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"That I know as a fact that the defendants have no defence to the plaintiff's claim,"
The application ex-parte was heard on 16th July, 2002. It was granted as prayed. The return date was fixed at 15th October, 2002.
The defendants filed in the Registry of the court on 11th July, 2002 a joint Memorandum of Appearance.
On 19th September, 2002, the defendants again filed a Joint Notice of Intention to defend the suit which was brought under the "Undefended List".
The notice was as required by rules of court accompanied by an affidavit of 5 paragraphs which indicated the defence of the defendants.
It must be mentioned at this stage that the defence of the defendants was two pronged viz;-
When the defence came up for consideration on 15th October, 2002, the learned trial judge ruled that the defence on the merit failed while the defence on the issue of law succeeded.
On account of the defence on the issue of law which had to do with the application of The Arbitration law Cap.7, laws of Northern Nigeria, 1963 to the agreement in the event of a dispute between the parties which the learned trial judge upheld, he held thus:
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"I would have proceeded to give judgment if this had been the only defence raised. However, the defendant has also pointed to the existence of an arbitration clause in the agreement between them. I have seen a copy of the agreement annexed to the Plaintiff's affidavit as annexure B2. Clause 6 of the said agreement specifically provides for the reference of any dispute arising from any disagreement on the con¬tract to an arbitrator. This seems to be a definite agreement by the parties to submit themselves to an alternate means of resolving a dis¬pute other than the court. It is incumbent on a court to give effect to an agreement of this nature. It is expected that a party raises such a preliminary objection at the earliest opportunity. Since no previous docu¬ments have been filed by the defendants and it is not shown that any steps have been taken by the defendant before the present proceed¬ings it would appear that they are in order in raising the issue in their affidavit at this stage. It constitutes a defence on the merit to the suit".
I am therefore transferring this case to the General Cause list and ordering that the parties in the first instance exhaust the remedy available to them in their agreement by referring the matter in dispute to an arbitrator whose decision shall be binding on both parties."
The plaintiff being aggrieved by that decision has with leave of this court appealed to this court.
