Nigeria Produce Marketing Company Limited V. Companie Noga D’importation Et D’exportation Societe Anonyme (1971)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C. 

In Suit No. LD/98/68 in the Lagos High Court the plaintiffs’ writ read:

“The plaintiffs’ claim against the defendants is for the sum of 61,209pounds.13s.10d being amount due from the defendants to the plaintiffs as at January 31st, 1968 for breach of contract arising from the fact that the defendants used (Nigerian pounds) as money of account in calculating what was due and payable to them for the price of produce bought by the plaintiffs when, by the contract binding between the parties, sterling (English pounds) should have been used as money of account.”

The return date fixed by Adebiyi, Ag. J. (as he then was) was March 18th, 1968.

On that date before Adebiyi, Ag. J. the court record reads:

“Chief F.A.A Williams for the Plaintiffs. Mr. King for Mr. Lardner for the defendants. Chief Williams: Pleadings; 30 days for statement of claim.

Court: Pleadings ordered, the plaintiffs to file statement of claim within 30 days and the defendants to file statement of defence within 30 days of service of the statement of claim. Return date May 27th, 1968.”

The plaintiffs duly filed their statement of claim on April 17th, 1968, but on May 16th, 1968, the defendants filed a motion asking –

”for an order staying all further proceedings in this suit pending a reference and determination by arbitration of the claims herein of the plaintiffs as provided by the conditions of sale of the Seed, Oil, Cake and General Produce Association.”

This motion came on for hearing before Adedipe, J. who in June 17th, 1968 gave his ruling in which he dismissed the motion, as he held that the defendants had taken a step in the proceedings and so were debarred from asking for a stay in order to refer the matter to arbitrationn by virtue of s.5 of the Arbitration Act (cap. 13). The learned trial Judge also ordered the defendants to file a statement of defence within 30 days of the ruling. Against that decision the defendants have appealed to this court.

The appeal raises an issue within a very narrow compass but it is of considerable procedural importance, and it is whether in the circumstances of this case a step has been taken by the defendants in the proceedings so as to debar them from applying for a stay of the proceedings inorder to refer the matter to arbitration within the meaning of s.5 of the Arbitration Act, which reads:

“If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any court against any other party to the submission, or any other person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that court to stay the proceedings, and that court if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings.”

The section is in all material particulars identical with s.4 of the English Arbitration Act, 1889 (which replaced s.11 of the Common Law Procedure Act, 1854) and about which there have been a series of English decisions, to some of which we shall refer later in this judgment.

Mr. Lardner for the appellants submitted that all that happened according to the record on March 18th, 1968 was that the defendants, through their counsel Mr. King (holding Mr. Lardner’s brief), entered an appearance to the writ so as to avoid judgment being given against them. Chief Williams, counsel for the plaintiffs, then asked for pleadings and for 30 days within which to file the statement of claim. Whereupon the learned trial Judge, without calling upon counsel for the defendants, ordered the plaintiffs to file the statement of claim within 30 days and ordered the defendants to file their statement of defence within 30 days of being served with the plaintiffs’ statement of claim. It was accordingly Mr. Lardner’s submission that counsel for the defendants took no action whatsoever on March 18th 1968, and that therefore the defendants had taken no step in the proceedings. Mr. Lardner conceded that, on the authorities, if the defendants had through their counsel asked for time within which to file the statement of defence then they would have taken a step in the proceedings, but as they did not so ask and the court acted suo motu they were not so bound. He relied on O. XXXII, r. 1 of the former Supreme Court (Civil Procedure) Rules (Laws of Nigeria, 1948, cap. 211) applicable in the High Court of Lagos State, which reads: