Court states on page 296 of the record as follows:-
“On the 4th issue that the issue of Receivership was not considered was (sic) considered by the tribunal at page 80 at Exhibit F (the report) in which it states that the respondent is estoppels (sic) from denying that it received the goods after admitting receiving them.”
It should be noted here that the Appellant is not quarrelling with the findings of the Lower Court but is still insisting that the arbitral tribunal failed to consider the issue of receivership. My view on this is that having raised and argued that issue before the Lower Court and the Lower Court made a finding on it, the Appellant cannot raise that issue in this Court except to appeal against the finding of the Lower Court. The Learned trial judge found as a fact that the arbitral tribunal considered the issue of receivership at page 80 of their report (i.e. Exhibit F). That finding still stands until successfully appealed against. See Oshodi Vs. Eyifunmi (Supra). Even at that, I think the learned trial judge was right because at page 253 of the record of proceedings is contained the findings and conclusions of the arbitral tribunal as regards the issue of receivership. It states:-
“The Respondent asserted that though it maintained 45, 165 pieces in its stock, it did so out of the need to maintain a clear record, having informed the claimant earlier of the state of things. That it could not receive the 16, 165 pieces of skins into custody because while the skins were still being processed, Liberty Merchant Bank Limited, creditors to Globus appointed receiver Manager over the factory and the 16, 165 pieces of skins that were in the process then were therefore not released by the receiver/manager.
It is difficult to accept the above assertion, particularly when viewed against the fact that the issue of receivership was in August 1999. This fact is bourne out from Exhibit H which was a letter from the Respondent to Claimant dated August 5th, 1999 intimating the Claimant of the receivership over Globus. It was after the incident of the receivership had blown over that the Respondent on October 11th, 1999 wrote a letter Exhibit B with the storage warrant Exhibit C acknowledging a total of 45, 165 pieces of skin in its custody for the Claimant.
Prudence dictates that the Respondent ought not to have admitted having received what it did not. Having so held itself out, we agree with the submission of the counsel for the claimant that it is now estopped from holing otherwise.”
Nothing can be clearer than this. Nothing appears on the face of the arbitral award which could have made the Lower Court to set it aside. The Apex Court in Taylor Woodrow v. Etina – Werk (Supra) at 421 per Ogundare JSC had stated that:-
The general rule is that where the parties choose their own arbitrator to be the judge in the dispute between them, they cannot when the award is good on the face object to his decision either upon the law or the facts.”
Let me emphasise here that where parties to a dispute or their solicitors appoint an arbitrator with full knowledge of the facts and circumstance relating to the arbitrator before his appointment, they will be estopped from objecting to such appointment as invalidating the proceedings. See Russel on Arbitration (12th Edition) page 131 – 132. See also Re Blackhouse and Taylor (1851) L.J.Q.B. 233. Oakland Tal Company Limited v. D. Benaim & Company Limited (1953) 2 Q.B. 261 at 265.
In the instant appeal, when reference is made to pp. 136 -137 of the record of proceedings, there is a further counter affidavit to the motion to set aside the arbitral award wherein it is stated that one Mallam Aliyu Yakubu, Counsel to the Appellant at the arbitral Tribunal was aware of the fact that M. A. Bello Adoke had defended the interest of Liberty Merchant Bank in Suit No K/413/99 before nominating him to act as arbitrator in the arbitral proceedings. Yet they allowed him to conduct the arbitration only to cry foul when the award was against them.
The question is, would the appellant have complained if the arbitral award was in his favour? I do not think so. The Court should not be tempted to set aside arbitral awards duly entered on any flimsy complaint. To hold otherwise would open a wide door for all sorts of attempts to get rid of arbitrators deliberately chosen by parties to contracts. See L.S.D.C. v. STAM (1994) 7 N.W.L.R. (Pt. 358) 545.
I hold the view that the appellant has failed to show that the lower court erred in holding that Mr. Adoke, as arbitrator did not commit any act of misconduct. This issue is resolved against the Appellant.
On the second issue, the appellant had submitted that the process by which the respondent brought the application for leave to enforce the award was wrong and contrary to set down rules and practice and that the decision of the high Court to enforce the arbitral award be set aside. That the current practice is to bring such an application by originating summons supported by affidavit. The Learned Counsel referred to section 26 of Arbitration Act, 1950 and the cases of Solanke v. Somefun (1974) N.S.C.C. page 14 and Sken Consult v. Seconday Ukay (1981) N.S.C.C. 1.
I am surprised as much as the Learned Counsel for the Respondent is that the appellant is still referring to the English Arbitration Act of 1950 when this country has its own domestic law governing arbitration and conciliation matters. i.e. The Arbitration and Conciliation Act, 1988. The appellant even referred to Section 66 (3) of the Arbitration Act 1996 on page 13 of their brief. One does not understand why Counsel should choose to select sections of the law of foreign legal system which aid his case feigning ignorance of the provisions of domestic laws which are at variance with such foreign laws. For instance the Appellant’s Counsel refers to section 26 of Arbitration Act, 1950 which states that an application to the High Court may be made before the commercial judge in chambers by an Originating Summons whereas Section 31 (1) of the Arbitration Act, 1988 Cap 19, Laws of Federation 1990 states:-
“31 (1) An arbitral award shall be recognized as binding and subject to this section and section 32 of this Act, shall, upon application in writing to the Court, be enforced by the Court,”
A careful perusal of section 31 (1) of the Arbitration and Conciliation Act, 1988 produced above shows that a person seeking to enforce an arbitral award should apply to the Court.
The section does not specify what type of application is to be made to the Court. I agree entirely with the learned Counsel for the Respondent that the motion on notice brought by the Respondent to enforce the arbitral award was sufficient and accords with the letter and spirit of the section. Had the Act wanted an application to be made by Originating Summons, it would have stated so. This is so because where the words of a statute are clear and unambiguous like in this case, the Courts must give the words their ordinary meaning. See Balogun v. N.C.S.B. (2003) 2 N.W.L.R. (Pt. 804) 389. NDIC v. Ifedegwu (2003) 1 N.W.L.R. (Pt. 800) 56.It should be noted that whereas section 26 of the English Arbitration Act of 1950 specifically states that the application may be brought by Originating Summons, section 31 (1) of our own Arbitration and Conciliation Act,1988 states that the “application” should be “in writing”. The authorities cited by the Appellant interpreted section 26 of the English Arbitration Act of 1950 and so do not apply to section 31 (1) of the 1988 Act. In the circumstance, I hold that the Lower Court was justified to have granted the respondent leave to enforce the award via a motion on notice.The Appellant’s Counsel had submitted that since Mr. Adoke misconducted himself, the tribunal lacked the jurisdiction to try the case. I need not go into this as the issue ought to have been ventilated at the Lower Court. Moreso, having already held that Mr. Adoke did not misconduct himself; it will amount to a waste of precious judicial time to go into the matter again.
On the whole, it is my well considered opinion that the two issues submitted for determination do not avail the appellant at all. This appeal lacks merit and is hereby dismissed. The judgment of the Lower Court is accordingly upheld.
I award cost of N20, 000.00 in favour of the respondent.
Other Citations: (2009)LCN/3131(CA)
