TETRAZZINI FOODS LIMITED v. ABBACON INVESTMENT LIMITED & ANOR (2015)

TETRAZZINI FOODS LIMITED v. ABBACON INVESTMENT LIMITED & ANOR

(2015)LCN/7951(CA)

In The Court of Appeal of Nigeria

On Thursday, the 9th day of July, 2015

CA/L/1086/2011

RATIO

APPEAL: A REPLY BRIEF; WHEN CAN A REPLY BRIEF BE FILED

The essence of appellant’s reply brief on points of law has been settled in a plethora of cases, the Supreme Court in the case of CAMEROON AIRLINES v OTUTUIZU (2011) LPELR – 827 (SC) held as follows:
“A Reply Brief is necessary and usually filed when an issue of law or argument raised in the Respondent’s Brief calls for a Reply. Where a Reply Brief is necessary it should be limited to answering new points arising from the Respondent’s Brief. Although an Appellant’s Brief is not mandatory where a Respondent’s Brief raises issues or points of law not covered in the Appellant’s Brief, an Appellant ought to file a Reply Brief. It is not proper to use a Reply Brief to extend the scope of the Appellant’s Brief or raise issues not dealt with in the Respondent’s Brief.”
See also LONGE V FIRST BANK OF NIG PLC (2010) 2 – 3 SC 61; AKAYEDE v AKAYEDE (2009) LPELR – 326 (SC) and OSUJI v EKEOCHA (2009) 16 NWLR (Pt 1166) 81 S.C.
A reply brief is not an opportunity for the Appellant to proffer arguments on those issues he forgot to mention in the Appellant’s Brief and it is not proper to extend the frontiers of arguments either, see EDJERODE V IKINE (2001) SCNJ 184; OKONJI v NJOKANMA (1999) 12 SCNJ 259 and FRN V OBEGOLU (2006) 18 NWLR (Pt 1010). per. YARGATA BYENCHIT NIMPAR, J.C.A.

ARBITRATION; TERMINATION OF AN ARBITRATION; WHEN IS AN ARBITRATION SAID TO BE TERMINATED

An arbitration is said to be terminated as provided by Section 27 thus:
“(1) The arbitral proceedings shall terminate when the final award is made or when an order of the arbitral tribunal is issued under subsection (2) of this Section.
(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when –
(a) A claimant withdraws his claims, unless the respondent objects thereto and the arbitral tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the dispute; or
(b) The parties agree on the termination of the arbitral proceedings; or
(c) The arbitral tribunal finds that continuation of the arbitral proceedings has as far as any reason become unnecessary or impossible.
(3) Subject to the provisions of Section 28 and 29(2) of this Act, the mandate of the Arbitral tribunal shall cease on termination of the arbitral proceedings.”
The Arbitration and Conciliation Act therefore has settled when termination of Arbitral proceedings occurs and its effect on jurisdiction. per. YARGATA BYENCHIT NIMPAR, J.C.A.

COURT; JURISDICTION; THE IMPORTANCE OF JURISDICTION TO ANY JUDICIAL PROCEEDINGS

Jurisdiction is very important to any judicial proceeding and that includes arbitral proceedings. Jurisdiction and its importance has received judicial attention in a plethora of cases. The apex court in the case of DAPIANLONG V DARIYE (2007) 4 S.C. (Pt 111) 118 held thus:
“Jurisdiction is a radical and crucial question of competence because if a court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio, however well conducted and brilliantly decided they might be since a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. Jurisdiction is therefore considered to be the nerve centre of adjudication; the blood that gives life to the survival of an action in a court of law in the very same way that blood gives life to the human being in particular and the animal race in general.” In arbitration proceedings, the issue of jurisdiction usually occurs more in excess of jurisdiction rather than lack of jurisdiction, this is because it is an agreement that leads to the appointment of an arbitrator with a reference. The agreement to go to arbitration gives the panel jurisdiction but the panel may go beyond the mandate and for that action in excess of jurisdiction amounts to misconduct and makes the award liable to be set aside. So jurisdiction is important and an arbitrator must operate within his mandate. Here the arbitrator closed the proceedings contrary to the provisions of the law as none of the circumstances listed in the above quoted Section 27 of the Act was in existence. After the order terminating proceedings, he went ahead to consider the dispute and hand down an award. It is obvious from the circumstances that the 2nd Respondent, the arbitrator did not act in ignorance of the meaning of terminating proceedings. If the first part was ignorantly stated, in the second part he referred to the letter seeking for adjournment and he said the letter came after the proceedings were terminated and probably that explains why he did not respond to it. It is clear that he therefore handed down the award when he by his own act excluded himself or divested himself of jurisdiction. The question is on what basis therefore did he issue the award. An arbitrator is expected to be one properly trained and certified on how to handle proceedings and that explains why his actions were not in ignorance. He knew too well that when a letter is received, it should have elicited a response or attended to but here, in his haste to make the award ignored the letter asking to allow counsel represent the appellant. I find that it amounts to misconduct for the Arbitrator to act as he did and terminate proceedings in circumstances contrary to law. per. YARGATA BYENCHIT NIMPAR, J.C.A.

ARBITRATION: MISCONDUCT BY AN ARBITRATOR; INSTANCES TO AMOUNT TO MISCONDUCT

It is imprecise but certain instances have been listed in the case of TAYLOR WOODROW NIG LTD V SUDDEUTSCHE ETNA – WORK GMBH (SUPRA) to amount to misconduct in the following way:
“But misconduct occurs for example –
(1) If the arbitrator or umpire fails to decide all the matters which were referred to him;
(2) If by his award the Arbitrator or umpire purports to decide matters which have not in fact been included in the agreement of reference; for example, where the arbitrator construed the lease (wrongly) instead of determining the rental and the value of buildings to be maintained on the land; or where the award contains unauthorized directions to the parties; or where the arbitrator has power to direct what shall be done but his directions affects the interests of third persons; or where he decided as to the parties rights, not under the contract upon which the arbitration had proceeded, but under another contract.
(3) If the award is inconsistent, or is ambiguous; or even if there is some mistake of fact, although in that case the mistake must be either admitted or at least be clear beyond any reasonable doubt;
(4) If there has been irregularity in the proceedings, as for example, where the arbitrator failed to give the parties notice of the trial and place of meeting, or where the agreement required the evidence to be taken orally and the arbitrator received affidavits, or where the arbitrator refused to hear the evidence to be taken orally and the arbitrator received affidavits, or where the arbitrator refused to hear the evidence of a material witness, or where the examination of witnesses was taken out of the parties’ hand, or where the arbitrator failed to have foreign documents translated or where, the reference being to two or more arbitrators, they did not act together, or where the umpire after hearing evidence from both arbitrators received further evidence without informing or having the other, or where the umpire attended the deliberations of the appeal board reviewing his award.
(5) If the arbitrator or umpire has failed to act fairly towards both parties, as, for example, by hearing one party but refusing to hear the other, or by deciding in default of defence without clear warning, or by taking instructions from or taking with one party in the: absence of the other or by taking evidence in the absence of one party or both parties, or by failing to give a party the opportunity of considering the other party’s evidence or by using knowledge he has acquired in a different capacity in such a way as to influence his decision or the course of the proceedings, or by making his award without hearing witnesses whom he has promised to hear, or by deciding the case on a point not to put to the parties.
(6) If the arbitrator or umpire refuses to state a special case himself or allow an opportunity of applying to the court for an order directing the statement of a social case;
(7) If the arbitrator or umpire delegates any part of his authority, whether to a stranger or to one of the parties, or even to a co-arbitrator.
(8) If the arbitrator or umpire accepts the hospitality of one of the parties, being hospitality offered with the intention of influencing his decision.
(9) If the arbitrator or umpire acquires an interest in the subject matter of the reference, or is otherwise an
interested party;
(10) If the arbitrator or umpire takes a bribe from either party.
In each of the foregoing cases, the arbitrator or umpire has misconducted himself and the court has power to set aside his award.”
It is also settled that a breach of the rule of natural justice is a misconduct.
Section 30 of the Arbitration Act provides for misconduct as follows:
“30(1) Where an arbitrator has misconducted himself or where the arbitral proceedings or award has been improperly procured the court may on application of a party set aside the award.” per. YARGATA BYENCHIT NIMPAR, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

TETRAZZINI FOODS LIMITED Appellant(s)

AND

1. ABBACON INVESTMENT LIMITED
2. PRINCE DIPO OYEBADEJO Respondent(s)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Lagos State High Court delivered on the 16th day of September, 2011 by HON. JUSTICE A.A. PHILIPS wherein the lower court refused to set aside an arbitral award made against the appellant.

The appellant awarded the 1st Respondent a contract to construct its headquarters at No. 308 Akin Adesola Street, Victoria Island, Lagos. The contract agreement had an arbitration clause. In the course of executing the contract, the appellant not satisfied with the pace and quality of work, took over the site and concluded the construction.

Aggrieved, the Respondent pursuant to the arbitration clause instituted a suit wherein it applied for the appointment of a sole arbitrator which the trial court did. The second Respondent is the Arbitrator who convened a preliminary meeting wherein statements were ordered to be filed by the parties. The appellant defaulted but time was extended for it to do so by 24th September, 2009. The Appellant was to file and serve its pleadings. It only did so on the 7th October, 2009 and proceedings commenced. On 8th October, 2009, the appellant was absent, not represented by counsel and no reason advanced, nevertheless the 2nd Respondent conducted the hearing after which he terminated the arbitral proceeding.

The appellant’s solicitors wrote on the 13/10/09 seeking time to present its defence. The 2nd Respondent did not respond but proceeded to deliver the award on the 28/10/09.

Aggrieved, the appellant filed an application before the lower court and sought the following:
“1. The Award of the Arbitrator dated 28th October, 2009 and delivered by the sole Arbitrator Prince Dipo Oyebadejo be set aside.
2. An Order of the court appointing another Arbitrator to arbitrate and look into the dispute between the Appoint and the 1st Respondent.

GROUNDS FOR RELIEF:
The grounds on which the application was made are:
That the Arbitrator misconducted himself, is biased and prejudiced against the Applicant/Respondent in the Arbitration Proceedings.
(a) That the Applicant/Respondent was not given a fair hearing by the Arbitrator as it was denied the opportunity to properly defend itself and present its case.
That the findings and the Arbitral award are not supported by any evidence.

The trial court considered the application and refused to set aside the award, thus, this appeal.

The Appellant filed its brief dated 21st day of March, 2012 filed on the 22/3/12 deemed on the 13/2/14.

The Respondent’s brief dated 13/3/14 filed on the same date was adopted at the hearing.

The appellant’s reply brief dated 6/6/14 deemed on 18/6/15 was filed along the appellant’s brief adopted at the hearing wherein the appellant formulated 2 issues for determination in this appeal thus:
1. Whether the learned trial Judge was right in refusing to set aside the arbitral award when the award was a nullity having been made after the termination of the arbitrator who had then lost jurisdiction to make any award.
2. Whether the learned trial Judge ought not to have set aside the award on the ground that the arbitrator misconducted himself in the conduct of the arbitral proceedings.

The 1st Respondent on its part also formulated 2 issues as follows:
(1) Whether in the overall circumstances, the Arbitral Award made on the 28th day of October, 2009 was given without jurisdiction.
(2) Whether the 2nd Respondent misconducted himself during the entire Arbitration Proceedings, such that this Honourable Court can make an order setting aside the award made on 28th day of October, 2009.

The 1st Respondent in his Respondent’s brief raised a Preliminary Objection which must be resolved before proceeding with the appeal if it survives the objection. The objection prayed for the following:
1. AN ORDER of this Honourable Court striking out Ground 2 of the Appellant’s Notice of Appeal together with the offending particulars of error in the Alternative to Relief 1 above,
2. AN ORDER of this Honourable Court striking out all arguments advanced under Issue No. 1 of the Appellant’s issue for determination distilled from Ground 2 of the Notice of Appeal on the ground that the arguments contained therein are not based on or traceable to issue No. 1 of ground 2 from which issue No. 1 was framed.

The grounds upon which the objection is brought are:
(a) This is an appeal against the judgment of the High Court of Lagos State, Lagos Division (Coram: A.A. Philips J.) that was delivered on 16th September, 2011.
(b) That the particulars of error given by the Appellant under Grounds 2 of the Notice of Appeal are unrelated to the aforesaid ground of appeal. The said offensive particulars did not support Ground 2 but complains against the proceedings and award of the arbitrators (2nd Respondent) and not against the judgment or proceedings of the lower court.
(c) That the argument contained in issue No. 1 is not traceable or related to the issue distilled for determination in issue No. 1 and the ground of appeal from which the issues was framed. The argument/submissions in respect of issue No. 1 is thereof at large because it is not properly constricted to the issue so raised in issues No. 1 and distilled from ground 2 of the notice of appeal.
(d) The argument contained in the Appellant’s issue No. 1 is incompetent and non sequitur as it does not arise from the issue properly formulated and distilled from ground 2 of the Notice of Appeal.
(e) That the argument contained in issue No. 1 is an introduction of new issue which are not within the issue postulated and the submission with respect thereof goes to no issue and ought to be struck out.

The 1st Respondent, in his submissions in support of the Preliminary Objection, formulated 2 issues for determination as follows:
(1) Whether all the particulars contained in Ground 2 of the Appellant’s Notice of Appeal supports or explains the Appellant’s complaints in Ground 2 of the Notice of Appeal and thereby not offensive of the provisions of Order 6 Rule 2(2) of the Court of Appeal Rules, 2011?
(2) Whether the argument canvassed by the Appellant in issue one of the Appellant’s brief of argument is based on, related, or covered by the issue distilled for determination or semblance of it.

Proferring arguments on the first issue, the Respondent submitted that the particulars of a ground are part and parcel of the ground and not mere addendum, it referred to MBA V AGU (1999) 12 NWLR (Pt 629) 1 at 12 and NNANAA V NWARUBO (1991) 2 NWLR (Pt 172) 181 at 191. That particulars are the reasons given to justify the complaint which must contain sufficient disclosure of the complaint appealed against, it cited VINCENT V VINCENT (2008) 11 NWLR (Pt 1097) 35 at 43.

The Respondent highlighted ground 2 and the particulars in support of the ground to contend that there is no connection between the ground and the particulars because, even though the ground is against the judgment of the trial court, the particulars are attacking the arbitral award. That the particulars alleged are not specific against reasoning, finding or observation of the trial court. It relied on BOOGOM V AWAM (1995) 7 NWLR (Pt 410) 692 at 703 and Order 6 Rule 2(2) of the Court of Appeal Rules, 2011 which is a mandatory provision and does not allow of any discretion, relied on ANTE V UNICAL (2001) NWLR (Pt 700) 239 at 253.

On the consequence where particulars do not relate to the ground, the ground becomes incompetent and liable to be struck out, it relied on ALI V ALBISHIR (2008) 3 NWLR (1073) 94 at 133; CROSS RIVER BASIN & RURAL DEVELOPMENT AUTHORITY V SULE ALI SULE (2001) 6 NWLR (708) 194 at 207; SANYINNA v AFRICAN INT. BANK (2001) 4 NWLR (Pt 703) 355 at 363 and HONIKA SAWMILL (NIG) LTD v HOFF (1994) 2 NWLR (Pt.326) 252 and SONGHAI ENERGY SERVICES LTD v MAERSK NIG LTD (2001) 17 NWLR (Pt 743) 517 to urge the court to strike out the ground, issue and submissions in support. Relied on KACHIA v YAZID (2001) 17 NWLR (Pt 742) 43 and AGAMU v OFILI (2004) 5 NWLR (867) 540.

Arguing in the alternative, the Respondent submitted that if the ground is sustained then issue 1 of the Appellant does not arise from the grounds of appeal as fraud, citing the case of C.S.S. BOOKSHOPS LTD V THE REGISTERED TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE & ORS (2006) 11 NWLR (Pt.992) 530 at 563.

Respondent argued that issue 1 is hinged on the lower court’s refusal to set aside the arbitral award which is inconsistent and relied on VINZ INTERNATIONAL NIG LTD V MOROHUNDIYA (2009) 11 NWLR (Pt 53) 562. It finally urged the court to uphold the preliminary objection.

The appellant in response to the preliminary objection submitted that particulars of appeal are inextricable part of the grounds of appeal and must be read together. That from a cursory look at Ground 2 with the particulars, shows that the particulars are explaining why jurisdiction of the court ceased on the 28th October, 2008. Furthermore, that the ground and particulars give enough notice to the Respondent on the lack of jurisdiction, it relied on N.I.P.C V KRANS THOMPSON (1969) 1 ALL NLR 138. Furthermore, that the Respondent was not misled and the objection is therefore without any basis.

On arguments on issue 1 while the Respondent alleged were inconsistent with the issue framed, appellant submitted that the arguments canvassed support the issue.

RESOLUTION:
The two issues formulated under the Preliminary Objection shall be resolved at once. The preliminary objection challenged is twofold. On the first part, it is that Ground 2 of the Notice of Appeal and the particulars are unrelated. The second arm is that issue one formulated on Ground 2 and arguments therefrom are not based or traceable to issue No. 1 or ground 2.

Ground 2 states thus:
The learned trial Judge erred in law in refusing to set aside the arbitral award when the 2nd Respondent had lost jurisdiction to make an award at the time he did so on 28th October, 2009.

PARTICULARS OF ERROR:
1. By Section 27(3) of the Arbitration and Conciliation Act the mandate of the arbitral tribunal shall cease on termination of the arbitral proceedings.
2. On 8th October, 2009 the 2nd Respondent terminated the arbitral proceedings forthwith.
3. By virtue of Section 27(3) of the Arbitration and Conciliation Act, the mandate of the 2nd Respondent ceased on 8th October, 2009 when he terminated the arbitral proceeding forthwith.
4. The 2nd Respondent had no jurisdiction to make any award as at 28th October, 2009 when he purported to issue his award.
5. The award was a fortiori null and void.

Respondent contended that though the ground is a complaint against the judgment, the particulars are not related to the ground.

The Respondent challenged Ground 2 of the grounds of Appeal and issue 1 distilled from it. The essence of a preliminary objection raised at the hearing of an appeal is to put an end to the appeal, see the case of GENERAL ELECTRIC CO V HARRY AKANDE (2011) 4 NSCQR 611 where RHODES VIVOUR, J.S.C. explained thus:
“The purpose being to bring the hearing of the appeal to an end for being incompetent or fundamentally defective. Consequently a successful preliminary objection terminates the appeal. If I may add to the above, where as in this appeal the preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The respondent ought to have filed a Motion of Notice since the preliminary objection if successful would not have terminated the hearing of the appeal as there were other grounds of appeal to sustain the appeal.
Preliminary objection are only filed against one or more grounds of appeal which cannot stop the court from hearing the appeal.”
See NNPC v FAMFA OIL LTD (2012) LPELR-7812 (SC).

The objection here is against just one ground of appeal with several others to sustain the appeal. In this regard the preliminary objection cannot dispose of the appeal and therefore it was a wrong procedure taken which would make the preliminary objection otiose and discountenanced in following with the Supreme Court decision above. The preliminary objection is hereby struck out.

The Appellant in his reply on points of law raised an objection challenging the Respondent’s brief and contending that it was not signed according to law. It argued that though signed but 2 names of counsel appear below the signature and it is not clear which of the two signed the Brief as the endorsed signature is not referable to any of the names set out, submitting further the appellant argued that the identity of who signed the brief cannot be resolved by a perusal of the brief. It relied on PEAK MERCHANT BANK LIMITED V N.D.I.C. (2011) 12 NWLR (Pt 1261) 253 at 262 and SUNDAY ADENEYE & ANOR V ALHAJI BUKAR YARO CA/L/266/2002 delivered on 25/6/2010.

The appellant submitted that the brief is not therefore signed by a legal practitioner known to law and therefore it should be struck out by the Honourable Court for incompetence.

The Appellants objection on who signed the Respondent’s brief cannot be introduced in a reply brief because it offends the rules on what a reply brief is meant to represent and more fundamentally because it denies the Respondent an opportunity to react to the objection thereby breaching rules of fair hearing. All parties must be given a hearing before issues are determined. That is the basic component of the canon of fair hearing.

Consequently therefore, the objection is discountenanced.

The court shall only consider the reply on points of law to the Respondent’s brief in the Reply brief.

ISSUE ONE:
The appellant questioned the manner the arbitral proceedings were terminated on the 8th October, 2009 and the circumstances as set out by the 2nd Respondent at pages 18 – 19 of the record. Appellant contended that ‘terminating arbitral proceeding’ is provided for in Section 27(3) of the Arbitration and Conciliation Act which oust the mandate of the Arbitration termination of arbitral proceedings. That the import is that the Arbitrator ceases to have jurisdiction and becomes functus officio, referred to MOHAMMED V HUSSEIN (1998) 14 NWLR (Pt 584) 108 at 138. Appellant referred to the date of the award which on the face of it is October 28, 2009, 14 days after termination of the proceedings.

On the effect, it contended that if the Arbitrator therefore had no jurisdiction, consequently the award is null and void, citing the case of A.G. ANAMBRA STATE v OKAFOR (1992) 2 NWLR (Pt 224) 398 at 429 on effect of lack of jurisdiction and also the
(1) BAKER V RONNE ENGINEERING CO LTD (1971) NLR COMMERCIAL 264 at 271.
(II) ROSSEK V ACB (1993) 3 NWLR (Pt 312) 382 at 489.
(III) L.S.D.P.C. v ADEYEMI – BERO (2005) 8 NWLR (Pt 927) 330 at 354.

Arguing further, it contended that being a threshold issue it goes to the root of the power of the tribunal as held in the cases of:
(I) MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341.
(II) SKENCONSULT V UKEY (1981) 1 SC 6.
(III) CHRISTABEN GROUP LTD V. ONI (2008) 11 NWLR (Pt.1097) 84 at 105.

And the effect on arbitration, it referred to the case of TAYLOR WOODROW LTD v SUDDEUTSCHE ETNA-WORK GMBH (1993) 24 NWLR (Pt 286) 127 at 609 and that acting in excess of jurisdiction amounts to misconduct citing the case of ANISMINIC V FOREIGN COMPENSATION (1969) 1 ALL E.R 208 at 223 – 224.

Counsel to the appellant submitted that the trial court had the jurisdiction to set aside the award pursuant to Section 29(1) of the Arbitration & Conciliation Act and that since the lower court failed, the court should set aside the award.

ISSUE TWO:
Appellant submitted that the arbitrator misconducted himself citing Section 30(1) of the Arbitration and Conciliation Act. On what amounts to misconduct, appellant relied on the case of TAYLOR WOODROW NIG LTD V SUDDEUTSCHE (SUPRA); KANO STATE URBAN DEVELOPMENT BOARD V FANZ LTD (1986) 5 NWLR (Pt 39) 74 and A. SOVOIA LTD v A.O. SONUBI 7 SC (Pt) 36.

In this instance, appellant listed the particulars of misconduct as follows:
(i) Failure of the Arbitrator to give the Appellant fair hearing.
(ii) Failure to consider all the issues placed before him for consideration.
(iii) Failure of the Arbitrator to give reasons for the Award.
(iv) Receipt of the sum of N300,000.00 (Three Hundred Thousand Naira) from the 1st Respondent without the knowledge of the Appellant.

Appellant contended that facts supporting above instance were deposed to in the supporting affidavit seeking to set aside the award on ground of misconduct and lack of jurisdiction.

It further argued that the 2nd Respondent proceeded to hand down the award without notice and failed to consider the application for adjournment one way or the other. That such are instances of misconduct and referred to RUSSEL ON ARBITRATION, 20TH EDITION BY ANTHONY WALTON AND MARY VICTORIA and L.S.D.P.C V ADOLD STAMN INT LTD (1994) 7 NWLR (Pt.385) 545 at 564 where the Supreme Court held thus:
“An arbitrator may proceed with a reference in the absence of one of the parties if he does not choose to attend. The party (however) ought to have noticed that the arbitrator will proceed exparte in the case if he does not attend.”

Appellant submitted that the 2nd Respondent ought to have served a notice on the appellant on the 8th October, 2009 of his intention to proceed to hand down his award. That failure is breach of appellant’s right to fair hearing and misconduct on the part of the 2nd Respondent.

On the failure to consider the appellant’s application for adjournment, appellant argued that having confirmed receipt of the application, he should have decided it one way or the other and that the appellant was not notified that proceedings had been terminated on the 8th October, 2009. That it amounts to denial of fair hearing, citing OSAFILE V ODI (No. 1) (1990) 3 NWLR (Pt 137) 130 at 178.

It argued further that 2nd Respondent’s attention was drawn to the fact that the documents relied upon by the claimant were not served on the appellant and should have made the 2nd Respondent ensure it was done to allow appellant prepare for its defence.

Furthermore, that no reason was given for the award. Appellant contended that all of these amount to misconduct.

Appellant argued that lack of fair hearing also amounts to misconduct. It submitted that the other side must be heard before a decision is handed down and relied on ONAGORUWA V I.G.P. (1991) 5 NWLR (Pt 195) 593 at 640 and Section 14 of the Arbitration Act which makes it mandatory for both sides to get equal treatment which conforms with the doctrine of fair hearing.

On failure to decide on all matters presented to the Arbitrator, appellant submitted is also a misconduct. It highlighted its counterclaim at page 73 of the record and relied on K.S.U.D.B. V FANZ CONSTRUCTION LIMITED (1990) 4 NWLR (Pt 142) 1 at 37 and TAYLOR WOODROW (SUPRA).

Furthermore, appellant contended that an arbitral award must be a reasoned award as required by Section 26(3) of the Arbitration Act and Article 32.3 which uses the word ‘shall’ in demanding an arbitral tribunal to state reasons upon which the award is based. It argued that both sides presented claims so the 2nd Respondent who at the end of the proceedings only made the award in favour of the 1st Respondent, was silent on the counterclaim. It contended that it is a requirement of justice that reasons are given, and relied on INTERNATIONAL COMMERCIAL ARBITRATION 3RD EDITION BY TIBOR VERADY & ORS AT PAGE 590. And also referred to BREMER HANDELSGELLSCHAFF. v WESTZUCKER (No. 2) (1981) 2 LLOYDS REP. 13 at 132 – 133 Per DONALDSON L. J who provided a guideline to the meaning of a reasoned award thus:
“All that is necessary is that the Arbitrators should set out what, on their view of the evidence did or did not happen and should explain succinctly why, in the light of what happened, they have reached their decision and what that decision is. This is all that is meant by a reasoned award.”

Appellant identified 4 elements of a reasoned award thus:
(a) Set out the evidence led by the parties.
(b) Set out what did or did not happen as between the parties to the arbitral proceedings.
(c) Explain succinctly, why, in the light of what happened, the arbitrators have reached their decision; and
(d) State what the decision is.

Appellant said the award in this instance fell short of the standard and therefore it should be set aside because it does not comply with Section 26(3)(a) of the Act and Article 32.2 of the Arbitration Rules.

The appellant also alleged bias in that he collected N300,000.00 (Three Hundred Thousand Naira) additional to the fees to be paid by the 1st Respondent from a total bill of N1,200,000.00 (One Million, Two Hundred Thousand Naira) meant to be shared by both sides.

That the order to reimburse the 1st Respondent the said sum was made part of the award as being money due to the Arbitrator and that it raises the issue of bias. It relied on DEDUNA V OKORODUDU (1976) 1 NWLR 236 at 247. It contended that this too is misconduct and relied on MORDUE V PALMER (1860) 6 CH. APP 22 and SHEPHERD v BRAND (1734) LEE TEMP. HARDW. 53 cited in RUSSEL ON ARBITRATION 20TH EDITION BY WALTON & VICTORIA AT PAGE 412, that an award was set aside where the arbitrators collected fees from one party before the award. Appellant then argued that for that communication about fees to have taken place before the award, it amounts to misconduct enough to set aside the award.

It then urged the court to allow the appeal and set aside the award.

The 1st Respondent on its 2 issues submitted firstly that the arbitration went on and hearing concluded without the appellant then the proceedings were terminated forthwith (page 16 – 20 of the Record). It argued that what concluded was hearing and the arbitration itself. That circumstances when Arbitration can terminate are stated in Section 27(3) of the Arbitration Act, the wordings which are very clear. On what amounts to termination of proceedings, it referred to Section 27(1) of the Act read together with Article 34.1 of the Arbitration Rules and submitted that none of the circumstances listed in the two provisions occurred to warrant the submission that the arbitration was terminated so as to affect the Arbitrators jurisdiction. Furthermore, that the Arbitrator was acting under his powers under Article 29.1 of the Arbitration Rules. It urged the court to find for the 1st Respondent under issue one.

On issue two, the 1st Respondent submitted that an award cannot be set aside except under compelling reasons as held in TAYLOR WOODROW NIG LTD V SUDDEUTSCHE ETNA – WORK GMBH (SUPRA) and FULHER v FENWICK (1846) 136 ER 282, 285; FOLI v AKESE (1930) 1 WACA 1; MEDITERRANEAN CO. LTD V FORTRESS FABRICKS LTD (1948) 2 ALL ER 186.

It referred to Section 30(1) of the Act and the circumstances where an award can be set aside.

It defined misconduct as denoting irregularity and not any moral turpitude and that it covers cases where breach of natural justice occurs; it referred to WILLIAN V WALLIS & COX (1914) 2 K.B 497 at 485. That the acts that can cause an award to be set aside are mentioned in Section 48 of the Arbitration Act and the case of TAYLOR WOODROW NIG LTD where 10 instances are listed. It observed that the appellant relied on grounds 1, 3, 5 and 10 but on a close examination of Exhibit AL10 – Video Recording of the proceedings, it shows that there was no misconduct. It argued that the Appellant did not controvert the deposition of the 1st Respondent and therefore they are deemed admitted, it relied on NWOSU V IMO STATE E.S.A (1990) 2 NWLR (Pt 135) 688; ALAGBE v ABIMBOLA (1978) 2 SC 39, ABEO V OGUNYEMI (1990) 3 NWLR (Pt 141) 758, 762.

On fair hearing and the appellant’s application for adjournment, the 1st Respondent submitted that the appellant was given an opportunity to be heard but neglected to utilize it, relied on OGENE V OGENE (2008) 2 NWLR (Pt.1070) 29; ABIA STATE TRANSPORT CORPORATION V QUORUM CONSORTIUM LTD (2004) 1 NWLR (Pt 855) 601; ONYEKWULUYE V BENUE STATE GOVERNMENT (2005) 8 NWLR (Pt 928) 614; AKANDE v STATE (1988) 3 NWLR (Pt 85) 681 to submit that all previous adjournments were at the instance of the appellant and that it had notice of the proceedings of 8th October, 2009. That Article 28(2) of the Arbitration Rules empowers the arbitral panel to proceed to make an award if sufficient notice was given. That the 2nd Respondent proceeded under Article 29(2) of the Arbitration Rules to declare hearing closed. That there was no breach of fair hearing. The 1st Respondent admitted that the Arbitrator is empowered to reopen hearing but exercised his powers to refuse to reopen hearing and request for adjournment was refused. That it was all a ploy to forestall the delivery of the award and the attitude is one that was appreciated in the case of STATE INDEPENDENT ELECTORAL COMMISSION V NATIONAL CONSCIENCE PARTY (2008) 12 NWLR (Pt 1102) 720.

Furthermore, that the allegation that not all matters presented were determined, the 2nd Respondent submitted that no separate claim was added to the response to 1st Respondent’s claim, it referred to page 72 – 84 of the record. That if no counterclaim was presented how then can it be resolved. It went on to define a counterclaim as held in the case of HAIDO V USMAN (2004) 3 NWLR (Pt 859) 65.

Furthermore, the 1st Respondent argued that the award was consistent and that the Arbitrator (2nd Respondent) did not misconduct himself by taking the balance due to him from the 1st Respondent because unilateral communications usually occur as opined by the author of the Book Russel on Arbitration, 23rd Edition. That it becomes objectionable only if it strays into the substance of the dispute. Furthermore, in this case the communication was about the Arbitrators fees when the award was ready. The 1st Respondent submitted that usually the award is withheld until fees are paid and this case was no exception. Arguing further, the 1st Respondent contended that it does not matter who pays the fees because it can be recovered from the other party as decided in INTERNATIONAL PETROLEUM REFINING & SUPPLY SIDADA LTD V ELPIS FINANCE SA (the Faith) 1993 and the book Russel on Arbitration. That the payment of Arbitrator cannot be bribe nor amount to misconduct.

Was the award a reasoned award? The 1st Respondent referred to TAYLOR WOODROW NIG LTD V SUDDEUTSCHE ETNA – WORK GMBH (SUPRA) to say that failure to give reasons is not a misconduct and that Section 26(3) of the Arbitration and Conciliation Act and Article 32.3 of the Arbitration Rules were not breached and cannot impeach an award, it referred to OROJO & M.A. AJOMO: LAW AND PRACTICE OF ARBITRATION AND CONCILIATION IN NIGERIA 1999 at Page 283 and the case of G.K.N. V MATHRO (1976) 2 LLOYDS REP. 555 at 575 on insufficient evidence not to be a ground to set aside an award. So, it argued that finding of fact without adequate evidence is not a misconduct. Furthermore, it submitted that an error in law cannot constitute sufficient grounds for setting aside an award.

The 1st Respondent argued that Section 26(3) of the Arbitration Act provides reasons for an award and relied on ASCOT COMMODITIES MV V OLAM INTERNATIONAL LTD (2002) LLOYDS REP 277 that there is no duty to deal with every possible argument in writing an award. That the 2nd Respondent performed his duty as required by law and urged the court to follow the decision in TRANSCATALANA DE COMMERCIO SA V INCOBRASA INDUSTRIAL COMMERCIAL BRAZILEIRA SA (SUPRA) to find for the 1st Respondent.

It finally urged the court to dismiss the appeal.

Responding on points of law, the appellant reacted to the two issues formulated by the Respondent and submitted that the argument that at the close of arbitration on the 8th October, 2009 was merely close hearing after close of claimants case and not termination of proceedings as envisaged by Section 27(1) of the Arbitration and Conciliation Act is flawed. That the complaint is that the arbitral process was not terminated in accordance with the provisions of the Act and that the wordings of the award issued on 28th October, 2009 said proceedings were terminated on 8th October, 2009 before the award was made and arbitrator drew a distinction between closure of hearing and termination of proceedings. That he also noted the letter from appellants seeking that arbitration proceedings to be reconvened after the termination of the proceedings. Appellant argued that the arbitrator was therefore clear about the use of the phrase termination of proceedings.

On issue two, the appellant responded that misconduct can be categorized into 4 namely (i) Absence of fair hearing (ii) failure to decide all matters presented to it (iii) Bias of Arbitrator (iv) Reasoned award or Mandatoriness of Reasoned award.

The appellant proferred arguments on each of identified categories. On the first, which is absence of fair hearing, appellant referred to L.S.D.P.C. V ADOLD STAMM INT LTD (1994) 7 NWLR (Pt 385) 545 at 564 to submit that the Section allowing the Arbitrator to close proceedings to mean that the Arbitrator must have given notice that he will proceed in the absence of the party and that the Arbitrator ought to have informed the appellant before closing the proceedings.

On failure to decide all matters, the appellant submitted that the Arbitrator could not pronounce an Appellant’s claim because it was not a counterclaim but referred to the defence filed before the tribunal to observe that it was not headed counterclaim but claims by a defendant against a claimant. It argued that the appellant had a right to have the claim considered by the Arbitrator. Appellant submitted that Arbitrator failed to resolve the appellant’s claim and it breached the right to fair hearing and the breach occasioned a miscarriage of justice.

Appellant contended that the Respondent had no reason to pay the Arbitrator the sum of N300,000.00 (Three Hundred Thousand Naira) in unclear circumstances.

Appellant set out the circumstances that Arbitrator misconducted himself when he received a letter dated 13/10/09 from appellant’s counsel seeking for adjournment and the Arbitrator did not request for his fees thereafter, so the question of the Respondent paying the sum on behalf of the Appellant cannot arise when no demand was made. That the payment is tainted and lends credence to allegation of bias.

Arguing further, Appellant submitted that the contention that the finding of fact without evidence is not misconducted but the award must be a reasoned award. However, that in this case the Arbitrator did not give reasons for the award but just gave a lump sum award which is just a summed up figure without reasons which falls short of an award.

It finally urged the court to allow the appeal and set aside the decision of the lower court refusing to set aside the award.

RESOLUTION:
The two issues adopted shall be resolved together because some of the arguments overlap and to avoid repetition.

The question now is whether the termination under consideration falls within the circumstances mentioned by the law. The appellant relied on the ruling of the arbitrator when he said:- “The proceedings was terminated forthwith,” And again in the same ruling stated thus:
“On 13th October 2009, a letter was received from Orji Associates a Legal Practitioner who said they are representing the Respondent requesting the Arbitration proceedings to be re-convey (sic) after the termination of the proceedings.”

It was after that ruling at pages 18 – 19 of the record that the Arbitrator proceeded to hand down his award. The question that rightly could be asked is if proceedings had terminated, under what mandate was the award made?

In arbitration proceedings, the issue of jurisdiction usually occurs more in excess of jurisdiction rather than lack of jurisdiction, this is because it is an agreement that leads to the appointment of an arbitrator with a reference. The agreement to go to arbitration gives the panel jurisdiction but the panel may go beyond the mandate and for that action in excess of jurisdiction amounts to misconduct and makes the award liable to be set aside. So jurisdiction is important and an arbitrator must operate within his mandate. Here the arbitrator closed the proceedings contrary to the provisions of the law as none of the circumstances listed in the above quoted Section 27 of the Act was in existence. After the order terminating proceedings, he went ahead to consider the dispute and hand down an award. It is obvious from the circumstances that the 2nd Respondent, the arbitrator did not act in ignorance of the meaning of terminating proceedings. If the first part was ignorantly stated, in the second part he referred to the letter seeking for adjournment and he said the letter came after the proceedings were terminated and probably that explains why he did not respond to it. It is clear that he therefore handed down the award when he by his own act excluded himself or divested himself of jurisdiction. The question is on what basis therefore did he issue the award. An arbitrator is expected to be one properly trained and certified on how to handle proceedings and that explains why his actions were not in ignorance. He knew too well that when a letter is received, it should have elicited a response or attended to but here, in his haste to make the award ignored the letter asking to allow counsel represent the appellant. I find that it amounts to misconduct for the Arbitrator to act as he did and terminate proceedings in circumstances contrary to law.

Did the Arbitrator misconduct himself in addition to the one above? Several instances were addressed by the appellant. The Arbitration Act did not define misconduct but the word has received judicial attention. It is imprecise but certain instances have been listed in the case of TAYLOR WOODROW NIG LTD V SUDDEUTSCHE ETNA – WORK GMBH (SUPRA) to amount to misconduct in the following way:
“But misconduct occurs for example –
(1) If the arbitrator or umpire fails to decide all the matters which were referred to him;
(2) If by his award the Arbitrator or umpire purports to decide matters which have not in fact been included in the agreement of reference; for example, where the arbitrator construed the lease (wrongly) instead of determining the rental and the value of buildings to be maintained on the land; or where the award contains unauthorized directions to the parties; or where the arbitrator has power to direct what shall be done but his directions affects the interests of third persons; or where he decided as to the parties rights, not under the contract upon which the arbitration had proceeded, but under another contract.
(3) If the award is inconsistent, or is ambiguous; or even if there is some mistake of fact, although in that case the mistake must be either admitted or at least be clear beyond any reasonable doubt;
(4) If there has been irregularity in the proceedings, as for example, where the arbitrator failed to give the parties notice of the trial and place of meeting, or where the agreement required the evidence to be taken orally and the arbitrator received affidavits, or where the arbitrator refused to hear the evidence to be taken orally and the arbitrator received affidavits, or where the arbitrator refused to hear the evidence of a material witness, or where the examination of witnesses was taken out of the parties’ hand, or where the arbitrator failed to have foreign documents translated or where, the reference being to two or more arbitrators, they did not act together, or where the umpire after hearing evidence from both arbitrators received further evidence without informing or having the other, or where the umpire attended the deliberations of the appeal board reviewing his award.
(5) If the arbitrator or umpire has failed to act fairly towards both parties, as, for example, by hearing one party but refusing to hear the other, or by deciding in default of defence without clear warning, or by taking instructions from or taking with one party in the: absence of the other or by taking evidence in the absence of one party or both parties, or by failing to give a party the opportunity of considering the other party’s evidence or by using knowledge he has acquired in a different capacity in such a way as to influence his decision or the course of the proceedings, or by making his award without hearing witnesses whom he has promised to hear, or by deciding the case on a point not to put to the parties.
(6) If the arbitrator or umpire refuses to state a special case himself or allow an opportunity of applying to the court for an order directing the statement of a social case;
(7) If the arbitrator or umpire delegates any part of his authority, whether to a stranger or to one of the parties, or even to a co-arbitrator.
(8) If the arbitrator or umpire accepts the hospitality of one of the parties, being hospitality offered with the intention of influencing his decision.
(9) If the arbitrator or umpire acquires an interest in the subject matter of the reference, or is otherwise an
interested party;
(10) If the arbitrator or umpire takes a bribe from either party.
In each of the foregoing cases, the arbitrator or umpire has misconducted himself and the court has power to set aside his award.”
It is also settled that a breach of the rule of natural justice is a misconduct.
Section 30 of the Arbitration Act provides for misconduct as follows:
“30(1) Where an arbitrator has misconducted himself or where the arbitral proceedings or award has been improperly procured the court may on application of a party set aside the award.”

The appellant listed 4 instances of alleged misconduct in the instant case namely:
(i) Failure of the Arbitrator (2nd Respondent) to give the Appellant a fair hearing.
(ii) Failure of the Arbitrator to consider all the issues placed before him for consideration.
(iii) Failure of the Arbitrator to give reasons for the Award.
(iv) Receipt of the sum of N300,000.00 (Three Hundred Thousand Naira) from the 1st Respondent without the knowledge of the Appellant.

The allegation was made in the affidavit in support of the application to set aside the award before the trial court.

On fair hearing, from the record of appeal, the appellant knew that proceedings would be conducted on 2 days, 7th and 8th October, 2009, it attended the proceedings of the 7th but failed to show up on the 8th without any excuse or information to the Arbitrator. The Arbitrator using his words ‘terminated the proceedings’ without notice to the appellant. Several days after, particularly on the 13th October, 2009, a counsel wrote the Arbitrator asking for adjournment to give them an opportunity to represent the appellant. The arbitrator did not respond but proceeded to hand down his award on the 28th October, 2009,

Fair hearing has received judicial attention in several cases, in cases where parties just shout fair hearing without basis the court said thus:
“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation in the interest of fair play and justice. The courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”

The facts of this case were summarised above. Can a by-stander say that there was fair hearing in this case? I only find a lacunae in the failure of the Arbitrator to give notice when he terminated proceedings and also failure to respond to the application for adjournment. The said notices would have put to rest the allegation in this case because the appellant knew of the date of proceedings of the 8th October, 2009. A party who is on notice about the date of proceedings and fails to appear without any excuse cannot be heard to complain. The sole offending aspect here is failure to give notice, particularly because the appellant also had a claim accompanying his answer to the claim of the Respondent. Paragraph 8 of the answer covers thus:
“We Tetrazzini Foods Limited hereby refuse Abbacon Investment Limited claims as follows:
(a) The sum of N335,562.72 (Three Hundred And Thirty Five Thousand, Five Hundred And Sixty Two Naira, Seventy Two Kobo) being the sum of money due the respondent.
(b) That the sum N25,000,000.00 (Twenty Five Million Naira) be paid to the respondent as compensation and damages arising from the liability of Abbacon Investment to do a proper job as regards the entire drainage system, plumbing system and electrical installation.”

The argument of the Respondent is that the manner the counterclaim was made does not conform with a counterclaim in a regular court proceedings. This was not a court adjudication but arbitration which by itself was designed to cut out some of the formalities in court’s proceedings to make resolution of disputes easier and straightforward. To therefore expect that a counterclaim must take the form of a pleading in a court proceedings is untenable. The fact is that paragraph 8 makes a claim against the Respondent and the arbitrator did not give notice that he was going to consider that part of the proceedings before him. The said claim also arises from the same contract in issue. He did not even mention it in the award.
Therefore, when an arbitrator is proceeding to consider any reference ex-parte he must give notice, see the case of LAGOS STATE DEVELOPMENT AND PROPERTY CORPORATION V ADOLD/STAMM INTERNATIONAL (NIG) LTD (1994) LPELR-1745 (SC) where the apex court held as follows:
“An arbitrator may proceed with a reference in the absence of one of the parties if he does not choose to attend. The party ought to have notice that the arbitrator will proceed ex-parte in the case if he does not attend. See GLADWIN V CHILCOTE (1841) 9 DOWL 550 and FEATHER STORE V. COPPER (1803) 9 VES. 67, 32 E.R. 526.”
The failure to give notice that the claim of the appellant was going to be considered is a misconduct. Taking this element together with the allegation that the arbitrator did not consider all issues presented to him also made out. The award did not get a mention of the claim of the appellant. Whether it was struck out, dismissed or made out. The arbitrator totally ignored the claim and proceeded to consider only the claim of the Respondent. No matter how flimsy and unreasonable the claim of the appellant was, it deserved a mention.

Failure to determine all matters referred to an arbitrator has been held to be a misconduct, see the case of K.S.U.D.B. V FANZ CONSTRUCTION LTD (1990) 4 NWLR (Pt 142) 1 at 37.

Another item listed by the appellant is that the award is not reasoned through because the arbitrator failed to comply with Section 26(3) of the Arbitration and Conciliation Act, it provides thus:
“(3) The arbitral tribunal shall state on the award-
(a) The reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed items under 25 of this Act.
(b) The date it was made; and
(c) The place of the arbitration as agreed or determined under Section 16(1) of this Act which place shall be deemed to be the place where the award was made.”

The award is clearly stated in page 19 of the record. The trial Judge agreed that the award lacked analysis on how it was arrived at but had reason for award which is:
“Being cost of work and variation carried out by the claimant before the contract was terminated by the Respondent without proper inventory being taken and agreed by the two parties.”

A reasoned award was defined in the case of BREWER HANDELSGELLSCHAFT v WESTZUCKER (No. 2) (1981) 2 LLOYDS REP. 130 at 132-133 thus:
“All that is necessary is that the arbitrators should set out what, on their view of the evidence did or did not happen and should explain succinctly why, in the light of what happened, they have reached their decision and what that decision is. This is all that is meant by a reasoned award.”
From the foregoing, a reasoned award must include the following:
(a) Set out the evidence led by the parties.
(b) Set out what did or did not happen as between the parties to the arbitral proceedings.
(c) Explain why, in the light of what happened, the arbitrators have reached their decision, and
(d) State what the decision is.

Looking at the award made by the 2nd Respondent, it is obvious that it lacks the evidence set out by the parties, the strength and failures of each side, no explanation of what happened and how the decision was arrived at i.e. from what items of the contract. It is therefore clear that the award failed to include the elements required to make the award a reasoned award. This is a breach of the requirement of law and that is also a misconduct. I agree that the award is not expected to be like a court judgment but all that is required is a mention of the required elements to make it a reasoned award.

The next allegation is that of bias. It is true that the 1st Respondent paid the Appellant’s share of arbitrator’s fees and this was without a notice or demand from the appellant. It is true that the practice is that the award is withheld until arbitrators fees are paid. It is obvious that the 1st Respondent communicated with the arbitrator behind the appellant. The lapse occurred by failure to give notice or demand by the arbitrator. However, I do not think that bias is established. In a challenge of bias, it is proper to make the allegation to the Judge to give him an opportunity to respond. It is a serious allegation that must be substantiated by evidence. I do not agree that, it has been established in this case. I find that bias is not established, what is obvious is more of inexperience on the part of the 2nd Respondent as arbitrator.

On the whole therefore, on the basis of the aspects of misconduct I find established against the 2nd Respondent (arbitrator) above, the award of the arbitrator is hereby set aside and the ruling of the trial court dated 16th day of September, 2011 is also set aside. The dispute is remitted back to the Chief Judge, Lagos State to appoint another arbitrator to look into the dispute between the parties.

Each party to bear its cost.

SIDI DAUDA BAGE, J.C.A.: I have read, before now, the detailed judgment in draft just delivered by my learned brother, Yargata Byenchit Nimpar, JCA.

I must say that the reasoning and conclusion reached in the Judgment are in accord with mine. I adopt them as mine, and in conclusion, I have no hesitation in holding that the award of the arbitrator is hereby set aside and the Ruling of the trial court dated 16th day of September, 2011 is also set aside. I abide by the consequential order that the dispute be remitted to the Chief Judge, Lagos State to appoint another arbitrator to look into the dispute between the parties.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now, the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. I agree with the reasoning contained therein and the conclusions arrived thereat. My learned brother covered all the grounds.

The arbitrator obviously lacked jurisdiction to continue considering the dispute and to hand down an award, having earlier terminated the proceedings. Worse still, the Appellant was not given fair hearing. These are misconduct sufficient to justify the setting aside of the arbitral award. See the locus classicus on the matter of misconduct fully dealt with in the lead judgment. Taylor Woodrow Nigeria Ltd v. S.E.G.M.B.H (1993) 24 NWLR (Pt.286) 127

I agree that the appeal is meritorious. I also allow the appeal and abide by the consequential orders in the lead judgment including the order as to costs.

Appearances

Mojisola Akerele (Miss) Mofeso T. OyetiboFor Appellant

AND

Olukayode Enitan
A. Atanda Esq.For Respondent