Clement C. Ebokan V. Ekwenibe & Sons Trading Company (2000)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A.

The parties had commenced a relationship between them as business partners. The agreement of the parties was that profits of the business be shared on ratio 14 to 1 as between the appellant and the respondent respectively. The respondent in exercise of the options available to it under the partnership agreement decided to bring the relationship to an end. In reaction, the appellant called for an account of the business. When this was not forth coming, he brought an application before the lower Court for the appointment of an arbitrator to settle the issues between the parties. The arbitrators so appointed on 23/3/87, were Messrs. Uche Chigbo & Co. of No.4 Old Hospital Road, Onitsha.

The arbitrators made their award. In reaction, the respondent brought an application before the lower Court to set aside the award. The appellant filed another application to enforce the award. The lower Court on 26/7/90, struck out the two applications thus effectively leaving the parties in the same position they were before the arbitrators were appointed. In striking out the two applications, the lower Court reasoned thus:

“The whole exercise has been needed (?) up by the arbitrators. I have read the pieces of record of proceedings put together. It is my considered opinion that it could not even pass for a record of proceedings at all. The whole package was put together in untidy form. For my reasoning in this case, the logical conclusion in respect of the consolidated applications is that both applications failed. As I did not consider it necessary in the circumstances of the application to deal with the submissions of both counsel, I would strike out the two applications. To think for the parties and their counsel, it is obvious in the case that they may have to settle this matter out of court or to begin a new exercise afresh”.

Dissatisfied with the ruling of the lower court, the appellant has brought this appeal on 15 grounds of appeal. In the appellant’s brief filed, the issues for determination were identified as the following:

“1. Did the sitting of Mr. Reginald I. Ochiogu, A.C.A. of Uche Chigbo & Co. as Secretary, a resident partner of Uche Chigbo along with Mr. Uche Chigbo in the arbitration vitiate the proceedings in law?

2. Is there any permissive or mandatory provision in the arbitration and Conciliation Decree No. 11 of 1988, directing Arbitrator after giving his award to report the result to the High Court?.
3. Whether the Judge in the court below adopted the correct approach when the respondent failed to file counter-affidavit to the claimant motion for leave to enforce the award; when the respondent did not also adduce argument in challenge to application for leave to enforce the award, when the only alternative left for the learned Judge was to grant to the claimant an order for leave to enforce the award?.
4. Whether the court below was right when the Judge held that it was the duty of the arbitrator to provide the court with copy of the proceedings in the court below instead of the Respondent/Applicant?.
5. Was the court below right when it refused to grant leave to enforce the award?
6. Did the Judge below evaluate the evidence putting the case of the parties on the imaginary scale on the principle of Mogaji v. Odofin?”.

The Respondent in its brief formulated the following issues for determination:

“1. Was the Arbitration Panel properly constituted when Messrs. Uche and Reginal I. Ochiogu sat in arbitration in which the Arbitral Agreement provided for a single arbitrator in the event of disagreement?.

2. Whether a party that applies to the Court for leave to enforce an award which is being contested, opposed or disputed should provide the court with authenticated documents relevant to the application to enable the court to act in accordance with the law?.
3. Whether a party who applied to the court for an award to be set aside and addressed the court on the impropriety of enforcing the award can be said not to have challenged the award?.
4. Whether there were sufficient evidence before the learned trial Judge to enable him apply the principle in Mogaji v. Odofin (1978) 4 SC 91?”.

I shall in this judgment be guided by the issues formulated by the appellant as all the issues raised by the respondent fall within the purview of the issue formulated by the appellant.

The issues raised by the appellant dovetail into each other. I shall therefore take the issues together. It is important that I preface a consideration of issues by stating that I am not in this appeal concerned with whether or not the application which the respondent brought before the lower Court for the award of the arbitrators to beset aside was correctly struck out by the trial Judge. It is sufficient to recognise that the application was struck out and that the respondent has not appealed against the order striking out its application. See Ejowhomu v. Edok-Eter Ltd. (1986) 5 NWLR (pt.39) 1.

In considering the applications brought by each of the parties before him, the trial Judge had not treated each application separately. He generally identified certain matters in the proceedings before the arbitrators and then concluded that these constituted irregularities which did not enable him to consider the applications on their merit. He then struck out the two applications. What I propose to do therefore is to consider the matters identified by the lower Court as constituting irregularities and determine whether or not these constituted reasons enough to refuse the application by the appellant which sought to enforce the award. I should of course, link such matters with the issues for determination.

In an application filed on 2/5/89, the present appellant (as applicant) prayed for an order “to enforce the award in these proceedings made on the 24th day of November,1988, by the respondent”.

In the affidavit in support of the application, the appellant deposed thus:

“I, Clement Chibueze Ebokam, Nigerian, Christian, now resident at Nani Town in Anambra State of Nigeria, do hereby make oath and as follows:-