Bill Construction Co. Ltd. V. Imani & Sons Ltd/shell Trustees Ltd (A Joint Venture) (2006)
LAWGLOBAL HUB Lead Judgment Report
ONNOGHEN, J.S.C.
This is an appeal against the judgment of the Court of Appeal holden at Lagos in appeal No. CA/L/192/98 delivered on 7th July, 1999 in which it allowed the appeal and set aside the decision of the Lagos State High Court granting leave to the appellant to enforce an arbitral award between the parties.
The parties entered into a construction contract for the building of the United States of America Embassy Staff Housing and recreational facilities at Abuja with a provision that any dispute between them must be referred to arbitration and the award of such arbitration shall be final and binding on the parties. Later on and during the course of the execution of the contract, disputes arose between the parties and the matter was duly referred to Kofo Popoola, Jp, Chartered Quantity Surveyor, for arbitration and an award was made on 31/12/96. The award was for N352,910,156.00 in favour of the appellant who demanded payment but the respondent refused to pay. There was in addition, an award of 21% interest per annum on the principal sum calculated monthly on any outstanding sum remaining unpaid.
Appellant later applied to the Lagos State High Court on 26/3/97 for leave to enforce the award as a judgment of that court by an originating motion ex parte but the Chief Judge directed the appellant to put the respondent on notice of the motion. The appellant consequently took out an originating summons on notice to the respondent on 23/4/97 under the same suit No.M/172/97 which was served on the parties.
On the 7/7/97 the respondent filed a notice of preliminary objection to the application of the appellant which objection was more than three months as allowed by the Arbitration and Conciliation Act, Cap. 19, Laws of the Federation, 1990 for challenging an award. The challenge to the award was thus more than 6 months after it was made.
On the 1st day of April, 1997 the respondent commenced suit No. FHC/L/CP/365/97 at the Federal High Court, Lagos in respect of the award and the appellant filed a notice of preliminary objection against the suit on 8/4/97 challenging the jurisdiction of the court to entertain and determine the suit which objection was upheld by that court on 9/3/98.
On the 27th day of October, 1997 the Lagos High Court dismissed the preliminary objection of the respondent and proceeded to grant the appellant’s application to enforce the award there being nothing to oppose its grant. Before granting the application, learned counsel for the respondent, when called upon to reply to the motion as moved by learned counsel for the appellant applied for an adjournment to file a counter-affidavit, which application was refused by the learned trial Judge resulting in the appeal to the Court of Appeal. The Court of Appeal allowed same on the ground that the respondent’s right to fair hearing was impeached by the learned trial Judge’s refusal to grant the adjournment sought and without allowing counsel opportunity to reply on points of law to the application to enforce the arbitral award. It is against that decision that the appellant has appealed to this court.
The issues relevant for the determination of the appeal are as follows:-
- Were the learned Justices of the Court of Appeal right in treating the third issue for determination formulated by the respondent as similar to the appellant’s Should the judgment still be sustained if the said respondent’s third issue for determination is shown not to have been distilled from a ground of appeal arising from the judgment of the trial court (Ground 1 of the appeal).
- Were the learned Justices of the Court of Appeal right in holding that the registration of the arbitral award pursuant to section 31 of the Arbitration and Conciliation Act, the respondents were not given a fair hearing in the circumstances of this case for not being granted adjournment at the time and for the reason the request was made (Grounds 2 & 3 of the appeal)”
It must be noted that there was a cross-appeal by the respondents which was withdrawn by learned counsel for the respondents/cross-appellant at the hearing of the appeal on the 18th day of October, 2006 and was consequently dismissed by this court. Also to be noted is the fact that there was a third issue identified by the learned counsel for the appellant which relates to the withdrawn cross-appeal and was consequently struck out by the court following the dismissal of the cross-appeal.
Going through the surviving two issues as identified by learned counsel for the appellant for determination, I hold the view that the main issue in this appeal is the second issue dealing with fair hearing. I will therefore limit this judgment to a consideration of the issue as to whether the respondents were denied their right to fair hearing as held by the Court of Appeal, I hold the considered view that the 1st issue is really of no moment even though elegantly couched and thought out.
By virtue of the provisions of section 33(1) of the 1979 Constitution being the applicable Constitution to the facts of this case, in the determination of a person’s civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality. It is settled law that the above provision entrenches the common law concept of natural justice with its twin pillars, namely:
(i) that a man shall not be condemned unheard or what is commonly known as audi alteram patem, and
(ii) that a man shall not be a Judge in his own cause or nemo judex in causa sua.
The section confers on every citizen of this great nation who has any grievance, the right of access to the courts and leaves the doors of the courts open to any person with the desire to ventilate his grievances and compels the court that will determine the rights of such person to accord the person a fair hearing, see Kenon v. Tekam (2001) 14 NWLR (Pt. 732) 12; Deduwa v. Okorodudu (1976) 9-10 S.C. 329, Mohammed v. Kano N. A. (1968) 1 All NLR 424.
It is the person who alleges any breach of the rules of fair hearing that has the burden of proof of same. In the instant case, it is the respondents who alleged before the lower court that their right to fair hearing was breached that owed therefore the duty to prove same, they have to establish how their civil rights and obligations have been adversely affected by the alleged breach. It is settled law that whether a trial or proceeding had been fair or not depends on the facts and circumstances of each case. The question is whether given the facts and circumstances of the instant case the Court of Appeal is right in its conclusion that the respondents were denied their right to fair hearing.
From the evidence as contained in the record, the following facts are clear and undisputed:
(a) the proceeding emanated from an application by the appellant to enforce an arbitral award of the sum of N352,910,156.00 with interest at 21% per annum calculated monthly on any outstanding sum remaining unpaid in accordance with an agreement entered into by the parties to the proceedings who also agreed that the award shall be final and binding on them;
(b) the application to enforce the award was on notice to the respondents who reacted to it by the filing of a notice of preliminary objection with no counter-affidavit opposing the application on the merit:
(c) as at the time of filing the application to enforce the award more than six months had passed after the making of the award:
(d) that section 31 of the Arbitration and Conciliation Act grants three months to the respondents within which to challenge the award which the respondents failed or neglected to utilise;
(e) from the facts even the notice of preliminary objection to the application to register and enforce the award was made more than six months after the award;
(f) the respondents filed no action to set aside the award for whatever reason;
(g) the preliminary objection of the respondents was eventually struck out with costs to the appellant leaving the coast clear for the consideration of the application to register and enforce the award, which was then heard.
Just before learned counsel for the appellant started moving the court on the application or midway into his so moving the court, learned counsel for the respondents, if he desired to put up any facts before the court to be considered in the application on behalf of his client, was under a duty to have so informed the court and applied for an adjournment in the circumstances so as to bring the facts properly before the court but he did not do so. He waited until learned counsel for the appellant concluded his arguments on the application. It was when counsel for the respondents was called upon to reply to the arguments of his learned friend that he told the court that he needed an adjournment to file a counter-affidavit in opposition to an affidavit in support of the application already argued or moved by counsel. This obviously is not acceptable because the request for adjournment and the reason for same if granted would have amounted to a breach of the right to fair hearing of the appellant, see N.N.B. Plc v. Sanni (2001) 7 NWLR (Pt.713) 544 apart from the fact that a counter-affidavit has been held by this court in the case of Araka v. Ejeugwu (1999) 2 NWLR (Pt.589) 107 at 121 not to be relevant and that “what he cannot do is to seek to do so by way of pleading counter-affidavit in an action for enforcement of the award” but by an independent action to set aside the award before the court seized of the application for registration of the award and by Order 49 rule 4 of the High Court of Lagos (Civil Procedure) Rules he had six weeks to do so but failed. Their failure further strengthened the finality of the award as agreed by the parties to the arbitral clause in the agreement they signed.
On the above facts and circumstances of this case, I hold the considered view that the right to fair hearing of the respondents was never breached by the trial court and that the Court of Appeal was in error when it held the contrary. It is settled law that where a party is given ample opportunity to present his case within the confines of the law but he chooses not to utilise same, he cannot later be heard to complain that his right to fair hearing has thereby been breached. What the court is enjoined by the provisions of section 33 of the 1999 Constitution to do is to create a conducive atmosphere for the parties to exercise their right to fair healing by holding the scales of justice fairly but firmly without fear or favour, affection or ill will. Having provided the required atmosphere the duty on the court stops there. It becomes the duty or choice of the party seeking to enforce his civil lights and obligations to utilise the opportunity so created. He cannot be compelled to do so. Where he decides to present his case in an acceptable mode and as required by the rules and substantive law, he would be heard. On the other hand, where he chooses not to present his case he cannot later be heard to complain that he was not heard, as in the instant case.
In conclusion, the appeal has merit and should be allowed and I order accordingly. I set aside the judgment of the Court of Appeal and restore the ruling of the High Court. Appellant is awarded costs of N10,000.00 only.
Appeal allowed.
SC.63/2002
