Nigerian Telecommunications Limited V. Engr. Emmanuel C. Okeke (2017)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

This is an appeal against the decision of the Court of Appeal, Lagos delivered on 23/7/2003. The appeal to the Court of Appeal was against the ruling of Longe, J. of the High Court of Lagos State delivered on 5/12/2000 dismissing the appellant’s application to set aside an Arbitral Award made by late Honourable Justice Olusola Thomas dated 15/9/1998 but delivered to the appellant on 3/5/1999.

The arbitral proceeding itself resulted from the termination of the respondent’s appointment as appellant’s Consultant (Electrical/ Mechanical Engineer) for the construction of appellant’s Corporate Headquarters building in Abuja (referred to as “the Project”). Apart from the respondent, three other consultants were appointed by the appellant to oversee various aspects of the project namely:

Consultant Architect (Deenarc Consultants), Consultant Quantity Surveyors (El-Rufai & Partners) and Consultant Civil/Structural Engineers (Landscope Consultants) collectively referred to along with the respondent as “the Consultants”).

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By a notice of arbitration dated 16/12/1996 the respondent commenced the arbitral proceeding seeking a declaration that the termination of the contract by the appellant was a breach of a contract between the parties and asked for special and general damages for the wrongful termination. Pursuant to the direction given by the Arbitrator for filing of pleadings, the respondent filed his points of claim dated 16/12/1996 and in response, the appellant filed its points of defence dated 4/4/1997 wherein joining issues with the respondent on his allegations of fact. The respondent subsequently filed a reply to the points of defence dated 9/4/1997and the matter proceeded to trial.

According to the appellant, the respondent’s collusion in the inclusion of N700,000,000.00 (Seven Hundred Million Naira) in the sub-contract tender documents was the underpinning issue contended by the parties in their pleadings but the arbitrator failed to determine, this issue one way or the other in the award dated 15/9/1998. This prompted the appellant to file an application before the High Court, Lagos praying the Court to set aside the arbitral award on grounds of

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misconduct amongst others. The High Court dismissed the application holding that there was no misconduct established against the arbitrator. The appeal to the Court of Appeal was dismissed on 23/7/2003 wherein the Court of Appeal held that the pleadings have no relevance in arbitral proceedings. This prompted a further appeal to this Court. There are 11 grounds of appeal in the amended notice of appeal from which appellant’s counsel distilled three issues for determination as follows:

1. Was the Court of Appeal right in affirming the decision of the Lagos High Court that the Arbitrator made a finding on the core issues submitted to him for determination despite his (Arbitrator’s) admission that he did not go into the avalanche of evidence adduced by the parties on the issue of collusion (Grounds 2,3, 5,9 and 11).
2. Was the Court of Appeal right in upholding the decision of the High Court that the appellant did not establish any misconduct against the honourable arbitrator (Grounds 4 and 10)
3. Was the Court of Appeal right in affirming the award of reimbursable expenses (Grounds 6,7 and 8).

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The respondent also submitted three issues for determination as follows:

1. Was the lower Court right in holding that the appellant did not prove any misconduct on the part of the sole arbitrator nor show any error of law on the face of the arbitral award to warrant the setting aside of the arbitral award
2. Was the lower Court right in holding that the conduct of arbitration is not subject to the same set of rigid rules of pleadings as obtained in a formal Court trial and that the parties having elected arbitration are bound by the results
3. Was the lower Court right in upholding the damages awarded in favour of the respondent by the arbitrator and upheld at the Lagos High Court (Coram Longe, J)

Before considering the issues raised in the appeal, it is Necessary to dispose of the issue of jurisdiction raised suo motu by this Court on 19/4/2016 regarding the filing of the application to set aside the award made on 15/9/1998.

There is no doubt that the award is dated 15/9/1998 but it was not communicated to the parties until 3/5/1999 and the appellant filed the application to set aside the award on

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