Hon. Emmanuel Oseloka Araka V. Ambrose Nwankwo Ejeagwu (2000)
LAWGLOBAL HUB Lead Judgment Report
I. KATSINA-ALU, J.S.C.
This is an appeal from the majority decision of the Court of Appeal which dismissed the appellant’s appeal to that Court.
The facts of this case are simple and straight forward. The applicant Hon. E. O. Araka by an originating summons commenced an action for the recognition and enforcement of an award. The award was made pursuant to the Deed of Lease dated 9th October, 1975. Clause 4(a) of he Deed of Lease provides for revision of the reserved rent every fifteen years while clause 4(b) provides as follows:
“If the Lessor and Lessee are unable to agree as to the rent to be paid upon revision as aforesaid, the matter shall be referred to an Arbitrator agreed upon by them or in the absence of such agreement to an arbitrator appointed by a Judge of the High Court.”
Sequel to the liability of the parties to agree upon an arbitrator as provided for under Clause 4(b) of the Lease Agreement (Exhibit 1), Olike, J., of the High Court, Onitsha, on the 24th of January, 1994 appointed an arbitrator, Mr. Damian Okolo, to look into the dispute and fix the rent payable. The arbitrator fixed the sum of N7,250.00 as the rent payable per annum by the respondent in respect of the appellant’s property at No. 109 Upper Iweka Road, Onitsha. This award was published on the 8th of September, 1994.
The appellant Hon. E. O. Araka by an originating summons filed on 6th February, 1995 applied to the High Court for the recognition and enforcement of the award and for the payment of the arrears of rent pursuant to Section 31 of the Arbitration and Conciliation Act, Cap. 19 Laws of the Federation of Nigeria 1990.
Meanwhile on 21 April, 1995, the respondent filed a counter affidavit opposing the enforcement of the award on the ground that the arbitrator acted outside his jurisdiction. Again, on 25 April, 1996 the respondent filed on application under S. 30(1) of the Arbitration and Conciliation Act (Cap. 19) Laws of the Federation of Nigeria 1990 praying that the award be set aside, or, in the alternative, be remitted to the arbitrator or another arbitrator.
After hearing the submission of counsel for and on behalf of the parties, the learned trial Judge remitted the matter to the arbitrator, Mr. Damian Okolo for reconsideration, upon the terms of clause 4(c) of the Lease Agreement.
The appellant’s appeal to the Court of Appeal was dismissed. This appeal is against the decision of the Court of Appeal.
Pursuant to the Rules of this court, the parties filed and exchanged their respective briefs of argument. In the appellant’s brief the following issues are set down as calling for determination in this appeal, to wit:
- Were the learned majority Justices of the court of Appeal not grossly in error in striking out Ground 2 of the Grounds of Appeal on the erroneous view that counsel for the “applicant” (meaning appellant) had in paragraph 1.7 of his “introductory Remarks” in the Appellant’s Brief of Argument made an “application” to that effect
- Were the learned majority Justices of the Court of Appeal not grossly in error when they were of the view that the complaint contained in Ground 2 of the Grounds of Appeal to wit – that the respondent’s Motion on Notice for setting aside the award of the Arbitrator, which was clearly statute-barred, was not a complaint touching the competency of the Motion and thereby wrongly struck out the said Ground 2 of the Grounds of Appeal
- Were the learned majority Justices of the Court of Appeal not grossly in error when they held that Ground 2 of the Grounds of Appeal had been abandoned by appellant’s counsel in his Brief of Argument
- Were the learned majority Justices of the Court of Appeal not under a duty to consider and determine all issues placed before them
- Were the learned majority Justices of the Court of Appeal not grossly in error when they held that the respondent’s Motion on Notice for setting aside the arbitrator’s award which was filed in the appellant’s suit for the recognition and enforcement of the award was not incompetent
The respondent, for his part, has formulated the following issues in his brief, that is to say-
- Whether or not the Court of Appeal was right in holding that with the exception of ground 1 of the grounds of appeal filed before it the rest of the grounds of appeal were abandoned by the appellant as clearly stated by Counsel to the appellant.
- Whether or not the Court of Appeal was right to have held that the respondent’s application to set aside the award was competent.
I think the real question for determination in this appeal is whether the Respondent’s motion on notice filed on 25 April 1995 for an order setting aside the arbitrator’s award is competent or not. As I already indicated the arbitrator gave his award on 8 September, 1994. The motion on notice to set aside this award was brought on 25 April 1995, a little over 7 months from the date the award was published. This motion was brought under Section 30(1) of the Arbitration and Conciliations Act Cap. 19 Laws of the Federation of Nigeria 1990. After taking the submissions of counsel for the parties, the learned trial Judge in a reserved ruling found as follows:
“I hold that the arbitrator went outside the limits of his jurisdiction as provided for in clause 4(c) supra. To that extent the arbitrator misconducted himself ………………..It follows that the application would be brought under Section 30 of the Act, and subsequently is not statute barred.”
The learned trial Judge then remitted the matter to the arbitrator for reconsideration upon the terms of clause 4(c) of the Lease Agreement.
The plaintiff appealed to the Court of Appeal, upon 4 Grounds of Appeal. Grounds 1 and 2, shorn of their particulars, read as follows:
“1. The learned trial Judge erred in law in hearing the defendant’s motion to set aside the arbitration award when the motion itself was grossly incompetent.
- The learned trial Judge erred in Law in granting the defendant’s application to set aside or remit the award when the application was statute barred.”
In para. 1.7 of the appellant’s brief, learned counsel for the appellant indicated that the appellant:
“…….will at the hearing of the Appeal rely on the Grounds of Appeal dealing with the competency of the respondent’s motion on notice abandoning the rest of the Grounds of Appeal as filled.”
Thereafter the appellant formulated three issues for determination by the Court based on grounds 1 and 2. In other words the appellant abandoned grounds 3 and 4 of the grounds of appeal. His issue No. 1 relates to ground 2 and it reads:
“(1) Whether the learned trial Judge had not grossly erred in law when he granted the respondent motion on notice filed some (7) seven months after the publication of the award and which was clearly statute barred pursuant to sections 29 and 30 of the Arbitration and Conciliation Act 1988 Cap.19 Laws of the Federation of Nigeria, and Order 29 Rule 13 of the Anambra State High Court Rules, 1988 and, or section 223 of the Anambra State Contract Law 1986 Cap. 32 Vol. 2 Revised Laws of Anambra State of Nigeria 1991.”
The Court of Appeal in its judgment however, observed as follows:
The concomitant of this application is that all the grounds of appeal are abandoned except the ground challenging the competency of the respondent’s motion and are struck out: Odiase & Anor. v. Vincent Agwo (1973) 11 S.C. 71, 76. The appellant is, therefore, left with only one ground of appeal which calls into question the competence of the respondent’s motion on the strength of which the trial Judge seemingly found for the respondent.”
The only or remaining ground of appeal is ground 1, and it reads as follows:-
“The learned trial Judge erred in law in hearing the defendant’s motion to set aside the arbitration award when the motion itself was grossly incompetent.
(a) The only application before the Court was the one contained in the originating summons by the Plaintiff dated January 27, 1995, for the recognition and enforcement of the Award made by the Arbitrator, Mr. Damian Okolo on September 8, 1994.
(b) No originating summons was ever filed by the defendant nor was any motion supported by an affidavit filed by the defendant to set aside or remit the Award of the Arbitration.
(c) The only affidavit evidence before the Court was the affidavit in support or in opposition of the originating summons for the recognition and enforcement of the Award.
(d) The motion paper filed by the defendant for setting aside the Award was most unprecedented.
(e) The said motion paper bore the court suit number 0/67/95 which is the suit number assigned to the plaintiff’s originating summons when it was filed in January 1995. No court number was ever assigned to the motion paper filed by the defendant besides the court number assigned to the plaintiff’s originating motions.”
In effect the court below struck out ground 2, 3 and 4. I have, earlier on, in the course of this judgment set out ground 2 of the grounds of appeal. But for ease of reference I shall read it again. It states:
“The learned trial judge erred in law in granting the defendant’s application to set aside or remit the award when the application was statute barred.
In discountenancing issue No. 1 which relates to this ground (i.e. ground 2) the Court of Appeal observed that:
“The formulation goes to no issue or is irrelevant to the existing ground of appeal and the appellant, having withdrawn or abandoned all the other grounds of appeal, apart from the one attacking the competence of the respondent’s motion on notice. That issue for that reason is discountenanced.”
The appellant has attached the decision of the Court of Appeal striking out ground 2. First, it was said that the appellant never applied to have the ground struck out. Secondly, it was clearly indicated in para. 1.7 of the appellant’s brief that only the grounds of appeal attacking the competence of the motion on notice would be argued. Accordingly issues were formulated on grounds 1 and 2. In effect only grounds 3 and 4 were abandoned. It was pointed out that the respondent also formulated one issue based on ground 2. Both parties proffered arguments on the issues relating to ground 2 of the grounds of appeal.
An appellant is at liberty to withdraw or abandon any of his grounds of appeal. He may withdraw a ground of appeal by applying to the Court to do so. In that case the court will then strike out the ground in question. However where an appellant does not formulate an issue in his brief of argument to cover a ground of appeal, that ground would be deemed abandoned even where arguments have been proffered on it. An issue for determination must be based on a ground of appeal. Where therefore an issue raised is not based on or does not arise from the grounds of appeal, the issue will be discountenanced by the court: See Bakare v. Lagos State Civil Service Commission & Anor. (1992) 8 NWLR (Pt. 262) 641; Aja v. Okoro (1991) 7 NWLR (Pt. 203) 260; Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139; Modupe v. State (1988) 4 NWLR (Pt. 87) 130.
In the present case the appellant had indicated in his brief of argument that he would argue only the grounds of appeal which challenged the competence of the motion. Thereafter he raised issues on grounds 1 and 2 and proffered arguments and submissions on them. There were 4 grounds in all. The respondent also raised issues on grounds 1 and 2 and advanced arguments thereon. It was therefore abundantly clear that the appeal was fought on the basis of grounds 1 and 2. In other words the appellant did not abandon ground 2 of his grounds of appeal.
The court below raised the issue of abandonment of ground 2 suo motu without giving counsel for the parties an opportunity to be beard on the point. When an issue is not placed before an appellate court, it has no business whatsoever to deal with it. Also, on no account should a court of law raise a point suo motu no matter how clear it may appear to be and proceed to resolve it one way or the other without hearing the parties, particularly the party that may be adversely affected as a result of the point so raised. If it does so, it will be in breach of the parties’ right to fair hearing. In the instant case, the abandonment of ground 2 was not an issue before the court below. In fact the said ground 2 was the main thrust of the appeal. The Court of Appeal was therefore in grave error in striking out ground 2 – see Olatunji v. Adisa (1995) 2 NWLR (Pt. 376) 167; Oro v. Falade (1995) 5 NWLR (Pt. 396) 385; Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267.
That is not all. By striking out ground 2, the Court below was of the view that that ground did not challenge the competence of the respondent’s motion on notice to set aside the arbitrator’s award. The complaint in this ground of appeal is that the Motion on notice to set aside the award was brought more than 7 months after the publication of the award and that being so, the application was clearly statute-barred.
It is not in dispute that the arbitrator gave his award on 8 September, 1994. It is also not in dispute that the motion on notice to set aside this award was brought on 25 April, 1995 a little over 7 months from the date the award was published.
Now section 29(1) of the Arbitration and Conciliation Act, Cap.
19 Laws on the Federation of Nigeria, 1990 provides as follows:
“29(1) A party who is aggrieved by an arbitral award may within three months:
(a) from the date of the award, or
(b) in a case falling within section 28 of this Act from the date the request for additional award is disposed of by the tribunal, by way of an application for setting aside the award in accordance with subsection (2) of this section.”
Section 30 of the same Act provides that where an arbitrator has misconducted himself, or where the arbitral proceedings or award has been improperly procured, the court may on the application of a party set aside the award. The present application is predicated on the misconduct by the arbitrator. The learned trial judge in his ruling held that:
“It is clear that section 30 did not place any time limit within which an aggrieved party may recourse against the award by an arbitrator. I hold therefore that the application is not statute barred if it is proved that the arbitrator exceeded the terms under which he was to arbitrate.”
Akpabio, JCA in his dissenting judgment rightly, in my view, held as follows:
“…………….I hold that the learned trial judge Amaizu, J. was in error when he held that the application of the Respondent to set aside the award was not statute barred, merely because the application, was made under S. 30(1) and not 29(1) of the Arbitration and Conciliation Act, 1990. In my view it does not matter under what section of the Act, an application is made, because there is only one period of limitation prescribed in the Act.”
Indeed there is only one period of limitation prescribed under the Act. Section 29 of the Act, which I have already reproduced provides that a party who is aggrieved by an arbitral award may within three months from the date of the award apply to the court to set aside the award. It is pertinent to point out here that the application the subject matter of this appeal, was for the setting aside of the arbitral award. Section 30 of the Act only sets out circumstances under which an application to set aside an arbitral award thereunder may be brought. This is why, I think it is absurd to suggest that section 30 should stipulate a time limit of its own for bring the application for which section 29(1) has already provided a time frame.
A complaint that an action is statute-barred, is unarguably a complaint against the competency of the action. In Commerce Assurance Ltd. v. Alli (1992) 3 NWLR (Pt. 232) 710 this Court per Belgore, JSC. at p.725 advised:
“Where a person affected by an arbitration award wishes to have it set aside, he must apply timeously, and before the successful party takes steps to enforce the award or have a judgment entered in his favour in terms of the award.”
See also House Development Ltd. v. Scancila Contracting Co. Ltd. (1994) 8 NWLR (Pt. 362) 252. This was an arbitration matter. The parties submitted this dispute to an arbitrator pursuant to an arbitration clause in their written contract. The arbitrator made and published an award on 28 August, 1985. On 23 October, 1985 the appellant filed an originating notice of motion of the Kaduna State High Court to set aside the award and/or remit it to another arbitrator for reconsideration. A preliminary objection was raised by the respondent that the application was incompetent on the ground that it was statute-barred because it was filed outside the 15 days allowed by order 22 rule 12 of the Kaduna State High Court (Civil Procedure) Rules 1977. The learned trial judge upheld the preliminary objection and struck out the motion.
The appellant’s appeal to the Court of Appeal was dismissed. The appellant further appealed to the Supreme Court. This Court per Kutigi, JSC., held at p. 262 thus:
“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 and confirmed by the Court of Appeal.”
In the present case, although the award was made on 8th of September 1994, the motion to set it aside was brought on 25th April, 1995. Consequently, since the motion on notice to set aside the award was filed long after three months in violation of section 29(1) of the Arbitration and Conciliation Act, it was incompetent and the trial High Court had no jurisdiction to entertain it.
In the result this appeal succeeds and I hereby allow it. I set aside the decision of the trial Court and the Court of Appeal. Consequently I strike out the Respondent’s motion on notice filed on 25th April 1995. I hereby order the trial High Court to re-list the Appellant’s motion on notice filed on 6th February, 1995 for the recognition and enforcement of the award and for the payment of the arrears of rent for hearing and determination. I award costs of N10,000.00 in favour of the Appellant.