MILAN (INDUSTRIES) NIGERIA LTD v. TREVI FOUNDATIONS NIGERIA LTD
(2019)LCN/12780(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
CA/L/655/2013
RATIO
COURT AND PROCEDURE: WHAT MAKES A WRIT COMPETENT
“The law on what makes a writ competent is settled. The writ must be signed by a legal practitioner and not a law firm. See; Ogunede & Ors vs. Anajuba & Ors (2016) LPELR-42118 (CA); Olagbenro & Ors vs. Olayiwola & Ors (2014) 16 NWLR (pt 1434) 313. The writ was issued by O.S. Agaba (Mrs.) of Ayinde Sanni & Co. there is a signature. I really cannot appreciate this issue as raised by the Appellant. At best the argument is technical. The position on technicality is clear. It is this. The days of technicality overriding substantial justice is over. The Court is concerned more with justice in its substantial sense and not in its technical sense. Once there is a fight between technical and substantial justice, the result is clear. Substantial justice will be declared the winner. See; Inakoju & Ors vs. Adeleke & Ors (2007) 1 SC (pt 1) 1; Omoju vs. FRN (2008) 2-3 SC (Pt. 1) 1.” PER TOBI EBIOWEI, J.C.A.
COURT AND PROCEDURE: FUNCTUS OFFICIO
“This is not possible as the Court will be functus officio over the same matter. In Nigerian Army vs. Iyela (2008) 18 NWLR (pt 1118) 115, the apex Court held: The position of the law is that once a Court or Tribunal delivered its final judgment in a case before it, it became functus officio with respect to that case. It has no power to reopen the case for the purpose of making corrections or changing any opinion expressed in its earlier judgment in the case. The only exception to this rule is where there is need to make minor permissible correction under the slip rule. What can be altered under the slip rule is not as to the substance of the judgment earlier delivered but limited to minor errors, such as spelling errors, typographical or mathematical errors wherein correct figures can be entered. See Berliet Nig. Ltd. v. Kachalla (1995) 9 NWLR (Pt.420) 478, Emordi v. Kwentoh (1996) 2 NWLR (Pt.433) 656, Ministry of Lagos Affairs, Mines & Power v. Akin Olugbade (1974) 11 S.C. (Reprint) 9; (1974) 1 All NLR (Pt.2) 226, Commissioner of Lands Midwest State v. Edo-Osagie (1973) 6 S.C. 155; (1973) 6 S.C. (Reprint) 112, and Umunna v. Okwuraiwe (1978) 6 & 7 S.C. 1 at 9; (1978) 6-9 S.C. (Reprint) 1.”PER TOBI EBIOWEI, J.C.A
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
MILAN (INDUSTRIES) NIGERIA LTD Appellant(s)
AND
TREVI FOUNDATIONS NIGERIA LTD Respondent(s)
TOBI EBIOWEI, J.C.A. (Delivering the Leading Judgment):
The Respondent as Claimant in the lower Court instituted an action registered as Suit No: LD/162/2007 making several claims for payment for work done. The Appellant as Defendant brought a motion for stay of proceedings to enable the matter to be taking to a sole arbitrator. This motion was filed on 20/3/2007. The motion was granted on 11/3/10. The matter was referred to the Lagos State Multi-Door Court House for arbitration by a sole arbitrator. The arbitration proceeding can be found in pages 115-157 of the records. The arbitration followed with a decision or an award that since the condition precedent for the arbitration to be conducted has not been fulfilled, the arbitrator declined jurisdiction to arbitrate on the matter.
On 13/12/2012, the Respondent in this Court filed an application seeking for an order to refer the matter again to the Lagos State Multi-Door Court before a sole arbitrator. The Respondent wants the same matter to go before the same Multi-Door Court house which had declined jurisdiction earlier. The Appellant filed counter affidavit in opposition and the lower Court after taking address of counsel in its ruling found in pages 158- 160 of the records granted the application. The Appellant dissatisfied with the ruling has appealed to this Court exercising their Constitutional right of Appeal. The appeal is predicated on the amended notice of appeal filed on 26/8/13 which contained 3 grounds.
The Appellant’s brief of argument was filed on 14/3/14. It was settled by Chinedum Umeche Esq., The Respondent did not file any brief. When the appeal came up for hearing on 16/1/19, the Respondent was represented by counsel Olajide Sani Esq., Learned counsel for the Respondent informed Court that he is not contesting the appeal. That makes it obviously easy for the Appellant. Appellant’s counsel S. U. Iwuoha Esq., on 16/1/19 adopted the Appellant’s brief. He raised 3 issues for determination. These are:
1. Whether the Respondent?s suit at the Court below was competent having regard to the fact that the writ of summons was not signed by a qualified legal practitioner.
2. Whether the Court below was functus officio with respect to making an order referring the suit to arbitration.
3. Whether under the Arbitration and Conciliation Act, Cap A 18, LFN, 2004, leave of Court is required to refer a suit to arbitration save in circumstances prescribed in Sections 4 and 5 thereof.
Addressing issue I, learned counsel submitted that the suit is incompetent as the writ was not signed by a legal practitioner as required by law. Counsel referred to SLB Consortium vs. NNPC (2011) 9 NWLR (pt 1252) 317@ 333; Aromire & Ors vs. Ajomagberin & Ors (2011) LPELR-CA/L/825/2006 and Fumudoh vs. Aboro (1991) 9 NWLR (pt 214) 220 @ 225. He urged Court to resolve that issue in his favour.
It is counsel further submission that the order of the lower Court staying the proceedings is still subsisting as it has not been set aside yet. The motion of 13/12/12 is seeking for the same order and therefore the lower Court is functus officio over the issue covered in the motion. This is counsel submission on issue 2 relying on Chieshe vs. Nicon Hotel Ltd (2007) FWLR (pt 25) 1592; O.C.O. of ‘MV’ G & C Admiral vs. Adeniran (2007) ALL FWLR (Pt. 344) 187; Alor & Anor vs. Christopher Ngene (2007) 17 NWLR (Pt. 1062) 163 and Oyefolu vs. Durosinmi (2001) 16 NWLR (Pt. 738) 1 @ 13.
Finally on issue 3 relying on Sections 4 and 5 of the Arbitration and Conciliation Act, 2004 and the case of Kano State Urban Development Board vs. Fanz Construction Co. Ltd (1986) 5 NWLR (Pt. 39) 74, learned Counsel for Appellant finally submitted that the appeal be allowed as there is no need for a Court order to take a matter to arbitration.
The Respondent did not file any brief of argument or any process. The Respondent just watched. The implication of this is that the Respondent is not challenging the appeal and therefore there is not much that is required of a Court. The Court as an unbiased umpire is not a party and therefore is not expected to raise a defence or a case for a party. See; INEC vs. Association of Senior Civil Servant of Nigeria & Anor (2007) LPELR- 8882 (CA); NB Plc vs. Audu (2009) LPELR-8863(CA) and INEC vs. Atuma & Ors (2013) 11 NWLR (Pt. 1366) 494. The Court is to settle conflict between parties according to law and equity and not to make case for any of the parties. The Court is not to be involved in the conflict. If there will be no conflict to be settled, there is no need for the Court. There must be a dispute between the parties brought before a Court to be determined so as to establish the rights of the parties in the matter. In BFI Group Corporation vs. B.P.E. (2012) 7 SC (Pt. III) I, the Supreme Court held:
‘It is noteworthy that this Court has in several cases stated that the Court is to determine and decide disputes brought before it in accordance with the evidence, both oral and documentary only, in particular, as agreed by the parties. The Court is not to draft or make out a different agreement for parties. It will amount to injustice, or miscarriage of justice, to say the least.’
Where there is a matter before the Court which does not amount to a dispute, this will be handling without must legal rhetoric?s as that implies that the other party is not challenging the facts or the issues involved. In such a situation, the Court is bound to give judgment in favour of the party except, the prayer or relief sought cannot be granted within legal consideration. See; Inegbedion vs. Selo-Ojemen & Anor (2013)8 NWLR (Pt. 1356) 211; and Chief Emmanuel Eze Onwuka vs. Engineer Samuel Ononju NSCQR Vol. 38 2009 pg. 33.
Before this Court is the case of the Appellant alone. In the circumstance I will just briefly address the issues raised by the Appellant in this appeal.
On issue 1, I do not agree with the submission of the counsel that the writ is incompetent. The law on what makes a writ competent is settled. The writ must be signed by a legal practitioner and not a law firm. See; Ogunede & Ors vs. Anajuba & Ors (2016) LPELR-42118 (CA); Olagbenro & Ors vs. Olayiwola & Ors (2014) 16 NWLR (pt 1434) 313. The writ was issued by O.S. Agaba (Mrs.) of Ayinde Sanni & Co. there is a signature. I really cannot appreciate this issue as raised by the Appellant. At best the argument is technical. The position on technicality is clear. It is this. The days of technicality overriding substantial justice is over. The Court is concerned more with justice in its substantial sense and not in its technical sense. Once there is a fight between technical and substantial justice, the result is clear. Substantial justice will be declared the winner. See; Inakoju & Ors vs. Adeleke & Ors (2007) 1 SC (pt 1) 1; Omoju vs. FRN (2008) 2-3 SC (Pt. 1) 1.
The name written is O.S. Agaba (Mrs.), since the name is written that amounts to the signature. While the law stated by the Appellant?s counsel is good law but not applicable in this instance. I cannot resolve issue 1 in his favour. I resolve it in favour of the Respondent.
Issue 2, however without contest will be resolved in favour of the Appellant. This is because there is no argument on the other side of the scale. That notwithstanding, I will still briefly look at whether the argument make sense. The prayer of the Appellant as Defendant/Applicant in the motion of 20/3/07 contained in page 16 of the record is for:
1. An order of the Court staying proceeding in the suit pending the determination of a single arbitrator to be agreed by the parties.
2. An order of the Court referring the parties to the suit to arbitration in accordance with the terms of the Arbitration clause in paragraphs 17.1 and 17.2 of the contract Agreement between the parties dated 9th February 2005.
This prayer was granted and the matter was referred to the sole or single arbitrator. The prayer in the motion of 13/12/12 is the same with the prayer of the motion of 11/3/10 which has been granted. There is a subsisting order referring the matter to a sole arbitrator. This was done and the arbitrator?s decision was that it had no jurisdiction since a condition precedent has not been satisfied. This means that the arbitration award was not reached on the merit of the case sent to it. It was struck out since the arbitrator had no jurisdiction. This in my opinion was what informed the lower Court to arrive at the decision it reached on the motion of 13/12/12.
This is what the lower Court said in page 159 of the records in these words:
‘In the instant case, although an order was earlier made referring the matter to arbitration, the outcome of that proceeding is as stated/shown in exhibit A, see paragraphs 4 (e)- (g) of the affidavit filed in support of this application. By exhibit A, the application clearly establishes the fact that the proceedings at the arbitration did not determine the rights of the parties. The proceedings were shown to have terminated prematurely pursuant to an objection raised on jurisdiction. That effectively puts an end to the said proceeding and all that went with it and the case came full circle to the Court. No final decision has been shown to have been entered. This head of the objection is therefore overruled.’
The same Court had arrived on a decision on a similar application. The matter was referred to a sole arbitrator which declined jurisdiction on the premise that condition precedent upon which it can assume jurisdiction over the matter has not been satisfied. The issue here is not about the arbitration but whether the lower Court can grant the same application when the previous order is still subsisting.
This is not possible as the Court will be functus officio over the same matter. In Nigerian Army vs. Iyela (2008) 18 NWLR (pt 1118) 115, the apex Court held:
‘The position of the law is that once a Court or Tribunal delivered its final judgment in a case before it, it became functus officio with respect to that case. It has no power to reopen the case for the purpose of making corrections or changing any opinion expressed in its earlier judgment in the case. The only exception to this rule is where there is need to make minor permissible correction under the slip rule. What can be altered under the slip rule is not as to the substance of the judgment earlier delivered but limited to minor errors, such as spelling errors, typographical or mathematical errors wherein correct figures can be entered. See Berliet Nig. Ltd. v. Kachalla (1995) 9 NWLR (Pt.420) 478, Emordi v. Kwentoh (1996) 2 NWLR (Pt.433) 656, Ministry of Lagos Affairs, Mines & Power v. Akin Olugbade (1974) 11 S.C. (Reprint) 9; (1974) 1 All NLR (Pt.2) 226, Commissioner of Lands Midwest State v. Edo-Osagie (1973) 6 S.C. 155; (1973) 6 S.C. (Reprint) 112, and Umunna v. Okwuraiwe (1978) 6 & 7 S.C. 1 at 9; (1978) 6-9 S.C. (Reprint) 1.
Similarly, the Supreme Court in Buhari vs. INEC & Ors (2008) 12 SC (Pt. 1)1 held:
‘The next issue is whether the Court of Appeal was functus officio. Functus officio ordinarily means a task performed; having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. See Black’s Law Dictionary, 6th edition, page 673. The latinism means in practice the idea that the specific duties and functions that an officer was legally empowered and charged to perform have now been wholly accomplished and thus, the officer has no further authority or legal competence based on the original commission. This is because the thing which originally had life becomes dead or moribund after the performance of the duty or function by the authority. In our con, a Judge who has decided a question brought before him is functus officio, and cannot review his decision. See also Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) 275; Onwuchekwa v. CCB (1999) 5 NWLR (Pt. 603) 409; Anyaegbunam v. Attorney-General of Anambra State (2001) 6 NWLR (Pt. 710) 532; INEC v. Nnaji (2004) 16 NWLR (Pt. 900) 473.
A Court cannot be functus officio if it gives an anticipatory order, which is conditional to the possible implementation of the order or otherwise as in this case. This is because at the point of fulfillment, the party involved in the anticipatory order will return for a permanent relief. An order of a Court made subject to the happening of an event is not one given in total or whole and therefore cannot make the Court functus officio. In this case, the objector or objectors were given the right to raise objection on the admissibility of the documents and the Court of Appeal was perfectly in order to rule on their admissibility one way or the other. After all, the latinism of functus officio applies when the whole matter is resolved or dealt with by the Court. It will not apply where only a part of it is resolved or dealt with and a part of it is hanging. That part which was hanging in this case was the order “subject to the right of the opposing parties…..”
The Judge has to remove the hanger and he is not functus officio to do so. That was what Fabiyi, JCA., did and he is right in doing that. The appellant is wrong in castigating him for doing the right thing. The following cases cited by the Court are germane to the principle; and I agree with the Court: UBN Plc. v. Sparkling Breweries Ltd. (2000) 15 NWLR (Pt. 698) 200; Kabo Air vs. INCO Ltd. (2003) 6 NWLR (Pt. 816) 323; Agbi vs. Ogbe (2006) 5 S.C. (Pt. II) 129; (2006) 11 NWLR (Pt. 990) 65 and Dagaci of Dere vs. Dagaci of Ebwa (2006) 1 S.C. (Pt. I) 87; (2006) 7 NWLR (Pt. 979) 382. See; Citec Int.l Estate Ltd & Ors vs. Francis & Ors (2014) LPELR 22314 (SC). The lower Court haven decided on an application with the same prayer involving the same parties is functus officio on the matter. That apart, the ruling referring the matter to arbitration is still subsisting and no further order is needed. See Nwokedi & Ors vs. Okugo & Ors (2002) 16 NWLR (Pt. 794) 441. I resolved issue 2 in favour of the Appellant.
Though, the sole arbitrator did not settle the rights of the parties, since the earlier order is subsisting, it is not necessary to seek for another order to resume the arbitration. This is particularly when nothing has changed from the facts of the former application and the present application. I agree entirely with the Appellant that an order is not needed to resume arbitration as the earlier order is subsisting. All that is needed in my opinion is to meet the condition precedent and resume the arbitration. This also addresses issue 3 which I resolve in favour of the Appellant.
This appeal is allowed and the ruling of the lower Court is hereby set aside. I make no order as to cost.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the judgment prepared by my learned brother, Ebiowei Tobi, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The leading judgment of my learned brother, Ebiowei Tobi, JCA, which has just been delivered was made available to me in draft.
I entirely agree with, and do not desire to add to, the reasoning and conclusion therein articulated.
Accordingly, I equally allow the appeal on the same terms as set out in the leading judgment.
Appearances:
S. U. IWUOHA, Esq.For Appellant(s)
OLAJIDE SANNI, Esq.For Respondent(s)
