Is Respondent Ufuoma Emore presently a party in this arbitration in her capacity as agent or duly authorized representative of the Company, or Obrutse, or some other capacity?
The only other capacity [i.e., other than as "agent or duly authorized representative of the Company, or Obrutse] in which Respondent can appear in this matter would be in her personal capacity. Apart from the fact that her appearance in such [personal] capacity would not be helpful to Claimant, the Respondent is not willing to personally carry the burden of a matter that is properly that of the estate.
For the reasons stated above, the Respondent respectfully submits that she is not the proper party to these proceedings and that her being brought in to defend this action by Claimant is misconceived. The Respondent requests that the Tribunal dismiss this action against her with costs in the sum of $200,000.00
Ms. Emore repeatedly confirmed in the course of the hearing that she was the Decedent's successor ("I am the one also in charge of Imoniyame"). She also conceded that as its "executive chair" no one would have prevented her from appearing on its behalf when the arbitration was first instituted because she "would have had that capacity."
 It may well be that that Ms. Emore was agent of, or in control of the Company as well as agent for the deceased for certain purposes, as a result of her involvement with the Company and her father’s business.  This was confirmed in cross examination when she admitted being "in charge" of Imoniyame and its "executive chair."  Based on discussions with Claimants or their counsel prior to the arbitration commencing, counsel for Claimants may well have honestly and correctly believed she was the Company’s agent, but this is beside the point.  The point is that this arbitration was commenced without naming Ms. Emore as agent for the Company, nor did she file an Answer in that capacity or ever hold out in this arbitration that she was responding as agent for the Company.  Based on the evidence set out in the emails and submissions referred to above, Respondent cannot be said to have misled or deceived either this tribunal or the Claimants.  The hearing on costs was not a hearing on the merits of either side’s position regarding the extent of Ms. Emore’s agency and labeling her evidence as untruthful or truthful misses the point.  It is clear from Claimants’ own correspondence, referred to in paragraphs 61 and 62 that Ms. Emore was named as Executor and as the agent for the deceased and was added as a party only because of Mr. Obrutse's death. she was not named as agent for the Company.
For the reasons stated above, the Respondent respectfully submits that she is not the proper party to these proceedings and that her being brought in to defend this action by Claimant is misconceived. The Respondent requests that the Tribunal dismiss this action against her with costs in the sum of $200,000.00.
Jurisdictional grounds in her Answer and refused to pay any portion of the $180,000advance fixed by the ICC. Instead, she continued to reinforce Claimants’ belief that she
had standing and authority to assert substantive defenses to the merits of the claims by continuing to do so until she stated otherwise in September 2013.
Respondent raised certain jurisdictional issues in her Answer. In particular she alleged that Mr. Obrutse had died intestate and she was not his Executor and as such [i.e., as his Executor] not a proper party to the proceedings. Further, she alleged that in law, any agency ended upon Mr. Obrutse’s death. Pursuant to Article 6(3) of the ICC Rules, these issues were not referred to the Court but left to thé Tribunal to decide. Substantive defences, including a claim that the MOU was a fabrication and not all pages had been signed or agreed to by Mr. Obrutse were also pleaded. (Emphasis added.)
The Respondent points out that in her Answer she made the position of her lack of legal capacity very clear, but the Claimants chose to close their eyes to the facts and to persist in pursuing their claims against her even in the face of very clear evidence that she lacks legal capacity to be sued in this matter.
Claimants chose to not deal with the fact that the Company was not properly named in the proceedings and attempted to get around this by arguing Ms. Emore was named as its agent.
Thus, it appears that the Tribunal is now suggesting that Claimants should not have named Ms. Emore as a Respondent in this arbitration in any capacity and that they should have named the Company, as an entity, as the only Respondent in their Request for Arbitration instead of naming Ms. Emore as the person who the Decedent authorized to represent the Company as his agent for matters relating to the Company. In addition to the absurdity of this new argument, it is clear from the record that the MOU states the following on the first page thereof:
NOW, THEREFORE, the parties hereby agree as follows:
(A) The Parties recognize that Imoniyame Holdings, Ltd., 11 Adelabu Street, Surulere. Lagos, Nigeria, Attn: Ufuoma O. Emore, will act as agent for [Decedent] Stafford.
Thus, Claimants had no choice but (1) to name Ms. Emore as a Respondent in her capacity as the Agent for the Decedent re the Company instead of naming the Company, as an entity, as the only Respondent, and (2) to serve Ms. Emore with a copy of the Request for Arbitration at the above address, the fact of such service is not in dispute.
If Respondent had disclosed in her Answer to the Request for Arbitration that, following the death of Mr. Obrutse, she had no authority to act for or represent the Company, Claimants would have withdrawn their claims in this arbitration and avoided the need to pay the last $40,000 of Claimants' share of the original $180,000 fee deposit. Instead, Respondent continued to lead Claimants down the proverbial "primrose path," causing them to spend up to $412,250 in prosecuting their arbitration claims against the wrong party. Thus, Respondent should be ordered to pay to Claimants the costs they incurred including legal fees and their $90,000 deposit.
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