C.O. Ogbughalu & Sons Nigeria Limited V. Unilever Nigeria Plc (2016)

LawGlobal-Hub Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.C.A. 

On 1-9-2011, the appellant commenced Suit No. HAB/57/2011 by filing a writ of summons accompanied by statement of claim, witness depositions, list of witnesses, copies of documents to be replied on in the Suit and list of documents at Ebonyi State High Court at Abakaliki against the respondent claiming for –
(i) The said various sums due and payable to the plaintiff, the details of which have been specifically pleaded herein in paragraph 5(i)-(xxv) inclusive, in the total sum of N79,609,679.99 (Seventy Nine Million, Six Hundred and Nine Thousand, Six Hundred and Seventy-Nine Naira, Ninety-nine kobo), representing credit now outstanding for payment on the footing of the key Distribution Agreement between the parties.
(ii) N141,988,771.70 (One Hundred and Forty-one million, Nine hundred and Eighty-Eight thousand, Seven hundred and Seventy-one Naira, Seventy kobo) being interest on the principal sum due calculated at the prevailing Central Bank of Nigeria interest Rates for the period 1st Jan. 2003 – 30th June 2011.”
(iii) An order of the Court directing the time within which the

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sum found due and payable to the plaintiff should be fully paid/liquidated.
(iv) An order for the payment of Interest thereon at the interest rate of 10% per annum, until the final liquidation thereof as found due and payable to the plaintiff by the defendant upon judgment.”

By a motion on notice filed on 20-12-2011, the appellant applied for leave of the trial Court to lead evidence to prove its case on the ground that the respondent had not filed its statement of defence after being served with the writ of summons, statement of claim and other documents. The respondent on 5-1-2012 filed a counter affidavit in opposition to the said application.

By a motion on notice filed on 20-11-2012, the respondent applied for –
1. An Order of this Honourable Court extending the time within which the defendant/applicant will file and serve its memorandum of appearance in this suit.
2. An Order deeming the memorandum of appearance dated 14th November 2012 as having being properly filed and served necessary fee having been paid.
3. An Order of this Honourable Court staying this suit pending the resolution of the dispute between the

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plaintiff and the defendant arising out of a distributorship contract between the plaintiff and the defendant dated 1st August 2008 by arbitration.
4. And for any further Order(s) as the Honourable Court may deem fit and expedient to grant in the circumstance.”

The application is supported by an affidavit of 16 paragraphs. The appellant on 26-11-2012 filed a counter affidavit of 18 paragraphs in opposition to the said application. The respondent on 23-1-2012 filed a further affidavit of 7 paragraphs in support of its application for stay of proceedings.

Both sides filed, exchanged and adopted their respective written addresses.
On 30-4-2013, the trial Court rendered its ruling, granting the respondent’s application and Ordered that –
1. Time is hereby extended up to today for the defendant/applicant to file and serve its memorandum of appearance in this matter.
2. The memorandum of appearance dated 14th November, 2012 is deemed to have been properly filed and served with the payment of appropriate filing fees.
3. Suit No. HAB/57/2011 shall be stayed pending the resolution of the dispute between the

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plaintiff/respondent and the defendant/applicant arising out of the distributorship contract dated 01/08/2008 by arbitration.
4. The dispute between the parties in this suit is accordingly referred to arbitration.
5. The plaintiff/respondent shall choose from any of the three (3) arbitrators already nominated by the applicant.”

Dissatisfied with this ruling, the appellants on 13-5-2013 commenced this appeal No. CA/E/378/20/3 by filing a notice of appeal containing four grounds for this appeal.

Both sides have filed, exchanged and adopted their respective briefs as follows – appellants brief and respondent brief.
The appellant’s brief raised the following issues for determination –
1. Whether the order so made for stay of proceedings pending Arbitration can be sustained on the interpretation of Section 5 of the Arbitration & Conciliation Act Cap. A 18 of the Laws of the Federation of Nigeria Vol. 1 of 2004?
2. Whether the penultimate order of the Court constraining the (plaintiff) Appellant to choose from any of the three arbitrators already nominated by the applicant (Respondent), can be justified in