AKE SHAREHOLDINGS LIMITED v. OPTIMUM CONSTRUCTION & PROPERTY DEVELOPMENT COMPANY LIMITED
(2015)LCN/7799(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of March, 2015
CA/L/990/2013
RATIO
ARBITRATION AWARD: WHETHER A COURT CANNOT CONVERT AN ARBITRATION AWARD INTO ITS OWN JUDGMENT
Once an award has been made, and not challenged in court, it should be entered as a judgment and given effect accordingly. The losing party cannot be heard to say he wants to agree some point or other. Just as he would not be allowed to do so in the case of a judgment not appealed from, he should not and would not do so in the case of an award that he has not challenged.
The only jurisdiction conferred on the court is to give leave to enforce the award as a judgment unless there is real ground for doubting the validity of the award. In other words if upon an application to enforce the award, the Judge finds that the validity of the award is doubtful, he can refuse leave. See Sections 29, 30 and 31 of the Arbitration and Conciliation Act. The Court has no other business with regard to the award except where it is expressly provided in the Act. Section 34 of the Act buttresses this point. It provides:
“A court shall not intervene in any matter governed by this Act except where so provided in the Act.”
I must say nowhere in the Act is the High Court given the power to convert an arbitration award into its own judgment. See Commerce Assurance Ltd. v. Alhaji Buraimoh Alli (supra). What this means simply is this: An award is on par with a judgment of the court. It is in the light of all this that a court cannot make the arbitrator’s award its own judgment.”
See also the judgment of Belgore, J.S.C. (later C.J.N., now retired) in page 572 of the law report and further the judgment of Kalgo, J.S.C. (as he was) in page 574 of the law report citing in support the cases of K.S.U.D.B. v. Fanz Construction Co. Ltd. (1990) 4 NWLR (pt.142) 1 at 37; Commerce Assurance Ltd. v. Alli (1992) 3 NWLR (pt.232) 710 at 725; Ojibah v. Ojibah (1991) 5 NWLR (pt.191) 296. See again Leka v. Tyo (supra). per. JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
AKE SHAREHOLDINGS LIMITED Appellant(s)
AND
OPTIMUM CONSTRUCTION & PROPERTY DEVELOPMENT COMPANY LIMITED Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal emanated from a Ruling of the High Court of Justice of Lagos State (the court below) whereby it struck out the application of the appellant for an order granting leave to the appellant to enforce the final arbitral award dated 19-08-11 on the premise that the arbitral award is inconclusive as to award number 3 (three) thereof and thus unenforceable.
Shorn of details, the facts of the dispute disclosed that a sole arbitrator made a final arbitral award involving the appellant and the respondent which included relief from forfeiture of a sublease agreement at No.4, Ilado Close (off Macpherson Avenue), Ikoyi Lagos in favour of the respondent contingent upon the respondent handing over a copy of the Fire and General Insurance of the demised property to the appellant and carrying out the necessary repair work on the demised property within 6 (six) months from the date of the award. While the appellant, among other things, was granted an order of specific performance of the sublease agreement.
The respondent did not comply with the two orders (supra). After the period of six months expired, the appellant brought a motion on notice for the enforcement of the two orders embodied in award 2 for specific performance and award 3 for the handing over of the Fire and General Insurance of the demised property by the respondent to the appellant and the carrying out of the necessary repair work on the demised property by the respondent.
With the consent of the parties the court below referred the matter first to the sole arbitrator to determine whether the respondent had complied with award No.3 and then to a court appointed referee vide an order of court made on 18-12-12.
Both referrals proved futile as the sole arbitrator indicated that she was functus officio having made her final award. While the court appointed referee failed to determine whether the respondent complied with the award.
The court below then considered the materials placed before it by the parties and in a reserved Ruling struck out the application on the ground that the award was unenforceable.
Naturally, the appellant was aggrieved with the decision of the court below striking out the application and appealed against it on a notice of appeal with eight (8) grounds of appeal. A brief of argument was filed by the appellant on 04-06-14. The respondent did not file brief of argument. The appellant was granted leave to argue the appeal on the appellant’s brief alone. The appeal was argued on 05-02-15.
The appellant’s brief of argument identified these issues for determination –
“(i) Whether the Final Arbitral Award (Exhibit ASL/2 of the Sole Arbitrator is final and enforceable (Distilled from Grounds 1, 2, 3, 5, 6, 7).
(ii) Whether the Learned Trial Judge was right in disregarding the uncontroverted Expert Evidence (Exhibit ASL/3 presented by the Appellant as evidence of non-compliance with the Final Arbitration Award. (Distilled from Grounds 4, 8).”
Miss F. R. A. Williams contended on behalf of the appellant on the first issue that arbitration being a method of dispute resolution chosen by the parties thereto involving one or more neutral third parties mutually agreed to by the disputants, a decision or award made by the arbitrator(s) is final and binding on the disputants and may only be resiled from and/or set aside within 3 (three) months of the award if the award contains decisions on matters beyond the scope of the submission to arbitration or if the arbitrator misconducted himself or if the arbitral proceedings or award has been improperly procured vide Sections 29 and 30 of the Arbitration and Conciliation Act 2010 (A.C.A.), Black’s Law Dictionary, 12th Edition at page 119, Russell on Arbitration, Chapter 6, The award, at 251 – 252, Agala v. Okusin (2010) 10 NWLR (pt.1202) 412 at 448, Leka and Ors. v. Tyo (2007) 11 NWLR 385 at 398 – 399, Ras Pal Gazi Construction Co. Ltd. v. Federal Capital Development Authority (F.C.D.A.) (2001) 4 M.J.S.C. 31, Commerce Assurance Ltd. v. Alli (1992) 3 NWLR (pt.232) 710 at 725, African Reinsurance Corporation v. AIM Consultants Ltd. (2004) 11 NWLR (pt.884) 223 at 238, Ndah v. Chianuokwu (2006) 17 NWLR (pt.1007) 74 at 89; consequently the final arbitral award in question which was accepted by the parties and which the respondent had claimed full compliance with vide page 86 of the record of appeal (the record), the court below should have enforced the clear and unambiguous final arbitral award, which was not afflicted with any of the three vices mentioned (supra), by terminating the relief from forfeiture resulting in the extinction of the respondent’s interest in the said building granted by the agreement between the parties.
Miss F.R.A. Williams contended on the second issue that the court below erred by refusing to enforce the final arbitral award which was based on the uncontroverted and unchallenged expert evidence in Exhibit ASL/3 (pages 52 – 69 of the record) which evidence had been accepted by the sole arbitrator as credible in her award in pages 17 – 51 of the record vide section 68(1) and (2) of the Evidence Act, 2011 read with the cases of Leka v. Tyo (supra), Agala v. Okusin (supra); upon which Miss F.R.A. Williams who argued the appeal urged that the appeal be allowed.
The arbitral award in contention reads –
“2. The Respondent shall within a period of six (6) months from the date of this Award hand over a copy of the Fire and General Insurance of the Property to the Claimant and carry out the necessary repair works on the property as identified in Exhibit C7, the Minutes of the Joint Inspection meeting held on the 26th August, 2010 and Exhibits C6(i) and (ii) the reports of Ekcel Konsultants dated the 10th day of December, 2008 and February 2011, respectively.
3. The Respondent is allowed relief from forfeiture on condition that within six (6) months from the date of this Award in compliance with the sublease it hands over a copy of the Fire and General Insurance of the Property to the Claimant and carry out the necessary repair works on the property as identified in Exhibit C7, the Minutes of the Joint Inspection meeting held on the 26th August, 2010 and Exhibits C6(i) and (ii) the reports of Ekcel Konsultants dated the 10th day of December, 2008 and February 2011, respectively”.
The arbitral award (supra) is clear, unequivocal or unambiguous. There is no complaint that it contains decisions on matters beyond the range of the submission to arbitration. There is also no indication that the sole arbitrator misconducted herself; nor was evidence put forward to suggest the arbitral proceedings and/or the award has been improperly procured. None of the vitiating factors (supra) was made out.
The award itself is final and conclusive and is based on solid, persuasive, and tested expert evidence which is uncontroverted and bears weight and admissibility which persuaded the sole arbitrator, aright in my view, to base the award on the said one way expert evidence in Exhibit ASL/3 after close examination of it vide Akusobi v. Obinechie (2004) FWLR (pt.190) 1344, Ude v. Osuji (1990) 5 NWLR (pt.151) 488, Bello v. Ringim (1991) 7 NWLR (pt.206) 608, Kaydee Ventures Ltd. v. Honourable Minister, Federal Capital Territory (2010) All FWLR (pt.519) 1079 at 1114, A.-G., Oyo State v. Fairlakes Hotels (No.2) (1989) 5 NWLR (pt.121) 225.
In addition, the arbitral award (supra) was accepted by the respondent and the appellant as binding on them without whimper of protest. Being a final/conclusive and crystal clear award the court below should have enforced the arbitral award as judgment without ado, all the more so it did not offend the three preconditions in Sections 29 and 30 of the A.C.A. enumerated (supra) vide Ras Pal Gazi Construction Company Ltd. v. F.C.D.A. (2001) 10 NWLR (pt.722) 559 at 571 per the lead judgment of the great jurist Katsina-Alu, J.S.C., (later CJN, now retired) –
“An award made, pursuant to arbitration proceedings constitutes a final judgment on all matters referred to the arbitrator. It has a binding effect and it shall upon application in writing to the court, be enforced by the court.
Once an award has been made, and not challenged in court, it should be entered as a judgment and given effect accordingly. The losing party cannot be heard to say he wants to agree some point or other. Just as he would not be allowed to do so in the case of a judgment not appealed from, he should not and would not do so in the case of an award that he has not challenged.
The only jurisdiction conferred on the court is to give leave to enforce the award as a judgment unless there is real ground for doubting the validity of the award. In other words if upon an application to enforce the award, the Judge finds that the validity of the award is doubtful, he can refuse leave. See Sections 29, 30 and 31 of the Arbitration and Conciliation Act. The Court has no other business with regard to the award except where it is expressly provided in the Act. Section 34 of the Act buttresses this point. It provides:
“A court shall not intervene in any matter governed by this Act except where so provided in the Act.”
I must say nowhere in the Act is the High Court given the power to convert an arbitration award into its own judgment. See Commerce Assurance Ltd. v. Alhaji Buraimoh Alli (supra). What this means simply is this: An award is on par with a judgment of the court. It is in the light of all this that a court cannot make the arbitrator’s award its own judgment.”
See also the judgment of Belgore, J.S.C. (later C.J.N., now retired) in page 572 of the law report and further the judgment of Kalgo, J.S.C. (as he was) in page 574 of the law report citing in support the cases of K.S.U.D.B. v. Fanz Construction Co. Ltd. (1990) 4 NWLR (pt.142) 1 at 37; Commerce Assurance Ltd. v. Alli (1992) 3 NWLR (pt.232) 710 at 725; Ojibah v. Ojibah (1991) 5 NWLR (pt.191) 296. See again Leka v. Tyo (supra).
With deference to the court below, the award (supra) is not doubtful on its face. It is valid, enforceable, and should have been enforced summarily for promptitude and convenience: Because the award had granted the relief from forfeiture of the sublease in favour of the respondent, only on condition that the respondent within 6 (six) months of the award hands over a copy of the Fire and General Insurance of the demised property to the appellant and, in addition, the respondent carries out the necessary repair work on the demised property as identified and specified in the award, which the respondent has breached; therefore the award (supra) is in that wise conclusive and enforceable, in my modest view.
The respondent did not discharge the dual obligation placed on it by the final arbitral award (supra) as stipulated therein. The award (supra) became spent by the inactivity of the respondent. Having flouted the terms of the arbitral award (supra), the respondent lost the protection of the relief from forfeiture of the sublease. And, it required an order of court to formally terminate it.
So the court below had something to enforce in the award. It should have made an order setting aside and/or revoking the said award of the relief from forfeiture. The appeal is therefore meritorious. I would allow it. The order of the court below refusing to enforce the award and striking out the action is hereby set aside.
By Section 15 of the Court of Appeal Act 2004, the Court takes the place of the court below with respect to the case on appeal. In light of the fact that no further evidence is needed as all that is required to do justice to the case is in the record, I invoke Section 15 of the Court of Appeal Act to enforce the award by revoking the award of relief from forfeiture which was made conditional or contingent upon the fulfillment by the respondent of the two conditions stated in the award within the time frame of 6 (six) months (supra) which the respondent breached. The respondent shall pay N30,000.00 costs to the appellant.
SIDI DAUDA BAGE, J.C.A.: I was privileged to have read, before now, the judgment prepared and just delivered by my learned brother JOSEPH SHAGBAOR IKYEGH, JCA. Having equally read the briefs of argument of the respective learned counsel vis-a-vis the records of appeals, as a whole, I cannot but concur with the reasoning and conclusion reached in the said judgment, to the effect that the appeal is meritorious. I too would allow it. I accordingly hold that in light of the fact that no further evidence is needed as all that is required to do justice to the case is in the records, it’s my privilege to adopt the reasoning and conclusion in the judgment as mine.
The Respondent shall pay N30,000.00 costs to the Appellant.
TIJJANI ABUBAKAR, J.C.A.: I read the judgment just prepared and delivered by my learned brother IKYEGH JCA, I adopt the entire reasoning and conclusion as mine, with nothing useful to add. I agree.
Appearances
Miss F. R. A. WilliamsFor Appellant
AND
Respondent absent and unrepresented.For Respondent
