1. I have considered the notice of motion dated 13 July 2023 together with the affidavit in support sworn on even date, and the replying affidavit in opposition to the same sworn on 28th August 2023, the submissions of the parties, and the applicable law.
2. The applicant’s application is essentially based on a claim for set off arising from an arbitral award. Counsel submitted that the award stated that any party that has incurred fees on behalf of the other is entitled to a refund from the other. The applicant sought a refund or set off for the extra amount paid by it to the arbitrator.
3. Counsel submitted that the said award was however set aside in the Court of Appeal, and thereafter, the respondent has since refused to reimburse the applicant. Instead, the respondent filed taxation proceedings and sought execution of the amounts arising from the same, which brought about the controversy as to how much was due to it.
4. Counsel submitted that Section 32 of the Act states that parties shall bear the fees in equal measure. She relied on the same and contended that the parties had executed an agreement, which stated that each party would bear costs equally, and that in breach of the same, the respondent has not honored the agreement.
5. The respondent opposed the application, by and large, on the basis that the award was set aside for lack of jurisdiction by the arbitrator, arising out of an improper constitution of the tribunal. The error in composition, counsel contended, was the fault of the applicant, and the respondent had raised an objection to the Tribunal’s jurisdiction from the outset. Accordingly, counsel was of the view that it ought not bear the costs of the Tribunal constituted in its opposition, and to which the award had been set aside.
6. I have considered the above; I have also looked at the documents and exhibits attached the application. I note that the agreement referred to by counsel as proof of equal sharing has not been annexed. The court has not been able to find any evidence of that agreement.
7. Further, upon inquiry by the court if the arbitration agreement contained any such provision on sharing of fees, counsel similarly stated that the applicant had not annexed the arbitration agreement to the application, and therefore, could not point to any evidence that such provision existed in the agreement to arbitrate.
8. Counsel brought the courts attention to the Terms of Reference for Appointment of the Arbitrator, annexed to the affidavit, which she submitted shows that fees ought to be shared equally. However, upon reading the same, I note that the terms state only that the parties are jointly liable for fees; the same does not however indicate that fees are to be shared equally between the parties, nor does it mention reimbursement.
9. In my view, once the award was set aside by the court, the orders of the tribunal in that award, regarding sharing of fees, fell with the award. In the absence of evidence to the contrary, this court may not enforce such a provision based on mere argument.
10. Finally, as regards Section 32 of the Act, my view is that the same refers a situation where an award is valid and binding. The circumstances in the present matter are different. Additionally, and unfortunately, neither of the parties tendered any evidence to show if there was any agreement as to how fees would be shared outside of the arbitral award.
11. The court is not inclined to write a contract between the parties or enforce an alleged provision in the absence of such evidence.
12. The application is dismissed with costs.