➥ CASE SUMMARY OF:
Dunlop Nigeria Plc. (now DN TYRE & RUBBER PLC.) v. Gaslink Nigeria Limited (2018) – CA
by PipAr Chima
Court of Appeal – CA/L/266/11
➥ JUDGEMENT DELIVERED ON:
9 Feb 2018
➥ AREA(S) OF LAW
➥ NOTABLE DICTA
⦿ COUNSEL SHOULD INDICATE WHAT GROUND AN ISSUE WAS RAISED FROM
As can be observed, the issues formulated in the Appellant’s brief are indicated to have distilled from grounds 2 and 8 of the Appellant’s Notice of Appeal while there is no indication by the Respondent’s Counsel, from which of the grounds of the appeal, since there is no cross appeal here or a Respondent’s notice, the additional issue was raised. The requirement of diligent of brief writing in the appellate Courts is that counsel should indicate from which grounds of an appeal every issue/s submitted for determination in an appeal, was/were distilled. – Garba, JCA. Dunlop v. Gaslink (2018)
⦿ REQUIREMENT FOR INDICATION OF WHAT GROUND AN ISSUE WAS RAISED FROM
The primary purpose of the requirement that counsel should indicate from which of the grounds of an appeal issues raised in their brief of argument are derived, is to narrow and specifically identify the grounds from which such issues were distilled so as to readily show if they are valid and competent issues derived from competent grounds of the appeal. With the clear and express indication of the grounds of the appeal from which the two (2) issues raised in the Appellant’s brief, are distilled, the issues cannot reasonably be said to have been formulated from the other grounds not indicated in the issues. Beyond argument, the law still remains that grounds of appeal from which no issue was distilled or formulated (or indicated to have been distilled) are deemed abandoned. – Garba, JCA. Dunlop v. Gaslink (2018)
⦿ PARTY CAN APPLY TO COURT TO SET ASIDE AN ARBITRATION AWARD
The provisions simply provide any of the parties to an arbitration award a discretionary right to request, pray for or seek from a Court of law, an order refusing or declining to accord judicial recognition or enforcement of the arbitral award between them. By dint of the provisions, a party to an arbitral agreement is vested with and possesses the unfettered right to approach a Court of law to request that the arbitration award between the parties, should not be recognized and enforced by the Court. The provisions merely provide a right of access to a Court of law for the sole purpose of requesting for or seeking an order that would refuse to recognize and/or enforce an arbitral award the parties thereto, to any one of them. – Garba, JCA. Dunlop v. Gaslink (2018)
⦿ TIME LIMIT TO SET ASIDE AN ARBITRATION AWARD
It can easily be observed that the provisions of Section 29 are complementary to the provisions of Section 32 in that they only provide the time limit and the discretion to set aside an award on proof that it contains decisions on matters beyond the scope of the submission to the arbitration. The provisions of the two (2) sections are therefore neither in conflict nor mutually exclusive of each other as erroneously argued by the learned counsel for the Appellant. – Garba, JCA. Dunlop v. Gaslink (2018)
⦿ PURPOSEFUL INTERPRETATION OF A STATUTE
For the purposeful interpretation of a statute, the law requires that the sections of the statute be read and considered in community, wholistically or together and not some or individual sections in isolation of the others. – Garba, JCA. Dunlop v. Gaslink (2018)
⦿ IF PRELIMINARY OBJECTION IS SUSTAINED, APPEAL COURT MAY PRONOUNCE ON THE OTHER ISSUES
This finding on the objection by the Respondent would appear to have taken out the bottom or foundation of the appeal, the grounds of which are predicated on the motion which was statute barred and incompetent. However, bearing in mind that the decision of the Court is subject to a further appeal and the exhortation that the Court even in situations such in this appeal, should make pronouncement on the other issues raised in the appeal, I would consider the other issues. – Garba, JCA. Dunlop v. Gaslink (2018)
⦿ ARBITRATION PANELS ARE SPECIAL QUASI-JUDICIAL PROCEEDINGS
As a foundation, I would state that Arbitration proceedings are special quasi-judicial proceedings which are specifically provided for, regulated and governed by the Arbitration and Conciliation Act as well as the Arbitration Rules provided for in the schedule to the Act. The proceedings are not the same as the usual judicial proceedings in the determination of disputes which are also governed and regulated by the different Rules of procedure and practice enacted for such Courts. – Garba, JCA. Dunlop v. Gaslink (2018)
⦿ GENERAL PRINCIPLES APPLICABLE IN REGULAR COURTS ARE NOT APPLICABLE IN ARBITRATION PROCEEDINGS
In this context, the general principles of law laid down and applicable to and in proceedings of the regular Courts in the process of judicial adjudication of causes or matters before them do not ordinarily apply to such quasi judicial arbitral proceedings which the parties by their free and voluntary choice, opted to resort to in the settlement of their disputes rather than the judicial/adjudication of the regular Courts. – Garba, JCA. Dunlop v. Gaslink (2018)
⦿ EXCEPTION TO JURISDICTION CAN BE RAISED AT ANYTIME NOT APPLICABLE TO ARBITRATION
For instance, the general position of the law that the issue of jurisdiction of a Court can be raised at any stage of the proceedings of a case, even for the first time at the appellate stage, is not applicable to arbitral proceedings before an arbitral Tribunal because the Act, in Section 12(3) has provided the stage at which a challenge to the jurisdiction of the arbitral Tribunal is to or may be raised by a party. – Garba, JCA. Dunlop v. Gaslink (2018)
⦿ ISSUE OF JURISDICTION CAN ONLY BE RAISED AT THE ARBITRATION PANEL
The law therefore is that although in the regular Courts, the issue of jurisdiction can be raised at all stages of the proceedings of a case; from the trial to the final appellate, where a statute prescribed the stage at which the issue is to be raised in the course of the proceedings of a case, the issue cannot be validly and properly raised at any other stage other than the one stipulated in the statute. The general principle applies only where there was no statutory provision as to the particular or specific stage of the proceedings of a case at which the issue of jurisdiction is to be raised by a party. – Garba, JCA. Dunlop v. Gaslink (2018)
⦿ WRONG FACT FINDING CANNOT SET ASIDE AN ARBITRAL AWARD
In arbitration proceedings, the general principle is that facts finding by an Arbitrator is not a ground for setting aside an award on the ground that it is wrong nor on the ground that there is no evidence on which the facts could be found because that would be mere error of law. – Garba, JCA. Dunlop v. Gaslink (2018)
⦿ PROOF REQUIRED UNDER EVIDENCE ACT NOT APPLICABLE TO ARBITRATION PROCEEDINGS
Proof as required under the Evidence Act is not applicable in arbitral proceedings as provided for in Section 256(1)(a) of the Act which says that: “This Act shall apply to all judicial proceedings in or before any Court established in the Federal Republic of Nigeria, but it shall not apply to – (a) Proceeding be an arbitrator.” Absence of evidence in proof of facts submitted to an arbitrator, required under the Evidence Act, is not a ground for setting aside an arbitral award. – Garba, JCA. Dunlop v. Gaslink (2018)
⦿ PARTIES ARE BOUND BY ARBITRAL AWARD
Once parties have consented to arbitration, they have also consented to accept the final award by the arbitrator. – Nimpar, JCA. Dunlop v. Gaslink (2018)
Dunlop Nigeria Plc. (NOW DN TYRE & RUBBER PLC.)
Gaslink Nigeria Limited (2018)
➥ LEAD JUDGEMENT DELIVERED BY:
Mohammed Lawal Garba, J.C.A.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
By an originating motion dated 10th of May, 2010 in Suit No. ID/411M/2010, before the Lagos State High Court, the Respondent prayed for leave to enforce the Arbitral Award dated 15th of March, 2010 as between it and the Appellant in respect of their dispute on a Gas sale and purchase agreement entered by them in 2005. In reaction to the motion, the Appellant filed a Written Address dated 19th of October 2010 and a motion dated 19th of November, 2010 praying that the High Court refuse to recognize and enforce the Arbitral Award. The two motions by the Respondent and Appellant were heard together and in a judgment delivered on the 17th of December, 2010, the High Court recognized and ordered the enforcement of the Arbitral Award, except the relief (4) and relief (5) as it relates to relief (4). Dissatisfied with the judgement, the Appellant brought this appeal by the Notice and Grounds of Appeal dated the 17th of March, 2011.
➥ ISSUE(S) & RESOLUTION
[PRELIMINARY OBJECTION: ALLOWED]
I. WHETHER OR NOT THE COURT below had the jurisdiction to entertain the Appellant’s Originating motion dated 19th November, 2010?
I.A. I should reiterate that though the motion filed on the 19th of November, 2010 was brought pursuant to Section 32, the primarily relief sought thereon was premised on grounds for setting aside the award as stated under Section 29(2) and legal consequence of the relief sought, if granted, was to set aside the award. Section 29(1) in the circumstances applied to the motion filed by the Appellant on the 19th November, 2010 for the High Court to refuse to recognize and enforce the arbitral award in question. It may be recalled, that the provisions of Section 29(1) provide that a party who is aggrieved by an arbitral award may, by an application for setting aside, request, a Court to set aside the award within three (3)months from the date of the award. The application to set aside an arbitral award is therefore required to be made or brought before a Court within the period of three (3) months stipulated and limited in the provisions, from the date of the award. The provisions are limitation of time provisions for the purpose of making a application to set aside an arbitral award and for the application to be valid and competent, it must be made or brought in compliance with the provisions, otherwise it would be statute barred. As seen in the case of Araka v. Ejeugwu (supra) an application made outside the period of three (3) months stipulated in the provisions notwithstanding the section of the Act under which it was brought, would be incompetent and the Court would lack the competence to entertain it for being statute barred. In the case of Bill Constr. Co. Ltd v. Imani and Sons Ltd. (2006) 19 NWLR (Pt. 1013) 1, (2006) 11-12,90, Akintan, JSC restated the law when he said: “Application to set aside an arbitral award where not made within three months stipulated by law cannot be entertained by the Court.” See also Home Dev. Ltd. v. Scancila Constr. Co. Ltd. (1994) 8 NWLR (Pt. 362) 252.
I.B. It is not in dispute that the award in respect of which the Appellant’s motion was filed on 19th November, 2010, was made on the 15th of March, 2010 and clearly the motion was brought or filed before the High Court outside and after the expiration of the period of three (3) months limited in the provisions of Section 29(1) for it to have been filed or brought. The motion was undoubtedly statute barred, incompetent and the High Court lacked the requisite jurisdiction to have adjudicated over it. In the result, I find merit in the arguments of the Respondent on the issue of the objection and resolve it in its favour.
I.C. In the absence of the requisite jurisdiction to entertain and adjudicate over the motion dated the 19th November, 2010, the proceedings and decision by the High Court in respect thereof, are a nullity, void and of legal consequence.
[APPEAL: DISMISSED, WITH N500,000 COST AGAINST THE APPELLANT]
I. WHETHER THE LEARNED TRIAL JUDGE was right when she failed to refuse the recognition and enforcement of the Arbitral Award, having regard to the fact that the Arbitral Tribunal exceeded its jurisdiction thereby rendering the entire Award a nullity?
RULING: IN RESPONDENT’S FAVOUR.
I.A. A party who did not raise the issue of jurisdiction before the arbitral panel is foreclosed from raising it for the first time in the High Court. The reason being that the foundation of jurisdiction in an arbitration is submission.
I.B. As espoused by the apex Court, a party to an arbitral proceeding must comply with the provisions of Section 12(3) of the ACA, and Article 21(3) of the Arbitral Rules, if it wishes to raise the issue or challenge the jurisdiction of the Tribunal over the dispute or issues therein or hold its peace forever because it would be foreclosed from doing so later either in the High Court or on appeal.
It was based on an issue which the Appellant was by the law, foreclosed from raising before or at the High Court and so that Court was deprived of the necessary judicial power and authority, in the name of jurisdiction, to entertain and adjudicate over it.
II. WHETHER THE LEARNED TRIAL JUDGE was right when she denied refusal of recognition and enforcement of the award of the sum of ₦28,059,874.84 allegedly billed and owned between the months of September and December 2008?
II.A. An arbitral award cannot be set aside on the ground only that there was no sufficient evidence to prove particular items of the award as long as the facts submitted to the arbitrator by the parties were the basis upon which the findings were arrived at to make the award. In the facts submitted to the Tribunal, the Applicant did not deny liability for the debt owed for the period of 1st September, 2008 to 31st December, 2008 and so was deemed to have admitted same.
➥ ENDING NOTE BY LEAD JUSTICE – Per
➥ REFERENCED (STATUTE)
Section 32 of the Arbitration Act which provides that: – “Any of the parties to an arbitration agreement may request the Court to refuse recognition or enforcement of the award.”
Sections 12(3), 15, 21(3), 29, 32 Arbitration Act.
Section 256(1)(a) Evidence Act 2011.
➥ REFERENCED (CASE)
⦿ ARBITRAL PROCEEDINGS LACK THE SOPHISTICATION OF REGULAR COURTS
In Celtel Nigeria BV v. Econet Wireless Limited (2014) LPELR-22430(CA) @ 60 explained, succinctly, the nature of arbitral proceedings before an Arbitration Tribunal as follows: “An Arbitral Tribunal is by nature an informal adjudicatory body lacking the sophistication and technical know-how of Judges of regular Courts. Arbitral Tribunals are also not bogged down in the procedural trappings of regular Courts. Arbitral proceedings are therefore treated with a broad, liberal/open mind leaning on the side of dynamism, commercial sense, latitude and common sense.”
⦿ WHERE A STATUTE HAS PROVIDED A PROCEDURE SUCH PROCEDURE MUST BE FOLLOWED
Adejobi v. State (2011) 6 MJSC (Pt 1) 101 @ 119 it was held that: “It is trite that a question of law and jurisdiction can be raised at any time in the proceedings, but it is not a free for all procedure. Where a statute under which an issue or matter is to be raised has provided a procedure for raising such issues or matter, that procedure, and no other must be followed.”
⦿ HIGH COURT DOES NOT SIT ON APPELLATE FUNCTION OVER ARBITRAL PANEL
In the case of Baker Marine Nigeria Limited v. Chevron Nigeria Limited (2000) 3 NWLR (Pt. 681) 939 @ 410, it was held that an application to set aside an arbitral award: “The lower Court was not sitting as an appellate Court over the award of the arbitrators. The lower Court was not therefore empowered to determine whether or not the findings of the arbitrators and their conclusions were wrong in law. What the lower Court had to do was to look at the award and determine whether on the state of law as understood by them and stated on the face of the award, the arbitrators complied with the law as they themselves rightly or wrongly perceived it. The approach here is subjective. The Court places itself in the position of the arbitrators, not above them, and then determines on that hypothesis whether the arbitrators followed the law as they understood and expressed it.”
➥ REFERENCED (OTHERS)