Optimum Construction & Property (Dev) Ltd V. Ake Shareholdings Ltd (2021)
LAWGLOBAL HUB Lead Judgment Report
EMMANUEL AKOMAYE AGIM, J.S.C.
The applicant and respondent entered into a sublease agreement dated 16-4-2007 and agreed to submit all disputes arising from it to arbitration. A dispute arose between them concerning the applicant’s performance of its obligations in the contract and the dispute was submitted to arbitration by a sole Arbitrator.
Following the conclusion of arbitral proceedings, the sole Arbitrator on 19-8-2011 made an Arbitral award titled “Final Arbitration award, in full and final settlement of the claims in the arbitration as follows:
“ACCORDINGLY, I DO HEREBY AWARD, DECLARE AND DIRECT IN FULL AND FINAL SETTLEMENT OF CLAIMS IN THIS ARBITRATION AS FOLLOWS:
- The Claimant’s claim succeeds in part.
- The Respondent shall within a period of six (6) months from the date of this award, hand over a copy of the Fire and General Insurance of the property to the Claimant and carry out the necessary repair works on the property as identified in Exhibit C7, the Minutes of the Joint Inspection meeting held on the 26th day of August, 2010 and Exhibits C6(i) and (ii) the reports of Ekcel Konsultants dated the 10th day of December, 2008 and February, 2011 respectively.
- The Respondent is allowed relief from forfeiture on condition that within six (6) months from the date of this award in compliance with the sublease it hands over a copy of the Fire and General Insurance of the property to the Claimant and carry out the necessary repair works on the property as identified in Exhibit C7, the minutes of the joint inspection meeting held on the 26th day of August, 2010 and Exhibits C6(i) and (ii) the reports of Ekcel Konsultants dated the 10th day of December, 2008 and February, 2011 respectively.
- The Respondent shall pay the claimants within 30 days of the date hereof the sum of N3,365,000.00 (Three Million, Three Hundred and Sixty-Five Thousand Naira) representing payment for replacement of marble tiles and Generator purchase/Installation/Servicing.
- The Respondent shall pay the Claimant interest on the sum awarded in paragraph 4 above or any amount outstanding on same from the 30th day of this award at the rate of 2.5% per annum until final payment.
- The Respondent shall pay to the Lagos Multi-door Courthouse the administrative fees and arbitration session fees, any amount paid by the Claimant shall be reimbursed by the Respondent to the Claimant forthwith and any amount remaining unpaid shall bear interest at the rate of 2.5% per annum from the 30th day of this Award.”
By a motion on notice filed on 3-5-2012, the respondent herein applied to the High Court of Lagos State for-
“1. Order granting leave to the Claimant/Applicant to enforce the Final Arbitration Award dated 19th August, 2011 of Mrs. Adedoyin Oyinkan Rhodes-Vivour (FCIArb) against the Defendant/Respondent in the same manner as a judgment of the Court to the same effect.
- An order of the Court enforcing Clause 3 of the said Final Arbitration Award dated 19th day of August, 2011, forfeiture of the sublease agreement dated 16th April, 2007 against the Defendant/Respondent in the same manner as a judgment of the Court to the same effect.”
The grounds for the application stated on the motion read thusly- “The Respondent has failed to comply with Clause 2 of that part of the said Final Arbitration Award regarding the carrying out of “necessary repair works on the property as identified in Exhibit C7, the minutes of the joint inspection meeting held on 26th August, 2010 and Exhibits C6(i) and (ii) the Reports of Eckel Konsultants dated 10th December, 2008 and February, 2011 respectively as directed by the Arbitrator in the said Final Arbitration Award dated 19th August, 2011.”
On 4-7-2013, the High Court of Lagos State rendered its ruling and held that the arbitral award “was inconclusive as to Award No. 3 thereof and therefore, unenforceable” and struck out the application for being incompetent.
Dissatisfied with the ruling of the High Court of Lagos State, the respondent herein, on 26-9-2013, filed a notice of appeal against the said ruling, commencing Appeal No. CA/L/990/2013 in the Court of Appeal sitting in Lagos.
On 6-3-2015, the Court of Appeal delivered its judgment in the appeal, holding inter alia thusly- “The arbitral award (supra) is clear, unequivocal or unambiguous. There is no complaint that it contains decisions on matters beyond the range of the submission to arbitrations There is also no indication that the sole arbitrator misconducted herself, nor was evidence put forward to suggest the arbitral proceedingsand/or the award has been improperly procured. None of the vitiating factors (supra) was made out.
The award itself is final and conclusive and is based on solid, persuasive, and tested expert evidence which is uncontroverted and bears weight and admissibility which persuaded the sole arbitrator, aright in my view, to base the award on the said one way expert evidence in Exhibit ASL/3 after close examination of it.
In addition, the arbitral award (supra) was accepted by the respondent and the appellant as binding on them without whimper of protest. Being a final/conclusive and crystal clear award the Court below should have enforced the arbitral award as judgment without ado, all the more so it did not offend the three preconditions in Sections 29 and 30 of the A.C.A. enumerated.
With deference to the Court below, the award (supra) is not doubtful on its face. It is valid, enforceable, and should have been enforced summarily for promptitude and convenience. Because the award had granted the relief from forfeiture of the sublease in favour of the respondent only on condition that the respondent within 6 (six) months of the award hands over acopy of the Fire and General Insurance of the demised property to the appellant and, in addition, the respondent carries out the necessary repair work on the demised property as identified and specified in the award which the respondent has breached, therefore the award (supra) is in that wise conclusive and enforceable, in my modest view. The respondent did not discharge the dual obligation placed on it by the final arbitral award (supra) as stipulated therein. The award (supra) became spent by the inactivity of the respondent. Having flouted the terms of the arbitral award (supra), the respondent lost the protection of the relief from forfeiture of the sublease. And it required an order of Court to formally terminate it.
So the Court below had something to enforce in the award. It should have made an order setting aside and/or revoking the said award of the relief from forfeiture. The appeal is therefore meritorious. I would allow it.
The order of the Court below refusing to enforce the award and striking out the action is hereby set aside.
By Section 15 of the Court of Appeal Act 2004, the Court takes the place of the Court belowwith respect to the case on appeal. In light of the fact that a further evidence is needed as all that is required to do justice to the case is in the record, I invoke Section 15 of the Court of Appeal Act to enforce the award by revoking the award of relief from forfeiture which was made conditional or contingent upon the fulfillment by the respondent of the two conditions stated in the award within the time frame of 6 (six) months (supra) which the respondent breached. The respondent shall pay N30,000.00 costs to the appellant.”
Dissatisfied with the judgment of the Court of Appeal, the appellant commenced appeal no. SC/546/2015 by filing a notice of appeal on 10-4-2015, containing 7 grounds for the appeal. The said appeal was entered in this Court on 11-8-2015.
By a motion on notice filed on 1-3-2016, the applicant applied to this Court for an order enlarging the time to seek leave to appeal on grounds 1, 3, 4, 5, 6 and 7 of the grounds of appeal in the notice of appeal filed on 10-4-2015, being grounds of facts or mixed law and facts, leave to so appeal on the said grounds in that notice of appeal, extension of the time to so appeal on the said grounds, an order deeming the said notice of appeal filed on 10-4-2015 and the grounds of appeal therein as properly filed and served, an order deeming the record of the appeal compiled and transmitted to the registry of this Court on 24-7-2015 as properly transmitted. The respondent filed a counter-affidavit in opposition to the application.
On 4-10-2016, the respondent herein filed a motion on notice applying for the dismissal of Appeal No. SC/546/2015 for lack of diligent prosecution consequent upon the failure of the appellant to file brief over one year after entry of the appeal. On 4-11-2016, the appellant applied for extension of time to file its brief and to deem the brief it then filed as proper. The application was granted. On 19-9-2017, the respondent sought to raise a preliminary objection against the competence of the appeal. This Court ordered that “parties are hereby ordered to rely on arguments for and against the preliminary objection the respondent seeks to raise in their respective briefs and same shall be taken along with the appeal.” The respondent then filed its brief and raised therein a preliminary objection that the noticeof appeal filed on 10-4-2015 was incompetent because all the grounds for the appeal were of facts or mixed law and facts and no leave of Court was first obtained to appeal on those grounds before the notice of appeal was filed.
This Court, however decided to hear the appellant’s motion filed on 1-3-2016 seeking to regularize the notice of appeal that commenced Appeal No. SC.546/2015. After considering the respective affidavits of the parties and their written addresses, this Court on 22-5-2020, rendered its ruling, holding that since all the grounds of appeal in the notice of appeal are of facts or mixed law and facts and no leave of Court to appeal on those grounds as required by Section 233(3) of the 1999 Constitution, was first obtained before it was filed, the notice of appeal was incompetent and consequently, this Court lacked the jurisdiction to entertain the appeal. This Court then dismissed the application.
On 4-8-2020, the applicant herein filed another application applying for reliefs that are the same with the reliefs in the application dismissed by this Court in its ruling of 22-5-2020, save that the reliefs asked for in this applicationapplied to all the grounds in the notice of appeal filed on 10-4-2015. The applicant by another motion on notice filed on 23-10-2020 applied for an order setting aside this Court’s ruling on 22-5-2020 and three other reliefs that are exactly the same with the reliefs sought for in the motion filed on 4-8-2020. On 2-2-2021, the applicant withdrew the motion filed on 4-8-2020 and the one filed on 23-10-2020.
On 4-2-2021, the applicant commenced afresh the process of appealing against the Court of Appeal judgment in Appeal No. CA/L/990/2013 by filing another motion on notice with No. SC/CV/102/2021 praying for-
“1. AN ORDER of this Honourable Court enlarging the time within which the Applicant may seek leave to appeal on ground 1, 2, 3, 4, 5, 6, 7 and 8 which are grounds of facts or mixed law and facts, contained in the Proposed Notice of Appeal (Exhibit J), against the decision of the Court of Appeal, Lagos Judicial Division (Coram: Sidi Bage, Joseph Ikyegh and Tijjani Abubakar JJCA) in Appeal No: CA/L/990/2013 between Ake Shareholdings Limited v. Optimum Construction & Property Development Company Ltd. delivered on 6th March, 2015.
- AN ORDER of this Honourable Court granting leave to the Applicant to appeal on grounds 1, 2, 3, 4, 5, 6, 7 and 8 which are grounds of facts or mixed law and facts, contained in the Proposed Notice of Appeal (Exhibit J) against the decision of the Court of Appeal, Lagos Judicial Division (Coram: Sidi Bage, Joseph Ikyegh and Tijjani Abubakar JJCA) in Appeal No: CA/L/990/2013 between Ake Shareholdings Limited v. Optimum Construction & Property Development Company Ltd. delivered on 6th March, 2015.
- AN ORDER of this Honourable Court enlarging the time within which the Applicant may appeal on grounds 1, 2, 3, 4, 5, 6, 7 and 8 which are grounds of facts or mixed law and facts, contained in the Proposed Notice of Appeal (Exhibit J) against the decision of the Court of Appeal, Lagos Judicial Division (Coram: Sidi Bage, Joseph Ikyegh and Tijjani Abubakar JJCA) in Appeal No: CA/L/990/2013 between Ake Shareholdings Limited v. Optimum Construction & Property Development Company Ltd. delivered on 6th March, 2015.
The application is supported by an affidavit of 9 paragraphs, documentary Exhibits A to I, and a written address of same, further affidavit filed on 11-3-2021 and further affidavit filed on 12-3-2021 and a written reply on points of law.
The respondent filed a counter-affidavit of 4 paragraphs accompanied by documentary Exhibits A to F and a written address in opposition of the application.
The applicant’s written address raised one issue for determination as follows – “whether the applicant is not entitled to the reliefs sought, considering the facts and circumstances of this application.”
The respondent’s address reproduced and argued the issue raised for determination in the appellant’s brief and also raised for determination the following issue- “whether this application is an abuse of process in view of the fact that the respondent’s preliminary objection argued in the respondent’s brief filed on the 6th February, 2018 and the applicant’s motion filed on the 1st March, 2016 and this present application have already argued all the same issues.”
I think the issue of abuse of process by re-litigation of the same issues raised in the respondent’s brief should be determined first as it touches on whether the merit of this application deserves any consideration.
The learned Counsel for the respondent argued that this application is the same with the one applicant filed on 1-3-2016, that the issues raised and argued concerning that application are the same with the issues raised in this application, that those issues were argued in the briefs already filed by the parties before the motion to regularize the appeal was filed, that the hearing and dismissal of that application by this Court effectively determined the issues in that application, that by this application the applicant seeks to re-litigate those same issues and that this application is an abuse of the process of this Court.
Learned Counsel for the applicant argued in reply that this Court’s ruling of 22-5-2020 dismissing the application of 1-3-2016 does not constitute a bar to the present application, that the refusal of an application for extension of time to seek leave to appeal does not constitute a bar to a similar application, that this Court has the discretion to hear an application identical to the one previously dismissed, that this Court has held in Edilcon (Nig.) Ltd v. UBA Plc. (2017) 18 NWLR (Pt. 1596) 74 at 93 that it has wide discretionary power toconsider identical application that have been dismissed by it, that this application is not an abuse of the process of this Court, that an exercise of the right to appeal bona fide cannot be an abuse of Court process.
Let me now determine the merits of the arguments of both sides.
It is clear from the reliefs prayed for in the motion of 1-3-2016 and the affidavit supporting it, that the application was brought by the applicant upon realizing that it needed leave of Court to appeal on the grounds contained in the notice of appeal it filed on 10-4-2015 and therefore should have obtained the leave to appeal on those grounds, being grounds of fact or mixed fact and law, before it filed the said notice of appeal on 10-5-2015 against the said judgment of the Court of Appeal. The application was brought to regularize the said notice of appeal of 10-4-2015 that commenced Appeal No. SC.546/2015 and deem it as regularly filed and served. This Court held that without the leave to appeal first obtained, the notice of appeal filed on 10-4-2015 was ab initio void and that since something cannot stand on nothing the appeal it commenced and all the processes filed therein including the application of 1-3-2016 were void.
In situations such as this, the proper course open to a party who desires to appeal, is to commence afresh the process of fulfilling the conditions precedent to filing a valid appeal, by applying for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal under a new appeal number. There is no law prohibiting the prospective appellant from doing so. The fact that briefs had been filed by the parties to the appeal, that the issue of lack of leave to appeal had been raised and argued in the briefs before the application of 1-3-2016 was filed, the dismissal of the application cannot operate to bar the applicant from commencing afresh the process of appealing. Once it is adjudged that a Court ab initio lacked the jurisdiction to entertain any case, everything done or step taken in the proceedings is a nullity on the principle ex nihilo nihil fit. The stage of the proceedings in which such a decision was made is immaterial. The fact that the decision was made after briefs in the appeal had been filed and during the pendence of objection that the appeal was incompetentfor lack of leave of Court to bring it, would not transform it into a determination that would put finality to the case. The dismissal of an appeal on the ground that the required leave of Court to bring it was not first obtained before it was filed, does not determine the merit of the appeal and cannot finally determine the appeal so as to bar the exercise of a right of appeal to properly appeal. To hold otherwise would contradict and defeat the decision of this Court that leave of Court not having been first obtained to bring the appeal, the notice of appeal was incompetent, that the Court lacked the jurisdiction to entertain the appeal for that reason and that the notice of appeal, the appeal and the proceedings therein are a nullity.
The law is established that the proper order to make where an appeal is incompetent and therefore robs the Court of jurisdiction to entertain it, is to strike it out. It is not appropriate to dismiss such an appeal, as a dismissal suggests that that the appeal was determined on merits or finally. Where, as in this case, an order of dismissal is made, it would have the effect of a striking out and would not put finality to the case and bar further litigation of the dispute in the appeal. This Court in Obasi Brothers Merchant Co. Ltd. v. Merchant Bank of Africa Securities Ltd. (2005) 2 SCNJ 272 at 279 had restated that “it is not in all cases where a matter is dismissed that it completely terminates the case. Indeed, where a case is said to have been dismissed in the High Court but the circumstances show that such dismissal could not possibly connote or denote the determination as to put finality to the case, the Court views such dismissal as mere striking out”. In Okolo V Union Bank Nig Ltd (2004) 2 SCM 187, this Court held that “when a Court lacks jurisdiction to entertain a suit for any reason, the proper order to make is to strike it out and not to dismiss it”. In Kogi State V Yakubu (2001) 5 NSCQR 598 at 607, this Court had held that “When a Court finds an action improperly constituted, the proper order to make is to strike it out and not to dismiss it”. See also Abiegbe v. Ugbodume (1973) 1 SC 103 and Adesokan V Adetunji (1994) 6 SCNJ 123.
Another question thrown up by the argument of Learned Counsel for the respondent is whether the application of 4-2-2021 is a re-litigation of the same issues litigated in the application of 1-3-2016 and decided by this Court on 22-5-2020. The answer is no because the facts and issues are different in the two applications.
The application of 1-3-2016 was made during the pendence of appeal No. SC.546/2015 commenced by a notice of appeal filed on 10-4-2015 without leave of Court and the issue was the regularization of the pending appeal and processes therein. This application is made when no appeal is pending and seeks to secure the fulfillment of the condition precedent to bringing a valid appeal. The purpose of the application is to obtain extension of time to seek leave to appeal, leave to appeal and extension of time to appeal. The issue here is whether the applicant should be granted extension of time to seek leave to appeal, leave to appeal and extension of time to appeal. The issue that was determined in the application of 1-3-2016 in Appeal No. SC.546/2015 was whether the notice of appeal in Appeal No. SC.546/2015 could be regularized so as to validate the appeal.
In the light of the foregoing, I hold that this instant application is not an abuse of Court process.The applicant acted reasonably by bringing this application to commence afresh the process of satisfying the conditions precedent to a valid appeal. It is a bona fide and legitimate exercise of his constitutional right of appeal. No law prohibits such application. There is nothing to show that the application is mala fide or is an improper or vexatious use of a legal process. As held by this Court per Oputa, JSC in Amaefule & Anor v. The State (1988) LPELR – 450 (SC) “Abuse of process of Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process…. The term abuse of process has an element of malice in it. It thus has to be a malicious perversion of a regularly issued process, civil or criminal, for a purpose, and to obtain a result not lawfully warranted or properly attainable thereby…” See also Attahiru v. Bagudu (1998) 3 NWLR (Pt. 543) 636 at 658 and Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156.
The question of whether the application is an abuse of Court process is resolved in favour of the applicant.
Let me now consider the sole issue raised for determination in the applicant’s written address. It asks – “Whether the applicant is not entitled to the reliefs sought, considering the facts and circumstances of this application.”
I have carefully read and considered the arguments in the written address of each party on this issue.
The power of this Court to extend the time prescribed by Section 27(2) of the Supreme Court Act 2004 to appeal or apply for leave to appeal from the judgment of the Court of Appeal is vested on it by Subsection (4) of Section 27 of the said Act. But the practice and procedure of this Court on how to exercise that power is regulated by Order 2 Rule 31 of the Supreme Court (Amendment) Rules, 2014 which states in the Proviso to Sub-rule (1) of the said Rule 31 that extension of time may be granted only in exceptional circumstances. This means that extension of time to apply for leave to appeal or to appeal should not be granted unless exceptional circumstances exist that warrant its grant.
Sub-rule (2) of the same Rule 31 provides inter alia, that the application must be accompanied by an affidavit setting forth good and substantial reasons for the failure to appeal or to apply for leave to appeal within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard. By virtue of this provision, the exceptional circumstances that should warrant the grant of extension of time to appeal or apply for leave to appeal are the existence of facts showing good and substantial reasons for the delay and grounds of appeal that prima facie show good cause why the appeal should be heard. In a long line of cases, this Court has restated, while applying this provision, that these two circumstances must co-exist to warrant the grant of an application for extension of time to appeal or for leave to appeal.
Let me determine if the affidavit in support of the application discloses good and substantial reasons for the failure of the applicant to apply for leave to appeal or appeal within time and if the proposed grounds of appeal show good cause why the appeal should be heard.
It is obvious from the fact that the notice of appeal against the 6-3-2015 judgment of the Court of Appeal in Appeal No. CA/L/990/2013 was filed on 10-4-2015, within 35 days after the said judgment, that the applicant did not delay in engaging and instructing a legal practitioner to appeal against the said judgment. It is not in dispute that the said Legal Practitioner was not diligent in commencing the appeal, as he failed to first obtain leave to appeal on grounds of facts or mixed law and facts before filing the notice of appeal of 10-4-2015.
It is this lack of diligence of counsel that prevented the appellant from filing a valid appeal within 3 months after the date of judgment of the Court of Appeal as prescribed by Section 27(2) (a) of the Supreme Court Act, 2004. It is this lack of diligence on the part of counsel that resulted in his failure to file the proper application for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal after the appeal filed on 10-4-2015 was adjudged incompetent and the application to regularize the appeal dismissed.
On 4-8-2020, he filed a motion on notice praying for the regularization of the notice of appeal that this Court had on 22-5-2020 adjudged incompetent and struck out.
On 23-10-2020, he filed a motion on notice praying for an order to set aside this Court’s decision of 22-5-2020 and extension of time for the appellant to seek leave to appeal, leave to appeal and extension of time to appeal. He withdrew the two motions of 4-8-2020 and 23-10-2020 and filed the instant application.
The applicant is now relying on this tardiness and lack of diligence of its Legal Practitioner as a good and substantial reason for the delay in bringing this application within 3 months after the judgment of the Court of Appeal on 6-3-2015.
There is nothing to show that the applicant was aware that its legal practitioner had not filed a competent appeal or had not taken the right legal steps to file one. It is obvious that the applicant was not in a position to know without being so informed, since it has no knowledge of what should be the competent legal processes. I think that in this situation, the tardiness and lack of diligence of its Legal Practitioner should be accepted as a good and substantial reason for the applicant’s failure to apply for leave to appeal or appeal within time. This is the established judicial practice through the cases. In Imegwu V Okolocha & Ors (2013) LPELR-19886(SC), this Court held that “in view of the settled principle of law that a litigant should not be punished for the mistake or inadvertence of his counsel, an application for extension of time to appeal ought to be granted if the Court is satisfied that the failure to appeal within the period prescribed by law was due to the true and genuine mistake or error of judgment of counsel. In other words the Court must be satisfied that the excuse is availing having regards to the facts and circumstances of the case.” In Shanu v. Afribank (Nig.) Plc. (2000) 13 NWLR (Pt. 684) 392 at 403, this Court held that “Counsel’s error of judgment, if reasonable, is an acceptable explanation for delay to apply for leave to appeal or to appeal within the prescribed time is now undoubted”. In Bowaje v. Adediwura (1976) 6 SC 143 at 147, this Court restated that-
“This Court would readily exercise its discretion to extend the period prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period was caused by the negligence or inadvertence of his counsel.”
I think this principle covers a situation where counsel may not have been negligent or inadvertent, but genuinely misconceived the fact or law involved in a matter, consequently causing a delay in taking the appropriate step in a given circumstance.”
In Lamai v. Orbih (1980) 12 NSCC 188 at 194, this Court restated thusly-
“This Court has held repeatedly that it will not bring to bear on the fortunes of the parties to an appeal the disastrous effect of the negligence or inadvertence of Counsel to take within time, the steps prescribed by law to bring any matter properly before the Court, when proper applications are made to extend the period prescribed by law for taking such steps. In this regard, I refer to the case of Tuji Bowaje v. Moses Adediwura (1976) 6 S.C. 143 where at p. 147, Bello J.S.C. (delivering the Ruling of this Court) said: “This Court would readily exercise its discretion to extend periods prescribed for doing an act if it is shown to the satisfaction of the Court that the failure of the party to do the act within the prescribed period was caused by negligence or inadvertence of counsel (see TAA. Doherty & Anor. v. R.A. Doherty (1964) 1 All N.L.R. 299 and G.B.A. Akinyede v. The Appraiser (1971) 1 all N.L.R. 162).”
Let me now consider the question of whether the grounds of the proposed appeal prima facie show good cause why the applicant should be granted leave to appeal.
I have carefully read and considered the arguments of both sides on this issue.
Learned counsel for the applicant has reproduced all the grounds in the proposed appeal in the applicant’s written address and argued that they prima facie show good cause why the appeal should be heard.
Order 2 Rule 31(2) of the Supreme Court (Amendment) Rules 2014 require that the application for extension of time to apply for leave to appeal or leave to appeal or application for extension of time to appeal be accompanied by the copy of the judgment against which the proposed appeal is to be brought, a copy of other proceedings necessary to support the complains against the judgment and the proposed grounds of appeal. These three documents must be considered to determine if the grounds of appeal prima facie show good cause why the appeal should be heard.
The law is established that in determining if the proposed grounds of appeal prima facie show good cause why the appeal should be heard, the Court is not to decide if the appeal will succeed or fail on the proposed grounds and should only decide if the grounds are substantial, arguable or triable. Experience has shown that it is difficult to draw a dividing line between the two types of decisions. In Imegwu v. Okolocha & Ors (supra), this Court highlighted this challenge thusly – “He is however not expected to show that the appeal will succeed, yet he is expected to exhibit good grounds showing reasonable prospect of success in the appeal.” In most cases, not much is left to be determined after a Court has decided that a proposed ground of appeal is substantial or arguable or not. This is because such a decision result from the analysis of the grounds, the judgment sought to be appealed against and other proceedings. To avoid the risk of deciding the success or failure of the grounds of appeal at this stage, the judicial practice of a cursory glance at the proposed grounds of appeal alone and pronouncing them as arguable without reasons for the conclusion, has developed and become prevalent.
The result is that applications for extension of time to appeal or seek leave to appeal are routinely granted as a matter of course contrary to the Proviso to Sub-rule (1) of Rule 31 of Order 2 of the Supreme Court (Amendment) Rules 2014 and similar provisions that prescribe that application for enlargement of time to appeal or seek leave to appeal be granted only in exceptional circumstances. This proviso and the prescription of Sub-rule (2) of the same Rule 31 that the affidavit in support of the application be accompanied by the judgment sought to be appealed against, the proposed grounds of appeal that prima facie show good cause for the appeal to be heard and a copy of other proceedings necessary to support the complaints against the judgment place a duty on the Court to which the application is made to thoroughly scrutinize the above mentioned documents to find out if the appeal has any substance worthy of consideration so as to avoid the abuse of the appellate process by frivolous and vexatious appeals. By this process, illegitimate appeals such as academic appeals, vexatious appeals, appeals brought for the sole purpose of enhancing the professional standing of a legal practitioner would not be allowed. Illegitimate appeals are those that are brought for purposes other than the pursuit of the substantial justice of the dispute between the parties. In Imegwu V Okolocha (2013) LPELR-19886(SC), this Court refused the application for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal on the ground inter alia that the proposed appeal had become academic. It is glaring that such a conclusion cannot be derived from a cursory glance of the grounds of appeal.
It is in the light of the foregoing that I will thoroughly scrutinize the grounds of this appeal arising from the enforcement of an unchallenged arbitral award to find out if the grounds show reasonable prospect of success.
I do not think that ground one of the proposed appeal prima facie show such good cause. The exact text of the ground reads thusly-
“GROUND ONE
The learned justices of the Court erred in law when their Lordship heard the appeal herein against the judgment of the High Court of Lagos State, per Hon. Justice Olateru-Olagbegi (retired) delivered on the 4th day of July, 2013, which the Respondent were not served with the processes in this appeal.
PARTICULARS OF ERROR
i. The appellant did not serve the processes in this appeal on the Respondent.
ii. The rules of the Court of Appeal require that processes in respect of an appeal shall be served personally on the Appellant.
iii. The processes in respect of the hearing of appeal were served on the former counsel to the Appellant – MESSRS TOYIN PINHEIRO & CO., who did not have the instructions of the Appellant to represent them at the Court of Appeal.
iv. The Appellant was not aware of the proceedings conducted at the Court of Appeal, till judgment was delivered.
v. The Respondent is aware of the address of the Appellant but refused and neglected to effect personal service of the Notice of Appeal and processes issued at the Court of Appeal on the Appellant.
vi. There is no proof of service of the processes in respect of hearing of the appeal on the Appellant.”
What is clear from this ground is that the applicant is alleging that the processes in that appeal were not served personally on it, that the processes were served on its legalpractitioners at the trial Court and that the said legal practitioners do not have its instructions to represent it at the Court of Appeal. Particulars of error No. iii that contains these admissions defeats ground one and renders it unarguable and frivolous by virtue of Order 2 Rules 3 and 4 of the Court of Appeal Rules 2016 which provide that-
“3. Where in any proceeding in the Court below, a party has given an address for service, notice of appeal from any decision made under such proceeding may be served on such party at such address for service, and notice of any application preparatory or incidental to any such appeal, may be served in like manner at any time before the date on which the Respondent gives notice of his address for service in accordance with the immediately following Rule.
4.-(1) Every person who by virtue of service on him of a notice of appeal becomes a Respondent to any appeal or intended appeal shall within thirty days after service on him of the notice of appeal file twenty copies with the registrar of the Court below notice of a full and sufficient address for service in such number of copies as the said registrar shallrequire. The registrar of the Court below shall forthwith send a copy thereof to be served on the Appellant.
(2) Such notice may be signed by the Respondent or his legal representative.
(3) If any Respondent fails or omits to file such notice of address for service, it shall not be necessary to serve on him any other proceeding in the appeal or any notice of hearing thereof.”
The applicant, upon the service of the notice of appeal against the judgment of the trial High Court to the Court of Appeal was bound to file with the Registrar of the High Court, 20 copies of a notice of full and sufficient address for service within 30 days of the service of the notice of appeal on its Legal Practitioner at the High Court. The particulars of error of ground one did not allege that it filed such notice of address. Without filing such notice, the complain in ground one lack substance, is frivolous and does not deserve a hearing.
It is obvious from the clear terms of the judgment of the High Court and the Court of Appeal that Grounds 2, 3, 4, 5, 6, 7 and 8 of the proposed notice of appeal which deals with the merit of the judgment do not prima faciedisclose good cause for leave to bring the appeal. The record of the judgment of the High Court that the applicant did not refuse to recognize the arbitral award and was only opposed to the enforcement of award No. 3 on the ground that the respondent did not show the existence of the facts that justify the loss of the applicant’s relief from forfeiture.
The trial Court refused to enforce the award on the ground that it has no jurisdiction to determine if the applicant complied with the directives in award no. 3, that it is the sole arbitrator that has that power and that award no. 3 is therefore inconclusive.
The Court of Appeal reversed the decision of the trial Court, holding that the award was clear, unambiguous, final and conclusive, that the applicant herein accepted the award, that the trial Court should have enforced the award and that there was no basis for refusing to enforce the award. The Court of Appeal set aside the decision of the trial Court refusing to enforce the award and the order striking out the application and enforced the said award.
The gist of the applicant’s case in grounds 2 to 8 of its proposed notice of appeal isthat the award is not final and conclusive in that it directs that the applicant to hand over a copy of the Fire and General Insurance of the Property to the respondent and carry out repair works on the property within six months from the date of the award, that the applicant shall forfeit occupation of the property under the sublease if it fails to comply with this directive within six months, that the question of whether the applicant has complied with the directives in the award remains open for determination by the Arbitrator and that until the arbitrator determines that question, the award is not final and remains inconclusive and unenforceable.
It is clear from the express terms of the award that the arbitrator intended it to be a final and conclusive resolution of the dispute between the parties and did not leave any factual issue for further determination by the Arbitrator. The prescription of a period of six months within which the directives in the award should be carried out, did not make the award inconclusive. The award became enforceable upon the expiration of the said period of six months. In any case, the law implies in the clause in thesub-lease to refer disputes arising under it to arbitration, the intention and agreement of the parties to the contract that an award made in the arbitration would be final and binding on the parties. This Court approved the statement of law on the effect of an arbitral award in Halsburys Laws of England, Fourth Edition, paragraph 611 at page 323 in Kano State Urban Dev. Board V Fanz Construction Co. Ltd (1990) 6 SC 103 thusly – “The effect of the award is such as the agreement of reference expressly or by implication prescribes. Where no contrary intention is expressed and where such provision is applicable, every arbitration agreement is deemed to contain a provision that the award is to be final and binding on the parties and any person claiming under them respectively. The publication of the award thus extinguishes any right of action in respect of the former batters indifference but gives rise to a new cause of action based on the agreement between the parties to perform the award implied in every arbitration agreement.”
The issue of whether the award is enforceable can be determined by the Court to which an application to enforce the award is made by virtue of the jurisdiction given to it by Section 31 of the Arbitration and Conciliation Act to enforce the award. Since the award was made in an arbitral proceedings, brought pursuant to a written agreement to refer disputes in the sub-lease to arbitration, it determined the applicant’s contractual liability to repair the lease property and deliver a copy of the Fire and General Insurance of the property to the respondent and was not only declaratory and the applicant accepted the award and did not challenge its validity, the trial Court was bound to summarily enforce it by virtue of Section 31 of the Arbitration and Conciliation Act. There is no feature in the case that renders the enforcement of the award unreasonable or wrong. See Kano State Urban Dev. Board V Fanz Construction Co Ltd(supra).
There was no doubt about the award. By virtue of the said Section 31, the award ought to be summarily enforced as it is by the trial Court as an existing judgment as there is no doubt about it. See Commerce Assurance Ltd V Alli (1992) 4 SCNJ 145.
This protracted litigation over the summary enforcement of an unchallenged arbitral award defeats the purpose of the arbitration clause in the sub-lease agreement. The parties to an agreement include an arbitration clause to avoid litigation and resolve their dispute through arbitration, to obtain a fair, consensual and non-hostile resolution of disputes by an impartial third party without unnecessary expense and delay.
In the light of the foregoing, I hold that the grounds of the proposed appeal do not prima facie show good cause why the appeal should be heard.
As it is, the affidavit in support of the application has shown good and substantial reasons for the failure to appeal or apply for leave to appeal within time, but the grounds of appeal prima facie do not show good cause for the appeal to be heard. It is settled case law that by virtue of the provisions of Order 2 Rule 31 of the Supreme Court (Amendment) Rules 2014 and similar other provisions, these two conditions must co-exist before this application can be granted. However, the Courts in many decisions have given paramount consideration to the requirement that the proposed grounds of appeal must have substance. So that in cases where the affidavit did not disclose reasons orsubstantial and good reasons for the delay, but the proposed grounds of appeal show a reasonable chance of success, the Courts have exercised their judicial discretion to grant the application to do substantial justice. See for example Minister of Petroleum and Mineral Resources & Anor V Expo Shipping Line Nig Ltd (2010) LPELR-3189(SC).
Since the grounds of this appeal do not prima facie show good cause for the appeal to be heard, this application is hereby refused. It is accordingly dismissed.
The applicant shall pay costs of 500,000.00 naira to the Respondent.
SC.102/2021(R)
