ACTION NO. 222

IN THE MATTER of the Arbitration Act, Chapter 69

AND

BETWEEN:

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BEFORE the Hon. Chief Justice Abdulai Conteh

Ms. Lois Young S.C., with Mr. Denys Barrow S.C., for the Applicant.
Respondents unrepresented.

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This is an application by Originating Motion dated 25th May 2000 by the Applicant Cedric D. Flowers praying the Court for an Order that the Award made between him and the Belize Tourist Board and the Registrar of Hotels, the Respondents, and dated 30th April 2000 be set aside or alternatively, remitted in part on the grounds that there is an error in fact and law on the face of the Award.

When the motion came up for hearing on 12th June 2000, the learned counsel for the Applicant sought leave of the Court to amend the motion by the addition:

"And in the event of it being ordered that the Award be set aside or remitted, the costs of the reference and the Award be paid by the Respondents and that in any event the costs of and incidental to this Application be paid by the Respondents."

I duly granted leave for the amendment sought.

Perhaps a word or two would be in place on the schema of arbitration within the machinery for disputes resolution as provided for by the law in Belize before I come to the issues raised in this application.

The whole tenor, scheme and explicit provisions of the Arbitration Act in Chapter 69 of the Laws of Belize, are in my view, intended to enable the Supreme Court to assist the process of settling disputes by Arbitration and to supervise this process where necessary. This is an aspect of the machinery of the alternative dispute resolution (ADR) process which unfortunately, is not readily recognised and resorted to more often, especially by the business community and their no doubt hard-pressed and preoccupied legal advisers. But it is a process which should be utilized more often, not only for the sake of unclogging the pipeline of formal litigation through the Courts, but because of its intrinsic speed and informality and hopefully, special knowledge, which the arbitral tribunal itself may bring to the issues in dispute. These are attributes that should commend the process to the public, especially the business community who should be eager for a quick resolution of disputes so that they can get on with business.

Under the provisions of the Arbitration Act assistance is provided for recourse to arbitration by, for example, under section 3 making the agreement to arbitrate (the submission) between the parties as irrevocable and effective as an Order of the Court; under section 4 certain provisions are implied by law in the agreement between the parties to arbitrate: these relate, for example, to the appointment and composition of the arbitral tribunal, the time within which it must make its award and the finality of the award itself; under section 5 where there is an arbitration agreement between the parties, the power of the Court to stay legal proceedings in Court in defiance of such an agreement by one of the parties; and under section 6, in certain cases, the power of the Court to appoint an arbitrator, for example, when the parties to the arbitration agreement fail to agree on one, or an appointed arbitrator refuses to act or dies; and under section 13 by leave of the Court, for an award to be enforced in the same manner as a judgment or order of the Court itself.

This Court's assistance to the arbitral process extends also to the situation where even after an award has been made, the Court has under sections 11 and 12, the power to remit the award or any part of it back to the arbitrator for consideration; or set the award aside.

It is in pursuance of either of these powers that this Court has, that is, either to set the Award aside or alternatively to remit it in part, that the Applicant has by his motion moved this Court because, as he avers, of errors on the face of the Award.

The Final Award of the Arbitrator is dated 30th April 2000.

The preambular paragraphs (2) and (3) of the Award itself contain some statements which caused me some bother and anxiety when examined and put alongside with the pertinent clause in the Agreement between the Applicant and the Respondents providing for arbitration, the submission in law. This is in clause 8 in Document No. 1 in the Bundle of Documents containing the Contract between the Applicant and the Respondents and dated 15 May 1997 and referred to in paragraph 2.1 of the Arbitrator's Reasons for Award. It has not been contested that I am entitled to have regard to the contract and other pertinent documents in this matter in resolving this application before me.

In preambular paragraph (2) of the Final Award the Arbitrator states:

"The Contract provided for disputes to be referred to a sole arbitrator if either of the Parties refused to agree or appoint an Arbitrator having been requested so to do."

But in fact, clause 8 of the Contract (the Agreement referred to above) provides that disputes between the parties shall be submitted to a single arbitrator, in default of agreement in selecting a single arbitrator, the dispute shall be referred to two arbitrators one to be appointed by each party. This, contrary to the statement of the Arbitrator, clearly could not have meant or provided for disputes to be referred to a sole arbitrator if either of the parties refused to agree or appoint an arbitrator having been requested so to do.

Clause 8 states:

"Any dispute or difference arising between the parties hereto during the course of this contract or at the termination hereof, as to the construction of this Agreement or as to any matter or thing of whatever nature arising hereunder or in connection therewith, then such dispute or difference shall be and is hereby referred to arbitration and final decision of a person to be agreed between the parties. In default of agreement in selecting a single arbitrator the dispute shall be referred to two arbitrators one to be appointed by each party. Before entering on the reference each of the arbitrator shall appoint an Umpire who shall preside over the Arbitration and shall decide in the dispute in the event of difference between the two arbitrators."

Also, preambular paragraph (3) of the Final Award states:

"The Claimant appointed me EAMON H. COURTENAY S.C. of 37 Regent Street in Belize City by Instrument dated the 15th October 1999 to act as the sole arbitrator in the reference and I accepted such appointment by Instrument dated 1st November 1999."

But in fact, it was the failure of the Respondents to concur in the selection of a single arbitrator even after formal notice by the Applicant dated 30th August 1999 to do so, that resulted, by virtue of section 7 of the Arbitration Act, in the appointment of the Arbitrator as sole Arbitrator by Instrument dated 15th October 1999 by the Applicant.

However, it is not on the score of these evident discrepancies on the face of the Final Award, although they are nonetheless errors by the Arbitrator in construing the submission clause between the parties, that the Applicant has sought by his motion, to impugn the Award or parts of it.

I am however satisfied that in fact and in law, the Arbitrator was validly appointed and as sole arbitrator, he properly embarked upon the reference.

The Final Award of the Arbitrator is sought to be impugned on the substantive ground "That on the face of the Award there is error in fact and in law."

In order to sustain and substantiate this attack, the Applicant has advanced several grounds, which though not stated on the face of the motion, are contained in Affidavits by the Applicant dated 24th May and 8 June 2000 respectively. Although not exactly easy to follow or comprehend as set out in the Applicant's Affidavits, the learned counsel for the Applicant valiantly tried to give some form and structure to them by arguing them as grounds 1 to 8 seriatim.

A seeming paradox of this application is that he sole Arbitrator was in fact the Applicant's appointee. And it is his Award with which the Applicant now finds fault; and has, by this application, requested this Court to intervene.

I would like to observe here that the whole proceedings in this matter, both before the Arbitrator and before this Court would have been enormously facilitated and enriched if they had been attended by the participation of the Respondents either by their own appointed Arbitrator (as the Contract provided) and or of counsel on their behalf making necessary representation to the Arbitrator on their account. In the event however, neither the sole Arbitrator nor this Court had the benefit of assistance from the Respondents who evidently chose not to participate. They were nevertheless served with all the papers relating to the claims by the Applicant. They also had notice of the proceedings in this Court.

Personally speaking for myself, I must say that I was enormously helped however at the hearing of this application by the legal submissions and materials the Attorneys for the Applicant furnished me with.

Although the sole Arbitrator was the Applicant's appointee, he is, in law, of course, entitled to cavil and even find fault, if he can substantiate it, with the Award and apply to set it aside or have it remitted.

I should say here before proceeding any further that, in my view, a particular feature of the presentation of the Applicant's case before the Arbitrator inescapably invested the whole proceedings there with an element of ritual litigation. During the Arbitration that has given rise to this application with respect, heavy weather was made of the Applicant's claims especially the ritualistic form in which they were made: it was hardly distinguishable from a formal pleading in the course of an ordinary litigation in Court. In fact it is headed "Statement of Claim" and closely pleaded as one such document would be in an adversarial setting in a Court, and if I may say so, with the care and skill of an able common law pleader.

I realise, of course, that in the instant arbitration, the Arbitrator himself is an eminent Senior Counsel and as such would have been naturally at home with the format of the presentation of the Applicant's claim. The proceedings in my view however, would have benefitted from the counsel of the learned authors of Commercial Arbitration (second edition by Sir Michael Mustill and Stewart Boyd 1989) at page 319:

"Pleadings are not the ideal way of isolating the essential issues in a dispute. . . . the use of pleadings tends to multiply the issues, because of the neutral desire of the advocate to keep open all his arguments and options until the last possible moment, in the hope of some favourable turn of events."

"In the main", the learned authors continue, ibid, ". . . pleadings should be reserved for cases where the issues are complex, where there is likely to be a full hearing, with real evidence, and where the parties are legally represented."

In the instant case, although it is stated that formal pleadings were delivered pursuant to the directions of the Arbitrator, he was however, under no duty to do so. He however stated that "Formal pleadings have been delivered by the Claimant . . ." (In preambular paragraph 4 of his Final Award), it is my view, that the whole proceedings would have profited in terms of elucidation of the Applicant's case by a written statement of his case, instead as an alternative to the full-blown pleadings presented.

In order more fully to understand the Applicant's complaint against the Award, I inquired of his Attorneys if there was a formal submission, reference or document wherein the Applicant's claims against the Respondents were stated for the arbitrament of the Arbitrator. They informed me that it was in the document dated 29th November 1999 and captioned "Statement of Claim". This document, as I have already observed, was drawn and settled as in normal litigation by the Attorneys of the Applicant. (See paragraphs 4 and 5 of the Applicant's Affidavit dated 24th May 2000).

It is in the "Particulars of Disputes and Differences" of this document that the Applicant's complaints against the Respondents are set out from the first paragraph 17 which contains six heads of complaints on to the second paragraph 17 wherein the Applicant complains of the wrongful termination of his contract by the Respondents.

There then follows "Particulars of Special Damage" in which various sums are set out under five heads representing the special damages the Applicant is alleged to have suffered at the hands of the Respondents.

The section rounds off as in a litigated claim for breach of contract and damages in an action in Court, in paragraph 18, by the averment that "by reason of the matters aforesaid, the Respondents wrongfully and in breach of the contract terminated the Applicant's services as a result of which he has suffered loss and damage."

I am of the view that the various issues presented in the Applicant's "Statement of Claim" would perhaps have benefited in precision, clarity and simplicity if they had been stated in an ordinary written statement of the Applicant's case. To say this, is not of course, to fault the Applicant's Attorneys who simply used their forensic skills and the tools they are most familiar with to craft his case as best as they knew how for presentation. I want however, also to commend the Arbitrator, who as it were, was able to cut through the legalese of the formal mould of the "Statement of Claim" to reach his Award, without the benefit of full-blown adversarial presentation and argument to match the Applicant's. His Award is now being sought to be impugned by the Applicant.

It is only thus by unravelling the Applicant's claims before the Arbitrator and a close perusal of the Final Award that I have been able to see my way through, I hope, to appreciating the Applicant's case and his prayers soliciting the aid of this Court in relation to the Award.

THE CASE OF THE APPLICANT AND THE AWARD

The Applicant's case can be put in a short compass. He is by profession a Certified Public Accountant. The Respondents are the Belize Tourist Board and the Registrar of Hotels and Tourist Accommodation. In order to improve the collection and increase the amount of taxes hotel proprietors in the country must by law pay on all accommodation charges, the Respondents concluded on 15 May 1997 an agreement with the Applicant by which his services were engaged to assist in the determination and assessment of the said taxes. The Applicant was charged with performing several services towards this end. In order to perform the several services under the contract, the Applicant was authorized as a term of the contract by the second Respondent "to enter any hotel premises at all reasonable hours and:

1. to inspect the premises with a view to ascertaining all matters and things relevant to the true and proper performance of the proprietor's obligations relating to the said tax.

2. to require any person in charge of the hotel to produce the register and books required to be maintained under the law.

3. to examine such registers and books and to make copies or to take extracts from such registers and books."

This express authorization of the Applicant by the Registrar the second Respondent, to visit hotels and examine their registers and books and to make copies or take extracts of these was indubitably part of the substratum of the Applicant's contract: for factually and logically, he would not be able to perform his services thereunder without such authorization. More on this later.

In consideration of the Applicant performing his duties under the contract it was originally agreed that he shall be remunerated as follows:

1. A monthly commission of 4% of the taxes received by the first Respondent up to but not exceeding $3000000.00. (This percentage was subsequently revised upwards to 6% by a Memorandum of Amendment to Agreement. More on this Memorandum later).

2. On the amount received in one year in excess of three million dollars, the Applicant will receive a monthly commission of 17% (seventeen percent)

3. All the amounts due to the Applicant shall be paid to him within 7 days of the date required by the law for the filing by a hotel proprietor of the monthly statements together with the amount collected from that proprietor as tax.

For the purposes of clarity, it might be pointed out here, in parenthesis, that section 23 of the Hotel and Tourist Accommodation Act - Act No. 12 of 1997, provides for the payment of tax on accommodation charges in all hotels or tourist accommodation in the country. This provision is the same as section 22 of the Hotel Act which the 1997 Act repealed and is to the following effect:

"Every proprietor shall prepare monthly a Statement substantially in the form prescribed for the purpose of showing the amount of tax for which he is liable under this Act, and shall furnish such monthly statement not later than the fourteenth day of the following month to the Registrar together with the amount due from him as tax. If the tax is not paid as prescribed herein, it shall be deemed to be in default."

So in effect, pursuant to paragraph (iii) of the Applicant's contract with the Respondents, he the Applicant, was due to be paid all amounts owed him not later than twenty-one days of the following month when hotel proprietors were by law required to file their monthly statement together with the amount of tax due from them with the Registrar, that is the second Respondent. Or put another way, the Applicant was due to be paid by the Respondents within twenty-one days of every following month.

Paragraph (iv) of clause 2 of the 1997 Contract went on to provide that the Applicant will be paid his percentage on taxes actually collected whether collection occurred after the signing of the Agreement or as a direct result of the assessment by the Applicant.

The Common Seal of the first Respondent who is a statutory corporation was affixed to the Agreement together with the signatures of the Chairman/Deputy Chairman (it is not clear which of them) and a Board Member. The second Respondent or the officer holding that office and the Applicant both signed off on this Agreement. This Agreement is referred to in paragraph 1 of the Applicant's Affidavit of 24th May 2000, and paragraph 2.1 of the Arbitrator's Reasons for Award.

The contract was for a period of six years from 1st June 1997.

Some ten months later, a Memorandum of Amendment to Agreement (Amendment No. 1) was executed on 13th March 1998 between the first Respondent and the Applicant. This document is referred to in paragraph 2 of the Applicant's Affidavit of 24th May 2000 and paragraph 2.7 of the Arbitrator's Reasons for Award.

This Memorandum expressly referred to the Agreement of 15th May 1997 (the Original Contract) between the Applicant and the Respondents and stated that the parties were desirous of modifying the original contract in certain respects. It also expressly stated that in the event of any inconsistency between it (the Memorandum of Amendment to Agreement) and the Original Contract (that is the Agreement between the Applicant and the Respondents of 15th May 1997), the Memorandum of Amendment shall prevail. A salient feature of this Memorandum is that it provided for the termination of the agreement between the parties on six months written notice to the Applicant in the event of his failure to comply with reasonable instructions issued by the second Respondent - more on this later.

The Applicant claims that the Respondents wrongfully terminated his services in breach of his contract by a letter dated 8 July 1999 from the second Respondent. As a result of this, differences and disputes arose between the Applicant and the Respondents. Notwithstanding the Applicant's efforts to have the Respondents join him in appointing an Arbitrator in accordance with the terms of the submission clause in the contract between them, in order to settle these differences and disputes, the Respondents did not respond. In the event the Arbitrator has to embark on the reference as sole Arbitrator in November 1999. On 30th April 2000 he made his Final Award. The Final Award and Reasons for Award were, according to the Applicant, published on 4th May 2000.

The Applicant now seeks to set aside this Award or, alternatively, to have this Court remit those portions of the Award contained in the Findings of the Reasons for Award in paragraphs 9.0, 9.1, 9.2, 9.4, 9.5, 9.6 and 9.8 on the grounds that there are errors of fact and of law on the face of the Award.

The original grounds were first stated in paragraph 9 of the Applicant's Affidavit of 24 May 2000. However, at the hearing of this Application on 12 June 2000 the Applicant through his learned counsel sought the leave of the Court to substitute in their stead the grounds stated in paragraph 3 of his Affidavit of 8th June 2000. I granted leave, but speaking for myself, I must confess that although the Applicant avers in paragraph 1 of his Affidavit that on the advice of his learned counsel, the substitution was effected so that the presentation of the grounds "could be better structured in order to facilitate the Court in the exercise of its functions", I am none the wiser. I have, with some difficulty, tried to grapple with the Applicant's grounds of complaint against the Award at least, as stated in his Affidavit. I had earlier alluded to this difficulty, which was however somewhat eased by the Applicant's learned counsel's able presentation and more lucid submissions at the hearing of this application.

I believe a clearer picture of the Applicant's complaints against the Award and a more proper appreciation of the whole situation can be discerned by putting along side each other the "Particulars of Special Damage" wherein various sums are set out under five heads representing special damages the Applicant was alleged to have suffered at the hands of the Respondents in his Statement of Claim, together with the dispositive provisions of the Final Award the Arbitrator made in the reference.

It is important to note that of the five heads of special damages, the Arbitrator expressly awarded the first three. That is to say, (1) the commission due on $85,656 of taxes at 6%, the amount paid to the Applicant was $3,426.24 on the basis of 4%, leaving on outstanding sum of $1,713.12 on the basis of 6%; (2) the commission due on $186,787 of taxes at 17%, the amount paid to the Applicant was $5,499.28, leaving as outstanding due the Applicant the sum of $26,254.51, and (3) commission due on $454009 of taxes at 17% for live-aboard-vessels making outstanding due the Applicant the sum of $77,181.53. All together this made a grand total of $105,149.16 which the Arbitrator awarded and directed to be paid to the Applicant.

This therefore leaves head (4) in amount of $265,200.00 and head (5) in the amount of $187,194.00 not awarded by the Arbitrator to the Applicant.

The issues underlying these two heads of special damage together with the finding by the Arbitrator that the Applicant's contract was validly terminated by the second Respondent and that he was consequently not entitled to any general damages for the alleged breach of contract by the second Respondent form, I believe, the gravamen of the Applicant's complaint before this Court for which he seeks to impugn the Award by praying me to set it aside or remit those portions of it contained in paragraphs 9.0, 9.1, 9.2, 9.4, 9.5, 9.6 and 9.8 as constituting errors in fact and law on the face of the Award.

Paragraph 9 contains the Findings of the Arbitrator as contained in his REASONS FOR AWARD which are incorporated in THE FINAL AWARD. The portions of this particular paragraph which have agitated this application can, I hope, be stated as follows for the sake of comprehending the Applicant's case:

First, that it was error of law on the face of the Award when the Arbitrator stated that the second Respondent was empowered pursuant to section 3(3) of Act No. 12 of 1997, the Hotel and Tourist Accommodation Act, and clause 6 of the contract to terminate the Applicant's contract forthwith.

Secondly, which is in effect the same as the preceding, that it was an error of law on the face of the Award for the Arbitrator to find that the second Respondent validly terminated the Applicant's agency on 8th July 1999.

Thirdly, that it was an error of law on the face of the Award when the Arbitrator stated that there was no evidence before him sufficient to establish that the first Respondent attempted to terminate the Applicant's contract pursuant to its terms.

Fourthly, it was error of law on the face of the Award when the Arbitrator stated that the Memorandum (that is, the Memorandum of Amendment to Agreement of 13 March 1998) was not binding on the second Respondent.

Fifthly, that there was an error of law on the face of the Award when the Arbitrator stated that the Applicant was not entitled to be paid commission for taxes that might have been collected from Programme for Belize, Coral Cay Conservation and Belize Audubon Society, but were not collected because of the second Respondent's unlawful instructions to the Applicant.

Sixthly, that there was an error of law on the face of the Award when the Arbitrator stated that the Applicant was not entitled to be paid commission on the basis of published rates of hotel charges but only on net.

Seventhly, that it was an error of law on the face of the Award when the Arbitrator stated that the Applicant was not entitled to any general damages for the alleged breach of contract by the second Respondent. A possible eight ground, which was only half-heartedly advanced in counsel's submissions, relates to what the Applicant states in his Affidavit of 8 June 2000 as the unreasonable and stifling manner of the second Respondent regarding commission due on taxes from Journey's End. Counsel invited me to draw the same reference and conclusion as in the fifth complaint.

By this application, as I have already stated, the Applicant has moved this Court to either set the Arbitrator's Award dated 30th April 2000, aside or alternatively remit it in part, on the grounds that there is error in fact and law on the face of the Award.

In other words, the preliminary issue I have to decide is, providing of course, I find error in fact and law in the Award, in all the circumstances of this case, whether to set it aside or remit in part. And if I so decide, what consequences flow from either course of action?

The power of this Court to remit or set aside an Award is provided for by sections 11 and 12 of the Arbitration Act. Section 11(1) provide that:

"In all cases of reference to arbitration the court may from time to time remit the matters referred, or any of them, to the reconsideration of the arbitrator or umpire"

and section 12(2) provides:

"Where an arbitrator or umpire has misconducted himself, or an arbitration or award has been improperly . . . . , the Court may set the award aside."

It is therefore unarguable that this Court has discretion, of course, to be exercised judicially, to decide whether to remit or set an award aside. In fact learned counsel for the Applicant urged this on the Court.

While the four traditional grounds for remission have been long recognised and stated as follows: "(1) Where the award is bad on the face of it, (2) where there has been an admitted mistake and the arbitrator himself asks that the matter may be remitted; (3) where there has been misconduct on the part of the arbitrator; and (4) where additional evidence has been discovered after the making of the award" - Montgomery, Jones & Co. v Liebenthal & Co. (1898) 78 LT. 406, it is now generally agreed that these four grounds are merely guides to the exercise of the Court's discretion and are not exhaustive and that there is in the Court a supervisory discretion to remit an award to ensure that there is no possibility of an inadvertent injustice - Compagnie Financiere Pour Le Commerce Exterieur S.A. v O.Y. Vehna AB. (1963) 2 Lloyds Rep. 178, and Vol. 2 Halsbury's Laws of England 4th ed. at paragraph 617 and Russell on Arbitration 17th ed. page 350 and more recently King and another v Thomas Makenna Ltd. and another (1991) 1 All. ER 656.

It is also agreed that in exercising its discretion as to whether to set aside or remit an award, the Court should have regard to the circumstances of the particular case as a whole. I am therefore satisfied that looking at the Applicant's case as a whole and having regard to the Award itself, it would be more equitable and proper to remit only those part of the Award where there may be error of law appearing on its face instead of setting the Award aside.

Critical to determining these issues in my view is the resolution of this question: was there an error of law appearing on the face of the Award by the Arbitrator in deciding the several matters that were under reference before him?

For an answer to this question I can only adopt the dictum of Lord Parmoor in the Privy Council in the case of Attorney-General of Manitoba v Kelly (1922) All ER 69, (1922) 1 A.C. 268 when he stated at page 283:

"Where a question of law has not specifically been referred to an umpire, but is material in the decision of matters which have been referred to him, and he makes a mistake, apparent on the face of the award, an award can be set aside on the ground that it contains an error of law apparent on the face of the award."

See also the case of Block Office & Shop Investments Ltd. And City & Waterfront Development Ltd. v Kingston Waterfront Development Co. Ltd. Vol. 21 West Indian Reports 442, where Lord Parmoor's dictum was cited with approval and applied.

In order to be a ground for upsetting an Award, an error of law on the face of the award must be such that there can be found in the award, or in a document actually incorporated with it (for example a note appended by the Arbitrator as in the instant case, stating the reasons for his Award) which contains, some legal proposition which is the basis of the Award and which is erroneous - Vol. 2 Halsbury's Laws at paragraph 623.

I now turn to an examination of the Award to see if there are errors of law and fact on its face as is contended for by the Applicant, which if found, may move me to exercise the discretion granted me in the matter by the provisions of the Arbitration Act. I do so against the jurisdictional backdrop of those provisions.

In King and another v Thomas Mckenna Ltd. and another (1991) 1 All E.R. 653, as I have mentioned earlier, it was held that the jurisdiction of the Court under section 22 of the English Arbitration Act 1950 with which section 11 of our own Arbitration Act in Chapter 69 of the Laws of Belize is ipsissima verba, to remit an Award of an arbitrator was wholly unlimited and not confirmed to the four traditional grounds for remission, but extends to any case where, notwithstanding that the arbitrator had acted with complete propriety, some aspects of the dispute which had been the subject of the reference had not, due to mishap or misunderstanding, been considered or adjudicated upon as fully as or in a manner which the parties were entitled to expect and it would therefore be inequitable to allow any such award to take effect without some further consideration by the arbitrator.

Applying the principle in this case to the instant application before me, it is clear that though the Arbitrator here, if I may say so, commendably conducted the proceedings with due propriety, the Applicant nonetheless feels that some aspect of the dispute which had been the subject of the reference before the Arbitrator had not been adjudicated upon as fully or in a manner which he the Applicant, was entitled to expect and that it would therefore be inequitable, in all the circumstances, to allow the Award to take effect or to do so without further consideration by the Arbitrator. Hence this application to this Court.

I am mindful of the fact that this is a terrain that has to be embarked upon with care and circumspection for it is not the Court's position or duty to substitute its own judgment or view in place of the Arbitrator's simply because it would have decided the matter differently. But where it is clear that a material or fundamental aspect of the reference is not addressed or not treated in the context of the dispute that gave rise to the reference, it is only right and proper that this is set right. One such way this can be done is to remit that aspect back to the Arbitrator for further consideration and determination. This, I believe, is the very raison d'etre of section 11 of the Arbitration Act. Indeed, the whole or only part of an award may be remitted - Vol. 2 Halsbury's Laws 4th ed. para. 618; and section 11 of the Arbitration Act itself talks of "or any of them", clearly meaning part of an award.

Having stated the issues that agitated this application and were canvassed before me by the learned Attorney for the Applicant, I now propose to consider them in the light of the Award. I propose however for the sake of avoiding prolixity, to consider them under the following heads:

1. Was there a breach of the Applicant's contract by the Respondents? This is, in my view, tied up with the relationship between the Respondents, the Belize Tourist Board and the Registrar of Hotels and Tourist Accommodation vis-a-vis the contract with the Applicant: was the second Respondent an agent of the first Respondent and was the second Respondent bound by the Memorandum of Amendment to Agreement of 13 May 1998?

2. If there was a breach of the contract was the Applicant consequently due general damages for that breach?

3. Was the Applicant entitled to what he claims was lost Commission on taxes due by chargeable tax payers but were not collected or paid as a result of instructions from the Respondents?

4. What was the correct or proper basis for calculating the commission to be paid to the Applicant? And fifthly,

5. The issue of the costs of the arbitration, and the Award itself.

WAS THERE A BREACH OF THE APPLICANT'S CONTRACT?

This issue, of course, is closely tied up with the way and manner of the termination of the Applicant's contract and whether, if there was proper termination, in which case the matter is laid to rest or improper termination, in which case the Applicant was entitled to damages.

The Arbitrator expressly found that:

"9.0 The Registrar appointed the claimant (the Applicant here) pursuant to section 3(3) of the Act to be his agent. The Registrar is empowered pursuant to section 3(3) of the Act and clause 6 of the contract to terminate the claimant as his agent forthwith."

"9.1 The Registrar validly terminated the claimant's agency on 8th July 1999".

"9.8 The claimant is not entitled to any general damages for the alleged breach of contract by the Registrar."

It is, in my view, unarguable that the Respondents manifestly breached the contract with the Applicant by the letter of 8th July 1999. Central to the Applicant performing his duties under the contractual arrangement with the Respondents was his ability to visit various hotels and tourists accommodation establishments around the country and have access to their books and other documents, especially their registers and evidence of charges to guests for accommodation charges, in order to be able to assess their liability to tax. This was after all the objective of the Applicant's contract with the Respondents; and was expressly stated as a term of the contract between them in clause 1(2) of the 15th May 1997 Agreement. In pursuance of this objective the second Respondent on 16th June 1997, a month after the conclusion of the contract with the Applicant, issued the necessary authorization to the Applicant. This provided the warrant for the Applicant and his team (members of his accounting firm) to visit various hotel establishments for the purpose of carrying out his functions under the contract with the Respondents. This authorization was already in fact incorporated as an express term of the Applicant's contract with the Respondents.

However, the second Respondent wrote the Applicant on 8th July 1999, withdrawing the authorization. This withdrawal was communicated generally to members of the hotel industry. This, in effect, disabled the Applicant from carrying on his functions under the contract with the Respondents.

I am convinced that a careful perusal of the contract between the parties, either with or without the Memorandum of Amendment to Agreement of 13 March 1998, and a proper construction of it would not in the circumstances of the reference to the Arbitrator and the evidence, justify his finding that the Applicant was not entitled to any general damages for alleged breach of the contract by the second Respondent.

I am ineluctably driven to hold therefore the Award in this respect is, upon its face, bad in point of law. I say so for the following reasons.

The contract between both the Applicant and the Respondents as concluded on 15th May 1997 provided in clause 6 how it could be terminated. It provided as follows:

"Subject to the Hotels Act this Agreement shall commence on the 1st day of June 1997 and shall continue for a period of six years PROVIDED always that in the event there is a fundamental alteration in the underlying conditions of this contract the parties may mutually agree to terminate this contract within six months from the day of such agreement."

Whatever this particular provision may mean or was intended to mean, it surely could not comprehend the way and manner and the circumstances as to how the Applicant's contract was terminated by the Respondents. To be sure it was not the Applicant's contract with the Respondents that was eo nomine terminated. What was terminated by the Respondents was the authority of the Applicant to visit hotel establishments. This of course swept away the substratum of the contractual relationship between them. For without the authorization from the Respondents the Applicant could not visit various hotel establishments, at least for the purposes of assessing the liability to tax.

In this regard, the second Respondent's letter of July 20, 1999, could be said to be the final nail in the coffin. It is worth reproducing this letter which was contained in Discovery No. 8 ordered by the Arbitrator:

"July 20, 1999

Mr. Cedric D. Flowers
Certified Public Accountant
54 King Street
Belize City

Dear Mr. Flowers,

Reference is made to your letter of today's date.

Please be advised that in view of the revocation of the Registrar's authorizations effective July 8th 1999, you and your staff will have access to the Registrar's receipt records up to July 8th 1999, for tomorrow only, July 21st, 1999. After this date access will not be given to you and your staff to any records of the Registrar of Hotels and Tourist Accommodations compiled under the Hotels and Tourist Accommodation Act, No. 12 of 1999, or any Act repealing same.

Again, please take note, that the authorization agreement dated May 15th, 1997 was also revoked by my letter of July 8th 1999, and you are therefore no longer authorized to do any business on behalf of the Registrar of Hotels and Tourist Accommodations. The hotel industry has been notified of the Registrar's action.

No further correspondence will be made to you by the Registrar on the matter of the revocation or otherwise, after the final payment of the balance of the 4% commissions due you at July 8th, 1999.

Sincerely,

sgd - N. Escalante
NOEL J. ESCALANTE
Registrar of Hotels and
Tourist Accommodation"

This letter in my view, speaks for itself and rather voluminously that the Respondents were determined to end the contractual relationship with the Applicant relating to his assessment of taxes by hotels.

Turning to the Memorandum of Amendment to Agreement dated 13 March 1998, this document expressly stated that the parties were desirous of modifying the Original Contract (that is the one of 15 May 1997) in certain respects. It proceeded to modify it in certain areas. For the purposes of the moment, it is clause 4 of the Memorandum of Amendment that is relevant here. This clause amended by deletion clause 6 of the original contract (already referred to above) and substituted the following in its stead:

"This Agreement shall commence on the 1st day of May 1997 and shall continue for a period of six years PROVIDED always that in the event that Cedric D. Flowers fails to comply with reasonable instructions issued by the Registrar of Hotels with regard to the administration of the Hotel taxes, this Agreement may be terminated by the Board by written notice served on Cedric D. Flowers at least six months before the date specified in the notice."

A plain reading of this provision makes it clear that the parties intended to import into their contractual relationship some means of terminating it inside of the six years it was stipulated to run for: Failure by the Applicant to comply with reasonable instructions issued by the Registrar of Hotels (the second Respondent) with regards to the administration of the Hotel taxes gave the Board (the first Respondent) the right to terminate the agreement by six months written notice to the Applicant.

It may be noticed that this new clause did not, unlike the clause 6 in the earlier contract which it was said to be replacing, subject the commencement or termination of the contractual relationship between the parties to the Hotels Act (subsequently replaced by the Hotel and Tourist Accommodation Act 1997).

Plainly, no other mode of termination of the relationship between the parties was contemplated; if it was, it was not provided for. But what was expressly provided was that if the Applicant failed to comply with reasonable instructions issued by the second Respondent in relation to the administration of Hotel taxes, then the first Respondent may on six months written notice served on the Applicant, terminate their relationship. Was this done in the circumstances of the relationship that gave rise to the reference to the Arbitrator? On the contrary, instead the Applicant received a somewhat peremptory letter dated 8th July 1999 from the second Respondent which effectively put an end to the contract as it disabled the Applicant from performing his own part of the contract in the only way he could have.

It was intrinsic to the Applicant's performance under the agreement with Respondents that he had or be given the necessary visitation rights to hotels for the purposes of examining their books and registers in order to assess properly the taxes on accommodation charges due from them. This was in fact woven into the fabric, as it were, of the agreement between the parties in clause 1(2).

I therefore conclude on this point that in the circumstances of the reference before him, the Arbitrator failed to appreciate the effect and consequences that flowed from the letter of 8th July 1999 and enlarged upon by the letter dated 20 July 1999 from the second Respondent to the Applicant. In particular, that these letters took away the substratum of the relationship between the Applicant and the Respondents. In effect, these letters made it impossible for the Applicant to perform the duties for which he was engaged. They denuded him of the essential authority in relation to the hotels to perform his functions. Called by whatever name, repudiatory, fundamental, material or what have you, this was a breach that made the Applicant unable to perform the services for which he had entered into the contractual relationship with the Respondents.

The failure by the Arbitrator, to appreciate this, I believe, coloured his view of the relationship between the Applicant and the Respondents, especially the second Respondent. The Arbitrator, with respect, assumed rather facilely that because the second Respondent could pursuant to section 3(3) of the Act appoint agents to help him execute those functions given him as the Registrar of Hotels and terminate their appointment with facility, he could by the same token terminate forthwith the Applicant's contract. This, in my view, was a facile assumption that belied the fact of a legal contractual status of the Applicant. He was to be sure, in virtue of the statutory provisions an agent of the second Respondent; but an agent with a contractual relationship with the Respondents. If that relationship is terminated other than as provided for in the contract, then surely there must be legal consequences. I do not believe the statutory powers given the Registrar of Hotels (the second Respondent) by section 3(3) of the Hotels and Tourist Accommodation Act to generally or specially authorise any other person to help him discharge his duties and to revoke such authorization at any time confers immunity from suit on the Registrar and insulation from consequential damages if he were to revoke in circumstances that would clearly be in breach of contract.

Had the Arbitrator done a proper appreciation of the contractual relationship between the Applicant and the Respondents he would have found that notwithstanding section 3(3) of the Act, clause 6 of the contract most certainly did not empower the second Respondent to terminate the Applicant instanter, as it were. Even if it did, it would not insulate or immunize from suit and damages for breach of contract where the revocation is contrary to the express terms of the contract.

Had the Arbitrator also done a proper appreciation of the letter of 8th July 1999 together with that of 20th July 1999, in the circumstances of the reference before him, he would have found that far from being a valid termination of the Applicant's agency, it was in fact and in law, a termination or breach of the contractual relationship between the parties other than as was provided for in clause 6 (whether the old clause 6 or the new one substituted by clause 4 of the Memorandum of Amendment to Agreement).

Consequently, I hold that there is error of law on the face of the Award wherein the Arbitrator found that the second Respondent was empowered pursuant to section 3(3) of the Act and clause 6 of the contract to terminate the Applicant forthwith, and that the second Respondent validly terminated the Applicant's contractual relationship on 8th July 1999, and that further the Applicant was not entitled to any general damages for breach of contract by the second Respondent.

This brings me to a finding which I think is clearly an error of law on the face of the Award: that the Memorandum of Amendment to Agreement is not binding on the second Respondent. This no doubt flowed from the reasoning of the Arbitrator that the second Respondent was not a party to the Memorandum.

It is however, pellucidly clear that the Memorandum was executed expressly to modify the Original Contract which was signed by all the parties, including the second Respondent. Also, the second Respondent is expressly mentioned in the Memorandum in relation to issuing instructions to the Applicant with regard to the administration of hotel taxes. In fact, for the duration of the relationship it was the second Respondent who gave all the instructions to the Applicant. I therefore hold that the Memorandum was in fact and in law binding on the second Respondent. It was not in conflict with the Agreement of 15th May 1997 which it modified and in my view, the two are inextricably linked together.

In my view, from the scheme of the Hotel and Tourist Accommodation Act, there is a necessary nexus between the two Respondents which is vital for the proper administration of that Act. This relationship, I find, is reflected in the provisions of the contractual relationship between the applicant and the Respondents. The Applicant, though formally engaged by the first Respondent, was nonetheless obligated by the terms of the Memorandum of Amendment to Agreement to comply with reasonable instructions of both Respondents. In fact, failure by the Applicant to comply with the reasonable instructions of the second Respondent was expressly made a condition for the termination of the Agreement itself. Surely, it would be implausible to say that the second Respondent was not bound by the Memorandum of Amendment to Agreement.

An analysis of the Act will readily show that in practice it is the second Respondent who is the point man charged with the administration of the Act and in this process he is subject to the general directions of the first Respondent who is, by law, consulted by the responsible Minister before the appointment of the second Respondent. The Act itself is the matrix within which the contractual relationship between the Applicant and the Respondents was conceived and executed.

I therefore hold that the Applicant is entitled to damages for the breach of his contract with the Respondents occasioned by the actions of the second Respondent and acquiesced in if not actively condoned by the first Respondent. This contract still had four years of its life to run when it was peremptorily brought to an end by the Respondents.

In the event, it makes no difference as to whether the second Respondent was a party or not to the Memorandum of Amendment to Agreement.

In the premises therefore, it was an error of law on the face of the Award in the circumstances of this reference for the Arbitrator to state otherwise.

WAS THE APPLICANT ENTITLED TO WHAT HE CLAIMS WAS LOST COMMISSION AS A RESULT OF THE INSTRUCTIONS FROM THE RESPONDENT NOT TO COLLECT TAXES ALREADY ASSESSED?

The contention here on behalf of the Applicant as far as I can understand it is that there is an error of law on the face of the Award because the Arbitrator found that the Applicant was not entitled to commissions on taxes that might have been collected from Programme for Belize, Coral Caye Conversation and Belize Audubon Society. This is so because the contention runs, the Arbitrator having found that assessment had been done on these three establishments should have found as a matter of law that the instructions of the second Respondent that no further proceedings should be taken to collect the taxes were unlawful and a breach of contract and that therefore the Applicant was entitled to commission on the amount of taxes due from these three establishments.

I do no think this is right. After a careful perusal of the Award and analysis of the relevant provisions of the agreement between the parties I am unable to find, as is contended for the Applicant, that Award in this respect contain an error of law on its face.

The anxiety of the Applicant is perfectly understandable in the circumstances when it is remembered that his remuneration was on a percentage basis of the amount of taxes received by the Respondents. This anxiety no doubt stems from the professional position of the Applicant: as an accountant, assessed taxes became in his eyes receivables, that is, amounts owed to a business and therefore regarded as assets.

But a close analysis of the remuneration clause of the Applicant's contract shows that it was intended by the parties that his remuneration by commission on a percentage basis could only have meant a percentage of the amount actually received in taxes, not assessed whether paid or unpaid.

Clause 2 of the 1997 Agreement provided for the method of calculating the remuneration of the Applicant. Clause 2(IV) of this Agreement was however omitted altogether in the 1998 Memorandum of Amendment. This had provided that "the percentage will be paid on taxes actually collected whether collection occurs after the signing of the agreement or as a direct result of his assessment."

However, it is clear that whether in the old or new clause on the remuneration of the Applicant, the percentage was only on the amount of taxes actually received or collected. Therefore, if there was no collection for whatever reason, can the Applicant still claim commission? I do not think so.

I therefore do not find an error of law on the face of the Award when the Arbitrator found that the Applicant was not entitled to commission on taxes that might have been collected. To hold otherwise would be to grant a windfall as it were to the Applicant on sums that the Respondents never received for whatever reason. The lawfulness or illegality of the instructions to the Applicant is, in my view, besides the point - the point was no taxes were collected, therefore, logically and legally no commission could ensue.

WHAT WAS THE CORRECT OR PROPER BASIS FOR CALCULATING THE COMMISSION TO BE PAID TO THE APPLICANT: GROSS OR NET?

The contention here is that there is error of law on the face of the Award when the Arbitrator found that the Applicant was not entitled to be paid commission on the basis of published rates (gross) but only on net.

According to the Applicant, the correct and legally binding basis for calculating the taxes due from hotel proprietors in respect of the charges to their guests was on the "gross" or published rates by these establishments. Of course, this contention is understandable at least from the Applicant's point of view, for was this the basis of calculation it would naturally increase the cut, as it were, that would come to the Applicant in the form of commission to which he was entitled under the contract as remuneration.

The Arbitrator however found that on an interpretation of the definition of "accommodation charges" in the applicable Act that, is the Hotels and Tourist Accommodation Act - No. 12 of 1997, the Applicant was entitled to be paid commission only on the "net" and not on "the basis of the published rates."

Does this interpretation and finding by the Arbitrator constitute an error on the face of the Award as is contended for the Applicant? I do not think it is from all the circumstances of the reference before him and on a proper construction and application of the relevant provisions of the Act which imposed the tax and a true definition of the subject matter on which the tax was exigible.

It is to be observed that the words or expressions "net", "gross", "rack rate Plus mark up" or "published rates" are nowhere mentioned or defined in the Act itself. The tax, the assessment or collection of which the Applicant was engaged under the contract with the Respondents was "a tax imposed on all accommodation charges" (see preambular paragraphs of the contract dated 15 May 1997 in particular paragraph

(1)).

The basis of the computation of the tax on "accommodation charges" is at the heart of the Applicant's complaint on this score.

There may also perhaps be an element of commendable public-spiritedness behind the agitation of this issue as to the correct or proper rate of assessing or collecting the tax payable by hotel and tourist accommodation proprietors in respect of the charges their guests pay them. The Applicant may feel strongly that the authorities and consequently the public are being short-changed and not getting the full amount of the tax imposed by law. This may be so, but I think it is not, in law, a matter for the remuneration of the Applicant but between the authorities and the proprietors to see that the matter is immediately straightened out.

In fact, section 24 of the Hotels of Tourist Accommodation Act empowers the Registrar, for example, if he is satisfied that he has not been given a true account of the accommodation charges earned by a proprietor during any period, to make an assessment of the tax incidence due from that proprietor.

Section 22(1) of the Act is the warrant for the imposition of this tax and it provides:

"22(1) Subject to the provisions of this Act, there shall be levied and paid at the rate of seven per centum of all the accommodation charges in regard to lodging."

The term "accommodation charges" is defined in a Delphic-like fashion in section 2 of the Act as follows:

" 'Accommodation charges' means the sum paid or payable by or on behalf of guests for accommodation provided in a hotel or tourist accommodation, whether the sum becomes payable in Belize or otherwise."

However, a definition of "accommodation charges" under the old and repealed Hotels Act in Chapter 228 of the Laws of Belize provides as follows:

" 'accommodation charges' means the sum payable by or on behalf of guests for accommodation provided in a hotel exclusive of any other charges in respect of board, whether the sum becomes payable in Belize or otherwise" (emphasis mine)

The words "exclusive of any other charges in respect of board" are, it may be noticed, missing from the new Act - No. 12 of 1997.

This, I suspect may well be behind the divergence between the Applicant and the Respondents on the basis of the calculation of the tax. The Applicant contends that the incidence of the tax should be on the "gross".

This matter was indeed invested with an aura of technicality during the reference before the Arbitrator (see for example, paragraphs 67 to 74 of the Applicant's Statement dated 31st January 2000 before the Arbitrator).

The Arbitrator however cut through to the heart of the matter, in my view, in paragraph 7.2 of his Reasons For Award when he stated that the definition of "accommodation charges" in the Act referred to the amount paid by guests at hotels and that it would therefore be strange for the Registrar to insists, as the Applicant contends, on taxes being paid on published rates.

As I have already said, the term "published rate" whatever it may mean or include, is not mentioned or defined in the Act. I do not think that a proper and reasonable construction of section 2 of the Act on the meaning of "accommodation charges" and section 22 itself will bear out the contention urged on behalf of the Applicant.

I do not think therefore that the Arbitrator can properly be faulted on this score, and his finding that the Applicant is not entitled to be paid commission on the basis of published rates but only on net is not, I hold, an error of law on the face of the Award.

Finally on the issue of costs.

At the commencement of the hearing of this application, the learned Attorney for the Applicant sought leave to amend the Originating Motion by the addition of the following prayer:

"And in the event of it being ordered that the award be set aside or remitted, the costs of the reference and the award be paid by the Respondents and that in any event the costs of and incidental to this application be paid by the Respondents."

I granted the amendment sought. I must say however at the conclusion of the hearing of the application, learned counsel overlooked addressing the Court on this aspect of the application. I notice however from the Award itself that the Arbitrator awarded and directed that the Respondents should pay the claimant's (the Applicant before me) costs including the sum of $2000 already paid to the Arbitrator. The Arbitrator also awarded and directed that the Respondents should pay his fees and the expenses of (the) Arbitration, although he did not state any amount.

But for the amendment, no thought would have been given to this aspect of the matter.

Section 4 of the Arbitration Act - Chapter 69 of the Laws of Belize states the provisions which are deemed included in any submission unless a contrary intention is expressed. These are set out in the First Schedule to the Act and paragraph 9 thereof provides for the costs of the reference and the award to be in the discretion of the Arbitrator.

It is also the position generally that unless the arbitration agreement itself otherwise provide the costs of the award and of the reference are within the discretion of the arbitrator, who may direct by and to whom and in what manner these costs are to be paid. (Mustill & Boyd on Commercial Arbitration 2nd ed. at pp. 394 - 395.

It is however the usual practice for the Arbitrator to separate the costs of the award from the costs of the reference.

The costs of the award consists of the fees of the Arbitrator together with any expenses he, the Arbitrator, might have incurred.

The costs of the reference are the costs, other than the costs of the award, incurred by the party in whose favour the order as to cost is made: See Government of Ceylon Chanders (1963) 2 QB 327 at p. 333 per Megaw J.; and Mustill & Boyd op. cit at p. 400.

In his Award, the Arbitrator here did expressly award the costs of the reference to the Applicant/Claimant thus: "The Respondent shall pay the Claimant's costs including the sum of $2000 already paid to me."

The Arbitrator also ordered the Respondents to pay his fees and the expenses of the arbitration. In other words, he awarded the costs of the award against the Respondents although he omitted stating any amount in this regard.

It is the position that a reasoned award, as in the instant case, should deal with all the costs of the award and of the reference, and should not leave the Court to deal with the costs of the Arbitration - over which the Court has no jurisdiction - Re Knight and Tabernacle Permanent Building Society (1892) 2 QB 613; and Mustill & Boyd op. cit at p. 400. I believe the power to make orders as to costs in section 15 of the Arbitration Act in relation to this Court is confined to the costs of orders it may make in relation to applications concerning arbitration, and not, I suspect, as to the costs of the arbitration itself.

The power of the Arbitrator to make orders as to costs of the arbitration as I have said are either implied in the submission by law as contained in paragraph 9 of the First Schedule to the Act or contained in this section 15.

Therefore, unless and until the Arbitrator's award is set aside or remitted, his Orders as or the costs of the arbitration stand, which include the costs of the reference and the costs of the award.

However, this prayer in the motion is intrinsically linked with whatever I decide to do in the light of the Applicant's motion to this Court wherein he has asked me to either set aside the award or remit it.

In other words, to set aside or remit in all the circumstances of this case and what consequences flow from either course of action?

As the learned authors of Commercial Arbitration (Mustill and Boyd) acknowledge, in the 2nd edition of their work, although there are many reported cases in which the Court has ordered setting aside or remission, there are few in which the opportunity has been taken to explore the consequences of the remedy once granted (at p. 565).

In so far as setting aside is concerned, it is evident that the effect of such an order from the Court is to deprive the award of all legal effect. Where however, the award is severable, and part only is set aside, the valid part remains as an effective adjudication. This much is agreed upon.

However, section 12 of the Arbitration Act - Chapter 69 of the Laws of Belize, limits the power of setting aside an award to only where the arbitrator has misconducted himself or the award has been improperly procured.

In the case of remission, it appears that the effect of it on an Award is that if it covers all the matters referred, the Arbitrator resumes all his authority over the dispute and the original award falls away. Where the remission applies to only some of the matters referred, that is, partial remission, as is allowed clearly by section 11(1) of the Arbitration Act - Chapter 69 of the Laws of Belize by the words "or any of them" therein, those parts not touched by the order of remission stand and the Arbitrator cannot vary his award in respect of these. In other words it is the issue or issues remitted for reconsideration to the Arbitrator by the Court which from the subject of remission and not the award itself

Therefore, as I've in the circumstances of this application decided that only those aspects of the reference relating to the breach of contract that should be remitted to the Arbitrator for reconsideration, the parts of the award relating to the Applicant's claim in paragraph 17(1), (2) and (3) of his Statement of Claim stand, including his award as to the costs of the reference and the award.

The issue of breach of contract and the quantum of damages thereof are hereby remitted to the Arbitrator. I therefore order and remit the Award to the Arbitrator to reconsider the issue of:

l) the breach by the Respondents of the contract with the Applicant,

ll) the Applicant's claim for damages for the breach of the contract, that is, the quantum he is entitled to.

I also order that the Arbitrator shall make and publish his Award not later than three calendar months from the date of this Order.

The costs of this application is awarded to the Applicant in the sum of $5,000.00.

A. O. CONTEH
Chief Justice

DATED: 6th July, 2000.