DEE JONES PETROLEUM & GAS LIMITED v. RAHAMANIYYA GLOBAL RESOURCES LIMITED
(2018)LCN/12210(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2018
CA/L/744/2009
RATIO
ARBITRATION: RIGHT TO CHALLENGE ARBITRAL AWARD
“The right to challenge an arbitral award is a statutory right. Therefore, the learned trial judge erred when he held that the Cross-Appellant was caught up by estoppel of standing by/waiver on the ground since it refused to participate in the Arbitral proceedings, it cannot seek to set aside the award.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT AND PROCEDURE: PRELIMINARY OBJECTION
“In the first place, a preliminary objection cannot be raised to challenge the competence or otherwise of an issue but the purpose is to challenge the competence of the appeal as a whole – to truncate the hearing of an appeal in limine. See KENTE v ISHAKU & ORS (2017) LPELR 42077 (SC); BANK OF INDUSTRY LTD v AWOJUGBAGBE LIGHT INDUSTRIES LTD (2018) LPELR 43812 (SC). A preliminary objection should only be raised against the hearing of an appeal and not against one or more ground of appeal or as done in the present case, against the competence of an issue for determination, which is not capable of truncating the hearing of the appeal.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT AND PROCEDURE : WHERE TECHNICAL ERROR OCCURS
“I must say that the error complained in this case is a technical error, which is purely insignificant and harmless to the Appellant’s case. In NNEJI & ORS v CHUKWU & ORS (1988) LPELR 2058 (SC), the Supreme court, per OPUTA, JSC held that a technical error is one committed in the course of a trial, but without prejudice to a party. It is an error which is purely abstract and harmless for practical purposes. I must say that our Courts have moved from the regime of sacrificing substantive justice at the altar of technicalities. See INAKOJU & ORS v ADELEKE & ORS (2007) LPELR 1510 (SC); NDAYAKO & ORS v DANTORO & ORS (2004) 1968 (SC); EROMOSELE v FRN (2018) LPELR 43851 (SC). To this extent, I endorse the conclusion reached by the learned trial judge that the said error on the face of the affidavit filed in support of the Notice of Preliminary objection goes to no issue. This issue is resolved in the Respondent’s favour.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
DEE JONES PETROLEUM & GAS LIMITED Appellant(s)
AND
RAHAMANIYYA GLOBAL RESOURCES LIMITED Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.(Delivering the Leading Judgment):
Consequent upon an Arbitral Award, the Appellant had approached the lower Court vide an Originating Motion dated 6th February, 2009 for an order setting aside the award inter alia on ground of jurisdiction, error on the face of the award and/or misconduct. Upon being served with the Motion, the Respondent filed a Notice of Preliminary Objection dated 16th May, 2009 challenging the jurisdiction of the lower Court inter alia on the ground of failure to file the Application within the period prescribed under Order 20 Rule 16 of the Federal High Court Civil Procedure Rules, 2000; estoppel by waiver and res judicata. In a considered Ruling delivered by AUTA, J., (later C.J. now retired) of the Federal High Court, Lagos Division, on 31st July, 2009, the Respondent?s preliminary objection was sustained.
Naturally dissatisfied with the said Ruling, he filed a Notice of Appeal dated 27th August, 2009 containing twelve grounds. As is the practice in this Court, parties filed and exchanged their respective briefs of argument. Appellant filed its brief and Reply brief on 22nd February, 2012 and 20th January, 2017 respectively and it was settled by Chief Richard Akinjide, SAN of Akinjide & Co. Five issues were formulated therein as follows:
1. Having regard to clause 9 of the importation agreement, the conflicting affidavit evidence of the parties and the failure of the Respondent to call oral evidence thereof, whether or not the learned trial judge was right in holding that the parties agreed to appoint three arbitrators?
2. Whether or not the learned trial judge was right in holding in his Ruling at page 184 of the record of appeal that the lower Court has no jurisdiction to entertain the Appellant’s substantive suit seeking to set aside the arbitral award?
3. Whether or not, notwithstanding the provisions of Section 33 of the Arbitration and Conciliation Act, Article 21(3) and Article 30 of the Arbitration Rules, the issue of the lack of jurisdiction of the arbitral tribunal can be raised for the first time in an application seeking to set aside the award?
4. Whether or not the learned trial judge was right in holding that the substantive suit has no merit and dismissing the said substantive suit without hearing the merit of the said substantive action?
5. Whether or not the learned trial judge was right in holding that the difference in the suit Nos on the Respondent’s Notice of preliminary objection, headed suit no: FHC/L/CS/135/09, and the purported affidavit in support, headed suit no: FHC/L/CS/133/09, was a typographical error and that the said error has been explained by the Respondent’s counsel and thereby concluded that the Respondent’s notice of preliminary objection was competent?
The Respondent’s brief filed on 13th February, 2015 was settled by Abubakar Malami, SAN and Oritsematosan Edodo-Emore. Four issues were formulated as follows:
1. Whether a presumption of agreement to the appointment of three arbitrators can rightly be inferred from the conduct of the parties having regard to their conduct and proceedings before the arbitral tribunal.
2. Whether the lower Court erred in law in holding that its jurisdiction could not be properly invoked to entertain the Appellant’s originating motion which sought to set aside the arbitral award having regard to the applicable statutory provisions, the conduct of the parties and the processes filed before the lower Court by the parties.
3. Whether the Appellant has succeeded in establishing a miscarriage of justice by reason of the trial judge’s remarks that the Appellant’s substantive action ‘has no merit’ and whether the Appellant’s right to fair hearing can be said to have been infringed by dismissing in limine the Appellant’s originating motion dated the 6th day of February, 2009.
4. Whether a miscarriage of justice can be said to have been occasioned by the reliance of the lower Court on the Respondents affidavit dated 16th day of March, 2009 in determining the preliminary objection giving rise to this appeal, having regard to error in the suit number by which the title of the suit was reflected as suit no: FHC/L/CS/133/09 rather than suit no: FHC/L/CS/135/09.
SUBMISSIONS OF COUNSEL
On the first issue, learned counsel for the Appellant submitted that the finding of the lower Court is erroneous and perverse and cannot be sustained. He contended that in the absence of an agreement in writing varying clause 9 of the importation agreement, the lower Court cannot validly hold that the parties agreed on three arbitrators. He noted that the clause cannot be varied by implication, waiver, estoppel or conduct. He referred to the case of BALIOL NIG LTD v NAVCON LTD [2010] 16 NWLR (PT 1220) 619 at 630.
Counsel further contended that there were serious conflicts of affidavit evidence as regards the agreement of the parties to appoint three arbitrators and that no oral evidence was called on both sides. Counsel placed reliance on Section 135 & 137 of the Evidence Act; AKINSETE v AKINDUTIRE (1966) VOL 4 NSCC 157 at 158; CHAIRMAN NPC v CHAIRMAN IKWERE LG [2001] 13 NWLR (PT 731) 540; FALOLA v UBN PLC [2005] 7 NWLR (PT 924) 405 at 420, paras F – H; MOMAH v VAB PETROLEUM INC [2000] 4 NWLR (Pt 654) 534 at 556 – 557, paras G – A; DOHERTY v DOHERTY (1968) 1 NMLR 241 to submit that the duty was on the Respondent who would lose if no further evidence was called to resolve that conflict and that without this, the Court cannot make any findings of fact. He contended that where a party makes contradictory depositions, all his depositions must be discountenanced.
He referred to the case of PANACHE COMM. LTD v AIKHOMU [1994] 2 NWLR (PT 327) 420 at 428, paras A – E.
Appellant’s counsel submitted that the reference by the lower Court to Article 3 of the 3rd Schedule to the Arbitration and Conciliation Act was unnecessary and misled the Court into a wrong conclusion. He also argued that if the parties had agreed on a 3 member panel, the Respondent could not have thereafter in Exhibit DJ1 put that matter in issue well after the alleged agreement. That by virtue of Section 149 of the Evidence Act, the lower Court was entitled to presume that it was unlikely that the parties agreed on three arbitrators on December 11, 2007 as argued by the Respondent. Counsel urged this Court to resolve the issue as to when Exhibit DJ1 was filed and to make reasonable inference of facts therefrom as the Court is empowered by the provisions of Section 15 of the Court of Appeal Act, Order 4 Rule 1 & 3 of the Court of Appeal Rules, 2011. He also referred to the cases of P.IP.C.S LTD v VLACHOS [2008] 4 NWLR (PT 1076) 1; LAGGA v SARHUNA [2008] 16 NWLR (PT 1114) 427; COMPTOIR COMM & INS S.P.R LTD v O.S.W.C [2009] 9 NWLR (PT 773); MBA v AGU [1992] 12 NWLR (PT 629) 1.
The learned counsel answered the second issue in the negative and submitted that the lower Court was wrong in holding that the Court has no jurisdiction to entertain the Appellant’s substantive suit. He argued that Section 29 & 57 of the Arbitration Act allows a party to apply to any of the High Court or Federal High Court to set aside an award. He referred to the cases of A. SAVOIA LTD v SONUBI [2000] 12 NWLR (PT 682); KANO STATE URBAN DEV. BOARD v FANZ CONSTRUCTION LTD [1990] 4 NWLR (PT 142); TAYLOR WOODROW NIG LTD v S.E GMBH [1993] 4 NWLR (PT 286) 127.
Counsel argued that the lower Court was wrong to decline jurisdiction on the grounds that the Appellant failed to raise at the tribunal the issue of the incompetence of the tribunal composition and also on the ground that the Appellant’s suit was caught by res judicata.
He argued that even if the Appellant failed to raise the issue of the incompetence of the tribunal composition at the tribunal, that it only entitled the lower Court to refuse to set aside the arbitral award and cannot be a ground for declining jurisdiction and that also the issue of res judicata did not apply to this case. He submitted that Section 29 & 30 of the Arbitration Act, Order 20 Rule 15(g) of the Federal High Court Rules, 2000 and Order 52 Rule 15(g) of the Federal High Court Rules, 2009 and plethora of cases recognise the right of a party to apply to set aside an award.
Counsel added that the issue of res judicata cannot be disposed of by affidavit evidence and that the issues and reliefs in the previous action are different from those in the subsequent proceeding and could not have constituted res judicata. He relied on Section 241 (1) (a) & 233 of the 1999 Constitution;EKE v OGBONDA [2006] 18 NWLR (PT 1012) 506 at 526, paras A – D; EFIOM v IRONBAR [2000] 3 NWLR (PT 650) 545 at 555, paras G ? H; OKUKUJE v AKWIDO; BALOGUN v ODE [2007] 4 NWLR (PT 1023) 1.
Counsel on the third issue submitted that the issue of the lack of jurisdiction of the arbitral tribunal can be raised at anytime. He contended that the relevant provision of the law on the issue of the tribunal’s jurisdiction is Article 21 (3) of the Arbitration Rules and that the lower Court was wrong to have relied on Section 33 of the Arbitration Act and Article 30 of the Arbitration Rules because they are meant to be directory and not a mandatory provision. He referred to the cases of UDE v NWARA [1993] 2 NWLR (PT 278) 638; A.T. LTD v A.D.H. LTD [2007] 15 NWLR (PT 1056) 118.
Counsel added that it is a settled principle of law that jurisdiction is radical and fundamental and can therefore be raised at any time and it cannot be waived or conferred by acquiescence, estoppel or waiver. He relied on the cases of EZOMO v OYAKHIRE [1985] 1 NWLR (PT 2) 195 at 207, para G; OLOBA v AKEREJA [1988] 3 NWLR (PT 84) 508; F.R.I.N v GOLD [2007] 11 NWLR (PT 1044) 1; OLUMPUS SUPER STRUCTURE PVT LTD v MEENA VIJAY KHAITAN (1999) 5 SCC 631; R v SPRING HILL PRISON GOVERNOR (1988) 1 ALL ER 425; SEC. OF STATES FOR TRADE & INDUSTRY v LANDGRIDGE (1991) 3 ALL ER 591.
Counsel submitted that Section 48 of the Arbitration Act recognises that lack of jurisdiction of the tribunal based on its composition is a ground for setting aside an award. He added that it cannot even be said that the issue of the composition was never raised at the tribunal because page 134 of the record of appeal outline the issues in the arbitration and that the issue one thereof relates to the competence of the tribunal.
On the fourth issue, counsel submitted that the lower Court was wrong in holding that the Appellant’s substantive suit has no merit when the lower Court did not hear the parties on the merit of the case. He argued that the Appellant’s originating motion was not moved and that a Court is barred from making pronouncement on the merit of a case while dealing with interlocutory matter. He contended that the pronouncement of the Court is prejudicial to the Appellant’s right of fair hearing in respect of the substantive suit. He relied on the cases of KOTOYE v SARAKI [1994] 7 NWLR (PT 357) 413; OJUKWU v GOV OF LAGOS [1986] 3 NWLR (Pt 26) 35; OBEYA MEMORIAL HOSPITAL v A.G OF FEDERATION [1987] 3 NWLR; CHEVRON NIG LTD v L.D. NOG LTD [2007] NWLR (PT 1059) 168.
The learned counsel answered the fifth issue in the negative and submitted that the lower Court was wrong in holding that the difference in the suit no was a mere error which has been explained by the Respondent and goes to no issue. He argued that the preliminary objection was incompetent and ought to have been dismissed because it is a substantive defect. He referred to Section 90 (a) of the Evidence Act; NIG POLICE FORCE v ONU (2008) ALL FWLR (Pt 406) 1920 at 1931, paras G – H (CA) and urged this Court to resolve all issues in favour of the Appellant with substantial costs against the Respondent.
On the part of the Respondent, Counsel submitted on the first issue that the decision of the lower Court was based on the fact that the jurisdiction of the Court could not be invoked because the principles of waiver by consent, waiver of the right to object and estoppel by res judicata had operated against the Appellant. He argued that it is therefore not open to the Appellant to formulate an issue on appeal that is outside of the con of the judgment of the lower Court. He relied on the case of EJIOFODOMI v OKONKWO (1982) 13 NSCC 422 at 435 – 436.
Counsel however went further to contend that the composition of the arbitral tribunal was approved by the parties, it is a mere matter of procedure for ascertaining the rights of the parties and that it is not a ground for setting aside an award. He referred to the cases of MAGBAGBEOLA v SANNI [2002] 4 NWLR (PT 756) 193 at 204; OKON v UBI (2006) ALL FWLR (PT 328) 717; NIGER INSURANCE CO LTD v ABED BROS LTD (1976) 10 NSCC 39 at 395 – 396. He submitted that the appointment of three arbitrators is legally inferable from the parties agreement and by operation of Articles 5 & 7 of the arbitration rules; Section 6 of the Arbitration Act and Order 20 Rule 1 of the Federal High Court Civil Procedure Rules.
Counsel argued that it is not the position of the law that oral evidence must in all cases be called when there is conflict in affidavit evidence. That where the Court has enough documentary evidence, it can still resolve without calling oral evidence. He relied on the cases of EZEGBU v FATB LTD [1992] 1 NWLR (PT 220) 699; PHARMACISTS BOARD v ADEBESIN (1974) 5C 43; EBOH v OKI (1974) 1 SC 179; UKU v OKUMAGBA (1974) 3 SC 25; MAGNUSSON v KOIKI [1991] 4 NWLR (PT 183) 119.
He submitted also that the lower Court did not make heavy weather of Exhibit DJ1 & 2. That the said exhibits were outline of issues filed by the parties before the preliminary meeting and that it is different from the issues for determination.
Counsel referred to the cases of AKPABIO v STATE [1994] 7 NWLR (PT 359) 635 at 662 to contend that it is not every mistake in a judgment that will result in a reversal or occasion a miscarriage of justice; that the error of the Court referring to the Conciliation Rules would not change the outcome of the decision.
On the second issue, Respondent’s counsel submitted that the failure of the Appellant to commence the suit by due process and non compliance with the conditions precedent for the invocation of the Court’s jurisdiction were the elements that robbed the lower Court the power to entertain the case. He relied on the cases of CBN v SAP NIG LTD [2005] 3 NWLR (PT 911); MADUKOLU v NKEMDILIM (1962) 2 SCNLR 341; AJAO v OBELE [2005] 5 NWLR (PT 918) 400; SKENCONSULT v UKEY (1981) 1SC 6. He submitted that the suit was filed out of time with no leave sought as provided by Order 20 Rule 16 of the Federal High Court Rule; UBA LTD v ABIMBOLU & CO [1995] 9 NWLR (PT 419) 371 at 383; HOME DEV LTD v SCANCILA CONST CO LTD [1994] 8 NWLR (PT 362) 252 at 262.
He argued also that failure to raise the improper composition of the tribunal impedes the jurisdiction of the lower Court and that Section 33 of the Arbitration Act and Article 30 of the Rules deemed it as a waiver. He referred toA.G LAGOS v DOSUNMU (1989) 20 ASCC (PT 11) 609; OKOLO v UBN PLC (2004) ALL FWLR (PT 197) 981.
On the issue of Res judicata, counsel submitted that it is the principle of estoppel per res judicata and not res judicata simpliciter that operates against the Appellant?s motion. He referred to the case of ARO v ARO [2000] 14 NWLR (PT 649) 443 at 457; IJALE v LEVENTIS CO LTD (1961) 2 SCNLR 386; AGU v IKEWIBE [1991] 3 NWLR (PT 180) 385 at 412; amongst other cases that no one should be sued twice on the same grounds. He submitted that the award is a final decision and the Appellant is estopped from bringing fresh action.
On the third issue, counsel submitted that the argument of lack of fair hearing is misconceived and that once a party shows that the Court lacks jurisdiction, the foundation of the case crumbles and parties cannot be heard on the merits. He referred to the cases of OKOLO v UBN (Supra).
On the fourth issue, counsel submitted that no miscarriage of justice occurred. He argued that the affidavit though wrongly numbered was clear and bears relevance to the case before the lower Court and that it did not misled the other party or the lower Court. Counsel argued that the current trend is that cases should be heard on their merit and not on unnecessary technicalities. He referred to the cases of BRITISH AMERICAN INSURANCE CO LTD v EDEMA SILLO [1993] 2 NWLR (PT 277) 570 – 637; OKONJO v N.H.D.S (1985) NWLR 10 SC 267; amongst other cases. He referred to Section 84 of the Evidence Act; Order 27 Rule 1 & 3 & Order 51 Rule 1 of the Federal High Court Civil Procedure rules; MADADESA v MILITARY GOVT OF OYO & ANOR [1986] 3 NWLR (PT 27) 125; ADEJUMO v GOV OF LAGOS STATE (1970) 6 NSCC 134 to submit that the decision to use a defective affidavit or not is at exclusive discretion of the Court as it is a mere irregularity which should not nullify the case. Counsel also submitted that the remarks of the lower Court that the ‘originating motion has no merit’ is not a remark that strikes at the root of the decision of the lower Court to justify setting aside the ruling.
In the Reply Brief, Appellant’s counsel submitted that the objection of the Respondent to the Appellant’s issue one is misleading and unsustainable in law. He argued that the issue flows from grounds iii, viii and xii of the notice of appeal and that the Appellant’s brief of argument is rooted in the con of the Ruling of the lower Court. He relied on the cases of EJEZIE v ANUWU [2008] 12 NWLR (PT 1101) 446 at 483, para A (SC); SANI v OKENE [2008] 12 NWLR (1102); ABISI v EKWEALOR [1993] 6 NWLR (PT 302) 643; WESTERN STEEL WORKS v IRON & STEEL WORKERS [1987] 1 NWLR (PT 49) 284; WILLIAMS v DAILY TIMES [1990] 1 NWLR (PT 124) 1 at 35 – 36, paras H – A.
Counsel argued that issue one of the Respondent?s brief is incompetent and should be struck out because it did not flow from grounds iii and viii of the notice appeal. He referred to the case of NWANAWTA v EJIMEI [1998] 8 NWLR (PT 563) 650 at 673; ADEMUYIWA v OLOKUNBOLA [2009] 11 NWLR (PT 1153) 539 at 560. He also contended that the agreement of parties to appoint one or two arbitrators is valid and not in conflict with Section 6 of the Arbitration Act and it prevails over Article 5 of the Arbitration rules.
In reply to the contention of the Respondent’s counsel that the lower Court can rely on documentary evidence in resolving affidavit conflicts, counsel submitted that the Court can only do same provided that such documents are competent and authentic. He relied on the cases of ANZAKU v GOV, NASARAWA STATE [2005] 5 NWLR (PT 919) 448 at 502, para D; EYO v INYANG [2008] 8 NWLR (PT 715) 304 at 325. Also regarding the relevance of Exhibits DJ1 & 2, counsel submitted that how could there be a purported agreement on December 11, 2007 to appoint three arbitrators well after the arbitral tribunal has already been constituted on 8th November, 2007.
On the issue of filing of suit out of time, counsel submitted that the issue is not covered by any ground of appeal and that Section 29 of the Arbitration Act prescribes three months period for setting aside an award and that Order 20 Rule 16 of the Federal High Court Rules that provides for 21 days is subject to the Act. He relied onCOMPTOIR COMMERCIAL & INDUSTRIAL SPR LTD v OGUN STATE WATER CORPORATION [2002] 9 NWLR (PT 773) 629; CHRISDON INDUSTRIES LTD v AIB LTD [2002] 8 NWLR (PT 768) 152; SHIE v LOKOJA [1998] 3 NWLR (PT 540) 56 at 62; Section 254 of the 1999 Constitution (as amended).
Counsel argued that res judicata is all for the same purposes and there is no difference. He also argued that it is not the contention of the Appellant that he was not heard on the preliminary objection, that the contention of the Appellant is that any finding that touches on the merit of the Appellant’s originating motion when it was never heard in the first place, is to that extent a denial of fair hearing.
Counsel submitted that the whole contention of the Respondent dealing with the use of the affidavit with the error in the suit, did not arise in this appeal and that the contentions are not the grounds upon which the lower Court decided to use the affidavit. He also argued that the Respondent failed to make all these contentions at the lower Court.
Counsel also submitted that it is not the duty of the Court to correct errors in the affidavit as the Judge must not descend into the arena of the conflict and that the Respondent failed to discharge the onus of explaining the error. He also contended that Order 27 Rule 1 of the Federal High Court Rules is a discretionary provision that deals with the power of the Court to suo motu order the attendance of deponents of affidavit for examination for purposes of enabling the Court resolve conflicting affidavit depositions. He contended that Order 51 Rule 1 of the Rules is also inapplicable to this issue and that the Respondent’s counsel deliberately left out the provision of Order 27 Rule 2 which mandatorily requires an affidavit to bear the title in the proceedings in which it is sworn. Counsel urged this Court to hold that the Respondent?s affidavit is incompetent and ought to have been dismissed. He referred Section 90(a) Evidence Act.
RESOLUTION
Having enumerated the issues formulated and submissions made by the learned counsel for the respective parties, I am of the firm view that the issues distilled by the Appellant are apt for the determination of this appeal. However, the Respondent challenged the competence of the first issue nominated by the Appellant on the ground that the issue was formulated out of con.
Unfortunately, the objection raised by the Respondent is misconceived.
In the first place, a preliminary objection cannot be raised to challenge the competence or otherwise of an issue but the purpose is to challenge the competence of the appeal as a whole – to truncate the hearing of an appeal in limine. See KENTE v ISHAKU & ORS (2017) LPELR 42077 (SC); BANK OF INDUSTRY LTD v AWOJUGBAGBE LIGHT INDUSTRIES LTD (2018) LPELR 43812 (SC). A preliminary objection should only be raised against the hearing of an appeal and not against one or more ground of appeal or as done in the present case, against the competence of an issue for determination, which is not capable of truncating the hearing of the appeal.
Be that as it may, I have carefully gone through the judgment of the lower Court, juxtaposing same with the contention of the Respondent, and I must say that the objection is misplaced and erroneous. I find that issue one challenges the finding of the learned trial Judge that the parties agreed to appoint three arbitrators. See pages 180 of the record of the appeal, where the learned judge held that ‘from the Affidavit Evidence before this Court especially Ex. ‘A’ paragraph 3.1, the Applicant/Respondent consented to the constitution of the Arbitration Tribunal and that it should be conducted by a Panel of three Arbitrators’.
Issue one borders on question as to whether the learned trial judge was right in holding that the parties agreed to appoint three arbitrators and is predicated on Grounds iii, viii and xii which are grounds complaining on the specific finding of the learned judge. As a matter of fact, ground viii reads ‘the learned trial judge erred in law in holding that the Applicant/Appellant consented or agreed to the 3-member panel composition of the arbitral tribunal.’
Therefore, contrary to the erroneous contention of the Respondent, issue one formulated by the Appellant is not out of con but challenges a specific finding of the lower Court.
Dealing with the merit of the appeal, and looking at the issues formulated by the Appellant, I shall consider the issues by re-ordering them, taking the last issue first. The first issue to be considered is whether learned trial judge was right in holding that the difference in suit numbers on the Respondent’s Notice of Preliminary Objection headed Suit No. FHC/L/CS/135/09 and the purported affidavit in support, headed Suit No.FHC/L/CS/133/09 was a typographical error?
At page 183 of the record of appeal, the learned trial judge held as follows:
“The Applicant Respondent’s Counsel raised the issue of wrong Suit No. in the preliminary objection. This error has been explained by the Applicant’s Counsel and it is clearly a typographical error, and what is called printers devil. This is mere error of fact and it is clear. It goes to issue.”
The argument of Appellant’s counsel is that the affidavit in support of the Notice of Preliminary objection is fundamentally defective as it was not headed in the ’cause or matter in which it was purportedly filed’ in compliance with Section 90(a) of the Evidence Act. The said Affidavit in question can be found at pages 60 to 62 of the record of appeal.
I find that the suit number contained on its face is FHC/L/CS/133/09 instead of FHC/L/CS/135/09, which is the correct suit number in the suit at hand. With respect to the Appellant’s counsel, I do agree and share the same sentiment with the learned trial judge that, without any evidence to the contrary, the error in the suit number on the affidavit can be explained away as a typographical error, hence printer’s devil. It is obvious on the face of the affidavit it relates to the suit at the lower Court, that is, Suit No. FHC/L/CS/135/09 and the parties are the same. In addition, the affidavit was not filed in isolation but in support of the Notice of Preliminary Objection which was properly headed with the right suit number.
A fortiori, Section 84 of the extinct Evidence Act of 2004, applicable to the present case is apt and it is to the effect that the Court may permit an affidavit to be used, notwithstanding the fact that it is defective in form, if the Court is satisfied that it has been sworn before a duly authorized person. In the same vein, Order 27 Rule 3 of the Federal High Court (Civil Procedure) Rules, 2009 provides that the judge may receive any affidavit sworn for the purpose of being used in any proceeding, notwithstanding any defect by misdescription of parties or title.
I must say that the error complained in this case is a technical error, which is purely insignificant and harmless to the Appellant’s case. In NNEJI & ORS v CHUKWU & ORS (1988) LPELR 2058 (SC), the Supreme court, per OPUTA, JSC held that a technical error is one committed in the course of a trial, but without prejudice to a party. It is an error which is purely abstract and harmless for practical purposes.
I must say that our Courts have moved from the regime of sacrificing substantive justice at the altar of technicalities. See INAKOJU & ORS v ADELEKE & ORS (2007) LPELR 1510 (SC); NDAYAKO & ORS v DANTORO & ORS (2004) 1968 (SC); EROMOSELE v FRN (2018) LPELR 43851 (SC). To this extent, I endorse the conclusion reached by the learned trial judge that the said error on the face of the affidavit filed in support of the Notice of Preliminary objection goes to no issue. This issue is resolved in the Respondent’s favour.
The next issue to be considered is whether the learned trial judge was right in holding that the lower Court has no jurisdiction to entertain the substantive suit seeking to set aside the arbitral award? At the lower Court, the Respondent had filed a Notice of Preliminary Objection dated 16th March, 2009 and contained in pages 58 of the record of appeal.
In its Ruling the lower Court had sustained the Respondent’s objection that the principle of estoppel by waiver operated against the competence of the originating summons, parties having expressly waived the issue relating to the composition of the Arbitral Panel in the arbitral proceedings, so that the Originating Summons is incompetent having regards to the provisions of Section 33 of the Arbitration and Conciliation Act, Cap A18, LFN 2004 and Article 30 of the Arbitration Rules. Particularly at pages 180 to 184 of the record of appeal, the learned trial judge held as follows:
“The other issue to consider is whether this Court has the power to set aside the award made by the Arbitration Panel. The Applicant raised the issue estoppels by waiver and that of Res Judicata. From the affidavit Evidence before this Court especially Ex. ‘A’ paragraph 3.1, the Applicant/Respondent consented to the constitution of the Arbitration Tribunal and that it should be conducted by a Panel of three Arbitrators.
It is trite law that parties are bound by the agreement entered between them, unless fraud is established. The Applicant did not raise any objection throughout the duration of the Arbitration proceedings both orally or in writing. They are now raising objection to the composition after the award has been made. By their conduct alone, they have consented to the composition of the Panel and cannot now turn around to say that the composition was unlawful. They should have done so during the arbitration Proceedings. They cannot eat their cake and have it. The Arbitration Act Section 33 made provision for any party to raise objection timeously. The Applicant in this case did not do so”
It is not in dispute that the Applicant/Respondent took active part in the Arbitration proceedings. He nominated his representative for the tribunal. He participated from the beginning to the end and did not raise objection up to the time the final Award was made. The question is that what if the award was in his favour? Would he refuse it? No, of course: The Applicant has lost his legal and moral right to object to the composition of the Panel and the Award. Infact, he has waived his right to challenge the composition of the Panel. I referred to Clause 30 of the Arbitration Act?
The action of the Applicant is caught by estoppel Res Judicata as stated in the case of (Fawehinmi Construction Co. v OAU (1998) 6 NWLR (pt. 553, p. 183) as the award is a final decision by a legally constituted body. In this case, even from the face of the record the parties are the same. Nowhere the Applicant even suggested that the parties are not the same. The Applicant is challenging the Final award made between the parties, and not with any other party. The Final Award is before the Court and the Court can take judicial notice of the documents before it. The subject matter that the Applicant is trying to reopen before this Court has already been adjudicated upon before the Arbitration Panel. He is therefore caught by the doctrine of Res Judicata
Without mincing words, the learned trial judge appears to have misconceived the scope and extent of the doctrine of res judicata and the circumstances upon which it is applicable to an Arbitral Award. Truly, by Section 31 of the Arbitration and Conciliation Act, Cap A18, LFN, 2004, an arbitral award shall be recognized as binding. The Supreme Court inONWU v NKA [1996] 7 NWLR (PT 458) 1 stated the law as follows:
“The Law is well settled that where dispute or maters in difference between two or more persons are by the consent of the disputants submitted to a domestic forum, inclusive of arbitrators or a body of persons who may be invested with judicial authority to hear and determine such disputes? and a decision is duly given, it is as conclusive and unimpeachable (unless and until set aside on any of the recognized grounds) as the decision of any constituted Court of the land. Such a decision is consequently binding on the parties and the Courts in appropriate cases will enforce it.”
See also RAS PALGAZI CONSTRUCTION COMPANY LTD v FCDA (2001) LPELR 2941 (SC) where KATSINA-ALU, JSC held as follows:
“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. What this means is this, if an award was not challenged then it became and was a final and binding determination of the matters between the parties”
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 argue some point or other. Just as he would not be allowed to do so in the case of the judgment not appealed from, he should not and would not do so in the case of an award that he has not challenged. If an issue is raised for decision and has been decided, that is final. The parties cannot be allowed to re-open it. The reason is that just as the parties would not be allowed to do so in the case of a judgment not appealed from, the point so decided is res judicata.
Broadly speaking, estoppel would preclude a party opposing enforcement from relitigating issues that have been decided in the previous judgment as well as issues that could have been raised, and ultimately decided, in the previous proceedings. Therefore, where parties to a dispute voluntarily submit an issue in controversy between them to arbitration, they will be prohibited or estopped from resiling from the decision made by the Arbitral panel or tribunal. SeeUTONG v UTONG [2014] ALL FWLR (PT 746) 452.
As earlier enumerated, the learned trial judge had held that it lacked jurisdiction to entertain the Appellant’s Originating Motion because the Appellant failed to raise the issue of incompetence of the arbitral tribunal based on its composition during the proceedings at the tribunal; so that on the basis of estoppel by waiver, the Appellant’s suit is caught by res judicata. With respect to the learned judge, Section 29 and 30 of the ACA contains copious instances upon which a party can approach the Court to set aside an arbitral award. Section 29(2) relates to where it is shown that the award contains decisions on matters which are beyond the scope of arbitration, hence jurisdiction; while in Section 30, an Award may be set aside on the ground that the arbitrator has misconducted himself, or where the arbitral proceedings has been improperly procured.
It is instructive that the Appellant had filed an Originating Motion seeking to set aside the arbitral award on ground of incompetence of the Arbitral Panel, error of law on the face of the award and/or misconduct. Thus, the issue of incompetence of arbitral award is not the only ground uponwhich the Appellant is seeking to set aside the award. In addition, I am in agreement with the learned Appellant?s counsel that the trial judge misconceived the case of the Appellant before him when he declined jurisdiction to entertain the substantive suit on the ground that the Appellant failed to raise the issue of incompetence of the arbitral tribunal based on its composition at the tribunal. As rightly argued, even if it is accepted that the Appellant failed to raise the issue at the tribunal, that will only entitle the trial judge to refuse to set aside the arbitral award on such ground, but this conclusion can only be made upon hearing the Appellant’s Originating Motion on the merit.
Let me point out that there is a remarkable dichotomy between the question that a Court SHOULD NOT from that which deals with the questions that a Court CANNOT consider and determine the dispute brought before it by litigants. While the CANNOT question presupposes the issue that a Court lacks jurisdiction to entertain a matter, the question SHOULD NOT addresses the issue that, for some reasons, the Court should not exercise its jurisdiction in considering the matter before.
The latter presupposes that, though the Court has jurisdiction to entertain the claim, the matter ought not be adjudicated upon on the ground that, for instance as it relates to the instant case, the matter is caught by the doctrine of res judicata.
It is inconceivable that a Court will decline to hear a party’s suit – application to set aside an arbitral award ‘ apparently merely on the basis that the ground sought to be relied upon is weak and/or unsustainable. This is what the learned judge had done in the instant case. The learned judge misconceived the scope of the principle of estoppel as it relates to the finality of an arbitral award. Just recently in a judgment of this Court delivered on 14th of November, 2018, in Appeal No. CA/L/1180/2017 ‘ Statoil Nigeria Limited Vs. Stardeep Water Petroleum Limited & Ors, where I was privilege to write the leading opinion, I said:
The right to challenge an arbitral award is a statutory right. Therefore, the learned trial judge erred when he held that the Cross-Appellant was caught up by estoppel of standing by/waiver on the ground since it refused to participate in the Arbitral proceedings, it cannot seek to set aside the award.
Furthermore, the learned trial judge appear to be lost on the earlier stated position that when faced with an application to set aside an award, the Court is not sitting in its appellate jurisdiction’ on appeal over the award, so that the proceedings at the lower Court is seen as a re-hearing of the issues addressed by the tribunal. I believe it is only on this ground, or in subsequent substantive suit’ where the Court is sitting as a Court of first instance, that the principle of estoppel per rem judicatam, waiver and/or standing by can be validly raised against the Cross-Appellant. I agree with the learned Cross-Appellant’s counsel that estoppel/waiver can only be invoked to prevent the Cross-Appellant from seeking legal redress in respect of the merits of the substantive questions submitted and resolved by the Tribunal, without more. (Underlining Mine)
Indeed, the doctrine of res judicata does not operate as a bar against a party seeking to exercise his statutory right to have an arbitral award set aside by the Court under the instances recognized under Section 29 and 30 of the ACA. Therefore, a Court cannot at the stage of determining an objection to its jurisdiction consider the question as to whether or not the suit is res judicata since the matter at hand does not call for a relitigation of the issues determined by the arbitral tribunal. As a matter of fact, if the lower Court had appreciated that that the Appellant’s substantive suit seeking to set aside the arbitral award is not directed at relitigating the issues decided by the arbitrators but to show to the Court reasons to warrant the nullification of the Arbitral Award, the learned judge would have come to a different conclusion and refrained from making pronouncement on issues that ought to be determined during the hearing of the substantive suit.
The law is well settled that a Court, in considering and determining an interlocutory application, must be circumspect and refrain from dwelling on any part of the substantive matter before it. The law clearly forbids a Court delving into a substantive matter before it, yet to be tried, at the time of considering a preliminary objection to the hearing of the substantive matter.
See NWADIKE v STATE (2015) LPELR 24550 (CA); A-G., FEDERATION v A-G., ABIA STATE & ORS (2001) LPELR 24862 (SC). In A-G., KWARA STATE & ANOR v LAWAL & ORS (2017) LPELR 42347 (SC), the Supreme Court, per BAGE, JSC held that ‘at interlocutory stage, no Court whether trial or appellate, is allowed to delve into the substantive matter in the pending matter and decide it. All decision reached in such a situation can only constitute a nullity.’
In the present case, rather than limit himself to a determination of the question as to whether it has jurisdiction to entertain the Appellant’s suit, the learned trial judge proceeded on a seemingly wrong premise when he highlighted and considered the issue as to ‘whether the Court has the power to set aside the award made by the Arbitral Panel’ and concluded at page 184 of the record of the Appeal that the Appellant’s ‘application has no merit and is accordingly dismissed’ when argument had not been heard in respect of the substantive suit. I am bold to say that the ground of res judicata and estoppel by waiver relied upon by the Respondent in its Notice of Preliminary Objection as well as the arguments canvassed thereon are well suited as a defence in response to the Appellant’s Originating Motion and not as a ground of Preliminary Objection as done in the instant case.
I should like to point out, having regard to what I have said so far, that the learned trial judge was wrong when, at the stage of determining the objection to jurisdisction, he concluded that the Appellant’s substantive suit is res judicata. The position, therefore, is that an Arbitral Award can only preclude a party from relitigating the issues determined or which ought to have been determined (if raised) by an Arbitral Panel. It is a bar against subsequent proceedings directed at the reopening for litigation or questioning the issues already decided. An application to set aside an Arbitral Award does not fall into the specie of such subsequent proceedings, so that not only is the lower Court seised with the jurisdiction to entertain the present suit, the Court is also endowed with the jurisdiction to refuse such application where it is found that the grounds upon which it is hinged is caught by the doctrine of res judicata.
Therefore, to hold, as the learned judge has held, that the Appellant’s suit is res judicata is, with respect clearly erroneous and does violence to the clear and unambiguous doctrine of res judicata.
It is noteworthy that, though the Respondent’s objection was predicated on grounds of estoppel by waiver and res judicata, as well as failure to file the Application within the period prescribed under Order 20 Rule 16 of the Federal High Court Civil Procedure Rules, 2000; the trial judge upheld the Respondent’s objection only on the ground of estoppel (res judicata), and no finding was made on the non-compliance with the Rules. The Respondent has neither appealed nor filed a Respondent Notice to affirm on other ground. As such, the Respondent is bound by the outcome of the appeal on the issue of res judicata which as I have found, was incorrectly applied in the present case by the trial Court.
Having thus found that the learned trial judge wrongly applied the principle of estoppel to the instant case, it follows that the Respondent’s preliminary objection has no merit; it ought to and is hereby dismissed by me.
In this connection and particularly with reference to the above observation, the less I say at this preliminary stage the better lest I fall into the uncommon trap of prematurely making observations which might appear to prejudge the issues in the substantive suit yet to be decided by the Court. I shall therefore refrain from making any pronouncement on the first and third issues formulated by the Appellant in this appeal. The issues bothering on the questions as to whether, having regards to Clause 9 of the Importation Agreement, the parties agreed to appoint three arbitrators and whether issue of lack of jurisdiction of the arbitral tribunal can be raised for the first time in an application seeking to set aside the award, being live issues are at best left for determination at the hearing of the substantive matter, which is still pending before at the lower Court and not pre-empted at the interlocutory stage of re-hearing of an objection in this appeal.
For all these reasons, I resolve issue two and four in the Appellant’s favour, while issue five is resolved in the Respondent’s favour. It thus becomes clear that the Appellant’s appeal is substantially meritorious. The Ruling of the Federal High Court, coram AUTA, J., (later C.J. now retired) delivered on 31st July, 2009 is hereby set aside. The suit is remitted to the Chief Judge that Court for reassignment and it shall be accorded accelerated hearing. Costs of N100,000.00 awarded in the Appellant’s favour.
MOHAMMED LAWAL GARBA, J.C.A.: I agree.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I agree with the lead judgment of my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA. I really do not have anything useful to add. I abide with the consequential order as to costs granted in favour of the Appellent.
Appearances:
Wale Adesokan, SAN with him, James Ujah and Eghosa Osagie.For Appellant(s)
Wale Ojemuyiwa, with him, Eli Elizabeth.For Respondent(s)
