Fawehinmi Construction Company Ltd. V. Obafemi Awolowo University (1998)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C.

The appellant took out a writ claiming damages for breach of contract it entered into with the respondent, damages for wrongful detention of its plants, machineries and equipment by the respondent and an order for the plaintiff to be paid “such other sums of money as the court may find to have been lost”…………..as a result of continued detention of the plaintiffs plants, equipment and machinery. Also prayed for, is the order to the defendant to release to the plaintiff the plants, machineries and equipment detained by it on the site where the execution of the contract between them was being carried out. On the day the appellant as plaintiff filed its writ it also filed a motion for order of mandatory injunction to compel the respondent as defendant to release the appellant’s plant, machinery etc. aforementioned and 3rd day of June, 1987 was fixed for hearing the motion. The respondent got served with the writ and motion and on 25th day of May 1987 filed a motion seeking for stay of proceedings under s. 5, Arbitration Act until the parties submitted their dispute to an arbitration as stipulated by clause 35 of the contract between the parties.

The motion for stay of proceedings aforementioned was argued and a ruling on it was delivered by the learned Judge on 6th day of July 1987 dismissing it. Without any evidence in support on the record, after the ruling, learned trial Judge entered as follows:

“At the instance of both counsel and their agreement” “the case is adjourned to 23rd, 24th and 25th September, 1987 for hearing.”

Looking at the record of proceedings there is nowhere the parties agreed to the case being adjourned for hearing. It was immediately the ruling was delivered by the learned trial Judge holding that he would not stay proceedings for arbitration that he fixed the dates for hearing to 23rd, 24th and 25th September, 1987. Pleadings by then had not been filed. After this, the appellant filed a Statement of Claim to which no statement of defence was filed, rather the respondent raised the issue that the suit was not properly before the Court since section 46 of University of Ife (now Obafemi Awolowo University) Edict was not complied with. The Edict in s. 46 states:

“No suit shall be commenced against the University until at least three months after written notice of intention to commence the same shall have been served on the University by the intending plaintiff or his agent, and such notice shall clearly state the cause of action, the particulars of claim, the name and place of abode of the intending plaintiff and the relief which he claims.”

After the motion was argued the Court ruled that the respondent as defendant in the case had taken some steps amounting to waiver of its rights under section 46 of the Edict and that it was too late to raise the issue of lack of notice or that the Court had no jurisdiction to hear the case as the said notice was not given before instituting the action. Against this ruling the respondent university appealed to the Court of Appeal which held:

“(i) That the agreement to proceed with the case before the trial Court was extracted by that court from the counsel for the parties as what was on the record could not be regarded as acquiescence by the defendant, now respondent, to withdrawing its objection that the matter was not properly before the court.

(ii) That what was on record could not be regarded as defendant having taken a step in the proceedings and thus waiving its right to object to non-service of a prior notice.

(iii) That section 46(1) University of Ife (now Obafemi Awolowo University) Edict applies to all causes of action and the case relied upon Nigerian Ports Authority v. Construction Generali (1974) 12 SC 81, 95 was not applicable to this case.

It is against the decision that this matter is now before us on appeal. A new issue has been added, a ground of appeal which was not raised in the Court below and the appellant’s brief of argument indicated that during hearing leave would be sought to argue it. The parties were served hearing notices but none of them appeared neither were their counsel in court and by virtue of Order 6 rule 8(6) Supreme Court Rules the appeal was treated as having been argued on the brief of argument. However, leave to argue the proposed new ground of appeal, concerning the inconsistency with the Constitution of the Federal Republic of Nigeria 1979 of section 46(1) of the Edict (supra), was not moved as proposed in the brief of argument and therefore issue 4 proposed for determination reading

“14. Whether section 46(1) of the University of Ife Edict 1970 is not inconsistent with the provisions of section 6(6); 33(1) of the Constitution of the Federal Republic of Nigeria 1979 and therefore void”

is incompetently before the Court and was therefore struck out. There thus remains three issues for determination on which the appeal was considered as follows:

“1. Whether the Court of Appeal was right in holding that the agreement to proceed with the case as recorded by the trial Judge was extracted from the counsel for the parties.