Transnational Corporation Of Nigeria PLC. V. Ankor Pointe Integrated Limited (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A. (Delivering the Lead Ruling)

The applicant has a pending appeal in this Court against the decision of the Federal High Court in Suit No. FHC/L/CS/448/2010, and is praying this Court for leave to raise and argue a fresh issue in the appeal, to wit,

“whether the lower court properly exercised jurisdiction to appoint an arbitrator when a condition precedent for the exercise of that jurisdiction had not been fulfilled”; leave to amend its original notice of appeal; and extension of time within which to file its brief of argument in the appeal.

The grounds upon which the application is brought are as follows –

a. A condition precedent to arbitration under Clause 13 of the purported memorandum of understanding between the parties is that the parties must have failed to resolve their disputes (if any) in a negotiation initiated by either party by written invitation. In utter neglect of the above condition precedent, the respondent purported to commence arbitration proceedings against the appellant on 19/11/2009.

b. The non-fulfillment of this condition precedent meant that the lower court lacked the jurisdiction to appoint an arbitrator in

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furtherance of the arbitration – see Madukolu v. Nkemdilim (1962) NSCC 374.

?c. Although this jurisdictional issue was inadvertently not raised or argued by the appellant at the lower court, jurisdiction being a threshold and fundamental issue to adjudication can be raised before this Honourable Court even for the first time.

d. A new ground of appeal is necessary to support this fresh jurisdictional point.

e. The time limited for the filing of the appellant’s brief of argument in this appeal has elapsed.

f. The leave of this Honourable Court is required to –

i. Raise and argue the issue as articulated at Relief 1 hereof, as a fresh issue.

ii. Amend the pending notice of appeal to incorporate a new ground covering the new issue.