NIPOL LIMITED VS BIOKU INVESTMENT AND PROPERTY CO. LTD.
In the Supreme Court of Nigeria
Friday, April 10, 1992
Case Number: SC. 61/1991
BELLO JUSTICE, SUPREME COURT
UWAIS JUSTICE, SUPREME COURT
KAWU JUSTICE, SUPREME COURT
BIOKU INVESTMENT AND PROPERTY CO. LTD.
APPLICATION FOR EXTENSION OF TIME: RESPONSIBILITY OF COUNSEL OR PARTY
“Where a party or his counsel finds that his cause or matter is incompetent because it was filed out of time, it is his responsibility to apply for extension of time to put things right. He should not blame the court for his woes arising from his failure to do the right thing.” Per AKPATA, JSC
AKPATA, JSC. Delivering the Judgment of the Court: On 2nd March, 1992, the appeal of the appellant against the judgment of the Court of Appeal was allowed and the case was remitted to the Court of Appeal for the appeal of the respondent against the decision of the trial High Court to be heard on its merit. I indicated then that I would give my reasons today for allowing the appeal and for remitting the case to the Court of Appeal. When our Rule of Court states that “the rule for the time being in force in England” shall apply, does the expression mean the rule in force in England when our Rule was made or any rule subsequently made in England after our Rule had been made? This issue is the crux of this appeal. There was a co-operation agreement dated 4th October, 1983 between Bioku Investment and Property Company Limited (hereinafter called the “Company”) on the one part, and Nipol Limited (hereinafter called “Co-operator”) of the other part. It was agreed in the said agreement that “in case of any dispute as to the operation of this agreement, any such dispute arising therefrom shall be referred to an arbitrator agreed to by both parties. The arbitrator shall decide in accordance with Nigerian law and his decision shall be binding on both parties.” Although the terms of the agreement are not relevant for my decision, it is necessary to state in a nutshell the contents of three of the clauses in the agreement in order to appreciate the sequence of events leading to this appeal. Clause One is to the effect that the Company shall utilise the excess of its foreign exchange for the purchase of sixteen tons of raw materials for the productions of Guinness crates for and on behalf of the Cooperator. Clause three provides for the hiring by the Cooperator of the Company’s Engel injection moulding machine for one year for the production of 50 cm. basins. Clause nine provides for the supply of raw materials by both parties. A dispute arose between the parties when the Cooperator determined the whole contract after it had used the Engel machine for only two months.
The dispute was referred to Niyi Akintola Esq. the arbitrator agreed to by both parties. The arbitrator published his award on 4th September 1984. In it he found that the Cooperator had committed a breach of the contract of hiring of the Engel machine and awarded as damages against the Cooperator a total sum of N285,884.40. Dissatisfied with the award, the Cooperator filed in the High Court an application on 11th October, 1984, 37 days after the award, by way of motion on notice-to set aside the award or remit it. The application was based on a number of grounds. The Company in opposing the application filed a counter-affidavit pointing out, amongst other things, that the application was filed out of time not having been filed within 21 days of the publication of the award and that the award had become binding and effective. Learned counsel for the company relied on the English Supreme Court Practice (1982). In his ruling on the issue the learned trial judge held on 10th December, 1984, relying on Order 73 rule 5 of the Rules of Supreme Court 1979, that an application to set aside an award may be made at any time within six weeks after the award has been made and published to the parties. He went on to say: “Even if the application had been filed after the expiration of the period of six weeks as provided for under the rule of the Supreme Court, the court can still grant an extension of time within which to file an application to set aside an award if the applicant is able to give sufficient reason for the delay in bringing the application. It is crystal clear therefore, having regard to the foregoing points that the objection raised by the plaintiff/respondents’ learned counsel is totally without any merit and it should be overruled and it is accordingly overruled.” The learned trial Judge after disposing of the preliminary objection, proceeded to hear argument on the application of the Co-operator that award be set aside. In his ruling delivered on 8th March, 1985, the learned trial judge was of the view that the use of the Company’s foreign exchange was illegal and that such illegality would no doubt affect the lawful performance of the whole contract. He held that the supply of the raw material affected a large portion of the contract, and that without the supply of the sixty tons of raw material based on illegal contract, the Cooperator would not be able to make use of the Engel machine effectively. He was therefore of the view that the maxim ex turpi causa non oritur actio, applied. After considering and resolving other issues raised in the application of the Cooperator, the learned trial judge, Adekola, J., concluded thus: “It seems to me that this is not the type of arbitration award which should be remitted in view of the illegality by which it was tainted. The awards made by the arbitrator are hereby set aside. Before ending this judgment it is pertinent to say that I still hold to my view in my ruling of 10/12/84 that the time within which to apply to set aside an award is six weeks and not 21 days as claimed by the respondents counsel.” The Company appealed to the Court of Appeal against the ruling of the learned trial judge. The notice of appeal contained eight grounds. The Cooperator filed a notice that it would contend at the hearing of the appeal that the decision of the trial court be affirmed on other grounds. However, as pointed out by the Court of Appeal, the notice was deemed to have been abandoned as the issue was not canvassed in the respondents brief of argument. It was accordingly struck out. In the Company/appellant’s brief three issues were formulated as arising from the eight grounds of appeal. The Co-operator/respondent formulated four issues.
The Court of Appeal summarized the issues arising from the appeal thus: “(1) Whether the learned judge was in error in not dismissing the application to set aside the award on the ground that it was filed out of time. (2) Whether the High Court was right in holding that the Co-operation Agreement was illegal, and that it could not be saved, since the offending clause of the agreement (Clause 1) went to the root of the transaction between the parties thus rendering the agreement void for illegality. Whether the court below exceeded its jurisdiction considering the question of illegality when such a question was not specifically raised before it by either of the parties. (4) Whether the respondent had strictly proved according to law the special damages claimed to have been incurred by him.” It however turned out that the appeal was decided on the first issue alone. It was agreed by both sides in their briefs of argument and oral submissions that by virtue of Order 37 rule 10 of the High Court Civil Procedure Rules of Oyo State, the procedure and practice in England at the time of filing the application in the High Court was applicable thereto. The application of the Cooperator before the High Court was filed on 11th day of October, 1984. Order 37 rule 10 provides: “Where no provision is made by these rules or by any other written laws the procedure and practice in force for the time being in the High Court of Justice in England shall, so far as they can conveniently be applied, be in force in the courts.” It was the contention of the appellant in the Court of Appeal that since no provision in respect of the subject matter was made in the Oyo State High Court Rules: the practice and procedure in force in the High Court of Justice in England would be applicable. According to learned counsel, since the application to set – aside the award made by the arbitrator was filed on the 11th of October, 1984 and the award was so made and published on the 4th day of September, 1984, the practice and procedure in force in England in October, 1984 was as provided by Order 73 of the English Supreme, Court Practice 1982. By Order 73 rule 5(1) of the English Supreme Court Practice, 1982, the application relating to setting aside an award or otherwise must be made and the summons or notice must be served within 21 days after the award has been made and published by the parties. While agreeing, that the English Supreme Court Practice 1982 was applicable, learned counsel for the Co-operator/respondent drew the court’s attention to paragraph 3778 of the Supreme Court Practice 1982 which provides that the application to set aside an arbitration award is by motion and that the notice of motion together with the affidavit to be used at the hearing must be served at least two clear days before hearing date and within six weeks after the award has been made and published to the parties. In its unanimous decision delivered on 7th July, 1986, the Court of Appeal held that “undoubtedly, it is Order 73 Rules 5(1) RSC. 1982 which represented the procedure and practice in force in the High Court of Justice in England at the time the application to set aside or remit the award in this case was made to the lower court. “The Court went on to reproduce the relevant rule which provides that the relevant application “must be made, and summons or notice must be served, within 21 days after the award has been made and published to the parties.” The Court went on to explain that paragraph 3778 of the Supreme Court Practice 1982 referred to by learned counsel for the cooperator/respondent was a commentary by the authors of the Rules of the Supreme Court on the rules mentioned therein and not part of the rules and cannot, therefore, override the express provisions of the rules and that in so far as such commentary was inconsistent with the rules, the latter prevailed. Furthermore, the Court explained “the passage deals with service of the notice of motion and not the time for the bringing of it.”
The Court of Appeal pointed out that it was not in dispute that the cooperator/respondent’s application to the High Court was made outside the period of 21 days after the award had been made and published to the parties nor was there an order extending the time to bring the application. The court therefore held that the proceedings in the High Court were incompetent and, therefore, a nullity. The court was of the view that the resolution of the issue was sufficient to dispose of the appeal and that it was not necessary to discuss and determine other grounds filed. The cooperator, the respondent in the Court of Appeal, was aggrieved by the judgment of that court that upturned the decision of the trial High Court. The cooperator, the appellant in this court, filed its notice of appeal which contained only one ground. In the appellant’s brief filed in this court on 18th March, notice was given that before the hearing of the appeal the appellant would seek leave of this court to raise the issue of the non-compliance with the requirement of filing the application at the High Court within the period of 21 days as being an irregularity which does not nullify the proceedings in the trial High Court, even though it had not been raised in the court below. The two issues formulated therefore in the appellants brief read: “(a) Whether the time limit for the filing of the application in the High Court for the setting aside of the Arbitration award at the time the appellant filed its application was twenty-one (21) days or six (6) weeks; (b) Whether if the time limit is twenty-one (21) days filing of the application outside the period was a mere irregularity which could be regularised or it rendered the entire proceedings a nullity.” As it may appear strange that briefs were filed in 1988 in respect of a 1991 appeal it is relevant to point out that the appeal first came before us as appeal No. SC./77/1987. It was struck out on 9th April, 1990 in that the only ground of appeal raised questions of mixed law and fact and no leave was obtained to argue it. On its application the appellant was on 5th November, 1990 granted extension of time to seek, leave to appeal and extension of time within which to appeal. Pursuant to this order the appellant filed a fresh notice of appeal on 9th November, 1990. Three grounds of appeal are contained in the notice, they read: (1) The learned justices of appeal erred in law in holding that the period allowed for the commencement of action to challenge the decision of an arbitrator is 21 days, when on a proper interpretation and application of Order 73, rule 5, Rules of the Supreme Court of England, 1982 Paragraph 3778, Supreme Court Practice, 1982 and Order 37 Rule 10, High Court (Civil Procedure) Rules of Oyo State 1978, the period allowed for challenging an Arbitrator’s award is six weeks. (2) The learned justices of appeal erred in law in treating the failure of the Applicant in the High Court to commence proceedings in the High Court to set aside the award of the Arbitrator within 21 days as a fundamental defect affecting the competence of the entire proceeding when on a proper application of Order 2, Rule 1 of the rules of the Supreme Court of England, they should have treated it as a mere irregularity which did not nullify the proceedings. (3) The learned Justices of appeal erred in law in not suo motu extending time to file the application for setting aside, (as the High Court should have done in the first instance) and thereafter considering the other grounds and issues in the appeal before them on the merits when the law requires them so to do to ensure that cases are determined on their merits rather than parties being shut out on the grounds of technicality or defect in procedure.” On 9th September, 1991, the application by the appellant seeking leave to depart from the rules and to use the record of appeal compiled in Suit No. SC. 74/87 and also to use the briefs filed in suit No. SC. 74/87 for the purpose of this appeal – SC61/1991 and for accelerated hearing was granted in its entirety. At the hearing of this appeal on 2nd March, 1992, the appellant was granted leave to argue the issue raised in ground two, which is the second issue formulated for determination in this appeal, which was not raised in the lower court.
As in the Court of Appeal both counsel were of the view that the 1982 rules of the Supreme Court, England was applicable. It was however the contention of the appellant’s counsel, Chief Esan, that order 73 rule 5(1) of the 1982 Supreme Court Practice which changed the former requirement of six weeks as contained in all previous editions to 21 days could not be conveniently applied in the High Court of Oyo State at the time the application was filed in 1984. He urged this court to take judicial notice that when amendments are made to the rules in England they are not immediately published to “all and sundry” in Nigeria and may not be available until some years after the amendments have been made to the rules. According to him, an amendment made to the rules from 1982 to 1985 would not be readily available to legal practitioners in Nigeria until the 1985 edition was published and available in the market. The attention of learned counsel for the appellant was drawn by this court to the fact that order 37 rule 10 of the High Court (Civil Procedure) Rules, Oyo State 1978 apparently came into effect in 1978. For ease of reference I will reproduce order 37 rule 10 again. It reads: “Where no provision is made by these rules or by any other written laws the procedure and practice in force for the time being in the High Court of justice in England shall, so far as they can conveniently be applied, be in force in the courts.” (italics mine) When asked whether the expression “for the time being” did not relate to the procedure and practice in force in England in 1978 when the High Court Civil Procedure Rules of Oyo State were published he readily answers in the affirmative. He then argued forcefully that order 73 rule 5(1) of the 1982 Supreme Court Practice was not applicable. He further argued that granted that it applied, which he appeared not to concede, that paragraph 3378 Volume 2 of the 1982 Supreme Court Practice makes it plain that the application must be made within six weeks. Mr. Agbaje, SAN, learned counsel for the respondent, contended that the learned justices of the Court of Appeal were right in holding that Order 73 Rule 5(1) of the Supreme Court Practice 1982 which provides 21 days as the period for applying to set aside or remit an award was applicable. He urged this court to hold that paragraph 3378, Volume 2 Supreme Court Practice 1982 only speaks of “hearing and deals with service of notice of motion and the affidavit to be used at the hearing” and that it does not relate to the time within which the application must be filed. He also contended that there was nothing inconvenient about the applicability of Order 73 Rule 5(1) in Oyo State of Nigeria at the relevant time. When Mr. Agbaje’s attention was drawn by the court to the phrase “for the time being” and its inherent meaning within the context of Order 37 Rule 10 of the Oyo State High Court (Civil Procedure) Rules 1978 and the case of Flora Godwin v. Naomi Crowther (1934)2 WACA. 109 where “for the time being” was legally defined, he argued that the expression in its general sense is that of “time indefinite” as Stroud’s Judicial Dictionary Volume 3, Second Edition, page 2059 suggests. In my view, to fully appreciate the meaning or import of the expression “for the time being” within the context of Order 37 Rule 10, it is necessary to take a mental excursion back to 1978 when the Oyo State High Court (Civil Procedure Rules) 1978 purports to have come into existence. If one may paraphrase and expatiate on the provisions of Rule 10 of Order 37, it will be put thus:
At the date of the commencement of these rules, where no provisions is made by these rules or in other written laws, the procedure and practice in force at this time, 1978 in the High Court of Justice in England shall, so far as they can conveniently be applied, be adopted in our courts. It falls to reason that where the contents of any law or procedural rule are adopted by reference from another legislation or rule of practice, it must be presumed that the makers of the latter legislation or rule would have known the contents of the said legislation or rule before adopting them. They cannot be adopting in advance a legislation or rule yet to be enacted, the contents of which they are ignorant unless there is clear indication that they must do so. In the case of Flora Godwin v. Naomi Crowther (Supra), what called for interpretation was section 6 of the Supreme Court Ordinance 1904 of Sierra Leone which reads as follows: “The jurisdiction hereby conferred upon the court in probate, divorce and matrimonial causes and proceedings may, subject to this Ordinance and to Rules of court, be exercised by the court in conformity with the law and practice for the time being in force in England.” The issue for determination in that case was whether in the light of the phrase “for the time being” in the 1904 Ordinance the English Administration of Estate Act 1925 was applicable to the case before the High Court. The learned trial Judge based his opinion of the meaning of the phrase “for the time being” on a passage in Stroud’s Judicial Dictionary, Volume 3 page 2059 which reads as follows: “The phrase “for the time being” may according to the context, mean the time present or denote a single period of time: but its general sense is that of time indefinite, and refers to the indefinite state of facts which will arise in the future and which may (and probably will) vary from time to time.” The learned trial Judge came to the conclusion that the Administration of Estate Act 1925 was applicable to the matter before him. On appeal to the West African Court of Appeal, that Court held that the trial Judge was mistaken. In his leading judgment Macquarrie, J. observed at page 111 thus: “Here with respect, I disagree with him (the trial Judge). The cases referred to in Stroud do not include such a case as this, and it seems to me that those words are not apt in a statute to apply laws which ought be made in the future. I think the ‘time’ must be taken to be the time which the ordinance speaks, i.e. at its commencement.” I agree with the West African Court of Appeal on the issue. Even Stroud’s Judicial Dictionary Volume 3 page 2059, I think it is second Edition, cited by the trial Judge in the case under reference also makes the point that the phrase “may according to the context, mean the time present or denote a single period of time.” The definition of the phrase “for the time being” can now be found at page 3030 Volume 4 of the 3rd Edition. Cases referred to by Stroud which tend to suggest that “for the time being” refers to “an indefinite state of fact which will arise in the future, and which may (and probably will) vary from “to time” have no bearing with statute law or rules of court adopting another law or rule for the time being in force.” One of the examples cited by Stroud where the phrase is said to relate to the future is a testamentary gift in remainder to testator’s “next of kin for the time being.” “Next of kin for the time being” was interpreted to mean the next of kin living at the testator’s death and not the next of kin at the time the Will was made. The position is that where a Statute or Rule of court states that a particular law or rule of practice “for the time being in force” somewhere should be applied in certain cases, the law or rule of practice, which becomes incorporated by reference into the Statute or Rule of court is that which is in operation at the commencement of the statute or rule of court and not future law or rule of practice from the same source unless it is patently clear that the legislature intended such an unusual purpose.
In the case of Bashir v. Commissioner of Lands (1960)1 All ER 117 at page 127, also reported in (1960) AC 45 at page 62, a Kenyan case, by a Crown grant dated 8/1/53 the Governor of Kenya granted a plot of land in Nairobi to the appellant for a term of 99 years. The appellant defaulted in respect of some of the conditions of the lease. By section 83 the Crown Lands Ordinance 1915, in exercising the power of granting relief the court shall be guided by the principle of English law and equity. The question for determination turned on the English law applicable. It was held by the Privy Council that the reference to English law must extend to statute law, and the statute law referred to must be the statute law in force at the date when section 83 of the Crown Lands Ordinance 1915 became law, and that “prima facie a Kenya Ordinance could hardly be taken, in the absence of some indication to the contrary to adopt in advance future English legislation of unknown content.” Certainly, the makers of the Oyo State High Court (Civil Procedure) Rules 1978 could not by Order 37 Rule 10 have been adopting in advance future English Rules of unknown content. What was adopted was Order 73 Rule 5(1) which at the material time provided that an application to set aside an award may be made at any time “within six weeks after the award has been made and published to the parties.” It was not intended that any change in practice and procedure in future in England would automatically bring about a change in the Oyo State High Court (Civil Procedure) Rules. There is no doubt that the English Supreme Court Annual Practice, other wise known as the White Book, published from time to time has its usefulness to the Nigerian Lawyer in many respects. It contains explanatory notes relating to relevant rules in the light of recently decided cases. It therefore updates the lawyer’s knowledge of the law. The position, however, is that any change in England in respect of any rule which has been incorporated by reference into the Civil Procedure Rules of any High Court in this Country is irrelevant.” Not only is it wrong in law in the light of the phrase “for the time being” for rules made in England subsequent to the date of commencement of Order 37 Rule 10 to be binding on Courts in Oyo State, it would have been unreasonable and lack of foresight to enact a law that would make the courts in that state to be governed by amendments in rules of court which are not published in Nigeria at the time of the amendments and which are not available until years later. If the courts in Oyo State were to be bound by such amendments a situation might arise where a High Court having based its decision on a rule of procedure in England available to it at the time of the decision, only for the decision to be set aside on appeal because at the time of the hearing of the appeal the amendment to the rule has become available to the Court of Appeal. The Court of Appeal was therefore wrong in holding that the order 73 rule 5(1) of the 1982 annual practice was applicable to the case. The appellant’s application before the High Court was brought within time. The proceedings ought not to have been nullified by the Court of Appeal. The second issue is whether the filing of the application outside the period was a mere irregularity which could not render the proceedings a nullity, granted that the time limit is 21 days, which is not conceded. Learned counsel for the appellant made the point that the requirement for filling within 21 days is a provision of t