STABILINI VISINONI LIMITED v. MALLINSON & PARTNERS LIMITED (2014)

STABILINI VISINONI LIMITED v. MALLINSON & PARTNERS LIMITED

(2014)LCN/7253(CA)Z

In The Court of Appeal of Nigeria

On Friday, the 30th day of May, 2014

CA/L/281/2012

RATIO

WORDS AND PHRASES: ARBITRATION

Arbitration is described as – “a method of dispute resolution involving one or more neutral third parties, who are agreed to by the disputing parties, and whose decision is binding” – see Black’s law Dictionary, 9th Ed. In effect, arbitration is the resolution of a dispute between the parties by a person(s) other than a Court of law – see Commercial Arbitration in Nigeria. 2nd Ed. by Fabian Ajogwu, SAN, wherein the learned author further elucidated as follows –
“It is the reference of a dispute by parties thereto for settlement by a person or tribunal of their own choice, rather than a Court. The basis for the arbitration is the consent of the parties to submit or refer their disputes to arbitration. The strength of arbitration lies in the enabling law that confers it with the sanction of enforcement once a final award is made in a judicious manner”. per INA ADAMU AUGIE, J.C.A.

WORDS AND PHRASES: MISCONDUCT

The word “misconduct” is not defined in the Act but it is defined in Black’s Law Dictionary, 9th Ed., as “a dereliction of duty; unlawful or improper behavior”. The Act does not also say what would amount to misconduct by an arbitrator, however, in the case of Taylor Woodrow (Nig.) Ltd. V. S.E. GMBH (1993) 4 NWLR (Pt.286) 127, the Supreme Court adopted “what constitutes misconduct and lists examples of acts that have been held to amount to misconduct” as set out in Paragraph 622 of the Halsbury’s Laws of England, which are as follows –
“WHAT CONSTITUTES MISCONDUCT – – The expression is of wide import, for an arbitrator’s award, unless set aside, entitles the beneficiary to call on the executive power of the state to enforce it, and it is the Court’s function to ensure that the executive power of the Court is not abused. It is accordingly misconduct for an arbitrator to fail to comply with the terms, express or implied, of the arbitration agreement. But even if the arbitrator fully complies with those terms, he will be guilty of misconduct if he makes an award which on grounds of public policy ought not to be enforced. Much confusion has been caused by the fact that the expression ‘misconduct’ is used to describe both these quite separate grounds for setting aside an award, and it is not wholly clear in some of the decided cases on which of these two grounds the expression includes on the one hand that which is misconduct by any standard, such as being bribed or corrupted, and on the other hand mere “technical” misconduct, such as making o mere mistake as to the scope of the authority conferred by the agreement of reference. That does not mean that every irregularity of procedure amounts to misconduct. But misconduct occurs, for example:
(i) If the arbitrator or umpire fails to decide all the matters which were referred to him;
(ii) If by his award the arbitrator or umpire purports to decide matters which have not in fact been included in the agreement of reference; for example, where the arbitrator construed the lease (wrongly) instead of determining the rental and the value of buildings to be maintained on the land; or where the award contains unauthorized directions to the parties; or where he decided as to the parties’ rights, not under the contract upon which the arbitration had proceeded, but under another contract;
(iii) if the award is inconsistent, or is ambiguous; or even if there is some mistake of fact, although in that case the mistake must be either admitted or at least be clear beyond any reasonable doubt;
(iv) if there has been irregularity in the proceedings, as – -where the arbitrator failed to give the parties notice of the time and place of meeting, or where the agreement required the evidence to be taken orally and the arbitrator received affidavits, or where the arbitrators refused to hear the evidence of a material witness, or where the examination of witnesses was taken out of the parties’ hands, or where the arbitrators failed to have foreign documents translated or where, the reference being to two or more arbitrators, they did not act together, or where the umpire, after hearing evidence from both arbitrators received further evidence from one without informing or hearing the other, or where the umpire attended the deliberations of the appeal board reviewing his award;
(v) if the arbitrator or umpire has failed to act fairly towards both parties, as, for example, by hearing one party but refusing to hear the other, or by deciding in default of defence without clear warning, or by taking instructions from or taking with one party in the absence of the other, or by talking evidence in the absence of one party or both parties, or by failing to give a party the opportunity of considering the other party’s evidence, or by using knowledge he has acquired in a different capacity in such a way as to influence his decision or the course of the proceedings, or by making his award without hearing witnesses whom he has promised to hear, or by deciding the case on a point not put to the parties;
(vi) if the arbitrator or umpire refuses to state a special case himself or allow an opportunity of applying to the court for an order directing the statement of a special case;
(vii) If the arbitrator or umpire delegates any part of his authority, whether to a stranger or to one of the parties, or even to a co-arbitrator.
(viii) If the arbitrator or umpire accepts the hospitality of one of the parties, being hospitality offered with the intention of influencing his decision;
(ix) If the arbitrator or umpire acquires an interest in the subject matter of the reference, or is otherwise an interested party;
(x) If the arbitrator or umpire takes a bribe from either party.
In each of the foregoing cases the arbitrator or umpire has misconducted himself, and the Court has power to set aside his award”.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

YARGATA NIMPAR Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

STABILINI VISINONI LIMITED Appellant(s)

AND

MALLINSON & PARTNERS LIMITED Respondent(s)

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Respondent deals with the importation and the sale of building materials, including iron rods of different sizes, while the Appellant is a Civil Works and Construction Company. By two Local Purchase Orders [LPOs] dated 14th and 15th of May 2009, the Appellant ordered for 210 tons of Y10MM Iron Rods (Ukraine Imported) valued at 33,600,000 and 60 tons of Y25MM Iron Rods (Ukraine Imported) valued at N9,600,000 respectively, from the Respondent. Both LPOs contain an arbitral clause that stipulates as follows-
“All disputes which may arise out of the order shall he referred to an Arbitrator nominate (sic) by the President to (sic) the time being of the Lagos State Chamber of Commerce, This clause should be deemed to be a submission to arbitration within the meaning of the law from time (sic) enforced in Nigeria”.
It was also specified in the LPOs that payment for the iron rods supplied shall be made “30 days after the last delivery”. When it failed to effect payments, the Respondent wrote several demand letters to the Appellant, and when that failed to yield results, the Respondent briefed its Lawyers – Emeka Ngige & Co., who also wrote their own demand letter dated 15/10/2009 to the Appellant.
The Appellant failed to pay, and Respondent filed Suit No. LD/134/2010 dated 21/1/2010 at the Lagos State High Court, wherein it claimed as follows –
(A) Payment of the total sum of N43,200,000.00 only being the outstanding sum owed the Claimant by the Defendant for the Iron Rods (Ukroine Imported) supplied to the Defendant vide the Defendant’s Local purchase Orders (LPOS) respectively dated 14/5/09 and 5/15/09 with Nos: HOF-05-243 and HOF-05-239 respectively.
(b) Payment of Interest at the rote of 22% on the said sum of N43,200,000.00 from 1/8/2009 until Judgment and thereafter at the rate of 10% until the entire debt is liquidated.
(c) Payment of the total sum of N15,000,000.00 only as damages for breach of contract.
(d) Cost of the action including the sum of N5,000,000.00 representing fees charged by Claimant’s Solicitor’s for the recovery of the principal claim.
Upon being served, the Appellant entered a conditional appearance on 5/2/10, and on 8/3/10, it filed an Motion on Notice praying the lower Court to grant –
1. An ORDER staying further proceedings in this Suit until the parties herein comply with Clause 5 of the Local Purchase Orders that stipulates referral to arbitration prior to commencement of Court action;
2. An ORDER extending time for the Defendant – -to file its pleadings in this suit till 7 (seven) days after the date of delivery of Ruling in respect of this Application.
The Grounds upon which the Application was brought are as follows –
i. The commencement of this suit by the Claimant is premature and there is no disclosure in the Statement of Claim that there exists a condition precedent.
ii. Both parties agreed to submit to arbitration to resolve any dispute(s) that may arise from the issuance of the Local Purchase Order(s).
iii. It is a settled in a plethora of judicial authorities that any party seeking to refer to a dispute which is already before a Court of law to an Arbitral body must not file any pleadings or take any other steps whatsoever, apart from filing its Memorandum of Conditional Appearance.
The Respondent conceded to the Application, and Emeka Ngige & Co., then wrote a letter dated 5/5/10, which they also titled NOTICE OF ARBITRATION to – “The President, Lagos Chamber of Commerce and Industry”; it reads in part –
“Pursuant to the requirement contained in Clause 2 and 3 of Article 3 of the First Schedule to the Arbitration and Conciliation Act, Cap – – we hereby declare that a dispute having arisen between the parties, we on behalf of Mallinson & partners Limited, hereby give you this Notice of Arbitration proceedings;
DEMAND FOR REFERENCE:
Pursuant to Article 5 of the Respondent’s LPO – – – We propose that your humble office nominate an Arbitrator and that the Rules of Arbitration as contained in the Arbitration and Conciliation Act, Cap. A18 LFN 2004 shall apply”.
In a letter dated 13/5/2010. Chief Emeka Ngige, SAN, was notified that –
“- – – the President of the LCCI has found a very suitable sole arbitrator, who is both a Chartered arbitrator and a Life Bencher. She is Hon. Hairat Ade-Balogun, OON, MCIArb, a former Attorney-General of Lagos State – – as well as an Arbitrator of international distinction. The President of LCCI gives you every assurance that Hon. Hariat Ade-Balogun is a person of unquestionable integrity- – “.
The Respondent accepted her but in a letter dated 24/5/10 from its Solicitors – Babalakin & Co. to the President of the LCCI, the Appellant contended that – –
“Hon. Hairat Ade-Balogun, though well versed in numerous arbitration matters, has limited experience in construction industry related dispute. – – Given the nature of this dispute that has arisen out of an agreement in respect of construction materials, we are of the belief that an arbitrator with relatively vast experience in construction industry arbitrations will be of great value to both parties. As such, we find her nomination unacceptable to our client and humbly request that an arbitrator with relatively adequate experience in construction industry arbitrations be nominated to preside over the Arbitral Tribunal in her stead”.
In a letter dated the same 24/5/10, the said Arbitrator informed the parties of her appointment and fixed a preliminary meeting of all the parties for 7/6/10, and in another letter dated 27/5/2010 to the President of the LCCI, she said –
“I note the contents of the letter of 24/5/2010 from – – Babalakin & Co. – – -Should the observations be represented to me at the commencement of the hearing I shall ask both parties to formally present it, in the manner provided for some under Section II of the Arbitration Rules of the Arbitration and Conciliation Act 1988. The President of the Chamber of Commerce having discharged his role and responsibility to the parties as the appointing authority has now become functus officio both with regards to the appointment and the subject-matter of the reference, unless I find reason to decline jurisdiction over the arbitration or my appointment upturned by a Court of Law”.
In a letter dated 27/5/10. Babalakin & Co., retracted their objection as follows-
– – We hold Hon, Hariat Ade-Balogun in the highest esteem for her personal character/integrity and professional accomplishment and write to correct any contrary opinion that might have been conveyed by our letter – – We write, without reservation, to formally retract the following statements contained in our – – letter:
“Though well versed in numerous arbitration matters, has limited experience in construction industry related dispute” and ” We are of the belief that an arbitrator with relatively vast experience in construction industry arbitrations will be of great value to both parties” and finally that – “An arbitrator with relatively adequate experience in construction industry arbitrations be nominated to preside over the Arbitral Tribunal in her stead”. We – – unequivocally and unconditionally retract the said statements, as Hon. Hairat Ade-Balogun, remains an Arbitrator of no mean repute and we have no intention to disparage or be disrespectful to her. We sincerely regret any inconvenience or embarrassment the said letter may have caused”.
Preliminary hearing commenced on 7/6/10 with only the Respondent present but Babalakin & Co. sent in a letter dated same day to inform the Arbitrator that the “counsel personally apprised of the matter, has a prior engagement”.
On 19/7/10 Emeka Ngige & Co., received a letter dated 9/7/10 and marked Without Prejudice from Babalakin & Co., wherein it was proposed as follows –
“- – In consideration of your client withdrawing/discontinuing all claims, suits and arbitral proceedings against our client and fully discharging our client from any liabilities arising from the above referenced transaction, our client shall make an initial payment of N10,000,000.00 not later than 31/7/10 while the balance of N33,200,000.00 shall be payable within a period of 9 days from the date of the initial payment. We trust that this is acceptable to your client – -“.
The Arbitration fixed for hearing that same 19/7/10 was adjourned to 5/8/10 to enable the Respondent respond to the offer. It made a counter-offer in its letter dated 23/7/10; however, the Appellant failed and/or refused to respond.
On the said 5/8/10, the matter was adjourned to 12/8/10 for hearing “subject to report of settlement”. The Notice of Hearing dated 9/8/10 reads –
“Hearing in the above matter was adjourned to 12/8/1- – – Please take Notice that the Tribunal will proceed with a one-party arbitration on the adjourned date in the event of lack of response from the Respondent”.
The Tribunal’s Directions dated 12/8/10 also reads as follows –
“Tribunal noted that all necessary notices had been served on the Respondent through its Counsel and they failed to appear. The Claimant were ordered to proceed with his claim. Tribunal having received Claimant’s Submission and the Testimony of Claimant’s witness adjourned hearing to 2/9/10 at 2.pm for rendering of Award”.
The Appellant went back to Court, and by a Motion Ex Parte dated 18/8/10, which the lower Court granted on 24/8/10, it prayed for an Interim Order –
“Restraining Hon. Hairat Balogun from taking further steps in the dispute between the parties until the Motion on Notice for similar reliefs is heard or determined”,
And the Ground upon which the Application was brought is as follows –
“The current sole arbitrator has just served a Direction/Hearing Notice dated 12/8/10 to parties indicating her intention to deliver her award in the Arbitration proceedings on 2/9/10 without a hearing or the opportunity of a hearing to the Defendant/Applicant. Except the Court hears and determines this application, the – – sole Arbitrator will proceed to deliver its award while this Application is pending”.
In the lower Court’s Ruling dated 24/8/10, W.A.E. Ayo, J., specifically stated –
“This Ex-parte Order shall be for seven days only from today after which it shall abate. This ex-parte Order and the Applicant’s Notion on Notice dated 18/8/10 shall be served on the Respondent and on the Arbitrator within 48 hours from today and proofs of service filed. – – The Applicant (sic) Motion on Notice dated 18/8/10 is hereby set down for hearing on 2/9/10”.
Before the Arbitrator could be served with the Interim Order and Application, she informed parties by a letter dated 31/8/10 that “the date for the rendering of award in the above matter has been postponed to Thursday, 16/9/2010”. She was subsequently served on 1/9/10 but proceeded to render the Arbitral Award on 2/9/10 instead of 16/9/10. The Operative Part of the Award reads –
“I AWARD AND DIRECT THAT, in full and final settlement of all claims (as submitted by the Claimant, in this arbitration, being a Default Award):
a) The Respondent shall within 30 days after when either party shall have taken up this award pay to the Claimant:
(i) A total sum of N43,200,000 as awarded in Paragraph 20.
(ii) Interest as computed at Paragraph 20 above and amounting N8,892,000.
And thereafter at the rate of 10% until the entire debt is paid.
b) The Respondent shall pay the total cost of the Arbitration in the sum of N860,000.00m which includes the Arbitrator’s fees of N688,000.00, and the administrative cost of N172,000.00 as contained in Paragraph 21.
c) The Respondent shall pay a sum of N3,000,000.00 (Three Million Naira), which represents the cost of Claimant’s legal fees”.
By Originating Motion dated 27/9/10, the Appellant filed Suit No. M/812/2010, wherein it prayed the lower Court to set aside the Award on the Grounds that-
A. The Applicant was not given proper notice of the appointment of the arbitration, the Arbitrator or of the arbitral proceedings and was not given a fair opportunity to present its case.
B. The award is contrary to public policy.
C. The Arbitrator was guilty of misconduct in the course of the arbitral proceedings.
The Respondent filed a Motion on Notice dated 14/10/10 in the first Suit for-
“AN ORDER of this Hon. Court granting leave to the Claimant/Applicant to enforce an award rendered by Hon. Hairat Ade-Balogun, OON, MCLArb on 2/9/10 but dated 1/9/10 in an arbitral proceeding between Mallinson & Partners Limited v. Stabilini Visinoni Limited in the following sums – – – – AND FURTHER TAKE NOTICE that the ground on which this application is brought are that (i) an arbitral award is binding on the parties and is enforceable upon an application in writing to the Court (ii) the Defendant/Respondent despite having been notified of the Award has failed, refused and or neglected to satisfy the Award”.
The Appellant, however, filed a Notice of Preliminary Objection dated 28/1/11, wherein it prayed the lower Court to strike out the Respondent’s Application to enforce the Arbitral Award issued in its favour, on the following Grounds –
1. A Court is only able to exercise jurisdiction to entertain an action which is commenced in accordance with legal due process and upon compliance with all conditions precedent thereto.
2. Where a statute has prescribed a particular procedure for taking a step, a party must comply with the prescribed procedure and cannot adopt a different procedure.
3. By the provisions of Rule (7(1) of the Arbitration Applications Rules of the Lagos State Arbitration Law 2009, an application to enforce an arbitral award rendered in an arbitration conducted within Lagos State must be made by Originating Motion.
4. The Claimant seeks to enforce an arbitral award rendered in an arbitration in Lagos State by motion on notice instead of complying with the mandatory provisions of the Lagos State Arbitration Law which has prescribed that enforcement MUST he by Originating Motion.
5. The Claimant’s said Application is grossly incompetent which consequently robs this Court of the requisite jurisdiction to entertain same.
Both Suits were consolidated, and the three Applications filed by the Appellant and the Respondent, were also consolidated and argued together on 23/2/11.
In his Judgment delivered on 21/12/11, A. A. Phillips, J., (as he then was) dismissed the Preliminary Objection, and concluded as follows at page 591-
“Learned counsel for the Defendant has based his Application to set aside the Award on mere suppositions, which are not backed by any hard facts at all. Furthermore, the law relied on by counsel in arguing this Application is not applicable to this action as the transaction that gave rise to this action had been completed before the Lagos State Arbitration law came into force. He has, therefore, failed to satisfy me that the Arbitrator misconducted herself at all while mediating in this matter and I also find that the Defendant has not furnished enough proof to show that the award contains decisions on matters, which are beyond the scope of the submission to the arbitration. There is, therefore, nothing before me to merit the setting aside of this Award as the Defendant had ample opportunity to defend itself against the claims of the Claimant before the Arbitrator but neglected to do so at its own peril. I therefore see no merit in the Application to set aside the Award made and since there is no reason to set aside this Award I will grant the Application of the Claimant to enforce the said award.
In conclusion, therefore, the Preliminary Objection and the Application to set aside the Award both filed by the Defendant are dismissed while the Application to enforce the Award is granted. The Defendant shall pay the costs of this action assessed at N100,000.00 to the Claimant”.
Dissatisfied, the Appellant filed a Notice of Appeal containing three Grounds of Appeal in this Court. It was, however, granted leave by this Court – “to raise and argue new issue of law” on appeal; amend its Notice of Appeal to include “an additional Ground 4”; and amend its brief of argument accordingly. In line with the Rules of this Court, parties filed and exchanged briefs of arguments, which they amended, and the Appellant formulated 4 Issues for Determination in its Amended Brief prepared by Olawale Akoni (SAN), Kehinde Daodu, Esq., Tunji Adigun, Esq., and Olamide Aiyeola (Miss). The said Issues are as follows –
i) Whether the Respondent Counsel’s Notice of Arbitration dated 5/5/10, which commenced the arbitral proceedings was competent?
ii) Whether the Arbitrator was guilty of misconduct when she proceeded to render the Arbitration Award despite being served with the Appellant’s interlocutory application dated 18/8/10 seeking to remove her as the Sole Arbitrator?
iii) Whether the Respondent is mandatorily required to comply with the Lagos State Arbitration Law, 2009 in the commencement of the enforcement of the arbitral proceedings instead of the Arbitration and Conciliation Act CAP A18 LFN 2004?
iv) Whether the award of cost in the sum of N100,000.00 to the Respondent is justified in the circumstances?
However, the Respondent submitted in its own Amended Brief prepared by Emeka Ngige (SAN), Obiora Atuegwu Egwuatu, Esq., and Augustine Onuora Egwuatu, Esq., that 4 issues fall for determination in this appeal. it adopted the Appellant’s issues No. i), iii) and iv), “with some adjustments”, as follows –
(i) Whether the Respondent Counsel’s letter to the President of Lagos Chamber of Commerce and Industry captioned ‘Notice of Arbitration’ dated 5/5/10, which commenced the arbitral proceedings, was competent in law?
(ii) Whether the sole Arbitrator belatedly served with a lapsed order of Court stopping her from further proceeding with the arbitral proceedings and or an interlocutory application dated 18th August 2010 seeking to remove her as the sole Arbitrator was guilty of misconduct in the conduct of the arbitral proceedings?
(iii) Whether the Respondent is mandatorily required to comply with the Rules made under Lagos State Arbitration Law 2009 in the enforcement of the arbitral award instead of the rules made under Arbitration and Conciliation Act Cap A18 LFN 2004?
(iv) Whether the award of cost in the sum of N100,000.00 to the Respondent is justified in the circumstances?
I will adopt the Issues formulated by the Appellant in dealing with the appeal.
Issue i) was never canvassed at the lower Court but the Appellant was granted leave to raise it as a fresh issue on appeal, and the said Issue is distilled from the said “Additional Ground 4”,wherein the Appellant complained that –
“The lower Court erred in law when it granted leave to the Respondent to enforce the arbitral Award dated 1/9/10 rendered in arbitral proceedings which had become incompetent by reason of its commencement by the Respondent’s counsel’s defective Notice of Arbitration doted 5/3/10.
The Appellant’s contention is that the said letter titled – Notice of Arbitration was not signed by a Legal Practitioner, and it submitted that it is settled that all legal documents must be signed by and state the name of a Legal Practitioner, citing Sections 2(1) & 24 of the Legal Practitioners Act; Oketade V. Adewunmi (2010) All FWLR (Pt. 526) 511; Okafor & Ors V. Nweke & Ors (2007) All FWLR (Pt. 368) 1016; Agiri V. Ogundele (2005) All FWLR (Pt. 250) 81, The Registered Trustees of Apostolic Church, Lagos V. Rahman Akindele (1967) NMLR 263.
It argued that the Notice was signed for and on behalf of Chief Emeka Ngige (SAN) by a person who failed to write his own name and being an originating process, which activated the arbitration, such defect is fatal to the arbitration, citing Peak Merchant Bank Ltd V. NDIC (CA/L/572/05 delivered on 14/5/10), Onward Enterprises v. Olam (2010) All FWLR (Pt.531) 1503, BASF Ltd V. Faith Ent. Ltd. (2010) All FWLR (Pt. 518) 840. It further submitted that –
“Chief Emeko Ngige SAN, was legally duty bound to personally sign the Notice of Arbitration to the extent that the Notice was issued in his name and professional capacity as the Respondent’s Counsel. He was acting as a Legal Practitioner. Where some other person signed the Notice on his behalf, such a person (who must be a lawyer) ought to sign it properly by indicating his name as required by law, The consequence of the failure to sign the Notice properly in the instant matter is that the Respondent Counsel’s originating process (i.e. the Notice of Arbitration dated 5/5/10) is incompetent, null and void.
The implication of the incompetence of the Respondent Counsel’s originating arbitration process is that the arbitration which was commenced and conducted pursuant to the Arbitration & Conciliation Act was not commenced by due process of law and upon fulfillment of the condition precedent prescribed by Sections 2(1) and 24 of the Legal Practitioners Act which is (in this case) the filing of a valid originating Notice of Arbitration signed by a Legal Practitioner”.
The Respondent submitted that the Appellant’s arguments are misplaced, misconstrued and ought to be rejected as the facts and circumstances of this case is different from the facts, circumstances and principles in the cases cited; that what is in question is a mere letter in the letter headed paper of Emeka Ngige & Co., declaring a dispute and giving notice of arbitration; that a notice of arbitration does not have to be signed by a legal practitioner; and that –
“The common thread that runs through all the cases [cited by the Appellant] – – is the fact that it is the signing of court processes under a firm name that was in contention. It is not the signing of o mere letter. It is our submission that Court processes include writ of summons, originating summons, originating motions, notice of appeal, statement of claim & defence, motions, written address etc. and does not include letters. Our contention is further buttressed by the fact that virtually all letters written by the Chambers of Babalakin and Co. before, during and after the arbitration on behalf of the Appellant were just written “Babalakin & Co” on top of the firm’s name by an unknown writer – – – Yet the same law firm turned round to contend in particular 3 of Ground 4 of the amended Notice of Appeal that – “Legal Practitioners are mandatorily required to identify themselves by writing and signing their names on all documents and processes prepared and/or authored by them”. Having failed to do so themselves in the documents shown in the Record, they cannot legitimately contend that a letter is a court process”.
It argued that even if the letter is accorded a status of an “originating process”, an arbitral Tribunal is not a Court so non-lawyers can sign notice of arbitration, citing Article 3(1) of the Arbitration Rules; that the Appellant waived its right to challenge the so-called defect as it failed to raise it at the Tribunal and Court – Section 33 of the Arbitration Act and Article 30 of the Arbitration Rules cited; that this is not a jurisdictional issue, citing Odua Investment Co Ltd V. Talabi (1997) 10 NWLR (Pt.523) 1; that the Appellant has not satisfied this Court that the said signature does not belong to the named legal practitioner; and that –
“The signature on the notice of Arbitration does not contain the word “for and on behalf of the name legal practitioner as erroneously submitted by the Appellant – – The Appellant has not shown to the satisfaction of this Court that the signature on the notice of Arbitration does not belong to the named legal practitioner, Chief Emeka Ngige SAN,. It is not a matter for speculation or conjecture. The signature of the said counsel is not a fact that can be judicially noticed. It has to be done by cogent, clear and verifiable evidence which was not done in the instant case”.
It referred us to the decision of the lower Tribunal and this Court in the case of INEC V. Oshiomole (2009) 4 NWLR (PT 1132) 607, and submitted as follows-
“Even if – – there is on alphabet “f” before the signature of Chief Ngige, the Appellant has not shown that the letter “f” means “for”. It could mean any other thing like “former”, “father” etc. Besides, the letter “f” could very well be part of the signature of the named legal practitioner. After all signature is defined by Black’s Law Dictionary – – as “A person’s name or mark written by that person or at the person’s direction. The Appellant ought, by way of affidavit evidence show that the signature on the notice of arbitration does not belong to the named legal practitioner but to another person who failed to disclose his name or identity. Having failed to so satisfy this court, the Appellant’s issue No 1 must foil in this regard, Having regard to the submissions made above, we urge Your Lordships to hold that the letter embodying the notice of arbitration dated 5/5/2010 and addressed to the President of LCCI and copied to the Appellant is competent. Holding otherwise will open a flood gate of frivolous preliminary objections which will clog the wheel of justice! The decision in Okafor V Nweke (supra) and the cases following should not be stretched to a ridiculous extent”.
The Appellant filed a Reply Brief wherein it rehashed the arguments previously canvassed in its brief, which is contrary to what is expected in a reply brief – see Longe V. F.B.N. Plc. (2010) 6 NWLR (Pt. 1189) 1, where Adekeye, JSC, said –
“- – A reply brief – – should be limited to answering new points arising from the Respondent’s brief. Although an Appellant’s Reply Brief is not mandatory, where a Respondent’s brief raises issues or points of law not covered in the Appellant’s brief, an Appellant ought to file a reply brief. It is not proper to use a reply brief to extend the scope of the Appellant’s brief or raise new issues not dealt with in the Respondent’s brief. It is not to afford an Appellant another bite at the cherry”.
In this case, the Appellant argued in its main brief that a notice of arbitration is comparable to any Court process, which must be signed by a legal practitioner, and in its Reply brief that the Respondent misconceived/trivialized the effect of a Notice of Arbitration, which occupies the same pedestal as a process of Court to the extent that both are used to commence legal proceedings; and that –
“Like a Writ of Summons, a Notice of Arbitration compels the appearance of the named person as in the absence of such appearance decisions affecting the person’s rights may be reached. More so, Chief Emeka Ngige, SAN represented the Respondent at the arbitral proceedings as counsel, namely, in his capacity as a legal practitioner and to that extent ought to sign the Notice of Arbitration as such, in the manner prescribed for legal practitioners”.
It continued in the same vein; thereby extending the scope of its Reply Brief, which is unacceptable and such arguments will be discountenanced. However, the Respondent brought in the issue of waiver. The Appellant countered in the Reply brief that its argument on same is erroneous and distinguished the case of Odua Investment V. Talabi (supra) from this case. It also cited Onward Enterprises Ltd. v. Olam Int. Ltd. (2010) All FWLR (Pt. 531) 1503, and urged us to apply same principle and hold that the said defect is not a mere irregularity but a fundamental defect which renders the entire proceedings a nullity.
As to the Respondent’s argument that its counsel had written letters signed in the name of its firm, the Appellant countered that the argument is illogical and does not address the issue; and that an act that is incompetent or erroneous can never be justified by the fact that the other person also did it, which is what logicians refer to as fallacy of tu quoque [i.e. Latin for “you, too”].
It also argued that the Appellant’s reliance on INEC v. Oshiomole (supra) is misplaced because in that case the Appellants argued that the signature on the Petition looked like that of “Odubela”, who was not listed as counsel, and the issue herein is that a non-disclosed person signed for a legal practitioner; that on the face of the said Notice it is clearly marked – “I Emeko Ngige, SAN”, therefore, the issue of proving that it was not signed by him does not arise.
Referring to Section 124(1) of the Evidence Act, it argued that it is well-known that when the letter “f” is placed before the name on the document, the letter stands for the word “for” indicating that the document is signed “for” the named person; and that the letter “f” on the said Notice is not superfluous or cosmetic rather it is an overt act that makes it apparent and mathematically points to the fact that the document was signed for chief Emeka Ngige, SAN, which is a fact that requires no proof, and we were urged to so hold. This issue is a mere storm in a teacup signifying nothing. The Appellant’s position is untenable because different rules apply in an arbitral Tribunal and a Court of law, and parties, who chose to go to arbitration, do not expect that legal technicalities associated with the Court of law will adhere to them there.
Arbitration is described as – “a method of dispute resolution involving one or more neutral third parties, who are agreed to by the disputing parties, and whose decision is binding” – see Black’s law Dictionary, 9th Ed. In effect, arbitration is the resolution of a dispute between the parties by a person(s) other than a Court of law – see Commercial Arbitration in Nigeria. 2nd Ed. by Fabian Ajogwu, SAN, wherein the learned author further elucidated as follows –
“It is the reference of a dispute by parties thereto for settlement by a person or tribunal of their own choice, rather than a Court. The basis for the arbitration is the consent of the parties to submit or refer their disputes to arbitration. The strength of arbitration lies in the enabling law that confers it with the sanction of enforcement once a final award is made in a judicious manner”.

In this case, the Appellant insisted the parties must go to an Arbitrator because “both parties agreed to submit to arbitration to resolve any dispute(s) that may arise from the issuance of the LPOs” – see Ground (ii) of its Application for stay. Having chosen to take the Respondent down that path, the Appellant cannot turn around to demand that the legal principles that obtain in a Court of law, which it had refused to go to, must be complied with at the arbitral Tribunal. As Gaius Ezejiofor explained in his book – The law of Arbitration in Nigeria, resort to arbitration shields parties from the rigid formality that characterizes Court trials. The Appellant cannot eat its cake and have it; it cannot insist that parties go to an arbitral Tribunal with its informal settings and flexible rules and hide under legal principles that bind a Court of law, when things turn sour.
The bottom line is that arbitration is not limited to the legal community; it is open to lawyers and non-lawyers, and it cannot be a requirement that the notice of arbitration initiating same must be signed by a legal practitioner.
I do also agree with the Respondent that even if its complaint is justified, the Appellant waived its right to complain since it did not object to the notice of arbitration as signed or raise the issue at the arbitral Tribunal or the Court, therefore, this Issue must be and is hereby resolved against the Appellant.
Issue 2 questions whether the Arbitrator was guilty of misconduct when she proceeded to render the Award despite being served with the Appellant’s interlocutory application seeking to remove her as the Arbitrator? Apparently, both parties formulated the said Issue as if there is a nexus between this Court and the Arbitrator. There is none, and the parties must go through the lower Court before they come to this Court. Moreover, the role of the lower Court in arbitral matters is also quite limited – see Baker Marine (Nig.) Ltd V. Chevron (Nig.) Ltd. (2000) 12 NWLR (Pt.681) 393, wherein it was explicitly stated that –
“The lower Court was not sitting as an appellate Court over the award of the Arbitrators, The lower Court was not therefore empowered to determine whether or not the findings of the Arbitrators and their conclusions were wrong in law. What the lower Court had to do was to look at the award and determine whether on the state of the law as understood by them and as stated on the face of the award, the Arbitrators complied with the law as they themselves rightly or wrongly perceived it. The approach here is subjective. The Court places itself in the position of the Arbitrators, not above them, and then determines on that hypothesis whether the Arbitrators followed the law as they understood and expressed it”.

Be that as it may, the lower Court has power to enforce or set aside an award, and the logical sequence is to address Issue 3, which questions the procedure used at the lower Court, before we look at Issue 2, dealing with the Arbitrator. Issue 3 is hinged on the Appellant’s Objection to the Respondent’s Application to enforce the said arbitral award on the ground inter alia that the Respondent “seeks to enforce an arbitral award rendered in an arbitration in Lagos State by Motion on Notice instead of complying with the mandatory provisions of the Lagos State Arbitration Law which has prescribed that enforcement MUST be by Originating Motion”. [see Ground 4 of its Grounds of Objection].
In dismissing the said Preliminary Objection, the lower Court held as follows –
“It is very clear from the Exhibits annexed to the various Applications to be considered in this Judgment that the contractual agreement between the parties, which brought about the dispute before this Court is dated 14th and 15th May 2009 respectively and the Law applicable at the time the contract was entered into is the Arbitration and Conciliation Act Cap A18 LFN 2004. In paragraph 64 of the Lagos State Arbitration Law, it is clearly stated that that Law shall come into force on 18th May 2009 and since therefore this agreement was already entered into by the parties before the commencement date of this law, it cannot apply to the transaction between the parties, I therefore do not need to waste any more time on this Objection as same is obviously without merit. It is therefore dismissed”.
In contending that the lower Court was wrong in law, the Appellant proffered arguments on the issue of federalism, etc. For instance, it argued as follows –
“- – A necessary feature of the federal system of government which we operate in Nigeria is the autonomy of each of the federating units. This presupposes that the doctrinal basis of federalism is the independence or autonomy of different tiers of government in such a manner that they are equal and coordinate. The independence of each tier of government indicates that the terms of the division of powers is embodied in a constitution that is supreme over both the central and regional (or state) governments and overrides any act done by either of them in violation of those terms. The independence of each tier of government as respects its existence and powers is a matter which the other is not at liberty to infringe on”.
Citing A-G Abia State v. A-G Fed. (2006) All FWLR (Pt. 338) 604, A-G Lagos State v. A-G Fed (2004) 18 NWLR (Pt. 904), and Professor Ben. O. Nwabueze’s book on Federalism in Nigeria under a Presidential Constitution, it submitted –
“The instant appeal bothers on arbitration, which is neither contained in the Exclusive nor the Concurrent lists as per the Second Schedule to the Constitution (as amended). The necessary implication – – is that arbitration is part of the Residual List and same falls exclusively within the legislative competence of a State legislature”.
The Respondent dismissed its arguments on federalism, etc., as mere legalese, which is true. The lower Court did not tackle it or make any pronouncements on the issue, and it is settled that an appeal is a complaint against a decision and not a licence or excuse to raise all kinds of issues that have no relevance to the issue(s) upon which the decision complained against is based – see A-G Rivers State v. Ude (2006) 17 NWLR (Pt. 1008) 436 SC. I refuse to be dragged down into a snake pit and will discountenance the arguments in that direction.
“The lower Court held that since the Agreement that led to the dispute before it was already entered into before the commencement of the Lagos State Arbitration Law [hereinafter referred as the Law], the applicable law is the Arbitration and Conciliation Act [hereinafter referred to as the Act].
The Appellant’s position is that the applicable adjectival law is the extant law at the time of hearing and it matters not whether the procedural law came into force before or after the cause of action arose, citing Rossek V. ACB (1993) 8 NWLR (Pt. 312) 382, James V. Okereke (2005) 13 NWLR (Pt. 1105) 544 & A-G v. Vernazzd (1960) AC 965. It argued that the Act is inapplicable in Lagos State from 18/5/09 in the face of the Law, citing Fawehinmi v. Babangida (2003) 3 NWLR (Pt. 808) 604, and that the Respondent did not comply with rule 2(1) of the Arbitration Application Rules 2009 (hereinafter referred to as the Rules).
It submitted, citing Amalgamated Trustees V. Associated Discount House Ltd. (2007) 15 NWLR (Pt. 1056) 118, Buhari V. Obasanjo (2005) 13 NWLR (Pt. 941) 1, Akuneziri v. Okenwa (2000) 15 NWLR (Pt. 991) 526, Okoti-Eboh V. Manager (2004) 18 NWLR (Pt. 905) 242 & Lawal V. GB Ollivant (1972) 3 SC 124, that it is settled that unambiguous statutory provisions should be given their literal and grammatical meaning; that it is trite that when the word “shall” is used in a statute, it means a command to do or not to do a particular act and there is no question of discretion to do or not to do the envisaged act, citing Ugwu v. Ararume (2007) 7 MJSC 1, Ogidi v. State (2005) 5 NWLR (Pt.918) 286 and BASF v. Faith Ent. (2010) All FWLR (Pt. 518) 840 SC; and that where a statute provides for a particular method of performing a duty, it is only that method that must be used, citing CCB Plc. v. A-G, Anambra State (1992) 10 SCNJ 137, Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334, Buhari v. Yusuf (2003) 4 NWLR (Pt. 841) 446, and Nwankwo v. Yar’adu a (2010) 12 NWLR (Pt.1209) 518 SC.
Furthermore, that where there is a fundamental failure to comply with the requirements of the statute, as in this case, the failure is not an irregularity but a nullity, citing N.D.C Ltd v. A.S.W.B. (2008) All FWLR (Pt. 422) 1052 SC, and that the method for the commencement of the proceedings are contained in the Rules made pursuant to the Law and as such has statutory flavor, thus, the failure of the Respondent to comply with the said mandatory statutory procedure is an incurable defect, which affects the jurisdiction of the Court, since the entire enforcement proceedings was not commenced in compliance with law, citing Okoye v. Centre Point Merchant Bank Ltd. (2008) 15 NWLR (Pt.1110) 335 and Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 587.
The Respondent argued that it is “the law from time enforced in Nigeria” and not the law enforced in Lagos State that is applicable; that parties could not have implied the Law as that was not the law in force in Nigeria when they entered into the said contract; that the Law is not retrospective or retroactive, whether expressly or impliedly, citing Alewa V. Sokoto State Independent Electoral Commission (2007) 15 NWLR (Pt.1057); that even if it is applicable, the Rules apply only when arbitration applications are brought under the Law; that its Application was not brought under the Law nor was the proceedings that gave rise to the arbitral award conducted under that Law; that even if the Law applies, the Rules of the lower Court supersede the Rules; that although Section 31(1) of the Act did not specify what type of application to be made for the recognition and enforcement of an arbitral award, this Court held in Triana Ltd. v U.T.B. Plc. (2009) 12 NWLR (Pt.1115) 313 that an application by way of Motion on Notice is sufficient to enforce an arbitral award; and we were urged to apply the same principle to this case. It also referred to NDIC V Ifediegwu (2003) 1 NWLR (Pt.800) 56 & Balogun v. N.C.S.B. (2003) 2 NWLR (Pt. 804) 389.
In response to the Appellant’s argument, it submitted that it is not in all situations where the word “shall” is used in a statute that it is mandatory or a word of command, and especially when used in Rules of Court, it may be interpreted as directory, citing Peter V. N.N.P.C. (2010) 8 NWLR (Pt. 1195) 173, Amadi V NNPC (2000) 10 NWLR (Pt. 674) 76, Ifezue V. Mbadugha (1984) 1 SCNLR 427, Gambari V. Mahmud (2010) 3 NWLR (Pt.1181) 278 and Amalgamated Trustees Ltd. V. Associated Discount House Ltd, (supra).
It further argued that seeking the enforcement of the award by way of Motion on Notice instead of Originating Motion is a mere irregularity that does not vitiate the proceedings, citing order 5 Rule 1(2) of the Lagos State High Court Rules, Peter Obi V. INEC & Ors: In Re Uba (2008) 7 NWLR (Pt.1085) 68, Ekanem vs Akpan (1991) 8 NWLR (Pt.211) 616; that undue importance ought not to be acceded to technicalities, citing Surakatu v. Nigeria Home Development Society (1981) 4 SC 26, Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688, Duke V. Akpabuyo L.G. (2005) 19 NWLR (Pt. 959) 130, Ebe vs Commissioner of Police (2008) 4 NWLR (Pt. 1076) 189; that since the Appellant acknowledged its indebtedness and the Arbitral Tribunal had rendered an award in its favour, this Court should not allow the Appellant to use technicality to defeat the ends of justice; and that-
“The sole purpose of this appeal is to further delay and frustrate the Respondent in reaping the fruits of its arbitral award – – The Appellant got the proceedings at the Court below stayed pending arbitration. When it failed to kick start the process, [it] had to set the process into motion. At the Arbitral Tribunal, the Appellant failed, refused and neglected to participate despite being served all the processes and Notices. [It] bore all the costs of the arbitration following the refusal of the Appellant to cooperate with the Sole Arbitrator. – – The Appellant is adept in putting spanners in the wheel of progress of the Respondent. The essence of parties resorting to Alternative Dispute Resolution instead of litigation has been rendered nonsensical by the attitude of the Appellant. All the arguments canvassed by the Appellant are not related to its indebtedness to the Respondent but on technical issues – – The complaint of the Appellant does not go to the meat of the case. – – The Appellant is desperate to prevent the Respondent from reaping the fruits of its Judgment”.
The Appellant replied that the Respondent’s position is evidence of inability to distinguish between procedural law and substantive law and how they apply; that the enforcement of an arbitral award is a matter of procedure and it is the procedural law applicable at the time of the enforcement that should apply; that general provisions cannot override specific provisions and the High Court Rules are general in application while the Law is specific to arbitration matters and must prevail over the said Rules in such matters; and that Rules of Court, which is subsidiary legislation, cannot override a statutory provisions, citing Nasir v. C.S.C. Kano State (2007) 5 NWLR (Pt. 1190) 276 SC. It also argued that the Respondent referred to judicial authorities where it was held that the word “shall” is not always construed as being mandatory but failed to show why it should not be so construed in this case; that the Respondent trivialized the legal implication of not adhering to the procedures prescribed by statute; and that the implication of always hiding under the cloak of technicality in the face clear statutory provisions is to render such provisions superfluous – Udeagba V. Omegara (2010) 11 NWLR (Pt.1204) 168 and Nwankwo V. Yar’adua (2010) 12 NWLR (Pt.1209) 518 SC cited. The Appellant further submitted as follows –
“It is a trite principle of legislative interpretation that the Legislator never uses any word in vain. If the Legislature had intended that the application to enforce an arbitral award can be made by Motion on Notice, it would have stated so in clear terms. Where – – the Legislature in its wisdom has provided that the application shall be brought by Originating Motion, it is not the place of the Courts to re-write the law by allowing such application to be made by motion on notice. That will be akin to shifting the goal post. May be in due course a person will bring the application by way of Petition or another by Originating Summons and the Court will still allow it on the ground of avoiding technicality. Such practice will invariably lead to inconsistency as against predictability in the law and we urge your Lordships to discourage it”.
Citing Ukangwu V. Pitt (2008) 9 NWLR (Pt.1093) 583 on the bindingness of the Rules of Court, it submitted that the Respondent’s failure to comply with the applicable Rules is deliberate and the peril to be suffered is that the Motion on Notice ought be struck out and the Judgment obtained there-from set aside.
What do I say? Where do I start from? The parties have done a good job of complicating what is otherwise a straightforward matter. First things first; we need to examine the statutes in question. The Act is a federal enactment, and the Law, along with the Rules made thereunder, only covers Lagos State. Section 31(1) of the said Act provides as follows –
“An arbitral award shall be recognized as binding and subject to this Section and Section 32 of this Act, SHALL UPON APPLICATION IN WRITING TO THE COURT, be enforced by the Court”.
The Act did not specify the type of Application to be made, however, Order 39 rule 4(1) of the Lagos State High Court (Civil Procedure) Rules, provides that
“Every MOTION ON NOTICE to set aside, remit or ENFORCE AN ARBITRAL AWARD shall state in general terms the grounds of the application and where any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the NOTICE OF MOTION”.
And it was held in Triana Ltd. V. UTB (supra) [cited by the Respondent] that –
“A careful perusal of Section 31(1) of the Arbitration and Conciliation Act – – shows that a person seeking to enforce an arbitral award should apply to the Court. The Section does not specify what type of application is to be made to the Court. I agree – – that the Motion on Notice brought by the Respondent to enforce the arbitral award was sufficient and accords with the letter and spirit of the Section. Had the Act wanted an application to be made by Originating Summons, it would have stated so. This is so because where the words of a statute are clear and unambiguous – – the Court must give the words their ordinary meaning”.
Evidently the Law applicable in Lagos State wanted the Application to be made by Originating Motion, and it expressly stated so in the Application Rules 2009, wherein it spelt out that “arbitration applications” means “any application to a Court under the Lagos State Arbitration Lew” and that it includes an application “to recognize and enforce an award”. It specifically stated in rule 2(1) that-
“Except where sub-rule 2 of this rule applies AN ARBITRATION APPLICATION SHALL BE STARTED BY THE ISSUE OF AN ORIGINATING MOTION”.
And in rule 7(1) that –
“An application to enforce an award or an interim measure of protection in the same manner as a judgment or Order SHALL BE MADE BY ORIGINATING MOTION”.
So, an application brought under the Act may be made by Motion on Notice, while a similar application under the Law must be made by Originating Motion.
The question staring us in the face is – which one is relevant to this case? To answer it, we must remember that this is an arbitral matter; the terrain is different and the lights along its path are like no other. A good starting point, in my view, is to consider the import of Section 2 of the Law, which provides –
“From the commencement of this Law, all arbitration within the State shall be governed by the provisions of this Law except where the parties have expressly agreed that another Arbitration Law shall apply.”
The above provision connotes that the parties to arbitration can agree to the arbitration law that will apply and arbitration being what it is, it makes sense because arbitration is a subject area that can be said to be “without borders”.
In this case, the parties are not contesting the arbitration clause inserted in the LPOs dated 14/5/09 and 15/5/09, wherein it was clearly written that –
“This clause should be deemed to be a submission to arbitration within the meaning of the law from time enforced in Nigeria”.
The Law came into effect on 18/5/09, and the Appellant’s Motion on Notice dated 3/3/10 to stay proceedings pending arbitration was brought pursuant to “Sections 4 & 5 of the Arbitration and Conciliation Act – – Section 6 of the Lagos State Arbitration Law 2009, Order 39 rule 1 & Order 44 rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2004 – -“. The Respondent did not oppose the Application for stay, and the lower Court noted as follows –
“Order as prayed. Case adjourned to 04/10/10 for further directions”.
At this point, Emeka Ngige & Co. wrote the letter/Notice of Arbitration dated 5/1/10 to the President of the Chamber of Commerce, which is clearly headed-

“IN THE MATTER OF AN INTENDED ARBITRATION BETWEEN MALLINSON & PARTNERS LIMITED AND STABILINI VISINONI LIMITED

AND

IN THE MATTER OF THE ARBITRATION AND CONCILIATION ACT, CAP A18 LAWS OF THE FEDERATION 2004”.

They referred the President to the arbitral clause, and proposed that its office –
“Nominate an Arbitrator and that the Rules of Arbitration as contained in the Arbitration and Conciliation Act Cap, A18 LFN 2004 shall apply”.
The Arbitral Tribunal has its own Rules to abide by, and under Paragraph 11 headed – Applicable Law, the Arbitrator stated as follows in the Final Award –
“In the absence of express choice of law by the parties, the Tribunal turns to the Lagos Chamber Arbitration Center Rule, this being an institutional arbitration under its rule. Articles 33(1) of the Rules states thus –
“The Arbitral Tribunal shall apply the law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the Arbitral Tribunal shall apply the law determined by the conflict of law rules within which it considers applicable”.
Article 33(3) provides that –
“In all cases, the Arbitral Tribunal shall decide in accordance with the terms of the contract – – – applicable to the Contract”.
Consequent upon the above provisions and failing parties’ express choice of law to govern the substance of the contract, the Tribunal becomes the determiner and has the responsibility to choose the applicable law as I have right here. I therefore come to the conclusion that and I choose the Arbitration and Conciliation Act 1988, this being the arbitration law in Nigeria. This choice could also be implied from the arbitration clause thus:
“- – The clause should be deemed to be a submission to arbitration – – – – of the law from time enforced in Nigeria”.
And the Arbitration and Conciliation Act 1988 is such law applicable to arbitration in Nigeria”.
So, the Arbitrator chose the Act because it is “the arbitration law in Nigeria” and because the “choice could also be implied from the arbitration clause”.
We can now see a way through the hail of arguments, and looming large in the horizon is the Arbitration and Conciliation Act, which applied in Nigeria, before Lagos State enacted an Arbitration Law “to provide for the resolution of disputes by Arbitration in Lagos State and for connected purposes”. The Law came into effect a few days after the agreement in dispute was entered into, and the Appellant’s position is that the Respondent had to comply with it since it was the Law in place when it filed its Application to enforce the said Award. But this is arbitration that we are talking about; the Law recognizes that parties may agree to submit to another law; arbitral Tribunals are also enjoined to apply the law designated by parties as applicable to the substance of a dispute; and it is settled that parties are bound by the very terms of their agreement.
Arbitration is a unique method of dispute resolution, and it is never the case that the terms of arbitration agreement is unilaterally altered unless the parties decide to so do, Thus, the Courts cannot vary, import or contradict the terms, rules and law agreed upon to determine their arbitration proceedings.

In this case, having already agreed to be bound by the law enforced in Nigeria, which is the Arbitration and Conciliation Act, the subsequent promulgation of the Arbitration Law of Lagos State, has no bearing on the pre-agreed clause on arbitration entered into by the parties. Thus, the said Act is the applicable law, and the Appellant’s vehement arguments to the contrary cannot be sustained.
However, in case I am wrong on that score, there are more arguments in the basket from which to resolve the issue from another angle. For instance, the Respondent argued that it’s Motion on Notice was an Application brought in a pending suit, and so, it was not an originating process commencing a suit.
The Respondent had filed Suit No. LD/134/2010 before the parties went to arbitration, and bearing in mind that an arbitral Award extinguishes any right of action in respect of the dispute, the question is whether its Application to enforce the said Award was filed in a pending suit, or framed another way, whether the Court that ordered the arbitration can enforce the arbitral Award, and the answer is yes – see Kano State Urban Development Board V. Fanz Const. Co. Ltd. (1990) 4 NWLR (Pt.142) 1 SC where the Supreme Court held –
“The exercise of the power to stay proceedings does not in any way affect the validity of the exercise of the power to refuse an application to set aside the arbitration award or to grant leave for its enforcement”.
See also Shell Trustees V. Imani & Sons Ltd. (supra) cited by the Respondent, wherein the Respondent filed the Application in the same Court that ordered arbitration but with a different suit number. The Appellant objected on the Ground that being an originating process, it was neither served personally nor were the provisions of the Sheriff and Civil Process Act – – – complied with.
The trial Court dismissed the Preliminary Objection and ordered that the Award be made the Judgment of the Court. On appeal, this Court held thus –
“The Application truly bore two numbers – – – its, however, common knowledge that the second number merely relates to the identity of the application in connection with a preceding suit bearing the first number. In that event, I must hold that the process filed on the 6th April, 1998 by which the Respondent sought that the arbitral award be recognized and enforced is not an originating process under Section 31 of the Arbitration and Conciliation Act that would require personal service under order 12 Rule 2 of the High Court of Federal Capitol Territory, Abuja (Civil Procedure) Rules. It is merely an application in a pending proceeding, which may be served on the Respondent through its Counsel, who had previously undertaken in writing to accept service of process”.
In both cases – K.S.U.D.B. V. Fanz Const. Co. Ltd. (supra/ and Shell Trustees V. Imani & Sons Ltd, (supra) there was an order for stay pending arbitration; the parties submitted to arbitration whereupon an Award was made; and one of them sought to enforce the Award in the same Court that ordered arbitration. The first case – K.S.U.D.B. V. Fanz Const. Co. Ltd. (supra), does not state how an application for the enforcement of the Award is made. Its decision is simply to the effect that the Court that ordered that parties resort to arbitration can also entertain an application for purposes of enforcing the arbitral award.
The decision in Shell Trustees V. Imani & Sons Ltd, (supra) is that whilst a party can bring an application before the same Court for the enforcement of an Award relative to the same suit, the application could carry a different suit number because the application for enforcement is a fresh one for purposes of enforcing the Award but cannot qualify as an originating process because it is relative to the preceding suit in the same Court.

Applying these basic principles to this case, there is no question that the Respondent is right. Even if the Law of Lagos State applied in this case, its Application to enforce the arbitral Award by way of Motion on Notice was brought in the pending Suit No. LD/134/2010 and it was, therefore, not an originating process in the true sense of that term.
I must also add that what is good for the goose is good for the gander.
The Appellant should not be heard to complain since it filed its Application to stay proceedings pending arbitration at the lower Court by Motion on Notice, when the Lagos State Law was already in operation. It found it convenient to invoke and rely on the provisions of the Arbitration and Conciliation Act then, however, as the Respondent said “after failing at the Arbitration proceedings, it turned round to argue about non-applicability of the Federal Act”. Even so, the Appellant has argued that the Respondent’s failure to comply with the said procedure is an incurable defect that affects the jurisdiction of the Court.
In urging us not to allow it use technicality to defeat the ends of justice, the Respondent cited F.G.N. V. Zebbra Energy Ltd. (2002) 12 S.C, (Pt. II) 136 wherein the Supreme Court, per Belgore JSC (as he then was) held as follows –
“Procedure is a guide to smoothen passage of suit; to direct the parties what to do and to guide the court to arrive at the justice of a case. The question of initiating the proceedings by Originating Summons was never a big issue at the trial court; neither was it at Court of Appeal and in this Court. This Court shall never be shackled by procedure; case is not made for procedure, it is the other way round. Once the procedure employed has brought into focus the issues the parties contest and there is no miscarriage of justice it will not matter that the procedure is not the correct one. Getting to the destination is what is important; it does not matter the means used. This Court will certainly not disturb a clear case of justice between the parties by suo motu raising for the parties procedural abnormalities in Courts below when the parties never seriously raised exception to that procedure. It is my view that it does not matter whether by writ of summons or by originating summons a writ was initiated, what is relevant in a case of this nature is the question of justice of the case”.
But the Appellant also cited its own authorities in its Reply brief – Udeagba V. Omegara (supra) and Nwankwo V. Yar’adua (supra), wherein it was held that –
Where a statute lays down a procedure for doing anything no other method is to be employed in doing the thing. In other words, where a statute or legislation provides for a particular method of performing a duty regulated by statute, that method and no other must be adopted. – – the Practice Directions provides clearly that motions and/or objections on points of law can only be taken and determined by the Tribunal or Court at its pre-hearing session which the Court of Appeal failed to do”.
Yes, it is well settled law that Rules of Court must be obeyed – see Olaniyi V. Oyewole (2005) 5 NWLR (Pt.1079) 140, where the Court added as follows –
“If there is non-compliance with the Rules, it must be explained and if not, unless it is of minimal kind, no indulgence of the Court can be granted”.
Then again, “Rules of Court are rules of procedure. They do not by themselves and of themselves alone confer jurisdiction” – per Oputa, JSC in Clement V. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39 at 50. See also Afribank V. Akwara (2006) 5 NWLR (Pt.974) 619 SC, where Ogbuagu, JSC, clearly explained that –
“Rules of Court are not as sacrosanct as statutory provisions of law. A rule of Court cannot confer jurisdiction. It only regulates the practice of the Court in the exercise of a power derived aliunde (from another source or from elsewhere) and does not confer power – – Rules of Court, cannot override, statutory provisions of the law”.

Thus, the issue of whether the Application to enforce the arbitral Award ought to have come by Originating Motion and not Motion on Notice is not such a big deal that it would affect the jurisdiction of the lower Court to entertain same. This issue is, therefore, of no moment and it is resolved against the Appellant.
Having resolved that the applicable law is the Act it, therefore, follows that the lower Court was right to dismiss the Appellant’s Preliminary Objection and the issue now is whether the Arbitrator is guilty of misconduct as alleged. Section 30(1) of the said Arbitration Act provides as follows –
“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”.
The word “misconduct” is not defined in the Act but it is defined in Black’s Law Dictionary, 9th Ed., as “a dereliction of duty; unlawful or improper behavior”. The Act does not also say what would amount to misconduct by an arbitrator, however, in the case of Taylor Woodrow (Nig.) Ltd. V. S.E. GMBH (1993) 4 NWLR (Pt.286) 127, the Supreme Court adopted “what constitutes misconduct and lists examples of acts that have been held to amount to misconduct” as set out in Paragraph 622 of the Halsbury’s Laws of England, which are as follows –
“WHAT CONSTITUTES MISCONDUCT – – The expression is of wide import, for an arbitrator’s award, unless set aside, entitles the beneficiary to call on the executive power of the state to enforce it, and it is the Court’s function to ensure that the executive power of the Court is not abused. It is accordingly misconduct for an arbitrator to fail to comply with the terms, express or implied, of the arbitration agreement. But even if the arbitrator fully complies with those terms, he will be guilty of misconduct if he makes an award which on grounds of public policy ought not to be enforced. Much confusion has been caused by the fact that the expression ‘misconduct’ is used to describe both these quite separate grounds for setting aside an award, and it is not wholly clear in some of the decided cases on which of these two grounds the expression includes on the one hand that which is misconduct by any standard, such as being bribed or corrupted, and on the other hand mere “technical” misconduct, such as making o mere mistake as to the scope of the authority conferred by the agreement of reference. That does not mean that every irregularity of procedure amounts to misconduct. But misconduct occurs, for example:
(i) If the arbitrator or umpire fails to decide all the matters which were referred to him;
(ii) If by his award the arbitrator or umpire purports to decide matters which have not in fact been included in the agreement of reference; for example, where the arbitrator construed the lease (wrongly) instead of determining the rental and the value of buildings to be maintained on the land; or where the award contains unauthorized directions to the parties; or where he decided as to the parties’ rights, not under the contract upon which the arbitration had proceeded, but under another contract;
(iii) if the award is inconsistent, or is ambiguous; or even if there is some mistake of fact, although in that case the mistake must be either admitted or at least be clear beyond any reasonable doubt;
(iv) if there has been irregularity in the proceedings, as – -where the arbitrator failed to give the parties notice of the time and place of meeting, or where the agreement required the evidence to be taken orally and the arbitrator received affidavits, or where the arbitrators refused to hear the evidence of a material witness, or where the examination of witnesses was taken out of the parties’ hands, or where the arbitrators failed to have foreign documents translated or where, the reference being to two or more arbitrators, they did not act together, or where the umpire, after hearing evidence from both arbitrators received further evidence from one without informing or hearing the other, or where the umpire attended the deliberations of the appeal board reviewing his award;
(v) if the arbitrator or umpire has failed to act fairly towards both parties, as, for example, by hearing one party but refusing to hear the other, or by deciding in default of defence without clear warning, or by taking instructions from or taking with one party in the absence of the other, or by talking evidence in the absence of one party or both parties, or by failing to give a party the opportunity of considering the other party’s evidence, or by using knowledge he has acquired in a different capacity in such a way as to influence his decision or the course of the proceedings, or by making his award without hearing witnesses whom he has promised to hear, or by deciding the case on a point not put to the parties;
(vi) if the arbitrator or umpire refuses to state a special case himself or allow an opportunity of applying to the court for an order directing the statement of a special case;
(vii) If the arbitrator or umpire delegates any part of his authority, whether to a stranger or to one of the parties, or even to a co-arbitrator.
(viii) If the arbitrator or umpire accepts the hospitality of one of the parties, being hospitality offered with the intention of influencing his decision;
(ix) If the arbitrator or umpire acquires an interest in the subject matter of the reference, or is otherwise an interested party;
(x) If the arbitrator or umpire takes a bribe from either party.
In each of the foregoing cases the arbitrator or umpire has misconducted himself, and the Court has power to set aside his award”.

See also Savoia Ltd. V. Sonubi (2000) 7 SC (Pt. 1) 41, where the Supreme Court listed the following as misconduct on the part of an Arbitrator –
1) Where the arbitrator fails to comply with the terms, express or implied, of the arbitration agreement;
2) Where, even if the arbitrator complies with the terms of the arbitration agreement, the arbitrator makes an award which on grounds of public policy ought not to be enforced;
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 amounts to misconduct;
5) Where the arbitrator or umpire fails 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 fairly towards both parties – –
(a) By hearing one party but refusing to hear the other; or
(b) By deciding the case on a point not put by the parties”
In the case, the lower Court held as follows as regards the issue of misconduct –
“- – I find that the Defendant did have adequate notice of the commencement of the Arbitral proceedings – – – it is very clear that the Defendant was duly informed of the fact that a sole Arbitrator had been appointed to arbitrate on the matter – – by a letter from the Respondent dated 19/5/2010 issued by the appointing authority. The Defendant clearly had adequate knowledge of the commencement of the arbitral proceedings and Mrs. Balogun was appointed as provided for by the agreement between the parties. I am satisfied that the enrolled order of Court was served on the Registrar of the Arbitrator on 2/9/10 by Exhibit “V” – – which was not in compliance with the order of Court that same should be served within 48 hours of the date the said order was made which was on 24/8/10. It follows therefore that this order ought to have been served on the Arbitrator on or before the 27/8/10 but the documents before me show that it was not served on the aforementioned Registrar till 2/9/10. The said service therefore was late and there was nothing to stop the Arbitrator from delivering the award made in that proceeding”.
The Appellant’s contention is that the lower Court erred when it held that the conduct of the Arbitrator leading to the rendering of the Arbitral Award did not amount to misconduct. It submitted that it is settled law that an award would be set aside on grounds that the arbitration or award was improperly procured and that the arbitrator has misconducted himself or the proceedings, citing Aye-Fenus Ent. Ltd. V. Saipem (2009) All FWLR (Pt, 460) 767, A-G; Baker Marine v. Danos & Curole Marina Contractors (2001) 7 NWLR (Pt.712) 337, Foli V. Akese (1930) WACA 1; that what constitutes misconduct is an objective question of fact and not a subjective one, citing Triana V. UTB (supra); and that the following facts demonstrate that the Arbitrator misconducted herself –
i) On 24/8/2010, the Lower Court heard and granted [its] pending interim application dated 18/8/2010 and restrained the Arbitrator from taking further steps in the arbitral proceedings pending the determination of [its] interlocutory application dated 18/8/2010 seeking to remove the Arbitrator. The Court fixed the interlocutory motion for hearing on 2/9/2010.
ii) On 1/9/2010 at 1.25pm, the Arbitrator was served through her office with the Interim Order (which had become spent) and [its] interlocutory application dated 18/8/2010 seeking to remove the Arbitrator. A copy of the Enrolled Order was also served on the Registrar of the Arbitration on 2/9/2010. The Arbitrator was made clearly aware (from the Order) that the interlocutory application was scheduled for hearing on 2/9/2010.
iii) The Arbitrator informed [parties] by letter dated 31/8/2010 – – of the adjournment of the rendering of the Arbitral Award from 2/9/2010 to 16/9/2010. However, the Arbitrator subsequently (and in mysterious circumstances) delivered the Award on 2/9/2010,
Furthermore, that the Lower Court’s decision that “there was nothing to stop the Arbitrator from delivering the award”, is factually incorrect since the proof of service shows that she was served on 1/9/2010; and that having established she was aware on 1/9/2010 that its Interlocutory Application would be heard by the lower Court on 2/9/2010, her subsequent rendering of the Award on 2/9/2010 was clearly mala fide, deliberately pre-emptive of the decision of the Lower Court on the application and brazenly subversive of the judicial process.
Furthermore, that the pendency of the Application is enough to stop the Arbitrator from continuing with the arbitral proceedings not to mention rendering the arbitral Award, citing FATB V. Ezegbu (1993) 6 NWLR (Pt. 297) 1; that the primacy of the rule of law as the foundation of our legal system and administration of justice cannot be over-emphasized, citing MILAD, Lagos V. Ojukwu (1986) 1 NWLR (Pt. 18) 550; that her conduct is disrespectful of the authority of the Court that was yet to determine the said Application; that the Arbitrator’s clear intention was to foist a fait accompli on the lower Court; and that the option open to a Court of law when faced with this sort of daring conduct was considered in Ezegbu v. FATB (supra), where this Court stated –
“- – What then is the remedy of the Court where it finds itself in this situation. I have said earlier that any Court found in the same situation would frown against it. I also add that the Court must in addition take positive and mandatory act in order to instill judicial discipline in the erring party and in order to maintain, restore and preserve the dignity and respect of the court. This includes the undoing of what has been done by the erring party irrespective of what the Court will decide on the merits, when the case is properly heard.” The cases of Obi V. INEC (2007) 11 NWLR (Pt.1046) 565 and Adeogun V. Fashogbon (2008) 17 NWLR (Pt.1115) 149 also cited.
The Respondent, however, contends that the Arbitrator was not served with a live Court Order stopping her from proceeding with the proceedings or with a Motion on Notice seeking to remove her as the arbitrator. It also argued that –
“The Appellant, typical of its dilatory tactics could not even comply with the order it procured during Court vacation. It blatantly breached the Court’s order by not ensuring that the order and the Motion on Notice which were directed to be served within 48 hours from the 24/8/2010 were served as directed. – – – In effect as at 27/8/2010, the Appellant has no more authority of Court to serve the said processes after the time directed by the Court, – – The said processes were served on the LCCI on 2/9/2010 (presumably as the Registrar of the sole Arbitrator) the same day the matter was to come up before Ayo J. The processes meant for the unnamed “sole arbitrator” was purportedly served on 1/9/2010. The proof of service which was supposed to be filed in Court latest by 26/8/2010 was filed on 1/9/2010″.
Furthermore, that the processes were not served within 48 hours as ordered and the Appellant did not apply for extension of time nor was any granted by the Court before purporting to serve the said process outside the limited time.
It also submitted that the Appellant did not comply with Order 44 Rule 4 and Order 39 rules 1(1) & 2(3) of the High Court (Civil Procedure) Rules, and since it did not avail itself of the said provisions of the Rules of the lower Court, the processes purportedly served are brutum fulmens of no legal consequence, citing R-Benkay Nig. Ltd. V. Cadbury Nig. Ltd. (2012) 9 NWLR (PT 1306) 596; that in effect, the order purportedly served on the unnamed “sole Arbitrator” is not in existence since it has no potency and or validity as it had abated even before it was purportedly served on persons that are not parties to the suit; that a motion served or purportedly served at about 1.25pm on 2/9/2010 after the Award had been rendered, cannot be competent to restrain the Arbitrator; that she was not a party in the suit at the lower Court and the principle stated in Ezegbu V. FATB relied on by the Appellant is inapplicable to the facts herein, and for the said principle to apply, it must be shown that the order was served and that the person served was aware of the order or processes filed in Court, which it has failed to establish, and so its submissions are liable to be rejected.
It also argued that the issue of the Arbitrator proceeding to render the Award despite being served with the Appellant’s Application is being raised for the first time in this appeal, having not been raised or canvassed at the lower Court; that at the lower Court, the Appellant only raised the issue of service of the Court Order, which it described as “valid and subsisting” on the Arbitrator; and that the service of the motion on notice was never raised and arguments were not joined on the issue, so the argument should be discountenanced as no leave was sought or obtained to raise and argue this fresh point on appeal. We were urged not to disturb the lower Court’s decision; and to hold that –
“The arbitrator was not served with any extant order of Court stopping her from proceeding with the arbitral proceedings and or an interlocutory application – – seeking to remove her as the sole arbitrator so as to make her guilty of misconduct. The processes purportedly served had abated before the purported service”.
Once again, the Appellant joined issues with the Respondent in its Reply Brief, wherein it submitted that the Respondent never denied that the Arbitrator had knowledge of the order but consistently contended that the order had lapsed at the time it was served and, therefore, there was nothing stopping her from rendering the award, which is also the Judgment of the lower Court; and that –
“In determining the validity of the Respondent’s argument, we urge your Lordships to pause for a minute and consider the purpose the ex-parte order in question was meant to serve. It was to restrain the sole arbitrator from rendering the award pending the hearing of the motion on notice slated for 2/9/2010. The Respondent has copiously quoted the order and has lingered so much on the fact that it was stated on the order that it was to last for seven days and that it was also to be served within two days of its being issued. If we take the position of the Respondent in interpreting the order, it then means that even if the order was served on the sole arbitrator within two days as ordered, as at 1/9/2010, the order would have lapsed and the sole arbitrator would still be at liberty to render the award. In other words, the objective behind the order would not have been realized still. – – Orders of Court are not to be so construed as they do not work that way. Orders of court are not made in vain but are made to achieve specific objectives. It is in the light of the above that orders of court are made to be valid and binding until they are set aside”.
It also referred us to AG Anambra State v. AG Fed (2005) 9 NWLR (Pt. 931) 18, where the Supreme Court per Katsina-Alu, JSC (as he then was) stated that –
“An order or a judgment of Court, no matter the fundamental vice that afflicts it, remains legally binding and valid until set aside by due process of law.”
And argued that the Respondent’s position that the order had lapsed when it was served cannot stand in the face of this pronouncement by the apex Court; and that despite the Respondent’s perceived fundamental vice of lapse that affected the order, the law is that it is still valid and subsisting until set aside, at least, to the extent that the Motion on Notice was yet to be heard, citing Idris v. ANPP (2008) 8 NWLR (Pt. 1088) 1, U.T.B. V. Koleoso (2006) 18 NWLR (Pt.1010) 1; Ndigwe V. Nwude (1999) 11 NWLR (Pt. 626) 374; In Re: Diamond Bank Ltd. (2002) 17 NWLR (Pt.795) 170; Ijebu Ode L.G. V. Adedeji Balogun Co. Ltd. (1991) 1 NWLR (Pt.166) 136; UBA V. Onagoruwa (1996) 3 NWLR (Pt.439) 709 and Komolafe V. Omole (1993) 1 NWLR (Pt.258) 213.
It reproduced the decision of this Court in Idris V. ANPP (supra)”in extension to assist the Court in doing justice to this case” and further submitted as follows –
“The facts and circumstances of the case are materially similar with those of the instant case. In the above case, the interim order of injunction was obtained on 16/2/2007. The election it sought to restrain INEC from excluding the Applicant from participating in was conducted on 14/4/2007, about two months after the order of interim injunction was obtained. The INEC unilaterally interpreted the order to have lapsed by effluxion of time after 14 days as stated on the face of the order and went ahead with the elections on 14/4/2007 – – This Court – – deprecated in strong words INEC’s flagrant disobedience of the said order which it held was still valid and subsisting. In the instant case, the order was made on 18/8/2010 and it sought to restrain the sole arbitrator from rendering the arbitral award on 2/9/2010. The Respondent and the sole arbitrator unilaterally interpreted the order to have lapsed after seven days and therefore proceeded with rendering the award”.
It also cited Babatunde V. Olatunji (2000) 2 NWLR (Pt.546) 13 SC, on how long a Court Order lasts, and submitted that the ex-parte order was still valid and subsisting on 2/9/2010 when the award was rendered and the Arbitrator was aware of it but only chose to interpret it that it was void or had lapsed; that proceeding with the proceedings in the face of a restraining order of Court, which she knew, or ought to know, was still valid and subsisting, is not just an affront to the authority of the Court but also amounts to gross misconduct; that it is a wrong understanding of the law to argue as the Respondent did that her action is justified because she was not a party to the suit, so, the decision in Ezegbu V. FATB (supra) did not apply to her; that the law does not allow anyone to do anything capable of undermining the powers of the Court even if they are not parties; that Orders of Court are binding on those who are directly affected by it, citing UBA V. Jargaba (2007) 43 WRN 1 at 19; and finally that –
“The fact that the order was specifically sought against the sole Arbitrator is an indication that she was made subject to the litigation process and as such was bound by it. But she chose to treat the court with utmost levity by flouting its orders and with impunity. We implore your Lordships, in the spirit of the principle enunciated in the Idris case above not to allow or encourage such a brazen attitude which “would lead to a chaotic and an anarchy infested society” but to nullify the contemptuous act of the sole Arbitrator by allowing this appeal”.
Here we go again, finding our way through the maze fashioned by the parties, and once again, we must start from somewhere. The Appellant says that the Arbitrator is guilty of misconduct because she went ahead to render the Award even though she was well aware of the existence of a Court Order to stop her. The Respondent, echoing the lower Court’s decision, says that at the time she rendered the Award, the Order had lapsed, and there was nothing to stop her. In rebutting that line of argument, and to assist us in doing justice to this case, the Appellant quoted extensively from the Judgment in Idris V. ANPP (supra). ,
In that case, Idris V. ANPP (supra), ANPP nominated a candidate for the Governorship election in Kogi State, and apprehensive that INEC was about to exclude him from contesting the election, he sought and obtained an ex parte Order of injunction from the High Court, restraining INEC from excluding him. A day to the election, INEC directed its officers to delete the name and logo of ANPP and his name and picture from the ballot papers, and it was carried out. The Tribunal found in their favour. The Appellant appealed, and in dismissing the appeal, this Court held as follows on the issue of the said ex parte Order –
“In my view, the Tribunal properly dealt with this issue when it held that as long as that order is not vacated nor set aside, it remained valid and subsisting for all intents and purposes. Having regard to the foregoing, it appears that the problem in this matter was perpetrated by INEC. If it had simply obeyed the order of injunction made by the Kogi State High Court restraining it from disqualifying the 1st Respondent and 2nd Petitioner from contesting the election conducted on 14/14/2007, there would have been no problem now. INEC is not above law. In fact, its disobedience and arrogance is now the misfortune of the 1st Appellant, Ibrahim Idris, who in the present circumstance is a victim.” [Per Omokri, JCA]
“The INEC lacked the authority to decide that the High Court of Kogi State either lacked jurisdiction to give the order or to interpret to all and sundry that the order had self-destroyed by effluxion of time. Such a brazen attitude if allowed or encouraged would lead to a chaotic and an anarchy infested society. Fortunately, our judicial system has no patience or indulgence for such. I rely on Komolafe v. Omole (1993) 1 NWLR (Pt. 268) 213 at 227.” [Per Peter-Odili, JCA (as he then was)]
The Appellant insists that the facts and circumstances of the aforesaid case are materially similar with those in this case, but I find that very hard to swallow. Apart from the first being an election matter and the other an arbitral matter; there is nothing materially similar about the ex parte orders of injunction made by the respective Courts in the two cases. In this case, there would be nothing to vacate or set aside an appeal as the lower Court made a definite order that “this Interim Order of Injunction shall be for seven (7) days only from today, after which it shall abate”. Abate in law means “to end: become null and void” – see Dictionary.Com. Thus, at the expiration of the 7 days from 24/8/2010, the said Order had become null and void; it was spent, and had no life left.
The Appellant argued, based on the situation in Idris V. ANPP (supra) that the Respondent and the Arbitrator “unilaterally interpreted the order to have lapsed after 7 days and therefore proceeded with rendering the award”. But that is preposterous; the situation in this case is nothing like in that case. The Appellant obtained the Order during the Court’s annual vacation and was, more or less, asked to run with it because the Order had a life span of 7 days. It was also specified that the Arbitrator must be served with the ex parte Order and Motion on Notice “within 48 hours – – and proofs of service filed in Court”. The Arbitrator was not served within 48 hours as ordered by the Court and by the time the Order got to the arbitral Tribunal it was DOA – Dead on Arrival.
To paint a clearer picture, let us imagine a housewife, who sends her boy to get a piece of live coal from her neighbor so she can light up some firewood; on his way back home, the boy joins his friends to play football on the street, and before long, the fire had gone out of it – of what use would it be to her? The Appellant was not mindful of the conditions attached to the Order, and it had lapsed before the Arbitrator was served, so, there was nothing to stop her.
Be that as it may, the Appellant’s also contends that the Arbitrator had knowledge of the Order and her subsequent rendering of the Award on 2/9/10 “was clearly mala fide, deliberately pre-emptive of the decision of the lower Court on the Application, and brazenly subversive of the judicial process”. Again, I will repeat that we are dealing with arbitration and an arbitral Tribunal is not a Court of law, with all the legal niceties and rigmaroles that go with it. Even if it is; Courts of law have now shifted away from the technical approach to justice, and pursues, instead, the course of substantial justice – see Famfa Oil Ltd. V. A.G. Fed. (2003) 18 NWLR (Pt. 852) 453, wherein Iguh, JSC, stated –
“Courts of law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not by impeding it with mere technical procedural irregularities that occasion no miscarriage of justice”.
Where is the miscarriage of justice here? Even if the Arbitrator knew about the Order before she rendered the said Award, how does that impinge on the Award itself? In what way has the Appellant suffered any injustice there-from?
The Appellant’s reason for seeking the said Order is that it was not given the opportunity of a hearing. It also prayed the lower Court to set aside the Award because it was not given notice of the appointment of the arbitration, etc., and was not given a fair opportunity to present its case. The lower Court found as a fact that it was given adequate notice of the commencement of the proceedings, and was duly informed that the Arbitrator had been appointed. In addition, the letters/processes, which I reproduced earlier in this Judgment, show in very clear terms that the Appellant’s grouse had no legs to stand on. It had submitted to the jurisdiction of the arbitral Tribunal when it retracted its objection to the nomination of the Arbitrator, and despite notices/directions served on it through counsel as indicated by the Arbitrator, it is the Appellant that failed or refused to participate in the proceedings at the arbitral Tribunal.
In one of the processes, the said Tribunal warned that it would proceed with one-party arbitration in the event of lack of response from the Appellant. The Appellant failed to respond, and the Arbitrator subsequently rendered the FINAL AWARD (BEING DEFAULT BY THE RESPONDENT), wherein she awarded and directed that it should pay the Respondent a total sum of N43,200,000 which is the exact same sum that the Appellant offered to pay the Respondent, in a proposal to settle during the course of proceedings at the arbitral Tribunal. The Arbitrator awarded the exact sum it has not denied owing the Respondent, and it has not shown how the date it was rendered affected the arbitral Award. The Appellant merely complained that the Arbitrator changed the date from 16/9/2010 back to the earlier date of 2/9/2010 “in mysterious circumstances”.
What the mysterious circumstances are and how it affected the Award, the Appellant did not say, therefore, the lower Court was right to hold that the Appellant based its “Application to set aside the Award on mere suppositions, which ore not backed by any hard facts at all”. Its decision cannot be faulted.
However, the Appellant is challenging its discretion on the issue of costs, which is the essence of its Issue 4; the gist thereof is that it erred on that score. It submitted that as a general rule, costs follow events, and a successful party is entitled to costs as indemnification for expenses incurred; that an award of costs, like general damages, falls within the discretionary powers of the Court which must be exercised judicially and judiciously based on settled principles, citing UBN Ltd V. Nwaokolo (1995) 6 NWLR (Pt, 400) 127, Adenaiye V. Governor-in-Council (1962) 1 NSCC 205, GFK Invest. Nig. Ltd. V. NITEL Plc. (2009) 15 NWLR (Pt.1164) 344; and that if we do agree with its contentions in Issues 1 – 3 above, there would be no support for the lower Court’s exercise of discretion to award said costs in the sum of N100,000.00 to the Respondent.
Well, the said Issues 1 – 3 were resolved against it, thus, the Respondent’s task vis-a-vis Issue 4 is made easier. However, the Respondent had this to say –
“We invite Your Lordships to toke into account the expenses the Respondent has been incurring since 2009 when it fell into the hands of serial debtors as exemplified by the Appellant. In the circumstances therefore, we urge Your Lordships not to disturb the exercise of discretion by the lower Court in the award of costs in favour of the Respondent as same have not been shown to be excessive or punitive. Alternatively, we urge that the costs awarded by the Court below should be increased to a higher sum to meet the justice of this case”.
Both parties are ad idem about the position of the law – costs follow the events, and the award or refusal of costs is at the discretion of the Court -see NBCI V. Alfijir (Mining) Nig. Ltd. (1999) 14 NWLR (Pt. 638) 176 SC, where it was held –
“The award of costs or refusal to award costs is at the discretion of the Court, subject to the only qualification that the Court’s discretion must be seen to have been judicially and judiciously exercised in this regard. – – Assessment of the amount allowed in terms of an award of costs is the responsibility of the Court – – -And when the Court in exercise of its discretion orders the cost payable and does so without being capricious i.e. in the sense that it is ordered in honest exercise of his discretion, it will not be questioned”. [Per Achike, JSC]
Still, costs are not designed or meant to be a bonus to the successful party, and they are not imposed as punitive measures on the losing party either – see UBN V. Nwaokolo (supra) cited by both parties, wherein Onu, JSC, explained that –
“While it is true that a successful party should not be denied costs unless for good reasons, a defeated party ought not to be damnified in costs for no cause or on flimsy, capricious and unfounded grounds. – – Costs, it must be borne in mind, are not awarded as punitive measures”.
The Appellant contends that there is no verifiable basis for the costs awarded by the lower Court; that it did not indicate what it considered in its estimate of the sum awarded neither was any reason given for the award of the said sum.
In arguing to the contrary, the Respondent referred to Order 49 rule 1(1) and 1(2) of the Lagos State High Court (Civil Procedure) Rules, which says –
(1) In fixing the amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses to which he has been necessarily put – — – as well as compensated for his time and effort in coming to Court.
(2) When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the Judge at the time of – – Judgment or making the order.

The bottom line is that the Court has an absolute and unfettered discretion to award costs or not to award them; what is paramount is to take into account all circumstances of the case – see Rockshell Int’l Ltd. V. B.Q.S. Ltd, (supra).
It is also a well-established principle that an appellate Court, does not as a matter of course, interfere with the exercise of discretion by a trial Court, unless it is NOT exercised in accordance to law or it was exercised in a perverse manner – see Osakwe V. FGN (2004) 14 NWLR (Pt.893) 305 Likita V. C.O.P. (2002) 11 NWLR (Pt. 777) 145, Atiku V. The State (2002) 4 NWLR (Pt. 757) 265.
In this case, the Appellant’s contention is totally baseless and tasteless. This is a case where it has put the Respondent through all manners of hassles. The Appellant collected the iron rods from the Respondent and refused to pay; when the Respondent went to Court, it insisted they must go to Arbitration; when the Arbitrator was appointed, it objected to her though later retracted it; and it refused to attend proceedings at the Arbitral Tribunal but turned round to complain that it was not given any opportunity to be heard at the Tribunal. Suffice it to say that I refuse to interfere with the costs awarded, and so hold. This Issue also lacks merit, and it is, therefore, resolved against the Appellant.
With all the Issues resolved against the Appellant, the end result is that this appeal lacks merit in its entirety. It therefore fails and is hereby dismissed.
The Respondent is awarded costs assessed at N50,000.

YARGATA NIMPAR, J.C.A.: I had the privilege of reading in advance the draft copy of the judgment prepared by my learned brother, Augie, JCA and he has captured the essence of the appeal and issues raised therein.
An Arbitration agreement generally exists as a clause in a contract agreement and is usually treated separately regardless of what the contract is all about. It is a special clause not affected by the main contract though part of the contract agreement. An Arbitration clause usually names its applicable law and this is one of the attractiveness of arbitration in commercial transactions. It is all about the right to make a choice. Parties are at liberty to choose applicable law and the arbitration clause in this appeal states thus:
“All disputes which may arise out of the order shall be referred to an Arbitrator nominate by the President to the time being of the Lagos State Chamber of Commerce. This clause should be deemed to be a submission to Arbitration within the meaning of the law from time to time enforced in Nigeria”.
This was a deliberate choice made by the parties to submit to arbitration and they chose the applicable law also. Having submitted to arbitration the Appellant has surrendered its right to have disputes between them resolved by other mediums of conflict resolution such as the court. Upon the appointment of an Arbitrator and submitting to the Arbitrators jurisdiction, the appellant accepted the appointment and was given every opportunity by way of notices to appear before the Arbitrator, the appellant was given a chance to be heard and cannot turn round to complain except upon an award and as provided by law that is only on the ground of misconduct. The judgment dwelt extensively on what amounts to misconduct. All the grounds raised by the appellant are nothing but chasing after the wind. In addition to all the grounds enumerated, there must also be an error on the face of the award which must be material, see ARBICO NIG LTD V N.M.T. LTD (2002) 15 NWLR (Pt 789) 466 where the court held as follows:
“To assail the award, I have to emphasize, the error must be material. On the authorities, courts have viewed the question of error on the face of the award from the ground that when parties have referred a question to a judge of their choice, instead of an ordinary court of law they must be bound by the decision whether the conclusions be right or wrong i.e. for better for worse unless it appears on the face of the award clearly that the arbitrator has decided contrary to law i.e in violation of some principles of law”.
See also the cases of ENVIRONMENTAL DEV CONSTRUCTION & anor V UMARA ASSOCIATES NIGERIA (200) LPELR-68299 (CA) and FOLI V AKASE (1930) 1 WACA 1 at 2.
Talking about principles of law, fair hearing as a principle is simply giving opportunity to be heard. The choice of whether to use the opportunity to present your case or to decline to do so is all within the right of the party and its choice. An opportunity was given in this case and the appellant chose not to appear. It cannot be heard of it to shout denial of fair hearing as if it is a magic wand. The appellant exercised its right to make a choice and choices have consequences. This appeal lacks merit, I also dismiss it and abide by the orders made in the lead judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the privilege of reading in brief the judgment delivered by my learned brother I agree the reasons and conclusion reached but just to add that:
The grouse of the Appellant is that the arbitrator refused to hear them or decided in default of defence of failing to give them the opportunity of considering the other party’s evidence and termed this a misconduct on the path of the arbitrator urged that the award be set aside.
It was the Appellant who first raised the issue of the arbitration clause in the agreement thus invoking the right which was allowed.
The Respondent wrote to the President of the chamber of Commerce asking for nomination of an arbitrator dated 5/5/10 and that the Rules of Arbitration and Conciliation Act cap A18 LFN 2004 shall apply.
The Appellant initially complained about the choice of arbitrator but later retracted it unconditionally by letter of 27/5/10 and followed it up with a letter dated 7/6/10 that “counsel personally appraised of the matter has prior engagement”.
On the 19/7/10 the appellant sent a proposal of settlement to the respondent to pay the debt within 9 days after first instalment, based on which the arbitrator adjourned the matter to 5/8/10 to enable them react. The Appellant upon receiving the counter offer refused to respond. The matter was adjourned for hearing and a notice of hearing issued, it was dated 9/8/10 it had a warning “Please take note that the Tribunal will proceed with a one party arbitration on the adjourned date in the event of lack of response from the Respondent”.
The Appellant was served, with the above notice as found by the lower court, the Appellant did nothing and said nothing, he infact went to sleep so to speak. He was notified that the proceedings had been concluded on the Respondents’ evidence and adjourned for rendering of the award, the Appellant then woke up from his slumber and ran to the Lagos State High Court by way of an exparte motion asking for a restraining order against the arbitrator.
The Appellant obtained an order albeit, with strict conditions-a validity for 7 days after which it shall abate and a caveat that the order must be served on the arbitrator within 48hours of its grant i.e from 24/8/10.
It was an order with a time limit, and the Appellant was aware that time was of essence, he who comes to equity must do equity but alas the Appellant only served the Arbitrator on 2/9/10 by which time both the order had lapsed by 7 days and service was late by 9 days.
The summary is that the Appellant delayed and did not comply with the condition precedent to restrain the arbitrator to sustain the order.

What an Arbitrator should do is provided for in Default of a party. In section (21)c of the Arbitration and Conciliation Decree 1988 which is now Cap A18 laws of Federal Republic of Nigeria 2004 it states that “unless otherwise agreed parties if without showing sufficient cause;
(a)
(b)
(c) any party fails to appear at hearing or to produce document by evidence, the arbitral tribunal may continue the proceedings and make the award.
In “The Nigerian Arbitration Law in focus” by Ephriam Akpata at Pg.64 – 65 where he comments that:
“The default of the respondent to file its statement of defense will not result in the termination of the proceedings. The tribunal can proceed to make an award based on the evidence (documentary and/oral proffered by the clamant. Besides in arbitral proceedings there is nothing like “default judgment” that can be obtained in court proceedings……….if a party has had due notice, time and place of haring and he fails to appear and the arbitral tribunal is of the view that his absence is deliberate and with a view to defeat the cause of justice and purpose of the arbitration, the tribunal should communicate to him the time and place of next hearing and that it intends proceed with the hearing on the adjourned date. The tribunal should proceed ex parte with the hearing on the adjourned date fixed for hearing if the party still absents himself without showing good cause for his absence”.
In this case the appellant was notified of the hearing date, he wrote a letter of excuse at the first hearing but did not show up on the next neither did he write to explain his absence and he still did not deem it fit to ask for time to put in his side nor did he show up at the award.
In law & Practice on Arbitration by Olakunle Orojo page 207-208 it was stated that the no Court had power of supervision over an arbitration, its for parties to apply, as the arbitral tribunal having taken charge of the proceedings has power to ensure fair hearing and should take such steps as will achieve this.

In this case the arbitration fully acted within her powers, and proceeded to made the award.
In Bill Const V Imam Ltd 28 NSCQR 2006 Vol 1 page 1 at page 12, Onnoghen JSC held:
“……..Its settled law that where a party is given ample opportunity to present his case within the confines of the law, but he chooses not to utilize same, he cannot later be heard to complain that his right to fair hearing has been breached, what the court is enjoined by the provisions of section 33 of 1999 of the constitutions to create a conducive atmosphere for the parties to exercise their right to fair hearing by holding the scales of justice firmly without fear or favor or affection or ill will.
Having provided the required atmosphere the duty on a court stops there it becomes the duty of choice of party seeking to enforce his civil right and obligations to utilize the opportunity so created. He cannot be compelled to do so……..Where he chooses not to present his case he cannot be heard…”
The contention by the appellant on the alleged misconduct of the arbitrator has therefore not been established.

In CELTEL Nigeria BV v ECONET WIRELESS Limited 7 ORS CA/895/2012 (unreported) delivered on 13th FEBRUARY 2014, IKYEGH JCA in defining arbitration held at Page 55 thus”
“Arbitral proceedings are therefore treated with a broad liberal/open mind leaning on the side of dynamism, commercial sense, latitude and common sense. In other word……. Suffice it to say that the object of arbitral tribunal is to ensure that at the end of the day the arbitrators reached a practical sensible just and fair decision on the face of it or that at first sight not beyond or beneath the face of the award made by it.”
The above statement is apt in this case, there is nothing in the conduct or on the face of the award to compel this court set aside the award.
For the above reasons and more contained in the lead judgment I too dismiss the appeal and abide orders on cost.

Appearances

Mobolaji Kuti, Esq., with Yakubu Galadima, Esq.
O. A. Uka, Esq., Miss S. O. Salu, and
Miss O. B. AjibonwuFor Appellant

AND

O. A. Egwuatu, Esq., with Miss U. Nwadialo, and K. Ojukwu, Esq.For Respondent