HARTAL (NIG.) LTD v. MIDMAC CONSTRUCTION (NIG.) LTD (2022)

HARTAL (NIG.) LTD v. MIDMAC CONSTRUCTION (NIG.) LTD

(2022)LCN/16780(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, July 14, 2022

CA/A/121/2019

Before Our Lordships:

Biobele Abraham Georgewill Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

HARTAL NIGERIA LIMITED APPELANT(S)

And

MIDMAC CONSTRUCTION NIG. LTD. RESPONDENT(S)

RATIO

THE JURISDICTION OF THE APPELLATE COURT

It is very important not to lose sight of the fact that jurisdiction, especially of an appellate Court is derived from the constitution or statute of the National Assembly or a State House of Assembly. Having said that, it ought to be borne in mind, also, that this Court has no inherent appellate jurisdiction, and its jurisdiction cannot be exercised outside its powers, unless such jurisdiction is conferred by the constitution or some statute; see AKUJINWA V NWAONUMA (1998) LPELR-391-SC, ADELEKAN V ECU-LINE NV (2006) LPELR-113-SC and NWAIGWE V OKERE (2008) LPELR-2095-SC. PER MUSTAPHA, J.CA.

THE POSITION OF LAW ON THE INTERPRETATION OF STATUTES

In this regard, it is also important to bear in mind the trite position of the law that, where the words of a statute are clear and unambiguous, such words ought to be given effect, notwithstanding whether they sometimes leave a sour taste in the mouth; see A.G. BENDEL STATE V A.G FEDRATION (1982) 3 NCLR 1 and IMAH V OKOGBE (1993) 1 NWLR part 316 page 159. PER MUSTAPHA, J.CA.

THE POSITION OF LAW ON THE INTENTION OF THE LEGISLATURE

The intention of the legislature is not deciphered by a presumptuous speculation of what one thinks the legislature could have meant, but the actual meaning of the words used by the legislature, from which the Court could find their intention. There is no room for speculation, as Courts are avers to speculation.
Where the words of a Statute are clear and unambiguous, it is unnecessary to travel beyond the Act for the purpose of construing them; See ONA V. ATENDA (2000) 5 N.W.L.R PART 656 PAGE 244 AT 256-287 PARAS F-B, P.D.P. V. I.N.E.C. (1999) 11 N.W.L.R PART 262 PAGE 200 AND DYKTRADE V. OMNIA NIG LTD (2000) 12 N.W.L.R PART 680 PAGE 1 AT 9 PARAS F – G.
I am in total agreement with learned counsel for the Respondent in his vehement contention that Courts must give effect to statutes as they are. The intention of the legislature is paramount and discernible only by reference to the words used in the very statutes being interpreted and applied; SEE N.D.I.C. V. OKEM ENT. LTD (2004) 10 NWLR (PT. 880) 107 and AG LAGOS STATE V. AG FEDERATION (2004) 18 NWLR (PT. 904) 1. The words used in the Arbitration and Conciliation Act are plain and simple, and effect has to be given to them in this regard. PER MUSTAPHA, J.CA.

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of the FCT dated the 21st of November, 2018 in FCT/HC/CV/3098/17, presided by Hon Justice U.P. Kekemeke appointing Tunyan, SAN as the 2nd arbitrator, following a dispute between the Appellant and the Respondent.

FACTS IN BRIEF:
The Respondent instituted an action against the Appellant at trial by an originating motion on notice dated the 26th of June, 2018; see pages 47 to 81 of the record of appeal. The motion sought for an order of Court appointing an arbitrator for the Appellant, in line with the parties’ agreement at pages 120 to 128 of the record of appeal.

The Appellant filed a counter affidavit in opposition on the 17th of September, 2017, see pages 82 to 100 of the record, in response to which the Respondent filed a further affidavit in support of the originating motion on the 24th of September, 2017, see page 101 of the record of appeal.

The Court in its judgment delivered on the 21st of November, 2018 found in favour of the Respondent, appointing the 2nd arbitrator. Dissatisfied with this decision the Appellant appealed by a notice of appeal, first filed on the 7th of December, 2018 later amended on the 26th of April, 2019 on two grounds as follows:-
GROUNDS OF APPEAL
GROUND 1:
The Learned trial Judge erred in law when he held thus:
“… I therefore, adopt my reasoning in the judgment in the said Suit CV/3097/17 delivered on 22/10/18 in this suit. The application succeeds. It is granted as prayed…”
and thereby occasioned a miscarriage of justice.
PARTICULARS OF ERROR
a) The lower Court lacked the jurisdiction to determine the originating motion.
b) The appellant challenged the jurisdiction of the trial Court with respect to the Originating motion.
c) The Court found the appellant’s argument with respect to jurisdiction as lacking in merit in the said Suit No. CV/3097/17 delivered on 22/10/2018.
d) The Notice of reference to and commencement of arbitration as well as Originating motion are fraudulent.
e) Chief Joel David, the Managing Director of DIL Dave Jae International Ltd and a sub contractor to the respondent fraudulently used the respondent’s name to commence the Originating Motion.
f) The evidence of fraud was not challenged, controverted or contradicted by the respondent.
g) The evidence of fraud was not considered and acted upon by the Court,
GROUND 2:
The Learned trial Judge erred in law when he failed to consider the issue of abuse of Court process raised by the appellant.
PARTICULARS OF ERROR
a} The respondent filed two (2) Originating Motion dated 6/10/2017 and 26/6/2018 respectively against the appellant and for the same reliefs.
b) The respondent’s Originating Motion dated 6/10/2017 was not withdrawn and struck out before the Originating motion dated 26/6/2018.
c) The Originating motion dated 26/6/2018 upon which the said judgment is predicted is an abuse of Court process.
d) The Originating Motion was brought mala fide in the name of the Respondent by Chief Joel David without the authority of the Respondent.
e) The appellant demonstrably showed that neither the Managing Director nor the Board of Directors of the respondent authorized the notice of reference to arbitration and the Originating Motion.
f) The Respondent was not shown to have authorized the Originating Motion.
g) The Court is obligated to consider and determine the issue of abuse of its process.

From these grounds of appeal, the Appellant formulated two issues for determination; the Respondent also formulated two issues of its own, which are fundamentally the same with those of the Appellant, except for semantics. The appeal will be determined on the issues formulated on behalf of the Appellant; they are thus:
1. Whether the lower Court had jurisdiction to determine the originating motion having regard to fraud and other features on record, particularly unchallenged appellant’s counter affidavit.
2. Whether having regard to the circumstances of this case and the affidavit evidence on record, the originating motion constituted an abuse of Court process.

The Respondent filed a preliminary objection, pursuant to Section 7 (4) of the Arbitration and Conciliation Act, 2004 and the Inherent jurisdiction of this Court, which is argued in the Respondent’s brief. It seeks the striking out of this appeal for incompetence owing to the absolute bar placed by Section 7 (4) of the Arbitration Act, 2004. The grounds for the objection are that by virtue of Section 7 (4), a decision of a Court appointing an arbitrator for a party who has failed to appoint one for himself within 30 days of receipt of request to do so by the other party cannot be appealed.

The Respondent formulated a lone issue for determination in the determination of the preliminary objection as follows:
Whether, considering the unambiguous provisions of Section 7 (4) of the Arbitration and Conciliation Act, 2004, this Court has the jurisdiction to hear and determine this appeal.

It is submitted for the Respondent that this Court is divested of jurisdiction to hear and determine this appeal owing to the provisions of Section 7 (4) of the Arbitrations and Conciliation. Act, henceforth referred to as the Act; which places an absolute bar on an appeal of this nature; the Court was referred to USMAN V STATE (2014) LPELR-22879-SC; GYUNKA V CHANE (2019) LPELR-46582-CA; ADEYEMI & ORS V A.G OYO STATE & ORS (1984) LPELR-SC 134/1982 and DANGANA V USMAN (2012) MJSC part 111 page 171.

That a party cannot resile from and seek to frustrate the process on flimsy excuses, learned counsel referred the Court to COMPAIGNE GENERALE V ETUK (2004) ALL FWLR part 235 page 59; and also that arbitral proceedings are in a class of their own with distinct set of rules designed to expedite hearing and determination of disputes; the Court was referred to Section 315 of the constitution.

It is further submitted that whatever issues the Appellant has with the constitution of the Arbitral Tribunal, especially with the appointment of an arbitrator by the Court can only be taken up before the Tribunal and not this Court; NYIENAKUNA V UNIUYO & ORS (2014) LPELR-22657-CA and THE GOV OF KWARA STATE & ORS V JEROME OLADELE DADA (2011) LPELR-SC.

It is submitted in response that Section 7 (4) of the Act is inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended, having regard to Section 36 (2) and 240 of the Constitution. That as a consequence the provision of the Act is null and void to the extent of the inconsistency; COCA-COLA NIG. V AKINSANYA (2017) 17 NWLR part 1593 page 74.

That the jurisdiction of this Court as provided by Section 240 of the Constitution cannot be inferred and applied outside the constitutional framework, to determine the Appellant’s appeal by Section 7 (4) of the Arbitration Act.

That also where there a competent grounds that can sustain an appeal as in the instant case, filing a preliminary objection will be inappropriate; NNPC & ANR V FAMFA OIL LTD (2012) 17 NWLR part 1328; this learned counsel contended is because the Appellant’s grounds of appeal with respect to the lower Court and abuse of Court process can competently sustain the appeal as the lower Court cannot pronounce on its jurisdiction with finality.

Learned counsel submits that the Appellant’s right of appeal to the Court of Appeal is extant and cannot be validly taken away or limited by Section 7 (4). The right of appeal is a constitutional right and its exercise cannot be fettered, except by the constitution; SKYE BANK PLC V IWU (2017) 16 NWLR part 1590 page 52.

That the instant appeal is a continuation of the Appellant’s litigation process challenging the jurisdiction of the lower Court which cannot be terminated at the lower Court in so far as the lower Court does not have the power to pronounce on its jurisdiction with finality; A.G. OYO STATE V FAIRLALKES HOTEL LTD (1989) 5 NWLR part 92 page 1. That until the jurisdiction of a Court is ascertained and determined, it cannot validly determine any decision, and any decision reached by a Court without jurisdiction is appealable to this Court.

RESOLUTION OF THE PRELIMINARY OBJECTION:
A good starting point in the resolution of this issue is a resort to Section 7 (4) of the Arbitration and Conciliation Act, 2004, which forms the bedrock of the preliminary objection to this appeal; for the avoidance of doubt it provides as follows:
“(1) Subject to subsection 3 and 4 of this section, the parties may specify in the arbitration agreement the procedure to be followed in appointing an arbitrator.
(2) Where no procedure is specified under Subsection (1) of this Section-
(a) In the case of an arbitration with three arbitrators, each party shall appoint one arbitrator and the two thus appointed shall appoint the third, so however, that-
(i) If a party fails to appoint the arbitrator within thirty days of receipt of a request to do so by the other party…
The appointment shall be made by the Court on the application of any party to the arbitration agreement.
(3) Where, under an appointment procedure agreed upon by the parties-
(a) A party fails to act as required under procedure; or
Any party may request the Court to take the necessary measure, unless the appointment procedure agreed upon by the parties provides other means for securing the appointment.
(4) A decision of the Court under Subsections (2) and (3) of this Section shall not be subjected to appeal.”
It is very important not to lose sight of the fact that jurisdiction, especially of an appellate Court is derived from the constitution or statute of the National Assembly or a State House of Assembly. Having said that, it ought to be borne in mind, also, that this Court has no inherent appellate jurisdiction, and its jurisdiction cannot be exercised outside its powers, unless such jurisdiction is conferred by the constitution or some statute; see AKUJINWA V NWAONUMA (1998) LPELR-391-SC, ADELEKAN V ECU-LINE NV (2006) LPELR-113-SC and NWAIGWE V OKERE (2008) LPELR-2095-SC.
The record in this case shows that the Appellant negligently or willfully refused to appoint an arbitrator within thirty days of being served with the notice of referral and commencement of arbitration by the Respondent as required by the Act, see page 136 of the record of appeal. This failing clearly brought the Appellant within the ambit of the application of Section 7 of the Arbitration Act, and the resultant effect is that this appeal is compromised.
The effect of Section 7 (4) is that no valid appeal can be lodged against the order of the Court appointing an arbitrator for a party who fails to appoint one. The rationale behind this law is to ensure that parties who are willing submit themselves to arbitration do not resile from such an understanding by frustrating the agreement they entered into. Once a party decides to submit itself to arbitration, they accept the process, warts and all; see COMPAIGNE GENERALE DE GEOPHYSIQUE V ETUK supra.

In this regard, it is also important to bear in mind the trite position of the law that, where the words of a statute are clear and unambiguous, such words ought to be given effect, notwithstanding whether they sometimes leave a sour taste in the mouth; see A.G. BENDEL STATE V A.G FEDRATION (1982) 3 NCLR 1 and IMAH V OKOGBE (1993) 1 NWLR part 316 page 159.

Frankly speaking, I do not see any inconsistency between the provisions of Section 7(4) and Sections 36(2) and 240 of the 1999 Constitution, as amended. With all due respect, learned counsel to the Appellant’s contention is akin to a storm in a teacup. I say so because arbitral proceedings are sue generis in more ways than one. They have distinct sets of rules, specially designed to facilitate smooth and expeditious hearing of disputes. This is what informed the adoption of Arbitration and Conciliation Act by Section 315 of the Constitution, as amended, as existing law, deemed to have been made pursuant to the groundnorm.
Section 315 of the Constitution for the avoidance of doubt states:
“subject to the provisions of this constitution, an existing law shall have effect with such modifications as may be necessary to bring into conformity with the provisions of this constitution and shall be:
a) An Ac of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this constitution to make laws”.
The intention of the legislature is not deciphered by a presumptuous speculation of what one thinks the legislature could have meant, but the actual meaning of the words used by the legislature, from which the Court could find their intention. There is no room for speculation, as Courts are avers to speculation.
Where the words of a Statute are clear and unambiguous, it is unnecessary to travel beyond the Act for the purpose of construing them; See ONA V. ATENDA (2000) 5 N.W.L.R PART 656 PAGE 244 AT 256-287 PARAS F-B, P.D.P. V. I.N.E.C. (1999) 11 N.W.L.R PART 262 PAGE 200 AND DYKTRADE V. OMNIA NIG LTD (2000) 12 N.W.L.R PART 680 PAGE 1 AT 9 PARAS F – G.
I am in total agreement with learned counsel for the Respondent in his vehement contention that Courts must give effect to statutes as they are. The intention of the legislature is paramount and discernible only by reference to the words used in the very statutes being interpreted and applied; SEE N.D.I.C. V. OKEM ENT. LTD (2004) 10 NWLR (PT. 880) 107 and AG LAGOS STATE V. AG FEDERATION (2004) 18 NWLR (PT. 904) 1. The words used in the Arbitration and Conciliation Act are plain and simple, and effect has to be given to them in this regard.
The reasoning is that by appointing an arbitrator for a party the Court does not go into the merit of the case, see BENDEX ENGINEERING CORPORATION & ANR V EFFICIENT PETROLEUM NIG. LTD (2001) FWLR part 47 page 1188.
Section 36 dealing with fair hearing is definitely not an issue in this scenario, the grouse of the Appellant is at best his right to appeal. Be that as it may, there is no inconsistency; where the party as in this case has failed to help itself by appointing an arbitrator within 30 days as required. What else does the Appellant expect? The law cannot come to his aid. In any event, it is final, because it is not a decision on the merit of any issue yet between the parties. The Appellant will still be at liberty to challenge the decision of the Court-appointed arbitrator, should there be valid reason to do so in the course of carrying out his duties.

What is more, as rightly submitted for the Respondent, the Appellant cannot, by virtue of Section 9 (2) and (3) of the Arbitration and Conciliation Act, contend that the statutory bar to appeal stipulated in Section 7 (4) deprives it of the opportunity to object to the validity of the appointment of the arbitrator. For the avoidance of doubt the Section provides as follows:
“(1) the parties may determine the procedure to be followed in challenging an arbitrator.
(2) where no procedure is determined under Subsection (1) of this Section, a party who intends to challenge an arbitrator shall, within fifteen days of becoming aware of the constitution of the arbitral tribunal or becomes aware of any circumstances referred to in Section 8 of this Act, send the arbitral tribunal a written statement of the reasons for challenge.
(3) Unless the arbitrator who has been challenged withdraws from office or the other party agrees to the challenge, the arbitral shall decide on the challenge.”
Where a statute ousts the right of appeal of a party, the statute like any other ought to be complied with, see NYIENAKUNA V UNI UYO & ORS (2014) LPELR-22656-CA. Courts generally guard their jurisdiction jealously and will not lightly surrender to a provision taking away their jurisdiction. It has to be stated at the risk of repetition, however, that where the words of a statute as to the jurisdiction of the Court are clear and unambiguous, they must be given effect. This informed the decision of the Supreme Court in A.G OF THE FEDERATION & ORS V SODE & ORS (1990) LPELR-601-SC where it held, Per NNAMANI, J.S.C ( Pp. 64-65, paras. D-A:
“…it is also well settled that the exercise of a right of action is derived from the fundamental law of the land, or any statute specifically conferring such right. The Court can only exercise jurisdiction with respect to a right of action, and cannot assume jurisdiction unless the plaintiff who has brought the action before it has a right of action… This Court has in many recent decisions defined what a right of action is.”
In the final analysis, the jurisdiction of the Court having been ousted by a statute, as in this case, the Court cannot surreptitiously assume jurisdiction. There is neither basis nor justification for that. It is for these reasons that this Court is compelled to allow the preliminary objection; the notice of appeal dated the 7th of December, 2018 is incompetent, and accordingly struck out for lack of jurisdiction.

The consequences of a finding that a notice of appeal upon which an appeal is founded is defective ipso facto presupposes the striking out of the appeal founded on such notice. This is against the backdrop of the settled position of the law that since the purpose of a preliminary objection to an appeal is to truncate the hearing of the appeal on the merits, where the preliminary objection to the appeal succeeds, there is no need to consider such appeal on the merit; see EFET V. INEC (2011) LPELR-8109(SC), MAKINDE V. AKINWALE (1995) 6 NWLR (PT.399) 5 AND N.N.S.C. LTD. V. SABANA (1988) 2 NWLR (PT.74) 23.

The appeal is struck out for want of jurisdiction; parties to bear their respective costs.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been availed in advance a draft copy of the leading judgment just delivered by my noble lord Mohammed Mustapha, JCA, and I am in complete agreement with the lucid reasoning and impeccable conclusions reached therein. I agree that the appeal lacks competence and is thus, liable to be struck out.

My lords, the right of appeal against decisions of Court with which a party is aggrieved, to ventilate one’s grievance is both sacrosanct and fundamental to the end that it ensures that persons aggrieved do not seek self-help and take the law into their hand to obtain solution to their disputes. By the access granted to the citizen, they can without any unlawful inhibition have unlimited access to the Courts for solution to their disputes. However, the right of access to the Court is not absolute. It is subject to the provisions of the laws relating to access to the Court, the principal of which is Section 6(6) (b) of the Constitution of Nigeria 1999 (as amended).
My lords, I am aware that the right of access to the Court, particularly the right of appeal is regulated by laws, rules and regulations for their exercise. It is now accepted that failure to comply with such preconditions will result to incompetence in the exercise of the right of access to the Courts, including the right of appeal, which fundamentally must be provided for specifically before it could even be exercised. Thus, where there are no provision for a right of appeal, no such right would exist to be exercisable by a party. Section 7 (4) of the Arbitration and Conciliation Act 2004 is one of such valid law which prohibits any right of appeal against the decision of the High Court appointing an arbitrator after the parties have failed to do within 30 days as granted to them to so do.
It is for the above position that over the years several laws and regulations have evolved to govern the exercise of the right of access to the Court. Thus, a person who may have a right of access to the Court may still have to satisfy some conditions precedent to exercise the right of access to the Courts. It has long been settled that such conditions are neither illegal nor do not constituted an infringement on the right of access to the Courts.
It is in the above light I can situate the provisions of Section 7 of the Arbitration and Conciliation Act which bars any right of access to the Courts on appeal in cases in which a decision is made by the High Court appointing an Arbitrator where the party has failed, within 30 days, to appoint an Arbitrator. I do not see any issue with this provision as the party knew from the onset that he has 30 days within which to appoint an Arbitrator failing which the Court will appoint an Arbitrator and there will be no appeal against such a decision from the decision of the High Court appointing an arbitrator upon the failure of the party to do so on its own within 30 days. It is not inconsistent with the provisions of the Constitution of Nigeria 1999 (as amended). Thus, it is an enforceable law. Section 7 (4) of the Arbitration and Conciliation Act, 2004, which provides thus:
(4). A decision of the Court under subsections (2) and (3) of this section shall not be subjected to appeal.”
See also A.G OF THE FEDERATION & ORS V SODE & ORS (1990) LPELR-601(SC); USMAN V STATE (2014) LPELR-22879(SC); GYUNKA V CHANE (2019) LPELR-46582(CA).
This appeal is therefore, an attempt to circumvent the clear and unambiguous provisions of Section 7 of the Arbitration and Conciliation Act. The appeal is therefore, incompetent and thus, dead on arrival. It is doomed to be brought to an end by an Order of this Court striking it out as already done in the leading judgment.

It is for the above reason and for the more detailed reasons that I too hold that this appeal lacks competence and should be struck out. I too hereby strike out this appeal for being incompetent.

BATURE ISAH GAFAI, J.C.A.: I have before now read in draft the judgment delivered by my learned brother Mustapha, JCA. I am in full agreement with reasonings and conclusion expressed therein to the effect that the Court lacks jurisdiction to entertain this appeal in view of the clear bar placed by the provisions of Section 7(4) of the ACA (supra).

It will be an exercise in futility to circumvent the clear ouster of jurisdiction placed by those provisions; regardless of the high sounding allegations of fraud, abuse of Court Process etc. raised by the Appellant in the two Grounds of Appeal. See Agwuna vs. A. G. Fed. & Anor (1995) LPELR-258 (SC). For the fuller reasons expressed in the leading judgment, I too hold strike out this appeal for want of jurisdiction by this Court.