PROCEDURE FOR SUMMARY JUDGMENT UNDER THE NATIONAL INDUSTRIAL COURT OF NIGERIA (CIVIL PROCEDURE) RULES 2017

CASE TITLE: NWAGBARA v. JADCOM LTD (2021) LPELR-55329(SC)JUDGMENT DATE: 7TH MAY, 2021

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT: EJEMBI EKO, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Leave of Court/Leave to Appeal.

FACTS

This appeal is against the decision of the Court of Appeal delivered on 29th November, 2007 by Abdu Aboki, J.C.A. (as he then was), Adekeye J.C.A. and Peter-Odili, J.C.A. as they were then.

The Appellant, a Quantity Surveyor, had a dispute over payment of agreed commission payable to him by his principal, the Respondent, in respect of a building contract. 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 an action in the High Court of the Federal Capital Territory 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 High Court Federal Capital Territory to have the award set aside. The Appellant also filed an action with a motion to enforce the award. The Respondent objected that the said suit was an abuse of the process of the Court and the objection was sustained. Consequently, the Appellant’s suit was dismissed for abuse of Court’s process. The Appellant appealed the decision but later withdrew the appeal.

The Appellant then filed another application for enforcement of the arbitral award. Again, the Respondent objected. Another Judge heard the objection and ruled that, in view of the earlier decision, he was functus officio and would not constitute his Court an appellate Court to review the said decision. The Appellant then appealed to the Court of Appeal. The Court of Appeal concurred with the trial High Court of Federal Capital Territory and held that the Appellant was guilty of abuse of judicial process. Thus, the Appellant appealed to the Supreme Court.

The Respondent filed a preliminary objection against the appeal contending that the grounds of appeal are incompetent for failure to seek leave of the Supreme Court or Court of Appeal as the said grounds are of mixed law and facts.

ISSUES FOR DETERMINATION

The Supreme Court considered the merits of the preliminary objection.

DECISION/HELD

On the whole, the appeal was struck out for being incompetent as the preliminary objection was upheld.

RATIOS:

• APPEAL – LEAVE OF COURT/LEAVE TO APPEAL: Whether leave of the Court of Appeal or Supreme Court is required to appeal on ground(s) of fact or mixed law and fact to the Supreme Court; effect of failure to seek leave
• APPEAL – LEAVE OF COURT/LEAVE TO APPEAL: Effect of failure to seek leave of the Court of Appeal or Supreme Court to file grounds of facts or mixed law and facts to the Supreme Court
• APPEAL – FILING/ENTRY OF APPEAL: Effect of failure to file an appeal against an interlocutory decision within the statutorily prescribed time
• APPEAL – GROUND(S) OF APPEAL: Effect of a ground of appeal/an appeal against an obiter dictum