Chief Dr. Emmanuel Iwuanyanwu V. Hon. Minister Of Agriculture & Water Resources & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the ruling of the Federal High Court Abuja Division, presided over by Honourable Justice I. N. Auta, dated the 20th of July, 2010, refusing to strike out suit number, FHC/ABJ/CS/406/09 for jack of jurisdiction, see pages 234 to 253 of the record of appeal filed on the 11th of October, 2010.

This appeal is decided on the briefs of the appellant and the 2nd respondent by leave of Court obtained on the 30th of March, 2015.

FACTS IN BRIEF:

The appellant after being served with a writ of summons of the respondents filed a motion on notice on the 30th of July, 2009 along with a written address of counsel, see pages 120 to 128; while the Memorandum of Appearance under protest is on pages 118 to 119 of the record of appeal. The appellant’s grounds of objection are as follows:

1. That there is an Arbitration clause in the contract of agreement and by virtue of Section 5 of the Arbitration Act, 2004 the Court cannot proceed with the case.
2. There was an arbitration award in the Arbitration between the parties to the contract.

The said Arbitral award constitutes a binding and enforceable judgment between parties.

3. That based on the contract agreement before the Court, the defendant was not a party and therefore cannot be sued.
4. The said arbitral award is still subsisting and therefore, the Respondents are stopped from prosecuting this case.
5. JOSEPH OCHUKO TOBI, ESQ, a private Legal practitioner who is to the Respondent does not have a fiat of the 2nd Respondent to represent the Respondent in this case and secondly, the said JOSEPH OCHUKO TOBI, ESQ., has not paid his practicing fees as prescribed under the Rules of Professional Conduct for Legal Practitioners 2007.

The respondents filed a counter affidavit to the application, and a written address of counsel in opposition, see page 227 to 246 of the record of appeal; and the ruling of the trial Court refusing to grant the application is at pages 252 to 253 of the record of appeal.

The Amended Notice of Appeal filed on the 4th of November, 2010 contains five grounds of appeal, the grounds without the particulars are as follow:

GROUND ONE:

The learned trial judge erred in law when he failed to

consider that the appellant is not a party to the contract agreement, subject matter of this suit and therefore it will serve no useful purpose to embark on a trial of this suit as there is no privity of contract or nexus between the appellant and the respondents.

GROUND TWO:

The learned trial judge erred in Jaw when he failed to consider that the contract agreement annexed to the statement of claim filed by the Plaintiffs/Respondents in this suit contains an ARBITRATION CLAUSE and it will therefore serve no useful purpose to embark on a trial of this case without the parties first submitting themselves to an arbitral proceedings.

GROUND THREE: