Kwara State Govt & Ors V. Guthrie (Nig) Ltd (2022)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C. 

The respondent herein commenced an action at the High Court of Kwara State (hereinafter, simply, referred to as “the trial Court”) by way of Writ of summons under the undefended list procedure against the appellants. It claimed for the payment of the sum of N586,206,883.33 as money due to it.

Upon being served with the writ of summons and accompanying affidavit, the appellants joined issues with the respondent by filing a Notice of Intention to defend together with a supporting affidavit. They urged the trial Court to transfer the suit to the general list for hearing on the merits. The appellants, simultaneously, raised a preliminary objection to the hearing of the suit. They prayed the Court to strike out the suit for want of jurisdiction or stay proceedings thereon, and refer the matter to arbitration. They drew the trial Court’s attention to the existence of an arbitration clause in the agreement between the parties. In response, the respondent filed a counter-affidavit in opposition to this application.

​The trial Court, by its ruling delivered on March 23, 2017, upheld the appellants’ preliminary objection, thereby declining jurisdiction. It referred the suit to arbitration.

Dissatisfied with the ruling of the trial Court, the respondent appealed to the lower Court via a Notice of Appeal filed on April 20, 2017, containing four Grounds of Appeal.

In its judgment, delivered on November 20, 2017, the lower Court, unanimously, allowed the appeal and set aside the decision of the trial Court. The lower Court then ordered that the suit be remitted to the trial Court for a re-hearing by another Judge.

Dissatisfied, the appellants then appealed to this Court via a Notice of Appeal filed on December 20, 2017, containing four Grounds of Appeal.

The appellants, by their brief of argument filed on October 15„ 2018, distilled two issues for determination, to wit:

1. Whether the Court below was right when it held that the filing of a Notice of intention to defend contemporaneously with the preliminary objection by the appellants amounted to taking steps in the light of the provisions of Section 5 (2) of the Arbitration and Conciliation Act?
2. Whether the Court below was in order to have relied on the decisions in Obembe v Wemabod Estates (1977) LPELR – 2161 and SCOA Nig. Plc v Sterling Bank Plc (2016) LPELR – 40566 (sic) to order the re-assignment of the case to another judge of the trial Court?

On its part, the respondent by its brief of argument filed on December 14, 2018, adopted the appellants’ issues for determination by this Court.

ISSUE ONE

Whether the Court below was right when it held that the filing of a Notice of intention to defend contemporaneously with the preliminary objection by the appellants amounted to taking steps in the light of the provisions of Section 5 (2) of the Arbitration and Conciliation Act?

APPELLANT’S SUBMISSIONS

Ayinla Salman Jawondo, SAN, learned Attorney General of Kwara State, for the appellants, submitted that, since there is no express provision for filing a Memorandum of Appearance under the Undefended list procedure, the Notice of Intention to defend and affidavit required to be filed by Order 23 Rule 3 (1) of the Kwara State High Court (Civil Procedure) Rules, 2005, are akin to entering appearance but do not amount to taking of steps.

​