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Compagnie Generale De Geophysique v. Etuk

COMPAGNIE GENERALE DE GEOPHYSIQUE

V

DR. JACKSON D. ETUK

COURT OF APPEAL

(CALABAR DIVISION)

SIMEON OSUJI EKPE JCA (Presided and Read the Lead Judgment)

SULE AREMU OLAGUNJU JCA

ISTIFANUS THOMAS JCA

CA/C/51/2001

THURSDAY 20TH MARCH, 2003

APPEAL - Fresh issue on appeal - Impropriety of raising without leave of court

ARBITRATION - Arbitration agreement - Bindingness of on parties

ARBITRATION - Improperly procured arbitral proceedings or award Power of court to set aside

ARBITRATION - Sole arbitrator - Unilateral appointment of by a party to arbitration agreement without recourse to court - Impropriety of

COURT - Arbitral award or proceedings - Improper procurement of Power of court to set aside

LEGISLATION - Federal enactment vis-a-vis state enactment Resolution of conflict of - Applicability of doctrine of covering the field


LEGISLATION -Federal legislation - Prevalence of over state legislation where both cover the same subject matter

STATUTE - Arbitration and Conciliation Act Cap. 19, Laws of the Federation, 1990 - Object and application of

STATUTE - Cross River State Arbitration Law Cap. 12 (applicable to Akwa Ibom State) - Section 7(1)(b) thereof - Inconsistency of with Arbitration and Conciliation Act, 1990 - Effect of Applicability of doctrine of covering the field

Issues:

1.              Whether the applicable laws to the arbitration emanating from the agreement are not; (i) The High Court Laws, Cap 51, Laws of Cross River State as applicable in Akwa Ibom State;

( ii) Arbitration Law Cap 12, Laws of Cross River State of Nigeria as applicable in Akwa Ibom State; (iii) Akwa Ibom State High Court (Civil Procedure) Rules 1989.

2.              Whether the respondent was not right in the circumstances of this case to have appointed a sole arbitrator pursuant to section 7(1)(b) of the Arbitration Law, Cap 12, Laws of Cross River State, as applicable in Akwa Ibom State.

3.              Whether the appellant was not given sufficient notice of the arbitration.

4.              Whether the court was not right in delivering its ruling in the circumstances of this case.

5.              Whether it will be proper in the circumstances of this case to set aside the arbitration award.

Facts:

The respondent herein and the appellant entered into a tenancy agreement dated 13th March, 1992, in respect of the respondent’s building situate at No. 5 Akpanodok Street, Usung Inyang, Eket. By virtue of clause 6  of the tenancy agreement, all disputes, differences and questions arising between the parties should be referred to an arbitration comprising of two independent estate valuers to be agreed upon between the parties, and the decision of such arbitration was to be final and binding on both parties. Sometime during the period of the tenancy, a dispute arose between the parties. The plaintiff had the impression that the defendant had packed out of the premises and was unwilling to give up possession of the building and premises by returning the keys thereto. This was followed by some correspondences between counsel for the parties on the matter. Eventually, after the defendant had given up the possession of the premises by returning the keys of the buildings to the plaintiff, the plaintiff on the 25th of January, 1994  entered into the building and premises in the company of some people. There the plaintiff discovered the extensive state of disrepair and damages to the building. The plaintiff then engaged the services of one Mr. Ime Ubah, a building contractor, who prepared and submitted to the plaintiff an estimated cost of the rehabilitation of the building amounting to the sum of N104,038.60.

On the 10th of March, 1994 the plaintiff filed a writ of summons dated 9th March, 1994.

On 14th April, 1994, the defendant entered a conditional appearance in the suit. Thereafter, the defendant on 13th May 1994, filed a motion on notice in the court below for stay of proceedings in the suit pending arbitration. On 29th May, 1995, the trial court delivered its ruling and granted the motion. It ordered a stay of proceedings in the suit pending arbitration in accordance with clause 6 of the tenancy agreement.

The two parties could not reach a compromise over the appointment of the arbitrator.

After six months of inaction, the plaintiff on 23/7/96 filed in the court below, a notice of appointment of sole arbitrator, consequent upon the defendant’s failure to appoint its own arbitrator and served the notice on the defendant, counsel through a court bailiff at Port Harcourt. In the notice, the defendant was given seven days within which to appoint her own arbitrator, failing which, the new or substituted arbitrator appointed by the plaintiff would act as sole arbitrator and make his award which should be binding on both parties. There was no reaction from the defendant. On 18/ 2 /97, the plaintiff wrote his own arbitrator and formally appointed him as the sole arbitrator, with the direction to make his own award in writing within three months after entering on the reference. The sole arbitrator invited both parties to make representations to him. The defendant did not make any representation while the plaintiff made. On 17/11/97, the sole arbitrator made an award of N198,700.00 in favour of the plaintiff to be paid by the defendant.

Consequent upon the award by the sole arbitrator, the plaintiff filed, on 20/10/98 a motion on notice dated 20/6/98 praying the court below for an order enforcing the award of the arbitrator dated 17th November 1997 and for an order for payment of interest of 10% on the amount awarded.

The appellant equally filed a motion to set aside the arbitration award.

The two motions were consolidated and heard together by the trial court which court dismissed the appellant’s motion to set aside the arbitration award but granted the respondent’s motion to enforce the said award with payment of interest as claimed.

Dissatisfied, the appellant appealed to the Court of Appeal.