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WRONG FACT FINDING CANNOT SET ASIDE AN ARBITRAL AWARD

Dictum

In arbitration proceedings, the general principle is that facts finding by an Arbitrator is not a ground for setting aside an award on the ground that it is wrong nor on the ground that there is no evidence on which the facts could be found because that would be mere error of law.

– Garba, JCA. Dunlop v. Gaslink (2018)

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WHERE APPELLATE COURT WILL SET ASIDE FINDINGS OF TRIAL COURT

It is trite law that an appellate court will not ordinarily interfere with the findings of fact of a trial court except in circumstances such as where the trial court has not made a proper use of the opportunity of seeing and hearing the witnesses or where it has drawn wrong conclusions from accepted credible evidence or has taken an erroneous view of the evidence adduced before it or its findings of fact are perverse and do not flow from the evidence accepted by it.

– Iguh, JSC. Oshatoba v. Olujitan (2000)

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A COMPLAINT IS CHARACTERISED BY THE CASE FACTS SUBMITTED – (African Court)

The jurisprudence of the European Court of Human Rights on what qualifies as a complaint is defined as the purpose or legal basis of the claim, The complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on.

– CHACHA v. THE UNITED REPUBLIC OF TANZANIA (003/2012) [2014] AFCHPR 48 para 120

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HIGH COURT DOES NOT SIT ON APPELLATE FUNCTION OVER ARBITRAL PANEL

In the case of Baker Marine Nigeria Limited v. Chevron Nigeria Limited (2000) 3 NWLR (Pt. 681) 939 @ 410, it was held that an application to set aside an arbitral award: “The lower Court was not sitting as an appellate Court over the award of the arbitrators. The lower Court was not therefore empowered to determine whether or not the findings of the arbitrators and their conclusions were wrong in law. What the lower Court had to do was to look at the award and determine whether on the state of law as understood by them and stated on the face of the award, the arbitrators complied with the law as they themselves rightly or wrongly perceived it. The approach here is subjective. The Court places itself in the position of the arbitrators, not above them, and then determines on that hypothesis whether the arbitrators followed the law as they understood and expressed it.”

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WHERE LOWER COURT FINDINGS WILL BE SET ASIDE

Although appellate courts are very slow and reluctant in interfering with the findings of fact by the trial lower courts, nevertheless where such findings are not borne out by conclusive or positive evidence, or where the lower court did not properly evaluate the evidence before making the findings or where the lower court failed to apply the law properly to the facts proved, the appellate courts are under a duty to interfere with such findings. To neglect to do so will certainly occasion a miscarriage of justice sufficient to warrant a superior appellate court to interfere with the trial court’s findings.

– Mahmud JSC. Ogiorio v. Igbinovia (1998)

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FROM THE FACTS AND CIRCUMSTANCES OF THIS CASE IT SHOWS THAT ARBITRATION MAY BE MORE OPEN TO FRAUD

582. Regardless of my decision, I hope the facts and circumstances of this case may provoke debate and reflection among the arbitration community, and also among state users of arbitration, and among other courts with responsibility to supervise or oversee arbitration. The facts and circumstances of this case, which are remarkable but very real, provide an opportunity to consider whether the arbitration process, which is of outstanding importance and value in the world, needs further attention where the value involved is so large and where a state is involved. 583. The risk is that arbitration as a process becomes less reliable, less able to find difficult but important new legal ground, and more vulnerable to fraud. The present case shows that having (as here) a tribunal of the greatest experience and expertise is not enough. Without reflection, then a case such as the present could happen again, and not reach the court.

— R. Knowles CBE. FRN v. Process & Industrial Developments Limited [2023] EWHC 2638 (Comm)

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CONSIDERATIONS OF PUBLIC POLICY IN ARBITRAL PROCEEDINGS

As to public policy, in Cuflet Chartering v. Carousel Shipping Co Ltd [2001] 1 Lloyd’s Re 707 Moore-Bick J (as he then was) said: “Considerations of public policy can never be exhaustively defined, but they should be approached with extreme caution … It has to be shown that there is some illegality or that the enforcement of the award would be clearly injurious to the public good or, possibly, that enforcement would be wholly offensive to the ordinary reasonable and fully informed member of the public on whose behalf the powers of the state are exercised.”

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