On the 10th day of January, 2017, the High Court of the Federal Capital Territory, Abuja, Nigeria in Suit No: FCT/HC/CV/610/14 before His Lordship, Hon. Justice A.B. Mohammed delivered a judgment in the case involving ABANG ODOK V. ATTORNEY GENERAL OF BAYELSA STATE (available at here), on a matter for the enforcement/setting aside of the Final Award of Professor Paul Obo Idornigie, SAN, PhD, C.Arb, Sole Arbitrator. The Final Award was rendered on 17 January, 2014.
Abang Odok was the Claimant in the arbitral proceedings while Attorney General of Bayelsa State was the Respondent. The Claimant was also the Applicant (Award Creditor) at the High Court while the Respondent was still the Respondent (Award Debtor). The Award Debtor filed a Notice of Preliminary Objection challenging the jurisdiction of the court to entertain the application to recognize and enforce the award. The main ground for challenging the award was that the suit before the High Court did not disclose any reasonable cause of action and therefore the court lacked jurisdiction to entertain the matter.
The court dismissed the preliminary objection on the ground that it lacked merit. The Respondent then applied to set aside the award on the sole ground that the Sole Arbitrator who claimed to have been appointed by the court was not so appointed. This was premised on the fact that the court order showed that Professor Paul Idonije was appointed by the court while Professor Paul Obo Idornigie rendered the award and argued that Professor Idonije and Professor Idornigie were not the same person. The Respondent/Award Debtor submitted that Professor Idornigie had no jurisdiction to render the award and that the arbitral proceedings were a nullity. It is noteworthy that at the Preliminary Meeting, the Sole Arbitrator presented himself as the court-appointed Arbitrator and both parties confirmed his appointment. It was contended on behalf of the Applicant that even if Professor Idornigie was not properly appointed, the parties confirmed his appointment at the Preliminary Meeting.
Furthermore section 34 of the Nigerian Arbitration and Conciliation Act, 2004 (same as Article 5 of the UNCITRAL Model Law on International Commercial Arbitration, 1985 as amended) gave powers to courts to intervene in arbitral proceedings in limited circumstances and that the issue of the name of the arbitrator was not one of the grounds. Since the arbitral tribunal is competent to rule on its jurisdiction as provided in section 12(3) of the Nigerian Arbitration and Conciliation Act, the court held that the proper forum to challenge the appointment of the Sole Arbitrator was at the arbitral proceedings. Instead the Respondent confirmed the appointment of the Sole Arbitrator and participated fully in the arbitral proceedings. In consequence the court recognized and enforced the award.
Two things were established in this judgment, namely, (a) where there is an application to set aside an award and another to enforce, the one to set aside takes priority; and (b) the grounds for the courts to intervene in arbitral proceedings are limited and the issue of whether the arbitrator was properly appointed ought to have been raised at the arbitral proceedings and since it was not raised, the Award Debtor is deemed to have waived his right.
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*Professor of Law, Nigerian Institute of Advanced Legal Studies
