Vf Worldwide Holdings Limited V. Dana Services Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Lagos State sitting in Lagos delivered on 27th of January, 2010 dismissing the suit before it.

The facts of this case are as stated by the Appellant in this case. It is as follows:

3. “The Appellant (V”FS) was awarded a contract by the Government of the United Kingdom to provide technological support services in Lagos Nigeria. The agreement was entered on 29th November, 2005, with a provision allowing VFS was to franchise/subcontract or outsource its business for this purpose in Nigeria to a local service provider.
4. Earlier, in anticipation of the support service contract from the High Commission of the Government of the United Kingdom in Nigeria, VFS and the Respondent (“Dana”) entered into a Cooperation Agreement dated November 15th 2005 (“the Agreement”). By the terms of the Agreement, VFS agreed to license Dano as a service provider to make use of VFS’ relevant intellectual property rights and property in providing technological and logistics support services to the British High Commission in Nigeria. The Agreement between VFS and Dano was co-terminus with the contract awarded by the British High Commission to VFS. The implication, as mutually understood by both parties, was that if the British High Commission terminated its contract with VFS at any time, then the contract between VFS and Dona also stands terminated.
5. It was also agreed between the parties that in the event of any dispute, the parties were to resort to arbitration, which shall be governed by Nigerian Law. The Agreement was also to be governed by and interpreted under Nigerian Law. By a letter dated March 2nd 2007, the British High Commission informed Dana that effective from 15th April 2007,Dana would no longer act as a sub-contractor for the British High Commission in Nigeria. The letter further stated that due to new developments in its contractual arrangements with its commercial partners, the developments in its contractual arrangements with its commercial partners the British High Commission required VFS to take complete control of all functions relating to visa application services. By letter dated 3rd April 2007, the British High Commission terminated the Agreement with VFS effective from April 14th 2007.
6. Upon the receipt of notice of the termination of VFS’ contract with the British High Commission, the contract between VFS and Dana was automatically terminated in line with term of the Co-operate Agreement. Accordingly, VFS by its letter dated 6th April, 2007 issued Dana a notice of termination effective from April 13th 2007. VFS also invited Dana for negotiations on the respective obligations of both parties under the Agreement.
7. The negotiations between VFS and Dana were, however, truncated midway, as the parties were unable to agree on their respective obligations.
8. In breach of Clauses 35 and 36 of the Agreement that specified for arbitration.

Dana commenced action at the Federal High Court, Lagos in Suit No: FHC/L/CS/314/2007 against VS and its affiliate company,VFS Global Services PW Limited seeking declaratory and injunction reliefs against VFS for breach of the contract.

9. Dana obtained interim orders against VFS and VFS Global Services PW Limited in respect of the running of its business activities. The Federal High Court heard VFS’ motion of 23rd April, 2007 to vacate the interim order along with the Dana’s motion for interlocutory injunction dated 4th April, 2007.
10. On 30th May 2007, the Federal High Court in considering the facts as adduced by VFS in its motion of 23rd April, 2007 set aside the ex-parte order it had earlier granted and also refused Dana’s motion for interlocutory injunction. Dana consequently appealed the decision of the Federal High Court vacating the interim orders by its Notice of Appeal dated 13th June, 2007. Dana also filed a motion at the Federal High Court seeking an injunction pending the determination of its appeal.
11. Pursuant to its objection to the jurisdiction of the Federal High Court in its Statement of Defence, VFS filed a motion dated 10th July 2007 for the hearing and determination of its objection. The Federal High Court considered VFS motion of 10th July, 2007 along with Dana’s motion for injunction pending appeal and held that it had no jurisdiction to hear the suit and dismissed the suit.
12. Following the dismissal of its case by the Federal High Court, Dana served VFS with a Notice of Arbitration by its letter dated August 4, 2008. VFS in response to the Notice of Arbitration wrote to Dana stating its opposition the Arbitral proceedings.
13. VFS’ view was that arbitration was inconsistent with the legal positions of the parties. As such, it requested a judicial interpretation of the rights of the parties to arbitrate by the Originating Summons dated September 8th 2008.
14. In its judgment of January 27th 2011, the Lagos State High Court answered VFS Originating Summons’ questions in the negative and validated Dana’s right to revert to arbitration despite its breach of the agreement to arbitrate by commencing action at the Federal High Court. This judgment of the Lagos High Court is the trigger for this appeal.”

The Appellant filed its notice with two grounds of appeal. The Appellant also filed its Appellant’s Brief on 12th of June, 2012 but deemed properly filed and served on 7th of May, 2014. In it, the Appellant articulated 2 issues for determination as follows: –

“i. Having initiated judicial proceedings and obtained relief in the Federal High Court, has Dona not waived its right to revert to arbitration? (Distilled from Ground 1 of the Grounds of Appeal).

ii. In view of the Constitutional role of the Court of Appeal as the reviewing authority for the decisions of the Federal High Court, can the learned Trial Judge review the decision of the Federal High Court dismissing Dana’s case (Distilled from Grounds 2 of the Grounds of Appeal)”

Also filed was the Appellant’s Reply Brief on 24th of September, 2014 but deemed properly filed and served on 25th September, 2014.

In response to the Appellant’s brief, the Respondent filed its brief on 6th of June, 2014. In it the Respondent argued his Preliminary Objection filed.

In arguing his preliminary objection, the Counsel to the Respondent submitted that this appeal is incompetent as the Appellant’s originating summons was purportedly signed for and on behalf of Prof. Yemi Osinbajo SAN by an un-named person whose identity and status remain undisclosed on the Originating Court process.

It is trite law that it is only a legal practitioner that can prepare and sign originating Court processes. Counsel referred the court to Order 6 Rule 2(3) of the High Court of Lagos State (Civil Procedure) Rules 2004 where it is required that processes should be signed by a person who is on the roll of legal Practitioners. See Legal Practitioners Act, Cap L11, LFN 2004 S. 2(1) and 24 and Okafor v. Nweke (2007) 10 NWLR Pt. 1043 pg. 521.

Counsel submitted that the originating summons and the supporting written address were signed by an unnamed or unknown person whose name is not indicated or endorsed on the originating Court process. The originating summons was signed by an unknown person for and on behalf of Prof: Yemi Osinbajo, SAN of Simmons Cooper Partners. This Originating Court Process is therefore, incompetent and liable to be struck out. Counsel referred the court to the holding of the Supreme Court in Okafor vs. Nweke (supra).

“In conclusion I agree with the submission of learned Senior Advocate of Nigeria for the Respondents that the processes filed in this application particularly the Motion on Notice filed 19th of December, 2015, the proposed notice of cross appeal and applicant’s Brief of Argument in support of the said Motion on Notice are incompetent in that they were not issued by a Legal Practitioner known to law and are consequently struck out, with N1,000,00 cost in favour of the respondent.”

The preparation, signing and filling of the Originating Court process by an unnamed person for and on behalf of Prof. Yemi Osinbajo SAN renders the Originating Court Process in issue in this proceeding incompetent. See Sunday Adeleye vs. Disu Adekanmi Onoleye CA/L/266/2002 (unreported) delivered on 25th June, 2010 where Adamu Jauro JCA held as follows: –