N. Onuselogu Enterprises Ltd V. Afribank (Nigeria) Plc (2005)

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SULEIMAN GALADIMA, J.C.A.

This is an appeal against the judgment of Agbo (J.) of the Enugu High Court, delivered on 16/11/2000, in an arbitration award in favour of plaintiff (hereinafter referred to as “the respondent”) in a claim brought against the defendant (hereinafter referred to as “the appellant”).

The case of the appellant is that he is an engineering contractor and customer of the respondent who had a fixed deposit of N18 Million which was given to the respondent as a collateral to secure an over-draft of N5 Million, which was later increased.

When disagreement arose about the state of the appellant’s account, both parties willingly submitted the dispute to arbitration by a legal practitioner. The arbitrator gave the appellant an award of N7,893,408.34 together with interest of 21% thereon from 1/9/94, till the date of judgment and 5% interest from then until the judgment sum is liquidated.

Being dissatisfied with this judgment, the appellant appealed to this court on six grounds, three with the notice of appeal and three added by leave of this court.

In the appellant’s brief dated and filed on 19/11/2003, the three issues for determination as framed therein are as follows:

“(1) Was the court below not in error in determining the suit of the plaintiff after it found that the parties submitted their dispute to an arbitrator who made an award?

(2) And as a corollary, was the court below not in error in not striking out the suit for being premature?

(3) In the alternative, if the suit was maintainable, was the court below not in error in awarding the sum of N7,893,804.34 with interest of 21% per annum to the respondent on the evidence before it, and the finding of the court thereon?”

Respondent submitted four issues for determination thus:

“1. Whether there was indeed arbitration previous to the suit between the parties within the meaning of the Arbitration & Conciliation Act, 19S5, Chapter 19, Laws of the Federation of Nigeria, 1990, which is to ask more specifically:

(a) Whether exhibit ‘E’ was in fact an arbitral award; and

(b) Whether the meetings between the parties of August 31, 1994, and September 1, 1994, constituted arbitration proceedings within the meaning of Arbitration & Conciliation Act, Cap. 19, Laws of the Federation of Nigeria, 1990.

2. Whether the learned trial Judge indeed found that there was arbitration between the parties within the meaning of the Arbitration & Conciliation Act, Laws of the Federation of Nigeria, 1990;
3. Whether the suit was indeed premature as a result of the clause giving defendant/appellant up to December 31, 1994, to pay up 30% of the difference in the parties respective book values of outstanding indebtedness.
4. Whether the respondent is not in fact entitled to the judgment sum of N7,893,408 with interest of 21% per annum to the respondent in the light of appellant’s admission vide exhibit ‘E’ that it owed the respondent the said sum.”

I have carefully considered the issues raised by the respective parties in their brief of argument. The 3 issues formulated by the appellant are apt and these arise for determination of this appeal.