METROLINE NIGERIA LIMITED & ORS v. ALHAJI MUKHTAR MOHAMMED DIKKO
(2018)LCN/12277(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2018
CA/A/223/2018
RATIO
ARBITRATION: MEANING OF ARBITRATION
“Arbitral proceedings are recognized means of resolving disputes. Arbitration is said to be conventional process; a party cannot be forced to arbitrate a dispute unless he agrees to it. It is generally perceived that by any agreement containing an arbitration clause it is an indication that the contract requires the parties to resolve their disputes through an arbitration process. Undoubtedly, arbitration is usually encouraged because arbitration clauses reduce the burden on Court systems to resolve disputes. It is said that in keeping with the informality of the arbitration process, the law is generally keen to uphold the validity of arbitration clauses even when they lack the normal formal language associated with legal contracts.” PER ABDU ABOKI, J.C.A.
COURT AND PROCEDURE: WHETHER AN ARBITRAL AWARD CAN BE SET ASIDE
“The issues of whether an award should be set aside therefore can only be considered by the Court having regard to all the circumstances of the case. See Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684; A.Savoia Ltd v. A.O. Sonubi (2000) 12 NWLR (Pt. 682) 539, Kano State Urban Dev. Board v. Fanz Construction Co. Ltd (1990) 4 NWLR (Pt. 142) 1. In exercising its discretion, the Court also has the power to refuse any call to set aside award where the issue is trivial as compared with the whole matter adjudicated upon by the arbitrator under the principle of deminimis non curat lex. See the decision of this Court in the case of Arbico Nig. Ltd v. Nigeria Machine Tools Ltd (2002) 15 NWLR (Pt.789) 1.” PER STEPHEN JONAH ADAH, J.C.A.
COURT AND PROCEDURE: WHO IS A LEGAL PERSON
“A legal person is any subject matter other than a human being to which the law attributes personality. Corporations are undoubtedly legal persons. See Nigerian Nurses Assoc. & Anor v. Att. General Federation & Anor. (1981) 11 -12 SC 1. A legal person though an artificial person has the legal capacity to sue and be sued in its own name. lt can enter into any legal agreement with any other person whether artificial or human beings. The law sees legal persons as separate from the persons who are shareholders or directors. See the cases of Olalekan v. Wema Bank Plc (2006) LPELR 2562 (SC), Bulet Int’l (Nig.) Ltd & Anor v. Olaniyi & Anor. (2017) LPELR – 42475 (SC); Interdrill (Nig.) Ltd & Anor v. UBA Plc (2017) LPELR – 41907 (SC) and Marina Nominees Ltd v. FBIR (1986) LPELR – 1839 (SC).” PER STEPHEN JONAH ADAH, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. METROLINE NIG. LTD
2. SHEBA INTERNATIONAL LTD
3. LAWAL ABOKI
(ln the name & Style of MESSRS AXIS COSULTTNG)
4. INTER-ARC CONCEPT LTD.
5. METSHADE LIMITED Appellant(s)
AND
ALHAJI MUKHTAR MOHAMMED DIKKO Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of the Federal Capital Territory, delivered on the 8th day of January 2018; by A.B, Mohammed, J. lt was a consolidated judgment in respect of Suits No FCT/HC/CV/1420/17 and FCT/HC/CV/5356/17.
The underlining facts leading to this case are that the parties have a contract which is the Joint Venture Agreement of June, 2004 to be referred to as JVA 2004. The JVA was entered into by Metroline Nigeria Ltd., Sheba International Ltd, Axis Consulting, Design Matrix Associates and Inter -Arc Concept Ltd., by the JVA, 2004, the parties expressly agreed as follows:
1. The parties hereto shall deploy their various expertise, skills, money, effects and labour to execute the project.
2. The Joint Venture shall commence on the……day of ……2004 and shall continue for the term of 11 years or until the completion and handing over of the project.
3. The business of the Joint Venture shall be carried on at Abuja in the FCT or at such other place or places as the Joint Venture parties shall from time to time agree upon.
4. The capital of the Joint Venture shall be provided by and belong to the Joint Venture in equal shares and if any time hereafter any further capital is required for the purpose of the Joint Venture the same shall unless otherwise agreed be contributed by the parties in equal shares.
5. The profit and loss of the business (including loss of capital) shall be divided between and born by the parties in proportion to the capital for the time being credited to them in the books of the Joint Venture.
6. Each party shall:-
a) Devote its reasonable time and attention to the Joint Venture business.
b) Punctuality pay and discharge its separate debts and engagements and indemnify the other parties and the Joint Ventures assets against the same and all proceedings, costs, claims or demands in respect thereof and
c) Be just and faithful to the other parties in all transactions relating to the Joint Venture and at all time give to the others a true account of all such dealings.
7. No party shall without the consent of the other: –
a) Forgive the whole or any part of any debt or sum due to the Joint Venture.
b) Except in the ordinary course of trade, dispose by loan, pledge, sale or otherwise any part of the Joint Venture property.
c) Assign or charge its interest in the Joint Venture.
d) After the expiration of the said 11 years or earlier completion and handing over of the Project, the Joint Venture may be determined by any of the Parties given to the others not less than 3 months notice in writing and on the expiration of such notice the Joint Ventures shall determine accordingly.
Any dispute or question in connection with the Joint Venture or this deed shall be referred to a single arbitrator to be appointed by the chief Judge of the FCT in accordance with the Arbitration Act/Law for the time being in force. (see page 3 to 4 of the Record of Appeal).
The parties had issues so the Respondent commenced Arbitration Proceedings by his application to the Chief Judge of the FCT for the appointment of a single Arbitrator. The matter was then referred to Arbitration.
The Appellants dissatisfied with the final award of the sole Arbitrator, Chikwnedu Madumere LLM, FCIATb (UK),C.Arb applied to the trial Court to set aside the said final award dated 3rd April 2017, meanwhile, the Respondent also applied to the trial Court to recognize the final award for the purpose of enforcing same as a judgment of the Court.
The learned trial Court thereupon delivered its consolidated judgment on the 8th day of January, 2018 refusing to set aside the final award of the Sole Arbitrator, Hon. Chikwendu Madumere LLM, FClArb. (UK) published on the 3rd day of April 2017, thereby recognizing the award as judgment of the trial Court.
The Appellants, being dissatisfied with the consolidated judgment of the 8th day of January, 2018 has appealed to this Honourable Court vide their Notice of Appeal dated 10th January, 2018 and filed on the 11th January, 2018.
The Record of Appeal was transmitted to this Court on 13th day of March, 2018. Additional record of appeal was compiled by the Respondent and transmitted to this Court on 11/5/2018 but deemed properly transmitted and served on 26/06/2018. The appellants filed their brief on 13/04/2019 while the respondent filed his own brief on 10/05/2018.
The reply brief of the appellant was filed on 23/05/2018.
At the oral hearing of this appeal on the 18th day of September 2018, the learned counsel for the appellants adopted their briefs of argument and urged the Court to allow the appeal.
The learned counsel for the respondent in his turn adopted his brief and urged the Court to dismiss this appeal.
The appellants distilled three issues for the determination while the respondent framed two issues. The issues framed by the appellants are worded as follows:-
“1. Whether the final award dated 3rd April, 2017 which affects the interests of third parties, contains error of law on the face of the award and where jurisdictional issues that were duly raised were not considered, is not liable to be set aside.
2. Whether the failure of the learned trial Court to properly determine the issues presented to it for adjudication will not make the consolidated judgment dated 8th January, 2018 liable to be set aside.
3. Whether disputes which are subject of arbitration agreement are arbitrable save where expressly ousted from being arbitrated upon by law or where any law provides a different procedure for arbitrating upon such matters.”
The respondent in his own brief distilled two issues for determination. These two issues are couched as follows: –
“1. Whether the action in the Court below aimed at setting aside the final award on the ground that same affects the interest of third parties and contains errors of law on the face of the award was not rightly dismissed by the Court below and whether the appellants in applying to the Court below to set aside the final arbitral award did not expand or canvass grounds of objection to the arbitral proceedings that were never canvassed before the Sole Arbitrator?
2. Whether the matter of the dispute as to the lawful entitlements of the Respondent in a company (5th Respondent) is not arbitrable by virtue of Section 35 of the Arbitration and Conciliation Act LFN 2004 read together with Section 251 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)?”
The issues couched by the respondent are mostly the issues raised by the appellants save that they are differently framed and worded. I shall use the three issues raised by the appellant for the consideration of this appeal. I shall take on the three issues together for consideration.
Issues One, Two and Three:
Issue one deals with whether an arbitrator’s award that failed to consider issues of law raised should not be set aside. Issue two deals with whether failure of the trial judge to properly determine issues forwarded to the Court should not cause the decision to be set aside. Issue three is whether the arbitral issues are issues to be taken by Arbitration.
The learned counsel for the appellant in his argument submitted that an arbitral award is liable to be set aside where the award affects the interest of third parties, and contain error of law on the face of it. He relied on Sections 29 and 30 (1) of the Arbitration and Conciliation Act Cap 18 LFN 2004. He relied on the cases of Triana Ltd v.UTB (2009) 12 NWLR (Pt. 1155) 313; O.U.O v. Chevron Nig. Ltd (2006) 2 WRN 167; Vitamalt Plc v. Abdullahi (2006) 12 WRN 35 and Atoju v. Triumph Bank Plc (2014) 5 WRN 54. He canvassed that the arbitrators award was different from the claim of the respondent/claimant.
He submitted that the authority of the Sole Arbitrator is dependent on the contract agreement contained in the Arbitration clause in the JVA 2004. He relied on the case of Dantata Jnr. V. Mohammed (2012) 14 NWLR (Pt. 1319) 122, 160.
That the holding of the trial Court that the appellants had participated in the arbitral proceedings without raising the objection was perverse. That it is after the final award had been published that they can apply to set it aside. He relied on the case of Taylor Woodrow (Nig.) Ltd v. GMBH (supra) @ 425.
The learned counsel for the appellant further contended that one of the grounds of the Originating Application before the learned trial Court is that the 5th Appellant is not a party to the JVA, 2004, which is the underlying Arbitration Agreement of the parties. He contended however that the learned trial Court, just like the Sole Arbitrator, did not determine whether the 5th Appellant was a party to the JVA to be able to rely on or take the benefit or the burden of the Contract for which it was not a party. He relied on the case ofAIDC v. Nig. LNG Ltd (2000) 4 NWLR (Pt. 653) 494; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 114, 162; Obionwu v. INEC (2014) 13 WRN 113, 137.
The learned counsel canvassed further that the lower Court did not determine whether the 5th Appellant was a party to the JVA 2004.
That the trial Court speculated to say that without the 5th Respondent the dispute arising from the JVA cannot be effectually and completely determined by the Sole Arbitrator. He canvassed that the decision thereunder was perverse. He urged the Court to set aside the trial Court’s decision. He relied on the cases of Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 114, 162; Obionwu v. INEC (2014)13 WRN 133,137.
The learned counsel for the Respondent in his brief contended that the matters pointed out and argued in this Court in paragraph 4.4 of the Appellants? Brief are matters touching on the entitlements of the Respondent in a company (the 5th Appellant) for which the Respondent’s Particulars of claims set out in paragraph 23 of the Respondent’s Point of Claims arebased and such have no place under lssues 1 and 2 as formulated by the Appellants and argued together under Issues No “1 & 2” in paragraph 4.2 to 5.0 of the Appellants’ Brief but are matters firmly under issue “3” formulated by the Appellants (see paragraphs 6.01 to 6.2 of the Appellants’ Brief of Argument) and Issue 2 formulated by the Respondent both of which calls forth or concerns principally Section 35 of the Arbitration and Conciliation Act LFN 2004 read together with Section 251 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) touching on the Operation and Management of a company. That an appeal is not considered or argued from the particulars of error but from the grounds of appeal. He relied on the case of Stirling Civil Eng. Nig. Ltd v. Mahmood Yahaya (2005) 22 NSCOR 1 Or (2005) 11 NWLR (Pt. 935) P. 181 part 204 paras E-F.
The Respondent further canvassed that by virtue of the recital of the JVA at page 18 of the Record, the object or entity which the 1st to 4th Appellants respectively and the Respondent, agreed to use to drive their joint venture to “build”, “operate” and “transfer” the Mabushi Market is the 5th Appellant. That the 5th Appellant is a company duly incorporated in Nigeria.
That this was not disputed by any of the parties. Indeed, vide Exhibit “A7” the Appellants disclosed the Memorandum and Articles of Association of the 5th Applicant in pages 159 – 173 of the Record. In p. 173 of the Record, this Court will see where the 1st to 4th Appellants subscribed their names under the various entities they operate under as the Subscribers and Directors of the 5th Appellant under the Companies and Allied Matters Act LFN 2004. By Section 251 (1) (e) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), all actions touching and bordering on the operation of the Companies and Allied Matters Act LFN 2004 under which the 5th Appellant is formed and the regulation of the operation of such companies must be initiated, heard and determined at the Federal High Court. Section 251 of the Constitution of the Federal Republic of Nigeria did not say that cases on the items contained therein should not be referred to arbitration.
The learned counsel for the Respondent conceded to the fact that part of the matters presented to the sole Arbitrator by the Respondents points of claim before the Arbitrator relate to the matters covered by Section 251(1) (e) of the 1999 Constitution (as amended) that they deal with grievances of a director in the 5th Appellant. That Section 251 of the Constitution deals with the appropriate Court to deal with matters of specific jurisdiction and does not operate to oust the arbitrability of disputes under the Arbitration and conciliation Act.
The parties in this case from the facts before us have taken the final award of the sole Arbitrator to the lower Court. The appellants wanted the award to be set aside while the respondent wanted the award to be enforced by the trial Court.
The issues raised here have to do with whether the award should not be set aside because, it affects the interest of third parties and contain error of law and jurisdictional issues that were not considered by the lower Court. Under the Arbitration and Conciliation Act, Section 31(1) thereof an arbitral award shall be recognized as binding and subject to Section 32 of the Act to be enforced by the Court in the same manner as the judgment of the Court. This is a great boost for the resolution of commercial disputes as it encourages the parties to choose the option of arbitration to litigation. Since the law is out to enhance settlement of commercial disputes by arbitration and conciliation, it is in the spirit of the law for the Court to be wary of refusing to recognize arbitral awards or allowing any party to truncate the goal of the law and render the efforts of the parties useless by calling for the repeal of the arbitral award without any just cause.
The arbitration and conciliation Act in pursuit of this goal makes the setting aside of an arbitral Awards by the Court to be discretionary. Sections 29 and 30 of the Act gives the Court the discretion to set aside an arbitral award at the instance of an aggrieved party if:
(a) the application is made within three months from the date of the award;
(b) there is proof that the award contains decisions on matters which are outside the scope of the arbitration;
(c) the arbitrator has misconducted himself;
(d) the arbitral proceedings or award has been improperly procured;
(e) there is a serious irregularity leading to a miscarriage of justice.
The issues of whether an award should be set aside therefore can only be considered by the Court having regard to all the circumstances of the case. See Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684; A.Savoia Ltd v. A.O. Sonubi (2000) 12 NWLR (Pt. 682) 539, Kano State Urban Dev. Board v. Fanz Construction Co. Ltd (1990) 4 NWLR (Pt. 142) 1. In exercising its discretion, the Court also has the power to refuse any call to set aside award where the issue is trivial as compared with the whole matter adjudicated upon by the arbitrator under the principle of deminimis non curat lex. See the decision of this Court in the case of Arbico Nig. Ltd v. Nigeria Machine Tools Ltd (2002) 15 NWLR (Pt.789) 1.
ln the instant case, one of the complaints of the appellants is that the final award dated 3rd April, 2017 in this case affects the interest of third parties. The 5th appellant was cited as the third party affected by the award. The 5th appellant is METSHADE LTD. From the record of the JVA before the Court, the parties who are Metroline Nig. Ltd. Sheba Int’l Ltd Axis Consulting; Design Matrix Associates and lnter-Arc Concept Ltd entered into an agreement recited at pages 17 and 18 of the record as follows:
“THIS JOINT VENTURE AGREEMENT is made this …. of June 2004.
BETWEEN the following parties: METROLINE NIG. LTD a company incorporated in Nigeria and having its registered office at 15B Rabah Road, Kaduna (hereinafter referred to as “Metroline” which expression shall wherever the con so admit includes its successors-in-title and assigns, SHEBA INTERNATIONAL LTD., a company incorporated in Nigeria and having its registered office at NK6 Junction Road, Kaduna (hereinafter referred to as “Sheba” which expression shall “wherever the con so admits includes its successor-intitle and assigns, AXIS CONSULTING with its office at 18 Muhammad Buhari Way, Kaduna (hereinafter referred to as AXIS, which expression shall wherever the con so admits include as successors-in-title and assigns), DESIGN MATRTX ASSOCTATE with its office at 48a lsa Kaita Road, Kaduna (hereinafter referred to as Design Matrix’, which expression shall wherever the con so admits include its successors-in-title and assigns) and INTER ARC CONCEPTS LTD., a company incorporated in Nigeria and having its registered office at 6a Rabah Close, Malali, Kaduna (hereinafter referred to as, lnter Arc” which expression shall wherever the con so admits include its successors-in-title and assigns).
WHEREAS:
The above stated parties who are engaged in the provision of professional service in various fields have collectively agreed to form a joint venture between themselves and have come together to form a company known as Metshade Limited, a special purpose Vehicle used to bid and win a build, operate and a Transfer Project (hereinafter referred to as “Mabushi Market”) in the FCT.
The said parties have thereby each nominated one of its Director to subscribed to the capital of the said Metshade Limited.
From the conception of the JVA, the 5th Appellant Metshade Ltd., is the child born out of the agreement of the parties. The 5th Appellant was created by the parties as a Special Purpose Vehicle used to bid for and win the Build, Operate and Transfer Project referred to as “Mabushi Market”.
In matters of contract, the issue of privity is fundamental. It is the law that it is only parties or privies to the contract that can enforce any term of the contract and claim benefits thereunder. In the instant case, the 5th Appellant was not a party to the JVA but is a child of that agreement and more to say, a beneficiary. By the nature of its position which is equidistant to the interest and claim of the parties to the JVA wherein it was created or born as a special purpose vehicle for the project binding the parties, its interest in the claim before the Court is dense. It is akin to that of a privy to the contract of the parties. In the case of Ndulue & Ors v. Obinaguoha & Ors. (2013) LPELR – 2257 (CA) this Court Per Agim JCA held on the meaning of privy as follows:-
“The word privy refers to a person having a legal interest of privity with another in any matter, or property. Blacks Law Dictionary (9th Edition ) at P. 1320 explains that – “A person having a legal interest of privity in any action, matter, or property; a person who is in privity with another. Traditionally, there were six types of privies: (1) privies in blood such as an heir and an ancestor; (2) Privies in representation, such as an executor and a testator or an administrator and an intestate person; (3) privies in estate, such as grantor and grantee or lessor and lessee;(4)privies in respect to a control – the parties to a contract; (5) privies in respect of estate and contact, such as a lessor and lessee where the lessee assigns an interest, but the contract between lessor and lessee continues because the lessor does not accept the assignee; and(6)privies in law such as husband and wife. The term also appears in the con of litigation. In this sense, it includes someone who controls a lawsuit though not a party to it; someone whose interests are represented by a party to the lawsuit; and a successor in interest to anyone having a derivative claim.”
See also Agbogunleri v. Depo & Ors (2008) LPELR – 243 (SC). In the instant case, the 5th Appellant cannot be said to be a party to the contract but cannot be denied as an interested party in this case. She is well located in her standing to be a party in this case. She cannot also be called a third party in the agreement of the parties. All the parties agreed to conceive her and gave birth to her as their vehicle to procure for them, build, operate and transfer contract which the JVA is all about. Calling the 5th Appellant a third party by the appellants is a misnomer and cannot be used to sabotage the award in the circumstance.
After the parties created the 5th appellant. It was the 5th Appellant that entered into Agreement to build, operate and Transfer with Abuja Investment a property Development Co Ltd. The Agreement between the Abuja Investment and Property Development Co. Ltd hereinafter known or to be referred to as AIPDC and the 5th Appellant Metshade Ltd., is at pages 7 to 40 of the Record of Appeal.
From the record before the Court, the 5th Appellant was registered by the parties as a special purpose vehicle for the project of the parties. One unique feature underlining that is the fact that the 5th Appellant being an incorporated company is a distinct legal personality. A legal person is any subject matter other than a human being to which the law attributes personality. Corporations are undoubtedly legal persons. See Nigerian Nurses Assoc. & Anor v. Att. General Federation & Anor. (1981) 11 -12 SC 1. A legal person though an artificial person has the legal capacity to sue and be sued in its own name. lt can enter into any legal agreement with any other person whether artificial or human beings. The law sees legal persons as separate from the persons who are shareholders or directors. See the cases of Olalekan v. Wema Bank Plc (2006) LPELR 2562 (SC), Bulet Int’l (Nig.) Ltd & Anor v. Olaniyi & Anor. (2017) LPELR – 42475 (SC); Interdrill (Nig.) Ltd & Anor v. UBA Plc (2017) LPELR – 41907 (SC) and Marina Nominees Ltd v. FBIR (1986) LPELR – 1839 (SC).
It is the authoritative position of our law that a Court or a Tribunal cannot and must not make an order either in favour or against a person who is not a party to an action before it.
It goes without saying also that a judgment given with an order against a person who ought to be a party but was not duly joined is to no avail. It cannot be allowed to stand. Cotecna Int’l Ltd v. Churchgate Nig Ltd & Anor (2010) LPELR – 897 (SC).
In the case of Oyeyemi & Ors v. Owoeye & Anor (2017) LPELR – 41903 (SC), Bage, JSC held that:
“The effect of order(s) made against person not joined as a party is that such order is a nullity and of no effect. In our view … where a person who ought to be joined to the suit had orders made against them by the trial judge, such proceedings ought to be a nullity, being a denial of the appellant’s right to fair hearing. See the case ofOvunwo & Anor v. Woko & Ors (2011) SCM 207 at 231 – 232; and NURTW & Anor. V. RTEAN & Anor (2012)3 SCM 171 at 178 – 179.
In the instant case, the dispute arose over the following issues
(a) Whether the affairs of the 5th Respondent was conducted in a manner that is fair and faithful to the interest of the Claimant;
(b) The certainty of the value of the Claimant?s stake in the 5th Respondent in connection with the Mabushi Market operations for the purpose of his exit from the 5th Respondent.
(c) Whether the 5th Respondent is a proper party in this arbitral reference; and
(d) Whether the dispute and the claims of the Claimant are capable of being settled by arbitration.
The appellants from their brief of argument canvassed that the lower Court made summation of issues which were not presented before it. The lower Court at pages 612 to 613 of the Record of Appeal held as follows:-
“As for the 5th Applicant, it is clear from the JVA that the parties agreed to form the 5th Applicant as a vehicle for the JVA. It is therefore part and parcel of that agreement. From Exhibits A1, A8 and A9, the JVA Agreement, the points of claim and points of Defence respectively, it is clear that without the 5th Applicant (the special purpose vehicle for the JVA), the dispute arising from the JVA cannot be effectually and completely determined by the Sole Arbitrator. This is no doubt one of the most important tests for determining the joinder of parties as held in judicial several decisions.
See Green v. Green (1987) 3 NLWR (Pt. 61) 480; Mogaji v. Mogaji & Ors (1986) LPELR – 1891(SC), per Karibi-Whyte, JSC at page 41, paras B – F; and Bello v. INEC & Anor (2010) LPELR -767 (SC), per Adekeye, JSC at page 76, paras. D – F.”
The 5th appellant was made an issue. Its operations formed the nucleus of the dispute of the parties. In fact, they were querying whether the affairs of the 5th Appellant were conducted fairly. The 5th Appellant as was rightly observed by the lower Court is a fundamental factor for the effectual and effective resolution of this case. He is a necessary party. His joinder in the proceedings of the arbitrator and the lower Court was apt and proper. Without it being in the proceedings, the whole enquiry would have collapsed. There is therefore nothing wrong with the decision of the lower Court allowing the Court or Tribunal to make a pronouncement on the rights and obligations of the 5th appellant.
Furthermore, the parties are locked down over argument whether the dispute and the claims involved are capable of being settled by arbitration. The parties by their JVA inserted an arbitration clause.
The modern day commercial practice allows room for arbitration of dispute clause in a contract agreement. This arbitral clause is usually treated separately from the core contract. It is inserted in a contract to make room for compulsory arbitration in case of disputes and contentions over the right and obligations of the parties. See Omeaku & Sons Ltd v. Rainbownet Ltd & Ors (2013) LPELR ? 22055 (CA). An arbitration clause is always at the instance of the parties. When parties on their own enter into an agreement to submit any dispute arising from their transaction to arbitration, it is a choice that is absolutely theirs and the Court will not interfere to block the chances of the parties to enter into any agreement they wish to make save that such agreement must be legal and must not be for any illicit purposes. When the agreement is finalized, the agreement takes over and it is not the business of the Court to find out whether it is a transaction that can be heard by same Courts or the other. In the instant case clause 8 of the JVA says:
“Any dispute or Question in connection with the JVA shall be referred to a single Arbitrator to be appointed by the Chief Judge of the FCT in accordance with the Arbitration Act law for the time being in force.”
This clause takes the dispute of the parties from any Court but before a single arbitrator. The issue of jurisdiction raised by the appellant in this case therefore does not hold any water. The issue is resolved in favour of the respondent. We hold that the arbitral Tribunal has jurisdiction to look into the dispute of the parties as submitted by the parties through their own agreement.
From the foregoing therefore, I hold that all the issues raised here are resolved in favour of the respondent. This appeal is lacking in merit and I order it dismissed.
The parties shall bear their respective costs.
ABDU ABOKI, J.C.A.: I have read before now, a draft of the lead judgment just delivered by my Learned Brother STEPHEN JONAH ADAH, JCA. I agree that the appeal is unmeritorious and should be dismissed.
The facts that led to the appeal and the reliefs sought by the parties are well spelt out in the lead judgment and I will not repeat same.
My Learned Brother has dealt exhaustively with all the issues raised in this appeal and
I adopt his judgment as mine. However, and just for purpose of emphasis, I will put in one or two words of mine in respect of the binding nature of arbitral awards, and the duty of Court to give effect to the arbitration clause in an agreement.
Arbitral proceedings are recognized means of resolving disputes. Arbitration is said to be conventional process; a party cannot be forced to arbitrate a dispute unless he agrees to it. It is generally perceived that by any agreement containing an arbitration clause it is an indication that the contract requires the parties to resolve their disputes through an arbitration process. Undoubtedly, arbitration is usually encouraged because arbitration clauses reduce the burden on Court systems to resolve disputes. It is said that in keeping with the informality of the arbitration process, the law is generally keen to uphold the validity of arbitration clauses even when they lack the normal formal language associated with legal contracts. It needs to be echoed that parties generally should not be encouraged to circumvent arbitration agreement since both parties manifested their respective intention in the contract agreement signed by them to refer the matter to arbitration when dispute arises. Therefore, arbitration agreements are enforceable even if vague, so long as the parties’ intention to arbitrate as a final and binding mechanism for the resolution of their dispute is evinced therein.
In the instant case, one of the complaints of the Appellants is that the final award dated 3rd April, 2017 in this case affects the interest of METSHADE LTD., whom the Appellants cited as a third party. The Joint Venture Agreement spans pages 17 and 18 of the Record. It reads thus:
THIS JOINT VENTURE AGREEMENT is made this …….of June, 2004.
BETWEEN the following parties: METROLINE NIG LTD,a company incorporated in Nigeria and having its registered office at 158 Rabah Road, Kaduna (hereinafter referred to as “Metroline”, which expression shall wherever the con so admits include its successors-in-title and assigns), SHEBA INTERNATIONAL LTD., a company incorporated in Nigeria and having its registered office at NK6 Junction Road Kaduna (hereinafter referred to as “Sheba” which expression shall wherever the con so admits includes its successors-in-title and assigns), AXIS CONSULTING with its office at Muhammad Buhari Way, Kaduna (hereinafter referred to as “AXIS which expression shall wherever the con so admits include its successors-in-title and assigns), DESIGN MATRIX ASSOCIATE with its office at 48A Isa Kaita Road, Kaduna (hereinafter referred to as Design Matrix which expression shall wherever the con so admits include its successors-in-title and assigns), and INTER ARC CONCEPTS LTD; a company incorporated in Nigeria and having its registered office at 6A Rabah Close, Malali, Kaduna (hereinafter referred to as “Inter Arc” which expression shall wherever the con so admits include its successors-in-title and assigns).
WHEREAS:
The above stated parties who are engaged in the provision of professional service in various fields have collectively agreed to form a joint venture between themselves and have come together to form a company known as Metshade Limited, a special purpose vehicle used to bid and win a build, operate and Transfer project (hereinafter referred to as “Mabushi Market”), in the FCT.
The said parties have thereby each nominated one of its Director to subscribe to the capital of the Metshade Limited.
In OGUN STATE HOUSING CORPORATION vs. ENGINEER OLU OGUNSOLA (2000) 14 NWLR PART 687, this Court, held that parties to a written contract agreement are bound by the terms of a contract which the parties in their free-will mutually adopted and signed provided such terms are not illegal or contrary to Public Policy.
In the appeal under consideration, having jointly agreed to come together to form the 5th Respondent, its operations were pivotal in the dispute of the parties. The 5th Respondent, as rightly observed by the Trial Court is a fundamental factor for the effectual and effective resolution of this case. He is a necessary party. His joinder in the proceedings of the arbitrator and the Trial Court cannot be faulted. without it being in the proceedings, the whole enquiry would have suffered a setback.
It is for this reason and the more detailed reasons given by my Learned Brother STEPHEN JONAH ADAH, JCA that I also find that this appeal is unmeritorious and ought to be dismissed.
It is hereby dismissed by me. I also abide by the consequential order contained in the lead judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, STEPHEN JONAH ADAH, JCA. I agree with the reasoning, conclusions and orders therein.
Appearances:
M. Ndayako, Esq. with him, .C. Onyezubelu, Esq.
For Appellant(s)
O.J. Aboje, Esq. with him, T.A. OsajiFor Respondent(s)
