Nigerian National Petroleum Corporation V. Lutin Investments Ltd.& Anor (2006)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C.

This appeal arose as a result of arbitration proceedings. Briefly the facts giving rise to this appeal are these. The appellant entered into an agreement with the 1st respondent on 23/12/92, which made provision for reference to arbitration in the event of any dispute arising between the parties thereto which dispute could not be mutually settled. A dispute actually arose between the parties and reference was then made to an arbitrator appointed by and agreed to by both parties. The 2nd respondent herein was the arbitrator jointly appointed by the parties and all references were submitted and made to him in accordance with clause 2 of the said agreement.

In the course of the arbitral proceedings, the learned counsel for the appellant objected to the continuation of the proceedings on the grounds that:

(i) The agreement of 23/12/92 was entered between the appellant and Lutin Investment Limited Geneva Switzerland, but the party that initiated the arbitral proceedings is Lutin Investment of British Virgin Island, a complete stranger to the agreement and;

(ii) The said agreement provided for arbitration under the Nigerian law and therefore it was wrong to move the arbitration to London, England, for any reason.

The learned arbitrator, the 2nd respondent herein, after hearing the submissions of learned counsel for the parties to the arbitration, overruled the objections of the learned appellant’s counsel but in respect of objection (i) he ruled that:

“That is therefore only one company that is the claimant i.e. Lutin Investment Limited. If in course of the hearing of witnesses the respondent (now appellant) succeeds in showing that there are two separate companies involved then the normal consequences will follow.

In respect of objection. (ii)The learned arbitrator also ruled that since the parties did not specifically agree on where the arbitration is to be held, in their agreement, the law gives him full powers to decide the locale of the arbitration.

The appellant was dissatisfied with this ruling and consequently filed a civil summons against the respondents in the Federal High Court, Lagos claiming the following relief:

“1. A declaration that the learned arbitrator Hon. Justice Uche Omo mutually appointed by the parties to the arbitration to arbitrate over the disputed claim of GBP 24,200 + N61,829,934.94 + $89,260,790.39 by the claimant (the 1st defendant hereto) is no longer considered reasonable, fair, impartial, suitable and qualified to continue with the arbitration proceedings.

2. A declaration that the learned arbitrator Hon. Justice Uche Omo acted without authority and beyond the scope of the agreement between the parties and against public policy when he ordered that the arbitration moves to and sit in London, at the expense of the parties to take evidence from the claimant’s witness.
3. An order removing the arbitrator from office to which he had been appointed and in which he had partially served.”

The parties filed and exchanged pleadings, called evidence and addressed the court and the learned trial Chief Judge, Belgore, C.J. in his judgment delivered on 20th December, 1997 dismissed the whole claims of the appellant. The appellant appealed against his decision to the Court of Appeal which after hearing the appeal also dismissed the appeal as lacking in merit. He then further appealed to this court on 2 grounds. In this court, the parties filed and exchanged written briefs as required by the rules of court. In the appellant’s brief, the following issues for determination were identified:

“(i). Whether there was sufficient evidence on record that should lead to the conclusion that Lutin of Geneva, Switzerland and Lutin of British Virgin Island are two different and distinct companies, based on the legal principle that words with fixed meaning in a written contract or document need no further proof by oral evidence to mean something different from what they express.

(ii) whether the Court of Appeal was right in holding that “any place it considers appropriate” under section 16 of Cap. 19 Laws of Nigeria extends to taking evidence in London by the arbitrator against the wish of one of the parties to the arbitration agreement, the proper, correct and scope of the interpretation of the words: “any place it considers necessary” in section 16(2) of the Arbitration Act 1990 of the laws of Federal Republic of Nigeria.

(iii) whether it is not against public policy for an arbitrator to travel abroad London for the benefit of a fugitive offender to take evidence from such offender in an arbitral proceedings.