FASTECH NIGERIA LIMITED v ZAMFARA STATE GOVERNMENT & ORS (2019)

FASTECH NIGERIA LIMITED v ZAMFARA STATE GOVERNMENT & ORS

(2019)LCN/13325(CA)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of May, 2019

CA/S/56/2018

RATIO

ARBITRATION: WHETHER AN ARBITRATION CLAUSE PRECLUDES A COURT FROM HAVING JURISDICTION

That is not the true position of the law. Nay. The correct and proper position of the law is that an arbitration clause in an agreement generally, does not oust the jurisdiction of the Court or ipso facto preclude parties from having recourse to the Court. An arbitration clause is only a stop-gap process which should not generate heat of an ouster clause, nor should the choice of arbitration bar or exclude a resort to the Court. It only has the effect of staying the proceedings subject to the satisfaction of the necessary conditions. In CITY ENGINEERING NIG. LTD V. F. H. A. (1997)9 NWLR [PT.520] 224 the Supreme Court pronounced on this position of the law that an agreement to submit a dispute to arbitration clause does not oust the jurisdiction of the Court. Therefore, either party to such agreement may, before a submission to arbitration or award is made, commence legal proceedings in respect of any claim or cause of action included in the submission. See also MAGBAGBEOLA V. SANNI (2002)4 NWLR [PT.756] 193 OBEMBE V. WEMABOD (SUPRA).PER AMINA AUDI WAMBAI, J.C.A.

WHY AN ARBITRATION CLAUSE CANNOT OUST THE JURISDICTION OF A COURT FROM HEARING THE MATTER

The rationale for this position of law is for the reason that agreement of parties cannot override or exclude the constitutional or statutory jurisdiction conferred on the Court. It follows that when a party to an agreement containing an arbitration clause whereby the parties must first go for arbitration before trial fails to refer the matter to arbitration and decides to go to Court, the other person against whom the action has been instituted in Court must take certain steps for the proceedings to be stayed or postponed pending arbitration. The stay is not automatic and the Court will not grant the stay except the other person desirous of the stay brings himself within the ambit of Sections 4(1) or 5(1) of the said Arbitration and Conciliation Act.

Section 5(1) provides.

“If any party to an agreement commences any action in any Court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement may, at any time after appearance and before delivering pleading or taking any other steps in the proceedings, apply to the Court to stay proceeding.PER AMINA AUDI WAMBAI, J.C.A.

THE LAW MUST ALWAYS BE COMPLIED WITH AS REGARDS PROCEDURES

It is trite that where the law or statute specifies a particular mode or procedure by which a thing has to be done, only that mode or procedure and no other will be acceptable and it is not open to the parties to create, introduce or devise any other procedure other than that specified by the law or statute. Any such other mode or procedure adopted will be thrown back at the party, for he does so at his own peril and cannot be heard to complain. See OBARO VS. HASSAN (2013) LPELR-20089 (SC); INEC & ANOR V. ACTION CONGRESS & 4 ORS (2009) 2 NWLR [PT.1126] 524. In CONFIDENCE INS. LTD V. TRUSTEES OF O. S. C.E (supra) the Supreme Court held as follows: –

Under Section 5(1) of the Arbitration & conciliation Act which stipulate the procedure for evoking the arbitration clause contained in an agreement, it is not open to a party thereto to invent or introduce his own mode for raising the right embedded in the arbitration clause.PER AMINA AUDI WAMBAI, J.C.A.

THE DUTY OF THE COURT WHEN IT WANTS TO RAISE ISSUES SUO MOTU

While a Court of law, both trial and Appellate, is empowered suo motu to raise an issue which it considers necessary for the proper determination of the case or appeal, it must before deciding on the issue so raised, involve the parties by inviting them for their input. Parties must be given an opportunity to address the Court on the issue raised, even if the issue is that of jurisdiction, particularly the party that will be negatively or adversely affected by the issue so raised. See KUTI V. BALOGUN (1989) 1 NWLR [PT.99] 566, 581.PER AMINA AUDI WAMBAI, J.C.A.

WHEN THE COURT SHOULD NOT RAISE ISSUES SUO MOTU

It is most inappropriate for the Court to suo motu raise an issue the resolution of which will determine the case or the appeal as the case may be, and in the resort of this chambers resolve the issue behind the parties. Doing so will be prejudicial to the effected party; it will amount to a denial of his constitutional right to fair hearing and occasion a miscarriage of justice. See LEVENTIS (NIG) PLC V. AKPU (2007)17 NWLR [PT.1063]416. In AYETORO COMMUNITY TRADING CO. LTD V. NACB LTD (2000)12 NWLR [PT.834)346, @376, the Court held thus.PER AMINA AUDI WAMBAI, J.C.A.

WHAT THE COURT MUST AVOID IN RAISING ISSUES SUO MOTU

This is why the apex Court has warned in several decisions including the cases of OSHODI & ORS V. EYIFUNMI & ORS (2000) 13 NWLR [PT.684] 298, 332 & MOJEKWU V. IWUCHUKWU (2004) 11 NWLR [PT.883] 196, against the practice by Courts of raising a point suo motu and deciding it without inviting parties to address it on the matter or without considering the view of the other side.PER AMINA AUDI WAMBAI, J.C.A.

SECTION 23 OF THE COURT OF APPEAL ACT: INTERPRETATION

Section 23 of the Court of Appeal Act provides: –

On the hearing of an Appeal under this part of this Act, the Court of Appeal may exercise any power that could have been exercised by the Court below or may order the case to be re-tried by a Court of competent jurisdiction.

This section empowers this Court to exercise the powers which the lower Court could have exercised and to do what the lower Court could and ought to have done but failed to do. It enables this Court to place itself in the shoes of the lower Court and assume jurisdiction of the trial Court. In the exercise of this power, this Court is empowered for the purpose of saving the valuable judicial time much needed in the administration of Justice, to make orders which the lower Court is empowered to make, rather than sending back the case to the lower Court. See INAKOJU & ORS V. ADELEKE & ORS (2007) I SC [PT.1] 1 Also reported as (2007)2 FWLR [T.366] 2403, HARKA AIR SERVISE (NIG) LTD V. KEAZOR (2011)13 NWLR [PT.1264] 320.PER AMINA AUDI WAMBAI, J.C.A.

SUMMARY JUDGMENT: NATURE

Now, summary judgment is granted on a claim for liquidated money demand about which there is no genuine issue of material fact and in which the Applicant is entitled as a matter of law to prevail. It does not apply where the facts are in conflicts or the claim is not for liquidated demand or is of the nature that requires proof. The summary judgment procedure which is analogous to the undefended list procedure is aimed at enabling the plaintiff obtain quick judgment without the normal rigours of a full trial where the plaintiff`s case is patently clear and unassailable and the defendant has no genuine defence to the claim. It is to prevent sham defence from defeating the plaintiff`s right to justice by an unnecessary protracted frivolous litigation. SeeU.B.A VS. JARGABA (Supra) cited by the Appellants counsel where the Court held that summary judgment applies to where there is no reasonable doubt that a plaintiff is entitled to judgment and it will be inexpedient to allow the defendant defend for mere purpose of delay.

It is however, not intended or designed to shut out the defendant who shows that he has a defence to the plaintiffs claim or there is a triable issue. NKWO MARKET COMMUNITY BANK (NIG) LTD VS OBI (2010)14 NWLR [PT. 1213] 169 SC; AKPAN VS AKWA IBOM PROPERTY INVESTMENT CO. (2013) LPELR 20753 (SC).PER AMINA AUDI WAMBAI, J.C.A.

JUSTICES

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

FASTECH NIG. LTD – Appellant(s)

AND

1. ZAMFARA STATE GOVT.

2. DIRECTORATE FOR RURAL WATER SUPPLY, ZAMFARA STATE

3. ATTORNEY GENERAL, ZAMFARA STATE – Respondent(s)

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): The ruling of Hon. Chief Judge of Zamfara state, Kulu Aliyu, OFR, in Suit No. ZSM/GS/32/2017 in motion No. ZSM/GS/M.275/2018 delivered on 1st February, 2018 which dismissed the Appellant’s motion for summary judgment, gave rise to this Appeal. The background facts leading to this appeal are that on the 24th May, 2017 the Appellant as plaintiffs before the lower Court, took out a Writ of Summons pursuant to Order 11 Rule 1 of the Rules of the lower Court for liquidated money demand, filed a statement of claim with the necessary accompanying processes and exhibits, and on the same date, filed a Motion on Notice for summary judgment against the respondent as dependents claiming inter alia the following Reliefs: –

1. An Order of this Honourable Court entering summary judgment against the Defendants and in favour of the Plaintiff/Appellant as per Paragraph 11 of its Statement of Claim as follows: –

(1) An Order of this Honourable Court on the Defendants to pay the Plaintiff forthwith the sum of Twenty Four Million, Three Hundred and Seventeen Thousand, Three Hundred and

Seventeen Naira Fifty Kobo (24,317,317.50) only, being the outstanding contract sum of the contract job executed by the Plaintiff upon the contract agreement duly signed between the Plaintiff and the Defendants, and having completed the said job the Defendants refused, neglected, willfully and unlawfully withheld payment to the Plaintiff.

(2) An order of this Honourable Court on the Defendants to pay post judgment interest of 30% per annum on the sum of Twenty Four Million, Three Hundred and Seventeen Thousand, Three Hundred and Seventeen Naira Fifty Kobo (24,317,317.50) only from the date of judgment until final liquidation thereof.

(3) A perpetual order of this Honourable Court restraining the Defendants, their agents, servants, and/or any other person whatsoever acting on their behalf or on their instructions howsoever from further withholding from the Plaintiff the said outstanding sum.

Upon being served, the Respondents entered a conditional appearance on 8/6/2017, and on 5/7/2017, filed a Notice of preliminary objection in opposition to both the substantive suit and the motion for summary judgment which they failed to move. On the

29/11/2017, the Appellant moved the Court for summary judgment.

In his Ruling the learned trial Chief Judge held inter alia: –

Where there is an arbitration clause in a contract agreement, such avenue should be exhausted before a party approaches the Court. In the circumstance therefore since the parties have not exhausted the opportunity of arbitration in this case, it is the view of this Court that this application cannot be granted by the Court. Accordingly, the application for summary judgment is refused and it is dismissed.

Angered by the said Ruling, the Appellant through its counsel approached this Court by a Notice of Appeal filed on the 13th February, 2018 predicated on the following two grounds, shun their particulars, namely: –

1. The trial Court erred in law when, without any contrary materials placed before it, it dismissed the Appellants Motion on Notice for Summary Judgment brought under Order 11 Rule 1 and Order 15 Rule 1 of the High Court (Civil Procedure) Rules, 2014, of Zamfara State.

2. The trial Court erred which error occasioned a miscarriage of justice when it descended into the arena of

conflict, and while dismissing the application of the Appellant for summary judgment it held that In the present case there is nothing before the Court to show that either of the parties has given notice to the other in respect of the dispute The only thing before the Court is Exhibit 3 which is a letter of appeal for payment of outstanding liability The parties are bound by their agreement.

From these two grounds of appeal learned Abbas Abdullahi Machika Esq who settled the Appellants brief of argument filed on 4th October, 2018 distilled two issues for determination to wit: –

1. Whether the Appellant was entitled to summary judgment, and the trial Courts dismissal of its application was erroneous? (Distilled from Ground 3.1).

2. Whether the trial Court descended into the arena of conflict of the parties and made a finding that occasioned a miscarriage of justice against the Appellant? (Distilled from Ground 3.2).

Sirajo Abdullahi, Deputy Director, Civil Litigation and Alyasa?u Muhammad, Senior State Counsel, Ministry of Justice Zamfara State who settled the

Respondents brief of argument deemed filed on 19/3/2019, submitted a lone issue for determination, thus: –

WHETHER THE TRIAL LOWER COURT WAS RIGHT WHEN ITS REFERRED THE APPELLANT/PLAINTIFF`S SUIT ZMS/GS/30/2017 FOR ARBITRATION

Considering the substance of the Appellants two issues and the argument canvassed thereon as well as the Respondent`s sole issue and argument in support, a sole issue culled from these issues put forward by both counsel as cast below, will determine this Appeal, to wit: –

WHETHER THE LEARNED TRIAL CHIEF JUDGE WAS RIGHT IN DISMISSING THE SUIT ON GROUND OF EXISTENCE OF ARBITRATION CLAUSE IN THE CONTRACT AGReEMENT RATHER THAN ENTERING SUMMARY JUDGMENT FOR THE APPELLANT AS PRAYED”

Arguing the Appeal, the Appellant`s Learned Counsel submitted in support of his two issues in the main, that the Appellant, by its processes filed before the Court, complied with the provision of Order 11 Rule 1 and made out a case for summary judgment. That the Respondents failure to defend the suit by refusing to file a statement of defence; deposition of witnesses; exhibits to be used in defence; and a written

address in reply to the appellant`s application as required by Order 11 Rule 4 entitled the Appellant as provided by Order 11 Rule 5(2) of the same Rules of Court, as of right to summary judgment, against the respondents who did not file any process or even attend the Court on the date of hearing. The cases of U.B.A VS JARGABA (2007) 11 NWLR (PT.1045) 247 G-H and BONA VS ILE LTD VS A.T.M PLC (2013)2 NWLR (PT.1338) 357 @ 372 E-G. were cited in support.

It was contended that the preliminary objection which the respondents filed but failed to move and which the lower Court found as abandoned, cannot be the documents envisaged by Order 11 Rule 4. Curiously, however, counsel submitted, despite that finding, the learned trial chief Judge raised the issue of submission to arbitration which was the subject of the abandoned Preliminary Objection and resolved same without considering the Appellant`s submission in opposition, thereby throwing over board and jettisoning all the judicial authorities cited by the Appellant that the conditions precedent for the Respondents to seek arbitration were not met. He accused the lower Court of proceeding without any legal

or justifiable reason, to dismiss the Appellant`s unopposed application for summary judgment.

The judicial authorities which counsel complained were ignored by the lower Court are: –

1.) OBEMBE V. WEMABOD ESTATES LTD (1977) NSCC 264 at page 265 lines 20 40.

2.) K.S.U.D.B. V. FANZ CONST. CO LTD (1990) 4 NWLR 1.

3.) CONFIDENCE INS. LTD V. TRUSTEES OF O.S.C.E. (1999) 2 NWLR part 591 P373 ratio 1 at page 376.

4.) A.I.D.C. V. NIG. L.N.G. LTD (2000) 4 NWLR part 653 at page 504 at paragraph A-G and E.

In conclusion we were urged to resolve the issue in favor of the Appellant, allow the appeal and invoke Section 23 of the Court of Appeal Act to enter summary judgment for the Appellant as claimed.

Responding, it was submitted for the Respondents that the Learned trial Chief Judge was right in dismissing the Appellant`s suit in that the parties having voluntarily entered into the contract agreement containing clause 45 which provides that any dispute or difference arising from the contract should be settled by Arbitration, the parties are bound by the Arbitration Clause and the Court of law will not sanction an

unwarranted departure therefrom unless abrogated or discharged, citing in support the cases of ARTRA INDUSTRIES (NIG) LTD v. NIG. BANK FOR COMMERCE & INDUSTRY (1998)4 NWLR [PT.546]357, SC AND JERIC (NIG) LTD V. UNION BANK OF NIG. PLC (2000) 15 NWLR [PT.691] 447 @ 462-463 SC.

He contended that a person seeking the enforcement of contract must show that he has either fulfilled or is ready and willing to fulfil all the conditions precedent which ought to have been performed by him, as was decided in the case of FGN V. ZEBRA ENERGY LTD (2002) 3 NWLR [PT.754] 472 CA. Our attention was drawn to clause 45 of Exhibit A of their affidavit in support of the preliminary objection and Section 4(1) & 5(1) of the Arbitration & Conciliation Act LFN 2004 which he urged us to invoke. For the conditions to be fulfilled before a suit can be stayed or referred to arbitration, he referred to the cases ofA.I.D.C. VS. NG. LNG (2000) 4 NWLR [PT.653] 494, 594 & CONFIDENCE INDUS. LTD VS TRUSTEES OF O. S. C. E. (1999) 2 NWLR [PT. 591] 373 and submitted that there is no need for them to file a statement of defence before raising the issue of jurisdiction, calling in

aid the cases of ELABANJO VS. DAWODU (2006) [PT.1001] 76 (incomplete citation), A. G. F. VS PARAS F.G. Per M.U. PETER-ODILI, JSC.

The lower Court, counsel insisted, was right in dismissing the Appellants suit as it is the duty of every Court to determine the issue of jurisdiction brought before it before proceeding with the determination of any matter, jurisdiction being the authority or power by which the Court decides a matter before it, without which any decision reached will be a nullity. The cases of MADUKOLU vs NKEMIDILIM (1962)2 NSCLR 341, AGF VS AG ANAMBRA (supra) and SALISU VS MOBOLAJI (2013) LPELR 22019(SC) were cited in support. We were urged to resolve the issue in favor of the Respondent, dismiss the appeal with substantial cost and affirm the decision of the lower Court.

It is necessary on the outset to articulate the position of each party in this appeal to appreciate the issue in contention. The centerpiece of the argument of the learned counsel for the appellant is that the respondents failure to file the necessary processes in compliance with Order 11 Rule 4 of the Zamfara State High Court (Civil Procedure) Rules, 2014 (now

simply referred to as the Rules of the lower Court), entitles the Appellant to summary judgment and the lower Court ought not to have raised and resolved the issue of submission to arbitration which the Respondents abandoned and without considering his own side of the argument. The Respondents on the other hand do not dispute the fact that they did not file the said processes enumerated in Order 11 Rule 4, but contend that since the presence of arbitration clause in a contract agreement ousts the jurisdiction of the Court, they need not file a statement of defence to the appellants suit or motion for summary judgment.

The main issue which these disconcordant positions of both counsels throws up for determination bearing in mind that the respondents preliminary objection which challenged the jurisdiction of the Court was abandoned, is the propriety of dismissing the Appellants claim for summary judgment on the ground of the existence of an arbitration clause in the contract.

In the first place it is a misconception of the law to argue that the mere presence of an arbitration clause in a contract, or agreement by parties to submit a

dispute to arbitration, ousts the jurisdiction of the Court. That is not the true position of the law. Nay. The correct and proper position of the law is that an arbitration clause in an agreement generally, does not oust the jurisdiction of the Court or ipso facto preclude parties from having recourse to the Court. An arbitration clause is only a stop-gap process which should not generate heat of an ouster clause, nor should the choice of arbitration bar or exclude a resort to the Court. It only has the effect of staying the proceedings subject to the satisfaction of the necessary conditions. In CITY ENGINEERING NIG. LTD V. F. H. A. (1997)9 NWLR [PT.520] 224 the Supreme Court pronounced on this position of the law that an agreement to submit a dispute to arbitration clause does not oust the jurisdiction of the Court. Therefore, either party to such agreement may, before a submission to arbitration or award is made, commence legal proceedings in respect of any claim or cause of action included in the submission. See also MAGBAGBEOLA V. SANNI (2002)4 NWLR [PT.756] 193 OBEMBE V. WEMABOD (SUPRA).

Similarly, in CONFIDENCE INS. LTD VS TRUSTEES OF O. S. C. F.

(supra) the apex Court clearly stated that the inclusion of arbitration agreement does not in any form oust the jurisdiction of the Court in any action. All that can happen is that an action filed in Court may be stayed on the application of a party to the agreement. Therefore, what an arbitration clause in an agreement does is simply to postpone the right of either of the parties to litigation whenever the other contracting party elects to submit the dispute under the agreement to arbitration.

himself within the ambit of Sections 4(1) or 5(1) of the said Arbitration and Conciliation Act.

Section 5(1) provides.

By the reproduced provision, where a party to an arbitration agreement commences an action in Court, the other party like the Respondents herein, has the option after entering appearance but before filing pleadings or taking any steps in the proceedings, to apply to the Court to stay the proceedings. On the other hand, by virtue of Section 4(1), the Court shall, upon request of any person not later than when submitting his first statement on the substance of the dispute, order a stay of proceedings and refer the parties to arbitration. Instructively, however, for the party to bring himself within the ambit of Sections 4(1) and 5(1), he must in addition to not having filed a defence

or taking any further steps, file an application to the Court asking for stay of proceedings and referral of the case to arbitration. Simply not having filed a defence or taking any further steps after entering an appearance does not entitle him to an order of stay of proceedings or reference to arbitration. He must comply with all the 3 conditions, namely (i) enter appearance, (ii) file no defence or take no further steps in the proceedings and then (iii) apply to the Court to stay the proceedings pending arbitration. These three conditions which must all co-exist are the conditions precedent to the grant of stay.

In either case of Section 5(1) or 4(1) of the Act, there must be an application or a request by the other party to the Court to stay proceedings and to refer the matter to arbitration. Indeed, it is upon the fulfilment of the first pre-condition of an application to the Court, that the Court can proceed to enquire into the fulfilment of the other two conditions. Satisfaction of one or two of the 3 conditions does not entitle the party to the relief claimed. Put differently, failure to establish any of the 3 conditions automatically

disqualifies the party from having the proceedings stayed or referred for arbitration. Therefore, in the absence of an application or request to the Court as envisaged by Sections 4(1) & 5(1) of the Act, it is futile for the respondents to argue that the other conditions are satisfied. Where entitlement to a relief claimed is dependent on satisfaction of several conditions which must co-exist, it is futile to claim entitlement to the relief by establishing satisfaction of only one of such conditions. See NIG. L.N.G. LTD vs. A. I. D. C. (2000)4 NWLR [PT.653], 504.

As evident by the very clear and explicit phrases used in Section 5(1) and 4(1), an application or request must be made by the party desirous of the stay before the proceedings, can be stayed.

The corollary double barrel question thrown up from the foregoing is whether the abandoned Notice of preliminary objection amounts to and can operate as the application or request envisaged by Section 5(1) or 4(1) of the said Arbitration Act. Without any much ado or circumlocution, a process filed before the Court which the party who has filed it takes no steps to move, or as in this case, even

fails to appear in Court to pursue, is as correctly found by the lower Court, deemed as abandoned. The filing of the preliminary objection is one thing, the moving of same is another. A Court process, a Notice of preliminary objection inclusive, which is filed but not moved in Court, is as good as not having been filed. See UPS LTD V. UFOT (2006)2 NWLR [P.963]1. In OFORKIRE V. MADUIKE (2003)5 NWLR [PT.812] 166. In this case, the preliminary objection filed by the Respondent and opposed by the Appellant which the Respondents failed to move, is for all intents and purposes deemed as having not been filed and legally not before the Court for the learned trial Chief Judge to look into.

Moreover, assuming the preliminary objection had been moved, it is not the application envisaged by Sections 5(1) and 4(1) of the Act. The said sections envisage an application and not a preliminary objection. It is trite that where the law or statute specifies a particular mode or procedure by which a thing has to be done, only that mode or procedure and no other will be acceptable and it is not open to the parties to create, introduce or devise any other procedure other than

that specified by the law or statute. Any such other mode or procedure adopted will be thrown back at the party, for he does so at his own peril and cannot be heard to complain. See OBARO VS. HASSAN (2013) LPELR-20089 (SC); INEC & ANOR V. ACTION CONGRESS & 4 ORS (2009) 2 NWLR [PT.1126] 524. In CONFIDENCE INS. LTD V. TRUSTEES OF O. S. C.E (supra) the Supreme Court held as follows: –

The Respondents herein neither followed the laid down procedure of filing an application for stay of proceedings nor moved even the wrong process, the Notice of Preliminary Objection, they filed. There was simply no application before the lower Court for the stay of proceedings.

While a Court of law, both trial and Appellate, is empowered suo motu to raise an issue which it considers necessary for the proper determination of the case or appeal, it must before

deciding on the issue so raised, involve the parties by inviting them for their input. Parties must be given an opportunity to address the Court on the issue raised, even if the issue is that of jurisdiction, particularly the party that will be negatively or adversely affected by the issue so raised. See KUTI V. BALOGUN (1989) 1 NWLR [PT.99] 566, 581.

A trial or appellate Court can as of right raise issues that may aid the determination of the issue in controversy but it cannot decide such issue without the parties counsel reacting to such issue raised suo motu by the Court. However, in order to

maintain the judicial neutrality and thereby enable the judge refrain from deciding case or issues raised suo motu in his judgment, the best posture for the judge is to confine himself on issue of fact solely raised by the parties.

In the instant case, the lower Court in the absence of any application before it, suo motu raised the issue of the existence of an arbitration clause in the contract, and resolved same against the Appellant that arbitration be first exhausted before litigation, without, as argued by the Appellants counsel, giving a consideration to the Appellant`s own argument. This is wrong.

Having raised the issue suo motu, the Respondents preliminary objection and written address having being abandoned, the learned trial Chief

judge ought to have considered the Appellants argument in opposition and pronounce on it, one way or the other for whatever it is worth, before resolving the issue so raised, against the appellant.

Furthermore, had the Respondents complied with the provisions of Section 5(1) or 4(1) of the Act to the satisfaction of the Court, the proper order which the Court is empowered to make is that of stay of proceedings and not that of dismissal of the Appellants claim or Application for summary judgment. The trial Court, with respect, went ahead of the law when it dismissed the Appellants motion for summary judgment.

The Appellants counsel has urged us to invoke Section 23 of the Court of Appeal Act, 2004, to enter summary judgment for the Appellants in term of its claim.

Section 23 of the Court of Appeal Act provides: –

This section empowers this Court to exercise the powers

which the lower Court could have exercised and to do what the lower Court could and ought to have done but failed to do. It enables this Court to place itself in the shoes of the lower Court and assume jurisdiction of the trial Court. In the exercise of this power, this Court is empowered for the purpose of saving the valuable judicial time much needed in the administration of Justice, to make orders which the lower Court is empowered to make, rather than sending back the case to the lower Court. See INAKOJU & ORS V. ADELEKE & ORS (2007) I SC [PT.1] 1 Also reported as (2007)2 FWLR [T.366] 2403, HARKA AIR SERVISE (NIG) LTD V. KEAZOR (2011)13 NWLR [PT.1264] 320.

rigours of a full trial where the plaintiff`s case is patently clear and unassailable and the defendant has no genuine defence to the claim. It is to prevent sham defence from defeating the plaintiff`s right to justice by an unnecessary protracted frivolous litigation. SeeU.B.A VS. JARGABA (Supra) cited by the Appellants counsel where the Court held that summary judgment applies to where there is no reasonable doubt that a plaintiff is entitled to judgment and it will be inexpedient to allow the defendant defend for mere purpose of delay.

By Order 11 Rule 1 of the Zamfara State High Court (civil procedure) Rules, 2014, a plaintiff who believes that there is no defence to his claim, shall file the originating process; the statement of claim; the Exhibits; the deposition of his witnesses; and an application for summary judgment, which shall be supported by

an affidavit stating the grounds of his believe, and a written addresses in respect thereof. By Order 11 Rule 4, upon service of the processes on the defendant, a defendant who intends to defend the suit shall not later than the time prescribed by the Rules for filing a defence, file (a) a statement of defence; (b) Deposition of witnesses; (c) the Exhibits to be used in the defence and (d) a written address in reply to the application for summary judgment. Where upon the evaluation of all the parties pleadings, the depositions in the affidavits and Exhibits before the Court pursuant to Rule Order 11 Rule 5(1), the trial judge finds that the defendant has a good defence and ought to be permitted to defend the action, the defendant shall be granted leave to defend the suit and the case will be transferred to the general cause list. SeeSCIRROCCO INT. LTD VS UNITY BANK PLC (2016) LPELR 40265 (CA); DENTON WEST VS MUOMA (2007) LPELR 8172(CA). Where however, the defendant fails or neglects to comply with Rule 4 or does comply, but it appears to the Court that the defendant has no good defence to the claim, summary judgment may be entered for the

plaintiff. See NISHIZAWA VS JETHWANI (1984) 12 SC 334, MACAULAY VS NAL MERCHANT BANK (1990) 4 NWLR [PT. 144] 238.

In the case at hand, in compliance with Order 11 Rule 1, the Appellant filed its statement of claim, the list of witnesses to be called at trial, the Appellants witness deposition of one Abdulkadir Aliyu and several documentary exhibits including the contract agreement, an Appeal letter for payment dated 20/12/2016 which was addressed to the Executive Governor of Zamfara State among others. The Appellant also filed a motion for summary judgment accompanied by a 4 paragraphed affidavit and a written address. By these processes and exhibits which show that the Respondents and the Appellant executed a contract agreement for the construction of 2 No. motorized boreholes at Kalale and Takalwa villages in Zurmi Local Govt. Area which contract the Appellant had successfully executed but the Respondents have neglected or refused to pay the Appellant the outstanding contract sum of 24,317,317.50k despite several demands, the Appellant had placed sufficient materials before the Court entitling it to summary judgment.

That the

Respondents did not file a Statement of Defence or any other processes listed in Order 11 Rule 4 is not in contention. Respondents only filed a Notice of Preliminary Objection which they abandoned. The learned trial Chief Judge correctly found that the Respondents did not comply with Order 11 Rule 4 but failed to give effect to the consequence of such non-compliance as stipulated by Order 5 (2) to wit:

Where any defendant fails or neglects to comply with the provisions of Rule 4 of this Order, or it appears to the Judge that the defendant has no good defence to the claim, the Judge may enter Judgment for the plaintiff.

The consequence of the defendants failure to file a defence or filing a defence that discloses no good defence is that the defendant admits the plaintiffs claim or has no good defence to the claim and judgment may be entered for the plaintiff. See MAJA V. SAMOURIS (2002) 7 NWLR (PT. 765) 78. Except the plaintiffs case is patently impotent, hopelessly woeful, or is of a nature that is not ideal or suitable for summary judgment, there is no reason why summary judgment should not be entered for the

plaintiff.

The Appellants case not falling within any of the listed or acceptable exceptions, and having made out a case for summary judgment, the Appellant is entitled to summary judgment, and by virtue of Section 23 of the Court of Appeal Act, this Court is empowered to enter summary judgment for the Appellant to the extent that the lower Court is empowered to have done.

The Appellants reliefs are contained at paragraph 11(1) (4) of the Statement of Claim. Its relief at paragraph 11(2) is for 30% post-judgment interest per annum of the judgment sum. Let me state that the power donated by Section 23 does not extend to permitting the doing of what the lower Court is not empowered to do or what this Court is by law not empowered to do. The rate of post-judgment interest payable to a judgment creditor and awardable by the Court, is essentially statutory, usually provided by the Rules of Court. Any post-judgment interest rate above the maximum rate of 10% per annum provided by the relevant Rules of Court is outside the parameters of the law. See AKUDO V. GUINNESS (NIG) PLC (2012) 15 NWLR (PT. 1322) 156 AT 164, EKWUNIFE V. WAYNE(WEST AFRICA) (1989) 4 NWLR (PT. 122) 422. Such interest

rate claimed outside the maximum rate provided by the Rule of Court, in my humble view, is ungrantable. I shall accordingly not grant same.

Similarly, relief 11(4) for general damages in the sum of 5,000,000.00 is generally not grantable under the undefended list procedure to which the summary judgment procedure is akin. A claim for general damages which is at large and at the discretion of the Court, is unascertainable and unquestionably, is a claim for unliquidated money demand which is unavailable for and cannot be granted under the summary judgment procedure except where the parties to a contract, as part of the agreement, fix the amount payable on the default of one of them or in the event of breach by way of damages such that the same can be classified as liquidated damages. See INCAR V. BENSON (1975) 3 SC 117, ODULAJA V. HADDAD (1973) 11 SC 357 and in particular MAJA V. SAMOURIS (2002) 7 NWLR (PT. 765) 78 as applied and relied upon by this Court in the case of IBRAHIM KHALIL AHMED V. ALH. GAMBO DANPASS (2014) LPELR 24620 (CA) among several others. Where that has not been done, and

there is nothing here to show that the parties fixed any amount payable as damages upon default by the other, general damages cannot be claimed and if claimed cannot be awarded under this procedure. It is for this stated principle of law, that I shall also not grant the prayer for 5,000,000.00 general damages.

On the whole and in conclusion, the sole issue is resolved in favour of the Appellant against the Respondents as the appeal is found to be meritorious. Accordingly, by virtue of the powers donated to this Court by Section 23 of the Court of Appeal Act, Summary Judgment is hereby entered for the Appellant in terms of its reliefs contained at paragraphs 11(1) and 11(3) of its Statement of Claim earlier reproduced in the Judgment. The reliefs contained at paragraphs 11(2) and 11(4) also earlier reproduced, for 30% post-judgment interest and 5,000,000.00 general damages, respectively are refused.

AHMAD OLAREWAJU BELGORE, J.C.A.: I agree.

FREDERICK OZIAKPONO OHO, J.C.A.: I agree.

Appearances:

Abbas Abdullahi Machika, Esq.For Appellant(s)

Sirajo Abdullahi, Esq., Deputy Director, Civil Litigation, Ministry of Justice, Zamfara StateFor Respondent(s)

Appearances

Abbas Abdullahi Machika, Esq.For Appellant

AND

Sirajo Abdullahi, Esq., Deputy Director, Civil Litigation, Ministry of Justice, Zamfara StateFor Respondent

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