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- CL|Jurisdiction|Review of Evidence
JUDGEMENT
(DELIVERED BY HON. JUSTICE TANI YUSUF HASSAN. JCA)
This appeal has arisen from the judgment of the Federal High Court in suit No. FHC/L/CS/234/08 between Nigerian Aviation Handling Company Pic (plaintiff) and Arik Air Ltd (Defendant) delivered on the 25th day of March, 2013.
The Respondent was the plaintiff at the trial court and his 32 paragraphs statement of claim reflected at pages 3-13 of the Record Volume 1, was dated 27/02/2009 and filed on 02/03/2009. The appellant as defendants filed a statement of defence of 32 paragraphs and a counter claim on 05/06/2009.
The statement of defence is dated 2na day of June, 2009 at pages 716-724 of Volume 2 of the record.
Briefly the facts of the case are that sometimes in August, 2007 the Appellant and the Respondent entered into a standard Group Handling agreement of service wherein the Respondent agreed to render services such as loading and off loading of luggages from the Appellant's Aircraft on the Airport, including ramp services, safety measure, moving of aircraft, general ground flight operation and other related services to the Appellant.
Between August 2007 and April, 2008 when the agreement lasted the total value of the Aviation Ground Handling services provided by the Respondent to the Appellant was N312,436,279.6Gk (Three hundred and twelve million, four hundred and thirty six thousand naira, sixty kobo). The Appellant only paid N32,015,301,41k (Thirty five million, fifteen thousand, three hundred and one naira, forty one kobo), leaving an outstanding balance of N 277,420,978,19k (Two hundred and seventy-seven million, four hundred and twenty thousand nine hundred and seventy eight naira, nineteen kobo).
The matter went into trial and at the end, judgment was entered in favour of the Respondent. Being dissatisfied the appellant appealed to this court on seven grounds of its Amended Notice of appeal with their particulars and Reliefs Sought.
The Appellant's brief settled by its counsel F. O. Izinyon, filed on the 5th day of September, 2013, five issues were identified as follows:
1, "Whether or not the trial court has the jurisdiction to entertain the suit abinitio having regard to the parties been not agencies of the Federal Government and the subject matter being a simple contract" (Ground3).
2. "Whether or not the trial court has the requisite jurisdiction to hear the suit having regard to the writ of summons/originating processes did not contain the address of the respondent as required by Order 4 Rule 1 of the Federal High Court Rule 2009" (Ground 1).
3. "Whether or not the trial court has the jurisdiction to hear the suit, parties having not explored the option of arbitration pursuant to Article 9 of the contract" (Ground4).
4. "Whether or not the findings of the trial court is not against the weight of evidence before it" (Ground 2)
5. "Whether or not the Honourable trial Judge was right when he held that the Appellant has failed to prove her counter claims and whether the insurance policy of the Respondent cover the damage done to Appellant's aircraft" (Grounds 6 and 7).
The Respondent's Counsel, Ademola Adesinain addition to the Appellant's issues which he adopted formulated a sole issue for determination which reads:
"Whether having regards to the case of the Respondent as adumbrated in the statement of claim and evidence before the court (both oral and documentary), the trial court was not right in giving judgment to the Respondent and dismissing the Appellant's counter-claim"(Grounds 2,5, 6 and 7).
I shall be guided by the issues distilled by the Appellant as they encompass the sole issue identified by the Respondent.
ISSUE ONE
"Whether or not the trial court has the jurisdiction to entertain the suit abinitio having regard to the parties not Agencies of the Federal Government and the subject matter being a simple contract"
On this issue, learned counsel for the appellant submitted that the Federal High Court lacks jurisdiction to entertain the suit the parties being limited liabilities companies not one of the agencies of the Federal Government. That it is only where the agencies of the Federal Government are involved that the Federal High Court is clothed with the requisite jurisdiction to entertain the suit by virtue of section 251 of the Constitution of the Federal Republic x of Nigeria, 1999 (as amended) and the case of Federation Vs Abubakar (2007) 8 NWLR (part 1035) 117 at 147 paragraph G, N. R. C. Vs Cudjoe (2008) 10 NWLR (part 1095) 329 paragraph B, NEPA Vs Edegbero (2002) 18 NWLR (part 798) 79-100 paragraphs H-C, Federal Housing Authority Vs John Shoy International Ltd. (2005) 1 NWLR (part 908) 637 at 642 and N-UE.E. Vs B.P.E (2010) 7 NWLR (part 1194) 538 at 573-574 paragraphs E-B.
He urged the court to hold that, since none of the parties is an agency of the Federal Government and none of the reliefs sought is against any enactment of the Federal Government, the Federal High Court lacks jurisdiction to entertain the suit.
Learned counsel submitted further that assuming without conceding the parties are agencies of the Federal Government clothed with jurisdiction under section 251(1) (k) of the 1999 Constitution of Nigeria (as amended), the subject matter of litigation is a simple contract not aviation perse. That the word "Aviation" and "Safety of Air Craft" mentioned in section 251 of the Constitution does not include or envisage a simple contract of service between two limited liabilities companies. That it trite the express mention of a thing excludes the other. The court was referred to Awuse Vs Odili (2004) All FWHR (part 212) 1611 at 1664 paragraphs A-C. Jammal Steel Structures Ltd Vs African Continental Bank Ltd (1973) A. N. L. R. Volume 1 852 at 853, Onuorah Vs K.R.P.C. Ltd (2005) 6 NWLR (part 921) 393 at 408-409 paragraphs H-B among others.
He urged the court to resolve the issue against the Respondent.
Learned counsel for the respondent in response, submitted that by the provisions of section 251(l)(d)(e)(f) and (k) of the Constitution, Federal High Court has jurisdiction in matters relating to, or connected with Aviation and safety of Aircrafts, That Federal High Court has assumed jurisdiction and adjudicated on matters before it even though the parties before it were not Federal Government agencies. He referred to Yalaju-Amaye Vs A.R.E.C Ltd (1990) 4 NWLR (part 145) 422 at 441-442) Longe Vs F.B.N. Pic (2010) 6 NWLR (part 1189) 1 and Societe Bancaire (Nig) Ltd Vs Delluch (2012) 2 BFLR 326 at 339.
Submitted further, that the provisions of section 251(l)(k) of the Constitution is clear on the jurisdiction of the Federal High Court on aviation and safety of aircraft. That the provisions of the Constitution must be given their liberal or constitutional meanings. The court was referred to Attorney General of Abia State Vs Attorney General of the Federation (2005) 12 NWLR (part 940) 452 and Oloruntoba-Oju and 4 others Vs Abdul-Raheen and 3 others (2009) 506 SC (part 11) 1.
That the Respondent's action as adumbrated in the statement of claim falls squarely within the contemplation of section 251(1) (k) of the Constitution.
It is also submitted that reliefs and pleadings in the writ of summons and statement of claim determines the jurisdiction of the court. The case of L.S.W.C Vs SAKAMORI CONST. (NIG) LTD (2011) 12 NWLR (part 1262) 569 at 594 and paragraph 3-8 of the statement of claim were referred.
Also referred is paragraph 3 of the statement of Defence where appellant admitted paragraphs 3-8 of the Respondent's statement of claim. Relying on the case; of Balogun Vs Yusuf (2010) 9 NWLR (part 1200) 515 at 537 that it is trite, facts admitted need no further proof.
That contrary to the submission of the Appellant that this suit is a simple contract, St is submitted that the suit is connected with and directly related to aviation and safety of the Appellant's aircraft to which the Constitution vests jurisdiction on the Federal High Court under section 251(1) (k). That by section 2(1) of the Civil Aviation Act, cap 13, Laws of the Federation of Nigeria, 2006, Civil Aviation is defined thus:
"Civil aviation operation" includes ground handling operations and other businesses connected with or ancillary to civil aviation".
Also submitted is that by a community reading of section 251(l)(k) of the Constitution and section 78 of the Civil Aviation ' Act, the Federal High Court is vested with jurisdiction to entertain this matter. Moreso when the claim of the Respondent at the lower court was an order for payment for the "provision of Ground Handling Services" rendered by the Respondent to the Appellant in the outstanding sum of N277,420,978.19k. That the ground handling services rendered to the Appellant by the Respondent included safety measures, moving of aircraft etc.
Also that the contract between the Appellant and the Respondent is statutorily required under the Civil Aviation Act and cannot be severed from "aviation and safety of aircraft" as it is being attempted by the Appellant.
In reply on point of law the appellant's counsel submitted that the literal meaning of section 251(l)(k) does not apply to cases of contract. That jurisdiction of court cannot be expanded. He referred to Adelekan Vs ECU-line NV (2006) 12 NWLR (part 993) 33 at 52 paragraph G and Tukar Vs Governor of Gongola State (1989) 4 NWLR (part 117) 517.
The contention of the appellant is that the parties being limited liability companies, not one of the agencies of the Federal Government, the Federal High Court lacks jurisdiction to entertain their suit.
Jurisdiction is the very basis on which any court tries a case. It is the lifeline of all trials. A trial without jurisdiction is a nullity. This importance of jurisdiction is the reason why it can be raised at any stage of a case be it a trial, on appeal to the Court of Appeal or to the Supreme Court see Ajayi Vs Adebiyi (2012) 5 SCNJ 458 at 466.
Jurisdiction of the Federal High Court is provided under section 251 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The case of the parties is that sometimes in August, 2007 the Appellant and the Respondent entered into a standard Group Handling agreement of service wherein the Respondent agreed to render services such as loading and off loading of the luggages from the Appellants Air craft in the airport, including ramp services, safety measures, moving of aircraft, general ground operation and other related services.
The relevant things to be considered by the court in determining the issues of jurisdiction are the facts as to the writ of summons and statement of claim and facts deposed to in affidavits.
The argument of the appellant is that section 251(1)(k) of the 1999 does not confer jurisdiction on the Federal High Court in this case being a case of simple contract between the parties both of which a limited liability company and not an agency of Federal Government. This is not true. Section 251(1) of the Constitution provides:
"Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil cases and matters. 251(1)(k) aviation and safety air craft".
Federal High court shall have jurisdiction in matters related to aviation and safety of aircraft. It follows therefore by the proviso to section 251(1) of the Constitution of Nigeria 1999 (as amended) nothing in the provisions of paragraph 251(i)(k) shall . prevent the Respondent from instituting its action at the Federal High Court against the appellant, the Federal High Court having possessed the requisite jurisdiction. This is so because the contract between the parties which is not disputed by them relate to aviation services and not a simple contract without more as contended by the appellant. By virtue of section 251(1)(k), aviation means aviation related matters as stated in the section. The Federal High Court therefore has exclusive jurisdiction over such aviation matter arising from the contractual agreement between the Appellant and the Respondent In the instant case the claim of the Respondent arose from a contract of aviation services with the Appellant. Their relationship is that both parties are engaged in the business of aviation. It is the Federal High Court that has jurisdiction over their matter. Section 251{l)(k) of the Constitution provides that notwithstanding anything to the contrary contained in this Constitution, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in aviation and safety of aircraft.
It is settled law that in interpreting a Constitutional provision the court should adopt a broad approach to the process. Also settled in the principle that where words of the Constitution or Statute are plain, clear and unambiguous, they must be given their natural, ordinary meanings as there is nothing, in effect to be interpreted. See PDP Vs CPC (2011) 10 SCNJ 35, Nigerian Army Vs Aminu Kano (2010) 5 NWLR (part 1188) 429 at 460, Attorney General Abia State Vs Attorney - General of the Federation (2006) 16 NWLR (part 1005) 255 and Ehuwa Vs O.S.I.E.C. (2006) 18 NWLR (part 1012) 544.
Be that as it may, we cannot read into the Constitutional - provision what is not contained therein-
The 1st issue is therefore resolved in favour of the Respondent against the appellant.
ISSUE TWO
"Whether or not the trial court has the requisite jurisdiction to hear the suit, having regard to the writ of Summons/Originating process did not contain the address of the Respondent as required by Order 4 Rule 1 of the Federal High Court Rules 2009".
It is submitted for the Appellant that the instant case was not initiated by the due process of law as required by the said order 4 Rule 1 of the Federal High Court Rules 2009. That the Writ of Summons/Originating process having not contained the address of the Respondent is incompetent and same should be struck out.
It is submitted that the word "shall" used in the rules is mandatory and failure to meet those requirements is fatal to the competence of the suit. That where the word "shall" is used in an enactment it connotes mandatoriness. The court was referred to the following cases. Buhari Vs INEC (2008) 19 NWLR (part 1120) 246 at 366-367. Paragraphs H-B, Ameachi Vs INEC (2008) All FWLR (part 407) 1 at 98 paragraphs C-D, Algbobahi Vs Aifuwa (2006) All (part 303) 202 and Nnajiofor Vs Ukonu (1986) 4 NWLR (part 36) 505 among others
It is further submitted that the Writ of Summons is defective and the implication is that there is no writ to sustain the Respondent's claim as same is incompetent and liable to be' struck out. !"!
That contrary to the provision of Order 13 Rule 11 of the Rules of court, the Respondent in her reply to the statement of Defence and counter claim filed on 17/07/2009 at pages 1151-1157 of volume 2 of the Record raised fresh allegations not V contained in the statement of claim which amounts to amending the statement of claim in a manner prohibited by the Rules of court. It is contended that the trial's court reliance on the t irregular statement of claim without formal amendment of same 1 occasioned a miscarriage of justice. Learned counsel for the Appellant referred to paragraphs 4,7,8{a)(b)(c), 9a(i)(ii), 11, 12, 15, 16, 19(i)(ii)(iii),{iv) and 20 of the said reply at pages 1153, 1154, 1155, 1156 and 1157 of volume 2 of the record. He urged the court to strike out those paragraphs.
Relying on C.C.B. (Nig.) Vs Attorney General of Anambra State (1992) NWLR (part 261) 528 and Olokere Vs African Newspaper (1993) 5 NWLR (part 295) 583, it is finally submitted that Rules of court must be obeyed by strictly complying with same. That the Rules bind the parties to the proceedings and regulate the proceedings by which a relief is sought. He urged the court to resolve the issue in favour of the Appellant.
Responding, it is submitted that the argument proffered by the Appellant on non compliance with the Rules of court should be dismissed in it's entirely. That the Appellant took several steps in the proceedings and fully defended the action to conclusion and only raised the issue of non compliance with the Rules of court for the first time in its final written address. Learned counsel for the Respondent referred to Order 29 the Federal High Court Rules, 2009, that the appellant did not file any "application" before the trial court to challenge the jurisdiction of the court on the grounds of non-compliance with Order 4 Rule 1 to entertain the Respondent's action. It is submitted that the Appellant's complaint based on mere irregularity is not fundamental or fatal to the case of the Respondent. He relied on CBN Vs Amao (2010) 16 NWLR (part 1219) 171 at 293 paragraphs E-F and Bajoga Vs Government of Federal Republic of Nigeria (2008) 1 NWLR (part 1067) 85 at 115 paragraph C-E. That the Appellant having taken steps in the proceedings it has waived its right to complain about the irregularity at this stage.
It is also submitted that Appellant has not alleged miscarriage of justice or denial of fair hearing on the basis of non compliance with the Rules. The court was referred to Nkwocha Vs Governor of Anambra State (1984) 6 SC 362 and Oloruntoba-Oju and 4 others Vs Abdul-Raheem and 3 others (2009) 5-6 S.C (part 11), Obiechefu Vs Governor of Imo State (2008) 14 NWLR (part 1106) 22 at 46 and Famfa Oil Ltd Vs A.G.F (2003) 18 NWLR (part 852) 453 among others.
On the Appellant's allegation that the Respondent raised fresh allegations not contained in the statement of claim. It is submitted for the Respondent that the alleged offending paragraphs of the Respondent's reply are answers to the allegation and claims contained at paragraphs 2, 4 and 23 of the statement of defence/counter claim of the Appellant. That the Respondent's reply only rebutted the allegations contained the Appellant's statement of defence/counter claim. That the Respondent did not raise any new issues in its reply as contemplated by the Appellant. He urged the court to resolve the issue against the Appellant.
The Appellant contended that the Writ of Summons is I defective for failure to comply with order 4 Rule 1 of the Federal High Court Rules, 2009 which provides that the process shall 1 contain the address of the plaintiff and which is not so contained SI in the Writ of Summons filed by the Respondent at the trial court,
The Respondent argued that the Appellant having failed to challenge the jurisdiction of the court on non compliance by virtue of Order 29 of the Federal High Court Rules and having taken steps in the proceedings from the beginning to its conclusion, it has waived its right to complain at this stage.
The point here is that the Appellant did not deny that the court processes were brought to its knowledge, having knowingly thereafter taken steps in the proceedings.
At pages 714-724 of volume 2 of the Record it is the Appellant's memorandum of appearance, Statement of Defence and counter claim. A list of witnesses is attached and reflected at page 725 of volume 2 of the record. The Appellant duly entered I appearance and participated in the proceedings.
The practical effect of the steps taken by the Appellant was that it had waived the non compliance with Order 4 Rule 1 of the Federal High Court Rules. Non compliance amounts to no more than a mere irregularity which can be waived and indeed has been deemed waived in the circumstances of this case.
This court in N.B.C. Plc Vs Ubani (2014)4 NWLR (part 1398) 421 held that the concept of waiver as articulated in the cases of Artori Vs Elemo (1983) 1 SCNLR 1 and Kano State Urban Development Board Vs Fanz Construction Comp. , Ltd (1990) 4 NWLR (part 142) equals to simply failing to take I advantage of a right very obvious to a party where it is clear that j there is no other reasonable presumption in explanation of the ; party's steps so far taken in the proceedings before the court than that the right is let to go; that is he has acquiesced in his right. The consequences of waiver defeated the issue of non compliance. See also Menakaya Vs Menakaya (2001) 16 NWLR (part 738) 203, CBN Vs Amao (2010) 16 NWLR (part 1219) 271 and Bajoga Vs Government of Federal Republic of Nigeria (2008) 1 NWLR (part 1067) 85 at 155.
Moreso Order 51 of the Federal High Court Rules 2009 is to the effect that where there is failure to comply with any of requirement of these Rules in respect of time, place manner, form or content or in any other respect, the failure may be treated as an irregularity, which will not nullify the proceedings.
However Order 4 Rule 5(2) provides:
"Where a plaintiff sues through a legal practitioner, the legal practitioner shall state on the originating process:
a) the legal practitioner's chamber's address as the address of service".
At page 4 of volume 1 of the record last paragraph it is stated thus:
"This writ was issued by Olumide Olaiya Esq, of Dele Adesina and Comp. City Gate Chambers. Address for service is 109, Opebi Road, Ikeja Lagos Practitioner for the said plaintiff who resides at C/o the Plaintiff's Solicitors City Gate Chambers, 109, OpebiRoad, Ikeja, Lagos"
This goes to show that the Respondent is in compliance with Order 4 of the Federal High Court Rules 2009, the process having been initiated by its counsel whose address is so reflected therein in the Writ of Summon issued in this proceedings.
On the allegation by the Appellant that the Respondent raised fresh issues in its reply to Appellant's statement of Defence/counter claim, the Respondent rebutted, that its reply is in response to the Appellant's allegation in its statement of Defence/counter claim.
I have perused the statement of Defence/counter claim of the Appellant at pages 716-724 of the Record, volume 2 and the Respondent's reply reflected at pages 764-775 of volume 2 of the Record, the alleged-new issues raised contended by the Appellant against the Respondent are nothing but reply to the Appellant's statement of Defence/counter claim. The issues are not new as argued by the Appellant. The Appellant is only being technical as the Record of Court is glaring clear on these issues.
It is trite that where there is a counter claim, reply becomes' necessary otherwise the counter claim would be deemed admitted. See Usman Vs Garke (2003) 14 NWLR (part 840) 216 SC.
The court is more interested in substance, justice can only be done if the substance of the matter is examined, for reliance on technicalities to the detriment of substantial injustice leads to injustice. See Mfa Vs Inogha (2014) 4 NWLR (part 1397) 343 at 346. State Vs Gwonto (1983) 1 SCNLR 142 and Ikechukwu Vs Nwoye (2014) 4 NWLR (part 1397) 227 S.C.
Issue 2 is resolved in favour of the Respondent against the Appellant.
ISSUE 3
"Whether or not the trial court has the jurisdiction to hear the suit, parties having not explored the option of arbitration pursuant to Article 9 of the contract"
It is submitted for the Appellant on this issue that the Respondent did not explore the option of arbitration pursuant to Article 9 of the contract before rushing to the Federal High Court. That where there is a provision for arbitration in any contract, that option must first be explored before going to court. Learned counsel for the appellant referred to the case of Maritime Academy of Nig. Vs A.Q.S (2008) (part 406) 1872 at 1886 paragraph G.
Relying on the case of Okolo Vs Union Bank of Nigeria Ltd (2004) All FWLR (part 197) 981 at 992 paragraph F he urged the court to strike out this suit for want of jurisdiction and resolve the issue in favour of the Appellant,
Learned counsel for the Respondent in response referred to paragraph 27 of the statement of claim at page 11 of volume 1 of the Record where it is deposed that the Appellant refused to submit to arbitration and also refused on other settlement approaches including the intervention of the Honourable Minister of Aviation and the Nigerian Civil Aviation Authority as deposed in paragraph 20 of the statement of claim at page 9 of the record, volume 1. Thatthe appellant having failed to join issues with the Respondent on this point, it is deemed to have admitted the averment. On this submission he referred to the following cases. Salaudeen Vs Mamman (2000) 14 NWLR (part 686) 63, Ojukwu Vs Onwudiwe (1984) 1 5CNLR 247 at 284 paragraph E.
It is submitted further that arbitration clause in the agreement between the parties is not a condition precedent for commencement of any action before a regular court.
Learned counsel for the Respondent referred to clause 9 in the agreement titled Arbitration which provides thus:
"In the event of any dispute or claim concerning the scope, meanings, construction or effect of this Agreement the parties shall make ail reasonable efforts to resolve disputes amongst themselves. Failing mutual resolution of the dispute the parties may elect to resolve the dispute through arbitration (either by a single arbitrator or a panel of arbitrators). In the event that the parties fail to agree to an arbitration process, the dispute shall be settled in accordance with the laws of the state or jurisdiction set out in Annex(es) by the courts without regard to conflict of laws".
That the operative word in the above clause is "may" which is not mandatory. He relied on the case of Kurubo and anor Vs Zach-Motison Nig. Ltd (1992) 5 NWLR (part 239) 102 at 177 paragraph c per Niki Tobi JCA (as he then was) held that:
"Before a court of law can refuse jurisdiction, the arbitration clause must be mandatory, precise and unequivocal. And in this respect the arbitration clause must be mandatory that and not permissive and discretionary "may"
He urged the court to resolve the issue in favour of the Respondent,
Where parties to an agreement make provision for arbitration before an action can be Instituted in a court of law, any aggrieved party must first seek remedy available in the arbitration. Where a plaintiff fails to refer the matter to arbitration first, but commences an action in a court of law, a defendant shall take steps to stay the proceedings of the court and the court will stay the proceedings if it is satisfied that there is no sufficient reason why the matter should not be referred in II accordance with the agreement.
However the Respondent as plaintiff deposed in paragraph 27 of its statement of claims at page 31 of the record this:
"The plaintiff avers that the Defendant had failed. Ignored, neglected and or willfully refused to settle its indebtedness or any sum at all and have I consistently frustrated alt efforts at amicable settlement of the dispute including the request to resolve the subject matter of this suit by Arbitration
At page 719 of volume 2 of the record the Appellant in response to the Respondent's averment denied paragraph 27 of the Respondent's averment in paragraph 28 of its statement of Defence and counter claim that it paid all the proved and lawful sums its owes the plaintiff without joining the issue with the Respondent to resolve the matter by arbitration. What this means is that the refusal of the Appellant to resolve the matter by arbitration is admitted and remained unchallenged. Unchallenged evidence is deemed admitted - Tukur Vs I. P. E. S. Ltd (2014) 17 NWLR (part 1437) 575 at 578.
In the instant case, the averments in paragraph 27 of the Respondent's Statement of Claim were facts and therefore need no further proof in the absence of any denial.
The effect of their being unchallenged amounts to admission without further proof. Where a defendant is completely silent on an issue raised by the plaintiff in his pleadings, he is in law deemed as having admitted the averment - N.B.C Plc Vs Ubani (supra) see Ajagbe Vs Layiwola Idowu (2011) 6 SCNJ 506 and Chief (Dr.) Pere Ajuwa and anor Vs The Shell Petroleum Dev. Comp. of Nig. Ltd, (2011) 12 SCNJ 596
In the instant case the Appellants silence on the issue of arbitration amounts to admission. It cannot be heard to complain. Moreso when an arbitration clause in an agreement is only procedural in that a provision whereby the parties agree that any dispute should be submitted to arbitration does not exclude or limit rights or remedies but simply provides a procedure under which the parties may settle their grievances. It is not an exclusion or ouster-clause properly so called. Thus the patties are free, such close notwithstanding, to persue their claims in the courts - R.C.O. and S. Ltd Vs Rainbownet Ltd (2014) 5 NWLR (part 1401) 516 at 520. See also Kaw State Urban Dev. Board Vs Fanz Construction Co. Ltd (1990) 4 NWLR (part 142) 1, City Eng. (Nig.) Ltd Vs F.H.A. (1997) 9 NWLR (part 520) 224 and Royal Exchange Assurance Vs Bentworth Finance (Nig.) Ltd (1976) 11 SC 183.
Issue 3 is therefore resolved in favour of the Respondent against the Appellant,
ISSUE FOUR
"Whether or not the findings of the trial court is not against the weight of evidence before it".
On this issue it is submitted for the Appellant that the Respondent in her evidence at the trial court presented imprecise conflicting and unreliable invoices and bills which by their very nature must be reconciled before a debt can be established. That no attempt whatsoever was made at the trial court to explain the discrepancies. Pages 343-319 and 660-679 of volume 1 of the record were referred. Relying on the case of National Bank of Nigeria Ltd Vs Deborah Opeola (1994) 1 NWLR (part 319) 126 at 139 and section 131 of the Evidence Act, it is submitted that the burden of proof in civil cases lies on the party who asserts. He referred to exhibits C^C6 letters of demand by the Respondent to the Appellant at pages 1068-1071 of volume 2 of the record, that exhibit C6 titled customer account summed up was not signed but the trial court relied heavily on it and gave judgment against the Appellant.
Also referred to are pages 647-650 of volume 1 of the record and the following cases. Omega Vs Bank (Nig.) Plc Vs OBC Ltd (2005) 8 NWLR (part 928) 547 at 576 paragraphs E-F and Agbi Vs Ogbe (2006) 11 NWLR (part 990) 65 at 119 paragraphs B-C.
Appellant's counsel also referred to the evidence of PW1 -PW4 at Pages 1066-1086 of volume 2 of the record. That the evidence of PW2 has been discredited under cross-examination. The court was referred to Kalgo Vs Kalgo (1999) 6 NWLR (part 608) 639 at 645 paragraphs F-G and Exhibits B-B at pages 630-651 of volume 1 of the record. He also referred to Aja Vs Okoro (1991) 7 WLR (part 203) 280 at 282, Himma Merchants Ltd Vs Aliyu (1994) 5 NWLR (part 347) 667, Uzuegbu Vs Udegwu (2003) 13 NWLR (part 836) 136 at 151 among others and submitted that the judgment of the trial court is grossly against the weight of evidence. He urged the court to resolve in favour of the Appellant.
ISSUE FIVE
"Whether or not the Honourable trial judge was right when he held that the Appellant has failed prove her counter claims and whether the insurance policy of the Respondent cover the damage done to the Appellant's aircraft".
Appellant's cou