⦿ CASE SUMMARY OF:
Mr. Charles Mekwunye v. Mr. Christian Imoukhuede (2019) – SC
by NSA PaulPipAr
Mr. Charles Mekwunye
Mr. Christian Imoukhuede
⦿ LEAD JUDGEMENT DELIVERED BY:
Uwani Musa Abba A JI, J.S.C.
* FOR THE APPELLANT
– Appellant in person.
* FOR THE RESPONDENT
– Ehi Esezobor, Esq.
⦿ FACT (as relating to the issues)
The Respondent as Applicant took out an Originating Motion against the Appellant for an order setting aside the arbitral award made on 14/5/2007 by Mrs. Olusola Adegbonmire in the arbitration proceedings, which sought for:
1. AN ORDER of this Honourable Court setting aside the arbitral award made on the 14th of May, 2007 by the 2nd Respondent (MRS.OLUSOIA ADEGBONMIRE) in the arbitral proceedings: IN THE MATTER OF AN ARBITRATION BETWEEN CHARLES MEKWUNYE ANDCHRISTIAN IMOUKHUEDE on the grounds set out in the schedule hereunder.
It is the fact that the Appellant as landlord and the Respondent as tenant entered into a Tenancy Agreement containing an arbitration clause charging the parties to resort to arbitration in the event of any dispute arising therefrom. The notice of arbitration was served on the Respondent and the proceeding carried out, thereinafter the Appellant sought to enforce the arbitral award of 14/5/2007 in Suit No: M/225/2007. During the pendency of the suit, the Respondent by an originating Motion in suit No: M/323/07 sought for the setting aside of the arbitral award.
In Suit No: M/323/07, the trial Court refused to set aside the arbitral award, wherein the decision was against the Respondent who appealed to the lower Court. The lower Court unanimously allowed the appeal and set aside the arbitral proceedings, hence this appeal.
1. Whether the lower Court was right when it failed to consider the unchallenged evidence on record and the provisions of Section 33 of the Arbitration and Conciliation Act, Cap A18, Laws of the Federal Republic of Nigeria, 2004 when it found the Notice of Arbitration invalid?
2. Whether the lower Court was right to have given the Arbitration Agreement between the Appellant and the Respondent a literal interpretation which led to manifest absurdity?
3. Whether the lower Court was right when it held that two parties to the arbitration agreement must have a say in the appointment of the arbitration without recourse to the express agreement between the Appellant and the Respondent conferring the power to appoint an arbitrator on a third party?
4. Whether the arbitrator misconduct herself by delegating her duties to the Law Firm of Sola Ajilola & Co? Whether the lower Court has jurisdiction to set aside the arbitral award?
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. As far as I am concerned, the notice of arbitration dated 5/8/2005 has activated the condition precedent required. Having received the notice of the arbitration proceeding that was to come up, he cannot feign ignorance of the general nature of the claim and an indication of the amount involved, if any and the relief or remedy sought as contained under (e) and (f) in Article 3(3) of the Arbitration Rules. Moreover, the Appellant in the said notice made an “attachment” of every necessary document and information viable and necessary for the use of the Respondent. Furthermore, even where it is contended that the condition precedent was not fulfilled, I make bold to state that there was substantial compliance to it, to say the least.
ii. In the instant appeal, can it be said that there was no notice of arbitration to the Respondent. The answer is in the negative. The said notice of 5/8/2005 was acknowledged and responded to by the Respondent at page 18 of the record without objection to the paucity or insufficiency of conditions (e) and (f) of Article 3 (3) of the Arbitration Rules. Why then is the Respondent basing his issue or contention on non-compliance with condition precedent to the initiation of the arbitration proceedings as if he was not served? I think that he is only clinging to some technical strings.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Clause 3(c) of the Tenancy Agreement provided inter alia that:
“…any conflict and/or disagreement arising out of these presents… shall be referred to a sole Arbitrator that shall be appointed by the President of the Chartered Institute of Arbitrators, London, Nigeria Chapter…” The argument is that “the Chartered Institute of Arbitrators, London, Nigeria Chapter” is non-existent making the referral to a non-existent body unenforceable. Indeed, parties are bound by their contract. However, where such terms or expression will not be absurd or is unambiguous, the intention of the parties is read into the contract. The Respondent has conceded to the fact that judicial notice has been taken that only 2 bodies of arbitrators exist in Nigeria which are: The Chartered Institute of Arbitrators, (CIArb)(UK), Nigeria Branch and Chartered Institute of Arbitrators of Nigeria. What is basically missing or misnomered or interchanged is “London” instead of “UK”, which the trial Court inferentially and literally interpreted, “London is a city and not a country, reference to United Kingdom must be more correct.” Can the fact that “London” was used and not “UK” necessarily mean and be inferred that it is a non-existent body? I cannot imagine that.
ii. The pathological arbitration clause referred to and conceded by the Respondent’s learned Counsel is more probable and likely the literal and the best interpretation to be given in this matter. Any other interpretation as given by the lower Court will work out absurdity and antithetical to the intention of the parties. Furthermore, the Respondent was a party to the Tenancy Agreement and read same before appending his signature or subscribing to be bound by same. If he knew and believed that “the Chartered Institute of Arbitrators, London, Nigeria Chapter” was non-existent, why did he agree to be bound by same?
3. ISSUE 3 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Nonetheless, the Respondent having submitted himself to the arbitration, he cannot longer resiles out of the decision simply because he is challenging the appointment of a sole arbitrator which he subscribed to.
4. ISSUE 4 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. By the letter of 17/8/2005 contained at page 26 of the record, the Appellant wrote thus: RE: REQUEST FOR APPOINTMENT OF ARBITRATOR. The Appellant clearly “recommended” or “appointed” Mrs. Shola Adegbonmire as the “suitable person to arbitrate in the dispute between…” This so-called recommendation as alleged by the Respondent came with the caveat that “You may contact her to enable you conclude all other arrangements concerning the Arbitration. Should you require further clarifications and or explanation, please do not hesitate to contact the secretariat.” Similarly, as a corollary and followup to the above, the said Mrs. Shola Adegbonmire at page 27 of the record wrote to the Respondent “…informing you of my appointment as Arbitrator in the above matter…” All these went without raising any protest or challenge from the Respondent to her appointment or recommendation. As rightly proffered by the Respondent that the Respondent did not ratify same, this expressly and impliedly means that the recommendation or appointment of Mrs. Shola Adegbonmire as the Arbitrator was ratified and accepted.
ii. The Respondent must accept the consequences of his action or inaction. It is implied and inferable that the Respondent has herein accepted hook, line and sinker the recommendation or appointment of Mrs. Shola Adegbonmire as the Arbitrator and the seamlessness of the whole conduct of the proceedings as free and fair without partiality or misconduct from the Arbitrator. The silence of the Respondent as the case may be and his subsequent involvement or participation in the proceedings serve as estoppel and waiver against him. Silence in the situation aforesaid leads to an irrefutable presumption of by conduct or representation.
iii. I am not convinced that the Respondent has shown any act of misconduct as it was alleged or that the sole arbitrator, Mrs. Shola Adegbonmire, failed to comply with the terms of the agreement. All these conditions were complied with and rightly met by the sole arbitrator, in my humble opinion. On the award of N1,000,000.00 being estimated cost of repairs of the said property, N108,333,33 for the Respondent holding over the property from July to September, 2003 and N246,982.00 being cost of arbitration contained at pages 50-51 made by the arbitrator in favour of the Appellant, are claims as required by law and evidential by the record. I am persuaded that the arbitrator was correct in awarding them.
– S. 7, 29(2), 30(1), 33, of the Arbitration & Conciliation Act;
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
A reply brief is not another chance for the Appellant to rebuild and re-invigorate his argument or case. A reply brief merely comes to contend any fresh or new issue of law raised by the Respondent in his brief, which was not captured or anticipated in the Appellant’s brief, and if not explained, can mislead the appellate Court, to the prejudice or detriment of the Appellant. – Uwani Musa Abba, JSC. MEKWUNYE v. IMOUKHUEDE (2019)
Notices are recognized procedural provisions. They give the defendant breathing time so as to enable him to determine whether he should make reparation to the plaintiff. – Uwani Musa Abba, JSC. MEKWUNYE v. IMOUKHUEDE (2019)
The concept of waiver presupposes that a person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit, or where he has a choice of two, he decides to take one but not both. The waiver must be clear and unambiguous like allowing all evidence to be taken or even decision given before challenging the hearing. It will then show that the party, deliberately refused to take advantage when it availed him. Such failure to take advantage of a right must be so clear that there will be no other reasonable presumption than that the right is let to go. – Uwani Musa Abba, JSC. MEKWUNYE v. IMOUKHUEDE (2019)
Where the intention of the parties to a contract are clearly expressed in a document, the Court cannot go outside the document in search of other documents not forming part of the intention of the parties. – Uwani Musa Abba, JSC. MEKWUNYE v. IMOUKHUEDE (2019)
It defeats the purpose of an agreement to refer a dispute to arbitration, if, after fully participating therein, a party is allowed to raise technical objections to defeat the award. This is what the respondent tried to do at the Court below. It must be discouraged. – Kekere-Ekun, JSC. MEKWUNYE v. IMOUKHUEDE (2019)
The trite principle of pleading is: facts not disputed, challenged or controverted are taken as admitted. That is, that the defendant who fails to traverse or join issues with the claimant on his averments is deemed to admit the facts pleaded against him. – Ejembi Eko, JSC. MEKWUNYE v. IMOUKHUEDE (2019)
Substantial compliance means actual compliance in respect to the substance essential to every reasonable objective of the Statute. It means that a Court or Tribunal should determine whether the Statute has been followed sufficiently so as to carry out the intent for which it was adopted. The doctrine of substantial compliance permit the overlooking of technical failure that does not amount or constitute a substantial deviation from the intendment of the statute. – Uwani Musa Abba, JSC. MEKWUNYE v. IMOUKHUEDE (2019)
Since parties are bound by the terms of their contracts, they must also be bound by errors and mistakes they have condoned and waived. – Uwani Musa Abba, JSC. MEKWUNYE v. IMOUKHUEDE (2019)