Home Developments Ltd. Vs Scancila Contracting Co. Ltd. (1994)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, JSC. 

By an originating notice of motion dated 22/10/85 and filed on 23/10/85 the appellant, Home Developments Ltd, sought for an order that –

“The award of Mr. Gabriel Aduku (hereinafter called “the Arbitrator”) dated the 29th day of August, 1985 made in the reference to arbitration before him between Home Developments Ltd (hereinafter – called “the Applicant”) and Seancila Contracting Company Limited (hereinafter called “the Respondent”) under the Arbitration clause contained in the contract Agreement signed on the 19th day of March, 1981:

(1) Be set aside, and

(2) That the High Court should invoke its powers under and by virtue of sections 6(6)(a) and (b) and 236 of the Constitution of the Federal Republic of Nigeria 1979 Order 22 Rule 9, High Court (Civil Procedure) Rules, 1977, to become seized of the matter and thereupon to make any awards, orders and grant any reliefs it deems fit and justice in the circumstances of this matter; or

(3) In the Alternative, that the award be remitted to another Arbitrator the Court may appoint, for reconsideration; and that the costs of and incidental to this application be paid by the said SCANSILA CONTRACTING COMPANY LIMITED.”

These prayers were immediately followed by a five-page foolscap size “grounds for the application.” The motion was also supported by an affidavit of 49 paragraphs sworn to by one Alhaji Isa Ibrahim Makarfi, Company Executive of Home Developments Ltd, the appellant.

The respondent, Scancila Contracting Co. Ltd entered a conditional appearance under protest with a notice of preliminary objection to the application on the following grounds –

“1. That the Applicant’s application dated 22nd October 1985 and filed on 23rd October 1985 for an order that the award of Mr. Gabriel Aduku- (the Arbitrator) dated the 29th day of August 1985 made in the reference to arbitration before him between the Applicant and the Respondent beset aside and or remit the award to another Arbitrator the court may appoint, for reconsideration commenced in this suit by originating Notice of Motion is incompetent and should be struck out and or dismissed by this Honourable Court:-

(i) The form and commencement of this suit is unknown to and contravene the provisions of Order 1 Rules 1, 2, and 3; Order 2 Rules 1, 2, and 3; and Order 34 Rule 8 High Court (Civil Procedure) Rules, 1977, made pursuant to section 116(1) High Court Law of Kaduna State.

(ii) If at all the Application aforesaid was made in pursuant of section 35 of the High Court Law Cap. 49, same contravenes the provisions of Order 8 Rules 3(1-6)

Rules of Supreme Court Practice, White Book Volume 1.

(iii) The application aforesaid was not made within fifteen days after the publication of the award aforesaid, as prescribed by the provisions of Order 22 Rule 12 of the High Court (Civil Procedure) Rules 1977.

(iv) The provisions of Sections I 1 and 12 of the Arbitration Law Cap. 7 Laws of Northern Nigeria 1963, applicable in Kaduna State, are governed and or regulated by the provisions of the rules of court, viz High Court (Civil Procedure) Rules 1977, which came into operation on the 1st day of March, 1977.

2. This Honourable Court is incompetent to entertain and or hear the Applicant’s application aforesaid, in that-

(i) For the reasons given in Ground I above.

(ii) The Applicant’s suit was not initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction by the Court.

(iii) Inherent jurisdiction and powers of a court cannot be a total substitute for the Rules of Court.

3. The Applicant’s application aforesaid, is an abuse of the process of the court and should, for the foregoing reasons, amongst others, be struck out and or dismissed.”

The preliminary objection was argued.

In a considered ruling. the learned trial Judge observed at page 48 of the record thus: –

“In the instant case, the applicant has not properly initiated the proceedings by due process of law enumerated as mandatory in Order 2 rule 1 of the H.C.C.P. Rules, and this is not a case which can be started by following Section 35 of the High Court Law for reasons stated earlier. With regard to the other point that the application was not made within 15 days of Order 22 Rule 12 H.C.C.P. Rules 1977, I think as long as the Rules of Court apply to the arbitration proceedings then it is mandatory for the application to be made within the 15 days after the publication as stipulated in Order 22 Rule 12.

It is not disputed by the applicant as can be seen in their affidavit particularly paragraph 3 of Exhibit X that the award was made and published on 28th day of August 1985 and received by them on 20th September 1985 while the application to set aside the award was filed on 23/10/85. This is clearly more than 15 days after the publication.

From the wordings of Rule 12 of Order 22 non-compliance with the rule will in my view make the suit incompetent.”

He continued and concluded on page 50 as follows –

“In the final analysis and in view of the foregoing reasons I am of the view that this suit is incompetent as it was not properly commenced as stipulated by the High Court Rules and also it was commenced after the expiration of 15 days period stipulated in Order 22 Rule 12. I also hold that the provisions of Section 35 of the High Court Law which enjoins the High Court where the Local rules do not make specific provisions, to apply the practice and procedure of the High Court of Justice in England, as not applicable in the instant case. The application to set aside the award or remit it is hereby struck out. I must commend both teamed counsel for brilliant submissions.”

Aggrieved by the decision of the trial court above, the appellant appealed to the Court of Appeal Kaduna. Three grounds of appeal were filed and from them the following three issues respectively arose for determination: –

“1. Whether in view of Order 2 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 1977 the action or application of this nature should only be commenced by a writ of summons to the exclusion of any other procedure such as by an originating notice of motion as in this case.

2. Whether an action or application commenced by originating notice of motion which ought to have been commenced by a writ of summons should be struck out and not treated as if it had been commenced by a writ of summons.

3. Whether Order 22 Rule 12 of the High Court (Civil Procedure) Rules 1977 is applicable to this case and therefore the application is time barred or whether by virtue of section 35 of the High Court law Cap. 49 Laws of Northern Nigeria applicable in Kaduna State, the computation of time is governed by the applicable English law at the time of enactment of the Arbitration Law.”

The Court of Appeal in a reserved judgment allowed the appeal on issue 1 & 2 but dismissed it on issue 3, namely, that the suit was time barred having been brought long after the expiration of fifteen days when the arbitration award was made and published. Delivering the lead judgment Akpata, JCA.(as he then was) said on page 141 thus –

“I have therefore come to the conclusion that since the originating notice of motion the subject matter of this appeal was filed long after the expiration of the fifteen days period stipulated in Order 22 Rule 12, it was incompetent and was rightly struck out. While grounds 1 and 2 succeed, ground 3 fails. The appeal as a whole therefore fails. It is accordingly dismissed. There will however be no order as to costs.”

Still dissatisfied with the decision of the Court of Appeal, the appellant has further appealed to this Court. Only one ground of appeal was filed and it reads:

“That the learned Judges of the Court of Appeal erred in Law when they held that the suit before the High Court was time barred by virtue of Order 22 Rule 12 High Court (Civil Procedure) Rules, 1977 in that the suit was brought outside 15 days after the publication of the Arbitrator’s award when the award in this suit was not an award made pursuant to section 90 of the High Court Law Cap. 49 Laws of Northern Nigeria applicable to Kaduna State and ii hen also the Arbitration Law cap. 7 Laws of Northern Nigeria applicable to Kaduna State prescribed no time limit for challenging an arbitration award.”

Particulars

(a) Order 22 of the High Court (Civil Procedure) Rules, 1977 of Kaduna State applies exclusively to an arbitration ordered by the Court in a cause or matter already before the court in exercise of powers conferred by section 90 of the High Court Law.

(b) The suit brought in the High Court in the instant case, are proceedings subsequent to an extra-judicial arbitration as opposed to arbitration ordered by the court in a suit pending before it.

(c) Order 22 rule 1 of the High Court Rules makes express reference to section 90 of the High Court Law and not the Arbitration Law Cap. 7 and any construction other than the plain and ordinary meaning of the said section 90 and order 22 will be doing extreme violence to the meanings of those provisions.

(d) At the time of enacting the Arbitration Law Cap. 7 in 1914, the applicable statute of General Application was the Arbitration Act of England 1889, which prescribed a time limit of six (6) weeks after publication of the arbitration award.

(e) For the learned Judges of the Court of Appeal to have imported the provisions of Order 22 of the High Court (Civil Procedure) Rules into the Arbitration Law was  ultra vices their powers and duty as same amounted to judicial legislation as opposed to judicial interpretation.

Learned Counsel for the appellant in his brief formulated two issues for determination thus –

“(i) Whether there is any lacuna in the Arbitration Law Cap. 7, Laws of Northern Nigeria, 1963, applicable in Kaduna State and/or the Kaduna State High Court (Civil Procedure) Rules, 1977, so as to warrant a recourse being made to the practice and procedure for the time being of the High Court of Justice in England by virtue of section 35 of the High Court Law Cap. 49, Laws of Northern Nigeria, 1963, applicable in Kaduna State, in the circumstances of this case?

(ii) Whether Order 22 of the Kaduna State High Court (Civil Procedure) Rules, 1977 dealing with arbitration ordered by the High Court in suits pending before it pursuant to section 90 of the High Court Law Cap. 49 can properly be said to also govern arbitration made otherwise than as contemplated by the said section 90 of the High Court Law?”

Clearly the above two issues are in substance exactly the same as issue 3 which the Court of Appeal had considered and decided against the appellant as illustrated above.

Arguing the issues together, counsel for the appellant in his brief submitted that Order 22 of the Kaduna High Court (Civil Procedure) Rules 1977 relates to an arbitration ordered by the Court in a suit pending before it and does not relate, as in the present appeal, to an arbitration which has been held and concluded but the award whereof is being challenged in court. In short, Order 22 does not apply to arbitration made upon a submission by the parties which falls squarely within the ambit of the Arbitration Law Cap. 7. He said the 1977 Rules have to be considered along with the provisions of section 35 of the High Court Law Cap. 49 Laws of Northern Nigeria, 1963 applicable in Kaduna State. And that although generally resort cannot be had to English Rules of Practice and Procedure where there are provisions in our local rules, English Rules can be resorted to where there are no local rules on a point as well as where the existing rules are not as comprehensive as they should be. It was then submitted that the 1977 Rules have made no provision in respect of practice and procedure for challenging an arbitration award pursuant to the right conferred by sections 11 & 12 of the Arbitration Law, and that in view of obvious lacuna, resort has to be made to the relevant practice and procedure for the time being of the High Court of Justice in England.

He referred to Order 22 Rules 1 & 2 of the 1977 Rules, Section 35 of the High Court Law Cap. 49 and to the following cases Laibru Ltd. v. Building & Civil Eng. Contractors (1962) 1 All NLR 387

Adigun v. Attorney-General of Oyo State (1987) 2 NWLR (Pt. 56) 197.

Ademola 11 v. Thomas (1946) 12 WACA 81

Paul v. George (1959) 4 FSC 198; (1959) SCNLR 510

Counsel also referred to the judgment of the Court of Appeal at pages 128 & 136.

It was further submitted that as far as Kaduna State is concerned, the English practice and procedure applicable in this case was the practice and procedure obtainable on 3rd November, 1955 being the date when the High Court Law Cap. 49 was enacted. He said the procedure and practice for challenging an arbitration award in this case is by originating Notice of Motion only. We were referred to – Onayemi v. Okunnubi (1965) 1 All NLR 362. Mid-west Govt. v. Armels Transport Ltd (1977) 10 SC 431 Akunnia v. Attorney-General of Anambra State & Ors (1977) 5 SC 161. Annual Practice, 1965 Vol. I Para 1994/14 Page 81. Russel on Arbitration 18th Edition Page 499/480, Nigerian Commercial Law & Practice 1983 Vol. 1, by Olakunle Orojo page 252.

Learned Counsel contended that the Arbitration Law nowhere prescribes a time limitation for challenging an arbitration award, while Order 22 Rule 1 makes express reference to Section 90 of the High Court Law from where it takes its roots. He said this case is concerned with an extra-judicial arbitration as opposed to that ordered by the Court in a cause or matter before it. It was submitted that both the High Court and the Court of Appeal were wrong to have imported into the Arbitration Law a time bar of 15 days. The duty of courts is to interpret the law and not to fill-in the gaps. Section 90 and Order 22 are both clear and unambiguous and the court is urged to give to those provisions their plain and ordinary meaning as opposed to any strained interpretation. The office of a Judge is jus dicere not jus dare. The following cases were cited in support – Magor & St. Mellons R.D.C. v. Newport Corporation (1952) AC 189 at 191; IBWA. v. Imano (Nig.) Ltd (1988) 3 NWLR (Pt. 85) 633; Jammal Steet So ucturesLtd. v. A.C.B. (1973) 1 All NLR(Pt.II) 208. Ohuka v. The State. (1988) 1 NWLR (Pt. 72) 539.

It was also submitted that the Arbitration Law deals in general terms with arbitrations upon submission by the parties while section 90 and Order 22 specifically provide for arbitration upon a reference by the court in a suit before it. Being a subsequent specific legislation section 90 and Order 22 should be construed as excluding or delimiting the application of the Arbitration Law. The rule of interpretation is that a special provision is exempted and taken out of the general provision which would therefore not apply. He cited in support – Martin Schroder & Co. v. Major & Co. Ltd. (1989) 2 NWLR (Pt. 101) 1 Akpan v. State (1986) 3 NWLR (Pt. 27) 225, Orubu v. N.E.C. (1988) 5 NWLR (Pt. 94) 323, Governor of Kaduna State & Ors. v. Kogoma (1982) 6 SC 87; (1982) 3 NCLR 206

It was further submitted that at the time of enacting the Arbitration Law in 1914, the applicable English Statute of general application on arbitration was the Arbitration Act of England 1889 and that under the English Act, an application to remit or set aside an award must be made within six (6) weeks after the award has been published. It was therefore a deliberate omission on the part of the law maker who was aware of the English Law on the matter not to impose anytime limitation. He said the decision of this Court in United Nigeria Insurance Company Ltd. v. Leandro Stocco (1973) 1 All NLR (Pt.1)168 which decided virtually the same issue as in the present appeal should be distinguished as inapplicable because of the provision of Order 22 Rule 1 which expressly excluded the rules from being applicable to an arbitration on a submission. We were urged to allow the appeal and set aside the decisions of the lower courts.

Counsel for the respondent in reply submitted that the Court of Appeal was right when it held that the suit before the High Court was time barred by virtue of Order 22 Rule 12 of the 1977 Rules in that the suit was brought outside the 15 days after the publication of the award. He said an arbitration embarked upon by Submission of parties has the same effect as if it is a reference by a court pursuant to section 90 of the High Court Law. He said although no rules of court have been made pursuant to the Arbitration Law, Order 22 Rule 12 which relates to arbitration proceedings ordered by court is by implication applicable to arbitration on submission by the parties and that English rules will not apply. That the artificial distinction between arbitration ordered by court as prescribed in section 90 and order 22 and arbitration on submission under the Arbitration Law is a distinction without a difference. He said there was no lacuna anywhere in the High Court Law or the 1977 Rules. That the Arbitration Law is “a law to provide for the reference and submission of disputes to arbitration,” while Order 22 Rule 12 prescribes a time limit of fifteen days within which to apply to set aside an award. Learned counsel referred to sections 13 & 18 of the Arbitration Law and said it was clear that every arbitration is to be regarded as if it were pursuant to a submission. The rules made under Order 22 should therefore be regarded as having been made in respect of an arbitration pursuant to a submission. He said Order 49 Rule 13 of the High Court of Lagos State (Civil Procedure) Rules which is in pari materia with Order 22 Rule 12 of the 1977 Rules herein came up for interpretation in the case of U.N.I.C. Ltd. v. Leandro Stacco (supra), and this Court held that the rules were applicable to both an arbitration on submission and arbitration ordered by court and that the time bar of 15 days applied. The court was asked to follow that precedent and dismiss the appeal.

In the consideration of this appeal the starting point (and possibly the stopping point too), will be the case of U.N.I.C. Ltd v. Stocco (supra) which both sides cited in their briefs as having decided virtually the same issue as in the present appeal even though the appellant said it is distinguishable and inapplicable to the instant case. Being a decision of this court I am bound to follow it once it is found to be applicable.

Now, in the Leandro Stocco case, the plaintiff sought leave to enforce an award whereupon the defendants some six weeks after publication of the award, applied for an order setting it aside of remitting it to the arbitrator for certain reasons. The trial Judge held that the application to set aside or remit the award was out of time since it was not within 15 days after publication of the award. On appeal to this Court, it was held inter alia that the trial Judge rightly held that the application to set aside the award or remit it to the arbitrator is statute-barred under Order 49 Rule 13 of the Lagos State High Court (Civil Procedure) Rules. Delivering the judgment of the Court, Elias C.J.N. stated thus –

“………………. learned counsel for the appellants, in arguing ground 1, contended that their application was not made out of time, as found by the learned trial Judge since, according to him, Order 49, Rule 13 of the Lagos High Court Rules must be read subject to Order 49, Rule 1 which says that parties desirous of referring a matter in difference to the arbitrator, may do so at any time. He further contended that, under the Arbitration Act itself, there is no provision setting out any time-limit within which an application to set aside an award ought to be brought, and that section 12 of the Act sets no time-limit to cases arising within Lagos State. We think that there is no merit in this argument and that the learned trial Judge is right in applying Order 49, Rule 13 of the Lagos High Court Rules in holding that the application was out of time.”

I also hasten to think that there is no merit in the submissions of learned appellant’s counsel in this case as brilliant and forceful as they sounded. Counsel on both sides agree that Order 49 Rule 13 of the Lagos High Court Rules is pari materia with Order 22 Rule 12 of Kaduna High Court Rules. The two rules respectively prescribe a time limit of 15 days for applying to set aside an award. The Arbitration Act Cap. 13 Law, of the Federation of Nigeria and Lagos 1958 applicable in Lagos State is also in pari materia with the Arbitration Law Cap. 7 Laws of Northern Nigeria 1963 applicable in Kaduna Slate. Section, 3, 4 and 18 of the Arbitration Law (See equivalent sections of the Act.) read –

3. A submission, unless a contrary intention is expresses therein, shall be irrevocable, except by leave of the Court or a Judge or by mutual consent, and shall have the same effect in all respects as if it had been made on order of court.
4. A submission, unless a contrary intention is expressed therein, shall be deemed to include the provisions set forth in the schedule, so far as they are applicable to the reference under the submission.

18. This law shall apply to every arbitration under any Act or Law passed before or titter the commencement of this Law as if the arbitration were pursuant to a submission, except in so far as this Law is inconsistent with the Act or Law regulating the arbitration or with any rules of procedure authorized or recognized by that Act or Law.”

And the word “submission” is defined under section 2 of the law as well as the Act thus-

“submission” means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not.”

All the foregoing provisions show that while every arbitration under any Act or Law (including Kaduna State high Court Law), is to be regarded as if the arbitration is pursuant to a submission, an arbitration embarked upon on a submission shall also have the same effect as if it is a reference by a court. Therefore the submission of appellant a counsel to the effect that Order 22 Rule 12 and the decision in U.N.I.C. v. Leandro Stocco (supra) would not apply simply because Order 22 Rule 1 made reference only to an arbitration ordered by court under section 90 of the High Court Law, is clearly misconceived and untenable. It must be stressed again that it is obvious from the clear language of the Arbitration Law that an arbitration embarked upon on a submission shall have the same effect as if it is a reference by a court pursuant to section 90 of the High Court Law. So it is in this case as it was in U.N.I.C. v. Stucco (supra). Consequently there is no lacuna either in the Arbitration Law or in the 1977 Rules as contended by the appellant.

I have therefore come to the conclusion that since the originating notice of Motion herein was not filed within 15 days as stipulated by Order 22 Rule 12 of the Kaduna State High Court (Civil Procedure) Rules, it was incompetent and rightly struck-out by the trial High Court as confirmed by the Court of Appeal. The appeal therefore fails and it is accordingly dismissed. The respondent is awarded costs assessed at N1,000.00 only.

UWAIS, JSC.

I have had the opportunity of reading in draft the judgment read by my learned brother, Kutigi, JSC.I entirely agree with the judgment. I adopt it as mine and do not wish to add anything. The appeal, therefore, fails and it is accordingly, dismissed with N1,000.00 costs in favour of the Respondent.

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Other Citation: (1994) LCN/2599(SC)