IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON MONDAY, THE 3RD DAY OF APRIL, 2023
BEFORE THEIR LORDSHIPS:
JIMI OLUKAYODE BADA JUSTICE, COURT OF APPEAL
ABUBAKAR SADIQ UMAR JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
APPEAL NO. CA/L/508/2017
BETWEEN:
PARTICIPANT PROPERTIES LIMITED = = = = == APPELLANT
AND
1. MR. ADEMOLA FASHOLA
2. MR. BABATUNDE ADEBUTU
3. MRS. TINUOLA OLUFON
4. MRS. BOLANLE ENOBAKHARE ===== RESPONDENTS
5. MR. ADRIAN AGYEMAN-BEMPAH
6. MRS. KEHINDE ALUSI
(Representing the Onayemi Family, Owners of
Michael VI Towers- 15, Goriola Street, Victoria
Island, Lagos)
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
This appeal questions the propriety of the Judgment of the High Court of Lagos State (the lower Court) in an action commenced by way of Originating Motion delivered on 18/03/2016 by Honourable Justice A.M. Lawal. Before that Court, the Appellant was the Applicant while the Respondents were the Respondents. By its Originating Motion No. M/1031/2013 filed on 19/12/2013, the Applicant/Appellant sought for an order setting aside, vacating and nullifying the purported Arbitral Award dated 18th November, 2013, contained in a document titled “REPORT OF ARBITRATION ON THE DISPUTE BETWEEN ONAYEMI FAMILY (LESSOR) AND PARTICIPANT PROPERTIES LTD (LESSEE)” delivered by Arc. Justus O. Okah-Avae as Sole Arbitrator in a dispute allegedly arising from a Sub-lease Agreement dated 7th September, 2009. The grounds for the application as set out in the Originating Motions are copied at pages 2-4 of Volume 1 of the Record of Appeal. The Respondents contested the application by filing a Counter Affidavit and Written Address. The Respondents also filed a Motion on Notice dated 21/02/2014 seeking for leave for the recognition and enforcement of the said Arbitral Award dated 18/11/2013. The Appellant responded to that Motion by filing a Counter Affidavit. At the conclusion of hearing, the lower Court dismissed the Appellant’s application to set aside the Arbitral Award, save the N2M awarded as the cost of Certificate of Habitability, which was set aside. The lower Court asserted that the Respondents were at liberty to enforce the remaining part of the Arbitral Award. The Judgment of the lower Court was copied at pages 1018-1036 of Volume 2 of the Record of Appeal. This appeal signifies the Appellant’s dissatisfaction with the said Judgment.
The facts giving rise to this appeal are summarized here below: The Respondents, as members of the Onayemi family, whose progenitor, late Sir Michael Onayemi, was the original owner of the property known as Michae VI Towers, as joint beneficial owners of the said property situate and being at 15, Goriola Street, Victoria Island, Lagos, sub-let the property to the Appellant via a Sub-lease Agreement dated 07/09/2009, for a cumulative period of ten (10) years, consisting of two terms of five (5) years, with the second term subject to negotiation by the parties. Following non-payment of rent by the Appellant, a dispute arose in 2012. As a result of failure of mediation, the parties resorted to Arbitration under a Sole Arbitrator appointed by the Chief Judge of Lagos State, as provided in clause 5 (c) of the Sub-lease Agreement. The appointed Arbitrator was Arc. Justus O. Okah-Avae, FNIA. At the conclusion of the Arbitration, the Arbitrator rendered an Award in favour of the Respondents in a document titled “REPORT OF ARBITRATION ON THE DISPUTE BETWEEN ONAYEMI FAMILY (LESSOR) AND PARTICIPANT PROPERTIES LTD (LESSEE)” dated 18/11/2013. The total sum of N204,250,000.00 was awarded in favour of the Respondents, consisting of N200,000,000.00 arrears of rent for the period of 01/08/2012 to 31st July, 2014 and N4,250,000.00 cost. The Appellant was ordered to pay the said amount within 30 days. It was this state of affairs that prompted the Appellant to approach the High Court of Lagos State to seek for an order setting aside the Arbitral Award. Having failed in his bid to set aside the award, the Appellant appealed to this Court vide a Notice of Appeal, predicated on four grounds of appeal, filed on 17/06/2016, copied at pages 1037-1041 of Volume 2 of the Record. The Appellant filed an Amended Notice of Appeal, anchored on six (6) grounds of appeal, on 25/09/2018, with the leave of Court. As required by the Rules of Court, parties filed and exchanged Briefs of Argument as follows: Appellant’s Brief of Argument, settled by Y.A. Kadiri, Esq., was filed on 25/09/2018. Respondents’ Brief of Argument, settled by Chief Olalekan Yusuf, SAN, with Adeyemi Ogunluwoye, Airat Olayinka Yusuf and Victor Ozoudeh, was filed on 27/08/2019. Appellant also filed a Reply Brief on 18/09/2019. The appeal was argued on 10/01/2023 by Abdulhafeez Mohammed for the Appellant and Adeyemi Ogunluwoye for the Respondents, who adopted the respective Briefs of Argument of the parties. In both the Brief of Argument of the Appellant and that of the Respondents, four issues were variously distilled for the determination of this Court.
Appellant’s issues for determination.
Respondents’ issues for determination.
Appellant’s Argument
In arguing issue 1, learned counsel for the Appellant submitted that in view of the death of Mrs. Dotun Onayemi, who was the 1st Defendant before the lower court, on 18/10/2015, a fact which counsel for the Defendants neither notify the Court nor the Plaintiff’s counsel, the judgment of the lower Court delivered on 18/03/2016 in favour of a dead party is incompetent, invalid, null and void and of no effect whatsoever. To buttress this argument, counsel relied on Re: NDIC vs. Rosabol (Nig) Ltd & Ors (2017) LPELR-41925 (CA); Akumoju vs. Mosadoloran (1991) 9 NWLR (Pt.214) 236 @ 242. Learned counsel further submitted that the Respondents’ application to substitute the deceased Mrs. Dotun Onayemi, filed before this Court, has not cured the defect in the judgment of the lower Court, citing In Re: Apeh & Ors vs. PDP & Ors (2017) LPELR-42035 (SC) @ 35-36.
On issue 2, it was submitted that the lower court was wrong in upholding the Arbitral Award made in favour of non-juristic person, as the title of the Award reads: “REPORT OF ARBITRATION ON THE DISPUTE BETWEEN ONAYEMI FAMILY (LESSOR) AND PARTICIPANT PROPERTIES LTD (LESSEE)”, while the parties before the Arbitral Tribunal were:
(Representing the Onayemi family,
Owners of Michael VI Towers – 15 Goriola
Street, Victoria Island, Lagos)
AND
PARTICIPANT PROPERTIES LIMITED RESPONDENT
Learned counsel contended that there is no correlation between the parties on the title of the Award and the parties to the Arbitration, which renders the award invalid, having not conform substantially with the form and requirement of an award, as per section 26 of the Arbitration and Conciliation Act a, 2004, and Article 32 of the Arbitration Rules. He argued that since the award was made in the name of non-juristic person, same is invalid ab initio and liable to be set aside.
Relying on the cases of Agip (Nig.) Ltd vs. Agip Petroli International (2010) 5 NWLR Pt.1187) 348 @ 395; Mankanu vs. Salman (2005) 4 NWLR (Pt.915) 270, and other cases on the fundamental nature of service of hearing notice, counsel submitted on issue 3 that the non-service of hearing notice of judgment on the Appellant as directed by the lower Court during its sitting of 14/10/2015, rendered the judgment delivered on 16/03/2016, liable to be set aside for breach of the Appellant’s right to fair hearing, which occasioned a miscarriage of justice. He argued that the fact that a party is persistently absent in court is immaterial for the purposes of issuing hearing notice. In submitting that the proceedings of a Court entail the entire conduct of the matter including the delivery of judgment, reference was made to Abia State University, Uturu vs. Otosi (2010) LPELR-3565 (CA).
On issue 4, learned counsel submitted, citing the provision of section 294 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the case of Agu & Ors vs. Idu (2013) LPELR-19992 (CA), that the judgment of the lower court, delivered on 18/03/2016, five months after the adoption of final addresses by counsel on 14/10/2015, is a nullity, having been delivered outside the constitutional time limit allowed for the delivery of judgment, in that the Appellant suffered injustice as a result, following the attachment of its Bank accounts in a garnishee proceeding, thereby rendering it comatose.
Appellant contended further that the Arbitrator failed to appraise the strength of the case of each party leading to his one-sided decision in arriving at his award as a result of misdirection and misconduct, occasioned by wrongful assumptions, without limiting himself to the scope of his authority. Appellant’s counsel itemized the assumptions as follows:
On these submissions, the court was referred to the case of Nigeria National Petroleum Corporation v. Lutin Investments Ltd (2006) 2 NWLR (Pt. 965) 506 at 542-543, and urged to set aside the award for being a nullity because the Arbitrator has exceeded his jurisdiction.
Respondents’ Argument
In conceding to the trite position of law that a judgment delivered against or in favour of a deceased Defendant is null and void, learned senior counsel for the Respondents submitted on the Respondents’ issue 1 that the instant appeal survives the deceased 1st Respondent before the lower Court, who was only one of six Respondents sued by the Appellant. Senior counsel submitted that it is a misapplication of the law for the Appellant to argue that the death of the 1st Respondent before judgment renders the judgment a nullity, as the cause of action survives the deceased 1st Respondent, citing Order 29 of the High Court of Lagos State (Civil Procedure) Rules, 2019. He urged the Court to hold that the death of the 1st Respondent on 18/10/2015 after the hearing of the Appellant’s Originating Summons on 14/10/2015, is valid in law as the judgment was delivered after the finding of facts and also the fact that the other five Respondents and the cause of action survives the deceased 1st Respondent. It was further argued that where a joint action is instituted and one of the multiple parties dies in the course of proceedings, the surviving parties may continue with the action without the need to substitute the deceased, relying on Olufeagba vs. Abdul-Raheem (2009) 18 NWLR (Pt.1173) 384; Okpomu Oil Palm Ltd vs. Okpamu (2006) LPELR-7708 (CA).
On Respondents’ issue 2, (similar to Apellant’s issue 3), senior counsel agreed with the Appellant that it is the duty of the Court to ensure that hearing notices are served on parties to a suit before hearing the matter. He maintained that when the matter was heard on 14/10/2015, the court sent counterpart electronic mail notifications stating that the judgment would be delivered on 19/02/2016 as attested to at page 1018 of the Record. Thereafter, delivery of the judgment was adjourned in open court a couple of times until it was finally delivered on 16/03/2016 with parties duly notified via emails. Learned senior counsel argued that there is no factual basis in support of the Appellant’s contention that it was not served a hearing notice. He submitted that fair hearing is satisfied where both parties to a proceeding have been heard before a decision is reached in a matter, and that fair hearing is not a technical doctrine but of substantial justice, citing in support the cases of B.O.N. Ltd vs. Adegoke (2006) 10 NWLR (Pt.988) 342; Adamu vs. State (2017) 16 NWLR (pt.1592) 363, among others. It was further submitted that the delivery of the judgment by the lower court in the absence of the Appellant has not been shown to occasion miscarriage of justice to the Appellant. On this submission, reliance was placed on the cases of Cotecna International Ltd vs. Churchgate Nigeria Ltd (2010) 18 NWLR (Pt.1225) 346 @ 387, LPELR-897 (SC); Veritas Insurance Co. Ltd vs. Citi Trust Investments Ltd (1993) 3 NWLR (Pt.281) 349 @ 369-370. The Court was urged to resolve this issue in favour of the Respondents.
On the 3rd issue distilled by the Respondents, (Appellant’s issue 4), Respondents’ counsel conceded that the lower Court delivered its judgment beyond the 90 days permitted by the Constitution after the adoption of final addresses. He submitted, however, that the mere fact that the judgment was delivered outside the allowable time does not ipso facto render the judgment a nullity. For such a judgment to be declared a nullity, the Appellant must show by credible and cogent evidence that the delay in the delivery of judgment within the specified period had resulted in miscarriage of justice, a burden the Appellant has failed to discharge. Learned senior counsel submitted that it cannot be said that the lower court has lost touch with the case capable of affecting its perception and evaluation of the issues for determination in the originating motion, as the lower court did not take evidence, rather it served as a quasi-appellate court that reviewed the award made by the Arbitrator, who it was that took evidence from witnesses.
On the Appellant’s submission that the Arbitrator has exceeded his jurisdiction by awarding interest, senior counsel for the Respondents submitted that the Appellant’s submission is unsupportable in law. He opined that there being no specific requirement of law that a post-judgment interest must be claimed or pleaded before it can be awarded, and that Arbitral Tribunal, like a trial court, has a power to award post-judgment interest, whether claimed or not. The Court was further urged to discountenance the entire submissions of the Appellant on the misconduct of the Arbitrator as same did not emanate from any issued raised for determination by the Appellant. In the alternative, counsel responded to the alleged misconduct of the Arbitrator as follows: that concrete, irrefutable and convincing proof must be provided to successfully establish misconduct. That an Arbitrator is not duty bound to expressly make findings on all the issues submitted by parties in his award, as he is presumed in law to have taken such issues into consideration in making his award. It was contended that a careful look at the award rendered by the Arbitrator and affirmed by the lower court would show that all issues raised were adequately considered and duly resolved. At paragraphs 4.3.21 of the Respondents’ Brief of Argument, senior counsel responded adequately to the allegation of Arbitrators’ misconduct and assumptions as levelled by the Appellant, the summary of which is that all the findings of the Arbitrator were based on the evidence led before him as opposed to assumptions. The Court was urged to resolve this issue against the Appellant.
Under the Respondents’ 4th issue, (similar to Appellant’s issue 2), it was contended that the identities of the Claimants as Onayemi Family (Lessor) on the cover page of the Arbitral Award was clearly explained in the Award to mean that it comprises of the named Claimants who shall be referred to as ‘Lessor’. Counsel submitted that the Arbitrator aptly fulfilled the identification of the parties by not only describing the Respondents in general term as Onayemi family, but also identified them individually with their names in the Award. He urged the court to accept the finding of the lower court with respect to the parties in the Award and resolve this issue in favour of the Respondents.
By way of Reply Brief, the Appellant’ counsel submitted that the import of Order 29 of the High Court of Lagos State (Civil Procedure) Rules is that the surviving parties can continue the action but not with the name of a deceased party. On the service of hearing notice via email, counsel argued that a copy of the email has not been transmitted along with the Record to prove that the said service was actually done, and that the mere ipse dixit of the Respondents’ counsel without more cannot serve as proof of service of hearing notice on the Appellant via email.
Resolution of the Appeal
I have given due consideration to the respective issues formulated by the parties and I am of the view that the issues distilled by the Respondents are not different from the issues put forward by the Appellant, their difference is only in chronological arrangement of the issues. In the circumstance, I will adopt the issues formulated by the Appellant, the undoubted owner of the appeal, in the resolution of this appeal.
Issue 1
The Originating Summons before the lower Court was heard on 14/10/2015, after which the Court adjourned for judgment to a later date. Shortly after the hearing, precisely four days thereafter, the first Respondent, Mrs. Dotun Onayemi, died on 18/10/2015. As at 18/03/2016, when the judgment appealed against was delivered in favour of the Respondents, the lower Court and the Appellant were not informed of the demise of the first Respondent nor was step taken to substitute her before the judgment. The Appellant got to know of this fact only when the Respondents applied to substitute the said Mrs. Dotun Onayemi before this Court with Ademola Fashola, the current 1st Respondent. The implication of this scenario is that among the beneficiaries of the judgment of the lower court, is a deceased person. The position of the law on the legal effect of judgment given in favour or against a dead party is well settled, as only the living has the requisite legal capacity to sue and be sued. Such a judgment is a nullity for want of a legally recognized party; Sapo vs. Sunmonu (2010) LPELR-3015 (SC). The law is settled that a court of law cannot make an order for or against a dead person in view of the fact that the legal personality of a human being ceased to exist upon his death. See the dictum of Oputa, JSC, in Nzom vs. Jinadu (1987) LPELR-2143 (SC), where the revered law lord said:
“It is true that the dissolution of a legal person is analogous to the death of an ordinary human person. Now, dead men are no longer legal persons in the eyes of the law, as they have laid down their legal personality with their lives at death. Being destitute of rights or interests, they can neither sue nor be sued.”
Therefore, judgment given in favour or against a dead person is a nullity, irrespective of whether the Court making the order is aware that such a party was dead or not, so long as the fact of death has not been denied. At the time the judgment of the lower Court was delivered on 18/03/2016, the lower Court lacks the jurisdiction to make any order in favour or against the deceased Mrs. Dotun Onayemi, who was the 1st Defendant before that Court, as her legal rights or interests died along with her legal personality, unless she is substituted by a living being or a legal entity. See Olufeagba vs. Abdur-Raheem (2009) LPELR-2613 (SC), where Fabiyi, JSC, stated at page 11 of the Report:
“It goes without any shred of doubt that the Court can only assume jurisdiction over juristic persons. If a sole party to an appeal dies and there is no substitution, it hardly needs any gain-saying that the appeal ends.”
What then is the legal status of the judgment of the lower Court delivered after the demise of Mrs. Dotun Onayemi?. The dictum of Fabiyi, JSC, quoted above has given us an insight, and that is; If Mrs. Dotun Onayemi was to be the sole Defendant at the lower Court, the judgment appealed against would outrightly be declared a nullity. But she was just one of six (6) Defendants/Respondents. Therefore, even if the lower Court lacks the jurisdiction to make any order in favour or against the deceased Mrs. Dotun Onayemi, the jurisdiction of the lower Court subsists on the remaining 5 Respondents and the Appellant, in that the cause of action did not terminate with the death of the original 1st Defendant/Respondent. Rather, the cause of action survives with the other surviving five Respondents. In the instant case, the judgment of the lower Court is untainted, notwithstanding the death of the original 1st Defendant/Respondent and notwithstanding the non-substitution of the deceased 1st Defendant. I am fortified on this stand by the decision of the Supreme Court in Olufeagba vs Abdur-Raheem (supra), where it was held at page 24 of the E-Report thus:
“I have earlier depicted that the cause of action survives the dead plaintiffs. Their deaths cannot cause the suit to abate. It was erroneous for the majority justices of the Court below to have found otherwise. The case of Whyte v. Jack (supra) heavily relied upon by the majority justices of the Court below is inapplicable to the peculiar facts and circumstances of this case. It is not a sole plaintiff that died in this case in hand where there are 44 plaintiffs. The death of the two plaintiffs should not affect the rights and status of the remaining living plaintiffs. The suit survived and was rightly continued at the instance of the living plaintiffs. The death of two (now three) plaintiffs did not invalidate the case of the plaintiffs. It was preposterous to have found otherwise. Such led to a glaring miscarriage of justice."
In the circumstance, I resolve issue 1 against the Appellant and in favour of the Respondents, as the cause of action instituted by the six Respondents before the Arbitral Tribunal in a representative capacity, and defended before the lower court, survives the original 1st Defendant, Mrs. Dotun Onayemi.
Issue 2
The contention of the Appellant was that the Arbitral Award issued by Arc. Justus O. Okah-Avae was made in favour of a non-juristic person and that the lower Court was wrong in not declaring the said Award invalid and unenforceable. The pivot of the Appellant’s contention is the heading or title of the Award. It is not in doubt that the parties before the Arbitral Tribunal, as contained in the Notice of Arbitration, presided over by a Sole Arbitrator, were the six (6) Respondents as Claimants, representing the Onayemi family, Owners of Michael VI Towers (the property in the centre of the dispute), with the Appellant as the Respondent. At the conclusion of the Arbitration, the Sole Arbitrator rendered his Award and titled it at the cover page thus: “REPORT OF ARBITRATION ON THE DISPUTE BETWEEN ONAYEMI FAMILY (LESSOR) AND PARTICIPANT PROPERTIES LTD (LESSEE)”. This is the crux of the Appellant’s submission that the Award was rendered in favour of Onayemi family, a non-juristic person. Page 1 of the Report contains the “AWARD” under which is the “INTRODUCTION”. Page 2 is titled “FACTS” and it goes as follows:
“ONAYEMI FAMILY comprises of Ms Oladotun Onayemi, Mrs Abimbola Onayemi - Adebutu, Mrs. Tinuola Olufon, Mrs. Bolanle Onayemi - Enobakhare and the children of both the late Mrs. Yetunde Alusi and the late Mrs. Ronke Agyman - Bempah and shall hereinafter be referred to as LESSOR. Lessor became the holder and owner of the beneficiary interests in the whole of the property situated at 15, Goriola Street, Victoria Island, Lagos, and known as MICHAEL VI TOWER, (hereinafter referred to as the PROPERTY). This is pursuant to the WILL of MR. MICHAEL OREDOLAPO ONAYEMI, executed on 27th October, 1975.
PARTICIPANTS PROPERTIES LTD (PPL) is a limited liability company incorporated under the laws of the Federal Republic of Nigeria and having its registered address at 18b Idowu Taylor Street, Victoria Island. Participants Properties Ltd shall hereinafter be referred to as LESSEE.”
The Arbitrator was therefore expressly clear that what he meant by “Onayemi Family” at the cover page of the Award are those six Claimants before him, who claimed for themselves and for all the members of the Onayemi family. There is no confusion or ambiguity that the Award, as rendered by the Arbitrator, was rendered in the Arbitration instituted by the six Claimants against Participant Properties Limited. The Award was rendered in favour of the six Claimants who constitute the Onayemi family, who are all juristic persons, individually. What is more, the form and contents of an Arbitral Award as provided for in the Arbitration and Conciliation Act and Rules, the extant law and Rules of procedure that governed the Arbitration in question, did not consider the heading or title of the Award as a matter of fundamental significance, so long as the parties to the Arbitration are ascertainable from the contents of the Award. Section 26 of the Arbitration and Conciliation Act, provides for form and contents of award, as follows:
(1) Any award made by the arbitral tribunal shall be in writing and signed by the arbitrator or arbitrators.
(2) Where the arbitral tribunal comprises of more than one arbitrator, the signatures of a majority of all the members of the arbitral tribunal shall suffice, if the reason for the absence of any signature is stated.
(3) The arbitral tribunal shall state on the award-
(a) the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under section 25 of this Act;
(b) the date it was made; and
(c) the place of the arbitration as agreed or determined under section 16(1) of this Act, which place shall be deemed to be the place where the award was made.
(4) A copy of the award, made and signed by the arbitrators in accordance with subsection (1) and (2) of this section, shall be delivered to each party.
In the same vein, none of the six items listed under Article 32 of the Arbitration Rules cited by the Appellant’s counsel states how an Arbitral Award shall be titled or headed. In the instant case, the parties to the Arbitration are not only ascertainable from the Award, they are well known to the Appellant and clearly described in the Award. In this light, I endorse the unassailable finding of the learned trial Judge, A.M. Lawal, J. on this issue at page 17 of the judgment, copied at page 1034 of the Record of Appeal, when he held:
“On the absence of nexus between the rendered Award and the parties before the Arbitrator, argued by the parties, the position of this Court remains that it is not the shortcomings, mistake or errors of the parties that is the business of a Court asked to set aside an Arbitral Award, the business of the Court is to focus on the proceedings and the Award of the Arbitrator to see if there is present in the Award or the proceedings, feature capable of making the Court to upturn the Award. This Court is therefore not after the genuine mistakes of the parties or that of the Arbitrator. An Arbitrator is not expected to be a lawyer or a judge and he is not expected to have training or qualification in law, therefore, he is not expected to think, reason or write like a lawyer or a judge. The Arbitrator stating the Claimants as the Onayemi Family at the front page of the Award instead of the names of the Claimants as set out by the parties to the Arbitration only brings out the Arbitrator as lacking in legal training, it leaves no one confused as to who is the Claimant as the names of the Claimants have always been distinctly set out on all processes exchanged by the parties at the arbitration. Even if there is doubt as to who is the Onayemi Family or who is the Claimant that doubt is erased at page 2 of the Award where the same Arbitrator set out the names of the constituents of the Onayemi Family. In the processes at the Arbitration and before this Court the Respondents have always described themselves as having sued as "Representing the Onayemi Family, Owners of the Michael Tower - 15, Goriola Street, Victoria Island, Lagos. Further, Section 26 of the Arbitration and Conciliation Act and Article 32 of the Arbitration Rule do not prescribe that the parties to arbitration must be named in a particular style by the Arbitrator nor state that the Award should be impeached because the Arbitrator gave a full description of the parties in the Award given.”
I do not consider the Appellant’s argument as anything other than undue recourse to technicality, aimed at avoiding its financial obligation under the Sub-lease Agreement. I discountenance the said argument and resolve the 2nd issue against the Appellant.
Issue 3
Under this issue, the Appellant challenges the jurisdiction and competence of the lower Court to deliver judgment in the suit without notifying the Appellant of the judgment date vide the service of hearing notice. The Originating Summons before the lower Court was heard on 14/10/2015, after which the Court adjourned for judgment to a date to be communicated to counsel. The judgment was finally delivered on 18/03/2016 after a spate of adjournments. Appellant contended that it was not served with hearing notice of the date of judgment and for that reason the judgment of the lower court shall be declared a nullity, as the court lacks the jurisdiction to pronounce the judgment in the absence of the Appellant. Appellant further argued that the delivery of judgment in its absence amounts to denial of fair hearing.
Authorities are legion on the point, that service of hearing notice is crucial and fundamental as it is what gives the Court the jurisdiction and the competence to adjudicate between parties. Without the service of hearing notice, the jurisdiction of the Court cannot be activated with respect to any matter pending before it. Failure to serve hearing notice where it is required is a failure which goes to the root of the adjudication process. It is settled law that failure to serve hearing notice on a party is fatal to subsequent proceedings. Therefore, any proceeding that is conducted in the absence of service on the opposing party is a nullity. This is because the Court would be bereft of the necessary vires to adjudicate and pronounce on the matter whose process has not been served. See Isijola vs. Ekiti State Micro Credit Agency (2014) LPELR-22708 (CA); Ahmed vs. Ahmed (2013) LPELR- 21143 (SC); SGBN Ltd vs. Adewunmi (2003) LPELR- 3081 (SC); Mark vs. Eke (2004) LPELR-1841 SC); Tsokwa Motors (Nig.) Ltd vs. UBA Plc (2008) LPELR-3266(SC); Ihedioha vs. Okorocha (2015) LPELR - 40837 (SC). It has equally been held by the apex Court, times without number, that non-service of Court process on a party, where service is required, amounts to breach of the party's right to fair hearing. See Emeka vs. Okoroafor (2017) LPELR-41738 (SC); Ihedioha vs. Okorocha (supra).
The Respondents submitted that hearing notice by way of counterpart electronic mails were served on the counsel for the parties against the judgment date. I have combed through the Record of Appeal but couldn’t come across a copy of such electronic mail hearing notice. What then is the fate of the judgment of the lower Court delivered on 18/03/2016 without prove that hearing notice was served on the Appellant? Before the delivery of judgment, the Appellant was given ample opportunity to ventilate its grievance before the lower Court by filing all relevant processes in support of its Originating Summons. The Appellant was also afforded equal opportunity with the Respondents to adopt its processes, when the Originating Summons came up for hearing on 14/10/2015. The only proceeding conducted in the absence of the Appellant was the delivery of judgment. Fair hearing entails giving each party to the proceeding equal opportunity to ventilate his/her grievances without hindrance before a decision is reached by the Court. The Appellant was afforded that unhindered opportunity by the lower Court throughout the proceeding preceding the judgment. The Appellant has not shown what injustice it suffered as a result of the delivery of judgment in its absence, that being the only yardstick that will entitle it to have the judgment set aside on account of nullity occasioned by denial of fair hearing. In a similar situation, where a judgment was delivered earlier than the date it was adjourned to, without notification to the Appellant, the Supreme Court, per Galadima, JSC, held, in the case of Cotecna Int’l Ltd vs. Churchgate Nig. Ltd (2010) LPELR-897 (SC), as follows:
“It would appear to me and I am of the view that the delivery of judgment earlier than scheduled date without notice to the Appellant will not nullify the judgment unless the Appellant can show that it has resulted in a miscarriage of justice. The Appellant has not shown that any miscarriage of justice has occasioned because its counsel was not present when the Judgment was read. It is not shown that if the Appellant's counsel had listened to the Judgment which was delivered in the Open Court, the decision could have been otherwise. The Appellant is not complaining that it was not heard when it ought to have been heard during the proceedings leading to Judgment see VERITAS INS. CO. LTD v. CITI TRUST INVESTMENT LTD (1993) 3 NWLR (Pt.281,) 349 at 370; OBODO v. OLOMU (1937) 3 NWLR (pt.59) 111 and ESEIGBE v. AGHOLOR & ANOR (1990) 7 NWLR (pt.161) 234. I hold that since the earlier and timely delivery of judgment by the Court of Appeal has not occasioned any miscarriage of justice to the Appellant, in any way whatsoever, so as to nullify the said judgment, accordingly, I resolve this issue against the Appellant."
In the earlier case of Veritas Insurance Co. Ltd vs. Citi Trust Investments Ltd (1993) 3 NWLR (Pt.281) 349 @ 369-370, Niki Tobi, JCA, (as he then was), had this to say:
“What is the judgment vis-à-vis the role or roles of the parties in the judgment delivery process? I do not think I have made myself clear. Let me pose an ancillary question: What role does any of the parties play when a judgment is being delivered? I think I now sound clearer. Parties and or their counsel sit in court and listen to the judgment being delivered. They do not play any role beyond listening and at times taking down random notes in the course of the delivery of the judgment. Some do not take notes. They just listen and leave the court at the end of the judgment, with the usual cliché "as the court pleases", even when the pleasure of the court is not the pleasure of the party who lost the case. In my view, since the appellant, even if in court, was not to take any legal steps to vindicate his legal 'right' if any, he has not suffered any injustice.”
On the strength of the above cited authorities, I hold that the judgment of the lower court, though delivered in the absence of the Appellant, is valid in law as the Appellant has not shown that it suffered any miscarriage of justice as a result. Issue 3 is accordingly resolved against the Appellant. Before I dry and rest my pen on this issue, I wish to observe that in the course of his submission on the issue, learned counsel for the Appellant smuggled in a sub-heading titled: “On misconduct of the Arbitrator”. Under this sub-head, Appellant’s counsel argued that the lower Court has failed to recognize the various acts of misconduct of the Arbitrator as well as his exercise of excess jurisdiction. For the avoidance of any doubt, issue 3 formulated by the Appellant reads:
“Whether the lower court has the jurisdiction to deliver Judgment in the subject suit without requisite notice to the Appellant.”
I failed to see the correlation between the issue of misconduct of Arbitrator and the issue of non-service of hearing notice of judgment on the Appellant. The essence of formulating issues for determination is to narrow down and restrict the scope of the arguments to be canvassed to the issues so formulated. Any attempt by counsel to argue any point outside the issue formulated will not be allowed. Having not formulated any issue bordering on misconduct of the Arbitrator in its Brief of Argument, all the arguments canvassed on the misconduct of Arbitrator by the Appellant under issue 3 are incompetent and are hereby discountenanced.
Issue 4.
The Appellant urged the Court to declare the judgment of the lower Court a nullity as same was delivered more than 90 days after the adoption of final addresses, in the instant case, after the hearing of the Originating Summons. The judgment appealed against was delivered on 18/03/2016, while the Originating Summons was heard on 14/10/2015. By simple calculation, the judgment was delivered about 5 months 4 days after the final addresses by counsel. The constitutional provisions governing the delivery of judgment after final address is in section 294 (1) and it says:
“Every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
It is beyond dispute that the provision of section 294 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) stipulated a period of 90 days within which all superior courts of record created under the Constitution shall deliver their judgment in writing and failure to comply with this mandatory provision will automatically invalidate such a judgment delivered outside the prescribed period and render it null and void. Conscious of the difficulty that this provision will create, the drafters of the Constitution introduced subsection (5) to cushion the effect and mellow down the harshness of the strict provisions of subsection (1). The said subsection (5) provides:
“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
It is clear from the provisions of section 294 (5) that failure by a court to deliver judgment within 90 days from the conclusion of evidence and adoption of final addresses does not ipso facto renders such judgment automatically null and void. Such a decision shall only be set aside or treated as a nullity if the appellate court is satisfied that the Appellant has suffered a miscarriage of justice by reason of the late delivery of the judgment. The question now is whether the two months delay in the delivery of judgment has occasioned miscarriage of justice. I have stated supra that the onus of showing that miscarriage of justice has been occasioned is on the Appellant. No attempt was made by the Appellant to show how the delay in the delivery of the judgment has caused it injustice or how the delay has made the trial Judge lost sight of the nitty-gritty of the case. It should be borne in mind that the case on appeal was initiated via Originating Summons and therefore witnesses were not called. The trial Judge cannot, in the circumstance, be said to have lost the impression the witnesses made on him due to effluxion of time. In the absence of credible evidence showing that the Appellant has suffered miscarriage of justice as a result of the two months delay in the delivery of the judgment by the lower court, there is no basis upon which to declare the said judgment a nullity. This 4th issue is also resolved against the Appellant.
In the final analysis, I find no merit in this appeal, and I dismiss it accordingly. Judgment of the High Court of Lagos State in Suit No. M/1031/2013, delivered on 18/03/2016 by A.M. Lawal, J., is hereby affirmed. I award cost to the Respondents against the Appellant in the sum of N500,000.00.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Abdulhafeez Mohammed for the Appellant.
Adeyemi Ogunluwoye for the Respondents.
M. I. SIRAJO, JCA CA/L/508/2017 | PAGE OF |
