Misr (Nigeria) Ltd. V. Salau El Assad (1971)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

Messrs. Misr (Nigeria) Ltd., have appealed against the judgment of the High Court, Lagos (Caxton-Martins, J.) which was entered with costs in favour of one Sallah El Assad, trading under the name and style of Swiss West African Trading Agency, the plaintiff therein, in the terms of the writ which reads as follows:

“The plaintiffs’ claim against the defendant is for the sum of 20,000 (twenty thousand pounds) due to the plaintiff and payable by the defendant being damages for breach of contract to buy 3000 tons of No. 1 heavy melting steel scrap from the plaintiff within the date mentioned in the agreement dated 20th day of July, 1962.”

The defendant has refused, failed and/or neglected, to pay in spite of repeated demands.”

Learned counsel for the respondents before us has also filed a notice, pursuant to the provisions of O. 7, R. 13 of the rules of this court, to the effect that the ruling of the High Court be affirmed on the following other ground that is to say: since there has been an abortive arbitration the court has the duty to come to the assistance of the parties by removing the impasse and the extrication of their rights, by entertaining the suit, since the parties were unable to agree on the appointment of arbitrators acceptable to both parties.”

As would have been apparent the action itself concerns the outcome of arbitration proceedings. After the filing of the action and the service of the writ of summons on the defendants, they took out a motion in the High Court Lagos, asking that the action be stayed indefinitely pursuant to the provisions of section 5 of the Arbitration Act, Cap. 13 (Laws of the Federation of Nigeria) because, as stated in the defendant’s affidavit in support of the motion, the parties have “by submission in writing dated the 20th day of July, 1962 agreed to refer to arbitration the matters in respect of which this action is brought.” The application was supported by an affidavit carrying as an exhibit thereto a copy of the submission to which reference was being made. The last clause in that submission provides and reads as follows:

“In the case of disagreement, the two parties will agree to nominate arbitrators who will decide, in the case of arbitrators not reaching an agreement, they will nominate an umpire whose decision will be final and binding.” The plaintiff thereafter filed counter affidavit paragraphs 2 and 3 of which read as follows:

“2. An award of 6,993Pounds.0s with 70 guineas cost was made in my favour on the 1st day of July, 1968 by Mr.T.K. Agbesanwa as a result of an arbitration of which the defendant had notice. . ..

3. The said award was set aside on the 21st day of October, 1968 in suit no. M/145/68 I make this oath solemnly and conscientiously believing same to be true.”

Now it is true that an award dated the 20th day of July, 1962 was made in favour of the plaintiff by one Mr. Timothy K. Agbesanwa, a sole arbitrator. It is also true that by a ruling of the 21st October, 1968 in suit no. M/145/68 the High Court of Lagos (Lambo J.) set aside that award.

In the course of the ruling in that matter, Lambo J. stated as follows:

“It would appear that the whole case revolved round the question whether or not T.K. Agbesanwa Esquire, was validly appointed in pursuance of the arbitration agreement exhibit A made in July, 1962. After due consideration of the arguments and the affidavits sworn to by the parties, I am of the opinion that the appointment of the sole arbitrator Mr. T. K. Agbesanwa was not made by the respondent in accordance with the agreement of July, 1962, exhibit “A”. Accordingly, I hold that the appointment was a nullity and it is hereby ordered that the award be set aside. The respondent will pay the costs of this application which I assess and fix at 10 guineas.”

Apparently, after this, the plaintiffs had sought by way of an originating summons the aid of the court pursuant to section 6 of the Arbitration Act, Cap. 13 “to appoint an arbitrator.” The High Court, Lagos (George J.) ruled that the court had no jurisdiction to do this and so struck out his application.

However the motion to stay the proceedings indefinitely was moved and argued. It was opposed by learned counsel for the plaintiff who contended that there had already been an abortive arbitration, that the plaintiff had unsuccessfully sought the assistance of the court to appoint an arbitrator, and that in the circumstances the plaintiff was entitled to proceed with his case by way of a writ as he had now done.

In a reserved ruling Caxton-Martins J. refused the application for a stay of proceedings and observed as follows: