Kano State Oil And Allied Products Ltd Vs Kofa Trading Co. Ltd (1996)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, JSC.

By a motion on notice filed in the High Court of Kano State, the Applicant (now Respondent before us) prayed the court “to appoint a sole Arbitrator to decide the dispute between Kasoap and Kofa Trading Company (Nig.) Limited in respect of a contract dated 15th October 1984……”

The motion which was supported by an affidavit sworn to by Alhaji Aminu Ibrahim Kofa, the Managing Director/Chairman of Kofa Trading Company Limited and to which was annexed a number of documentary exhibits, was brought under Section 6(1)(a) of the Arbitration Law, Cap. 7 Laws of Kano State and the Arbitration Act, Cap. 13 Laws of the Federation of Nigeria and Lagos, 1958. The Respondent to the motion (who is now Appellant before us) raised a preliminary objection to the motion on the ground that an action could not be commenced by way of motion but by writ of summons. The objection was overruled by the learned trial Judge, Saka Yusuf J. The motion which was vigorously opposed by the Respondent, was subsequently argued. The learned trial Judge in a reserved ruling found for the applicant, holding –

“In the light of foregoing therefore I am satisfied from the facts before the court that the applicant had served notice o the respondent for the appointment of an arbitrator. I am also satisfied that it is more than seven clear days that this notice was served without any positive response from the respondent. In view of the inability of the applicant and the respondent to agree I am duty bound to appoint an arbitrator for them.

By the powers therefore conferred on me by Section 6(1)(a) and (2) of the Arbitration Law of Laws of Northern Nigeria 1963 adopted and applied in Kano State read in pari pasu with the Arbitration Act Cap. 13 of Laws of Federal Republic of Nigeria 1958, (sic) I Saka Yusuf, a High Court Judge of Kano State appoint Messrs Adegboyega Adegbulugbe & Co., Chartered Accountants 57, Airport Road, P. O. Box 5717 Bompai Kano. (Tel: 622869) as an arbitrator to hear and determine the dispute now pending between Kofa Trading Company Nig. Ltd., and Kano State Oil and Allied Products Ltd.

That the Higher Registrar of this court should convey this order of appointment to Messrs Adegboyega Adegbulugbe & Co., with a view to obtain his consent to act as the arbitrator.

That if Messrs Adegboyega Adegbulugbe consents, this should be communicated to both Kofa Trading Company Nig. Ltd., and Kano State Oil and Allied Products Ltd., the two parties to arrange meeting with the arbitrator with a view of drawing up terms of reference agreeable, to the two parties.

That the arbitration expenses which are likely to be incurred should be borne by the two parties in the rate of 50 & 50.”

Being dissatisfied with the decision the respondent appealed unsuccessfully to the Court of Appeal. The respondent has now further appealed to this Court upon 7 grounds of appeal. Written Briefs were filed and exchanged and the appeal was set down for hearing. On the date for hearing both parties and their counsel were absent in court and the appeal was, pursuant to Order 6 rule 8(6) of the Rules of this Court, taken as having been argued on the written Briefs.

In the Respondent/Appellant’s Brief the following 4 questions are set down as calling for determination in this appeal, that is:

“(1) Whether the Court of Appeal was right in holding that the Respondent could commence proceedings for the appointment of an arbitrator by the Court of trial by Motion on Notice in the circumstance of this case.

(2) Whether the Respondent is a party to the submission and can rely on the provisions of the Arbitration Clause to invoke the Court’s power under Section 6 of the Arbitration Law Cap. 7 Laws of Northern Nigeria 1963 applicable to Kano State.

(3) If the answer to No. 2 above is positive, whether the Court of Appeal was right in holding that the Respondent had satisfied the conditions precedent to the exercise of the powers conferred upon the court by Section 6 of the Arbitration Law.

(4) Whether the Court of Appeal rightly exercised the powers conferred upon it under Section 16 of the Court of Appeal Act, having regards to the circumstances of the case, in appointing a Sole Arbitrator.”