Tetrazzini Foods Limited V. Abbacon Investment Limited & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Lagos State High Court delivered on the 16th day of September, 2011 by HON. JUSTICE A.A. PHILIPS wherein the lower court refused to set aside an arbitral award made against the appellant.

The appellant awarded the 1st Respondent a contract to construct its headquarters at No. 308 Akin Adesola Street, Victoria Island, Lagos. The contract agreement had an arbitration clause. In the course of executing the contract, the appellant not satisfied with the pace and quality of work, took over the site and concluded the construction.

Aggrieved, the Respondent pursuant to the arbitration clause instituted a suit wherein it applied for the appointment of a sole arbitrator which the trial court did. The second Respondent is the Arbitrator who convened a preliminary meeting wherein statements were ordered to be filed by the parties. The appellant defaulted but time was extended for it to do so by 24th September, 2009.

The Appellant was to file and serve its pleadings. It only did so on the 7th October, 2009 and proceedings commenced. On 8th October, 2009, the appellant was absent, not represented by counsel and no reason advanced, nevertheless the 2nd Respondent conducted the hearing after which he terminated the arbitral proceeding.

The appellant’s solicitors wrote on the 13/10/09 seeking time to present its defence. The 2nd Respondent did not respond but proceeded to deliver the award on the 28/10/09.

Aggrieved, the appellant filed an application before the lower court and sought the following:

“1. The Award of the Arbitrator dated 28th October, 2009 and delivered by the sole Arbitrator Prince Dipo Oyebadejo be set aside.

2. An Order of the court appointing another Arbitrator to arbitrate and look into the dispute between the Appoint and the 1st Respondent.

GROUNDS FOR RELIEF:

The grounds on which the application was made are:

That the Arbitrator misconducted himself, is biased and prejudiced against the Applicant/Respondent in the Arbitration Proceedings.

(a) That the Applicant/Respondent was not given a fair hearing by the Arbitrator as it was denied the opportunity to properly defend itself and present its case.

That the findings and the Arbitral award are not supported by any evidence.

The trial court considered the application and refused to set aside the award, thus, this appeal.