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MR EMMANUEL LUMENZE v. GOVERNMENT OF EBONYI STATE

(2018) LPELR-44618(CA)

In The Court of Appeal of Nigeria

On Friday, the 8th day of June, 2018

CA/E/387/2017


Before Their Lordships

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria


Between

MR EMMANUEL LUMENZE
(Carrying on business under the name and style of Emmol Nigeria Enterprises) - Appellant(s)

AND

GOVERNMENT OF EBONYI STATE - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.
FACTS:
This is an appeal against the Ruling of Abakaliki High Court, Holden at Ebonyi delivered on the 23rd day of March, 2017 in Suit No. HAB/112MC/2015.

The facts of the case are that the Appellant had been invited to do a job in Abakaliki, Ebonyi State by the State Government. After several interactions with each other, the Appellant Company was invited formally to do an interview with Ebonyi State Cement Project Committee. This was vide letter dated 7th of September, 2009. After the interview, the Appellant was offered the job. Few weeks later, the Appellant was informed that the Ebonyi State Executive Governor has approved the exploratory drilling of one hundred (100) bore holes, seventy (70) of which will be given to the Appellant and thirty (30) will be given to the other company that took 2nd position. ???However, the two companies were invited to pay through the State's Tender Board. After this exercise in which the Appellant's company excelled, a formal letter of award of the contract was issued to the Appellant on the 2nd of December 2009. The letter directed the Appellant to indicate his acceptance within seven (7) days, and liaise with the relevant authorities to draw up the contract agreement. The Appellant complied. 

A formal contract agreement was then duly executed between the parties on the 16th of December, 2009. Inherent in the agreement is that the Appellant should bring an Advanced Payment Guarantee from a reputable bank for 30% of the total contract sum which is ???90, 562, 972.50k (Ninety Million, Five hundred and Sixty two thousand, Nine hundred and Seventy two naira, Fifty kobo). The Appellant wrote to the Branch Manager Bank PHB Abakaliki applying for an Advanced Payment Guarantee (APG) in a letter dated 11th December, 2009. ???After the Appellant had paid the required amount of Twenty Million Naira, the bank then issued the APG in his favour, and addressed to the Ebonyi State Government (The Respondent herein). There was a covering letter dated 28/4/2010 conveying the Bank's letter to the Accountant General of the Respondent.  The issuance of the Advanced Payment Guarantee was the condition for the Ebonyi State Government to pay the 30% into the Bank. Up till date, the money was not paid. Irked by this, the Appellant wrote to the Respondent in a letter dated 1st September, 2010. There was no reaction to the letter. He wrote another letter titled "Appeal for Release of Mobilization" which was a reminder, but still there was no reaction from the Respondent. All efforts to get audience with the State Accountant General and the Respondent failed.

The Appellant then briefed a lawyer, who wrote to the Respondent in a letter dated 12th October, 2010. In a reply from the Solicitor General/Permanent Secretary, Ministry of Justice, Ebonyi State, he asked the Appellant to refer the matter to Arbitration. The letter was dated 11th June, 2012. The Appellant therefore filed a suit against the Respondent & 2 Ors in Suit No: HAB/5/2-13, which was struck out on the 8th of April, 2014, in view of the arbitration clause in the contract agreement. The parties were addressed by the Court to explore all avenues of arbitration before approaching the Court. ???The Appellant thereafter and consequent upon this, appealed his arbitration. The Respondent was told to appeal by arbitration too, which it did. At their first meeting, the parties appointed a neutral 3rd arbitrator - Valentine Osita Akwueba Esq., as Chairman.The Arbitration panel came up with an award, duly signed by the three Arbitrators - dated 18th of December, 2014. A copy of the Arbitral award was served on all the parties.

However, the Respondent failed, refused and neglected to abide by the terms of the arbitral award. Arising from the refusal of the Respondent to pay the Appellant the amount awarded to him by the arbitration panel, the Appellant caused his lawyer to write to the Respondent in a letter dated 28th of August, 2015, forwarding the arbitral award to him for consideration and his urgent attention. Despite this, the Respondent refused/failed to pay up. The Appellant then on the 10th of November, 2015, filed a motion on notice to enforce the arbitral award made on the 18th of December, 2014. ???The Respondent did not react until two years later. After three years from the date the arbitral award was made, the respondent filed a motion to set aside the arbitral award made on the 18th of December, 2014. After hearing the application, the lower Court on the 22nd of March, 2017, dismissed the Appellant's application for the recognition and enforcement of the arbitral award, and granted the Respondent's application to set aside the arbitral award. The Appellant was aggrieved by the decision of the High Court and therefore appealed to the Court of Appeal.

ISSUES:
The Court determined the appeal on these issues couched as follows:

APPELLANTS ISSUE 1
1. WHETHER THE LEARNED TRIAL JUDGE HAD JURISDICTION TO ENTERTAIN A SUIT OR AN APPLICATION WHICH WAS STATUTE-BARRED. 

RESPONDENT'S ISSUE 1
1. WHETHER THE RESPONDENT'S APPLICATION IS STATUTE-BARRED BY THE PROVISIONS OF SECTIONS 29, 30 AND 31 OF THE ARBITRATION AND CONCILIATION ACT, 2004 VIS-??-VIS THE CAREFUL CONSIDERATION SAME SECTIONS BY THE LEARNED TRIAL JUDGE. 

DECISION/HELD:
On the whole, the Court found merit in the appeal and accordingly allowed same.  The Court ordered the Chief Judge of Ebonyi State to order that the High Court relist the Appellants motion on notice filed on the 10th of November 2015 for recognition and enforcement of the Arbitral Award made on the 18th of December 2014, for hearing and determination by the High Court.


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