THE VESSEL MV NAVAL GENT & ORS v. ASSOCIATED COMMODITY INTERNATIONAL LIMITED
(2015)LCN/8037(CA)
In The Court of Appeal of Nigeria
On Friday, the 27th day of November, 2015
CA/L/392/2008
RATIO
ARBITRATION: WHETHER ARBITRATION CLAUSE IN ANY CONTRACT AGREEMENT IS SEPARATE FROM THE MAIN AGREEMENT AND WHETHER THE COURT MUST OF NECESSITY ALLOW ARBITRATION PROCESS TO BE EXHAUSTED FIRST BEFORE IT CAN KNOW WHETHER TO GO INTO THE MATTER OR HANDS OFF
It is settled that arbitration clause in any contract agreement is separate from the main agreement, see the case of STATOIL (NIGERIA) LTD & ANOR V FIRS & ANOR (2014) LPELR-23144 (CA), NNPC V CLIFCO NIG. LTD. (2011) LPELR – 2022 (SC). It is also trite that the Court must of necessity allow arbitration process to be exhausted first before it can know whether to go into the matter or hands off. In this case, arbitration was concluded with the handing down of a final award, see page 206 – 223 of the record. The said copy of the award was exhibited along other relevant documents in the application to recognize and enforce the award which the trial Court granted. Yet, the trial Court in its ruling held thus:
“Since the plaintiffs claim before the Arbitrator was dismissed not on the merit, but because of the failure of the plaintiff to provide security for costs, I hold that it would be unfair and unjust to shut the door of this Court against the Plaintiff. per. YARGATA BYENCHIT NIMPAR, J.C.A.
ARBITRATION: ARBITRAL AWARD; THE BINDINGNESS OF AN ARBITRAL AWARD
The law is settled on the bindingness of an award. The Supreme Court in the case of OKECHUKWU V ETUKOKWU (1998) 8 NWLR (Pt. 562) 513 at 529 – 530 stated as follows:
“Section 31(1) of the Arbitration and Conciliation Act, Cap 19, Laws of the Federation of Nigeria, 1990 provides:-
An Arbitral award shall be recognized as binding and subject to this Section and Section 32 of this Act, shall, upon application in writing to the Court, be enforced by the Court.’
In law an Arbitral award per se lack enforcement or enforceability. It does not carry any element of sanction until a Court of law, by its judicial powers, breathe enforcement or sanction on it. At the completion of the Arbitration, the award is a toothless dog which cannot bite until a Court of law gives it teeth.” At the end of the day, it is the order recognizing the award that gives it the force of a judgment which can be enforced and thereby operating as estoppel per rem judicata. The order registering the award for enforcement in Nigeria was made on the 14th March, 2005, see page 226 of the record of Appeal. A party shall not be allowed to resile from that voluntary submission to arbitration. The submission is irrevocable except with leave of Court. It was infact the Respondent that was claimant at the Arbitration process. per. YARGATA BYENCHIT NIMPAR, J.C.A.
COURT: JURISDICTION; THE JURISDICTION OF THE TRIAL COURT TO SIFT OUT ISSUES FROM THE REFERENCE MADE TO THE ARBITRATOR AND WHICH WERE DISMISSED FOR FRESH HEARING
It is pertinent to point out that after the award was handed down and registered the subject before the trial Court became extinguished. By recognizing and ordering enforcement of the award, the award was translated into the judgment of the Federal High Court. The same Court cannot therefore go revisiting the issues for which judgment has been entered. Its jurisdiction has been spent. Besides, the claim of the Respondent before the trial Court has the same subject matter covered by the award and it is between the same parties. The trial Court no longer has a live issue that can be determined. An international award once registered enjoys the same level of prominence as a judgment of the trial Court, see Section 51 (1) of the Arbitration and Conciliation Act and the following cases: OGBUNEKE SONS AND COMPANY LIMITED V ED & F MAN NIGERIA LIMITED & ORS (2010) LPELR – 4688(CA), ADWORK LTD. V NIGERIA AIRWAYS LTD. (2000) 2 NWLR (Pt.645) PG.415.
The trial Court cannot sift out issues from the reference made to the Arbitrator and which were dismissed for hearing afresh. That is contrary to known law and procedure. The trial Court lacks jurisdiction to do anything until the said order of dismissal has been set aside. My opinion is that because the final award made other orders in addition to the order of dismissal, the Respondent cannot be heard in continuation of the earlier claim with those other orders still in place. per. YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
1. THE VESSEL MV NAVAL GENT
2. THE MASTER MV NAVAL GENT
3. THE OWNERS OF THE MV NAVAL GENT
4. THE CHARTERERS OF THE MV NAVAL GENT Appellant(s)
AND
ASSOCIATED COMMODITY INTERNATIONAL LIMITED Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court sitting in Lagos and delivered by HON. JUSTICE ABDULLAHI MUSTAPHA on the 21st June, 2006 wherein the Court set down suit No:FHC/L/CS/731/2000 for hearing.
Dissatisfied with the said ruling, the Appellant filed a Notice of Appeal dated 22nd June 2006 setting out a single ground of appeal.
Brief facts of the case are that the Respondent commenced an action against the appellants via a writ of summons supported by a statement of claim claiming as follows:
a. The sum of USD$410,000.00 (Four Hundred and Ten Thousand United States dollars) representing the cost of caked cargo with an interest on the said sum of USD$410,000.00 (Four hundred and ten thousand United States Dollars) from 10th July, 2000 until judgment is given.
b. The sum of USD$90,000.00 (Ninety thousand United States Dollars) as general damages
c. The Plaintiff also claims the legal cost of this suit.
The transaction was covered by three bills of lading issued in Bangkok, Thailand. The said bill of lading incorporated a charter party of which
Clause 44 provided for Arbitration in London. Pursuant to the Arbitration clause, the Respondent referred their dispute to arbitration.
Meanwhile the Federal High Court stayed proceedings pending the outcome of the arbitration. Final award was handed down on the 4th February, 2004 after which the Appellants applied for the registration and enforcement of the award and it was registered as a judgment of the Federal High Court. The Respondent thereafter filed an application dated 22nd November, 2004 at the same Court for the suit which was stayed earlier, to be set down for trial and the application was granted by the Federal High Court. It is against the said ruling that the Appellants are challenging the jurisdiction of the Court to entertain the claims in view of the arbitral award which has been registered for enforcement.
Parties filed and exchanged their briefs, the Appellants’ brief dated 2nd December, 2010 was filed on the 3rd December, 2010 and a reply brief dated 18th May, 2015 and filed same day. The Respondent filed its brief on the 2nd December, 2010 but deemed on the 16th April, 2015. The Appellants distilled the following issue for
determination in this appeal, it states thus:
“Whether the Federal High Court retains any jurisdiction to entertain the Respondents claims in Suit No/FHC/L/CS/731/2000 in view of the unchallenged London final arbitration award on the same claims?”
The Respondent on its part raised a preliminary objection and in the alternative adopted the sole issue formulated for determination by the Appellants. Before making any progress in this appeal, the Court must determine the preliminary objection.
The Respondent submitted in its preliminary objection that any person signing a Court process must state his name and designation to show that he is a legal practitioner whose name is ascertainable on the roll of registered practitioners. That the Appellants’ Notice of Appeal dated 22nd August, 2006 was signed on behalf of OLUFUNKE AGBOR (MRS) by an unnamed person or legal practitioner rendering the Notice of Appeal incompetent, relied on Section 2 (1) and 24 of the Legal Practitioners Act.
Arguing further, the Respondent submitted that the signature of an unnamed legal practitioner is not known to law and relied on MR. SAMIR SULAIMON V SWORN SWEET &
CONFECTIONERY (NIG) LTD & 2 ORS (2010) 4 WRN 85 99 which held that a signature and name are different and not the same. The Respondent also submitted that a notice of appeal is an originating process which activates the jurisdiction of the Court referred to OKAFOR & ORS v NWEKE & ORS (2007) 3 S.C. (Pt.11) 55 at 64 and therefore, the non-disclosure of the identity of the person who signed the Notice of Appeal is not a mere irregularity but a fundamental error which makes the Notice of Appeal defective and liable to be struck out. It further relied on the following:
a. Unreported judgment in PEAK MERCHANT LTD V NIGERIA DEPOSIT INSURANCE CORPORATION OF 14th May, 2010.
b. Appeal No. CA/L/766/2008 ONWARD ENTERPRISES LTD V OLAM INTERNATIONAL LTD. & 2 ORS OF 26th June, 2010,
c. ALH MOHAMMED MOHAMMED v. MARTINS ELECTRONICS COMPANY LTD (2010) 2 NWLR (PT.1179) 473
The Respondent urged the Court to strike out the Notice of Appeal for being defective pursuant to Order 6 Rule 6 of the Court of Appeal Rules 2007.
In reaction, the Appellants in their reply on points of law argued that the objection is misplaced because the Notice of
Appeal was duly signed by a legal practitioner and the name appears therein. Appellants’ counsel distinguished the cases cited by the Respondent by observing that in all of those cases, the processes were signed by xxx & co which is different from what obtains here and contended that 3 things stand out from the objection and these are:
1. That the notice of appeal was actually signed.
2. That the notice of appeal bears the name of a legal practitioner.
3. That the notice was signed by a legal practitioner.
Appellants’ counsel submitted that with the three features identified above, the objection lost its steam and should be dismissed. He submitted that in all the cases relied on by the Respondent, the name of a legal practitioner was not stated on the Notice of Appeal but the Notices of Appeal were signed in the names of law firms. Learned counsel submitted that there is no clear provision in the Rules regulating the signing of Notice of Appeal but the Courts have relied on Section 2 and 24 of the Legal Practitioners Act which have been held as meant to ensure accountability and responsibility as decided in the case of FBN PLC v
MAIWADA (2013) 5 NWLR (Pt.1348) 444 at 483. That in the instant case, a legal practitioner signed and the name appeared on the process and relied on AREMU v. SHINABA (2014) 8 NWLR (Pt.1408) 63 at 73; and on signature, appellants referred to the case of ADEFARASIN v DAYEKH (2007) ALL FWLR (Pt. 348) 911 at 930 where the Court held a signature could be a name, mark or any contraption. That on the Notice of Appeal, there is a name and a mark therefore the Notice is competent and the argument that it was signed by an unnamed person is a fact that requires proof which is lacking here as the competence of an appeal can only be determined on the basis of the Record of Appeal, citing AJOSE v. STATE (2002) 7 NWLR (Pt.766) 302. Counsel further submitted that the objection raised by the Respondent is not supported by the Record of Appeal and as such the objection must fail.
Furthermore, Appellants’ counsel contended that when an objection is on facts, a supporting affidavit is required, relied on AMAH v NWANKWO (2007) 12 NWLR (Pt.1049) 552 at 578. Counsel further argued that submissions of counsel cannot take the place of evidence required as decided in IBIKUNLE v
STATE (2007) 2 NWLR (Pt.1019) 546. Appellants’ counsel finally urged the Court to dismiss the objection for lacking in merit.
?The objection is simply based on the contention that the signature on the Notice of Appeal is not that of a named legal practitioner and that it was signed on behalf of the named counsel. It is now settled that only Legal Practitioners whose names are on the roll can sign processes. Specifically, Sections 2 and 24 of the Legal Practitioners Act provide thus:
“Section 2(1) –
Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if his name is on the roll.
Section 24 –
“Legal Practitioner” means a person entitled in accordance with the provision of this Act to practice as a barrister and solicitor, either general or for the purpose of any particular office or proceedings.”
The position in this case is different from what obtained in the cases of OKAFOR v. NWEKE (SUPRA); SAMIR v SWORN SWEET & CONFECTIONARY (SUPRA) and MOHAMMED V M. E. LTD (SUPRA) in that here there is a mark on top of the name of Funke Agbor (Mrs), the only name written on the
Notice of Appeal. This too is different from the situation where a signature appears on top of several names without any indication as to who amongst those listed as counsel signed the Notice of Appeal. The Respondent did not contend that the name Funke Agbor is not on the Legal Practitioners roll, the contention is that it was signed on her behalf by an unnamed person who is not a Legal Practitioner. I agree with the Appellants that it is only from the Record of Appeal that the truth to this assertion can be gleaned. The information as to who signed the Notice of Appeal cannot come from counsel through a written address or outside the Record of Appeal. Looking at the Notice of appeal at pages 365 to 366 of the record, it reveals a mark or should I say a contraption above the name of Funke Agbor (Mrs). The mark has two readable like letters of the alphabet and other aspects of it which are not discernable.
?The question is whether the mark is Funke Agbor’s signature? To determine that would require evidence. To also assert that it belongs to another person would require evidence and none is available here. Going by the definition of the word signature as
highlighted in the case of DR. BOLAJI AKINSANYA V FEDERAL MORTGAGE FINANCE LIMITED (2010) LPELR – 3687 (CA) which states thus:
“A person’s name or mark written by the person or at the person’s direction. Any name, mark or writing used with the intention of authenticating a document.”
The Court went further to say that the importance of stating the name of the signatory cannot be over emphasized. Signature is only identifiable by the name of the signatory. It is in this light that Court processes must be signed by a named legal practitioner to authenticate such processes.
Here, the named Funke Agbor is not disputing the mark or contraption above her name as her signature and therefore the burden rests on the Respondent who asserts that the mark does not belong to her to prove the assertion and that is the position of the law, see Section 136 of the Evidence Act, 2011 and the case of OSEMWENHKA v. PETER OSEMWENKHA (2012) LPELR – 9580 wherein this Court per SHOREMI, JCA held as follows:
“The parties to the dispute themselves ought first to have called evidence to show that a person signed the signature in dispute. The Court cannot without
such evidence volunteer to find evidence for one of the parties as to who signed the disputed signature.”
See also CHROME AIR SERVICES LTD & ORS V FIDELITY BANK (2014) LPELR – 24099 (CA) where the court held as follows:
“The onus to disprove the signatures disputed in Exhibits O and Q clearly rested on the appellants who disputed same; they did not succeed in discharging this onus. The appellants cannot just throw it at the Court at the address stage.”
The address of counsel cannot take the place of such evidence, see the finding of the Court as held by IKYEGH, JCA in AREMU v. SHINABA (SUPRA) and furthermore, KEKERE-EKUN, JCA (as she then was) in ADEFARASIN v. DAYEKH (SUPRA) that a person’s signature must not only be his written names but ‘ANY MARK’ which identifies it as the act of a party on a document thereby authenticating the document. Is there a particular form of signature? The answer is NO. Furthermore, this Court cannot begin to speculate as to whether the mark on the Notice of Appeal is Mrs Funke Agbor’s signature or not. The Respondent has not presented before the Court anything to show otherwise. The purported actual signature of
Mrs. Funke Agbor was not shown to contrast with what is on the Notice of Appeal.
It is my firm view that the burden of proof has not been discharged as counsel address cannot take the place of such evidence. The Notice of Appeal bears a signature above the name of Funke Agbor and Funke Agbor is a Legal Practitioner. The Respondent failed to prove that the signature on the Notice of Appeal is not that of a named Legal Practitioner.
The objection is therefore baseless and is hereby dismissed for lacking in merit.
ISSUE FOR DETERMINATION
“Whether the Federal High Court retains any jurisdiction to entertain the Respondents claims in Suit No/FHC/L/CS/731/2000 in view of the unchallenged London final arbitration award on the same claims?”
Appellants submitted that since the Respondent has not challenged the London Arbitral award which has been filed and registered for enforcement at the Federal High Court, then the award acquired the status of a judgment of the Court on the claims of the Respondent pursuant to Section 32, 51 (1) of the Arbitration and Conciliation Act, Order 20 Rule 14 of the Federal High Court (Civil Procedure) Rules
2000.
They also relied on the cases of AG ABIA STATE & ORS v AG FEDERATION (2002) 6 NWLR (PT. 763) 264, TEXACO PANANMA INCORPORATION v. SPDC NIG LTD (2002) 5 NWLR (PT.579) 209, RAZ PAL GAZI CONSTRUCTION COMPANY LTD V FEDERAL CAPITAL DEVELOPMENT AUTHORITY (2001) 10 NWLR (PT.722) 559. Appellants further submitted that the London arbitration award now has the same status as a judgment not appealed against and that the Federal High Court therefore no longer has jurisdiction to adjudicate on the claims of the Respondent.
?On the other hand, the Respondent contends that the Appellants did not file the award in Court nor request the Court to enforce the award in compliance with S.51 (1) of the Arbitration and Conciliation Act as there was no application in Court for the enforcement of the arbitral award, OFOMATA V. ANOKA (1974) 4 ECSLR 251. They further contended that the arbitral award must be pronounced upon by a Court of competent jurisdiction before it can attract judicial recognition of being a final judgment of the Court, OKEY JIM NWAGBARA v. JADCOM LIMITED (2008) 2 CLRN 50. Respondent also submitted that the application at the
Federal High Court to set the matter down for trial is tantamount to an application to set aside the award in compliance with Order 20 Rule 14 of the Federal High Court (Civil Procedure) Rules 2000. Respondent submitted that the arbitral award was not made on the merit but granted in default of the Respondent’s failure to comply with the Arbitrator’s final and peremptory order as to security for costs, CHIEF EMMANUEL BELLO V INEC (2010) 8 NWLR (Pt.1196) 342, CHIEF JOHN OYEGUN V CHIEF FRANCIS ARTHUR NZERIBE (2010) 7 NWLR (Pt.1194) 577.
In their reply brief, the Appellants submitted that the London arbitration award has since been made a judgment of the Court based on the application of the Appellants vide their originating motion brought ex-parte dated and filed 13th January, 2005 entered by the Court on the 14th of March, 2005. That the Respondent’s application setting down the suit for trial cannot amount to a challenge of the arbitral award based on the provisions of Order 20 Rule 14 of the Federal High Court (Civil Procedure) Rules 2000 and the Arbitration and Conciliation Act. Appellants also submitted that none of the cases relied on by the
Respondents apply to the facts of this case and that if the Respondent is not satisfied with the arbitral award for not being an award given on the merit, the only option open to it is to properly challenge the award. The Appellants therefore urged the Court to set aside the decision of the Lower Court.
RESOLUTION
It is settled that arbitration clause in any contract agreement is separate from the main agreement, see the case of STATOIL (NIGERIA) LTD & ANOR V FIRS & ANOR (2014) LPELR-23144 (CA), NNPC V CLIFCO NIG. LTD. (2011) LPELR – 2022 (SC).
It is also trite that the Court must of necessity allow arbitration process to be exhausted first before it can know whether to go into the matter or hands off. In this case, arbitration was concluded with the handing down of a final award, see page 206 – 223 of the record. The said copy of the award was exhibited along other relevant documents in the application to recognize and enforce the award which the trial Court granted. Yet, the trial Court in its ruling held thus:
“Since the plaintiffs claim before the Arbitrator was dismissed not on the merit, but because of the failure of the plaintiff to
provide security for costs, I hold that it would be unfair and unjust to shut the door of this Court against the Plaintiff. The motion therefore succeeds and it is hereby granted and ordered as follows:
1. The suit is set down for hearing and determination.
2. That the suit is adjourned to the 27th September, 2005 for trial.”
It is important to note that the final award was made pursuant to Section 41(6) of the English Arbitration Act 1996 which states thus:
“If a claimant fails to comply with a peremptory order of the tribunal to provide security for cost, the tribunal may make an award dismissing his claim.”
The seat of the Arbitration was London and applicable law is the English law. The award was tagged final award. The recognition or enforcement of awards can arise in either a domestic or international legal con. Hence, the International award was duly registered for enforcement before the Respondent’s application that the suit which was stayed to allow for arbitration be now set down for hearing. The Appellants’ application for registration and enforcement of the final award is at page 188 – 195 of the record of appeal. It
was made pursuant to Section 51 of the Arbitration and Judgment Enforcement (Reciprocal Enforcement) Acts. The award handed down was not challenged before registration nor during the process of registration as allowed by law. The law is trite concerning when an award should be challenged and the grounds of such challenge. See Section 29(1) of the Act which provides thus:
“(1) A party who is aggrieved by an arbitral award may within 3 months:-
a. From the date of the award; or
b. In a case falling within Section 28 of this Act, request the Court to set aside the award in accordance with Subsection (2) of this Section.
(2) the Court may set aside an arbitral award if the party making the application furnishes proof that the award contains decisions on matters which are beyond the scope of the submission to arbitration so however that if the decisions on matters submitted for arbitration can be separated from those not submitted, only that part of the award which contains decisions on matters not submitted may be set aside.
(3) the Court before which an application is brought under the Subsection (1) of this Section may, at the request of
a party where appropriate, suspend proceedings for such period as it may determine to afford the arbitral tribunal an opportunity to resume the arbitral proceedings or take such other action to eliminate the grounds for setting aside of the award.”
I am of the opinion that the only way an award can be set aside is by way of an application to the Court, this should be the standard no matter the type of award. The Law also stipulates a time limit within which such an action can be commenced to set aside the award, within 3 months, see Subsection one above. Furthermore, an arbitral award can be challenged on the ground that there was no valid arbitration agreement or that the matters submitted before the tribunal does not fall within that agreement, whether for reasons of public policy or otherwise, see Section 48 of the Arbitration and Conciliation Act.
The Respondent did not take any step whether during the arbitration exercise or after to contest the process or the award. Section 32 of the Arbitration and Conciliation Act provides for the right of a party to an award to challenge the recognition and enforcement of the award but there is no such
application on record from the Respondent. The application to challenge the recognition and enforcement of an Arbitral award cannot be the same as an application to set down the initial suit for hearing. This brings to fore the distinctiveness of arbitration. It is a voluntary submission to a neutral party for adjudication; a dispute between two parties who have agreed to consent to the process. Parties had also consented to accept the final award by the arbitrator. The Respondent herein submitted that it is disputing the Arbitration upon which an award was made. The law is settled on the bindingness of an award. The Supreme Court in the case of OKECHUKWU V ETUKOKWU (1998) 8 NWLR (Pt. 562) 513 at 529 – 530 stated as follows:
“Section 31(1) of the Arbitration and Conciliation Act, Cap 19, Laws of the Federation of Nigeria, 1990 provides:-
An Arbitral award shall be recognized as binding and subject to this Section and Section 32 of this Act, shall, upon application in writing to the Court, be enforced by the Court.’
In law an Arbitral award per se lack enforcement or enforceability. It does not carry any element of sanction until a Court of
law, by its judicial powers, breathe enforcement or sanction on it. At the completion of the Arbitration, the award is a toothless dog which cannot bite until a Court of law gives it teeth.”
At the end of the day, it is the order recognizing the award that gives it the force of a judgment which can be enforced and thereby operating as estoppel per rem judicata. The order registering the award for enforcement in Nigeria was made on the 14th March, 2005, see page 226 of the record of Appeal. A party shall not be allowed to resile from that voluntary submission to arbitration. The submission is irrevocable except with leave of Court. It was infact the Respondent that was claimant at the Arbitration process.
The trial judge’s reasoning that the award was not based on merit and therefore the Respondent should be allowed to relitigate the claim is flawed and contrary to law. The question to pose here is whether the Court had the vires to do so? The situation here is likened to a default judgment. In that kind of situation, the judgment debtor cannot go back to Court to ask to be allowed to enter defence without first setting aside the order entering default
judgment. Until that default judgment is taken out of the way, it remains binding and the Court becomes functus officio.
It is pertinent to point out that after the award was handed down and registered the subject before the trial Court became extinguished. By recognizing and ordering enforcement of the award, the award was translated into the judgment of the Federal High Court. The same Court cannot therefore go revisiting the issues for which judgment has been entered. Its jurisdiction has been spent. Besides, the claim of the Respondent before the trial Court has the same subject matter covered by the award and it is between the same parties. The trial Court no longer has a live issue that can be determined. An international award once registered enjoys the same level of prominence as a judgment of the trial Court, see Section 51 (1) of the Arbitration and Conciliation Act and the following cases: OGBUNEKE SONS AND COMPANY LIMITED V ED & F MAN NIGERIA LIMITED & ORS (2010) LPELR – 4688(CA), ADWORK LTD. V NIGERIA AIRWAYS LTD. (2000) 2 NWLR (Pt.645) PG.415.
The trial Court cannot sift out issues from the reference made to the Arbitrator and
which were dismissed for hearing afresh. That is contrary to known law and procedure. The trial Court lacks jurisdiction to do anything until the said order of dismissal has been set aside. My opinion is that because the final award made other orders in addition to the order of dismissal, the Respondent cannot be heard in continuation of the earlier claim with those other orders still in place.
I therefore agree with the Appellant that the trial court lacks the jurisdiction to make the order setting down the suit for hearing. The said order made on the 21st day of June, 2006 by HON. JUSTICE ABDULLAHI MUSTAPHA is hereby set aside and the Respondent’s application to set down the suit for hearing is hereby struck out for want of jurisdiction.
The appeal therefore succeeds.
Cost of N30,000.00 to the Appellants
SIDI DAUDA BAGE, J.C.A.: I read in advance the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA, and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
?For the same reasons articulated in the lead judgment, I too hereby join my learned brother in
holding that, this appeal therefore succeeds, and subscribed to all the consequential orders therein including order as to cost.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read before now, the lead judgment just delivered by my learned brother Y. B. NIMPAR JCA.
The Preliminary Objection as well as the sole issue for determination in the Appeal have been meticulously and exhaustively dealt with and I agree with the reasoning and conclusion reached therein. I have nothing extra to add.
The Appeal has merit and it is accordingly allowed.
I abide by the consequential orders made in the lead judgment including order as to cost.
Appearances
Funke Agbor (Mrs.) with, Olushola AbiloyeFor Appellant
AND
R. Tarfa, SAN with him, O.T Opara,
M. Bamidele, A. Andu (Miss)For Respondent
