DUNLOP NIGERIA PLC. (NOW DN TYRE & RUBBER PLC.) v. GASLINK NIGERIA LIMITED In The Court of Appeal of Nigeria
(2018)LCN/12384(CA)
On Friday, the 9th day of February, 2018
CA/L/266/11
RATIO
ARBITRATION: RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARD
“The primary purpose of an application made under the provisions of Section 32 for the Court to refuse to hold the parties bound by the terms of an arbitral award and to refuse to give effect to it by way of execution, is to have the award rendered legally not binding, nugatory and of no practical effect or use as between the parties. Put concisely and precisely, an application under Section 32 is to have an arbitral award set aside by or nullified by a Court. The section only provides the right to a party as stated earlier, to apply to the Court to refuse to recognize and enforce an arbitral award the legal consequence of which is to set aside the said award. A party to an arbitral award who ls aggrieved by and desires or wishes that the award be set aside and rendered legally not binding as between the parties, by a Court of law, has to approach the Court by means of an application under Section 29 of the ACA Ac” PER MOHAMMED LAWAL GARBA, J.C.A.
ARBITRATION: LIMITATION OF TIME TO SET ASIDE AN ARBITRAL AWARD
“The provisions are limitation of time provisions for the purpose of making a application to set aside an arbitral award and for the application to be valid and competent, it must be made or brought in compliance with the provisions, otherwise it would be statute barred. As seen in the case of Araka vs. Ejeugwu (supra) an application made outside the period of three (3) months stipulated in the provisions notwithstanding the section of the Act under which it was brought, would be incompetent and the Court would lack the competence to entertain it for being statute barred. In the case of Bill Constr. Co. Ltd v. Imani & Sons Ltd. (2006) 19 NWLR (1013) 1, (2006) 11-12,90, Akintan, JSC restated the law when he said: “Application to set aside an arbitral award where not made within three months stipulated by law cannot be entertained by the Court.” See also Home Dev. Ltd. v. Scancila Constr. Co. Ltd. (1994) 8 NWLR (362) 252.” PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
DUNLOP NIGERIA PLC.
(NOW DN TYRE & RUBBER PLC.) Appellant(s)
AND
GASLINK NIGERIA LIMITED Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
By an originating motion dated 10th of May, 2010 in Suit No. ID/411M/2010, before the Lagos State High Court, the Respondent prayed for leave to enforce the Arbitral Award dated 15th of March, 2010 as between it and the Appellant in respect of their dispute on a Gas sale and purchase agreement entered by them in 2005. In reaction to the motion, the Appellant filed a Written Address dated 19th of October 2010 and a motion dated 19th of November, 2010 praying that the High Court refuse to recognize and enforce the Arbitral Award. The two motions by the Respondent and Appellant were heard together and in a judgment delivered on the 17th of December, 2010, the High Court recognized and ordered the enforcement of the Arbitral Award, except the relief (4) and relief (5) as it relates to relief (4).
Dissatisfied with the judgement, the Appellant brought this appeal by the Notice and Grounds of Appeal dated the 17th of March, 2011 on eight (8) grounds against it.
In the Appellant’s brief filed on the 8th of March, 2011, two (2) issues are said to fall for determination in the appeal as follows: –
“1. Whether the learned Trial Judge was right when she failed to refuse the recognition and enforcement of the Arbitral Award, having regard to the fact that the Arbitral Tribunal exceeded its jurisdiction thereby rendering the entire Award a nullity. (Distilled from Ground 2 of the Notice of Appeal).
2. Whether the Learned Trial Judge was right when she denied refusal of recognition and enforcement of the award of the sum of N28, 059,874.84 allegedly billed and between the months of September and December 2008. (Ground 8 of the Notice of Appeal.)”
These issues are adopted in the Respondent’s brief filed on 31st of August, 2017 and a further issue in the following terms was raised: –
“Whether or not the Court below had the jurisdiction to entertain the Appellant’s Originating motion dated 19th November, 2010.”
As can be observed, the issues formulated in the Appellant’s brief are indicated to have distilled from grounds 2 and 8 of the Appellant’s Notice of Appeal while there is no indication by the Respondent’s Counsel, from which of the grounds of the appeal, since there is no cross appeal here or a Respondent’s notice, the additional issue was raised. The requirement of diligent of brief writing in the appellate Courts is that counsel should indicate from which grounds of an appeal every issue/s submitted for determination in an appeal, was/were distilled. Anukwua vs. Ohia (1985) 5 NWLR (40)150; Akinlagun vs Oshoboja (2006) ALL FWLR (325) 53; NPA Vs. B.P. Pte Limited (2012) 18 NWLR (1333) 454. The law is also trite now, that any issue that does not arise from or is not related to any grounds of an appeal is of no moment, irrelevant to and so incompetent for consideration in an appeal. Salzgitter Stahl Gmbh vs. Aridi Industries Nigeria Limited (1996) 7 NWLR (459) 192; Urhobo vs. Oteri (1999) 2 NWLR (589) 147; Arowolo vs. Akapo (2003) 8 NWLR (823) 451.
I am aware that the Respondent’s Counsel has filed a separate appeal No. CA/L/266A/11 against the same judgement by the High Court and the issue raised above is one of the issues, in fact the first issue, canvassed in the said appeal. Be that as it may, being an issue which questions the jurisdiction of the High Court to entertain the named motion which was decided in the judgement appealed against, it can be raised in the brief of argument by learned counsel, regardless of the grounds of appeal. NNPC vs. Orhlowasele (2013) 13 NWLR (1371) 2l1 @ 214: Hamzat vs. Sanni (2015) 5 NWLR (1453) 486.
In line with established practice, I would consider the issue raised by the Respondent’s counsel on the jurisdiction of the High Court to entertain the motion dated 19th of November, 2010.
The Appellant filed an Appellant’s Reply brief on the 9th of November, 2017 in reaction to the Respondent’s brief in which he responded to the issue.
Before considering arguments on the issue raised by the Respondent, I have observed that the learned counsel for the parties have needlessly disputed whether or not the issues formulated in the Appellant’s brief were distilled from the grounds indicated therein or from all the other grounds on the Notice of Appeal. The primary purpose of the requirement that counsel should indicate from which of the grounds of an appeal issues raised in their brief of argument are derived, is to narrow and specifically identify the grounds from which such issues were distilled so as to readily show if they are valid and competent issues derived from competent grounds of the appeal. With the clear and express indication of the grounds of the appeal from which the two (2) issues raised in the Appellant’s brief, are distilled, the issues cannot reasonably be said to have been formulated from the other grounds not indicated in the issues. Beyond argument, the law still remains that grounds of appeal from which no issue was distilled or formulated (or indicated to have been distilled) are deemed abandoned. Dieli v. Iwuro (1996) 4 NWLR (445) 622; Ngilari v. Mothercat Limited (1999) 13 NWLR (636) 626; David West v. Odusote (2003) 12 NWLR (835) 682.
Respondent’s Arguments:
It is submitted that by virtue of the provisions of Section 29 of the Arbitration and Conciliation Act (ACA), the motion was incompetent for being filed outside the three (3) months period after the Arbitral Award was made and that the High Court erred in holding that it was brought pursuant to Section 32 of the Act and so competent. Araka vs. Ejeugwu (1999) 15 NWLR (589) 684 @ 701-2, and Ras Palgazi Construction Company Limited vs. FCDA (2001) LPELR-2941 (SC) were cited and the Court is urged to strike out the motion for being incompetent and grant the Respondent leave to enforce the entire Award.
Appellant’s Submissions:
It is contended that the case of Araka vs. Ejeugwu (supra) was decided on Section 29 and not 32 of the Arbitration & Conciliation Act (ACA) and that the sections are mutually exclusive even though deal with setting aside an arbitral award. It is then said that the Court is not bound to follow the decision in Araka vs. Ejeugwu and reliance was placed for the submission on NJC V. Agumagu (2015) 10 NWLR (1467) 368 @ 421-2 and C.N Ekwuogor Investment Nigeria Limited vs. Asco Investment Limited (2011) 13 NWLR (1265) 565 @ 587. The Court is urged to hold that the motion dated 19th of November, 2010 was competent and the High Court was right to have assumed jurisdiction over it.
The Respondent’s Originating motion dated and filed on 19th of November, 2010 before the High Court, prayed for following reliefs: –
“AN ORDER refusing to recognize and refusing to enforce the Arbitral Award signed on 15th of March, 2010 and delivered by the Arbitral Tribunal consisting of C.A. Candile Joshnson, SAN, FCLrb (Chairman), Ogunyinka, AClArb (member) and Jumoke Akinjide, FClArb (member), in the matter of an arbitration between Gaslink Nigeria Limited and DN Tyre & Rubber Plc. (formerly Dunlop Nigeria Plc.) and attached as Exhibit F to the affidavit supporting this motion.
And for such further order(s) as this Honourable Court may deem fit to make in the circumstance of the case.”
The grounds on which the reliefs were predicated are as follows: –
1) Tribunal gives award without any evidence led
The Tribunal committed an act which shocks the judicial conscience by giving an award in a proceeding, wherein no evidence had been led in the arbitral proceeding, despite having specifically ordered parties to lead and file evidence supporting their respective points of cases.
2) Tribunal’s award contradicts and exceeds terms of dispute submitted for Arbitration.
3) Award contrary to public policy and all notions of justice: Tribunal suo motu manufactures basis for award of monetary damages.
The Arbitral Tribunal acted contrary to all know norms of justice and law when it ordered the payment of N241,326,007.36 by DN Tyre & Rubber Plc to Gaslink Nigeria Limited being the alleged amount due from DN Tyre & Rubber Plc from 1st September, 2008 to 3lst October 2009.
4) Arbitral Tribunal’s duty to abide by public police and legal principle Arbitral Tribunal owed, and failed to discharge to parties before it a duty to abide by public policy and legal principle leading to a travesty of justice:
5) That the Award referred to shocks the judicial conscience, is a travesty of law and justice, exceeded the terms of reference in the Notice of Arbitration dated 29th July 2009, and displayed utter and complete lack of appreciation of the subject matter of the Arbitration and thereby caused substantial miscarriage of justice in the hearing and determination of same.”
The motion was brought pursuant to Section 32 of the Act which provides that: –
“Any of the parties to an arbitration agreement may request the Court to refuse recognition or enforcement of the award.”
The language and express purport of the provision are very clear and unambiguous and so they do not require any interpretation, but be ascribed their plain and ordinary meaning. Nnonye vs. Anyichie (2005) 2 NWLR (910) 623: Abubakar vs. Yar’Adua (2008) 19 NWLR (1120). The provisions simply provide any of the parties to an arbitration award a discretionary right to request, pray for or seek from a Court of law, an order refusing or declining to accord judicial recognition or enforcement of the arbitral award between them. By dint of the provisions, a party to an arbitral agreement is vested with and possesses the unfettered right to approach a Court of law to request that the arbitration award between the parties, should not be recognized and enforced by the Court. The provisions merely provide a right of access to a Court of law for the sole purpose of requesting for or seeking an order that would refuse to recognize and/or enforce an arbitral award the parties thereto, to any one of them.
Section 31 of the ACA provides for the recognition and enforcement of an arbitral award by a Court of law as between the parties thereto. The provisions are as follows: –
“1. An arbitral (award shall be recognized as binding and subject to this section and Section 32 of this Act, shall, upon application in writing to the Court, be enforced by the Court.
2. The party relying on an award or applying for its enforcement shall supply –
a. the duly authenticated original award or a duly certified copy thereof;
b. the original arbitration agreement or a duly certified copy thereof;
3. An award may, by leave of the Court or a judge, be enforced in the same manner as a judgement or order to the same effect.”
It is clear therefore, that the right vested or conferred by the provisions of Section 32 only arises to be exercised when the Court is approached under the provisions of Section 31(1) above for the recognition and enforcement of an arbitral agreement by one of the parties thereto. Until the Court was invited, under the provisions of Section 31(1), the right vested or conferred on any of the parties to the arbitral agreement under the provisions of Section 32 would be premature or would not arise and cannot properly be exercised by a party.
The practical essence of the application under the provisions of Section 31(1) for recognition and enforcement of an arbitral award agreement by a Court of law is that the award be held to be legally binding on the parties and be judicially executed or given effect to against the parties. The recognition is to hold the parties to the award, bound by its terms and be made to abide by it. The enforcement is to give effect to the terms of the award as between and against the parties thereto by means of or through the judicial process of execution.
The primary purpose of an application made under the provisions of Section 32 for the Court to refuse to hold the parties bound by the terms of an arbitral award and to refuse to give effect to it by way of execution, is to have the award rendered legally not binding, nugatory and of no practical effect or use as between the parties. Put concisely and precisely, an application under Section 32 is to have an arbitral award set aside by or nullified by a Court. The section only provides the right to a party as stated earlier, to apply to the Court to refuse to recognize and enforce an arbitral award the legal consequence of which is to set aside the said award. A party to an arbitral award who ls aggrieved by and desires or wishes that the award be set aside and rendered legally not binding as between the parties, by a Court of law, has to approach the Court by means of an application under Section 29 of the ACA Act which provides that: –
“1. A party who is aggrieved by an arbitral award may within three months.
a. From the date of the award; or
b. In a case falling within Section 28 of this Act from the date the request for additional award is disposed to by the arbitral Tribunal, by way of an application for setting aside, request the Court to set aside the award in accordance with Subsection (2) of this Section.
2. The Court may set aside an arbitral award if the party making the application furnishes proof that the award contains decisions on matters which are beyond the scope of the submission to arbitration so however that if the decision on matters submitted for arbitration can be separated from those not submitted, only part of the award which contains decisions on matters not submitted may be set aside.”
It can easily be observed that the provisions of Section 29 are complementary to the provisions of Section 32 in that they only provide the time limit and the discretion to set aside an award on proof that it contains decisions on matters beyond the scope of the submission to the arbitration. The provisions of the two (2) sections are therefore neither in conflict nor mutually exclusive of each other as erroneously argued by the learned counsel for the Appellant.
As can be discerned from the grounds upon which the prayer for the High Court to refuse the recognition and enforcement of the award in question was premised, the fulcrum of the application was that the award contains decisions which exceeded the terms of the dispute submitted for arbitration and on which allegedly, there was no evidence. So primarily, the grounds upon which the motion dated the 19th of November, 2010 was filed for the High Court to refuse recognition and enforcement of the award in question were those stated in Section 29(2) for which an award may be set aside, if proved. For the purposeful interpretation of a statute, the law requires that the sections of the statute be read and considered in community, wholistically or together and not some or individual sections in isolation of the others. Ibrahim vs. Barde (1996) 9 NWLR (474) 573,: Nwankwo vs. Abazie (2003) 12 NWLR (843) 381; State vs. Olatunji (2003) 14 NWLR (839) 135: Ugwu vs. Ararume (2007) 12 NWLR (1048) 367. In this con, the provisions of the ACA together, especially sections which deal with common subject, are to be considered harmoniously in the interpretation of the general object of the sections.
Consequently, even though the motion filed on 19th of November, 2010 was said to have been filed pursuant to Section 32, since the basis of the relief sought therein is the ground set out in Section 29(2), the provision of Sub-section (1) of the Section (29) on limitation of time within which to make the application, applies to it.
The fact that the application was indicated to have been made under Section 32 and not under Section 29, does not mean that the latter section does not apply to it. A similar situation arose in the case of Araka vs. Ejeugwu (supra) also reported in (2000) 12 SC (Pt. 1) 99, in respect of an application made under Section 30 of the ACA to set aside an award made by an Arbitrator on dispute in respect of rent. The argument which was upheld by the High Court and later, by a majority decision of this Court on appeal, was that the provisions of Section 29(1) did not apply to the application merely because it was made under Section 30. On a further appeal to the Apex Court the argument was rejected and it was held that the provisions of Section 29(1) applied to the application because it was made outside the period of time stipulated therein, it was statute barred and incompetent. In the lead judgement, Katsina Alu, JSC stated that: –
“Indeed there is only one period of limitation prescribed under the Act. Section 29 of the Act, which I have already reproduced provides that a party who is aggrieved by an arbitral award may within three months from the date of the award apply to the Court to set aside the award. It is pertinent to point out here that the application, the subject-matter of this appeal, was for the setting aside of the arbitral award. Section 30 of the Act only sets out circumstances under which an application to set aside an arbitral award there under may be brought. This is why, I think it is absurd to suggest that Section 30 should stipulate a time of its own for bringing the application for which Section 29(1) has already provided a time frame… In the present case, although the award was made on 8th of September, 1994, the motion to set aside was brought on 25th April, 1995. Consequently, since the motion on notice to set aside the award was filed long after three months in violation of Section 29(1) of the Arbitration and Conciliation Act, it was incompetent and the trial High Court had no jurisdiction to entertain it.”
lguh, JSC, in his concurring decision, emphasis that: –
“l think the prescribed time within to make an application to set aside an arbitral award under the Arbitration and Conciliation Act, 1988 is three months from the date of the award irrespective of under what section of that Act the application is brought.”
I should reiterate that though the motion filed on the 19th of November, 2010 was brought pursuant to Section 32, the primarily relief sought thereon was premised on grounds for setting aside the award as stated under Section 29(2) and legal consequence of the relief sought, if granted, was to set aside the award. Section 29(1) in the circumstances applied to the motion filed by the Appellant on the 19th November, 2010 for the High Court to refuse to recognize and enforce the arbitral award in question. It may be recalled, that the provisions of Section 29(1) provide that a party who is aggrieved by an arbitral award may, by an application for setting aside, request, a Court to set aside the award within three (3)months from the date of the award. The application to set aside an arbitral award is therefore required to be made or brought before a Court within the period of three (3) months stipulated and limited in the provisions, from the date of the award.
The provisions are limitation of time provisions for the purpose of making a application to set aside an arbitral award and for the application to be valid and competent, it must be made or brought in compliance with the provisions, otherwise it would be statute barred. As seen in the case of Araka vs. Ejeugwu (supra) an application made outside the period of three (3) months stipulated in the provisions notwithstanding the section of the Act under which it was brought, would be incompetent and the Court would lack the competence to entertain it for being statute barred. In the case of Bill Constr. Co. Ltd v. Imani & Sons Ltd. (2006) 19 NWLR (1013) 1, (2006) 11-12,90, Akintan, JSC restated the law when he said:
“Application to set aside an arbitral award where not made within three months stipulated by law cannot be entertained by the Court.” See also Home Dev. Ltd. v. Scancila Constr. Co. Ltd. (1994) 8 NWLR (362) 252.
It is not in dispute that the award in respect of which the Appellant’s motion was filed on 19th November, 2010, was made on the 15th of March, 2010 and clearly the motion was brought or filed before the High Court outside and after the expiration of the period of three (3) months limited in the provisions of Section 29(1) for it to have been filed or brought. The motion was undoubtedly statute barred, incompetent and the High Court lacked the requisite jurisdiction to have adjudicated over it.
In the result, I find merit in the arguments of the Respondent on the issue of the objection and resolve it in its favour.
In the absence of the requisite jurisdiction to entertain and adjudicate over the motion dated the 19th November, 2010, the proceedings and decision by the High Court in respect thereof, are a nullity, void and of legal consequence. Ukwu vs. Bunge (1997) 8 NWLR (518) 527. Ohai vs. Akpoemonye (1999) 1 NWLR (588) 521, SPDCN Limited v. Isaiah (2001) 11 NWLR (723) 168. As a consequence, the motion filed on the 19th November, 2010 is struck out.
This finding on the objection by the Respondent would appear to have taken out the bottom or foundation of the appeal, the grounds of which are predicated on the motion which was statute barred and incompetent.
However, bearing in mind that the decision of the Court is subject to a further appeal and the exhortation that the Court even in situations such in this appeal, should make pronouncement on the other issues raised in the appeal, I would consider the other issues.
Issue One:
” Whether the learned Trial Judge was right when she failed to refuse the recognition and enforcement of the Arbitral Award, having regard to the fact that the Arbitral Tribunal exceeded its jurisdiction thereby rendering the entire Award a nullity.”(Distilled from Ground 2 of the Notice of Appeal).
Appellant’s Submissions:
It is submitted that the Arbitration Tribunal (Tribunal hereafter) exceeded its jurisdiction in the award made as it contained decisions on claims not submitted for arbitration by the parties and so rendered the entire award, a nullity. According to counsel, the notice of arbitration and appointment of Arbitrators issued by the Respondent had limited and circumscribed the scope of the dispute to be considered by the Tribunal, to:
“Whether or not the purported declaration of force majeure by your company (the Appellant) vide its letter of 1st September 2008 is valid.”
It is then contended that the Respondent extended and enlarge its claims far beyond the scope of the dispute in the statement of claim wherein claimed the following reliefs:
(i) A Declaration that the reason given by the Respondent for its purported declaration of Force Majeure does not qualify as a Force Majeure event as contemplated by the GSPA and accordingly, the purported declaration of Force Majeure is invalid and of no effect.
(ii) A Declaration that, as Force Majeure was not validly declared, the Respondent’s refusal and or omission to pay for the Take or pay quantity on a monthly basis constitutes a breach of the GSPA,.
(iii) A Declaration that the Respondent’s purported termination of the GSPA vide its letter of 1st September 2008 in invalid and of no effect and accordingly, that the Respondent is bound to honour all its obligation under the GSPA until the same is validly terminated.
(iv) An Order directing the Respondent to pay the Claimant the sum of N240,448,791.46 (Two Hundred and Forty Million, Four Hundred and Forty Eight Naira, Seven Hundred and Ninety One Naira Forty Six Kobo) being the cumulative amount due from the Respondent in respect of the Take or pay Quantity for the period 1st September 2008 to 31st October 2009.
(v) Interest on the sum claimed in (iv) above at the rate of 2l% (twenty one percent) per annum from the date such sums are due till date they are paid.
(vi) The Claimant solicitors’ fees and other costs incurred by the Claimant with regard to this reference to arbitration.”
Learned counsel argued that the above claims are not within the contemplation of the dispute which was submitted to arbitration and so the Tribunal exceeded its jurisdiction by accepting the statement of claim of the Respondent thereby rendering its proceedings and award, a nullity. S.S.U.D.B. vs. Fanz Construction Limited (1991) 21 NSCC (Pt 2) 399 @ 419 was cited and relied on for the augment and the Court is urged to hold that for exceeding its jurisdiction in making the award, the High Court ought to have refused to recognize and enforce it.
The Court is also prayed to resolve the issue in Appellant’s favour.
Respondent’s Submission:
Relying on Section 12(3) of the ACA and Article 21(3) of the Arbitration Rules, it is submitted that the Appellant’s complaint on the Tribunal jurisdiction ought to have been raised during the arbitral proceeding and not for the first time before the High Court. It is pointed out that the Appellant had filed a statement of Defence to the Respondent’s Statement of Claim, dated 22nd December, 2009 and extensively joined issues on the claims, but did not complain about the Tribunal exceeding its authority or jurisdiction. That the appropriate time to have raised the objection on the Tribunal exceeding its jurisdiction was when the Appellant received the Respondent’s Statement of Claim and in the statement of defence. NNPC vs. Klifo Nigeria Limited (2011) 10 NWLR (1255) 209 @ 229 was referred to and it is said that where an arbitral Tribunal exceeded its jurisdiction in making an award, Section 29 of the ACA provides a party with the right to challenge it as provided therein, which the Appellant did not comply with.
The Court is urged to hold that the objection or complaint that the Tribunal exceeded the scope of its authority is incompetent, for being raised for the first time before the High Court and to resolve the issue in Respondent’s favour.
In the Appellant’s Reply brief, it is submitted that a Court or Tribunal is limited to the determination of the dispute submitted to it by the parties and is not allowed by law to make a case outside that placed before it by the parties. Otu vs. Ani (2013) LPER-21405 (CA) and Ojo vs. Adejobi (1978) 3 SC, 65, (1978) LPELR-2381 were cited and it is argued that the law is settled that where or when a Court acted without jurisdiction on the authority of Aremo ll vs. Adekanye (2004) LPELR-544 (1985) and Sanni vs. Ayinde (2014) LPELR-72546 (CA), the proceedings are liable to be challenged and set aside at any stage of the case. The Appellant was said to be right to have raised the issue of the Tribunal exceeding its jurisdiction at the High Court being an issue of jurisdiction which can be raised at any stage.
As a foundation, I would state that Arbitration proceedings are special quasi-judicial proceedings which are specifically provided for, regulated and governed by the Arbitration and Conciliation Act as well as the Arbitration Rules provided for in the schedule to the Act. The proceedings are not the same as the usual judicial proceedings in the determination of disputes which are also governed and regulated by the different Rules of procedure and practice enacted for such Courts. Section 15(1) of the ACA provides that:
“The arbitral proceedings shall be in accordance with the procedure contained in the Arbitration Rules set out in the First Schedule to this Act.'”
This Court, per Ikyegh JCA, in the lead judgment in the case of Celtel Nigeria BV vs. Econet Wireless Limited (2014) LPELR-22430(CA) @ 60 explained, succinctly, the nature of arbitral proceedings before an Arbitration Tribunal as follows:
“An Arbitral Tribunal is by nature an informal adjudicatory body lacking the sophistication and technical know-how of Judges of regular Courts. Arbitral Tribunals are also not bogged down in the procedural trappings of regular Courts. Arbitral proceedings are therefore treated with a broad, liberal/open mind leaning on the side of dynamism, commercial sense, latitude and common sense.”
In this con, the general principles of law laid down and applicable to and in proceedings of the regular Courts in the process of judicial adjudication of causes or matters before them do not ordinarily apply to such quasi judicial arbitral proceedings which the parties by their free and voluntary choice, opted to resort to in the settlement of their disputes rather than the judicial/adjudication of the regular Courts.
For instance, the general position of the law that the issue of jurisdiction of a Court can be raised at any stage of the proceedings of a case, even for the first time at the appellate stage, is not applicable to arbitral proceedings before an arbitral Tribunal because the Act, in Section 12(3) has provided the stage at which a challenge to the jurisdiction of the arbitral Tribunal is to or may be raised by a party. The provisions are that;
(a) does not have jurisdiction may be raised not later than the time of submission of the points of defence and a party is not precluded from raising such plea by reason that he has appointed or particulated in the appointment of an arbitrator;
(b) is exceeding the scope of its authority may, be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the proceedings.”
Then Article 21(3) of the Arbitration Rules provides that:
“A plea that the arbitral Tribunal does not have jurisdiction shall be raised not later in the statement of defence or, with respect to a counter-claim, in the reply to the counter claim.”
ln the case of Adejobi vs. State (2011) 6 MJSC (Pt 1) 101 @ 119 it was held that:
“It is trite that a question of law and jurisdiction can be raised at any time in the proceedings, but it is not a free for all procedure. Where a statute under which an issue or matter is to be raised has provided a procedure for raising such issues or matter, that procedure, and no other must be followed.” (underline provided), The apex Court per Galadima, JSC referred to the case ot Jov vs. Dom (1999) 9 NWLR (620) 538 @ 547 for the position.
The law therefore is that although in the regular Courts, the issue of jurisdiction can be raised at all stages of the proceedings of a case; from the trial to the final appellate, where a statute prescribed the stage at which the issue is to be raised in the course of the proceedings of a case, the issue cannot be validly and properly raised at any other stage other than the one stipulated in the statute. The general principle applies only where there was no statutory provision as to the particular or specific stage of the proceedings of a case at which the issue of jurisdiction is to be raised by a party.
It is in line with the position of the law that the apex Court per Rhodes Vivour, JSC, in the case of NNPC vs. Klifco Nigeria Limited (supra) also reported in (2011) 4 MJSC, 142, (11) 2 CLRN, 101 @ 111, while dealing with the issue of the application of the general principle of law that the issue of jurisdiction can be raised at any stage of the proceedings of a case, to proceedings before an arbitral Tribunal, poignantly held that :
“This position of the law applicable in the usual way or in regular Courts does not apply to arbitral proceedings. Section 12(3) of the Arbitration and Conciliation Act governs the issue of jurisdiction in arbitral proceedings. It states that:…
My Lords, the interpretation of the above and the position of the issue of jurisdiction in arbitral proceedings is that jurisdiction to hear and determine a dispute is raised before the arbitral panel within the time stipulated in the arbitral Act. It can only be raised after the stipulated period if the arbitral panel finds reasons for the delay justified. An appeal on the issue of jurisdiction can be entertained by the High Court provided there was no submission to jurisdiction. A party who did not raise the issue of jurisdiction before the arbitral panel is foreclosed from raising it for the first time in the High Court. The reason being that the foundation of jurisdiction in an arbitration is submission.”
See also Ita vs. Idiok (1923) 4 NLR. 100. Commerce Ass. Ltd. w. Alli (supra). This weighty statement by the Apex Court on the extant position of the law on the issue has completely and effectively answered the argument by the Appellant that it could raise the issue of the jurisdiction of the arbitral Tribunal before the High Court or even at this Court. As espoused by the apex Court, a party to an arbitral proceeding must comply with the provisions of Section 12(3) of the ACA, and Article 21(3) of the Arbitral Rules, if it wishes to raise the issue or challenge the jurisdiction of the Tribunal over the dispute or issues therein or hold its peace forever because it would be foreclosed from doing so later either in the High Court or on appeal.
I have demonstrated before now, that the primary grounds upon which the Appellant sought that the High Court refuse recognition and enforcement of the arbitral award in the motion filed on 19th November, 2010, were that the Tribunal exceeded its jurisdiction in the proceedings leading to the award.
In the effect, the Appellant’s relief in the said motion was sought on the basis of the issue of lack or excess of jurisdiction of the arbitral Tribunal over issues considered and determined by it in the proceedings before it.
It was based on an issue which the Appellant was by the law, foreclosed from raising before or at the High Court and so that Court was deprived of the necessary judicial power and authority, in the name of jurisdiction, to entertain and adjudicate over it.
For the above reason, the High Court was right to have refused to grant the relief sought by the Appellant in the motion filed on the 19th November, 2010. The issue is resolved against the Appellant.
Issue Two
“Whether the Learned Trial Judge was right when she denied refusal of recognition and enforcement of the award of the sum of N28,059,874.84 allegedly billed and owned between the months of September and December 2008. (Ground 8 of the Notice of Appeal.)”
Appellant Submissions:
Citing U.S.U.D.B. vs. Fanz (supra), it is contended that since the Tribunal found that the Appellant did not deny liability, but only contested the figures of the debt, it ought to have declined jurisdiction over the issue since it could no longer be regarded as a dispute.
It is also the case of the Appellant that since the Tribunal found the that Respondent failed to discharge the evidential burden of producing invoices pleaded by it, there was no basis for the monetary awards made in favour of the Respondent including the sum for the period of 1st September, 2008 to 31 December, 2008. That it was wrong for the Tribunal to have had recourse to the agreement between the parties to come up with its own calculations. Section 133(1) of the Evidence Act, 2011 and cases, including Taju vs. Estate of I.A. Adamu (2015) 13 NWLR (1476) 364 @ 400; Abubakar vs. Waziri (2008) 14 NWLR (1108) 507 @ 534, Oguejiofor vs. Siemens Limited (2008) 2 NWLR (1071) 283 @ 297 and Agip Nigeria Limited vs. Agip Petrolilute (2010) 5 NWLR (l187) 345 @ 413 were cited for the argument that the award for the period of 1st September, 2008 to 31 December, 2008 without evidence of the invoices pleaded, was wrong in law. The case of Hani Akar Enterprise Limited vs. Indo Merchant Bank Limited (2011) 1 NWLR (1228) 302 @ 329 and Section 149 (d) of the Evidence Act were referred to and the Court is urged to resolve the issue in Appellant’s favour.
Respondent’s Submissions:
It is argued that the Appellant, contrary to established principle of practice in formulation of issues, surreptitiously formulated two (2) issues from ground 8 of the Notice of Appeal and the Court is urged, on the authority Bille vs. State (2016) LPELR-40832 (SC) and another case, to strike out the second issue on failure by the Respondent to produce evidence in proof of the monetary award.
Learned counsel then submitted relying on Exfin Shipping (India) Limired Mumbai vs. Tolem Shipping Company Limited Mumbai (2006) EWHC 1090 (Comm), that there was a dispute between the parties since the Appellant who did not deny liability, refused to pay the debt in question for the period of 1st September, 2008 to 31 December, 2008.
In addition, it is contended that the question of the existence of a dispute between the parties was one of fact before the Tribunal and that the law is settled that an arbitral award will not be set aside on the ground that the Tribunal made a wrong finding of fact. Rev. Mob. Alloc & Fisc. Comm. vs. Unit Env. Sciences Ltd. (2010) LPELR-9205(CA) was relied on for the submission and the Court is urged to dismiss the Appellant’s complaint on the point.
Furthermore, it is said, on the authority of Baker Marina Nigeria Limited vs Danos & Curole Marina Contr. Inc (2001) 7 NWLR (712) 337@ 354-5, that lack of evidence to support a finding by an arbitral Tribunal is not a ground for setting its award aside. The cases cited by the Appellant on burden of proof are said to be inapplicable to the case since they are on arbitration proceedings and that the provisions of the Evidence Act are not applicable to such proceedings by virtue of Section 256(1)(a) of the Act. The Court is urged to discountenance the cases and the complaint of the Appellant under the issue.
It would appear that, once more, the Appellant challenged the award of the Tribunal on the basis of its want of jurisdiction to make the award in the absence of a dispute on the liability of the sum claimed, between the parties. The challenge continues here under this issue and on the further point of absence of evidence (pleaded invoices) to prove the monetary award made for the period of 1st September, 2008 to 31st December, 2008.
The arguments of learned counsel under this issue are on the alleged absence of a dispute before the Tribunal and its lack of jurisdiction to make the award of money from the period of 1st September, 2008 to 31st December, 2008 and alleged error of law on want of evidence in proof of the said award. In this regard, both the High Court and learned counsel for the Appellant failed to advert to the role of the High Court over and in respect of an award made by an arbitration Tribunal.
In arbitration proceedings, the general principle is that facts finding by an Arbitrator is not a ground for setting aside an award on the ground that it is wrong nor on the ground that there is no evidence on which the facts could be found because that would be mere error of law. In the case of Baker Marine Nigeria Limited vs. Chevron Nigeria Limited (2000) 3 NWLR (681) 939 @ 410. It was held that an application to set aside an arbitral award:
“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 law as understood by them and 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.”
See also Stabilini Visinoni Limited vs. Mallison & Partners Limited (2014) LPELR-23090 (CA). From the recognized role of a Court in respect of arbitral proceedings and award, its duty is to see whether or not the proceedings and the award were in line with the facts submitted by the Parties to the arbitral Tribunal for arbitration and the principle of applicable law as understood by the Tribunal and not to review the findings on undisputed facts and the application of the law to such facts, which may be either right or wrong. In the case of Commerce Assurance Limited vs. Alli (supra) @ 725 it was stated that;
“The underlying principle is that parties to a dispute have a choice. They may resolve to the normal machinery for administration of justice by going to the regular Courts of the land and have their disputes determine, both as to the fact and to the law by the Courts. Or, they may choose the arbitrator to be the judge between them. lf they take the later course, they cannot, when the award is good on the face of it object to the award on grounds of law or of facts. Smith, L.J. reiterated the principle in Montgomery Jones & Co. v. Liebenthal (1898) 78 L. T. 406 where he stated at P. 408.
“l for my part, have always understood the general rule to be that parties took their arbitrators for better or worse both as the decision of fact and decision of law.”
In the above premises of the law, the High Court erred to have reviewed the arbitral award in respect of the sums awarded by the Tribunal based on the facts submitted to it by the parties whether or not the findings based on those facts were proved as required by the Evidence Act. In the case of Baker Marine Nigeria Limited v. Chevron Nigeria Limited (supra) it was held that:
“The parties to the agreement who had elected to refer to their dispute to arbitration must be taken to have trusted (sic) their fate for good or bad in the discretion of the arbitrators in so far as the arbitrators act in accordance with the agreement and do not misconduct themselves. They are therefore at liberty to make findings of facts and act on such findings. lt is also no ground for setting aside the award to complain simpliciter that the arbitrators fell into erors of law unless such errors appear on the face of the record.
The lower Court was bound to accept the findings of fact and even errors of law which do not appear on the face of the record provided the Arbitrators acted within the agreement of parties.” The case of Gillapece Ass. Ltd. v. Alli (both supra) were referred to.
Proof as required under the Evidence Act is not applicable in arbitral proceedings as provided for in Section 256 (1)(a) of the Act which says that:
“This Act shall apply to all judicial proceedings in or before any Court established in the Federal Republic of Nigeria, but it shall not apply to –
(a) Proceeding be an arbitrator. ”
By these provisions, an arbitral award cannot be set aside on the ground only that there was no sufficient evidence to prove particular items of the award as long as the facts submitted to the arbitrator by the parties were the basis upon which the findings were arrived at to make the award. In the facts submitted to the Tribunal, the Applicant did not deny liability for the debt owed for the period of 1st September, 2008 to 31st December, 2008 and so was deemed to have admitted same. Adeleke v. Anike (2006) 16 NWLR (1004) 131: Alao v. VC. Unilorin (2008) 1 NWLR (1069) 421.
Learned counsel has in fact expressly argued under the issue that the Appellant did not deny liability in respect of the said debt and so there was no dispute between the parties thereon. In the circumstances, there was no requirement of evidence from the Respondent to prove the debt as the law is firmly established that what is admitted requires no proof. Ndukwe v. LPDC (2007) 5 NWLR (1026) 1; Nwuke v UBN Plc (2009) 10 NWLR (1148) 1: Popoola v. Babatunde (2012) 7 NWR (1299) 3-2.
The Tribunal was right to have made resort to the agreement between the parties in order to ascertain the sum/s owed by the Appellant as the admitted debt for the period in question. Absence of evidence in proof of facts submitted to an arbitrator, required under the Evidence Act, is not a ground for setting aside an arbitral award.
In the result, I find no merit in the arguments of the Appellant on the issue and it is resolved against it.
In the final result, for lacking in merit, I would order for the dismissal of the appeal.
Consequently, for being incompetent, in the first instance, the Appellant motion filed on 19th November, 2010 is struck out and in the second instance, the appeal for being bereft of merit, is dismissed.
Costs assessed at N500,000.00 are awarded in favour of the Respondent to be paid by the Appellant.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I was privileged to read in draft the exhaustive judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A. (Hon. P.J.), with which I agree with nothing extra to add.
YARGATA BYENCHIT NIMPAR, J.C.A.: I was given the privilege of reading in draft the judgment just delivered by my learned brother, MOHAMMED LAWAL GARBA, JCA, and I agree with the reasoning and conclusion arrived at.
This case brings to fore the distinctiveness of arbitration. It is a voluntary submission to a neutral party for adjudication; a dispute between two parties who have agreed to consent to the process. Once parties have consented to arbitration, they have also consented to accept the final award by the arbitrator. The Appellant herein submitted that it is disputing the Arbitration upon which the award was made in the absence of a dispute on the liability of the sum claimed.
The law is settled on the grounds for setting aside an arbitral award. In the case of THE VESSEL MV NAVAL GENT & ORS v. ASSOCIATED COMMODITY INT’L LTD (2015) LPELR-25973(CA), I held thus:
“Furthermore an arbitral award can be challenged on the ground that there was no valid arbitration agreement or that the matters submitted before the Tribunal does not fall within that agreement, whether for reasons of public policy or otherwise, see Section 48 of the Arbitration and Conciliation Act.”
See also the decision of my learned brother, IKYEGH JCA in the case of CELTEL NIGERIA BV V. ECONET WIRELESS LTD & ORS (2014) LPELR-22430(CA) where he held thus:
“What a Court called upon to set aside an arbitral award and an appellate Court called upon to adjudicate on the decision of the setting aside Court has to decide is, whether the arbitral award was prima facie good or right on, the face of it, not whether the reasons (whether of law or facts or both) given by the arbitral Tribunal for the award were right or sound, unless the reason(s) form part of the award. See Commerce Assurance Limited v. Alli (1992) 3 NWLR (pt. 232) 710 at 725 – 726 as follows
“The underlying principle is that parties to a dispute have a choice. They may resort to the normal machinery for administration of justice by going to the regular courts of the land and have their disputes determined, both as to the fact and the law, by the courts. Or, they may choose the arbitrator to be the judge between them, if they take the latter course, they cannot, when the award is good on the face of it, object to the award on grounds of law or facts.”
Considering the fact that the Appellant’s reasons for setting aside the arbitral award are majority on grounds of law and or fact, the lower Court was right to refuse upholding the Appellant’s application asking the Court to refuse the recognition and enforcement of the Arbitral award.
It is for this and the other succinct reasons in the lead judgment that I too set aside the appeal and abide by the consequential orders made in the lead judgment.
Appearances
OLANREWAJU OSINAIKE, M. LALO AND TOBI ATEWOLOGUNFor Appellant
AND
BABAJIMI AYORINDE AND IDOKO OCHAIFor Respondent
