Triana Limited V. Universal Trust Bank Plc (2009)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

The parties to this appeal and another Company, Globus Enterprises Limited entered into a tripartite warehousing management agreement on the 27th day of April, 1998 wherein the Appellant was supposed to warehouse skins belonging to Globus Enterprises Limited and could only release the warehoused skins upon the permission of the Respondent. The said agreement has an arbitration clause. In the course of the tripartite agreement and during stock taking in September, 2000, it was discovered that 16,165 skins valued at N8,082,500.00 were missing from the custody of the Appellant. The Respondent who financed the business through a credit facility claimed the sum of N8,082,500.00 from the Appellant as costs and value thereof. The Appellant denied liability and the matter, pursuant to the Arbitration clause, went for arbitration. Chief Bayo Ojo SAN, Mrs Funke Adekoya SAN and Mr. M Bello Adoke were appointed as Arbitrators. Chief Bayo Ojo SAN was the Presiding Arbitrator. The arbitral Tribunal after considering the evidence before it as filed by both parties awarded the Respondent the sum of N8,082,500.00 being the value of the missing skins.

The Appellant being dissatisfied with the award of the arbitral Tribunal applied to the lower Court by an originating motion to set aside the award on the ground that one of the arbitrators Mr. M. Bello Adoke who incidentally was appointed by the Appellant, did not disclose to them that he was solicitor to Liberty Merchant Bank in Suit No. K/413/99 which had Globus Enterprises Limited as a party. The Respondent, before the hearing of the Appellant’s originating motion, filed a motion on notice dated 30th December, 2001 for leave to enforce the arbitral award. The lower Court after hearing Counsel on both sides delivered its ruling on 17th February, 2003. It dismissed the Appellant’s application to set aside the arbitral award and granted the Respondent’s motion to enforce the award.

Aggrieved by the ruling of the Kano State High Court, the Appellant gave notice of appeal dated 17th February, 2003 which notice contains two grounds of appeal. Two issues are formulated by the Appellants for the determination of this appeal as follows:-

“1. Was the Learned Trial Judge wrong in refusing to set aside the Arbitral Award and/or is the Arbitral Award one which ought to be set aside in view of the facts of this case.

2. Was the Learned trial judge wrong in granting leave to enforce the award since the application was brought by wrong process and the fact that the arbitral tribunal itself lacked jurisdiction to make the award due to non disclosure of interest of one of the arbitrators Mr Mohammed Bello Adoke.”

On receipt of the Appellant’s brief, the Respondent filed her brief on 27th November, 2007 which contains notice of preliminary objection and in the alternative distilled two issues for the determination of the appeal.

It is always the practice to settle preliminary issues before delving into the main appeal and I intend to do just that

PRELIMINARY OBJECTION:-

The notice given by the Respondent reads as follows:-

“TAKE NOTICE that the Respondent shall, by way of preliminary objection pray this Honourable Court to strike out aUthe issues formulated by the Appellant at page 6 of the Appellant’s brief of argument and to discountenance all arguments proffered by the Appellant in support of the said issues because the said issues do not relate to any of the grounds of appeal filed by the Appellant.”

The grounds upon which the objection is founded are that:-

“(i) The issues purportedly formulated do not relate to the grounds or any of the grounds of appeal hence the grounds have no issues formulated on them.

(ii) All the issues formulated by the appellant do not relate to any of the grounds of appeal filed by the Appellant.”

(iii) All the issues framed by the appellant were all attacking the proceedings and the award by the arbitral tribunal rather than the decisions of the lower Court.