H.R.H Igwe Kris Onyekwuluje & Anor V. Benue State Government & 2 Ors

APPEAL, ARBITRATION, FAIR HEARING, JUDICIAL REVIEW, JURISDICTION, LAW OF CONTRACT, WORDS AND PHRASES

Summary of Facts
The facts leading to this appeal commenced when the 1st Respondent entered into a contract with the 2nd Applicant/Appellant for the supply and installation of 30 x30 KW FM Transmitters to the 1st Respondent’s Radio Broadcasting Station. The contract contained an Arbitration clause which provides for recourse to Arbitration in the event of any dispute in the course of execution of the said contract which in the opinion of the parties cannot be resolved amicably. The 1st Respondent was however dissatisfied with the qualities of the material supplied and the conduct of the staff and officers of the 2nd Applicant/Appellant, consequent upon which a Judicial Commission of Inquiry was set up pursuant to the Commission of Inquiry Law, Laws of Northern Nigeria 1963 to ascertain among other things whether there was a misappropriation of the money meant for the project. At the end of the sittings, the 3rd Respondent issued a White Paper in which the 2nd Applicant/Appellant was indicted and requested to refund the sum of N85, 575, 111.60 (Eighty Five Million, Five Hundred and Seventy Five Thousand, One Hundred and Eleven Thousand, Sixty Kobo).

Dissatisfied with the outcome of the White Paper, the Applicant/Appellant applied to the Benue State High Court, Markurdi seeking amongst other things an order of Certiorari to quash the proceedings of the 3rd Respondent, its award and the White Paper issued in its consequence. The main contention of the Applicants/Appellants was that the 3rd Defendant/Respondent violated the Applicants/Appellants right to fair hearing and that the said commission exceeded its jurisdiction, hence their reason for seeking that the White Paper issued by the 2nd Respondent based on the Report of Inquiry submitted by the 3rd Respondent be quashed. In a considered judgment of the trial court, the court dismissed the application of the Applicants/Appellants on the ground that they had failed to establish that the 3rd Respondent lacked jurisdiction. Further displeased by the decision of the trial court, an appeal was lodged at the Court of Appeal, Jos Division, and the findings of the trial court were affirmed. The Applicants/Appellants still not satisfied have appealed to the Supreme Court as a final resort.

Held:
Appeal Dismissed

Issues for Determination:

• Could the fact of the appellants participating “under duress” and “under protest” at the proceedings before the 3rd respondent be rightly and legally construed as abandoning a mutually agreed requirement in the Contract (Exhibit 2) that insists on recourse to Arbitration?
• Whether the failure of the Lower Court in not considering the unjustified finding and punishment meted on the 1st appellant despite its having been one of the ISSUES not rob its judgment of its efficacy?
• Were the reliefs sought by the appellants founded on a breach of the Rules of Natural Justice or for want of jurisdiction? Should the answer be in the affirmative, can it be said that the Lower Court looked at/considered the Affidavits filed with the appellants application?
• Did the cumulative conducts of the 1st, 2nd and 3rd respondents whereupon the appellants were indicted, and penalized on the basis of paragraphs 2 and 3 of Exhibit 7 pass the litmus test handed down by the Supreme Court in the landmark case of ACTION CONGRESS & 1 OR AND INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2007) FWLR (pt. 378)page 1012?
• Was the lower Court right in stating that it:
• “Was not in a position or able to know or find out whether the 3rd respondent exceeded its powers including the terms of reference.”
• Was the Lower Court right when it concluded that the appellants did not explore alternative methods of “getting a public document to be before a Court where the party required to produce it or make it available refuses or neglects to do so.”
• Does the 1st respondent’s legal authority to constitute a Judicial Commission of Inquiry pursuant to section 2 of the Commission of Inquiry Law allow that he detracts from a mutually binding contract it voluntarily entered into with the 2nd appellant?
• Whether the non-requirement/application of the Evidence law did not necessitate a constitutionally competent Court, rather than the 3rd respondent, to determine paragraphs 2 and 3 of Exhibit 3?

Rationes:
MISTAKE OR ERROR OF LAW BY A TRIBUNAL – A MISTAKE OR ERROR OF LAW BY A TRIBUNAL ACTING WITHIN THE CONFINES OF ITS JURISDICTION CANNOT BE INTERFERED WITH BY A SUPERIOR COURT
“A Tribunal may commit a mistake or error of law in reaching its decision. However, so long as the mistake/error is committed within the confines of its jurisdiction, a superior court, exercising supervisory jurisdiction cannot readily interfere with it. That is, a Tribunal may decide a point of law or fact wrongly whilst keeping well within its jurisdiction’ See Shodeinde V. The Registered Trustees of Ahmadiyya Movement – In – Islam (1980) 1-2 SC. 225; Olaniyi V. Aroyehun & Ors. (1991) 5 NWLR (pt. 194) 653 at 685.” PER S.GALADIMA, J.S.C.EXERCISE OF SUPERVISORY JURISDICTION OF A SUPERIOR COURT – A SUPERIOR COURT EXERCISING SUPERVISORY JURISDICTION, CAN INTERVENE TO PREVENT A STATUTORY TRIBUNAL FROM EXCEEDING THE JURISDICTION ALLOWED IT BY LAW
“A superior court, exercising supervisory jurisdiction, can interfere or intervene to prevent a statutory tribunal from exceeding the jurisdiction allowed it by law, but it must be borne in mind, and this is also settled, that an applicant, such as the appellants herein have a duty to establish clearly all the facts necessary to justify the grant of the order sought. He must justify the facts upon which the application has been made’. See The Queen .V. The Minister of Local Government, Ex-Parte, The Akalako Opafo (1959) WNLR 294 and Queen .V.The Alake Of Abeokuta &31 Ors (1960) WNLR 288.” PER S.GALADIMA, J.S.C.

HOLIDAY – MEANING OF HOLIDAY
“In the case of Kaigama .V. NEC (1993) 3 NWLR Pt.284) 681 and’ many others,
“holiday” is defined as a “day which is a Sunday or a public holiday'” Section 1 of the Public Holidays Act Cap p.40, Laws of the Federation of Nigeria, recognizes only the days listed in the schedule to the Act as “Public Holidays.” Under Section 174 (9) of the Evidence Act, then applicable, now 122(g) of Evidence Act 2011, Courts are bound or guided to take judicial notice of the public festivals, feasts, and holidays notified in the Federal Gazette or fixed by an Act. See Import – Export .V. J.A.A Adebayo & 2 ors (2oo3) FWLR (pt.14)1686 at 1702.” PER S.GALADIMA, J.S.C.DENIAL OF FAIR HEARING – THE DECISION OF A COURT CANNOT BE BINDING ON A PARTY WHO IS DENIED FAIR HEARING
“When a party who is entitled to be heard is denied a hearing before a decision affecting him is made, then by virtue of S. 36 of the Constitution of the Federal Republic of Nigeria, 1999, that decision cannot bind him; because he is not given the opportunity of being heard.”PER S. GALADIMA, J.S.C.

JURISDICTION – DUTY ON COURTS TO OBSERVE THE PROCEDURE AS SPECIFICALLY PROVIDED BY THE RULES IN ORDER TO HAVE JURISDICTION
“For the Court to have jurisdiction, the procedure specifically provided for must be followed as the Rules have same force of law as the Constitution itself. See also Uti v Federal Road Safety Commission (2001) 1 CHR 434”. PER M.U.PETER- ODILI, J.S.C.

ARBITRATION CLAUSE – IMPLICATION OF AN ARBITRATION CLAUSE
“An arbitration clause is only procedural and does not exclude or limit rights or remedies but merely provides procedure under which the parties may settle their grievance since as in this instance a resort to the courts was not ruled out. This I agree with. I place reliance on Commissioner of Lands V Edo- Osagie & Ors (1974) 12 SC 117; Confidence Insurance Ltd .V. Trustees of O.S.C.E. (1999) 2 NWLR (Pt.591) 373”. PER M.U. PETER- ODILI, J.S.C.

ARBITRATION CLAUSE – EFFECT OF AN ARBITRATION CLAUSE IN AN AGREEMENT
“The effect of an arbitration clause in an agreement was well stated in: Royal Exchange Assurance Vs Bentworth Finance (Nig) Ltd.(1976) 11 SC (Reprint) 96 @ 107 lines 22 – 30 thus: ‘An arbitration clause in a written contract is quite distinct from the other clauses. Whereas the other clauses in a written contract set out obligations which the parties undertake towards each other, the arbitration clause merely embodies the agreement of both parties that if any dispute should occur with regard to the obligations which the other party has undertaken to the other, such dispute should be settled by a tribunal of their own constitution or choice. The appropriate remedy therefore for a breach of a submission is not damages but its enforcement”. See also: Obembe Vs Wemabod Estates Ltd. (1977) 5 SC(Reprint) 70”. PER K.M.O.KEKERE- EKUN, J.S.C

WRIT OF CERTIORARI – PURPOSE OF A WRIT OF CERTIORARI
“In the case of: Nwaoboshi Vs Military Governor, Delta State & Ors. (2003) 5 SC 120; (2003) 11 NWLR (Pt.831) 305 @ 318 D – E, Uwaifo, JSC stated the purpose of a writ of certiorari thus: “The writ {of certiorari} is issued in order that the court may bring the proceedings of the inferior tribunal or court before it for inspection and if there is due cause disclosed to quash them. It lies only against bodies exercising judicial or quasi-judicial authority and in respect of acts performed by them in that capacity.” PER K.M.O.KEKERE- EKUN, J.S.C

ORDER OF CERTIORARI – SIGNIFICANCE OF AN ORDER OF CERTIORARI
“Fabiyi, JSC in: Judicial Service Commission of Cross River State Vs Young (2013); 11 NWLR (Pt.1364)1; (2013) 12 SCM 98; (2013) 56 NSCQR 577 @ 614 – 615 E – A referred to the textbook Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria (1995 edition) by T. Akinola Aguda at pages 654 – 655, wherein the learned author (of blessed memory) stated the purport of an order of certiorari as follows:
“Certiorari is one of the prerogative writs whose main function is to ensure that inferior courts or anybody entrusted with performance of judicial or quasi judicial functions keep within the limits of the jurisdiction conferred upon them by statutes which create them. Therefore, an order of certiorari will lie to remove into the High Court for purpose of being quashed any judgment, orders, convictions or other proceedings of such inferior courts or body, civil or criminal made without or in excess of jurisdiction.”Per Rhodes-Vivour, JSC at page 618 E – G (supra): “Certiorari is one of the prerogative writs, the other mandamus, used by the court to restrain the abuse or misuse of power, or to correct errors of law, wrong exercise of discretion by tribunals, public authorities and Government Officials, Once a public authority acts judicially or administratively its conduct is subject to control by the courts by means of certiorari or mandamus” PER K.M.O.KEKERE- EKUN, J.S.C

Statutes Referred to:
Arbitration Act 2004 cap A18
Commission of Inquiry Law, Laws of Northern Nigeria 1963
Evidence Act 2011
Federal High Court Rules 20I3 (as amended
Fundamental Rights (Enforcement Procedure Rules) 1980
High Court (Civil Procedure) Rules of Benue State

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