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.
- Whether the Court of Appeal was right in law in holding that the respondent could not be said to have taken a step in the proceedings and as such waived its right to raise the issue as to the failure of the appellant to give the statutory notice of intention to sue the respondent.
- Whether the Court of Appeal was right in law in refusing to follow the decision of the Supreme Court in Nigerian Ports Authority Construzioni Generali & Anor. 1974 12 Sc. 81.”
What is clear on the record is that the parties had yet to file their pleadings when the trial judge handed down his ruling on stay of proceedings and immediately fixed dates for the hearing. There is nowhere on the record to indicate how the two counsel for the parties agreed to a date for hearing or even were unanimous that hearing would take place. The Court of Appeal held that the learned judge extracted this date from the counsel to the parties. With greatest respect there is nothing on the record that it was even extracted; all that appears on the record is that learned judge unilaterally fixed dates for hearing as it does not appear that he even sought the parties’ opinion. The record of the superior courts must be full especially at first instance as to leave no important matter out or to conjecture. The rules of courts always provide for adjournment from time to time and the record must bear out the events as they occur in court.
In the trial court, where parties appear and more especially with their counsel present, their views must be recorded at every stage on relevant matters like issue of adjournment or costs or non-suit. Where a trial judge, without anything on the record supporting it, makes an order and that order is challenged as incompetent because the parties never addressed on it, in my view, that order must be set aside; It seems the trial court was rushing the case and I believe that prompted the Court of Appeal to use the word “extracted”, for there is no reason why immediately the ruling was read, counsel were not asked any more questions. At any rate, before the Court of Appeal, respondent counsel denied ever consenting to a date for hearing. Adjournment from time to time is an important matter where parties are present in court and their submissions or views on it must be properly recorded to avoid a situation we find in this case. Section 149(1) of Evidence Act I now S.150 (1)] that was adverted to in the appellant’s brief does not apply,: to this case, The section reads:
“150(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.”
Record of proceedings is the only indication of what took place in Court; it is not like minutes of a meeting, it is always the final reference of events, step by step, that took place in court. The counsel never applied for a date for hearing as the record never shows it. They never consented to a date fixed for hearing as no part of the record other than what the learned judge wrote (which is denied) showed the dates. There is nothing here to presume regularity upon. On its facts the case of Ogbuanyiya v. Okudo (No.2)(1990)4 NWLR(Pt 146) 551 is not on all fours with the present case. The parties are not saying the record is not complete whereby they can be allowed to supply the missing parts following the usual procedure, What they allege is that the written record is complete as the judge wrote it, that is, the correct record of proceedings is before the court. But the complaint is that the defendant said it never agreed to a hearing date being fixed. If a criminal record contains a charge and the evidence of parties, addresses by counsel and the judgment and sentence and it is discovered that the charge was not read and explained to the accused and no plea was taken, the entire trial will be a nullity. The procedure for challenging such a record is simple; the Court is asked to look at it and if the irregularity aforementioned is found, the Court of Appeal will declare the trial a nullity. The court will not require a separate application on the complaint on appeal. The lack of consensus by parties to a hearing date or being even asked to propose a date was clearly not on the record. None of the parties has complained that the record is incomplete. It is not the duty of the appellate Court to amend the record of proceedings once it is shown that record is complete, therefore, Akinyede v. Opere (1967) All NLR 322 does not apply as both parties are not ad idem in this matter.
Now, by appearing before the trial in a court to raise a preliminary issue of clause on arbitration to be resorted to first before the trial in a court of law, could the defendant be said to have waived its right When parties enter into agreement and there is an arbitration clause whereby the parties must first go for arbitration before trial in Court it is natural for the defendant in a case where the other party has filed a suit to ask for stay of proceedings pending arbitration. That does not amount to submission to trial. In the case where such application is refused the next step is to invoke a statutory right where it exists if that right will make the suit incompetent. In the present case, s.46(1) of the Edict,(supra) was invoked by the defendant and the learned trial judge held it was too late and that the defendant had waived its right. The right under S.46(1) is very wide. Waiver is not all that simple, appearance by way of demurrer is not enough to amount to waiver. When party has a right whether by way of agreement or under statute he can exercise it at the earliest time and can equally waive it if the statutory right is not absolute and mandatory. The waiver must be clear and unambiguous like allowing all evidence to be taken or even decision given before challenging the hearing. It will then be shown that the party, deliberately refused to take advantage of the right when it availed him. Such failure to take advantage of a right must be so clear that there will be no other reasonable presumption than that the right is let to go. The preliminary skirmishes in this case at the trial Court could not by any imagination be presumed to be a waiver. The defendant had not filed his statement of defence and service of the statement of claim on it is certainly not a waiver by it. Had it filed a statement of defence but with indication that a preliminary objection would be raised that the suit was not properly before the Court, it would not have been a waiver; this would have distinguished the dictum in Kano State Urban Development Board v. Fanz Construction Ltd. (1990) 4 NWLR (Pt.l42) 1. It is therefore clear, that the defendant had not taken any step in having the case heard by the trial Court and had not waived its right underS.46(1) of the Edict, Obembe v. Wemabod Estates Ltd. (1977) 5 SC.115, 131-2 has no application in this case. There is certainly no evidence of waiver in this case.
Section 46(1)of the Edict is certainly not the same with S.97 of Ports Act relied upon in Nigerian Ports Authority v. Constructioni Generali & Anor. (1974) 12SC.81, 95. The Court of Appeal was right to distinguish between the statutory provisions. Ports Act in section 97 is restrictive in its application whereas S.46(1) of the Edict is wide and covered a lot of grounds. I find no substance in this issue.
There was no motion before this Court to argue an additional ground of appeal on a matter not canvassed in courts below as indicated in the brief. As I said earlier the issue raised on that proposed ground is incompetent in the brief and It is struck out as the motion to file the ground of appeal was not moved.
For the foregoing reasons I find no substance in this appeal and I dismiss it. I award N10,000.00 costs against the appellant in favour of the respondent.
SC.224/1991