INNOSON TECHNICAL & INDUSTRIES CO. LTD v. FRCN (2021)

INNOSON TECHNICAL & INDUSTRIES CO. LTD v. FRCN

(2021)LCN/15133(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Monday, May 10, 2021

CA/E/129/2015

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

INNOSON TECHNICAL & INDUSTRIES COMPANY LIMITED APPELANT(S)

And

FEDERAL RADIO CORPORATION OF NIGERIA (FRCN) RESPONDENT(S)

RATIO

EFFECT OF A VALID AND BINDING AGREEMENT REDUCED INTO WRITING

The law is that, a valid and binding agreement of parties put in writing cannot be vitiated or departed from or altered unilaterally or by oral evidence except in the circumstances agreed by the parties. In this wise, Section 132 of the Evidence Act provides that when an agreement and its terms are reduced into writing, no oral evidence shall be led except to prove fraud, mistake, misrepresentation or any of the vitiating elements such as illegality, see also DALEK V. OMPADEC (2007) 2 SCNJ 218. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

INTERPRETATION OF SECTION 5(1) OF THE ARBITRATION AND CONCILIATION ACT, 2004 REGARDING RIGHT OF ANY OF THE PARTIES TO AN ARBITRATION AGREEMENT TO APPLY FOR STAY OF PROCEEDINGS WITH RESPECT TO AN ACTION COMMENCED IN ANY COURT WITH RESPECT TO ANY MATTER WHICH IS THE SUBJECT OF THE ARBITRATION AGREEMENT

By the Section 5(1) of the Arbitration and Conciliation Act, 2004 “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 Arbitration Agreement may at any time after appearance and before delivery of any pleadings or taking any further steps in the proceedings apply to the Court to stay proceedings.” The Appellant herein, also had the right to so do as above, if it were the Respondent that had sued. This right to apply for stay of proceedings annured in favour of all the parties and may be invoked by either party to the Agreement. This is where there is an Arbitral Agreement. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, sitting at Enugu delivered in suit NO.FHC/EN/CS/190/2012 on the 13th May, 2014, where at the Court in a motion on Notice pursuant to Section 5(1) and (2) of the Arbitration and conciliation Act, Cap A, Laws of the Federation, 2004, Order 26 Rules (1) (2) (3) and (4) of the Rules of the Federal High Court, 2009 and under the inherent jurisdiction had granted a stay of proceedings in the suit filed by writ of summons pending arbitration. The dispute between the parties arose from a lease agreement dated the 11th day of June, 2011, between the parties for the development of a Residential Duplex comprising a 6 Bedrooms, 2 Bedroom servant quarter with ancillary structures. Whereby, the possession and/or proprietary management of the property known as No.3 Savage Crescent, GRA Enugu, warranted by the Respondent as the Bonafide Respondent thereof was purportedly assigned to the Appellant, on the mutually agreed payment of N20,000,000 (Twenty Million Naira) as consideration. Clause 4.1 of the agreement stipulates that:

“The corporation shall:
(a) …
(b) … formally hand over the site to the Developer within two weeks of the signing of this Lease Agreement to start the project.
(c) Assist the Lesee Developer in obtaining other regulatory approvals with the Federal, State and Local Authority”.

When the Appellant eventually attempted to commence building operations thereon setting up a Wall Fence, Gate House and Workshop Base, along with the other building materials brought unto the site, all these were to its surprise completely pulled down and the materials destroyed by unknown elements, for which due complaints were made both to the Respondent and the Abakaliki Road Nigeria Police detachment Enugu, without any meaningful result. At the request of the Appellant for an authentic Survey Plan of the property, the Respondent by letter dated 5th August 2011 addressed to the Surveyor General, Ministry of Lands and Housing Enugu, purported to have authorized the Appellant’s nominated Surveyor to carry out the Survey works on the Corporation’s behalf, but this turned out to be a fluke. When the Appellant on further inquiries discovered

that the request should have been properly directed to the Federal Ministry of Lands, Housing and Urban Development, Field Headquarters Enugu, as the true owners of the property.

Meantime, several correspondences on the impasse were exchanged between the parties, until the true facts crystalised through a letter dated 8th September, 2011, addressed to the Appellant issuing from the Resident Lands’ officer for the Federal Controller of Lands, Housing & Urban Development Enugu, conveying the information inter alia that:
i. ‘No 3 Savage Crescent GRA Enugu had since been sold out’.
ii. That the beneficiary of the same had been issued with a Certificate of Occupancy by the Federal Government since 24th May, 2011.
iii. Advising the Appellant to ‘take steps to recover the sum paid under the transaction since the purported lease to it was deceitful’.

Inspite of this firm authoritative official statement from the Federal Government owners of the property, the Respondent continued with ‘the deceit’, when by its letter dated 7th January, 2012, it is now for the first time conceded, the existence of what it described as ‘the ownership tussle over the

property’, which it claimed had been resolved in its favour. When however, it became certain that the Respondent, not only had no authority to conduct the said Lease transaction, nor at anytime was the OWNER of the subject property, the Appellant by letters dated 7th February, 2012, May 3rd, 2012 and June 11th, 2012 demanded the refund of aforesaid consideration paid thereon along with consequential damages arising therefrom. Nothing was heard from the Respondent until 20th December, 2012, when the Writ of Summons thereto was issued.

Appellant’s Statement of Claim with the requisite processes filed are contained at Pages 5 – 61 Records and at Pages 62-79, the Respondent after the entry of its Appearance raised a Notice of Motion seeking:
“An order of the Honourable Court for stay of proceedings in the Suit pending arbitration by the parties”.

The Appellant’s reaction thereto is as contained at pages 80 – 89 and later, the Respondent’s Reply on points of law as at pages 90-92 filed along with another process headed, “Further Affidavit in Support of Motion for Stay of proceedings’ – (See Pages 93-109).

The proceedings at the hearing of the

application are contained at pages 112-118 and at page 116 lines 13-15 the lower Court’s Ruling on the Respondent’s Application for Extension of Time and the Leave sought for filing the aforesaid “Further Affidavit”, held:
“Motion for extension of time for Defendant to file reply on points of law in response to plaintiff’s counter affidavit is granted. Leave for filing of further affidavit is hereby refused, same is accordingly struck out”.

At the conclusion of the arguments, the lower Court rendered its Ruling as at pages 120-124, granting the Stay of proceedings on the Suit pending arbitration by the parties, against which we filed the Appellant’s Notice/Grounds of Appeal at pages 130-134 (repeated at pages 135-139).

Dissatisfied with the order staying the proceedings in the suit, on the ground that there had been a total failure of consideration warranting only the grant of the reliefs as sought by the Plaintiffs/Appellant rather than any stay for arbitration, there being no valid arbitration clause to be invoked for any determination of dispute as it had become apparent from the Defendant/Respondent’s position that there was no valid and

subsisting lease agreement the subject property not existing in factual or legal title in favour of the purported lessor.

At the hearing of the Appeal, the Appellant’s learned counsel, Okolo, SAN leading A.N. Duru, Esq. submitted that the appeal should be allowed as the Respondent has not complied with the terms of the contract. The Respondent’s learned counsel, K.I. Ugwu, Esq on his part urged this Court to dismiss the appeal as lacking in merit. In adumbration of their respective positions, the parties had filed and exchanged their respective Briefs of Argument. The Appellant’s Brief of Argument filed on 24th March, 2016, and deemed filed within time consequent the regularisation of the Appellant’s record of appeal on 18-2-2021 has raised three (3) issues for determination thus:
1. Whether on the processes exchanged/put before the lower Court, there is a binding or operative Arbitration Agreement between the parties, in the face of the total failure of consideration on the part of the Respondent.
2. If the answer is in the negative, whether the lower Court’s exclusive reliance on Section 5(1) of the Arbitration Act and

the decisions cited in support justify the stay of proceedings granted on the parties so called Arbitration Clause 10.1 of the contract.
3. Was the lower Court right in importing the alleged issues of facts contained in the Respondents further Affidavit filed on 3-12-13, after the same further Affidavit was on the Court’s orders struck out on 6-2-2014.

The Respondent also raised 2(two) issues for determination, succinctly thus:
1. Whether the lower Court was right in concluding that there is a binding arbitration agreement between the parties in this suit.
2. Whether the lower Court was right in granting stay of proceedings pending arbitration by parties?

The Respondent’s issues and the first and second issues of the Appellant are the same, but the Respondent’s issues as in his Brief of Argument filed on 4-10-16 is mere apt and I adopt same.

Arguing the issues 1 and 2 jointly, the Appellant’s counsel referred to the Lease Agreement as contained on pages 27 – 35 of the record and pages 68 – 74 and pointed out that by the said Agreement of 11th June, 2011, the Respondent had held itself out as in possession

of the subject property known as NO. 3 Savage Crescent, GRA, Enugu, which was purportedly conveyed to the Appellant’s company on the payment of the mutually agreed down payment consideration of N20,000,000 (Twenty Million Naira) for the development of a residential duplex consisting of 6 bedrooms, 2 bedrooms servant quarters with ancillary structures and had warranted being the bonafide owner of land situate at No. 3 Savage Crescent, GRA, Enugu, being granted to the lessee developer for the project for a lease period of Twenty-five years, which may be renewed by the corporation thereafter, if necessary. The learned counsel observed that, in exchange of obligation, the corporation shall formally hand over the site to the Developer within two weeks of the signing of this lease agreement to start the project.
C. Assist the lease developer in obtaining other regulatory approvals with the Federal, State and Local Authority.”

The Appellant submitting that, they having mobilised to site with building materials, engaged labour, setting up a wall fencing, gate house and a workshop base thereon and building operations which had progressed on the assurance of the

Respondent and yet, demolished by unknown persons and with the response on inquiring a letter from the Federal Ministry of Lands, etc and Field Headquarters, Enugu, stating inter alia that;
(a) Under the current dispensation, Radio Nigeria does not have the power to sell its Residential quarters except with the approval of the president since the power to sell all Federal Government Residential quarters nationwide had since been vested on the presidential implementation committee on sale of Federal Government landed properties.
(b) That, no such approval for the sale was given and that the committee had sold all the four residential properties of Radio Nigeria including No. 3 Savage Crescent, GRA, Enugu.
(c) And that the beneficiary of the sale of No. 3 Savage Crescent, GRA, Enugu, had been issued with a certificate of occupancy by the Federal Government since 24th May, 2011.
(d) That the survey requested cannot be done because, the property had earlier been surveyed by the Federal Government and little had already been issued in that regard and ending with an advice,
That:
“You are therefore advised to take steps to recover the sum

you have paid have paid under the transaction since the purported lease to you was deceitful”.

That the Appellant’s opposition to the motion for stay of proceedings pending arbitration as brought by Respondent after its memo of appearance on a purported reliance on clause 10.2 of the lease Agreement which states that “All disputes arising from the execution of this agreement shall be settled through arbitration” was proper. The learned counsel argued that the question was whether there was indeed a binding arbitration contract in the absence of a valid contract in existence since the subject matter of the lease had ceased to exist at the time of the purported lease agreement. It was the view of the Appellant’s counsel that, the question of fraud said to have arisen in the execution of the contract and that it should not be delved into before arbitration as reasoned by the trial Judge, was not correct as there was indeed no property in the first place to have warranted the lease agreement incorporating a purported arbitration clause.

It was also contended that the arbitration clause was an integral part of the contract

entered into by the parties and cannot be interpreted in isolation to the rest of the obligations exchanged by the parties under the same; counsel cites the case of Itomo Emori Vs Effoli Esuku (2013) 4 WRN 90 at 102 – 103 which highlight the 5 important factors that must be present in a valid contract to wit offer, acceptance, consideration, intention to create legal relationship, capacity to contract and to show that all the listed conditions must exists for a contract to exist in law, as a contract cannot be formed, if any of the ingredients is absent.

That the paragraph 6 of the Plaintiff/Appellant’s statement of claim at page 6 of record had pleaded the warranty of ownership of the subject property by the respondent in clause 2.0 – 2.1 of the agreement alongside the obligations arising therefrom and paragraphs 10, 11 and 12 thereof had shown the total absence of the ownership rights claimed. That paragraphs 7 and 11 of the Plaintiff’s statement on oath (pages 12 & 15 of the records) and paragraphs 3, 4, 5 and 7 of the Appellant’s counter affidavit, pages 80 – 82 of the record, none of which facts was contradicted in the

processes filed for the stay of proceedings application.

That this facts was acknowledged by the Court in its ruling, however, that the complete truth is that the Respondent was not either at the point of the contract or thereafter in possession or the owner of the property and therefore lacked any capacity to sustain the rights claimed therein; in that setting, the Defendant/Respondent could not in any manner be said to be in any position to meet the quantum of the necessary reciprocal consideration resting on it. Citing Saidu H. Ahmed & Ors Vs Central Bank of Nigeria (2013) 47 WRN 51 and Oceanic Bank Int. Nigeria Ltd. Vs Chitex Industries Ltd. (2000) 6 NWLR (Pt. 661) 464 to argue that the arbitration clause in the parties’ agreement, even if ordinarily effective for enforcement (which they do not concede) cannot survive, when on the total failure of consideration from the Respondent, the contract has been discharged. That the innocent party was left with only the recovery of whatever consideration that was given thereto and the right to recovery of all consequential damages arising therefrom.

That there was therefore, nothing whatsoever on which

the arbitration clause in the agreement can be fastened and the lower Court’s order constraining the parties to an arbitral exercise cannot be sustained. The Appellant’s counsel argued further that, in matters of stay of proceedings arising from arbitration clauses, a consideration is made of whether it is a procedural requirement or one that must be done before any action in the Court can be taken. That it is not by merely stating that there is an arbitration clause that proceedings must be stayed; counsel wondered as to what rights will be contested by arbitration in the face of the Federal Government’s title to the said property and the non-denial by the Respondent that the title was in the Federal Government and which had been so alienated before the lease agreement. It was finally submitted that the jurisdiction of the Court was extant and the Appellant was not precluded from having recourse to the Courts without first embarking on an arbitration proceedings and the Court’s exercise of discretion existed only if Section 5(2) of the Arbitration and Conciliation Act is complied with. The cases of Kano State Urban Development Board Vs Fanz Construction Co. Ltd

(1990) NWLR (Pt. 142) 50 applied in Brigadier Kurubo Vs Zach Motison Nig. LSTD (1992) 5 NWLR (Pt. 239) 102 at 118 and MV Pamomus Bay Vs Olam (Nig) Plc (2004) 5NWLR (Pt. 865) 1 were cited to say the mandatory compliance with the Arbitration and Conciliation Act relating to stay of proceedings were not considered and that the Ruling be set aside as a nullity and a miscarriage of justice. In conclusion, on the composite issues 1 and 2 of the Appellant as argued together, his counsel refers to BSG. Energy Holdings Ltd Vs Mr. Scott Spears & Ors (2003) 31 WRN 146 at 178 wherein, the Court stated; “Any agreement to submit a dispute to arbitration such as the one referred to above, does not oust the jurisdiction of the Court. Therefore, either party to such an agreement may before a submission to arbitration or an award is made, commence legal proceedings in respect of any action included in the submission. See Harris V. Reynolds (1845) 7 QB 71. At common law, the Court has no jurisdiction to stay such proceedings, where however there is provision as in Exhibit 3 for submission to arbitration, the Court has jurisdiction to stay proceedings by

virtue of its power under Section 5 of the Arbitration Act, Cap 13, Laws of the Federation of Nigeria, 2004.”

The Respondent, by his learned counsel, K.I. Ugwu, Esq., abandoned his preliminary objection as argued at paragraphs 4.0 – 4.3 of page 3 of his client’s Brief of Argument. Beautifully argued though, having been abandoned, I shall not dwell on it, more so that I do not consider the Appellant’s issue 3 as raised of any consequence in the determination of the merit of the appeal, viewing the ratio decidendi of the ruling appealed and the grounds of appeal against same. The Respondent’s reply as relating to the PO though sound is of no consequence, the objection having been abandoned and, therefore, discountenanced. Respondent’s counsel had argued that, at the time of the motion for stay of proceedings, the Respondent had not filed a statement of defence yet to enable the Court rule after hearing evidence whether the agreement was void or not and on whether the Respondent was the owner of the property or not. That, without hearing from the Respondent who had not filed a statement of defence, the substantive issue of ownership

vis-a-vis the letter from the Federal Ministry of Lands, Housing and Urban Development could not be delved into to come into any consideration, whether the Respondent was not the owner of the property in question and if there was a total failure of consideration on the part of the Respondent. That the trial Court was right in refusing that suggestion, that there was an agreement with a binding arbitration clause and the Court was right to order stay of proceedings pending Arbitration. The learned counsel relying on Alcatel Kabelmetal (Nig) Plc Vs Ojugbele (2003) 2 NWLR Pt. 805, P. 460; Agbakoba V. Director State Security Service (SSS) (1993) 7 NWLR (Pt. 305) 353, Duwin Pharmaceutical & Chemical Co. Ltd V. Benek’s Pharmaceutical & 2 Ors (2008) 1 – 2 SC 68 insisted that issues not having been joined by pleadings and evidence and not having been established before the Court by oral and documentary evidence that the Respondent was not the owner of the property at 3A Savage Crescent and Respondent in breach of contract, the lower Court could not have delved into those issues, that there was no total failure of consideration as the Plaintiff

thereof had immediately mobilised to the site with assorted building materials upon the corporation formally handing over the site to the developer within two weeks of the signing of the lease agreement to start the project as paragraph 4.1(ii) of the agreement provided, and confirmed in paragraph 8 of the statement of claim. That, it was the Appellant that caused the crisis when he proceeded to ask for survey plan in his name, occasioning the letter of the Federal Ministry of Lands, Housing and Urban Development on the wrong assumption that the Respondent had sold the property to the Appellant. That the Respondent stood by the Appellant by taking the matter to the office of the Secretary to the Government of the Federation which is in charge of the Presidential Implementation Committee on the sale of the Federal Government Properties (PIC), leading to the letter of 7th February, 2012, to the Appellant (Page 61 of the record) that till date, the property is still lying fallow and the two persons who tried to acquire the property through PIC could not take the property till date. That the Respondent who had not filed its statement of defence could not have

presented these facts before the ruling and the decision was not perverse nor occasioned any miscarriage of justice.

That the Respondent did not challenge the jurisdiction of the trial Court in his application for stay of proceedings and the Scott V. Avery clause or general arbitration issue was uncalled for; and so, having submitted to jurisdiction and applied for stay urging that resort be had to the agreement of the parties for Arbitration in the agreement for lease. That the cases on Arbitration cited by the Appellant were inapplicable in the circumstances. The learned counsel argued that the agreement having provided that ALL DISPUTES arising from the agreement shall be settled through arbitration, so shall it be. That there was no exception on the types of disputes that could be so settled by arbitration. That the word “shall” was mandatory and the parties must exhaust the option of arbitration in settling disputes before resorting to litigation.

That, the parties memorandum of understanding signed upon the Appellant’s request also contained an arbitration clause and was so pleaded by the Appellant himself. That this Appellant

had not pleaded that the lease agreement was void ab initio; and had only raised the argument in address in reply on the application of stay of proceedings. That it was an afterthought, which the trial Court rightly refused to go into trial having not commenced by exchange of full pleadings yet. That the claims as made for refund of N20 million paid by the Appellant, interest of 22.5% per annum, further interest at 10% and N80,000,000 general damages for breach of contract as on pages 9 -10 of the record could be resolved by the arbitration as agreed between the parties. That the stay of proceedings was right.

The learned counsel citing Section 5(1) of the Arbitration and Conciliation Act, Cap A 18, LFN, 2004, which provides:
“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 arbitration agreement may, at any time after appearance and before delivering any pleadings or taking any further steps in the proceedings apply to the Court, to stay the proceedings”.

That the Appellant failed to comply. That the mere fact that a

dispute is one that is eminently suitable for trial in a Court is not a sufficient ground to refuse to give effect to what the parties by their contract expressly agreed to. So long as the arbitration clause in that contract is valid, the Court ought to give due regard to the voluntary contract of the parties by enforcing the Arbitration Clause as agreed M.V. Lupex Vs N.O.C & S Ltd (2003) 15 NWLR Pt. 844, P. 491 on the second issue to wit, whether the Court was right to stay proceedings, the Respondent’s counsel said the Court was justified in doing so, as Section 5(1) of the Arbitration and Conciliation Act, 2004 so provides. He cites MV. Lupex Vs N.O.C&S Ltd (Supra) Bebeji Oil Allied Products Limited & Anor Vs Pancosta Ltd (2007) 31 WRN 163 at 193 and submits that the Respondent had met all the requirements for the grant of stay of proceedings as illustrated in the two cases (Supra) to wit;
(a) The Arbitration clause in the lease agreement is mandatory, clear and unequivocal.
(b) The Defendant/Respondent has not taken any steps beyond entering a formal appearance.
(c) The Defendant/Respondent had also shown readiness to

go into arbitration in it, affidavit in support of motion for stay of proceedings (Paragraph 10) at page 67 of the record and that there was no reason whatsoever given by the Plaintiff/Appellant why the matter should not be referred to arbitration. That the Appellant as a party to an Arbitration Agreement cannot approbate and reprobate. Onward Ent. Ltd V. Matrix (2009) 4WRN Page 129.

On the whole, the Court is urged to resolve the issues in favour of the Respondent and to dismiss the appeal.

RESOLUTION
This appeal is within a narrow compass. The Appellant herein had claimed per his writ of summons as follows:
1. The sum of N20,000,000 (Twenty Million Naira) being money paid to the Defendant’s corporation for the lease of No. 3 Savage Crescent, GRA, Enugu, for a period of 25 years, the consideration of which has totally failed, interest calculated at the prevailing operative Central Bank of Nigeria rates from 8-7-2011 until the determination of the suit.
2. Further interest at the rate of 10% (ten percentages) on the total sums found due and payable on the judgment debt calculated from the date of judgment until the final liquidation

of all such sums found due. N100,000,000 (One Hundred Million Naira) special and general damages incurred by the Plaintiff’s breach of contract and total failure of consideration.

Though, there is a variation in the claims on the writ of summons and that on the statement of claim, what is clear is that, the claims relate to a purported breach of contract arising from facts which the Appellant asserts against the Respondent to be in breach of the contract and its substratum. In a claim relating to contract, the parties are bound by the terms thereof as it is sacrosanct. The law is that, a valid and binding agreement of parties put in writing cannot be vitiated or departed from or altered unilaterally or by oral evidence except in the circumstances agreed by the parties.
In this wise, Section 132 of the Evidence Act provides that when an agreement and its terms are reduced into writing, no oral evidence shall be led except to prove fraud, mistake, misrepresentation or any of the vitiating elements such as illegality, see also DALEK V. OMPADEC (2007) 2 SCNJ 218.

That cannot be done at the stage of the filing of only the writ and statement of claim

with a motion for stay of proceedings pending Arbitration. The Defendant/Respondent had not filed a statement of defence nor hearing gone into. There could be no determination of the validity or any state of the Agreement in this matter to warrant any judgment or the conclusion that the agreement was invalid, inchoate, tainted with fraud or in effectual or had been vitiated by any extraneous act or document. To the contrary, there was the lease agreement which was not sought to be set aside for voidity but rather, for the realisation of the consideration paid thereon and consequential loss (damages) for the purported dishonour of the obligation there under. This binding lease agreement and its terms stipulate clearly that the parties shall in the event of any dispute relating to it have the dispute arising settled by Arbitration. If the Appellant had sued for the setting aside or nullification of the Lease Agreement/Document as having been entered into or signed by mistake or fraud and then made consequential prayers for reliefs, that would have been a different matter for consideration and if by an originating summons. Proceeding as it were, on the basis of a

valid, lawful agreement entered into, but which is claimed to be frustrated by acts of the Respondent in breach, certainly would entail the invocation of the terms of the said contract agreement to determine the breach and necessary remedy entitled. By the Section 5(1) of the Arbitration and Conciliation Act, 2004 “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 Arbitration Agreement may at any time after appearance and before delivery of any pleadings or taking any further steps in the proceedings apply to the Court to stay proceedings.”
The Appellant herein, also had the right to so do as above, if it were the Respondent that had sued. This right to apply for stay of proceedings annured in favour of all the parties and may be invoked by either party to the Agreement. This is where there is an Arbitral Agreement.

In the Lease Agreement, as contained on pages 68 – 74 of the record, the parties clearly provide/agree at paragraph 10 on settlement of disputes, thus:
10.1 – If at any time dispute or difference

shall arise between the parties to this Agreement, either party shall as soon as reasonably practicable give to the other notice in writing of the existence of such dispute or difference specifying the nature and point in issue.
10.2 – All disputes arising from the execution of this Agreement shall be settled through Arbitration.
The Agreement inclusive of the provisions for settlement by Arbitration shall not be changed or Amended or modified; and if done, shall not be valid or binding upon the parties hereto unless such amendment or modification shall be in writing and duly signed by both parties. The stipulation for Arbitration as a mode of settlement has not been altered by a written agreement of the parties, as ordained by paragraph 12 of the lease agreement relating to amendment. What is more, the paragraph 14 of the agreement on the applicable law provides that – it shall be governed by, construed and enforced in accordance with the laws of the Federal Republic of Nigeria. The Section 5(1) of the Arbitration Act, applies and been invoked and rightly too. There is no doubt that there was a dispute whereat the Appellant, even from its

letter to the Respondent at 42 – 44 of the record, there is an assertion of proprietary right to the subject of the Lease Agreement, see page 43 line a of the record; letter at page 47 of the record referred to the Appellant as a valued purchaser and at page 50, the intended Plaintiff/Appellant now was referred to as “the swindled purchaser” “Company Innoson Technical and Industrial Co. Ltd of plot W/L Industrial layout Emene Enugu” and also “a valued purchaser”. Clearly, there was a dispute of ownership as the Respondent had also responded that the ownership tussle had been resolved and belonged to F.R.C.N – the Respondent. In the face of that unconcealed but disputed claim, in the face of the Lease Agreement also acknowledged as such by the parties contradictorily, was it not the kind of situation clearly provided for a resort to arbitration and prior stay of proceedings application and its grant as done? I agree with the Respondent that the fact that the dispute was such that was imminently suitable for trial and possible success does not constitute a reason to depart from invoking the Section 5(1) of the Arbitration Act, LFN, 2004,

in the face of the clear stipulation in the parties’ Agreement on Arbitration for the resolution of the dispute and a consequential right to apply and have an order of stay of proceedings pending Arbitration. That valid, free will Agreement of the parties shall be respected. See M.V Lupex Vs N.O.C&S Ltd 15 NWLR Pt. 844 Pg. 48. The stay was rightly granted. See Bebeji Oil Allied Products Ltd. Vs Pancosta Ltd (Supra). By way of obiter, I wonder why the Appellant would not want to go into Arbitration. No sufficient or any justifiable reason has been proffered for non-arbitration. It is a faster alternative dispute resolution mechanism that would comprehensively take up all the areas of disputed facts and conflicting views without the Appellant losing his entitlement under the contract of lease. If it is the imperative technical question of the content of the lease agreement as to the description of the corpus of the lease agreement and its extent, this could be sorted out at an Arbitration and remedial actions would be taken; and where it is found to be a schemed and fraudulent devise which fraud was innocently keyed in, the

Appellant may not go without the appropriate remedies as shall be proved. The Court’s jurisdiction after Arbitration has not be ousted nor so contended by the Respondent, either.

I should add that the specific terms of the lease agreement as vehemently referred to by the learned Appellant’s counsel, are areas to be pointed out for remedial actions in Arbitration rather than take the Appellant’s seemingly proactive actions and efforts as they may be over-reaching and suspicious, by likening it to a contract of sale as interpreted in Best Nig. Ltd Vs Blackwood Hodge Nig. Ltd. (2011) LPELR 776SC. Be that as it may, where there is a right, there is a remedy (Ubi jus, ibi remedium); therefore, the consideration paid remaining in the hands of the Respondent whether spurred by bad faith or not, fraudulent or not, the legal and equitable remedies grantable in law as expoused in the cases of International Messengers Nig. Ltd Vs Pegofor Industries Ltd (2005) 39 WRN 1 at 18 – 19 (SC) and Niger Classic Investment Ltd. Vs U.A.C.N Property Dev. Co Plc (2016) 28 WRN 145 at 164 at 169 – 170 will not be dumb to the overiding legal and

equitable entitlements at the appropriate stage in the litigation. The wheel of justice grinds slowly and in accordance to the rules decisively; but suffers where it is truncated or stalled/slowed by an appeal such as this, herein. The case instituted since 2012 would have most probably, by now been concluded on its merit even if Arbitration had not led to the desired outcome. This is such an instance that leave ought to have been sought and granted before the appeal being an interlocutory ruling.

What is more, the interlocutory ruling on decision delivered on 13-05-14 though filed on 26-5-14 within time is not supported by any leave to appeal. As ordained in Section 241(1) of the Constitution;
(b) Where the ground of Appeal involves questions of law alone, decisions in any civil or criminal proceedings may be appealed as of right; but by Section 241-(1) applicable herein, except where an appeal may be as of right, leave has to be sought.
The Appellant’s particulars of the Notice of Appeal clearly brings out the fact that the ground of Appeal was one of mixed law and facts, see Ogbechie & Ors Vs Onochie & Ors (1986) 2 NWLR

(Pt. 23) 484 and the Constitution; indeed, the grant of stay of proceedings is also an exercise of discretionary power. It is an exercise based on facts and law being a question of mixed facts and law, the challenge to the exercise of the discretionary power to stay proceedings based on facts and law can only be appealed with leave of the trial Federal High Court or the Court of Appeal. See Ifediora Vs Ume (1988) 2 NWLR (Pt. 74) 5. No such leave to appeal has been shown to exist in this matter; see also Metal construction (West Africa) Ltd Vs Migliore & Ors (SC251/1985) 1990 NWLR. In the circumstance, even on this ground also, the appeal would have been incompetent and struck out. On the whole, I dismiss the appeal and affirm the ruling of the Federal High Court, Per D.V. Agishi, J. delivered on 13-05-2014 dismissing the opposition and granting the motion for stay of proceedings pending Arbitration by the parties in suit NO. PHC/EN/CS/90/2012. Arbitral proceedings and submission/filing of the report/ finding/order or continuation as by the Arbitration rules and Act and the Federal High Court Civil Procedure Rules/Act to proceed, as appropriate and within

periods stipulated in the Arbitration and Conciliation Act, 2004. Appeal dismissed. I shall not award any costs in the unfortunate circumstances of this matter.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance, the draft of the judgment just delivered by my learned brother, Mohammed Ambi-Usi Danjuma, JCA.

I agree that the exercise of discretion by the Court below which stayed proceedings pending arbitration cannot be faulted.

For the reasons ably set out in the judgment of my learned brother, Danjuma, JCA. I too dismiss the appeal.

I abide by all the orders in the judgment including the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the benefit of reading in draft, the judgment of my learned brother, Mohammed Ambi-Usi Danjuma, JCA just delivered. His lordship has exhaustively considered and ably resolved the issues raised and canvassed in the appeal. I agree that there is no merit in this appeal. I too, affirm the ruling of the trial Court.
I abide with the consequential orders.

Appearances:

J.H.C. Okolo, SAN, J.H.C Okolo SAN & Co, with him, Duru, Esq. For Appellant(s)

Keneth I. Ugwu, Esq., Equity Chambers For Respondent(s)