On the authority of TAYLOR WOODROW NIG. LTD v. S.E. GMPH (1993) 3-4 S.C. 1 @ 12 – 17 misconduct occurs for example:
(1) if the arbitrator or umpire fails to decide all the matters which were referred to him;
(2) if by his award the arbitrator or umpire purports to decide matters which have not in fact been included in the agreement of reference; for example, where the arbitrator construed the lease (wrongly) instead of determining the rental and the value of buildings to be maintained on the land; or where the award contains unauthorized directions to the parties; or where he decided as to the parties’ rights, not under the contract upon which the arbitration had proceeded, but under another contract;
(3) if the award is inconsistent, or is ambiguous; or even if there is some mistake of fact, although in that case the mistake must be either admitted or at least be clear beyond any reasonable doubt;
(4) if there has been irregularity in the proceedings, as, for example, where the arbitrator failed to give the parties notice of the time and place of meeting, or where the agreement required the evidence to be taken orally and the arbitrator received affidavits, or where the arbitrator refused to hear the evidence of a material witness, or where the examination of witnesses was taken out of the parties’ hands, or where the arbitrator failed to have foreign documents translated or where, the reference being to two or more arbitrators, they did not act together, or where the umpire, after hearing evidence from both arbitrators received further evidence from one without informing or hearing the other, or where the umpire attended the deliberations of the appeal board reviewing his award;
(5) if the arbitrator or umpire has failed to act fairly towards both parties, as, for example, by hearing one party but refusing to hear the other, or by deciding in default of defence without clear warning, or by taking instructions from or talking with one party in the absence of the other, or by taking evidence in the absence of one party or both parties, or by failing to give a party the opportunity of considering the other party’s evidence, or by using knowledge he has acquired in a different capacity in such a way as to influence his decision or the course of the proceedings, or by making his award without hearing witnesses whom he has promised to hear, or by deciding the case on a point not put to the parties;
(6) if the arbitrator or umpire refuses to state a special case himself or allow an opportunity of applying to the court for an order directing the statement of a special case;
(7) if the arbitrator or umpire delegates any part of his authority, whether to a stranger or to one of the parties, or even to a co-arbitrator;
(8) if the arbitrator or umpire accepts the hospitality of one of the parties, being hospitality offered with the intention of influencing his decision;
(9) if the arbitrator or umpire acquires an interest in the subject matter of the reference, or is otherwise an interested party;
(10) if the arbitrator or umpire takes a bribe from either party. In each of the foregoing cases, the court has power to set aside his award. See: Kano State Urban Development Board v. Fanz Construction Company Limited (1986) 5 NWLR. (Pt 39) 74, per Ogundare, JCA., pages 89-90. On the authorities, it is misconduct on the part of the arbitrator where there is an error of law which appears on the face of the award on a point not specifically referred to the arbitrator for decision. This is the aspect of misconduct relied on by the appellant in these proceedings. To determine whether there has been misconduct, one must necessarily first answer the question: What is an error in law on the face of an award? As was decided by the Privy Council in Champsey Bhara & Co. v. Jivrajs Balloo Spinning & Weaving Co. (1923) AC 480; where it is impossible to say, from what is shown on the face of the award, what mistake, if any, the arbitrator has made, or that the arbitrator has tied himself down, on the face of his award, to some special legal proposition which is unusual, the award will stand. See: Halsbury’s Laws of England 4th Edition at paragraph 623 on page 334.
Layi Babatunde, SAN
