Bill Construction Co. Ltd. V. Imani & Sons Ltd/shell Trustees Ltd (A Joint Venture) (2006)

LAWGLOBAL HUB Lead Judgment Report

ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal holden at Lagos in appeal No. CA/L/192/98 delivered on 7th July, 1999 in which it allowed the appeal and set aside the decision of the Lagos State High Court granting leave to the appellant to enforce an arbitral award between the parties.

The parties entered into a construction contract for the building of the United States of America Embassy Staff Housing and recreational facilities at Abuja with a provision that any dispute between them must be referred to arbitration and the award of such arbitration shall be final and binding on the parties. Later on and during the course of the execution of the contract, disputes arose between the parties and the matter was duly referred to Kofo Popoola, Jp, Chartered Quantity Surveyor, for arbitration and an award was made on 31/12/96. The award was for N352,910,156.00 in favour of the appellant who demanded payment but the respondent refused to pay. There was in addition, an award of 21% interest per annum on the principal sum calculated monthly on any outstanding sum remaining unpaid.

Appellant later applied to the Lagos State High Court on 26/3/97 for leave to enforce the award as a judgment of that court by an originating motion ex parte but the Chief Judge directed the appellant to put the respondent on notice of the motion. The appellant consequently took out an originating summons on notice to the respondent on 23/4/97 under the same suit No.M/172/97 which was served on the parties.

On the 7/7/97 the respondent filed a notice of preliminary objection to the application of the appellant which objection was more than three months as allowed by the Arbitration and Conciliation Act, Cap. 19, Laws of the Federation, 1990 for challenging an award. The challenge to the award was thus more than 6 months after it was made.

On the 1st day of April, 1997 the respondent commenced suit No. FHC/L/CP/365/97 at the Federal High Court, Lagos in respect of the award and the appellant filed a notice of preliminary objection against the suit on 8/4/97 challenging the jurisdiction of the court to entertain and determine the suit which objection was upheld by that court on 9/3/98.

On the 27th day of October, 1997 the Lagos High Court dismissed the preliminary objection of the respondent and proceeded to grant the appellant’s application to enforce the award there being nothing to oppose its grant. Before granting the application, learned counsel for the respondent, when called upon to reply to the motion as moved by learned counsel for the appellant applied for an adjournment to file a counter-affidavit, which application was refused by the learned trial Judge resulting in the appeal to the Court of Appeal. The Court of Appeal allowed same on the ground that the respondent’s right to fair hearing was impeached by the learned trial Judge’s refusal to grant the adjournment sought and without allowing counsel opportunity to reply on points of law to the application to enforce the arbitral award. It is against that decision that the appellant has appealed to this court.

The issues relevant for the determination of the appeal are as follows:-

1. Were the learned Justices of the Court of Appeal right in treating the third issue for determination formulated by the respondent as similar to the appellant’s Should the judgment still be sustained if the said respondent’s third issue for determination is shown not to have been distilled from a ground of appeal arising from the judgment of the trial court (Ground 1 of the appeal).
2. Were the learned Justices of the Court of Appeal right in holding that the registration of the arbitral award pursuant to section 31 of the Arbitration and Conciliation Act, the respondents were not given a fair hearing in the circumstances of this case for not being granted adjournment at the time and for the reason the request was made (Grounds 2 & 3 of the appeal)”

It must be noted that there was a cross-appeal by the respondents which was withdrawn by learned counsel for the respondents/cross-appellant at the hearing of the appeal on the 18th day of October, 2006 and was consequently dismissed by this court. Also to be noted is the fact that there was a third issue identified by the learned counsel for the appellant which relates to the withdrawn cross-appeal and was consequently struck out by the court following the dismissal of the cross-appeal.

Going through the surviving two issues as identified by learned counsel for the appellant for determination, I hold the view that the main issue in this appeal is the second issue dealing with fair hearing. I will therefore limit this judgment to a consideration of the issue as to whether the respondents were denied their right to fair hearing as held by the Court of Appeal, I hold the considered view that the 1st issue is really of no moment even though elegantly couched and thought out.

By virtue of the provisions of section 33(1) of the 1979 Constitution being the applicable Constitution to the facts of this case, in the determination of a person’s civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality. It is settled law that the above provision entrenches the common law concept of natural justice with its twin pillars, namely:

(i) that a man shall not be condemned unheard or what is commonly known as audi alteram patem, and

(ii) that a man shall not be a Judge in his own cause or nemo judex in causa sua.

The section confers on every citizen of this great nation who has any grievance, the right of access to the courts and leaves the doors of the courts open to any person with the desire to ventilate his grievances and compels the court that will determine the rights of such person to accord the person a fair hearing, see Kenon v. Tekam (2001) 14 NWLR (Pt. 732) 12; Deduwa v. Okorodudu (1976) 9-10 S.C. 329, Mohammed v. Kano N. A. (1968) 1 All NLR 424.