CORAM
Mary Ukaego Peter-Odili, Justice of the Supreme Court of Nigeria
Kudirat Motonmori Olatokunbo Kekere-Ekun, Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba, Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa, Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim, Justice of the Supreme Court of Nigeria
PARTIES
SAKAMORI CONSTRUCTION NIGERIA LIMITED
APPELLANTS
LAGOS STATE WATER CORPORATION
RESPONDENTS
AREA(S) OF LAW
ACTION, APPEAL, ARBITRATION, COURT, INTERPRETATION OF STATUTE, JUDGMENT AND ORDER, JURISDICTION, LIMITATION LAW, PRACTICE AND PROCEDURE, STATUTE, UNDEFENDED LIST, WORDS AND PHRASES
SUMMARY OF FACTS
The Appellant instituted this action at the High Court of Lagos State, vide a Writ of Summons wherein it sought against the Respondent the sum of N462,068,741.92 (four hundred and sixty two million sixty eight thousand seven hundred and forty one naira ninety-two kobo), being outstanding and unpaid sum arising from the contract for the supply and laying of secondary and tertiary networks systems under the Defendant’s water supply expansion programme between 1994 and 1999; Interest on the said sum at the rate of 20 per centum per annum; and Cost of the action. At the end of the trial, the Court entered judgment in favour of the Appellant. Dissatisfied with the judgment, the Respondent appealed against same to the Court of Appeal Lagos Judicial Division, who held that the trial High Court of Lagos State lacked jurisdiction to try the case, thereby set aside the judgment and referred the respective parties to arbitration. Aggrieved, the Appellant appealed to the Supreme Court vide its Notice of Appeal containing six Grounds of Appeal.
HELD
Appeal Allowed
ISSUES
Whether on the consideration of the totality of the case, the lower Court should have made an order of reference to arbitration when the Respondent had clearly sought a relief that the matter be remitted to the trial Court for determination by another Judge?
Whether the lower Court erred in law when it held that the learned trial Court Judge lacked jurisdiction to entertain the Appellant’s claim at the trial Court?
Whether the Respondent ought to have filed a defence and/or counter-affidavit to the Appellant’s originating processes at the trial Court?
Whether the lower Court erred when it held that the learned trial Court Judge did not exercise her discretion judicially and judiciously in refusing to accept the viva voce submission of the learned counsel for the Respondent (as Defendant at the trial Court) as regards the pendency of an application for stay proceedings at the Court of Appeal and also refusing to view the application which counsel was showing to the Court from the bar?
RATIONES DECIDENDI
ARBITRATION CLAUSE – INSTANCE WHEN COURTS OF LAW AND TRIBUNALS SHOULD GIVE EFFECT TO AN ARBITRATION CLAUSE
“It is trite, that the dispute which the parties to an arbitration agreement consent (agree) to refer to an arbitrator must consist of a justiciable issue triable civilly. According to Halsbury’s Laws of England, 5th Edition volume 2 @paragraph 503:
A fair test of this is whether the difference can be compromised lawfully by way of accord and satisfaction. Thus an indictment for an offence of a public nature cannot be the subject of an arbitration agreement … nor can disputes arising out of an illegal contract … nor disputes arising under agreements void as being by way of gaming or wagering, equally, disputes leading to a change of states such as divorce petition, cannot be referred, nor, it seems can any agreement purporting to give an arbitrator the right to give judgment … Similarly, there is no dispute within the meaning of an agreement to refer disputes where is no controversy in being, as when a party admits liability but simply fails to pay.
Interestingly, the foregoing trite doctrine happens to be the hallmark of the decision of this Court in a plethora of veritable authorities: See Development Board Vs. Fanz Construction Co. Ltd (1990) 4 NWLR (pt.142)1 @ 32-33 paragraphs H-B; United World Ltd Inc, Vs. MTS Ltd (1998)10 NWLR (pt.568) 106 @ 119; Obembe Vs. Wemobod Estates Ltd (1977) SC. (Reprint) 70 Nigeria Vs. AQS (2008) ALL FWLR (pt. 406) 1872; Fasz International Ltd Vs. HND Trustees Ltd (2010) ALL FWLR (pt.547) 669; MV Lupex Vs. NOC & S. Ltd (2003) 15 NWLR (pt.844) 1 @ 23.
Indeed, the hallmark of the decisions in all the authorities referred hereto-fore, is to the veritable effect that the Courts of law and Tribunals should only give effect to an arbitration clause where the dispute is unequivocally within the ambit and contemplation of the clause in question. –PER I. M. M. SAULAWA, J.S.C
A COURT CAN ONLY GRANT RELIEFS SOUGHT BY A PARTY
“Indeed, the doctrine has long been settled in a plethora of formidable authorities, beyond peradventure, that a Court or Tribunal can only be jurisdictionally competent to grant relief sought by a party, and not otherwise. See Egonu Vs. Egonu (1978) 11-12 SC.82 @101; Makanjuola Vs. Balogun (1989) 5 SC 82 @ 93; Odukwe Vs. Ogunbiyi (1998) 6 SC. 72 @ 88; Yusuf Vs. Yetunde (1998) 9-10 SC 123 @ 139; et al”. –PER I. M. M. SAULAWA, J.S.C
ARBITRATION – MEANING OF ARBITRATION
“The term arbitration clause invariably denotes a contractual provision (contained in an agreement) mandating arbitration of disputes regarding the respective parties’ rights, duties and liabilities”. PER I. M. M. SAULAWA, J.S.C
ARBITRATION CLAUSE –DUTY OF PARTIES TO AN AGREEMENT CONTAINING AN ARBITRATION CLAUSE
“When parties enter into an agreement, wherein contains an arbitration clause, they must first resort to arbitration before trial in a Court of law. Thus, it is not unnatural for the defendant in such circumstance, where the other party has filed a suit, to apply to the trial Court for stay of proceedings pending arbitration. See Fawehinmi Construction Co. Ltd Vs. Obafemi Awolowo University (1998) LPELR-SC. 224 1991 @ 11 paragraphs D-F. PER I. M. M. SAULAWA, J.S.C
ARBITRATION AWARD – TIME LIMIT FOR FILING AN ACTION TO ENFORCE ARBITRATION AWARD
“What’s more, an order by a Court or Tribunal referring parties to arbitration is not merely granted as a matter of course. Fundamentally, an action to enforce arbitration award cannot be brought after the expiration of six years from the date on which the cause of action accrued (arose). See Section 8 (1) (d) of the Limitation Law of Lagos State, 2003; Murmansk State Steamship Line Vs. Kano Oil Millers Ltd (1974)12 SC 1; City Engineering Nig. Ltd. Vs. FHA (1997) 9 NWLR (pt.520) 224 @243 paragraphs C-D; Pam Vs. Mohammed (2008) 5-6 SC (pt.1) 83 @ 144; AG Federation Vs. ANPP (2003) 12 SC (pt. 11) 146, et al”. –PER I. M. M. SAULAWA, J.S.C
ARBITRATION AGREEMENT – EFFECT OF THE PROVISION OF SECTION 5 OF THE ARBITRATION ACT WHERE A PARTY TO AN ARBITRATION AGREEMENT COMMENCES AN ACTION IN COURT
“The provisions of Section 5 of the Arbitration Act (ACA) are to the following effect:
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 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. – PER I. M. M. SAULAWA, J.S.C
ARBITRATION – WHETHER AN AGREEMENT TO SUBMIT A DISPUTE TO ARBITRATION, AUTOMATICALLY OUST THE JURISDICTION OF THE COURT
“This Court has had a cause in a plethora of authorities to reiterate the fundamental principle, that any agreement to submit a dispute to arbitration, does not automatically oust the jurisdiction of the Court. Therefore, either party to such an agreement may, prior to when submission to arbitration or award is made, commence legal proceedings regarding any claim or cause of action contained in the submission. See Harris Vs. Reynolds (1845) 7QB71; Obembe Vs. Wemabod Estates Ltd (1977) LPELR-SC466/1975
This Court, citing with approval the case of Harris Vs. Reynolds (supra), aptly held in Obembe Vs. Wemabod Estates Ltd (supra):
“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).
per Fatayi-Williams, CJN @ 18-19 paragraphs E-A. Thus, if the defendant abstains from asking for stay, or if the trial Court in its discretion deems expedient to refuse to stay action (as in the instant case), then the Court being duly seised of the dispute, and it is by its decision alone, that the rights of the respective parties ought to be settled. See Doleman & Sons Vs. Ossett Corporation (1912) 3 KB (CA) 257, @ 257; Hasting Vs. Nigerian Railway Corporation (1964) Lagos High Court Reports 135 @ 136-137; Obembe Vs. Wemabod Estates Ltd (supra), per Fatayi-Williams, CJN @ 20 paragraphs B-D”. PER I. M. M. SAULAWA, J.S.C
SECTION 5 OF THE ARBITRATION ACT –WHETHER THE PROVISION OF SECTION 5 OF THE ARBITRATION ACT CONTEMPLATES THAT THE COURT SHOULD SLAVISHLY STAY PROCEEDING UPON APPLICATION
“I entirely agree with the Appellant, that the provision of Section 5 of the Arbitration Act (supra) does not in any disguise whatsoever contemplate that the Court should slavishly or sheepishly stay proceedings merely upon an application pursuant thereto. See Edewor Vs. Uwegba (1987) NWLR (pt.50) 313”. –PER I. M. M. SAULAWA, J.S.C
COURT – DUTY OF COURT TO ENSURE THAT PROCESSES OF COURT ARE NOT ABUSED OR FRUSTRATED
“Indeed, it’s trite, that the Court has an onerous responsibility to do everything legitimate within its powers to ensure that the processes of the Court are neither abused nor frustrated by recalcitrant litigants. See Amowo Vs Ag North Central State (1973) 6 SC (REPRINT) 34 2 38; CBN Vs. Ahmed (2001) 5 SC. (pt. 11) 54 @ 72; et al”. –PER I. M. M. SAULAWA, J.S.C
RECORD OF PROCEEDINGS – DUTY OF AN APPELLATE COURT TO READ THE RECORD IN THE EXACT CONTENT, CONTEXT AND INTERPRETE SAME ACCORDINGLY
“Indeed, the law is trite, that the record of proceedings binds both the parties, counsel and the Court until the contrary is duly established by some credible evidence. Therefore, an appellate Court is devoid of jurisdictional competence to read into the record what is not there at all. Likewise, the Court lacks jurisdiction to read out of the record what is not contained therein. An appellate Court is bound under the law to read the record in the exact content, context and spirit thereof and interpreted same accordingly. See Oguntayo Vs. Adelaja (2009) 15 NWLR (pt. 1169) 150 @ 190-191; Agbareh Vs. Mimra (2008) 1 SC (pt. 111) 88 @ 111-112”. –PER I. M. M. SAULAWA, J.S.C
RECORD OF PROCEEDINGS – WHETHER A COURT HAS JURISDICTION TO MAKE FINDINGS THAT CANNOT BE JUSTIFIABLY SUPPORTED BY THE RECORDS BEFORE IT
“A Court of law, be it the trial or appellate, is devoid of fundamental jurisdictional competence to make findings that cannot justifiably be supported by the records before it. As once aptly pontificated by this Court:
“It is trite that an Appellate Court has not the jurisdiction to go on its own to make findings which are not borne out from the record. Such findings will be perverse and this Court will not allow them to stand.” See Egharevba Vs. Osagie (2009) 12 SC (pt. 111) 123 per Niki Tobi, JSC @ 148. –PER I. M. M. SAULAWA, J.S.C
ARBITRATION CLAUSE – WHETHER THE PRESENCE OF AN ARBITRATION CLAUSE AUTOMATICALLY OUST THE JURISDICTION OF A COURT
“It has to be pointed out that the law is well settled that the mere presence of an arbitration clause does not automatically oust the jurisdiction of a Court of law. PER M. U. PETER-ODILI, J.S.C
ARBITRATION CLAUSE –WHETHER AN ARBITRATION CLAUSE WARRANTS THE GRANT OF AN ORDER OF STAY OF PROCEEDINGS
“Also an arbitration clause does not warrant the grant of an order of stay of proceedings. See United World Inc. v M.T.S. Ltd (1998) 10 NWLR (pt. 568) 106 at 119 per Onalaja JCA, Obembe v Wembod Estates Ltd 1977. –PER M. U. PETER-ODILI, J.S.C
ARBITRATION CLAUSE – INSTANCE WHEN AN ARBITRATION CLAUSE CONTAINED IN AN AGREEMENT CAN BE ACTIVATED
“The facts of this case are akin to the scenario in the case of United World Ltd Inc. v M.T.S. Ltd (1998) 10 NWLR (pt. 568) 106 where the question of when an arbitration clause becomes activated arose for the consideration before the Court of Appeal. Delivering the lead judgment, Pats-Acholonu JSC (as he then was) held inter alia that a matter shall be referred to arbitration when it becomes or is to be interpreted to mean a difference or dispute exists. The difference of opinion or dispute must necessarily arise from the clauses contained in the agreement not outside it.
See paragraph 503 Vol.2 of the 4th Edition of Halsbury’s Laws of England which states thus:-
“The dispute or difference which the parties to an arbitration agreement agree to refer must consist of a justiciable issue triable civilly. A fair test of this is whether the difference can be compromised lawfully by way of accord and satisfaction. Thus an indictment for an offence of a public nature cannot be the subject of an arbitration agreement … nor can disputes agreements void as being by way of gaming or wagering, equally, disputes leading to a change of status such as divorce petition, cannot be referred, nor; it seems can any agreement purporting to give an arbitrator the right to give judgment … similarly, there is no dispute within the meaning of an agreement to refer disputes where there is no controversy in being, as when a party admits liability but simply fails to pay.”
See also Kano State Urban Development Board v Fanz Construction Co. Ltd (1990) 4 NWLR (pt. 142) 1 @ 32-33 paras H-B.
At page 116 Pats-Acholonu JCA in United World Ltd Inc. v M.T.S. Ltd (supra)
“In the case of an agreement with a clause for reference to arbitration, the subject must be such as is capable of being referred to arbitration. Where a party has admitted liability or compromised his stand by some admission capable of altering the position of the parties in respect of the matter in dispute the matter can no longer be for reference to an arbitration (sic)”
I adopt the above dictum as mine as they capture the essence of the matter under consideration.
I cannot resist the more recent case of Fasz International Ltd v. HNB Trustees Ltd (2010) All FWLR (pt. 547) 659, a similar issue arose for consideration. In that case, the Respondent supplied two generators to Ajaokuta Steel Company under an agreement with the 1st Appellant in which the 2nd Appellant acted, as a guarantor. After the supply of the generators, Ajaokuta Steel Company failed to pay on the sole ground that they had no money to do so. After several futile demands by the Respondent to pay for the generators as per the agreement and the guarantee, the Respondent took out a writ of summons against the Appellant. On being served with the writ, the Appellants entered a conditional appearance and failed to file a defence thereafter. The Respondent consequently filed a summons for judgment and upon receipt of the summons, the Appellants filed a motion dated 21st November 1997, in which they sought for an order of the lower Court to stay all further proceedings in the case by virtue of the relevant clauses in the agreement between the parties which provided for arbitration before litigation in any dispute arising from the contract in accordance with Section 5(1) of the Arbitration and Conciliation Act, 1990. The trial Court dismissed the application on the ground that there was no dispute arising from the agreement and the guarantee and therefore the provisions of the Arbitration Act does not apply.
Upon the Appellants’ appeal to the Court of Appeal, Galinje JCA (as he then was) held that where there is absence of assertion of right, claim or demand on one side, met by contrary claims, demands or allegations on the other side, there is no dispute even where a party admits liability but fails to pay (as in this present appeal). Indeed, His lordship relied and adopted the afore-stated reasoning of Pats-Acholonu, JCA (as he then was) in the case of United World Ltd Inc, v. M.T.S. Ltd (supra) and affirmed the reasoning and conclusion of the trial Court.
The above cases are on all fours with the instant case. The Respondent has not been able to identify any dispute arising from the clauses in the agreement between the parties. Both the trial Court and the lower Court concurrently found that the respondent had admitted liability to the appellant for the sum of N462,068.741.92k hence no dispute exist over the appellant’s claim at the trial Court since the respondent admitted the indebtedness. This principle was applied in the case of Kano State Urban Development Board v Fanz Construction Ltd (1990) 4 NWLR (pt. 142) 1 at 35; M.V. Lupex v N.O.C & S. Ltd (2003) 15 NWLR (pt. 844)1 at 23”.-PER M. U. PETER-ODILI, J.S.C
COURT – POWER OF THE COURT TO ONLY GRANT RELIEFS SOUGHT BY A PARTY
“It needs be reiterated that the law is trite that a Court is only competent to grant reliefs sought by a party and not otherwise. See Ugo v Obiekwe (1989) 2 SC (pt. 11) 41 at 58; Makanjuola v Balogun (1989) 5 SC 82 at 93; Egonu v Egonu (1978) 11-12 SC 82 at 101; Odukwe v Ogunbiyi (1998) 6 SC 72 at 88; Yusuf v Oyetunde (1998) 9-10 SC 123 at 139; Aghaduino v Onubogu (1998) 4 SC 19 at 47; Fatunbi v Olanloye (2004) 6-7 SC 68 at 86; Veepee Ind. Ltd v Cocoa Ind. Ltd (2008) 4 5 SC (pt. 1) 116 at 139. -PER M. U. PETER-ODILI, J.S.C
ARBITRATION AWARD – LIMITATION OF ACTION IN THE ENFORCEMENT OF AN ARBITRATION AWARD
“The Supreme Court has held that an action to enforce an arbitration award cannot be brought after the expiration of six years from the date on which the cause of action arose by virtue of Section 8(1) (d) of the Limitation Law of Lagos State. See Murmansk State Steamaship Line v Kano Oil Millers Ltd (1974) 12 SC 1; City Engineering Nig Ltd v Federal Housing Authority (1997) 9 NWLR (pt. 520) 224.
The appellant’s cause of action under the Agreement with respondent arose before 27th March 2000, thereafter in line with the above cited cases, the implication is that the appellant cannot enforce an arbitral award in respect of the said contract after 27th March 2006. Therefore, the lower Court on 7th June 2011 referring the parties to an arbitration in respect of which any arbitration award thereon cannot be enforced by virtue of the above provision of the Limitation Law of Lagos State and the supporting decisions referred to above as such an order on arbitration is a FUTILE ORDER. See Pam v Mohammed (2008) 5-6 SC (pt. 1) 83 at 144; A.G. Federation v A.N.P.P. (2003) 12 SC (pt. 11) 146; lge v Olunloyo (1984) 1 SCNLR 158; Nigerian National Supply Company Ltd v Alhaji Hamajoda Sabana & Co Ltd (1988) 2 NWLR (pt.74) 23 at 29. –PER M. U. PETER-ODILI, J.S.C
COURT – RULES OF COURT MUST BE OBEYED
“It is to be noted that Rules of Court must be obeyed and where there is non-compliance it must be explained, otherwise, no indulgence of the Court would be granted. See CCB (Nig) PLC v A.G. Anambra State (1992) 8 NWLR (pt.261) 528 at 546; Disu v Ajilowura (2001) 4 NWLR (pt.702) 76 at 92; Dada v Ogunsanya (1992) 3 NWLR (pt. 232) 754. PER M. U. PETER-ODILI, J.S.C
ISSUE OF JURISDICTION – WHETHER A COURT CAN LOOK OUTSIDE THE STATEMENT OF CLAIM IN DETERMINING THE ISSUE OF JURISDICTION
“The Appellant’s claim is founded upon the acknowledged indebtedness of the Respondent and the latter’s failure or inability to settle same. It can be inferred from the decision of this Court in L.T. Thadani v. National Bank of Nigeria (1972) 1 SC 75 at 80, that the letters relied upon by the appellant constitute a fresh contractual relationship and creates a simple debt. Simply put, the appellant’s claim can be validly founded and sustained upon the said letters and so the Court below had no reason to look outside the appellant’s statement of claim in the determination of the issue of jurisdiction. See L.T. Thadani v National Bank of Nigeria (supra). – PER M. U. PETER-ODILI, J.S.C
STATUTORY PROVISION – WHETHER A PARTY WHO FAILS TO COMPLY WITH A STATUTORY PROVISION CAN CLAIM ANY BENEFIT THEREFROM
“It is instructive to note that the Respondent did not, at any time, validly enter ‘appearance’ at the trial Court as required under Section 5 of the ACA and can therefore not be claiming any benefit under the said statute as it is settled law that where a statute has stipulated a procedure, that procedure must be complied with. I rely on Orakul Resources Limited v. N.C.C. (2007)16 NWLR (pt. 1060) 270 @ 302 paras D-G; Eguamwense v. Amaghizemwen (1993) 9 NWLR (pt. 3151) @ 23 para A; Faloye v Omoseni (2001) 9 NWLR (pt. 717)190 @ 200-201 paras H-A; Salako v Ajao (1994) 3 NWLR (pt. 335) 739 @ 757 paras E-F; Obioha v. Dafe (1994) 2 NWLR (pt. 325) 157 @ 173 paras C-D. – PER M. U. PETER-ODILI, J.S.C
SECTION 5(2) OF THE ARBITRATION AND CONCILIATION ACT – WHETHER THE USE OF “MAY” IN SECTION 5(2) OF THE ARBITRATION AND CONCILIATION ACT IMPLIES MANDATORINESS
“Section 5 of the ACA does not in any way suggest that the Court should slavishly or sheepishly stay proceeding upon an application brought pursuant to the provision. Indeed, Section 5(2)(a) of the ACA makes it clear that the power to stay proceeding upon an application brought under Section 5 is wholly discretionary and which discretion should only be exercised in favour of an applicant where the Court is satisfied that there is no sufficient reason why the matter should not be referred to arbitration. In other words, a literal reading of the said provision places a burden on the applicant to show why the Court’s proceeding should not continue and not the other way round. It is to be noted that the use of the word “May” in Section 5(2) of the ACA meaning that the provision is merely directional and not in any way mandatory. See the case of Edewor v. Uwegba (1987) NWLR (pt. 50) 313, where this Court restated the position as follows-
Generally, the word ‘may’ always means ‘may’, It has long been settled that may is a permissive or enabling expression. In Messy v. Council of the Municipal of Yass (1922) 22 S.R.N.S.W. 494 per Cullen, C.J at pp.497, 498 it was held that the use of the word ‘may’ prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it. See also Cotton, L.J. in Re Daker, Michell v. baker (1800) 44 CH.D 282”. – PER M. U. PETER-ODILI, J.S.C
ARBITRATION CLAUSE – DUTY OF PARTY SEEKING AN APPLICATION ON ARBITRATION
“Where a party makes an application on arbitration, that party has an obligation to show sufficient reasons why such reference to arbitration should be made and in that regard adequately prepare its defence in case the application fails.
The Respondent, as the applicant at the trial Court did not discharge this burden and the Court below was wrong in stating that the Defendant ought not to file a defence notwithstanding the fact that matter was brought in line with the summary judgment procedure and the Court has a discretion on whether or not to grant the said Application. The facts and nature of the proceedings at the trial Court does not give room for indolence or delay on the part of a defendant. Contrary to the position of the lower Court, a defendant does not waive his right to invoke an arbitration Clause, by filing a Statement of Defence. This is in view of Order 22 Rule 2(1) of the High Court of Lagos State (Civil Procedure) Rules 2004, which permits any party to raise any point of law in his pleadings which the Judge may dispose of before or at the trial. This rule does not, in any way contradict the clear provision of Section 5 of the ACA. In essence, no demurrer of any guise is permitted under the extant High Court of Lagos State (Civil Procedure) Rules 2004. In this regard, I refer to Order 22 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004. See the case of Disu v. Ajilowura (2001) 4 NWLR (pt. 702) 76 @ 92, 93 where the Court held that-
“The rules of Court are meant to be observed, no matter the situation…
The relevant rule provides that a party may raise any point of law on his pleadings. The same rules abolished a recourse to demurrer. The appellant should have raised his point of law in his statement of defence before asking that the Court take his objection in time” – PER M. U. PETER-ODILI, J.S.C
COURT – DUTY OF COURT TO ENSURE THAT THE PROCESS OF COURT IS NOT ABUSED
“The Supreme Court has consistently held that Courts of law have a duty as well as an inherent jurisdiction to ensure that the process of the Court is not abused by mischievous litigants. This Court in the case of Amawo v. Attorney-General North Central State & 2 Ors (1973) 6 SC (REPRINT) 34 @ 38 held that-
“Every Court has the inherent jurisdiction to stop an abuse of its process, and indeed prevent the institution or continuation before it of any proceedings which are manifestly vexatious or scandalous or both.”
See also CBN v Ahmed (2001)5 SC (pt. 11) 146 @ 159; Ojo & 3 Ors v. Olawore & 5 Ors (2008)6-7 SC (pt.II) 54 @ 72
See also Associated Discount v. Amalgamated Trustees (2006)5 SC (pt.I 32 @ 39, Pat-Acholonu JSC berated the Respondent therein for the mischievous use of the Court’s process when he stated as follows-
“In this case, the respondent used the issue of jurisdiction or competence of the Court to literally run riot, and seeks to obfuscate the real issues in controversy by resorting to inanities. It is duty of this Court of justice to remove the chaff from the wheat. The resort to the use of the procedures of the Court to bamboozle the Court or truncate the claim of the appellant is not noble. I can only say that the method being adopted by the respondent appear in my view to be a red herring to obscure the facts in issues.”-PER M. U. PETER-ODILI, J.S.C
RECORD OF PROCEEDINGS – THE COURT, PARTIES AND COUNSELS ARE BOUND BY THE RECORD OF PROCEEDINGS
“My Lords, I re-iterate our contention at the lower Court on this issue (at pages 429-430 of the Record) and submit that the learned trial Judge was strictly bound by documents/processes in her record and none other. To this end, an exercise of the learned trial Judge’s discretion based on documents in the Court’s record cannot, by any stretch of legal imagination, be described as discretion based on misrepresentation and suppressed facts as was done at the lower Court in this case. The trite and established position of the law has always been, as held in the case of Oguntayo v. Adelaja (2009) 15 NWLR (pt. 1169) 150 @ 190-191, that-
“It needs be stressed and this is also settled that the record of proceedings binds both the parties, counsel and the Court until the contrary is proved. See the case of Sommer v. Federal Housing Authority (1992) 15 NWLR (pt. 219) 548
Therefore, an appellate Court has no jurisdiction to read into the record what is not there and equally it has no jurisdiction to read out of the record what is there. An appellate Court must read the record in the exact content and interpret it.”
It is well settled in law that records of proceedings or of appeal bind the parties and the Court until the contrary is proved. The reason is that there is the presumption of its genuineness which is rebuttable. See Agbareh v Mimra & 2 Ors (2008) 1 SC (pt.111) 88 at 111-112. – PER M. U. PETER-ODILI, J.S.C
COURT – WHETHER A COURT CAN MAKE FINDINGS NOT BORNE BY THE RECORDS BEFORE IT
“However, the law does not allow the lower Court to make such assumption especially where there is no basis for such assumption. The papers could not possibly have been a copy of the motion since the Respondent’s Counsel had earlier informed the Court of his failure to bring the process to the Court. This unfortunate assumption by the lower Court led the Court to arrive at a wrong conclusion in respect of the learned trial Judge’s exercise of discretion. This Court has repeatedly warned that Courts of law must avoid mere conjectures and speculation in the determination of cases. See this Court’s dicta in AGIP (Nig) Ltd & 8 Ors v. Ezendu & 9 Ors (2010)1 SC (pt. II) 98 @ 162-163; Orhue v. NEPA (1998) 5 SC 121; Adefulu v. Okulaja (1998) 4 SC 223 as well as Egharevba v. Osagie (2009) 12 SC (pt.III) 123 @ 148 where Tobi, JSC emphasized the principle as follows-
“It is trite law that an Appellate Court has not the jurisdiction to go on its own to make findings which are not borne out from the record. Such findings will be perverse and this Court will not allow them to stand.” – PER M. U. PETER-ODILI, J.S.C
SUMMARY JUDGMENT PROCEDURE – PRINCIPLES GOVERNING THE DETERMINATION OF THE GRANT OF LEAVE TO DEFEND ACTIONS UNDER THE SUMMARY JUDGMENT PROCEDURE
“Where a defendant fails to file a defence to a claim, the claimant is entitled to seek summary judgment, a procedure that prevents delay and saves judicial time and expense by obviating the need to go the whole hog of a full trial and the calling of witnesses.
In the case of Macaulay Vs NAL Merchant Bank Ltd. (1990) LPELR-1801 (SC) @ 61 – 63 E -A:
“The object of Order 10 procedure is to enable plaintiffs whose claim is unarguable in law and where the facts are undisputed, and it is inexpedient to allow a defendant to defend for mere purposes of delay to enter judgment in respect of the amount claimed… The maxim interest rei publicae ut sit finis litium is the mother of this procedure, as in all forms of action which seek to reduce the volume of litigation.
In Nishizawa Vs S.M, Jethwani Ltd., supra, Aniagolu JSC, in line with older decided cases stated the principles governing the determination of the grant of leave to defend actions under Order 10 procedure,
1. That a defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed, not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and indebtedness; and
2. That on the other hand a plaintiff should not be permitted to shut out real (not a sham) defence to an action by his clinging to the assertion that once the defendant has failed to show cause against such plaintiff as required by Order 10 Rule 3 of the Lagos High Court Rules, he is out of Court and must have judgment signed against him no mater how genuine a defence he has disclosed by means other than by affidavit under that rule of the order.
Thus, to allow a defendant a right to defend where a plaintiff has shown his claim is prima facie, unassailable, he must show that he has a fair case which is bona fide and that there is a substantial issue which ought to be tried.
Order 11 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2004 under which the application before the trial Court was brought is in pari materia with Order 10 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules considered in Macaulay’s case.
On summary judgment procedure, see also: Nishizawa Ltd Vs Jethwani (1984) 1 ANLR 470; Obitude Vs Onyesom Community Bank (2014) LPELR-22693 (SC) @ 49-50 D-B; UTC (Nig) Ltd. vs Pamotei & Ors (1989) 2 NWLR (Pt.103) 244; (1989) LPELR-3276 (SC.); UBA Plc & Anor. vs Alh. Babangida Jargaba (2007 11 NWLR (Pt.1045) 247; (2007) LPELR-3399 (SC) @ 24-25 G-B. – PER K. M. O. KEKERE-EKUN, J.S.C
ADMISSION OF LIABILITY – WHETHER REFERENCE TO ARBITRATION SUBSIST WHERE THERE IS AN ADMISSION OF LIABILITY BY A PARTY
“Where there is an admission of liability, there is no dispute capable of being referred to arbitration. See: United World Ltd. Inc. vs M.T.S. Ltd (1998) 10 NWLR (Pt.568) 106, per Pats-Acholonu, JCA, wherein His Lordship relied on Halsbury’s Laws of England, 4th Edition Vol. 2 paragraph 503, where it was stated inter alia:
“Similarly, there is no dispute within the meaning of an agreement to refer disputes where there is no controversy in being, as when a party admits liability but simply fails to pay.”(emphasis mine)
In Kano State Urban Development Board Vs Faaz Construction Co. Ltd (1990) 6 SC 103, it was also noted, quoting from Halsbury Laws of England (supra), that an arbitration is the reference of actual matters in controversy.
There are thus two factors militating against the reference to arbitration in this case. Firstly, there is no dispute that can be the subject of such a reference and secondly, the non-payment of an admitted debt is not within the contemplation of the arbitration clause in the agreement between the parties”. – PER K. M. O. KEKERE-EKUN, J.S.C
CASES CITED
NONE
STATUTES REFERRED TO
Arbitration and Conciliation Act (ACA), Cap. A 18 of the Laws of the Federation, 2004
Court of Appeal Act, CAP. C 136, Laws of the Federation of Nigeria, 2004
High Court of Lagos State (Civil Procedure) Rules 2004