The parties to this appeal and another Company, Globus
Enterprises Limited entered into a tripartite warehousing
management agreement on the 27th day of April, 1998 wherein the
Appellant was supposed to warehouse skins belonging to Globus
Enterprises Limited and could only release the warehoused skins

upon the permission of the Respondent. The said agreement has
an arbitration clause. In the course of the tripartite agreement and
during stock taking in September, 2000, it was discovered that 16,
165 skins valued at N8,082,500.00 were missing from the custody
of the Appellant. The Respondent who financed the business
through a credit facility claimed the sum of N8,082,500.00 from
the Appellant as costs and value thereof. The Appellant denied
liability and the matter, pursuant to the Arbitration clause, went
for arbitration. Chief Bayo Ojo SAN, Mrs Funke Adekoya SAN
and Mr. M Bello Adoke were appointed as Arbitrators. Chief
Bayo Ojo SAN was the Presiding Arbitrator. The arbitral
Tribunal after considering the evidence before it as filed by both
parties awarded the Respondent the sum of N8,082,500.00 being
the value of the missing skins.
The Appellant being dissatisfied with the award of the
arbitral Tribunal applied to the lower Court by an originating
motion to set aside the award on the ground that one of the
arbitrators Mr M. Bello Adoke who incidentally was appointed by
the Appellant, did not disclose to them that he was solicitor to
Liberty Merchant Bank in Suit No. K/413/99 which had Globus
Enterprises Limited as a party. The Respondent, before the

hearing of the Appellant’s originating motion, filed a motion on
notice dated 30th December, 2001 for leave to enforce the arbitral
award. The lower Court after hearing Counsel on both sides
delivered its ruling on 17th February, 2003. It dismissed the
Appellant’s application to set aside the arbitral award and granted
the Respondent’s motion to enforce the award.
Aggrieved by the ruling of the Kano State High Court, the
Appellant gave notice of appeal dated 17th February, 2003 which
notice contains two grounds of appeal. Two issues are
formulated by the Appellants for the determination of this appeal
as follows:-
“1. Was the Learned Trial Judge wrong in
refusing to set aside the Arbitral Award
and/or is the Arbitral Award one which
ought to be set aside in view of the facts
of this case.
2. Was the Learned trial judge wrong in
granting leave to enforce the award
since the application was brought by
wrong process and the fact that the
arbitral tribunal itself lacked
jurisdiction to make the award due to
non disclosure of interest of one of the
arbitrators Mr Mohammed Bello Adoke.”

On receipt of the Appellant’s brief, the Respondent filed her
brief on 27th November, 2007 which contains notice of
preliminary objection and in the alternative distilled two issues
for the determination of the appeal.
It is always the practice to settle preliminary issues before
delving into the main appeal and I intend to do just that
PRELIMINARY OBJECTION:-
The notice given by the Respondent reads as follows:-
“TAKE NOTICE that the Respondent shall,
by way of preliminary objection pray this
Honourable Court to strike out all the issues
formulated by the Appellant at page 6 of the
Appellant’s brief of argument and to
discountenance all arguments proffered by
the Appellant in support of the said issues
because the said issues do not relate to
any of the grounds of appeal filed by the
Appellant.”
The grounds upon which the objection is founded are that:-
“(i) The issues purportedly formulated
do not relate to the grounds or any
of the grounds of appeal hence the
grounds have no issues formulated
on them.

(ii) All the issues formulated by the
appellant do not relate to any of
the grounds of appeal filed by the
Appellant.”
(iii) All the issues framed by the
appellant were all attacking the
proceedings and the award by the
arbitral tribunal rather than the
decisions of the lower Court.
(iv) The issues framed are more than
the grounds of appeal filed by the
Appellant.”
The Appellant has filed a reply brief in answer to the preliminary
objection.
The plank of the Respondent’s argument in the preliminary
objection is that the issues formulated by the appellant are not
related to the grounds of appeal and that any issue not related to
the ground of appeal should be struck out. He cited the cases of
Imo Vs. The State (1991) 9 N.W.L.R. (Pt. 213) 1, Owhoda Vs.
Alphonso Chukwuemeka Eupechi (2003) 9 – 11 S.C.N.J 12
and Afribank (Nig) PLC Vs. Osisanya (2000) 1 N.W.L.R. (Pt.
642) 598. He then urged this Court to hold that since the issues
are not related to the grounds of appeal, the grounds of appeal
should be deemed abandoned for which he cited and relied on the

case of Saidu & Ors Vs. Mahmood (1998) 2 N.W.L.R. (Pt.
536) 130.
In response to this argument, the Learned Counsel for the
Appellant submitted that the Respondent’s submission is a clear
misconception of the meaning of issues for determination and
urged this Court to hold that issues formulated by the Appellant
satisfy all the known legal principles guiding the formulation of
issues for determination. He cited the cases of F.R.N. Vs.
Anache & Ors (2004) 3 M.J.S. I, Shittu Vs. Fashawe (2005) 14
N.W.L.R. (Pt. 946) 671.
Let me state clearly here that the appellate jurisdiction of
Courts are donated by statute and is usually ignited by a valid
notice and grounds of appeal. Such grounds of appeal must be
based and traceable to the decision of the trial Court. The
appellant must also canvass only issues that are anchored on a
ground or related grounds of appeal. Where an issue is
formulated which has no bearing with the ground of appeal, such
an issue is liable to be struck out and all arguments made on that
incompetent issue must as a matter of fact be discountenanced. It
is therefore trite that an issue for determination should arise and
relate to a ground of appeal and an argument should also be based

on an issue formulated from the ground of appeal. See
Madumere Vs. Okafor ( 1996) 4 N.W.L.R. (Pt. 445) 637, Idika
& Ors Vs. Erisi & Ors (1988) 2 N.W.L.R. (Pt. 78) 563, Biocon
Agrochemicals (Nig) Ltd & 3 Ors Vs. Kudu Holdings Ltd &
Anor (2000) 14 N.W.L.R. (Pt. 691) 493.
In order to decide whether the grounds of appeal and the
issues formulated therefrom are related, it is necessary to
reproduce them here for ease of reference. The grounds of
appeal, without their particulars are as follows:-
“1 The learned trial Judge erred in law
in refusing the Appellants’ prayer to
set aside the Arbitral Award dated
20th July, 2001 and published by
Chief Bayo Ojo, SAN, Mrs Funke
Adekoya SAN and Mr Mohammed
Adoke.
2. The learned trial Judge erred in law
when he granted leave to the Respondent
to enforce the Award as the Ruling of the
Court.”
The two issues formulated by the Appellants are as stated
hereunder:-
“1. Was the learned trial Judge wrong in
refusing to set aside the Arbitral Award

and/or was the Arbitral Award one
which ought to be set aside in view
of the fact of this case
2. Was the learned trial Judge wrong in
granting leave to enforce the award
since the application was brought by
wrong process and the fact that the
arbitral tribunal itself lacked the
jurisdiction to make the Award due
to non disclosure of interest of one
of the Arbitrators Mr Mohammed
Bello Adoke.”
A glean at the two grounds of appeal vis – a – vis the two issues
formulated by the appellant shows that the two issues naturally
flow from the two grounds of appeal. I am at sea with the
argument of the Respondent on this issue as even the Respondent
has formulated two issues which are very similar to those of the
Appellant. Hereunder are the Respondent’s two issues:-
“1. Was the Lower Court justified based
on the position of the law and the
evidence before it in refusing the
appellant’s application to set aside
the arbitral award.
2. Should the Lower Court have granted
the Respondent’s application to enforce
the award based on the motion on

notice filed by the Respondent.”
Clearly, the issues formulated by the Appellant and that of the
Respondent have the same meaning but put in different forms.
Can it then be said that the issues of the Appellant are not based
on the grounds of appeal but that of the Respondent are? This is
not possible. No matter how one looks at the Appellant’s two
issues, they are firmly rooted in the two grounds of appeal.
The Respondent had argued that there are more issues than
the grounds of appeal. This argument is not anchored on facts
before the Court. It is just from the blues and I think the only
sensible thing to do in the circumstance is to disregard and
discountenance same.
On the whole, it is my conclusion that the preliminary
objection does not have merit at all. It is accordingly overruled
and struck out.
The coast is now clear for me to consider the appeal before
this Court. I have already set out the issues formulated by the
parties. The two issues by the Appellant and those of the
Respondent are the same and I intend to determine this appeal
based on the two issues.

It is the contention of the Learned Counsel for the Appellant
on the first issue that non disclosure by Arbitrator M. Bello
Adoke is tantamount to misconduct within the provision of
section 30 (i) of the Arbitration and Conciliation Act, 1988. That
it is clear from the facts that M. Bello Adoke had acted for
Liberty Merchant Bank in Suit No K/413/99 against Globus
Enterprises Ltd and that the assets of Globus Enterprises being
attached in Suit No K/413/99 included the warehouse in which
the skins in dispute were warehoused. Referring to Article 9 and
10 (1) and (2) of the 1st Schedule to the Arbitration and
Conciliation Act, 1988, Learned Counsel further submitted that a
prospective Arbitrator ought to disclose to those who approach
him for appointment any circumstances likely to give rise to
justifiable doubts as to his impartiality or independence. That the
said Arbitrator Adoke failed to observe this. He urged this Court
to hold that this was enough act of misconduct which the Learned
Trial judge ought to have considered and set aside the arbitral
award. The Learned Counsel cited the following cases to buttress
his argument. Savoia Ltd Vs. Sonubi (2000) F.W.L.R. (Pt. 12),
Taylor Woodrow Nig Ltd Vs. Suddeutche Etna – Werk
G.M.B.H. (1993) 4 N.W.L.R. (Pt. 286) 127. He also referred to

Ronald Berstein’s Handbook of Arbitration Practice, page 55
paragraph 10 and Commercial Arbitration (2nd Edition) by
Sir Mustill & Boyd QC.
It was a further submission of the Learned Counsel for the
Appellant that the Arbitrator misconducted the proceedings by
not dealing with all the issues before it. That the issue of
receivership was raised in the issues for determination but that
the Arbitrators failed to decide the issue and went on erroneously
to make the award. That the award should therefore be set aside
relying on the case of Savoia Vs. Sonubi (Supra). He then urged
this Court to resolve this issue in favour of the Appellant.
On the 2nd issue, the Learned Counsel for the Appellant
submitted that the process by which the respondent brought this
application for leave to enforce the award was wrong and
contrary to set down rules and practice and as such argued that
the decision to enforce the award by the High Court be set aside.
He referred to S. 26 of the Arbitration Act 1950.
Finally, that the Arbitral Tribunal lacked the jurisdiction to
hear the matter due to non disclosure of interest on the part of one
of the Arbitrators and that the lower Court was wrong to grant
leave to the Respondent to enforce the arbitral award in the

circumstance. That this decision for leave to enforce the arbitral
award should be set aside.
The Learned Counsel for the Respondent submitted in reply
that the fact that Mr Adoke had acted for Liberty Merchant Bank
which was not a party to the contract which gave birth to the
arbitration is not the type of connection contemplated by Ronald
Bernstein in his Handbook of Arbitration Practice page 55 that
“the arbitrator should have no connection direct or indirect with
the party such as creates an appearance of partiality.” That the
type of connection envisaged by the Learned author to debar Mr
Adoke from acting as an arbitrator is where the said Mr Adoke
had acted for either of the parties to the arbitration. That it cannot
by any stretch of imagination be stated that because a person had
acted for another person who is not a party to the arbitration, he
cannot be an arbitrator as that will be absurd. That as was held by
the lower Court at page 295 of the record of proceedings, the case
in which Mr Adoke acted for Liberty Merchant Bank does not
relate to the subject matter of arbitration but concerns disputes
with respect to interest charges between Globus Enterprises
Limited and Liberty Merchant Bank Limited and that the only
person who had contact or anything to do with the skins from the

side of Liberty Merchant Bank was the Receiver they appointed
in the person of Mr Kayode Adetokunbo SAN and not Mr Adoke.
That the case of Metropolitan Properties Vs. Lannon (Supra)
cited at page 10 of appellant’s brief does not apply to this case
because the facts are not the same.
Again, on the issue of receivership which the Appellant
submitted that the arbitral Tribunal did not consider, Learned
Counsel for the Respondent submitted that the lower Court at
page 296 of the record of proceedings found as a fact that the
issue of receivership raised by the appellant was considered by
the arbitral tribunal and that there is no ground of appeal
attacking the said finding of the lower Court. He cited the cases
of Moses Vs. State, (2006) All F.W.L.R. 1437, Oshodi Vs.
Eyifunmi (2000) F.W.L.R. (Pt. 8) 1271, Olukoya Vs. Ashiru
(2006) All F.W.L.R. (Pt. 322) 1479.
Furthermore, that at page 178 of the record of proceedings,
Counsel to the Appellant herein, who was respondent at the
arbitral Tribunal, expressly informed the tribunal that the
Appellant did not have any objection to the appointment of Mr M.
Bello Adoke as arbitrator much more so when the Appellant and
his Counsel knew that Mr Adoke had worked for Liberty

Merchant Bank before appointing him as its own arbitrator. That
having acquiesced to all the proceedings at the arbitral Tribunal
with the knowledge of the state of things, the appellants are
estopped from complaining now. He referred to the following
authorities – L.S.D.P.C. Vs. Adold/Stamm International
Limited (1994) 7 N.W.L.R. (Pt. 358) 545, Belchen Vs. Roedan
School Site & Building Limited 85 LT 468, United Nigeria
Insurance Company Limited Vs. Stocco (1973) N.S.C.C. 96
Middemiss Vs. Hartlepool Corporation (1972) 3 W.L.R. 163.
Finally on this issue, the Learned Counsel submitted that the
award which is on appeal before this Court thoroughly
determined all the issues submitted before the arbitrators and that
the lower Court was justified in refusing the appellant’s
originating summons.
On issue No. 2 Counsel for the Respondent submitted that in
view of the wording of Section 31 (1) of the Arbitration and
Conciliation Act, 1988, it is absurd and preposterous for the
appellant to insist that the application contemplated by the said
Section is originating summons and not motion on notice. That
all the foreign authorities cited in the Appellant’s brief on this
issue were all interpreting Section 26 of the Arbitration Act of

1950 and not Section 31 of our own Arbitration and Conciliation
Act, 1988.
On the issue of jurisdiction, Learned Counsel submitted that
the tribunal had jurisdiction as there was no feature in the tribunal
that could deprive it of jurisdiction. He urged this Court to
resolve both issues in favour of the Respondent.
As can be noticed from my summary of the argument of
both parties on the two issues in this appeal, I have not referred at
all to the ten questions or what the Learned Counsel for the
Respondent refers to as “subsidiary issues” contained on pages 6
– 7 of the Appellants brief of argument. The reason is not far
fetched. The ten questions are challenging the proceedings of the
arbitral tribunal directly in this Court as if an appeal lies from the
arbitral Tribunal to this Court. For an issue to be worthy of
consideration by this Court it must derive from the grounds of
appeal which in turn must relate to the decision of the lower
Court from which the appeal is lodged. Those ten questions
ought to have been asked and determined at the High Court of
Kano State where the originating motion was heard. The Court of
Appeal as far as I can recollect does not have jurisdiction to hear
appeals from the decision of arbitral Tribunals. See Bankole &

Ors Vs. Pelu (1991) 8 N.W.L.R. (Pt. 211) 523, K.T.P. Vs.
Glode & Hoff (Nig) Limited (2005) All F.W.L.R. (Pt. 272) 254,
Galadima Vs. Masha (1994) 6 N.W.L.R. (Pt. 350) 377.
As the ten questions on pages 6 – 7 i.e. (a) – (j) of the
Appellant’s brief of argument are referring to and challenging the
arbitral award, the proceedings and/or findings of the arbitral
tribunal, they are not properly raised in this Court. Accordingly,
all those questions and the arguments therein are hereby
discountenanced.
I now consider the two issues together. In arbitration
proceedings, the general rule is that parties to the transaction
choose their arbitrator or arbitrators as the case may be to judge
both as to decisions of law and of facts in the dispute between
them. Thus where the award is prima facie good on the fact of it,
it does not lie in the mouth of one of the parties to object simply
because the award is not in his favour. See Taylor Woodrow
Nigeria Limited Vs. Suddentche Etna – Werk G.M.B.H.
(2003) 4 N.W.L.R. (Pt. 286) 127.
However, by virtue of Section 30 (1) of the Arbitration and
Conciliation Act, 1988, the Court has power to set aside an award
made by an arbitrator where he has misconducted himself. The

word “misconduct” has not been defined in the Act or what
would amount to misconduct on the part of an arbitrator to
necessitate the setting aside of his award. But the Court is not
without guidance. The Apex Court in Taylor Woodrow Nigeria
Limited Vs. S.E.G.M.B.H. (Supra) having had recourse to the
common law has determined what constitutes misconduct.
Several instances have been listed though it cannot be said to be
exhaustive. I think each case should be treated based on its
perculiar facts to determine whether or not an arbitrator has
misconducted himself. Where an arbitrator had done anything
either expressly or impliedly for which a reasonable by-stander
would conclude that he was not fair to both parties, I think such
act of the arbitrator would qualify as a misconduct.
For the avoidance of doubt, the following instances
enunciated in the above case will certainly constitute acts of
misconduct, that is to say:-
(i) where the arbitrator fails to comply with the
terms, express or implied, of the arbitration
agreement;
(ii) where, even if the arbitrator complies with
the terms of the arbitration agreement, the
arbitrator makes an award which on grounds

of public policy ought not to be enforced;
(iii) where the arbitrator has been bribed or
corrupted;
(iv) technical misconduct, such as where the
arbitrator makes a mistake as to the
scope of the authority conferred by the
agreement of reference. This, however
does not mean that every irregularity of
procedure amounts to misconduct;
(v) where the arbitrator or umpire fails to decide
all the matters which were referred to him;
(vi) where, by his award, the arbitrator or umpire
purports to decide matters which have not in
fact been included in the agreement or reference,
for example:-
(a) where the award contains unauthorised
directions to the parties; or
(b) where the arbitrator has power to direct
what shall be done but his directions
affect the interests of 3rd parties; or
(c) where the arbitrator decided as to the
parties’ rights, not under the contract
upon which the arbitration had proceeded,
but under another contract.
(vii) if the award is inconsistent, or is ambiguous or
there is some mistake of fact which mistake

must be either admitted or at least clear beyond
any reasonable doubt;
(viii) where the umpire or arbitrator refuses to
state a special case for himself or allow
an opportunity of applying to the court
for an order directing the statement of a
special case;
(ix) where the arbitrator or umpire delegates
any part of his authority, whether to a stranger
or to one of the parties, or even to a co–arbitrator;
(x) where the arbitrator or umpire accepts the
hospitality offered with the intention of
influencing his decision;
(xi) where the arbitrator or umpire acquires an interest
in the subject – matter of the reference, or is
otherwise an interested party;
(xii) where the arbitrator or umpire takes a bribe
from either party.
(xiii) where the arbitrator or umpire has breached
the rules of natural justice.
(xiv) if there has been irregularity in the proceedings
as, for instance:-
(a) where the arbitrator failed to give the
parties notice of the time and place of

meeting; or
(b) where the agreement required the
evidence to be taken orally and the
arbitrator received affidavits; or
(c) where the arbitrator refused to hear
the evidence of a material witness; or
(d) where the examination of witnesses is
taken out of the parties’ hands; or
(e) where the arbitrator failed to have foreign
documents translated; or
(f) where, the reference being to two or more
arbitrators, they did not act together; or
(g) where the umpire, after hearing evidence
from both parties, received further evidence
from one without informing or hearing the
other; or
(h) where the umpire attended the deliberations
of the appeal board reviewing his award.
(xv) If the arbitrator or umpire has failed to act fairly
towards both parties, as for example:-
(a) by hearing one party but refusing to hear the
other; or
(b) by deciding in default of defence without
clear warning; or
(c) by taking instructions from or talking with
one party in the absence of the other; or
(d) by taking evidence in the absence of one
party or both parties; or
(e) by failing to give a party the opportunity of
considering the other party’s evidence; or
21
(f) by using knowledge he has acquired in a
different capacity in such a way as to influence
his decision or the course of the proceedings;
or
(g) by making his award without hearing
witnesses whom he had promised to
hear; or
(h) by deciding the case on a point not put
by the parties.
See Taylor Woodrow Nig Ltd Vs. S.E.G.M.B.H (Supra).
Kano State Urban Development Board Vs. Fanz Construction
Company Ltd (1986) 5 N.W.L.R. (Pt. 39) 77.
In the instant appeal, the grouse of the Appellant is that one
of the three Arbitrators Mr M. Bello Adoke failed to disclose to
the Appellant that he had acted for Liberty Merchant Bank in Suit
No. K/413/99 against Globus Enterprises Nigeria Limited a
member of the tripartite agreement. And that the said arbitrator
was biased against her. On this matter, the findings and
conclusion of the lower Court is on pp 295 – 296 of the record as
follows:-
“ I have considered the contentions of the
Learned SAN but with due respect to him
I am not convinced by his agents (sic) that
failure by him to disclose that he was

formerly a counsel to Liberty Merchant
Bank was an act of misconduct as Liberty
Merchant Bank is not a party to the arbitration
and also counsel failed to show any interest
that counsel has in the subject matter of the
award animal skin a sputed busy (sic) by the
respondents’ counsel the case which Adoke
represented the Bank was based on interest
charges entirely different from the subject
matter of arbitration. That ground therefore
fails.”
Now can it be said that having acted for Liberty Merchant Bank
against Globus Enterprises Limited in a matter which had to do
with interest charges only makes it an act of misconduct when he
subsequently acts as arbitrator in a matter between the Appellant
and the Respondent? No matter how the definition of misconduct
is over stretched, this situation cannot be accommodated. On
page 140 of the record of appeal is found the claim in suit No
K/413/99 between Globus Enterprises Limited Vs. Liberty
Merchant Bank which Mr Adoke was involved. It states:-
“ A declaration that the defendant’s rates of
interest at various times charged on the
plaintiff’s Account and other so called
miscellaneous charges on the plaintiff’s
Account are illegal and unlawful and
contravenes the Central Bank of Nigeria

(CBN) Prudential Guidelines on Guided
Regulation Policy by Government as
Regards Banks Interest Rates and all
other Guidelines relating to this.”
Clearly, that was the case which Mr Adoke was involved. It has
nothing to do with the tripartite agreement. The Appellant had
alleged that Mr Adoke had obtained a Court order to seal up the
warehouse of Globus Enterprises Limited in Suit No KM/195/99.
But a careful perusal of the said Court order as contained on pp
29 – 30 of the record of proceedings discloses that the order was
obtained by one Sadi Zawiya of the law firm of Abdullahi and
Company, and this corroborates the counter affidavit of Mr
Adoke as found on pp 31 – 32 of the record of appeal. Paragraph
14 therein states:-
“14. That upon the striking out of suit
No K/413/99 for want of jurisdiction
Mr Kayode Adetokunbo SAN was
appointed Receiver over the assets of
the said Globus Enterprises Limited
and that my firm ceased to have any
further dealings with the said suit or
happenings as it relates to Liberty
Merchant Bank nor Globus Enterprises
Limited.”

With all the above, I agree with the Learned Counsel for the
Respondent that it is preposterous for Counsel for the appellant to
submit in their brief that Mr M. Bello Adoke had full knowledge
of what was going on in Suit No KM/195/99 and that Mr Adoke
obtained a Court order in that suit when it is quite obvious that
the Court order was obtained by one Sadi Zawiya Esq. in the law
firm of Abdullahi & Co. for which Mr Adoke is not a partner.
Another issue which tended to show the misconduct of Mr
Adoke is the submission that the assets which includes the skin,
the subject matter of the dispute in the arbitration was also the
subject matter of dispute in Suit No K/413/99 in which the Firm
of Mr Adoke represented Liberty Merchant Bank. As I had
reproduced above, the findings of the Lower Court is that the case
of the parties in Suit No K/413/99 relates to disputes on interest
charges on the account of Globus Enterprises. This finding of the
trial Court has not been challenged as there is no ground of appeal
to that effect. Thus, as there is no ground of appeal challenging
the findings of the Lower Court, the finding stands and any
argument which tends to attack the said finding without a proper
ground of appeal goes to no issue. See Moses Vs. The State
(2006) All F.W.L.R., 1437; Oshodi Vs. Eyifunmi (2000)

F.W.L.R. (Pt. 8) page 1271, Olukoya Vs. Ashiru (2006) All
F.W.L.R. (Pt. 322) 147 at 1498.
It was a further contention by the appellant that issue of
receivership was raised before the Tribunal but it failed to
consider it and that where an arbitral tribunal fails to consider all
the issues referred to it, the award should be set aside. On this the
Lower Court states on page 296 of the record as follows:-
“……….. On the 4th issue that the issue of
Receivership was not considered was (sic)
considered by the tribunal at page 80 at
Exhibit F (the report) in which it states
that the respondent is estoppels (sic) from
denying that it received the goods after
admitting receiving them.”
It should be noted here that the Appellant is not quarrelling with
the findings of the Lower Court but is still insisting that the
arbitral tribunal failed to consider the issue of receivership. My
view on this is that having raised and argued that issue before the
Lower Court and the Lower Court made a finding on it, the
Appellant cannot raise that issue in this Court except to appeal
against the finding of the Lower Court. The Learned trial judge
found as a fact that the arbitral tribunal considered the issue of
receivership at page 80 of their report (i.e. Exhibit F). That

finding still stands until successfully appealed against. See
Oshodi Vs. Eyifunmi (Supra). Even at that, I think the learned
trial judge was right because at page 253 of the record of
proceedings is contained the findings and conclusions of the
arbitral tribunal as regards the issue of receivership. It states:-
“The Respondent asserted that though it
maintained 45, 165 pieces in its stock, it
did so out of the need to maintain a clear
record, having informed the claimant
earlier of the state of things. That it
could not receive the 16, 165 pieces of
skins into custody because while the
skins were still being processed, Liberty
Merchant Bank Limited, creditors to
Globus appointed receiver Manager over
the factory and the 16, 165 pieces of
skins that were in the process then were
therefore not released by the receiver/
manager.
It is difficult to accept the above assertion,
particularly when viewed against the fact
that the issue of receivership was in
August 1999. This fact is bourne out
from Exhibit H which was a letter from
the Respondent to Claimant dated
August 5th, 1999 intimating the Claimant
of the receivership over Globus. It was
after the incident of the receivership

had blown over that the Respondent on
October 11th, 1999 wrote a letter Exhibit
B with the storage warrant Exhibit C
acknowledging a total of 45, 165 pieces
of skin in its custody for the Claimant.
Prudence dictates that the Respondent
ought not to have admitted having
received what it did not. Having so
held itself out, we agree with the
submission of the counsel for the
claimant that it is now estopped from
holing otherwise.”
Nothing can be clearer than this. Nothing appears on the face of
the arbitral award which could have made the Lower Court to set
it aside. The Apex Court in Taylor Woodrow Vs. Etina – Werk
(Supra) at 421 per Ogundare JSC had stated that:-
“The general rule is that where the
parties choose their own arbitrator
to be the judge in the dispute
between them, they cannot when
the award is good on the face
object to his decision either upon
the law or the facts.”
Let me emphasise here that where parties to a dispute or their
solicitors appoint an arbitrator with full knowledge of the facts
and circumstance relating to the arbitrator before his appointment,

they will be estopped from objecting to such appointment as
invalidating the proceedings. See Russel on Arbitration (12th
Edition) page 131 – 132. See also Re Blackhouse and Taylor
(1851) L.J.Q.B. 233. Oakland Tal Company Limited Vs. D.
Benaim & Company Limited (1953) 2 O.B. 261 at 265.
In the instant appeal, when reference is made to pp. 136 –
137 of the record of proceedings, there is a further counter
affidavit to the motion to set aside the arbitral award wherein it is
stated that one Mallam Aliyu Yakubu, Counsel to the Appellant
at the arbitral Tribunal was aware of the fact that M. A. Bello
Adoke had defended the interest of Liberty Merchant Bank in
Suit No K/413/99 before nominating him to act as arbitrator in
the arbitral proceedings. Yet they allowed him to conduct the
arbitration only to cry foul when the award was against them.
The question is, would the appellant had complained if the
arbitral award was in his favour? I do not think so. The Court
should not be tempted to set aside arbitral awards duly entered on
any flimsy complaint. To hold otherwise would open a wide door
for all sorts of attempts to get rid of arbitrators deliberately
chosen by parties to contracts. See L.S.D.C. Vs. STAM (1994) 7
N.W.L.R. (Pt. 358) 545.

I hold the view that the appellant has failed to show that the
lower court erred in holding that Mr Adoke, as arbitrator did not
commit any act of misconduct. This issue is resolved against the
Appellant.
On the second issue, the appellant had submitted that the
process by which the respondent brought the application for leave
to enforce the award was wrong and contrary to set down rules
and practice and that the decision of the high Court to enforce the
arbitral award be set aside. That the current practice is to bring
such an application by originating summons supported by
affidavit. The Learned Counsel referred to section 26 of
Arbitration Act, 1950 and the cases of Solanke Vs. Somefun
(1974) N.S.C.C. page 14 and Sken Consult Vs. Seconday Ukay
(1981) N.S.C.C. 1.
I am surprised as much as the Learned Counsel for the
Respondent is that the appellant is still referring to the English
Arbitration Act of 1950 when this country has its own domestic
law governing arbitration and conciliation matters. i.e. the
Arbitration and Conciliation Act, 1988. The appellant even
referred to Section 66 (3) of the Arbitration Act 1996 on page 13
of their brief. One does not understand why Counsel should

choose to select sections of the law of foreign legal system which
aid his case feigning ignorance of the provisions of domestic laws
which are at variance with such foreign laws. For instance the
Appellant’s Counsel refers to section 26 of Arbitration Act, 1950
which states that an application to the High Court may be made
before the commercial judge in chambers by an Originating
Summons whereas Section 31 (1) of the Arbitration Act, 1988
Cap 19, Laws of Federation 1990 states:-
“31 (1) 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,”
A careful perusal of section 31 (1) of the Arbitration and
Conciliation Act, 1988 produced above shows that a person
seeking to enforce an arbitral award should apply to the Court.
The section does not specify what type of application is to be
made to the Court. I agree entirely with the learned Counsel for
the Respondent that the motion on notice brought by the
Respondent to enforce the arbitral award was sufficient and
accords with the letter and spirit of the section. Had the Act
wanted an application to be made by Originating Summons, it
would have stated so. This is so because where the words of a

statute are clear and unambiguous like in this case, the Courts
must give the words their ordinary meaning. See Balogun Vs.
N.C.S.B. (2003) 2 N.W.L.R. (Pt. 804) 389. NDIC Vs. Ifedegwu
(2003) 1 N.W.L.R. (Pt. 800) 56.
It should be noted that whereas section 26 of the English
Arbitration Act of 1950 specifically states that the application
may be brought by Originating Summons, section 31 (1) of our
own Arbitration and Conciliation Act,1988 states that the
“application” should be “in writing”. The authorities cited by the
Appellant interpreted section 26 of the English Arbitration Act of
1950 and so do not apply to section 31 (1) of the 1988 Act. In the
circumstance, I hold that the Lower Court was justified to have
granted the respondent leave to enforce the award via a motion on
notice.
The Appellant’s Counsel had submitted that since Mr.
Adoke misconducted himself, the tribunal lacked the jurisdiction
to try the case. I need not go into this as the issue ought to have
been ventilated at the Lower Court. Moreso, having already held
that Mr. Adoke did not misconduct himself; it will amount to a
waste of precious judical time to go into the matter again

On the whole, it is my well considered opinion that the two
issues submitted for determination do not avail the appellant at
all. This appeal lacks merit and is hereby dismissed. The
judgment of the Lower Court is accordingly upheld. I award cost
of N20, 000.00 in favour of the respondent.