OAU v. INAOLAJI BUILDERS LTD (2021)

OAU v. INAOLAJI BUILDERS LTD

(2021)LCN/15528(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Thursday, May 27, 2021

CA/AK/28/2016

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

OBAFEMI AWOLOWO UNIVERSITY APPELANT(S)

And

INAOLAJI BUILDERS LTD RESPONDENT(S)

 

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Osun State High Court delivered on the 26th of February, 2014, in suit no. HIF/M30/2013.

FACTS OF THE CASE.
The suit in respect of this appeal was instituted initially vide an originating summons dated 28th December, 2011, at the Federal High Court Oshogbo by the Respondent. The action was subsequently transferred to the High Court of Osun State Ile-Ife Judicial Division, as suit no. HIF/M30/2013 – INAOLAJI BUILDERS LTD V. OBAFEMI AWOLOWO UNIVERSITY. The Respondent as claimant sought inter alia the following from the Court below:
“Appointing an arbitrator to settle the dispute between the plaintiff and the defendant as contained in the clause of the Bill of Articles of Agreement executed by parties and dated 26th April, 1982.”

The Appellant as defendant opposed the application by filing a counter-affidavit on 7th of January, 2014, with a written address filed on the 15th of January, 2014.

The Court below granted all the reliefs sought by the Respondent, including an order appointing an arbitrator to settle the dispute between the Respondent and the Appellant.

The Appellant is dissatisfied with the judgment of the Court below and is desirous of appealing same. Consequent upon which he filed a notice of appeal on the 12th of May, 2014 – pages 198-203 of the record of appeal.

The Appellant filed his brief of argument on the 27th of April, 2017 but deemed filed on the 24th of October, 2017. It is settled by Aanu Ogunwo Esq.

The Respondent’s brief of argument was filed on the 30th of May, 2018, but same was deemed filed on the 16th of January, 2019. It is settled by Oluwasina Ogungbade Esq.

The Appellant filed his reply brief on the 24th of May, 2019, but same was deemed filed on the 23rd of February, 2021.

The three (3) issues for determination formulated by the Appellant are as follows:-
1) WHETHER THE LOWER COURT HAS THE JURISDICTION TO ENTERTAIN THE RESPONDENT’S ORIGINATING SUMMONS IN THE CIRCUMSTANCES OF THIS CASE?
2) WHETHER THE CAUSE OF ACTION IN THIS SUIT AROSE ON THE 27TH OF JULY 2011 OR ON THE 2ND OCTOBER, 2011.
3) WHETHER BARRISTER LOWO AROWOLO OBISESAN, THE COUNSEL TO THE RESPONDENT, OUGHT TO BE APPOINTED AS THE SOLE ARBITRATOR TO DETERMINE THE DISPUTE BETWEEN THE PARTIES.

The Respondent on his part distilled two (2) issues for determination from the grounds of appeal. They are:
1) WHETHER THE RESPONDENT SUIT WAS STATUTE BARRED OR HOW SO EVER CAUGHT BY THE PROVISIONS OF THE PUBLIC OFFICER’S PROTECTION ACT.
2) WHETHER THE LEARNED TRIAL JUDGE APPOINTED CHIEF LOWO OBISESAN AS SOLE ARBITRATOR IN THE DISPUTE BETWEEN THE PARTIES.

The parties adopted their respective briefs of argument on the 23rd of February, 2021.

A cursory look at the issues for determination proffered by both parties show that the issue of statute bar sticks out as a sole thumb.

In arguing his issues, the Appellant had argued issues 1 and 2 together, submitting that the Court below lacks the jurisdiction to entertain and determine the Respondent’s originating summons. This is because by virtue of the provisions of Section 2 (a) of the Public Officer’s Protection Act, which applies to this case, to the Appellant, no action, prosecution or proceedings shall be instituted against the Appellant unless it is commenced within 3 months next after the cause of action arose.

Submits that the Court below failed to give proper effect to the provisions of Section 2 (a) of the Public Officer’s Protection Act.

That a cause of action is said to have accrued on a date or from the time when a breach of any duty or act occurs, which entitles the Plaintiff to take a Court action in assertion or protection of his legal right that has been breached.

Submits that upon a careful perusal of the affidavit of the Respondent in support of the originating summons, same reveals that the Respondent alleged that the termination of the contract for which he had approached the lower Court for appointment of sole arbitrator occurred on the 27th of July, 2011.

That the date of the cause of action is 27th July, 2011 and not 2nd of October, 2011 as held by the Court below.

That when the Court below held that the cause of action accrued on the 2nd of October, 2011, it was in error. That when the Court below held that the cause of action had not accrued on the 27th of July, 2011 because communication followed, it was in error.

That the law is trite that attempt to settle dispute (i.e. communication between the parties) does not prevent time from running for the purpose of computing limitation period as provided for under Section 2 (a) of the Public Officer’s Protection Act, citing – EBOIGBE V. NNPC (1994) NWLR (PT. 347) 649.

Urges Court to strike out this suit as it is statute barred, citing -HASSAN V. ALIYU (2010) 17 NWLR (PT. 1223) 547.

On issue no. 3, learned counsel submits that Barrister Lowo Arowolo Obisesan should not have been appointed as the sole arbitrator to determine the dispute between the parties. This is because Barrister Lowo Arowolo Obisesan was not “independent” in the dispute because he had written to the Appellant on behalf of the Respondent with regard to the particular dispute. Refers to letter dated 12th August, 2011. It shows that Barrister Obisesan was under the control of the Respondent, he submits.

The Appellant further submits that Barrister Lowo Obisesan is not unbiased, neither is he disinterested in the dispute between the parties.

On the issue of statute bar, the Respondent submits that the Public Officer’s Protection Act does not apply to contracts or contractual obligations. Urges Court to discountenance that argument. He submits that the suit at the trial Court which resulted in this appeal was an action founded on breach of contract.

That as the provisions of the Public Officer’s Protection Act does not apply to contract, the suit of the Respondent was not statute barred.

I shall deal with the issue of statute bar first in resolving the issues of the Appellant as it goes to Jurisdiction.

The law is elementary, that the provisions of the Public Officer’s Protection Act is inapplicable to simple contracts. See FGN V. ZEBRA ENERGY LTD. (2002) 18 NWLR (PT. 798); NPA V. CONSTRUCTION GENERALI FARSURACOGEFOR SPA & ANOR (1974) All NLR (PT. 2) 945; OSUN STATE GOVERNMENT V. DALAMI NIGERIA LTD (2007) LPELR-2817 (SC); WEMA SECURITIES & FINANCES PLC V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2015) LPELR 24833 (SC); NERC & ANOR V. GLOSUN INVESTMENT LTD. (2017) LPELR-42337 (CA); PCHS CO. LTD. & ORS V. MIGFO  NIG LTD. (2012) LPELR-9725 (SC).

It is apparent that the Bill of Quantities is the contract agreement between the Appellant (Obafemi Awolowo University) which is an agency of the Federal Government and a private company (the Respondent).

The relationship between the two, in spite of the fact that the Appellant is a public officer is that which pertains to a simple contract, which is outside the ambit of the Public Officer’s Protection Act. Suits in respect of “simple contracts” would suffer effluxion of time when they are not instituted within a period of six (6) years from the date of the breach.

The parties are agreed that there was indeed a contractual relationship between them. This is gleaned from the facts deposed to in their respective affidavit.

In a letter dated 12th of August, 2011, one Barrister Lowo Arowolo Obisesan of Black and White Law firm, as counsel to the Respondent had written heading the letter:
RE-TERMINATION OF CONTRACT FOR THE CONSTRUCTION OF ESTATE MANAGEMENT BUILDING ON THE UNIVERSITY CAMPUS AT ILE-IFE: NOTICE OF INTENTION TO INSTITUTE LEGAL ACTION AGAINST THE UNIVERSITY.

The letter is a tacit admission that the contract between the parties had been breached.

Paragraph 16 of the affidavit in support of the originating summons is apt. I deem it pertinent to reproduce same:
“That shockingly, rather than the defendant giving positive consideration to the request of the Plaintiff, it went on to make attempt to re-award the contract during the pendency of the contract with the Plaintiff. The Defendant urgently wrote a letter dated 27th of July, 2011 informing the Plaintiff that the contract had been terminated. The copy of the letter is attached as Exhibit “C”. Page 6 of the record of appeal.

The Defendant (now Appellant) did not specifically deny this paragraph 16 of the Plaintiff’s (now Respondent) affidavit. What he did was a general traverse in their paragraph 4.

It will be correct to say that the cause of action arose on the 27th of July, 2011. The suit by way of originating summons was instituted on the 28th of December, 2011 (a period of five months). The Respondent had a period of six (6) years to institute his action. He was definitely not out of time.

The argument of the Appellant is therefore misconceived and same is hereby discountenanced. I hold that the Respondent (as claimant in the Court below) instituted his action within time as required by law. When the Court below held that the cause of action had not accrued on 27th of July, 2011 because communication followed, that was a misconception.

Decidedly, where parties are in the process of attempting settlements to their disputes which are subjudice, this communication between them does not prevent time from running for purpose of computing time. But as earlier observed, the subject matter of the action, is that of SIMPLE CONTRACT, which is not within the purview of the provisions of Section 2 (a) of the Public Officer’s Protection Act. This issue is resolved in favour of the Respondent and against the Appellant.

Section 7 of the Arbitration and Conciliation Act Cap A18 LFN 2004 deals with the issue of appointment of an Arbitrator.
7. Appointment of arbitrators
(1) Subject to Sub-sections (3) and (4) of this Section, the parties may specify in the arbitration agreement the procedure to be followed in appointing an arbitrator.
(2) Where no procedure is specified under Subsection (1) of this Section –
(a) in the case of an arbitration with three arbitrators, each party shall appoint one arbitrator and the two thus appointed shall appoint the third, so however, that-
(i) if a party fails to appoint the arbitrator within thirty days of receipt of a request to do so by the other party; or
(ii) if the two arbitrators fail to agree on the third arbitrator within thirty days of their appointments, the appointment shall be made by the Court on the application of any party to the arbitration agreement;
(b) in the case of an arbitration with one arbitrator, where the parties fail to agree on the arbitrator, the appointment shall be made by the Court on the application of any party to the arbitration agreement made within thirty days of such disagreement.
(3) Where, under an appointment procedure agreed upon by the parties –
(a) a party fails to act as required under the procedure; or
(b) the parties or two arbitrators are unable to reach agreement as required under the procedure; or
(c) a third party, including an institution, fails to perform any duty imposed on it under the procedure, any party may request the Court to take the necessary measure, unless the appointment procedure agreed upon by the parties provides other means for securing the appointment.
(4) A decision of the Court under Sub-sections (2) and (3) of this Section shall not be subject to appeal.”
Section 7(4) of the Act is instructive. I hereby reproduce same verbatim.
“A decision of the Court under Subsections (2) and (3) of this Section shall not be subject to appeal.”

Ground 7 of the appeal which complains about the appointment of the arbitrator and the issue formulated therefrom is hereby discountenanced and same is hereby struck out accordingly.

In all, all the issues are resolved against the Appellant and in favour of the Respondent.

The totality is that the appeal lacks merit and same is hereby dismissed.
₦200,000.00 costs in favour of the Respondent.

HAMMA AKAWU BARKA, J.C.A.: I have had the opportunity of reading in draft before now, the judgment just delivered by my learned brother, Rita Nosakhare Pemu JCA.

I agree with the reasoning and conclusion reached therein by my learned brother, and thereby joins my Lord in dismissing the appeal. In the event, the judgment of the High Court of Osun State in suit no: HIF/M30/2013 is hereby affirmed. I also endorse all orders made in the lead judgment including that as to costs.

JAMES GAMBO ABUNDAGA, J.C.A.: I have been availed a draft of the judgment delivered by my learned brother, Rita Nosakhare Pemu, JCA. I adopt the reasoning and conclusion arrived thereat that the appeal lacks merit.

Therefore, I too dismiss it. I abide by his Lordship’s order as to costs.

Appearances:

Kola Awodein, SAN, FCIArb,FCTI
Aanu Ogunro Esq.,
Kemi Adebayo (Mrs.)
Uche Ozoagbo, Esq.,
Isioma Elumelu (Miss)For Appellant(s)

Oluwasina Ogungbade, Esq.
Onaopemipo Owotumi, Esq., ACIArb. For Respondent(s)