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Home » Nigerian Cases » Supreme Court » Nigerian Telecommunications Limited V. Engr. Emmanuel C. Okeke (2017) LLJR-SC

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

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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24/6/1999 which was a month after the award was communicated to the appellant. The 3 months period stipulated in Section 29 of the Arbitration and Conciliation Act, Laws of the Federation of Nigeria, 2004 for filing the application to set aside the award started to run from the date the award was published. See Section 26(4) of the Arbitration and Conciliation Act and Article 2(2) Arbitration Rules. The lower Court therefore had jurisdiction to hear the appeal against the order of Longe, J. refusing to set aside the arbitral award.

Arguments of Counsel

Learned counsel for the appellant maintains that the honourable arbitrator did not decide the core and central issue of collusion of the respondent in the inclusion of the provisional sums which issues were well set out in the parties’ respective pleadings and supported by both oral and documentary evidence. He argued that, the relevance of pleadings in judicial proceedings cannot be over emphasised as arbitral proceedings are judicial in nature pointing to the Arbitration and Conciliation Act, Cap. 19, Laws of Federation of Nigeria, 1990 (now Cap. 18, LFN, 2004) (“the Act) itself

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and Articles 18,19 and 20 of the Arbitration Rules which are similar to Civil Procedure Rules. He said that the issues that were submitted to arbitration as can be seen from notice of arbitration and the points of claim as filed by the respondent are:

(a) Legality of the termination; and

(b) Damages

He submitted that issues for determination can only be distilled after the consideration of processes filed by the parties since doing otherwise will be unfairly prejudicial to the other party. Learned counsel contended that if the Court of Appeal had despite its neglect of the appellant’s statement of defence, considered the submission in the appellant’s written address to which it referred, it would have discovered that the underpinning issue on the legality or otherwise of the termination is the collusion of the respondent and its effect as a ground for termination of the contract. He further submitted that the honourable arbitrator could not have validly determined and conclusively reached a decision thereon without first resolving the issue of collusion and complicity of the respondent in the inclusion of the

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provisional sums in the subcontractor tenders documents without the appellant’s knowledge, consent and authorisation which were the core issues around which the parties built their respective cases before the arbitral tribunal. Also, the misconduct of the arbitrator is situated in making an award without a determination of that issue of collusion between the parties; hence the error of the lower Court. Learned counsel for the appellant is therefore inviting this Court to consider the process documents of both parties before the arbitral tribunal and the lower Court.

Learned counsel submitted that if the arbitrator or umpire purports to decide matters which have not in fact been included in the agreement of reference then such an award can be set aside. He relied on K.S.U.D.B. v. Fanz Construction Ltd. (1990) 4 NWLR (Pt. 142) 1 and Taylor Woodrow (Nig.) Ltd. v. SEGMBH (1993) 4 NWLR (Pt. 286) 127. Learned counsel maintained that the appellant as respondent devoted the whole of paragraph 12 of the points of defence to the details of the breach that justified the termination of the claimant’s appointment. He referred specifically to paragraph 12 (f) and (g) of the points

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of defence where the relevant provisions of the consultancy agreement and the custom and trade practices that were breached by the claimant’s alleged collusion in the inclusion of the provisional sums provision in the sub-contract tender documents and all these were summed up in the respondent’s address to the honourable arbitrator. He said the respondent issued clear instructions to the consultants in exhibit S, directing that tender documents be prepared with the provisional sum ignored and the claimant admitted that up till the determination of his agreement on July 18, 1996, this direct instruction from the respondent was not complied with.

He continued that exhibits “G” and “MM” show that the quantity surveyors were acting in concert with other consultants, including the claimant in the preparation of exhibit “OO” and the claimant admitted under cross-examination that he did not at any time prior to the termination of his service dissociate himself from the consultants’ collective obstinacy over and insistence on the inclusion of the disputed and contentious provisions.

See also  Abu Idakwo Vs Leo Ejiga (2002) LLJR-SC

In the circumstances, the claimant was as liable for the

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breach of Clause 9.5 of exhibit A as the quantity surveyors and any of the other members of the gang-up. Learned counsel then submitted that to that extent, the respondent was legally justified in terminating his appointment under clause 18.1 of exhibit A.

On the award for reimbursable expenses, learned counsel submitted that the Court of Appeal was misdirected in law and on the facts in holding that “clearly going by the observation of the arbitrator on page 36 of the printed record he had considered the evidence before him to support the award for reimbursable expenses and the arbitrator was right in believing the uncontradicted evidence before him”. Learned counsel argued that the arbitrator accepted the evidence led on reimbursable claims based on the failure of the appellant to cross-examine the witness without regard to the position of the law on proof of special damage.

Learned counsel for the respondent submitted that the substratum of the appeal whilst ostensibly framed against the judgment of the Court of Appeal is in essence a direct challenge to the findings and award of the

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arbitrator which was made in 1999. He argued that two issues were submitted for arbitration namely –

(a) Legality of the termination; and

(b) Damages.

It is learned counsel’s contention that an application to set aside an arbitral award is not in the nature of an appeal but sui generis placing reliance on Sections 29 and 30 of the Arbitration and Conciliation Act, Cap. 19, Laws of the Federation of Nigeria, 1990. Learned counsel maintained that an arbitral award may only be set aside if the party making the application furnishes proof that the award contains decisions which are beyond the submission for arbitration or where the arbitrator has misconducted himself. Learned counsel conceded that the jurisdiction of the lower Court to interfere with the decision of an arbitrator is limited to either setting aside the award or remitting it back for reconsideration. He said the question for this Court is whether the lower Court exceeded its jurisdiction in affirming Honourable Justice Longe’s judgment and holding the arbitral award as was done in

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Savoia Ltd. v. Sonubi (2000) 12 NWLR (Pt. 682) 539 and submitted that the jurisdiction was not exceeded. He contended that a careful consideration of the lower Court’s ruling will show that the Court confined itself determining whether Longe, J. properly exercised his powers to review the award to come to the right conclusion that save for issue of interest, the arbitrator did not exceed the scope of matters submitted to him and did not misconduct himself.Sections 29 and 30 of the Arbitration and Conciliation Act provide as follows:

“29(1) A party who is aggrieved by an arbitral award may within three months-

(a) from the date of the award; or

(b) in a case falling within Section 28 of this Act from the date the request for additional award is disposed of by the arbitral tribunal

by way of an application for setting aside, request the Court to set aside the award in accordance with Subsection (2) of this section.

(2) The Court may set aside an arbitral award if the party making the application furnishes proof that the award contains decisions on matters which are beyond the scope of the submission to arbitration, so however that if the

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decisions on matters submitted to arbitration can be separated from those not submitted, only that part of the award which contains decision on matters not submitted may be set aside.

(3) The Court before which an application is brought under Subsection (1) of this section may, at the request of a party where appropriate, suspend proceedings for such period as it may determine, to afford the arbitral tribunal an opportunity to resume the arbitral proceedings or take such other action to eliminate the grounds for setting aside of the award.

30(1) Where an arbitrator has misconducted himself, or where the arbitral proceedings, or award, has been improperly procured, the Court may on the application of a party set aside the award.

(2) An arbitrator who has misconducted himself may, on the application of any party be removed by Court.”

The issues in this appeal are:

  1. Whether the lower Court exceeded its jurisdiction in affirming Longe, J’s judgment and upholding the arbitral award; and
  2. Whether the arbitrator misconducted himself.

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See: A. Savoia Ltd. v. Sonubi (2000) 12 NWLR (Pt.682) 539.

The sole ground upon which the applicant (now appellant) applied to the Lagos High Court to set aside the award made by the arbitrator was for misconduct. In dealing with the issue about the collusion of the claimant with other consultants with regards to the provisional sums of over N700,000,000.00 and the appointment of a nominated sub-contractor by the consultant architect, Longe, J. said at pages 346-347:

“I found two matters directly well treated with regard to those issues. The arbitrator touched on these two issues as from page K19 of the report. It would therefore be erroneous to see that the arbitrator never considers (sic) these issues. The arbitrator however, concluded that having arrived at these conclusions it would amount to fruitless exercise to go into the avalanche of evidence adduced by the parties at the hearing as to whether, the role if any pleaded by the claimant and the inclusion of the provisional sums in the consultant quality surveyors tender documents etc. It may be said such finding is not comprehensive enough in the light of the

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evidence and arguments on those issues. However, I believe one can take refuge in the address of the claimant’s counsel at clause 3.38 of the record as follows:

“Thus although exhibit B was written to the consultant/architect by the respondent directing that the “Tender documents be prepared with the provisional decisions ignored”, Architect Afolabi – DW1 adduced under cross-examination, that this instruction was meant to be carried out by the Consultant Quality Surveyor and not the claimant. It is the Quantity Surveyors who expressly refuse (sic) to carry on this direct instruction exhibit J5″

I checked the cross-examination of DW1 – Engineer Afolabi at page 43 and it confirms the above address. Thus, even if the arbitrator has considered the whole issues and the address on this point, I believe it would go to no advantage to the applicant. The fact that the arbitrator did not consider it, is not such a misconduct but a slight misdirection on the part of the late arbitrator (may his soul rest in peace).

However, having admitted and said all these, I believe

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the termination is still bad in itself because even if the client is right and that is has a suspicion or ground to terminate, the client has moved too hastily to terminate in that without waiting (sic) for the 30 days to expire, it has re-awarded the contract to a third party.”

In the Court below the central or core issue submitted to the arbitrator for determination is as contained in the notice of arbitration dated 16th December, 1996 paragraph F which is the relief and remedy sought as follows:

See also  C.G.G. (Nig). Ltd V. Chief Lawrence Ogu (2005) LLJR-SC

“The claimant claim against the respondent the following reliefs and remedies:

(a) A declaration that the respondent unilaterally breached the agreement between the parties by its letter of termination dated 18th July, 1996 as the claimant was not in default of its obligations under the agreement and the alleged acts relied upon by the respondent for the termination was not committed or aided by the claimants but was the act of a third party.

(b) Damages for wrongful termination of the agreement between the parties.”

The arbitrator construed Clause 18 (1)(a) and (b) of the agreement in considering the legality or

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otherwise of the termination wherein the agreement provided that –

“18(1)(a) This agreement may be terminated at any time by either party on the expiring of thirty (30) days notice in writing…

(b) This agreement may be terminated at any time when either party fails to carry out their responsibilities and duties as embodied in the Blue Book or found to be defaulting in clause in this agreement.”

In its letter addressed to the respondent dated 14th July, 1996 which was admitted as exhibit “F” during the arbitration proceedings, the appellant wrote:

“Termination of Consultancy Agreement NITEL Headquarters Building Abuja

This is to inform you that your services are no longer required as a Consultant (Electro/Mechanical Engineers) for the construction of its Corporate Headquarters in Abuja. This letter consequently serves as the requisite 30 days notice under Clause 18.8 of your agreement with effect from the date hereof, of the termination of your said consultancy services agreement dated 14th July, 1995 in respect of

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the project NITEL decision is based, among others, on the understated reason. Recently the consultant quantity surveyor prepared tenders documents for the services subcontract and made provisions for:

(a) Provisional sums worth over N700,000,000.00;

and

(b) Nominated subcontractor to be appointed by the architect

The provisions were not in the original bill and were unnecessary because, inter alia there are drawings and specifications for all the services. Besides, these provisions were made without NITEL’s prior knowledge and consent. All the Consultants, it turned out, knew of and approved the inclusions, in order, according to them, to check alleged “willful perversion of the (subcontract) procedures” by NITEL and the main contractor. The consultants’ attitude is objectionable and unacceptable to NITEL. NITEL considers the insistence of the consultants in including the provisional sums in the tender documents despite NITEL’s objection, as a fundamental breach of their collective and individual duties and responsibilities to NITEL as their employer.

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NITEL is currently working out your entitlements (and outstanding obligations if any) as at the effective date of the termination (i.e. 30 days from the date of this letter). Please note that NITEL intends to proceed against you before an arbitrator, in the event of any dispute inter alia on your terminal entitlements and/ or obligations in accordance with Clause 21.1 of your consultancy agreement.

(Sgd.)

S. O. Olabiyi

for: General Manager

Legal & Secretarial”

The respondent received exhibit “F” on 22/7/96 and reacted to the said termination in his letter exhibit “H” on 25th July , 1996 as follows:

“The Managing Director

Nigerian Telecommunications Plc 3/5 Tafawa Balewa Square

Lagos.

Dear Sir,

Re: Termination of Consultancy Agreement NITEL Headquarters Building, Abuja.

I have received with utter consternation your letter No. GMLS/A.1/T.5/Vol.III/4421/91 of 18th July, 1996 informing us of the termination of our appointment as Consulting Mechanical/Electrical Engineers to NITEL Plc on the above project.

The reasons adduced are that we “knew of and approved the inclusion of certain provisions by the

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quantity surveyor in the tender documents prepared by him. We wish to inform you most respectfully that these deductions are totally false and that you could not have thus mistakenly sought to terminate our appointment if we had simply been invited and asked if we knew or endorsed those inclusions. Indeed the quantity surveyors themselves would have informed you that they acted purely solo, again the trouble had been taken to ask them if there had been collusion or even connivance by our firm.

The simple truth is that we did not know what the quantity surveyors provided in their documents; that we did not even see the documents prior to tendering as their letter forwarding it to the client was not copied to us; that we could not therefore have approved of what we were unaware of. It is also the truth that when we eventually saw the documents we condemned it and approached the authors for those inclusions. We went further to advise the client that a way out was for tenderers to neglect the provisional sums and quote for any item. It is further the truth that when the QS rejected the client’s instructions stemming from our above advice and

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wrote his letter of 10th June, 1996 claiming copyright to his tender documents (among other correspondences), we were outraged and wrote a letter of reprimand and advice dated 17th June, 1996 which we copied the client. In order to obviate any doubts to the effect, we must make it clear immediately that these praiseworthy acts of this practice were done not because we have any responsibilities for the quantity surveyors areas of duty and responsibility, but purely out of a sense of maturity, esprit de corps and interest in the overall success of the project implementation. A local proverb holds that the elderly does not sit by while the goat delivers under burden of a noose.

Since you made reference to clause 18.1 of our agreement with NITEL as basis for the termination letter you would by now have seen that as the same A clause provides, MEKON ASSOCIATES, has not and could not by merely the failures of others , be said to have themselves failed “to carry out their responsibilities and duties as embodied in the Blue Book or found to be defaulting in any clause in this agreement. In its long history, this practice has never

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been tabled for misconduct or mal-performance that would even contemplate determination of its appointment. Among others, its principal is an engineer of over thirty years practice, a fellow of the Nigerian Society of Engineers and an officer and gentleman of high integrity (N 527 Capt. E. C. Okeke Vol. Rtd. NAEME 1971) who is beyond such reproach.

We therefore implore you primarily in the interest of the success of the project, justice and fair play to withdraw the letter of termination which was obviously issued in error. You may then invite us to carefully explain and defend our position which is clearly, albeit only sketchily, stated therein. We would then be able to tender oral and voluminous documentary evidence which we are very sure will convince you of our vindication and innocence. May we take this opportunity to affirm our absolute loyalty to the client and our commitment and abiding faith in the successful attainment of this most important national project in which we are very proud to be servants.

Yours most faithfully

for: MEKON ASSOCIATES

(Sgd.)

Engr. E. C. Okeke

Principal Partner”

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Despite this exhaustive explanation in exhibit “H” the appellant did not shift ground in terminating the appointment and stated this fact in its letter of 12th August, 1996 wherein it referred to the letter of 25th July, 1996 and went on to say:

“We wish to inform you that NITEL Management maintains its stand on the above. You should therefore, regard the matter as closed”.

Exactly one week after exhibit “J” was written, the appellant on 19th August, 1996 appointed Techno Consult as Consultants. The letter was received in evidence as exhibit “KK”. It reads:

“GMLS/C.9/T.5/Vol . III/465/143

19th August, 1996

See also  National Bank Of Nigeria Ltd. V. P.B. Olatunde & Co. Nigeria Ltd. (1994) LLJR-SC

The Principal Partner

Techno Consult

47, Aminu Kano Way

P.O. Box 6242

Kano.

Dear Sir,

Appointment as Consultant Mechanical/Electrical Engineers for the Construction of NITEL Corporate Headquarters Building, Abuja.

Reference is made on the above project. I am pleased to convey to you the Honourable Minister of Communications’ approval for the appointment

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of your Firm as Consultant Mechanical/Electrical Engineers for the Construction of NITEL Corporate Headquarters Building, Abuja. Your Consultancy fee will be based on the Federal Government Scale of Fee for Consultancy Service.

Please indicate your acceptance of this offer in writing and contact the undersigned for the signing of the consultancy services agreement. You are also advised to liase with the Project Management Consultant for further details.

Yours faithfully,

Nigerian Telecommunications Plc

(Sgd.)

C. T. lyorkar

for: General Manager

(Legal & Secretarial)

The arbitrator noted that exhibit “F” did not reach the respondent until 22nd July, 1996 because that was the date the claimant acknowledged receipt of the termination and held that the 30 days’ notice under Clause 18.1 (a) of exhibit “A” should properly be calculated from 22/7/1996 when exhibit “F” was delivered to the claimant. Since by exhibit “KK” Techno Consult was appointed as Consultant Mechanical/Electrical Engineers on 19th August, 1996 while

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the notice of termination of Exhibit “A” would have expired on 21st August, 1996 the contract was not determined in accordance with Clause 18.1 (a) of the agreement and proceeded to nullify the termination and declared it illegal.

The arbitrator then examined Clause 18.1 (b) of the agreement and held that the burden lay on the respondent (appellant) who sought to terminate exhibit “A” on the ground that the claimant failed to carry out its responsibilities and duties embodied in the Blue Book or found to be defaulting in any clause in the agreement, that should plead these facts in its points of defence and lead evidence to establish same. He said that it was in its reaction to paragraph 9 of the points of claim (wherein claimant averred that he exercised all due care and complied strictly with the agreement and professional ethics of the engineering profession), that the respondent alleged that the claimant breached his duty of care and responsibility to it, its employer (vide paragraph 10 of the points of defence). He said the respondent did not plead the Blue Book (or any part thereof) or any clause in the agreement to designate wherein the claimant

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failed to carry out his responsibilities and duties therein. On that basis he held that the respondent did not strictly comply with the conditions laid down in clause 18.1 of exhibit “A” for the termination of the contract therein. Learned counsel for the appellant relied heavily on this and argued that the arbitrator could not have validly determined and conclusively reached a decision without resolving the issue of collusion which is central to a determination of the legality or otherwise of the termination of the contract.

The arbitrator stated the correct position of the law that the burden of proof in civil proceedings lies on that person who would fail if no evidence at all is given. Thus, it was the appellant who had alleged that the respondent colluded with the Quantity Surveyors to include the over N700,000,000.00 in the tender documents to provide evidence in proof of the allegations to justify the termination of the contract.

The respondent vehemently protested his innocence in exhibit “H” on the issue of collusion and maintained that he did not even see the documents prior to tendering and so could not have approved of what he was not

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aware of. Despite this strong protest, the appellant still went ahead to terminate the contract without giving the respondent any opportunity to refute the allegation in exhibit “F’. The address of counsel no matter its persuasiveness, can never take the place of credible evidence. See: Vinz International (Nig.) Ltd v. Morohundiya (2009) 11 NWLR (Pt. 1153) 562. It is not just any evidence produced in a proceedings that must be acted upon by a Court or tribunal but how relevant it is to the proceedings. This includes arbitral proceedings. See: K S.U.D.B. v. Fanz Ltd. (1986) 5 NWLR (Pt. 39) 74. Heavy weather has been made of the statement by the arbitrator when he said, “it would be a futile exercise to go into the avalanche of evidence adduced by the parties at the hearing as to whether the role, if any, played by the claimant in the inclusion of the provisional sums in the consultant quantity surveyors’ tender documents for the services of the subcontract tenders amounted to a collusion or whether any act of collusion or connivance on the part of the claimant, if established, was a breach on the part of the claimant to carry out his responsibilities and

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duties as embodied in the Blue Book or found to be defaulting in clause in the agreement.” Longe, J. found in his review of the arbitral award that the arbitrator considered the issue.

The appellant did not pinpoint any part in the avalanche of evidence adduced where he proved that the claimant colluded or connived with the Quantity Surveyors to include over N700,000,000.00 in the tender documents. Without any proof to substantiate the allegation, the Arbitrator cannot be said to have shirked his responsibility in deciding all matters which were referred to him for which he would be said to have misconducted himself in order to set aside the arbitral award. See: Taylor Woodrow (Nig.) Ltd. v. Suddeutsche Etna-Work GMBH (1993) 4 NWLR (Pt. 286) 127. If the respondent colluded with the quantity surveyors to include N700,000,000.00 in the tender documents so as to defraud the appellant, the burden of proof is heavier since a crime is being alleged. See: Section 135 (1) Evidence Act, 2011.

On the issue of reimbursable expenses, learned counsel contented that what is required in proof of special

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damages is the strength and quality of the evidence and not the weakness of cross-examination or lack of it citing Union Bank of Nigeria Plc v. Sparkling Breweries Ltd. (1997) 3 NWLR (Pt. 491) 29.

He argued that in discharging this duty the Court or arbitral tribunal requires a proper and painstaking evaluation of the evidence so led and a specific finding on their cogency and credibility as a basis for their reliability.

Learned counsel for the respondent argued that the arbitrator, the High Court and the Court of Appeal considered the award for reimbursable expenses and submitted that this Court should not interfere with the concurrent findings of fact by three different tribunals.

I agree with the submission of learned counsel for the respondent that since the respondent submitted receipts to back up the expenses he claimed to have made, the only way to test whether they are credible evidence is through cross-examination to ascertain their authenticity. Since appellant’s counsel chose not to cross-examine on the receipts, there was uncontradicted evidence which the

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arbitrator could act upon to make the award for reimbursable expenses.

The application to set aside the award made to the Lagos State High Court was refused save for the complaint that the arbitrator misdirected himself when he awarded interest at the rate of 21% on the sum awarded to the claimant. The Court below affirmed the ruling of the Lagos State High Court. I find that the further appeal to this Court to set aside the arbitral award based on misconduct lacks merit and it is accordingly dismissed. The award for reimbursable expenses is further affirmed by me. Appeal is dismissed.


SC.144/2006

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