Nwagbara V. Jadcom Ltd (2021)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

The Appellant, a Quantity Surveyor, had a dispute over payment of agreed commission payable to him by his principal, the Respondent herein, in respect of a building contract. While the Appellant insisted on payment of his commission on the two phases of the building contract awarded by the third party to the Respondent, irrespective of whether or not the contracts for the two phases were actually awarded; the Respondent posited that the payment of the Appellant’s commission or fees was, as per their agreement, payable only if and when the contract for the second phase was awarded to the Respondent.

There was no dispute about the first phase. The contract for that phase was awarded and the Appellant was paid his fees.

The third party for some financial constraint did not award the contract for the second phase to the Respondent.

The agreement between the Appellant and the Respondent had an arbitration clause.

​As the parties herein could not amicably resolve their dispute, the Appellant commenced the action in the High Court of the Federal Capital Territory (FCT) for his fee. The Respondent, in consequence thereof, raised the issue of the arbitration clause. The matter was then referred to arbitration, and the suit was struck out.

The Arbitration panel made its award. The Respondent aggrieved thereby proceeded to the FCT High Court to have the award set aside. The Appellant, in response to this move, rather than wait for the hearing and determination of the Respondent’s action seeking to set aside the arbitration award, filed a fresh and parallel suit No. FCT/HC/CV/809/2000 with a motion to enforce the award. On the Respondent’s objection that the suit, No. FCT/HC/CV/809/2000, was an abuse of the process of the Court; the High Court (Mukhtar, J (as he then was)) agreed with him and dismissed the suit for abuse of Court’s process. The Appellant appealed the decision. He later withdrew the appeal.

The Appellant then filed another application for enforcement of the arbitral award. Again, the Respondent objected. Another Judge of the FCT High Court (H. Baba, J) heard the objection and ruled that, in view of the decision of Mukhtar, J, he was functus officio and would not constitute his Court an appellate Court to review Muhktar’s decision. The Appellant appealed that decision (of H. Baba, J) to the lower Court.

Abdu Aboki, JCA (as he then was), whose judgment the other members of the lower Court (Adekeye and Peter-Odili, JJCA as they were then) concurred, held, agreeing with the trial FCT High Court, that the Appellant was guilty of abuse of judicial process on the grounds that he, having –

– filed an appeal which he did not pursue but later withdrew

– with the consent of the Defendant and filed a Motion on Notice before another Court seeking identical reliefs as those earlier refused…

In this appeal, the Appellant at the (trial) Court, as Applicant in the application No. FCT/HC/M/1749/2001 (had) sought to relitigate the issue which have been dismissed in the previous suit No. FCT/HC/CV/809/2000, in which both parties are the same and the subject matter and the reliefs are the same.

It is therefore most improper for the Appellant to have filed the Motion on Notice NO. FCT/HC/M/1749/2001 dated 7th February, 2002, and — it is an abuse of process.

​The Appellant expressed his disagreement and grievance with the decision of the lower Court (delivered on 29th November, 2007) in the four grounds of appeal, contained in the Notice of Appeal, filed on 19th February, 2008. The Notice of Appeal, filed 92 days from the date of decision on 29th November, 2007, was filed out of time: the periods prescribed by Section 27(2)(a) for giving Notice of Appeal being “fourteen days against an interlocutory decision and three months in an appeal against a final decision”.