MR EMMANUEL LUMENZE v. GOVERNMENT OF EBONYI STATE
(2011)LCN/4633(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of June, 2018
CA/E/387/2017
RATIO
ISSUE OF JURISDICTION: ESSENCE OF RESOLVING THE ISSUE OF JURISDICTION FIRST
Issue No. 1 in the Appellants issue for determination and Issue No. 1 in the Respondent’s issue for determination touch on the jurisdiction of the lower Court to entertain the application at the lower Court. It is therefore my view that jurisdictional issues being threshold issues, must be considered first. If it has merit, then consideration of the other issues became an academic exercise. PER RITA NOSAKHARE PEMU, J.C.A.
ARBITRAL AWARD: WHEN TO MAKE AN APPLICATION TO COURT TO SET ASIDE AN ARBITRAL AWARD
It is a basic principle of law that a limitation law or Act removes the right of action, the right of enforcement, and the right to Judicial Relief, and leaves the Plaintiff with a bare and empty cause of action, which it cannot enforce if such cause of action is statute-barred. Accordingly, where the law provides for bringing of an action within the prescribed period, in respect of a cause of action accruing to the Plaintiff’s, proceedings shall not be brought after the time prescribed by such a statute – MICHAEL OBIEFUNA V ALEXANDER OKOYE (1962) ALL NLR 375; ARAKA V EJEAGWU (2000) LPELR 533, SC. In this latter case, it was held inter-alia that it is not in dispute that the arbitration gave his award on 8/9/1994. It is also not in dispute that the motion on notice to set aside the award was brought on 25/4/1995, a little over seven months from the date the award was published. By virtue of Section 29 (1) of the Arbitration and Conciliation Act, CAP A18 LFN. 2004, an aggrieved party has three months from the date of the award to apply to Court to set aside the arbitral award. Now, in the instant appeal, the Arbitral Award was made on the 18th of December 2014. The Application to set aside was filed on the 26th of January 2017, well over a period of two years. There is no provision in the law for extension of time even as the lower Court observed – Pages 241 of the Record of Appeal. Iguh J. S. C. (as he then was) in ARAKA (Supra) observed that the Arbitration and Conciliation Act CAP 19 LFN 1990 (Now CAP A18 LFN 2004) provides a unified legal framework for the fair and efficient settlement of commercial dispute by Arbitration and Conciliation. It is not in dispute that the Arbitral Award was made on the 18th day of December 2014. It is unconscionable that the Respondent would wait for over a period of two years before it dawned on him to apply to set it aside. This is unquestionably statute-barred – B. I. P. LTD VS NIPOL LTD (1986) 5 NWLR (PT. 44) 767. One is at a loss, as to why the lower Court entertained the Application for the setting aside of the arbitral award, and thereby setting same aside. This amounted to a contradiction-in-terms. Again, in ARAKA’s case, Iguh J. S. C. (as he then was) agreeing with the observation of AKPABIO, J.C.A. (as he then was) in the case of ARAKA (Supra) observed that – “In my view, it would not matter whether an application to set aside an arbitral award by an aggrieved party is made under the provisions of Sections 29 (1) or Section 30 of the Act. The time within which to make such an application under the Act remains at THREE MONTHS from the date of the award and it would make no difference that the application was made pursuant to Sections 29 or Section 30 of the Arbitration and Conciliation Act, 2004. It cannot therefore be right to suggest that an aggrieved party to an arbitration award may, at whatever time it pleases him, after the expiration of the Statutory period of three months, from the date of the award, apply for the same to be set aside under the provisions of the Arbitration and Conciliation Act 1988. I also find it difficult to conceive that such a proposition can be regard as the correct provision of the law” He further observed thus – “I think the prescribed time within which to make an application to set aside an Arbitral Award under the Arbitration and Conciliation Act 1988, is three months from the date of the award, irrespective of under what Section of that Act the application is brought” Without belaboring this issue, it is clear and grossly apparent that by effluxion of time, the Respondent’s had no legal right to seek the setting aside of the award, as his right had lapsed. So has his time. You cannot put something on nothing. MACFOY V U. A. C. Decidedly, a statute of limitation removes the right to action, the right of enforcement, the right of judicial relief and leaves a person with what effectively is a bare, barren and empty cause of action which cannot be enforced or protected through judicial process. – AREMO II V ADEKANYE 2004 ALL FWLR, PT 224, 211 at 2137. NPA V AJOBI 2006, 7 SC (PT. 1) 23; AMUSAN V OBIDEYI 2005 6 SC 147. The argument of the Respondent in paragraph 4.04 of their brief of argument that from the provisions of Sections 29 and 30 of the Act, that only Section 29 (1) stipulates that application for setting aside an arbitral award may be brought by any of the parties thereto within three months of making the award, is clearly misconceived in view of the reasoning of Iguh J. S. C. (as he then was) in the case of ARAKA (Supra). I am of the view that the Respondent was clearly out of time in bringing his application to set aside the Arbitral award. When the lower Court went ahead to consider the issue of fraud and the alleged concealment of Exhibit HAGI, he was in error, simply because the application to set aside the arbitral award was brought out of time, ad decidedly, for whatever reason, the three months duration cannot be compromised. The fact that Section 30 of the Arbitration and Conciliation Act is silent on the issue of limitation of action, does not mean that it is an exception to the provisions of Sections 29 (1) & (2) of the Act. See ARAKA (Supra). I am therefore of the view that the setting aside of the Arbitral Award, after the lower Court observed that the application to set same aside was brought outside the time prescribed by law, is clearly an error, which occasioned on the Appellant, miscarriage of justice. This issue is resolved in favour of the Appellant and against the Respondent. This knocks the bottom off the Respondent’s case. PER RITA NOSAKHARE PEMU, J.C.A.
ACADEMIC EXERCISE: ATTITUDE OF THE COURTS TO ACADEMIC EXERCISE
It is unnecessary to consider the other issues in this appeal as to do so would amount to embarking on an academic exercise. An exercise which the Courts frown on. Courts should restrict judicial time to determine live issues SALIK V IDRIS & ORS (2014) LPELR 22909, OYENEYE V ODUGBESAN (1972) 4 SC; BAMGBOYE V UNILORIN (1999) 10 NWLR (Part 622) 290. PER RITA NOSAKHARE PEMU, J.C.A.
Justice
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
MR EMMANUEL LUMENZE
(Carrying on business under the name and style of Emmol Nigeria Enterprises)Appellant(s)
AND
GOVERNMENT OF EBONYI STATERespondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Abakaliki High Court, Holden at Ebonyi, presided over by Honorable Justice E. A. Ngene and delivered on the 23rd day of March, 2017 in Suit No. HAB/112MC/2015.
FACTS OF THE CASE
The Appellant had applied for the recognition and enforcement of the arbitral award made on the 18th of December, 2014.
The suit was originated vide a motion on notice filed on the 10th of November, 2015 wherein he prayed the lower Court the following orders:-
1. Leave of Court to enforce the arbitral award made on the 18th day of December, 2014.
2. Recognition and enforcement of the arbitral award made on the 18th day of December, 2014.
3. That the sum of Ninety Million Five Hundred and Sixty-two thousand, Nine hundred and Seventy-two naira, Fifty kobo (90, 562,972.50k) being the amount contained in the award of the arbitral made on the 18th day of December, 2014.
4. An order directing the Respondent to pay to the applicant through his counsel forthwith the sum of Ninety million Five hundred and Sixty-two thousand
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Nine hundred and Seventy-two naira, Fifty kobo (90, 562, 972.50k) being the amount contained in the award of the arbitration made on the 18th day of December 2014.
The grounds upon which the application is predicated is
1. That the parties entered into a contract agreement which is subject of arbitration.
2. The arbitrators were duly appointed by the parties and an award was accordingly made but the Respondent had failed, refused and neglected to pay the Applicant the sum contained in the arbitral award Pages 1 2 of the Record of Appeal.
In his decision, the lower Court dismissed the suit of the Appellant (his application for the recognition and enforcement of the arbitral award made on the 18th day of December, 2014).
The lower Court entered judgment in favour of the Respondent, who had applied to set aside the arbitral award voluntarily entered into by the parties.
Pertinent to note is that the suit the subject matter of this appeal was filed on the 10th of November, 2015 by the Appellant. Pages 1 14 of the Record of Appeal.
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Motion on Notice; an affidavit in support and written address were also filed on same date. The Respondent filed a motion on 26th of January 2017, for an order setting aside the arbitral award made on the 18th of December, 2014 (a period of three years).
The Appellant had been invited to do a job in Abakaliki, Ebonyi State by the State Government. After several interactions with each other, the Appellant Company was invited formally to do an interview with Ebonyi State Cement Project Committee. This was vide letter dated 7th of September, 2009 Page 15 of the Record of Appeal.
After the interview, the Appellant was offered the job.
Few weeks later, the Appellant was informed that the Ebonyi State Executive Governor has approved the exploratory drilling of one hundred (100) bore holes, seventy (70) of which will be given to the Appellant and thirty (30) will be given to the other company that took 2nd position.
However, the two companies were invited to pay through the States Tender Board. After this exercise in which the Appellants company excelled, a formal letter of award of the contract was issued to the Appellant on the 2nd of December 2009 Page 16 of the Record of Appeal.
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The letter directed the Appellant to indicate his acceptance within seven (7) days, and liaise with the relevant authorities to draw up the contract agreement. The Appellant complied. The acceptance letter is at page 17 of the Record of Appeal.
A formal contract agreement was then duly executed between the parties on the 16th of December, 2009.
Inherent in the agreement is that the Appellant should bring an Advanced Payment Guarantee from a reputable bank for 30% of the total contract sum which is 90, 562, 972.50k (Ninety Million, Five hundred and Sixty two thousand, Nine hundred and Seventy two naira, Fifty kobo).
The Appellant wrote to the Branch Manager Bank PHB Abakaliki applying for an Advanced Payment Guarantee (APG) in a letter dated 11th December, 2009.
After the Appellant had paid the required amount of Twenty Million Naira, the bank then issued the APG in his favour, and addressed to the Ebonyi State Government (The Respondent herein). There was a covering letter dated 28/4/2010 conveying the Banks letter to the Accountant General of the Respondent.
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The issuance of the Advanced Payment Guarantee was the condition for the Ebonyi State Government to pay the 30% into the Bank.
Up till date, the money was not paid.
Irked by this, the Appellant wrote to the Respondent in a letter dated 1st September, 2010. There was no reaction to the letter. He wrote another letter titled Appeal for Release of Mobilization which was a reminder, but still there was no reaction from the Respondent. All efforts to get audience with the State Accountant General and the Respondent failed.
The Appellant then briefed a lawyer, who wrote to the Respondent in a letter dated 12th October, 2010.
In a reply from the Solicitor General/Permanent Secretary, Ministry of Justice, Ebonyi State, he asked the Appellant to refer the matter to Arbitration. The letter was dated 11th June, 2012.
The Appellant therefore filed a suit against the Respondent & 2 Ors in Suit No: HAB/5/2-13, which was struck out on the 8th of April, 2014, in view of the arbitration clause in the contract agreement. The parties were addressed by the Court to explore all avenues of arbitration before approaching the Court.
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The Appellant thereafter and consequent upon this, appealed his arbitration.
The Respondent was told to appeal by arbitration too, which it did. At their first meeting, the parties appointed a neutral 3rd arbitrator Valentine Osita Akwueba Esq., as Chairman.
The Arbitration panel came up with an award, duly signed by the three Arbitrators dated 18th of December, 2014.
A copy of the Arbitral award was served on all the parties.
However, the Respondent failed, refused and neglected to abide by the terms of the arbitral award.
Arising from the refusal of the Respondent to pay the Appellant the amount awarded to him by the arbitration panel, the Appellant caused his lawyer to write to the Respondent in a letter dated 28th of August, 2015, forwarding the arbitral award to him for consideration and his urgent attention. Despite this, the Respondent refused/failed to pay up.
The Appellant then on the 10th of November, 2015, filed a motion on notice to enforce the arbitral award made on the 18th of December, 2014.
The Respondent did not react until two years later. After three years from the date the arbitral award was made,
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the respondent filed a motion to set aside the arbitral award made on the 18th of December, 2014.
After hearing the application, the lower Court on the 22nd of March, 2017, dismissed the Appellants application for the recognition and enforcement of the arbitral award, and granted the Respondents application to set aside the arbitral award.
The Appellant is aggrieved by the decision of the lower Court and vide Notice of Appeal, filed on the 8th of May, 2017, filed three (3) Grounds of Appeal Pages 255 257 of the Record of Appeal.
The Appellant filed a Notice of Appeal encapsulating four Grounds of Appeal.
The issues formulated for determination by the Appellant, which brief of argument filed on the 9th of August, 2017 and settled by MBA E. UkWENI Esq. SAN are:
1. WHETHER THE LEARNED TRIAL JUDGE HAD JURISDICTION TO ENTERTAIN A SUIT OR AN APPLICATION WHICH WAS STATUTE-BARRED. (GROUND 1).
2. WHETHER THE FAILURE OF THE LEARNED TRIAL JUDGE TO CAREFULLY CONSIDER AND APPRAISE THE PROVISIONS OF SECTIONS 29, 30 AND 31 OF THE ARBITRATION AND CONCILIATION ACT PROPERLY OCCASIONED A MISCARRIAGE OF Justice. (Ground 2).
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3. WHETHER PARTIES WHO SUBMITTED THEMSELVES VOLUNTARILY TO AN ARBITRATIN PANEL CAN VALIDLY TURN A SOMERSAULT AGAINST THE DECISION OF THE ARBITRATION PANEL. (GROUND 3)
4. WHETHER THE LEARNED TRIAL JUDGE PROPERLY AND CAREFULLY ANALYZED AND EVALUATED THE AFFIDAVIT EVIDENCE BEFORE HIM, BEFORE COMING TO THE IRRESISTIBLE CONCLUSION DISMISSING THE APPELLANTS MOTION FOR RECOGNITION AND ENFORCEMENT OF THE ARBITRAL AWARD. (GROUND 4).
The Respondent filed its brief of argument on the 10th of November, 2017, same is settled by RT. HON. AUGUSTINE N. NWANKWAGU A G/COMMISSIONER FOR Justice, EBONYI STATE MINISTRY OF Justice, ABAKALIKI.
In its brief of argument, he distilled three (3) Issues for Determination from the Grounds of Appeal. They are
1. WHETHER THE RESPONDENTS APPLICATION IS STATUTE-BARRED BY THE PROVISIONS OF SECTIONS 29, 30 AND 31 OF THE ARBITRATION AND CONCILIATION ACT, 2004 VIS-??-VIS THE CAREFUL CONSIDERATION SAME SECTIONS BY THE LEARNED TRIAL JUDGE. (GROUND 1 & 2)
2. WHETHER PARTIES WHO SUBMITTED THEMSELVES VOLUNTARILY TO ARBITRATION PANEL CAN VALIDLY TURN THE DECISION OF THE ARBITRATION PANEL (GROUND 3).
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3. WHETHER THE LEARNED TRIAL JUDGE PROPERLY AND CAREFULLY ANALYZED AND EVALUATED THE AFFIDAVIT EVIDENCE BEFORE DISMISSING THE MOTION FOR RECOGNITION AND ENFORCEMENT OF THE ARBITRAL AWARD (GROUND 4).
The Appellant filed a reply brief on the 16th of February, 2018.
On the 24th of April 2018, the parties adopted their respective briefs of argument.
The issues for determination of the respective parties seem to dovetail. However I dare say that the issues formulated by the Respondent is in essence an adoption of the issues formulated by the Appellant.
Issue No. 1 in the Appellants issue for determination and Issue No. 1 in the Respondents issue for determination touch on the jurisdiction of the lower Court to entertain the application at the lower Court.
It is therefore my view that jurisdictional issues being threshold issues, must be considered first. If it has merit, then consideration of the other issues became an academic exercise.
I shall therefore take Issue one in the respective parties Issues for determination, in considering this appeal.
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It is a basic principle of law that a limitation law or Act removes the right of action, the right of enforcement, and the right to Judicial Relief, and leaves the Plaintiff with a bare and empty cause of action, which it cannot enforce if such cause of action is statute-barred. Accordingly, where the law provides for bringing of an action within the prescribed period, in respect of a cause of action accruing to the Plaintiffs, proceedings shall not be brought after the time prescribed by such a statute MICHAEL OBIEFUNA V ALEXANDER OKOYE (1962) ALL NLR 375; ARAKA V EJEAGWU (2000) LPELR 533, SC.
In this latter case, it was held inter-alia that it is not in dispute that the arbitration gave his award on 8/9/1994. It is also not in dispute that the motion on notice to set aside the award was brought on 25/4/1995, a little over seven months from the date the award was published.
By virtue of Section 29 (1) of the Arbitration and Conciliation Act, CAP A18 LFN. 2004, an aggrieved party has three months from the date of the award to apply to Court to set aside the arbitral award.
Now, in the instant appeal, the Arbitral Award was made on the 18th of December 2014.
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The Application to set aside was filed on the 26th of January 2017, well over a period of two years.
There is no provision in the law for extension of time even as the lower Court observed Pages 241 of the Record of Appeal.
Iguh J. S. C. (as he then was) in ARAKA (Supra) observed that the Arbitration and Conciliation Act CAP 19 LFN 1990 (Now CAP A18 LFN 2004) provides a unified legal framework for the fair and efficient settlement of commercial dispute by Arbitration and Conciliation.
It is not in dispute that the Arbitral Award was made on the 18th day of December 2014. It is unconscionable that the Respondent would wait for over a period of two years before it dawned on him to apply to set it aside. This is unquestionably statute-barred B. I. P. LTD VS NIPOL LTD (1986) 5 NWLR (PT. 44) 767.
One is at a loss, as to why the lower Court entertained the Application for the setting aside of the arbitral award, and thereby setting same aside. This amounted to a contradiction-in-terms.
Again, in ARAKAs case, Iguh J. S. C. (as he then was) agreeing with the observation of AKPABIO, J.C.A. (as he then was) in the case of ARAKA (Supra) observed that
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In my view, it would not matter whether an application to set aside an arbitral award by an aggrieved party is made under the provisions of Sections 29 (1) or Section 30 of the Act. The time within which to make such an application under the Act remains at THREE MONTHS from the date of the award and it would make no difference that the application was made pursuant to Sections 29 or Section 30 of the Arbitration and Conciliation Act, 2004. It cannot therefore be right to suggest that an aggrieved party to an arbitration award may, at whatever time it pleases him, after the expiration of the Statutory period of three months, from the date of the award, apply for the same to be set aside under the provisions of the Arbitration and Conciliation Act 1988. I also find it difficult to conceive that such a proposition can be regard as the correct provision of the law
He further observed thus
I think the prescribed time within which to make an application to set aside an Arbitral Award under the Arbitration and Conciliation Act 1988, is three months from the date of the award, irrespective of under
12
what Section of that Act the application is brought
Without belaboring this issue, it is clear and grossly apparent that by effluxion of time, the Respondents had no legal right to seek the setting aside of the award, as his right had lapsed. So has his time. You cannot put something on nothing. MACFOY V U. A. C.
Decidedly, a statute of limitation removes the right to action, the right of enforcement, the right of judicial relief and leaves a person with what effectively is a bare, barren and empty cause of action which cannot be enforced or protected through judicial process. AREMO II V ADEKANYE 2004 ALL FWLR, PT 224, 211 at 2137. NPA V AJOBI 2006, 7 SC (PT. 1) 23; AMUSAN V OBIDEYI 2005 6 SC 147.
The argument of the Respondent in paragraph 4.04 of their brief of argument that from the provisions of Sections 29 and 30 of the Act, that only Section 29 (1) stipulates that application for setting aside an arbitral award may be brought by any of the parties thereto within three months of making the award, is clearly misconceived in view of the reasoning of Iguh J. S. C. (as he then was) in the case of ARAKA (Supra).
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I am of the view that the Respondent was clearly out of time in bringing his application to set aside the Arbitral award.
When the lower Court went ahead to consider the issue of fraud and the alleged concealment of Exhibit HAGI, he was in error, simply because the application to set aside the arbitral award was brought out of time, ad decidedly, for whatever reason, the three months duration cannot be compromised.
The fact that Section 30 of the Arbitration and Conciliation Act is silent on the issue of limitation of action, does not mean that it is an exception to the provisions of Sections 29 (1) & (2) of the Act. See ARAKA (Supra).
I am therefore of the view that the setting aside of the Arbitral Award, after the lower Court observed that the application to set same aside was brought outside the time prescribed by law, is clearly an error, which occasioned on the Appellant, miscarriage of Justice.
This issue is resolved in favour of the Appellant and against the Respondent. This knocks the bottom off the Respondents case.
It is unnecessary to consider the other issues in
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this appeal as to do so would amount to embarking on an academic exercise. An exercise which the Courts frown on. Courts should restrict judicial time to determine live issues SALIK V IDRIS & ORS (2014) LPELR 22909, OYENEYE V ODUGBESAN (1972) 4 SC; BAMGBOYE V UNILORIN (1999) 10 NWLR (Part 622) 290.
Accordingly, the Appeal succeeds and same is allowed. I hereby make the following order:
1. It is hereby ordered that the motion to set aside the arbitral Award filed on the 26th of January 2017 is incompetent, having been brought outside the prescribed period stipulated by the provisions of the Arbitration and Conciliation Act, 2004.
2. I hereby set aside the decision of the trial Court made on the 23rd of March 2017 in Suit No HAB/112MC/2015.
3. I hereby strike out the Respondents motion on notice filed on the 26th of January 2017.
4. I hereby order that the Chief Judge of Ebonyi State order that the trial Court relist the Appellants motion on notice filed on the 10th of November 2015 for recognition and enforcement of the Arbitral Award made on the 18th of December 2014, for hearing and determination by the Court below.
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100, 000.00 costs in favour of the Appellant.
TOM SHAIBU YAKUBU, J.C.A.: I am in agreement with the opinion proffered by his Lordship, RITA NOSAKHARE PEMU, J.C.A., in the lead judgment.
I, too allow the appeal. The decision of E. A. Ngene, J., rendered in suit No. HAB/112MC/2015 is hereby set aside.
I, endorse all the consequential orders, inclusive of costs, contained in the lead judgment.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree
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Appearances:
MBA E. UKWENI SAN.For Appellant(s)
RT. HON. AUGUSTINE N. NWANKWAGU AG/COMMISSIONER FOR Justice, EBONYI STATE MINISTRY OF Justice, ABAKALIKIFor Respondent(s)
>
Appearances
MBA E. UKWENI SAN.For Appellant
AND
RT. HON. AUGUSTINE N. NWANKWAGU AG/COMMISSIONER FOR Justice, EBONYI STATE MINISTRY OF Justice, ABAKALIKIFor Respondent
