Alphonsus Chikwujike Agwuncha V. Cyril Ikechukwu Ezemuoka (2002)

LawGlobal-Hub Lead Judgment Report

ZAINAB A. BULKACHUWA, J.C.A.

The respondent as plaintiff before the trial court initiated this action by way of a Writ of Summons dated 8th July, 1999 and by a statement of claim dated 7/8/99 claimed as follows:

(i) An order that the partnership between the parties be formally dissolved by the court.

(ii) Assets and liabilities as at 5/8/98 valued at N7, 424, 394.00 only are divided in the ratio of to the Plaintiff and 1:3 to Defendant which translate at N4, 959, 541. 00 for Plaintiff and N2, 474773.00 to the Defendant

(iii) An order that all assets of the partnership still in possession of the defendant be sold and the plaintiff paid the sum of N3, 544, 046. 00.

(iv) An order that liabilities when fully determined be equally divided in same ratio.

Pleadings were filed and exchanged by the parties but before hearing could commence on the case the defendant now appellant before this court filed a Notion on Notice on the 8/10/99 seeking the under listed reliefs;

1. An order striking out the plaintiffs Suit; as it was in disregard of a condition precedent to the conferment of jurisdiction and filed in the wrong jurisdiction or
2. An order striking out plaintiffs suit for disclosing no cause of action; not being a suit for the enforcement of an arbitral award; or
3. For an order striking proceedings (alternately) until arbitrators are appointed under the act; and in compliance with the Partnership Agreement of 3/2/94.

The trial court heard parties on the application and in a considered ruling on the application delivered on 25/1/2000 refused the application as prayed.

The defendant being dissatisfied has with the leave of the trial court which was granted on the 3/2/2000 appealed to this court on one ground of appeal to wit:

Ground of Appeal:

The Honourable Trial Judge erred in law when he dismiss or dismissed the Defendant’s application in limine to strike out plaintiff’s Suit.

Particulars of Error:

1. Relief sought in the application No M/28/99 was an order of court striking out plaintiff’s suit. Order for stay was sought in the alternative.
2. The Honourable Trial Judge failed to apply Order 24 of the High Court (Civil Procedure Rules) 1991.
3. The Honourable Trial Judge failed to resolve the conflict In Order 24 of the High Court (Civil Procedure) Rules 1991, and Section 4(1) of the Arbitration and conciliation Act 1990.
4. The Honourable Trial Judge failed to accord due weight to paragraph 19 of the partnership agreement dated 3/2/94.
5. The Honourable Trial Judge erred when held that the filing of memorandum of Appearance and the Statement of Defence amounted to steps taken in the proceedings that could vitiate the defendant’s application; particularly In view of the relief striking out and Order 24.
6. The Honourable Trial Judge erred when he held that the award by the arbitrators was null as it was not signed by the defendant.

The appellant, as is required by the Rules of this court filed his brief of argument on the 17/10/2001 and a reply brief on the 12/2/2002, The respondent’s brief by leave of this court granted on the 31/01/2002 was deemed filed on the same date i.e. 31/01/02.

In his brief the appellant formulated these 4 issues for the sale ground of appeal for the determination of the appeal,

1. Whether non-compliance with Order 19 of the Partnership agreement between the parties being a condition precedent to the conferment of jurisdiction, does not rob the court below the power to determine the suit.
2. Whether the (3) prayers in the appellant motion No 11/28/99 can all be dismissed based on the reason that appellant had taken steps in the proceedings by entering appearance and filling his statement of defence.
3. Whether the misapplication by the trial court of Order 24 and Section 4(1) of the arbitration and conciliation Act 1990 did not in fact affect the prayer to strike out adversely.
4. Whether the court belaw was right to hold that the arbitral Award is vitiated merely by one of the parties refusing to sign the arbitral documents of memoranda.

The respondent formulated only one issue from the ground of appeal which is produced below;

Whether the Honourable Trial Judge was right in law when he dismissed the appellant’s application to strike out the Plaintiff/Respondent case.

The respondent in his brief also raised a preliminary objection to the effect that the appellant who filed only one ground of appeal formulated four issues therefrom and further that the ground of appeal filed is vague and does not challenge any of the finding of the trial court.

On the first leg of his objection relying on the cases of: NWAOSU VS NWAOSU 2000 4 NWLR Part 653 P. 351 at 355 EGE SHIPPING VS TIGRIS INTERNATIONAL 1999 12 SCNJ 1 at 4 OKEKE VS ORUH 1999 4 SCNJ 192 at 196 ODUMESI VS OYENOLA 1998 8 NWLR Part 563 601 at 606 – 607 to submit that it has now become settled in law that only one issue can be formulated from a ground of appeal.

On the second ground of his objection he submitted that when a ground of appeal is vague it offends the provisions of Order 3 Rule 2(4) of the Court of Appeal Rules and must be struck out. Relying on the case of NDEFO VS OBIESI 2000 15 NWLR Part 657 441 that where an only ground of appeal is found to be incompetent the appeal must be dismissed.

He further submit that the particulars of the grounds do not in any way relate to the ground of appeal and this renders it incompetent on the authority of MAIDORA VS HALILU 2000 13 NWLR Part 684 257.

He urges us to uphold the preliminary objection and dismiss the appeal for being incompetent.

Replying to the submission on the preliminary objection the appellant in his reply brief conceded that the issues as formulated by him are far in excess of the ground of appeal and withdrew issues 1, 3, and 4 and urged us to strike them out and determine the appeal on the remaining issue 2 which relates to the ground of appeal.

On the second ground of objection the appellant submitted that the sale ground of appeal alleges error in law in the judgment of the trial court, thus the question whether the particulars relate or do not relate to the ground does not arise since they constitute the substatum of the complaint. That if there are particulars that support the complaint of error in law such particulars are relevant to the ground of appeal – MILITARY ADMINISTRATOR, BENUE STATE VS ULEGEDE 2001 FW & R Part 76 1268.

He urged us to discountenance and dismiss the preliminary objection.

Generally an issue, in an appeal must be formulated from a ground of appeal – ALHAJI UBANU KARI VS ALHAJI ISA ABBA GANARAM AND ORS 1997 2 SCNJ 28; and an issue not arising from a ground of appeal is found to be incompetent and any argument arising therefrom are struck out – MADAM OLUFUNSO OKEKOLA VS MISS ADEBISI BOYLE 1998 1 SCNJ 63; ONYEBUCHI IROEGBU VS RICHARD OKWORDU & ANOR 1995 4 SCNJ 7.

My Lord Coomasie JCA had occasion to state in the case of SCOA Nigeria Plc V. Alhaji Sani Yaro Dambatta in an unreported Appeal No. CA/A/20M/2001 delivered on 5/6/2002 as follows:

“I wish to observe that the appellant in his Notice of Appeal filed only three grounds of appeal, however in the brief of argument, 4 issues were formulated in excess of the grounds of appeal.

In a case like the one at hand, where only three grounds were filed, the formulation of more issues than there are grounds of appeal without some strong reason ought to be discouraged. This, the Supreme Court has decided in Attorney-General of Bendel State VS Aideyan 1984 4 NWLR Part 118 646; BURAIMOH VS BAMIGBOSE 1989 3 NWLR Part 166 at 214; OGUNBIYI VS ISHOLA 1996 1 RMLR Part 3 83/90 and several others that it is wrong for counsel to formulate issues for determination in excess of the grounds of appeal filed and that except in special circumstances where the grounds so dictate it is undesirable to formulate more than an issue in respect of each ground of appeal… Drafting is an important tool in advocacy. A Solicitor who could not present his clients case clearly in the brief, if it is a case in the appellate courts or in the pleadings, if it is a case before the High Court or Federal High Court, could not adequately represent the interest of his clients. An otherwise good case is destroyed and lost by bad pleadings, while an appeal that could have easily been won is lost either by filing incompetent grounds of appeal, example of: this is the proliferation of issues in excess of the grounds of appeal. I hope counsel would pay more attention to drafting as no counsel could be good and make marks in advocacy is he is poor in drafting mechanism.”

I need add no more on this, suffice to say that in the instant case four issues were formulated out of a single ground of appeal, however counsel to the appellant having conceded and agreed that it was wrong to do so in the appellant’s reply brief and in his submission before us while arguing this appeal and having withdrawn issues 1, 3 and 4 of the issues formulated I accordingly strike out the said issues as well as any arguments based on them.

On the second arm of the objection attacking the ground as being incompetent I am of the view that a ground of appeal which is supposed to attack a decision of a court can only be said to be incompetent where it is not attacking or pointing out the error in law or on the fact as decided by the court, or it is defective when it is not drafted in the manner provided by Order 3 rule 2 (1) of the Court of appeal Rules. Instances of non – compliance of the above provisions have been shown as follows;

1. The use of the wrong form such as filing a Civil appeal in a Criminal appeal.
2. The appeal is filed in the wrong court,
3. The appeal is not signed by the appellant or his counsel.
4. The appeal is filed out of time without the leave of court.

Where none of the above is present in a ground of appeal it cannot be said to be incompetent.

In the instant appeal the ground of appeal is attacking the decision of the trial court is can therefore not be said to be incompetent. The fact that the particulars have been inelegantly drafted, in that they should have been grounds of appeal they nonetheless cannot vitiate the ground which does not offend the provisions of Order 3 Rule 2(1) of the Court of Appeal Rules. It is therefore competent.

In the circumstances the second leg of the preliminary objection is hereby overruled and dismissed.

The sole issue remaining for the determination of the appellant appeal is issue two, I am however of the view that this appeal Can be determined on the issue as formulated by the respondent which reads.

“Whether the Honourable Trial Judge was right in law when he dismissed the appellant’s application to strike out the Plaintiff/respondent’s case”

On that issue it is the appellant’s contention that the appellant as the applicant in the lower court sought for the grant of three prayers, one, for striking out on grounds of jurisdiction, two, for striking out the plaintiff having not disclosed a cause of action and the third as an alternative which seeks for stay of proceedings until arbitrators are appointed.

On the first prayer he submits that an issue of jurisdiction can be raised at any stage of a proceeding including an appeal relying on Alhaji Olayede Ishola Vs M. Ajiboye 1994 NWLR Part 352 506; and M.G.F. (Nig) Ltd Vs Gwus International Ltd 2001 9 NWLR Part 718 413.

The second prayer, he submits is not a demurrer it is a prayer urging the lower court to strike out the respondent’s suit for disclosing no cause of action it being not a Suit for the enforcement of an arbitral award it cannot be taken as demurrer proceedings and ought not to be dismissed as such. For it is only in demurrer proceedings that the issue of filing a statement of defence shall constitute “taking a step in the proceedings” as found in the case of Mobil Oil Plc VS ALL 36 Inc. 2000 FWLR Part 10 1632.

On the third prayer he submits that none of the parties have complied with the provisions of Section 4 and 5 of the Arbitration and Conciliation Act 1990 which provide for either of the parties to apply for a stay before taking any further steps after filing of the Writ by the plaintiff or before filing the statement of defence by the defendant. He admits that Parties having filed pleadings they are not entitled to a stay as found by the trial judge.

He however submits that as the finding of the trial judge was on the third alternate prayer alone, this court should substitute it with its own findings for prayers a and b of the application relying on Order 3 Rule 23 of the Court of Appeal Rules.

The respondent submits that the issue of jurisdiction as raised in the application by the trial court at page 23 where it held this partnership agreement is now dead, the only thing still left in this partnership is to share the remaining assets and liabilities”. That paragraph 19 of the Partnership Agreement which provides that, only Aba High Court has jurisdiction the matter was not applicable the Partnership having been dissolved. That it is settled law that parties cannot by consent confer jurisdiction on a court where there is none or divest a court of jurisdiction when there is one NIKA FISHING LTD VS LAVINIACORP 2001 16 NWLR Part 740 556.

That Order 10 Rule 3 of the High Court Civil Procedure Rules of the FCT gives the Abuja High Court jurisdiction over the matter, and the trial court was right to have dismissed the appellant’s prayers and he urged us to dismiss the prayers.

The claim of the plaintiff determines the jurisdiction of the court that will decide the Issues between the parties. Similarly a court can only be competent to determine a matter when:

1. it is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case that prevents the court from exercising its jurisdiction; and
3. the case comes before the court initiated by due process of law, upon the fulfillment of any condition precedent to the exercise of jurisdiction See MADUKOLU VS NKEMDILIM 1962 2 SCNLR 314; SKENCONSULT (NIG) VS UKEY 1981 1 SC 5; WESTERN STEEL WORKS LTD VS IRON and STEEL WORKERS UNION (No 2) 1987 1 NWLR Part 49 284.

What is the claim of the plaintiff/respondent before the lower court and based on the claim was the trial court competent to hear the matter,

The claim is produced hereunder for case of reference.

1. An order that the partnership between the parties be formally dissolved by the court.
2. Assets and liabilities as at 5/8/98 valued at N7, 424, 314.00 only be divided in the ratio of 2:3 to the plaintiff and 1:3 to the defendant which translate at N4, 959, 541.00 for plaintiff and N2, 474, 773.00 to the defendant.
3. An Order that all assets of the partnership still in possession of the defendant be sold and the plaintiff paid the sum of N3, 544, 046.00.
4. an order that liabilities be fully divided in same ratio.

From the above it can be observed that the claim of the plaintiff hinges on the partnership agreement between the parties.

After the filing of pleading, the defendant filed the application which is the subject matter of this appeal where with he annexed the partnership agreement. In the application he sought three prayers striking out the plaintiff’s suit as it was filed in disregard to condition precedent to the conferment of jurisdiction.

His submission on that prayer in the court below and before this court is that paragraph 19 of the Partnership Agreement constitutes a condition precedent which must be complied with before any action can be instituted in 8 courts by either party.

The court in deciding that prayer said at pg 23 of the records;

The totality of the Suit before this court is the demise of a partnership agreement which has failed. A Partnership Agreement was drawn up between the parties and executed on 03/08/911. As of now this partnership has failed. The only thing left to be determined is the distribution of the assets and liabilities of the partnership.

At the demise of this partnership, the parties resorted to appointing arbitrators to mediate. Unfortunately, instead of appointing 3 men Arbitration panel as specified by their partnership agreement vide paragraph 19 of the said Partnership Agreement and also according to the provisions of the Arbitration and Conciliation Act 1990. The non compliance of this Paragraph 19 should not ordinary vitiate the Arbitration award if agreed to by the parties, At the tail end of the Arbitration, the Defendant/Applicant refused to sign the Award and as such making the award a nullity.

The Plaintiff then sought recourse to the High Court of Abuja of which the Defendant/Applicant is contesting and claims that this Court has no jurisdiction to hear this matter as they specifically agreed as per paragraph 19 that any case arising should be instituted at Aba High Court.

These are the intendments of their Partnership Agreement. This partnership is now dead; the only thing still left in this partnership is to share the remaining assets and liabilities. The partners have earlier submitted themselves to Arbitration which the Defendant failed to sign which in effect means that he does not want to subject himself to the Award reached by the panel. In frustration, the Plaintiff/Respondent has instituted this Suit in this court for a just dissolution of this partnership. The Defendant/Applicant is refusing that this Suit should be heard in this court as opposed to what the partnership agreement specifying Aba High Court.

The question then before this court is whether it has jurisdiction to hear this matter. In this suit the Plaintiff/Respondent has filed his writ of Summons and Statement of Claim. In response therefore the defendant/applicant has filed his memorandum of appearance and has gone even further to file his own Statement of Defence. The Law is clear on these issues as can be deciphered in the cases of:

1. Kano State Urban Development Board VS Pranz Construction Company Limited (Supra) and
2. Oboube VS Wema Board Estate Ltd (Supra).

The Supreme Court held inter alia is that “where there is a provision in an Agreement or Contract, for submission to arbitration, the court has jurisdiction to stay Proceedings by virtue of its Powers under Section 5 of the Arbitration Act. It is however vital that the party who makes an application to the court for stay of proceedings has not taken steps in the proceedings whatsoever”.

“A party makes any application whatsoever to the court even thought it be merely an application for extension of time, takes a step in the proceedings, Delivery of a Statement of Defence is also a step in the proceedings”.

In the present case, the defendant/applicant has filed his memorandum of appearance but not in protest and also a statement of defence. These are clear cases of taking a step in the proceedings and as such should be estopped from asking the court to stay proceedings. The court cannot stay proceedings at this stage and cannot order for arbitration at this stage unless with the consent of both parties. ”

In a partnership agreement parties are presumed to intend what they write in the agreement between them. The intendment of the parties will always be the determining factor in any dispute that might arise as to the term of the agreement or on the dissolution of the partnership.

In the instant case Article 19 of Exhibit A the Partnership Agreement provides as follows:

“All disputes between the parties in relation to any matter whatsoever touching the partnership affairs whether before or after the dissolution of the partnership shall be referred to a three member arbitration panel appointed in accordance with the provisions of the Arbitration and Conciliation Act 1990 and any action that may arise thereafter shall be instituted at Aba under the laws that apply thereat.”

In as much as there are condition precedent which must be satisfied between the parties when the agreement is to be determined and a court as in this instance cannot go outside the terms as stipulated or agreed by the parties, the jurisdiction of the court as given by the Constitution or the laws for the time being in force cannot be curtailed by the agreement. Section 257 (1) of the 1999 Constitution has conferred unlimited jurisdiction on the High Court of the Federal Capital Territory which jurisdiction cannot be derogated from by an agreement between persons – ADEBISI VS HARMONY INSURANCE 1984 SNCLR 475.

For the High Court of the FCT has unlimited jurisdiction to entertain proceedings in both Civil and Criminal cases between individuals or between individuals and the state.

As I have mentioned earlier the competence of a court to exercise jurisdiction to an action before it is based on three conditions one of which is that the case comes before it initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of its jurisdiction – See TUKUR VS TARABA STATE & 20 ORS 1997 6 SCNJ 81; MADUKOLU & ORS NKEMDILIM 1962 1 All NLR 587.

Pleadings of the parties before the trial court had shown that the partnership agreement had been dissolved. The parties were before an arbitration panel of three members and a determination made by the panel on the distribution of the asset of the partnership.

The claim of the respondent before the court is for the formal dissolution of the partnership by the court and the division of assets and liabilities under the agreement.

The condition precedent both in the agreement and as to subject matter and due initiation by process of law has been satisfied and there is nothing to prevent the court from exercising its jurisdiction at that stage.

To say that only Aba High Court will have jurisdiction in determining the matter between the parties is to curtail the jurisdiction of the court and it is trite that parties cannot by consent confer jurisdiction on a court where there is none or divest a court of jurisdiction when there is one as in the instant case – NIKA FISHING LTD VS LAVINIA CORPORATION (Supra).

The 1999 Constitution and Order 10 Rule 3 of the High Court of the FCT Civil Procedure Rules vests the Abuja High Court with jurisdiction over this matter, and the trial court was right to have dismissed the appellant’s application.

The appellant having entered appearance and filed pleadings before the lower court, he cannot be heard praying for stay of proceedings under the Arbitration Act – See KANO STATE URBAN DEVELOPMENT BOARD VS PRANZ CONSTRUCTION COMPANY LTD (Supra); OBOUBE VS WEMA BOARD ESTATE LTD (Supra), and the trial court was right to have held so.

On the whole I find no substance in this appeal and it is hereby dismissed with N5, 000.00 costs to the Respondent.

The case is remitted back to the trial court for determination on the merits.

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Other Citations: 2002)LCN/1230(CA)