1. I have considered the Notice of Preliminary Objection dated 16th August, 2024 filed in response to the application dated 26 June, 2024 together with the rival submissions and the applicable law.
2. The objection is premised on the grounds that the Applicant’s application dated 26 June 2024 and filed on 12th August, 2024 is time barred.
3. The said Application seeking a stay of enforcement of the arbitral award published on 15th June, 2023 and seeks to set aside the said award.
4. The starting point is that an arbitral award is final and binding on the parties. Section 32A. “Effect of award” states as follows:
“Except as otherwise agreed by the parties, an arbitral award is final and binding
upon the parties to it, and no recourse is available against the award otherwise
than in the manner provided by this Act”
5. Further, the only recourse available to a party that intends to either clarify or challenge an award is found at Sections 34 and Sections 35 of the Act. The relevant parts state as follows:
Section 34 (1) (b):
Within thirty days after receipt of the arbitral award, unless a different period of time has been agreed upon by the parties……….(b) a party may,
upon notice in writing to the other party, request the arbitral tribunal to clarify or remove any ambiguity concerning specific point or part of the arbitral award. (Emphasis mine)
Section 35 (3)
An application for setting aside the arbitral award may not be made after 3 months have elapsed from the date on which the party making that application had received the arbitral award, or if a request had been made under section 34 from the date on which that request had been disposed of by the arbitral award.”
6. Finally, for clarity, Section 10 of the Act states that except as provided by this Act, no court shall intervene in matters governed by this Act.
7. Based on the law as set out above, it is evident that the applicant ought to have filed its application within the mandatory timelines of either 30 days from the date of publication in the event it sought clarifications, or no more than three months from the date of publication of the award, if it intended to challenge the same.
8. Accordingly, the Applicant had until 16th July, 2023 to seek clarification (30 days from the notice) and 16th September, 2023 (90 days from the notice) to file the application to set aside the Arbitral Award.
9. As such, the Application dated 12th March, 2024 purportedly seeking clarification from the Arbitrator and the instant Application dated 26th June, 2024 and filed in court on 12th August, 2024 are in my view, statute barred.
10. This court has stated on several occasions that the timelines set out in the Arbitration Act are inflexible and inextensible. Accordingly, the timelines having elapsed, this court does not have jurisdiction to extend the same.
11. Based on the reasons as set out above, I find and hold that the Preliminary Objection dated 16 August, 2024 is with merit and the same is upheld.
12. The upshot is that the Application dated 26th June, 2024 is struck out with costs payable by the Applicant to the 1st and 2nd respondent