NELSON BENJAMIN LTD v. FUPRE & ORS (2022)

NELSON BENJAMIN LTD v. FUPRE & ORS

(2022)LCN/17203(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, May 20, 2022

CA/AS/352/2017

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

NELSON BENJAMIN LIMITED APPELANT(S)

And

1. FEDERAL UNIVERSITY OF PETROLEUM RESOURCES EFFURUM 2. ARC. RUFAI GARBA FUNTUA (Carrying On Business In The Name And Style Of Globarch Associate) 3. F.S. EKERUME (Carrying On Business In The Name And Style Of Rumebima Konsults) RESPONDENT(S

RATIO

THE POSITION OF LAW ON AN ARBITRATION AGREEMENT

The effect of the foregoing is that though the lower Court did not consider the point raised by appellant’s counsel touching on the issue of expiry of time within which resort is to be made to arbitration, the failure did not occasion a miscarriage of justice. See BPS Construction and Engineering Co. Ltd v. F. C. D. A. (2017) 10 NWLR (1572) 1, 14, SCC (Nig.) Ltd v. Anya (2013) ALL FWLR (Pt. 703) 2047, 2062 and Nigerian Communications Commission v. Motophone Ltd (2019) 14 NWLR (1691) 1, 37 where Aba-Aji, JSC, opined that:
“Moreover, even failure to consider all issues submitted before it would not amount to a denial of fair hearing unless it is shown that a miscarriage of justice occurred.”
An arbitration agreement is an agreement by two or more persons that a dispute or potential dispute between them shall be resolved and decided in a legally binding way by one or more impartial persons in a judicial manner upon evidence put before him or them. It may stand alone or be incorporated in a commercial agreement as in this instance. See Onuselogu Enterprises Ltd v. Afribank (Nig.) Plc (2005) 12 NWLR (Pt. 940) 577, 585 and A. Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases page 145.

An arbitration agreement or clause does not oust the jurisdiction of the Court (for parties have no power to contract out of the Constitution) but the Court in the exercise of its power under a statute may stay proceedings in an action brought before it in breach of an agreement to settle a dispute by arbitration. In the case of Mainstreet Bank Capital Ltd v. Nigeria Reinsurance Corporation Plc, supra. 444 – 445, Kekere-Ekun, JSC, in resolving a similar issue relied on and quoted the case of Obembe v. Wemabod Estates Ltd (1977) 5 SC (Reprint) 70 thus:
“The lower Court was right when it held that an agreement to have recourse to arbitration in the event of a dispute does not oust the jurisdiction of the Court. In Obembe v. Wemabod Estates Ltd (1977) 5 SC (Reprint) 7 AT 79 lines 19 to 28, this Court per Fatayi-Williams, JSC, explained the legal position thus:
“As we have pointed out earlier, 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 claim or cause of action included in the submission. (See Harris v. Reynolds (1845)7 QB 71). PER EKANEM, J.C.A.

THE POSITION OF LAW WHERE A PARTY TO AN ARBITRATION AGREEMENT PROCEEDS FIRST TO COURT BEFORE RESORTING TO ARBITRATION AS AGREED BY PARTIES

Where a party to an arbitration agreement proceeds first to Court before resorting to arbitration as agreed, the Court leans towards granting an application for stay of proceedings pending arbitration provided the party applying did not file a defence or take steps in the proceedings other than entering appearance. Where a party delivers a defence or makes any application for extension of time, he will be deemed to have waived his right to insist on recourse to arbitration.

WHETHER OR NOT THE COURT HAS A DUTY TO HEAR AND DETERMINE ALL APPLICATION PENDING BEFORE THE IT

None of the motions had come up for hearing at the lower Court as at the time that it heard and ruled on the preliminary objections of the 1st and 2nd respondents. The law is well established that a Court has a duty to hear and determine all applications pending before it before making a final pronouncement by way of delivery of judgment. See Cookey v. Fombo (2005) 15 NWLR (Pt. 947) 182, 201, United Parcel Service Ltd v. Ufot (2006) All FWLR (Pt. 314) 337, 356, BCE Consulting Engineering v. NNPC (2019) 14 NWLR (Pt. 1691) 136, 175 and Newswatch Communication Ltd v. Atta (2006) 12 NWLR (Pt. 993) 144, 168 – 169. PER EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Delta State sitting at Effurun (the lower Court) delivered on 1/6/2017 in Suit No. EHC/161/2017 by Gbemre, J. In the ruling, the lower Court upheld the preliminary objections filed by the 1st and 2nd respondents against the suit filed by the appellant on the basis that the dispute between the parties ought to be submitted to arbitration as stipulated in the agreement governing their relationship. The lower Court therefore struck out the suit.

Aggrieved by the decision, the appellant appealed to this Court by the means of a notice of appeal filed on 30/6/2017, which notice was amended by the leave of this Court granted on 8/2/2021.

The facts of the case that led to this appeal as are relevant to the issues to be discussed in this judgment are that the appellant was engaged by the 1st respondent to construct a proposed College of Science for it. The contract was governed by Articles of agreement and conditions of service. The appellant stated that it completed the job and the 2nd respondent, the architect, engineer and planner engaged by the 1st respondent for the job, submitted the architect’s final certificate to the (1st) respondent in favour of the appellant. The said certificate certified the sum of N51,572,556.39 as being due to the appellant. Upon default of payment, the appellant wrote a demand notice to the (1st) respondent. When payment was not made, the appellant filed a writ of summons accompanied by a statement of claim in which it claimed monetary reliefs against the respondents. The appellant also applied for summary judgment against the respondents.

In response, the 1st respondent entered a conditional appearance and filed a notice of preliminary objection praying the lower Court to dismiss or strike out the suit on the grounds that the suit was incompetent and that the lower Court lacked the jurisdiction to entertain the same. The 1st respondent subsequently filed a notice of intention to defend, an affidavit disclosing a defence on the merit, a statement of defence and a motion for extension of time within which to file the said processes.

The 2nd respondent on his part filed a statement of defence, witness deposition and a notice of preliminary objection to the suit, among other processes. The processes were filed on the same date.

The lower Court received argument in respect of the preliminary objections and ruled that by clause 7 of the agreement between the parties, which is an arbitration clause, the appellant was bound to submit the dispute to arbitration before approaching the Court. It therefore struck out the suit.

P. N. Agazie, Esq., of counsel for the appellant formulated the following issues in his amended brief of argument for the determination of the appeal:
a. Whether the learned trial judge was right when he considered and analysed only the 1st and 2nd respondents’ notice of preliminary objection but failed to consider the appellant’s replies on points of law to the 1st and 2nd respondent’s notices of preliminary objection.
b. Whether, considering the peculiar circumstances of the case of the parties at the lower Court, the learned trial judge was right when he held that failure on the part of the appellant to first resort to arbitration ousted the jurisdiction of the lower Court.
c. Whether, the learned trial judge was right when he considered as proper the notices of preliminary objection filed by the 1st and 2nd respondents even though the 1st and 2nd respondents have taken steps in the proceedings at the lower Court by filing their statement of defence.
d. Whether the learned trial judge acted in the interest of justice when he struck out the appellant’s case, instead of entering judgment in favour of the appellant in the obvious absence of any documentary evidence filed by the respondents to show or establish a defence on the merit, having regards to the entire circumstances of the appellant’s contractual relationship with the 1st respondent.

Chidi Chikogu, Esq., for the 1st respondent presented the following issues for the determination of the appeal:
1). Whether under the contract, there was a period provided for parties in the contract to refer any matter to arbitration. (Grounds 1 and 2 of amended notice of appeal)
2). Whether in consideration of the provisions of Article 7 of the articles of agreement and the arbitration clause in Exhibit B the lower Court was right howsoever, in declining jurisdiction to entertain the appellant’s suit and referring same to arbitration. (Ground 3 of amended notice of appeal)
3). Whether the learned trial judge acted in the interest of justice when he struck out the appellant’s case, instead of entering judgment in favour of the appellant in view of a preliminary objection and defence on the merit. (Ground 4 of amended notice of appeal).

Agebe Odeh, Esq., for the 2nd respondent formulated a single issue for the determination of the appeal, to wit:
“Whether the trial judge was right when he considered and analysed the 1st ground of the 2nd respondent preliminary objection without considering and making a pronouncement on the 2nd ground.”

The 3rd respondent did not file a brief of argument.

Issue 1 formulated by 1st respondent’s counsel does not arise from grounds 1 and 2 of the grounds of appeal from which the issue is said to arise. Ground 1, shorn of its particulars, reads:
a) ERROR IN LAW
The learned trial judge erred in law when he held thus; “In this case no reasons have been given, and therefore the claimant cannot short circuit (sic) the process. The claimant is therefore under an obligation to explore and exploit Article 7 and 35 before approaching the Court…”
Ground 2 without its particulars states:
“The learned trial judge erred in law when he considered only the 1st and 2nd respondents’ notice of preliminary objections but, nevertheless, failed to consider the appellant’s reply on points of law to the 1st and 2nd respondents’ notices of preliminary objection.”

While ground 1 complains of the failure of the learned trial judge to consider the reasons stated by the appellant for not submitting the dispute to arbitration, ground 2 complains about the failure of the learned trial judge to consider appellant’s reply on points of law. The issue of the provision of a period of time for reference to arbitration does not directly arise from the two grounds or any other ground of appeal. The fact that some of the particulars of grounds 1 and 2 make references to the alleged limitation of time for submission of dispute to arbitration is not a basis for raising an issue therefrom. This is because an issue can only be raised from the complaint in a ground and not the particulars of a ground of appeal. See Stirling Civil Engineering Ltd v. Yahaya (2005) 127 LRCN 1174, 1196 or (2005) 11 NWLR (Pt. 935) 181. The 1st respondent did not file a cross-appeal from which the issue is drawn and so the issue is incompetent and I strike out the same along with the argument in support thereof. See Arum v. Nwobodo (2013) 10 NWLR (Pt. 1362) 374, 395.

Again, the lone issue of the 2nd respondent does not arise from any of the grounds of appeal filed by the appellant. Having not filed a cross-appeal or a respondent’s notice, the issue is incompetent and I accordingly strike it out. The result is that his brief of argument has no issue to sustain it and I therefore strike out the same.

Having read the grounds of appeal, it is my view that two issues will suffice for the determination of the appeal, namely:
1. Was the lower Court right in declining jurisdiction and striking out the case of the appellant?
2. Was the lower Court right in not entering judgment in favour of the appellant?

ISSUE 1 –
Was the lower Court right in declining jurisdiction and striking out the case of the appellant?

Appellant’s counsel contended that the lower Court erred when it failed to analyse and consider any of the issues raised by the appellant in its reply on points of law to the preliminary objections of the 1st and 2nd respondents. He referred to the ruling of the lower Court particularly where the learned judge of the lower Court observed that the appellant had provided no reason for not first resorting to arbitration. He referred to appellant’s reply brief where the reason for not resorting to arbitration was given. He submitted that a Court is duty-bound to consider the issues raised by the parties before it and that failure to do so affects the ruling of the Court.

Counsel argued that arbitration clause is of two classes and that the Supreme Court had considered a lone instance where an arbitration clause can oust the jurisdiction of a Court. He referred to the case of Obembe v. Wemabod Estates Ltd (1977) NSCC Vol. 11. He submitted that the general rule is that an arbitration clause does not oust the jurisdiction of a Court unless it is clearly within the Scott v. Avery clause. He further submitted that the arbitration clause in this instance does not oust the jurisdiction of the lower Court.

Still arguing, counsel posited that the lower Court was wrong in assuming that the proper process for the 1st and 2nd respondents to file was a preliminary objection and not a (motion for) stay of proceedings. He referred to Section 5 (1) and (2) of the Arbitration and Conciliation Act, 2004 and submitted that what the law demands is the filing of an application to stay proceedings after entry of appearance and without the taking of any other step. He noted that the 1st and 2nd respondents rather filed preliminary objections and statements of defence. He pointed out that 2nd respondent acknowledged that it had taken steps in the matter and therefore ought not to have asked for the striking out of the matter on the ground that the reference to arbitration had not been made. He added that the admission amounted to a withdrawal of the first ground of objection which he said ceased to constitute an issue between the 2nd respondent and the appellant. This he contended meant that since the learned judge of the lower Court had stated that the 2nd respondent’s objection would dispose of the 1st respondent’s objection, the ruling cannot stand as the issue of submission to arbitration was no longer being contested by the parties.

1st respondent’s counsel argued that proceedings can be terminated at the instance of the respondent on the basis of a clause in the contract entered into by the parties. This, according to him, is because parties are bound by the terms of an agreement freely entered into by them and the Court is simply to give effect to the agreement freely entered into by parties. He posited that the phrase used in the arbitration clause is “shall” which is mandatory and so the lower Court was right in holding that the appellant was under an obligation to explore arbitration. It was his further submission that whenever there is an agreement between parties that their dispute must be referred to arbitration, arbitration becomes a condition precedent to the exercise of jurisdiction.

It was his position that apart from filing an application for stay of proceedings, a defendant may also apply for the suit to be struck out where the Court is robbed of jurisdiction. He emphasized that such an application is known to law. He went on to submit that taking steps to file a statement of defence before filing a preliminary objection at the lower Court was the proper thing for the (1st) respondent to do since demurrer has been abolished. He finally submitted that if the 2nd respondent abandoned the first arm of his objection, it does not mean that the said ground ceased to constitute an issue between the appellant and the 1st respondent.

Let me quickly say that the reply brief filed by the appellant is not worthy of the tag “reply brief.” It begins by identifying two issues said to flow from the respondents’ brief of argument. Issues for the determination of an appeal do not arise from a respondent’s brief of argument; rather they arise from grounds of appeal. Besides, there is no room in the rules of this Court for formulation of issues for determination in a reply brief.

Again, the issues formulated in the reply brief by appellant’s counsel are a re-statement of issues A and D raised in the appellant’s amended brief of argument. In short, the reply brief is but a re-argument of the contention in the appellant’s brief of argument. A reply brief is not meant to afford the appellant another bite at the cherry. It is improper to use a reply brief to extend the scope of argument in the appellant’s brief or to seek to prettify the argument in the appellant’s brief of argument. See Kolo v. Lawan (2018) 13 NWLR (Pt. 1637) 495, 518 and Mainstreet Bank Capital Ltd v. Nigeria Re-Insurance Corporation Plc (2018) 14 NWLR (Pt. 1640) 423, 442. So I shall discountenance the reply brief.

It was the contention of appellant’s counsel that the trial Court failed to analyse and consider any of the issues raised by the appellant in its reply on points of law and that this is borne out by page 286 of the record of appeal. It was the position of 1st respondent’s counsel that this is a matter of style of writing of judgment or ruling which is peculiar to each judge. At page 268 of the record, the learned judge of the lower Court held that no reason had been provided by the appellant for its failure to submit the dispute between the parties to arbitration. This cannot be correct, for the appellant (as claimant) in its replies at pages 237 -241 and 261 of the record gave the reasons for its not submitting the dispute to arbitration. The trial Court obviously overlooked the issue and argument of appellant’s counsel on the point.

All Courts especially non-final Courts are required to treat all issues raised and argued by parties before reaching a decision. See Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332, 361, Nagabu Company Ltd v. Unity Bank Plc (2013) All FWLR (Pt. 698) 871, 896, and C. N. Okpala and Sons Ltd v. Nigerian Breweries Plc (2018) 9 NWLR (Pt. 1623) 16, 28. The lower Court did not consider and resolve the issue and points raised and argued by appellant’s counsel before reaching its decision.

Now, the issue or point that was left untreated by the lower Court was to the effect that the time to resort to arbitration had effused and so the appellant was right to head straight to the lower Court without resorting first to arbitration. I shall take the liberty of setting out the relevant clauses of the written agreement between the parties:
Article 7 of the articles of agreement states:
“If any dispute or difference as to the construction of this contract or any matter of thing of whatsoever nature arising thereunder or in connection therewith shall arise between the Employer or the Architect/Co-ordinator on his behalf and the Contractor either during the progress or after the completion or abandonment of the works, it shall be and is hereby referred to arbitration in accordance with the clause of the Conditions of Contract.”

Clause 30 (7) of the Appendix No. 1 to the articles of agreement in part reads:
“Unless a written request to concur in the appointment of an arbitrator shall have been given under clause 35 of these conditions by either party before the Final Certificate had been issued or by the Contractor within 14 days after such issue, the said certificate shall be conclusive evidence in any proceedings arising out of this contract (whether by arbitration under clause 35 of these conditions or otherwise) that the Works have been properly carried out and completed in accordance with the terms of this contract and that the necessary effect has been given to all the terms of this contract which require an adjustment to be made to the Contract Sum, except and in so far as any sum mentioned in the said certificate is erroneous by reason of …”
Clause 35 (1) provides:
“Provided always that in case any dispute or difference shall arise between the Employer or the Architect on his behalf and the Contractor either during the progress or after the completion or abandonment of the Works, as to the construction of this Contract or as to any matter or thing whatsoever nature arising thereunder or in connection therewith (including any matter or thing left by this Contract to the discretion of the Architect or the withholding by the Architect of any certificate to which the Contractor may claim to be entitled or the measurement and valuation mentioned in Clause 30 (5) (a) of these Conditions or the rights and liabilities of the parties under clauses 25, 26, 32 or 33 of the Conditions) then such dispute or difference shall be and is hereby referred to the arbitration and final decision of a person to be agreed between the parties, or failing agreement within 14 days after either party has given to the other a written request to concur in the appointment of an Arbitrator, a person to be appointed on the request of either party by the President or Vice President for the time being of the Nigerian Institute of Architects.”

Clearly clause 30 (7) above does not talk about time within which a party may resort to arbitration after which the obligation to resort to arbitration is extinguished: it talks about the effect of failure to give a written request to concur in the appointment of an arbitrator either before the Final Certificate has been issued or within 14 days after the said Certificate has been issued, namely; ”the said certificate shall be conclusive evidence in any proceedings arising out of this contract…” It does not preclude or bar resort to arbitration and does not give any time limitation for doing so. This is even made clearer by the words in brackets, to wit: ”whether by arbitration under clause 35 of these conditions or otherwise.”

Clause 35 (1) supra. provides for arbitration in case any “dispute or difference shall arise… either during the progress or after the completion or abandonment of the Works, as to the construction of this Contract or as to any matter or thing or whatsoever nature arising thereunder or in connection therewith.” (underling is mine for emphasis)

There is, as I have already stated, no time limitation as regards resort to arbitration in the contract as canvassed by counsel for the appellant.

The effect of the foregoing is that though the lower Court did not consider the point raised by appellant’s counsel touching on the issue of expiry of time within which resort is to be made to arbitration, the failure did not occasion a miscarriage of justice. See BPS Construction and Engineering Co. Ltd v. F. C. D. A. (2017) 10 NWLR (1572) 1, 14, SCC (Nig.) Ltd v. Anya (2013) ALL FWLR (Pt. 703) 2047, 2062 and Nigerian Communications Commission v. Motophone Ltd (2019) 14 NWLR (1691) 1, 37 where Aba-Aji, JSC, opined that:
“Moreover, even failure to consider all issues submitted before it would not amount to a denial of fair hearing unless it is shown that a miscarriage of justice occurred.”

An arbitration agreement is an agreement by two or more persons that a dispute or potential dispute between them shall be resolved and decided in a legally binding way by one or more impartial persons in a judicial manner upon evidence put before him or them. It may stand alone or be incorporated in a commercial agreement as in this instance. See Onuselogu Enterprises Ltd v. Afribank (Nig.) Plc (2005) 12 NWLR (Pt. 940) 577, 585 and A. Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases page 145.

An arbitration agreement or clause does not oust the jurisdiction of the Court (for parties have no power to contract out of the Constitution) but the Court in the exercise of its power under a statute may stay proceedings in an action brought before it in breach of an agreement to settle a dispute by arbitration. In the case of Mainstreet Bank Capital Ltd v. Nigeria Reinsurance Corporation Plc, supra. 444 – 445, Kekere-Ekun, JSC, in resolving a similar issue relied on and quoted the case of Obembe v. Wemabod Estates Ltd (1977) 5 SC (Reprint) 70 thus:
“The lower Court was right when it held that an agreement to have recourse to arbitration in the event of a dispute does not oust the jurisdiction of the Court. In Obembe v. Wemabod Estates Ltd (1977) 5 SC (Reprint) 7 @ 79 lines 19 to 28, this Court per Fatayi-Williams, JSC, explained the legal position thus:
“As we have pointed out earlier, 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 claim or cause of action included in the submission. (See Harris v. Reynolds (1845)7 QB 71). At common law, the Court has no jurisdiction to stay proceedings; where however there is a provision in the agreement, 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.”
See also Sino-Afric Agriculture & Industries Company Ltd v. Ministry Of Finance Incorporation (2013) LPELR – 22370 (CA) and Onyekwuluje v. Benue State Government (2015) 16 NWLR (Pt. 1484) 40.
Counsel for the appellant referred to a class of arbitration agreement or clause that is termed the Scott v Avery clause which is a provision in an arbitration agreement to the effect that no action shall be brought until an arbitral award has been made. This contractually forbids resort to a Court until the arbitration process has been exhausted. The leading case on the position is Scott v. Avery 1856 HL 811. See Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases supra page 147. Counsel set out the position of the Supreme Court on the clause as expressed in Obembe v. Wemabod Estates Ltd supra. I do not intend to comment on the submission by appellant’s counsel as the arbitration clause in this instance does not fall into this category of arbitration clause.
Section 5 (1) of the Arbitration and Conciliation Act provides that:
“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 steps in the proceedings, apply to the Court to stay proceedings.”

Let me pause at this stage to quickly settle a point raised by appellant’s counsel to the effect that since the 1st and 2nd respondents filed notices of preliminary objection to the jurisdiction of the Court instead of applications for stay of proceedings, the lower Court had no authority to consider the same as it is not known to the law. The simple answer to this submission is to be found in the case of Mainstreet Bank Capital Ltd v. Nigerian Reinsurance Corporation Plc supra. 445 where Kekere-Ekun, JSC, opined that:
“…since an arbitration clause in an agreement does not oust the jurisdiction of the Court, an objection to the jurisdiction of the Court is in effect an application to stay proceedings pending arbitration.”

That gives a quietus to the contention of appellant’s counsel.

Where a party to an arbitration agreement proceeds first to Court before resorting to arbitration as agreed, the Court leans towards granting an application for stay of proceedings pending arbitration provided the party applying did not file a defence or take steps in the proceedings other than entering appearance. Where a party delivers a defence or makes any application for extension of time, he will be deemed to have waived his right to insist on recourse to arbitration.

See Mainstreet Bank Capital Ltdsupra. 445, Kano State Urban Development Board v. Fanz Construction Co. Ltd (1990) 4 NWLR (Pt. 142) 1 and Osun State Government v. Dalami Nig. Ltd (2003) 7 NWLR (Pt. 818) 72, 93.
The question that follows therefore is was there a waiver by the 1st and 2nd respondents of the right to insist on a recourse to arbitration? In answering the question, I shall start by considering the processes filed by the 2nd respondent. They are as follows:
1. A statement of defence. See pages 175-178 of the record.
2. A written deposition of a witness in opposition to the motion for summary judgment etc. see pages 179-180 of the record.
3. Written address in opposition to the motion for summary judgment. See pages 183-185 of the record.
The processes above were filed on the same day that the preliminary objection to the jurisdiction of the Court was filed, to wit; 25/7/2016. The 2nd respondent by the filing of those processes took steps in the matter and thereby waived his right to insist on a recourse to arbitration. His counsel admitted this position at page 266 of the record when he stated before the Court that: “We concede on the 1st arm of our prayer because we have taken steps because we filed a statement of defence…”
In respect of the 1st respondent, it should be put on record that the mere fact that the 2nd respondent took steps does not by itself affect adversely the application of the 1st respondent though the lower Court stated that the outcome of the 2nd respondent’s application would dispose of the 1st respondent’s objection. This is because the objection of the 1st respondent still maintained its individual character different from that of the 2nd respondent. I shall therefore consider the processes filed by the 1st respondent apart from the notice of preliminary objection. The processes are:
1. Statement of defence. See pages 186-188 of the record.
2. List of witness – page189 of the record.
3. Written deposition of the witness – pages 190-193 of the record.
4. Written address – pages 193-199 of the record.
5. Notice of intention to defend – page 200 of the record.
6. Affidavit disclosing a defence on the merit – pages 201-203 of the record
7. Motion on notice for extension of time to file notice of intention to defend, affidavit disclosing defence on the merit, written address and statement of defence and a deeming order. See page 212 of the record.
It must be mentioned that those processes were filed on 26/7/2016 while the notice of preliminary objection was filed on 8/7/2016. In other words, the processes listed above were filed after the notice of preliminary objection was filed by the 1st respondent. A similar situation arose in the case of Mainstreet Bank Capital Ltd v. Nigerian Reinsurance Corporation Plc supra. At page 446 Kekere-Ekun, JSC, dissolved the puzzle, by rejecting the position of the Court of Appeal that there was no waiver, in the following words:
“I must state however, with due respect to the lower Court, that it was wrong when it held that the steps taken by the respondent after filing of the preliminary objection did not preclude it from applying for stay of proceedings pending arbitration vide Section 5 (1) of ACA. From the decisions of this Court earlier referred to, any step taken apart from seeking stay of proceedings (or seeking to oust the jurisdiction of the Court) amounts to a step in the proceedings and the applicant is deemed to have waived his right on arbitration agreement.”
I find therefore that by filing the processes listed earlier after filing the notice of preliminary objection, the 1st respondent waived its right to insist on a recourse to arbitration.

In the light of the foregoing, I enter a negative answer to issue 1 and resolve the same in favour of the appellant.

ISSUE 2 –
Was the lower Court right in not entering judgment in favour of the appellant?

Appellant’s counsel submitted that appellant established its case under the rules of Court and as such is entitled to the reliefs claimed. He referred to the writ of summons and motion for summary judgment together with the annexures. He noted that the case of the appellant was by way of summary judgment procedure which he said is usually adopted when a claimant has a good case and the defendant has no reasonable defence. He submitted that the respondents have no defence as they failed to annex or exhibit any documentary evidence showing that the appellant is not entitled to the sum due. He therefore argued that the appellant is entitled to judgment without the need for trial de novo pursuant to the inherent power of the Court and Order 7 Rule 2 (1) of the Court of Appeal Rules. He added that the appellant is also entitled to the alternative prayers as contained in the notice of appeal.

1st respondent’s counsel contended that lower Court acted in the interest of justice by first determining the preliminary objection of the 1st and 2nd respondents. It was his further contention that in view of the merit of the objection, the lower Court was right in striking out the matter and not looking at the substantive suit in order to determine whether or not to grant judgment in appellant’s favour. He added that Order 7 Rule 2 (1) of the rules of this Court was inapplicable. He stressed the point that the application for summary judgment which is in the nature of a motion had not been argued or moved before the lower Court for it to pass judgment on. He stated the trite position of the law that a Court is expected to make a specific ruling on an application before it after hearing counsel.

Counsel submitted that it is not the law that where a notice of intention to defend is filed, it must be accompanied with documentary exhibit.

The appellant is essentially calling on this Court to invoke its power under Section 15 of the Court of Appeal Act and Order 4 Rule 1 of the Court of Appeal Rules, 2021 to determine the case since the decision of the lower Court striking out the case of the appellant cannot stand. For the Court to exercise its power under the said provisions, the following factors must be present:
1. The lower Court must have the power to adjudicate in the matter.
2. The real issue raised by the appellant’s claim at the lower Court must be seen to be capable of being distilled from the grounds of appeal.
3. All necessary materials must be available to the Court for consideration.
4. The need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented.
5. The injustice or hardship that will follow if the case is remitted to the lower Court must be clearly manifest.
See Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Mainstreet Bank Capital Ltd v. Nigerian Reinsurance Corporation Plc supra. 447. For Section 15 of the Court of Appeal Act to apply, the matter must have been raised in the lower Court and that Court did not or failed to take the appropriate decision. See Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) 554, 640. It is pertinent to re-state that there were two motions pending before the lower Court, to wit:
1. Motion for summary judgment
2. Motion by the 1st respondent for extension of time to file its notice of intention to defend, affidavit disclosing defence, written address and statement of defence and a deeming order.

None of the motions had come up for hearing at the lower Court as at the time that it heard and ruled on the preliminary objections of the 1st and 2nd respondents. The law is well established that a Court has a duty to hear and determine all applications pending before it before making a final pronouncement by way of delivery of judgment. See Cookey v. Fombo (2005) 15 NWLR (Pt. 947) 182, 201, United Parcel Service Ltd v. Ufot (2006) All FWLR (Pt. 314) 337, 356, BCE Consulting Engineering v. NNPC (2019) 14 NWLR (Pt. 1691) 136, 175 and Newswatch Communication Ltd v. Atta (2006) 12 NWLR (Pt. 993) 144, 168 – 169.

Again, a Court cannot rule on a motion that has not been moved. Since the motions itemized above had not been moved at the trial Court nor can they or have they been moved in this Court, the coast was not clear for judgment to be delivered by the lower Court and so this Court cannot proceed to exercise its power under Section 15 of the Court of Appeal Act to enter judgment one way or the other.

Given the stage of the case at the lower Court, I enter an affirmative answer to issue 2 and resolve it against the appellant.

On the whole and in the light of my resolution of issue 1, I find that the appeal has merit and I allow the same. I hereby set aside the ruling of the lower Court and, in its place, I dismiss the preliminary objections of the 1st and 2nd respondents.

It is directed that the case be remitted to the Honourable Chief Judge of Delta State for assignment to a judge other than Gbemre, J. for speedy hearing and determination of the pending motions.

I assess the costs of this appeal at N300,000 in favour of the appellant.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had a preview of the lead judgment of my learned brother, J. E. EKANEM, JCA. My Lord has fully covered the issues in his lead judgment. I am in full agreement with his reasoning and conclusion that the appeal has merit. I abide by the orders made therein.

ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.: I have read in advance the judgment of my learned brother JOSEPH EYO EKANEM, JCA.

I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.

I too hold that the appeal has merit and I allow the same.

I abide by all consequential order (s) in the lead judgment.