Judgment
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The Appellant, a Quantity Surveyor, had a dispute over payment of agreed commission payable to him by his principal, the Respondent herein, in respect of a building contract.
While the Appellant insisted on payment of his commission on the two phases of the building contract awarded by the third party to the Respondent, irrespective of whether or not the contracts for the two phases were actually awarded; the Respondent posited that the payment of the Appellant’s commission or fees was, as per their agreement, payable only if and when the contract for the second phase was awarded to the Respondent.
There was no dispute about the first phase. The contract for that phase was awarded and the Appellant was paid his fees.
The third party for some financial constraint did not award the contract for the second phase to the Respondent.
The agreement between the Appellant and the Respondent had an arbitration clause.
As the parties herein could not amicably resolve their dispute, the Appellant commenced the action in the High Court of the Federal Capital Territory (FCT) for his fee. The Respondent, in consequence thereof, raised the issue of the arbitration clause. The matter was then referred to arbitration, and the suit was struck out.
The Arbitration panel made its award. The Respondent aggrieved thereby proceeded to the FCT High Court to have the award set aside. The Appellant, in response to this move, rather than wait for the hearing and determination of the Respondent’s action seeking to set aside the arbitration award, filed a fresh and parallel suit No. FCT/HC/CV/809/2000 with a motion to enforce the award. On the Respondent’s objection that the suit, No.
FCT/HC/CV/809/2000, was an abuse of the process of the Court; the High Court (Mukhtar, J (as he then was)) agreed with him and dismissed the suit for abuse of Court’s process. The Appellant appealed the decision. He later withdrew the appeal.
The Appellant then filed another application for enforcement of the arbitral award. Again, the Respondent objected. Another Judge of the FCT High Court (H. Baba, J) heard the objection and ruled that, in view of the decision of Mukhtar, J, he was functus officio and would not constitute his Court an appellate Court to review Muhktar’s decision. The Appellant appealed that decision (of H. Baba, J) to the lower Court.
