Kwara State Ministry Of Health & Anor V. Mallam Issah Electrical Enterprises (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the Kwara State High Court of Justice, Coram Gbadeyan (J) delivered on the 20th day of November, 2007 wherein the learned trial Judge overruled the Preliminary Objection brought by the appellants and consequently entered judgment in favour of the respondent; the appellants having conceded that they are indebted to the respondent (claimant) and are, therefore not contesting the amount as claimed by the respondent.

The learned trial judge held inter alia as follows:

“In his reply, Mrs. Abdulrahaman conceded that they are indebted to the claimant and are therefore not contesting the amount as stipulated by the claimant.

I am satisfied that there is no iota of dispute to be referred to any arbitrator in this matter.

The objection is, therefore overruled.

In the absence of any defence, judgment is accordingly entered for claimant as per the Writ of Summons.”

Dissatisfied with the decision of the learned trial Court, the appellants who were defendants at the lower Court filed a notice of appeal on 6th day of December, 2007 consisting of three grounds and sought for the following reliefs:

“(i) To set aside the decision of the trial court in which the trial court overruled the objection of the Defendant/Appellant and to hold that there existed a dispute which should be referred first to an arbitrator and not the court.

(ii) To set aside the judgment of the trial court as it is premature since the case has not gotten to the hearing of the substantive suit.”

In compliance with the rules of this Court, briefs were exchanged by the respective parties and in a brief settled by Saka Isau (SAN) Attorney-General of the state, on behalf of the appellants, two issues are distilled from the three grounds and they are:

(i) ISSUE NO. 1

Whether or not the lower Court was right to have overruled the objection of the Appellants in view of the arbitration clause in exhibit 1 attached thereto which was made subject to the arbitration and Conciliation Act of 1988. (Relate to ground 1 & 2)

(2) ISSUE NO. 2.