Bauhaus International Ltd & Anor V. Midfield Investment

LawGlobal-Hub Lead Judgment Report

UWANI MUSA ABBA AJI, J.C.A.

This is an appeal by the Defendants/Appellants, simply called Appellants against the Ruling of Hon. Justice I.U. Bello of the High Court of the Federal Capital Territory, Abuja delivered on the 8th November, 2005, whereby the learned trial judge ordered the parties to proceed to trial having previously set aside an arbitral award on the basis of an alleged Arbitrators misconduct.

The Respondent commenced the substantive suit against the Appellants claiming, inter alia, declaratory and monetary damages resulting from an alleged contract. The parties were subsequently referred to arbitration whereof the Respondent was awarded the sum of N15 million. The Appellants vide a motion filed on the 6th May, 2004 applied to the lower court for an order setting aside the award on the basis of the Arbitrator’s alleged misconduct.

The motion to set aside the award was brought upon the following grounds:-

1. That the Arbitrator exceeded his jurisdiction by deciding on the issues not submitted to him for

determination.

2. That the Arbitrator misconducted himself in that he based his award on unenforceable agreement, It, the agreement being tainted with illegality.
3. That the Arbitrator misconducted himself in that he based his award on an agreement, which is operational upon happening of an event which event did not happen.
4. The Arbitrator misconducted himself in holding that 1st defendant/applicant breached his agreement with the plaintiff/respondent when there was no breach.
5. The Arbitrator misconducted himself when he based his award on an agreement that was frustrated.
6. The award was improperly procured in that it was based on illegal and unenforceable agreement.
7. The Arbitrator misconducted himself when he arbitrarily made an award of excessive, punitive and unwarranted damages based on extraneous considerations.

The Respondent undertook not to oppose the application. The award was consequently set aside by a ruling of the court dated 31st may, 2004, thus:-

“The application is hereby granted and orders made as prayed.”

The court thereupon called upon the counsels to address it on the next step to follow after setting aside of an award. The court then posed three questions that counsels were required to address it upon, namely:-

i. Does the setting aside bring the matter to an end?

ii. Will the court be at liberty to proceed with the matter iii. Will the parties revert back to the process of arbitration denovo in pursuance of the arbitration clause under the agreement?

Counsels duly addressed the court which delivered its Ruling, the subject of the present appeal. The ruling delivered on the 8th November, 2005 stated inter alia:-

“Have carefully considered the arguments of Defendants Counsel and against which, there is no response from the Respondent, I am of the view notwithstanding that the proper order to make after setting aside the arbitral award is that plaintiff can proceed to lead evidence in proof of his case. The provisions of the need for an independent arbitrator having been explored without success, I think my conclusion to or ask the Plaintiff to proceed in proof of his case is proper. It’s so ordered. The position of Defendant is discountenanced.”

The Appellants are dissatisfied with the said ruling and appealed to this court vide a Notice of Appeal filed on the 22nd November, 2005. The grounds of appeal without their particulars are hereby reproduced.

Grounds of Appeal