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ZAMFARA STATE GOVT & ORS v. CEREMONA CONSTRUCTION CO. (2021)

ZAMFARA STATE GOVT & ORS v. CEREMONA CONSTRUCTION CO.

(2021)LCN/15840(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Thursday, June 17, 2021

CA/S/49/2019

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

  1. ZAMFARA STATE GOVERNMENT 2. MINISTRY OF WORKS AND TRANSPORT ZAMFARA 3. ATTORNEY GENERAL, ZAMFARA STATE APPELANT(S)

And

CEREMONA CONSTRUCTION COMPANY RESPONDENT(S)

 

RATIO:

WHEN PARTIES MAY RESORT TO ARBITRATION

A resort to arbitration should only arise where there is a dispute or differences between the parties to the agreement regarding the execution of the terms of the contact. In the instant case on appeal, was that dispute known and identified by either of the parties, to the agreement? Even at that, are the parties not entitled to be served notices indicating that there has been a dispute in the execution of the terms of agreement; a resort to an Arbitral body shall be made to resolve the dispute, in which case, the notice should constitute a bar to the hearing of any proceedings in a Court of law. The Appellant who raised the objection by way of Notice and the affidavit in support, at the Court below, did not in any way, in that application, indicate the nature of dispute, if any, which the Arbitral Body was required to address. PER SAIDU TANKO HUSSAINI, J.C.A.

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Zamfara State High Court by which the Court dismissed the Preliminary Objection of the Appellants vide Suit No. ZMS/CS/M609/2019 on the 7th February, 2019.

The 1st Appellant had reached an agreement with the Respondent wherein the latter was engaged to construct Talata Mafara –T/Awali – Kagara – Morai and Sauna Roads covering a distance of approximately 41.3 Kilometers. The contract sum was also negotiated and fixed, vide the agreement dated and signed on the 4th September, 2007. On the 8th November, 20018, the Respondent, Cremona Construction Company Limited, took out a Writ of Summons and filed same along with the statement of claim. On the said same 8th November, 2018, the Respondent further filed a Motion on Notice for summary judgment for the sum of N 625,907,844.52 for works done in the construction of Talata Mafara–Sauno–Morai-Kagara road project. Further to this, they also sought for an order for 10% pre judgment interest on the said sum of N625,907,844.52 and the sum of N2,000,000 (Two Million Naira Only) as reimbursement.

The papers originating the suit and the Motion on Notice, were served on the Appellants but they took exception to the suit being filed at all hence they filed a Notice of Preliminary Objection and a supporting affidavit, thereby challenging the jurisdiction of the High Court of Zamfara State to entertain the suit on account of the existence of an Arbitration Clause (clause 47) in the agreement signed by them which dictate that all disputes or differences between the parties shall be resolved by an Arbitral Body and this not having been done, the High Court in the circumstances lacked jurisdiction to entertain the suit of the Respondent.

In response to the Notice of Preliminary Objection, the Respondent filed a counter–affidavit with three (3) documents attached as annexures in opposition to the Notice of Preliminary Objection. Upon hearing the application, the High Court of Zamfara State, in the ruling delivered on the 7th February, 2019 overruled the objection and dismissed same hence, the appeal to this Court against that ruling. The Notice of Appeal to that effect is at pages 119-120 of the record of appeal. The Notice of Appeal is dated and was filed on 8th February, 2019 with two (2) grounds of appeal.
Briefs of argument were filed and exchanged between counsel upon the record of appeal being transmitted. In the brief of argument for Appellant, filed on 10th December, 2019 but deemed on 9th March, 2020, the Appellants raised two (2) issues at pages 4-5 of the brief thus:
(i) Whether or not the Appellants were right in law to file a Notice of Preliminary Objection challenging the jurisdiction of the Court below vide Clause 47 of the agreements between the parties which provides in the event of dispute between the parties, the matter shall be refer (sic) to arbitration. (Distilled from Ground one of the Appeal).
(ii) Whether or not the Court below was right in law to assured (sic) jurisdiction and entertain the matter despite the facts the parties agreed in case of any dispute or differences shall arise between the parties with respect to any matter pertaining to the agreement may referred (sic) to arbitration. (Distilled from Ground two of the Appeal.)

The Respondent’s brief of argument filed on the 9th June, 2020 was deemed on 10th June, 2020. They raised one issue, thus:-
“Was the learned trial Court not right in holding that there was no need for any arbitration between the parties, in the circumstance of this case?”

In the said same brief of argument, the Respondent raised and argued a Preliminary Objection as to the competency of the two grounds covered by the Notice of Appeal. He described the grounds as a vague and confusing.

In their response the Appellants filed a reply brief on the 7th September, 2020 and same was deemed on 2/12/2020. I think it is appropriate to first address issues raised preliminarily and concerning the validity of the grounds contained in the Notice of Appeal as reflected at pages 119 to 120 of the record of appeal. Grounds 1 and 2 and their particulars are reproduced here below thus:-
GROUND 1
“The learned trial Judge erred in law”
PARTICULARS OF ERROR
“The learned trial Judge erred in law when he held that parties are not bound by Arbitration clause contained in the contact agreement.”
GROUND 2
“The Court lacks jurisdiction.”
PARTICULARS OF ERROR
The learned trial Judge misdirected himself to assumed and ascertained (sic) the matter which parties agreed to submit to for Arbitration in the event of any dispute arising in respect of the said contract.”

Without mincing words, I should say that, the said two (2) grounds are vague and not properly comprehensible as to convey or present any meaningful complaint. Order 7 Rules 3 and 6 of the Court of Appeal Rules 2016 provides as follows:-
“3 Any grounds which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of evidence, and ground of appeal or any part thereof which is not permitted under the rule may be struck out by the Court of its own motion or on application by the Respondent.”
“6 the Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.”
​The purpose for which the rules referred to above are made requiring that grounds of appeal should not be vague or general in terms and must disclose a reasonable ground of appeal is to give sufficient information to the other side as to the precise nature of the complaints of the issues that are likely to arise in the appeal and any ground of appeal that satisfies that purpose should not be struck out. See: Aderounmu v. Olowu (2000) 4 NWLR (pt. 652) 25 (SC); Kayode  Olatunji Esq. v. Unity Bank Plc (2016) LPELR – 45586 (CA).
It is for this reason I find merit in the objection taken, hence the said two (2) grounds are hereby struck out without much ado. Consequently, what is left is a bare notice of appeal without grounds. A Notice of Appeal without grounds is incompetent and per force, such Notice of appeal must be struck out as a worthless piece of paper. I so order. See: Cooperative and Commerce Bank Plc. vs. Ekperi (2007) LPELR -876 (SC). The appeal invariably, is similarly struck out.

In case I am wrong in reaching this conclusion, I will consider albeit briefly, the appeal, on the merit for whatever it is worth. I have before now made reference to the briefs of argument filed by the respective parties in which issues were identified for determination.

​I want to believe that the lone issue identified is the Respondent’s brief of argument is apt and covers the two (2) issues identified in the appellants’ brief of argument. I adopt and abide by the said lone issue, that is:
“Was the learned trial Court not right in holding that there was no need for any arbitration between the parties in the circumstances of this case?”

Submissions made in this regard for the Appellants are at pages 5-9 of the Appellants’ Brief of Argument where the Appellant complained of failure by the Respondent to observe the terms of the agreement between parties herein, particularly clause 47 of the agreement by which it was agreed that, all disputes or differences between the parties shall be referred to an Arbitration and this, not having been done, the Court below lack jurisdiction to entertain the suit of the Respondent, founded on the contract agreement between them.

He argued that parties are bound by the terms of their agreement and he relied on several cases including decision in Dalek Nigeria vs. O. Mpad E.C. (2007) 7 NWLR (pt. 1033) 402. Attorney General, Rivers State vs. Attorney General Akwa Ibom State (2018) NWLR (pt. 1248) 31; Ojibah vs. Ojibah (1991) 5 NWLR (pt. 191) 296; Koiki vs. Magnusson (1999) 8 NWLR (pt. 615) 492. In that circumstances, it is argued, an objection taken by the Appellants, as to the competency of the suit and invariably the exercise of jurisdiction by the Court below was in order hence, the Court below wrongly overruled the objection. He submitted finally that in the light of this, the Court below has no jurisdiction to hear the suit filed by the Respondent.

The Respondent, arguing per contra submitted that the fact of the existence of an arbitration clause in an Agreement does not mean that parties therein must submit to arbitration even where there is no dispute or differences between the parties and he relied on the decision in HRH Igwe KRS Onyekwuluje & Anr. vs. Benue state Government & 2 Ors. (2015) M.J. SC (PT. 11) 108. Also reported in (2015) 16 NWLR (pt. 1484) (40) (SC).

Based on the foregoing decision and the fact that no dispute had arisen between the parties, a resort to arbitration as argued by the Appellant, was uncalled for.

Clause 47 is the basis for the objection taken by the Appellants at the trial Court against the suit filed by the Respondent, being heard. Clause 47 of the said agreement provides thus at page 77 of the record thus:-
“In case any dispute or differences shall arise between the parties with respects to any matter pertaining to this agreement, then either party may give Notice in writing to the other and such dispute or difference is hereby referred to the arbitration and final decision of an arbitrator to the appointed jointly by the parties of failing their agreement, by the Chief Judge of Zamfara State.”

A resort to arbitration should only arise where there is a dispute or differences between the parties to the agreement regarding the execution of the terms of the contact. In the instant case on appeal, was that dispute known and identified by either of the parties, to the agreement? Even at that, are the parties not entitled to be served notices indicating that there has been a dispute in the execution of the terms of agreement; a resort to an Arbitral body shall be made to resolve the dispute, in which case, the notice should constitute a bar to the hearing of any proceedings in a Court of law. The Appellant who raised the objection by way of Notice and the affidavit in support, at the Court below, did not in any way, in that application, indicate the nature of dispute, if any, which the Arbitral Body was required to address.
In Onyekwuluje & Anr. vs. Benue State Government (supra) it was held that where there is no dispute between the parties regarding the execution of a contract, the issue of resort to arbitration does not arise. An arbitration clause in a contract is only procedural provision whereby the parties agree that only disputes should be submitted to arbitration. The existence of an arbitration clause merely postpones the right of the contracting parties to resort to litigation in the event that a dispute had arisen which require the intervention of the arbitral body.
The Court below has in the its ruling, found as such that no such dispute is in existence and if there was one, those differences have been sorted out before and there is no longer the need to have recourse to arbitration again. See pages 115-116 of the record of appeal. I am in agreement with this finding of the Court below which has not been appealed against, in consequence of which I am inclined to resolve the sole issue in favour of the Respondent and dismiss this appeal for lacking in merit.

The appeal is dismissed with cost assessed at One Hundred Thousand Naira (N100,000.00) only.
That is the order and judgment.

ALI ABUBAKAR BABANDI GUMEL, J.C.A. I have had the advantage of a preview of the lead judgment of my learned brother Hussain, JCA. I agree with his reasoning and conclusion that this appeal lacks merit and ought to be dismissed. It is accordingly dismissed by me. I abide by all the consequential orders, including the order for costs.

MOHAMMAD BABA IDRIS, J.C.A.: I agree.

Appearances:

M.S. SULEIMAN Esq. For Appellant(s)

A. C. AMAECHI Esq., with him V. O. AMAECHI Esq., A.N. AMAECHI Esq., and R. O. EZE Esq. For Respondent(s)