Nigerian National Petroleum Corporation v. Fung Tai Engineering Company Limited (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

MOHAMMED LAWAL GARBA, JSC (Delivering the leading judgment)

Pursuant to an arbitration clause in the contract between the appellant and the respondent, a dispute arising therefrom was referred to arbitration by the respondent, which was resolved and an award made in its favour by the Arbitration Tribunal (tribunal hereafter).

The respondent approached the Federal High Court, Lagos (trial court) for the recognition and enforcement of the award, while the appellant also applied to that court by way of originating summons, to set aside the said award. The Federal High Court recognised and ordered the enforcement of the award and dismissed the appellants application to set it aside.

The appellants appeal to the Court of Appeal, Lagos Division (court below) against the decision by the trial court was dismissed in a judgment delivered on 7th December, 2018, against which this appeal was brought vide the notice of appeal dated and filed on the 18th January, 2019, amended with the leave of the court, on 1st December, 2020.

In the amended appellants brief dated and filed on the 23rd June, 2021, deemed on 26th October, 2021, settled by Mr. Kehinde Ogunwumiju, SAN FCI Arb,

the following issues are submitted for determination in the appeal:-

1. Whether or not the Court of Appeals decision ought to be set aside and the respondents suit for the recognition and enforcement of the arbitral award struck out, given the Federal High Courts lack of jurisdiction to entertain matters arising from or relating to simple contracts. (Distilled from ground 6 of the notice of appeal).
2. Whether or not the Court of Appeal was wrong when it refused to set aside the riding of the Federal High Court despite the failure of the respondent to comply with the provisions of section 12(1) & (2) of the NNPC Act. (Distilled from ground 1, 2, 3, 4 & 5 of the notice of appeal).
3. Whether or not the Court of Appeal ought to have set aside the Federal High Court ruling having regard to the doctrine of accord and satisfaction/estoppel raised by the appellant. (Distilled from ground 7 of the notice of appeal).
4. Whether or not the Court of Appeal ought to have set aside the decision of the Federal High Court, which affirmed the Arbitral Tribunal’s award of interest at the rate of 17% per annum in view of same amounting to an error on the face of the award and/or misconduct on the part of the Arbitrations. (Distilled from ground 8 of the notice of appeal).
5. Whether or not the Court of Appeal was wrong when it set up a different case for the appellant whose case at the Federal High Court was hinged on substantial issues of jurisdiction of the Arbitral Tribunal and not one of an appeal against the award of the Arbitral Tribunal (Distilled from ground 9 of the notice of appeal).

For the respondent, a motion on notice dated and filed on the 23rd November, 2021 prays for:-

a. an order of this honourable court dismissing the appeal in its entirety, and

b. In the alternative, an order striking out grounds 1, 2, 3, 4, 5, 6, 7 and 8 of the appellants notice of appeal dated 18th January, 2019.

The ground for seeking these reliefs is that the originating summons filed before the trial court by the appellant, which was later amended, is grossly incompetent in that no questions were submitted thereon for determination as required by order 7, rule 3 of the Federal High Court (Civil Procedure) Rules, 2000 and held by this court to be a condition precedent to its validity in Okezie v. CBN (2012) 9 NWLR (Pt. 1304) 89 at 100 – 101, and Olley v. Tunji (2013) 12 WRN 24, among other cases.

In the respondents amended brief filed on the 23rd November, 2021, it is argued that without questions for determination, the originating process was incompetent upon which nothing can be placed and expected to stand, in line with the statements in Macfoy v. UAC (2000) 15 WRN 185 and Sken Consult Ltd. v. Ukey (2001) 49 WRN 63.

The court is urged to strike out the originating summons filed before the trial court for being incompetent. In the alternative, it is contended that since the appeal relates to the affirmation of the decision by the trial court not to set aside the award in favour of the respondent, all the grounds of the appeal emanated from the incompetent originating process are equally corrupted.

Five (5) issues are then said to require determination of the merit of the appeal as follows:-

“ i Considering the special, specific and precise nature of the applications of the appellant and the respondent before the Federal High Court, both brought pursuant to section 29 and 31 of the Arbitration and Conciliation Act respectively, whether the Federal High Court lacked jurisdiction to entertain these proceedings such as to adversely affect the decision of the Court of Appeal affirming the judgment of the trial court. (Ground 6 of the notice of appeal).