Application of Section 32 of the Arbitration and Conciliation Act

CASE TITLE: SAMMYA (NIG) LTD v. SINOSTAR INT’L (NIG) LTD (2023) LPELR-60452(CA)

JUDGMENT DATE: 5TH JUNE, 2023

PRACTICE AREA: ARBITRATION AND CONCILIATION

LEAD JUDGMENT: UGOCHUKWU ANTHONY OGAKWU, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on arbitrary awards.

FACTS:

This appeal emanated from the judgment of the trial Court, Coram Judice: Goodluck, J. (as he then was), delivered on 14th November, 2019.

The Respondent, as Claimant before the trial Court instituted an action on the undefended list to recover the amount outstanding on various goods it sold to the Appellant. Upon being served the Court processes, the Appellant invoked the provision in the agreement between the parties for the resolution of any dispute arising from the agreement by arbitration.

The matter was then referred to arbitration and at the end of the arbitral proceedings, the sole arbitrator made an award in favour of the Respondent. Thereafter, by an Originating Motion filed on 15th November, 2017, the Respondent sought an order of the trial Court for the recognition of the said final Arbitral Award and for a writ of fieri facias [fi fa] to issue to attach the movable properties of the Appellant. The Appellant filed a Counter-Affidavit in opposition to the Originating Motion and after hearing the application, the trial Court, granted the application as prayed.

The Appellant, piqued by the decision of the trial Court, appealed on 5th December, 2019.

ISSUES:

The Appellant distilled the following issues for the determination of the appeal:

“A. Whether the lower court did not breach the constitutional provision that ruling and judgment must be delivered within ninety days?

B. Whether the appellant is mandated by the provisions of section 32 of the arbitration and conciliation act to file an application in support of its counter-affidavit opposition [sic] the respondent application?

C. Whether the issued [sic] raised in the respondent written address in support of its counter affidavit is an academic issue?”

The Respondent distilled the following issues for the determination of the appeal:

“1. Whether the judgment of the trial Court in this case, is a nullity, merely on the ground, that, the same was delivered outside the mandatory period of 90 days after the Respondent’s motion on notice, for recognition of the award that was made in its favour by the sole Arbitrator, was heard by the Court?

2. Whether it is mandatory under the provisions of Section 32 of the Arbitration and Conciliation Act, for the Appellant that had the intention of opposing the Respondent’s application for recognition of the award that was made in its favour by the sole Arbitrator, to file an application in support of its counter affidavit and written address, to that effect?

3. Whether the issues raised in the Appellant’s written address filed in support of its counter affidavit before the lower Court, are academic issues? .”

The Court determined the appeal on the issues raised by the parties.

 DECISION/HELD:

In the final analysis, the appeal failed and was accordingly dismissed.

RATIOS:

• ARBITRATION AND CONCILIATION- ARBITRAL AWARD: Whether Section 32 of the Arbitration and Conciliation Act relates to the request of the Court to refuse recognition or enforcement of an arbitral award and no more
• JUDGMENT AND ORDER- FINAL/INTERLOCUTORY JUDGMENT: Test for determining whether a judgment/order is final or interlocutory; instance(s) where leave of Court is not required to file an appeal
• JUDGMENT AND ORDER- DELIVERY OF JUDGMENT: Whether the decision of a Court shall be treated as a nullity solely on the ground of non-compliance with the required time frame for delivery; what a party complaining of undue delay in the delivery of a judgment must establish to be entitled to a reversal of the judgment
• APPEAL- GROUND(S) OF APPEAL: Essence/purpose of ground(s) of appeal; whether where the purpose/essence of a ground of appeal is achieved, the said ground of appeal can be struck out on technical grounds