NIPOL LIMITED V. BIOKU INVESTMENT & PROPERTY CO. LTD.
| Pages | 606-624 |
606
NIGERIAN SUPREME COURT CASES
[1992] 1 N.S.C.C.
NIPOL LIMITED V. BIOKU INVESTMENT & PROPERTY
CO. LTD.
5
NIPOL LIMITED
APPELLANT
V.
BIOKU INVESTMENT & PROPERTY CO. LTD. RESPONDENT
APPEAL No. SC. 61/1991.
10
SUPREME COURT OF NIGERIA
15
BELLO,
C.J.N.
UWAIS,
J.S.C.
KAWU,
J.S.C.
0 LATAW U RA ,
J.S.C.
A KPATA ,
J.S.C.
20
10th April, 1992.
Courts -
Extension of time within which to appeal suo motu by a court after the time
25
prescribed therefor by statute or rule of practice has expired - Impossibility of
Interpretation and Construction -
Order 10 rule 37 of the Oyo State High Court Civil
Procedure Rules 1978 - Order 2 of the Rules of the Supreme Court in England.
Interpretation and Statute -
"For the time being in force" in Order 10 rule 37 of the Oyo
30
State High Court (Civil Procedure) Rules 1978 - How interpreted - Inexhaustiveness
of statute or rule of practice - Application of English Procedure and Practice thereto -
Which English Procedure and Practice - One in force at the time a statute or rules of
practice came into force or one enacted later.
Practice and Procedure -
Filing of an application outside the time prescribed therefor by
35
statute or rule of practice - An irregularity or a nullity.
Words and Phrases - "For
the time being in force" - Meaning of
ISSUES:
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1.
How may the phrase "for the time being in force" contained in a statute or rule
of Court be interpreted?
2.
Whether the filing of an application outside the time prescribed therefor by
statute or Rule of Court is a mere irregularity or a nullity under Order 2 of the
English Supreme Court Rules.
3.
Whether a Court can
suo motu
extend the time to file an application or a case
when the time prescribed therefor by statute or rule of practice has expired.
FACTS:
There was a co-operation agreement between the respondent and the appel-
lant. it was agreed in the said agreement that 'in case of any dispute as to the
operation of this agreement, any such dispute arising therefrom shall be referred
to an arbitrator agreed to by both parties. The arbitrator shall decide in accordance
45
50
NIPOL LIMITED V. BIOKU INVESTMENT & PROPERTY CO. LTD.
607
with Nigerian law and his decision shall be binding on both parties'. A dispute
arose between the parties when the appellant determined the whole contract after
two months. The dispute was referred to an arbitrator agreed to by both parties.
In his award, the arbitrator found that the appellant had breached the Contract and
5
he awarded N285,884.40k damages against her. The appellant applied to the High
Court 37 days after the award, by way of motion on notice to set aside the award
or remit it. The respondent in her counter-affidavit averred,
inter alia,
that the
application was filed out of time not having been filed within 21 days of the
publication of the award, relying on the English Supreme Court Practice, 1982. in
10
his ruling, the learned trial judge relying on order 73 Rules of Supreme Court in
England, 1979 held that an application to set aside an award may be made at any
time within six weeks after the award has been made and published to the parties.
The preliminary objection was overruled. Having heard argument on the applica-
tion, the learned trial judge held that the use of the respondent's foreign exchange
15 was illegal and that such illegality would no doubt affect the lawful performance of
the whole contract. The
maxim ex turpi causa non oritur actio
applied. The award
made by the arbitrator were set aside.
The respondent appealed against the ruling to the Court of Appeal. The
appellant filed a notice that it would contend at the hearing of the appeal that the
20 decision of the trial court be affirmed on other grounds. The notice was deemed
abandoned as the issue was not canvassed in the respondent's brief of argument.
It was struck out. The Court of Appeal holding that it is Order 73 rules 5(1) R.S.C.
1982 which represented the procedure and practice in force in the High Court of
Justice in England at the time the application to set aside or remit the award was
25 made and as such the application should have been made within 21 days after the
award was made and published to the parties. Thus, it held that the proceedings
in the High Court were incompetent and therefore a nullity.
Dissatisfied, with the decision of the Court of Appeal, the appellant appealed
to the Supreme Court contending
inter alia,
that the Court of Appeal erred in law.
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HELD
1.
Where a statute or rule of court states that a particular law or rule of practice
"for the time being in force" somewhere should be applied in certain cases,
the law or rule of practice, which becomes incorporated by reference into the
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statute or rule of court is that which is in operation at the commencement of
the statute or rule of court and not future law or rule of practice from the same
source unless it is patently clear that the legislature intended such an unusual
purpose.
(See p.615, lines 44 - 50).
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In the instant case, the makers of the Oyo State High Court (Civil Procedure)
Rules 1978, could not by Order 37 Rule
10
have been adopting in advance
future English Rules of unknown content. What was adopted was Order 73
Rule 5(1) which at the material time provided that an application to set aside
an award may be made at any time "within six weeks after the award has been
45
made and published to the parties." It was not intended that any change in
practice and procedure in future in England would automatically bring about
a change in the Oyo State High Court (Civil Procedure) Rules. The appellant's
application before the High Court was brought within time. The proceedings
ought not to have been nullified by the Court of Appeal. Case is remitted to
50
the Court of Appeal for hearing.
(See p.616, lines 13 - 20).
2.
Where an application is filed outside the time prescribed therefor by a statute
or a Rule of Court there is non-compliance with the provisions of the statute or
rule of court and where Order 2 of the English Rules is applicable the
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