A.G OGUN STATE & ORS v. BOND INVESTMENT & HOLDINGS LTD (2021)

A.G OGUN STATE & ORS v. BOND INVESTMENT & HOLDINGS LTD

(2021)LCN/15173(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, May 20, 2021

CA/IB/58/2019

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

1 ATTORNEY GENERAL OF OGUN STATE

2 OGUN STATE COMMISSIONER FOR FINANCE

3 THE GOVERNOR OF OGUN STATE

4 OGUN STATE GOVERNMENT APPELANT(S)

And

BOND INVESTMENT & HOLDINGS LIMITED RESPONDENT(S)

RATIO

WHETHER OR NOT FAIR HEARING IS AN ESSENTIAL REQUIREMENT FOR A JUST DETERMINATION OF DISPUTES BETWEEN PARTIES

The trite position of the law is that fair hearing is an essential requirement for a just determination of disputes between parties.
It is axiomatic that fairness and due process are enshrined in the Constitution of the Federal Republic of Nigeria in order to ensure justice and prevent miscarriage or failure of Justice.
The Supreme Court on importance of right to fair hearing held in the case of – OLATUNBOSUN VS NISER (1988) 3 NWLR PART 80 PAGE 25 AT 47 among others as follows:-
“The right of a man to be heard in his own defence is the most elementary protection of all. Fair hearing lies in the procedure adopted by the Court on the determination of the case and not in the correctness of the decision. See THE STATE VS ONAGORUWA (1992) 2 NWLR PART 221 PAGES 33 AT 38”. PER BADA, J.C.A.

DEFINITION OF A COUNTER-AFFIDAVIT

A counter affidavit is an affidavit presented in contradiction or opposition to an affidavit which is made either as the basis or in support of a motion or application or otherwise. In the case of INAKOJU VS ADELEKE (Supra) page 432 the Supreme Court held among others as follows:-
“The implication of failure of the Appellants to… file a Counter-Affidavit to controvert the averments in the Affidavit filed in support of the Originating Summons are
(1) by filing and relying on preliminary objection rather than filing a counter-affidavit to the merit of the case, they have demurred …. And
(2) it means that the Appellants have admitted to in the affidavit filed in support of the Originating Summons … they had the opportunity of putting their defence across, if any but chose not to avail themselves of that opportunity. See IGBOKWE VS UDOBI (1992) 3 NWLR PART 228 PAGE 214
– OYEYIPO VS OYINLOYE (1987) 1 NWLR PART 50 PAGE 356.
– OMO VS JSC DELTA STATE (2000) 12 NWLR PART 682 PAGE 444.” PER BADA, J.C.A.

WHETHER OR NOT FACTS CONTAINED IN AN AFFIDAVIT FORMS PART OF THE DOCUMENTARY EVIDENCE BEFORE THE COURT

It is trite law that facts contained in an Affidavit forms part of the documentary evidence before the Court. Thus where an Affidavit is filed deposing to certain facts and the other party does not file a Counter-Affidavit, the facts deposed to in the Affidavit would be deemed unchallenged and undisputed. In other words, paragraphs of Affidavit not denied or controverted are deemed admitted. See the following cases:- BADEJO VS MINISTER OF EDUCATION (Supra).
– LAWSON JACK VS SPDC NIG. LTD (Supra).
– OGOEJEOFO VS OGOEJEOFO (Supra).
In MATO VS HEMBER & OTHERS (2017) 6 S.C. PART (VI) PAGE 161 (2018) 5 NWLR PART 1617 PAGE 258 the Supreme Court – Per Onnoghen JSC held as follows among others:
“Now who is to blame for the 1st and 2nd Respondents refusal and/or failure to file Counter Affidavit against the Originating Summons? PER BADA, J.C.A.

WHETHER OR NOT THE COURT HAS JURISDICTION TO GRANT RELIEFS OR CLAIMS NOT SOUGHT BY THE LITIGANT

It is trite law that a Court of Law has no jurisdiction to grant reliefs or claims not sought by the litigant in a Civil Litigation but there is an exception to the general principle of Law. The said exception is in respect of a grant of consequential order or orders.
In the case of –AKINBOBOLA VS. PLISSON FISKO NIG. LTD. & OTHERS (1991) 1 NWLR PART 270 PAGE 288.
It was held among others that –
“A consequential Order is not merely incidental to a decision but one necessarily following directly and naturally from and inevitably consequent upon it.
It must be giving effect to the Judgment already given, not by granting a fresh and unclaimed or unproven relief. The requirement is stated in the case of OBAYAGBONA VS. OBAZEE (1972) 5 S.C. PAGE 247 where Sowemimo JSC observed that:… by the very nature of the term consequential, any consequential Order must be one giving effect to the Judgment… the word consequential means- “following as a result or inference” See also DR. M.T.A. LIMAN VS. ALHAJI SHEU MOHAMMED (1999) 9 NWLR PART 617 PAGE 116. A consequential Order therefore made subsequent to a Judgment which detracts from the Judgment or contains extraneous matters is not an Order made within jurisdiction. A consequential Order can only relate to matters adjudicated upon.”
Also in the case of – BRIGGS VS. CLORSN (SUPRA) AT 81 – 82, the Supreme Court per KUTIGI JSC (as he then was) held among others that:-
“The Plaintiff having been declared to be entitled to the property in dispute needs protection against the 3rd defendant who has lost and has now acquired the status of a trespasser. The Order of injunction against the 3rd defendant was therefore a proper necessary Order.
It is a consequential Order which Courts of Law are entitled to make in appropriate cases to protect their Judgments or Orders as in this case. It was a valid Order.” PER BADA, J.C.A.

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court, Abeokuta Judicial Division delivered on 11/12/2018 in suit NO: FHC/AB/CS/62/2018 – BETWEEN –BOND INVESTMENT AND HOLDINGS LIMITED VS (1) ATTORNEY GENERAL OF OGUN STATE (2) OGUN STATE COMMISSIONER FOR FINANCE (3) THE GOVERNOR OF OGUN STATE (4) OGUN STATE GOVERNMENT wherein the trial Court by an order appointed MRS. REMI AWE FCI Arb (UK) Dip IC Arb as the co-arbitrator.

Briefly the facts of this case are that by an application filed on 14/6/2018, the Respondent (as Applicant) instituted an action against the Appellants (as Respondents) at the Federal High Court for the following order.
“An Order appointing a co-Arbitrator on behalf of the Respondents for the purpose of the Notice of Arbitration dated 12th December, 2017.”

The Respondent also filed a further Affidavit dated 21st November, 2018 pursuant to the directives of the trial Court.
The Respondent’s Application was duly served on the Appellants.

At the hearing of the Application on 11th day of December,

2018, the following transpired. The proceedings at the trial Court and the Ruling delivered is hereby reproduced:
“IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABEOKUTA, OGUN STATE
ON TUESDAY THE 11TH DAY OF DECEMBER, 2018 BEFORE THE HON. JUSTICE IBRAHIM WATILA
JUDGE
SUIT NO: FHC/AB/CS/62/2018
BETWEEN:
BOND INVESTMENT & HOLDINGS LIMITED – APPLICANT
AND
(1) ATTORNEY GENERAL OF OGUN STATE
(2) OGUN STATE COMMISSIONER FOR FINANCE
(3) THE GOVERNOR OF OGUN STATE
(4) OGUN STATE GOVERNMENT – RESPONDENTS
Parties: the Plaintiff in Court. Represented by Adeniran Adekunle (GM) the Defendants are absent.
Appearances:
A. Apara Esq for the Plaintiff.
A.D Adefala Esq SSC MOJ Ogun State for all the Defendants/Respondents.
Apara: We have a pending application for appointment of a co-arbitrator and a further affidavit nominating 5 persons to be selected by the Court. I adopt the processes and urge the Court to grant the prayers.
Adefala: We did not file any process challenging the appointment of co-arbitrator.
Court: The Respondents are not

objecting to appointment of a co-arbitrator have been served an application filed on the 14/6/2018 and a further affidavit of 21/11/2018 nominating 5 Arbitrators in paragraphs 8 of the affidavit. The Counsel to the Respondent this morning informed the Court that they are not aver to settlement.
The Applicant having been desirous of ensuring the speedy conclusion of this matter took all necessary steps for the Court evening (SIC) its discretion.
I hereby make an Order appointing Mrs. Remi Awe FCI Arb (UK), Dip IC Arb as the Co-arbitrator.
This appointment is sequel to the Notice of Arbitration dated 12th December, 2017. The parties are to cooperate in concluding the proceeding within the next 6 week ending 4th February, 2019. The final report of arbitration shall be filed into Court before the 4/2/2019.
Signed
Judge
11/12/2018.“

The Appellants who are dissatisfied with the Ruling of the trial Court appealed to this Court.
The Learned Counsel for the Appellants formulated two issues for the determination of the appeal. The issues are reproduced as follows:-
“(1) Whether the lower Federal High Court

of Nigeria without jurisdiction as well as violated the Appellants’ Constitutional Fundamental Right to Natural Justice by way of a fair hearing when it held that the Appellants were not opposed to the application of 14th June, 2018 and/or acted on the basis of an invalid process in appointing Mrs. Remi Awe as a co-Arbitrator in the entire circumstances of the case. (Distilled from grounds 1 & 2 of the Notice of Appeal).
(2) Whether the lower Federal High Court acted without jurisdiction by directing the parties… to cooperate in concluding the Arbitration Proceeding by 4th January, 2019 and to file a “Final Report of Arbitration” by the same date in the entire circumstances of the case.”

On the other hand, the Learned Counsel for the Respondent formulated three issues for the determination of the appeal. The said issues are reproduced as follows:-
“(i) Whether the procedure for appointment of an arbitrator is appealable.
(ii) Whether the lower Court violated the Appellants’ Constitutional Right of fair hearing when it held that the Appellant having failed to respond to the Application of 14th

June, 2018 were not opposed to the application.
(iii) Whether the lower Court acted without jurisdiction in granting the consequential orders in its order of 11th December, 2018.”

At the hearing of this appeal on the 22nd day of February, 2021, the Learned Counsel for the Appellants stated that the Appeal is against the Ruling of the Federal High Court, Abeokuta Judicial Division delivered on 11/12/2018.
The Appellants’ Notice of Appeal was filed on 14/12/2018 while the Record of Appeal was transmitted on 19/2/2019.

The Appellants’ brief of argument was filed on 25/2/2019. Upon service of the Respondent’s brief of argument on the Appellant, the Appellants’ reply brief of argument was filed on 18/4/2019 and it was deemed as properly filed on 7/5/2019. The list of additional authorities was filed on 12/3/2019.

The Learned Counsel for the Appellants adopted and relied upon the Appellants’ brief of argument as well as the Appellants’ Reply brief as his argument in urging that the appeal be allowed.

The learned Senior Counsel for the Respondent in his own case also referred to the

Respondent’s brief of argument filed on 12/4/2019 which was deemed as properly filed on 7/5/2019. He adopted and relied on the said brief as his argument in urging that the Appeal be dismissed.

I have carefully gone through the issues formulated for the determination of the Appeal by Counsel for both parties. I am of the view that the two issues formulated for the determination of appeal on behalf of the Appellants subsumed the three issues formulated for the determination of the appeal on behalf of the Respondent. I will therefore rely on the said two issues formulated for the determination of the appeal on behalf of the Appellants.

ISSUES FOR THE DETERMINATION OF THE APPEAL
“(1) Whether the lower Federal High Court of Nigeria without jurisdiction as well as violated the Appellants’ Constitutional Fundamental Right to Natural Justice by way of a fair hearing when it held that the Appellants were not opposed to the application of 14th June, 2018 and/or acted on the basis of an invalid process in appointing Mrs. Remi Awe as a co-Arbitrator in the entire circumstances of the case. (Distilled from grounds 1 & 2 of the Notice

of Appeal).
(2) Whether the lower Federal High Court acted without jurisdiction by directing the parties …..to cooperate in concluding the Arbitration Proceeding by 4th January, 2019 and to file a “Final Report of Arbitration” by the same date in the entire circumstances of the case. (Distilled from grounds 3 and 4 of the Notice of Appeal).”

ISSUE NO.1
The Learned Counsel for the Appellants submitted that the trite position of the law is that issues of jurisdiction in a suit or cause in any Court of Law may present itself in several variants. A violation of the principle of Natural Justice by way of fair hearing where established is an issue of jurisdiction affecting the root of the case where established.
He relied on the following cases:-
LAGOS STATE WATER CORPORATION VS SKAMORI CONSTRUCTION (NIGERIA) LIMITED (2011) 12 NWLR PART 1262 PAGE 569 AT 594 PARAGRAPHS D-E.
ATTORNEY GENERAL, FEDERATION & OTHERS VS ABUBAKAR & OTHERS (2008) 16 NWLR PART 1112 PAGE 135 AT 158 PARAGRAPHS B-C.

It was submitted on behalf of the Appellants that when the Learned trial Judge held that “the

Respondents were not opposed to the Application having not filed any process challenging the appointment of a co-arbitrator”. It was a gross violation of Appellants Constitutional and Fundamental Right to fair hearing sufficient to vitiate the entire Ruling of 11/12/2018 as it is not the position of the Law that to oppose a process or proceeding there is axiomatic necessity of filing a process and when in any event nothing from the material or evidence on Record justifies the lower Court from making that finding which must be regarded as perverse. The cases of – ELIKE VS NWAKWOALA (1984) ALL NLR PAGE 394 AT 413.
ADIGUN & 2 OTHERS VS ATTORNEY GENERAL OF OYO STATE & 18 OTHERS (1987) 1 NWLR PART 53 PAGE 678 AT 719 PARAGRAPHS D-E.
UDENGWU VS UZUEGBU & 4 OTHERS (2003) 13 NWLR PART 836 PAGE 136 AT 152 PARAGRAPHS C-D.

Learned Counsel finally urged this Court to resolve this issue in favour of the Appellants and against the Respondent.

In his response, the Learned Senior Counsel for the Respondent referred to the Application filed on behalf of the Respondent on 14/6/2018 which was served on the Appellants and the service on

Appellants was not denied.

He referred to the proceedings of 28/6/2018 and 11/12/2018 Reference was made to the following cases:-
INAKOJU VS ADELEKE (2007) 4 NWLR PART 1023 PAGE 423.
ALAGBE VS ABIMBOLA (1978) 2 S.C. PAGE 39.
NIGERCHIN IND. LTD VS OLADEHIN (2006) 13 NWLR PART 998 PAGE 549 PARAGRAPHS C-D.
BADEJO VS MINISTER OF EDUCATION (1996) 9-10 SCNJ PAGE 51
LAWSON JACK VS SPDC NIG. LTD (2002) 12 SCM PAGE 131.
OGOEJEOFO VS OGOEJEOFO (2006) 1 SCNJ PAGE 6.
MATO VS HEMBER & OTHERS (2017) LPELR – 42765 (SC).
IBRAHIM VS DANGWARAM (1997) 1 NWLR PART 497 PAGE 87 AT 95 PARAGRAPHS A-B.
BILL CONSTRUCTION CO. LTD VS IMANI & SONS LTD (2006) 19 NWLR PART 1031 PAGE 1 AT PAGE 14.
AKINDURO VS ALAYA (2007) ALL FWLR PART 381 PAGE 1653 AT 1672 – 1673.

It was also submitted on behalf of the Respondent that this appeal is incompetent as a whole as the issue bordering on the procedure for appointment of an Arbitrator has been barred by the Arbitration and Conciliation Act Cap A18 Laws of the Federation of Nigeria 2004.

Learned Senior Counsel for the Respondent also relied on –

Section 7 (2) (3) & (4) of the Arbitration and Conciliation Act Cap A18 Laws of the Federation of Nigeria 2004.
It was further submitted on behalf of the Respondent that this Appeal being incompetent it should be struck out.

The Learned Counsel for the Appellants in the Appellants’ reply brief submitted that Order 52 Rules 1-3 Federal High Court (Civil Procedure) Rules 2009 is inconsistent with Section 34 of Arbitration and Conciliation Act Cap A 18 Laws of the Federation of Nigeria 2004.
He relied on the case of: – ATS & SONS & 3 OTHERS VS BEN ELECTRONICS COMPANY LIMITED (2018) 17 NWLR PART 1647 PAGE 1 AT 56 PARAGRAPHS C-D.

It was also submitted on behalf of the Appellants that any right in Section 7 (2)-(4) of Arbitration and Conciliation Act Cap A 18 Laws of the Federation of Nigeria 2004 cannot operate to trump the wider Constitutional Fundamental Right vide Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
The Learned Counsel for the Appellants finally urged this Court to discountenance the arguments of the Respondents as misconceived.

RESOLUTION
It is the trite position

of the law as submitted on behalf of the Appellants that those issues of jurisdiction in a suit or cause in any Court of law may present itself in several variants.
The question whether the procedure for appointment of an arbitrator is appealable borders on jurisdiction.

It was submitted on behalf of the Respondent that this appeal is incompetent as a whole as the issues bordering on the procedure for appointing an Arbitrator has been barred by – Arbitration and Conciliation Act Cap A 18 Laws of the Federation of Nigeria 2004 whereas the Appellants are of a contrary view.

In this Appeal under consideration, a careful reading of the Notice of Appeal dated 14/12/2018 (see pages 103 to 107 of the Records of Appeal) would reveal that the grouse of the Appellants is premised on the appointment of Mrs. Remi Awe FCI Arb (UK) as the Co-Arbitrator on behalf of the Appellants pursuant to the Respondent’s application of 14/6/2018.

In order to get to the root of this appeal, it would be appropriate at this juncture to set out – Section 7 (2) (3) & (4) of the Arbitration and Conciliation Act Cap A 18 Laws of the Federation of Nigeria 2004:

Section 7 (2)
“Where no procedure is specified under subsection (1) of this section-
(a) In the case of an arbitration with three arbitrators, each party shall appoint one arbitrator and the two thus appointed shall appoint third, so however, that-
(i) If a party fails to appoint the arbitrator within thirty days of receipt of a request to do so by the other party; or
(ii) If the two arbitrators fail to agree on the third arbitrator within thirty days of their appointments, the appointment shall be made by the Court on application of any party to the arbitration agreement;
(b) In the case of arbitration with one arbitrator, where the parties fail to agree on the arbitrator, the appointment shall be made by the Court on the application of any party to the arbitration agreement made within thirty days of such disagreement.”
Section 7 (3)
“Where, under an appointment procedure agreed by the parties –
(a) A party fails to act as required under the procedure; or
(b) The parties or two arbitrators are unable to reach agreement as required under the procedure; or

(c) A third party, including an institution, fails to perform any duty imposed on it under the procedure.
Any party may request the Court to take the necessary measure, unless the appointment procedure agreed upon by the parties provide other means for securing the appointment.”
Section 7 (4)
“A decision of the Court under subsection (2) and (3) of this section shall not be subject to appeal.” (Underlining supplied for emphasis)”
A perusal of the said Section 7(2) (3) & (4) of the Arbitration and Conciliation Act (Supra) set out above would reveal that any issue bothering on the Appointment of an Arbitrator pursuant to Section 7 (2)&(3) of the Act is not subject to an appeal.
In the affidavit in support of the Respondent’s application filed on 14/6/2018, it was clearly stated that the Respondent upon appointing its own Arbitrator had requested that the Appellants appoint their Arbitrator and it was upon the failure of the Appellants to appoint their own Arbitrator that made the Respondent to file the application of 14/6/2018 pursuant to Section 7 (2) (a) (i) praying the Court to appoint a co-Arbitrator on

behalf of the Appellants.
A careful reading of the provisions of the Arbitration Law set out above would reveal that it is only the issues arising from Section 7 (2) & (3) of the Arbitration and Conciliation Act (Supra) that are barred from appeal, it is not a blanket deprivation of right of appeal on arbitration matters.
In the case of – BENDEX ENGINEERING CORPORATION & ANOR VS EFFICIENT PETROLEUM NIGERIA LIMITED (2000) LPELR – 10143 (CA), (2001) 8 NWLR PART 715 PAGE 333.
This Court held among others as follows:-
“True enough, sub-section 7(4) of the Arbitration and Conciliation Act renders non-appealable certain proceedings on the appointment of arbitrators, yet the provisions is explicit about the scope of the matters coming within its purview and is not intended as a blanket deprivation of the right of appeal on any matter touching on arbitration. Deprivation of the right of appeal is confined to the question of appointment procedure as specified in sub-section 7(2) & (3) of the Act. Therefore, to invoke the provision of Section 7 (4) the Court must first be satisfied that the grounds of appeal and issues

formulated from the grounds relate to appointment procedure as laid down by sub-sections 7 (2) and (3) and not just matters that are peripheral to those specified therein.”
Therefore, this appeal in my humble view is incompetent in view of the fact that the issues relating to this appeal are issues which this Court as an Appellate Court lacks jurisdiction to entertain pursuant to Sections 7 (2) (3) & (4) of the Arbitration and Conciliation Act (supra).
The appropriate order to make is to strike out this appeal at this juncture, but since this Court is not the final Court, I will consider the other issues.

The Appellants contended that the trial Court violated Appellants’ Constitutional Right of fair hearing when it held that the Appellants having failed to respond to the application filed on behalf of the Respondent on 14/6/2018 which was not opposed.

justice and prevent miscarriage or failure of Justice.
The Supreme Court on importance of right to fair hearing held in the case of – OLATUNBOSUN VS NISER (1988) 3 NWLR PART 80 PAGE 25 AT 47 among others as follows:-
“The right of a man to be heard in his own defence is the most elementary protection of all. Fair hearing lies in the procedure adopted by the Court on the determination of the case and not in the correctness of the decision. See THE STATE VS ONAGORUWA (1992) 2 NWLR PART 221 PAGES 33 AT 38”.

Nevertheless, Section 36 (1) of Constitution of the Federal Republic of Nigeria 1999 (as amended) provides thus:-
“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.”
Under the 1999 Constitution, Section 36 (1) gives the Appellants the right to fair hearing, however the Constitution only creates an opportunity for a party to be

heard before a decision is taken against his interest. The opportunity does not last forever and it is enjoyed subject to the rules of Court and the dictates of justice. See the case of –BILL CONSTRUCTION CO. LTD VS IMANI & SONS LTD (Supra).

In this appeal, the Respondent filed the application on 14/6/2018 and served same on the Appellants, the service which the Appellants have not denied. In the proceedings of 28/6/2018 (see page 97 of the Records of Appeal) the Learned Counsel for the Respondent informed the trial Court that his application of 14/6/2018 had been served on the Appellants and the learned Counsel for the Appellants i.e. A. D. Adefala Esq. did not object to the said service.

Also in the proceedings of 11/12/2018 i.e. about 6 months since the earlier proceeding of 28/6/2018 (see page 98 of the Record of Appeal), Counsel for the Appellants informed the trial Court that no process or counter affidavit was filed on behalf of the Appellants to oppose the application filed on behalf of the Respondent on 14/6/2018.

A counter affidavit is an affidavit presented in contradiction or opposition to an affidavit which is made either

as the basis or in support of a motion or application or otherwise.

In the case of INAKOJU VS ADELEKE (Supra) page 432 the Supreme Court held among others as follows:-
“The implication of failure of the Appellants to… file a Counter-Affidavit to controvert the averments in the Affidavit filed in support of the Originating Summons are
(1) by filing and relying on preliminary objection rather than filing a counter-affidavit to the merit of the case, they have demurred …. And
(2) it means that the Appellants have admitted to in the affidavit filed in support of the Originating Summons … they had the opportunity of putting their defence across, if any but chose not to avail themselves of that opportunity. See IGBOKWE VS UDOBI (1992) 3 NWLR PART 228 PAGE 214
– OYEYIPO VS OYINLOYE (1987) 1 NWLR PART 50 PAGE 356.
– OMO VS JSC DELTA STATE (2000) 12 NWLR PART 682 PAGE 444.”
In the circumstances of this case, it is my view that in the absence of any Counter Affidavit from the Appellants, the Appellants are deemed to have admitted all the averments deposed to in the Affidavit in support of the

Respondent’s application which was filed on 14/6/2018. See the following cases:-
ALAGBE VS ABIMBOLA (Supra).
NIGERCHIN IND. LTD VS OLADEHIN (Supra).
It is trite law that facts contained in an Affidavit forms part of the documentary evidence before the Court. Thus where an Affidavit is filed deposing to certain facts and the other party does not file a Counter-Affidavit, the facts deposed to in the Affidavit would be deemed unchallenged and undisputed. In other words, paragraphs of Affidavit not denied or controverted are deemed admitted. See the following cases:- BADEJO VS MINISTER OF EDUCATION (Supra).
– LAWSON JACK VS SPDC NIG. LTD (Supra).
– OGOEJEOFO VS OGOEJEOFO (Supra).
In MATO VS HEMBER & OTHERS (2017) 6 S.C. PART (VI) PAGE 161 (2018) 5 NWLR PART 1617 PAGE 258 the Supreme Court – Per Onnoghen JSC held as follows among others:
“Now who is to blame for the 1st and 2nd Respondents refusal and/or failure to file Counter Affidavit against the Originating Summons? In pursuing this case, the 1st and 2nd Respondents depended on one strategy only. They wanted to end the case on Preliminary Objection only.

This is bad strategy. This Court warned in – INAKOJU VS ADELEKE (Supra) against such practice”. At page 636 paragraphs A – G this Court, Per Tobi JSC (of blessed memory) said:
“It is not advisable in litigation for parties to put all their eggs in one and the same basket particularly in a situation where the procedure to be adopted is not neat, but diverse and versatile such as the procedure in the case. This is because if the basket breaks, as the eggs are broken.
This is what the Appellants did. All their concentration was to play on safety in litigation towards the 29th May, 2007 date so that they can go free with their acts of unconstitutionality or constitutionalism, and so they refused to enter appearance. They also refused to file Counter Affidavit and they assured themselves that they had so much time to file the processes. They did not accept the genuine offer of the decision in Senate President Vs. Nzeribe (Supra) by Mr. Akintola.
Unfortunately for them the whole basket has broken and they find themselves in trouble. They will blame themselves and not this

Court… if I were in the position of the Appellants, I would have entered appearance in protest, filed the Counter Affidavit also in protest before raising the Preliminary Objection on Jurisdiction, one other way, if they really had the facts to contradict the Affidavit in support, was to force a dispute on the Litigation and if they succeeded in that, the Trial Judge could not have got the alternative than to convert the originating summons to a writ of summons and order pleadings. That should have enabled them to achieve what they wanted to achieve.“ ONNOGHEN, JSC.
It is therefore my view that the failure of the Appellants to file a Counter Affidavit to the Respondent’s Application filed on 14/6/2018 will be taken by this Court as an admission of the facts by the Appellants as contained in the Respondent’s Affidavit. The Appellants would as well be taken to have admitted that the Affidavit was made in good faith.
See – IBRAHIM VS. DANGWARAM (SUPRA) PAGE 95 PARAGRAPHS A TO B where it was held thus:-
“In general however, failure by the

Respondent to file a Counter Affidavit will be taken by the Court as an admission of the facts by the Respondent as contained in the Appellant’s Affidavit. He will as well be taken to have admitted that the Affidavit is made in good faith.”

Consequent upon the foregoing, it is my view that the Trial Court was right to have held that the Respondent’s Application of 14/6/2018 was unopposed, the Appellants having not filed a Counter Affidavit or any other type of response to the Respondent’s Application of 14/6/2018.

In view of my conclusion above, can someone say that the Appellants were denied fair hearing? My answer is No. In the case of – BILL CONSTRUCTION CO. LTD. VS IMANI & SONS LTD. (SUPRA), it was held among others by the Supreme Court as follows:-
“It is settled law that where a party is given ample opportunity to present his case within the confines of the law but he chooses not to utilize same, he cannot later be heard to complain that his right to fair hearing has thereby been breached.”
Also in the case of – AKINDURO VS. ALAYA (SUPRA) PAGES 1672-1673 the

Supreme Court held among others that:-
“I have said it in the past and I will say it again that the duty of the Court is to create the environment for fair hearing and it is the decision of a party to take advantage of the environment created. A party cannot blame the Court if he fails to take advantage of the environment created by the Court. I see such a situation in this matter. The Appellant should not blame the Court of Appeal. He has himself to blame.”
It is therefore clear from the analysis of judicial authorities that fair hearing and Justice are not for the Appellants alone it is also for the Respondent and the Court as the Court cannot wait indefinitely for the Appellants to file a response to the Respondent’s Application of 14/6/2018. This is because the 1999 Constitution of the Federal Republic of Nigeria (as amended) creates opportunity for the Appellants to be heard before a decision is taken and the opportunity does not last forever, it is available and enjoyed subject to the Rules of Court and the dictates of Justice.

In the circumstance, it is my view that the Appellants’ right of fair hearing was not in

any way violated since I have earlier agreed with the findings of the Trial Court that the Respondent’s Application filed on 14/6/2018 was unopposed and the Appellants having failed to respond to the Application despite been duly served.
This issue No.1 is hereby resolved in favour of the Respondent and against the Appellants.

ISSUE NO 2
“Whether the Lower Federal High Court acted without Jurisdiction by directing the parties… to cooperate in concluding the arbitration proceedings by 4th January, 2019 and to file a “final Report of Arbitration” by the same date in the entire circumstances of the case (Distilled from Grounds 1 and 2 of the Notice of Appeal).”
The Learned Counsel for the Appellants submitted that the Jurisdiction of a Court which a party has applied for must be strictly complied with and is so circumscribed in its exercise. He went further that this is because Arbitration proceedings are generally consensual and left to the parties thereto to drive. It was contended that the Trial Federal High Court was bound by the prayers sought by

the Respondent’s motion on Notice before it and it was erroneous for it to stray outside the terms of the prayers sought by directing a “cooperation” of the parties in concluding the arbitration proceedings by 4th February, 2019” or to file final Report of Arbitration before it by the same date.

The Learned Counsel for the Appellants referred to the following cases:-
– OGUNSAKIN & ANOR VS. AJIDARA & 3 OTHERS (2008) 6 NWLR Part 1082 Page 1 at 22 – 23 Paragraphs F-D
– USHAE VS. COMMISSIONER OF POLICE (2005) 2 NWLR Part 937 Page 499 at 531 Paragraphs A-G.
– EBBA & ANOTHER VS. OGODO & OTHERS (1984) 5 NSCC PAGE 255 at 265 where the Supreme Court held that:-
“A Court… is not a knight errand looking for skirmishes all about the places.”

It was further argued on behalf of the Appellants that in the situation placed before the Trial Court, it had no business interfering as to making the pronouncement it made as to “parties cooperating” time Limits whether by a filing of a “final Report of Arbitration as if the Federal High Court was

outsourcing some reserved function to a subordinate body as if Arbitral Proceedings were some sort of interlocutory matter subject to its superintendence when in fact an Arbitration reference is at par with the Federal High Court.

The Learned Counsel for the Appellants referred to the following:-
SECTION 34 ARBITRATION AND CONCILIATION ACT CAP A18 LAWS OF THE FEDERATION (2004) which states as follows:
“A Court shall not intervene in any matter governed by this Act except where so provided in this Act.”
– RAS PALGAZI CONSTRUCTION COMPANY LIMITED VS. FEDERAL CAPITAL DEVELOPMENT AUTHORITY (2001) 10 NWLR PART 772 PAGE 559 AT 571 PARAGRAPHS C – H.
– BACKBONE CONNECTIVITY NETWORK NIGERIA LIMITED & 16 OTHERS VS. BACKBONE TECHNOLOGY NETWORK INC. & 2 OTHERS (2015) 14 NWLR PART 1480 PAGE 511 AT 529 PARAGRAPHS F-G.

It was also contended on behalf of the Appellants that the Trial Federal High Court was utterly bereft of jurisdiction whether in the foregoing regard or with regard to the appointment of Mrs. Remi Awe FCI, Arb (UK) Dip Arb (oxon) as co-arbitrator as it did simply for the reason that Mrs. Remi

Awe was not nominated for appointment in strict accordance with the Arbitration And Conciliation Act Cap A18 Laws of the Federation of Nigeria 2004 and was so introduced by a further Affidavit of 21/11/2018 filed by the Respondent in violation of Order 27 Rule 4 Federal High Court (Civil Procedure) Rules 2009.

Learned Counsel for the Appellants submitted that where a statute or legislation prescribes a specific procedure or method of doing an Act and such procedure or method is not followed, any Act done or purported to have been done in pursuance thereof otherwise than as prescribed will be false and void. He relied on the following cases:-
– OJUKWU VS. KAINE & OTHERS (2000) 15 NWLR PART 691 PAGE 516 AT 523 PARAGRAPHS F-H.
– IBRAHIM VS. INEC (1999) 8 NWLR PART 614 PAGE 334.
– AGIP (NIGERIA) LIMITED VS. AGIP PETROL INTERNATIONAL & OTHERS (2010) 5 NWLR PART 1187 PAGE 348 AT 395 PARAGRAPHS G – C.
– INAKOJU & 17 OTHERS VS. ADELEKE & 3 OTHERS (SUPRA) PAGE 427 AT 661 PARAGRAPHS D – E.

He finally urged that this issue No. 2 be resolved in favour of the Appellants and against the Respondent.

The Learned Senior Counsel for the Respondent in his own response submitted that it is trite that a Court of Law has no jurisdiction to grant reliefs not sought in a Civil Litigation, however that there is an exception to the general principle of Law.

He submitted further that a consequential Order can be granted though not specifically sought for by a party in a civil case. He relied on the following cases:-
– ABDULKARIM VS. ANAZODO (2006) 11 NWLR PART 991 PAGE 299 AT 319.
– BRIGGS VS. CLORSN (2005) 12 NWLR PART 938 PAGE 59 AT 81 – 82.
– UBA VS. ETIALA (2010) 10 NWLR PART 1202 PAGE 343 AT 409.
– ABDULLAHI & OTHERS VS. NUR (2016) LPELR – 43727 (CA).

The Learned Senior Counsel for the Respondent urged this Court to hold that the Lower Court did not act out of jurisdiction when it granted the consequential orders in its Orders of 11/12/2018.
He finally urged that this issue be resolved in favour of the Respondent and the Appeal be dismissed.

RESOLUTION
It is trite law that a Court of Law has no jurisdiction to grant reliefs or claims not sought by the litigant in a Civil Litigation but there is an exception to

the general principle of Law.
The said exception is in respect of a grant of consequential order or orders.
In the case of –AKINBOBOLA VS. PLISSON FISKO NIG. LTD. & OTHERS (1991) 1 NWLR PART 270 PAGE 288.
It was held among others that –
“A consequential Order is not merely incidental to a decision but one necessarily following directly and naturally from and inevitably consequent upon it.
It must be giving effect to the Judgment already given, not by granting a fresh and unclaimed or unproven relief. The requirement is stated in the case of OBAYAGBONA VS. OBAZEE (1972) 5 S.C. PAGE 247 where Sowemimo JSC observed that:… by the very nature of the term consequential, any consequential Order must be one giving effect to the Judgment… the word consequential means- “following as a result or inference” See also DR. M.T.A. LIMAN VS. ALHAJI SHEU MOHAMMED (1999) 9 NWLR PART 617 PAGE 116. A consequential Order therefore made subsequent to a Judgment which detracts from the Judgment or contains extraneous matters is not an Order made within

jurisdiction. A consequential Order can only relate to matters adjudicated upon.”
Also in the case of – BRIGGS VS. CLORSN (SUPRA) AT 81 – 82, the Supreme Court per KUTIGI JSC (as he then was) held among others that:-
“The Plaintiff having been declared to be entitled to the property in dispute needs protection against the 3rd defendant who has lost and has now acquired the status of a trespasser. The Order of injunction against the 3rd defendant was therefore a proper necessary Order.
It is a consequential Order which Courts of Law are entitled to make in appropriate cases to protect their Judgments or Orders as in this case. It was a valid Order.”
Further at page 102 of the case (Supra), His Lordship OGUNTADE JSC held thus:-
“The Order for injunction made by the Court below was therefore no more than an effort to give bite and efficacy to the Order declaring the sale of the property to the 3rd Defendant/Appellant a nullity. It is therefore consequential in the circumstances.”
In this case under consideration, the Lower Court’s Orders 3 and 4 are Orders which naturally flow from Orders 1 and

2 which was specifically sought by the Respondent and granted by the Trial Court. The said Orders 3 and 4 are in my view granted by the Trial Court to give effect to Orders 1 and 2 which were primarily the appointment of a Co-Arbitrator on behalf of the Appellants since the Appellants failed/neglected to appoint one.
My view above shows that the purpose of a consequential Order is to give effect to the decision or Judgment of the Court. A perusal of the Orders made by Trial Court would also reveal that the Orders made are not entirely new or incongruous Order, but they are to give efficacy to Orders 1 & 2 of the Trial Court.
See the following cases:-
– ABDULKARIM VS. ANAZODO (SUPRA)
– UBA VS. ETIALA (SUPRA)
– ABDULLAHI & OTHERS VS. NUR (SUPRA)
Also in the case of – ADEWOLE VS. SODIPO (1989) 5 NWLR PART 121 PAGE 329 AT 346 PER KUTIGI JCA (as he then was held –
“However, it must be conceded, that a Court may make consequential Order flowing from its decision but such reliefs must as Chief Williams himself would appear to have conceded be related to or incidental to the reliefs claimed.”

See the following cases:-
– ERISI VS. IDIKA (1987) 3 NWLR PART 66 PAGE 503.
Furthermore in AMAECHI VS. INEC (2008) 5 NWLR PART 1080 PAGE 227, it was held by the Supreme Court as follows:-
“It is the law even where a person has not specifically asked for a relief from a Court, the Court has the power to grant such a relief as a consequential Order. A consequential Order must be one made giving effect to the Judgment which it follows. It is not an Order made subsequent to a Judgment which derails from the extraneous Judgment or contains matters. It is settled Law that Court can order an injunction even if it is not specifically claimed but appears incidentally necessary to protect established rights. See ATOLAGBE VS. SHORUN (1985) 1 NWLR PART 2 PAGE 360.
– OKUPE VS. FBIR (1974) 1 NWLR PAGE 422
– LIMAN VS. MOHAMMED (1999) 9 NWLR PART 617 PAGE 116.”

In view of the foregoing, it is clear that Orders 3 and 4 were incidental to the grant of Orders 1 and 2 made in favour of the Respondent by the Trial Court. In summary, one can say without any equivocation that – Orders 3 and 4 were made to give effect to Order 1 and 2

i.e.
– To make meaningful Orders 1 and 2 granted earlier and,
– Put an end to Litigation by avoiding future action.

It was also argued on behalf of the Appellants that the Trial Court acted on an invalid process in appointing Mrs. Remi Awe as a Co-Arbitrator in the circumstances of the case.

It was also contended that the further Affidavit filed by the Respondent is in violation of Order 27 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009.
In order to understand the contention of the Learned Counsel for the Appellants, it would be necessary at this stage to set out the provisions of Order 26 Rules 3 and 5 and Order 27 Rules 4 of the Federal High Court (Civil Procedure) Rules 2009 which reads thus:-
“26 (3) Every motion shall be supported by an Affidavit setting out the Grounds on which the party now moving intends to rely and such motion shall be filed along with a written address.
26 (5) A party on which a motion has been served as per the preceding Rules of this Order and who intends to reply may do so by filing his written address in reply along with a Counter Affidavit if he so wishes and shall do so not

later than seven days from the service of the motion on him.
27(4) Where a special time is limited for filing Affidavits, no Affidavit filed after that time shall be used, unless by leave of the Judge.”
A careful reading of the said Provisions of Order 26 Rules 3 and 5 and Order 27 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009 set out above would reveal that there is nothing in the provisions to suggest that filing of the further Affidavit by the Applicant now Respondent is prohibited even after the submission of written addresses by counsel. In fact, filing of a further Affidavit was not in contemplation by Order 27 Rule 4 (Supra).
Furthermore, the Learned Counsel for the Appellants was unable to show that the filing of the further Affidavit at the Trial Court was an abuse of Court process.
It is therefore my view that the said further Affidavit is not frivolous or reckless. It is a valid Court process. See the following cases:- OPEKUN VS. SADIQ (2003) 5 NWLR PART 814 PAGE 475.
– RAJI VS. O.A.U. (2014) LPELR – 22088 (CA).

Consequent upon the foregoing, I am of the view that the Trial Court did not act

out of jurisdiction when it granted consequential Orders in its Orders of 11/12/2016.
In the result, issue No.2 is also resolved in favour of the Respondent and against the Appellants.

This Appeal therefore lacks merit but it must not be forgotten that earlier in this Judgment, I held that this Appeal is incompetent under Issue Number 1.
Consequent upon the foregoing, the Appeal is hereby struck out.
There shall be no order as to costs. Each of the parties are to bear their own costs.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The leading judgment of my learned brother, Jimi Olukayode Bada, JCA, which has just been delivered was made available to me in draft.
I am allegiant to the reasoning and conclusion in the said leading judgment. I adopt the same as mine. I have nothing further to add.

For the reasoning and conclusion therein contained, I agree that the appeal is incompetent and that this Court has no jurisdiction to entertain the same. On the merits, the issue of breach fair hearing raised by the Appellant and the lower Court having made an order which was not sought by the Respondent are

bereft of any substance, as lucidly articulated in the leading judgment. Since the appeal is incompetent and this Court has no jurisdiction to entertain the same, the appropriate order to make in the circumstances is to strike out the appeal:OKOYE vs. NCFC (1991) 6 NWLR (PT 199) 501, RTEAN vs. NURTW (1992) LPELR (3200) 1 at 15 and DANGANA vs. USMAN (2012) LPELR (25012) 1 at 35-36. I therefore strike out the appeal for want of jurisdiction. I abide by the consequential orders made in the leading judgment, inclusive of the order as to costs.

FOLASHADE AYODEJI OJO, J.C.A.: I have had the benefit of reading in advance the lead judgment just delivered by my learned brother, Jimi Olukayode Bada, JCA and I entirely agree with the reasoning and conclusions reached by him.

The law is now quite that the competence of a Court to entertain a given subject matter of dispute is an essential element in determining its jurisdiction. Therefore, a Court is competent when:
(i) it is properly constituted as regards number and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

(ii) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(iii) the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
See MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341; AGBOGUNLERI VS. DEPO (2008) 3 NWLR (PT.1074) 217; MUSACONI VS ASPINALL (2013) 14 NWLR (PT. 1375) 435: SHELIM VS GOBANG (2009) 12 NWLR (PT. 1156) 435: ETSAKO WEST LOCAL GOVERNMENT COUNCIL VS. CHRISTOPHER (2014) 14 NWLR (PT. 1426) 73.

In this appeal, the learned trial Judge in exercise of powers vested on him vide Section 7(2) & (3) of the Arbitration and Conciliation Act. appointed Mrs. Remi Awe FCIArb (UK) Dip IC Arb as a Co-Arbitrator. Section 7(4) of the Arbitration and Conciliation Act removes the subject matter of appointment of arbitrator made pursuant to Section 7(2) & (3) of the Act from the jurisdiction of an appellate Court. I agree with my learned brother that the appropriate order to make in circumstance is one striking out this appeal.

It is for the foregoing and the more comprehensive reasons contained in the lead Judgment that I too strike out this appeal for being incompetent. I abide by the consequential orders made in the lead Judgment including the order of no costs.

Appearances:

M. O. OGUNSANWO (Assistant Director Litigation Department, Ogun State Ministry of Justice Abeokuta) For Appellant(s)

CHIEF BOLAJI AYORINDE ,SAN with him, MR. AKIN APARA, FOLAKE ADENIYI ,Esq. and EMMANUEL ELIJAH, Esq.For Respondent(s)