Legalpedia Citation: (2025-07) Legalpedia 11707 (CA)

In the Court of Appeal

Holden at Lagos

Wed Jul 9, 2025

Suit Number: CA/LAG/840/2017

CORAM

Frederick Oziakpono Oho Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Nnamdi Okwy Dimgba Justice of the Court of Appeal

PARTIES

BEDDING HOLDINGS LIMITED

APPELLANTS

ANTHONIA OLUFUNKE CAREW

RESPONDENTS

AREA(S) OF LAW

AREAS OF LAW: ACADEMIC EXERCISE, APPEAL, ARBITRATION AND CONCILIATION ACT, ARBITRATION CLAUSE, CIVIL PROCEDURE, CONTRACT LAW, COURT OF APPEAL RULES, LANDLORD AND TENANT, LEGAL ETHICS, PROFESSIONAL CONDUCT, PROPERTY LAW, STAY OF PROCEEDINGS, TENANCY AGREEMENT, WAIVER

SUMMARY OF FACTS

The Respondent owned a 16-room office accommodation at 55, Adeniyi Jones Avenue, Ikeja, Lagos. The Appellant took up tenancy in 1988 for 8 years with option to renew for another 2 years. When parties could not agree on renewal rent in 1996, the Respondent sued, and Justice O.A. Williams fixed the yearly payment at N500,000 per annum from 1st March 1988, finding that the Appellant’s tenancy had lapsed since 28th February 1998 and was holding over.

While the Appellant was still holding over, Chief Kunle Oyewo (who had acted for the Respondent) wrote a letter dated 20th September 2006 to the Appellant without the Respondent’s instruction, suggesting a 10-year lease agreement for N750,000 per annum from 1st March 2007 to 28th February 2017. The Appellant accepted this offer by letter dated 18th December 2006 and paid N750,000 for 2007/2008.

Upon becoming aware of Chief Oyewo’s unauthorized letter, the Respondent immediately disclaimed the lease agreement in January 2008 and instructed new counsel to recover the property. When the Appellant refused to vacate after statutory notices, the Respondent instituted action in February 2009 seeking recovery of possession.

The Appellant defended claiming a valid 10-year tenancy agreement with an arbitration clause that ousted the court’s jurisdiction. The trial court found no tenancy agreement was tendered in evidence, dismissed the counter-claim, ordered immediate possession, and awarded N500,000 per annum for use and occupation. The judgment was delivered on 26th April 2017, and by that time, even the alleged 10-year lease period had expired.

The Appellant appealed but failed to appear at the Court of Appeal hearing, with counsel’s brief being deemed adopted under Order 19 Rule 8(4).

HELD

1. The appeal was dismissed as lacking merit and having become academic.
2. The Court held that the Appellant waived any right to claim arbitration by filing pleadings and participating in trial proceedings without applying for stay of proceedings under Section 5 of the Arbitration and Conciliation Act.
3. The Court held that arbitration clauses do not oust court jurisdiction but only give courts power to stay proceedings, which must be applied for before taking other steps.
4. The Court found that no tenancy agreement was tendered in evidence and that even the alleged 10-year lease period had expired by the time of judgment, making the appeal academic.
5. The Court severely criticized the Appellant’s counsel for professional misconduct in pursuing a frivolous appeal for 8 years after the alleged lease had expired.
6. The Court ordered immediate eviction of the Appellant, awarded N5,000,000 punitive costs to the Respondent, and directed that the complete record be sent to the President of Court of Appeal for disciplinary action against the Appellant’s counsel.
7. The Court emphasized that legal practitioners must not engage in conduct that serves merely to harass or maliciously injure another party.

ISSUES

The Appellant formulated four issues:

1. Whether the Lower Court has the jurisdiction to entertain this action having regard to the arbitration clause contained in the Tenancy Agreement as borne out in the Respondent’s Letter dated 20th September, 2006?
2. Whether from the series of correspondence/documents exchanged between the Respondent and the Appellant as already tendered before the Lower Court, there is an existing and binding ten (10) years’ tenancy agreement between the Respondent and the Appellant?
3. If issue 2 is answered in the affirmative, whether the Respondent can terminate the (10) years’ tenancy agreement when the Appellant has furnished consideration which has passed unto the Respondent for her benefit and enjoyment?
4. Whether from the totality of the evidence before the Lower Court by both parties, the Respondent is entitled to the reliefs sought?

The Respondent formulated three issues addressing jurisdiction, the existence of the lease agreement, and whether the matter had become academic.

RATIONES DECIDENDI

ARBITRATION CLAUSE – WAIVER BY PARTICIPATING IN PROCEEDINGS WITHOUT APPLYING FOR STAY

When there is an arbitration clause in an agreement, a party to the agreement will be deemed to have waived his right under the Clause, where he does not object, from the exchange of pleadings, to the trial of action in respect of the agreement, and does not apply to the trial Court for a stay of proceedings, on the ground of the plaintiff’s failure to refer the dispute to arbitration. The party cannot be heard to complain about the failure, on appeal. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

ARBITRATION CLAUSE – EFFECT ON COURT JURISDICTION AND POWER TO STAY PROCEEDINGS

An agreement to have recourse to arbitration in the event of a dispute does not oust the jurisdiction of the Court. It is in the Court that the jurisdiction to try the case is vested. However, in the exercise of that jurisdiction, the Court has power to stay proceedings in an action brought to it in breach of an agreement to settle the matter by arbitration. The exercise of this power is regulated by statute, which gives the Court this power. Therefore, the exercise of this power to stay proceedings is a matter within the exercise of the jurisdiction of the Court to try the case itself. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

STATUTORY ARBITRATION – APPLICATION OF SECTION 5 OF ARBITRATION AND CONCILIATION ACT

It follows that since the jurisdiction of the Court is not ousted by the Arbitration Clause, the provisions of the Arbitration and Conciliation Act will apply. As the party against whom the suit is brought insists that the Arbitration Clause in the agreement between the parties must be complied with, the Court, pursuant to Section 5 of the Arbitration and Conciliation Act, has the power to stay the proceedings before it, pending a reference of the dispute to arbitration. In other words, 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. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

WAIVER OF ARBITRATION RIGHTS – EFFECT OF TAKING STEPS BEYOND APPLICATION FOR STAY

Where a party takes steps in the proceedings beyond applying for a stay of proceedings, he will be deemed to have waived his right to insist on recourse to arbitration… In this appeal, the Appellant did not apply to the lower Court for stay of the proceedings in the suit before it. The Appellant filed pleadings and participated in several aspects of the trial and other proceedings, despite entering conditional appearance, filing pleadings, raising the issue of arbitration in the pleading and mentioning the question of lack of jurisdiction. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

ACADEMIC EXERCISE – COURT’S DUTY TO DECLINE ACADEMIC QUESTIONS

Where a question before the Court is entirely academic, speculative or hypothetical, the Court must decline to decide such a point. The attitude will be adopted where an answer to such a question or point in dispute will not resolve the extant dispute between the parties. A Court of law is not bound to answer any question raised by a litigant or counsel unless the point or points so raised are necessary and material for the resolution of the case before it. This is because the Court does not indulge in academic exercise or issue opinions about potential cases. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

APPEALS WITHOUT PRACTICAL VALUE – EFFECT ON APPELLANT

The principle of law is also well entrenched in our judicial system as rightly submitted on behalf of the respondents that where an action or an appeal has no practical or utilitarian value to the appellant, any judgment given in his favour will certainly render such an appeal or action merely academic which this Court had warned consistently, without mincing words, that such venture should not be embarked upon. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (quoting Ogunbiyi, J.S.C. in Ugba v. Suswam)

PRIMARY DUTY OF LEGAL PRACTITIONERS – PROMOTION OF JUSTICE AND HIGH PROFESSIONAL STANDARDS

It is for the reason of ensuring that the confidence is maintained and the honour sustained that the Rules of Professional Conduct for Legal Practitioners have enacted as the primary duty of the lawyer, the duty to promote and foster the cause of justice, to maintain high standard of professional conduct and not to engage in any conduct that is unbecoming of a legal practitioner. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

PROHIBITION AGAINST HARASSMENT AND MALICIOUS INJURY

In his representation of his client, a lawyer shall not- file a suit, assert a position, conduct a defence, delay a trial, or take over an action on behalf of his client when he knows or ought to know reasonably to know that such action would serve merely to harass or maliciously injure another. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (quoting Rule 15(3)(b) of Rules of Professional Conduct)

DUTY TO DECLINE HARASSING OR OPPRESSIVE LITIGATION

A legal practitioner must decline to conduct a civil cause or to make a defence when it is intended merely to harass or to injure the opposite party or to work oppression or wrong to that party. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

LAWYER AS OFFICER OF THE COURT – DUTY NOT TO OBSTRUCT JUSTICE

A lawyer is an officer of the Court and accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

LAWYER’S DUTY TO SOCIETY AND JUSTICE SYSTEM

The Court has refrained from commenting on the unprofessional conduct of the lawyers that assisted the Appellant in the disgraceful abuse of the processes of Court. Suffice to say that lawyers as operators of the administration of justice system owe a duty, to the society that nurtured them and made them what they are, to ensure that they conduct their activities in a manner that edifies and brings honor, respect and belief to the justice system. They should not allow themselves to be used by litigants to bring the justice system into disrepute.– Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (quoting Abiru, J.S.C. in Homan Engineering Company Limited v. Ugobechs Worldwide Solution Limited & Anor)

ABUSE OF APPELLATE PROCESS – USING APPEALS TO DENY FRUITS OF JUDGMENT

Without the slightest doubt, the stance adopted by the Appellant had the effect, and possibly the object, of oppressing the Respondent. It is particularly clear from the facts of the case giving rise to this appeal that said appeal has been used as a strategic measure to deny the Respondent of the deservedly earned fruit of her judgment at the lower Court, and to enable the Appellant hold on to and continue to enjoy habitation of the property of the Respondent. – Per NNAMDI OKWY DIMGBA, J.C.A.

COURT AS TEMPLE OF JUSTICE – NOT A CIRCUS SHOW

The Court of law is not circus show. It is therefore wrong for Counsel to deploy machinations and underhand tactics, which tend in the eyes of reasonable members of the society to portray the law as an instrument of deceit. Whatever is wrong cannot be called by another name. By litigating to detain the premises of the Respondent since 2009 is to say the least, unfortunate. – Per FREDERICK OZIAKPONO OHO, J.C.A.

CASES CITED

STATUTES REFERRED TO

1. Arbitration and Conciliation Act, Cap. 19 Laws of the Federation of Nigeria, 1990
2. Section 5 of the Arbitration and Conciliation Act
3. Section 77 of the Property and Conveyancing Law, Cap. 100, Laws of Western Nigeria, 1959
4. Section 5 of the Law Reform (Contract) Law of Lagos State
5. Court of Appeal Rules, 2021
6. Order 19 Rule 8(4) of the Court of Appeal Rules, 2021
7. Order 4 Rules 1, 4 and 5 of the Court of Appeal Rules, 2021
8. Rules of Professional Conduct for Legal Practitioners, 2023
9. Rules 1, 15(1) & (3)(b) of the Rules of Professional Conduct for Legal Practitioners, 2023
10. Rule 4(1)(c) of the Legal Practitioners Disciplinary Committee Rules, 2020
11. National Judicial Policy

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