Hon. Emmanuel Oseloka Araka V. Ambrose Nwankwo Ejeagwu (2000)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C.

This is an appeal from the majority decision of the Court of Appeal which dismissed the appellant’s appeal to that Court.

The facts of this case are simple and straight forward. The applicant Hon. E. O. Araka by an originating summons commenced an action for the recognition and enforcement of an award. The award was made pursuant to the Deed of Lease dated 9th October, 1975. Clause 4(a) of he Deed of Lease provides for revision of the reserved rent every fifteen years while clause 4(b) provides as follows:

“If the Lessor and Lessee are unable to agree as to the rent to be paid upon revision as aforesaid, the matter shall be referred to an Arbitrator agreed upon by them or in the absence of such agreement to an arbitrator appointed by a Judge of the High Court.”

Sequel to the liability of the parties to agree upon an arbitrator as provided for under Clause 4(b) of the Lease Agreement (Exhibit 1), Olike, J., of the High Court, Onitsha, on the 24th of January, 1994 appointed an arbitrator, Mr. Damian Okolo, to look into the dispute and fix the rent payable. The arbitrator fixed the sum of N7,250.00 as the rent payable per annum by the respondent in respect of the appellant’s property at No. 109 Upper Iweka Road, Onitsha. This award was published on the 8th of September, 1994.

The appellant Hon. E. O. Araka by an originating summons filed on 6th February, 1995 applied to the High Court for the recognition and enforcement of the award and for the payment of the arrears of rent pursuant to Section 31 of the Arbitration and Conciliation Act, Cap. 19 Laws of the Federation of Nigeria 1990.

Meanwhile on 21 April, 1995, the respondent filed a counter affidavit opposing the enforcement of the award on the ground that the arbitrator acted outside his jurisdiction. Again, on 25 April, 1996 the respondent filed on application under S. 30(1) of the Arbitration and Conciliation Act (Cap. 19) Laws of the Federation of Nigeria 1990 praying that the award be set aside, or, in the alternative, be remitted to the arbitrator or another arbitrator.

After hearing the submission of counsel for and on behalf of the parties, the learned trial Judge remitted the matter to the arbitrator, Mr. Damian Okolo for reconsideration, upon the terms of clause 4(c) of the Lease Agreement.

The appellant’s appeal to the Court of Appeal was dismissed. This appeal is against the decision of the Court of Appeal.

Pursuant to the Rules of this court, the parties filed and exchanged their respective briefs of argument. In the appellant’s brief the following issues are set down as calling for determination in this appeal, to wit:

1. Were the learned majority Justices of the court of Appeal not grossly in error in striking out Ground 2 of the Grounds of Appeal on the erroneous view that counsel for the “applicant” (meaning appellant) had in paragraph 1.7 of his “introductory Remarks” in the Appellant’s Brief of Argument made an “application” to that effect
2. Were the learned majority Justices of the Court of Appeal not grossly in error when they were of the view that the complaint contained in Ground 2 of the Grounds of Appeal to wit – that the respondent’s Motion on Notice for setting aside the award of the Arbitrator, which was clearly statute-barred, was not a complaint touching the competency of the Motion and thereby wrongly struck out the said Ground 2 of the Grounds of Appeal
3. Were the learned majority Justices of the Court of Appeal not grossly in error when they held that Ground 2 of the Grounds of Appeal had been abandoned by appellant’s counsel in his Brief of Argument
4. Were the learned majority Justices of the Court of Appeal not under a duty to consider and determine all issues placed before them
5. Were the learned majority Justices of the Court of Appeal not grossly in error when they held that the respondent’s Motion on Notice for setting aside the arbitrator’s award which was filed in the appellant’s suit for the recognition and enforcement of the award was not incompetent

The respondent, for his part, has formulated the following issues in his brief, that is to say-

1. Whether or not the Court of Appeal was right in holding that with the exception of ground 1 of the grounds of appeal filed before it the rest of the grounds of appeal were abandoned by the appellant as clearly stated by Counsel to the appellant.
2. Whether or not the Court of Appeal was right to have held that the respondent’s application to set aside the award was competent.

I think the real question for determination in this appeal is whether the Respondent’s motion on notice filed on 25 April 1995 for an order setting aside the arbitrator’s award is competent or not. As I already indicated the arbitrator gave his award on 8 September, 1994. The motion on notice to set aside this award was brought on 25 April 1995, a little over 7 months from the date the award was published. This motion was brought under Section 30(1) of the Arbitration and Conciliations Act Cap. 19 Laws of the Federation of Nigeria 1990. After taking the submissions of counsel for the parties, the learned trial Judge in a reserved ruling found as follows:

“I hold that the arbitrator went outside the limits of his jurisdiction as provided for in clause 4(c) supra. To that extent the arbitrator misconducted himself ………………..It follows that the application would be brought under Section 30 of the Act, and subsequently is not statute barred.”

The learned trial Judge then remitted the matter to the arbitrator for reconsideration upon the terms of clause 4(c) of the Lease Agreement.