Arbitration

Before Their Lordships

OBANDE FESTUS OGBUINYA - Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI - Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR - Justice of The Court of Appeal of Nigeria

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Between

CIG MOTORS COMPANY LIMITED - Appellant

And

MIDASCOPE GLOBAL RESOURCES LIMITED - Respondent

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ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Lagos State High Court in Suit No. ID/ADR/1177/2019 delivered by J.E Oyefeso on 12th February, 2020 wherein the learned trial judge dismissed the Appellant's application dated 4th March 2019 praying the Court to grant as follows:

1. An order for stay of proceedings of this matter pending the referral of the dispute and determination of same by Arbitration.

2. And for such further order(s) as the Court may deem fit to make in the circumstances.

The action culminating into the instant appeal was commenced by the Respondent at the High Court of Lagos State vide a Writ of Summons filed on 21st January, 2019 wherein the Respondent as Claimant claimed as follows:

1. The sum of N7, 043,161.25 (Seven Million and Forty three Thousand, One Hundred and Sixty One Naira and Twenty- Five Kobo, Claimant under and by virtue of their Branding Contract service transactions.

2. The sum of N20,000,000.00 (Twenty Million Naira) as general, punitive and exemplary damages for breach of contract, and for the wrongful conducts of the defendant in wrongfully breaching the Claimant's right to fair trade, negligence and lack of exercise of care on the part of the Defendant.

3. Legal cost of this suit at a flat charge of N1,550,000.00 (One Million, Five Hundred and Fifty Thousand Naira only

4. Interest on the total sum claimed at the rate of 21% per annum from the date of issuance of this writ till judgment and from the Day of Judgment till the date the judgment sum is fully paid and liquidated.

After being duly served with the originating processes in the suit, the Appellant entered a conditional appearance and filed an Application wherein it prayed for an order for stay of proceedings in the matter pending the referral of dispute and determination of same by Arbitration. In response to the Appellant's Application for stay of proceedings, the Respondent filed a Counter Affidavit dated 14th March, 2019 together with a written address to which the Appellant filed a Reply on Point of Law dated 27th March, 2019. The Respondent thereafter filed a Motion on Notice dated 27th March, 2019 praying the Court to enter final judgment against the Appellant for default of pleadings. The Appellant in response filed a counter affidavit dated 3rd April, 2019 urging the trial Court to dismiss the Respondent's application for final judgment.

The Appellant's application for an Order for stay of proceedings dated 4th March 2019 was heard on the 11th December, 2019 and the lower Court on 12th February, 2020 delivered its ruling and dismissed the Appellant's application on the ground that the filing of a Counter Affidavit to the Respondent's motion for default judgment is a submission to the jurisdiction of the lower Court and the Appellant can no longer take advantage of Section 5 of the Arbitration Act.

Dissatisfied with the ruling of the lower Court, the Appellant filed a Notice of Appeal dated 9th July, 2020 and filed on the 13th July, 2020 containing Four (4) grounds of appeal upon which the Appellant sought to set aside the lower Court's decision.

The parties filed and exchanged their respective Briefs of Argument and were deemed on the 26th April, 2022. The Appellant's Brief of Argument was settled by Kelechi Okeke Esq. Counsel to the Appellant formulated the following issues for the determination of this Appeal in the Appellant's Brief of Argument to wit:

1. Whether the trial Court was right in raising suo motu and deliberating on the issue as to whether the subsequent counter affidavit filed on 3rd April, 2019 by the Appellant in opposition to the Respondent's Motion for Default Judgment amounted to submitting to the jurisdiction of the Court, without inviting the parties to address the Court on that issue raised suo motu by the Court?

2. Whether the learned trial judge was right by striking out paragraphs 6 and 7 of the Appellant's affidavit dated 4th March, 2019

3. Whether the learned trial judge was right by holding that the Appellant has submitted to the jurisdiction of the Court and can no longer take advantage of Section 5 of the Arbitration Act for subsequently filing a counter affidavit and thereafter, dismissed the Appellant's application for stay of proceedings?

The Respondent's Brief of Argument was settled by Tochi G. Ekwuogo Esq. Respondent's Counsel also nominated three (3) issues for determination in the said Respondent's Brief thus:

1. Whether the Court below raised suo motu and decided the issue of whether the subsequent counter affidavit filed by the Appellant in opposition to the Respondent's Motion for Default Judgment amounted to submitting to the jurisdiction of the Court, without affording the parties the opportunity of an address on same?

2. Whether the learned trial judge was right by striking out paragraphs 6 and 7 of the Appellant's affidavit dated 4th March 2019?

3. Whether the learned trial judge was right by holding that the Appellant has submitted to the jurisdiction of the Court and can no longer take advantage of section 5 of the Arbitration and Conciliation Act for subsequent filing a counter affidavit and thereafter dismissed the appellant's application for stay of proceeding?

Learned Counsel to the Appellant responded by filing a Reply Brief on 18th Day of February, 2021. The respective briefs of argument of the Appellant and the Respondent were argued and adopted on 27th April, 2022. I have given due consideration to the grounds of Appeal, the issues distilled therefrom, and the arguments put forward by Counsel in their respective briefs and I have therefore framed the following two issues which succinctly encompasses all the issues raised by the Appellant and upon which I shall determine this appeal thus:

1. Whether the lower Court was right to have dismissed the Appellant's application for Stay of Proceedings pending Arbitration for violating the provisions of Section 5 of the Arbitration and Conciliation Act, 2004.

2. Whether the lower Court was right to have struck out paragraphs 6 and 7 of the Appellant's affidavit in support of his Application for Stay of proceedings pending Arbitration.

ISSUE ONE

Whether the lower Court was right to have dismissed the Appellant's application for Stay of Proceedings pending Arbitration for violating the provisions of Section 5 of the Arbitration and Conciliation Act, 2004.

APPELLANT'S ARGUMENT

Counsel to the Appellant submitted that the Appellant and the Respondent at the lower Court did not raise the issue of whether the filing of a counter affidavit dated 3rd April, 2019 by the Appellant in response to the Respondent's motion for default judgment is tantamount to Appellant submitting to the jurisdiction of the Court and thus will no longer be able to rely on Section 5 of the Arbitration and Conciliation Act. Counsel to the Appellant relied on the case of Akere v Governor of Oyo State (2012) 12 NWLR (Part 1314) 240 to argue that since the issue was not placed before the Court, the Court ought not to have raised and resolved the issue suo motu.

The counsel to the Appellant submitted that the lower Court ought to call the parties to address it on any issue raised suo motu before the Court can proceed to resolve such issue. Therefore, the lower Court's failure to call parties to address the issue raised suo motu by the Court was a breach of the parties right to fair hearing, especially to the Appellant. Counsel to the Appellant relied on the case of Unity Bank PLC v Denclag Ltd (2012) 18 NWLR (Part 1332) 293

Counsel to the Appellant submitted that Section 5 (1) of the Arbitration and Conciliation Act provides that if any party to an arbitration agreement commences any action in any Court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement may, at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to the Court to stay the proceedings. Counsel to the Appellant further submitted that by the wordings of section 5 of the Arbitration Act, pleadings must not be delivered or further step must not be taken before filing application for stay of proceeding. Counsel to the Appellant submitted that the Appellant filled a Counter Affidavit dated 3rd of April, 2019 to the Respondent's Motion on Notice dated 27th March, 2019 after he had already filed an Application for an Order for stay of proceedings pending arbitration dated 4th March, 2019 and that the Appellant had not taken any step further in the matter neither had he delivered any pleadings before filing the application for an Order for Stay of Proceedings, therefore the Appellant has not violated the provisions of Section 5 of the Arbitration and Conciliation Act.

Counsel to the Appellant submitted that it is a fundamental principle of interpretation of the words of a statute that where the words used are clear and unambiguous, it should be given their ordinary meaning and as such the ordinary, plain and literal meaning of Section 5 of the Arbitration and Conciliation Act should be employed without more. Counsel relied on the case of Okotie-Eboh v Manager & Ors (2004) LPELR-2502 (SC).

Counsel to the Appellant therefore urged this Court to set aside the order of dismissal of the Appellant's application for stay of proceedings pending arbitration and substitute same with Order for Stay of proceedings pending the referral of dispute to and determination of same by Arbitration.

RESPONDENT'S ARGUMENT

In response to the argument of the counsel to the Appellant on this issue, the Respondent's counsel submitted that the issue dealt with by the lower Court was the issue of jurisdiction of the Court to entertain the Respondent's suit without first referring the matter to arbitration as required by section 5 of the Arbitration and Conciliation Act which was evident in the Appellant's motion for stay of proceedings, therefore, the lower Court cannot be said to have raised and decided the issue suo motu.

It is also the submission of Respondent's counsel that the lower Court while considering the provisions of Section 5 of the Arbitration and Conciliation Act vis-à-vis the processes filed before it was convinced that the said provisions of Section 5 of the Arbitration and Conciliation Act under which the Appellant sought to oust the jurisdiction of the Court was already breached by the Appellant when the Appellant took further steps in the matter by filing further processes in the matter.

Respondent's counsel further submitted that assuming without conceding that the lower Court raised the issue suo motu, the Court would be within its right to do so. Respondent's counsel submitted that the principle that requires that parties should be given a hearing when a Court raises an issue suo motu may not be necessary where the issue pertains to the Court's jurisdiction. Counsel relied on the case of Omokuwajo v FRN (2013) 6 SCM, 193; NNPC v Roven Shipping LTD & Anor (2019) 6 SCM, 145.

Respondent's Counsel submitted that the lower Court was right when it held that the Appellant had submitted to the jurisdiction of the Court and could no longer take advantage of Section 5 of the Arbitration and Conciliation Act for filing a counter affidavit in response to the Respondents application for default judgment. Counsel submitted that a party who intends to seek the order for stay of proceedings must not take any further step in respect of the action pending in Court, except for filing its memorandum of appearance, but since the Appellant had further filed a counter affidavit in response to the Respondent's motion for default judgment, that amounts to taking further steps in the proceedings and as such the Appellant has submitted himself to the jurisdiction of the lower Court and cannot invoke Section 5 of the Arbitration and Conciliation Act. Respondent's counsel relied on the case of Obembe v Memabode Estates Ltd (1977) LPELR- 2161 (SC)

Respondent's counsel also submitted that the grant of stay of proceedings is discretionary and the lower Court is not bound to grant the order of stay of proceedings as prayed by the Appellant, Counsel to the Respondent relied on the case of Onward Enterprises Ltd v MV Matrix (2008) LPELR-4789.

APPELLANT'S REPLY

In response to the submissions of the Respondent's counsel on this issue, the counsel to the Appellant submitted that the Respondent is wrong to argue that the counter affidavit to the Respondent's motion for default judgment amounted to submitting to the jurisdiction of the Court because the said counter affidavit was filed to oppose the Respondent's motion for default judgment after the Appellant's had earlier filed an Application for stay of proceedings pending arbitration.

Counsel to the Appellant also submitted that it is erroneous for the Respondent to argue that the issue of the Appellant's breach of Section 5 of the Arbitration and Conciliation Act raised by the lower Court pertains to jurisdiction and that an arbitration clause in an agreement does not raise the issue of jurisdiction, Counsel to the Appellant relied on the case of Bill & Brothers Ltd. & Ors. v Dantata & Sawoe Construction Co. (Nig.) Ltd & Ors (2015) LPELR-24770 (CA)

RESOLUTION OF ISSUE ONE

In resolving this issue, let me begin by saying that it is a misconception of the law to argue that the mere presence of an arbitration clause in a contract, or agreement by parties to submit a dispute to arbitration, ousts the jurisdiction of the Court. In the case of City Engineering Nig. Ltd v. F. H. A. (1997)9 NWLR (Part 520) 224, the Supreme Court pronounced on this position of law unequivocally that an agreement to submit a dispute to arbitration clause does not oust the jurisdiction of the Court. See also Confidence Ins. Ltd v Trustees of O. S. C. F. (1999) 2 NWLR (Part 591) 373

It is the argument of the Respondent that the Appellant seeks to oust the jurisdiction of the lower Court when it filed an application for an order for stay of proceeding pending arbitration. There is nothing in the face of the Appellant's application for stay of proceedings that suggests that the Appellant was seeking the ouster of lower Court's jurisdiction on the matter.

It will be apt to state that an arbitration clause is only a stop-gap process which should never be placed in the realm of an ouster clause. In essence, Section 5 of the Act has the effect of staying the proceedings subject to the satisfaction of the necessary conditions provided in Subsection 2 and not to oust the Court of the jurisdiction to entertain the matter See Fastech (Nig.) Ltd v Zamfara State Govt. & Ors. (2019) LPELR-48135 (CA); Magbagbeola V. Sanni (2000) 4 NWLR [PT.756] 193

Therefore, an arbitration clause in an agreement is simply to postpone the right of either of the parties to litigation whenever the other contracting party elects to submit the dispute under the agreement to arbitration. The rationale for this position of law is for the reason that agreement of parties cannot override or exclude the constitutional or statutory jurisdiction conferred on the Court. Parties cannot by their agreement or otherwise confer or dislodge the Court of jurisdiction. See the case of Fastech (Nig) Ltd v Zamfara State Gov. & Ors. (supra) I therefore conclude that the Appellant in the instant case did not seek to oust the jurisdiction of the lower Court when he filed an application for stay of proceedings pending arbitration.

The fulcrum of this Appeal is whether the Appellant was in breach of Section 5 of the Arbitration and Conciliation Act when it filed a counter affidavit dated 3rd of April, 2019 to oppose the Motion for default judgment filed by the Respondent on the 27th March, 2019. Section 5 of the Arbitration and conciliation Act provides thus:

5(1) If any party to an arbitration agreement commences any action in any Court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement may, at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to the Court to stay proceedings.

(2) A Court to which an application is made under Subsection (1) of this section may, if it is satisfied-

(a) That there is no sufficient reason why the matter should not be referred to arbitration in accordance with the arbitration agreement; and

(b) That the applicant was at the time when the action was commenced and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, make an order staying the proceedings.

The express wording of the provision cited above states unequivocally that any party to the arbitration agreement "MAY AT ANY TIME AFTER APPEARANCE…" apply to the Court to stay proceedings. This provision is so unambiguous and explicit that even a layman need not go looking for a Blacks' Law Dictionary for the interpretation of same. But for the sake of clarity, I will give a further insight into this provision of the intendment of Section 5(1) of the Arbitration and Conciliation Act (2005).

What this particular provision is saying in simple terms is that the only necessary process for the Appellant to file at the lower Court, after he must have entered his appearance, is an application praying the lower Court to stay proceeding pending the determination of the Arbitration and that is exactly what the Appellant has done in this instance filing the Application dated 4th March 2019.

In Hassan v Unity Bank (2018) LPELR-45261, it was held that by virtue of Section 5 of the Arbitration and Conciliation Act, 2004, if any party to an arbitration agreement, commences any action in Court with respect of any matter which is the subject of an arbitration agreement, any party may at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to the Court to stay proceedings. See also Owners of the MV, LUPEX v Nigerian Overseas Chartering and Shipping Ltd (2003) LPELR-3195(SC).

The wordings of section 5 of the Arbitration Act is very clear and plain in that any party to an arbitration agreement may, at any time after appearance and before delivering pleading or taking any other steps in the proceedings, apply for stay of proceedings. We must note the words "After Appearance" and "before delivering pleading or taking any other steps in the proceedings". This provision by simple interpretation is not complicated at all. Thus, when the words of the statute are very clear, plain and unambiguous without equivocation, the Courts are bound to give effect to that meaning irrespective of the consequences. See the case of Nwobike v. FRN (2021) LPELR-56670(SC); Umeano&Ors v. Anaekwe& Anor (2022) LPELR-56855(SC).

It is my view therefore that the Respondent's interpretation of the Appellant's Motion to stay proceedings pending arbitration to mean that the Appellant was in default of pleadings is erroneous and so allowing the order of dismissal of the said application granted by the lower Court against the Appellant will mean that the Court has vested in the Respondent, the vires to amend and interpret the extant provision of Section 5(1) of the Act on the terms of the Respondent.

Essentially, for the party to bring himself within the ambit of Section 5(1) of the Arbitration and Conciliation Act, He must comply with all the 3 conditions, namely (i) enter appearance, (ii) file no defence or take no further steps in the proceedings and then (iii) apply to the Court to stay the proceedings pending arbitration. See African Insurance Development Corporation v Nigeria Liquefied Natural Gas Ltd (2000) 4 NWLR Part 653 Page 494; Fastech (Nig.) Ltd v Zamfara State Govt&Ors (supra).

These three conditions which must all co-exist are the conditions precedent to the grant of stay. In the instant case, the Appellant at the lower Court filed a Memorandum of Conditional Appearance on the 4th of March, 2019 and same day applied to the Court for stay of proceedings pending arbitration. It is clear from the records before this Court that apart from the Memorandum of Conditional Appearance filed by the Appellant, the Appellant took no further step in the proceedings, the Appellant had not delivered his pleadings nor has it filed any other application before the Application for stay of proceedings pending arbitration.

In determining what constitutes taking "steps in the proceedings", the Supreme Court in the cause of Obembe v Wemabod Estates Ltd (1977) Vol 11 NSCC 24 held thus:

"In order to get a stay, a party to a submission must have taken no step in the proceedings. A party who makes any application whatsoever to the Court, even though it be merely an application of extension of time, takes a step in the proceedings"

See also Seaport Global Services Ltd & Anor v MT Oryx Trader & Ors (2021) LPELR-56255. Therefore, if the Appellant has done any of these before filing his Application for stay, it would be regarded as taking "steps in the proceedings" but the Appellant had only filed his Memorandum of Appearance. In the case of Confidence Insurance Ltd v Trustees of O.S.C.E (supra), Achike, JCA (as he then was) had this to say

"It is perfectly clear to me that mere entering an appearance by the appellant be it conditional or unconditional appearance, is not controlling nor relevant to the party's right to rely on the arbitration clause inserted in the parties' agreement. On the contrary, it is in fact what happens after a party has entered an appearance that matters in determining whether or not such a party can still take advantage of the aforesaid arbitration clause."

In light of the above, it is clear that any application or pleading other than the Motion for stay of Proceedings filed after the entering of appearance will amount to taking "steps in the proceedings". In the instant case, the Appellant did not file an application whatsoever nor did it deliver any pleadings after it entered appearance. The only application filed by the Appellant after memorandum of Appearance was the Application for stay of proceedings pending Arbitration.

The Respondent, after the Appellant had filed an Application for stay of proceeding pending arbitration, went ahead to file an application for default judgment to which the Appellant responded by filing a counter affidavit. I find it mischievous that the Respondent was quick to apply for default judgment when the Appellant's application for stay of proceedings pending arbitration was yet to be heard.

So long as an arbitration clause is retained in a contract that is valid and the dispute is within the contemplation of the clause, the Court ought to give due regard to the voluntary contract of the parties by enforcing the arbitration clause as agreed by them. Where there is an application for stay of proceedings pending arbitration, the Courts have been advised to lean towards granting it. See: Sacoil 281 (Nig.) Ltd & Anor v Transnational Corporation of (Nig.) Plc (2020) LPELR-49761 (CA) see also Neural Proprietary Ltd v UNIC Insurance Plc. (2015) LPELR-40998. By reason of this and upon the fulfillment of all the three conditions mentioned earlier and highlighted in the case of African Insurance Development Corporation v Nigeria Liquefied Natural Gas Ltd (supra) that I hold that in the circumstances, the Appellant did not violate the provisions of Section 5 of the Arbitration and Conciliation Act when it filed a counter affidavit in response to the Respondent's motion for default judgment. In the light of this, I hold that the Appellant is entitled to stay of proceedings pending Arbitration.

ISSUE TWO

Whether the lower Court was right to have struck out paragraphs 6 and 7 of the Appellant's affidavit in support of his Application for Stay of proceedings pending Arbitration.

APPELLANT'S ARGUMENT

Relying on the case of Josien Holdings Ltd & Ors v Lornamead Ltd & Anor (1995) LPELR-1634 (SC), Counsel to the Appellant submitted that where an affidavit in support of an application contains extraneous materials in form of legal arguments, opinions and conclusions, such affidavit is in breach of Section 115 of the Evidence Act, 2011.

Counsel to the Appellant submitted that the Appellant in paragraphs 6 and 7 of the Affidavit dated 4th March, 2019 in support of the motion on Notice for stay of proceedings pending arbitration deposed thus:

6. That I know as a fact the Defendant/Applicant is willing and ready to go through arbitration to resolve the instant dispute between the Claimant/Respondent and the Defendant/Applicant.

7. That it will be in the interest of justice to allow the parties refer this instant dispute to arbitration for determination

Appellant's counsel submitted that the deposition contained in paragraphs 6 and 7 of the Appellants Affidavit dated 4th March, 2019 are facts and not legal arguments or opinion contrary to Sections 67 and 115 of the evidence Act therefore the lower Court was wrong by striking out paragraphs 6 and 7 from the Appellants affidavit.

RESPONDENT'S ARGUMENT

Respondents Counsel argued that it was paragraphs 6 and 7 of the Counter Affidavit dated and filed on the 14th of March, 2019 by the Respondent in response to the Appellant's Application for stay of proceedings that was struck out by the lower Court and not the paragraphs 6 and 7 of the Appellant's Affidavit in support of motion for an Order for stay of proceedings pending Arbitration dated and filed 4th of March, 2019. Respondent's Counsel further argued that the lower Court only made a clerical error when it referred to the Appellant who was the Defendant/Applicant as the "Claimant." Respondent's Counsel argued that the Appellant could have just put the lower Court on notice of the error instead of making it an issue for appeal.

Respondent's Counsel however agreed with the Lower Court that paragraphs 6 and 7 of the Respondent's Counter Affidavit dated 14th March, 2019 indeed violated Section 115 of the Evidence Act, 2011 but urged this Court to hold that in the circumstances, the clerical error in the ruling of the lower Court would not vitiate the decision of the lower Court. Respondent's Counsel relied on the case of Osayande v Aikpitanyi&Ors (2010) LPELR-4802 (CA)

APPELLANT'S REPLY

Counsel to the Appellant argued that the lower Court did not make any mistake of referring to the Appellant as the 'Claimant' instead of the 'Defendant'. Counsel to the Appellant argued that the ruling of the Lower Court is very clear and unambiguous.

Counsel to the Appellant further argued that assuming Ground Two of the Notice of Appeal to wit:

"The learned trial judge erred in law by holding that "I agree with the Claimant that some of the paragraphs of the affidavit contain legal arguments contrary to Section 67 and 115 of the evidence Act. Therefore, paragraphs 6 and 7 are struck out"

Inures to the favour of the Appellant, the Respondent can only challenge the competence of Ground Two of the Notice of Appeal by way of Preliminary Objection and not in the Respondent's Brief and the Respondent's failure to come by way of Preliminary Objection makes the submission of the Respondent to be incompetent. Counsel relied on the case of GTB PLC v Fadco Ind. Nig. Ltd & Anor (2013) LPELR-21411 (CA)

RESOLUTION OF ISSUE TWO

From the face of record before this Court, the Appellant as the defendant at the lower Court filed a Memorandum of Conditional Appearance together with an application for an Order for Stay of Proceedings pending Arbitration to which the Respondent filled a Counter Affidavit and Written Address in support dated 14th March, 2019. (See page 142-143 of the Record)

The Appellant subsequently filed a Reply on Point of Law dated 27th March, 2019 to the Respondent's Written Address wherein the Appellant raised issue against paragraphs 6 and 7 of the Respondent's Counter Affidavit that the Counter Affidavit contains conclusions and legal argument in breach of section 115 of the evidence Act. The said paragraphs 6 and 7 of the Respondent's Counter Affidavit is hereby reproduced.

6. that the said arbitration clause simply relates to disputes arising out of the interpretation and/or application of the agreement as thus provided: "if any dispute between the parties hereto relating to the interpretation and/or application of this agreement which cannot be resolved by mutual consultation, such dispute shall be referred to arbitration in accordance with the Arbitration Act, 1990 Laws of the Federation of Nigeria, and any amendments thereto"

7. That the claimant's cause of action as contained in its statement of claim is not related to the interpretation and/ or application of the agreement of 1st July 2018. but rather it is for a liquidated money demand for an unpaid balance sum of N7,043,161,25 (Seven Million and Forty Three Thousand, One Hundred and Sixty One Naira and Twenty Five Kobo) owed to it by the Defendant/ Applicant with damages and interest thereof. See Page 160-161 of the record.

The Lower Court was not specific and particular in mentioning the affidavit it was referring to in the ruling delivered on the 12th of February, 2020 where the lower Court held:

"I agree with the claimant that some of the paragraphs of the Affidavit contain legal arguments contrary to Sections 67 and 115 of the Evidence Act. Therefore, Paragraphs 6 and 7 are struck out"

See page 186 of the record. Thus there is not records upon which these argument can be predicated and this Honourable Court cannot speculate whether the lower Court was referring to the Appellant's Affidavit in support of the Application for Stay of Proceedings pending Arbitration or the Respondent's Counter Affidavit. Therefore, in the circumstance, this Court will not speculate or assume to know the mind of the lower Court that are not expressly contained in the records.

It would have been appropriate for the Appellant (or even the Respondent) to bring this "perceived clerical error" to the notice of the lower Court and seek clarification before making it a ground of appeal.

Furthermore, it is my view that the argument of the Counsel to the Appellant that the Respondent can only challenge the competence of Ground Two of the Notice of Appeal by way of Preliminary Objection and not in the Respondent's Brief and that the Respondent's failure to come by way of Preliminary Objection makes the submission of the Respondent to be incompetent is misconceived. It is trite that a Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal. This is because, if the Preliminary Objection succeeds, that will be the end of the appeal. See NEPA VS. Ango (2001) 15 NWLR (Pt. 737) 627. On the whole, this issue goes to no issue as it is baseless and unwarranted.

However, in the final result and on the strength of the crux of this appeal which has been resolved in favour of the Appellant, there is merit in this appeal, therefore this appeal succeeds and thus allowed. The Ruling of the High Court of Lagos per J.E. Oyefeso, J delivered on 12th February 2020 in Suit No: ID/ADR/1177/2019 is hereby set aside.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in draft, the elegant leading judgment delivered by my learned brother: Abubakar Sadiq Umar, JCA. I concur fully with the reasoning and conclusion in it. I, too, allow the appeal in the manner decreed in the leading judgment. I abide by the consequential orders contained in it.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read, in draft form, the judgment just delivered by my learned brother, Abubakar Sadiq Umar, JCA, in which this appeal was allowed. I agree with, and adopt as mine the resolution of the issues in contention. I will only make few comments in support.

I want to first point out that although the duty of the Court to uphold and enforce arbitral clauses in agreements is well settled, such clauses do not, a fortiori, oust the jurisdiction of the Court. This is because the jurisdiction of the Court, which is constitutional, cannot be eroded by an arbitral clause. Rather, by an arbitral clause, the jurisdiction of the Court is merely placed in abeyance, as it were, when activated. The Court may, upon application, make an order to stay proceedings before it, pursuant to Sections 4 (1) and 5 of the Arbitration and Conciliation Act, which provide:

4 (1) A Court before which an action which is the subject of an arbitration agreement is brought shall, if any party so requests not later than when submitting his first statement on the substance of the dispute. order or stay of proceedings and refer the parties to arbitration.

5 (1) If any party to an arbitration agreement commences any action in any Court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement may, at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, to the Court to stay the proceedings.

(2) A Court to which an application is made under Subsection (1) of this Section may, if it is satisfied-

(a) that there is no sufficient reason why the matter should not be referred to arbitration in accordance with the arbitration agreement; and

(b) that the applicant was at the time when the action was commenced and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, make an order staying the proceedings.

See also Obembe v. Wemabod Estates Limited (1977) LPELR-2161(SC) where the Supreme Court at page 18 of the E-Report made it clear that:

"...any agreement to submit a dispute to arbitration, such as the one referred to above, does not oust the jurisdiction of the Court. Therefore, either party to such an agreement may, before a submission to arbitration or an award is made. commence legal proceedings in respect of any claim or cause of action included in the submission (See Harris v. Reynolds (1845) 7 Q.B 71). At common law, the Court has no jurisdiction to stay such proceedings, Where, however, there is provision in the agreement as in Exhibit 3, for submission to arbitration the Court has jurisdiction to stay proceedings by virtue of its powers under Section 5 of the Arbitration Act (Cap. 13 of the Laws of the Federation)."

An applicant is required by the Act, to make application for stay of proceedings at the earliest. before taking Steps in the matter. Therefore, where the applicant has taken no step, the correct order for the Court to make upon application, is one to stay proceedings, and not one striking out the suit. The Appellant was therefore entitled to an order staying proceedings pending arbitration.

For this reason, and for the fuller reasons given in the leading judgment, I also allow the appeal, and set aside the ruling of the lower Court delivered in this matter on 12/2/2020.

Appearances

Kelechi Okeke - For Appellant

Ekwuogo Tochi, with him, Benjamin Obi - For Respondent

Judgment

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment) : This appeal is against the ruling of the High Court of Delta State sitting at Effurun (the lower Court) delivered on 1/6/2017 in Suit No. EHC/161/2017 by Gbemre, J. In the ruling, the lower Court upheld the preliminary objections filed by the 1st and 2nd respondents against the suit filed by the appellant on the basis that the dispute between the parties ought to be submitted to arbitration as stipulated in the agreement governing their relationship. The lower Court therefore struck out the suit.

Aggrieved by the decision, the appellant appealed to this Court by the means of a notice of appeal filed on 30/6/2017, which notice was amended by the leave of this Court granted on 8/2/2021. ​The facts of the case that led to this appeal as are relevant to the issues to be discussed in this judgment are that the appellant was engaged by the 1st respondent to construct a proposed College of Science for it. The contract was governed by Articles of agreement and conditions of service.

The appellant stated that it completed the job and the 2nd respondent, the architect, engineer and planner engaged by the 1st respondent for the job, submitted the architect’s final certificate to the (1st) respondent in favour of the appellant. The said certificate certified the sum of N51,572,556.39 as being due to the appellant. Upon default of payment, the appellant wrote a demand notice to the (1st) respondent. When payment was not made, the appellant filed a writ of summons accompanied by a statement of claim in which it claimed monetary reliefs against the respondents.

The appellant also applied for summary judgment against the respondents. In response, the 1st respondent entered a conditional appearance and filed a notice of preliminary objection praying the lower Court to dismiss or strike out the suit on the grounds that the suit was incompetent and that the lower Court lacked the jurisdiction to entertain the same.

The 1st respondent subsequently filed a notice of intention to defend, an affidavit disclosing a defence on the merit, a statement of defence and a motion for extension of time within which to file the said processes. ​ The 2nd respondent on his part filed a statement of defence, witness deposition and a notice of preliminary objection to the suit, among other processes. The processes were filed on the same date.

The lower Court received argument in respect of the preliminary objections and ruled that by clause 7 of the agreement between the parties, which is an arbitration clause, the appellant was bound to submit the dispute to arbitration before approaching the Court. It therefore struck out the suit. P. N. Agazie, Esq., of counsel for the appellant formulated the following issues in his amended brief of argument for the determination of the appeal: a.

Whether the learned trial judge was right when he considered and analysed only the 1st and 2nd respondents’ notice of preliminary objection but failed to consider the appellant’s replies on points of law to the 1st and 2nd respondent’s notices of preliminary objection. b. Whether, considering the peculiar circumstances of the case of the parties at the lower Court, the learned trial judge was right when he held that failure on the part of the appellant to first resort to arbitration ousted the jurisdiction of the lower Court. c.

Whether, the learned trial judge was right when he considered as proper the notices of preliminary objection filed by the 1st and 2nd respondents even though the 1st and 2nd respondents have taken steps in the proceedings at the lower Court by filing their statement of defence. d.

Whether the learned trial judge acted in the interest of justice when he struck out the appellant’s case, instead of entering judgment in favour of the appellant in the obvious absence of any documentary evidence filed by the respondents to show or establish a defence on the merit, having regards to the entire circumstances of the appellant’s contractual relationship with the 1st respondent. Chidi Chikogu, Esq., for the 1st respondent presented the following issues for the determination of the appeal: 1).

Whether under the contract, there was a period provided for parties in the contract to refer any matter to arbitration. (Grounds 1 and 2 of amended notice of appeal) 2). Whether in consideration of the provisions of Article 7 of the articles of agreement and the arbitration clause in Exhibit B the lower Court was right howsoever, in declining jurisdiction to entertain the appellant’s suit and referring same to arbitration. (Ground 3 of amended notice of appeal) 3).

Whether the learned trial judge acted in the interest of justice when he struck out the appellant’s case, instead of entering judgment in favour of the appellant in view of a preliminary objection and defence on the merit. (Ground 4 of amended notice of appeal).

Agebe Odeh, Esq., for the 2nd respondent formulated a single issue for the determination of the appeal, to wit: “Whether the trial judge was right when he considered and analysed the 1st ground of the 2nd respondent preliminary objection without considering and making a pronouncement on the 2nd ground.” The 3rd respondent did not file a brief of argument. Issue 1 formulated by 1st respondent’s counsel does not arise from grounds 1 and 2 of the grounds of appeal from which the issue is said to arise.

Ground 1, shorn of its particulars, reads: a) ERROR IN LAW The learned trial judge erred in law when he held thus; “In this case no reasons have been given, and therefore the claimant cannot short circuit (sic) the process.

The claimant is therefore under an obligation to explore and exploit Article 7 and 35 before approaching the Court…” Ground 2 without its particulars states: “The learned trial judge erred in law when he considered only the 1st and 2nd respondents’ notice of preliminary objections but, nevertheless, failed to consider the appellant’s reply on points of law to the 1st and 2nd respondents’ notices of preliminary objection.” ​ While ground 1 complains of the failure of the learned trial judge to consider the reasons stated by the appellant for not submitting the dispute to arbitration, ground 2 complains about the failure of the learned trial judge to consider appellant’s reply on points of law.

The issue of the provision of a period of time for reference to arbitration does not directly arise from the two grounds or any other ground of appeal. The fact that some of the particulars of grounds 1 and 2 make references to the alleged limitation of time for submission of dispute to arbitration is not a basis for raising an issue therefrom. This is because an issue can only be raised from the complaint in a ground and not the particulars of a ground of appeal. See Stirling Civil Engineering Ltd v. Yahaya (2005) 127 LRCN 1174, 1196 or (2005) 11 NWLR (Pt. 935) 181.

The 1st respondent did not file a cross-appeal from which the issue is drawn and so the issue is incompetent and I strike out the same along with the argument in support thereof. See Arum v. Nwobodo (2013) 10 NWLR (Pt. 1362) 374, 395. Again, the lone issue of the 2nd respondent does not arise from any of the grounds of appeal filed by the appellant. Having not filed a cross-appeal or a respondent’s notice, the issue is incompetent and I accordingly strike it out. The result is that his brief of argument has no issue to sustain it and I therefore strike out the same.

Having read the grounds of appeal, it is my view that two issues will suffice for the determination of the appeal, namely: 1. Was the lower Court right in declining jurisdiction and striking out the case of the appellant? 2. Was the lower Court right in not entering judgment in favour of the appellant? ISSUE 1 – Was the lower Court right in declining jurisdiction and striking out the case of the appellant?

Appellant’s counsel contended that the lower Court erred when it failed to analyse and consider any of the issues raised by the appellant in its reply on points of law to the preliminary objections of the 1st and 2nd respondents. He referred to the ruling of the lower Court particularly where the learned judge of the lower Court observed that the appellant had provided no reason for not first resorting to arbitration. He referred to appellant’s reply brief where the reason for not resorting to arbitration was given.

He submitted that a Court is duty-bound to consider the issues raised by the parties before it and that failure to do so affects the ruling of the Court. Counsel argued that arbitration clause is of two classes and that the Supreme Court had considered a lone instance where an arbitration clause can oust the jurisdiction of a Court. He referred to the case of Obembe v. Wemabod Estates Ltd (1977) NSCC Vol. 11. He submitted that the general rule is that an arbitration clause does not oust the jurisdiction of a Court unless it is clearly within the Scott v. Avery clause.

He further submitted that the arbitration clause in this instance does not oust the jurisdiction of the lower Court. Still arguing, counsel posited that the lower Court was wrong in assuming that the proper process for the 1st and 2nd respondents to file was a preliminary objection and not a (motion for) stay of proceedings. He referred to Section 5 (1) and (2) of the Arbitration and Conciliation Act, 2004 and submitted that what the law demands is the filing of an application to stay proceedings after entry of appearance and without the taking of any other step.

He noted that the 1st and 2nd respondents rather filed preliminary objections and statements of defence. He pointed out that 2nd respondent acknowledged that it had taken steps in the matter and therefore ought not to have asked for the striking out of the matter on the ground that the reference to arbitration had not been made. He added that the admission amounted to a withdrawal of the first ground of objection which he said ceased to constitute an issue between the 2nd respondent and the appellant.

This he contended meant that since the learned judge of the lower Court had stated that the 2nd respondent’s objection would dispose of the 1st respondent’s objection, the ruling cannot stand as the issue of submission to arbitration was no longer being contested by the parties. 1st respondent’s counsel argued that proceedings can be terminated at the instance of the respondent on the basis of a clause in the contract entered into by the parties.

This, according to him, is because parties are bound by the terms of an agreement freely entered into by them and the Court is simply to give effect to the agreement freely entered into by parties. He posited that the phrase used in the arbitration clause is “shall” which is mandatory and so the lower Court was right in holding that the appellant was under an obligation to explore arbitration.

It was his further submission that whenever there is an agreement between parties that their dispute must be referred to arbitration, arbitration becomes a condition precedent to the exercise of jurisdiction. ​ It was his position that apart from filing an application for stay of proceedings, a defendant may also apply for the suit to be struck out where the Court is robbed of jurisdiction. He emphasized that such an application is known to law.

He went on to submit that taking steps to file a statement of defence before filing a preliminary objection at the lower Court was the proper thing for the (1st) respondent to do since demurrer has been abolished.

He finally submitted that if the 2nd respondent abandoned the first arm of his objection, it does not mean that the said ground ceased to constitute an issue between the appellant and the 1st respondent. ​ Let me quickly say that the reply brief filed by the appellant is not worthy of the tag “reply brief.” It begins by identifying two issues said to flow from the respondents’ brief of argument. Issues for the determination of an appeal do not arise from a respondent’s brief of argument; rather they arise from grounds of appeal.

Besides, there is no room in the rules of this Court for formulation of issues for determination in a reply brief.

Again, the issues formulated in the reply brief by appellant’s counsel are a re-statement of issues A and D raised in the appellant’s amended brief of argument. In short, the reply brief is but a re-argument of the contention in the appellant’s brief of argument. A reply brief is not meant to afford the appellant another bite at the cherry. It is improper to use a reply brief to extend the scope of argument in the appellant’s brief or to seek to prettify the argument in the appellant’s brief of argument. See Kolo v. Lawan (2018) 13 NWLR (Pt. 1637) 495, 518 and Mainstreet Bank Capital Ltd v.

Nigeria Re-Insurance Corporation Plc (2018) 14 NWLR (Pt. 1640) 423, 442. So I shall discountenance the reply brief. ​ It was the contention of appellant’s counsel that the trial Court failed to analyse and consider any of the issues raised by the appellant in its reply on points of law and that this is borne out by page 286 of the record of appeal. It was the position of 1st respondent’s counsel that this is a matter of style of writing of judgment or ruling which is peculiar to each judge.

At page 268 of the record, the learned judge of the lower Court held that no reason had been provided by the appellant for its failure to submit the dispute between the parties to arbitration. This cannot be correct, for the appellant (as claimant) in its replies at pages 237 -241 and 261 of the record gave the reasons for its not submitting the dispute to arbitration. The trial Court obviously overlooked the issue and argument of appellant’s counsel on the point. All Courts especially non-final Courts are required to treat all issues raised and argued by parties before reaching a decision.

See Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332, 361, Nagabu Company Ltd v. Unity Bank Plc (2013) All FWLR (Pt. 698) 871, 896, and C. N. Okpala and Sons Ltd v. Nigerian Breweries Plc (2018) 9 NWLR (Pt. 1623) 16, 28. The lower Court did not consider and resolve the issue and points raised and argued by appellant’s counsel before reaching its decision. Now, the issue or point that was left untreated by the lower Court was to the effect that the time to resort to arbitration had effused and so the appellant was right to head straight to the lower Court without resorting first to arbitration.

I shall take the liberty of setting out the relevant clauses of the written agreement between the parties: Article 7 of the articles of agreement states: “If any dispute or difference as to the construction of this contract or any matter of thing of whatsoever nature arising thereunder or in connection therewith shall arise between the Employer or the Architect/Co-ordinator on his behalf and the Contractor either during the progress or after the completion or abandonment of the works, it shall be and is hereby referred to arbitration in accordance with the clause of the Conditions of Contract.” Clause 30 (7) of the Appendix No. 1 to the articles of agreement in part reads: “Unless a written request to concur in the appointment of an arbitrator shall have been given under clause 35 of these conditions by either party before the Final Certificate had been issued or by the Contractor within 14 days after such issue, the said certificate shall be conclusive evidence in any proceedings arising out of this contract (whether by arbitration under clause 35 of these conditions or otherwise) that the Works have been properly carried out and completed in accordance with the terms of this contract and that the necessary effect has been given to all the terms of this contract which require an adjustment to be made to the Contract Sum, except and in so far as any sum mentioned in the said certificate is erroneous by reason of …” Clause 35 (1) provides: “Provided always that in case any dispute or difference shall arise between the Employer or the Architect on his behalf and the Contractor either during the progress or after the completion or abandonment of the Works, as to the construction of this Contract or as to any matter or thing whatsoever nature arising thereunder or in connection therewith (including any matter or thing left by this Contract to the discretion of the Architect or the withholding by the Architect of any certificate to which the Contractor may claim to be entitled or the measurement and valuation mentioned in Clause 30 (5) (a) of these Conditions or the rights and liabilities of the parties under clauses 25, 26, 32 or 33 of the Conditions) then such dispute or difference shall be and is hereby referred to the arbitration and final decision of a person to be agreed between the parties, or failing agreement within 14 days after either party has given to the other a written request to concur in the appointment of an Arbitrator, a person to be appointed on the request of either party by the President or Vice President for the time being of the Nigerian Institute of Architects.” Clearly clause 30 (7) above does not talk about time within which a party may resort to arbitration after which the obligation to resort to arbitration is extinguished: it talks about the effect of failure to give a written request to concur in the appointment of an arbitrator either before the Final Certificate has been issued or within 14 days after the said Certificate has been issued, namely;

”the said certificate shall be conclusive evidence in any proceedings arising out of this contract…” It does not preclude or bar resort to arbitration and does not give any time limitation for doing so.

This is even made clearer by the words in brackets, to wit: ”whether by arbitration under clause 35 of these conditions or otherwise.” Clause 35 (1) supra. provides for arbitration in case any “dispute or difference shall arise… either during the progress or after the completion or abandonment of the Works, as to the construction of this Contract or as to any matter or thing or whatsoever nature arising thereunder or in connection therewith.” (underling is mine for emphasis) There is, as I have already stated, no time limitation as regards resort to arbitration in the contract as canvassed by counsel for the appellant.

The effect of the foregoing is that though the lower Court did not consider the point raised by appellant’s counsel touching on the issue of expiry of time within which resort is to be made to arbitration, the failure did not occasion a miscarriage of justice. See BPS Construction and Engineering Co. Ltd v. F. C. D. A. (2017) 10 NWLR (1572) 1, 14, SCC (Nig.) Ltd v. Anya (2013) ALL FWLR (Pt. 703) 2047, 2062 and Nigerian Communications Commission v.

Motophone Ltd (2019) 14 NWLR (1691) 1, 37 where Aba-Aji, JSC, opined that: “Moreover, even failure to consider all issues submitted before it would not amount to a denial of fair hearing unless it is shown that a miscarriage of justice occurred.” An arbitration agreement is an agreement by two or more persons that a dispute or potential dispute between them shall be resolved and decided in a legally binding way by one or more impartial persons in a judicial manner upon evidence put before him or them. It may stand alone or be incorporated in a commercial agreement as in this instance.

See Onuselogu Enterprises Ltd v. Afribank (Nig.) Plc (2005) 12 NWLR (Pt. 940) 577, 585 and A. Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases page 145. An arbitration agreement or clause does not oust the jurisdiction of the Court (for parties have no power to contract out of the Constitution) but the Court in the exercise of its power under a statute may stay proceedings in an action brought before it in breach of an agreement to settle a dispute by arbitration. In the case of Mainstreet Bank Capital Ltd v.

Nigeria Reinsurance Corporation Plc, supra. 444 – 445, Kekere-Ekun, JSC, in resolving a similar issue relied on and quoted the case of Obembe v. Wemabod Estates Ltd (1977) 5 SC (Reprint) 70 thus: “The lower Court was right when it held that an agreement to have recourse to arbitration in the event of a dispute does not oust the jurisdiction of the Court. In Obembe v.

Wemabod Estates Ltd (1977) 5 SC (Reprint) 7 @ 79 lines 19 to 28, this Court per Fatayi-Williams, JSC, explained the legal position thus: “As we have pointed out earlier, any agreement to submit a dispute to arbitration, such as the one referred to above, does not oust the jurisdiction of the Court. Therefore, either party to such an agreement may, before a submission to arbitration or an award is made, commence legal proceedings in respect of any claim or cause of action included in the submission. (See Harris v. Reynolds (1845)7 QB 71).

At common law, the Court has no jurisdiction to stay proceedings; where however there is a provision in the agreement, as in Exhibit 3, for submission to arbitration, the Court has jurisdiction to stay proceedings by virtue of its power under Section 5 of the Arbitration Act.” See also Sino-Afric Agriculture & Industries Company Ltd v. Ministry Of Finance Incorporation (2013) LPELR – 22370 (CA) and Onyekwuluje v. Benue State Government (2015) 16 NWLR (Pt. 1484) 40.

Counsel for the appellant referred to a class of arbitration agreement or clause that is termed the Scott v Avery clause which is a provision in an arbitration agreement to the effect that no action shall be brought until an arbitral award has been made. This contractually forbids resort to a Court until the arbitration process has been exhausted. The leading case on the position is Scott v. Avery 1856 HL 811. See Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases supra page 147.

Counsel set out the position of the Supreme Court on the clause as expressed in Obembe v. Wemabod Estates Ltd supra. I do not intend to comment on the submission by appellant’s counsel as the arbitration clause in this instance does not fall into this category of arbitration clause.

Section 5 (1) of the Arbitration and Conciliation Act provides that: “If any party to an arbitration agreement commences any action in any Court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement may, at any time after appearance and before delivering any pleadings or taking any steps in the proceedings, apply to the Court to stay proceedings.”​

Let me pause at this stage to quickly settle a point raised by appellant’s counsel to the effect that since the 1st and 2nd respondents filed notices of preliminary objection to the jurisdiction of the Court instead of applications for stay of proceedings, the lower Court had no authority to consider the same as it is not known to the law. The simple answer to this submission is to be found in the case of Mainstreet Bank Capital Ltd v.

Nigerian Reinsurance Corporation Plc supra. 445 where Kekere-Ekun, JSC, opined that: “…since an arbitration clause in an agreement does not oust the jurisdiction of the Court, an objection to the jurisdiction of the Court is in effect an application to stay proceedings pending arbitration.” That gives a quietus to the contention of appellant’s counsel.

Where a party to an arbitration agreement proceeds first to Court before resorting to arbitration as agreed, the Court leans towards granting an application for stay of proceedings pending arbitration provided the party applying did not file a defence or take steps in the proceedings other than entering appearance. Where a party delivers a defence or makes any application for extension of time, he will be deemed to have waived his right to insist on recourse to arbitration.

See Mainstreet Bank Capital Ltdsupra. 445, Kano State Urban Development Board v. Fanz Construction Co. Ltd (1990) 4 NWLR (Pt. 142) 1 and Osun State Government v. Dalami Nig. Ltd (2003) 7 NWLR (Pt. 818) 72, 93. The question that follows therefore is was there a waiver by the 1st and 2nd respondents of the right to insist on a recourse to arbitration? In answering the question, I shall start by considering the processes filed by the 2nd respondent. They are as follows: 1. A statement of defence. See pages 175-178 of the record. 2.

A written deposition of a witness in opposition to the motion for summary judgment etc. see pages 179-180 of the record. 3. Written address in opposition to the motion for summary judgment. See pages 183-185 of the record. The processes above were filed on the same day that the preliminary objection to the jurisdiction of the Court was filed, to wit; 25/7/2016. The 2nd respondent by the filing of those processes took steps in the matter and thereby waived his right to insist on a recourse to arbitration.

His counsel admitted this position at page 266 of the record when he stated before the Court that: “We concede on the 1st arm of our prayer because we have taken steps because we filed a statement of defence…” In respect of the 1st respondent, it should be put on record that the mere fact that the 2nd respondent took steps does not by itself affect adversely the application of the 1st respondent though the lower Court stated that the outcome of the 2nd respondent’s application would dispose of the 1st respondent’s objection.

This is because the objection of the 1st respondent still maintained its individual character different from that of the 2nd respondent. I shall therefore consider the processes filed by the 1st respondent apart from the notice of preliminary objection. The processes are: 1. Statement of defence. See pages 186-188 of the record. 2. List of witness – page189 of the record. 3. Written deposition of the witness – pages 190-193 of the record. 4. Written address – pages 193-199 of the record. 5. Notice of intention to defend – page 200 of the record. 6.

Affidavit disclosing a defence on the merit – pages 201-203 of the record 7. Motion on notice for extension of time to file notice of intention to defend, affidavit disclosing defence on the merit, written address and statement of defence and a deeming order. See page 212 of the record. It must be mentioned that those processes were filed on 26/7/2016 while the notice of preliminary objection was filed on 8/7/2016. In other words, the processes listed above were filed after the notice of preliminary objection was filed by the 1st respondent.

A similar situation arose in the case of Mainstreet Bank Capital Ltd v. Nigerian Reinsurance Corporation Plc supra. At page 446 Kekere-Ekun, JSC, dissolved the puzzle, by rejecting the position of the Court of Appeal that there was no waiver, in the following words: “I must state however, with due respect to the lower Court, that it was wrong when it held that the steps taken by the respondent after filing of the preliminary objection did not preclude it from applying for stay of proceedings pending arbitration vide Section 5 (1) of ACA.

From the decisions of this Court earlier referred to, any step taken apart from seeking stay of proceedings (or seeking to oust the jurisdiction of the Court) amounts to a step in the proceedings and the applicant is deemed to have waived his right on arbitration agreement.” I find therefore that by filing the processes listed earlier after filing the notice of preliminary objection, the 1st respondent waived its right to insist on a recourse to arbitration. In the light of the foregoing, I enter a negative answer to issue 1 and resolve the same in favour of the appellant.

ISSUE 2 – Was the lower Court right in not entering judgment in favour of the appellant? ​ Appellant’s counsel submitted that appellant established its case under the rules of Court and as such is entitled to the reliefs claimed. He referred to the writ of summons and motion for summary judgment together with the annexures. He noted that the case of the appellant was by way of summary judgment procedure which he said is usually adopted when a claimant has a good case and the defendant has no reasonable defence.

He submitted that the respondents have no defence as they failed to annex or exhibit any documentary evidence showing that the appellant is not entitled to the sum due. He therefore argued that the appellant is entitled to judgment without the need for trial de novo pursuant to the inherent power of the Court and Order 7 Rule 2 (1) of the Court of Appeal Rules.

He added that the appellant is also entitled to the alternative prayers as contained in the notice of appeal. 1st respondent’s counsel contended that lower Court acted in the interest of justice by first determining the preliminary objection of the 1st and 2nd respondents. It was his further contention that in view of the merit of the objection, the lower Court was right in striking out the matter and not looking at the substantive suit in order to determine whether or not to grant judgment in appellant’s favour. He added that Order 7 Rule 2 (1) of the rules of this Court was inapplicable.

He stressed the point that the application for summary judgment which is in the nature of a motion had not been argued or moved before the lower Court for it to pass judgment on. He stated the trite position of the law that a Court is expected to make a specific ruling on an application before it after hearing counsel. ​ Counsel submitted that it is not the law that where a notice of intention to defend is filed, it must be accompanied with documentary exhibit.

The appellant is essentially calling on this Court to invoke its power under Section 15 of the Court of Appeal Act and Order 4 Rule 1 of the Court of Appeal Rules, 2021 to determine the case since the decision of the lower Court striking out the case of the appellant cannot stand. For the Court to exercise its power under the said provisions, the following factors must be present: 1. The lower Court must have the power to adjudicate in the matter. 2. The real issue raised by the appellant’s claim at the lower Court must be seen to be capable of being distilled from the grounds of appeal. 3.

All necessary materials must be available to the Court for consideration. 4. The need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented. 5. The injustice or hardship that will follow if the case is remitted to the lower Court must be clearly manifest. See Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Mainstreet Bank Capital Ltd v. Nigerian Reinsurance Corporation Plc supra. 447.

For Section 15 of the Court of Appeal Act to apply, the matter must have been raised in the lower Court and that Court did not or failed to take the appropriate decision. See Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) 554, 640. It is pertinent to re-state that there were two motions pending before the lower Court, to wit: 1. Motion for summary judgment 2. Motion by the 1st respondent for extension of time to file its notice of intention to defend, affidavit disclosing defence, written address and statement of defence and a deeming order.

None of the motions had come up for hearing at the lower Court as at the time that it heard and ruled on the preliminary objections of the 1st and 2nd respondents. The law is well established that a Court has a duty to hear and determine all applications pending before it before making a final pronouncement by way of delivery of judgment. See Cookey v. Fombo (2005) 15 NWLR (Pt. 947) 182, 201, United Parcel Service Ltd v. Ufot (2006) All FWLR (Pt. 314) 337, 356, BCE Consulting Engineering v. NNPC (2019) 14 NWLR (Pt. 1691) 136, 175 and Newswatch Communication Ltd v.

Atta (2006) 12 NWLR (Pt. 993) 144, 168 – 169.

Again, a Court cannot rule on a motion that has not been moved. Since the motions itemized above had not been moved at the trial Court nor can they or have they been moved in this Court, the coast was not clear for judgment to be delivered by the lower Court and so this Court cannot proceed to exercise its power under Section 15 of the Court of Appeal Act to enter judgment one way or the other. Given the stage of the case at the lower Court, I enter an affirmative answer to issue 2 and resolve it against the appellant.

On the whole and in the light of my resolution of issue 1, I find that the appeal has merit and I allow the same. I hereby set aside the ruling of the lower Court and, in its place, I dismiss the preliminary objections of the 1st and 2nd respondents. It is directed that the case be remitted to the Honourable Chief Judge of Delta State for assignment to a judge other than Gbemre, J. for speedy hearing and determination of the pending motions. I assess the costs of this appeal at N300,000 in favour of the appellant.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had a preview of the lead judgment of my learned brother, J. E. EKANEM, JCA. My Lord has fully covered the issues in his lead judgment. I am in full agreement with his reasoning and conclusion that the appeal has merit. I abide by the orders made therein. ABIMBOLA OSARUGUE OBASEKI –

ADEJUMO, J.C.A.: I have read in advance the judgment of my learned brother JOSEPH EYO EKANEM, JCA. I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother. I too hold that the appeal has merit and I allow the same. I abide by all consequential order (s) in the lead judgment.

Judgment

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Federal Capital Territory (FCT) High Court, Abuja, delivered on May 8th, 2020 by Hon. Justice O. C. Agbaza wherein the Respondent’s application was granted and an order recognising the arbitral award dated November 6th, 2018 was granted in favour of the Applicant the Respondent herein.

The Appellant was dissatisfied with the decision of the Court that it refused to set aside the arbitral award of November 6th, 2018 but rather ordered recognition of same as earlier stated. It filed its Notice of Appeal on May 18th 2020 and as amended with Four (4) Grounds of Appeal on September 10th, 2020 of same date, deemed as properly filed and served on February 3rd, 2022. The following reliefs in the main are being sought: “i. An Order allowing the appeal. ii. An Order of this honourable Court setting aside the decision of the trial Court. iii.

An Order of this Court setting aside the arbitral award. iv. An Order of this Court dismissing/striking out Motion No. M//2987/19 Brief facts as garnered from the printed record placed before this Court that culminated into this appeal are that the Respondent bought four (4) units duplex at No. 40 Madeira Street, Imani Estate, Maitama, Abuja from the Appellant for Seven Hundred and Ten Million (N710,000,000.00) Naira.

The Appellant undertook to refund the Respondent’s purchase fee, solicitor’s fee and the bank charges where it is unable to perfect its title to the property or if an adverse third party claimed title on the property. The Respondent was forcefully evicted by an Agency of the Federal Government of Nigeria which laid claim to the property. The Appellant in spite of demands by the Respondent for possession or refund of purchase fee, failed to do anything.

According to the Appellant, the Respondent was not disturbed in any way in the possession of the property in spite of the action of the said Government Agency. The Respondent on the other hand, pursuant to the Arbitration clause contained in their agreement gave notice of Arbitration. The Final Award was published by Prof. Paul Idonigie in favour of the Respondent after the arbitral proceedings. The Appellant for that reason filed an Originating Motion as amended at the FCT High Court and sought to set the arbitral award aside whilst the Respondent filed an application for its recognition.

The decision of the Court in favour of the Respondent is being appealed against by the Appellant. The following in the main were the reliefs sought by the Appellant at the Court below: “1. A DECLARATION that the arbitral award of Prof. Paul Obo Idornigie, SAN, PHD, FCIS, FClArb (UK), C. Arb published on 6th November, 2016 in the arbitration between Brighthouse Estate Limited V NICON Insurance Limited is not binding on NICON Insurance Limited (the appellants herein). 2. AN ORDER of the honourable Court setting aside the arbitral award of Prof.

Paul Obo Idonigie SAN, PHD, FCIS, FClArb (UK), C.Arb published on 6th November, 2016 in the arbitration between Brighthouse Estate Limited V NICON Insurance Limited. In compliance with the rules of this Court parties filed their briefs. Appellant’s brief dated September 9th, 2020, filed September 10th, 2020 deemed as properly filed and served on February 3rd, 2022 was settled by Olumide Olujinmi Esq., who urged that the appeal be allowed. The Respondent’s brief is dated and filed February 23rd, 2022 and settled by Chief Duro Adeyele SAN, who urged in opposition that the appeal be dismissed.

APPELLANT’S ISSUES FOR DETERMINATION “i. Whether the lower Court was right to have refused to consider and determine the jurisdiction of the arbitral tribunal to grant the award and proceed to recognise and enforce the arbitral award (Grounds 1 and 3). ii. Whether the lower Court was not in error to hold that the sole arbitrator did not misconduct himself when the arbitrator considered issues outside the agreements of the parties (Ground 2).” RESPONDENT’S ISSUES FOR DETERMINATION “1.

Whether the Court below was right in refusing to interfere with the decision of the Sole Arbitrator in his award published, the Appellant having failed to establish alleged want of jurisdiction or alleged misconduct against the Sole Arbitrator in making the Award. 2. Whether considering the facts and circumstances of the applications before it, the Court below was right in granting an order of recognition and enforcement of the award of the Sole Arbitrator, Prof. Paul O.

Idonigie, SAN FClArb (UK) C.A. and dismissing the application for an order setting aside the award.” Carefully reading through the two sets of Issues as afore going, one finds that they are similar in content and objective and is satisfied that the issues donated by the Appellant will justly and fairly determine this appeal. Therefore, I adopt the Appellant’s Issues.

APPELLANT’S SUBMISSION The learned Appellant’s Counsel submitted that the Court was wrong to have held as it did, given the fact that the issue involved was that of jurisdiction of the arbitral Tribunal which Order 19 R. 12(h) of the FCT High Court Rules allows any party to pursue. The Appellant contended that the cause of action pursued by the Respondent had not crystalized when it went before the Tribunal and so the Sole Arbitrator had no jurisdiction to grant the award it did. In support, he cited the cases of NWORA V. NWABUEZE 2019 7 NWLR PT. 1670 1, OGBIMI V.

OLOLO 1993 7 NWLR PT. 304 128 and EFCC V. AKINGBOLA 2015 14 NWLR PT. 1478 199. He argued that there was no third-party successful challenge of the peaceable possession of the property by the Respondent. The Indemnity Agreements between the parties are in Exhibits A, B and C in support of Clause 10 in the Sale Agreement between the parties. In support, he cited the cases of OJUKWU V. GOV. OF LAGOS STATE 1985 2 NWLR PT. 10 806 and EDUN V. PROVOST, LACOED 1998 13 NWLR PT. 580 52.

Further that the Arbitral Tribunal too was in the same error as the Respondent that there was a successful third-party challenge and the wrong arbitral award in consequence. He cited the cases of SEHINDEMI V. GOV. LAGOS STATE 2006 ALL FWLR PT. 311 1858 and SILAS OKOYE V. CHIEF AKAGBUA KPAJIE & ORS 1972 6 SC 98. He submitted that the Tribunal was also wrong in its meaning of peaceable possession for not putting any value on the fact that the Respondent received some benefit from the contract as it was in possession for 14 months.

That in essence the Tribunal created a new contract for the parties from its wrong interpretations and therefore should not be allowed to stand and in support cited the cases of EKONDO COMMUNITY BANK LTD V. ANIETING 2013 LPELR 21139 CA 15 and NIKA FISHING CO LTD V. LAVINA CORPORATION 2008 16 NWLR PT. 1114 509. Therefore, he submitted that the Arbitrator’s act amounted to misconduct which can be set aside and in support cited the case of BAKER MARINE NIG LTD V. CHEVRON NIG LTD 2000 12 NWLR PT. 681 393, In consequence, he submitted that the jurisdiction of the Tribunal never arose.

In conclusion, he urged that the appeal be allowed. RESPONDENT’S SUBMISSION The learned silk submitted that the contention of the Appellant in the main was that the Arbitral Tribunal had no jurisdiction as the cause of action had not crystalized and that the Sole Arbitrator misconducted himself in the interpretation he gave to the successful third party challenge and peaceable possession. Arbitral awards are not appealable in Nigeria, they are binding and to a great extent final and in support he cited the cases of ADAMEN PUBLISHERS NIG LTD V.

ABHULIMEN 2016 6 NWLR PT. 1509 431 and BAKER MARINA NIG LTD V. DANOS & CUROLE MARINA CONST INC. 2001 7 NWLR PT. 712 337. And that it is in line with the intendment of the Arbitration and Conciliation Act, 2004 Section 34 as the Appellant sought in a way to appeal the award though went under the guise of misconduct on the part of the Arbitrator. ​ He argued that there was no misconduct on the part of the Arbitrator as described in Section 29 of the Arbitration and Conciliation Act, 2004. ​

That the Court below agreed that cause of action had arisen where the Respondent stopped enjoying the peaceable possession of the property it purchased when the third party claimed adverse title and successfully took possession from the Respondent. That the submission of the Appellant is in a bid to frustrate the Respondent from enjoying the fruits of the award as the argument on jurisdiction is absurd and in support he cited the case of FCMB PLC. V. AIB NIG PLC 2000 8 NWLR PT. 667 42.

Further in support of the fact that there can be no appeal over the award of the Tribunal and that for the issue of lack of jurisdiction of the Tribunal, the maxim is kompetenz-kompetenz, that the Tribunal is competent to inquire into its own jurisdiction as provided in Section 12 (1) of the Arbitration and Conciliation Act and its decision thereupon shall be final as contained in Section 12 (4) of the Act.

He submitted that the Arbitrator had resolved the issue of the jurisdiction of the Tribunal when it dealt with the question whether the claim for return of purchase price by the Respondent was premature or not through the specific clauses in the Contract of Sale, Deed of Assignment and Deed of Indemnity between the parties. Further that the Court rightly found that the Respondent was successfully dispossessed of peaceable possession of the property by third party adverse claimant. And that the arbitral proceedings commenced in that regard was not premature.

He submitted that decision is therefore final and binding. He submitted further that the Court was right to have found no misconduct by the Sole Arbitrator. That the allegation of misconduct is not only woolly but unfounded and a misconception of what misconduct means in arbitral proceedings. Further that the judicial authorities cited on whether a trespasser can forcefully dispossess of peaceable possession of property are irrelevant herein.

He asserted that the Appellant did not deny that there was dispossession in fact of the Respondent and the Appellant had to proceed to Court over title with those it termed trespassers and has been unable to restore possession to the Respondent. ​ The learned Silk submitted that the motion for the recognition of the arbitral award was not in any way challenged as there was no Counter-affidavit in opposition or point of law raised. Therefore, the Court was right to have so deemed it.

Notwithstanding, it examined all the materials submitted by the Respondent in that respect in line with the provision of Section 31 (2) of the Act before reaching its decision he argued. Consequently, the complaint of the Appellant that failed to challenge the application for recognition of the arbitral award is of no moment he submitted as the Appellant had conceded the Motion. In support, he cited the case of MABAMIJE V. OTTO 2016 ALL FWLR PT. 828 883 898 and HONDA PLACE V. GLOBE MOTORS HOLDINGS NIG. LTD 2005 14 NWLR PT. 945 273.

In conclusion, he urged that the appeal be dismissed and the decision of the Court below affirmed. POSITION OF THE COURT Having very carefully considered the briefs of both parties and thoroughly read through the Record before this Court I shall commence consideration of the Appellant’s two (2) issues which are reproduced hereunder for ease of reference along with the findings of the Court below: ISSUES I AND II “i.

Whether the lower Court was right to have refused to consider and determine the jurisdiction of the arbitral Tribunal to grant the award and proceed to recognise and enforce the arbitral award (Grounds 1 and 3). ii.

Whether the lower Court was not in error to hold that the sole arbitrator did not misconduct himself when the arbitrator considered issues outside the agreements of the parties (Ground 2).” Two applications as consolidated were considered and determined in the ruling of the Court below that is being appealed; the Appellant’s, CV/492/18, to set aside the arbitral award and the Respondent’s, M/2987/19 to recognise and enforce the award.

The Appellant’s grouse in the main was that the cause of action leading to the grant of the arbitral award had not crystallized and as such the sole arbitrator lacked the necessary jurisdiction to grant the award as it did. The Court below found to the contrary hence this appeal. The Court considered and determined the issue of jurisdiction of the arbitral Tribunal in the grant of the award.

It found that the arbitral proceedings were not premature as the Appellant argued as it found that the cause of action had crystalized which is an issue of jurisdiction. ​ It clearly considered and made findings on whether the Tribunal went outside its scope with regard to the agreement and so was able to hold that there was no misconduct and that it rightly made the award in question. The meanings it gave to the peaceable possession and successful third-party challenge as provided for in Exhibit A, B, C and H which is the final award itself.

The Appellant claimed that even though there was trespass upon the property it sold to the Respondent, it could not be interpreted to mean and be equal to the parties’ intendment in the Indemnity agreement as contained in Exhibits A, B, and C. That the trespass could not be taken to mean a successful third-party challenge of peaceable possession of the property sold to the Respondent.

It is necessary to note that the parties agreed in clause 10 of the Contract of sale, Exhibit A thus: “10 – The vendor hereby undertakes to indemnify the purchaser for any want and/or defect in title not herein disclosed.” See page 707 of the Record. The Deed of Indemnity, Exhibit B particularly paragraphs 2 and 4 state as follows: “This undertaking is in furtherance of clause ten (10) of the DEED OF ASSIGNMENT signed by both parties wherein NICON INSURANCE LIMITED Transferred her title in the above property to BRIGHTHOUSE ESTATE LIMITED.

NICON INSURANCE LIMITED further undertakes to do all that is necessary for the perfection of the title of BRIGHTHOUSE ESTATE LIMITED with the Lands Registry i.e ABUJA GEOGRAPHIC INFORMATION SYSTEM and any other Agency (s) saddled with this responsibility.” See Exhibit B, page 716 of the Record. The Appellant argued that the case of the Respondent before the Tribunal that there was a total failure of consideration was wrong and should have failed as it was based on the fact that the Respondent was by a third-party adverse claimant.

That the prayer of the Respondent in that regard was for the Arbitral Tribunal to invoke the foregoing stated indemnity clauses in Exhibits A, B, and C and the Respondent should have made a case in law that there was a successful challenge by the third party. Therefore, there was no breach of any of the terms of the Contract Agreement warranting the final award by the Tribunal.

The Court correctly found in my view and humbly as follows on page 1017 of the Record: “Having carefully considered the entire processes – Clause 7, 8 of Exhibit A, Exhibit B along with Clause 10 of Exhibit C and Exhibit H along the judicial authorities cited, this Court resolve this issue 1, in the negative and in favour of the Respondent.” One could not agree more with the Court.

Respectfully one wonders if the trespass did not amount to third party successful adverse challenge of the property what then was it and at what stage would it crystalize to so qualify particularly when the Appellant up to the stage of the arbitral award was unable to put the Respondent back unto possession of the property from the said trespasser. The Respondent was in fact evicted and could not recover possession both during and after the arbitral proceedings.

Further respectfully, what then was happening with the Respondent out of the property it had legally paid for and hitherto peaceably occupied. In my humble view, the fact that the Respondent occupied the property for some months before the eviction does not remove from its right to recover the property or get its money back. The contract from Exhibit A did not give the impression that it was for a few months to test run.

Clause 8 of Exhibit A, the Contract of Sale states thus: “8 – The vendor subject to the consent of the Honourable Minister, Federal Capital Territory, Abuja, Nigeria, first sought and obtained has agreed to surrender/assign all its rights and interests in and over the Plot to the Purchaser free from all encumbrances.” See page 707 of the Record. Clause 10 of Exhibit C, the Deed of Assignment states equally thus in support of the Respondent’s case: “10 – The Assignor hereby undertakes to indemnify the Assignee for any want and/or defect in title not herein disclosed.” See page 720 of the Record.

The argument by the Appellant that because the cause of action had not crystalized, the Arbitral Tribunal therefore lacked jurisdiction to have entertained the matter and granted the award cannot hold and respectfully is of no moment. The Appellant further argued that the Tribunal was in error by the way it construed “peaceable possession” to the effect that there was a clear breach. That since the Arbitrator was wrong in the interpretation which led to the award, he misconducted himself and the award ought to be set aside.

As correctly held by the Court, there was no misconduct on the part of the Arbitral Tribunal.

The law is clear on what would amount to misconduct which this Court listed in the case of STABILINI VISINONI LTD V. MALLINSON & PARTNERS LTD LPELR 23090 CA 2014.

It stated misconduct to include an Arbitrator failing to comply with the terms express or implied, an award which on the ground of public policy ought not to be enforced, an Arbitrator who collects bribe or corrupted, where the Arbitrator makes a mistake as to the scope of his authority from the agreement of reference, where the Arbitrator fails to decide all the matters referred to him, where he breached the rules of natural justice and he fails to act fairly between the parties.

The sole arbitrator in the instant appeal does not fall within any of the foregoing situations that will amount to misconduct. The Court was right when it held that the Appellant failed to “show clearly how the Arbitrator acted wrongly in considering the facts before him, amounting to misconduct as stated within any of the definition of what amounts to misconduct.” The Court in the light of the foregoing was unable to set aside the final award and correctly too.

Section 29 of the Arbitration and Conciliation Act 2004 allows an award to be set aside where the party applying is able to prove that the award is outside matters within the purview of the Tribunal. The Court was unable to find that the Tribunal was outside the agreement which brought about arbitration. I have also gone through the gamut of the Record and unable to find that the Arbitrator misconducted himself.

The Court therefore was right when it held thus on page 1021 of the Record: “Having carefully perused this instance issue by considering issues outside the agreement of the parties and along the long line of judicial authorities, this Court finds that the Applicant has failed to furnish sufficient proof in line with the law, to warrant this Court to set aside this Final Award published on 6th November, 2018…” The Arbitral Tribunal properly entertained the Respondent’s matter.

It is not in question at all that both parties agreed that in the event of a dispute they would go to arbitration by Clause 16 of Exhibit A, the Contract of Sale. See page 711 of the Record. The second application before the Court as aforestated by the Respondent pursuant to Section 31 of the Arbitration and Conciliation Act sought the following prayer in the main: “1. An order recognising and enforcing the Arbitral Award in favour of the Applicant against the Respondent dated 6th November, 2018 and published same day, by the Sole Arbitrator, Professor Paul Oboh Idornige, Ph, FCI Arb (UK) C.

Arbitrator, Certified True Copy of which is attached as Exhibit “B”.” As contained in the record and in the light of the foregoing findings of the Court on the Appellant’s application that the award be set aside and the fact that there was no opposition to the second application by the Respondent for the recognition and enforcement of the award, the evidence required by the Court in support of the second application is very minimal. As already stated and found, the Court below considered the jurisdiction of the Arbitral Tribunal.

The Appellant as the Respondent to the application as stated did not file any counter-affidavit. The Court found that the facts contained in Exhibits A and B forwarded in support of the Respondent’s application were not challenged and that it has earlier refused to set the same award aside upon the application of the Appellant. In the circumstances, it therefore granted the Respondent’s application. In consequence, the two issues are resolved against the Appellant. In the result, this appeal cannot be allowed, it therefore fails and is hereby accordingly dismissed.

The ruling of the Federal Capital Territory High Court delivered on May 8th, 2020, by Hon. Justice O. C. Agbaza is hereby affirmed.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, E. O. Williams-Dawodu, JCA gave me the privilege of reading in advance the draft of the judgment just delivered. Having carefully perused the record of appeal and the submissions of counsel in this appeal, I am in agreement with the findings of my learned brother that this appeal lacks merit and that it be dismissed. The Appellant as Respondent in the Court below did not dispose to sufficient facts showing why the arbitration award be set aside. On that note, I also hold that this appeal has no merit. It is hereby dismissed.

I abide by the consequential order made in the leading judgment.

DANLAMI ZAMA SENCHI, J.C.A.: I have read before now the lead judgment of my learned brother, E O. Williams-Dawodu, JCA just delivered. The lead judgment painstakingly considered and determined all the issues canvassed on appeal and I agree with the finding and conclusion arrived thereafter in the lead judgment that this appeal lacks merit and it is dismissed. ​ Accordingly, the judgment of the High Court of the Federal Capital Territory, Abuja delivered on 8th day of May, 2020 by O. C AGBAZA, J is hereby affirmed. I make no order as to cost.

Judgment

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment) : This appeal is against the ruling of the High Court of Delta State sitting at Effurun (the lower Court) delivered on 1/6/2017 in Suit No. EHC/161/2017 by Gbemre, J. In the ruling, the lower Court upheld the preliminary objections filed by the 1st and 2nd respondents against the suit filed by the appellant on the basis that the dispute between the parties ought to be submitted to arbitration as stipulated in the agreement governing their relationship. The lower Court therefore struck out the suit.

Aggrieved by the decision, the appellant appealed to this Court by the means of a notice of appeal filed on 30/6/2017, which notice was amended by the leave of this Court granted on 8/2/2021. ​The facts of the case that led to this appeal as are relevant to the issues to be discussed in this judgment are that the appellant was engaged by the 1st respondent to construct a proposed College of Science for it. The contract was governed by Articles of agreement and conditions of service.

The appellant stated that it completed the job and the 2nd respondent, the architect, engineer and planner engaged by the 1st respondent for the job, submitted the architect’s final certificate to the (1st) respondent in favour of the appellant. The said certificate certified the sum of N51,572,556.39 as being due to the appellant. Upon default of payment, the appellant wrote a demand notice to the (1st) respondent. When payment was not made, the appellant filed a writ of summons accompanied by a statement of claim in which it claimed monetary reliefs against the respondents.

The appellant also applied for summary judgment against the respondents. In response, the 1st respondent entered a conditional appearance and filed a notice of preliminary objection praying the lower Court to dismiss or strike out the suit on the grounds that the suit was incompetent and that the lower Court lacked the jurisdiction to entertain the same.

The 1st respondent subsequently filed a notice of intention to defend, an affidavit disclosing a defence on the merit, a statement of defence and a motion for extension of time within which to file the said processes. ​ The 2nd respondent on his part filed a statement of defence, witness deposition and a notice of preliminary objection to the suit, among other processes. The processes were filed on the same date.

The lower Court received argument in respect of the preliminary objections and ruled that by clause 7 of the agreement between the parties, which is an arbitration clause, the appellant was bound to submit the dispute to arbitration before approaching the Court. It therefore struck out the suit. P. N. Agazie, Esq., of counsel for the appellant formulated the following issues in his amended brief of argument for the determination of the appeal: a.

Whether the learned trial judge was right when he considered and analysed only the 1st and 2nd respondents’ notice of preliminary objection but failed to consider the appellant’s replies on points of law to the 1st and 2nd respondent’s notices of preliminary objection. b. Whether, considering the peculiar circumstances of the case of the parties at the lower Court, the learned trial judge was right when he held that failure on the part of the appellant to first resort to arbitration ousted the jurisdiction of the lower Court. c.

Whether, the learned trial judge was right when he considered as proper the notices of preliminary objection filed by the 1st and 2nd respondents even though the 1st and 2nd respondents have taken steps in the proceedings at the lower Court by filing their statement of defence. d.

Whether the learned trial judge acted in the interest of justice when he struck out the appellant’s case, instead of entering judgment in favour of the appellant in the obvious absence of any documentary evidence filed by the respondents to show or establish a defence on the merit, having regards to the entire circumstances of the appellant’s contractual relationship with the 1st respondent. Chidi Chikogu, Esq., for the 1st respondent presented the following issues for the determination of the appeal: 1).

Whether under the contract, there was a period provided for parties in the contract to refer any matter to arbitration. (Grounds 1 and 2 of amended notice of appeal) 2). Whether in consideration of the provisions of Article 7 of the articles of agreement and the arbitration clause in Exhibit B the lower Court was right howsoever, in declining jurisdiction to entertain the appellant’s suit and referring same to arbitration. (Ground 3 of amended notice of appeal) 3).

Whether the learned trial judge acted in the interest of justice when he struck out the appellant’s case, instead of entering judgment in favour of the appellant in view of a preliminary objection and defence on the merit. (Ground 4 of amended notice of appeal).

Agebe Odeh, Esq., for the 2nd respondent formulated a single issue for the determination of the appeal, to wit: “Whether the trial judge was right when he considered and analysed the 1st ground of the 2nd respondent preliminary objection without considering and making a pronouncement on the 2nd ground.” The 3rd respondent did not file a brief of argument. Issue 1 formulated by 1st respondent’s counsel does not arise from grounds 1 and 2 of the grounds of appeal from which the issue is said to arise.

Ground 1, shorn of its particulars, reads: a) ERROR IN LAW The learned trial judge erred in law when he held thus; “In this case no reasons have been given, and therefore the claimant cannot short circuit (sic) the process.

The claimant is therefore under an obligation to explore and exploit Article 7 and 35 before approaching the Court…” Ground 2 without its particulars states: “The learned trial judge erred in law when he considered only the 1st and 2nd respondents’ notice of preliminary objections but, nevertheless, failed to consider the appellant’s reply on points of law to the 1st and 2nd respondents’ notices of preliminary objection.” ​ While ground 1 complains of the failure of the learned trial judge to consider the reasons stated by the appellant for not submitting the dispute to arbitration, ground 2 complains about the failure of the learned trial judge to consider appellant’s reply on points of law.

The issue of the provision of a period of time for reference to arbitration does not directly arise from the two grounds or any other ground of appeal. The fact that some of the particulars of grounds 1 and 2 make references to the alleged limitation of time for submission of dispute to arbitration is not a basis for raising an issue therefrom. This is because an issue can only be raised from the complaint in a ground and not the particulars of a ground of appeal. See Stirling Civil Engineering Ltd v. Yahaya (2005) 127 LRCN 1174, 1196 or (2005) 11 NWLR (Pt. 935) 181.

The 1st respondent did not file a cross-appeal from which the issue is drawn and so the issue is incompetent and I strike out the same along with the argument in support thereof. See Arum v. Nwobodo (2013) 10 NWLR (Pt. 1362) 374, 395. Again, the lone issue of the 2nd respondent does not arise from any of the grounds of appeal filed by the appellant. Having not filed a cross-appeal or a respondent’s notice, the issue is incompetent and I accordingly strike it out. The result is that his brief of argument has no issue to sustain it and I therefore strike out the same.

Having read the grounds of appeal, it is my view that two issues will suffice for the determination of the appeal, namely: 1. Was the lower Court right in declining jurisdiction and striking out the case of the appellant? 2. Was the lower Court right in not entering judgment in favour of the appellant? ISSUE 1 – Was the lower Court right in declining jurisdiction and striking out the case of the appellant?

Appellant’s counsel contended that the lower Court erred when it failed to analyse and consider any of the issues raised by the appellant in its reply on points of law to the preliminary objections of the 1st and 2nd respondents. He referred to the ruling of the lower Court particularly where the learned judge of the lower Court observed that the appellant had provided no reason for not first resorting to arbitration. He referred to appellant’s reply brief where the reason for not resorting to arbitration was given.

He submitted that a Court is duty-bound to consider the issues raised by the parties before it and that failure to do so affects the ruling of the Court. Counsel argued that arbitration clause is of two classes and that the Supreme Court had considered a lone instance where an arbitration clause can oust the jurisdiction of a Court. He referred to the case of Obembe v. Wemabod Estates Ltd (1977) NSCC Vol. 11. He submitted that the general rule is that an arbitration clause does not oust the jurisdiction of a Court unless it is clearly within the Scott v. Avery clause.

He further submitted that the arbitration clause in this instance does not oust the jurisdiction of the lower Court. Still arguing, counsel posited that the lower Court was wrong in assuming that the proper process for the 1st and 2nd respondents to file was a preliminary objection and not a (motion for) stay of proceedings. He referred to Section 5 (1) and (2) of the Arbitration and Conciliation Act, 2004 and submitted that what the law demands is the filing of an application to stay proceedings after entry of appearance and without the taking of any other step.

He noted that the 1st and 2nd respondents rather filed preliminary objections and statements of defence. He pointed out that 2nd respondent acknowledged that it had taken steps in the matter and therefore ought not to have asked for the striking out of the matter on the ground that the reference to arbitration had not been made. He added that the admission amounted to a withdrawal of the first ground of objection which he said ceased to constitute an issue between the 2nd respondent and the appellant.

This he contended meant that since the learned judge of the lower Court had stated that the 2nd respondent’s objection would dispose of the 1st respondent’s objection, the ruling cannot stand as the issue of submission to arbitration was no longer being contested by the parties. 1st respondent’s counsel argued that proceedings can be terminated at the instance of the respondent on the basis of a clause in the contract entered into by the parties.

This, according to him, is because parties are bound by the terms of an agreement freely entered into by them and the Court is simply to give effect to the agreement freely entered into by parties. He posited that the phrase used in the arbitration clause is “shall” which is mandatory and so the lower Court was right in holding that the appellant was under an obligation to explore arbitration.

It was his further submission that whenever there is an agreement between parties that their dispute must be referred to arbitration, arbitration becomes a condition precedent to the exercise of jurisdiction. ​ It was his position that apart from filing an application for stay of proceedings, a defendant may also apply for the suit to be struck out where the Court is robbed of jurisdiction. He emphasized that such an application is known to law.

He went on to submit that taking steps to file a statement of defence before filing a preliminary objection at the lower Court was the proper thing for the (1st) respondent to do since demurrer has been abolished.

He finally submitted that if the 2nd respondent abandoned the first arm of his objection, it does not mean that the said ground ceased to constitute an issue between the appellant and the 1st respondent. ​ Let me quickly say that the reply brief filed by the appellant is not worthy of the tag “reply brief.” It begins by identifying two issues said to flow from the respondents’ brief of argument. Issues for the determination of an appeal do not arise from a respondent’s brief of argument; rather they arise from grounds of appeal.

Besides, there is no room in the rules of this Court for formulation of issues for determination in a reply brief.

Again, the issues formulated in the reply brief by appellant’s counsel are a re-statement of issues A and D raised in the appellant’s amended brief of argument. In short, the reply brief is but a re-argument of the contention in the appellant’s brief of argument. A reply brief is not meant to afford the appellant another bite at the cherry. It is improper to use a reply brief to extend the scope of argument in the appellant’s brief or to seek to prettify the argument in the appellant’s brief of argument. See Kolo v. Lawan (2018) 13 NWLR (Pt. 1637) 495, 518 and Mainstreet Bank Capital Ltd v.

Nigeria Re-Insurance Corporation Plc (2018) 14 NWLR (Pt. 1640) 423, 442. So I shall discountenance the reply brief. ​ It was the contention of appellant’s counsel that the trial Court failed to analyse and consider any of the issues raised by the appellant in its reply on points of law and that this is borne out by page 286 of the record of appeal. It was the position of 1st respondent’s counsel that this is a matter of style of writing of judgment or ruling which is peculiar to each judge.

At page 268 of the record, the learned judge of the lower Court held that no reason had been provided by the appellant for its failure to submit the dispute between the parties to arbitration. This cannot be correct, for the appellant (as claimant) in its replies at pages 237 -241 and 261 of the record gave the reasons for its not submitting the dispute to arbitration. The trial Court obviously overlooked the issue and argument of appellant’s counsel on the point. All Courts especially non-final Courts are required to treat all issues raised and argued by parties before reaching a decision.

See Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332, 361, Nagabu Company Ltd v. Unity Bank Plc (2013) All FWLR (Pt. 698) 871, 896, and C. N. Okpala and Sons Ltd v. Nigerian Breweries Plc (2018) 9 NWLR (Pt. 1623) 16, 28. The lower Court did not consider and resolve the issue and points raised and argued by appellant’s counsel before reaching its decision. Now, the issue or point that was left untreated by the lower Court was to the effect that the time to resort to arbitration had effused and so the appellant was right to head straight to the lower Court without resorting first to arbitration.

I shall take the liberty of setting out the relevant clauses of the written agreement between the parties: Article 7 of the articles of agreement states: “If any dispute or difference as to the construction of this contract or any matter of thing of whatsoever nature arising thereunder or in connection therewith shall arise between the Employer or the Architect/Co-ordinator on his behalf and the Contractor either during the progress or after the completion or abandonment of the works, it shall be and is hereby referred to arbitration in accordance with the clause of the Conditions of Contract.” Clause 30 (7) of the Appendix No. 1 to the articles of agreement in part reads: “Unless a written request to concur in the appointment of an arbitrator shall have been given under clause 35 of these conditions by either party before the Final Certificate had been issued or by the Contractor within 14 days after such issue, the said certificate shall be conclusive evidence in any proceedings arising out of this contract (whether by arbitration under clause 35 of these conditions or otherwise) that the Works have been properly carried out and completed in accordance with the terms of this contract and that the necessary effect has been given to all the terms of this contract which require an adjustment to be made to the Contract Sum, except and in so far as any sum mentioned in the said certificate is erroneous by reason of …” Clause 35 (1) provides: “Provided always that in case any dispute or difference shall arise between the Employer or the Architect on his behalf and the Contractor either during the progress or after the completion or abandonment of the Works, as to the construction of this Contract or as to any matter or thing whatsoever nature arising thereunder or in connection therewith (including any matter or thing left by this Contract to the discretion of the Architect or the withholding by the Architect of any certificate to which the Contractor may claim to be entitled or the measurement and valuation mentioned in Clause 30 (5) (a) of these Conditions or the rights and liabilities of the parties under clauses 25, 26, 32 or 33 of the Conditions) then such dispute or difference shall be and is hereby referred to the arbitration and final decision of a person to be agreed between the parties, or failing agreement within 14 days after either party has given to the other a written request to concur in the appointment of an Arbitrator, a person to be appointed on the request of either party by the President or Vice President for the time being of the Nigerian Institute of Architects.” Clearly clause 30 (7) above does not talk about time within which a party may resort to arbitration after which the obligation to resort to arbitration is extinguished: it talks about the effect of failure to give a written request to concur in the appointment of an arbitrator either before the Final Certificate has been issued or within 14 days after the said Certificate has been issued, namely;

”the said certificate shall be conclusive evidence in any proceedings arising out of this contract…” It does not preclude or bar resort to arbitration and does not give any time limitation for doing so.

This is even made clearer by the words in brackets, to wit: ”whether by arbitration under clause 35 of these conditions or otherwise.” Clause 35 (1) supra. provides for arbitration in case any “dispute or difference shall arise… either during the progress or after the completion or abandonment of the Works, as to the construction of this Contract or as to any matter or thing or whatsoever nature arising thereunder or in connection therewith.” (underling is mine for emphasis) There is, as I have already stated, no time limitation as regards resort to arbitration in the contract as canvassed by counsel for the appellant.

The effect of the foregoing is that though the lower Court did not consider the point raised by appellant’s counsel touching on the issue of expiry of time within which resort is to be made to arbitration, the failure did not occasion a miscarriage of justice. See BPS Construction and Engineering Co. Ltd v. F. C. D. A. (2017) 10 NWLR (1572) 1, 14, SCC (Nig.) Ltd v. Anya (2013) ALL FWLR (Pt. 703) 2047, 2062 and Nigerian Communications Commission v.

Motophone Ltd (2019) 14 NWLR (1691) 1, 37 where Aba-Aji, JSC, opined that: “Moreover, even failure to consider all issues submitted before it would not amount to a denial of fair hearing unless it is shown that a miscarriage of justice occurred.” An arbitration agreement is an agreement by two or more persons that a dispute or potential dispute between them shall be resolved and decided in a legally binding way by one or more impartial persons in a judicial manner upon evidence put before him or them. It may stand alone or be incorporated in a commercial agreement as in this instance.

See Onuselogu Enterprises Ltd v. Afribank (Nig.) Plc (2005) 12 NWLR (Pt. 940) 577, 585 and A. Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases page 145. An arbitration agreement or clause does not oust the jurisdiction of the Court (for parties have no power to contract out of the Constitution) but the Court in the exercise of its power under a statute may stay proceedings in an action brought before it in breach of an agreement to settle a dispute by arbitration. In the case of Mainstreet Bank Capital Ltd v.

Nigeria Reinsurance Corporation Plc, supra. 444 – 445, Kekere-Ekun, JSC, in resolving a similar issue relied on and quoted the case of Obembe v. Wemabod Estates Ltd (1977) 5 SC (Reprint) 70 thus: “The lower Court was right when it held that an agreement to have recourse to arbitration in the event of a dispute does not oust the jurisdiction of the Court. In Obembe v.

Wemabod Estates Ltd (1977) 5 SC (Reprint) 7 @ 79 lines 19 to 28, this Court per Fatayi-Williams, JSC, explained the legal position thus: “As we have pointed out earlier, any agreement to submit a dispute to arbitration, such as the one referred to above, does not oust the jurisdiction of the Court. Therefore, either party to such an agreement may, before a submission to arbitration or an award is made, commence legal proceedings in respect of any claim or cause of action included in the submission. (See Harris v. Reynolds (1845)7 QB 71).

At common law, the Court has no jurisdiction to stay proceedings; where however there is a provision in the agreement, as in Exhibit 3, for submission to arbitration, the Court has jurisdiction to stay proceedings by virtue of its power under Section 5 of the Arbitration Act.” See also Sino-Afric Agriculture & Industries Company Ltd v. Ministry Of Finance Incorporation (2013) LPELR – 22370 (CA) and Onyekwuluje v. Benue State Government (2015) 16 NWLR (Pt. 1484) 40.

Counsel for the appellant referred to a class of arbitration agreement or clause that is termed the Scott v Avery clause which is a provision in an arbitration agreement to the effect that no action shall be brought until an arbitral award has been made. This contractually forbids resort to a Court until the arbitration process has been exhausted. The leading case on the position is Scott v. Avery 1856 HL 811. See Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases supra page 147.

Counsel set out the position of the Supreme Court on the clause as expressed in Obembe v. Wemabod Estates Ltd supra. I do not intend to comment on the submission by appellant’s counsel as the arbitration clause in this instance does not fall into this category of arbitration clause.

Section 5 (1) of the Arbitration and Conciliation Act provides that: “If any party to an arbitration agreement commences any action in any Court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement may, at any time after appearance and before delivering any pleadings or taking any steps in the proceedings, apply to the Court to stay proceedings.”​

Let me pause at this stage to quickly settle a point raised by appellant’s counsel to the effect that since the 1st and 2nd respondents filed notices of preliminary objection to the jurisdiction of the Court instead of applications for stay of proceedings, the lower Court had no authority to consider the same as it is not known to the law. The simple answer to this submission is to be found in the case of Mainstreet Bank Capital Ltd v.

Nigerian Reinsurance Corporation Plc supra. 445 where Kekere-Ekun, JSC, opined that: “…since an arbitration clause in an agreement does not oust the jurisdiction of the Court, an objection to the jurisdiction of the Court is in effect an application to stay proceedings pending arbitration.” That gives a quietus to the contention of appellant’s counsel.

Where a party to an arbitration agreement proceeds first to Court before resorting to arbitration as agreed, the Court leans towards granting an application for stay of proceedings pending arbitration provided the party applying did not file a defence or take steps in the proceedings other than entering appearance. Where a party delivers a defence or makes any application for extension of time, he will be deemed to have waived his right to insist on recourse to arbitration.

See Mainstreet Bank Capital Ltdsupra. 445, Kano State Urban Development Board v. Fanz Construction Co. Ltd (1990) 4 NWLR (Pt. 142) 1 and Osun State Government v. Dalami Nig. Ltd (2003) 7 NWLR (Pt. 818) 72, 93. The question that follows therefore is was there a waiver by the 1st and 2nd respondents of the right to insist on a recourse to arbitration? In answering the question, I shall start by considering the processes filed by the 2nd respondent. They are as follows: 1. A statement of defence. See pages 175-178 of the record. 2.

A written deposition of a witness in opposition to the motion for summary judgment etc. see pages 179-180 of the record. 3. Written address in opposition to the motion for summary judgment. See pages 183-185 of the record. The processes above were filed on the same day that the preliminary objection to the jurisdiction of the Court was filed, to wit; 25/7/2016. The 2nd respondent by the filing of those processes took steps in the matter and thereby waived his right to insist on a recourse to arbitration.

His counsel admitted this position at page 266 of the record when he stated before the Court that: “We concede on the 1st arm of our prayer because we have taken steps because we filed a statement of defence…” In respect of the 1st respondent, it should be put on record that the mere fact that the 2nd respondent took steps does not by itself affect adversely the application of the 1st respondent though the lower Court stated that the outcome of the 2nd respondent’s application would dispose of the 1st respondent’s objection.

This is because the objection of the 1st respondent still maintained its individual character different from that of the 2nd respondent. I shall therefore consider the processes filed by the 1st respondent apart from the notice of preliminary objection. The processes are: 1. Statement of defence. See pages 186-188 of the record. 2. List of witness – page189 of the record. 3. Written deposition of the witness – pages 190-193 of the record. 4. Written address – pages 193-199 of the record. 5. Notice of intention to defend – page 200 of the record. 6.

Affidavit disclosing a defence on the merit – pages 201-203 of the record 7. Motion on notice for extension of time to file notice of intention to defend, affidavit disclosing defence on the merit, written address and statement of defence and a deeming order. See page 212 of the record. It must be mentioned that those processes were filed on 26/7/2016 while the notice of preliminary objection was filed on 8/7/2016. In other words, the processes listed above were filed after the notice of preliminary objection was filed by the 1st respondent.

A similar situation arose in the case of Mainstreet Bank Capital Ltd v. Nigerian Reinsurance Corporation Plc supra. At page 446 Kekere-Ekun, JSC, dissolved the puzzle, by rejecting the position of the Court of Appeal that there was no waiver, in the following words: “I must state however, with due respect to the lower Court, that it was wrong when it held that the steps taken by the respondent after filing of the preliminary objection did not preclude it from applying for stay of proceedings pending arbitration vide Section 5 (1) of ACA.

From the decisions of this Court earlier referred to, any step taken apart from seeking stay of proceedings (or seeking to oust the jurisdiction of the Court) amounts to a step in the proceedings and the applicant is deemed to have waived his right on arbitration agreement.” I find therefore that by filing the processes listed earlier after filing the notice of preliminary objection, the 1st respondent waived its right to insist on a recourse to arbitration. In the light of the foregoing, I enter a negative answer to issue 1 and resolve the same in favour of the appellant.

ISSUE 2 – Was the lower Court right in not entering judgment in favour of the appellant? ​ Appellant’s counsel submitted that appellant established its case under the rules of Court and as such is entitled to the reliefs claimed. He referred to the writ of summons and motion for summary judgment together with the annexures. He noted that the case of the appellant was by way of summary judgment procedure which he said is usually adopted when a claimant has a good case and the defendant has no reasonable defence.

He submitted that the respondents have no defence as they failed to annex or exhibit any documentary evidence showing that the appellant is not entitled to the sum due. He therefore argued that the appellant is entitled to judgment without the need for trial de novo pursuant to the inherent power of the Court and Order 7 Rule 2 (1) of the Court of Appeal Rules.

He added that the appellant is also entitled to the alternative prayers as contained in the notice of appeal. 1st respondent’s counsel contended that lower Court acted in the interest of justice by first determining the preliminary objection of the 1st and 2nd respondents. It was his further contention that in view of the merit of the objection, the lower Court was right in striking out the matter and not looking at the substantive suit in order to determine whether or not to grant judgment in appellant’s favour. He added that Order 7 Rule 2 (1) of the rules of this Court was inapplicable.

He stressed the point that the application for summary judgment which is in the nature of a motion had not been argued or moved before the lower Court for it to pass judgment on. He stated the trite position of the law that a Court is expected to make a specific ruling on an application before it after hearing counsel. ​ Counsel submitted that it is not the law that where a notice of intention to defend is filed, it must be accompanied with documentary exhibit.

The appellant is essentially calling on this Court to invoke its power under Section 15 of the Court of Appeal Act and Order 4 Rule 1 of the Court of Appeal Rules, 2021 to determine the case since the decision of the lower Court striking out the case of the appellant cannot stand. For the Court to exercise its power under the said provisions, the following factors must be present: 1. The lower Court must have the power to adjudicate in the matter. 2. The real issue raised by the appellant’s claim at the lower Court must be seen to be capable of being distilled from the grounds of appeal. 3.

All necessary materials must be available to the Court for consideration. 4. The need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented. 5. The injustice or hardship that will follow if the case is remitted to the lower Court must be clearly manifest. See Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Mainstreet Bank Capital Ltd v. Nigerian Reinsurance Corporation Plc supra. 447.

For Section 15 of the Court of Appeal Act to apply, the matter must have been raised in the lower Court and that Court did not or failed to take the appropriate decision. See Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) 554, 640. It is pertinent to re-state that there were two motions pending before the lower Court, to wit: 1. Motion for summary judgment 2. Motion by the 1st respondent for extension of time to file its notice of intention to defend, affidavit disclosing defence, written address and statement of defence and a deeming order.

None of the motions had come up for hearing at the lower Court as at the time that it heard and ruled on the preliminary objections of the 1st and 2nd respondents. The law is well established that a Court has a duty to hear and determine all applications pending before it before making a final pronouncement by way of delivery of judgment. See Cookey v. Fombo (2005) 15 NWLR (Pt. 947) 182, 201, United Parcel Service Ltd v. Ufot (2006) All FWLR (Pt. 314) 337, 356, BCE Consulting Engineering v. NNPC (2019) 14 NWLR (Pt. 1691) 136, 175 and Newswatch Communication Ltd v.

Atta (2006) 12 NWLR (Pt. 993) 144, 168 – 169.

Again, a Court cannot rule on a motion that has not been moved. Since the motions itemized above had not been moved at the trial Court nor can they or have they been moved in this Court, the coast was not clear for judgment to be delivered by the lower Court and so this Court cannot proceed to exercise its power under Section 15 of the Court of Appeal Act to enter judgment one way or the other. Given the stage of the case at the lower Court, I enter an affirmative answer to issue 2 and resolve it against the appellant.

On the whole and in the light of my resolution of issue 1, I find that the appeal has merit and I allow the same. I hereby set aside the ruling of the lower Court and, in its place, I dismiss the preliminary objections of the 1st and 2nd respondents. It is directed that the case be remitted to the Honourable Chief Judge of Delta State for assignment to a judge other than Gbemre, J. for speedy hearing and determination of the pending motions. I assess the costs of this appeal at N300,000 in favour of the appellant.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had a preview of the lead judgment of my learned brother, J. E. EKANEM, JCA. My Lord has fully covered the issues in his lead judgment. I am in full agreement with his reasoning and conclusion that the appeal has merit. I abide by the orders made therein. ABIMBOLA OSARUGUE OBASEKI –

ADEJUMO, J.C.A.: I have read in advance the judgment of my learned brother JOSEPH EYO EKANEM, JCA. I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother. I too hold that the appeal has merit and I allow the same. I abide by all consequential order (s) in the lead judgment.

Judgment

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Federal Capital Territory (FCT) High Court, Abuja, delivered on May 8th, 2020 by Hon. Justice O. C. Agbaza wherein the Respondent’s application was granted and an order recognising the arbitral award dated November 6th, 2018 was granted in favour of the Applicant the Respondent herein.

The Appellant was dissatisfied with the decision of the Court that it refused to set aside the arbitral award of November 6th, 2018 but rather ordered recognition of same as earlier stated. It filed its Notice of Appeal on May 18th 2020 and as amended with Four (4) Grounds of Appeal on September 10th, 2020 of same date, deemed as properly filed and served on February 3rd, 2022. The following reliefs in the main are being sought: “i. An Order allowing the appeal. ii. An Order of this honourable Court setting aside the decision of the trial Court. iii.

An Order of this Court setting aside the arbitral award. iv. An Order of this Court dismissing/striking out Motion No. M//2987/19 Brief facts as garnered from the printed record placed before this Court that culminated into this appeal are that the Respondent bought four (4) units duplex at No. 40 Madeira Street, Imani Estate, Maitama, Abuja from the Appellant for Seven Hundred and Ten Million (N710,000,000.00) Naira.

The Appellant undertook to refund the Respondent’s purchase fee, solicitor’s fee and the bank charges where it is unable to perfect its title to the property or if an adverse third party claimed title on the property. The Respondent was forcefully evicted by an Agency of the Federal Government of Nigeria which laid claim to the property. The Appellant in spite of demands by the Respondent for possession or refund of purchase fee, failed to do anything.

According to the Appellant, the Respondent was not disturbed in any way in the possession of the property in spite of the action of the said Government Agency. The Respondent on the other hand, pursuant to the Arbitration clause contained in their agreement gave notice of Arbitration. The Final Award was published by Prof. Paul Idonigie in favour of the Respondent after the arbitral proceedings. The Appellant for that reason filed an Originating Motion as amended at the FCT High Court and sought to set the arbitral award aside whilst the Respondent filed an application for its recognition.

The decision of the Court in favour of the Respondent is being appealed against by the Appellant. The following in the main were the reliefs sought by the Appellant at the Court below: “1. A DECLARATION that the arbitral award of Prof. Paul Obo Idornigie, SAN, PHD, FCIS, FClArb (UK), C. Arb published on 6th November, 2016 in the arbitration between Brighthouse Estate Limited V NICON Insurance Limited is not binding on NICON Insurance Limited (the appellants herein). 2. AN ORDER of the honourable Court setting aside the arbitral award of Prof.

Paul Obo Idonigie SAN, PHD, FCIS, FClArb (UK), C.Arb published on 6th November, 2016 in the arbitration between Brighthouse Estate Limited V NICON Insurance Limited. In compliance with the rules of this Court parties filed their briefs. Appellant’s brief dated September 9th, 2020, filed September 10th, 2020 deemed as properly filed and served on February 3rd, 2022 was settled by Olumide Olujinmi Esq., who urged that the appeal be allowed. The Respondent’s brief is dated and filed February 23rd, 2022 and settled by Chief Duro Adeyele SAN, who urged in opposition that the appeal be dismissed.

APPELLANT’S ISSUES FOR DETERMINATION “i. Whether the lower Court was right to have refused to consider and determine the jurisdiction of the arbitral tribunal to grant the award and proceed to recognise and enforce the arbitral award (Grounds 1 and 3). ii. Whether the lower Court was not in error to hold that the sole arbitrator did not misconduct himself when the arbitrator considered issues outside the agreements of the parties (Ground 2).” RESPONDENT’S ISSUES FOR DETERMINATION “1.

Whether the Court below was right in refusing to interfere with the decision of the Sole Arbitrator in his award published, the Appellant having failed to establish alleged want of jurisdiction or alleged misconduct against the Sole Arbitrator in making the Award. 2. Whether considering the facts and circumstances of the applications before it, the Court below was right in granting an order of recognition and enforcement of the award of the Sole Arbitrator, Prof. Paul O.

Idonigie, SAN FClArb (UK) C.A. and dismissing the application for an order setting aside the award.” Carefully reading through the two sets of Issues as afore going, one finds that they are similar in content and objective and is satisfied that the issues donated by the Appellant will justly and fairly determine this appeal. Therefore, I adopt the Appellant’s Issues.

APPELLANT’S SUBMISSION The learned Appellant’s Counsel submitted that the Court was wrong to have held as it did, given the fact that the issue involved was that of jurisdiction of the arbitral Tribunal which Order 19 R. 12(h) of the FCT High Court Rules allows any party to pursue. The Appellant contended that the cause of action pursued by the Respondent had not crystalized when it went before the Tribunal and so the Sole Arbitrator had no jurisdiction to grant the award it did. In support, he cited the cases of NWORA V. NWABUEZE 2019 7 NWLR PT. 1670 1, OGBIMI V.

OLOLO 1993 7 NWLR PT. 304 128 and EFCC V. AKINGBOLA 2015 14 NWLR PT. 1478 199. He argued that there was no third-party successful challenge of the peaceable possession of the property by the Respondent. The Indemnity Agreements between the parties are in Exhibits A, B and C in support of Clause 10 in the Sale Agreement between the parties. In support, he cited the cases of OJUKWU V. GOV. OF LAGOS STATE 1985 2 NWLR PT. 10 806 and EDUN V. PROVOST, LACOED 1998 13 NWLR PT. 580 52.

Further that the Arbitral Tribunal too was in the same error as the Respondent that there was a successful third-party challenge and the wrong arbitral award in consequence. He cited the cases of SEHINDEMI V. GOV. LAGOS STATE 2006 ALL FWLR PT. 311 1858 and SILAS OKOYE V. CHIEF AKAGBUA KPAJIE & ORS 1972 6 SC 98. He submitted that the Tribunal was also wrong in its meaning of peaceable possession for not putting any value on the fact that the Respondent received some benefit from the contract as it was in possession for 14 months.

That in essence the Tribunal created a new contract for the parties from its wrong interpretations and therefore should not be allowed to stand and in support cited the cases of EKONDO COMMUNITY BANK LTD V. ANIETING 2013 LPELR 21139 CA 15 and NIKA FISHING CO LTD V. LAVINA CORPORATION 2008 16 NWLR PT. 1114 509. Therefore, he submitted that the Arbitrator’s act amounted to misconduct which can be set aside and in support cited the case of BAKER MARINE NIG LTD V. CHEVRON NIG LTD 2000 12 NWLR PT. 681 393, In consequence, he submitted that the jurisdiction of the Tribunal never arose.

In conclusion, he urged that the appeal be allowed. RESPONDENT’S SUBMISSION The learned silk submitted that the contention of the Appellant in the main was that the Arbitral Tribunal had no jurisdiction as the cause of action had not crystalized and that the Sole Arbitrator misconducted himself in the interpretation he gave to the successful third party challenge and peaceable possession. Arbitral awards are not appealable in Nigeria, they are binding and to a great extent final and in support he cited the cases of ADAMEN PUBLISHERS NIG LTD V.

ABHULIMEN 2016 6 NWLR PT. 1509 431 and BAKER MARINA NIG LTD V. DANOS & CUROLE MARINA CONST INC. 2001 7 NWLR PT. 712 337. And that it is in line with the intendment of the Arbitration and Conciliation Act, 2004 Section 34 as the Appellant sought in a way to appeal the award though went under the guise of misconduct on the part of the Arbitrator. ​ He argued that there was no misconduct on the part of the Arbitrator as described in Section 29 of the Arbitration and Conciliation Act, 2004. ​

That the Court below agreed that cause of action had arisen where the Respondent stopped enjoying the peaceable possession of the property it purchased when the third party claimed adverse title and successfully took possession from the Respondent. That the submission of the Appellant is in a bid to frustrate the Respondent from enjoying the fruits of the award as the argument on jurisdiction is absurd and in support he cited the case of FCMB PLC. V. AIB NIG PLC 2000 8 NWLR PT. 667 42.

Further in support of the fact that there can be no appeal over the award of the Tribunal and that for the issue of lack of jurisdiction of the Tribunal, the maxim is kompetenz-kompetenz, that the Tribunal is competent to inquire into its own jurisdiction as provided in Section 12 (1) of the Arbitration and Conciliation Act and its decision thereupon shall be final as contained in Section 12 (4) of the Act.

He submitted that the Arbitrator had resolved the issue of the jurisdiction of the Tribunal when it dealt with the question whether the claim for return of purchase price by the Respondent was premature or not through the specific clauses in the Contract of Sale, Deed of Assignment and Deed of Indemnity between the parties. Further that the Court rightly found that the Respondent was successfully dispossessed of peaceable possession of the property by third party adverse claimant. And that the arbitral proceedings commenced in that regard was not premature.

He submitted that decision is therefore final and binding. He submitted further that the Court was right to have found no misconduct by the Sole Arbitrator. That the allegation of misconduct is not only woolly but unfounded and a misconception of what misconduct means in arbitral proceedings. Further that the judicial authorities cited on whether a trespasser can forcefully dispossess of peaceable possession of property are irrelevant herein.

He asserted that the Appellant did not deny that there was dispossession in fact of the Respondent and the Appellant had to proceed to Court over title with those it termed trespassers and has been unable to restore possession to the Respondent. ​ The learned Silk submitted that the motion for the recognition of the arbitral award was not in any way challenged as there was no Counter-affidavit in opposition or point of law raised. Therefore, the Court was right to have so deemed it.

Notwithstanding, it examined all the materials submitted by the Respondent in that respect in line with the provision of Section 31 (2) of the Act before reaching its decision he argued. Consequently, the complaint of the Appellant that failed to challenge the application for recognition of the arbitral award is of no moment he submitted as the Appellant had conceded the Motion. In support, he cited the case of MABAMIJE V. OTTO 2016 ALL FWLR PT. 828 883 898 and HONDA PLACE V. GLOBE MOTORS HOLDINGS NIG. LTD 2005 14 NWLR PT. 945 273.

In conclusion, he urged that the appeal be dismissed and the decision of the Court below affirmed. POSITION OF THE COURT Having very carefully considered the briefs of both parties and thoroughly read through the Record before this Court I shall commence consideration of the Appellant’s two (2) issues which are reproduced hereunder for ease of reference along with the findings of the Court below: ISSUES I AND II “i.

Whether the lower Court was right to have refused to consider and determine the jurisdiction of the arbitral Tribunal to grant the award and proceed to recognise and enforce the arbitral award (Grounds 1 and 3). ii.

Whether the lower Court was not in error to hold that the sole arbitrator did not misconduct himself when the arbitrator considered issues outside the agreements of the parties (Ground 2).” Two applications as consolidated were considered and determined in the ruling of the Court below that is being appealed; the Appellant’s, CV/492/18, to set aside the arbitral award and the Respondent’s, M/2987/19 to recognise and enforce the award.

The Appellant’s grouse in the main was that the cause of action leading to the grant of the arbitral award had not crystallized and as such the sole arbitrator lacked the necessary jurisdiction to grant the award as it did. The Court below found to the contrary hence this appeal. The Court considered and determined the issue of jurisdiction of the arbitral Tribunal in the grant of the award.

It found that the arbitral proceedings were not premature as the Appellant argued as it found that the cause of action had crystalized which is an issue of jurisdiction. ​ It clearly considered and made findings on whether the Tribunal went outside its scope with regard to the agreement and so was able to hold that there was no misconduct and that it rightly made the award in question. The meanings it gave to the peaceable possession and successful third-party challenge as provided for in Exhibit A, B, C and H which is the final award itself.

The Appellant claimed that even though there was trespass upon the property it sold to the Respondent, it could not be interpreted to mean and be equal to the parties’ intendment in the Indemnity agreement as contained in Exhibits A, B, and C. That the trespass could not be taken to mean a successful third-party challenge of peaceable possession of the property sold to the Respondent.

It is necessary to note that the parties agreed in clause 10 of the Contract of sale, Exhibit A thus: “10 – The vendor hereby undertakes to indemnify the purchaser for any want and/or defect in title not herein disclosed.” See page 707 of the Record. The Deed of Indemnity, Exhibit B particularly paragraphs 2 and 4 state as follows: “This undertaking is in furtherance of clause ten (10) of the DEED OF ASSIGNMENT signed by both parties wherein NICON INSURANCE LIMITED Transferred her title in the above property to BRIGHTHOUSE ESTATE LIMITED.

NICON INSURANCE LIMITED further undertakes to do all that is necessary for the perfection of the title of BRIGHTHOUSE ESTATE LIMITED with the Lands Registry i.e ABUJA GEOGRAPHIC INFORMATION SYSTEM and any other Agency (s) saddled with this responsibility.” See Exhibit B, page 716 of the Record. The Appellant argued that the case of the Respondent before the Tribunal that there was a total failure of consideration was wrong and should have failed as it was based on the fact that the Respondent was by a third-party adverse claimant.

That the prayer of the Respondent in that regard was for the Arbitral Tribunal to invoke the foregoing stated indemnity clauses in Exhibits A, B, and C and the Respondent should have made a case in law that there was a successful challenge by the third party. Therefore, there was no breach of any of the terms of the Contract Agreement warranting the final award by the Tribunal.

The Court correctly found in my view and humbly as follows on page 1017 of the Record: “Having carefully considered the entire processes – Clause 7, 8 of Exhibit A, Exhibit B along with Clause 10 of Exhibit C and Exhibit H along the judicial authorities cited, this Court resolve this issue 1, in the negative and in favour of the Respondent.” One could not agree more with the Court.

Respectfully one wonders if the trespass did not amount to third party successful adverse challenge of the property what then was it and at what stage would it crystalize to so qualify particularly when the Appellant up to the stage of the arbitral award was unable to put the Respondent back unto possession of the property from the said trespasser. The Respondent was in fact evicted and could not recover possession both during and after the arbitral proceedings.

Further respectfully, what then was happening with the Respondent out of the property it had legally paid for and hitherto peaceably occupied. In my humble view, the fact that the Respondent occupied the property for some months before the eviction does not remove from its right to recover the property or get its money back. The contract from Exhibit A did not give the impression that it was for a few months to test run.

Clause 8 of Exhibit A, the Contract of Sale states thus: “8 – The vendor subject to the consent of the Honourable Minister, Federal Capital Territory, Abuja, Nigeria, first sought and obtained has agreed to surrender/assign all its rights and interests in and over the Plot to the Purchaser free from all encumbrances.” See page 707 of the Record. Clause 10 of Exhibit C, the Deed of Assignment states equally thus in support of the Respondent’s case: “10 – The Assignor hereby undertakes to indemnify the Assignee for any want and/or defect in title not herein disclosed.” See page 720 of the Record.

The argument by the Appellant that because the cause of action had not crystalized, the Arbitral Tribunal therefore lacked jurisdiction to have entertained the matter and granted the award cannot hold and respectfully is of no moment. The Appellant further argued that the Tribunal was in error by the way it construed “peaceable possession” to the effect that there was a clear breach. That since the Arbitrator was wrong in the interpretation which led to the award, he misconducted himself and the award ought to be set aside.

As correctly held by the Court, there was no misconduct on the part of the Arbitral Tribunal.

The law is clear on what would amount to misconduct which this Court listed in the case of STABILINI VISINONI LTD V. MALLINSON & PARTNERS LTD LPELR 23090 CA 2014.

It stated misconduct to include an Arbitrator failing to comply with the terms express or implied, an award which on the ground of public policy ought not to be enforced, an Arbitrator who collects bribe or corrupted, where the Arbitrator makes a mistake as to the scope of his authority from the agreement of reference, where the Arbitrator fails to decide all the matters referred to him, where he breached the rules of natural justice and he fails to act fairly between the parties.

The sole arbitrator in the instant appeal does not fall within any of the foregoing situations that will amount to misconduct. The Court was right when it held that the Appellant failed to “show clearly how the Arbitrator acted wrongly in considering the facts before him, amounting to misconduct as stated within any of the definition of what amounts to misconduct.” The Court in the light of the foregoing was unable to set aside the final award and correctly too.

Section 29 of the Arbitration and Conciliation Act 2004 allows an award to be set aside where the party applying is able to prove that the award is outside matters within the purview of the Tribunal. The Court was unable to find that the Tribunal was outside the agreement which brought about arbitration. I have also gone through the gamut of the Record and unable to find that the Arbitrator misconducted himself.

The Court therefore was right when it held thus on page 1021 of the Record: “Having carefully perused this instance issue by considering issues outside the agreement of the parties and along the long line of judicial authorities, this Court finds that the Applicant has failed to furnish sufficient proof in line with the law, to warrant this Court to set aside this Final Award published on 6th November, 2018…” The Arbitral Tribunal properly entertained the Respondent’s matter.

It is not in question at all that both parties agreed that in the event of a dispute they would go to arbitration by Clause 16 of Exhibit A, the Contract of Sale. See page 711 of the Record. The second application before the Court as aforestated by the Respondent pursuant to Section 31 of the Arbitration and Conciliation Act sought the following prayer in the main: “1. An order recognising and enforcing the Arbitral Award in favour of the Applicant against the Respondent dated 6th November, 2018 and published same day, by the Sole Arbitrator, Professor Paul Oboh Idornige, Ph, FCI Arb (UK) C.

Arbitrator, Certified True Copy of which is attached as Exhibit “B”.” As contained in the record and in the light of the foregoing findings of the Court on the Appellant’s application that the award be set aside and the fact that there was no opposition to the second application by the Respondent for the recognition and enforcement of the award, the evidence required by the Court in support of the second application is very minimal. As already stated and found, the Court below considered the jurisdiction of the Arbitral Tribunal.

The Appellant as the Respondent to the application as stated did not file any counter-affidavit. The Court found that the facts contained in Exhibits A and B forwarded in support of the Respondent’s application were not challenged and that it has earlier refused to set the same award aside upon the application of the Appellant. In the circumstances, it therefore granted the Respondent’s application. In consequence, the two issues are resolved against the Appellant. In the result, this appeal cannot be allowed, it therefore fails and is hereby accordingly dismissed.

The ruling of the Federal Capital Territory High Court delivered on May 8th, 2020, by Hon. Justice O. C. Agbaza is hereby affirmed.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, E. O. Williams-Dawodu, JCA gave me the privilege of reading in advance the draft of the judgment just delivered. Having carefully perused the record of appeal and the submissions of counsel in this appeal, I am in agreement with the findings of my learned brother that this appeal lacks merit and that it be dismissed. The Appellant as Respondent in the Court below did not dispose to sufficient facts showing why the arbitration award be set aside. On that note, I also hold that this appeal has no merit. It is hereby dismissed.

I abide by the consequential order made in the leading judgment.

DANLAMI ZAMA SENCHI, J.C.A.: I have read before now the lead judgment of my learned brother, E O. Williams-Dawodu, JCA just delivered. The lead judgment painstakingly considered and determined all the issues canvassed on appeal and I agree with the finding and conclusion arrived thereafter in the lead judgment that this appeal lacks merit and it is dismissed. ​ Accordingly, the judgment of the High Court of the Federal Capital Territory, Abuja delivered on 8th day of May, 2020 by O. C AGBAZA, J is hereby affirmed. I make no order as to cost.