NIGERIAN TELECOMMUNICATIONS LIMITED v. ENGR. EMMANUEL C. OKEKE(2017)

NIGERIAN TELECOMMUNICATIONS LIMITED v. ENGR. EMMANUEL C. OKEKE

In The Supreme Court of Nigeria

On Friday, the 27th day of January, 2017

SC.144/2006

RATIO

WHEN DOES THE PERIOD STIPULATED FOR FILING AN APPLICATION TO SET ASIDE AN ARBITRAL AWARD BEGIN TO RUN

Before considering the issues raised in the appeal, it is Necessary to dispose of the issue of jurisdiction raised suo motu by this Court on 19/4/2016 regarding the filing of the application to set aside the award made on 15/9/1998. There is no doubt that the award is dated 15/9/1998 but it was not communicated to the parties until 3/5/1999 and the appellant filed the application to set aside the award on 24/6/1999 which was a month after the award was communicated to the appellant. The 3 months period stipulated in Section 29 of the Arbitration and Conciliation Act, Laws of the Federation of Nigeria, 2004 for filing the application to set aside the award started to run from the date the award was published. See Section 26(4) of the Arbitration and Conciliation Act and Article 2(2) Arbitration Rules. The lower Court therefore had jurisdiction to hear the appeal against the order of Longe, J. refusing to set aside the arbitral award. PER KUMAI BAYANG AKA’AHS, J.S.C.

STATUTORY PROVISIONS AS REGARDS WHAT A PARTY WHO SEEKS THE SETTING ASIDE OF AN ARBITRAL AWARD MUST SHOW

Sections 29 and 30 of the Arbitration and Conciliation Act provide as follows: “29(1) A party who is aggrieved by an arbitral award may within three months- (a) from the date of the award; or (b) in a case falling within Section 28 of this Act from the date the request for additional award is disposed of by the arbitral tribunal by way of an application for setting aside, request the Court to set aside the award in accordance with Subsection (2) of this section. (2) The Court may set aside an arbitral award if the party making the application furnishes proof that the award contains decisions on matters which are beyond the scope of the submission to arbitration, so however that if the decisions on matters submitted to arbitration can be separated from those not submitted, only that part of the award which contains decision on matters not submitted may be set aside. (3) The Court before which an application is brought under Subsection (1) of this section may, at the request of a party where appropriate, suspend proceedings for such period as it may determine, to afford the arbitral tribunal an opportunity to resume the arbitral proceedings or take such other action to eliminate the grounds for setting aside of the award. 30(1) Where an arbitrator has misconducted himself, or where the arbitral proceedings, or award, has been improperly procured, the Court may on the application of a party set aside the award. (2) An arbitrator who has misconducted himself may, on the application of any party be removed by Court.” PER KUMAI BAYANG AKA’AHS, J.S.C.

WHETHER ADDRESS OF COUNSEL CAN SUBSTITUTE CREDIBLE EVIDENCE

The address of counsel no matter its persuasiveness, can never take the place of credible evidence. See: Vinz International (Nig.) Ltd v. Morohundiya (2009) 11 NWLR (Pt. 1153) 562. PER KUMAI BAYANG AKA’AHS, J.S.C.

WHETHER ONLY RELEVANT EVIDENCE CAN BE ACTED UPON BY A COURT

It is not just any evidence produced in a proceedings that must be acted upon by a Court or tribunal but how relevant it is to the proceedings. This includes arbitral proceedings. See: K S.U.D.B. v. Fanz Ltd. (1986) 5 NWLR (Pt. 39) 74. PER KUMAI BAYANG AKA’AHS, J.S.C.

JUSTICES

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

Between

NIGERIAN TELECOMMUNICATIONS LTD Appellant(s)

AND

ENGR. EMMANUEL C. OKEKE Respondent(s)

KUMAI BAYANG AKA’AHS, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Lagos delivered on 23/7/2003. The appeal to the Court of Appeal was against the ruling of Longe, J. of the High Court of Lagos State delivered on 5/12/2000 dismissing the appellant’s application to set aside an Arbitral Award made by late Honourable Justice Olusola Thomas dated 15/9/1998 but delivered to the appellant on 3/5/1999.

The arbitral proceeding itself resulted from the termination of the respondent’s appointment as appellant’s Consultant (Electrical/ Mechanical Engineer) for the construction of appellant’s Corporate Headquarters building in Abuja (referred to as “the Project”). Apart from the respondent, three other consultants were appointed by the appellant to oversee various aspects of the project namely:
Consultant Architect (Deenarc Consultants), Consultant Quantity Surveyors (El-Rufai & Partners) and Consultant Civil/Structural Engineers (Landscope Consultants) collectively referred to along with the respondent as “the Consultants”).

By a notice of arbitration dated 16/12/1996 the respondent commenced the arbitral proceeding seeking a declaration that the termination of the contract by the appellant was a breach of a contract between the parties and asked for special and general damages for the wrongful termination. Pursuant to the direction given by the Arbitrator for filing of pleadings, the respondent filed his points of claim dated 16/12/1996 and in response, the appellant filed its points of defence dated 4/4/1997 wherein joining issues with the respondent on his allegations of fact. The respondent subsequently filed a reply to the points of defence dated 9/4/1997and the matter proceeded to trial.

According to the appellant, the respondent’s collusion in the inclusion of N700,000,000.00 (Seven Hundred Million Naira) in the sub-contract tender documents was the underpinning issue contended by the parties in their pleadings but the arbitrator failed to determine, this issue one way or the other in the award dated 15/9/1998. This prompted the appellant to file an application before the High Court, Lagos praying the Court to set aside the arbitral award on grounds of

misconduct amongst others. The High Court dismissed the application holding that there was no misconduct established against the arbitrator. The appeal to the Court of Appeal was dismissed on 23/7/2003 wherein the Court of Appeal held that the pleadings have no relevance in arbitral proceedings. This prompted a further appeal to this Court. There are 11 grounds of appeal in the amended notice of appeal from which appellant’s counsel distilled three issues for determination as follows:
1. Was the Court of Appeal right in affirming the decision of the Lagos High Court that the Arbitrator made a finding on the core issues submitted to him for determination despite his (Arbitrator’s) admission that he did not go into the avalanche of evidence adduced by the parties on the issue of collusion (Grounds 2,3, 5,9 and 11).
2. Was the Court of Appeal right in upholding the decision of the High Court that the appellant did not establish any misconduct against the honourable arbitrator (Grounds 4 and 10)
3. Was the Court of Appeal right in affirming the award of reimbursable expenses (Grounds 6,7 and 8).

The respondent also submitted three issues for determination as follows:
1. Was the lower Court right in holding that the appellant did not prove any misconduct on the part of the sole arbitrator nor show any error of law on the face of the arbitral award to warrant the setting aside of the arbitral award
2. Was the lower Court right in holding that the conduct of arbitration is not subject to the same set of rigid rules of pleadings as obtained in a formal Court trial and that the parties having elected arbitration are bound by the results
3. Was the lower Court right in upholding the damages awarded in favour of the respondent by the arbitrator and upheld at the Lagos High Court (Coram Longe, J)

24/6/1999 which was a month after the award was communicated to the appellant. The 3 months period stipulated in Section 29 of the Arbitration and Conciliation Act, Laws of the Federation of Nigeria, 2004 for filing the application to set aside the award started to run from the date the award was published. See Section 26(4) of the Arbitration and Conciliation Act and Article 2(2) Arbitration Rules. The lower Court therefore had jurisdiction to hear the appeal against the order of Longe, J. refusing to set aside the arbitral award.

Arguments of Counsel
Learned counsel for the appellant maintains that the honourable arbitrator did not decide the core and central issue of collusion of the respondent in the inclusion of the provisional sums which issues were well set out in the parties’ respective pleadings and supported by both oral and documentary evidence. He argued that, the relevance of pleadings in judicial proceedings cannot be over emphasised as arbitral proceedings are judicial in nature pointing to the Arbitration and Conciliation Act, Cap. 19, Laws of Federation of Nigeria, 1990 (now Cap. 18, LFN, 2004) (“the Act) itself

and Articles 18,19 and 20 of the Arbitration Rules which are similar to Civil Procedure Rules. He said that the issues that were submitted to arbitration as can be seen from notice of arbitration and the points of claim as filed by the respondent are:
(a) Legality of the termination; and
(b) Damages

He submitted that issues for determination can only be distilled after the consideration of processes filed by the parties since doing otherwise will be unfairly prejudicial to the other party. Learned counsel contended that if the Court of Appeal had despite its neglect of the appellant’s statement of defence, considered the submission in the appellant’s written address to which it referred, it would have discovered that the underpinning issue on the legality or otherwise of the termination is the collusion of the respondent and its effect as a ground for termination of the contract. He further submitted that the honourable arbitrator could not have validly determined and conclusively reached a decision thereon without first resolving the issue of collusion and complicity of the respondent in the inclusion of the

provisional sums in the subcontractor tenders documents without the appellant’s knowledge, consent and authorisation which were the core issues around which the parties built their respective cases before the arbitral tribunal. Also, the misconduct of the arbitrator is situated in making an award without a determination of that issue of collusion between the parties; hence the error of the lower Court. Learned counsel for the appellant is therefore inviting this Court to consider the process documents of both parties before the arbitral tribunal and the lower Court.

Learned counsel submitted that if the arbitrator or umpire purports to decide matters which have not in fact been included in the agreement of reference then such an award can be set aside. He relied on K.S.U.D.B. v. Fanz Construction Ltd. (1990) 4 NWLR (Pt. 142) 1 and Taylor Woodrow (Nig.) Ltd. v. SEGMBH (1993) 4 NWLR (Pt. 286) 127. Learned counsel maintained that the appellant as respondent devoted the whole of paragraph 12 of the points of defence to the details of the breach that justified the termination of the claimant’s appointment. He referred specifically to paragraph 12 (f) and (g) of the points

of defence where the relevant provisions of the consultancy agreement and the custom and trade practices that were breached by the claimant’s alleged collusion in the inclusion of the provisional sums provision in the sub-contract tender documents and all these were summed up in the respondent’s address to the honourable arbitrator. He said the respondent issued clear instructions to the consultants in exhibit S, directing that tender documents be prepared with the provisional sum ignored and the claimant admitted that up till the determination of his agreement on July 18, 1996, this direct instruction from the respondent was not complied with.

He continued that exhibits “G” and “MM” show that the quantity surveyors were acting in concert with other consultants, including the claimant in the preparation of exhibit “OO” and the claimant admitted under cross-examination that he did not at any time prior to the termination of his service dissociate himself from the consultants’ collective obstinacy over and insistence on the inclusion of the disputed and contentious provisions.

In the circumstances, the claimant was as liable for the

breach of Clause 9.5 of exhibit A as the quantity surveyors and any of the other members of the gang-up. Learned counsel then submitted that to that extent, the respondent was legally justified in terminating his appointment under clause 18.1 of exhibit A.

On the award for reimbursable expenses, learned counsel submitted that the Court of Appeal was misdirected in law and on the facts in holding that “clearly going by the observation of the arbitrator on page 36 of the printed record he had considered the evidence before him to support the award for reimbursable expenses and the arbitrator was right in believing the uncontradicted evidence before him”. Learned counsel argued that the arbitrator accepted the evidence led on reimbursable claims based on the failure of the appellant to cross-examine the witness without regard to the position of the law on proof of special damage.

Learned counsel for the respondent submitted that the substratum of the appeal whilst ostensibly framed against the judgment of the Court of Appeal is in essence a direct challenge to the findings and award of the

arbitrator which was made in 1999. He argued that two issues were submitted for arbitration namely –
(a) Legality of the termination; and
(b) Damages.

It is learned counsel’s contention that an application to set aside an arbitral award is not in the nature of an appeal but sui generis placing reliance on Sections 29 and 30 of the Arbitration and Conciliation Act, Cap. 19, Laws of the Federation of Nigeria, 1990. Learned counsel maintained that an arbitral award may only be set aside if the party making the application furnishes proof that the award contains decisions which are beyond the submission for arbitration or where the arbitrator has misconducted himself. Learned counsel conceded that the jurisdiction of the lower Court to interfere with the decision of an arbitrator is limited to either setting aside the award or remitting it back for reconsideration. He said the question for this Court is whether the lower Court exceeded its jurisdiction in affirming Honourable Justice Longe’s judgment and holding the arbitral award as was done in

Savoia Ltd. v. Sonubi (2000) 12 NWLR (Pt. 682) 539 and submitted that the jurisdiction was not exceeded. He contended that a careful consideration of the lower Court’s ruling will show that the Court confined itself determining whether Longe, J. properly exercised his powers to review the award to come to the right conclusion that save for issue of interest, the arbitrator did not exceed the scope of matters submitted to him and did not misconduct himself.Sections 29 and 30 of the Arbitration and Conciliation Act provide as follows:
“29(1) A party who is aggrieved by an arbitral award may within three months-
(a) from the date of the award; or
(b) in a case falling within Section 28 of this Act from the date the request for additional award is disposed of by the arbitral tribunal
by way of an application for setting aside, request the Court to set aside the award in accordance with Subsection (2) of this section.
(2) The Court may set aside an arbitral award if the party making the application furnishes proof that the award contains decisions on matters which are beyond the scope of the submission to arbitration, so however that if the

decisions on matters submitted to arbitration can be separated from those not submitted, only that part of the award which contains decision on matters not submitted may be set aside.
(3) The Court before which an application is brought under Subsection (1) of this section may, at the request of a party where appropriate, suspend proceedings for such period as it may determine, to afford the arbitral tribunal an opportunity to resume the arbitral proceedings or take such other action to eliminate the grounds for setting aside of the award.
30(1) Where an arbitrator has misconducted himself, or where the arbitral proceedings, or award, has been improperly procured, the Court may on the application of a party set aside the award.
(2) An arbitrator who has misconducted himself may, on the application of any party be removed by Court.”
The issues in this appeal are:
1. Whether the lower Court exceeded its jurisdiction in affirming Longe, J’s judgment and upholding the arbitral award; and
2. Whether the arbitrator misconducted himself.

See: A. Savoia Ltd. v. Sonubi (2000) 12 NWLR (Pt.682) 539.
The sole ground upon which the applicant (now appellant) applied to the Lagos High Court to set aside the award made by the arbitrator was for misconduct. In dealing with the issue about the collusion of the claimant with other consultants with regards to the provisional sums of over N700,000,000.00 and the appointment of a nominated sub-contractor by the consultant architect, Longe, J. said at pages 346-347:
“I found two matters directly well treated with regard to those issues. The arbitrator touched on these two issues as from page K19 of the report. It would therefore be erroneous to see that the arbitrator never considers (sic) these issues. The arbitrator however, concluded that having arrived at these conclusions it would amount to fruitless exercise to go into the avalanche of evidence adduced by the parties at the hearing as to whether, the role if any pleaded by the claimant and the inclusion of the provisional sums in the consultant quality surveyors tender documents etc. It may be said such finding is not comprehensive enough in the light of the

evidence and arguments on those issues. However, I believe one can take refuge in the address of the claimant’s counsel at clause 3.38 of the record as follows:
“Thus although exhibit B was written to the consultant/architect by the respondent directing that the “Tender documents be prepared with the provisional decisions ignored”, Architect Afolabi – DW1 adduced under cross-examination, that this instruction was meant to be carried out by the Consultant Quality Surveyor and not the claimant. It is the Quantity Surveyors who expressly refuse (sic) to carry on this direct instruction exhibit J5″
I checked the cross-examination of DW1 – Engineer Afolabi at page 43 and it confirms the above address. Thus, even if the arbitrator has considered the whole issues and the address on this point, I believe it would go to no advantage to the applicant. The fact that the arbitrator did not consider it, is not such a misconduct but a slight misdirection on the part of the late arbitrator (may his soul rest in peace).
However, having admitted and said all these, I believe

the termination is still bad in itself because even if the client is right and that is has a suspicion or ground to terminate, the client has moved too hastily to terminate in that without waiting (sic) for the 30 days to expire, it has re-awarded the contract to a third party.”
In the Court below the central or core issue submitted to the arbitrator for determination is as contained in the notice of arbitration dated 16th December, 1996 paragraph F which is the relief and remedy sought as follows:
“The claimant claim against the respondent the following reliefs and remedies:
(a) A declaration that the respondent unilaterally breached the agreement between the parties by its letter of termination dated 18th July, 1996 as the claimant was not in default of its obligations under the agreement and the alleged acts relied upon by the respondent for the termination was not committed or aided by the claimants but was the act of a third party.
(b) Damages for wrongful termination of the agreement between the parties.”
The arbitrator construed Clause 18 (1)(a) and (b) of the agreement in considering the legality or

otherwise of the termination wherein the agreement provided that –
“18(1)(a) This agreement may be terminated at any time by either party on the expiring of thirty (30) days notice in writing…
(b) This agreement may be terminated at any time when either party fails to carry out their responsibilities and duties as embodied in the Blue Book or found to be defaulting in clause in this agreement.”
In its letter addressed to the respondent dated 14th July, 1996 which was admitted as exhibit “F” during the arbitration proceedings, the appellant wrote:
“Termination of Consultancy Agreement NITEL Headquarters Building Abuja
This is to inform you that your services are no longer required as a Consultant (Electro/Mechanical Engineers) for the construction of its Corporate Headquarters in Abuja. This letter consequently serves as the requisite 30 days notice under Clause 18.8 of your agreement with effect from the date hereof, of the termination of your said consultancy services agreement dated 14th July, 1995 in respect of

the project NITEL decision is based, among others, on the understated reason. Recently the consultant quantity surveyor prepared tenders documents for the services subcontract and made provisions for:
(a) Provisional sums worth over N700,000,000.00;
and
(b) Nominated subcontractor to be appointed by the architect
The provisions were not in the original bill and were unnecessary because, inter alia there are drawings and specifications for all the services. Besides, these provisions were made without NITEL’s prior knowledge and consent. All the Consultants, it turned out, knew of and approved the inclusions, in order, according to them, to check alleged “willful perversion of the (subcontract) procedures” by NITEL and the main contractor. The consultants’ attitude is objectionable and unacceptable to NITEL. NITEL considers the insistence of the consultants in including the provisional sums in the tender documents despite NITEL’s objection, as a fundamental breach of their collective and individual duties and responsibilities to NITEL as their employer.

NITEL is currently working out your entitlements (and outstanding obligations if any) as at the effective date of the termination (i.e. 30 days from the date of this letter). Please note that NITEL intends to proceed against you before an arbitrator, in the event of any dispute inter alia on your terminal entitlements and/ or obligations in accordance with Clause 21.1 of your consultancy agreement.
(Sgd.)
S. O. Olabiyi
for: General Manager
Legal & Secretarial”
The respondent received exhibit “F” on 22/7/96 and reacted to the said termination in his letter exhibit “H” on 25th July , 1996 as follows:
“The Managing Director
Nigerian Telecommunications Plc 3/5 Tafawa Balewa Square
Lagos.
Dear Sir,
Re: Termination of Consultancy Agreement NITEL Headquarters Building, Abuja.
I have received with utter consternation your letter No. GMLS/A.1/T.5/Vol.III/4421/91 of 18th July, 1996 informing us of the termination of our appointment as Consulting Mechanical/Electrical Engineers to NITEL Plc on the above project.
The reasons adduced are that we “knew of and approved the inclusion of certain provisions by the

quantity surveyor in the tender documents prepared by him. We wish to inform you most respectfully that these deductions are totally false and that you could not have thus mistakenly sought to terminate our appointment if we had simply been invited and asked if we knew or endorsed those inclusions. Indeed the quantity surveyors themselves would have informed you that they acted purely solo, again the trouble had been taken to ask them if there had been collusion or even connivance by our firm.
The simple truth is that we did not know what the quantity surveyors provided in their documents; that we did not even see the documents prior to tendering as their letter forwarding it to the client was not copied to us; that we could not therefore have approved of what we were unaware of. It is also the truth that when we eventually saw the documents we condemned it and approached the authors for those inclusions. We went further to advise the client that a way out was for tenderers to neglect the provisional sums and quote for any item. It is further the truth that when the QS rejected the client’s instructions stemming from our above advice and

wrote his letter of 10th June, 1996 claiming copyright to his tender documents (among other correspondences), we were outraged and wrote a letter of reprimand and advice dated 17th June, 1996 which we copied the client. In order to obviate any doubts to the effect, we must make it clear immediately that these praiseworthy acts of this practice were done not because we have any responsibilities for the quantity surveyors areas of duty and responsibility, but purely out of a sense of maturity, esprit de corps and interest in the overall success of the project implementation. A local proverb holds that the elderly does not sit by while the goat delivers under burden of a noose.
Since you made reference to clause 18.1 of our agreement with NITEL as basis for the termination letter you would by now have seen that as the same A clause provides, MEKON ASSOCIATES, has not and could not by merely the failures of others , be said to have themselves failed “to carry out their responsibilities and duties as embodied in the Blue Book or found to be defaulting in any clause in this agreement. In its long history, this practice has never

been tabled for misconduct or mal-performance that would even contemplate determination of its appointment. Among others, its principal is an engineer of over thirty years practice, a fellow of the Nigerian Society of Engineers and an officer and gentleman of high integrity (N 527 Capt. E. C. Okeke Vol. Rtd. NAEME 1971) who is beyond such reproach.
We therefore implore you primarily in the interest of the success of the project, justice and fair play to withdraw the letter of termination which was obviously issued in error. You may then invite us to carefully explain and defend our position which is clearly, albeit only sketchily, stated therein. We would then be able to tender oral and voluminous documentary evidence which we are very sure will convince you of our vindication and innocence. May we take this opportunity to affirm our absolute loyalty to the client and our commitment and abiding faith in the successful attainment of this most important national project in which we are very proud to be servants.
Yours most faithfully
for: MEKON ASSOCIATES
(Sgd.)
Engr. E. C. Okeke
Principal Partner”

Despite this exhaustive explanation in exhibit “H” the appellant did not shift ground in terminating the appointment and stated this fact in its letter of 12th August, 1996 wherein it referred to the letter of 25th July, 1996 and went on to say:
“We wish to inform you that NITEL Management maintains its stand on the above. You should therefore, regard the matter as closed”.
Exactly one week after exhibit “J” was written, the appellant on 19th August, 1996 appointed Techno Consult as Consultants. The letter was received in evidence as exhibit “KK”. It reads:
“GMLS/C.9/T.5/Vol . III/465/143
19th August, 1996
The Principal Partner
Techno Consult
47, Aminu Kano Way
P.O. Box 6242
Kano.
Dear Sir,
Appointment as Consultant Mechanical/Electrical Engineers for the Construction of NITEL Corporate Headquarters Building, Abuja.
Reference is made on the above project. I am pleased to convey to you the Honourable Minister of Communications’ approval for the appointment

of your Firm as Consultant Mechanical/Electrical Engineers for the Construction of NITEL Corporate Headquarters Building, Abuja. Your Consultancy fee will be based on the Federal Government Scale of Fee for Consultancy Service.
Please indicate your acceptance of this offer in writing and contact the undersigned for the signing of the consultancy services agreement. You are also advised to liase with the Project Management Consultant for further details.
Yours faithfully,
Nigerian Telecommunications Plc
(Sgd.)
C. T. lyorkar
for: General Manager
(Legal & Secretarial)
The arbitrator noted that exhibit “F” did not reach the respondent until 22nd July, 1996 because that was the date the claimant acknowledged receipt of the termination and held that the 30 days’ notice under Clause 18.1 (a) of exhibit “A” should properly be calculated from 22/7/1996 when exhibit “F” was delivered to the claimant. Since by exhibit “KK” Techno Consult was appointed as Consultant Mechanical/Electrical Engineers on 19th August, 1996 while

the notice of termination of Exhibit “A” would have expired on 21st August, 1996 the contract was not determined in accordance with Clause 18.1 (a) of the agreement and proceeded to nullify the termination and declared it illegal.
The arbitrator then examined Clause 18.1 (b) of the agreement and held that the burden lay on the respondent (appellant) who sought to terminate exhibit “A” on the ground that the claimant failed to carry out its responsibilities and duties embodied in the Blue Book or found to be defaulting in any clause in the agreement, that should plead these facts in its points of defence and lead evidence to establish same. He said that it was in its reaction to paragraph 9 of the points of claim (wherein claimant averred that he exercised all due care and complied strictly with the agreement and professional ethics of the engineering profession), that the respondent alleged that the claimant breached his duty of care and responsibility to it, its employer (vide paragraph 10 of the points of defence). He said the respondent did not plead the Blue Book (or any part thereof) or any clause in the agreement to designate wherein the claimant

failed to carry out his responsibilities and duties therein. On that basis he held that the respondent did not strictly comply with the conditions laid down in clause 18.1 of exhibit “A” for the termination of the contract therein. Learned counsel for the appellant relied heavily on this and argued that the arbitrator could not have validly determined and conclusively reached a decision without resolving the issue of collusion which is central to a determination of the legality or otherwise of the termination of the contract.
The arbitrator stated the correct position of the law that the burden of proof in civil proceedings lies on that person who would fail if no evidence at all is given. Thus, it was the appellant who had alleged that the respondent colluded with the Quantity Surveyors to include the over N700,000,000.00 in the tender documents to provide evidence in proof of the allegations to justify the termination of the contract.
The respondent vehemently protested his innocence in exhibit “H” on the issue of collusion and maintained that he did not even see the documents prior to tendering and so could not have approved of what he was not

aware of. Despite this strong protest, the appellant still went ahead to terminate the contract without giving the respondent any opportunity to refute the allegation in exhibit “F’. The address of counsel no matter its persuasiveness, can never take the place of credible evidence. See: Vinz International (Nig.) Ltd v. Morohundiya (2009) 11 NWLR (Pt. 1153) 562. It is not just any evidence produced in a proceedings that must be acted upon by a Court or tribunal but how relevant it is to the proceedings. This includes arbitral proceedings. See: K S.U.D.B. v. Fanz Ltd. (1986) 5 NWLR (Pt. 39) 74. Heavy weather has been made of the statement by the arbitrator when he said, “it would be a futile exercise to go into the avalanche of evidence adduced by the parties at the hearing as to whether the role, if any, played by the claimant in the inclusion of the provisional sums in the consultant quantity surveyors’ tender documents for the services of the subcontract tenders amounted to a collusion or whether any act of collusion or connivance on the part of the claimant, if established, was a breach on the part of the claimant to carry out his responsibilities and

duties as embodied in the Blue Book or found to be defaulting in clause in the agreement.” Longe, J. found in his review of the arbitral award that the arbitrator considered the issue.
The appellant did not pinpoint any part in the avalanche of evidence adduced where he proved that the claimant colluded or connived with the Quantity Surveyors to include over N700,000,000.00 in the tender documents. Without any proof to substantiate the allegation, the Arbitrator cannot be said to have shirked his responsibility in deciding all matters which were referred to him for which he would be said to have misconducted himself in order to set aside the arbitral award. See: Taylor Woodrow (Nig.) Ltd. v. Suddeutsche Etna-Work GMBH (1993) 4 NWLR (Pt. 286) 127. If the respondent colluded with the quantity surveyors to include N700,000,000.00 in the tender documents so as to defraud the appellant, the burden of proof is heavier since a crime is being alleged. See: Section 135 (1) Evidence Act, 2011.
On the issue of reimbursable expenses, learned counsel contented that what is required in proof of special

damages is the strength and quality of the evidence and not the weakness of cross-examination or lack of it citing Union Bank of Nigeria Plc v. Sparkling Breweries Ltd. (1997) 3 NWLR (Pt. 491) 29.
He argued that in discharging this duty the Court or arbitral tribunal requires a proper and painstaking evaluation of the evidence so led and a specific finding on their cogency and credibility as a basis for their reliability.
Learned counsel for the respondent argued that the arbitrator, the High Court and the Court of Appeal considered the award for reimbursable expenses and submitted that this Court should not interfere with the concurrent findings of fact by three different tribunals.
I agree with the submission of learned counsel for the respondent that since the respondent submitted receipts to back up the expenses he claimed to have made, the only way to test whether they are credible evidence is through cross-examination to ascertain their authenticity. Since appellant’s counsel chose not to cross-examine on the receipts, there was uncontradicted evidence which the

arbitrator could act upon to make the award for reimbursable expenses.
The application to set aside the award made to the Lagos State High Court was refused save for the complaint that the arbitrator misdirected himself when he awarded interest at the rate of 21% on the sum awarded to the claimant. The Court below affirmed the ruling of the Lagos State High Court. I find that the further appeal to this Court to set aside the arbitral award based on misconduct lacks merit and it is accordingly dismissed. The award for reimbursable expenses is further affirmed by me. Appeal is dismissed.

WALTER SAMUEL NKANU ONNOGHEN, C.J.N.: I have had the benefit of reading in draft the lead Judgment of my learned brother Aka’ahs, J.S.C. just delivered.

My learned brother has exhaustively dealt with the issues formulated and relevant for the determination of the appeal and I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.

There is nothing on record to make it necessary for this Court to disturb the concurrent findings of facts by the lower Courts.

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I abide by the consequential orders made in the lead judgment including the order as to costs.
Appeal dismissed.

MARY UKAEGO PETER-ODILI, J.S.C.: I am in agreement with the judgment just delivered by my learned brother, Kumai Bayang Aka’ahs JSC and to register my support, I shall make some comments.

This is an appeal against the decision of the Court of Appeal, Lagos Division which dismissed the appeal against the ruling of Longe, J. of the High Court of Lagos State delivered on the 5th December, 2000 which also dismissed appellant’s application to set aside an arbitral award made by Olusola Thomas, J. dated 15th September 1998 and delivered to appellant on 3rd May 1999.

The background of the facts leading to this appeal are well set out in the lead judgment and I will not repeat them save for any reference thereto in the course of this contribution.

The learned counsel for the appellant, M. O. Liadi, Esq. on the 7th day of November, 2011 adopted the brief of appellant settled by Paul Usoro, SAN and filed on the 14th March 2013 and a reply brief filed on 8/1/2014 and deemed

filed on 5/2/2014. The appellant distilled three issues for determination which are as follows:
1. Was the Court of Appeal right in affirming the decision of the Lagos High Court that the Arbitrator made a finding on the core issues submitted to him for determination despite his (arbitrator’s) admission that he did not “go into avalanche of evidence adduced by the parties on the issue of collusion (Ground 2,3,5,9 and 11)
2. Was the Court of Appeal right in upholding the decision of the High Court that the appellant did not establish any misconduct against the honourable arbitrator (Grounds 4 and 10)
3. Was the Court of Appeal right in affirming the award of reimbursable expenses (Grounds 6,7 and 8)

For the respondent, learned counsel, A. O. Agbola adopted the brief of argument of the respondent filed on the 18/4/2013. Also were formulated three issues for determination, viz:
1. Was the lower Court right in holding that the appellant did not prove any misconduct on the part of the sole arbitrator nor show any error of law on the face of the arbitral award to warrant the setting aside of the arbitral award.

Was the lower Court right in holding that the conduct of arbitration is not subject to the same set of rigid rules of pleadings as obtained in a formal Court trial and that the parties having elected arbitration are bound by the results
3. Was the lower Court right in upholding the damages awarded in favour of the respondent by the arbitrator and upheld at the Lagos State High Court, Coram Alonge, JI shall utilise issue 2 of the appellant which is similar to issue 1 of the respondent as sufficient to resolve the question before the Court in this appeal.
Issue 2
Was the Court of Appeal right in upholding the decision of the High Court that the appellant did not establish any misconduct against the honourable arbitrator

Learned counsel for the appellant submitted that the ruling of the trial High Court contains contradictions, factual inaccuracies and considerable errors of law and fact on the part of the trial Judge. That the ruling contradicts itself materially consequent upon a fundamental disconnection between the trial Court’s final conclusion – the upholding of the arbitral award, and the main

findings that led up to the conclusion. That the findings of the learned Judge’s lead to the inescapable conclusion that there was no decision whatsoever by the arbitrator on the central and core issues that were submitted by the parties to him for determination i.e. whether or not:
(a) respondent had colluded with the other consultants in including provisional sums provisions in the subcontract tender documents; and
(b) such collusion as alleged by the appellant was in breach of consultancy agreement and provided sufficient and legal justification for the termination of the respondent’s appointment by the appellant.

For the appellant it was further contended that the Court of Appeal misdirected itself in law when it refused to consider the appellant’s submissions on the issue of misconduct of the arbitrator. That there was a lot to show that the arbitrator veered off course not backed by pleadings and thereby exceeded the scope of the arbitral proceedings and his authority on the issues. He cited several judicial authorities such as Taylor Woodrow (Nig) Limited v. SE GMBH (1993) 4 NWLR (Pt. 286) 127.
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Responding, learned counsel for the respondent stated that the Court of Appeal did not make a single addition to findings of fact made by the arbitrator and the trial High Court and the Court of Appeal essentially found that none of the allegation of misconduct against the arbitrator and of error against Longe, J. was established. That the appellant failed to show any error of law on the face of the award save for the Award relating to damages which had been severed from the award by the High Court. That there is no basis on which this Court can set aside the concurrent findings of fact of the arbitral tribunal, the State High Court and the Court of Appeal.
He cited Savannah Bank of Nigeria Limited v. S.I.O. Corporation (2001) I NWLR (Pt. 693) 194 at 212.

In brief the stance of the appellant is that the failure of the arbitrator to consider the collusion of the respondent in the inclusion of the provisional sums in the subcontract tender documents and his refusal to go into the avalanche of evidence led by the parties on this issue is a serious misconduct on the part of the arbitrator on which the award should be set aside.

The respondent took the contrary view, stating that the arbitrator is not obliged to rule on every issue of law or fact canvassed before him. That he is only entitled to rule on matters that will assist him in determining the core issues before him i.e. whether the termination of the consultancy service agreement was lawful and if not, the amount and measures of damages. That the appellant was unable to prove at the lower Court any allegation of misconduct or error of law which appears on the face of the award and the only complaint of the appellant is that the award was not in his favour as there was no error on the face of the award to justify the setting aside of the award.
The award made by the arbitrator being the fulcrum of the dispute illuminating in this appeal will be quoted hereunder, viz:
“The Award
This is the Award by me, Justice Olusola Thomas (Rtd.) former Chief Judge of Lagos State and of No.22 Saka Tinubu Street, Victoria Island, Lagos made this 15th day of September, 1998
WHEREAS:
1. By an order of the High Court of Lagos State made at Ikeja on 23rd January 1997 by the Chief Judge of the State in the Ikeja High Court, suit No. ID/724M/96

wherein one Engr. Emmanuel Chukwuemka Okeke (Trading under the name of Mekon Associates) was the plaintiff/claimant and the Nigerian Telecommunications Plc was the defendant/respondent, it was ordered that the dispute between the parties be referred to me as the sole arbitrator for hearing and determination. The enrolment of the order is published along with other particulars in this report.
2. That both parties led oral evidence through three witnesses each (including the claimant) and tended 40 documentary exhibits.
3. That the solicitor for either party thereafter submitted written addresses on behalf of their clients.
Now Be It known that I the said sole arbitrator, Justice Olusola Thomas (Rtd.) hereby make and publish this my award for and concerning the matters so referred to me in the following manner, that is to say:
1. I award and determine that the purported termination letter exhibit “F” from the respondent to the claimant was a nullity and ineffective to terminate the

consultancy services agreement exhibit “A” made between the parties on the 14th July, 1995.
2. I award and determine that the respondent did strictly comply with the conditions laid down in Clause 18 of the consultancy service agreement (exhibit A) for the termination of the contract therein in exhibit “A” is invalid, unlawful and illegal.
3. I assess and award in favour of the claimant the maximum allowable claim under exhibit A’ of the sum of N1,263,750.00 as reimburse expenses to be paid by the respondent.
4. That I assess and award the sum of N134,760 in respect of the remuneration for Engr. S O Ajayi for 7 months only under the Resident Staff employed by the claimant in favour of the claimant to be paid by the respondent.
5. I assess and award the sum of N3,948,498.15 as damages for loss of profit in favour of the claimant to be paid by the respondent.
6. That the total sum of the damages awarded in favour of claimant against the respondent is N5,346,908.15 and I award interest on the said sum at 21% per annum from the date of the breach of contract 14th July, 1996 till the date

hereon amounting N2,432,843.10 to be paid by the respondent.
7. That the claimant is entitled to the costs of his legal representation as the successful party and I assess and award the sum of N500,000.00 in favour of the claimant to be paid by the respondent.
8. That the claimant being the successful party is entitled to the costs of this arbitration fixed at N25,000.00 to be paid by the respondent and I so award.
9. That the respondent shall reimburse the claimant being the successful party in the sum of and being the arbitrator’s fee paid by the claimant and I so award.
10. That the total amount for which the claimant is entitled and which shall be paid by the respondent is N9,134,751.25 and interest at 6% per annum shall be paid as from the 15th September, 1998 till all the sums awarded are liquidated and I so award.
11. That the reasons for decision, findings and the award are contained at page hereafter.
Hon. Justice Olusola Thomas (Rtd.)
Sole Arbitrator
15th September, 1988.”
What is for review before this apex Court are the concurrent findings of the two Courts below that the arbitrator acted above board and the allegation put up

by the appellant of misconduct on the part of the arbitrator remained not proven.
The salient part of the judgment of the Court of Appeal on the conduct of the arbitrator is shown at page 433 and I shall state it thus:
“The points of claim which was filed after the reference to the arbitrator and which counsel to the appellant regard as pleadings only give further particulars and cannot be equated to pleadings in the superior Court of record. By its nature arbitration proceedings is sui generis and the important consideration in determining its procedure is that each party must be given adequate opportunity to canvass his case and rebut the evidence of the other party if he so desires. It is a very wrong notion to equate arbitration proceedings as if it was formal proceedings at superior Court of records. In arbitration proceedings the rules are more relaxed.
There is no doubt the purpose of arbitration will be defeated if subjected to the same rules of Court to which by necessary implication it is inferior. This Court in Ebokan v. Ekwenibe & Sons Trading Co. (supra) stated the benefits of submission to arbitration thus:

“Parties who make a submission to an arbitrator often do so in an order to adopt a quick, inexpensive and technicality free procedure to resolve their dispute. A Court should not therefore upset the expectation of the parties except for the clearest evidence of wrong doing or manifest illegality on the part of the arbitrator.
In the view of the above therefore arbitration is a fast, cheap and efficient method of resolving conflict between parties without having to follow the rigid procedures of normal Court of laws. Besides the recourse to arbitration was a conscious decision of the parties and they ought to be bound by the result save in situation of clearest evidence of wrong doing or manifest illegality on the part of the arbitrator. In the light of the fact that in arbitration proceedings pleadings have no relevance and the fact that the arbitrator acted within the con of the notice of arbitration dated 16th December 1996 and the lower Court so found in this regard, I resolved issue No. 2 in favour of the respondent against the appellant.”
The above finding of the Court below was along the line of finding and decision of the Court of trial per Longe,

The question that would naturally flow is whether this Court has any reason for departing from those findings or to interfere with them. Of course, I am mindful that this Court or any appellate Court for that matter is loath to upsetting or disturbing concurrent findings of a Court below or Courts below where there is nothing perverse leading to those findings or a miscarriage of justice having taken place or an error of law which appears on the face of the award and subsequent findings. None of those conditions having taken place, there is no foundation for a contrary finding.
The appellant has not established the misconduct he alluded to and so his complaint has not gone beyond a murmur of dissatisfaction and that is not sufficient to impugn the award well considered and arrived at by the arbitrator. Therefore there is also no justification in setting aside of the award. I rely on the cases of Kano State Urban Development Board v. Fanz Ltd. (1986) 5 NWLR (Pt.39) 74; Okoya v Santilli (1994) 4 NWLR (Pt. 338) 256 at 302; Ige v. Akoju (1994) 4 NWLR (Pt. 340) 535 at 546 referred to by the respondent.
From the above and the well reasoned lead judgment

of my learned brother, Kumai Bayang Aka’ahs I too see no merit in his appeal and I dismiss it.
I abide by the consequential orders as made.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The genesis of this appeal is the appellant’s dissatisfaction with the arbitral award made by Hon. Justice Olusola Thomas dated 15/9/1998 and delivered on 3/5/1999, which was upheld by the High Court of Lagos State via a ruling delivered on 5/12/2000 and affirmed by the Court of Appeal, Lagos Division on 23/7/2003.
The dispute between the parties arose from the termination of the respondent’s appointment as the appellant’s consultant (Electrical/Mechanical Engineer) for the construction of the appellant’s Corporate Headquarters in Abuja. There were three other consultants appointed by the appellant to oversee various aspects of the project. After terminating the contract the appellant immediately re-awarded it to another consultant.
My learned brother, Kumai Bayang Aka’ahs, JSC has set

out in detail the facts that gave rise to this appeal. Suffice it to say that the reason given by the appellant for terminating the contract was the alleged collusion by the respondent with other consultants by including the sum of N700 million in the subcontract tender documents without the appellant’s knowledge, consent or authorisation. Sequel to the termination of the contract the respondent commenced arbitration proceedings against the appellant. The two issues submitted to arbitration were:
(a) The legality of the termination
(b) Damages.
At the conclusion of the proceedings, an award was made in favour of the respondent. The sole arbitrator found the termination of the Consultancy Services Agreement between the parties was invalid for non-compliance with clause 18 thereof which required either party to give 30 days notice in writing before terminating the contract. The arbitrator noted that the contract was not properly terminated before it was re-awarded to another consultant. He also found that the appellant failed to lead any evidence to prove that there was any default by the

respondent in carrying out his responsibilities and duties as embedded in the Blue Book or in any other respect under the contract.
Having so held, he stated that he did not deem it necessary consider the “avalanche of evidence” adduced by the parties on the issue of what role, if any, the respondent played in the inclusion of the provisional terms in the Quantity Surveyor’s tender documents and whether or not there was collusion. He also made an award in favour of the respondent for reimbursable expenses.
The appellant sought to have the award set aside by the Lagos State High Court on grounds of misconduct. His Lordship, Longe,J. in his ruling delivered on 5/12/2000 affirmed the awards made by the sole arbitrator except the award for interest. The court below, affirmed the decision of the High Court. The appellant is still dissatisfied, hence the instant appeal.
The main complaints of the appellant are that it was wrong of the sole arbitrator not to have considered the evidence of collusion in determining whether the contract between the parties was validly terminated and that the claim for damages, which was in the nature of special damages was

not strictly proved, and that the lower Court erred in affirming the decision of the Lagos State High Court.
At the outset, I must say that learned counsel for the respondent correctly stated the position of the law that arbitration proceedings are sui generis. An application to set aside an arbitral award is not in the nature of an appeal against the award. An arbitral award is regarded as a final and conclusive judgment on all matters referred and the Courts are enjoined, as far as possible to uphold and enforce arbitral awards, having regard to the fact that it is a mode of dispute resolution voluntarily agreed upon by the parties. See Ras Pal Gazi Construction Co. Ltd. v. F.C.D.A. (2001) 10 NWLR (Pt. 722) 559 at 569 D-E; Commerce Assurance Ltd. v. Alli (1992) 1 NSCC 556; (1992) 3 NWLR (Pt. 232) 710.
The rather limited circumstances in which a Court can set aside an arbitral award are provided for in Section 29 (2) and 30 of the Arbitration and Conciliation Act, Cap. A18, Laws of the Federation of Nigeria, 2004 as follows:
“29(2) The Court may set aside an arbitral award, if the party making the application furnishes proof that the award contains decisions on matters which

are beyond the scope of the submission to arbitration, so however that, if the decisions on matters submitted to arbitration can be separated from those not submitted, only that part of the award which contains decisions on matters not submitted may be set aside.
30(1) Where an arbitrator has misconducted himself, or where the arbitral proceedings, or award, has been improperly procured, the Court may on the application of a party set aside the award.
(2) An arbitrator who has misconducted himself may, on the application of any party be removed by the Court.”
In Taylor Woodrow (Nig.) Ltd. v. Suddeutsche Etna-Werk GMBH (1993) 4 NWLR (P1.286) 127 at 142 – 144 A – E, this Court set out comprehensively what amounts to misconduct by an arbitrator. See also: A. Savoia Ltd. v. Sonubi (2000) 12 NWLR (Pt. 682) 539 at 547 D – G. A few of such acts, which are relevant to the instant appeal, are: where the arbitrator fails to comply with the terms, express or implied, of the arbitration agreement; where the award contains decisions on matters beyond the scope of the reference; and where he fails to decide all the matters

that were referred to him.
To underscore the fact that the Court does not sit on appeal over an arbitral award, it is to be noted that even where the Court finds merit in an application to set aside an award, its jurisdiction is limited to setting aside the award and remitting it to the arbitrator for reconsideration. The Court has no jurisdiction to determine the merits of the matter which is the subject of the arbitration proceedings. See: A. Savoia Ltd. v. Sonubi (supra).
In the instant appeal, I observe that a significant portion of the appellant’s brief is devoted to challenging the award. This is not proper.
In the instant appeal, I agree with my learned brother, Akaahs, JSC that the appellant failed to show why the concurring decisions of the two lower Courts should be interfered with. The sole arbitrator rightly held that the appellant failed to comply with the terms of the agreement between the parties regarding the required number of days’ notice to be given on either side before the contract could be terminated. Thus, as rightly found by the sole arbitrator and upheld by the two lower Courts, even if the

appellant was able to establish collusion, he was still bound to comply with the terms of the agreement governing the termination of the contract.
With regard to the award of reimbursable expenses, the respondent’s claim was in the nature of special damages. He gave evidence and tendered receipts in respect of the expenses incurred. He was not cross-examined on his evidence. The learned arbitrator was entitled to rely on the evidence which he found credible and unrebutted.
On the whole, I agree with the Court below that the appellant failed to establish misconduct on the part of the arbitrator to warrant the award being set aside by the Lagos State High Court.
For these and the more detailed reasons ably articulated in the lead judgment of my learned brother, Kumai Bayang Aka’ahs, JSC, with which I entirely agree, I also dismiss the appeal and abide by the order on costs as contained therein.

AMIRU SANUSI, J.S.C.: The judgment just delivered by my learned brother K.B. Akaahs J.S.C. was made available to me before now and on perusing it, I find myself in entire agreement with the reason and conclusion arrived at for <br< p=””

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dismissing this appeal. I however have few comments of mine to make in support of the lead judgment. The facts of the case have been ably summarised in the lead judgment, but suffice to say that the disagreement between the parties herein, emanated from the termination of the respondent’s appointment by the appellant, an Electrical/Mechanical Engineer, as its consultant for the Corporate Headquarters in Abuja along with three other consultants to oversee the execution of the project.

The appellant having terminated the contract, later awarded the contract to another consultant without much delay. According to the appellant, it terminated the contract because the respondent allegedly connived with the consultant to include the sum of N700,000,000.00, (Seven Hundred Million Naira only) in the sub contract tender documents without the knowledge, consent or approval of the appellant.

The termination of the contract by the appellant obviously angered the respondent, following which it instituted arbitral proceedings against the appellant basically on the following two issues, namely:-
(a) The legality or propriety of the termination.

(b) Claim of damages for the termination

Sequel to that, arbitral proceedings commenced in earnest and in the end the one man arbitral panel decided in favour of the respondent and made an award in the respondent’s favour. The sole arbitrator’s decision was hinged on the reasons (1) that the termination of the consultancy service agreement was not valid as it failed to comply with Clause 18 of the agreement which, required any of the parties to give 30 days notice in writing, before terminating it and therefore the termination was improper before it could be awarded to another consultant and (2) the sole arbitrator held that the appellant did not lead evidence to establish any default on the part of the respondent in the execution of his duties as defined in the contract agreement. The arbitrator ruled out the existence of any collusion and finally made an award in favour of the respondent for reimbursement expenses.

Piqued by the award made by the the sole arbitrator against it the appellant approached the Lagos State High Court to set aside the award on the ground of misconduct. In his ruling E. F Longe J. delivered on the 5th

December 2000 partially affirmed the award made by the sole arbitrator, save the award of interest. Aggrieved by the ruling of E.F. Longe J, the appellant took the matter further on appeal to the Court of Appeal (Court below), albeit, unsuccessfully, because the latter Court affirmed the decision of the arbitral panel. Still disenchanted with the decision of the Court below, the appellant further appealed to this Court.

In presenting its appeal vide the amended appellant’s brief of argument it filed, the appellant raised three issues for determination of this appeal which read, thus:-
(1) Was the Court of Appeal right in affirming the decision of the Lagos High Court, that the arbitrator made a finding on the core issues submitted to him for determination despite his (arbitrator’s) admission that he did not go into avalanche of evidence adduced by the parties on the issue of collusion (Grounds 2,3,5, 9 and 11).
(2) Was the Court of Appeal right in upholding tile decision of the High Court that the appellant did establish any

misconduct against the honourable arbitrator Grounds 4 & 10; and
(3) Was the Court of appeal right in affirming the award of reimbursable expenses (Grounds 6,7 and 8)

The respondent also proposed three issues for determination as set out below:-
(a) Was the lower Court right in holding that the appellant did not prove any misconduct on the part of the sole arbitrator nor showed any error of law on the face of the arbitral award to warrant the setting aside of the arbitral award
(b) Was the lower Court right in holding that the conduct of arbitration is not subject to the same set of rigid rules of pleadings as obtained in a formal Court trial and that the parties having elected arbitration, are bound by the results
(c) Was the lower Court right in upholding the damages awarded in favour of the respondent by the arbitrator and upheld at the Lagos High Court (Coram Longe J)

To my mind, the pith of this appeal revolves on the application for and indeed, the setting aside of the arbitral award made by the sole arbitrator by the Lagos State High Court which was later affirmed by the Court below.

The appellant’s grouse basically revolves on that.
Generally speaking, arbitral award is regarded in legal parlance, as a final judgment on all matters referred to an arbitrator and as such Courts are enjoined to, as much as possible, uphold or affirm and enforce arbitral awards when being approached especially in view of the fact that parties had voluntarily resolved or agreed to submit to the jurisdiction of the arbitrator or arbitrators to resolve their dispute.
However, under our laws, there are grounds on which arbitral award can be set aside. Some of these grounds include:-
(a) Where the award is beyond the scope of the reference;
(b) Where the arbitrator has misconducted himself and
(c) Where the arbitral proceedings or award has been improperly procured
All these circumstances or conditions under which arbitral award can be set aside are provided in Sections 29 (2) and 30(1) of the Arbitration and Conciliation Act, Cap. A18 Laws of the Federation of Nigeria as reproduced hereunder:-
“29. (2) The Court may set aside an arbitral award, if the party making the application furnishes

proof that the award contains decisions on matters which are beyond the scope of the submission to arbitration, so however that, if the decisions on matters submitted to arbitration can be separated from those not submitted, only that part of the award which contains decisions on matters not submitted may be set aside.
30(1) Where an arbitrator has misconducted himself, or where the arbitral proceedings, or award, has been improperly procured, the Court may on the application of a party set aside the award.
(2) An arbitrator who has misconducted himself may, on, the application of any party be removed by the Court.”
In this instant case, the appellant’s reason for seeking the setting aside of the award is hinged on alleged misconduct on the part of the arbitrator. In the case of Taylor Woodrow (Nig) Ltd v. Suddentsche Etua-Weriki GMBH (1993) 4 NWLR (Pt. 286) 127 at 142-144 A-E this Court gave insight on what amounts to misconduct of an arbitrator, especially in view of the fact that the Law/Act did not define what amounts to misconduct.
In the said case this Court held that act of misconduct entails the followings:-<br< p=””

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(1) Where the arbitrator fails to comply with the terms, express or implied, of the arbitrator agreement;
(2) When, 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;
(3) Where the arbitrator has been bribed or corrupted;
(4) 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 amount to misconduct;
(5) Where the arbitrator or umpire has failed to decide all the matters which were referred to him;
(6) Where the arbitrator or umpire has breached the rules of natural justice;
(7) If the arbitrator or umpire has failed to act towards both parties, as for example;
(a) by hearing one party but refusing to hear the other; or<br< p=””

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(b) by deciding the case on a point not put by the parties:
See Savoia Ltd. v. Sonubi (2000) 7 S.C.N.J. 122; (2000) 12 NWLR (Pt. 682) 539 per M.E. Ogundare, J.S.C.
In this instant case, I am not convinced that the appellant had shown any act of misconduct as it was alleged or that the sale arbitrator failed to comply with the terms of the agreement. The appellant also did not give the requisite number of days notice for termination (i.e. 30days) before it attempted to terminate the agreement as provided in the agreement. All these conditions were compiled in my view, rightly met by the sole arbitrator as rightly held by the two lower Courts.
On the award of reimbursable expenses made by the arbitrator in favour of the respondent, the record of appeal shows that the respondent adduced credible evidence to support and prove such claims as required by law. The appellant on the other hand, did not cross examine the respondent on the evidence adduced by the him when receipts were tendered to support or proof of the expenses incurred by the respondent since that claim was

in nature of specific damages which by law, must be strictly proved. No evidence whatsoever was led or adduced by the appellant to debunk such claim. For that reason, I feel the arbitrator was correct in awarding them. This Court would therefore not be justified to interfere with such award on reimbursables.
In the result, for these few comments and for the fuller and more detailed reasons advanced in the leading judgment of my learned brother Kumai Bayang Akaahs J.S.C. which are also agreeable to me, I also adjudge this appeal unmeritorious and I accordingly dismiss it. I abide by the consequential order made in the leading judgment. Appeal dismissed.

Appearances: