Legalpedia Citation: (2023-06) Legalpedia 93570 (CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

Mon Jun 5, 2023

Suit Number: CA/A/1168/2019

CORAM

Stephen Jonah Adah JCA

Ugochukwu Anthony Ogakwu JCA

Bature Isah Gafai JCA

PARTIES

SAMMYA NIGERIA LIMITED

APPELLANTS

SINOSTAR INTERNATIONAL NIGERIA LIMITED

 

RESPONDENTS

AREA(S) OF LAW

APPEAL, ARBITRATION, CONSTITUTIONAL LAW, CONTRACT, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

The Respondent, as Claimant before the lower Court instituted an action on the undefended list to recover the amount outstanding on various goods it sold to the Appellant. Upon being served the Court processes, the Appellant invoked the provision in the agreement between the parties for the resolution of any dispute arising from the agreement by arbitration.

The matter was then referred to arbitration and at the end of the arbitral proceedings, the sole arbitrator made an award in favour of the Respondent. Thereafter, by an Originating Motion filed on 15th November, 2017, the Respondent sought an order of the lower Court for the recognition of the said final Arbitral Award and for a writ of fieri facias [fi fa] to issue to attach the movable properties of the Appellant. The Appellant filed a Counter-Affidavit in opposition to the Originating Motion and after hearing the application, the lower Court in a judgment delivered granted the application as prayed.

The Appellant, piqued by the decision of the lower Court, appealed against the same.

 

HELD

Appeal dismissed

 

ISSUES

Whether the lower court did not breach the constitutional provision that ruling and judgment must be delivered within ninety days?

Whether the appellant is mandated by the provisions of section 32 of the arbitration and conciliation act to file an application in support of its counter-affidavit opposition [sic] the respondent application?

Whether the issued [sic] raised in the respondent written address in support of its counter affidavit is an academic issue?”

 

RATIONES DECIDENDI

REPLY BRIEF – WHEN A PARTY DOES NOT FILE A REPLY BRIEF – DUTY OF COURT TO CONSIDER MERITS

Let me iterate that the Appellant did not file a reply brief; the implication is a concession by the Appellant of the issues raised in the preliminary objection. The Appellant, not having filed a Reply Brief, did not proffer any submissions in answer to the preliminary objection. The law remains that where an appellant fails to file a reply brief when it is necessary to do so, he will be deemed to have conceded the points arising from the respondent’s brief. See OKOYE vs. NIGERIA CONSTRUCTION AND FURNITURE COMPANY (1991) 6 NWLR (PT. 199) 501, OKONGWU vs. NNPC (1989) 4 NWLR (PT 115) 196 at 309 and NWANKWO vs. YAR’ADUA (2010) 12 NWLR (PT 1209) 518.

The legal position is even worse where a reply brief is not filed to a preliminary objection like in this case. DAIRO vs. UNION BANK (2008) 2 WRN 1 at 8-9, POPOOLA vs. ADEYEMO (1992) 8 NWLR (PT 257) 1 and AYALOGU vs. AGU (1998) 1 NWLR (PT 532) 129. Given the state of the law, the Appellant having failed to file a Reply Brief is deemed to have conceded the points raised in the preliminary objection as incorporated and argued in the Respondent’s brief. See ALAYA vs. ISAAC (2012) LPELR (9306) 1 at 67-68, CANAAN ESTATES & HOMES LTD vs. AJOSE (2018) LPELR (46042) 1 at 8-10 and OCHALA vs. JOHN (2019) LPELR (47001) 1 at 19. However, this fact alone does not willy-nilly mean that the preliminary objection is bound to succeed. The Court is still duty bound to consider the merits of the preliminary objection. SHELL PETROLEUM DEVELOPMENT CO vs. PESSU (2014) LPELR (23325) 1 at 32-33, OFULUE II vs. OKOH (2014) LPELR (23218) 1 at 15 and AKINLADE vs. AYINDE (2020) LPELR (49592) 1 at 7-9. – Per U. A. Ogakwu, JCA

 

GROUNDS OF APPEAL – WHERE GROUNDS OF APPEAL ARISE FROM – ESSENCE OF GROUNDS OF APPEAL

It is hornbook law that grounds of appeal are not formulated in nubibus. Grounds of appeal must arise from the decision appealed against. Where a ground of appeal has no connection with the decision appealed against, the ground of appeal is incompetent and would not be countenanced by the Court.

The grievance and dissatisfaction with the judgment of a Court is articulated and conveyed to an appellate Court in the ground(s) of appeal. Put differently, grounds of appeal index the appellant’s complaints against the judgment of a Court. See METAL CONSTR. LTD vs. MIGLIORE (1990) 1 NWLR (PT 126) 229, CCB PLC vs. EKPERI (2007) 3 NWLR (PT 1022) 493 at 511, LAGGA vs. SARHUNA (2009) ALL FWLR (PT 455) 1617 at 1636 and HASHIM vs. ASO SAVINGS AND LOANS PLC (2022) LPELR (57061) 1 at 8-9. The law is that a ground of appeal is the error of law or facts alleged as the defect in the decision appealed against and because of which the decision should be set aside. It is the reason why the decision is considered wrong by the aggrieved party. IDIKA vs. ERISI (1988) 2 NWLR (PT 78) 563 at 578, EHINLANWO vs. OKE (2008) 6-7 SC (PT II) 123 and AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 464. The determining factor in ascertaining the nature or character of a ground of appeal is the real issue or complaint raised in the ground.

It is rudimentary law that a ground of appeal need not arise from the ipsissima verba of the decision appealed against but can arise from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of. AKPAN vs. BOB (supra) at 464-465.

The essence of grounds of appeal is to give sufficient notice to the adverse party of the nature of the appellant’s complaint, which such adverse party will be confronted with in Court. Where the grounds of appeal serve such notice, then the purpose and essence of a ground of appeal is achieved and the ground will not be defenestrated on any technical grounds. See AIGBOBAHI vs. AIFUWA (2006) LPELR (267) 1 at 17 and F. H. A. vs. OLAYEMI (2017) LPELR (43376) 1 at 21-23. In ADEROUNMU vs. OLOWU (2000) 4 NWLR (PT 652) 253 at 272, Ayoola, JSC stated:

“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the Court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this Court and in the Court of Appeal, that the Appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice, an information to the other side of the nature of the complaint of the Appellant and consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding, that it did not conform to a particular form.” – Per U. A. Ogakwu, JCA

 

GROUND OF APPEAL – WHEN A GROUND OF APPEAL IS CONSIDERED COMPETENT

Apposing the above ground of appeal with the pericope from the decision of the lower Court reproduced above, it cannot be confuted, given the legal position that a ground of appeal can arise from the commission or omission by the Court in either refusing to do what it ought to do or doing what it ought not to do; that the said ground is rooted in the decision of the lower Court. It is therefore competent. The ground is clear and contains sufficient notice of the Appellant’s complaints, thereby achieving the purpose and essence of a ground of appeal. AIGBOBAHI vs. AIFUWA (supra) at 17, SUNMONU vs. SUNMONU (2021) LPELR (56002) 1 at 11- 12 and ACHONU vs. OKUWOBI (2017) LPELR (42102) 1 at 17-18. Section 241 (1) (a) of the 1999 Constitution, as amended, stipulates:

“241- (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –

(a) final decisions in any civil or criminal proceedings before the Federal High Court or High Court sitting at first instance;”

By this constitution provision, an appeal against a final decision of the lower Court, the High Court of the Federal Capital Territory, Abuja, sitting as a Court of first instance; is as of right and requires no leave even if the grounds of appeal are grounds of mixed law and facts. See AULT & WIBORG (NIG) LTD vs. NIBEL INDUSTRIES LTD (2010) LPELR (693) 1 at 15-18, DANKWAMBO vs. ABUBAKAR (2015) LPELR (25716) 1 at 61-62, HYDROWORKS LTD vs. RIMI LOCAL GOVT (2002) FWLR (PT 110) 1887 at 1904, NASCO MANAGEMENT SERVICE LTD vs. AMAKU TRANSPORT LTD (2002) FWLR (PT 135) 652 at 668, NIGERIA CUSTOMS SERVICE BOARD vs. OGUNSINA (2022) LPELR (56415) 1 at 20 and NIGERIA CUSTOMS SERVICE BOARD vs. SUNDAY (2022) LPELR (56417) 1 at 20-21. – Per U. A. Ogakwu, JCA

JUDGMENTS/DECISIONS – TESTS TO DETERMINE WHETHER DECISIONS ARE FINAL OR INTERLOCUTORY

Two different tests have been propounded to determine whether a decision is final or interlocutory. The first is the nature of application test and the other is the nature of the order test. The nature of application test was laid down by Fry, L. J. in SALAMAN vs. WARNER (1891) 1 Q.B. 734 at 736 and it is that an order is not final unless it is made in application or proceeding that once a decision is given, it will, if it stands, finally determine the matter in litigation. The nature of order test, as postulated by Lord Alverstone, C. J. in BOZIN vs. ALTRINCHAM U. D. C. (1903) 1. K.B 547 at 548-549 is whether the judgment or order as made finally disposes of the rights of the parties. If it does, then it is a final order; but if it does not, then it is an interlocutory order. Where the Court orders for something to be done without any further reference to it, the judgment or order is final. In Nigeria, our Courts have adopted the nature of order test laid down in BOZIN vs. ALTRINCHAM U. D. C. (supra), irrespective of the nature of the application that resulted in the order. See AKINSANYA vs. UBA (1986) LPELR (355) 1 at 73, UDE vs. AGU (1961) LPELR (25126) 1 at 2-3, BACKBONE CONNECTIVITY NETWORK (NIG) LTD vs. BACKBONE TECH NETWORK INC. (2021) LPELR (56884) 1 at 6-8 and EBOKAM vs. EKWENIBE & SONS (1999) 7 SCNJ 77 at 87 or (1999) 10 NWLR (PT 622) 242 at 250-251. In applying the nature of order test to this matter, it is immaterial that the order was made pursuant to an Originating Motion. The important consideration is whether the order as made disposed of the rights of the parties or if it only disposed of an issue or issues in the application, leaving the parties with a right to return to the Court to claim other rights in the matter. Put differently, if by the nature of the order, the Court has nothing more to do with the case after it has made the order.I do not think that it can be confuted that there was nothing more for the lower Court to do after it granted the Respondent’s application for the recognition of the arbitral award and proclaiming that the Respondent is at liberty to apply for a writ of attachment for the execution of the award. Applying the nature of order test, the said decision of 14th November, 2019 on the Respondent’s application is a final decision and the Appellant could appeal against the same as of right pursuant to Section 241 (1) (a) of the 1999 Constitution, as amended on grounds of law, mixed law and facts or facts only without leave of Court. See EZE vs. A-G RIVERS STATE (2018) LPELR (45621) 1 at 15-16, OMRITAS ENERGY LTD vs. AYM SHAFA LTD (2021) LPELR (55935) 1 at 7-9 and ABUJA MUNICIPAL AREA COUNCIL vs. ANYISA (2023) LPELR (59915) 1 at 13. Concomitantly, ground 3 of the grounds of appeal is competent. – Per U. A. Ogakwu, JCA

RECORD OF APPEAL – TIME FRAME FOR THE REGISTRAR TO TRANSMIT RECORD OF APPEAL

Order 8 Rule 1 of the Court of Appeal Rules, 2021, which is in pari materia with Order 8 Rule 1 of the Court of Appeal Rules, 2016 provides as follows:

“The Registrar of the lower Court shall within sixty days after the filing of a Notice of Appeal compile, serve the parties and transmit the Record of Appeal to the Court.” So, by the provisions of the Rules, it is the responsibility of the lower Court to serve the Record of Appeal on the parties. Order 8 Rule 10 (1) (a) of the Court of Appeal Rules goes on to state that the Record of Appeal shall be transmitted with a certificate of service or non-service of the Record of Appeal. I have gone through the records of Court and I am unable to see any certificate of service from the lower Court, stating the date when the Record of Appeal was served on the Appellant. The date of service of the Record of Appeal is indispensable to the resolution of the contention that the Appellant’s brief was filed out of time, since by Order 19 Rule 2 of the Court of Appeal Rules, the Appellant has forty-five (45) days from service of the Record of Appeal to file the Appellant’s brief. It is only the submission of the Respondent’s counsel in the Respondent’s brief that suggests a date when the Record of Appeal was served on the Appellant. The said submission of learned counsel cannot take the place of evidence of when the Record of Appeal was served on the Appellant, which proof is to be afforded by a certificate or affidavit of service from the lower Court as stated by the Rules of Court. See NIGER CONSTRUCTION LTD vs. OKUGBENI (1987) LPELR (1993) 1 at 7, NIGERIAN ARMY vs. ABUO (2022) LPELR (57980) 1 at 21-22 and OYEYEMI vs. OWOEYE (2017) LPELR (41903) 1 at 30. – Per U. A. Ogakwu, JCA

JUDGMENT/DECISION – TIME FRAME FOR COURTS TO DELIVER DECISIONS

Section 294 (1) of the 1999 Constitution as amended stipulates as follows:

“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof & quot;

The main thrust of Section 294 (1) of the 1999 Constitution is for a Court to deliver its decision in writing not later than ninety (90) days after the conclusion of evidence and final addresses. – Per U. A. Ogakwu, JCA

DECISIONS – WHEN DECISION IS GIVEN AFTER 90 DAYS STIPULATED PERIOD

What then is the legal effect of the decision of the lower Court having been handed down after the ninety (90) day period stipulated in Section 294 (1) of the Constitution? Now, even though the said Ruling was delivered outside the ninety (90) day period stipulated by the Constitution, it does not ipso facto render the judgment a nullity. For the said decision to be rendered a nullity, the Appellant must establish that the said decision occasioned a miscarriage of justice. SOETAN vs. STELIZ LTD (2010) LPELR (9051) 1 at 24-26, AKOMA vs. OSENWOKWU (2014) LPELR (22885) 1 at 41 and OFULUE vs. OKOH (2014) LPELR (23218) 1 at 22-23. Section 294 (5) of 1999 Constitution provides as follows:

“The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Sub-section (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”

The action at the lower Court was heard on affidavit evidence. There was no testimonial evidence that would have required the judge to observe the demeanour of the witnesses to assess their credibility. The entire hearing was documentary. Though the Appellant contended that there was a miscarriage of justice, I have insightfully considered the judgment of the lower Court and I am satisfied that the decision of the lower Court turned on the processes filed. The application having been heard entirely on the processes filed, there could be no question of the demeanour and credibility of witnesses such that the passage of time beyond the constitutional period, could be said to have affected the interpretation placed by the lower Court on the stipulations of the Arbitration and Conciliation Act. Accordingly, I am unable to agree with the Appellant that the decision of the lower Court occasioned a miscarriage of justice. The concomitance is that even though the judgment was delivered outside the stipulated ninety (90) day period, the judgment will still not be liable to be set aside since I am not satisfied that a miscarriage of justice had been occasioned. See OLOKOTINTIN vs. SARUNMI (1997) 1 NWLR (PT 480) 222, ATUNGWU vs. OCHEKWU (2004) 17 NWLR (PT 901) 18, IGWE vs. KALU (2002) 5 NWLR (PT 761) 678, ACB vs. AJUGWO (2011) LPELR (3637) 1 at 34-35, MOLEGBEMI vs. AJAYI (2011) LPELR (4501) 1 at 30-32, OLUSANYA vs. UBA PLC (2017) LPELR (42348) 1, RAPU vs. IKUEGBOWO (2018) LPELR (45253) 1 at 16-21 and GEORGEWILL vs. LAMBERT ELECTROMEC LIMITED (2021) LPELR (54469) 1 at 14-16. – Per U. A. Ogakwu, JCA

ARBITRATION – OPTIONS OPEN TO A PARTY TO AN ARBITRATION

Now, Section 32 of the Arbitration and Conciliation Act provides as follows:

“Any of the parties to an arbitration agreement MAY, request the Court to refuse recognition or enforcement of the award.”

(Emphasis supplied)

I agree with the Appellant that the word MAY as employed in the above provision is permissive, not mandatory. But in the context in which it is used, the permissiveness relates to a decision on whether a party is to request the Court not to recognise or enforce an arbitral award. It has absolutely nothing to do with whether the request to the Court is to be by an application or other process.

By the canons of interpretation of statutes, where the ordinary and plain meaning of the words used are clear and unambiguous, effect must be given to those words, in their natural and ordinary meaning or literal sense, without resorting to any intrinsic or external aids. Put differently, in interpreting a statute, where the words used are clear, plain, and univocal, there is no need to give them any other meaning than their ordinary, natural, and grammatical meaning would permit, except where it would lead to absurdity. See ADETAYO vs. ADEMOLA (2010) 15 NWLR (PT 1215) 169 at 205, OKOTIE-EBOH vs. MANAGER (2004) LPELR (2502) 1 at 30 and NWOBIKE vs. FRN (2021) LPELR (56670) 1 at 25.

Against this background, giving the words employed in Section 32 of the Arbitration and Conciliation Act, which are clear, plain, and unambiguous, their literal, ordinary and plain meaning, as doing so will not lead to any absurdity; it cannot be confuted that the said provision is with regard to a party to arbitration agreement electing whether he would request the Court to refuse recognition or enforcement of the award and no more. – Per U. A. Ogakwu, JCA

ACADEMIC QUESTIONS – CONDUCT OF THE COURT REGARDING ACADEMIC QUESTIONS

It is rudimentary law that Courts do not engage in the determination of academic questions. In ABUBAKAR vs. YAR’ADUA (2008) 4 NWLR (PT 1078) 465 at 497, Tobi, JSC intoned:

“An academic matter in a suit is one which is raised for the purpose of intellectual argument qua reason which cannot in any way affect the determination of the live issues in the matter. It is merely to satisfy intellectual prowess qua intellect. It is a matter which is theoretical and not related to practical situation.” See also GLOBAL TRANSPORT OCEANICO S.A. vs. FREE ENTERPRISES (NIG) (2001) LPELR (1324) 1 at 19-20, PLATEAU STATE vs. A-G FEDERATION (2006) 3 NWLR (PT 967) 346 at 419, SHOYINKA vs. OKUNLOLA (2019) LPELR (50751) 1 at 36 and OKUNLOLA vs. SHOYINKA (2019) LPELR (48363) 1 at 36-37. – Per U. A. Ogakwu, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Arbitration and Conciliation Act
3. Court of Appeal Rules, 2021
4. Court of Appeal Rules, 2016

 

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