➥ CASE SUMMARY OF:
Tulip Nigeria Limited v. Noleggioe Transport Maritime S.A.S (2010) – CA
by Branham Chima (SAL).
Court of Appeal – CA/L/744/07
➥ JUDGEMENT DELIVERED ON:
30th June 2010
➥ AREA(S) OF LAW
Enforcement of foreign award;
Status of an award.
➥ PRINCIPLES OF LAW
⦿ AWARD IS BINDING ON PARTIES
What the learned trial Judge recognized and ordered to be enforced was an arbitral award not a judgment. Appellant should have pursued in England by way of an appeal against the arbitral award but failed to do so. The award is binding on the parties and since the arbitral award is not fraudulently procured and it’s not against public policy, the court is bound to give effect to such award. — Mshelia, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
Professor Taiwo Osipitan, SAN.
⦿ FOR THE RESPONDENT
Ayo Olorunfemi, Esq.
➥ CASE FACT/HISTORY
The respondent by originating summons dated 20 November 2003, sought leave of the court to recognize and enforce the arbitral award of the sum of US$103,982.39 (one hundred and three thousand, nine hundred and eighty two united states dollars, thirty-nine cents) made by Bruce David I. Mackenzie in the United Kingdom on 3 June 1998. The defendant/appellant reacted to the said originating summons by filing a notice of preliminary objection dated 20 February 2004. The defendant/appellant’s objection is that the plaintiff/respondent’s action to recognize and enforce the award is statute-barred as same was not brought within the limitation period. The defendant/appellant also filed a sixparagraphed counter-affidavit in opposition to the originating summons.
On 24 June 2004, the trial court ordered that all pending applications would be taken together on 1 March 2006, with the consent of counsel the trial court ordered parties to file written addresses. In a considered judgment, the trial Judge had this to say at page 86 of the record: “In conclusion therefore I hold as follows: 1. That this action is not statute-barred. 2. The outstanding sum due to the plaintiff from the defendant from the arbitral award is USD18,671.84 as at 30 June 1999 with interest rate at 8% compounded at quarterly rate from that date i.e. 30 June 1999 until it is exquished (sic). 3. The enforcement fee of £7,500 is refused. This is the judgment of this court.”
Being dissatisfied with the said judgment, the appellant on 6 December 2006 filed a notice of appeal containing four (4) grounds of appeal.
➥ ISSUE(S) & RESOLUTION(S)
I. Did the learned trial Judge in the circumstance correctly or wrongly apply the limitation law of Lagos State to the arbitration award sought to be registered/recognized AND whether or not the plaintiff’s claim before the lower court was statute-barred?
RULING: IN RESPONDENT’S FAVOUR.
A. AN AWARD OF AN ARBITRAL PANEL IS NOT A FOREIGN JUDGEMENT FOR THE PURPOSE OF ENFORCEABILITY
“As rightly submitted by respondent’s counsel, by the above interpretation, an award can only be elevated to the status of a judgment if the respondent had applied before the English High Court for leave to enforce the arbitral award in the same manner as a judgment and once the High Court in England grants such an order, it then becomes a judgment of the English High Court. It is only then that the Reciprocal Enforcement of Judgment Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958 and Foreign Judgments (Reciprocal Enforcement) Act, 1990, will apply. The case of Macaulay v. R.Z.B. of Austria and Dale Power Systems Plc. v. Witt and Busch Ltd, are clearly distinguishable and therefore inapplicable because they deal with foreign judgments of the High Court sought to be registered and enforced in Nigeria.”
“My own understanding of the above provision is that for an award to fall within the purview of section 2(1) reproduced (supra) same must be elevated to a status of a judgment of High Court. In other words, respondent must seek leave of the High Court of England to enforce the award in the same manner as a judgment. See section 66 of the English Arbitration Act 1996 (referred to in White Book 2002 (vol. 2) page 277 cited by respondent in its brief of argument. For clarity section 66(1) provides thus: “An award made by the tribunal pursuant to an Arbitration agreement may by leave of the court be enforced in the same manner as a judgment or order of the court to the same effect” A similar provision under our law is section 31(3) of the Arbitration and Conciliation Act, Cap. 19, Laws of the Federation of Nigeria, 1990. See also the case of Shell Trustees (Nig.) Ltd v. Imani and Sons (Nig.) Ltd (2000) 6 NWLR (Pt.662) 639 at 662 paragraphs A-B cited (supra) by respondent’s counsel.”
B. LIMITATION LAW WAS THE APPLICABLE LAW FOR THE PURPOSE OF STATUTE BARREDNESS
“As earlier stated, the Reciprocal Enforcement of Judgment Ordinance, Cap. 175, Laws of the Federation of Nigeria and Lagos, 1958 and the Foreign Judgment (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria and Lagos, 1990 are not applicable to the case at hand. Having regard to the circumstances of this case, I am of the firm view that the learned trial Judge rightly invoked the provisions of section 8(1)(d) of the Limitation Law, Cap. 67, Laws of Lagos State to resolve the issues as to whether the action to enforce arbitral award was statute-barred or not. As rightly contended by respondent’s counsel, the omission of the limitation law in the Laws of Federation is of no moment as it has not been specifically repealed and so it is still an extant law: Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (Pt. 498) 124.”
C. NO PROOF THAT THE AWARD WAS REGISTERED AS A JUDGEMENT FOR THE RECIPROCAL ACT LIMITATION PERIOD TO APPLY
“There is no evidence to show that respondent did obtained such leave. It is obvious that the condition precedent was not satisfied. I agree with the submission of respondent’s counsel that the award did not qualify as judgment stipulated under section 2 as such the Foreign Judgment (Reciprocal Enforcement) Act, 1961, Cap. 152, Laws of the Federation of Nigeria, 1990 is not applicable to the award under consideration. There is no doubt that a foreign arbitration award itself is now enforceable in Nigeria directly pursuant to the New York Convention to which Nigeria is a signatory. See the preamble of the Arbitration and Conciliation Act, Cap. 19, Laws of the Federation of Nigeria, 1990 and sections 31 and 51 of the Arbitration Act, Cap. 19, Laws of the Federation of Nigeria, 1990. The provisions of section 31 and 51 (supra) were earlier reproduced in this judgment in the course of resolving issue No.2. The learned trial Judge was therefore right when he held at page 81 of the record as follows: ‘The relief being sought on behalf of the plaintiff/applicant is for this court to recognize and enforce the Arbitral Award made in its favour. Before the coming into force of the Arbitration and Conciliation Act of 1988, the relevant law which provides methods for registration of foreign awards was foreign judgments (Reciprocal Enforcement) Act, Cap. 152, of the Laws of the Federation of Nigeria, 1990 and the New York Convention. But under the Arbitration and Conciliation Act, there is no need for registration, as section 51 of the Act provides that, an award shall be recognized as binding and shall be enforced by the court on application by either party to the Arbitration … I am to state that since the Arbitration and Conciliation Act of 1988 has provided that an award shall be recognized as binding and shall be enforced by the court, on the application of either party to the Arbitration, what is left for the court is to enforce the arbitration award.’”
“As found by the learned trial Judge, the arbitration agreement was not made under seal and same was not also made pursuant to any other enactment. It was made under the charter party, between both parties of this suit, which provides under clause 48that disputes arising from the charter party was to be referred to Arbitration. Since the applicable law is the Limitation Law, the time within which the instant suit can be instituted is six (6) years from the time the cause of action arose. As observed earlier, the arbitral award was made on 3 June1998 and this suit was instituted on 2 February 1998, i.e. a period of 4 years 8 months from the time the cause of action arose, the respondent’s suit is therefore not statute-barred. The learned trial Judge was right to have held that the respondent’s action was not statute-barred.”
II. Whether the learned trial Judge suo motu raised the question of applicability of the Limitation Law of Lagos State and proceeded to decide the question without listening to address of the parties on it?
RULING: IN RESPONDENT’S FAVOUR.
A. THE LOWER COURT ALLOWED THE PARTIES TO ADDRESS IT ON THE POINT RAISED SUO MOTO
“In order to resolve the point raised it would be necessary to refer to the record of appeal, particularly pages 62-69. At pages 62-63 of the record, the learned trial Judge invited both counsel to address the court on a number of points raised by the court.
For clarity and ease of reference, I will reproduce the proceedings of 26 July 2006 hereunder as follows: ‘Court: Ruling is yet to be concluded because I will want both learned counsel to throw more light on the provision of section 51(1) of the Arbitration and conciliation Act of 1990 as against provision of the Foreign Judgment (Reciprocal Enforcement) Act of 1961. I will want both learned counsel to come and throw more light on the provision of section 71(1)(d) of the Limitation Act of 1966 as regards enforcement of arbitration award and also on the argument of the learned counsel for the plaintiff/respondent is (sic) counsel to the effect that what his client is seeking is recognition and enforcement of arbitration award and not registration of the award.’
Pursuant to the request made by the learned trial Judge on 9 October 2006, both counsel addressed the court on the points raised suo motu by the court. Appellant’s counsel in his address contended that section 7(1)(d) of the Limitation Law is not an existing law because it is not in the 1990 and 2004 laws of the Federation. Or that its application was restricted to the Federal Capital Territory of Lagos as oppose of being applied to Lagos. The submission is at pages 64-65 of the record. Respondent’s counsel also addressed the court at pages 66-68 of the record. Respondent’s counsel submitted that the omission of the limitation law in the laws of Federation is of no moment as it has not been specifically repealed. Having regard to the proceedings of the trial court reproduced supra, the contention of appellant’s counsel that they were not given ample opportunity to address the court on issue of applicability of the Limitation Law of Lagos State cannot be sustained. The cases of Oje v. Babalola and Amasike v. Registrar General, C.A.C. cited in support of the submission are inapplicable to the case at hand. It cannot therefore be said that appellant’s right to fair hearing was violated. It is also worthy of note that the lower court was entitled to take judicial notice of the Limitation Law of Lagos State as the applicable law. It is settled law that a court of law, is duty-bound to take judicial notice of all Laws, enactments and any subsidiary legislation made thereunder having the force of law in Nigeria, See section 74(1)(d)(i) of the Evidence Act and case of Eagle Super Pack (Nig.) Ltd v. A.C.B. Plc (2006) 19 NWLR (Pt.1013) 20 at 47.”
III. Whether the learned trial Judge rightly or wrongly held that the proceedings before her were not in respect of registration of the award?
RULING: IN RESPONDENT’S FAVOUR.
A. THE PROCEEDINGS WAS IN RESPECT OF RECOGNITION OF AWARD NOT REGISTRATION
“From the definition set out above, it is obvious that the word “registration” and “recognition” are not synonyms. Furthermore, it is worthy of note that the provisions of sections 31 and 51 of the Arbitration and Conciliation Act, Cap. A18, Laws of the Federation of Nigeria, 2004 under which the respondent’s summons was brought refer to recognition and enforcement of arbitral awards, which was what respondent prayed for. The provision did not mention the word registration.”
“The provisions of section 31 and 51 of the Arbitration and Conciliation Act are very clear and unambiguous. I agree with the submission of respondent’s counsel that it was wrong for the appellant’s counsel to import the word ‘registration’ which is not synonymous with the word ‘recognition’ referred to under the two sections relied upon. I am therefore of the firm view that appellant’s counsel has failed to substantiate his argument in support”
IV. Did the learned trial Judge rightly or wrongly allow post judgment interest to be assessed on the basis of compound interest?
RULING: IN RESPONDENT’S FAVOUR.
A. THE TRIAL JUDGE SIMPLY RECOGNISED THE INTEREST AWARDED BY THE ARBITRAL PANEL
“On the propriety of the award by the learned trial Judge of post- judgment interest on compound basis, I agree with respondent’s counsel that the submission of appellant’s counsel on the issue is misconceived. The provisions of Order 42, rule 7 of the Federal High Court (Civil Procedure) Rules, 2000 is inapplicable. As rightly submitted by respondent’s counsel, the learned trial Judge only recognized and enforced what was already awarded pursuant to the arbitration proceedings between the parties. The learned trial Judge in my humble view had no discretion to alter what the arbitrator awarded to the respondent. The situation would have been different, if the case was heard and determined by the trial Judge. It is pertinent to reproduce relevant portion of the award appearing at page 29 of the record hereunder: “2. The chatterers shall pay owners interest on the outstanding sums at the rate of 8 percent per annum compounded at quarterly rates from 15 October 1997, when the vessel was withdrawn as follows.” Having regard to the facts and circumstances of the case, I am of the firm view that the learned trial Judge was right when she awarded interest at 8% compounded at quarterly rates from 30 June 1999 until it is extinguished.”
“Having resolved all the issues against the appellant, and for the various reasons stated hereinabove, I am of the considered view that this appeal isdevoid of merit. It is hereby dismissed. The judgment of trial court dated 23 November 2006 is affirmed. Parties to bear own costs.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 2(1) of the Foreign Judgments (Reciprocal Enforcement) Act, 1990: “In this Act, unless the context otherwise requires – “judgment” means a judgment or order given or made by a court in any civil proceedings and shall include an award in proceedings or an arbitration if the award has in pursuance of the law in force in the place where it was made become enforceable in the same manner as a judgment given by a court in that place, or a judgment or order given or made by a court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party.”
“31(1) of the Arbitration and Conciliation Act, Cap. 19, Laws of the Federation of Nigeria, 1990 “An arbitral award shall be recognized as binding, and subject to this section and section 32 of this Act, shall, upon application in writing to the court, be enforced by the court.”
Section 51(1) of the Arbitration and Conciliation Act, Cap. 19, Laws of the Federation of Nigeria, 1990: “(1) An arbitral award shall irrespective of the country in which it was made, be recognized as binding subject to this section and section 32 of this Act, shall upon application in writing to the court, be enforced by the court.”
➥ REFERENCED (CASE)
⦿ ARBITRAL AWARDS HAVE SAME FORCE AS A JUDGEMENT OF A COURT
Onwu v. Nka (1996) 7 NWLR (Pt.458) 1 at 17 paragraph E, where the Supreme Court, per Iguh JSC. had this to say: “The law is well settled that where disputes or matters in difference between two or more parties are by consent of the disputants submitted to a domestic forum inclusive of arbitrators or a body of persons who may be invested with judicial authority to hear and determine such disputes and matters for investigation in accordance with customary law and general usages, and a decision is duly given, it is as conclusive and unimpeachable (unless and until set aside on any of the recognized grounds) as the decision of any constituted court of the land, such a decision is consequently binding on the parties and the courts in appropriate cases will enforce it.”
⦿ PARTIES CANNOT RESILE FROM AN ARBITRAL AWARD
In Commerce Assurance v. Alli (1986) 3 NWLR (Pt. 29) 404, (1992) 3 NWLR (Pt.232) 710 at 725 paragraph E, the Supreme Court per Nnaemeka-Agu JSC said: “The underlying principle is that parties to a dispute have a choice. They may resort to the normal machinery for administration of justice by going to the regular courts of the land and have their disputes determined both as to the fact and to the law, by the courts. Or, they may choose the arbitrator to be Judge between them. If they take the latter course, they cannot when the award is good on the face of it, object to the award on grounds of law or of facts.”
➥ REFERENCED (OTHERS)