CHIEF DR. EMMANUEL IWUANYANWU v. HON. MINISTER OF AGRICULTURE & WATER RESOURCES & ANOR (2016)

CHIEF DR. EMMANUEL IWUANYANWU v. HON. MINISTER OF AGRICULTURE & WATER RESOURCES & ANOR

(2016)LCN/8291(CA)

In The Court of Appeal of Nigeria

On Friday, the 11th day of March, 2016

CA/A/369/2010

RATIO

APPEAL: WHETHER IT IS WRONG AND UNACCEPTABLE TO FORMULATE MORE ISSUES THAN THE GROUNDS OF APPEAL FILED

Having said that, it is wrong to formulate more issues that grounds, let it be reiterated that it is wrong and unacceptable to formulate more issues than the grounds of appeal filed as proliferation of issues confound: rather than clarifies matters in controversy; See, in this regard, OYEKAN v. AKINRINWA (1996) 7 SCNJ 165, 172: (1996) 7 NWLR (Pt.459) 128 and ONYIOHA v. AYASHE (1996) 2 NWLR (Part. 432), 567. per. MOHAMMED MUSTAPHA, J.C.A.

APPEAL: WHETHER AN APPELLANT OR RESPONDENTS BRIEF HAS THE RIGHT TO RAISE MORE ISSUES THAN THE GROUNDS OF APPEAL

It is well settled that proliferation of issues is offensive to the rules of appellate Courts. An appellant or respondents brief have no right to raise more issues than the grounds of appeal; see S.C.O.A.(Nig) Plc v. Mohammed (2004) 4 NWLR (Pt. 862) 20; UGWUNZE v. ADELEKE (2008) 2 NWLR (Pt.?1070) 148; AGWARAMBGO V. IDUMOGU (2008) 5 NWLR (Pt.1081) 564. per. MOHAMMED MUSTAPHA, J.C.A.

PRACTICE AND PROCEDURE: WHETHER THE COURT SHALL STAY PROCEEDINGS WHERE THE ATTENTION OF THE COURT IS DRAWN TO AN ARBITRATION CLAUSE

Where the attention of the Court is drawn to an arbitration clause the irresistible conclusion is a stay of proceedings, but as can be seen that was not the case in this situation, this Court is fortified in this by the authority of FAWEHINMI CONS. CO LTD V. O.A.U (1998) 6 NWLR part 553 at 171, where the Supreme Court held:
“When parties enter into agreement and there is an arbitration clause whereby the parties must first go for arbitration before trial in Court, it is natural for the defendant in a case where the other party has filed a suit ask for stay of proceedings pending arbitration. per. MOHAMMED MUSTAPHA, J.C.A.

EVIDENCE: BURDEN OF PROVE: WHETHER THE BURDEN OF PROOF IN CIVIL CASES IS ON THE PARTY WHO ASSERTS AFFIRMATIVELY ON A PARTICULAR ISSUE

It should be further borne in mind that Sections 135, 136 and particularly 137 of the Evidence Act states that:
”1. In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
2. If such a party adduces evident which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lied on the party against which judgment would be given if no evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.
3. Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.?
The burden of proof in civil cases is on the party who asserts the affirmative of a particular issue, regardless of whether he is plaintiff or defendant; clearly by virtue of by virtue of Section 135 and 136 the of Evidence Act he who asserts must prove and once he fails to prove his assertion with cogent and credible evidence then he is bound to fail in his claim, see DEVINE IDEAS LTD V UMORU (2007) All FWLR PART 380 at 1505, where this Court held:
”By virtue of the provisions of Section 137 of the Evidence Act, the burden of first proving the existence or non-existence of a fact in a civil case lies on the party against whom the judgment of the Court will be given if no sufficient or evidence at all or no further evidence is produced on either side, regard being had to any presumption that may arise on or from the pleadings. If such a party adduces evidence which is accepted and which establishes a ?pima facie case? of such a fact, then the burden shifts on to the other party against whom judgment would be given if no more evidence were adduced and so on a the issues in the pleadings are dealt with. This essentially is what is meant when a civil suit is said to be decided on the preponderance of evidence or on the balance of probabilities. per. MOHAMMED MUSTAPHA, J.C.A.

JUSTICES

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria

Between

CHIEF DR. EMMANUEL IWUANYANWU Appellant(s)

AND

1. HON. MINISTER OF AGRICULTURE & WATER RESOURCES
2. ATTORNEY GENERAL OF THE FEDERATION Respondent(s)

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the Federal High Court Abuja Division, presided over by Honourable Justice I. N. Auta, dated the 20th of July, 2010, refusing to strike out suit number, FHC/ABJ/CS/406/09 for jack of jurisdiction, see pages 234 to 253 of the record of appeal filed on the 11th of October, 2010.

This appeal is decided on the briefs of the appellant and the 2nd respondent by leave of Court obtained on the 30th of March, 2015.

FACTS IN BRIEF:
The appellant after being served with a writ of summons of the respondents filed a motion on notice on the 30th of July, 2009 along with a written address of counsel, see pages 120 to 128; while the Memorandum of Appearance under protest is on pages 118 to 119 of the record of appeal. The appellant’s grounds of objection are as follows:
1. That there is an Arbitration clause in the contract of agreement and by virtue of Section 5 of the Arbitration Act, 2004 the Court cannot proceed with the case.
2. There was an arbitration award in the Arbitration between the parties to the contract.

The said Arbitral award constitutes a binding and enforceable judgment between parties.
3. That based on the contract agreement before the Court, the defendant was not a party and therefore cannot be sued.
4. The said arbitral award is still subsisting and therefore, the Respondents are stopped from prosecuting this case.
5. JOSEPH OCHUKO TOBI, ESQ, a private Legal practitioner who is to the Respondent does not have a fiat of the 2nd Respondent to represent the Respondent in this case and secondly, the said JOSEPH OCHUKO TOBI, ESQ., has not paid his practicing fees as prescribed under the Rules of Professional Conduct for Legal Practitioners 2007.

The respondents filed a counter affidavit to the application, and a written address of counsel in opposition, see page 227 to 246 of the record of appeal; and the ruling of the trial Court refusing to grant the application is at pages 252 to 253 of the record of appeal.

The Amended Notice of Appeal filed on the 4th of November, 2010 contains five grounds of appeal, the grounds without the particulars are as follow:

GROUND ONE:
The learned trial judge erred in law when he failed to

consider that the appellant is not a party to the contract agreement, subject matter of this suit and therefore it will serve no useful purpose to embark on a trial of this suit as there is no privity of contract or nexus between the appellant and the respondents.
GROUND TWO:
The learned trial judge erred in Jaw when he failed to consider that the contract agreement annexed to the statement of claim filed by the Plaintiffs/Respondents in this suit contains an ARBITRATION CLAUSE and it will therefore serve no useful purpose to embark on a trial of this case without the parties first submitting themselves to an arbitral proceedings.
GROUND THREE:
The Learned trial judge erred in law by failing to consider the jurisdictional point of Estoppel per rem judicata which when successfully robs the Court of jurisdiction to hear a case.
GROUND FOUR:
The learned trial judge erred in law when he held “The rules of this Court which must be obeyed and enforced by this Court provides that such an application which is in the form of demurrer action are prohibited. The Defendant is required to file his statement of Defense and therefore this

application is premature and it is not properly before the Court? and thereby come to a wrong decision which has occasioned a grave miscarriage of justice by putting the appellant to the huge expense of appeal.
GROUND FIVE:
The learned trial judge erred in law when he held “The issue of flat is a question of fact, he who asserts must prove. The Applicant has to prove that by credible evidence. On the issue of none payment of practicing fees, which this Court does not take lightly, the Court finds that there is evidence of payment by the plaintiffs as per exhibit attached to the Further Counter-Affidavit. It is now left for the Defendants Counsel to debunk it by credible evidence? and thereby occasioned a miscarriage of justice by hanging an unwarranted suit on the Defendant/Appellant.

From these grounds, Chief Chukwuma Ekomaru, SAN of counsel to the appellant formulated six issues for determination, while D.C. Enelum Esq., of counsel to the 2nd respondent adopted issues 2, 5 and six of
these issues, while contending that issues 5 and 6 were raised from ground 5, he referred this Court to paragraph 7-2 of page 16; the appellant

did not reply this argument for avoidance of doubt the issues are as follows:
1. Whether a Court can assume jurisdiction where it is clear from the form and content of a contract agreement that the defendant is not a party to the contract agreement.
2. Assuming the Court holds that there is a contract agreement between the appellant and respondent, this is whether the Lower Court can proceed to try this case, when the contract agreement in this case contains an arbitration clause.
3. Pages 6, 7 and 17 of Exhibit 10 found on pages 161 to 178 of the records is the arbitration award on eight silos contracts including the silo contract at Gaya Kano, the subject matter of this case, the issue is
whether Exhibit 10, the arbitration award in this case does not operate as estoppel per rem judicata, to rob the Lower Court jurisdiction of to entertain this case.
4. Whether in the light of the provisions of Order 29 of the Federal High Rules, the application before the Lower Court can be struck out as a demurrer proceedings.
5. Whether there is any special way to produce before a Court a fiat practicing fee receipt apart from tendering it from

the bar upon a challenge of appearance in a case.
6. Whether the Court processes filed in this suit by the?plaintiffs?counsel is null and void in view of the provisions of Rule 10 of the Rules of professional Conduct.

The Amended Notice of Appeal filed on the 4th of November 2010 has five grounds of appeal, the said grounds were listed earlier in this judgment; learned counsel to the appellant formulated six issues from the five grounds of appeal, the said issues were equally listed earlier in this judgment.

than sheer disregard to established ways of doing things; It is well settled that proliferation of issues is offensive to the rules of appellate Courts. An appellant or respondents brief have no right to raise more issues than the grounds of appeal; see S.C.O.A.(Nig) Plc v. Mohammed (2004) 4 NWLR (Pt. 862) 20; UGWUNZE v. ADELEKE (2008) 2 NWLR (Pt.?1070) 148; AGWARAMBGO V. IDUMOGU (2008) 5 NWLR (Pt.1081) 564.

The appeal will be determined on issues one to five as formulated for the appellant, they suffice.

ISSUE ONE:
Whether the defendant/appellant was proper a party as would enable the trial Court assume jurisdiction.
It is submitted for the appellant that his name was not mentioned in the contract agreement to warrant being sued as a party; learned counsel referred the Court to pages 10 to 116 of the record of appeal, and contended?there is no basis for the trial Court to assume jurisdiction.

It is settled?principle of law that in order to determine whether a Court before which a matter is pending has the jurisdiction to entertain same, the Court has to look at the plaintiff’s statement of claim before it, and not the

defense put forward by the defendant to the action; bearing in mind that the claim of the plaintiff in an action includes the originating summons and the affidavit(s) in support of same where the action is instituted by originating summons; see INAKOJU vs ADELEKE (2007) 4 NWLR (Pt.1020) 427 at 588 – 589 –

The statement of claim at page 3 to 5 of the record of appeal states at paragraph 4 that:
“Sometime in December, 1992, the defendant who presented himself as trading under the name and style of of Olive Company Nigeria Ltd entered into a contract with the plaintiffs to construct 25,000 metric tons silo at Gaya, Kano State for the Federal Government of Nigeria…”

At paragraph 5 that:
“Plaintiffs aver that although the contract was entered into between him and Olive Nigeria Ltd, the said Olive Nigeria. It promoted by the defendant is not incorporated with the Corporate Affairs Commission.?

At paragraph 6 that:
“Plaintiffs further aver that the defendant all through the negotiation and signing of the agreement presented himself as the owner and Chief Executive/alter ego of Olive Nigeria Ltd and the plaintiffs in the entire

relationship knew, related and referred to the defendant as Olive Company Nigeria Ltd.”

It is clear from these that the trial Court was right to assume it had jurisdiction on the strength of the averments; “It is trite that in any civil matter, it is the writ of summons and the statement of claim that determines Jurisdiction. Therefore the defendant does not even need to file any defense before jurisdiction is ascertained see FEDERAL GOVERNMENT OF NIGERIA V OSHIOMOLE (2004) 3 NWLR pt. 860 at 305.?

Accordingly, this issue is resolved in favour of the respondent, against the appellant.

ISSUE TWO:
Assuming the Court holds that there is a contract agreement between the appellant and respondent, the issue is whether the Lower Court can proceed to try this case, when the contract agreement in this case contains an Arbitration Clause.

The first limb of this issue was answered in the resolution of issue one; simply put, the finding in the earlier part of this judgment that the trial Court had jurisdiction means that the appellant was a proper party, before the trial Court, thus establishing the existence of a contract between the

appellant and the respondent.

Having said that, the question now arises as to whether the existence of an arbitration clause in the contract agreement ought to have hindered the trial Court from proceeding with the case in the first instance, in view of Section 5 of the Arbitration and Conciliation Act which required parties to parties to submit to arbitration first.

Learned counsel to the appellant contends they applied for the proceedings to be stayed in view of this, yet the trial Court proceeded to do the contrary.

For the avoidance of doubt, Section 5 (1) of the Arbitration Act relied upon states inter alia:
“if any party to an arbitration agreement commences any action in any Court with respect to any matter which is the subject of an arbitration agreement, any party to the agreement may, at any time after appearance and before delivering any pleadings, apply to the Court to stay the proceedings

Clearly, the appellants application at the trial Court did not seek for a stay of proceedings as required by Section 5 of the arbitration Act, what it sought was an order striking out the action for lack of jurisdiction; this

much is clear from pages 129 to 122 of the record of proceedings.

The said application for the avoidance of doubt reads:
”Motion on notice brought pursuant to the inherent jurisdiction of the Court:
Take notice that this Honorable Court shall be moved?as counsel may be heard praying this Honourable Court for an order striking out this action for lack of jurisdiction.?

?In view of this position of the law, I have no hesitation in resolving this issue too in favour of the respondent, and against the appellant.<br< p=””

</br<

ISSUE THREE:
Whether the arbitration award in this case does not operate as an estoppel per rem judicata, to rob the trial Court of jurisdiction to entertain the case.

This Court had found, while resolving issue two that Section 5 (1) of the Arbitration and Conciliation Act had not been complied with by the failure of the appellant to apply for a stay of proceedings, leading thus to the empowerment of the trial Court.

For estoppel to operate as contended under issue three there must, as of necessity, be evidence to show that parties agreed either expressly or by implication that the decision of the arbitrator(s) would be accepted as final and binding; see OHIAERI V. AKABEZE (1992) 2 NWLR (Pt. 221) 1.

As a matter of fact, the arbitral award itself in this case is a subject of litigation between the parties, even
by admission of learned counsel to the appellant at Page 10 paragraph 5.7:
“the plaintiffs appealed against the decision of the Federal High Court to the Court of Appeal, Abuja and their appeal is now pending as Suit No.CA/A/331/09 Between HON. MIN. OF AGRIC, V OLIVE CO. NIG. LTD.”

Where a plea for reference to arbitration arising from an agreement in a contract between parties has successfully been raised; and the operative word is “successfully”, then the trial Court cannot proceed to determine a dispute it otherwise could.

But in this case the arbitration itself is disputed, the plea for reference to the disputed arbitration cannot
constitute a challenge to the Courts jurisdiction, and ignoring the challenge will clearly amount to ignoring a party’s right in real and pragmatic terms; for those reasons the trial Court cannot be said to have been robbed of jurisdiction in the circumstances; accordingly, this issue is resolved for the respondent, and against the appellant.

ISSUES FOUR:
Whether in the tight of the provisions of Order 29 of the Federal High Court Rules, the application before the Lower Court can be struck out as demurrer proceedings.

A demurrer is a known common law procedure which enabled a defendant who contends that even if the allegations of facts as stated in the pleadings to which objection is taken is true, yet their legal consequences are not such as to put the defendant to the necessity of answering them

or proceeding further with the cause; see FABUNMI V C.O.P (2011) LPELR-8776-CA; but where the parties have Joined issues, and pleadings exchanged there is no place for demurrer, this is so because by its nature, demurrer is only filed against statement of claim and admits no filing of statement of defense, otherwise the demurrer proceedings will be rendered meaningless; see OKAFOR V. A.G. AMAMBRA STATE (2005) 14 NWLR part 945 at 10.

The rules of the Federal High Court forbid demurer, the learned trial judge pointedly referred to that in his ruling at page 252 of the record of proceedings.

In an effort to enforce that the found the application not properly before the Court, because the defendant did not file his statement of defense; this finding is not in spite of Order 29 of the rules of the Federal Hjgh Court, but because of it too.

If the defendant had strictly come under Order 29, it will have been difficult to refuse the application, not least because there is a distinction between objection to jurisdiction and demurer, see NDIC V. CBN (2002) 7 NWLR part 766 at 297, and that being so, the answer to issue four is in the affirmative; the

issue is accordingly resolved in favour of against the appellant.

ISSUES FIVE:
Whether there is any special way to produce before a Court a fiat and practicing fee receipt apart from tendering it from the bar upon a challenge of appearance of counsel in a case.

It is submitted for the appellant that there is no presumption of delegation of authority by the Attorney General of the Federation to a private legal practitioner, who is not a law officer; and that being so, he has to produce a fiat signed by the Attorney General.

In response, it is submitted for the respondent that in view of the existence of a sworn deposition at pages
243 to 244 and 245 to 246 the burden of proof has shifted to the appellant who asserted the none existence of a fiat from the Attorney General of the Federation; learned counsel referred the Court to MESSRS LEWIS PEAT (NRI LTD) V A. E. AKHIMIEN (1976) ALL NWLR part 365 at 372 and SENATOR CHRIS ADIGHIJE V HON. NNKECHI J. NWAOGU (2010) 12 NWLR part 1209 at 459.

?Clearly, the appearance of a private legal practitioner appearing on behalf of the government was challenged in this case; now that being the case it is

imperative to refer to the counter affidavit of Rita Ugwu at pages 243 to 244; the relevant portions for our purpose state to the effect that the said counsel told her he has the authority of the attorney general of the federation to institute this suit.

The circumstances of this case and the decision of Court in Dr. OLUBUKOLA ABUBAKAR SARAKI V FED. REP. OF NIG. CA/A/551C/2015 unreported are not the same, but the logic and common sense of the law are inseparable; in SARAKI supra it was held that:
“the information by Mr. Hassan to the tribunal, quoted above, prima facie, showed that he was authorized to institute the action? having regard to the time honoured tradition of our honourable profession, that learned counsel speaking from the bar, as a minister in the hallowed temple of justice, would say only the truth and nothing but the truth. There was no basis for the tribunal to disbelieve or ignore such information

on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
2. If such a party adduces evident which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lied on the party against which judgment would be given if no evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.
3. Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.?
The burden of proof in civil cases is on the party who asserts the affirmative of a particular issue, regardless of whether he is plaintiff or defendant; clearly by virtue of by virtue of Section 135 and 136 the of Evidence Act he who asserts must prove and once he fails to prove his assertion with cogent and credible evidence then he is bound to fail in his claim, see DEVINE IDEAS LTD V UMORU (2007) All FWLR PART 380 at 1505, where this Court held:
”By virtue of the provisions of Section 137 of the Evidence Act, the burden of first proving the

existence or non-existence of a fact in a civil case lies on the party against whom the judgment of the Court will be given if no sufficient or evidence at all or no further evidence is produced on either side, regard being had to any presumption that may arise on or from the pleadings. If such a party adduces evidence which is accepted and which establishes a ?pima facie case? of such a fact, then the burden shifts on to the other party against whom judgment would be given if no more evidence were adduced and so on a the issues in the pleadings are dealt with. This essentially is what is meant when a civil suit is said to be decided on the preponderance of evidence or on the balance of probabilities.?

The appellant in this case alleged counsel in the case had not obtained fiat or paid his practicing fees, the respondent denied same by counter affidavit at paragraph 4, especially at (h) where receipt of payment was attached as Exhibit A, as a result of which the burden shifts back to the appellant;
”…the burden of proving specific facts could shift depending on the circumstance of the case.? UNIBEN v. K.T. ORG. LTD

(2007) 14 NWLR (Part 1055) at 464.

The appellant failed to discharge the burden proof of that shifted to him; accordingly this issue is resolved in favour of the respondent, and against the appellant.

Having resolved the issues for determination in favour of the respondent, and against the appellant, the appeal fails for lack of merit, and it is dismissed as a result.
Parties bear their respective costs.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the judgment just delivered by my learned
brother, MOHAMMED MUSTAPHA, JCA.

I agree with his reasoning and the conclusion reach that the appeal lacks merit. I adopt same in dismissing the appeal and abide by the order as to costs.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the judgment which has just been delivered by my learned brother,MOHAMMED MUSTAPHA, JCA. I agree with the reasoning and conclusion therein. I also dismiss the appeal for lack of merit. I abide by the order as to costs in the lead ing judgment.

Appearances

Ibrahim A. Esq. with him, Chris Mbah, Esq. and Vera Opaluwa IhunanyaFor Appellant

AND

D. C. Enwelum, Esq. for 2nd RespondentFor Respondent