Federal Ministry of Works and Housing & Anor V. Monier Construction Co. (Nig) Ltd & Anor (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, JCA.

This is an appeal against the Ruling of the Federal High Court presided over by Honourable Justice A.I. Chikere (hereinafter referred to as “the court below”) delivered on the 28th of January, 2005 in the Originating Application dated 17th December, 2001, brought by the Appellants as Applicants. The said application, in which the present Respondents were equally the Respondents, was brought pursuant to Sections 14, 29(2) and 30 of the Arbitration and Conciliation Act Cap 19 LFN 1990; and Order 20 Rule 15 of the Federal High Court (Civil Procedure) Rules 2000, The orders sought in the originating application are as follows: –

“1. AN ORDER setting aside the interlocutory award/ruling dated 13th December, 2001 by the Honourable Justice AA. Kolajo (Sole Arbitrator), in the matter of the arbitration between Monier Construction Company (Nigeria) limited v. Federal Ministry of Works and Housing the Federal Government of Nigeria in relation to Federal Ministry of Works and Housing Contract No. 2930.

2. AN ORDER removing the Honourable Justice A.A. Kolajo (Sole Arbitrator) from the arbitral panel on the ground that he has prejudiced or predetermined at an interlocutory stage issues to be determined at the end of the arbitration proceedings and thereby disqualified himself from further arbitrating on the dispute subject matter of the arbitration proceedings.

3. AN ORDER setting aside the whole of the arbitration proceedings in respect of disputes arising out of or in connection with the Federal Ministry of Works and Housing Contract No. 2930 before the Honourable Justice AA Kolajo sitting as Sole Arbitrator.”

The application was brought upon nine grounds. The nine grounds shorn of their particulars are as follows: –

“1. The Sole Arbitrator misconducted himself when he failed to give the applicants a full opportunity of presenting their case on the ground that “proceedings in the arbitral case had been closed” thereby occasioning miscarriage of justice to the applicants.

2. The Sole Arbitrator mis-conducted himself and the proceedings; and acted unfairly and prejudicially against the applicants when he refused to re-open the hearings by holding as follows: –

“Moreover the plaintiffs counsel in Apena’s case (supra) did not oppose the filing of a new statement of defence. This application was vehemently opposed by the Claimant’s learned SAN, Another point of difference is that the defendant’s counsel in Apena’s case (supra) sought an amendment of the statement of defence, not a re-opening of the case. In the cited case, the defendants’ dispensed with the services of their counsel and retained another, In the present application there is no dispensation of the former counsel. The two former counsel, Mrs, A.M. Bakare and Mr. Pius Oteh (both legal officers with the 1st Respondent) are still in the team of lawyers being led by Chief Ale Babalola, SAN” thereby occasioning miscarriage of justice to the applicants.”

3. The Sole Arbitrator misconducted himself and the proceedings and thereby occasioned grave miscarriage of justice to the applicants when he held as follows: –

“In any case on the facts already before the Tribunal, the respondents cannot counter claim for the difference in the old and new contract since the respondents were responsible for the delay by their failure to finance the contract adequately and even to pay for work done”.

4. The Sole Arbitrator misconducted himself and the proceedings and occasioned grave miscarriage of justice to the applicants when he refused to grant the applicants’ application dated 19th November, 2001.

5. The Sole Arbitrator misconducted himself and the proceedings and thereby occasioned to the applicants grave miscarriage of justice when he held that: “No new issues are stated by the respondents’ counsel”.

6. The Sole Arbitrator misconducted himself and thereby occasioned grave miscarriage of justice to the applicants when he decided at the Interlocutory stage matters for determination in the final award by holding thus: –