Alphonsus Chikwujike Agwuncha V. Cyril Ikechukwu Ezemuoka (2002)

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ZAINAB A. BULKACHUWA, J.C.A.

The respondent as plaintiff before the trial court initiated this action by way of a Writ of Summons dated 8th July, 1999 and by a statement of claim dated 7/8/99 claimed as follows:

(i) An order that the partnership between the parties be formally dissolved by the court.

(ii) Assets and liabilities as at 5/8/98 valued at N7, 424, 394.00 only are divided in the ratio of to the Plaintiff and 1:3 to Defendant which translate at N4, 959, 541. 00 for Plaintiff and N2, 474773.00 to the Defendant

(iii) An order that all assets of the partnership still in possession of the defendant be sold and the plaintiff paid the sum of N3, 544, 046. 00.

(iv) An order that liabilities when fully determined be equally divided in same ratio.

Pleadings were filed and exchanged by the parties but before hearing could commence on the case the defendant now appellant before this court filed a Notion on Notice on the 8/10/99 seeking the under listed reliefs;

1. An order striking out the plaintiffs Suit; as it was in disregard of a condition precedent to the conferment of jurisdiction and filed in the wrong jurisdiction or
2. An order striking out plaintiffs suit for disclosing no cause of action; not being a suit for the enforcement of an arbitral award; or
3. For an order striking proceedings (alternately) until arbitrators are appointed under the act; and in compliance with the Partnership Agreement of 3/2/94.

The trial court heard parties on the application and in a considered ruling on the application delivered on 25/1/2000 refused the application as prayed.

The defendant being dissatisfied has with the leave of the trial court which was granted on the 3/2/2000 appealed to this court on one ground of appeal to wit:

Ground of Appeal:

The Honourable Trial Judge erred in law when he dismiss or dismissed the Defendant’s application in limine to strike out plaintiff’s Suit.

Particulars of Error:

1. Relief sought in the application No M/28/99 was an order of court striking out plaintiff’s suit. Order for stay was sought in the alternative.
2. The Honourable Trial Judge failed to apply Order 24 of the High Court (Civil Procedure Rules) 1991.
3. The Honourable Trial Judge failed to resolve the conflict In Order 24 of the High Court (Civil Procedure) Rules 1991, and Section 4(1) of the Arbitration and conciliation Act 1990.
4. The Honourable Trial Judge failed to accord due weight to paragraph 19 of the partnership agreement dated 3/2/94.
5. The Honourable Trial Judge erred when held that the filing of memorandum of Appearance and the Statement of Defence amounted to steps taken in the proceedings that could vitiate the defendant’s application; particularly In view of the relief striking out and Order 24.
6. The Honourable Trial Judge erred when he held that the award by the arbitrators was null as it was not signed by the defendant.

The appellant, as is required by the Rules of this court filed his brief of argument on the 17/10/2001 and a reply brief on the 12/2/2002, The respondent’s brief by leave of this court granted on the 31/01/2002 was deemed filed on the same date i.e. 31/01/02.

In his brief the appellant formulated these 4 issues for the sale ground of appeal for the determination of the appeal,