Nwagbara V. Jadcom Ltd (2021)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

The Appellant, a Quantity Surveyor, had a dispute over payment of agreed commission payable to him by his principal, the Respondent herein, in respect of a building contract. While the Appellant insisted on payment of his commission on the two phases of the building contract awarded by the third party to the Respondent, irrespective of whether or not the contracts for the two phases were actually awarded; the Respondent posited that the payment of the Appellant’s commission or fees was, as per their agreement, payable only if and when the contract for the second phase was awarded to the Respondent.

There was no dispute about the first phase. The contract for that phase was awarded and the Appellant was paid his fees.

The third party for some financial constraint did not award the contract for the second phase to the Respondent.

The agreement between the Appellant and the Respondent had an arbitration clause.

​As the parties herein could not amicably resolve their dispute, the Appellant commenced the action in the High Court of the Federal Capital Territory (FCT) for his fee. The Respondent, in consequence thereof, raised the issue of the arbitration clause. The matter was then referred to arbitration, and the suit was struck out.

The Arbitration panel made its award. The Respondent aggrieved thereby proceeded to the FCT High Court to have the award set aside. The Appellant, in response to this move, rather than wait for the hearing and determination of the Respondent’s action seeking to set aside the arbitration award, filed a fresh and parallel suit No. FCT/HC/CV/809/2000 with a motion to enforce the award. On the Respondent’s objection that the suit, No. FCT/HC/CV/809/2000, was an abuse of the process of the Court; the High Court (Mukhtar, J (as he then was)) agreed with him and dismissed the suit for abuse of Court’s process. The Appellant appealed the decision. He later withdrew the appeal.

The Appellant then filed another application for enforcement of the arbitral award. Again, the Respondent objected. Another Judge of the FCT High Court (H. Baba, J) heard the objection and ruled that, in view of the decision of Mukhtar, J, he was functus officio and would not constitute his Court an appellate Court to review Muhktar’s decision. The Appellant appealed that decision (of H. Baba, J) to the lower Court.

Abdu Aboki, JCA (as he then was), whose judgment the other members of the lower Court (Adekeye and Peter-Odili, JJCA as they were then) concurred, held, agreeing with the trial FCT High Court, that the Appellant was guilty of abuse of judicial process on the grounds that he, having –

– filed an appeal which he did not pursue but later withdrew

– with the consent of the Defendant and filed a Motion on Notice before another Court seeking identical reliefs as those earlier refused…

In this appeal, the Appellant at the (trial) Court, as Applicant in the application No. FCT/HC/M/1749/2001 (had) sought to relitigate the issue which have been dismissed in the previous suit No. FCT/HC/CV/809/2000, in which both parties are the same and the subject matter and the reliefs are the same.

It is therefore most improper for the Appellant to have filed the Motion on Notice NO. FCT/HC/M/1749/2001 dated 7th February, 2002, and — it is an abuse of process.

​The Appellant expressed his disagreement and grievance with the decision of the lower Court (delivered on 29th November, 2007) in the four grounds of appeal, contained in the Notice of Appeal, filed on 19th February, 2008. The Notice of Appeal, filed 92 days from the date of decision on 29th November, 2007, was filed out of time: the periods prescribed by Section 27(2)(a) for giving Notice of Appeal being “fourteen days against an interlocutory decision and three months in an appeal against a final decision”.

In this Court “all appeals shall be by way of re-hearing”: Order 8, Rule 2(1) of the Rules of this Court. That means this appeal is a continuation of the interlocutory application praying for the enforcement of the arbitration award dismissed by the trial Court, and affirmed by the lower Court, for being an abuse of the Court’s process.

​This appeal appears to be an interlocutory appeal, and I firmly hold that view. The effect, of this, is that the inordinate delay in filing the notice of appeal 92 days after the decision appealed rendered the appeal incurably defective. Even if it is accepted that the appeal was against the final decision of the lower Court; the appellant was still out of time by two days and that fact would prohibit him from giving the Notice of Appeal as of right, as he did in disobedience of Section 27(2)(a) of the Supreme Court Act, 2004.

My lords, there is a Preliminary Objection that all the four grounds of appeal articulating the grievance of the Appellant, are not competent. The Appellant filed no Reply Brief to contest the objection. I agree entirely that all the grounds of appeal are incompetent. A good and competent ground of appeal must constitute a complaint against the decision; that is the ratio decidendi of the decision appealed, and not against obiter dictum or mere preamble to the decision. A ground of appeal, being the totality of the reasons why the decision complained of is considered to be wrong by the party appealing must isolate and accentuate, for attack, the basis for the reasoning of the decision challenged: EHINLANWO v. OKE (2008) LPELR-1054 (SC); ELEMORO & ANOR v. ABIODUN (2014) LPELR-23195 (SC).

Ground 1 of the appeal does not meet the templates of a good and valid ground of appeal; it being an attack on a mere preamble and/or obiter dictum. Without its particulars it is couched thus —

GROUND ONE

The learned Justices of Appeal erred in law when they held (at P. 16 of the judgment) that “an arbitral award unlike a judgment which has force until set aside, lacks intrinsic or inherent force until pronounced upon by a competent judicial authority and in order that it will attract judicial recognition the Court will inquire if the decision was certain, final reasonable, legal and if the arbitration award disposed of the dispute submitted to it”.

Grounds 2, 3 & 4 are grounds requiring leave first sought and obtained before filing as a precondition for their validity under Section 233(3) of the 1999 Constitution, they being grounds of either fact or mixed law and fact. The three grounds of appeal, as couched being incompetent having been filed as of right without leave first sought and obtained are liable to be struck out: KASHADADI v. NOMA (2007) 51 WRN 1 (SC).

Ground 2, complaining that “the Court of Appeal misdirected itself on facts— is ex facie clearly, one of facts. It requires leave first sought and obtained before filing, the ground filed as of right is invalid and incompetent.

Ground 3, raises issue of mixed law and fact which also requires leave first sought and obtained. It is couched thus —

The Court of Appeal erred in law when it held that Appellant’s Motion on Notice for leave to enforce the arbitral award sought identical relief as those earlier refused and so an abuse of Court process.

i. both the earlier Motion on Notice and suit No. FCT/HC/CV/809/2000 merely sought declaration as to the validity of the award and an order to make the award a judgment of the Court.

ii. Neither before nor during nor at the hearing of the earlier Motion on Notice nor as part of the relief sought in the substantive suit, was the question of leave to enforce the award an issue. The suit itself did not go for trial having been struck out in limine.

iii. The issue of leave to enforce the award had never been litigated upon before.

iv. The Court is bound by the averments contained in the parties respective cases and as revealed by the records and has no jurisdiction to go outside of these.

v. Not more than one action or application on any issue was before the Court at any material point in time and the issue of multiplication of action on the same issue between the same parties at the same time did not arise.

Ground 4, complaining, without particulars of error, that

The Court of Appeal erred in law when it dismissed the appeal of the Appellant when on record there are enough materials to come to a decision sustaining the appeal

is at best a ground of mixed law and fact, requiring leave first sought and obtained before filing. Without the particulars either of that aspect of law in which the lower Court allegedly erred, or which facts or materials abound allegedly sustaining the decision in the appeal; it is hard to see how the ground meets audi alteram purpose of a ground of appeal. The whole purpose of grounds of appeal is to give notice to the other side of the complaint or the case he is going to meet and address at the appellate Court: NIPC LTD v. THOMPSON ORGANISATION LTD (1969) ALL NLR 134; UGO v. UGO (2017) 18 NWLR (pt. 1597) 218 (SC). The failure of this ground 4 in this regard clearly will inflict denial of fair hearing and miscarriage of justice on the Respondent. The defect is therefore fundamental.

​On this note I come to the firm conclusion, in agreement with the Respondent in his preliminary, that the appeal is incompetent. The Preliminary Objection is hereby sustained. The appeal is incompetent and is hereby struck out with costs at N1,000,000.00 to the Respondent.

Appeal struck out.

SC.214/2009