Comptoir. Comm. & Ind. S.p.r. Ltd. V. Ogun State Water Corporation & Anor (2002)

LAWGLOBAL HUB Lead Judgment Report

O. AYOOLA, J.S.C.

The appellant, Comptoir Commercial & Ind. SPR Ltd being dissatisfied with the award made on 23rd December, 1986 by the arbitrator in the dispute between it and the respondent, the Ogun State Water Corporation, appealed to the High Court of Oyo State to have the award set aside. The grounds of the application were that the arbitrator had misconducted himself; that the award did not deal with the matter referred to the arbitrator; and, that the award was bad on the face of it.

By an agreement dated January, 31st 1982, the parties agreedthat the appellant would supply to the respondent and install 10 units of water treatment plants as “Turn Key” projects. Any question, dispute or difference arising from the contract was to be referred to the arbitration of a person to be agreed upon by the parties. A dispute having arisen in that the appellant claimed that under the agreement it was entitled to be paid in addition to the “basic contract price” variation in prices pursuant to clause 40(iii) of the contract and maintenance cost whereas the respondent insisted that it was a lump sum contract, a reference was made. The questions that arose were:

i. whether the appellant was entitled to what was described as “escalation cost”, and

ii. whether it was entitled to 5% of final contract cost as maintenance cost.

The arbitrator proceeding on the footing that the terms of the contract of the parties have been embodied in several documents, held that reading clause 40 of the documents to discern the intention of the parties led to the conclusion that it could not have been intended by the parties that the contract price was subject to variation. He found that: “On the first issue of the applicability of clause 40, I hold that the contract for the supply of the water treatment plants was intended by the parties for a lump sum and that clause 40 was not intended to be applicable.”

In regard to the second question, he found that the appellant had not established any basis for its claim for maintenance cost at 5% of the contract price per annum. On the matter coming before the High Court on the appellant’s application to set aside the award, Aderemi, J., (as he then was) held that: ” — before there can be escalation of the contract price or before the contract can be construed as a variable one there must be evidence, in writing that the contractor was so authorised by the Engineer of the respondent to alter anything. In fact, authorisation in writing, is the only condition precedent to involving clause 40 of exhibit 1.” He dismissed the application. On the appeal to the Court of Appeal from that decision counsel who then appeared for the appellant, but is not the appellant’s counsel on this appeal, abandoned the ground and issue arising there from which would have been the crux of the appeal. The issue that was abandoned was whether or not there was an error on the face of the award. The position being thus, Salami, JCA., who delivered the leading judgment of the Court of Appeal was of the view, in effect, that as a result of the election by counsel who then represented the appellant, there being no contention that the award was erroneous on the face of it, the finding of the High Court became conclusive. However, out of abundance of caution, he considered the remaining issues in the appeal wherein it was contended that the arbitrator misconducted himself by wrongful admission of evidence. In the opinion of the learned Justice of the Court of Appeal the only document to which the argument of counsel for the appellant could be said to relate was exhibit F. In regard to that exhibit relying on Olukade v. Alade (1976) 2 SC 183, he held that the document having been admitted without objection, it was within the competence of the arbitrator to have acted upon it. He applied the same consideration to exhibits O, P and Q. The Court of Appeal (per Salami, JCA) held that the High Court was in “serious error” in considering exhibit 1 as well as exhibits F, O, P, Q since the entire transaction had been recorded in exhibit 1. Notwithstanding that critical view the court, nevertheless, concluded that: “The admission of exhibits F, O, P and Q without resistance is fatal to the appellant’s case. It was mainly responsible for producing or tendering exhibit F in evidence. Exhibits O, P, and Q were admitted without its objection timeously or immediately; and the arbitrator took them all into consideration in coming to his decision. It is rather late in the day for the appellant to cry over or complain upon a situation its neglect greatly assisted in creating.”

Having considered some other issues raised before it, which are not of significance in this appeal, the court below dismissed the appeal. This is an appeal from the decision of the Court of Appeal given on 7th July, 1992. Surprisingly, it took five years for it to reach this stage of determination. For this delay the parties were largely responsible. The appellant’s brief was not filed until 13th October, 1999 and the respondent’s brief dated 7th January, 2002, was only deemed to be filed on that day upon the respondent’s application for extension of time within which to file it.

Three issues were submitted for determination by the appellant as follows:

i. should the Court of Appeal not have considered on its own motion the correct interpretation of clause 40 of exhibit 1 notwithstanding that the appellant had abandoned the ground of appeal and the issue formulated thereon whereby the finding of the trial court on the interpretation of the said clause could have been challenged;

ii. was that court right when it held that it was too late for the appellant to complain about the admissibility of certain documents, the admissibility of which it did not object to at the trial;

iii. was that court correct when it held that the arbitrator did not rely on those documents

The question whether a party who has abandoned an issue can complain if the court failed to consider that issue seems to me to be a novel one. Mr. Ojo, learned counsel for the appellant, with thoroughness, industry and ingenuity went to great lengths to try to persuade us that he could. The candour with which he cited authorities which are against his contention is commendable. He cited cases such as Chief Ebba v. Chief Ogodo & Anor (1984) 1 SCNLR 372; (1984) 4 SC 84112; Ejowhomu v. Edok-Eter Mandillas Ltd., (1986) 5 NWLR (Pt. 39) 1, IS; and Iyayi v. Eyigebe (1987) 3 NWLR (Pt. 61) 523. All these cases show, in a nutshell, that an appellate court should confine itself to determination of issues raised and argued before it. Without asking us to depart from these decisions, learned counsel for the appellant argues that notwithstanding what he acknowledged to be a “well established principle of law” the Court of Appeal is by statute empowered to go beyond the grounds of appeal and issues raised by the parties in the determination of the appeal. For this argument he relies on section 16 of the Court of Appeal Act, Order 1 rule 20(4) and (5) and Order 3 rule 23, of the Court of Appeal Rules.

Section 16 of the Court of Appeal Act gives the Court of Appeal a general power “to make any order necessary for determining the real question in controversy in the appeal”. Order 1 rule 20(5) empowers the Court of Appeal to exercise the powers of the Court that may be exercised Order 1 rule 20(1) – (4) notwithstanding (i) that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision or by any particular party to the proceeding or, (ii) that any ground for allowing the appeal or affirming or varying the decision of that court is not specified in such notice. The Court of Appeal by virtue of that rule has power to make any order to ensure the determination on the merits of the real question in controversy between the parties. In substance, the general powers conferred on the Court of Appeal pursuant to Order 1 rule 20(1),(3) and (4) are those which emanated from the fact that appeals in civil cases in that court are by way of rehearing. Thus, the court has “all the powers and duties as to amendment and otherwise of the High Court”: (r.20(1)); to receive further evidence on question of fact: (r.20(3); to draw inferences of fact and to give any judgment and make any order which ought to have been given or made: (r.20(4)) Nothing in Order 1 rule 20(1),(3) and (4) which contain the “foregoing provisions” referred to in r.20(5) empowers the Court of Appeal to descend into the arena so to say, and take over the conduct of the appeal from the parties. The general powers of the Court of Appeal both under section 16 and Order 1 rule 20(5) to ensure the determination on the merits of the real question in controversy were designed to enable the court to clear whatever technical mistake or obstacles may be in the way of a fair determination of the appeal on its merit or of determining the real question in controversy in the appeal. The real questions in controversy in an appeal are the questions which arise from the grounds of appeal. Similar purpose must be ascribed to section 16. The proper role of a court in our accusatorial model of procedure is to pronounce on and determine issue in controversy submitted to it. It is the parties who themselves play the primary role in the process, at the trial stage, by the issues raised on their pleadings, where the case is tried on the pleadings, and at the appellate stage, by the issues arising from the grounds of appeal raised by the appellant. It is not for the Judge to initiate controversy. His role in the accusatorial model is first and foremost that of an umpire and it is in that role that he offers assistance by directing proper focus to what the parties themselves may have articulated without sufficient clarity as the question in controversy. There are the exceptional cases where it is permissible for the court to take an initiative to raise an issue on its own motion. Some of such instances are when the issue relates to its own jurisdiction; or, when both parties have ignored a statute which may have decisive bearing on the case; or, when on the face of the record serious question of the fairness of the proceedings is evident. The power of the court to make consequential orders as the justice of a case demands on its own motion though to be exercised with circumspection, also exists. The cases cited by learned counsel for the appellant such as Hanson v. Wearmouth Co. Ltd. (1939) 3 All ER 47; Rutherford v. Richardson (1922) All ER (Rep) 13; Aboud v. Regional Tax Board (1966) NMLR 100; Re Whiston (1924) 1CH 122 and Williams v. Akintunde (1995) 3 NWLR (Pt. 381) 101 fall into one or the other of these categories. Notwithstanding the exceptions, the general rule is that when an issue is not placed before the court, it had no business whatever to deal with it: Ebba v. Ogodo & Anor (1984) 1 SCNLR 372; (1984) 15 NSCC 255, 266 (per Eso, JSC). Is there anything to take this case out of that general rule