City Engineering Nigeria Ltd. V (Nig) Ltd V Nigerian Airport Authority (1999)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C. 

In the High Court of Lagos State the Applicant by an originating summons dated the 4th day of November, 1982, filed its application for-

(a) An order that the Respondent in this matter shall submit to arbitration in accordance with Section 19 of the General Conditions of the contract entered into between the Applicant and the Respondent on the 3rd day of January, 1980.

(b) An order to appoint an Arbitrator to arbitrate in this matter of the contract entered into between the Applicant and the Respondent on the 3rd day of January, 1980.

(c) An order compelling the Respondent to submit to such Arbitration.

(d) An order directing that the Respondent do pay the cost of this application.

The application was supported by an affidavit to which there were ten (10) annexure marked Exhibits AOS1 to AOS10. The affidavit evidence showed that the Applicant was awarded a contract by the Respondent for the construction of the Interim Measures Building and Utility Services and External works at the Kaduna Airport, Kaduna, as per their Contract Agreement Exhibit” AOS10″ dated 3rd January, 1980. The Respondent by its letter dated 9th June, 1982 (Exhhibit AOS3) unilaterally terminated the contract between the parties for alleged poor performance in the execution of the contract. The Applicant’s reply was dated 16th June, 1982 (Exhibit AOS4) wherein it was made clear that the termination was a breach of contract and as a result a dispute had arisen between the parties within the meaning of clause or section 19 of the Contract Agreement or specifically the general Conditions of Contract (Exh. AOS. 1 or Exh. AOS2).

In short, clause or section 19 provides for a preliminary procedure for the settlement of disputes to proceed on eventual submission to arbitration within the meaning of the Arbitration Law of Lagos State. It was as a result of the failure by the parties to agree on the appointment of an arbitrator that led to the filing of the application before the High Court relying on Section 6(1)(a) and Section 6(2) of the Arbitration Law of Lagos State. The Respondent filed a counter affidavit in opposition to the application the main thrust of which was that the applicant did not meet the requirement or condition imposed on it by clause or section 19 of the Contract Agreement, the General Conditions of Contract, by its failure to comply with the preliminary procedure for the settlement of dispute. It was also contended that the Applicant had also failed to give mandatory seven (7) days notice to the Respondent before filing the application contrary to Section 6(2) of the Arbitration Law above.

After the learned trial Judge had carefully reviewed the affidavit evidence and submissions of counsel before him, he concluded his ruling thus:-

“The sum total of this application, having regard to the averments in the affidavit and counter affidavit, with all the annexure exhibited on the affidavit and the counter-affidavit, the arguments advanced by both counsel and my observations, the application advanced by both counsel and my observations, the application fails on the ground of the non-compliance with subsection 2 of section 6 of the Arbitration Law of Lagos State, the notice to concur was not given before the filing of this action, the application fails and it is hereby dismissed.”

Aggrieved by the Ruling of the trial High Court, the Applicant appealed to the Court of Appeal, holden at Lagos. One of the main issues contested in that Court was whether or not the learned trial judge was right in holding that the application failed because of non-compliance with Section 6(2) of the Arbitration Law of Lagos State. The Court of Appeal in an unanimous judgment delivered on the 22nd day of February, 1989 upheld the Ruling of the learned trial judge and dismissed the appeal with costs in favour of the Respondent.

Still dissatisfied with the judgment of the Court of Appeal, the Applicant has further appealed to this court.

In obedience to the Rules of Court, the parties filed and exchanged briefs of argument. At the hearing of the appeal on 29th March, 1999, only the Respondent was represented by counsel, the Applicant was not. Dr. Onejeme learned counsel for the Respondent adopted his brief and urged the court to dismiss the appeal.

The Applicant in its brief has submitted only one issue for determination by this Court. It reads thus: