IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP: HON.  JUSTICE E. D. SUBILIM

 

DATE: 27^TH NOVEMBER, 2025                 SUIT NO: NICN/ABJ/04/2021

 

BETWEEN:

 

MR. EYO O. EKPO                                                    -      APPLICANT

 

AND

 

NIGERIAN ELECTRICITY

REGULATORY COMMISSION                                    -     RESPONDENT

 

REPRESENTATION:                      

Ubong Akpan Esq., with Idongesit Ekpo, Esq; and B. Eleng Esq., for Claimant

Kehinde Pele Esq., with Raheina Issa Esq., for Defendant

 

RULING

INTRODUCTION

1.     The Applicant filed a Motion on Notice dated 17/03/2025 and filed on the 18/03/2025 brought pursuant to Order 17 Rules 3 and 15 of the Rules of this Court and the inherent powers of this Court. The Motion seeks for the following Order(s):

1.     That the Final Arbitral Award under the Arbitration and Mediation Act 2023, delivered by the Arbitral Tribunal comprising of Mr. Kayode Sofola, SAN, Mr. Seyi Sowemimo SAN, and Senator Victor Ndoma-Egba OFR, SAN on 18^th December, 2024 be binding and enforceable as a judgment of the National Industrial Court of Nigeria under Order 17 Rules 3 and 15 of the National Industrial Court (Civil Procedure) Rules 2017.

2.     Granting leave to the Applicant to enforce the Final Arbitral Award under the Arbitration and Mediation Act 2023, delivered by the Arbitral Tribunal comprising of Mr. Kayode Sofola, SAN, Mr. Seyi Sowemimo SAN, and Senator Victor Ndoma-Egba OFR, SAN on 18^th December, 2024 be binding and enforceable as a judgment of the National Industrial Court of Nigeria under Order 17 Rules 3 and 15 of the National Industrial Court (Civil Procedure) Rules 2017.

3.     Enforcing the Final Arbitral Award under the Arbitration and Mediation Act 2023, delivered by the Arbitral Tribunal comprising of Mr. Kayode Sofola, SAN, Mr. Seyi Sowemimo SAN, and Senator Victor Ndoma-Egba OFR, SAN on 18^th December, 2024 in the same manner as the judgment of the National Industrial Court of Nigeria to the same effect by directing the Respondents to pay to the Applicant the following specific award to wit:

a.      One-time payment of 120% gross annual remuneration at the end of the term in the sum of N86,943,084.

b.     Full payment for debarment of sectoral engagement for 2 years (2015-2016) and (2016-2017) in the sum of N144,905,104.

c.      Transport/Relocation allowance at 50% of annual gross salary in the sum of N36,226,285.

d.     Medical care for years (2015-2016) and (2016-2017) in the sum of N36,226,285.

e.      Vacation for 2 years (2015-2016) and (2016-2017) in the sum of $ 110,000.

f.        Unpaid salaries for the months of June, July, and August 2015 in the sum of N18,113,142.48.

These reliefs are of course subject to the legitimate deductions on which issues were not joint or evidence led in this arbitration, inclusive of payments that have been in respect of the reliefs listed in the claim.

4.     An Order directing the Respondents to pay the sums enumerated above with the deductions therein in the sum of.

a.      N198,767,860.85 (On Hundred and Ninety-Eight Million, Seven Hundred and Sixty-Seven Thousand, Eight Hundred and Sixty Naira, Eight-Five Kobo) into the account detailed below:

Account Name: The Chambers of Ubong Akpan

Account Number: 0036829740

Bank: Stanbic IBTC PLC

b.     The Dollar award of $110,000 (One Hundred and Ten Thousand US Dollars) into the account detailed below:

Account Name: The Chambers of Ubong Akpan.

Account Number: 0036829764 (USD)

Bank: Stanbic IBTC PLC

5.     And for such further or other Order(s) as the Court may deem fit to make in the circumstances.

2.     The ground upon which the application is predicated are thus;

1.     Existence Of A Valid, Unchallenged And Binding Arbitral Award

1)    The Applicant was appointed a Commissioner or NERC for a term of five years by letter dated 29^th May 2010.

2)    By letter dated 1^st September 2015 the Applicant resigned as Commissioner of NERC and gave the statutory three month notice required under Section 37 (a) of Electricity Power Sector Reform Act.

3)    Upon retirement his gratuity, severance benefits and entitlements were not paid

4)    By a notice of Arbitration dated 9^th March 2022 but later replaced by an amended notice of Arbitration date 24^th May 2024 submitted to the Arbitral Tribunal pursuant to clause 11 of th Gratuity Trust Fund Deed, the Applicant sought the determination of the gratuity, severance benefits and other entitlements due to him. The gratuity trust fund deed is attached to the affidavit as Exhibit “A”

5)    The Arbitral Tribunal comprising Mr. Kayode Sofola SAN, Mr. Seyi Sowemimo SAN and Senator Victor Ndoma-Egba OFR, CON, SAN delivered their final Arbitral award 18^th December 2024 and granted the following reliefs in favour of the Applicant to wit

a)    One-time payment of 120 gross annual remuneration at the end of the term in the sum of N86, 943, 084.

b)    Full payment for debarment of sectoral engagement for é years (2015-2016) and (2016-2017) in the sum of N 144, 905,140.

c)     Transport/Relocation allowance at 50% of annual gross salary in the sum of 36,226,285

d)    Medical Care for years (2015-2016) and (2016-2017) in the sum of 36,226,285.

e)    Vacation for 2 years (2015-2016)  and (2016-2017) in the sum of $110,000

f)      Unpaid salaries for the months of June, July and August 2015 in the sum of N18, 113, 142.48

These reliefs are of course subject to the legitimate deductions on which issues were not joined or evidence led in this arbitration inclusive of payment that have been in respect of the reliefs listed in the claim.

6)    The Arbitral award dated 18^th December 2024 is attached to the Affidavit in support of this motion.

2.     Arbitral Award is Recognized as Judgment of the National Industrial Court of Nigeria because the cause of action determined by the award is within the exclusive of the National Industrial Court.

1)    By Order 17 Rule 15 (3) NICN Rules;

“An award made by an Arbitral Body in a matter within the jurisdiction of the Court may, by leave of the Court be enforced in the same manner as judgment or order of the Court”

2)    By reason of the above provision of the Rules the Arbitral Award dated 18^th December 2024 is binding and enforceable as the judgment of the National Industrial Court as the cause of action leading to the award is within the exclusive jurisdiction of the National Industrial Court.

3)    The Applicant in compliance with the procedure detailed in Order 17 Rules 3 and 15 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 filed this motion and supporting affidavit document in support and written address seeking leave to enforce the said Arbitral award.

4)    The cause of action determined by the Arbitral award is the determination of the severance benefits and entitlement of an employee which is with the exclusive jurisdiction of the National Industrial Court and enforceable under Order 17 Rules 3 and 15 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017.

3.     Respondent failure and refusal to liquidate the award

1)    The Respondents have failed and neglected to pay and settle th award which took effect on 18^th December 2024 and the reliefs therein have remained outstanding to date despite demand letters both dated 7^th February 2025 addressed to the Chairman of the 1^st Respondents and the Minister of Power.

2)    The Respondents have not appealed against th award aforesaid

 

4.     Urgent need to alleviate the Applicant’s hardship caused by the denial of his entitlement and benefits for over 10 years: There is an urgent need to enforce the award in order to alleviate the hardship and pain suffered by the Applicant who had served as a Commissioner of the Respondent diligently and the entitlement has been withheld for over 10 years from the date of his resignation from office.

 

5.     In opposing the application, the Respondent filed an 18 paragraphs Counter affidavit, deposed to by Abba Terab, the Deputy General Manager, Market Competition and Rate Division of the Respondent and a written address filed in compliance with the Rules of this Court.

 

APPLICANT’S CASE

 

6.     The Applicant was appointed a Commissioner of Nigerian Electricity Regulatory Commission (NERC) for a term of five years by vide a letter dated 29^th May 2010. By letter dated 1^st September, 2015, the Applicant resigned his appointment as Commissioner of NERC and gave the statutory three-month notice required under Section 37 (a) of the Electricity Power Sector Reform Act. Upon resignation, his gratuity, severance benefits, and entitlements were not paid as provided by law.

 

7.     By a Complaint dated 12^th January 2021, the Applicant brought an action in this court    against NERC and the trustees of Gratuity Trust Fund Deed (GTFD) for the determination of his Gratuity, Severance benefits and other entitlement payable to him by NERC and the trustees of Gratuity Trust Fund Deed (GTFD). The matter was later referred to arbitration by the court and the case was adjourned sine dine pending the final determination of the claims at arbitration, pursuant to Clause 11 of the Gratuity Trust Fund Deed (GTFD).

 

8.     The also Claimant filed a Notice of Discontinuance of the action dated 19^th December 2024 before the court which was granted. The Arbitration Clause under the Gratuity Trust Fund Deed (GTFD), Clause 11 provides that parties must submit all disputes arising therefrom to Arbitration

 

9.     That by an amended Notice of Arbitration dated 24^th May, 2024, submitted to the Arbitral Tribunal pursuant to Clause II of the Gratuity Trust Fund Deed, the Applicant sought the determination of the Gratuity, Severance Benefits, and other entitlements due to him. The Arbitral Tribunal comprising of MR. KAYODE SOFOLA, SAN, MR. SEYI SOWEMIMO, SAN, AND SENATOR VICTOR NDOMA-EGBA OFR, CON, SAN, delivered their final arbitral award on 18^th December, 2024.

WRITTEN ADDRESS IN SUPPORT OF THE APPLICATION FOR ENFORCEMENT OF ARBITRAL AWARD

10.   The Applicant formulated a lone issue for the determination of this application to wit:

Whether by law, the Unchallenged and undisputed Arbitral Award of 18^th December 2024 is binding and should be enforced by this Honourable Court

11.   The Applicant states that the unchallenged and undisputed Arbitral Award of 18^th December, 2024 is binding and by law should be enforced as a judgment of the National Industrial Court. That the affidavit shows that; The Applicant was appointed a Commissioner of NERC for a term of five years by letter dated 29^th May 2010, By letter dated 1^st September, 2015, the Applicant resigned as Commissioner of NERC and gave the statutory three-month notice required under Section 37 (a) Electricity Power Sector Reform Act) and upon resignation, his gratuity, severance benefits, and entitlements were not paid as provided by law.

 

12.   THE ARBITRATION AND THE ARBITRAL AWARD DATED 18^TH DECEMBER, 2024

 

1)    The Arbitration Clause Under the Gratuity Trust Fund Deed (GTFD): Clause 11 of the Gratuity Trust Fund Deed provides that parties must submit all disputes arising therefrom to Arbitration. The clause specifically provides that;

 

“11. ARBITRATION

In case of any dispute or difference arising between any person or persons interested in the Fund (whether actually, prospectively or contingently) and the Trustees or the Employer regarding the interpretation or construction of any of these Rules or any rights or liabilities hereunder, such dispute or difference shall be resolved amicably between the parties failing which the dispute or difference shall be referred to arbitration by a panel of Arbitrator(s) to be appointed in accordance with the provisions of the Arbitration and Conciliation Act [Cap A 18] LFN 2004.”

 

2)    Pursuant to the above provision, the Applicant by a Notice of Arbitration dated 9^th March, 2022 but later replaced by an amended Notice of Arbitration dated 24^th May, 2024, submitted to the Arbitral Tribunal pursuant to Clause 11 of the Gratuity Trust Fund Deed, the Applicant sought the determination of the Gratuity, Severance Benefits, and other entitlements due to him. The Gratuity Trust Fund Deed is attached to the Affidavit in support of this originating motion as Exhibit ‘A’

 

3)    The Arbitral Tribunal comprising MR. KAYODE SOFOLA, SAN, MR. SEYI SOWEMIMO, SAN, AND SENATOR VICTOR NDOMA-EGBA OFR, CON, SAN, delivered their final arbitral award on 18^th December, 2024, and granted the following reliefs in favour of the Claimant/Applicant to wit;

 

“a) One-time payment of 120% gross annual remuneration at the end of the term in the sum of N86,943,084.

b)   Full payment for debarment of sectoral engagement for 2 years (2015-2016) and (2016-2017) in the sum of N144,905,140.

b)   Transport/Relocation allowance at 50% of annual gross salary in the sum of N36,226,285

c)   Medical Care for years (2015-2016) and (2016-2017) in the sum of N36,226,285.

d) Vacation for 2 years (2015-2016) and (2016-2017) in the sum $110,000

e)   Unpaid Salaries for the months of June, July, and August 2015 in the sum of N18,113,142.48

f)    These reliefs are of course subject to the legitimate deductions on which issues were not joined or evidence led in this arbitration, inclusive of payments that have been in respect of the reliefs listed in the claim.”

 

13.   BY LAW, THE NATIONAL INDUSTRIAL COURT OF NIGERIA CAN ENFORCE THE ARBITRAL AWARD OF 18^TH DECEMBER 2024

 

1)    National Industrial Court of Nigeria has Jurisdiction over the Subject matter of the Award:

a)    The Applicant submits that the determination of the gratuity, severance benefits and other entitlement of the Applicant, is an employment related matter which is within the exclusive jurisdiction of the NICN under Section 254C of the Constitution of the Federal Republic of Nigeria 1999 as amended.

b)    By reason of the exclusive jurisdiction of the NICN over the subject matter of the award aforesaid, this Court is vested with Jurisdiction to enforce the Award dated 18^th December, 2024, which determined the Applicant’s benefit aforesaid.

c)     Order 17 Rules 15 (3) NICN Rules 2017 clearly provides that

“An award made by an Arbitral Body in a matter within the jurisdiction of the Court may by leave of the court be enforced in the same manner as a judgment or order of the Court”

d)    The Award dated 18^th December, 2024 can by law be enforced by the NICN on application by the Applicant.

2)    By the award sum and the deductions of the sum of N93,646,075.15 (Ninety-Three Million, Six Hundred and Forty-Six Thousand and Seventy-Five Naira and Fifteen Kobo) already paid to the Applicant on 1^st February 2018, the Applicant is entitled to be paid by the Respondents:

a)    The award Naira sum of N198,767,860.85 (One Hundred and Ninety-Eight Million, Seven Hundred and Sixty-Seven Thousand, Eight Hundred and Sixty Naira, Eighty-Five Kobo)

b)    The Dollar award of $110,000 (One Hundred and Ten Thousand US Dollars)

3)    The Applicant by Letter dated 7^th February 2025 addressed to the Chairman of the Respondent and the Hon. Minister of Power demanding the payment of the sums awarded, but they have failed, refused and neglected to pay the sums due under the Arbitral Award to date.

4)    The failure to settle the Arbitral Award, entitles the Applicant to the grant of an order enforcing the Award by this Court

 

a.            Conditions for enforcement of the award under Order 17 Rules 3 and 15 NICN Rules: 

1)    The conditions for the enforcement of the award are laid down in Order 17 Rules 3 and 15 NICN Rules.

 

a)    Order 17 Rule 3 NICN Rules provides that;

“3-(1) Every notice to enforce an arbitral award shall state the grounds of the application and where any such motion is founded on evidence by affidavit, a copy of the affidavit shall be served with the notice of motion.

 

Certified true copy of award

(2) the Party relying on an award on applying for its enforcement shall supply a certified true copy of the award.

 

Arbitral award may be enforced like judgment of the court

(3) An award made by an arbitrator may by leave of the Court be enforced in the same manner as a judgment or order of Court.

b)    Order 17 Rule 15 NICN Rules provides that:

“15-(1) Every Application to enforce a binding arbitral award made by an Arbitral Body shall state in general terms the grounds of the Application and where any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion.

(2) the Party relying on a binding award shall sufficiently supply duly certified true copies of the award or decision or recommendation.

(3) An award made by an arbitral body in a matter within the jurisdiction of the court may, by leave of the court be enforced in the same manner as the judgment or order of the court.

 

2)    From the above provision of the rules, the conditions for the enforcement of an award by the NICN are;

a)    The Applicant must file a motion on notice seeking leave to enforce the award, stating the grounds for the reliefs and serving the affidavit evidence on the respondents

b)    The applicant must attach a certified true copy of the Award sought to be enforced

c)     The Award should be in a matter within the jurisdiction of the NICN.

3)    The Applicant has fulfilled the conditions laid down by law and is entitled to the grant of the reliefs sought, because;

a)    The subject matter of the Arbitral Award to wit the determination of the Gratuity, severance benefits and other entitlement of the Applicant, is an employment related issue within the jurisdiction of the NICN.

b)    The Applicant has filed this application as required by the Rules of this court, and has accompanied the same with affidavit evidence

c)     The Applicant has attached the Arbitral Award of 18^th December, 2024 and the Gratuity Trust Fund Deed (GTFD) containing the Arbitration clause to this Affidavit

He referred the Court to Paragraphs 4, 5 and 6 of the Affidavit in support of the motion.

15. THE NICN IS THE COURT WITH JURISDICTION OVER THE SUBJECT MATTER OF THE AWARD

 

1)    The award of 18^th December 2024 aforesaid, determined the Gratuity, severance benefit and entitlement of the Applicant who was an employee of the 1^st Respondent. The subject matter determined by the award is an employment related matter which is within the exclusive preserve of the NICN.

2)    Section 254C CFRN 1999 as amended vest exclusive jurisdiction on all employment and labour related matter on the NICN. He relied on the case of  Salami v NJC [2014] LPELR-22774 (CA)

3)    The award which determined the Applicant’s right stated above which is an employment related dispute, is within the NICN jurisdiction and can only be enforced by the NICN, subject to the conditions stated in Order 17 Rules 3 and 15 of the NICN Rules.

 

16. WHETHER A PARTY WHO SUBMITS TO ARBITRAL PROCEEDINGS CAN SUBSEQUENTLY COMPLAIN ABOUT SAME

 

The Gratuity Trust Fund Deed (GTFD), which regulates the contract between the Applicant and the Respondent, laid down the mode through which parties can settle all disputes. The Arbitration was therefore commenced under a binding instrument, and having submitted to the Arbitral proceedings that delivered the award of 18^th December 2024, the Applicant is entitled to reliefs granted therein. He placed reliance on the case of Mekwunyev. Imoukhuede [2019] LPELR-48996(SC) (Pp 27 - 28 Paras B - C)

 

17. NATURE OF ARBITRAL PROCEEDINGS BEFORE AN ARBITRATION TRIBUNAL.

Counsel referred this Court to the following cases Mekwunyev. Imoukhuede [2019] LPELR-48996(SC),   Ras Palgazi Const. Co. Ltd v. FCDA (Pp 62 - 64 Paras A - A).

 

18. BINDING EFFECT OF AN ARBITRAL AWARD.

It is the position of Counsel that the law is that an arbitral award is binding and must be recognized as binding on all parties to its proceedings. SEE Section 57 of the Arbitration and Mediation Act, 2023. He placed reliance on the case of Commerce Assurance Ltd v. Alli [1992] LPELR-883(SC) (Pp 19 - 20 Paras E - D); Ras Palgazi Construction Co. Ltd v. FCDA [2001] LPELR-2941(SC)  (Pp 17 - 18 Paras F - B) and Entire Cargo of About 3 Units Crew Boats v. BBC Charterning & Logistics Gmbh & Company KG [2015] LPELR-24667(CA) (Pp 35 - 36 Paras F - D).

 

19.  CONDITIONS FOR ENFORCEMENT Counsel posited that the Applicant has fulfilled the conditions for the grant of leave to enforce the award under Order 17 Rules 3 and 15 of the NICN RULES, in the manner following; The subject matter of the Arbitral Award to wit the determination of the Gratuity, severance benefits and other entitlement of the Applicant, is an employment related issue within the jurisdiction of the NICN, The Applicant has filed this application as required by the Rules of this court, and has accompanied the same with affidavit evidence and the Applicant has attached the Arbitral Award of 18^th December, 2024 and the GTFD containing the Arbitration clause to this Affidavit.

 

20. POWER OF COURT TO RECOGNISE AND ENFORCE AN ARBITRAL AWARD. It is the submission of Counsel that the subject matter of the Arbitral award which determined the gratuity, severance benefit and other entitlements due to the Applicant, is an employment related matter, within the exclusive jurisdiction of the NICN under section 254 (C) of the CFRN 1999, by reason of the above the NICN is vested with the jurisdiction to enforce the award and that the Rules of Court made pursuant to the powers vested on the president of the NICN under the NICN ACT empowers this court to enforce the said award which determined a matter within the exclusive jurisdiction of the NICN.  He urged the Court to uphold its Rules and grant leave for the enforcement of the Arbitral award dated 18^th December, 2024. In conclusion Counsel stated that by reason of the matters aforesaid, The Applicant states that he has fulfilled the requisite conditions under Order 17 Rules 3 and 15 of the NICN Rules, 2017, and is entitled to the grant of the reliefs sought. He urge this Court to:

a)    Declare the Arbitral Award of 18^th December, 2024 as binding under Order 17 Rules 3 and 15 of the NICN Rules, 2017

b)    Enforce the Arbitral Award of 18^th December, 2024 as a judgment of the National Industrial Court

c)     Direct the 1^st Respondent to immediately pay the Applicant the sums due under the Arbitral award aforesaid.

 

RESPONDENT’S WRITTEN ADDRESS IN OPPOSITION TO THE MOTION ON NOTICE

21. Counsel distilled a sole issue for the determination of this Court to wit:

Whether having regard to the relevant Laws, Rules and the fact that the arbitral Award sought to be executed through this application by the Applicant is currently being challenged by the Respondent, this Honourable Court ought not to refuse this application.

22. On the sole issue, Counsel submitted that having regard to the relevant laws, Rules and the fact that the Arbitral Award of 18^th December, 2024 sought to be executed by the Applicant has been validly challenged by the Respondent vide exhibit NERC 1, which is currently pending before Hon. Justice Faji of the Federal High Court, Lagos State, your Lordship ought to refuse this application. It is equally the submission of Counsel that the arbitral Tribunal claimed to have derived their Jurisdiction from the provisions of the Arbitration and Conciliation Act as well as Arbitration and Mediation Act amongst others. He further posited that the provisions of Arbitration and Conciliation Act gives the right to challenge arbitral Award by way of application to set aside the award to the Respondent against whom the said award was given. Counsel refers this court to the provisions of Section 29 of the Arbitration and Conciliation Act, 2004.

  

23. Counsel submitted that Arbitration and Mediation Act, 2023 also provided for procedure to set aside arbitral award. He referred the Court to Section 55 (3) & (4) of the Arbitration and Conciliation Act 2023. Counsel continued and submits further that the Arbitration and Conciliation Act by Section 57 thereof defines Court to include the Federal High Court, the State High Court and the High Court of Federal Capital Territory. Also, Section 91 of the Arbitration and Mediation Act, 2023 defines Court to include Federal High Court, the State High Court and the High Court of Federal Capital Territory. It is the submission of Counsel that both the Arbitration and Conciliation Act and Arbitration and Mediation recognize application to set aside arbitral award and provided for Three months within which to apply for same. In the instant case, the award was delivered on the 18^th December, 2024 and Originating Motion (exhibit NERC 1) filed by the Respondent to challenge same was filed on the 13^th March, 2025 which is within the Three months prescribes by the Laws. We therefore pray your Lordship to refuse this application. On the whole Counsel prays this court to refuse this application because:

a.      There is a pending Originating Motion to set aside the award sought to be recognized.

b.     The application to set aside the award was filed within time.

c.      Granting this application will prejudice the Respondent.

d.     The out of this application to set aside the award would be rendered nugatory if this court grants this application.

e.      It is in the interest of justice to refuse this application.

24. There is also a further affidavit dated 30/05/2025 and a reply address. We also adopt the reply address as our argument.

 

APPLICANT’S REPLY ON POINT OF LAW TO RESPONDENT’S WRITTEN ADDRESS

25. The Applicant in response filed a Reply on Point of Law and formulated a sole issue thus;

 

Whether having regard to the relevant laws, Rules and the fact that the Arbitral Award sought to be executed through this Application by the Applicant is currently being challenged by the Respondent, this Honourable Court ought to refuse this Application.

 

26. With respect to the sole issue distilled the Applicant states that the Subject matter of the Arbitral award, which determined the Severance Benefit, Gratuity, and entitlements of an Employee, is within the Exclusive jurisdiction of the NICN, by reason of which only the NICN has jurisdiction to enforce or set aside the Award.

 

THERE IS NO ORDER SETTING ASIDE THE AWARD OR A COMPETENT APPLICATION TO SET ASIDE THE ARBITRAL AWARD

 

27. The Respondent wants this Court to refuse to enforce the Arbitral Award dated 18^th December, 2024 on the ground that it has applied to set aside the Arbitral Award before the Federal High Court, Lagos Division. The Respondent’s ground for the refusal of the award above is not supported by law and cannot be the basis for the grant of this application because; The application for the enforcement or setting aside of the Arbitral Award is within the exclusive Jurisdiction of the National Industrial Court. The Court can only refuse recognition of the Arbitral Award under this head if there is an order of court setting aside the Arbitral Award. See Section 58 (2) (viii) of the AMA 2023. The Application to set aside the Arbitral Award is incompetent as it is filed in a Court which lacks jurisdiction over the subject matter and cannot be relied upon to refuse the enforcement of the award.

 

NATIONAL INDUSTRIAL COURT OF NIGERIA HAS JURISDICTION OVER THE SUBJECT MATTER OF THE AWARD

 

28.  It is the position of the Respondents that the determination of the gratuity, severance Benefits and other entitlements of the Applicant is an employment-related matter that is within the exclusive jurisdiction of the NICN under Section 254C of the Constitution of the Federal Republic of Nigeria 1999 as amended. The enforcement or setting aside of the said award is a matter incidental thereto or connected to the award on the said employment issue, over which the NICN has exclusive jurisdiction. By reason of the exclusive jurisdiction of the NICN over the subject matter of the award aforesaid, this Court is vested with Jurisdiction to enforce or set aside the Award dated 18^th  December, 2024, which determined the Applicant’s benefit aforesaid. He referred the Court to Order 17 Rules 15 (3), NICN Rules 2017 and stated that by reason of the above, the Application to set aside the award filed by the Respondent at the Federal High Court is incompetent and cannot be relied on, because the NICN is the court with exclusive jurisdiction to hear all applications relating to the subject matter of the Arbitral Award. He placed reliance on Section 254C (1) (a) CFRN 1999 and Salami v NJC (2014) LPELR-22774 (CA).

 

NO VALID COURT ORDER SETTING ASIDE THE AWARD:

 

29. That it is undisputed that this Court will only refuse recognition and enforcement of an Arbitral Award if the said award has been set aside. The Applicant has not tendered by order or judgment of a Court setting aside the Arbitral Award and by reason of the above, the Respondent has not fulfilled the condition for the Court to refuse the recognition and enforcement of the Arbitral Award. He stated further that the Respondent’s Application before the Federal High Court cannot revoke the exclusive jurisdiction of this Court conferred under Section 254C of the Constitution of the Federal Republic of Nigeria. That the Law is that where the provision of an Act contradicts or is inconsistent with the provision of the Constitution, that Act, to the extent of such irregularity, is declared null and void and the Constitution must prevail. He relied on the case of Ogiefov. Isesele & Ors [2014] LPELR-22333 (Pp. 69-70 Paras E-B); Musa & Ors v. INEC & Ors [2002] LPELR-11119 (Pp. 77-79 Paras A-C).

 

30. That clearly, the Arbitration and Mediation Act 2023 cannot supersede the provisions of the Constitution. This Court, therefore, has exclusive Jurisdiction to enforce or refuse the award, and in the absence of a competent application before this Court to set aside the Award, the Court is duty-bound to enforce the Arbitral Award. In conclusion the Applicant states that the NICN is vested with exclusive jurisdiction over the subject matter of the award, and it is the only Court with Jurisdiction to enforce or set aside the Award. That the Application to set aside the Award filed at the NICN is incompetent and cannot be the basis for refusing the motion to enforce the Award and that there is no Order of Court setting aside the Award, therefore, this court is duty-bound to exercise its exclusive Jurisdiction to recognize and enforce the Arbitral Award dated 18^th December, 2024.

 

31. The Defendant/Respondent Counsel also filed a Motion on Notice dated 24/03/2025 and filed on the 26/03/2025 seeking for an Order:

1.     AN ORDER of this Honourable Court refusing recognition and enforcement of the Arbitral award dated 18^th December, 2024 on the ground that a party to the arbitration agreement was under some legal incapacity to enter into the agreement.

2.     AN ORDER of this Honourable Court refusing recognition and enforcement of the Arbitral Award dated 18^th December, 2024 on the ground that the arbitration agreement was not valid under the law to which it was applied.

3.     AN ORDER of this Honourable Court refusing recognition and enforcement of the Arbitral Award dated 18^th December, 2024 on the ground that an application to set aside same has been filed and same is currently pending.

4.     AND FOR SUCH OTHER ORDERS as this Honourable Court may deem fit to make in this circumstance.

The ground upon which the application is predicated are;

1.     A party to the arbitration agreement was under some incapacity i.e. non-juristic.

2.     The arbitration agreement is not valid under the law to which it was subjected.

3.     There is a pending application to set aside the Award on diverse ground pending before the court.

4.     It is in the interest of justice to grant this application.

 

WRITTEN ADDRESS IN SUPPORT OF THE MOTION ON NOTICE

32. Counsel formulated a sole issue that calls for the determination of this application by this Court viz:

Whether having regard to the fact and circumstances of this application, the discretionary power of your Lordship ought not to be exercised in favour of the Applicant by granting this application.

33. Counsel submitted that the grant and/or refusal of an application of this nature is at the discretion of this court which must be exercised judicially and judiciously taking into consideration the material placed before this Court. He equally submitted that Section 32 of the Arbitration and Conciliation Act, 2004 and Section 58 (1) of the Arbitration and Mediation Act, 2023 allows an application of this nature.  In the instant case, the applicant is a party to the Gratuity Trust Deed (exhibit NERC1) and an award has been wrongly delivered against it by the arbitral tribunal. Counsel prays this court to hold that this application is properly brought under the provision of Section 32 of the Arbitration and Conciliation Act, 2004 and Section 58 (1) of the Arbitration and Mediation Act, 2023. Counsel submit further that this Court is statutorily empowers to refuse recognition of arbitral award in the instance provided under section 58 (2) and (3) of the Arbitration and Mediation Act, 2023.  That the above provisions of Section 58 of the Arbitration and Mediation Act, 2023 that the Trustee with which the applicant entered into the Gratuity Trust Deed (exhibit NERC1) which contain the arbitration clause was adjudged by the Arbitral Tribunal at paragraph 6.4 at page 12 of the Award (Exhibit NERC2) not to be juristic having not been registered. Flowing from the above, the said Trustee having not been so registered cannot validly enter into Gratuity Trust Deed as done. He referred the Court to the case of Afolabi & Ors v. Western Steel Works Ltd & Ors [2012] LPELR-9340 (SC) P. 22, Paras C-D  and stated that the above principle applies in the instance case as the provisions of Section 58 (2) (a) (i) of the Arbitration and Mediation Act, 2023 applies. The Applicant by paragraphs 7, 8 and 9 of the Affidavit in support of this application deposed to the fact of legal incapacity of the Trustee that entered into the Gratuity Trust Deed. Counsel prays this court to hold that the provisions of Section 58 (2) (a) (i) of the Arbitration and Mediation Act apply. It is also the submission of Counsel that one of the objective of Arbitration which could be seen from the provisions of Section 1 of the Arbitration and Mediation Act there must be an agreement of parties to submit to arbitration and that such agreement binds parties to it inter se, in the instance case, the Respondent was not a party to the agreement upon which he initiated the arbitral proceeding that culminated to the award of 18^th December, 2024 sought to be recognized and enforced against the applicant. Therefore, it is against the objective of both Arbitration and Conciliation Act, 2004 and Arbitration and Mediation Act 2023 for a non-party to an arbitration agreement to execute same. This therefore qualifies under Section 58 (2) (a) (ii) of the Arbitration and Mediation Act, 2023 and he urge this Court to so hold.

 

34. Counsel submit further that the applicant by paragraphs 12, 13, 14 and 15 of the affidavit in support of this application, deposed to the fact that it filed an Originating Motion dated 10^th March, 2025 on the 13^th March, 2025 (exhibit NERC3) before the Federal High Court, Lagos seeking the Court to set aside the award of 18^th December, 2024 and that same has been assigned to Hon. Justice Faji which has been given 19^th April, 2025. Recognizing or enforcing the award while an application to set aside same is pending will be prejudicial and render the outcome of exhibit NERC 3 nugatory. He referred the Court to the provisions of Section 58 (3) of the Arbitration and Mediation Act, 2023 and pray the Court to grant this application same having been brought in compliance with the provisions the Arbitration and Mediation Act, 2023. In conclusion, Counsel urge this Court to grant this application because the arbitration agreement is under legal incapacity, i.e. non-juristic, the arbitration agreement was not valid under the law of Nigeria, there is a pending application to set aside the award and that it is in the interest of justice to grant this application

[

WRITTEN ADDRESS IN OPPOSITION TO THE APPLICANT'S MOTION FOR REFUSAL OF RECOGNITION OF ARBITRAL AWARD DATED 18^TH DECEMBER 2024.

35. The Respondent formulated sole issue for the Court’ determination that viz;

Whether the Applicant has fulfilled the conditions under section 58 of the Arbitration and Mediation Act 2023 and is entitled to the favourable exercise of the court’s jurisdiction.

 

36. The Respondent states that the unchallenged and undisputed Arbitral Award of 18^th December, 2024 is binding and by law should be recognized and enforced as a judgment of the National Industrial Court. That the facts deposed to in the affidavit show that; The Respondent was appointed a Commissioner of NERC for a term of five years by letter dated 29^th May 2010. By letter dated 1^st September, 2015, the Respondent resigned as Commissioner of NERC and gave the statutory three-month notice required under Section 37 (a) Electricity Power Sector Reform Act) and upon resignation, his gratuity, severance benefits, and entitlements were not paid as provided by law.

 

THE ARBITRATION AND THE ARBITRAL AWARD DATED 18^TH

 DECEMBER, 2024

 

37. That the Arbitration Clause Under the GTFD: Clause II of the Gratuity Trust Fund Deed provides that parties must submit all disputes arising therefrom to Arbitration and that pursuant to the above provision, the Respondent by a Notice of Arbitration dated 9^th March, 2022 but later replaced by an amended Notice of Arbitration dated 24^th May, 2024, submitted to the Arbitral Tribunal pursuant to Clause 11 of the Gratuity Trust Fund Deed, the Respondent sought the determination of the Gratuity, Severance Benefits, and other entitlements due to him.

 

THE ARBITRAL TRIBUNAL COMPRISING MR. KAYODE SOFOLA, SAN, MR. SEYI SOWEMIMO, SAN, AND SENATOR VICTOR NDOMA-EGBA OFR, CON, SAN, DELIVERED THEIR FINAL ARBITRAL AWARD ON 18^TH DECEMBER, 2024, and granted the following reliefs in favour of the Respondent, to wit;

“a)      One-time payment of 120% gross annual remuneration at the end of the term in the sum of N86,943,084.

b)       Full payment for debarment of sectoral engagement for years (2015-2016) and (2016-2017) in the sum of N144,905,140.

c)        Transport/Relocation allowance at 50% of annual gross salary in the sum of N36,226,285

d)       Medical Care for years (2015-2016) and (2016-2017) in the sum of N36,226,285

e)        Vacation for 2 years (2015-2016) and (2016-2017) in the sum $110,000

f)         Unpaid Salaries for the months of June, July, and August 2015 in the sum of N18,113,142.48

g)       These reliefs are of course, subject to the legitimate deductions on which issues were not joined or evidence led in this arbitration, inclusive of payments that have been in respect of the reliefs listed in the claim.”

Respondent states that the GTFD was created by NERC, and the Trustees were all appointed by NERC. In fact, the NERC paid part of the Applicant/Respondent’s Severance benefits and gratuity from the GTF account maintained with ARM Pension.

 

            GROUNDS/CONDITIONS FOR REFUSAL OF RECOGNITION OF AN ARBITRAL AWARD:     

38. The Respondent/Applicant seeks the refusal of recognition of the Award on the following grounds;

a.      that a party to the arbitration was under some legal incapacity to enter into the GTFD.

b.     that the Arbitration agreement was not valid under the law to which it was applied.

c.      That it has filed an application to set aside the Arbitral Award.

            Section 58(2) of the Arbitration and Mediation Act 2023, clearly   stipulates the grounds upon which the court may refuse recognition of an Arbitral Award. The section provides as follows:

       “58. 1) A party to an arbitration agreement may request the Court to                           refuse recognition or enforcement of the award.

  2)      Irrespective of the country in which the award was made, the  Court may Only refuse recognition or enforcement of an   award (a) at the request of the party against whom it is invoked, if that party furnishes the Court with proof that

i     a party to the arbitration agreement was under some incapacity,

ii    the arbitration agreement is not valid under the law to which  the parties have indicated should be applied, or that the

iii  arbitration agreement is not valid under the law of the country where the award was made,

iv  the party against whom the award was invoked was not proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise not able to present his case,

v    the award deals with a dispute not contemplated by or does not  fall within the terms of the submission to arbitration,

vi  the award contains decisions on matters which are beyond the scope of the submission to arbitration, so however that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced,

vii the composition of the arbitral tribunal, or the arbitral procedure was not in accordance with the agreement of the parties, where there is no agreement between the parties under sub-paragraph (vi), that the composition of the arbitral tribunal, or the arbitral procedure, was not in accordance with the law of the country where the arbitration took place, or

a.      the award has not yet become binding on the parties or has been

b.     set aside or suspended by a court of the country in which, or under

c.      the law of which the award was made. Or aside or suspended by a

d.     court of the country in which, or under the law of which, the award

e.      was made; or

(b) where the Court finds -

            (i)  the subject matter of the dispute is otherwise not

                 capable of settlement by arbitration under the laws of

                 Nigeria, or

(ii)  that the award is against public policy of Nigeria.

(3)      Where an application to set aside or suspend an award has been made to a court referred to in subsection (2)(a)(viii), the Court before where recognition or enforcement is sought may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.

 

THE GTFD IS VALID AND NEITHER NERC NOR THE TRUSTEES OF THE GTFD WERE UNDER ANY LEGAL INCAPACITY.

 

39. The Trust Deed made on 7^th May, 2015, which created the Trust Fund was established by NERC as a Saving Scheme into which regular contributions, determined by accurate actuarial valuations, were made for each NERC staff and Commissioners. They were held in Trust by Trustees all appointed by NERC. NERC, which appointed the Trustees under Article 6 of the Trust Deed, now seeks to raise the technical objection that the Trustees it so appointed and failed to register were incapable of entering into the agreement giving rise to the arbitration. The Respondent’s case against the NERC, his erstwhile employers, will not be defeated by the issue of the Trustees of the GFTD's non-juristic personality. This is because substantial justice takes precedence over technicality. He relied on the case of Akporehe & Ors v. Agbaisi & Ors [2023] LPELR-60833 (CA) AG Bendelv. Aideyan [1989] LPELR-3158 (SC) or [1989] 4 NWLR (Pt.118) 1056 681. From the deposition in the counter affidavit, it is undisputed that; a) NERC created and established the Trustees of the GFTD. b) NERC failed to register the Trustees and the Deed in line with the extant laws. NERC, having failed or neglected to perform its responsibility of registering the Trust Fund, cannot now be allowed to benefit from its failure in this regard by using such a defence, and utilizing its failure to register the trustees to avoid liability. The Court in the case of Ibrahim v. Osunde & Ors [2009] LPELR- 1411(SC) held that no one shall be allowed to benefit from his own wrongdoing. The time-honored principle is that:

 

"No one can or shall take advantage of his own wrongdoing, in the maxim "NULLUM COMMODUM CAPERE POTEST DE INJURIA SUA PROPRIA EX TURPI CAUSA NON ORITUR ACTIO." Lord Widgery put this proposition in glowing language, when in BUSWELL VS. GODWIN (1971) 1 ALL E.R 421 he said and we quote: "The proposition that a man will not be allowed to take advantage of his own wrong is no doubt a very salutary one and one which the Court would wish to endorse". Let me say that no polluted hand shall be allowed to touch the pure fountain of justice. One shall not have a right of action when one comes to a court of justice in an unclean manner." Per ADEREMI, J.S.C (Pp. 30-31 paras. E).

 

He also referred the Court to the following cases: Teriba v. Adeyemo [2010] LPELR-3143 (Pp24-25 paras D-A) and FBN PLC & Anor v. Usman [2024] LPELR-62313(CA) PDP v. Ezeonwuka [2017] LPELR (42563) 1 @ 105, Tonimas (Nig) Ltd v. Chigbu [2020] LPELR (50633) 1@ 18-19, Civil Design Construction (Nig) Ltd v SCOA (Nig) Ltd [2007] LPELR (870) 1 @78 and Ogunpehin v Nucleus Venture [2019] LPELR (48772) 1 @24 (P.16 Para. A).

 

40. That NERC is thereby estopped from using the defense of non-juristic personality of the Trustees to avoid liability of making payment to the Applicant/Respondent. Further, it is on record that Senior Counsel for NERC had also represented earlier the 2^nd Respondents in these proceedings for a while before withdrawing her representation. H continued and stated that it is also undisputed, that the NERC paid N93,646,075.80 to the Respondent from the Gratuity Fund account with ARM Pension. This is clear admission that the NERC created and operates the fund and cannot hide under its failure to register the Trustee to avoid liability. Consequently, by reason of the above, the Trust deed under which the Arbitration was conducted is valid and the NERC failure to register the trustees cannot be the basis for the refusal of the enforcement of the Arbitral Award. NERC cannot be allowed to benefit from its own wrong, to deprive an employee the benefits due to him as rightly held by the Arbitral Panel at pages 13 to 15 of the Arbitral Award of 18^th December, 2025.

 

THERE IS NO ORDER SETTING ASIDE THE AWARD OR A COMPETENT APPLICATION TO SET ASIDE THE ARBITRAL AWARD

 

41. Furthermore, the Applicant wants this Court to refuse to recognize the Arbitral Award dated 18^th December, 2024 on the ground that it has applied to set aside the Arbitral Award before the Federal High Court Lagos Division on the ground that it is not supported by law and cannot be the basis for the grant of this application because; The application for the enforcement or setting aside of the Arbitral Award is within the exclusive Jurisdiction of the National Industrial Court. That the Court can only refuse recognition of the Arbitral Award under this head if there is an order of court setting aside the Arbitral Award. See: Section 58 (2) (viii) of the AMA 2023. The Application to set aside the Arbitral Award is incompetent as it is filed in a Court which lacks jurisdiction over the subject matter and cannot be relied upon to suspend the award.

 

NICN HAS JURISDICTION OVER THE SUBJECT MATTER OF THE AWARD

 

42. The Respondent says that the determination of the gratuity, severance benefits and other entitlements of the Applicant, is an employment-related matter that is within the exclusive jurisdiction of the NICN under Section 254C of the Constitution of the Federal Republic of Nigeria 1999 as amended. The enforcement or setting aside of the said award is a matter incidental thereto or connected to the award on the said employment issue, over which the NICN has exclusive jurisdiction. That by reason of the exclusive jurisdiction of the NICN over the subject matter of the award aforesaid, this Court is vested with Jurisdiction to enforce or set aside the Award dated 18th December, 2024, which determined the Applicant’s benefit aforesaid. In furtherance of the above and by the power vested in the NICN under section 254 (c) CFRN; Order 17 Rules 15 (3), NICN Rules 2017 clearly provide that“An award made by an Arbitral Body in a matter within the jurisdiction of the Court may by leave of the court be enforced in the same manner as a judgment or order of the Court”

 

43. By reason of the above, the Application to set aside the award filed by the Applicant at the Federal High Court is incompetent and cannot be relied on, because the NICN is the court with exclusive jurisdiction to hear all applications relating to the subject matter of the Arbitral Award. He relied on Section 254 C (1) (a) CFRN 1999 and Salami v NJC (2014) LPELR-22774 (CA).

 

NO VALID COURT ORDER SETTING ASIDE THE AWARD

 

44. It is undisputed that by the clear wording of Section 58(2)(a)(viii)of the Arbitration and Mediation Act, 2023, the Court will only refuse recognition of enforcement of an Arbitral Award if the said award has been set aside. That the Applicant has not tendered by order or judgment of a Court setting aside the Arbitral Award consequently, the Applicant has not fulfilled the condition for refusing recognition and is not entitled to the reliefs sought. That the Applicant, who had submitted to arbitration, now seeks to resort to a technicality to ensure that the Respondent is not paid his entitlement after years of service. The court is humbly urged to disregard this antic and enforce the Arbitral Award dated 18^th December, 2024. In conclusion and by reason of the matters aforesaid, the Respondent states that NERC was a party to the Trust Deed and created and established the Trustees of the Gratuity Trust Fund and NERC failed to register the Trustees of the Gratuity Trust Fund and cannot be allowed to rely on its failure to register the Trustees under CAMA to avoid liability, and it cannot be a ground for the refusal of recognition of the award. The NICN is the court vested with jurisdiction under section 254C CFRN 1999 and Order 17 Rules 15(3) NICN Rules, 2017 to hear and determine all applications to enforce and set aside the Arbitral Award of 18^th December 2024. There is no valid court order setting aside the award, which can be the ground for the refusal of recognition of the Arbitral Award. He therefore urge the Court by the reason of the above to refuse and dismiss the application, to refuse the recognition of the Arbitral Award dated 18^th December, 2024.

            COURT’S DECISION

45. I have listened to the submissions of counsels and also taken my time to painstakingly read and study the reliefs sought; the affidavits and the written briefs filed accompanying the processes. The issue to my mind for determination is:

Whether by law this court can recognize and enforce the Arbitral Ward of 18^th December, 2024 in light of the application to refuse the recognition and enforcement of the Award

46. Black's Law Dictionary, 8th edition, defines "arbitration" as a method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding. The neutral third party is usually the arbitrator. See NNPC v. Lutin Investments Ltd. & Anor. [2006] 2 NWLR (Pt. 965) 506; Magbagbeola v. Sanni [2005] 11 NWLR (Pt. 936) 239; Kano State Urban Devt. Board v. Fanz Const. Co. Ltd. [1990] 4 NWLR (Pt.142) 1.

 

47. A major feature of arbitration is that it is consensual. The parties have a choice. They may decide to have their dispute resolved by a Court of law or they may choose to have it decided by an arbitrator. See Ras Palgazi Const. Co. Ltd. v. F.C.D.A. [2001] LPELR-2941(SC). Where they opt for arbitration, the parties are free to choose how the arbitration is conducted, including the law that guides the process, provided that the procedure and the law agreed upon are not against public policy. The duty of the Court is to respect and pronounce upon the wishes of the parties and not to make a contract for them or rewrite the one they have already made for themselves. See Mainstreet Bank Capital Ltd & Anor v. Nigeria Reinsurance Corporation Plc [2018] LPELR-44905(SC); JFS Investments Ltd. Vs Brawal Line Ltd. & Ors. [2010] 18 NWLR (Pt.1225) 495; Sona Breweries Plc. Vs Peters [2005] 1 NWLR (Pt.908) 478; Owoniboys Tech. Services Ltd. Vs U.B.N. Ltd. [2003] 15 NWLR (Pt.844) 545.

 

48. The substance of the Applicants reliefs is basically for this court to recognize and enforce the arbitral award. Usually, arbitration instruments often use the words “recognition” and “enforcement” in the conjunctive sense as if they are always inextricably linked. However, I must state that this is not necessarily so because these terms provide entirely distinct reliefs that need not be collectively sought. Essentially, recognition upholds the legal force and effect of an award without necessarily enforcing it. Enforcement, on the other hand, entails applying legal sanctions as are available to compel the party against whom it was made to carry it out. So, it acts as a sword in the sense that it not only recognizes the legal force and effect of the award but ensures that it is performed. If a court is prepared to enforce an award, it follows that it necessarily recognizes the award as valid and binding upon the parties, so against this backdrop recognition is said to be a necessary part of enforcement as the award has to be recognized by the courts, to be enforced. The Court of Appeal in a recent judgment took time to espoused these elements which are germane in the matters that deals with arbitration in law. In the case of ECOBANK v. Admiral Environmental Care Ltd & Ors [2021] LPELR-56130(CA) @ Pp. 54-57 the Court of Appeal had this to say:

 

"... As stated hereinbefore, the principle of party autonomy emphasizes the liberty of parties to define and agree on the 'rules of the game'. It is therefore crucial that a Court called upon to recognize and enforce an arbitral award ought to be reasonably assured, nay satisfied, that the composition of the arbitral Tribunal as well as the arbitral procedure adopted by the Tribunal is in consonance with the agreement of parties. Non-observance of this basic requirement is a potent ground for setting aside an arbitral award (Ss. 29, 30 and 48(a)(vi) ACA) as well as refusal of recognition or enforcement of an award (Ss. 31, 32, 51 and 52(2)(a) (vi) ACA). To my mind, the rationale behind S. 31 (2) ACA, which enjoins a party relying on an award or applying for its enforcement to supply the authenticated original of the award and the arbitration agreement is not for the enforcing Court to review the merits of the award, but for the Court to be satisfied that the applicant's request for recognition and enforcement represents "the true state of affairs". It would seem that an applicant who supplies the documents required in S. 31(1) ACA has obtained a prima facie right to recognition and enforcement of the award. Nevertheless, the Court's role in the scheme of recognition and enforcement of an arbitral award is not that of a mere rubber stamp. Notably, S. 52(2)(b) empowers the Court to refuse recognition or enforcement on its own motion on arbitrability and public policy grounds. Jowitt's Dictionary of English Law (2nd ed.) defines public policy as "[t]he principles under which freedom of contract and private dealings are restricted by law for the good of the community". See MACAULAY v R. Z. B. OF AUSTRIA (1999) LPELR-13079(CA) 1 at 15. Although public policy is said to be "a very unruly horse, and when once you get astride it you never know where it will carry you..." [see RICHARDSON v MELLISH (1824) 2 Bing. 252 -per Burrough, J], as well as "a variable quantity that varies with the habits, capacities and opportunities of the public" [see DAVIES v DAVIES (1887) L. R. 36 C. D. 364 - per Kelewich, J., and EGERTON v EARL BROWNLOW, 4 H. L. C. 1], it is nevertheless a crucial, if not decisive, consideration in an application to recognise and enforce an arbitral award (whether domestic or international). Thus, where it appears on the face of an award for instance, that the composition of the arbitral Tribunal or the arbitral procedure adopted was not in accordance with the arbitration agreement upon which it is anchored and/or the intendment of the law that provides the legal framework for the arbitration (lex arbitri), the Court ought ex debito justitiae to refuse recognition or enforcement of the award on the ground that the same is contrary to public policy irrespective of whether the enforcement application is opposed or unopposed. I reckon that the Court's duty to balance the principle of preserving the finality of arbitration with the imperative to safeguard the integrity of arbitration as a veritable alternative dispute resolution mechanism is undoubtedly a public policy matter of supreme importance in Nigeria."

 

49. The facts of this case which are never in dispute by the parties are put succinctly by the claimant in his affidavit in support of the originating Motion on Notice. The facts are that the Applicant was appointed a Commissioner in the Nigerian Electricity Regulatory Commission (NERC) for a term of five years by letter dated 29^th May 2010. But by a letter dated 1^st September, 2015, the Applicant resigned his appointment as provided under the establishment Act of the Respondent. However, after resignation applicant’s gratuity, severance benefits, and his entitlements were not paid to him by the Respondent despite demands. Sequel to this development, the applicant filed a complaint dated 12^th January, 2021 in this court against NERC and the trustees of Gratuity Trust Fund Deed (GTFD) for the determination of his Gratuity, Severance benefits and other entitlement payable to him. This court: coram Oyewumi J. (now Justice of the Court of Appeal) referred the matter to Arbitration pursuant to Clause 11 of the Gratuity Trust Fund Deed (GTFD) which provides that parties must submit to arbitration all disputes.

 

50. By an amended Notice of Arbitration dated 24^th May, 2024, applicant sought the determination of the Gratuity, Severance Benefits, and other entitlements due to him. The Arbitral Tribunal comprising Mr. Kayode Sofola, SAN, Mr. Seyi Sowemimo, SAN, and Senator Victor Ndoma-Egba OFR, CON, SAN, delivered their final arbitral award on 18^th December, 2024, and granted the following reliefs in favour of the Applicant now sought to be recognized and enforced in this proceeding.

 

51. The Respondent in his defense, while opposing the enforcement of the award contended that this court should refuse to recognize and enforce the Arbitral Award dated 18^th December, 2024 on the ground that it has applied to set aside the Arbitral Award before the Federal High Court, Lagos Division as provided under the Arbitration and Mediation Act 2023 and Arbitration and Conciliation Act, 2004. Now, a closer look at the relevant provision of the law under which applicant initiated this proceeding, which is Order 17 Rules 3 and 15 of the Rules of this court, the Rules provide thus:

 

Rules 3 (1) “Every notice to enforce an arbitral award shall state the grounds of the application and where any such motion is founded on evidence by affidavit, a copy of the affidavit shall be served with the notice of motion.

(2) The party relying on an award on applying for its enforcement shall supply a certified true copy of the award.

(3) An award made by an arbitrator may, by leave of the Court, be enforced in the same manner as a judgment or order of Court.”

Rules 15 (1) “Every application to enforce a binding arbitral award made by an Arbitral Body shall state in general terms the grounds of the application and where any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion.

(2) The party relying on a binding award or decision or ruling or recommendation made by an Arbitral Body shall sufficiently supply duly certified true copies of the award or decisions or recommendation.

(3) An award made by an Arbitral Body in a matter within the jurisdiction of the Court may, by leave of the Court, be enforced in the same manner as a judgment or order of the Court.”

52. It is worth noting that the Applicant initiated this proceeding by way of a Motion on Notice supported by an affidavit deposed to by the applicant. The applicant annexed to the affidavit the Respondent Gratuity Fund Trust Deed, marked as Exhibit A1; the Arbitral Award marked as Exhibit B; and Solicitor’s letters of satisfaction of Arbitral Award to Applicant marked as Exhibits C and C1 respectively. From the foregoing, it is clear that the requirements for a party wanting to enforce an arbitral award, the party must provide: 1) the arbitration agreement; 2) the original award; and 3) a statement of non-compliance showing that the award has not been complied with.

 

53. As noted above, respondent is opposing the enforcement of the award because respondent has filed an application at the FHC Lagos to set aside the arbitral award. It is the Respondent’s argument that section 29 of Arbitration and Conciliation Act gives the right to challenge Arbitral Award by way of application to set aside the award against whom the said award was given. Counsel went further to submit that the Arbitration and Conciliation Act by Section 57 thereof defines ‘Court’ to include the Federal High Court, the State High Court and the High Court of Federal Capital Territory only. Also, that section 91 of the Arbitration and Mediation Act, 2023 defines ‘Court’ to include Federal High Court, the State High Court and the High Court of Federal Capital Territory. Counsel therefore submitted that having filed the application to set aside at the FHC Lagos within the 3 months requirement under section 55 (4) of the Arbitration and Mediation Act of 2023, this application deserve to be set aside.

 

54. I have earlier set out the provision of the law under which this application was brought and gave a brief background of the facts that gave birth to reliefs being sought by the applicant. What perhaps is pertinent here is whether in light of section 57 ACA, 2004 and section 91 AMA 2023 this court is usurp of jurisdiction to entertain this application as it is not a court known to the establishment Acts dealing with Arbitral Awards.

 

55. There is no denying the fact that applicant was an employee of the respondent and decided to resign at his instance in accordance with section 37 (a) of the Electricity Power Sector Reform Act. The applicant is now claiming the fruit of his Arbitral Award in the form of gratuity, severance benefits as found by the arbitration body. It follows therefore that it will be safe for one to conclude that this suit stricto senso relates to and or connects with “any labour, employment… and matters arising from workplace.” For the avoidance of doubt, the provision of section 254C (1) of the Constitution, specifically section 254C (1) (a) (j) and (k) provides thus:

 

“Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

(a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;

(j) relating to the determination of any question as to the interpretation and application of any- (iii) award or judgment of the Court;

(k) relating to or connected with disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto.”

 

56. It is commonplace that jurisdiction is a hard matter of law that can only be determined in light of the enabling statute of a court. The law is recondite that a Court of law cannot add to or subtract from the provisions of a statute from which it drives its jurisdiction. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a Court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A Court cannot do more than this. See The Vessel MT Sam Purpose (Ex Mt. Tapti) & Anor v. Bains & Ors [2021] LPELR-56460(CA); Diamond Bank v. Unaka & Ors [2019] LPELR-50350(CA); Anibi v. Shotimehin [1993] 3 NWLR (Pt 282) 461; Elelu-Habeeb v. Attorney General, Federation [2012] 13 NWLR (Pt 1318) 423; Madumere v. Okwara [2013] 12 NWLR (Pt 1368) 303; Opara v. Amadi [2013] 12 NWLR (Pt 1369) 512.Therefore, the primary function of the Court is to state the law and not to create a new law. It follows that where the words of a statute are clear and unambiguous, they must be applied using their ordinary, natural, or grammatical meaning. Section 254C (1) of the Constitution is clear and unambiguous. It is the intention of the draftsman to confer jurisdiction on this Court, to the exclusion of all other Courts with jurisdiction pursuant to Sections 251, 257 and 272 over the subject matter of the items listed thereunder.

 

57. In the case of NDIC v. Okem Enterprises [2004] 10 NWLR (Pt. 880) 107 AT 182 PARA. H, the Supreme Court defined the term "notwithstanding" and held as follows:

 

 

"When the term 'notwithstanding' is used in a section of a statute, it is meant to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfil itself. It follows that as used in Section 251(1) of the Constitution, no provision of that Constitution shall be capable of undermining the said section." Simply put, when the term "notwithstanding" is used in a clause of any statute, it is to be construed as a term of exclusion.”

 

58. And the Court Appeal in the case of Okekev. Securities And Exchange Commission & Ors [2013] LPELR-20355 (CA), in conflicting situations such as this had cause to held thus:

 "As the ultimate grundnorm, the 1999 Constitution, as amended is undoubtedly supreme, and takes over and above all other enactments in this country. Thus, if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail. And that other law shall, to the extent of the inconsistency, be void. See Section 1 (3) of the 1999 Constitution, as amended."

59. Going down memory lane, since the decision in Balewa v. Doherty [1963] 2 SCNLR 15, the Supreme Court of Nigeria has remained fully determined and consistent in its interpretation and application of Section 1 (3) of the 1999 Constitution as amended, and its pari materia equivalents in the 1963 and 1979 Constitutions. Undoubtedly, it goes to further prove that the Constitution of our Country is a living document that speaks for itself. The apex Court has also remained dogged that the Constitution, being the grundnorm is superior to all laws, and any law that is inconsistent with its provisions remains null, void and of no effect to the extent of the inconsistency. In recent times, the Supreme Court has decided so many cases in line with this vintage and ever-green constitutional law principle or norm. See Att. Gen. Of Abia State & 35 Ors v. Att. Gen. Of The Fed. [2002] 6 NWLR (PT. 763) 264; Att. Gen. Ondo State v. Att. Gen Federation [2002] 9 NWLR (Pt. 772) 222; and Fasakin Foods (Nig) Ltd v. Shosanya [2006] LPLER 1244 (SC). 46.

 

60. To put it differently, the Constitution of the Federal Republic of Nigeria is supreme and its provisions have binding force on all authorities and persons throughout the Federal Republic of Nigeria. Therefore, if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall to the extent of the inconsistency be void. See the case of Itsueli & Anor v. SEC & ANOR [2011] LPELR-4343 (CA).

 

61. Section 254C (1) (a) and (k) of the 1999 Constitution (as amended) gave this Court exclusive jurisdiction over employee wages and other labour related matters. It is also clear from the said provisions that an action founded on claims for unpaid gratuity, severance benefits and other entitlements falls outside the Federal High Court's jurisdictional competence. Section 57 ACA and section 91 AMA give the Federal High Court jurisdiction under those two legislations. In this regard, Section 57 ACA and 91 AMA which differed from Section 254C (1) of the Constitution conferring exclusive jurisdiction on the said subject matters on this Court are void to the extent of their inconsistency. See Oloruntoba-Oju v. Dopamu & Ors [2008] LPELR 2595. It follows therefore that the use of the word “Notwithstanding” as used in Section 254C (1) of the 1999 Constitution, connotes that no provision of the Constitution itself or any statute or legislation shall be allowed to prevail over the provisions and neither shall it be capable of undermining the said Section 254C (1). The provisions of Section 254C (1) (a) and (k) of the 1999 Constitution (as amended) in my humble view is undoubtedly to oust the jurisdiction of any other Court to adjudicate on matters listed therein.

 

62. Therefore, to answer the question as what determines the jurisdiction of a Court: it is hornbook law that the claimant’s claim determines the jurisdiction of a court. See the cases of Adeyemi v. Opeyori [1976] 9-10SC 31; Nkuma v. Odili [2006] 6 NWLR Part 977 page 587 @ 608; Ladoja v. INEC [2007] All FWLR Part 377     Page 934 @ 967 and Inakoju v. Adeleke [2007] All FWLR Part 353 page 3. And in the case at hand, the reliefs sought by the applicant are as a result of an employment relationship between the Applicant and the Respondent. It is Respondent’s failure to pay the outstanding benefits and entitlement due to applicant, its former employee, that gave birth to this suit. The Arbitral Award was the product of an arbitral body which applicant seeks this court to recognize and enforce. On this premise I find that the provisions of section 57 ACA, 2004 and section 91 AMA 2023 being inconsistent with section 254C (1) (a) and (k) CFRN 1999 as amended, the provisions are null and void to the extent of its inconsistency. It follows that the suit in Exhibit NERC 2 and referred to in paragraph 13 of the counter affidavit is therefore incompetent in the face of section 254C (1) of the CFRN 1999. Accordingly, I find that Respondent’s argument and submission in this regard lacks any legal basis and is hereby discountenance. This I so hold.

 

63. Having put the jurisdictional argument to rest, it follows that in light of the nature of the reliefs sought pursuant to Order 17 Rule 3 and 15, I find that Exhibits A1, B, C, and C1 having not been challenged in any way, indeed satisfied the legal requirements making this application competent and is hereby accordingly recognized and is therefore enforceable. This I so hold.

 

64. In what looks like a twist, the Respondent Counsel in the originating Motion also filed a Motion on Notice dated 24/03/2025 and filed on the 26/03/2025. To be able to get a full picture of the reliefs sought and for ease of reference, let me reproduce the reliefs.  The motion is seeking for the following Orders:

1.     AN ORDER of this Honourable Court refusing recognition and enforcement of the Arbitral award dated 18th December, 2024 on the ground that a party to the arbitration agreement was under some legal incapacity to enter into the agreement.

2.     AN ORDER of this Honourable Court refusing recognition and enforcement of the Arbitral Award dated 18th December, 2024 on the ground that the arbitration agreement was not valid under the law to which it was applied.

3.     AN ORDER of this Honourable Court refusing recognition and enforcement of the Arbitral Award dated 18th December, 2024 on the ground that an application to set aside same has been filed and same is currently pending. And for such other orders as this Honourable Court may deem fit to make in this circumstance.

 

65. Let me try to address an issue that appears to be glaring in this application. After a consideration of this Motion on Notice closely, what seems strange to this court is the manner the NERC (the Applicant in this motion) seems to be prosecuting this case. The Applicant in the originating motion, Mr. Eyo O. Ekpo, instituted this suit substantially seeking for recognition and enforcement of the Arbitral Award dated 18/12/2024 awarded by an Arbitral Tribunal vide his motion dated 17/03/2025 and filed on the 18/03/2025. The Respondent filed a counter affidavit and a written address urging the court not to recognize and enforce the Arbitral Award. As if this is not enough, the Respondent in the originating motion now again filed this application seeking this court to refuse recognition and enforcement of the arbitral award.

 

66. The question that readily comes to mind is whether this is a proper use of a judicial process. As is the case with most legal concepts, abuse of court process is not capable of any precise definition, and may be more easily recognized than defined. It is generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive; the abuse of legal procedure or the improper use or misuse of the legal process to vex or oppress the adverse party. See Amaefule v. The State [1988] 2 NWLR (Pt. 75) 156 at 177 and Arubo v Aiyeleru [1993] 3 NWLR (Pt. 280) 126 @ 142I. I must express my reservation here because to my mind, the Motion on Notice filed by the Respondent after the originating motion is not born out of the use of the court process properly. We need not say this enough and or be-labour this, that abuse of court process usually not only undermines the administration of justice but even the rule of law. See Ukachukwu v. PDP [2014] 4 NWLR (Pt. 1396) 65. It follows that when an abuse of court process occurs, the courts do not take it lightly, as it is not a mere irregularity, it is a fundamental vice punishable by dismissal of the offending process. See also A.-G., Anambra State v. U.B.A. [2005] 15 NWLR (Pt. 947) 44; Arubo v. Aiyeleru [1993] 3 NWLR (Pt. 280) 126; Saraki v. Kotoye [1992] 9 NWLR (Pt. 264) 156; Ali v. Aibishir [2008] 3 NWLR (Pt. 1073) 94; Umeh v. Iwu [2008] 8 NWLR (Pt. 1089) 225.

 

67. In the instant application, there is no contention that the motion seeking to refuse recognition and enforcement is an abuse of court process. This is more so because this was the substance of applicant’s argument in his counter affidavit to the originating motion and his written address. I pause to ask: should this court assume that this is a mere irregularity? Assuming without conceding that it is so, I find that this is an irregularity of the calibre of abuse of court process as it is not an ordinary irregularity, but is one that touches on the competency of the action vis-a-vis the jurisdiction of the court to hear it. In view of the foregoing, it goes without saying that the Motion dated 24^th day of March, 2025 and filed on the 26/03/2025 is nothing but an abuse of the process of this court and accordingly I am left with no option than to have it dismissed. This I so hold.

 

68. In any event, should this Court be wrong in drawing this conclusion, let me proceed to consider the Motion on the merit. Having gone through the accompanying processes in support of the motion and also the respondent’s counter affidavit; the first argument put forward by the applicant in support of this application is that by virtue of section 58 of the Arbitration and Mediation Act, 2023 and section 32 ACA, the Trustee with which the applicant entered into the Gratuity Trust Deed (Exhibit NERC 1) which contain the arbitration clause was adjudged by the Arbitral Tribunal at paragraph 6.4 at page 12 of the Award (Exhibit NERC 2) not to be juristic a person having not been registered. Flowing from the above, the said Trustees cannot validly enter into Gratuity Trust Fund Deed as done in this case. In responding to this argument counsel to the Respondent in this application refuted the argument insisting that it is a technicality that is being waived by applicant to defeat the substance of this suit.

 

69. I have had cause not only to review the affidavits in this suit, but also studied Exhibit B which is the Award of the Arbitral Tribunal. This same issue was raised before the arbitration panel and the same argument was canvassed. See pages 11-14 and paragraphs 6.4 – 6.14 of Exhibit B. It is clear from the facts before this court that it is the applicant, NERC, that created the Gratuity Trust Fund Deed, a devise to prepare for the contingent and independent liability of the of commissioners, staff and aides to the commissioners who are eligible. However, I find as a fact that the applicant failed to take the appropriate steps to register the Trustees of the Gratuity Trust Fund Deed in line with the provision of Company and Allied Matters Act (CAMA). The question in this circumstance that is begging for answer is whether the applicant having failed to do the needful can now be allowed to benefit from its failures in this regard by raising the argument that it is not a juristic person. It was ROMILY M.R who succinctly put it in Parkin v. Thorold [1852] 16 Beav 59 thus:

 

"Courts of equity make a distinction in all cases between that which is a matter of substance and that which is a matter of form; and if they found by insisting on the form, the substance will be defeated, they hold it to be inequitable to allow a person to insist on such form, and thereby defeat the substance." 

 

In the case of Senator Iyiola Omisore & Anor V. Ogbeni Rauf Adeson Aregbesola & Ors [2015] LPELR-24803 (SC) the Supreme Court gave a resounding opinion on the need to do substantial justice over technicalities. The Law lord said:

 

“Now, it is no longer in doubt that this court, and indeed, all courts, have made a clean sweep of the picture of the law and its technical rules triumphant, Aliu Bello and Ors v A. G. Oyo State (1986) 5 NWLR (pt 45) 528, 886. Let me explain. By its current mood, it is safe to assert that this court has, firmly and irreversibly, spurned the old practice where the temple of justice was converted into a forensic abattoir where legal practitioners, employing such tools of their trade like “the whirligig of technicalities,” daily butchered substantive issues in courts in their “fencing game in which parties engaged” themselves in an exercise of outsmarting each other, Afolabi v Adekunle [1983] 2 SCNLR 141, 150. Those days are gone: gone for good!”

 

70. It is of interest to note that the courts have for some time now laid down as guiding principle that it is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice. I can see that the attitude of the applicant here is to rely on his wrongdoing of deliberately refusing to register the trustees and use it to deny the respondent his entitlement. It is also this same applicant who has started paying the respondent part of these entitlements in the sum of ?96, 646, 075.80 on 01/02/2018 that is now arguing the legality of the arrangement. I find this very act of payment to be a clear admission that it is operating the Trust Fund in line with the provisions of the Deed. This implies that applicant has admitted being responsible to respondent and therefore liable to pay the respondent under the Trust Deed.

71. In situations such as the one at hand, in Mekwunye V. Imoukhuede [2019] LPELR-48996(SC) the Supreme Court did not minced word where the court held as follows:

 

".... 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 by conduct or representation.”

Per ABBA AJI, JSC (Pp. 20-23, paras. G-D):

“Nonetheless, the Respondent having submitted himself to the arbitration, he can no longer resile out of the decision simply because he is challenging the appointment of a sole arbitrator which he subscribed to."

 

72. In the case of Commerce Assurance Ltd. v. Alli [1992] 3 NWLR (Pt. 232) 710 @ 725 E - G, the court put bare the nature of arbitration proceedings and the court stated, inter alia:

"The underlying principle [of arbitration proceedings] 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 the 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 facts. Smith, L.J. reiterated the principle in Montgomery Jones & Co. Vs Libenthal (1898) 7 L.T. 406 where he stated at p. 408: "I for my part, have always understood the general role to be that parties took their arbitrators for better or worse both as the decision of fact and decision of law."

 

73. I find as a fact that the Applicant subscribed to the constitution of an arbitral body under Clause 11 and actively participated in the arbitration proceedings; therefore, the applicant is estopped from using the none registration of the trustees or using its failure to avoid liability of making payment to the Respondent based on the award of the Arbitral Tribunal. This I so hold.

 

74. Another argument put forward by the applicant is that the Respondent was not a party to the agreement upon which he initiated the arbitral proceeding that culminated to the award of 18^th December, 2024 sought to be recognized and enforced against the applicant. Therefore, it is against the objective of both Arbitration and Conciliation Act, 2004 and Arbitration and Mediation Act 2023 for a non-party to an arbitration agreement to execute same. I must restate that I have the opportunity of reading through the arbitration clauses under the Gratuity Trust Fund Deed (GTFD) and specifically, Clause 11 of the Gratuity Trust Fund Deed which provides that any person or persons interested in the Fund must submit all disputes arising therefrom to Arbitration. The clause specifically provides that:

 

“11. ARBITRATION

In case of any dispute or difference arising between any person or persons interested in the Fund (whether actually, prospectively or contingently) and the Trustees or the Employer regarding the interpretation or construction of any of these Rules or any rights or liabilities hereunder, such dispute or difference shall be resolved amicably between the parties failing which the dispute or difference shall be referred to arbitration by a panel of Arbitrator(s) to be appointed in accordance with the provisions of the Arbitration and Conciliation Act [Cap A 18] LFN 2004.”

 

75. Not only this, recital (a) of the Trust Deed provides that the aim of the Deed was the desire of the employer to establish a gratuity fund for the benefit of Commissioners, Staff and Commissioners aides. The law is trite that when the words used in a document are clear and unambiguous, this court is obliged to give them their ordinary meaning. See Incorp Trustees of United Visionary Youth of Nigeria v. Sukubo [2021] LPELR 52916 (CA). It is the law that no party not even the court possesses the power to add to or subtract from the clear content of a document. It is in unmistaken words that Clause 11 seeks to protect any person interested in the fund as provided in recital (a). To read it and give it the meaning submitted by counsel will be negating the true and plain meaning of the documents. I therefore find no merit in this argument and accordingly, this argument is hereby discountenance. I so hold. Applicant in another argument submitted that there is a pending suit before the Federal High Court Lagos seeking to set aside the Arbitral Award. I have before now taken the issue of the jurisdiction of this court and drawn conclusions in that regard. I have considered the reliefs in issue and held that the reliefs are within the exclusive jurisdiction of this court. See section 254C (1) (a) and (k) of the Constitution 1999 as amended. Therefore, any law that conflicts with section 254C (1) of the Constitution is null and void to the extent of its inconsistency as provided in section 1 (3) CFRN 1999 as amended. In this application the applicant is making a case that there is a substantive case pending at the Federal High Court, Lagos seeking to set aside this Award. Having therefore held that it is this court that is constitutionally vested with the exclusive jurisdiction to entertain the subject matter of this suit, the suit at Federal High Court, annexed as Exhibit NERC 3, is therefore incompetent and cannot usurp the jurisdiction of this court. This argument is hereby discountenance. This I so hold.

 

76. In all, having dismissed the Respondent’s Motion on Notice dated 24/03/2025 and filed on the 26/03/2025 and upheld the Applicant’s originating Motion on Notice dated 17/03/2025 and filed on 18/03/2025, this suit therefore succeeds only in terms of the following:

 

a.      An Order is hereby granted that the Final Arbitral Award under the Arbitration and Mediation Act 2023, delivered by the Arbitral Tribunal comprising of Mr. Kayode Sofola, SAN, Mr. Seyi Sowemimo SAN, and Senator Victor Ndoma-Egba OFR, SAN on 18^th December, 2024 is binding and enforceable as a judgment of this Court.

b.     Leave of court is hereby granted to the Applicant to enforce the Final Arbitral Award under the Arbitration and Mediation Act 2023, delivered by the Arbitral Tribunal comprising of Mr. Kayode Sofola, SAN, Mr. Seyi Sowemimo SAN, and Senator Victor Ndoma-Egba OFR, SAN on 18^th December, 2024 thereby becoming binding and enforceable as a judgment of this court.

c.      An Order of this court is hereby granted to enforce the Final Arbitral Award under the Arbitration and Mediation Act 2023, delivered by the Arbitral Tribunal comprising of Mr. Kayode Sofola, SAN, Mr. Seyi Sowemimo SAN, and Senator Victor Ndoma-Egba OFR, SAN on 18^th December, 2024. And to this effect the Respondent is hereby ordered to pay to the Applicant the following specific award to wit:

                                                                       i.      One-time payment of 120% gross annual remuneration at the end of the term in the sum of N86,943,084.

                                                                    ii.      Full payment for debarment of sectoral engagement for 2 years (2015-2016) and (2016-2017) in the sum of N144,905,104.

                                                                  iii.      Transport/Relocation allowance at 50% of annual gross salary in the sum of N36,226,285.

                                                                  iv.      Medical care for years (2015-2016) and (2016-2017) in the sum of N36,226,285.

                                                                     v.      Vacation for 2 years (2015-2016) and (2016-2017) in the sum of $ 110,000.

                                                                  vi.      Unpaid salaries for the months of June, July, and August 2015 in the sum of N18,113,142.48.

d.     In addition to the above orders granted, an order is also hereby granted that the reliefs granted by this court in monetary terms are subject to legitimate deductions by the Respondents on which issues were not joined or evidence led in the arbitration, inclusive of payments earlier made that have been in respect of the reliefs listed in the claim.

 

77. Ruling is hereby entered. Cost of ?200,000.00 is hereby awarded.

 

 

 

                                                                             ………………………………….

                 Hon. Justice E. D. Subilim

                    JUDGE