BCC Tropical Nigeria Ltd. V. The Government Of Yobe State Of Nigeria & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A (Delivering the Leading Judgment)

This is an appeal against the Ruling of Yobe State High Court delivered on 12th July 2010 in Motion No. YBS/DT/HC/82m/2009 seeking, inter alia the appointment of an Arbitrator for the Respondents.

The statement of material facts as captured by the Appellant is as follows:

1. On the 6th of June, 2006, the Appellant and the Respondents hereon entered into a contract Price Variation Agreement, in respect of the construction of a Cultural Centre and City Hall for Yobe State, at Damaturu. The contract, Exhibit 1 to the Appellant’s motion, is contained in pages 9 to 13 of the record.

By clause 15 of Exhibit 1 (please see page 13 of the record) the parties agreed to submit any dispute arising from their contract “which fails amicable settlement, to arbitrators in accordance with the Arbitration and Conciliation Act” now cap A18 Laws of the Federation of Nigeria, 2004.

2. Following a disagreement/dispute between the parties, the Appellant herein gave the Respondent a Notice of Arbitration in accordance with the Arbitration Act. (Please see pages 17 to 20 of the record). When the Respondents did nothing, the Appellant, on the 29th day of October, 2009, filed the Application leading to this appeal.
3. While the Appellant’s application was pending the Respondents by their letter dated 27th January, 2010 (pages 27 to 29 of the record) purported to have terminated the contract between the parties. Relying on the fact of the termination of the contract, the lower Court dismissed the application holding thus:

“the termination of the contract whether rightly or wrongly inhibits this Court from granting this application, accordingly (sic) fails and is dismissed.”

The Appellant being dissatisfied with the Ruling filed its notice and 2 grounds of appeal on 26th July 2010. The Appellant filed his brief on 25th October 2010 and articulate one issue for determination viz:

“Does the termination of the contract between the parties by the Respondent inhibit the lower Court in law, from granting the Appellant’s Application”.

The Respondents filed a notice of preliminary objection which reads thus:

1. That the appeal of the Appellant is incompetent before this Hon. Court as no leave of the Court was sought and obtained.

The Respondents stated that the basis for their objections are as follows:

(1) That the grounds of the appeal of the appeal is (sic) a mixed law and fact.

(2) Section 242(1) of the 1999 Constitution provides that such an appeal requires leave of either the lower Court or this Court.

The Respondents prayed the Court to strike out this appeal.

The Respondents did not proffer any arguments in this regard. However the Appellant’s learned Counsel in his response submitted that the Appellant’s appeal is not covered by Section 242(1) of the 1999 Constitution rather it is covered by Section 241(1)(a) of the 1999 Constitution which provides as follows;

“An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases: