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MILAN (INDUSTRIES) NIGERIA LTD VS TREVI FOUNDATIONS NIGERIA LTD

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MILAN (INDUSTRIES) NIGERIA LTD VS TREVI FOUNDATIONS NIGERIA LTD

ELECTRONIC CITATION: LER [2019] CA/L/655/2013

AREAS OF LAW:

Appeal, Arbitration, Court, Judgment And Order, Practice And Procedure

SUMMARY OF FACTS

The Claimant/Respondent instituted an action at the trial court against the Defendant/Appellant seeking several reliefs among which were a claim for payment for work done. The Defendant/Appellant by a motion sought for stay of proceedings for the matter to be referred to a sole arbitrator and same was granted. The matter was referred to the Lagos State Multi Door Court House for arbitration by a sole arbitrator. The arbitrator declined jurisdiction to arbitrate on the matter since the condition precedent for the arbitration to be conducted had not been fulfilled. Subsequently, the Respondent filed another application seeking for an order to refer the matter to the Lagos State Multi- Door Court, before a sole arbitrator and to the same Multi Door court house which had declined jurisdiction earlier. The application was granted. Dissatisfied with the ruling, the Appellant has appealed to this court on grounds that the suit is incompetent as the writ was not signed by a legal practitioner as required by law, also that the order of the lower court staying the proceeding is still subsisting as it had not been set aside hence, the lower court is functus officio over the issue covered in the latter motion. The Respondent did not file any brief of argument or any process.

HELD

Appeal Allowed

 

ISSUES FOR DETERMINATION

  • Whether the Respondent’s suit at the court below was competent having regard to the fact that the writ of summons was not signed by a qualified legal practitioner.
  • Whether the court below was functus officio with respect to making an order referring the suit to arbitration.
  • Whether under the Arbitration and Conciliation Act, Cap A 18, LFN, 2004, leave of court is required to refer a suit to arbitration save in circumstances prescribed in Sections 4 and 5 thereof.

 

RATIONES

BRIEF OF ARGUMENT – IMPLICATION OF A PARTY’S FAILURE TO A FILE BRIEF OF ARGUMENT

“The Respondent did not file any brief of argument or any process. The Respondent just watched. The implication of this is that the Respondent is not challenging the appeal and therefore there is not much that is required of a court. The court as an unbiased umpire is not a party and therefore is not expected to raise a defence or a case for a party. See; INEC vs. Association of Senior Civil Servant of Nigeria & Anor (2007) LPELR- 8882 (CA); NB Plc vs. Audu (2009) LPELR-8863(CA) and INEC vs. Atuma & Ors (2003) 11 NWLR (Pt. 1366) 494. The court is to settle conflict between parties according to law and equity and not to make case for any of the parties. The court is not to be involved in the conflict. If there will be no conflict to be settled, there is no need for the court.   There must be a dispute between the parties brought before a court to be determined so as to establish the rights of the parties in the matter. In BFI Group Corporation vs. B.P.E. (2012) 7 SC (Pt. III) I, the Supreme Court held:

It is noteworthy that this Court has in several cases stated that the Court is to determine and decide disputes brought before it in accordance with the evidence, both oral and documentary only, in particular, as agreed by the parties. The Court is not to draft or make out a different agreement for parties. It will amount to injustice, or miscarriage of justice, to say the least.”

Where there is a matter before the court which does not amount to a dispute, this will be handling without must legal rhetoric’s as that implies that the other party is not challenging the facts or the issues involved. In such a situation, the court is bound to give judgment in favour of the party except, the prayer or relief sought cannot be granted within legal consideration. See; Inegbedion vs. Selo-Ojemen & Anor (2013)8 NWLR (Pt. 1356) 211; and Chief Emmanuel Eze Onwuka vs. Engineer Samuel Ononju NSCQR Vol. 38 2009 pg. 33”. PER E. TOBI, J.C.A

 WRIT OF SUMMONS – PREREQUISITE FOR THE COMPETENCE OF A WRIT

“The law on what makes a writ competent is settled. The writ must be signed by a legal practitioner and not a law firm. See; Ogunede & Ors vs. Anajuba & Ors (2016) LPELR-42118 (CA); Olagbenro & Ors vs. Olayiwola & Ors (2014) 16 NWLR ( pt 1434) 313”. PER E. TOBI, J.C.A

TECHNICALITY – ATTITUDE OF COURT TO TECHNICALITY

“The position on technicality is clear. It is this. The days of technicality overriding substantial justice is over. The court is concerned more with justice in its substantial sense and not in its technical sense. Once there is a fight between technical and substantial justice, the result is clear. Substantial justice will be declared the winner. See; Inakoju & Ors vs. Adeleke & Ors (2007) 1 SC (pt 1) 1; Omoju vs. FRN (2008) 2-3 SC (Pt. 1) 1”. PER E. TOBI, J.C.A

FUNCTUS OFFICIO – EFFECT OF WHEN A COURT BECOMES FUNCTUS OFFICIO

“In Nigerian Army vs. Iyela (2008) 18 NWLR (pt 1118) 115, the apex court held:

The position of the law is that once a Court or Tribunal delivered its final judgment in a case before it, it became functus officio with respect to that case. It has no power to reopen the case for the purpose of making corrections or changing any opinion expressed in its earlier judgment in the case. The only exception to this rule is where there is need to make minor permissible correction under the slip rule. What can be altered under the slip rule is not as to the substance of the judgment earlier delivered but limited to minor errors, such as spelling errors, typographical or mathematical errors wherein correct figures can be entered. See Berliet Nig. Ltd. v. Kachalla (1995) 9 NWLR (Pt.420) 478, Emordi v. Kwentoh (1996) 2 NWLR (Pt.433) 656, Ministry of Lagos Affairs, Mines & Power v. Akin Olugbade (1974) 11 S.C. (Reprint) 9; (1974) 1 All NLR (Pt.2) 226, Commissioner of Lands Midwest State v. Edo-Osagie (1973) 6 S.C. 155; (1973) 6 S.C. (Reprint) 112, and Umunna v. Okwurajiwe (1978) 6 & 7 S.C. 1 at 9; (1978) 6-9 S.C. (Reprint) 1.”

Similarly, the Supreme Court in Buhari vs. INEC & Ors (2008) 12 SC (Pt. 1)1 held:

The next issue is whether the Court of Appeal was functus officio. Functus officio ordinarily means a task performed; having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. See Black’s Law Dictionary, 6th edition, page 673. The Latinism means in practice the idea that the specific duties and functions that an officer was legally empowered and charged to perform have now been wholly accomplished and thus, the officer has no further authority or legal competence based on the original commission. This is because the thing which originally had life becomes dead or moribund after the performance of the duty or function by the authority. In our context, a Judge who has decided a question brought before him is functus officio, and cannot review his decision. See also Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) 275; Onwuchekwa v. CCB (1991) 5 NWLR (Pt. 603) 409; Anyaegbunam v. Attorney-General of Anambra State (2001) 6 NWLR (Pt. 710) 532; INEC v. Nnaji (2004) 16 NWLR (Pt. 900) 473. A Court cannot be functus officio if it gives an anticipatory order, which is conditional to the possible implementation of the order or otherwise as in this case. This is because at the point of fulfilment, the party involved in the anticipatory order will return for a permanent relief. An order of a Court made subject to the happening of an event is not one given in total or whole and therefore cannot make the Court functus officio. In this case, the objector or objectors were given the right to raise objection on the admissibility of the documents and the Court of Appeal was perfectly in order to rule on their admissibility one way or the other. After all, the latinism of functus officio applies when the whole matter is resolved or dealt with by the Court. It will not apply where only a part of it is resolved or dealt with and a part of it is hanging. That part which was hanging in this case was the order “subject to the right of the opposing parties….” The Judge has to remove the hanger and he is not functus officio to do so. That was what Fabiyi, JCA., did and he is right in doing that. The appellant is wrong in castigating him for doing the right thing. The following cases cited by the Court are germane to the principle; and I agree with the Court: UBN Plc. v. Sparkling Breweries Ltd. (2000) 15 NWLR (Pt. 698) 200; Kabo Air vs. INCO Ltd. (2003) 6 NWLR (Pt. 816) 323; Agbi vs. Ogbe (2006) 5 S.C. (Pt. II) 129; (2006) 11 NWLR (Pt. 990) 65 and Dagaci of Dere vs. Dagaci of Ebwa (2006) 1 S.C. (Pt. I) 87; (2006) 7 NWLR (Pt. 979) 382.”

See; Citec Int’l Estate Ltd & Ors vs. Francis & Ors (2014) LPELR 22314 (SC). The lower court haven decided on an application with the same prayer involving the same parties is functus officio on the matter. That apart, the ruling referring the matter to arbitration is still subsisting and no further order is needed. See Nwokedi & Ors vs. Okugo & Ors (2002) 16 NWLR (Pt. 794) 441”. PER E. TOBI, J.C.A

STATUTE REFERRED TO:

None

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