NIGERIAN NATIONAL PETROLEUM CORPORATION v. ROVEN SHIPPING LIMITED (2014)

NIGERIAN NATIONAL PETROLEUM CORPORATION v. ROVEN SHIPPING LIMITED

(2014)LCN/7606(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of February, 2014

CA/L/968/2011

RATIO

ARBITRATION: ARBITRAL AWARD; THE PROVISION OF THE ARBITRATION AND CONCILIATION ACT ON WHEN THE COURT MAY SET ASIDE AN ARBITRAL AWARD AND HOW THE DECISION OF THE ARBITAL TRIBUNAL SHALL BE MADE

COURT: MISCARRIAGE OF JUSTICE; THE DEFINITION OF THE MISCARRIAGE OF JUSTICE

As rightly postulated by the Appellant, citing LAMIE V. DPMS LTD. (2005) 12 S.C. PART 1 PAGE 93 AT 109, Onnoghen JSC observed as follows
“The terms “miscarriage of Justice” has been variously defined but its essence is that it is the decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantial rights of a party. As it is used in constitutional standards of reversible error in Judgment, miscarriage of Justice means a reasonable probability of more favourable outcome for the Defendant”. per. RITA NOSAKHARE PEMU, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

Between

NIGERIAN NATIONAL PETROLEUM CORPORATION Appellant(s)

AND

1. ROVEN SHIPPING LTD
(OWNERS OF “MT VENTURE”)
2. DIGNITY SHIPPING LTD
(OWNERS OF “MT DIGNITY”) Respondent(s)

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): The action, subject matter of this appeal was commenced by motion on notice dated 27th July, 2004 and filed on same date.

The motion on notice sought an order of Court (the Federal High Court, Lagos) that the “Partial Award” made between the parties to the above mentioned arbitration, and in respect of which reasons for the award were given on 23rd June, 2004 be set aside on the grounds stated hereunder…”

The Applicant (Appellant in this Appeal) relied on four grounds in support of his motion on notice – pages 3-4 of the Record of Appeal.

Ex-facie, that very originating process was signed by an unknown person for Seyi Sowemimo SAN, which should have rendered the process incompetent, but I shall come back to this issue.

The Applicant had filed written submission in support of his application. The Respondents did same and on the 14th of March, 2005, the application was taken.

On the 6th of February, 2006, the learned trial Judge ruled on the application, and refused the application to set aside the arbitral award on all the grounds canvassed by the Applicant, including that of against public policy.

The Appellant is dissatisfied with the decision, and consequent on this, and pursuant to the Practice Direction of this Honourable Court, filed a Notice of Appeal on the 26th of April, 2012 with four (4) Grounds of Appeal – pages 105-107 of the Record of Appeal.

FACTS
The Respondents had, by Charter Party on the “SHELLTIME 3″ Form dated 1st November 1995, in Lagos, agreed to Charter to the Appellant their motor tanker ‘MT VENTURER” for the carriage of petroleum products from the coastal refineries to some designated places both in and out of Nigeria.

By an addendum dated 2nd December, 1996, the Charter party of MT Venturer was amended by substituting it with “MT DIGNITY”, and the effective date for this substitution was the 1st day of August, 1996.

At the end of this assignment, and upon determination of the Charter party, the Respondents submitted their final hire invoice, which included claim for interest on hire payments delayed by the Appellant in excess of 90 days.

The Appellant refused to pay, and the ensuing dispute was referred to arbitration in the manner agreed in the Charter Party Contract.

One of the issues submitted to the arbitrator is whether, having regard to the terms of the Charter Party, the Appellant herein (i.e. NNPC) is obliged to pay interest on delayed hire to the Respondents. This was an issue of construction.

The panel found for the Claimant (Respondent herein). The Appellant filed an application at the Federal High Court asking the Court to set aside the Partial award which the Court refused.

The Appellant filed his Brief of Argument on the 15th of June, 2012. It is settled by Oluseyi Sowemimo SAN.

The Appellant distilled three (3) issues for determination which are:
(I) WHETHER THE MANNER OF CONSTRTICTION OF THE RELEVANT PROVISIONS OF THE CHARTER PARTY IS IN CONFORMITY WITH THE ESTABLISHED PRINCIPLES OF CONSTRUCTION OR THE CANNONS OF INTERPRETATION RECOGNISED BY LAW. IN OTHER WORDS, IS THERE AN ERROR OF LAW ON THE FACE OF THE AWARD? The Issue is distilled from grounds 3:1, 3:2 and 3:5 of the Notice of Appeal.

(II) ARE THE ARBITRATORS GUILTY OF A MISCONDUCT ARISING FROM A REWRITING OF THE CONTRACT FOR THE PARTIES WHICH HAS RESULTED IN A MISCARRIAGE OF JUSTICE? This issue flows from ground 3:1 of the Notice of Appeal.

(III) WHETHER THE PARTIAL AWARD IS IN CONSONANCE WITH THE STATUTORY REQUIREMENT STIPULATING FOR A REASONED AWARD AND/OR IN CONFORMITY WITH THE DEMANDS OF TRANSPARENCY AND/OR A DECISION TO REFER THE MATTER TO A TRIBUNAL OF THREE. This issues flows from ground 3 of the Notice of Appeal.

The Respondents filed their Brief of Argument on the 5th of July, 2012. Same is settled by Babajide Koku SAN. Two issues were distilled by the Respondents for determination by this Court.

They are:

(1) WHETHER THE LOWER COURT WAS RIGHT IN REFUSING TO SET ASIDE THE ARBITRAL AWARD.
(2) WHETHER THE FAILURE TO INCLUDE THE DISSENTING ARBITRATOR’S OPINION OR REASONS OR ARGUMENT IN THE ARBITRAL AWARD MAKES THE AWARD BAD AND LIABLE TO BE SET ASIDE.

The Appellant filed a reply brief on the 17th of July, 2012.
I shall delve into considering this appeal on its merits, but if I find that the originating process is not competent (a point which neither of the parties observed) then it renders the entire proceedings at the lower Court null and void.

Essentially, the Respondents adopt issue No. 3 of the Appellant’s issues for determination. However, I shall consider this appeal on the Appellant’s issues proffered for determination.

ISSUE NO 1. It is the contention of the Appellant, that there are three recognized grounds for impugning an award, two of which are statutory. One of them is the common Ground of Error on the face of the Award; citing Section 29 (2) of the Arbitration and Conciliation Act which provides that a Court may set aside an award if it contains decisions on matters which are beyond the scope of the submission, and then under Section 30 of the Act which stipulates that an award can be set aside where an arbitrator has misconducted himself.

He further contends that the Partial Award, the subject matter of this appeal has offended the three grounds highlighted, because it contains an error of law on the face of the award. He submits that the arbitrators rewrote the contract for the parties, rather than interpreting the document before them – citing LARMIE VS. DPMS LTD (2005) 12 S.C. PART 1 PAGE 93 AT 103.

He cites TAYLOR WOODROW vs. S. E. GMBH (1993) 4 NWLR PART 286 PG. 127 AT 145 where Oguntade J.S.C (quoting from Halsburys’ Laws of England 4th Edition – Paragraph 623 at 334) stated as follows:

“…and where the question referred for arbitration is a question of construction, which is generally speaking a question of law, the arbitrators’ decision cannot be set aside only because the Court would have come to a different conclusion; but if it appears on the face of the award that the arbitrator has proceeded illegally, as for instance, by deciding on evidence which was not admissible or on principles of construction which the law does not countenance, there is error in law which may be ground for setting aside”

He submits that the Arbitrators are guilty of misconduct, as the manner of construction adopted by them has occasioned miscarriage of justice, citing ARAKA V. EJEAGWU (2000) 12 S.C. PART 1 AT 99. The parties to the Arbitration had submitted to the Arbitrators a preliminary point concerning the construction of provisions of Rider Clauses 15 and 18 of the Charter Party – page 55 of the Record of Appeal.

The contentions of the parties regarding the proper construction of these provisions were summarized in the Award (pages 56-59 of the Record of Appeal).

He submits that the learned trial Judge did not re-examine the rival contentions of the parties on the issue of interpretation of Clauses 15 & 18 in order to ascertain whether there was actually an error of law on the face of the award, or whether there had been a miscarriage of Justice.

He submits that it is astonishing for the majority arbitrators to hold and for the Court to affirm that there is no conflict between Rider Clauses 15 and 18. That there is a clear inconsistency in the two provisions, and indeed there is conflict between Clauses 15 and 18.

Citing FORBES v. GITT (1922) 1 Ac. 256, where Lord Wrenbury observed at Page 259 thus:

“The principle of law to be applied may be stated in a few words. If in a deed an earlier clause is followed by a later clause which destroys altogether the obligations created by the earlier clause, the latter clause is to be rejected as repugnant and the earlier clause prevails. In this case the two clauses cannot be reconciled and the earlier provision in the deed prevails over the latter”

He submits that Clause 18 is inelegantly worded as to be incapable of any precise meaning, and that indeed the meaning placed on it by the majority arbitrators was contrived, as they ended up making a new contract for the parties.

Submitting that there are some deleted words in Rider Clause 18, the case of BAUMVOLL MANUFACTUR VON SHEIBER V. GILCHREST & CO (1892) 1 QB. 253 AT 255 is instructive. There, Lord Esher remarked as follows:

“We have a right to look at what is written into the printed form and at what is struck out”

He also cites LOUIS DREYFUS CIE VS. PARNASO CIA NAVIERA SA (1959) 1 QB 498 AT 513 where Diplock J. (as he then was) said

“…But while I think that I must first look at the Clause in its actual form, without the deleted words, if I find the clause to be ambiguous, I think that I am entitled to look at the deleted words to see if any assistance can be derived from them in solving the ambiguity, bearing in mind the prima facie rule I have indicated”

He submits that whichever way anyone looks at the clause in the instant case, it makes only little sense, and in such a case, the Courts must ignore such a clause, and declare same ineffective citing EJR LOVELOCK VS. EXPORTERS (1968) 1 LLYODS REP. 163. The Appellant submits that Rider Clause 18 is inelegant as regards its grammatical construction and vagueness.

He further submits that if the provisions of Rider Clause 18 were as clear as that of Clause 15, the parties would not have needed to arbitrate over the issue of interest. It seems to me that the Appellant delved into his argument of Issue No 2 in paragraph 5:10 of his Brief of Argument.

He should have dealt with issue No 2 in another separate paragraph.
However, in support of this issue, he submits that the majority arbitrators acted contrary to recognized authorities, by re-writing the Charter party on the issue of interest payments. This has occasioned a miscarriage of Justice, as heavy financial burden has been imposed on the Appellant. That by re-writing the provisions of the Charter party, the majority arbitrators have acted outside the submission. The Award should have been set aside, consequently, by the lower court, he submits.

Again it seems to me that in arguing issue No 3, the Appellant did so in paragraph 6 of his Brief of Argument. He should have headed it ISSUE No.3 for purposes of clarity.

He submits, in arguing issue No 3 that reasons were not given for the giving of the Award, and this is contrary to Section 26(3) of the Arbitration and Conciliation Act which provides that reasons must be given for an Award, unless the parties have otherwise agreed, or where the Award is an agreed one. Section 24(1) provides that where the arbitral tribunal comprises more than one arbitrator, any decision of the tribunal shall unless otherwise agreed by the parties, be made by a majority of all its members.

That when at page 10 of the Partial Award (page 59 of the Record) the Tribunal stated therein that the Tribunal

“By a majority decision (one Arbitrator dissenting) hereby decides as follows”

the parties are left with no clue whatsoever and cannot determine whether the reference to a dissenting opinion is correct or justified.

He submits that parties who have referred a dispute to a panel of three are entitled to have the views of all arbitrators and should be able to decipher for themselves what the majority Award is. He submits that the dissenting opinion ought to be attached to the Award. That except for a concurring opinion, the opinion of each and every arbitrator should be clearly stated. That even the identity of the dissenting arbitrator is undisclosed. That the absence of any opinion by the dissenting arbitrator gives an air of incompleteness to the Award, and that mere fixture of their signatures does not absolve the arbitrators from providing in the Award evidence of their joint participation. He submits that the only way in which all three arbitrators will be able to show that they took part in, and vouch for the determination of the award, is by expressing a view individually on the dispute submitted to them. That where there is a concurring opinion, the arbitrators can, submit a joint award, but where there is a dissension, the dissenting arbitrator ought to render a dissenting opinion.

In his brief of argument, the Respondent submits that the Appellant contends that the arbitrators have applied principles of construction, which the law does not countenance, but that the Appellant has failed to mention or identify the alleged principles of construction applied by the arbitrators, neither has it been shown how this alleged error appears on the face of the Award. He submits that no cannon of interpretation, or a principle of construction has been misapplied on the face of the Award. He submits that the contention by the Appellant that the arbitrators re-wrote a new contract for the parties is misconceived. Citing TAYLOR WOODROW (NIG) LTD V. S. E. GMBH (1993) 4 NWLR (PT.286) 127 AT 144, where OGUNDARE JSC held that

“To determine whether there has been misconduct, one must necessarily first answer the question: What is an error in law, on the face of an award? As was decided by the Privy Council in CHAMPSEY BHARA & CO VS. JIVRAJS BALLO SPINNING AND WEAVING CO. (1923) A.C. 480: (1923) ALL E.R REP. 235 per Lord Dunedin at PP.487-488 of the former Report, the expression was thus defined:

“An error in law on the face of the award means, in their Lordships view, that you can find in the award or a document actually incorporated thereto, as for instance not a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous. It does not mean that if in a narrative a reference is made to a contention of one party that opens the door to seeing first what that contention is, and then going to the contract on which the parties’ rights depend to see if that contention is sound”

Where it is impossible to say, from what is shown on the face of the award, what mistake, if any, the arbitration has made or that the arbitration has tied himself down, on the face of his award, to some special legal preposition which is unusual, the award will stand”

Urges Court to look at Section 48 Part 111 of the Arbitration and Conciliation Act, which stipulates the Grounds for setting aside an international arbitral award by the Courts – citing ORUBU V. NEC (1988) 5 NWLR (PART 94) 323 AT 568; EDET AKPAN VS. STATE (1986) 3 NWLR (PT.27) 275 AT 239.

He submits that neither the arbitration tribunal, nor the lower court have made a new contract for the parties. There are no new contractual terms introduced. That Rider Clause 18 was in the Contract between the parties, which clause provides in essence that interest would be paid for hire payment delayed for over 90 days. That indeed the Appellant conceded in paragraph 5:1 in his Brief of Argument that Rider Clause 18 provides for the payment of interest.

He submits that no internal inconsistency exists between Rider Clauses 15 and 18 as the two Clauses apply in different circumstances, which circumstance was explained clearly by the arbitrators – (paragraph 25 and 26 of the Reasons for the Award at page 60 of the Record of Appeal).

The Respondent submits that under our law, it is the majority decision that constitutes the Award where an arbitration panel consists of three arbitrators as in this case – referring to Section 24 (1) of the Arbitration and Conciliation Act. That by virtue of Article 31 (1) of the 1st Schedule to the Act, and Section 15 (1) of the Act, the dissenting opinion and/or argument and/or reasons of a minority arbitration, does not form part of the Arbitral Award.

That Section 24(1) of the Act makes provision for parties to agree that the Award shall not constitute only the majority decision. No such agreement exists, and the Appellant has refused to refer to any.

He submits that a dissenting minority arbitrator is legally obligated to sign the Award – referring to Section 25 (1) and (2) of the Act. Therefore neither the arbitral tribunal, nor the dissenting arbitrator, was obligated to attack the dissenting opinion to the award, or to otherwise provide the dissenting opinion to the parties.

He submits that the case of EUROPEAN GRAIN AND SHIPPING LTD V. JOHNSON (1982) LLYODS LAW REPORT 414 is distinguishable from the present case in its facts and indeed the applicable law.

That no allegation has been made in this case that any arbitrator absented himself/herself from any tribunal sitting or failed to participate in deliberating over the award.

He submits that none of the Arbitrators misconducted himself by failing to attack or otherwise provide the minority dissenting opinion.

In considering this Appeal, I shall do same on the issues proffered by the Appellant.

ISSUE NO. 1 – As rightfully postulated by the Respondents in their Brief of Argument, the Appellant has not shown how the alleged error appears on the face of the record. That the Appellant had failed also to identify or mention the alleged principles of construction applied by the arbitrators.

It is instructive to note that the Charter party, which is the organic document regulating the affairs of the parties to the Charter party was signed by the respective parties – pages 26 -39 of the Record of Appeal.
The presumption is that they agree to the terms in the Charter party, which terms include the Rider Clauses therein.

Ex facie the charter party, includes delivering petroleum products from the Coastal Refineries, to places within Nigeria and West-African sub-region and any other locations named by the Pipelines and Products
Marketing Company in Europe/Africa/Asia and South America – page 26 of the Record of Appeal.

The provisions from Part III of the Arbitration and Conciliation Act Cap A18 deal with Additional provisions relating to International Commercial Arbitration and Conciliation.
By Section 47(5) of the Act
“In all cases the Arbitral tribunal shall decide in accordance with the terms of the contract and shall take account of usages of the trade applicable to the transaction”
By Section 48 (a) (vi) and (vii) of the Act, the Court may set aside an arbitral award if the party making the application furnishes proof
(vi) “That the composition of the arbitral tribunal, or the arbitral procedure, was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Act from which the parties cannot derogate; or
(vii) where there is no agreement between the parties under sub paragraph (vi) of this paragraph, that the composition of the arbitral tribunal or the arbitral procedure was not in accordance with this Act…”
By Section IV Article 31 of the Arbitration and Conciliation Act, it says;
“When there are three arbitrations, any award or other decisions of the arbitral tribunal shall be made by a majority of the Arbitral Tribunal”
By Section IV Article 32(1) of the Act, it says:
(1) “In additional to making a final award, the arbitral tribunal shall be entitled to make interim, interlocutory, or partial award”
(2) The award shall be made in Writing and shall be final and binding on the parties….”
Rider Clause 15 in the Charter party has this to say:
“In default of punctual and regular payment as herein specified, the owner shall notify the Charterers whereupon the charterers shall make payment of the amount due within forty-five (45) days of receipt of notification from the owner, failing which the owner will have right to withdraw the vessel from the service of the charter, charterers shall not be obliged to pay owners interest accruing on any delayed payment as above”
Page 36 of the Record of Appeal.
Rider Clause 18 in the Charter party says:
“Notwithstanding any provision to the grant contrary in this charter, owners hereby agreed to a 90 days credit in the payment of Charter fees free interest”
It is true therefore that the provisions of these clauses are clear and unambiguous. There is no doubt too that the provisions of Rider Clause 15 are subject to the provisions in Rider Clause 18.
There is nothing, in my view, in the manner of construction of these two provisions, that contravenes the established principles of Construction or the cannon of interpretation recognized by law.
The partial Award made, was in respect of the issue whether the Charter Party signed by the parties in dispute in the arbitration, (taken as a whole and in view of Rider Clauses 8, 15 and 18) allows the Claimants to charge interest on unpaid hire – page 45 of the Record of Appeal.
In paragraphs 1:3 and 1:4 of the Partial Award – the Arbitrators had this to say
1:3 “The Arbitrators are agreed that there is no internal inconsistency between Rider Clause 15 and 18.
1.4 That being the case, we are satisfied that the clear import and intendment of the parties, as can be discerned from the agreement taken as a whole, and, in particular, Printed Clouse 8 and Rider Clause 15 and 18 is that the Claimant would be entitled to claim interest on unpaid hire after the expiry of the 90 days interest free credit period from the Respondents.”
It is on the basis of this that the partial Award was made.
I find no reason to disturb this. There is nothing to show that there is any error of law on the face of the award. At least the Appellant has been unable to establish any.
At page 10 of the “Reasons for the Award” – (page 59 of the Record of Appeal), the Arbitral Tribunal observed under the heading “CONSIDERATION OF ISSUES” in paragraphs 21, 23 and 25 thus
PARAGRAPH 21: “clearly the central issue to be determined is the correct interpretation of printed clause 8 and Rider Clauses 15 and 18 of the Charter Party”
PARAGRAPH 23: “The Tribunal finds that the only meaning that can be attributed to Rider Clause 78 is that:
(a) charterers remain liable to pay hire even when they have defaulted on the due date, the due date being the first day of each month in advance;
(b) if they pay within ninety days after due date, they will not pay interest and
(c) if they pay later than ninety days after due date, they must pay interest”
In Paragraph 25, the Arbitral Tribunal continued
“Having considered the arguments and legal decision cited by the parties, the majority decision of the Tribunal is that in providing for a 90 days free interest period, rider clause 18 clearly contemplates that the charterers are to pay interest from the ninety-first day after the due date; if they remain in default…”
The Arbitral Tribunal construed the words of Rider Clauses 15 and 18 in their ordinary and natural meaning and that suffices.
Indeed in paragraph 27 of the “Reasons for the Partial Award made in Lagos on the 31st day of March, 2004 – page 61 of the Record of Appeal, the Arbitral Tribunal had this to say:
“The Tribunal has also considered the other arguments advanced by the Respondent as to why effect should not be given to Rider Clause 18, and does not find them compelling. The supposed inelegance in the drafting of the Clause is no warrant for us to ignore its clear meaning. Neither does the Tribunal find any merits in the Respondent’s argument that the normal consequence for non-payment of hire is withdrawal of the vessel and that this therefore excludes the obligation to pay interest on delayed payments. As we have observed above, both Rider Clauses 15 and 18 contemplate that delayed payment would normally attract interest obligations, except to the extent that such obligation is excluded by agreement. The only circumstance in which the obligation is excluded is where the Owners exercise their right to withdraw the vessel under Rider Clause 15.” – page 61 of the Record of Appeal.
There is no evidence to show that such obligation to pay interest (when payment is delayed) is excluded by agreement. Since that obligation subsists in the agreement, then it binds the parties to the Charter party, and a fortiori same binds the Appellant.
This issue is resolved in favour of the Respondent and against the Appellant.

ON ISSUE NO 2
May I ask, what has the arbitrators re-written? Where in the Charter party have they changed any clause or term? Particularly with regard to the issue of interest payment.

This issue can safely be said to be the same as Issue No 1.

If I take this definition as it affects the situation at hand, the question is whether the decision of the arbitrators in the partial Award was prejudicial or inconsistent with the substantial rights of a party. It is my view that where the arbitrators have found from the facts, before them that a party is entitled to rights, it is their duty to enforce that right.

For purposes of elucidation, I shall reproduce the PARTIAL AWARD made on the 31st day of March, 2004.

“IN THE MATTER OF AN ARBITRATION TO SETTLE DIVERSE DISPUTES THAT HAVE ARISEN UNDER THAT ”SHELLTIME 3″ TIME CHARTERPARTY DATED 1ST NOVEMBER, 1995 FOR THE HIRE OF THE MOTOR TANK VESSELS M. T. “VENTURER” AND M. T. “DIGNITY”.

AND IN THE MATTER OF AN ARBITRATION UNDER THE ARBITRATION AND CONCILIATION ACT.
(CAP. 19, LAWS OF THE FEDERATTON OF NIGERIA,1990)

BETWEEN:
1. ROVEN SHIPPING LIMITED
(OWNERS OF THE M. T. ‘VENTURER’)
2. DIGNITY SHIPPING LIMITED
(OWNERS OF THE M. T. ‘DIGNITY’) – CLAIMANTS

AND

NIGERIA NATIONAL PETROLEUM CORPORATION – RESPONDENT

PARTIAL AWARD

1.1 THIS PARTIAL AWARD IS ONLY CONCERNED WITH THE ISSUE WHETHER THE CHARTER PARTY SIGNED BY THE PARTIES IN DISPUTE IN THIS ARBITRATION, TAKEN AS A WHOLE, AND, IN PARTICULAR, AS PROVIDED FOR IN THE PRINTED CLAUSE 8 THEREOF AND RIDER CLAUSES 15 AND 18, ALLOWS THE CLAIMANTS TO CHARGE INTEREST ON UNPAID HIRE.
1.2 WE HAVE READ CAREFULLY THE SUBMISSIONS FILED BY COUNSEL ON BEHALF OF THE CLAIMANTS AND THE RESPONDENTS ON THE POINT.

1.3 THE ARBITRATORS ARE AGREED THAT THERE IS NO INTERNAL INCONSISTENCY BETWEEN RIDER CLAUSES 15 AND 18.

1.4 THAT BEING THE CASE, WE ARE SATISFIED THAT THE CLEAR IMPORT AND INTENDMENT OF THE PARTIES, AS CAN BE DISCERNED FROM THE AGREEMENT TAKEN AS WHOLE, AND, IN PARTICULAR, PRINTED CLAUSE 8 AND RIDER CLAUSES 15 AND 18 IS THAT THE CLAIMANT WOULD BE ENTITLED TO CLAIM INTEREST ON UNPAID HIRE AFTER THE EXPIRY OF THE 90 DAYS INTEREST FREE CREDIT PERIOD FROM THE RESPONDENTS.

1.5 ACCORDINGLY, WE, THE ARBITRATORS, RULE THAT THE CLAIMANTS ARE ENTITLED TO CLAIM INTEREST ON UNPAID HIRE AFTER THE EXPIRY OF THE 90 DAYS INTEREST FREE PERIOD FROM THE RESPONDENTS.

2.0 THIS PARTIAL AWARD SHALL BE INCORPORATED IN THE FINAL AWARD.

MADE THIS 31ST DAY OF MARCH, 2004

SIGNED: KOFI KUMAD?
CHAIRMAN

SIGNED: MRS. FUNKE ADEKOYA SAN
CO-ARBITRATOR

SIGNED: BABATUNDE FAGBOHUNLU
CO-ARBITRATOR.”

I find that the Arbitrators made their partial award in accordance with Section 47 (5) of the Arbitration and Conciliation Act, as it did so in accordance with the terms of the contract (Rider Clause 18). Reasons were given for the decision of the Arbitral Tribunal – pages 48-61 of the Record of Appeal.

The Arbitral Tribunal’s award is in writing, and by virtue of the provisions of Section IV, Article 32 of the Act, in addition to making a final award, the Arbitral Tribunal shall be entitled to make interim, interlocutory or partial award, and such award shall be final and binding on the parties…”

The Arbitral Tribunal re-wrote no contract, but based its decision on what was before it. That decision is final, it is in writing and is binding on the parties. To say that the Arbitral Tribunal re-wrote the contract is a total misconception.

Issue No 2 is resolved in favour of the Respondents and against the Appellant.

ISSUE NO. 3

By Section IV, Article 31 of the Arbitration and Conciliation Act
“When there are three arbitrators, any award or other decision of the Arbitral Tribunal shall be made by a majority of the Arbitral Tribunal.”
A majority of three members is TWO members. At page 10 of the “Reasons for the Partial Award made in Lagos on the 31st day of March, 2004” (page 59 of the Record of Appeal), in its paragraph 2.2, the Arbitral Tribunal had this to say
“The Tribunal, having considered the arguments canvassed by the parties in their Written submission, BY A MAJORITY DECISION (ONE ARBITRATOR DISSENTING) HEREBY DECIDES AS FOLLOWS:..”
This postulates that the decision was made by a majority according to the Act, where there are three Arbitrators. That suffices in Law (section IV, Article 31 of the Act). Whether the other party dissented or not is, in my view, of no moment. A majority decision is all that is needed in Law.

This issue is resolved in favour of the Respondent and against the Appellant.

Again, having resolved all the issues for determination proffered by the Appellant in favour of the Respondents, the appeal fails in its entirety and same is hereby dismissed.

Having considered this Appeal on its merits, it remains for me to address the observation made earlier in this Judgment.

By section 24 of the Legal Practitioners Act, Cap L11 2004, Legal Practitioner is defined as
“A person entitled in accordance with the provisions of this Act to practice as a Barrister and solicitor either generally or for the purpose of any particular office or proceedings”
Section 2(1) of the Act states thus:-
“subject to the provisions of the Act, a person shall be entitled to practice as a Barrister and solicitor if and only if his name is on the roll”

A cursory look at the originating Process, the subject matter of this Appeal, shows that the process ex facie is incompetent, because it was not signed by a Legal Practitioner representing the Applicant or a person known to Law (Appellant in this Appeal). The originating process filed on the 27th of July, 2004, and dated same date was signed by an unnamed person, for and on behalf of SEYI SOWEMIMO SAN. Moreso, it cannot be ascertained whether the signatory is a Legal practitioner or not – pages 3 – 4 of the Record of Appeal. This makes the suit No.FHC/L/CS/690/2004 at the lower court grossly incompetent – OKAFOR v. NWEKE 2007 10 NWLR PT.1043) 521; OGUNDARE & ANR V. AGIRI (2009) 12 S.C. PT.1:13; OKETADE V. ADEWUMI & ORS 2010 2 – 3 S.C.

I find it curious that the learned counsel for the respective parties did not observe this lacuna, even the learned trial Judge.

This loophole renders the entire proceedings at the lower court null and void and of no effect whatsoever and I so declare.

SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother RITA NOSAKHARE PEMU, JCA.

I agree with the reasoning and conclusion reached therein and have nothing extra to add.

This appeal fails in its entirety and same is also hereby dismissed by me.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, RITA NOSAKHARE PEMU JCA. I am in full agreement with the reasons given and the conclusions reached in the judgment. Accordingly, I also hereby strike out the appeal as incompetent; the originating process having been signed by an unknown person for Seyi Sowemimo SAN.

Appearances

Seyi Sowemimo (SAN)
Remi Coker (Miss) and
Habiba Mohammed (Miss)For Appellant

AND

V. O. Ogude Esq.For Respondent