NICON INSURANCE LTD v. BRIGHTHOUSE ESTATE LTD (2022)

NICON INSURANCE LTD v. BRIGHTHOUSE ESTATE LTD

(2022)LCN/17206(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, July 22, 2022

CA/ABJ/CV/335/2020

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

NICON INSURANCE LIMITED APPELANT(S)

And

BRIGHTHOUSE ESTATE LIMITED RESPONDENT(S)

RATIO

THE POSITION OF LAW ON WHAT AMOUNTS TO MISCONDUCT IN AN ARBITRATION

The law is clear on what would amount to misconduct which this Court listed in the case of STABILINI VISINONI LTD V. MALLINSON & PARTNERS LTD LPELR 23090 CA 2014. It stated misconduct to include an Arbitrator failing to comply with the terms express or implied, an award which on the ground of public policy ought not to be enforced, an Arbitrator who collects bribe or corrupted, where the Arbitrator makes a mistake as to the scope of his authority from the agreement of reference, where the Arbitrator fails to decide all the matters referred to him, where he breached the rules of natural justice and he fails to act fairly between the parties. PER WILLIAMS-DAWODU, J.C.A.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal Capital Territory (FCT) High Court, Abuja, delivered on May 8th, 2020 by Hon. Justice O. C. Agbaza wherein the Respondent’s application was granted and an order recognising the arbitral award dated November 6th, 2018 was granted in favour of the Applicant the Respondent herein.

The Appellant was dissatisfied with the decision of the Court that it refused to set aside the arbitral award of November 6th, 2018 but rather ordered recognition of same as earlier stated. It filed its Notice of Appeal on May 18th 2020 and as amended with Four (4) Grounds of Appeal on September 10th, 2020 of same date, deemed as properly filed and served on February 3rd, 2022.
The following reliefs in the main are being sought:
“i. An Order allowing the appeal.
ii. An Order of this honourable Court setting aside the decision of the trial Court.
iii. An Order of this Court setting aside the arbitral award.
iv. An Order of this Court dismissing/striking out Motion No. M//2987/19

Brief facts as garnered from the printed record placed before this Court that culminated into this appeal are that the Respondent bought four (4) units duplex at No. 40 Madeira Street, Imani Estate, Maitama, Abuja from the Appellant for Seven Hundred and Ten Million (N710,000,000.00) Naira. The Appellant undertook to refund the Respondent’s purchase fee, solicitor’s fee and the bank charges where it is unable to perfect its title to the property or if an adverse third party claimed title on the property. The Respondent was forcefully evicted by an Agency of the Federal Government of Nigeria which laid claim to the property. The Appellant in spite of demands by the Respondent for possession or refund of purchase fee, failed to do anything. According to the Appellant, the Respondent was not disturbed in any way in the possession of the property in spite of the action of the said Government Agency. The Respondent on the other hand, pursuant to the Arbitration clause contained in their agreement gave notice of Arbitration. The Final Award was published by Prof. Paul Idonigie in favour of the Respondent after the arbitral proceedings. The Appellant for that reason filed an Originating Motion as amended at the FCT High Court and sought to set the arbitral award aside whilst the Respondent filed an application for its recognition. The decision of the Court in favour of the Respondent is being appealed against by the Appellant. The following in the main were the reliefs sought by the Appellant at the Court below:
“1. A DECLARATION that the arbitral award of Prof. Paul Obo Idornigie, SAN, PHD, FCIS, FClArb (UK), C. Arb published on 6th November, 2016 in the arbitration between Brighthouse Estate Limited V NICON Insurance Limited is not binding on NICON Insurance Limited (the appellants herein).
2. AN ORDER of the honourable Court setting aside the arbitral award of Prof. Paul Obo Idonigie SAN, PHD, FCIS, FClArb (UK), C.Arb published on 6th November, 2016 in the arbitration between Brighthouse Estate Limited V NICON Insurance Limited.

In compliance with the rules of this Court parties filed their briefs. Appellant’s brief dated September 9th, 2020, filed September 10th, 2020 deemed as properly filed and served on February 3rd, 2022 was settled by Olumide Olujinmi Esq., who urged that the appeal be allowed. The Respondent’s brief is dated and filed February 23rd, 2022 and settled by Chief Duro Adeyele SAN, who urged in opposition that the appeal be dismissed.

APPELLANT’S ISSUES FOR DETERMINATION
“i. Whether the lower Court was right to have refused to consider and determine the jurisdiction of the arbitral tribunal to grant the award and proceed to recognise and enforce the arbitral award (Grounds 1 and 3).
ii. Whether the lower Court was not in error to hold that the sole arbitrator did not misconduct himself when the arbitrator considered issues outside the agreements of the parties (Ground 2).”

RESPONDENT’S ISSUES FOR DETERMINATION
“1. Whether the Court below was right in refusing to interfere with the decision of the Sole Arbitrator in his award published, the Appellant having failed to establish alleged want of jurisdiction or alleged misconduct against the Sole Arbitrator in making the Award.
2. Whether considering the facts and circumstances of the applications before it, the Court below was right in granting an order of recognition and enforcement of the award of the Sole Arbitrator, Prof. Paul O. Idonigie, SAN FClArb (UK) C.A. and dismissing the application for an order setting aside the award.”

Carefully reading through the two sets of Issues as afore going, one finds that they are similar in content and objective and is satisfied that the issues donated by the Appellant will justly and fairly determine this appeal. Therefore, I adopt the Appellant’s Issues.

APPELLANT’S SUBMISSION
The learned Appellant’s Counsel submitted that the Court was wrong to have held as it did, given the fact that the issue involved was that of jurisdiction of the arbitral Tribunal which Order 19 R. 12(h) of the FCT High Court Rules allows any party to pursue. The Appellant contended that the cause of action pursued by the Respondent had not crystalized when it went before the Tribunal and so the Sole Arbitrator had no jurisdiction to grant the award it did. In support, he cited the cases of NWORA V. NWABUEZE 2019 7 NWLR PT. 1670 1, OGBIMI V. OLOLO 1993 7 NWLR PT. 304 128 and EFCC V. AKINGBOLA 2015 14 NWLR PT. 1478 199. He argued that there was no third-party successful challenge of the peaceable possession of the property by the Respondent. The Indemnity Agreements between the parties are in Exhibits A, B and C in support of Clause 10 in the Sale Agreement between the parties. In support, he cited the cases of OJUKWU V. GOV. OF LAGOS STATE 1985 2 NWLR PT. 10 806 and EDUN V. PROVOST, LACOED 1998 13 NWLR PT. 580 52. Further that the Arbitral Tribunal too was in the same error as the Respondent that there was a successful third-party challenge and the wrong arbitral award in consequence. He cited the cases of SEHINDEMI V. GOV. LAGOS STATE 2006 ALL FWLR PT. 311 1858 and SILAS OKOYE V. CHIEF AKAGBUA KPAJIE & ORS 1972 6 SC 98. He submitted that the Tribunal was also wrong in its meaning of peaceable possession for not putting any value on the fact that the Respondent received some benefit from the contract as it was in possession for 14 months. That in essence the Tribunal created a new contract for the parties from its wrong interpretations and therefore should not be allowed to stand and in support cited the cases of EKONDO COMMUNITY BANK LTD V. ANIETING 2013 LPELR 21139 CA 15 and NIKA FISHING CO LTD V. LAVINA CORPORATION 2008 16 NWLR PT. 1114 509. Therefore, he submitted that the Arbitrator’s act amounted to misconduct which can be set aside and in support cited the case of BAKER MARINE NIG LTD V. CHEVRON NIG LTD 2000 12 NWLR PT. 681 393, In consequence, he submitted that the jurisdiction of the Tribunal never arose. In conclusion, he urged that the appeal be allowed.

RESPONDENT’S SUBMISSION
The learned silk submitted that the contention of the Appellant in the main was that the Arbitral Tribunal had no jurisdiction as the cause of action had not crystalized and that the Sole Arbitrator misconducted himself in the interpretation he gave to the successful third party challenge and peaceable possession. Arbitral awards are not appealable in Nigeria, they are binding and to a great extent final and in support he cited the cases of ADAMEN PUBLISHERS NIG LTD V. ABHULIMEN 2016 6 NWLR PT. 1509 431 and BAKER MARINA NIG LTD V. DANOS & CUROLE MARINA CONST INC. 2001 7 NWLR PT. 712 337. And that it is in line with the intendment of the Arbitration and Conciliation Act, 2004 Section 34 as the Appellant sought in a way to appeal the award though went under the guise of misconduct on the part of the Arbitrator.

He argued that there was no misconduct on the part of the Arbitrator as described in Section 29 of the Arbitration and Conciliation Act, 2004.

That the Court below agreed that cause of action had arisen where the Respondent stopped enjoying the peaceable possession of the property it purchased when the third party claimed adverse title and successfully took possession from the Respondent. That the submission of the Appellant is in a bid to frustrate the Respondent from enjoying the fruits of the award as the argument on jurisdiction is absurd and in support he cited the case of FCMB PLC. V. AIB NIG PLC 2000 8 NWLR PT. 667 42.

Further in support of the fact that there can be no appeal over the award of the Tribunal and that for the issue of lack of jurisdiction of the Tribunal, the maxim is kompetenz-kompetenz, that the Tribunal is competent to inquire into its own jurisdiction as provided in Section 12 (1) of the Arbitration and Conciliation Act and its decision thereupon shall be final as contained in Section 12 (4) of the Act. He submitted that the Arbitrator had resolved the issue of the jurisdiction of the Tribunal when it dealt with the question whether the claim for return of purchase price by the Respondent was premature or not through the specific clauses in the Contract of Sale, Deed of Assignment and Deed of Indemnity between the parties. Further that the Court rightly found that the Respondent was successfully dispossessed of peaceable possession of the property by third party adverse claimant. And that the arbitral proceedings commenced in that regard was not premature. He submitted that decision is therefore final and binding.

He submitted further that the Court was right to have found no misconduct by the Sole Arbitrator. That the allegation of misconduct is not only woolly but unfounded and a misconception of what misconduct means in arbitral proceedings. Further that the judicial authorities cited on whether a trespasser can forcefully dispossess of peaceable possession of property are irrelevant herein. He asserted that the Appellant did not deny that there was dispossession in fact of the Respondent and the Appellant had to proceed to Court over title with those it termed trespassers and has been unable to restore possession to the Respondent.

The learned Silk submitted that the motion for the recognition of the arbitral award was not in any way challenged as there was no Counter-affidavit in opposition or point of law raised. Therefore, the Court was right to have so deemed it. Notwithstanding, it examined all the materials submitted by the Respondent in that respect in line with the provision of Section 31 (2) of the Act before reaching its decision he argued. Consequently, the complaint of the Appellant that failed to challenge the application for recognition of the arbitral award is of no moment he submitted as the Appellant had conceded the Motion. In support, he cited the case of MABAMIJE V. OTTO 2016 ALL FWLR PT. 828 883 898 and HONDA PLACE V. GLOBE MOTORS HOLDINGS NIG. LTD 2005 14 NWLR PT. 945 273. In conclusion, he urged that the appeal be dismissed and the decision of the Court below affirmed.

POSITION OF THE COURT
Having very carefully considered the briefs of both parties and thoroughly read through the Record before this Court I shall commence consideration of the Appellant’s two (2) issues which are reproduced hereunder for ease of reference along with the findings of the Court below:
ISSUES I AND II
“i. Whether the lower Court was right to have refused to consider and determine the jurisdiction of the arbitral Tribunal to grant the award and proceed to recognise and enforce the arbitral award (Grounds 1 and 3).
ii. Whether the lower Court was not in error to hold that the sole arbitrator did not misconduct himself when the arbitrator considered issues outside the agreements of the parties (Ground 2).”

Two applications as consolidated were considered and determined in the ruling of the Court below that is being appealed; the Appellant’s, CV/492/18, to set aside the arbitral award and the Respondent’s, M/2987/19 to recognise and enforce the award. The Appellant’s grouse in the main was that the cause of action leading to the grant of the arbitral award had not crystallized and as such the sole arbitrator lacked the necessary jurisdiction to grant the award as it did. The Court below found to the contrary hence this appeal. The Court considered and determined the issue of jurisdiction of the arbitral Tribunal in the grant of the award. It found that the arbitral proceedings were not premature as the Appellant argued as it found that the cause of action had crystalized which is an issue of jurisdiction.

It clearly considered and made findings on whether the Tribunal went outside its scope with regard to the agreement and so was able to hold that there was no misconduct and that it rightly made the award in question. The meanings it gave to the peaceable possession and successful third-party challenge as provided for in Exhibit A, B, C and H which is the final award itself.

The Appellant claimed that even though there was trespass upon the property it sold to the Respondent, it could not be interpreted to mean and be equal to the parties’ intendment in the Indemnity agreement as contained in Exhibits A, B, and C. That the trespass could not be taken to mean a successful third-party challenge of peaceable possession of the property sold to the Respondent. It is necessary to note that the parties agreed in clause 10 of the Contract of sale, Exhibit A thus:
“10 – The vendor hereby undertakes to indemnify the purchaser for any want and/or defect in title not herein disclosed.”
See page 707 of the Record.

The Deed of Indemnity, Exhibit B particularly paragraphs 2 and 4 state as follows:
“This undertaking is in furtherance of clause ten (10) of the DEED OF ASSIGNMENT signed by both parties wherein NICON INSURANCE LIMITED Transferred her title in the above property to BRIGHTHOUSE ESTATE LIMITED. NICON INSURANCE LIMITED further undertakes to do all that is necessary for the perfection of the title of BRIGHTHOUSE ESTATE LIMITED with the Lands Registry i.e ABUJA GEOGRAPHIC INFORMATION SYSTEM and any other Agency (s) saddled with this responsibility.”
See Exhibit B, page 716 of the Record.

The Appellant argued that the case of the Respondent before the Tribunal that there was a total failure of consideration was wrong and should have failed as it was based on the fact that the Respondent was by a third-party adverse claimant. That the prayer of the Respondent in that regard was for the Arbitral Tribunal to invoke the foregoing stated indemnity clauses in Exhibits A, B, and C and the Respondent should have made a case in law that there was a successful challenge by the third party. Therefore, there was no breach of any of the terms of the Contract Agreement warranting the final award by the Tribunal.

The Court correctly found in my view and humbly as follows on page 1017 of the Record:
“Having carefully considered the entire processes – Clause 7, 8 of Exhibit A, Exhibit B along with Clause 10 of Exhibit C and Exhibit H along the judicial authorities cited, this Court resolve this issue 1, in the negative and in favour of the Respondent.”

One could not agree more with the Court. Respectfully one wonders if the trespass did not amount to third party successful adverse challenge of the property what then was it and at what stage would it crystalize to so qualify particularly when the Appellant up to the stage of the arbitral award was unable to put the Respondent back unto possession of the property from the said trespasser. The Respondent was in fact evicted and could not recover possession both during and after the arbitral proceedings. Further respectfully, what then was happening with the Respondent out of the property it had legally paid for and hitherto peaceably occupied. In my humble view, the fact that the Respondent occupied the property for some months before the eviction does not remove from its right to recover the property or get its money back. The contract from Exhibit A did not give the impression that it was for a few months to test run. Clause 8 of Exhibit A, the Contract of Sale states thus:
“8 – The vendor subject to the consent of the Honourable Minister, Federal Capital Territory, Abuja, Nigeria, first sought and obtained has agreed to surrender/assign all its rights and interests in and over the Plot to the Purchaser free from all encumbrances.”
See page 707 of the Record. Clause 10 of Exhibit C, the Deed of Assignment states equally thus in support of the Respondent’s case:
“10 – The Assignor hereby undertakes to indemnify the Assignee for any want and/or defect in title not herein disclosed.”
See page 720 of the Record.

The argument by the Appellant that because the cause of action had not crystalized, the Arbitral Tribunal therefore lacked jurisdiction to have entertained the matter and granted the award cannot hold and respectfully is of no moment. The Appellant further argued that the Tribunal was in error by the way it construed “peaceable possession” to the effect that there was a clear breach. That since the Arbitrator was wrong in the interpretation which led to the award, he misconducted himself and the award ought to be set aside. As correctly held by the Court, there was no misconduct on the part of the Arbitral Tribunal.

The sole arbitrator in the instant appeal does not fall within any of the foregoing situations that will amount to misconduct. The Court was right when it held that the Appellant failed to “show clearly how the Arbitrator acted wrongly in considering the facts before him, amounting to misconduct as stated within any of the definition of what amounts to misconduct.”

The Court in the light of the foregoing was unable to set aside the final award and correctly too. Section 29 of the Arbitration and Conciliation Act 2004 allows an award to be set aside where the party applying is able to prove that the award is outside matters within the purview of the Tribunal. The Court was unable to find that the Tribunal was outside the agreement which brought about arbitration. I have also gone through the gamut of the Record and unable to find that the Arbitrator misconducted himself. The Court therefore was right when it held thus on page 1021 of the Record:
“Having carefully perused this instance issue by considering issues outside the agreement of the parties and along the long line of judicial authorities, this Court finds that the Applicant has failed to furnish sufficient proof in line with the law, to warrant this Court to set aside this Final Award published on 6th November, 2018…”

The Arbitral Tribunal properly entertained the Respondent’s matter. It is not in question at all that both parties agreed that in the event of a dispute they would go to arbitration by Clause 16 of Exhibit A, the Contract of Sale. See page 711 of the Record.

The second application before the Court as aforestated by the Respondent pursuant to Section 31 of the Arbitration and Conciliation Act sought the following prayer in the main:
“1. An order recognising and enforcing the Arbitral Award in favour of the Applicant against the Respondent dated 6th November, 2018 and published same day, by the Sole Arbitrator, Professor Paul Oboh Idornige, Ph, FCI Arb (UK) C. Arbitrator, Certified True Copy of which is attached as Exhibit “B”.”

As contained in the record and in the light of the foregoing findings of the Court on the Appellant’s application that the award be set aside and the fact that there was no opposition to the second application by the Respondent for the recognition and enforcement of the award, the evidence required by the Court in support of the second application is very minimal. As already stated and found, the Court below considered the jurisdiction of the Arbitral Tribunal. The Appellant as the Respondent to the application as stated did not file any counter-affidavit. The Court found that the facts contained in Exhibits A and B forwarded in support of the Respondent’s application were not challenged and that it has earlier refused to set the same award aside upon the application of the Appellant. In the circumstances, it therefore granted the Respondent’s application.

In consequence, the two issues are resolved against the Appellant. In the result, this appeal cannot be allowed, it therefore fails and is hereby accordingly dismissed. The ruling of the Federal Capital Territory High Court delivered on May 8th, 2020, by Hon. Justice O. C. Agbaza is hereby affirmed.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, E. O. Williams-Dawodu, JCA gave me the privilege of reading in advance the draft of the judgment just delivered.

Having carefully perused the record of appeal and the submissions of counsel in this appeal, I am in agreement with the findings of my learned brother that this appeal lacks merit and that it be dismissed. The Appellant as Respondent in the Court below did not dispose to sufficient facts showing why the arbitration award be set aside. On that note, I also hold that this appeal has no merit. It is hereby dismissed.

I abide by the consequential order made in the leading judgment.

DANLAMI ZAMA SENCHI, J.C.A.: I have read before now the lead judgment of my learned brother, E O. Williams-Dawodu, JCA just delivered. The lead judgment painstakingly considered and determined all the issues canvassed on appeal and I agree with the finding and conclusion arrived thereafter in the lead judgment that this appeal lacks merit and it is dismissed.

Accordingly, the judgment of the High Court of the Federal Capital Territory, Abuja delivered on 8th day of May, 2020 by O. C AGBAZA, J is hereby affirmed.
I make no order as to cost.