ENL CONSORTIUM LTD v. SHAMBILAT SHELTER NIG. LTD (2020)

ENL CONSORTIUM LTD v. SHAMBILAT SHELTER NIG. LTD

(2020)LCN/14205(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, May 14, 2020

CA/A/116/2018

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Between

ENL CONSORTIUM LIMITED APPELANT(S)

And

SHAMBILAT SHELTER NIG. LTD RESPONDENT(S)

RATIO

DEFINITION OF AN ARBITRAL AWARD

An arbitral award is the decision of an Arbitrator or Arbitrators to whom parties in dispute refer their misunderstanding or disputes for resolution. It is an alternative dispute resolution. The significant element of it is that parties voluntarily or mutually agree to be bound by the decision or award of an Arbitrator or Arbitrators appointed by them. Once the award is made it becomes self-executory and enforceable. Where the award is made and it is final, the award enjoys the same efficacy as a judgment of a Court. Unless it is set aside by due process under the applicable laws the decision or on award constitutes res judicata between the parties to it. See:
1. RAS PALGAZI CONSTRUCTION COMPANY LTD V. FCDA (2001) LPELR – 2941 SC PAGE 1 AT 13 – 14 per KATSINA-ALU, JSC later CJN who said:-
“A valid award on a voluntary reference no doubt operates between the parties as a final and conclusive judgment upon all matters referred. It should be remembered that when parties decide to take their matter to arbitration, they are simply opting for an alternative mode of dispute resolution. It must be emphasized that the parties have a choice to either go to Court and have their dispute determined by the Court or refer the matter in dispute to an arbitrator for resolution. Reference to arbitration, the mode adopted by the parties in the present case is consistent with the agreement executed by both parties. Arbitration as an alternative mode of dispute resolution has for decades been given legal backing. See Arbitration and Conciliation Act of 1988. See also the cases of Commerce Assurance Ltd V. Alhaji Buraimoh Alli (1992) 3 NWLR (Pt. 232) 710: KSUDB V. Fanz Construction Co Ltd (1990) 4 NWLR (Pt. 142) 1. An arbitrator’s award under the provisions of Section 4(2) of the Act when filed In Court should for all purposes have the force and effect as a judgment.
Order 22 Rule 13 of the Abuja High Court (Civil Procedure) Rules 1985 provides:
“13. If no application is made to set aside the award or to remit it or any of the matters referred for reconsideration or if the Court shall have refused any such application, either party may file the award in Court, and the award shall thereupon have the same force and effect for all purposes as a judgment.” PER IGE, J.C.A.

AN ARBITRATION AGREEMENT

MAINSTREET BANK CAPITAL LTD & ANOR V. NIGERIA REINSURANCE CORPORATION PLC (2018) 14 NWLR (PART 1640) 423 AT 444 B – E per KEKERE-EKUN, JSC who said:-
An arbitration agreement is an agreement by which two or more parties agree that present or future disputes shall be resolved by arbitration. An arbitration clause is often included as part of the terms of a broader contract. Black’s Law Dictionary, 8th edition, defines “arbitration” as
“a method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding.”
The neutral third party is the arbitrator. See: NNPC V. Lutin Investments Ltd & Anor. (2006) 2 NWLR (Pt. 965) 506; Magbagbeola V. Sanni (2005) 11 NWLR (Pt. 936) 239; Kana State Urban Devt. Board V. Fanz Const. Co. Ltd. (1990) 4 NWLR (Pt. 142) 1.
A major feature of arbitration is that it is consensual. The parties have a choice. They may decide to have their dispute resolved by a Court of law or they may choose to have it decided by an arbitrator. See: Ras Palgazi Const. Co. Ltd. V. FCDA. (2001) LPELR-2941 (SC) @ 12 E – F; (2001) 10 NWLR (Pt. 722) 559. Where they opt for arbitration, the parties are free to choose how the arbitration is conducted including the law that guides the process, provided that the procedure and the law agreed upon are not against public policy. The duty of the Court is to respect and practice upon the wishes of the parties and not to make a contract for them or rewrite the one they have already made for themselves. See: JFS. Investments Ltd. V. Brawal Line Ltd & Ors. (2010) 18 NWLR (Pt.1225) 495; Sona Breweries Plc. V. Peters (2005) 1 NWLR (Pt. 908) 478: Owoniboys Tech. Services Ltd V. U.B.N. Ltd (2003) 15 NWLR (Pt. 844) 545. PER IGE, J.C.A.

THE PRINCIPLE OF NATURAL JUSTICE AND FAIR HEARING

“On the complaint of the appellant on being denied fair hearing, he says his brief of argument was not considered at all by the Court below. Indeed a hearing can only be fair or said to be fair when both parties to the dispute are given a hearing or an opportunity of a hearing, that is, fair hearing does not necessarily mean oral hearing. If one of the parties is refused or denied a hearing or not given an opportunity to be heard, the hearing cannot be qualified as fair hearing. Therefore, when the parities in an appeal are not heard or given an opportunity of being heard in the appeal, the hearing by the Court of Appeal cannot be said to be fair.
Without fair hearing, the principles of natural Justice are abandoned and without the guiding principle of natural Justice, the concept of the Rule of Law cannot be established and grow in the society.”
Whenever the rights and obligations of a person or party to the proceedings is involved or at stake, all conditions precedent to hear him or her must be strictly and scrupulously complied with by serving him all relevant processes filed in a cause or matter. See:-
1. MOHAMMED MARI KIDA V. A. D. OGUNMOLA (2006) 13 NWLR (PART 997) 377 AT 393 F-H TO 394 A-B per MUSDAPHER, JSC later CJN of blessed memory who said:-
It is trite law, that after its issue a writ of summons or any originating process must be properly served on the defendant. Without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service is therefore to give notice to the defendant of the claims against him, so that he may be aware of, and be able to resist, if he desires to, that which is claimed against him. Where service of a process is legally required the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served with the process is entitled ex debito justitae to have the order set aside as a nullity. See Obimonure V. Erinosho (1966) 1 All NLR 250: Mbadinuju V. Ezuka (1994) 10 SCNJ 109, (1994) 8 NWLR (Pt. 364) 535: Skenconsult (Nig.) Ltd. V. Ukey (1981) 1 SC 6: Adeigbe V. Kusimo (1965) NMLR 284. Service of the originating process has been held to be a condition precedent to the exercise of jurisdiction by the Court out of whose registry the originating process was issued. See National Bank (Nig.) Ltd. V. Guthrie (Nig.) Ltd (1993) 4 SCNJ at 17; (1993) 3 NWLR (Pt. 284) 643.
2. COMPACT MANIFOLD & ENERGY SERVICES V. PAZAN SERVICES (NIG) LTD (2020) 1 NWLR (PART 1704) 70 AT 96 F – G per ABBA-AJI, JSC who said:-
“May I dwell on the issue of hearing notice that was allegedly not served on the appellant as amounting to denial of fair hearing. It is however the mode of service that is being challenged by the appellant’s learned counsel in this appeal to have denied him fair hearing. Failure to give notice of proceedings to the opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is so because the Court would have no jurisdiction to entertain it.” PER IGE, J.C.A.

INTERPRETATION OF STATUTES BY THE COURTS

The settled position of the law is that provisions of a statute must not be constructed in a way as would defeat the intendment of the Statute and the desire of the Legislature. The Court should not interpret the provisions of the statute to defeat the obvious end it was meant to serve otherwise it will entail injustice. Where the words of the statute are plain and unambiguous the literal interpretation should be followed. See (1) APC & ANOR V. ENGR. SULEIMAN ALIYU LERE & ANOR (2020) 1 NWLR (PART 1705) 254 AT 284 F – G per RHODES-VIVOUR, JSC who said:-
“Where the words used in a statute are clear and free from ambiguity they should be read and construed as it is without any interpretations or embellishments. The words should be given their ordinary meaning except where such a construction would be ridiculous, not logical and sensible. See A. -G., Anambra State V. Federation (1993) 6 NWLR (Pt. 302) p. 692: Mobil V. F.B.I.R. (1977) 3 SC p.53; Toriola V. Williams (1982) 7 SC P. 27. The words used in the statute supra are clear and unambiguous. They should be given their plain ordinary meaning which is not in doubt.
2. HON. HENRY SERIAKE DICKSON V. CHIEF TIMIPRE MARKIN SYLVA & ORS (2017) 8 NWLR (PART 1567) 167 at 233 D – F per KEKERE-EKUN, JSC who said:
“The law is settled that in the interpretation of Statutes, where the words are clear and unambiguous, they must be given their natural and ordinary meaning. See: Ibrahim V. Barde (1996) 9 NWLR (Pt. 474) 513 @ 577 8-C: Ojokolobo V. Alamu (1987) 3 NWLR (Pt. 61) 377 @ 402 F – N. The exception is where to do so would lead to absurdity. See: Toriola V. Williams (1982) 7 SC 27 @ 46: Nnonye V. Anyichie (2005) 1 SCNJ 306 @ 316, (2005) 2 NWLR (Pt. 910) 623. Where an interpretation will result in breaching the object of the statute, the Court would not lend its weight to such an interpretation.
See: Amalgamated Trustees Ltd. V. Associated Discount House Ltd. (2007) 15 NWLR (Pt. 1056) 118.”
3. INEC V. ABBA KABIR YUSUF & ORS (2020) 4 NWLR (PART 1714) 54 AT 410 A – H per PETER-ODILI, JSC who said:-
“Without question, the Court is enjoined to interpret statutes as they are without going outside it to bring in what the Court would think was intended. I shall refer to some dicta of this Court in that wise. See Obi V. INEC & Ors (2007) LPELR-2166(5C): (2007) 11 NWLR (Pt. 1046) 560 at 643 paras. F – G wherein Aderemi, JSC put it admirably thus: –
“The intention of the legislature or put bluntly, the intention of National Assembly at the federal level or the State House of Assembly at the State level, is not to be judged by what is in its mind but by its expression of that mind couched in the words of the statute. If at the end of the interpretative exercise carried out on the provisions of statute or Constitution, a judex’s personal conviction as to where the justice and rightness of the matter lies is returned, that would make the judiciary lose its credibility, authority and its legitimacy…”
Interestingly, the appellant cited G.C.M Ltd. V. Travellers Palace Hotel (2019) 6 NWLR (Pt.1669) 507 at 530-531, paras. D-B per Augie, JSC;
“There are also three basic rules of statutory interpretation – the Literal Rule is the first rule applied by Judges. Here, Judges rely on the exact wording of a statute for the case. They will be read literally and the Judges will take the ordinary and natural meaning of a word and apply it, even if doing so. creates on absurd result. The next rule is the Golden Rule, which is a modification of the literal Rule, to be used to avoid an absurd outcome. It is used where the literal rule produces a result, where lawmakers: intention would be circumvented, rather than applied. This rule was defined by Lord Wensleydale in Grey V. Pearson’s case (1857) as:
‘The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency but no farther’. PER IGE, J.C.A.

JUDGEMENT IN BREACH OF FAIR HEARING

The law is settled that any judgment or Order made by a Court in violation or breach of fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria 1999 as amended shall be a nullity vide. Section 36(1) of CFRN 1999 as amended and cannot be sustained and must be adjudged to be null and void and of no effect whatsoever.
The entire proceedings conducted by the lower Courtis rendered null and void for breach of fundamental right to fair hearing constitutionally guaranteed to parties in civil or criminal proceedings.
1. VICTINO FIXED ODDS LTD VS JOSEPH OJO & ORS (2010) 4 SCM 127 AT 135 G – I TO 136 A-G per FABIYI, JSC who said:-
“Let me say it right away that the right to fair hearing is a cardinal principle that is provided in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. It provides as follows:
36(1) In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality. It is certain that fair hearing by a Court or other judicial Tribunal under Section 36(1) of the 1999 Constitution – the ground norm, incorporates the audi alteram partem rule. It is that a man can never have a verdict entered against him on a matter relating to his civil rights or obligation before such a Court or Tribunal without being given an opportunity of being heard. The rule is one of the essential cornerstones of our judicial process. See: Amadi V. Thomas Aplin Co. Ltd. (1972) 4 SC 228: Kano N. A. V. Obiora (1959) SCNLR 577.
In its real essence, fair hearing lies in the procedure followed In the determination of the case, not in the correctness of the decision. PER IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court, of Federal Capital Territory, Abuja delivered on 7th August, 2014, in Suit No. FCT/HC/CV/2096/2014 between SHAMBILA SHELTER NIG. LIMITED V. ENL CONSORTIUM LIMITED.

By a Motion Ex Parte No M/6696/2014 dated 6th August, 2014 filed in the said suit, the Respondent prayed the lower Court as follows:-
“MOTION EXPARTE
BROUGHT PURSUANT TO SECTION 31(3) OF THE ARBITRATION AND CONCILIATION ACT 1988
TAKE NOTICE that this Honourable Court be moved on the … day of … 2014 for The Claimant Judgment Debtor Applicant to be heard praying this honourable Court for leave of this honourable Court for the award of the arbitrator (Chief J. K. Godzama) to be enforced in the same manner as the Judgment of the High Court.
B. FOR Such Further order or orders as the Court shall deem fit to make In the circumstance.

The said Motion Ex-Parte was accompanied with a TWELVE PARAGRAPH AFFIDAVIT which read thus:-
“AFFIDAVIT
I, Derck Sirajo Shuaib, Christian, Male, Nigerian Citizen of Suite J23, Sky Memorial Complex, Wuse Zone 5, Abuja,

do solemnly swear and declare as follows:
1. That I am the Solicitors Secretary in the firm of Messrs Shaidah Chambers.
2. That I have the authority of my employers and the applicant to depose to this affidavit.
3. That I was further informed by Counsel handling this case Barr. Ibrahim Angulu of the following facts at Shaidah Chambers on the 03-06-2014 at 3:00pm and I verily believe it to be true.
4. That on the 3/06/2014 an arbitration award was made in favor of the Judgment Creditor, a copy of award is annexed and marked exhibit A.
5. That the judgment Debtor have been served with the award.
6. That the Judgment Debtor have not complied with the award.
7. That there is need to enforce the award so the Judgment Debtor would reap the full benefit of the award.
8. That if the award is not enforced it would be frustrated and rendered nugatory.
9. That the arbitral award arose from a mutual contract between the parties which contained an arbitration clause, a copy of contract is annexed and marked exhibit B.
10. That the Judgment debtor failed and neglected to pay the Judgment Creditor for work done pursuant to

the contract which led to the appointment of the arbitrator and the award.
11. That it would be in the interest of justice to grant the application.
12. That I depose to this affidavit solemnly believing the same to be true by virtue of the oaths act.
Sgd.
Deponent”.

The Order sought was granted as prayed on 7th August, 2014. The Order which is contained on page 63 of the record of appeal reads as follows:-
“IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE VALENTINE B. ASHI
(HON. JUDGE)
ON THE 7TH AUGUST, 2014
SUIT NO: FCT/HC/CV/2096/2014
MOTION NO: M/6696/2014
SHAMBILAT SHELTER NIG. LTD – JUDGMENT CREDITOR/APPLICANT
AND
ENL CONSORTIUM LIMITED — JUDGMENT DEBTOR/RESPONDENT
COURT ORDER
Upon a careful consideration of the Motion Ex-Parte dated 6th August 2014 with the affidavit attached, deposed to by Derek Sirajo Shauibu respectively praying this Honourable Court for the following Order:-
1. An Order granting leave to the Claimant/Judgment Debtor/Applicant in M/6696/14 for the award of the

sole arbitrator (Chief J. K. Gadzama) to be enforced in the same manner as the Judgment of the High Court.
And after considering the submissions of Mathias O. Agboni, Esq of learned Counsel to the Judgment Creditor/Applicant and having determined that the motion has merit.
IT IS HEREBY ORDERED AS FOLLOWS:-
Pursuant to the provisions of Section 31(1) of the Arbitration and Conciliation Act CAP A1 8 LFN 2004, the Arbitral Award made by Chief J. K. Gadzama, SAN, sole Arbitrator in re: SHAMBILAT SHELTER (NIG.) LTD V. ENL CONSORTIUM LTD on the 3rd of June, 2014 is hereby recognized by this Honourable Court to be acted upon by the parties and to be enforced as effectually as a Judgment of this Honourable Court, Forthwith.
GIVEN UNDER THE HAND OF THE HON. JUDGE AND THE SEAL OF THIS HON. COURT THIS 7TH DAY OF AUGUST, 2014
EZE I. E. Esq.
(Snr. Registrar)”

The Appellant was dissatisfied with the Order and has by her Notice of Appeal dated and filed on the 4th day of September, 2014 appealed to this Court on two grounds as follows:-
“2. PART OF THE DECISION OF LOWER COURT COMPLAINED OF:
The whole Ruling.

GROUNDS OF APPEAL
GROUND ONE
The learned trial Judge erred in law when Motion Ex-Parte procedure was followed for the enforcement and recognition of an arbitral award in the sum of N249,620,298.16 (Two Hundred and Forty Nine Million, Six Hundred and Twenty Thousand, Two Hundred and Ninety Eight Naira, Sixteen kobo) against the Appellant.
PARTICULARS OF ERROR
i. Though Section 31(1) of the Arbitration and Conciliation Act CAP A18 LFN 2004 does not stipulate the produce of recognition and enforcement of an Arbitral Award, however, it is trite that where it is sought to enforce a right conferred by a statute but in respect of which no rules of practice and procedure exist, the proper procedure is on Originating Notice of Motion or Summons.
ii. The procedure adapted by the lower Court was one that led to the granting of an order which affected the proprietary interest of the Appellant.
iii. It is trite that a party against whom an order is sought must be put on notice.
iv. Parties and their counsel ought not to be encouraged to file and argue a sole application ex parte when asking for orders which can only be properly made on notice.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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There is no known law that allows an Originating process to be filed, argued and conclude ex parte.
vi. It is imperative that in all circumstances of a case before a Court of law, justice must not only be done but must manifestly and undoubtedly be seen to have been done.
GROUND TWO
The learned trial Judge erred in law when he granted the Respondent leave pursuant to the provisions of Section 31(1) of the Arbitration and Conciliation Act CAP A18 LFN 2004, that the Arbitral Award made by Chief J. K. Gadzama, SAN, Sole Arbitrator in the arbitration proceedings on the 3rd of June, 2014 between parties herein be recognized, be acted upon and be enforced as effectual judgment of the Honourable Court forthwith against the Appellant without affording the Appellant any hearing whatsoever.
PARTICULARS OF ERROR
i. The learned trial Judge ordered the Arbitral Award made by Chief J. K. Gadzama, SAN in the 3rd June, 2014 in the sum of N249,620,298.16 (Two Hundred and Forty Nine Million, Six Hundred and Twenty Thousand, Two Hundred and Ninety Eight Naira, Sixteen kobo) against the Appellant to be enforced as effectual judgment of the lower Court

without hearing the Appellant’s side of the story.
ii. By so doing the Appellant was shut out by the learned trial Judge from responding to processes filed by the Respondent.
iii. Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) guarantees fair hearing to parties in any adjudication.
iv. Whenever the need arises for the determination of the civil rights and obligations of a Nigerian, Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) guarantees to such a Nigerian hearing within reasonable time.
v. It is incumbent on the Court or Tribunal to hear both sides to a dispute not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
vi. The rule of audi alteram partem is not a technical doctrine. It is one of substance, the question is not whether injustice had been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing.
vii. Once an appellate Court comes to the conclusion that a party was

entitled to be heard before a decision was reached but was not given the opportunity of a hearing the order or judgment entered must be set aside.
4. RELIEFS SOUGHT
To allow the appeal and set aside the Ruling of Honourable Justice Valentine B. Ashi delivered on Thursday the 7th day of August 2014.”

The Appellant’s Brief of Argument was dated and filed on the 21st day of January, 2019 while the Respondent’s Brief of Argument dated 24th October 2019 was filed on 25th October, 2019. The Appellant’s learned Counsel filed Appellant’s Reply Brief of Argument on 11th February, 2020. It was dated same date. The said Briefs filed by the parties to this appeal were all deemed filed on 17th February, 2020.

The appeal was heard on the 17th of February, 2020 when the learned Counsel to the parties adopted their Briefs of Argument. The Appellant’s learned Counsel B. J. AKOMOLAFE, ESQ nominated two issues for determination as follows:-
“3.01. Appellant relying on Notice of Appeal filed on the 4th September, 2014 contained at pages 177 through to 181 of the Record of Appeal hereby formulates the following two (2)

issues for determination.
(a) Whether or not the Appellant ought to be put on notice before the grant of Ex Parte application of the Respondent for enforcement and recognition of the Arbitral Award of Chief J. K. Gadzama, SAN issued on the 3rd June, 2014 in the sum of N249,620,298.16 (Two Hundred and Forty Nine Million, Six Hundred and Twenty Thousand, Two Hundred and Ninety Eight Naira, Sixteen Kobo) against the Appellant. (GROUND 1).
(b) Whether or not the recognition of the Arbitral Award of Chief J. K. Gadzama, SAN issued on 3rd June, 2014 and the Order of the trial Court that same be enforced as effectual judgment of the Court without affording the Appellant any opportunity of hearing whatsoever was not contrary to the natural justice rule of audi alteram partem in the circumstances. (GROUND 2).”

The learned Counsel to the Respondent MELA AUDU NUNGHE, ESQ distilled one issue for determination viz:-
“Whether or not the recognition of the arbitral award by the trial Court was done in accordance with the due process of law.”

The appeal will be determined on the issues formulated by the Appellant. I will take the two issues

together.
“1. Whether or not the Appellant ought to be put on notice before the grant of Ex Parte application of the Respondent for enforcement and recognition of the Arbitral Award of Chief J. K. Gadzama, SAN issued on the 3rd June, 2014 in the sum of N249,620,298.16 (Two Hundred and Forty Nine Million, Six Hundred and Twenty Thousand, Two Hundred and Ninety Eight Naira, Sixteen Kobo) against the Appellant. (GROUND 1).
2. Whether or not the recognition of the Arbitral Award of Chief J. K. Gadzama, SAN issued 3rd June, 2014 and the Order of the trial Court that same be enforced as effectual judgment of the Court without affording the Appellant any opportunity of hearing whatsoever was not contrary to the natural justice rule of audi alteram partem in the circumstances. (GROUND 2).”

In respect of issue one, the learned Counsel to the Appellant stated that the lower Court erred in law when he made an order granting recognition to the said arbitral award on an Ex Parte Order as according to him, the Order was premature in the first place. That the application of the Respondent was granted before the expiration of the three months statutory period

given by Section 29(1) of the Arbitration and Conciliation Act 1988 Cap A18 LFN 2004 for a party to apply to set aside on Arbitral Award.

He stated that the arbitral award was issued on 3rd day of June, 2014 and Respondent filed its application for enforcement on 6th of August, 2014 which he said was 2 months and 3 days after the issuance of the Arbitration Award. He submitted that both the application on 6th August 2014 and the Order granted pursuant thereto breached Section 29(1) of the Arbitration and Reconciliation Act. He relied on the case of ATOJU V. TRIUMPH BANK PLC (2016) 5 NWLR (PT. 1505) 252 AT 282 B – H.

He drew attention of the Court to the fact that as at 2/9/2014 the Appellant had applied to the same Federal Capital Territory High Court presided over by HON. JUSTICE A. O. OTALUKA. that while that suit was pending, the same Court presided over by ASHI – J made the Order now appealed against.

He submitted that even if it could be said that the application brought by the Respondent was not premature the Respondent could not have brought the application to recognize the arbitral award vide an Ex Parte Motion. That Appellant ought to

have been mandatorily put on notice of the application.

He stated that although Section 31 of the Arbitration and Conciliation Act Cap A18 LFN 2004 does not stipulate the procedure of recognition and enforcement of an Arbitral Award but contended that where an application seeks to enforce a right conferred by a statute and it provides no rules of practice and procedure, the proper procedure is an Originating NOTICE OF MOTION or SUMMONS. That the Respondent was wrong in this case to have brought its application vide Ex Parte Motion. He relied on Blacks Law Dictionary 8th Edition on what Ex Parte means and the meaning of Motion mode Ex Parte.

That in this case the Order made is not temporary and was made at the instance of Respondent against the interest of the Appellant without giving NOTICE of the Application to the Appellant. That the Order also recognized the Arbitral Award made by Chief J. K. Gadzama, SAN for enforcement in the same manner as the Judgment of the High Court. To the learned Counsel, the order was a permanent Order. The learned Counsel to the Appellant submitted that the very nature an Ex Parte Order is limited in term of period and

cannot determine the civil rights of parties in a civil suit without giving the adverse party a hearing. He relied on the following cases viz:-
1. PROV LIQUIDATOR TAPP IND. V. TAPI IND. (1995) 5 NWLR (PT. 393) 9 AT 38 B and
2. ANIMASHAUN V. BAKARE (2010) 16 NWLR (PT. 1220) 513 AT 542 E-G.

He further submitted that the learned trial Judge should not have made the Order recognizing the Arbitral Award of 3rd June 2014 because it amounted to a final determination of the proprietary interest of the Appellant who was mandated by the Order to obey the award. He stated that the fact that the aforesaid Section 31 of the Arbitration and Conciliation Act does not provide method of application should not be an excuse. That a person against whom an Order is sought must be put on Notice. He relied on the case of IMANI & SONS LTD V. BIL CONSTRUCTION CO. LTD (1999) 12 NWLR (PT. 630) 27 AT 263 E and N.A.A. V. OJIAKOR (1998) 6 NWLR (PT. 553) 265 AT 281 C – D.

He submitted that in as much as interim Order could be made, such Orders are not to determine the civil rights and obligations of the parties in the proceedings as envisaged by the Constitution.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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That it has been held that an application to enforce an arbitral award brought under the Arbitration and Conciliation Act may be made by Motion on Notice while similar application under the Lagos State Arbitration Law must be made by Originating Motion. He relied on the case of STABILINI VISIONI LTD V. MALLINSON & PARTNERS LTD. (2014) 12 NWLR (PT. 1420) 145 AT 179 TO 180 B – B.

On issue two, the learned Counsel to the Appellant said the twin pillars of justice being audi alteram partem and nemo judex in cauca suo were not observed at the trial Court and as such the decision cannot stand in law. He submitted that Appellants constitutional rights to hearing was not observed and it was violated when the lower Court made the Order of recognition and enforcement of the Arbitral Award aforesaid. He adopted his arguments under issue 1 and submitted that the Appellant was unlawfully shut out from being heard. That the Order made by the lower Court is a serious infraction of the Constitutional rights of the Appellant as provided in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended which guarantees hearing to parties in any

adjudication before decisions are taken. He relied on the case of OKADIGBO V. EMEKA & ORS (2011) LPELR – 9187 and ALIMI V. KOSEBINU (2016) 17 NWLR (PT. 1542) 337 AT 360 – 361 H – A. He urged the Court to allow the appeal and set aside the decision of lower Court for being wrongful, unfair, unconstitutional, null and void.

In response to the submissions on the two issues as made by the Appellant’s learned Counsel, the Respondent’s learned Counsel traced the history of the arbitral award by in favour of the Respondent. He stated that from the content of the arbitral award, the Appellant was given 21 days to comply with the award but that the Appellant refused and neglected to pay the award and did not take steps to have it set aside. That the Appellant was expected to set aside the award within 21 days stipulated in the final award.

That the Appellant cannot at this stage feign ignorance of the conclusion reached and the decision of the Arbitrator in the Arbitral Award. He relied on the case of C. N. ONUSELOGU ENT. LTD V. AFRIBANK (NIG) LTD (2005) 1 NWLR (PT. 940) 577 AT 585.

He stated that by virtue of

Section 31(1) of the Arbitration and Conciliation Act Cap 19 LFN 1990 an arbitral award shall be recognized as binding and that subject to Section 32 of the said Act, the award shall be recognized as binding upon application made to the Court. According to the Respondent’s learned Counsel the information to be supplied to the Court when the application is made are:-
(1) The duly Authenticated Original Award or duly Certified Copy thereof.
(2) The Original Agreement or duly Certified True Copy thereof. He relied on the cases of EBOKAN V. EKWENIBE & SONS TRADING CO. (2001) 2 NWLR (PT. 696) 32 AT 34.

He stated that the two requirements were produced to the lower Court. He relied on pages 40 – 62 of the record.

He stated that Section 31(1) of the Arbitration and Conciliation Act shows that a person seeking to enforce an arbitral award should apply to Court. He stated that fortunately or unfortunately Section 31(1) does not specify what type of application to be made to the Court.

He submitted that the motion Ex Parte brought by the Respondent to enforce the arbitral award was sufficient and accords with the letter and spirit of the Section.

That the Act would have said so that such application shall not be made Ex Parte or must be Originating Motion or Motion on Notice if that had been the intention of the lawmaker. That where the language of a statute is clear and unambiguous, the Court must give the word their ordinary meaning. He relied on the case of BALOGUN V. NCSB (2003) 2 NWLR (PT. 1804) 389 and NDIC V. IFEDIEGWU (2003) 1 NWLR (PT. 800) 56.

He submitted that the duty of the Court while considering the application is to look, evaluate the evidence and circumstances of the case with regard to the law. He relied on the case of CHIGBU V. TONIMAS (NIG) LTD (2006) 9 NWLR (PT. 984) 189 AT 120.

According to him, recognition of the award is not the same as enforcement of the judgment. That if the Appellant had been put on Notice they would have withdrawn all the monies in the Bank and there would be nothing to enforce.

That it is clear from the series of application later filed to frustrate the Respondent from realizing the fruits of its labour. He stated that the arbitral award was recognized by ASHI – J. on 7th August 2014 while the Suit of Appellant for non recognition of the arbitration

award which was filed on 2nd of September 2014 in Suit No. CV/229/2014 and that that was the reason given by HON. JUSTICE A. O. OTALUKA for striking out Appellants suit.

On the argument of the Appellant that one of the two pillars of justice that audi alteram partem was not followed, the learned Counsel to the Respondent stated that the Appellant was aware of the existence of the arbitral award and that he also heard because he participated actively in the entire process before the award was made and was ordered to pay the sum awarded within 21 days. That the Respondent waited for 64 days after the award had been made before he applied for the award to be recognized in accordance with the Arbitration and Conciliation Act.

That the Appellant was so indolent as it failed to pay within stipulated time and also failed to apply to set it aside as required by law within the time stipulated in the award. That Appellant cannot now turn round to complain of not having been given fair hearing. That equity aids the vigilant and not the indolent. He relied on the cases of MUHAMMED V. KPALAI (2001) FWLR (PT. 69) – 1404 ST 1495 and IBEKENDU V. IKE (1993) 6 NWLR (PT. 299) 28.

That the Appellant deliberately refused to take steps to enable the Court to hear him when he refused to file relevant process to move the Court to set aside the arbitral award. That Appellant can only blame herself. That Appellant did not make use of sufficient opportunity he was given to have the arbitral award set aside. That time given to Appellant to pay up had elapsed before the Respondent applied for recognition and enforcement of the judgment. That with the opportunity granted to him Appellant cannot be heard to say she was not given a fair hearing. He relied on the cases of OYEGUN V. NZERIBE (2010) 7 NWLR (PART 1194) P. 577 AT 584 and EZEIGWE V. NWAWULU (2010) NWLR (PT. 1183) 159 AT 174 RATIO 19.

He urged the Court to resolve the issue he raised against the Appellant. He finally urged this Court to dismiss the appeal for lacking in merit.

As stated earlier the Appellant filed Reply on 11th February, 2020 and in response to the Respondent’s submissions he stated that all facts contained in paragraphs 4.02 – 4.08, 4.13, 4.22, 4.26 – 4.29 and 4.31 are merely arguments of Counsel to the Respondent in that no such facts exist

on the record of appeal. That learned Counsel to Respondent cannot do that in law as according to him address of Counsel cannot take the place of evidence in a trial.

That Counsel cannot give evidence in his address. That Appellant cannot be accused of tardiness as everything the Respondent did was ex parte according to Appellant’s Counsel, was ex parte.

That Appellant cannot in the circumstance be accused of being tardy or not vigilant. He maintained that Appellant’s right to fair hearing was breached and still urged that the appeal be allowed.

award constitutes res judicata between the parties to it. See:
1. RAS PALGAZI CONSTRUCTION COMPANY LTD V. FCDA (2001) LPELR – 2941 SC PAGE 1 AT 13 – 14 per KATSINA-ALU, JSC later CJN who said:-
“A valid award on a voluntary reference no doubt operates between the parties as a final and conclusive judgment upon all matters referred. It should be remembered that when parties decide to take their matter to arbitration, they are simply opting for an alternative mode of dispute resolution. It must be emphasized that the parties have a choice to either go to Court and have their dispute determined by the Court or refer the matter in dispute to an arbitrator for resolution. Reference to arbitration, the mode adopted by the parties in the present case is consistent with the agreement executed by both parties. Arbitration as an alternative mode of dispute resolution has for decades been given legal backing. See Arbitration and Conciliation Act of 1988. See also the cases of Commerce Assurance Ltd V. Alhaji Buraimoh Alli (1992) 3 NWLR (Pt. 232) 710: KSUDB V. Fanz Construction Co Ltd (1990) 4 NWLR (Pt. 142) 1. An arbitrator’s award under the provisions of

Section 4(2) of the Act when filed In Court should for all purposes have the force and effect as a judgment.
Order 22 Rule 13 of the Abuja High Court (Civil Procedure) Rules 1985 provides:
“13. If no application is made to set aside the award or to remit it or any of the matters referred for reconsideration or if the Court shall have refused any such application, either party may file the award in Court, and the award shall thereupon have the same force and effect for all purposes as a judgment.”
2. MAINSTREET BANK CAPITAL LTD & ANOR V. NIGERIA REINSURANCE CORPORATION PLC (2018) 14 NWLR (PART 1640) 423 AT 444 B – E per KEKERE-EKUN, JSC who said:-
An arbitration agreement is an agreement by which two or more parties agree that present or future disputes shall be resolved by arbitration. An arbitration clause is often included as part of the terms of a broader contract. Black’s Law Dictionary, 8th edition, defines “arbitration” as
“a method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding.”
The neutral third

party is the arbitrator. See: NNPC V. Lutin Investments Ltd & Anor. (2006) 2 NWLR (Pt. 965) 506; Magbagbeola V. Sanni (2005) 11 NWLR (Pt. 936) 239; Kana State Urban Devt. Board V. Fanz Const. Co. Ltd. (1990) 4 NWLR (Pt. 142) 1.
A major feature of arbitration is that it is consensual. The parties have a choice. They may decide to have their dispute resolved by a Court of law or they may choose to have it decided by an arbitrator. See: Ras Palgazi Const. Co. Ltd. V. FCDA. (2001) LPELR-2941 (SC) @ 12 E – F; (2001) 10 NWLR (Pt. 722) 559. Where they opt for arbitration, the parties are free to choose how the arbitration is conducted including the law that guides the process, provided that the procedure and the law agreed upon are not against public policy. The duty of the Court is to respect and practice upon the wishes of the parties and not to make a contract for them or rewrite the one they have already made for themselves. See: JFS. Investments Ltd. V. Brawal Line Ltd & Ors. (2010) 18 NWLR (Pt.1225) 495; Sona Breweries Plc. V. Peters (2005) 1 NWLR (Pt. 908) 478: Owoniboys Tech. Services Ltd V. U.B.N. Ltd (2003) 15 NWLR (Pt. 844) 545.

NITEL LTD V. ENGR EMMANUEL C. OKEKE (2017) 9 NWLR (PART 1571) 439 AT 473 A – B per KEKERE-EKUN, JSC who said:-
“At the outset, I must say that learned counsel for the respondent correctly stated the position of the law that arbitration proceedings are sui generis. An application to set aside an arbitral award is not in the nature of an appeal against the award. An arbitral award is regarded as a final and conclusive Judgment on all matters referred and the Courts are enjoined, as far as possible to uphold and enforce arbitral awards, having regard to the fact that it is a mode of dispute resolution voluntarily agreed upon by the parties. See Ras Pal Gazi Construction Co. Ltd. V. F.C.D.A. (2001) 10 NWLR (Pt. 722) 559 at 569 O-E: Commerce Assurance Ltd. V. Alli (1992) 1 NSCC 556: (1992) 3 NWLR (Pt. 232) 710.”
4. STABILINI VISINONI LTD V. MALLINSON & PARTNERS LTD (2014) LPELR – 23090 CA PAGE 1 AT 35 – 36 F – C per AMINA ADAMU AUGIE, JCA now JSC who said:-
“Arbitration is described as – “a method of dispute resolution involving one or more neutral third parties, who are agreed to by the disputing parties and whose decision is

binding” – see Black’s law Dictionary, 9th Ed. In effect, arbitration is the resolution of a dispute between the parties by a person(s) other then a Court of law – see Commercial Arbitration in Nigeria. 2nd Ed, by Fabian Ajogwu, SAN, wherein the learned author further elucidated as follows – “It is the reference of a dispute by parties thereto for settlement by a person or Tribunal of their own choice, rather than a Court. The basis for the arbitration is the consent of the parties to submit or refer their disputes to arbitration. The strength of arbitration lies in the enabling law that confers it with the sanction of enforcement once a final award is made in a judicious manner”.
Where the party against whom an award is made by an Arbitrator or Arbitrators appointed by the parties to resolve their disputes refused to abide by the decision or fails to pay the debts emanating from the arbitral award or fails to pay monies involved in the award/decision aforesaid then the party in whose favour the award was/is made is entitled to apply to Municipal Court at the seat of the Arbitration to seek leave for the recognition and enforcement by the Court.

The seat of the Arbitration proceedings culminating into this appeal is ABUJA Nigeria, the Court that has requisite jurisdiction as per the ARBITRATION AND CONCILIATION ACT LFN 2004 is the High Court of the Federal Capital Territory Abuja pursuant to Section 31 of the ARBITRATION AND CONCILIATION ACT CAP A18 LFN 2004.
The provisions of the said Section 31 are as follows:-
“31. (1) An arbitral award shall be recognised as binding and subject to this Section 32 of this Act, shall, upon application in writing to the Court, be enforced by the Court.
(2) The party relying on an award or applying for its enforcement shall supply-
a) the duly authenticated original award or duly certified copy thereof;
(b) the original arbitration agreement or a duly certified copy thereof.
(3) An award may, by leave of the Court or a judge, be enforced in the same manner as a judgment or order to the some effect.”
Section 32 of the said Act provides:-
“32. Any of the parties to an arbitration agreement may request the Court to refuse recognition or enforcement of the award.”
It must be stated that a party who wishes to apply to have have an

Arbitral Award Set aside has three months to do so pursuant to Section 29(1) of the Arbitration Act Cap A18 LFN 2004. And the said section states:-
“29. (1) A party who is aggrieved by an arbitral award may within three months-
(a) from the date of the award: or
(b) in a case falling within Section 28 of this Act, from the date of the request for additional award is disposed of by the arbitral Tribunal, by way of an application for setting aside, request the Court to set aside the award in accordance with Subsection (2) of this section.
(2) The Court may set aside an arbitral award if the party making the application furnishes proof that the award contains decisions on matters which are beyond the scope of submission to arbitration so however that if the decisions on matters submitted to arbitration can be separated from those not submitted, only that part of the award which contains decisions on matters not submitted may be set aside.
(3) the Court before which an application is brought under subsection (1) of this section may, at the request of a party where appropriate, suspend proceedings for such period as it may determine to

afford the arbitral Tribunal an opportunity to resume the arbitral proceedings or take such other action to eliminate the grounds for setting aside of the award.”
The Respondent however stated that in this case the Arbitrator ordered the Appellant to pay up the monetary award of the debt within 21 days.
I have earlier reproduced the Motion Ex Parte filed by the Respondent at the Court below seeking pursuant to Section 31 of the Act, leave of the lower Court that the award of the Arbitrator (Chief J. K. GADZAMA) to be enforced in the same manner as the Judgment of the High Court.
The Order which was granted by the lower Court is now being challenged by the Appellant on the grounds that it was made without jurisdiction in that there is no law permitting the Respondent to apply vide a Motion Ex Parte to enforce the award and that the type of Order sought for is not one that could be granted ex parte without putting the Appellant on Notice.
It is also the contention of the Appellant that their right to fair hearing as guaranteed by Section 36(1) of the Constitution of Federal Republic of Nigeria 1999 as amended was breached or violated hence

the Order made upon the Motion Ex Parte is null and void.
Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended or altered provides thus:
“36. (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
It thus means that a person/citizen of Nigeria and other persons living in Nigeria are protected under the Nigerian Constitution from being condemned, unheard and from having a decision or findings against him without being afforded the opportunity of being heard to state his own side of the matter. In other words, an adverse decision or steps cannot be taken against any person concerning or pertaining to his rights and obligations in his absence. Equal opportunity must be given to the claimant or Applicant and the Defendant or Respondent as the case may be in any cause or proceedings before a Court of Law, Tribunal or a

quasi-judicial authority, see the case of: CHIEF S.S. OBARO V. ALHAJI SALE HASSAN (2013) 4 SCM 145 at E – G IGBE – G where ARIWOOLA JSC said:
“On the complaint of the appellant on being denied fair hearing, he says his brief of argument was not considered at all by the Court below. Indeed a hearing can only be fair or said to be fair when both parties to the dispute are given a hearing or an opportunity of a hearing, that is, fair hearing does not necessarily mean oral hearing. If one of the parties is refused or denied a hearing or not given an opportunity to be heard, the hearing cannot be qualified as fair hearing. Therefore, when the parities in an appeal are not heard or given an opportunity of being heard in the appeal, the hearing by the Court of Appeal cannot be said to be fair.
Without fair hearing, the principles of natural Justice are abandoned and without the guiding principle of natural Justice, the concept of the Rule of Law cannot be established and grow in the society.”
Whenever the rights and obligations of a person or party to the proceedings is involved or at stake, all conditions precedent to hear him or her must be

strictly and scrupulously complied with by serving him all relevant processes filed in a cause or matter. See:-
1. MOHAMMED MARI KIDA V. A. D. OGUNMOLA (2006) 13 NWLR (PART 997) 377 AT 393 F-H TO 394 A-B per MUSDAPHER, JSC later CJN of blessed memory who said:-
It is trite law, that after its issue a writ of summons or any originating process must be properly served on the defendant. Without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service is therefore to give notice to the defendant of the claims against him, so that he may be aware of, and be able to resist, if he desires to, that which is claimed against him. Where service of a process is legally required the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served with the process is entitled ex debito justitae to have the order set aside as a nullity. See Obimonure V. Erinosho (1966) 1 All NLR 250: Mbadinuju V. Ezuka (1994) 10 SCNJ 109, (1994) 8 NWLR (Pt. 364) 535: Skenconsult (Nig.) Ltd. V. Ukey (1981) 1 SC 6: Adeigbe V. Kusimo (1965) NMLR 284. Service of the

originating process has been held to be a condition precedent to the exercise of jurisdiction by the Court out of whose registry the originating process was issued. See National Bank (Nig.) Ltd. V. Guthrie (Nig.) Ltd (1993) 4 SCNJ at 17; (1993) 3 NWLR (Pt. 284) 643.
2. COMPACT MANIFOLD & ENERGY SERVICES V. PAZAN SERVICES (NIG) LTD (2020) 1 NWLR (PART 1704) 70 AT 96 F – G per ABBA-AJI, JSC who said:-
“May I dwell on the issue of hearing notice that was allegedly not served on the appellant as amounting to denial of fair hearing. It is however the mode of service that is being challenged by the appellant’s learned counsel in this appeal to have denied him fair hearing. Failure to give notice of proceedings to the opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is so because the Court would have no jurisdiction to entertain it.”
At the centre of the argument of the Respondent is that fortunately or unfortunately Section 31 of the Arbitration Act“ does not specify what type of application to be made to the Court”. He therefore

submitted that Motion Ex Parte brought by the Respondent to enforce the arbitral award was sufficient and accords with the letter and spirit of the Section.
The settled position of the law is that provisions of a statute must not be constructed in a way as would defeat the intendment of the Statute and the desire of the Legislature. The Court should not interpret the provisions of the statute to defeat the obvious end it was meant to serve otherwise it will entail injustice. Where the words of the statute are plain and unambiguous the literal interpretation should be followed. See (1) APC & ANOR V. ENGR. SULEIMAN ALIYU LERE & ANOR (2020) 1 NWLR (PART 1705) 254 AT 284 F – G per RHODES-VIVOUR, JSC who said:-
“Where the words used in a statute are clear and free from ambiguity they should be read and construed as it is without any interpretations or embellishments. The words should be given their ordinary meaning except where such a construction would be ridiculous, not logical and sensible. See A. -G., Anambra State V. Federation (1993) 6 NWLR (Pt. 302) p. 692: Mobil V. F.B.I.R. (1977) 3 SC p.53; Toriola V. Williams (1982) 7 SC P. 27. The

words used in the statute supra are clear and unambiguous. They should be given their plain ordinary meaning which is not in doubt.
2. HON. HENRY SERIAKE DICKSON V. CHIEF TIMIPRE MARKIN SYLVA & ORS (2017) 8 NWLR (PART 1567) 167 at 233 D – F per KEKERE-EKUN, JSC who said:
“The law is settled that in the interpretation of Statutes, where the words are clear and unambiguous, they must be given their natural and ordinary meaning. See: Ibrahim V. Barde (1996) 9 NWLR (Pt. 474) 513 @ 577 8-C: Ojokolobo V. Alamu (1987) 3 NWLR (Pt. 61) 377 @ 402 F – N. The exception is where to do so would lead to absurdity. See: Toriola V. Williams (1982) 7 SC 27 @ 46: Nnonye V. Anyichie (2005) 1 SCNJ 306 @ 316, (2005) 2 NWLR (Pt. 910) 623. Where an interpretation will result in breaching the object of the statute, the Court would not lend its weight to such an interpretation.
See: Amalgamated Trustees Ltd. V. Associated Discount House Ltd. (2007) 15 NWLR (Pt. 1056) 118.”
3. INEC V. ABBA KABIR YUSUF & ORS (2020) 4 NWLR (PART 1714) 54 AT 410 A – H per PETER-ODILI, JSC who said:-
“Without question, the Court is enjoined to interpret statutes as

they are without going outside it to bring in what the Court would think was intended. I shall refer to some dicta of this Court in that wise. See Obi V. INEC & Ors (2007) LPELR-2166(5C): (2007) 11 NWLR (Pt. 1046) 560 at 643 paras. F – G wherein Aderemi, JSC put it admirably thus: –
“The intention of the legislature or put bluntly, the intention of National Assembly at the federal level or the State House of Assembly at the State level, is not to be judged by what is in its mind but by its expression of that mind couched in the words of the statute. If at the end of the interpretative exercise carried out on the provisions of statute or Constitution, a judex’s personal conviction as to where the justice and rightness of the matter lies is returned, that would make the judiciary lose its credibility, authority and its legitimacy…”
Interestingly, the appellant cited G.C.M Ltd. V. Travellers Palace Hotel (2019) 6 NWLR (Pt.1669) 507 at 530-531, paras. D-B per Augie, JSC;
“There are also three basic rules of statutory interpretation – the Literal Rule is the first rule applied by Judges. Here, Judges rely on the exact wording of a

statute for the case. They will be read literally and the Judges will take the ordinary and natural meaning of a word and apply it, even if doing so. creates on absurd result. The next rule is the Golden Rule, which is a modification of the literal Rule, to be used to avoid an absurd outcome. It is used where the literal rule produces a result, where lawmakers: intention would be circumvented, rather than applied. This rule was defined by Lord Wensleydale in Grey V. Pearson’s case (1857) as:
‘The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency but no farther’.
A community reading of Sections 30 and 32 shows clear indication that the Lawmakers have it in mind that the party against whom an arbitral award is made is contemplated or put on the radar that he may challenge the recognition or enforcement of the award. It is thus eminently made clear that the written application to

the Court to recognise or enforce will NOT under any guise or imagination be made ex parte. The said Sections 31 and 32 recognise the rights and obligations of the Appellant in this case reading the statutory provisions as a whole.
It is also important to bear it in mind that Section 29(1) of the Arbitration and Conciliation Act Cap A18 LFN 2004 gives the Appellant 3 months to make any complaint it wishes against the recognition and enforcement of the arbitral award. In any event, I am of the firm view that with or without the provisions of Section 29(1) of the said Act the Appellant cannot be shut out in the quest by the Respondent to seek leave of the lower Court to recognize and enforce the arbitral award. The rights and obligations of the Appellant are pivotal and at stake in the consideration of recognition and enforcement of the arbitral award. The rights of the Appellant to be heard on it cannot be compromised or wished away.
The provisions of Section 51 of the Arbitration and Conciliation Act further supports the position that Section 31 of the Act cannot be read or interpreted to mean that the application for leave to Court to recognize and

enforce the judgment shall be made Ex Parte. Section 51 & 52 which provide:
“51. (1) An arbitral award shall, irrespective of the country in which it is made, be recognised as binding and subject to this Section 32 of this Act, shall, upon application in writing to the Court, be enforced by the Court.
(2) The party relying on an award or applying for its enforcement shall supply
(a) the duly authenticated original award or a duly certified copy thereof;
(b) the original arbitration agreement or a duly certified copy thereof; and
(c) where the award or arbitration agreement is not made in the English language, a duly certified translation thereof Into the English language.
52. (1) Any of the parties to an arbitration agreement may request the Court to refuse recognition or enforcement of the award.
(2) The Court where recognition or enforcement of an award is sought or where application for refusal of recognition or enforcement thereof is brought may, irrespective of the country in which the award is made, refuse to recognise or enforce any award-
(a) If the party against whom it is invoked furnishes the Court

proof-
(i) that a party to the arbitration agreement was under some incapacity, or
(ii) that the arbitration agreement is not valid under the law which the parties have indicated should be applied, or failing such indication, that the arbitration agreement is not valid under the law of the country where the award was made, or
(iii) that he was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise not able to present his case, or
(iv) that the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or
(v) that the award contains decisions on matters which are beyond the scope of submission to arbitration, so however that if the decision on matters submitted to arbitration can be separated from those not submitted, only that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced, or
(vi) that the composition of the arbitral Tribunal, or the arbitral procedure, was not in accordance with the agreement of the parties, or
(vii) where there is no agreement within the

parties under sub-paragraph, that the composition of the arbitral Tribunal, or the arbitral procedure, was not in accordance with the law of the country where the arbitration took place, or
(viii) that the award has not yet become binding on the parties or has been set aside or suspended by a Court in which, or under the law of which, the award was made; or
(b) if the Court finds-
(i) that the subject-matter of the dispute is not capable of settlement by arbitration under the laws of Nigeria, or
(ii) that the recognition or enforcement of the award is against public policy of Nigeria.
Where an application for the recognition of an award has been made to a Court referred to in subsection (2)(a)(viii) of this section, the Court before which the recognition or enforcement is sought may, if it considers it proper, postpone its decision and may on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.”
The written application for the leave of the Court to recognize and enforce the award in the same manner as the judgment of the High Court actually

prayed for a final order not interim Order against the Appellant. It thus means the Appellant would be foreclosed from being heard on the application. It was on Originating Motion that ought and must have been served on the Appellant so as to give Appellant a hearing, since Order 1 Rule 3 of the Federal Capital Territory High Court provides:
“Proceedings may commence by Originating Motion or Petition where these Rules or any written law provides.”
Motion Ex Parte can only be made in a matter begun by Writ of Summons or Originating Summons to enable fair hearing at interlocutory stage of the cause or matter begun as aforesaid.
The making of the application Ex Parte and the grant of the Order sought in form of final order violated and infringed on Appellant’s right to fair hearing.
This Court had on 30th day of May 2014 (before the Order of 7th August 2014 was made in this case) decided that application under Section 31 of the Arbitration and Conciliation Act 2004 Cap A18 LFN must be by Motion on Notice in order to afford the party against whom the application for the leave to Court to recognize and enforce the judgment is

sought a hearing. See STABILINI VISIONI LTD V. MALLINSON & PARTNERS LTD (2014) LPELR – 23090 (CA) PAGE 1 AT 46 – 48 per AMINA ADAMU AUGIE, JCA now JSC who said:-
“What do I say? Where do I start from? The parties have done a good job of complicating what is otherwise a straightforward matter. First things first: we need to examine the Statutes in question. The Act is a federal enactment, and the Law along with the Rules made there is under, only covers Lagos State. Section 31(1) of the said Act provides as follows “An arbitral award shall be recognized as binding and subject to this Section and Section 32 of this Act, SHALL, UPON APPLICATION IN WRITING TO THE COURT be enforced by the Court”.
The Act did not specify the type of Application to be made, however, Order 39 Rule 4(1) of the Lagos State High Court (Civil Procedure) Rules, provides that “Every MOTION ON NOTICE to set aside, remit or ENFORCE AN ARBITRAL AWARD shall state in general terms the grounds of the application and where any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the NOTICE OF MOTION”.

And it was held in Triana Ltd. V. UTS (supra) (cited by the Respondent] that –
“A careful perusal of Section 31(1) of the Arbitration and Conciliation Act… shows that a person seeking to enforce an arbitral award should apply to the Court. The Section does not specify what type of application is to be made to the Court.”
I agree… that the Motion on Notice brought by the Respondent to enforce the arbitral award was sufficient and accords with the letter and spirit of the Section. Had the Act wanted an application to be made by Originating Summons, it would have stated so.
This is so because where the words of a Statute are clear and unambiguous – the Court must give the words their ordinary meaning”.
Evidently, the Law applicable in Lagos State wanted the Application to be made by Originating Motion, and it expressly stated so in the Application Rules 2009, wherein it spelt out that “arbitration applications” means “any application to a Court under the Lagos State Arbitration Law” and that it includes an application “to recognize and enforce an award”. It specifically stated in Rule 2(1) that-
“Except where

Sub-rule 2 of this Rule applies AN ARBITRATION APPLICATION SHALL BE STARTED BY THE ISSUE OF AN ORIGINATING MOTION”.
And in Rule 7(1) that –
“An application to enforce an award or an interim measure of protection in the same manner as a judgment or Order SHALL BE MADE BY ORIGINATING MOTION”.
So, an application brought under the Act may be made by Motion on Notice, while a similar application under the Law must be made by Originating Motion.” (Underline mine)
That is not all. This Court followed its decision in the above case in the case of UBA PLC V. BENCHMARK SOLUTIONS LTD & ORS (2018) LPELR – 46228 (CA) 1 AT 25- 28 per TANI YUSUF HASSAN, JCA who said:-
“In Imani & Sons V. Bill Const (supra) Aderemi, JCA (as he then was) stated:
“To have construed Section 31 of the Arbitration and Conciliation Act Cap 19 Laws of the Federation, 1990 as carrying a legal force which denies a party who would be affected by the eventual order or judgment of a Court hearing before such order or judgment is made is a negation of the fair hearing provisions enshrined in our Constitution.”
44

Although Section 31 of the Arbitration and Conciliation Act did not show the order that a respondent to an application shall be put on notice but it accord with reason and common sense, that since the application is one to lead to the granting of an order which may affect another’s propriety interest, it must be read into it a provision to the effect that the party against whom the order under Section 31 of the Arbitration and Conciliation Act is sought must be put on notice – Imani & Sons V. Bill (supra). On fair hearing, fair hearing is a constitutional right provided by the provisions of Section 36(1) of our Constitution. Section 36(1) of the 1999 Constitution reads:
“In determining of civil rights and obligation, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
The imperatives of fair hearing, which have been Incorporated into Section 36(1) of the Constitution, are that a body discharging a judicial or quasi-judicial

function as the arbitrator, shall give each party before it an opportunity to be heard on any issue so calling for a decision or determination – T.E.S. Inc V. Cheveron Nig. Ltd (2017) 11 NWLR (part 1576) 187 at 194, which must be based on rock solid facts before the Court and available to one who has satisfied the conditions of being heard. This is because if the principle of fair hearing is a serious fundamental right of natural justice and a party has not satisfied the conditions required for hearing his case, the Court would not be competent to hear him; he would not qualify for the right to be heard – Mgbenwelu V. Olumba (2017) 5 NWLR (part 1558) 169 at 377. See also Carew V. Oguntokun (2011) 5 NWLR (part 1240) 376: Apatira V. Lagos Island LGC (2006) 17 NWLR (part 1007) 46; Jonason V. Triangles Ltd V. C.M. & P. Ltd (2002) 15 NWLR (part 789) 176 and Chime V. Ude (1996) 7 NWLR (part 461) 379.
In the instant case, the 1st and 2nd respondents did not satisfy the condition for bringing the application for recognition and enforcement of the arbitral award which deprived the Court of jurisdiction to entertain the matter on notice and the appellant is entitled by

Section 36(1) of the 1999 and this Court is also deprived of jurisdiction to entertain the appeal.
The 1st and 2nd respondents filed a motion ex-parte for recognition and enforcement of arbitral award. The law is that the respondents should come on notice that the appellant is entitled by Section 36(1) of the 1999 Constitution to a fair hearing in the determination of his rights and obligations. The resultant effect of a breach of the right to fair hearing against the appellant is that the proceedings so conducted are a nullity and of no effect whatsoever. The appellant who is affected by the order ex-parte is entitled to have it set aside. See Adeyemi Bero V. L.S.D.P.C (2013) 8 NWLR (part 109) 20: Chitra Knitting & Weaving Manufacturing Co. Ltd V. Akingbade (2016) LPELR 40437, Mfa V. Inongha (2014) 4 NWLR (part 1397) 343 and Tsokwa Motors (Nig.) Ltd V. UBA Plc (2008) 2 NWLR (part 1071) 347.
The motion ex-parte affected the interest of the appellant since his rights and obligations were determined without it having been given a hearing which is a clear violation of the provisions of Section 36( 1) of the 1999 Constitution (as amended).”

secure its independence and impartiality. It is certain that fair hearing by a Court or other judicial Tribunal under Section 36(1) of the 1999 Constitution – the ground norm, incorporates the audi alteram partem rule. It is that a man can never have a verdict entered against him on a matter relating to his civil rights or obligation before such a Court or Tribunal without being given an opportunity of being heard. The rule is one of the essential cornerstones of our judicial process. See: Amadi V. Thomas Aplin Co. Ltd. (1972) 4 SC 228: Kano N. A. V. Obiora (1959) SCNLR 577.
In its real essence, fair hearing lies in the procedure followed In the determination of the case, not in the correctness of the decision.
It is only when the party aggrieved has been heard that the trial Judge would be seen as discharging the duty of an unbiased umpire. Learned Counsel for the appellant feels that his surmised absence of miscarriage of justice ameliorates an infringement of a provision of fundamental human right. Such is not correct. The violation of the rule of audi alteram partem, per se, lies in the breach of the Fundamental Human Right. Once the right is

violated, it is irrelevant whether a decision made subsequent thereto is correct. See: Tukur V. Government of Gongola State (1989) 9 SCNJ 1: (1989) 4 NWLR (Pt. 117) 517.
It should be further stated that on a breach of the right of fair hearing, an appellate Court does not go to the reasons for its breach or the consequences of same. It has no alternative but to allow the appeal against the decision and treat it as though there has been no hearing at all. An appellate Court is bound to follow this course in the hearing of the appeal. See Adigun & Ors. V. A. G. of Oyo State & Ors. (1987) 2 NWLR (Pt. 56) 197.
A denial of the right to be heard is a breach of constitutional right, natural justice and rules of Court. Such cannot and ought not to be condoned in any respect. See: Otapo V. Sunmonu (1987) 2 NWLR (Pt. 58) 587.
It is a basic and fundamental principle of the administration of justice that no decision can be recorded as a valid one unless the trial Judge, or Court has heard both sides in the conflict. See: Deduwa V. Okorodudu (1976) 9-10 SC. 329. (Underlined mine).
2. KIDA V. OGUNMOLA SUPRA PAGE 394 F – G per MUSDAPHER, JSC later CJN of

blessed memory who said:-
“In my view, the validity of the originating processes in a proceeding before a Court, is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge.”
3. THE STATE V. TERVER KAPINE (2019) 18 NWLR (PART 1703)1 AT 23 G – H – 24A per ABBA A. J., JSC who said:-
“The effect of a breach of fair hearing was stated in Oged Ovunwo & Ors V. Ifeanyichukwu Woko & Ors (2011) 17 NWLR (Pt. 1277) 522 at page 548 paragraphs A-H and page 549 Paragraphs A – B, per Chukwuma-Eneh, JSC, that:
“…a breach of fair hearing once sustained in a decision afflicts and clearly vitiates the whole decision and not just as to a part of it thereof, once it is

shown as it has been shown here that the decision of the appellate High Court has been vitiated for breaching the appellants’ right to fair hearing, it follows naturally without more that the lower Court’s resolution of issue (one) cannot stand and so the whole decision collapses with it as it has no leg on which to stand. This is so as fair hearing is a fundamental constitutional right as entrenched in the 1999 Constitution (as amended). And the breach of fair hearing in any proceedings without more vitiates such proceedings in their entirety; it renders the entire proceedings null and void.”

Consequently, the two issues nominated for determination are hereby resolved in Appellant’s favour.

In the result the appeal is meritorious. The Appellant’s appeal is allowed. The Ruling/Order delivered on 7th day of August, 2014 in Suit No FCT/HC/CV/2096/2014 on Motion No. M/6696/2014 between SHAMILAT SHELTER (NIG) LTD V. ENL CONSORTIUM LIMITED IS HERESY SET ASIDE. The said Order is hereby vacated.

The Suit shall be remitted to the lower Court to convert the Motion Ex Parte filed on 6th August, 2014 to motion on Notice for service on the

Appellant so that the Suit can be dealt with on the merit.
The matter shall be accorded expeditious hearing by the lower Court in the interest of justice.
The Respondent shall pay costs assessed at N250,000 (Two Hundred and Fifty Thousand Naira) only to the Appellant.

ABDU ABOKI, J.C.A.: I agree.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the Judgment just delivered by my Learned brother, LORD JUSTICE PETER OLABISI IGE, JCA. I agree with the reasoning, conclusions and orders therein.

Appearances:

J. AKOMOLAFE with him, J. U. CUKWUDI For Appellant(s)

MELA AUDU NUNGHE, ESQ. For Respondent(s)