NWAGBARA v. JADCOM LTD
(2021)LCN/5031(SC)
In The Supreme Court
On Friday, May 07, 2021
SC.214/2009
Before Our Lordships:
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria
John Inyang Okoro Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Adamu Jauro Justice of the Supreme Court of Nigeria
Between
OKEY JIM NWAGBARA (TRADING UNDER THE NAME AND STYLE OF DODO MAAC CONSULT) APPELANT(S)
And
JADCOM LIMITED RESPONDENT(S)
RATIO:
WHAT CONSTITUTE A COMPLAINT AGAINST THE DECION OF COURT
A good and competent ground of appeal must constitute a complaint against the decision; that is the ratio decidendi of the decision appealed, and not against obiter dictum or mere preamble to the decision. A ground of appeal, being the totality of the reasons why the decision complained of is considered to be wrong by the party appealing must isolate and accentuate, for attack, the basis for the reasoning of the decision challenged: EHINLANWO v. OKE (2008) LPELR-1054 (SC); ELEMORO & ANOR v. ABIODUN (2014) LPELR-23195 (SC). EJEMBI EKO, J.S.C.
PURPOSE FOR THE GROUND OF APPEAL
Without the particulars either of that aspect of law in which the lower Court allegedly erred, or which facts or materials abound allegedly sustaining the decision in the appeal; it is hard to see how the ground meets audi alteram purpose of a ground of appeal. The whole purpose of grounds of appeal is to give notice to the other side of the complaint or the case he is going to meet and address at the appellate Court: NIPC LTD v. THOMPSON ORGANISATION LTD (1969) ALL NLR 134; UGO v. UGO (2017) 18 NWLR (pt. 1597) 218 (SC). EJEMBI EKO, J.S.C.
POSITION OF LAW WHEN THE GROUND OF APPEAL INVOLVES QUESTIONS OF MIXED LAW AND FACT OR OF FACT ALONE
It has been held severally by this Court that a ground of appeal involving questions of mixed law and fact or of fact alone, requires the prior leave of this Court or of the Court of Appeal. See: Chrome Air Services. Ltd. & Ors. VS Fidelity Bank (2017) 12 SC (Pt. III) 57: (2017) LPELR-434790 (SC) @ 8 D-E: Umanah vs N.D.I.C. (2016) LPELR—42555 (SC) @ 11 C—D; (2016) 7 SC (Pt. V) 49; Fasuyi vs P.D.P. (2017) LPELR—43462 (SC) @ 10—12 C—A.
The consequence of the failure to seek leave where leave is required is fatal to the affected ground of appeal. However, a single ground of appeal, which is of law alone, is sufficient to sustain an appeal. See: Fasuyi Vs P.D.P. (Supra): Opuiyo vs Omoniwari (2007) 16 NWLR (Pt. 1060) 415 @ 413 E: Kashadadi vs Noma (2007) 13 NWLR (Pt. 1052) 510. EJEMBI EKO, J.S.C.
JUDGMENT OF COURT PREDICATED ON AN OBITER DICTUM
It is settled law that a ground of appeal predicated on an obiter dictum, that is, a comment made in passing by a Judge, which does not decide the live issue in the case, is incompetent and liable to be struck out. See: Atiba Iyalamu Savings & Loans Ltd. Vs Suberu & Anor. (2018) LPELR—44069 (SC) @ 9-12 F – D; Babarinde & Ors. vs The state (2014) 3 NWLR (Pt. 1395) 568; (2013) LPELR-21896 (SC) @ 62- 63 D-A: Abacha Vs Fawehinmi (2000) 6 NWLR (Pt. 660) 228 @ 351. EJEMBI EKO, J.S.C.
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The Appellant, a Quantity Surveyor, had a dispute over payment of agreed commission payable to him by his principal, the Respondent herein, in respect of a building contract. While the Appellant insisted on payment of his commission on the two phases of the building contract awarded by the third party to the Respondent, irrespective of whether or not the contracts for the two phases were actually awarded; the Respondent posited that the payment of the Appellant’s commission or fees was, as per their agreement, payable only if and when the contract for the second phase was awarded to the Respondent.
There was no dispute about the first phase. The contract for that phase was awarded and the Appellant was paid his fees.
The third party for some financial constraint did not award the contract for the second phase to the Respondent.
The agreement between the Appellant and the Respondent had an arbitration clause.
As the parties herein could not amicably resolve their dispute, the Appellant commenced the action in the High Court of the Federal Capital Territory (FCT) for his fee. The Respondent, in consequence thereof, raised the issue of the arbitration clause. The matter was then referred to arbitration, and the suit was struck out.
The Arbitration panel made its award. The Respondent aggrieved thereby proceeded to the FCT High Court to have the award set aside. The Appellant, in response to this move, rather than wait for the hearing and determination of the Respondent’s action seeking to set aside the arbitration award, filed a fresh and parallel suit No. FCT/HC/CV/809/2000 with a motion to enforce the award. On the Respondent’s objection that the suit, No. FCT/HC/CV/809/2000, was an abuse of the process of the Court; the High Court (Mukhtar, J (as he then was)) agreed with him and dismissed the suit for abuse of Court’s process. The Appellant appealed the decision. He later withdrew the appeal.
The Appellant then filed another application for enforcement of the arbitral award. Again, the Respondent objected. Another Judge of the FCT High Court (H. Baba, J) heard the objection and ruled that, in view of the decision of Mukhtar, J, he was functus officio and would not constitute his Court an appellate Court to review Muhktar’s decision. The Appellant appealed that decision (of H. Baba, J) to the lower Court.
Abdu Aboki, JCA (as he then was), whose judgment the other members of the lower Court (Adekeye and Peter-Odili, JJCA as they were then) concurred, held, agreeing with the trial FCT High Court, that the Appellant was guilty of abuse of judicial process on the grounds that he, having –
– filed an appeal which he did not pursue but later withdrew
– with the consent of the Defendant and filed a Motion on Notice before another Court seeking identical reliefs as those earlier refused…
In this appeal, the Appellant at the (trial) Court, as Applicant in the application No. FCT/HC/M/1749/2001 (had) sought to relitigate the issue which have been dismissed in the previous suit No. FCT/HC/CV/809/2000, in which both parties are the same and the subject matter and the reliefs are the same.
It is therefore most improper for the Appellant to have filed the Motion on Notice NO. FCT/HC/M/1749/2001 dated 7th February, 2002, and — it is an abuse of process.
The Appellant expressed his disagreement and grievance with the decision of the lower Court (delivered on 29th November, 2007) in the four grounds of appeal, contained in the Notice of Appeal, filed on 19th February, 2008. The Notice of Appeal, filed 92 days from the date of decision on 29th November, 2007, was filed out of time: the periods prescribed by Section 27(2)(a) for giving Notice of Appeal being “fourteen days against an interlocutory decision and three months in an appeal against a final decision”.
In this Court “all appeals shall be by way of re-hearing”: Order 8, Rule 2(1) of the Rules of this Court. That means this appeal is a continuation of the interlocutory application praying for the enforcement of the arbitration award dismissed by the trial Court, and affirmed by the lower Court, for being an abuse of the Court’s process.
This appeal appears to be an interlocutory appeal, and I firmly hold that view. The effect, of this, is that the inordinate delay in filing the notice of appeal 92 days after the decision appealed rendered the appeal incurably defective. Even if it is accepted that the appeal was against the final decision of the lower Court; the appellant was still out of time by two days and that fact would prohibit him from giving the Notice of Appeal as of right, as he did in disobedience of Section 27(2)(a) of the Supreme Court Act, 2004.
My lords, there is a Preliminary Objection that all the four grounds of appeal articulating the grievance of the Appellant, are not competent. The Appellant filed no Reply Brief to contest the objection. I agree entirely that all the grounds of appeal are incompetent. A good and competent ground of appeal must constitute a complaint against the decision; that is the ratio decidendi of the decision appealed, and not against obiter dictum or mere preamble to the decision. A ground of appeal, being the totality of the reasons why the decision complained of is considered to be wrong by the party appealing must isolate and accentuate, for attack, the basis for the reasoning of the decision challenged: EHINLANWO v. OKE (2008) LPELR-1054 (SC); ELEMORO & ANOR v. ABIODUN (2014) LPELR-23195 (SC).
Ground 1 of the appeal does not meet the templates of a good and valid ground of appeal; it being an attack on a mere preamble and/or obiter dictum. Without its particulars it is couched thus —
GROUND ONE<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The learned Justices of Appeal erred in law when they held (at P. 16 of the judgment) that “an arbitral award unlike a judgment which has force until set aside, lacks intrinsic or inherent force until pronounced upon by a competent judicial authority and in order that it will attract judicial recognition the Court will inquire if the decision was certain, final reasonable, legal and if the arbitration award disposed of the dispute submitted to it”.
Grounds 2, 3 & 4 are grounds requiring leave first sought and obtained before filing as a precondition for their validity under Section 233(3) of the 1999 Constitution, they being grounds of either fact or mixed law and fact. The three grounds of appeal, as couched being incompetent having been filed as of right without leave first sought and obtained are liable to be struck out: KASHADADI v. NOMA (2007) 51 WRN 1 (SC).
Ground 2, complaining that “the Court of Appeal misdirected itself on facts— is ex facie clearly, one of facts. It requires leave first sought and obtained before filing, the ground filed as of right is invalid and incompetent.
Ground 3, raises issue of mixed law and fact which also requires leave first sought and obtained. It is couched thus —
The Court of Appeal erred in law when it held that Appellant’s Motion on Notice for leave to enforce the arbitral award sought identical relief as those earlier refused and so an abuse of Court process.
i. both the earlier Motion on Notice and suit No. FCT/HC/CV/809/2000 merely sought declaration as to the validity of the award and an order to make the award a judgment of the Court.
ii. Neither before nor during nor at the hearing of the earlier Motion on Notice nor as part of the relief sought in the substantive suit, was the question of leave to enforce the award an issue. The suit itself did not go for trial having been struck out in limine.
iii. The issue of leave to enforce the award had never been litigated upon before.
iv. The Court is bound by the averments contained in the parties respective cases and as revealed by the records and has no jurisdiction to go outside of these.
v. Not more than one action or application on any issue was before the Court at any material point in time and the issue of multiplication of action on the same issue between the same parties at the same time did not arise.
Ground 4, complaining, without particulars of error, that
The Court of Appeal erred in law when it dismissed the appeal of the Appellant when on record there are enough materials to come to a decision sustaining the appeal
is at best a ground of mixed law and fact, requiring leave first sought and obtained before filing. Without the particulars either of that aspect of law in which the lower Court allegedly erred, or which facts or materials abound allegedly sustaining the decision in the appeal; it is hard to see how the ground meets audi alteram purpose of a ground of appeal. The whole purpose of grounds of appeal is to give notice to the other side of the complaint or the case he is going to meet and address at the appellate Court: NIPC LTD v. THOMPSON ORGANISATION LTD (1969) ALL NLR 134; UGO v. UGO (2017) 18 NWLR (pt. 1597) 218 (SC). The failure of this ground 4 in this regard clearly will inflict denial of fair hearing and miscarriage of justice on the Respondent. The defect is therefore fundamental.
On this note I come to the firm conclusion, in agreement with the Respondent in his preliminary, that the appeal is incompetent. The Preliminary Objection is hereby sustained. The appeal is incompetent and is hereby struck out with costs at N1,000,000.00 to the Respondent.
Appeal struck out.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, Ejembi Eko, JSC, just delivered. I have also given a careful considered to the grounds of appeal, which have been attacked by the respondent in its preliminary objection argued at pages 3—6 of its brief. It is the Respondent’s contention that all the grounds of appeal are of mixed law and facts and that by virtue of Section 233(3) of the 1999 Constitution, as amended, the appellant required the prior leave of this Court or the Court below to competently file same. The appellant did not file a reply brief in reaction to the preliminary objection.
Section 233 (2) of the 1999 Constitution, as amended, sets out the circumstances in which an appeal shall lie from decisions of the Court of Appeal to this Court as of right. Section 233(2) (a) provides:
“(2) An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in the following cases –
(a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal;…..”
Section 233(3) provides:
“(3) Subject to the provisions of Subsection (2) of this Section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court”.
It has been held severally by this Court that a ground of appeal involving questions of mixed law and fact or of fact alone, requires the prior leave of this Court or of the Court of Appeal. See: Chrome Air Services. Ltd. & Ors. VS Fidelity Bank (2017) 12 SC (Pt. III) 57: (2017) LPELR-434790 (SC) @ 8 D-E: Umanah vs N.D.I.C. (2016) LPELR—42555 (SC) @ 11 C—D; (2016) 7 SC (Pt. V) 49; Fasuyi vs P.D.P. (2017) LPELR—43462 (SC) @ 10—12 C—A.
The consequence of the failure to seek leave where leave is required is fatal to the affected ground of appeal. However, a single ground of appeal, which is of law alone, is sufficient to sustain an appeal. See: Fasuyi Vs P.D.P. (Supra): Opuiyo vs Omoniwari (2007) 16 NWLR (Pt. 1060) 415 @ 413 E: Kashadadi vs Noma (2007) 13 NWLR (Pt. 1052) 510.
I observe that that no issue was formulated from Ground 4 of the Notice of Appeal. The said ground is deemed abandoned. I am also in agreement with the respondent that Ground 1 is based on an obiter dictum. The issue raised in that ground did not form part of the ratio decidendi of the decision appeal against.
In the course of his ruling, the learned trial Judge referred to the authority of Ras Pal Gazi Construction Co. vs FCDA (2001) 10 NWLR (Pt. 722) 559, cited and relied upon by the appellant and held thus:
‘The case of Ras Pal Gazi Construction Co. Vs FCDA (Supra) cited, with due respect to the learned counsel to the appellant, did not state that an arbitral award being at par with a judgment of a Court can be executed without judicial pronouncement by competent Court. ”
However, the pith and substance of the lower Court’s decision can be found at pages 100—101 of the record, where it held:
“There is said to be an abuse of the process of the Court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues.
In this appeal, the appellant at the lower Court as Applicant in application FCT/HC/1749/2001 have sought to relitigate the issues which have been dismissed in its previous suit No. FCT/HC/CV/809/2000 in which both parties are the same and the subject matter and relief sought are the same. It is therefore most improper for the Appellant to have filed the motion on notice No. FCT/HC/M/1749/2001 dated 7th February, 2002, and I am of the opinion that it is an abuse of Court process.
……I am of the opinion that the learned trial Judge was correct in his ruling delivered on 31/7/2003 refusing the application.”
It is settled law that a ground of appeal predicated on an obiter dictum, that is, a comment made in passing by a Judge, which does not decide the live issue in the case, is incompetent and liable to be struck out. See: Atiba Iyalamu Savings & Loans Ltd. Vs Suberu & Anor. (2018) LPELR—44069 (SC) @ 9-12 F – D; Babarinde & Ors. vs The state (2014) 3 NWLR (Pt. 1395) 568; (2013) LPELR-21896 (SC) @ 62- 63 D-A: Abacha Vs Fawehinmi (2000) 6 NWLR (Pt. 660) 228 @ 351.
In Ground 2 it is stated that the lower Court “misdirected itself on the facts.” I agree with learned counsel for the respondents that the particulars set out thereunder raise issues of fact for which prior leave ought to have been sought and obtained. Ground 3 also raises issues of mixed law and facts. There is nothing before the Court to show that the necessary leave was sought before filing the said ground.
On the whole, I agree with my learned brother, Ejembi Eko, JSC, that the preliminary objection should be sustained. I hold that the grounds of appeal are incompetent and liable to be stuck out. They are hereby struck out. Consequently, the appeal is incompetent and hereby struck out. I abide by the award of costs.
Appeal struck out.
JOHN INYANG OKORO, J.S.C.: I read before now, the draft of the lead judgment just delivered by my learned brother, Ejembi Eko, JSC and I am in agreement with his conclusion that the Appellant’s failure to seek and obtain leave as a pre-condition before filing his Notice of Appeal having grounds of facts and mixed law and facts has rendered the appeal incompetent. I shall however make a few comments in support of the judgment.
This Court has observed in a plethora of authorities that arbitration proceedings are sui generis which Courts should accord special attention different from what is obtainable in regular civil matters.
See Ras pal Gazi Construction Co. Ltd. v. F. C. D.A. (2001) 10 N WLR (pt. 722) 559; Commerce Assurance Ltd v. Alli (1992) 3 NWLR (pt. 232) 710.
In the instant appeal, the whole essence of the Appellant’s application at the trial Court was to enforce the arbitral award. Having realized that the prayers in the first application in suit No. FC7/HC/CV/809/2000 were not properly couched, the Appellant filled another application seeking leave to enforce the arbitral award. I am of the view that the second application was proper and had nothing to do with the earlier application struck out by MUKTAR J. It ought to have been countenanced by the trial Court, Coram H. Baba J. In any event, considering the sui generis nature of arbitral proceedings, the award should have been enforced by the Court irrespective of the mistake of Counsel as long as there was no vitiating factor in the award.
This brings to mind the observation of my learned brother, Kekere-Ekun, JSC in the case of NITEL Ltd v. Okeke (2017) 9 NWLR (pt. 1571) 439 at 473 when his Lordship stated as follows:
“An arbitral award is regarded as a final and conclusive judgment on all matters referred and the Courts are enjoined, as far as possible to uphold and enforce arbitral awards, having regard to the fact that it is a mode of dispute resolution voluntarily agreed upon by the parties,”
I hold the view that if the trial Court had enforced the award as prayed, the Appellant would have been spared the trouble of having his appeal struck out for having incompetent grounds.
On the whole, this appeal is incompetent and is accordingly struck out by me.
Appeal struck out.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I have had a preview of the judgment just delivered, by my learned brother, the Hon. Justice Ejembi Eko, JSC. I agree with the reasoning postulated therein, to the conclusive effect that the instant appeal is incompetent, thus ought to summarily be struck out in limine.
The notice of appeal upon which the instant appeal is predicated is contained at pages 105-109 of the Record of Appeal; It is predicated upon a total of four grounds, thereby, urging upon this Court for the following reliefs:
(a) Allowing the appeal.
(b) An order setting aside the judgment of the Court of Appeal, Abuja Division (including the order as as to costs) without jurisdiction delivered on Thursday, 29th November, 2007 and substituting therefore an order allowing the appeal in its entity.
Ironically, however, a critical albeit dispassionate appraisal of each of the four grounds of the Notice of Appeal would reveal, that they have raised either issues of facts and/or mixed law and facts. Thus, having been filed without seeking and obtaining the necessary leave of the Court below or this Court, the grounds in question are deemed to be incompetent by virtue of the provisions of Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended:
S. 233.
(3) Subject to the provisions of Section (2) of this Section, and appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of Court of Appeal or the Supreme Court.
Most instructively, appeals to the Supreme Court by leave (that is to say with permission), relate to matters of facts or mixed law and facts. And for which leave of the Court below or this Court is imperative, as a matter of condition precedent. See NALSA TEAM ASSOCIATES V. NNPC (1991) 10 —12 SC 83; (1991) 8 NWLR (Pt. 212) 652 SC.
Undoubtedly, this Court owes an onerous responsibility to ensure that the grounds upon which a notice of appeal is anchored fall within the competence thereof. As aptly once reiterated by this Court in YARO VS. AREWA CONSTRUCTION LTD:
“In this regard therefore, a ground of appeal is not let off the hook simply because it is tagged an error of law. This Court must be satisfied it is, so the consequence for not seeking leave where a ground of appeal is of mixed law and facts (as in the instant case) is fatal to the ground. However, one ground of appeal in a Notice of Appeal, I must observe is capable of sustaining an appeal but not otherwise in which case the Notice of Appeal as well as the grounds of appeal is incompetent and liable to be struck out”.
See YARO V AREWA CONSTRUCTION LIMITED & ORS (2007) 6 SC (Pt. 11) 149; (2007) 17 NWLR (Pt. 1063) 333; (2007) LPLER 3516—(SC) Per Chukwuma Eneh, JSC @ 22 paragraphs B – F.
In the circumstances, I whole heartedly agree with my learned brother, Eko, JSC, that on the basis of the Respondent learned counsel’s preliminary objection alone, the instant appeal ought to be struck out for being grossly incompetent.
Hence, against the backdrop of the foregoing postulation and overwhelming reasoning and conclusion reached in the lead judgment, I too hereby strike out the appeal for being incompetent and a sheer abuse of process of this Court. I abide by the order regarding the costs of N1,000,000.00 (One Million Naira) awarded in favour of the Respondent, against the Appellant.
ADAMU DAURO, J.S.C.: I read in draft, the lead judgment of my learned brother, Ejembi Eko, JSC just delivered. I am in agreement with the reasoning and the conclusion contained therein.
The Respondent’s counsel raised a preliminary objection in the Respondent’s brief of argument and argued same at pages 3—6 of the said brief. The crux of the preliminary objection is that all the grounds of appeal are incompetent because they raised issues of facts alone or of mixed law and facts. Having taken a look at the vexed grounds of appeal, it is glaringly obvious that they raised either issues of facts or of mixed law and facts. By virtue of Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), such grounds of appeal cannot be raised as of right, but with leave of either this Court or the Court below. The requisite leave having not been sought by the Appellant, the grounds of appeal and by extension, the entirety of the appeal is incompetent and liable to be struck out.
In conclusion, the appeal is hereby struck out for being incompetent. I abide by the order as to costs made in the lead judgment.
Appearances:
Absent. For Appellant(s)
Akin Adewale, Esq. with Abdulmuninin Umar, For Respondent(s)
