OSUN STATE GOVERNMENT v. ESTISIONE H. NIGERIA LIMITED & ANOR (2012)

OSUN STATE GOVERNMENT v. ESTISIONE H. NIGERIA LIMITED & ANOR

(2012)LCN/5400(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of May, 2012

CA/I/135/2005

RATIO

COURT: WHETHER THE COURT CAN MAKE AN AWARD OF AN ARBITRATION ITS OWN JUDGMENT

On appeal to the Court of Appeal the court held that the lower court had no power to make the award its own judgment, particularly when it did not adjudicate on it. Consequently it allowed the appeal against the order making the award the judgment of the court. It however substituted a judgment “recognising the arbitral award as binding and striking out the action filed by the appellant.” It also allowed the appeal against the award of interest.

As rightly submitted by learned counsel for the appellant, in a further appeal to the Supreme Court the appellant formulated four issues for determination (one of which addressed the complaint that the Court of Appeal ought not to have substituted the judgment of the High Court with a judgment recognising the award as binding) while the respondent therein formulated two issues. The Supreme Court in its wisdom adopted the two issues formulated by the respondent: “(i) whether the High Court has jurisdiction to convert an arbitral award into its own judgment instead of merely recognising the award as binding on the parties for purposes of enforcement; and (ii) whether the High Court has jurisdiction to award interest on the arbitral award in excess of its judicial discretion under Order 27 Rule 8 of the Abuja High Court (Civil Procedure) Rules 1985.”

The Supreme Court held at page 571 D – E and G – H (supra) as follows:

“Arbitration proceedings as I have already shown are not the same thing as negotiations for settlement out of court. An award made pursuant to arbitration proceedings constitutes a final judgment on all matter referred to the arbitrator. It has a binding effect and it shall upon application in writing to the court be enforced by the court.

What this means is this, if an award was not challenged then it became and was a final and binding determination of the matters between the parties. The simple question to be resolved is whether a court can make the award the judgment of the court. I am in agreement with the Court of Appeal that the court has no such jurisdiction…

The only jurisdiction conferred on the court is to give leave to enforce the award as a judgment unless there is real ground for doubting the validity of the award. In other words if upon an application to enforce the award the Judge finds that the validity of the award is doubtful, he can refuse leave. See sections 29, 30 and 31 of the Arbitration and Conciliation Act. …

I must say nowhere in the Act is the High Court given the power to convert an arbitration award into its own judgment. What this means simply is this: An award is on par with a judgment of the court. It is in light of all this that a court cannot make the arbitrator’s award its own judgment.”

The above findings of the Supreme Court leave one in no doubt that the lower court had no jurisdiction to make the award the judgment of the court. This much is conceded by both parties. It must be noted for emphasis that the Supreme Court had before it the entire judgment of the Court of Appeal including the part substituting the judgment of the lower court with what it considered to be the appropriate order in the circumstances. Notwithstanding this fact, the Court upheld the decision of the Court of Appeal in its entirety. In my humble view this must be so because having affirmed the refusal of the lower court to set aside the arbitral award the effect of the refusal was that the award was binding on the parties and enforceable as a judgment of the court. The Supreme Court emphasised this fact in its judgment as shown above. To do otherwise would be to throw away the baby with the bath water. Indeed if the Supreme Court was of the view that the entire judgment was a nullity it would not have upheld the decision of the Court of Appeal.

“S.15 The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purposes of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court…”

“Order 3 Rule 23 (1). The court shall have power to give any judgment or make any order that ought to have been made, and to make such further or other order as the case may, require including any order as to costs.

(2) The powers contained in paragraph (1) of this rule may be exercised by the court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.” (Emphasis mine)

This court per M. D. Muhammad, JCA at 387 – 388 H – A (supra) held as follows:

“The combined effect of the foregoing provisions is that in any appeal before the Court of Appeal, appeal in election matters not excepted, the court is empowered as and when necessary to take the place of the tribunal and make the order which the tribunal would have been entitled to make in the exercise of its powers under the Electoral Act. See: Onwuka v. Omogui (1992) 3 NWLR (230) 393; Katto v. CBN (2001) FWLR (53) 188, (1999) 6 NWLR (607) 390 and Daggash v. Bulama (2004) 14 NWLR (892) 144, (2005) FWLR (246) 1327 at 1344.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

LEGISLATION: DOCTRINE OF COVERING THE FIELD

In the case of A.G. Ogun State & Ors. Vs A.G. Federation (1982) NSCC (Vol.13) 1 the Supreme Court examined the doctrine of covering the field extensively. The views expressed by His Lordship Eso, JSC at page 35 lines 18 – 30 are instructive. He stated,

“I take the view that when one considers this doctrine, the phrase “covering the field” means precisely what it says. Where a matter legislated upon is in the concurrent list and the Federal Government has enacted a legislation in respect thereof, where the legislation enacted by the State is inconsistent with the legislation of the Federal Government it is indeed void and of no effect for inconsistency. Where, however, the legislation enacted by the State is the same as the one enacted by the Federal Government, where the two legislations are in pari materia I respectfully take the view that the State Legislation is in abeyance and becomes inoperative for the period the Federal Legislation is in force, I will not say it is void. If for any reason the Federal Legislation is repealed, it is my humble view that the State legislation, which is in abeyance, is revived and becomes operative until there is another Federal legislation that covers the field.” (Emphasis mine)

In the case of A.G. Abia State Vs A.G. Federation (2002) 6 NWLR (763) 264 @ 435 F, the above view of Eso, JSC was considered and endorsed by Ogundare, JSC thus:

“The doctrine however renders the paramount legislation predominant and the subordinate legislation remains inoperative so long as the paramount legislation remains operative. Where of course, there is obvious inconsistency, the subordinate legislation is void.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

WORDS AND PHRASES: MEANING OF LOCUS STANDI

The Supreme Court in the case of: Babatunde Adenuga & Ors. Vs J. Odumeru & Ors. (2003) 8 NWLR (821) 163 @ 184 E – G, defined locus standi thus:

”Locus standi denotes the legal capacity, based upon sufficient interest in a subject matter, to institute proceedings in a court of law to pursue a certain cause. In order to ascertain whether a plaintiff has locus standi, the statement of claim must be seen to disclose a cause of action vested in the plaintiff and also to establish the rights and obligations or interests of the plaintiff, which have been or are about to be violated in respect of which he ought to be heard upon the reliefs he seeks.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

JUSTICES

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

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

Between

OSUN STATE GOVERNMENT Appellant(s)

AND

1. ESTTSIONE H. (NIGERIA) LIMITED
2. ESTISIONE S. R. L. Respondent(s)

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Osun State High Court, Osogbo Judicial Division delivered on 18/2/05. The judgment arose from two consolidated suits. The appellant herein and the respondents entered into a contract dated 10/3/99 for the construction of internal and external roads to the Federal Housing Authority Estate, New Oba Road, Osogbo. Clause 22 of the agreement (Exhibit A) provided as follows:
“If any dispute or difference shall arise between parties hereto concerning the construction of this agreement or the rights, duties, obligations or liabilities of the other party then and in every such case, the dispute or difference shall be referred to the decision of two Arbitrators to be appointed by the parties concerned in the dispute or difference and an umpire to be appointed by the Arbitrators in accordance with the Arbitration Law of Oyo State applicable in Osun State of Nigeria”.
A dispute arose between the parties, which was referred to an arbitral tribunal consisting of Hon. Justice Kayode Eso, C.O.N., LL.D, Engr. (Dr.) G.O. Adefolaju (Ph.D) and Engr, (Chief) T.A.O. Ashagidigbi, BSc.
After listening to the parties, the tribunal on 20/12/02 made an award in favour of the respondents in the sum of N85,505,788.00 plus interest at the rate of 25% per annum from the date of the award. The respondents subsequently filed an originating summons before the High Court of Osun State, Osogbo Judicial Division in suit no. HOS/MISC/3/2003 for leave to enforce the award in the same manner as a judgment of the court and for an order that the Respondent/Judgment Debtor (Appellant herein) do pay the costs of the application to be taxed. The appellant filed a notice of preliminary objection dated 21/2/2003 against the originating summons on the following grounds:
1. The Arbitration Law of Oyo State 1978 which was the law contemplated and expressed by parties to govern arbitration proceedings and which gave rise to this Award was not an existing law as at the time of reference to the Arbitral Tribunal.
2. The Applicant/Judgment creditor/respondent lack the locus standi to institute this action.
The appellant also filed a motion on notice dated 18/3/2003 praying the court to set aside the arbitral award on the grounds that it was based on a non-existent law and that the respondents lacked locus standi to institute the suit.
By a separate originating summons dated 18/7/2003 in Suit So.HOS/MISC/27/2003 the appellant herein sought among other reliefs the setting aside of the arbitral award. The respondent challenged the suit on the ground, inter alia, that it was statute barred.
The suits were consolidated. After listening to the submissions of the respective learned counsel in the consolidated suits, the learned trial Judge dismissed the appellant’s preliminary objection, declined to set aside the arbitral award and made the award the judgment of the court.
The appellant being dissatisfied with the decision filed a notice of appeal containing six grounds of appeal. It subsequently filed an amended notice of appeal dated and filed on 9/11/05 containing seven grounds of appeal. The parties duly filed and exchanged briefs of argument in compliance with the rules of this court. At the hearing of the appeal on 1/3/2012, OPEYEMI USIOLA ESQ., adopted and relied on the appellant’s brief dated and filed on 14/11/05 and the reply brief dated and filed on 1/6/06 but deemed properly filed on 9/11/06. Both briefs were prepared by Ayo Ajayi of F. O. Fagbohungbe & Co. He submitted that the main issues for determination in the appeal are:
1. Whether a High Court can affirm an arbitral award as its own judgment.
2. Whether a stranger to an agreement can enforce it.
3. Whether in the face of a unifying Arbitration and Conciliation Act made by the National Assembly for the entire country, a State Law can have effect.
He urged the court to allow the appeal and set aside the judgment of the lower court.
L. L. AKANBI ESQ., adopted and relied on the respondents’ brief prepared by Lateef O. Fagbemi, SAN dated and filed on 28/11/05 and urged the court to dismiss the appeal. He placed special emphasis on issue 4 formulated in his brief.
The appellant formulated six issues for determination as follows:
1. Did the lower court have jurisdiction to make the arbitral award of 20th December, 2002 the judgment of the lower court?
2. Is the Oyo State Arbitration Law of 1978 (applicable in Osun State) an existing and enforceable law that could validly and lawfully govern the establishment, proceedings and award made by the Arbitral Tribunal in favour of the respondents herein on 20th December, 2002?
3. Is Clause 22 of the agreement dated 10th March, 1998 executed between the appellant and M/S ESTENSIONE S. R. L. (which provided that any dispute or difference that arose out of the agreement “shall” be referred to arbitration in accordance with the Arbitration Law of Oyo State of 1978) valid and enforceable?
4. If questions 2 and 3 above are answered in the negative, are the entire proceedings of the Arbitral Tribunal, particularly the arbitral award made on 20th December, 2002, thereby, rendered invalid, null and void ab initio and incapable of being enforced by, or made the judgment of the lower court?
5. Were the respondents proper parties vested with locus standi to apply to the lower court for leave to enforce the award of the Arbitral Tribunal as if it were a judgment of the lower court?
6. Was the appellant’s motion on notice seeking an order setting aside the arbitral award statute-barred?
No issue was distilled from ground 6 of the amended notice of appeal. It is accordingly deemed abandoned.
The respondents formulated five issues for determination thus:
1. Whether having regard to the facts and circumstances of this case, the mere fact that the court below made the arbitral award judgment of the High Court is sufficient to render the judgment a nullity?
2. Whether the arbitral proceedings were conducted in accordance with the Arbitration Law of Oyo State 1978 and what is the effect of this?
3. Whether the arbitral proceedings were conducted in violation of the provisions of Arbitration and conciliation Act?
4. Whether the Respondents had locus standi to apply for the enforcement of the arbitral award; and
5. Whether the Appellant’s motion seeking for setting aside is statute barred and if not, whether Appellant has made out any case to warrant the setting aside of the arbitral award?
Having examined the issues formulated by the parties and the arguments in respect thereof, I am of the view that the respondent’s issue 1 better captures the appellant’s complaint in issue 1. I shall therefore consider the appeal on the respondent’s issue 1 and the appellant’s issues 2 – 6.
Issue 1
Whether having regard to the facts and circumstances of this case, the fact that the court below made the arbitral award judgment of the High Court is sufficient to render the judgment a nullity.
Learned counsel for the appellant submitted that the lower court had no jurisdiction to make the arbitral award the judgment of the court. He contended that there is no basis for it in law and it ought to be set aside in its entirety for being null and void ab initio. He relied on the Supreme Court decision in Ras Pal Gazi Vs F.C.D.A. (2001) 10 NWLR (722) 559 @ 571 A & G – H; 572 D, 574 C and 574 – 575 H – A. which he contended is on all fours with the instant case.
Learned counsel for the respondents conceded that in this case, although the prayer in the originating summons was for an order to enforce the arbitral award in the same manner as a judgment of the court, the learned trial Judge in his final order erroneously made the award the judgment of the court. He also conceded that the Supreme Court in Ras Pal Gazi’s case did hold that the trial court had no jurisdiction to convert an arbitral award to a judgment of that court. He observed that the Supreme Court dismissed the appeal of the appellant against the decision of the Court of Appeal modifying the order of the High Court. He noted that the decision of the High Court as modified by the Court of Appeal was affirmed. He submitted that the Court of Appeal exercised its wide powers under Section 16 of the Court of Appeal Act (now Section 15 of the Court of Appeal Act 2004) to make the appropriate order. He urged this court to be guided by the said provision in this case and exercise its powers by modifying the order of the lower court to reflect a judgment recognising the arbitral award as binding.
Learned counsel also submitted that the issue was being raised in this court for the first time and the respondents were not afforded an opportunity to address it at the appropriate stage. In his reply brief, learned counsel for the appellant submitted that in Ras Pal Gazi’s case the Supreme Court did not consider or pronounce upon the issue as to whether the Court of Appeal was right in substituting the judgment of the trial court with a judgment recognising the arbitral award as binding. He submitted that although it was one of the issues formulated by the appellant for the determination of the appeal, after considering all the issues formulated by both parties the apex court came to the conclusion that two out of the several issues formulated were sufficient to dispose of the appeal, namely (i) whether the trial court had jurisdiction to convert the arbitral award into its own judgment and (ii) whether the trial court had jurisdiction to award interest on the arbitral award.
He contended the argument that the Supreme Court affirmed the part of the judgment of the Court of Appeal substituting or modifying the judgment of the lower court was unfounded. He argued that the substitution by the Court of Appeal was done suo motu as it was not an issue before that court and there was no cross-appeal praying for such a relief.
Learned counsel submitted that this is not a case in which this court could exercise its powers under Section 15 of the Court of Appeal Act because following the decision in Ras Pal Gazi’s case, the lower court had no jurisdiction to make the award the judgment of the court. He argued that authorities are settled on the point that a judgment given without jurisdiction is a nullity and it is as if it was never made. He relied on: Okoye Vs. Nigerian Construction and Furniture Co. (1991) 6 NWLR (199) 501 @ 538 D; Okoye Vs A.G. Anambra State (1991) 6 NWLR (200) 659 @ 678 H – 679 A. He submitted that this court cannot modify a judgment that is a nullity.
He submitted further that the appellate powers of this court are not inherent and can only be invoked when a notice of appeal has been filed pursuant to Section 24 of the Court of Appeal Act. In other words, the general powers conferred by Section 15 of the Act are subject to Section 24 of the said Act. He submitted that as there is no notice of appeal complaining about that aspect of the judgment or seeking the relief that the judgment be modified or substituted, and none of the grounds of appeal in the amended notice of appeal raise the issue of an error in the judgment or seek such a relief, this court has no jurisdiction to exercise under Section 15 of the Court of Appeal Act. He relied on: Ejowhomu Vs Edok-Eter Mandilas Ltd. (1986) 5 NWLR (39) 1 @ 30 H – 31 A; Ajomale Vs Yaduat (No. 1) (1991) 5 NWLR (191) 2257 @ 264 D -E.
Learned counsel submitted further that the judgment of the Court of Appeal in Ras Pal Gazi’s case was given per incuriam, as the court sought to modify or substitute a judgment given without jurisdiction, which was a nullity ab initio. Relying on U.A.C. Vs Macfoy (1961) 3 All ER 1169, he submitted that you cannot put something on nothing. He submitted that this court is not bound by its previous decision reached per incuriam.

I have given careful consideration to the submissions of both learned counsel in respect of this issue. I have also studied carefully the judgment of the Supreme Court in Ras Pal Gazi’s case (supra). In that case the parties had a dispute over a contract agreement between them. The appellant sued the respondent before the High Court. Subsequently an application was filed for leave to appoint an arbitrator and report back to court. The leave was granted and the court ordered the arbitrator to submit his report within 30 days. The parties agreed that the award of the arbitrator would be binding on them. The arbitrator produced a report at the conclusion of the submission. The respondent sought to set aside the award. The court refused to set aside the award and proceeded to declare: “the arbitral award is hereby made the judgment of this court,”. The court also awarded interest on the arbitral award.
On appeal to the Court of Appeal the court held that the lower court had no power to make the award its own judgment, particularly when it did not adjudicate on it. Consequently it allowed the appeal against the order making the award the judgment of the court. It however substituted a judgment “recognising the arbitral award as binding and striking out the action filed by the appellant.” It also allowed the appeal against the award of interest.
As rightly submitted by learned counsel for the appellant, in a further appeal to the Supreme Court the appellant formulated four issues for determination (one of which addressed the complaint that the Court of Appeal ought not to have substituted the judgment of the High Court with a judgment recognising the award as binding) while the respondent therein formulated two issues. The Supreme Court in its wisdom adopted the two issues formulated by the respondent: “(i) whether the High Court has jurisdiction to convert an arbitral award into its own judgment instead of merely recognising the award as binding on the parties for purposes of enforcement; and (ii) whether the High Court has jurisdiction to award interest on the arbitral award in excess of its judicial discretion under Order 27 Rule 8 of the Abuja High Court (Civil Procedure) Rules 1985.”
The Supreme Court held at page 571 D – E and G – H (supra) as follows:
“Arbitration proceedings as I have already shown are not the same thing as negotiations for settlement out of court. An award made pursuant to arbitration proceedings constitutes a final judgment on all matter referred to the arbitrator. It has a binding effect and it shall upon application in writing to the court be enforced by the court.
What this means is this, if an award was not challenged then it became and was a final and binding determination of the matters between the parties. The simple question to be resolved is whether a court can make the award the judgment of the court. I am in agreement with the Court of Appeal that the court has no such jurisdiction…
The only jurisdiction conferred on the court is to give leave to enforce the award as a judgment unless there is real ground for doubting the validity of the award. In other words if upon an application to enforce the award the Judge finds that the validity of the award is doubtful, he can refuse leave. See sections 29, 30 and 31 of the Arbitration and Conciliation Act. …
I must say nowhere in the Act is the High Court given the power to convert an arbitration award into its own judgment. What this means simply is this: An award is on par with a judgment of the court. It is in light of all this that a court cannot make the arbitrator’s award its own judgment.”
The above findings of the Supreme Court leave one in no doubt that the lower court had no jurisdiction to make the award the judgment of the court. This much is conceded by both parties. It must be noted for emphasis that the Supreme Court had before it the entire judgment of the Court of Appeal including the part substituting the judgment of the lower court with what it considered to be the appropriate order in the circumstances. Notwithstanding this fact, the Court upheld the decision of the Court of Appeal in its entirety. In my humble view this must be so because having affirmed the refusal of the lower court to set aside the arbitral award the effect of the refusal was that the award was binding on the parties and enforceable as a judgment of the court. The Supreme Court emphasised this fact in its judgment as shown above. To do otherwise would be to throw away the baby with the bath water. Indeed if the Supreme Court was of the view that the entire judgment was a nullity it would not have upheld the decision of the Court of Appeal.

In the case of Ogboru v. Ibori (2005) 13 NWLR (942) 319 the court considered the combined effect of Section 15 of the Court of Appeal Act and Order 3 Rule 23 (1) and (2) of the Court of Appeal Rules 2002. The sections provide:
“S.15 The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purposes of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court…”
“Order 3 Rule 23 (1). The court shall have power to give any judgment or make any order that ought to have been made, and to make such further or other order as the case may, require including any order as to costs.
(2) The powers contained in paragraph (1) of this rule may be exercised by the court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.” (Emphasis mine)
This court per M. D. Muhammad, JCA at 387 – 388 H – A (supra) held as follows:
“The combined effect of the foregoing provisions is that in any appeal before the Court of Appeal, appeal in election matters not excepted, the court is empowered as and when necessary to take the place of the tribunal and make the order which the tribunal would have been entitled to make in the exercise of its powers under the Electoral Act. See: Onwuka v. Omogui (1992) 3 NWLR (230) 393; Katto v. CBN (2001) FWLR (53) 188, (1999) 6 NWLR (607) 390 and Daggash v. Bulama (2004) 14 NWLR (892) 144, (2005) FWLR (246) 1327 at 1344.”
In light of the above I am unable to agree with learned counsel for the appellant that the decision of the Court of Appeal in Ras Pal Gazi’s case was reached per incuriam.
The issue that then arises in the instant case is whether the entire decision of the court below is a nullity on the ground that the court erroneously made the award the judgment of the court. Having regard to the views expressed above, I am of the view and I do hold that although the learned trial Judge erred in making the arbitral award its judgment, the decision reached on the substance of the matters before it i.e. whether or not to set aside the arbitral award cannot be held to be a nullity. This issue is accordingly resolved against the appellant.
Issues 2 & 3
Is the Oyo State Arbitration Law of 1978 (applicable in Osun State) an existing and enforceable law that could validly and lawfully govern the establishment, proceedings and award made by the Arbitral Tribunal in favour of the Respondents herein on 20 December, 2002?
Is Clause 22 of the agreement dated 10 March, 1999 executed between the appellant and M/S ESTENSIONE S.R.L. (which provided that any dispute or difference that arose out of the agreement “shall’ be referred to arbitration in accordance with the Arbitration Law of Oyo State of 1978) valid and enforceable?
It is the contention of the appellant under issue 2 that the arbitration clause in clause 22 of the agreement executed between the parties (reproduced earlier in this judgment), was founded on the Arbitration Law of Oyo State 1978 applicable in Osun State whereas on 14/3/88 the Arbitration and Conciliation Act Cap. A18 Laws of the Federation of Nigeria came into operation to provide a unified and legal framework for the fair and efficient settlement of commercial disputes by arbitration and conciliation all over Nigeria. Learned counsel submitted that the parties having agreed to resort to arbitration in accordance with the Arbitration Law of Oyo State, to the exclusion of any other law, the parties could only resort to arbitration in accordance with that law. He referred to the submissions of learned counsel for the respondents at page 143 of the record and contended that even on the Respondents’ showing the proceedings were conducted under the Oyo State Law. He submitted that having regard to the enactment of the Arbitration and Conciliation Act the Arbitration Law of Oyo State was a nonexistent law.
Learned counsel submitted that it is common ground between the parties that both the National Assembly and the House of Assembly of a State have constitutional powers to legislate concurrently on matters regarding arbitration. He submitted that where both legislatures enact similar laws on the same subject, by virtue of the doctrine of “covering the field”, the similar law passed by the State House of Assembly would be null and void and of no effect where it is inconsistent with the Federal legislation. He submitted that where the two legislations are in pari materia, the State legislation is in abeyance and rendered inoperative and non-existent. He relied on: A.G. Ogun State & Ors. Vs A. G. Federation (1982) NSCC (Vol. 13) 1 @ 3, 11 and 35; A.G. Abia State Vs A.G. Federation (2002) 6 NWLR (763) 264 @ 431 – 435; Lakanmi Vs. A.G. Western State (1971) 1 U.I.L.R. 201 @ 201. Learned counsel submitted that by virtue of the doctrine of covering the field the Oyo State Law cannot be considered an existing law and cannot govern or regulate the conduct of the affairs of an arbitral tribunal. He urged the court to hold that the proceedings of the tribunal under reference and its award have been vitiated and rendered null and void.
In respect of issue 3 learned counsel submitted that by the use of the word “shall” in clause 22 of the agreement the parties had agreed that any reference to arbitration shall be in accordance with the Arbitration Law of Oyo State to the exclusion of any other law. He referred to: Kurubo Vs Zach-Motison Nig. Ltd. (1992) 5 NWLR (239) 102 @ 117 A. He argued further that it was not open to any of the parties to contend that any other law was applicable. He submitted that the court is bound to give effect to the written contract between the parties that a particular law would govern their affairs. He referred to: Sonnar (Nig.) Ltd. Vs Partenreedri M. S. Nordwind (1987) 4 NWLR (66) 520 @ 541 D. He urged the court to hold that Clause 22 in the agreement is unenforceable in law having been made in contemplation of or pursuant to an inoperative or non-existent law.
In reaction to this issue, learned senior counsel for the respondents noted that there is no mention of 1978 in clause 22. He submitted that reference to the 1978 Law amounts to importing into the agreement what it did not contain. He submitted that the agreement states the applicable law to be the Arbitration Law of Oyo State applicable in Osun State. He submitted that as at 10/3/99 when the agreement was entered into, the Arbitration Law applicable in Oyo State, which was applicable in Osun State was the Arbitration and Conciliation Act Cap. 19 Laws of the Federation 1990. To buttress his contention that the Arbitration Law of Oyo State 1978 was not in the contemplation of the parties he submitted that throughout the proceedings of the arbitral tribunal and even in making the award, no reference was made to or reliance placed on the Arbitration Law of Oyo State 1978. He submitted further that throughout the proceedings before the arbitral tribunal the appellant never raised the issue nor complained that the arbitrators were appointed under a non-existent law.
Alternatively, learned counsel submitted that even if clause 22 contemplates the Arbitration Law of Oyo State 1978 (not conceded) that fact would not operate to vitiate the otherwise valid proceedings and award made by the panel. Relying on the case of Falobi Vs Falobi (1976) 1 NMLR 169 he submitted that reliance on a wrong law would not necessarily render a decision reached in respect thereof a nullity. He also referred to Chinemelu Vs C.O.P. (1995) 2 NWLR (390) 467 @ 485 – 486. He submitted that the appellant did not contend or show that the arbitration panel breached any of the provisions of the Arbitration and Conciliation Act and it has failed to show the injury it has suffered.
In his reply brief, learned counsel for the appellant urged us to disregard the submissions of learned senior counsel for the respondents as to whether or not the arbitral panel violated any of the provisions of the Arbitration and Conciliation Act. He submitted that the issue does not arise from the appellant’s grounds of appeal and is therefore incompetent. Learned counsel submitted further that the respondents cannot at this stage contend that the law referred to in clause 22 was not the Arbitration Law of Oyo State 1978 having strenuously argued before the trial court that the Arbitration Law of Oyo State 1978 was the law that governed the proceedings and that it is an existing law. He submitted that the position of the respondents before this court is an afterthought.
With regard to the submission that the appellant did not challenge the proceedings before the arbitral panel, learned counsel submitted that if the court finds that the proceedings were conducted pursuant to the Arbitration Law of Oyo State 1978, it follows that the panel had no jurisdiction to conduct the said proceedings. He submitted that the issue of jurisdiction could be raised at any stage of the proceedings and even for the first time on appeal. He submitted that the decision in Falobi Vs Falobi (supra) is not applicable where the parties have expressly agreed that their conduct would be governed by a particular law that turns out to be non-existent.
I have given careful consideration to the submissions of both learned counsel. Section 315 (1) (b) of the 1999 Constitution provides thus:
“315. (1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be –
(b) a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.”
The powers of the National Assembly and House of Assembly of a State to make laws are provided for in Section 4 (1) – (7) of the 1999 Constitution. Section 4 (5) and (7) provides:
(5) If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly shall prevail, and that other law shall to the extent of its inconsistency be void,
(7) The House of Assembly of a State shall have power to make laws for the peace, order and good governance of the State or any part thereof with respect to the following matters:
(a) any matter not included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution.
(b) any matter included in the Concurrent Legislative List set out in the first column of part II of the Schedule to this Constitution to the extent prescribed in the Second column opposite thereto; and
(c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
By virtue of Section 4 (1) – (7) of the 1999 Constitution both the National Assembly and the House of Assembly of a State have powers to make laws relating to arbitration. The Arbitration Law of Oyo State 1978 having been enacted by the Oyo State House of Assembly is therefore an existing law within the meaning of Section 315 of the Constitution. It is the appellant’s contention that the enactment of the Arbitration and Conciliation Act by the National Assembly on 14/3/88, having covered the field relating to arbitration and conciliation throughout Nigeria, the Arbitration Law of Oyo State, which the parties relied upon was inapplicable and non-existent.
It is not in contention before us that the provisions of the Arbitration Law of Oyo State are inconsistent with the provisions of the Arbitration and Conciliation Act. It is however correct, as submitted by learned counsel for the appellant, that by its preamble it is the intention of the lawmakers that the Act shall cover the entire field in matters relating to arbitration and conciliation throughout Nigeria. In the case of A.G. Ogun State & Ors. Vs A.G. Federation (1982) NSCC (Vol.13) 1 the Supreme Court examined the doctrine of covering the field extensively. The views expressed by His Lordship Eso, JSC at page 35 lines 18 – 30 are instructive. He stated,
“I take the view that when one considers this doctrine, the phrase “covering the field” means precisely what it says. Where a matter legislated upon is in the concurrent list and the Federal Government has enacted a legislation in respect thereof, where the legislation enacted by the State is inconsistent with the legislation of the Federal Government it is indeed void and of no effect for inconsistency. Where, however, the legislation enacted by the State is the same as the one enacted by the Federal Government, where the two legislations are in pari materia I respectfully take the view that the State Legislation is in abeyance and becomes inoperative for the period the Federal Legislation is in force, I will not say it is void. If for any reason the Federal Legislation is repealed, it is my humble view that the State legislation, which is in abeyance, is revived and becomes operative until there is another Federal legislation that covers the field.” (Emphasis mine)
In the case of A.G. Abia State Vs A.G. Federation (2002) 6 NWLR (763) 264 @ 435 F, the above view of Eso, JSC was considered and endorsed by Ogundare, JSC thus:
“The doctrine however renders the paramount legislation predominant and the subordinate legislation remains inoperative so long as the paramount legislation remains operative. Where of course, there is obvious inconsistency, the subordinate legislation is void.”
Applying the above authorities to the instant case, I am of the humble view that learned counsel for the appellant is correct in his view that the Arbitration and Conciliation Act having covered the field, the Arbitration Law of Oyo State 1978 was in abeyance as at the time Exhibit A was entered into. It was inoperative but not void. I am of the view that although the parties agreed to be bound by the Arbitration Law of Oyo State applicable in Osun State, it must be presumed that the applicable law in Oyo State was the Arbitration and Conciliation Act as contained in the Laws of the Federation of Nigeria 1990. It must be noted here that since both parties entered into the agreement voluntarily, they were both under a misapprehension as to the applicable law. It is however quite clear from the language of clause 22 that it was the intention of the parties to have any dispute between them resolved by arbitration and in accordance with the law applicable in Osun State of Nigeria. I have examined the proceedings and award of the arbitral tribunal. There is nothing therein to suggest that the proceedings were conducted in accordance with the Arbitration Law of Oyo State 1978. Moreover, as submitted by learned counsel for the respondents, the appellant did not raise this issue before the arbitral tribunal at any stage before the award was made. It is also instructive to note, as pointed out by learned counsel for the respondents that the agreement Exhibit A (see page 5 of the record) was prepared by the appellant. Not only did they prepare the agreement, they initiated the reference to arbitration pursuant thereto, fully participated in the proceedings and are only complaining now because they are dissatisfied with the outcome. In my humble view, it is most inequitable for the appellant to turn around after the award has been published to contend that the reference to arbitration and the proceedings thereat are invalid. I am unable to agree with learned counsel for the appellant that clause 22 of Exhibit A is rendered unenforceable merely because it referred to the Arbitration Law of Oyo State. The two issues are accordingly resolved against the appellant.
Issue 4
If questions 2 and 3 are answered in the negative, are the entire proceedings of the Arbitral Tribunal, particularly the award made on 20 December, 2002, thereby rendered invalid null and void ab initio and incapable of being enforced by or made the judgment of the lower court?
The appellant’s issue 4 is dependent upon the resolution of issues 2 and 3 in its favour. In other words it is the appellant’s contention that the proceedings of the Arbitral Tribunal were conducted without jurisdiction and the award improperly procured having arisen from an incompetent clause in the agreement between the parties and conducted under a nonexistent law. Learned counsel contended that the alleged errors are sufficient to invalidate the proceedings and render them null and void. He submitted that in the circumstances the arbitral award was incapable of being enforced and made the judgment of the lower court. Having resolved issues 2 and 3 against the appellant I hold that the proceedings were validly conducted and the award capable of being enforced as a judgment of the lower court. This issue is accordingly resolved against the appellant.
Issue 5
Were the respondents proper parties vested with locus standi to apply to the lower court for leave to enforce the award of the Arbitral Tribunal as if it were a judgment of the lower court?
It is the contention of the appellant that Exhibit A, the agreement between the parties dated 10/3/1999 was between OSUN STATE GOVERNMENT [“the Employer”] and M/S ESTENSIONE S.R.L. (“Contractor”) whereas the claimants before the arbitral tribunal were ESISIONE H. (NIG,) LTD. and ESTISIONE S.R.L. Learned counsel argued that ESTISIONE H. (NIG.) LTD. and ESTISIONE S.R.L. are separate legal entities different from M/S ESTENSIONE S.R.L. He submitted that the difference in names is not a mere misnomer. He maintained that the claimants before the arbitral tribunal were strangers to the contract and had no locus standi to make any claim thereunder. He referred to several authorities including Union Beverages Ltd. Vs Pepsicola International Ltd. & Anor. (1994) 3 NWLR (330) 16. He submitted that since the parties before the arbitral tribunal lacked the locus to make the claim the tribunal lacked the jurisdiction to entertain it. He submitted that although the arbitral tribunal is an inferior tribunal, it operates like a court and the same rules that apply to a court regulate and determine its jurisdiction. He submitted that lack of jurisdiction is a ground upon which the award may be set aside. He argued without conceding that even if the respondents were designated as claimants before the arbitral tribunal with the consent of the appellant, the fundamental defect had deprived the tribunal of jurisdiction and it lacked the competence to make any pronouncement or award at all. Relying on the case of: Adesola Vs Abidoye (1999) 14 NWLR (637) 28 @ 52 A – B, he submitted that parties cannot confer jurisdiction on a court by consent or acquiescence where none exists. He contended that the fact that the appellant did not object at the tribunal when the respondents were designated as claimants does not derogate from the position of the law as stated. He urged the court to hold that the respondents did not have locus standi to be designated as claimants before the arbitral tribunal nor to institute Suit no. HOS/MISC.3/2003 since they were not parties to the agreement they sought to enforce.
In reaction to the above submissions, learned counsel for the respondents submitted that the objection is predicated on mistakes that arose in the names of the parties, which should not operate to defeat the justice of the case. He submitted further that the preliminary objection before the lower court was premised on the fact that the respondents lacked locus standi to institute the claim before the court. He submitted that it was not their contention that they lacked the locus to invoke the jurisdiction of the arbitral tribunal. He submitted that it is the contention of the appellant that the respondents were not parties to the agreement and could therefore not enforce it. He contended that at the court below the respondents did not seek to enforce the agreement but to enforce the award already made in their favour. He argued that as beneficiaries of an award in their favour they had the locus to invoke the jurisdiction of the court to enforce it. He relied on Section 6 (6) (b) of the 1999 Constitution and the case of Senator Abraham Adesanya Vs President Federal Republic of Nigeria (1981) ALL NLR 1 @ 29.
Relying on the book, The Law and Practice of Arbitration and Concilliation in Nigeria by Olakunle Orojo and Ojomo, 2nd edition 1999 pages 267-270, learned counsel contended that the High Court was not the proper forum to raise the issue of lack of locus standi because the role of a High Court over an arbitral award is not that of an appellate court. He submitted that the proper venue to raise the issue was before the arbitral tribunal, which the appellant failed to do. He submitted that the designation of the parties before the arbitral tribunal was done with the consent of all parties. He referred to the finding of the learned trial Judge at page 156 of the records in this regard. He submitted that the authority exercised by the appellant’s counsel in consenting to the designation of the parties is binding on it. He referred to: Adewunmi Vs Plastex Nig. Ltd. (1986) 3 NWLR (32) 767 @ 781-782.
He submitted that in the event that his submissions above were wrong (not conceded) the reference to M/S Estensione SRL and Estisione SRL was a matter of nomenclature or mistake as to spelling and that the parties were not misled in any way. He noted the fact that both parties used the same names of the parties in their points of claim and defence. He also referred to certain paragraphs of the points of defence and the affidavit evidence of the appellant’s witnesses wherein they averred that the contract between the parties was between the appellant and the 2nd respondent. He noted particularly the affidavit evidence of Engr. G. O. Saola who specifically referred to Estisione SRL as opposed to M/S Estensione SRL. He maintained that both names were used interchangeably and the parties were not misled. He argued that by the pleadings and the appellant’s evidence on oath it was admitted that the contract was awarded to the 2nd respondent. He submitted that facts admitted require no further proof. He submitted that it is wrong for the appellant to contend that the respondents are strangers to the contract. He submitted further that the authorities cited by learned counsel for the appellant are irrelevant to the facts of this case because it knew the 2nd respondent, Estisione SRL and it was with the 2nd respondent that it had a contract.
The Supreme Court in the case of: Babatunde Adenuga & Ors. Vs J. Odumeru & Ors. (2003) 8 NWLR (821) 163 @ 184 E – G, defined locus standi thus:
”Locus standi denotes the legal capacity, based upon sufficient interest in a subject matter, to institute proceedings in a court of law to pursue a certain cause. In order to ascertain whether a plaintiff has locus standi, the statement of claim must be seen to disclose a cause of action vested in the plaintiff and also to establish the rights and obligations or interests of the plaintiff, which have been or are about to be violated in respect of which he ought to be heard upon the reliefs he seeks.”
The issue of locus standi is closely linked to the issue of jurisdiction of the court. In order to determine whether or not a party has the locus to institute an action in court, the process to be considered is the statement of claim, See: Mogaji Vs Military Administrator- Ekiti State (1998) 2 NWLR (538) 425 @ 441 A – B: Okoye Vs Ebodaghe (2000) NWLR (640) 250 @ 260 A – B: Umar & Anor. Vs WhiteGold Ginnery (Nig.) Ltd. (2007) 7 NWLR (1032) 117 @ 139 D – E.
The originating summons at the lower court was originally instituted by Estisione H. (Nig.) Ltd. against the appellant. By a motion on notice dated 27/2/04 the applicant (1st respondent herein) sought an order joining ESISIONE S. R. L. as the second applicant in the suit (see pages 108 – 111 of the record). The grounds for the application were:
(i) the two beneficiaries of the Arbitral Award of 20th December, 2002 and which is the subject matter of this suit are:
(a) ESISIONE H. NIGERIA LIMITED; and
(b) ESTISIONE S. R. L.
(ii) the learned counsel that instituted the suit inadvertently omitted the name ESTISIONE S. R. L. from the originating summons filed earlier.
(iii) the interest of justice demands that the said ESISIONE S.R.L. be joined as a party to this suit; and
(iv) ESTISIONE H. NIGERIA LIMITED had the consent and authority of ESTISIONE S.R.L. to institute this suit.
In paragraphs 6, 7, 8, 9 and 10 of the affidavit in support of the application it was averred as follows:
“6. That Mrs. Adenike Haastrup is the Chairman Managing Director of both Estisione Nigeria Limited and Estisione SRL.
7. That Mrs. Adenike Haastrup informed me on 30th January, 2004 in Ibadan and I verily believe that by consent of both Estisione H. Nigeria Limited and Osun State Government of Nigeria, Estisione SRL was joined as second claimant by the Arbitral Tribunal presided over by Honourable Justice Kayode Eso, … on 8th day of February, 2001.
8. That the Arbitral Tribunal in Exhibit B and/or 002 specifically ordered that Estisione SRL be joined as second claimant while maintaining that Estisione H. Nigeria Limited is the claimant.
9. That pursuant to the consent contained in Exhibit A, all parties filed their points of claim and defence fully aware and conscious of the consent order aforesaid and without any subsequent objection, Relevant points of claim and points of defence as well as affidavits filed by the parties are attached herewith and marked as Exhibit B1 – B5.
10. The Osun State Government did not object to the joining of Estisione SRL as second claimant at the Arbitration Tribunal…”
The application was granted as prayed without objection from learned counsel for the appellant on 8/3/04 (see page 138 of the record). In determining the issue of locus standi raised by the appellant, the learned trial Judge at page 156 of the record reproduced the proceedings of the Arbitral Tribunal referred to in the supporting affidavit and held that it was clear from those proceedings that “from the onset, all the parties were agreed as to who were the claimants and the respondent.”
His Lordship held thus at pages 156 and 157:
“The facts relied upon, inter alia, put succinctly are that one Mrs. Haastrup is the Chairman Managing Director of both claimants and that both claimants agreed that Estisione SRL be joined and was joined before the Arbitral Tribunal, that Etisione SRL is a necessary party and that the 2nd claimant was not joined in the motion before was due to a technical error which may be corrected by the court even without an application to the (sic) effect. The second claimant was then duly joined. The name of the claimants were sufficiently mentioned in Exhibits A, BI – 85 as having something to do with the contract leading to the award.
On the whole, it is trite law that the only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action that cannot be effectually and completely settled unless he is a party. In the instant case, the question in issue is whether Estisione SRL has any legal right and interest in this matter over and above those shared with the public generally as to be made a party? I believe so in view of the affidavit evidence placed before me.”
It is quite clear from the above findings of the learned trial Judge that the respondents herein were made the claimants before the Arbitral Tribunal with the consent of all the parties involved. In my humble view, if the appellant had any objection to the locus of the claimants in the arbitral proceedings, the issue ought to have been raised before the Tribunal. Having not raised objection at that stage and having fully participated in the proceedings that produced the award that gave rise to the originating summons before the lower court, it was too late in the day to contend that they lacked the locus to institute the action. This is because, as rightly submitted by learned counsel for the respondents, what was before the lower court was an originating summons seeking to enforce the award already made in favour of the applicants. The applicants were the claimants before the Arbitral Tribunal. An award was made in their favour, which they sought to enforce through the originating summons they filed. They had clearly shown sufficient interest in the subject matter of the suit. Also having obtained an award in their favour, they had shown the legal right they sought to protect by the enforcement of the award.
I also agree with learned counsel for the respondents that the appellant was not misled in anyway by what may be described as the misnomer of the 2nd claimant. It pleaded as follows in paragraphs 4 and 5 (a), (c), (d) and (e) of its Points of Defence:
“4. The respondent avers that it is only the 2nd claimant that it recognises, as an authentic party in the suit having been contracted to construct/execute a road project which she has failed to execute and now subject of arbitration litigation. The first claimant is unknown to the respondent.
5. In reply to paragraphs 1 – 22, the Respondent states as follows:
(a) On 4th May, 1993 the Osun State Government entered into an agreement with Messrs Estensione SRL for the construction of the Internal and External Road to the Federal Housing Authority Estate, New Oba Road, Osogbo.
(c) On 12th March, 2000 the respondent released the sum of N10 Million part payment (out of N50 Million) as material advance.
(d) By the terms of the contract the claimant was supposed to provide all the construction materials for the execution of the work at its own expense.
(e) On 13th March, 2000, the second claimant wrote that she would commence work at the construction site by 17th March, 1999.”
(Emphasis supplied)
The affidavit evidence of the appellant’s witnesses also showed clearly that notwithstanding the description of the 2nd claimant as Estisione SRL they were not in doubt that the 2nd claimant was the company with which they had an agreement. Engineer B. O. Akande in paragraph 4 of his affidavit evidence at page 125 of the record averred thus:
“The Government entered into a contract of construction of both internal and external roads to the Federal Housing Authority Estate, New Oba Road, Osogbo with strictly the second claimant.” (Emphasis supplied)
Engineer S. O. Olufayo’s affidavit evidence at page 130 of the record was to the same effect. Engineer Saola in paragraph 4 of his affidavit evidence at page 135 of the record averred that the contract was awarded to Estensione SRL.
However in paragraphs 4 and 5 he averred thus:
4. That the work was frustrated when the claimant refused despite letter Ref. No. …. to release fund for my use as the Supervising Engineer.
5. That the claimant by its action shows it was not ready for any serious work.”
I am inclined to agree with the learned trial Judge and learned counsel for the respondents that the appellant was not misled by the mistake in the name of the 2nd respondent. In any event, as I held earlier, since this issue was not raised before the Arbitral Tribunal and the award was made in favour of the claimants as they appeared on the record before it, those claimants had the locus to approach the High Court to enforce the award.
In the circumstances I answer this question in the affirmative, It is accordingly resolved against the appellant.
Issue 6
Was the appellant’s motion on notice seeking an order setting aside the arbitral award statute barred?
Learned counsel for the appellant submitted that the motion on notice dated 18/3/03 in suit No. HOS/M.3/2003 seeking to set aside the arbitral award was premised on two grounds: (i) that the Arbitration Law of Oyo State 1978 is non-existent and that the respondents who sought to enforce the arbitral award did not have the requisite locus standi.
Having resolved these two issues against the appellant I am of the view that this issue has become academic, No useful purpose would be served by delving into it. The general rule regarding arbitration is that the parties to a transaction choose their arbitrator(s) for better or worse to be the Judge both as to decisions of law and decisions of fact in the dispute between them. Thus, none of them can, when the award is prima facie good on the face of it, object to the decision either upon law or the facts, simply because the award is not in his favour. See: Folie Vs Akese (1930) 1 WACA 1; Aye-Fenus Ent. Ltd. Vs Saipem (Nig.) Ltd. (2009) 2 NWLR (1126) 483 @ 513 F-H.
The grounds upon which the appellant sought to set aside the award were found to be untenable by the court below. In the course of this judgment the said findings have been endorsed. In conclusion therefore, I hold that this appeal lacks merit. It is accordingly dismissed. The judgment of the High Court of Osun State, Osogbo Judicial Division in consolidated Suits Nos. HOS/MISC.3/2003 and HOS/MISC.27/2003 delivered on 18/2/05 refusing to set aside the Arbitral Award of the Arbitral Tribunal made on 20/12/02 is hereby affirmed. In exercise of the powers of this court under Section 15 of the Court of Appeal Act 2004 and Order 4 Rule 4 of the Court of Appeal Rules 2011, the order making the Arbitral Award the judgment of the Court below is hereby substituted with the order as sought in the originating summons dated 20/1/2003 viz: The applicants/judgment creditors are granted “leave to enforce the Arbitral Award dated the 20th day of December, 2002 in the same manner as a judgment of the court AND THAT the Respondent/Judgment debtor do pay the costs of the application to be taxed.”
The parties shall bear their respective costs in the appeal.

CHINWE E. IYIZOBA, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, K. M. O. KEKERE-EKUN JCA. I agree with his reasoning and conclusion.
Learned Counsel for the appellant is not attacking the substance or soundness of the arbitral award but he is merely latching unto whatever technical ground he could grasp to undermine the award. The respondent approached the lower court by originating summons and correctly applied for leave to enforce the award in the same manner as a judgment of the court. The lower court erroneously made the award the judgment of the court. It will be a travesty of justice for this court not to be able to rectify the error as the court of Appeal did in Ras Pal Gazi vs F.C.D.A (2001) 10 NWLR (Pt.722) 559 .
My learned brother has most ably dealt with all the other technical issues raised in the appeal. I agree entirely with the judgment. I find no merit in this appeal. I also dismiss it. I abide by the consequential orders in the lead judgment including the order as to costs.

MOORE A. A. ADUMEIN, J.C.A.: I agree completely with the judgment of my learned brother KEKERE-EKUN, JCA just delivered. For the very sound reasons given by His Lordship, I too dismiss this appeal. I abide by all the orders in the lead judgment, including the order as to costs.

Appearances

Opeyemi Usiola Esq.For Appellant

AND

L. L. Akanbi and E. E. JacobFor Respondent