ALLIED ENERGY LIMITED & ANOR v. NIGERIAN AGIP EXPLORATION LIMITED
(2018)LCN/12010(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 24th day of July, 2018
CA/L/120/2018
RATIO
FUNDAMENTAAL RIGHT: RIGHT TO FAIR HEARING
“Clearly, whenever the need arises for the determination of the civil rights and obligation of every Nigerian, this provision (Section 33 of the 1979 Constitution, now Section 36 of the 1999 Constitution) guarantees to such a person a fair hearing within a reasonable time. Fair hearing has been interpreted by the Courts to be synonymous with fair trial and as implying that every reasonable and fair minded observer who watched the proceedings should be able to come to the conclusion that the Court or other tribunal has been fair to all the parties concerned… As this is so, an order which ex-facie, as in this appeal, looks final, lacks at least one of the attributes of fair hearing or as for example, equality of opportunity to both sides to the contest…
Once a party or an appellant as in this case shows that there is an infringement on the principle of natural justice against him, it is my view that he need to show nothing more. The finding that there is an infringement of the principle is sufficient to grant him a remedy….”’ PER TIJJANI ABUBAKAR, J.C.A.
JURISDICTION: WHETHER THE COURT LACKS JURISDICTION TO SET ASIDE ITS OWN DECISION
“The law is well settled that the Court lacks the jurisdiction to set aside its own decision except where the decision is a nullity by reason of breach of due process or has occasioned a miscarriage of justice.
In the instant suit, the decision of this Honorable Court was anchored on the provisions of Order 52 Rule 16 (1 & 2) Federal High Court Rules and Section 31(1) and (2) Section 51(1) and (2) of the Arbitration and Conciliation Act…It is the law that where a Court delivers its decision in a matter, it becomes functus officio and cannot revisit the decision. This is an elementary but fundamental principle of law, as a Court ceases to have legal competence or jurisdiction in respect of a case it has delivered its judgment; it cannot sit and assume the status of an Appellate Court over its own decision. BERLIET (NIG.) LTD Vs. KACHALLA [1995] 9 NWLR (Pt.420); FIRST BANK OF NIGERIA PLC Vs. T.S.A. INDUSTRIES LIMITED (2010) 15 NWLR (Pt.1216) 247. ” PER TIJJANI ABUBAKAR, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. ALLIED ENERGY LIMITED
2. CAMAC INTERNATIONAL (NIGERIA) LTD Appellant(s)
AND
NIGERIAN AGIP EXPLORATION LIMITED Respondent(s)
TIJJANI ABUBAKAR, J.C.A.(Delivering the Leading Judgment):
This appeal is against the Ruling of the Federal High Court, Lagos Division, delivered by Shagari J. on the 16th day of January 2018 in suit No. FHC/L/CS/625/2017, the ruling is found at pages 1244 – 1261 of the Records of Appeal wherein the learned trial Judge refused and struck out the Appellants’ Application dated 23rd June, 2017. The said Application was filed by the Appellants seeking to set aside the Ex Parte Order made by the Lower Court on the 11th day of May, 2017 recognizing and enforcing the Final Award of the 14th day of February, 2017. The Lower Court refused the Appellants’ Application on the ground that it was functus officio.
Aggrieved by the decision of the Lower Court, the Appellants initiated this appeal. The relevant Notice of Appeal was filed on the 22nd day of January, 2018 and contained at pages 1274 – 1279 of the Records of Appeal. The Appellants’ Brief of Argument was filed on the 14th day of March, 2018 by learned Senior Counsel Ayodele Akintunde SAN; the learned senior counsel also filed a Reply Brief on behalf of the Appellants on the 9th day of May, 2018.
The Respondent’s Brief on the other hand was filed by Faith Ikhogo (Miss) on the 17th day of April, 2018. The Respondent’s counsel also filed a Notice of Preliminary Objection on the 17th day of April, 2018. Learned counsel for the Appellants crafted 2 (two) issues for determination, the issues are reproduced as follows:
1. Whether the Federal High Court, Lagos Division (Coram: Hon. Justice Hadiza R. Shagari) was functus officio to hear and determine the Appellants’ Motion dated the 23rd of June 2017 to inter alia discharge, vacate and set aside the Ex-parte Order made by the learned trial judge on the 11th of May, 2017 granting the Respondent leave to enforce the London Court of International Arbitration Final Award, made in London on the 14th of February 2017 in LCIA Arbitration No.132498 as a judgment; and:
2. Whether in the circumstance, the Federal High Court, Lagos Division (Coram: Hon. Justice Hadiza R. Shagari) should have granted the Appellants’ Motion dated the 23rd of June 2017 as prayed and inter alia discharged, vacated and set aside the Ex-parte Order made by the learned trial judge on the 11th of May, 2017 and the Certificate of judgment dated the 30th of May, 2017 issued pursuant thereto.
The Respondent on the other hand distilled a sole issue for determination, the sole issue is also reproduced as follows:
Was the learned trial Judge wrong in law when she held “Motion on Notice of the Respondent did not succeed”?
THE RESPONDENT’S PRELIMINARY OBJECTION
As earlier stated, the Respondent filed a Notice of Preliminary Objection challenging the three grounds of appeal and included arguments thereon in the Respondent’s Brief. Learned counsel for the Respondent on the first ground of appeal referred to Section 243 (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order 7 Rules 2(2) & (3) and 6 of the Court of Appeal Rules, 2016 to submit that an incompetent ground of appeal cannot be the basis for a valid appeal in respect of which this Court can exercise jurisdiction. Counsel argued that the particulars of ground No. 1 of the Grounds of Appeal are not related to the hearing and determination of the Applicants’ Application dated the 23rd of June 2017 but consist of complaints against the proceedings and Order made by the trial Court recognizing and enforcing the Final Award of the 14th February, 2017.
Learned counsel further submitted that while the appeal is said to have been filed against the Ruling of 16th January, 2018, the complaint in ground No. 1 borders on the failure of the trial Court to consider and determine the motion filed on the 23rd of June 2017; counsel argued that the Appellants cannot refer to the Ruling of 11th May, 2017 as particulars of error in the appeal against the Ruling of 16th January, 2018. Counsel submitted that ground No. 1, is an invitation on this Court to revisit and review the ex parte proceedings leading to the Order of recognition of the Final Award; and that by Section 14 (1) of the Court of Appeal Act; this Court lacks the jurisdiction to entertain appeals against orders made ex parte. Learned counsel referred to ROBERT IKWEKI vs. JAMES EBELE [2005] 17 ALL FWLR (Pt.257) pg. 1401 at 1419 to submit that ground No.1 of the Notice of Appeal with its particulars did not arise from the Ruling delivered on the 16th day of January, 2018.
On the second ground of appeal, learned counsel for the Respondent contended that the particulars of error are not directed at and do not support the complaint in ground No. 2 of the Appellants’ Notice of Appeal. Counsel submitted that the issue of competence of the Lower Court to determine the Motion does not arise from the Ruling appealed against and that the allegation that the trial Judge abdicated his constitutional duties is not a complaint against what the learned trial Judge decided in the Ruling appealed against. Learned counsel referred to Order 7 Rules 2(2) of the Court of Appeal Rules, 2016 andSHELL PETROLEUM DEVELOPMENT NIGERIA LTD Vs. REGISTRAR BUSINESS PREMISES ABIA STATE [2016] 2 NWLR (Pt.1496) Pg. 326 at344, Paras. E – H and submitted that to allege an error in law on the basis that the trial Judge did not hear and determine the Appellant’s Motion dated 23rd of June 2017 is a contradiction in itself because if the Motion was not heard and determined, then why this appeal.
On the third Ground of Appeal, learned counsel for the Respondent argued that the said ground No. 3 is defective and incompetent because the first particulars alleged that the Ruling of 11th day of May, 2017 was wrongly and irregularly obtained when the Appellants did not file an appeal against the said Ruling of 11th May, 2017. Counsel submitted that the other particulars filed under Ground No. 3 cannot support the complaint in the said ground of appeal. Relying on Section 14(1) of the court of Appeal Act ROBERT IKWEKI vs. JAMES EBELE (supra) and SHELL PETROLEUM DEVELOPMENT NIGERIA LTD Vs. REGISTRAR BUSINESS PREMISES ABIA STATE (supra), counsel submitted that none of the three Grounds of Appeal is competent; and that this Court lacks the jurisdiction to entertain this appeal. Learned counsel therefore urged this Court to strike out this appeal.
In response, learned senior counsel for the Appellants submitted that the Respondent’s preliminary objection is totally misconceived and should be dismissed by this Court. Counsel submitted that the error alleged in ground No. 1 of the Notice of Appeal and the particulars highlight and specify the complaint against the Ruling of 16th January, 2018. Learned senior counsel referred to the said Ruling of 16th January, 2018 particularly at pages 1260 – 1261 of the records of appeal to contend that the relevant issue which the trial Court considered in its Ruling was whether it has the Jurisdiction to set aside its earlier decision granted on an Originating Ex Parte Motion; counsel submitted that the said Ex Parte Order made on the 11th May, 2017 was instrumental to and cannot be divorced from the Ruling of the Court delivered on the 16th January, 2018. Learned senior counsel submitted that the particulars of error as contained under Ground No. 1 of the Notice of Appeal therefore support the error of law complained of therein because they seek to show that the learned trial Judge wrongly refused to set aside the order made on the 11th of May, 2017 on the ground that the Court is functus officio.
Learned senior counsel submitted that the Appellants had the right to elect either to appeal against the Ruling of 11th May, 2017 or to apply to the Lower Court for an Order to set aside the said Ruling as they have rightly done in the instant case. Counsel referred to GLOBAL WEST VESSEL SPECIALIST (NIG.) LTD vs. NIGERIA NLNG LTD & ANOR [2017] 8 NWLR (Pt.1568) Pg.381 at 408, para. A – B and NYAKO Vs. ADAMAWA HOUSE OF ASSEMBLY [2017] 6 NWLR (Pt.1562] Pg.347 at 387-388, Paras. F – A to submit that Ground No. 1 of the Appellants’ Notice of Appeal must be read together with the particulars and that the said ground does not fall short of Order 7 Rule 2(2) of the Court of Appeal Rules, 2016 and is neither void nor invalid. Learned senior counsel referred to N.N.B. PLC vs. IMONIKHE [2002] 5 NWLR (Pt.760) pg.241 at 310 and D. STEPHENS INDUSTRIES LTD & ANOR vs. BANK OF CREDIT AND COMMERCE INTERNATIONAL (NIG) LTD (1999) 11 NWLR (Pt.625) PG.29 at 31 to further contend that even if Ground No: 1 of the Notice of Appeal and the Particulars were inelegantly drafted, the grounds are not by such inelegance invalidated.
Learned senior counsel for the Appellants further referred to F.B.N. PLC Vs. T.S.A. IND. LTD (Supra); NSIRIM Vs. AMADI (2016) LPELR-26053 (sc); KOLAWOLE Vs. OLORI (2008) LPELR-3713 (CA) to submit that the learned trial Judge refused to determine the Appellants’ Application dated 23rd June, 2017 to set aside the Ex Parte order made on the 11th of May, 2017 on the ground that it was functus officio and wrongly struck out the Appellants’ Application. Counsel cited PANALPINA WORLD TRANSPORT (NIG) LTD vs. J.B. OLADEEN INTERNATIONAL & ORS [2010] 19 NWLR [pt.1226] PG. 1 at 20, Paras. A – F and DUROSIMI Vs. ADENIYI & ANOR (2017) LPELR-42731 (CA) and submitted that the preliminary objection to Ground No: 1 and its particulars is totally misconceived and should be discountenanced.
Learned senior counsel argued that in considering Ground No. 1 of the Notice of Appeal, this Court will not be required to revisit or review the correctness of the Ex Parte Order made on the 11th May, 2017; but that all this Court will be required to do is to determine inter alia whether the learned trial Judge was indeed functus officio and whether he had power to set aside the Ex Parte Order of 11th May, 2017.
Learned senior counsel further submitted that the case of ROBERT IKWEKI Vs. JAMES EBELE (Supra) is not applicable to the instant case; and that this appeal is not against the Ex Parte Order of 11th May, 2017. Counsel urged this Court to discountenance the Respondent’s submissions in relation to Section 14 (1) of the Court of Appeal Act because it is obvious on the face of the Notice of Appeal that this appeal is against the Ruling of 15th January, 2018 wherein the learned trial Judge declined jurisdiction to entertain the Appellants’ Motion. Section 241 (1) (a) – (c) was referred to by the learned senior counsel to submit that a decision by a Court that it lacks jurisdiction is a final decision against which an appeal will lie as of right. Counsel concluded that the Court has to determine the issue of whether or not the Appellants were accorded or denied fair hearing by the Lower Court.
With regards to Ground No. 2 of the Notice of appeal, learned senior counsel referred to GLOBAL WEST VESSEL SPECIALIST (NIG.) LTD Vs. NIGERIA NLNG LTD & ANOR (Supra) and submitted that the two Particulars support the complaints in the Ground of Appeal and that the issue of competence of the Lower Court arises from the Ruling appealed against because the learned trial Judge at page 1260 of the records of appeal identified the issue of its jurisdiction as the only relevant issue in the Ruling. Counsel argued that the Appellants’ Motion cannot be said to have been heard when the learned trial Judge neither granted nor dismissed the said Application but merely struck it out on the ground that the Court lacks jurisdiction to entertain same.
Learned senior counsel submitted that by the decision in SHELL PETROLEUM DEVELOPMENT NIGERIA LTD Vs. REGISTRAR BUSINESS PREMISES ABIA STATE (Supra), if the Respondent is barred from filing an appeal against an Ex Parte Order by virtue of Section 14(1) of the Court of Appeal Act; it therefore means that the Appellants could not have competently appealed to this Court leaving the Appellants with the only option of approaching the Lower Court to have the Ex Parte Order in question set aside which is what the Appellants have done in the instant case. Learned senior counsel referred to C.O.P vs. OGBU (2016) LPELR-40307 (CA) to submit that the Appellants’ right of appeal is preserved by Section 241(1) (b) & (d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Counsel urged this Court to discountenance the Respondent’s objection to Ground No. 2 of the Notice of Appeal.
With respect to the third Ground of Appeal, learned senior counsel submitted that if the Appellants’ issue No. 1 premised on Grounds No. 1 & 2 succeeds, the Lower Court’s Ruling of 16th January, 2018 will be set aside and consequently the Appellants’ Application of 23rd June, 2017 will be revived in which case, this Court will be faced with the option of either exercising its power under Section 15 of the Court of Appeal Act to determine the Appellants’ Application in the interest of the speedy administration of justice; or to remit the said Appellants’ Application back to the Lower Court. Counsel submitted that the Particulars of Ground No. 3 are in support of the complaint in the said ground and that the cases ofROBERT IKWEKI Vs. JAMES EBELE and SHELL PETROLEUM DEVELOPMENT NIGERIA LTD Vs. REGISTRAR BUSINESS PREMISES ABIA STATE (Supra) are inapplicable because the Appellants are not appealing against the Ex Parte Order of 11th May, 2017 but against the Ruling of 16th January, 2018. Learned senior counsel cited OLORUNTOBA-OJU Vs. ABDULRAHEEM [2009] 13 NWLR (Pt.1157) Pg. 83 SC to submit that the Respondent’s Preliminary Objection is centered on technicalities; this Court is urged to strike same out and do substantial justice by determining the Appeal on its merit.
RESOLUTION OF PRELIMINARY OBJECTION
I must state at once that the arguments and submissions made by learned Counsel for the Respondent on the preliminary objection are not well founded. Regarding the preliminary issue relating to the three Notices of Appeal purportedly filed by the Appellants, the law is well settled that an Appellant can file more than one notice of appeal; and where he does so, the law only requires that he consolidates the notices of appeal or elect one of the notices of appeal on which he desires that his appeal be considered, thereby abandoning others, as he cannot prosecute an appeal on multiple notices of appeal. See TUKUR Vs. UBA & ORS (2012) LPELR ? 9337 (SC); ADELEKE Vs. OYO STATE HOUSE OF ASSEMBLY (No.2) [2006] 11 NWLR (Pt.990) 136 and DIAMOND BANK Vs. P.I. CO. LTD [2009] 18 NWLR (Pt.1172) 67.
In the instant case, even though the Appellants had filed three Notices of Appeal, it is obvious, particularly from the Appellants’ Brief of Argument that copious reference is only made to the Notice of Appeal dated 17th January, 2018 found at pages 1274 to 1279 of the records of appeal. It is thus deemed that the Appellants have abandoned the other notices filed by them and cannot be countenanced by the Court while considering the present appeal. The only potent and extant Notice of Appeal before this Court is the one dated 17th January, 2018 and filed on 22nd January, 2018.
Regarding the substantive objection by the Respondent, I have carefully reviewed the three grounds of appeal including the errors of law as well as the particulars of error thereof, and I must quickly say that the Respondent’s objection is grossly misconceived. The law is well settled that in determining the nature of a ground of appeal, the ground and its particulars must be read together. See NYAKO Vs. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR – 41822 (SC) where the Supreme Court, per MUHAMMAD, JSC held as follows:
“It is trite law that the complaint of an appellant can hardly be properly understood where there is a dichotomy between the mother/main ground and its “children” or particulars. In fact, the law does not allow a party to divorce the particulars of a ground from the main ground of appeal. Particulars of error alleged in a ground of appeal are intended to highlight the complaint against the decision appealed. They are specifications of errors or misdirection which show what the complaint against the decision is all about. And, in order to determine whether or not a ground of appeal is relevant to the issue formulated in an appeal, that ground must be read in conjunction with the particulars to make it a complete ground and must be based on the issue in controversy between the parties.”
See also OLORUNTOBA-OJU & ORS Vs. ABDUL-RAHEEM & ORS (2009) LPELR – 2596 (SC) and WAZIRI & ANOR Vs. GEIDAM & ORS (2016) LPELR -40660 (SC).
The Respondent’s counsel contended that the particulars of error in the first ground of appeal do not relate or are not directed at and do not support the complaint in the said error of law. I am unable to, with all due respect, accept this contention. A careful perusal of the particulars of error as well as the error of law leaves no one in doubt that the complaint of the Appellants are directed at the decision of the learned trial judge whereby it was held that the Lower Court is functus officio, having settled that the issue for determination is whether the Court had the jurisdiction to set aside its decision granted on an Originating Ex-parte motion. Learned counsel for the Respondent argued that the Court of Appeal lacks jurisdiction to entertain appeals against the Order made ex parte and that the Appellants whose appeal is against the Ruling of 16th January, 2018 cannot refer to the Ruling of 11th May, 2017 as particulars of errors. This submission is in my view unfounded and misplaced and utterly misconceived. In an attempt to set aside the subsisting Order granted by the Lower Court on 11th May, 2017 granting leave to the Respondent to enforce the Arbitral Award, the Appellants filed an application praying that the order be set aside; and by the Ruling of the Court delivered on the 15th day of January, 2018, the learned trial judge was of the opinion that the Court lacks jurisdiction to set aside the order.
This is the basis of the present appeal before this Court as copiously stated by the Appellants in the error as well as particulars of errors contained in the relevant Notice of Appeal. Therefore the submissions by counsel that this Court lacks jurisdiction to entertain an appeal against Orders made ex parte is indeed misconceived as it not only runs contrary to the decision of the learned trial judge at page 1260, Volume III of the record of appeal, that the Appellants who are “dissatisfied with the decision, judgment or Order (exparte) can only proceed on appeal against it.”
Similarly, the two particulars of errors contained in ground two undoubtedly relate to the error of law therein. The complaint in the said ground stems from the decision of the learned trial judge that he is functus officio thereby declining to consider the issues raised pursuant to the Appellants’ motion to set aside the order ex parte made by the Lower Court on 11th May, 2017. The particulars clearly stated that the Lower Court is the proper Court to hear and determine the issues raised in the said motion and that the learned judge erred when he failed to so do, but held that the Court lacked jurisdiction.
I must observe that arguments canvassed by learned Counsel for the Respondent in relation to the third ground are matters which are meant for consideration in the substantive appeal. The objection is in my view therefore misconceived and I will not want to waste any more precious judicial time on this. In sum therefore, the preliminary objection by the Respondent is grossly misconceived, it lacks merit and is hereby dismissed.
Having discountenanced the preliminary objection, I will now proceed to consider the issues and arguments canvassed by learned counsel for the respective parties in the substantive appeal.
SUBMISSIONS OF COUNSEL FOR THE APPELLANTS
ISSUE ONE
Learned senior counsel for the Appellants referred to F.B.N. PLC Vs. T.S.A. IND. LTD [2010] 15 NWLR (Pt.1216) Pg.247 at 296, Paras. D – F and BUHARI Vs. INEC [2008] 19 NWLR (Pt.1120) Pg.246 at 375, Paras. G – A to submit that a Court is said to be functus officio if the Court has fulfilled or accomplished its function in respect of a matter and lacks the potency to review, re-open or revisit the said matter. Learned senior counsel referred to the Ex parte Originating Summons at page 4 of the Records of Appeal and argued that Appellants, who are parties concerned were never notified to attend the proceedings before the learned trial judge granted the Ex parte Order of 11th May, 2017; that the entire proceedings were conducted without giving the Appellants any opportunity to be heard; that Appellants are entitled to apply to set it aside; and that the learned trial Judge was not functus officio to set it aside the orders.
Learned senior counsel referred to Order 52 Rule 16 (1) of the Federal High Court Civil Procedure Rules, 2009 and submitted that it is Section 31 (1) – (3) of the Arbitration and Conciliation Act, 2004 that governs the procedure for the recognition and enforcement of an Award as Judgment and not the provisions of Order 52 Rule 16 (1) of the Federal High Court Civil Procedure Rules, 2009. Counsel referred to STABILINI VISIONI LTD Vs. MALLINSON PARNTERS LTD [2014] 12 NWLR (Pt.1420) Pg.134 at 185-186, Paras. H – B; IMANI & SONS LTD Vs. BILL CONSTRUCTION LTD [1999] 12 NWLR (Pt.530) Pg.254 and BILL CONSTRUCTION LTD Vs. IMANI & SONS LTD [2006] 19 NWLR (Pt. 1013) PG. 1 to submit that the rules of Court cannot override the statutory provision which confers jurisdiction and that by the provisions of Section 31 (1) – (3) and 51 (1) & (2) of the Arbitration and Conciliation Act, 2004, the learned trial Judge ought to have directed that the Appellants be put on notice to ensure that they were given a fair hearing before making the Ex parte Order considering the magnitude of the award involved which runs into over $200 million dollars.
Learned senior counsel further referred to EKE Vs. OGBONDA [2006] 18 NWLR (Pt. 1012) Pg. 506 to submit that the Ex Parte Order made on 11th May, 2017 is a nullity and the learned trial Judge was not functus officio to set aside the Order since the Appellants’ right to fair hearing had been breached. Learned Counsel further relied on PAUL CARDOSO Vs. JOHN BANKOLE DANIEL & ORS [1986] 2 NWLR (Pt.20) Pg. 1 and U.T.C. (NIG) LTD Vs. PAMOTEI [1989] 2 NWLR (Pt.103) Pg. 244 at 268, Paras. C – E to argue that the said Ex Parte Order of 11th May, 2017 was not a final Order or Judgment on the merits that cannot be set aside by the same Court who made it. Learned Senior Counsel referred to Sections 1(1) & (3) 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); UMAR Vs. ONWUDINE [2002] 10 NWLR (Pt.774) Pg.129 at 150; AKAMGBO-OKADIGBO Vs. CHIDI (No.1) [2015] 10 NWLR (Pt.1466) pg. 171; IBRAHIM Vs. JUDICIAL SERVICE COMMITTEE, KADUNA STATE [1998] 14 NWLR (Pt.384) Pg.1 and MUHAMMED Vs. A.B.U. ZARIA [2014] 7 NWLR (Pt.1407) Pg.500 at 530, Paras. E – F to submit that the Constitution of the Federal Republic of Nigeria, 1999 (as amended) being the Supreme law of the land prevails over any other legislation and that a breach of the fundamental principles of fair hearing entrenched in the Constitution will vitiate or nullify the whole proceedings.
Learned senior counsel further contended that the proper remedy for the Appellants was to apply to the learned trial Judge to set aside the said Ex Parte Order made on the 11th May, 2017; counsel referred to UMAR Vs. ONWUDINE (Supra) to submit that the refusal of the Appellants’ application to set aside the said Ex Parte Order was a breach of the Appellants’ right to fair hearing as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Learned senior counsel cited T.M. LEWIN (NIG) LTD Vs. SMARTMARK LTD (2017) LPELR-43136; BOGBAN Vs. DIWHRE [2005] 16 NWLR (Pt.951) Pg.274 at 297, Para. B; C.C. (OIL & GAS) CO. SAL Vs. MASIRI [2011] 3 NWLR (Pt.1234) Pg.283 at 300-301, Paras. H – A; ATKINS COURT FORMS 2nd Ed. Vol. 1, 1994 at Para. 43 and Order 73 Rules 10 (4), (6) & (7) of the Rules of the Supreme Court of England 1997 Vol. 1, Pg. 1304 – 1305 to submit that the learned trial Judge had the power and jurisdiction to hear and determine the application to set aside the Ex Parte Order and that by refusing to do so on grounds of being functus officio, the learned trial Judge abdicated his responsibility. Learned Counsel urged this Court to so hold and resolve this issue in favor of the Appellants.
ISSUE TWO
On the second learned senior counsel for the Appellants relied on Section 15 of the Court of Appeal Act and NDIC vs. JACKSON DEVOS LTD (2014) LPELR-23378 (CA) and WEST AFRICAN SHIPPING AGENCY NIGERIA LTD Vs. AIHAJI M. KALLA (1978) 3 SC 21 to submit that if this Court resolves the first issue in favor of the Appellants and allows this Appeal, the Ruling of the Lower Court delivered on the 16th January, 2018 herein appealed should be set aside and the suit be remitted to the chief Judge of the Lower Court for reassignment or in order to facilitate speedy administration of justice, this Court can exercise the powers conferred on it under Section 15 of the Court of Appeal Act to hear and determine the Appellants’ Application dated 23rd of June 2017 on its merits. Counsel referred to the said Motion in suit No.FHC/L/CS/625/2017 dated 23rd of June 2017 and the 28 paragraph Affidavit deposed to by one Adeleke Solanke in support thereof as contained at pages 446 – 620 of the records of appeal; and urged this Court to grant the Appellants’ application.
Learned senior counsel referred to Section 29 of the Arbitration and Conciliation Act,2004; ATOJU Vs. TRUIMPH BANK PLC [2016] 5 NWLR (Pt.1505) Pg. 252 at 282, Paras. C – D to contend that the Respondent’s right to apply for the recognition and enforcement of the final award had not crystalized or inured at the time the Respondent’s applied for it because the Appellants’ had 3 months within which they could have applied to Court to set aside the Award which was made on the 20th of April, 2017 and that until the expiration of that 3 months, the Appellants would not have the right to apply for the recognition and enforcement of the Award as they did on the 11th May, 2017. Counsel cited U.B.A PLC. VS. OGUNSANYA [2003] 8 NWLR (Pt.821) Pg.111 At 128; RIVER STATE GOVERNMENT vs. SPECIALIST KONSULT (2005) 7 NWLR (PT.923) PG.145; MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341; ATOJU VS. TRUIMPH BANK PLC (SUPRA) and MACFOY VS. UAC (1961) 3 ALR 1169 to argue that a condition precedent to the exercise of the Lower Court?s jurisdiction had not been met and therefore, the Lower Court lacked the jurisdiction to grant the Ex parte order of 11th May, 2017; and that the Certificate of Judgment dated 30th May, 2017 should be set aside since it has no foundation to stand because the Ex parte Order of 11th May, 2017 was made without jurisdiction.
Learned senior counsel further urged this Court to grant the Appellants’ Application dated 23rd of June 2017 on the ground that no notice was given to the Respondent as required by Section 31 of the Arbitration and Conciliation Act, 2004 before the Ex Parte Order of 11th May, 2017 was made thereby resulting in a breach of the Appellants’ constitutional right to fair hearing. Counsel adopted the earlier submissions on this point and referred to IMANI & SON LTD Vs. BILL CONSTRUCTION LTD (Supra); BILL CONSTRUCTION LTD Vs. IMANI & SONS LTD (Supra); AKAMGBO-OKADIGBO Vs. CHIDI (No.1) (Supra) and MUHAMMED Vs. A.B.U. ZARIA (Supra) to submit that the Ex Parte Order was a nullity on the ground that the Appellants were not put on notice. Counsel further argued that the Ex Parte Order of 11th May, 2017 was never served on the Appellants and as such the Appellants had no opportunity to challenge it or apply to have it set aside. Learned senior counsel referred to ATKINS COURT FORMS, 2nd Ed. Vol. 6, 1994, Para. 43; Order 73 Rules 10 (4), (6) & (7) of the Rules of the Supreme Court of England 1997 Vol. 1, Pg. 1304 – 1305; HABIB NIGERIA BANK LTD Vs. WAHAB OPOMULERO [2000] 15 NWLR (Pt.690) pg. 31 and ATANO Vs. BENDEL STATE [1983] 2 NWLR (Pt. 75) Pg. 132 to submit that since the Ex parte order of 11th May, 2017 was granted in breach of the Appellants’ right to fair hearing and had not been served on the Appellants, the said Ex parte order should be set aside; counsel urged this Court to grant the Appellants’ Application dated 23rd of June 2017.
Learned senior counsel for the Appellants further referred to an originating Motion filed by the Appellants on the 11th May, 2017 in Suit No. FHC/ABJ/CS/411/2017 between the same parties herein and pending before the Federal High Court, Abuja as contained at pages 446 – 632 of the Records of Appeal; counsel submitted that in the said suit, the Appellants have filed grounds for which the Federal High Court, Abuja should refuse to recognize and enforce the Final Award. Learned senior counsel therefore urged this Court to set aside the Ex Parte Order and Certificate of Judgment granted by the Lower Court herein and to direct the parties herein to the Federal High Court, Abuja for the hearing and determination of the Originating Motion in Suit No. FHC/ABJ/CS/411/2017. In conclusion, learned senior counsel for the Appellants urged this Court to allow this appeal.
SUBMISSIONS OF COUNSEL FOR THE RESPONDENT.
Learned counsel for the Respondent submitted that it is wrong for the Appellants to contend that because the learned trial Judge said he was “functus officio”; then he did not hear and determine their Application dated 23rd of June 2017. Counsel referred to the Appellants’ Application dated 23rd of June 2017, the Written Address in support of same contained at pages 446-620 and 621-632 of the records of appeal; and the Further Affidavit, Further Reply on points of Law and Written Address also filed by the Appellants as contained at pages 1153 – 1164 all of which were adopted by the Appellants before the Lower Court.
Counsel also referred to the Oral submissions of both the Appellants and Respondent before the trial Judge which is contained at pages 1217 -1241 of the records of appeal and submitted that the Appellants cannot at this stage deny that the trial Judge did not hear and/or determine their Application dated 23rd of June 2017 because the trial Judge held that he was “functus officio”.
Learned counsel referred to MOHAMMED Vs. HUSSEINI [1998] 14 NWLR (Pt.584) Pg. 108 at 138-139 to submit that when a Judge says “I am functus officio” it simply means that the task has been performed and the Judge cannot give a decision or make an Order on a matter twice. Counsel submitted that the Appellants cannot contend that their Motion was not heard by the trial Court having regards to all the processes filed and adopted before the Lower Court. Counsel referred to the proceedings of 27th October, 2017 contained at pages 1217 – 1223 of the Records of Appeal and the proceedings at pages 1236 – 1241 of the records of appeal to submit that the Appellants cannot turn round and accuse the trial Judge of not hearing their motion and that there is no valid basis for the Appellants’ complain.
Learned counsel further referred to the Ruling at pages 1244 – 1261, of the Records of Appeal to submit that the learned trial Judge considered the Appellants’ application and the two issues raised by the Appellants in their Address and came to the conclusion that the only relevant issue to be determined is whether the Court had the jurisdiction to set aside its decision granted on an Originating Ex Parte Motion.
Learned counsel again submitted that the learned trial Judge duly considered the undisputed facts and documentary evidence tendered before and her and at page 1260 of the Records of appeal, she came to the conclusion that once a trial Court delivers its judgment/order in a case on the merit, that Court is functus officio in relation to that judgment and that a party dissatisfied with that decision can only proceed to appeal against it. Learned counsel submitted that the trial Judge did not decline to hear and determine Appellants’ case on the basis that he was functus officio, rather that it was his Ruling, that by the established principle of law, he was functus officio. Learned counsel further referred to Order 26 Rule 11 of the Federal High Court Civil Procedure Rules, 2009 to submit that the learned trial Judge found that Order 26 Rule 11 upon which the Appellants’ Application was premised applies only to interlocutory Orders and does not apply to the Originating Ex Parte Order made on the 11th May, 2017; counsel submitted that the Appellants did not challenge the findings of the Lower Court in this regard.
Learned counsel referred to the conclusion of the learned trial Judge at page 1260 of the Records of Appeal and submitted that the Appellants have not faulted any of the findings in the Ruling of the trial Judge delivered on the 16th of January, 2018; and that the Arbitration and Conciliation Act does not contain any provision for setting aside an Order for recognition and enforcement of an Award once it is made. Counsel submitted that by the provisions of Section 34 of the Arbitration and Conciliation Act, the Courts of law lacked the competence to intervene in arbitral matters outside what is contained in the Arbitration and Conciliation Act therefore, in the instant case, there is no valid legal basis for Appellants to suggest that the trial Judge failed to consider and determine their Application dated 23rd of June 2017.
In addition to the foregoing submissions on the sole issue crafted for determination, learned counsel for the Respondent further argued that cases cited in the Appellants Brief in support of their argument in relation to functus officio have no bearing. Counsel argued that the Respondent’s application was made via an Ex parte Originating Summons and it was up to the trial Judge to direct that the Application be made on notice and that in the instant case, no such direction was given. Counsel submitted that the Appellants have not shown any ground why they should have been served; that the term “Let all parties” does not imply that the Appellants were summoned to appear to be heard as they were not parties to the proceedings for the recognition and enforcement of the Final Award; and that the Appellants are not entitled to be heard in the proceedings. Learned counsel referred to SHELL PETROLEUM DEVELOPMENT NIGERIA LTD Vs. REGISTRAR BUSINESS PREMISES ABIA STATE (Supra) to submit that the Appellants have no right of appeal against the Ex Parte Order of 11th May, 2017 under Section 14 (1) of the Court of Appeal Act.
Learned counsel referred toOYEYIPO Vs. OYINLOYE [1987] 1 NWLR (Pt.50) Pg. 355 at 328, Paras. H – A to submit that contrary to the Appellants’ contention, Rules of Court are constitutionally backed; that on the clear terms of Order 52 Rule 16 (1) of the Federal High Court Civil Procedure Rules, 2009 and Section 31 (1) – (3) and 51 (1) – (3) of the Arbitration and Conciliation Act, 2004, it is the Federal High Court Rules that are applicable; and that the cases of STABILINI VISIONI LTD Vs. MALLINSON PARNTERS LTD and IMANI & SONS LTD Vs. BILL CONSTRUCTION LTD (Supra) are totally misconceived and irrelevant to the instant case because the Supreme Court inBILL CONSTRUCTION LTD Vs. IMANI & SONS LTD (Supra) at Pg. 14, Paras. B – C set aside the decision in IMANI & SONS LTD Vs. BILL CONSTRUCTION LTD (Supra).
Learned counsel referred to A.G. ABIA STATE Vs. A.G. FEDERATION [2005] 12 NWLR (Pt.940) Pg. 452 at 503; P.D.P Vs. C.P.C. [2011] 17 NWLR (Pt.1277] PG.485 at 506 and DURU Vs. F.R.N [2014] All FWLR (Pt.712) Pg.1677 SC to further submit that the provisions of Section 31 (1) – (3) and 51 (1) – (3) of the Arbitration and Conciliation Act are very clear and unambiguous and that it is the duty of the Judge to apply the clear provisions of the law without reading into the law provisions that are not contained in the law. Counsel further relied onOKOROJI Vs. ONWENU (2017) ALL FWLR (Pt.871) pg.1347 at 1376 to submit that it is not permissible in law to blow hot and cold at the same time and that a Judge will not be allowed to apply provisions not contained in the statute.
Learned counsel argued that the Order made by the trial Court recognizing and enforcing the Final Award on the 11th May, 2017 remains a valid order and cannot be said to be a nullity or to have deprived the Appellants of their rights to fair hearing as argued by the Appellants because the Appellants admitted that the Respondent’s Ex Parte Application was anchored on Order 52 Rule 15 (1) of the Federal High Court Civil Procedure Rules, 2009 which does not require their presence unless the Court in its discretion considers it necessary. Counsel submitted that what the law permits a litigant to do cannot be said to be a nullity and that the case of EKE Vs. OGBONDA (Supra) has no application in this case. Learned counsel further referred to RAS PAL GAZI CONSTRUCTION CO. VS. F.C.D.A [2001] 10 NWLR (Pt.722) Pg. 559 to submit that the only duty of the trial Court was to either recognize or refuse to recognize the Final Award which is the subject of the Respondent’s Application; counsel further submitted that there is no provision under the Arbitration and Conciliation Act, 2004 that empowers the Court to set aside an order for the recognition and enforcement of an Award already made because such an Order is final.
Learned counsel submitted that Sections 29 and 34 of the Arbitration and Conciliation Act must be read together and that the sections provide that it is the Award that can be set aside and not the Order made recognizing the Award; and that the Appellants therefore have no basis for their Application to set aside the Order made by the trial Court recognizing and enforcing the Final Award. Counsel referred to PROVISIONAL LIQUIDATOR OF TAPP INDUSTRIES LIMITED Vs. TAPP INDUSTRIES LIMITED [1995] 5 NWLR (Pt.393) Pg.9 at 39; SUNDERSONS LIMITED & ANOR Vs. CRUISER SHIPPING PTE LIMITED & ANOR (2014) LPELR-22561 (CA); RAS PAL GAZI CONSTRUCTION CO. Vs. F.C.D.A; UMAR Vs. ONWUDINE (Supra); FALOLA Vs. UNION BANK OF NIGERIA PLC [2005] All FWLR (Pt. 251) Pg. 1435 at 1422; DR. IMORO KUBOR & ANOR Vs. HON. SERAIKE DICKSON & ORS (2012) LPELR-9817 (SC) and WITT & BUSCH LTD Vs. DALE POWER SYSTEM PLC [2007] 17 NWLR (Pt.1062] Pg.1 at 23-24 to submit that once an Order has been made recognizing and enforcing a Final Award, the Court becomes functus Officio and has no other business and that in the instant case, the Order of the Lower Court made on the 11th May, 2017 cannot be faulted.
Learned counsel argued that Order 52 Rule 16 (1) of the Federal High Court Civil Procedure Rules which provides for the procedure for enforcement of Arbitral Awards makes no provision for setting aside an Order for recognition and enforcement of an Award; and that Section 34 of the Arbitration and Conciliation Act clearly prohibits Courts from intervening in Arbitral matters. As regards the ATKINS COURT FORMS and Order 73 Rules 10 (4), (6) & (7) of the Rules of the Supreme Court of England (Supra) which the Appellants referred to learned counsel argued that they are inapplicable in the instant case because Nigerian Courts do not import and apply foreign laws unless such laws have been domesticated. Learned counsel submitted that the Appellants’ argument that the Respondent’s right to apply for an Order for recognition and enforcement of the Final Award did not inure when the Respondent filed its Application is gravely misconceived.
Learned counsel referred to Sections 29, 30, 31 and 48 of the Arbitration and Conciliation Act to submit that what the Act provides for is that a party aggrieved by an Arbitral Award may within 3 months from the day the Award is made apply for setting aside the Award; and that the Courts are not empowered to set aside an Order for recognition and enforcement of an Arbitral Award. Counsel referred to NDIC Vs. JACKSON DEVOS LTD (Supra); EZEIGWE Vs. NWAWULU [2010] 4 NWLR (Pt.1183) Pg.159 at 203-204; OBI Vs. INEC [2007] 1 NWLR (Pt.1046) Pg.465; INAKOJU Vs. ADELEKE [2007] 4 NWLR (Pt.1025) Pg.423 and AGBAKOBA Vs. INEC [2008] 18 NWLR (Pt.1119) Pg. 489 to submit that the instant appeal did not meet the preconditions under which this Court may exercise its powers under Section 15 of the Court of Appeal of Act. Learned counsel added that Section 14 (1) of the Court of Appeal Act, 2010 does not provide for a right of appeal from an order made Ex Parte and that by Section 34 of the Arbitration and Conciliation Act, no provision is made for setting aside an Order for the recognition and enforcement of an Arbitral Award.
Learned counsel further argued that contrary to the submissions of learned Counsel for the Appellants, Section 31 of the Arbitration and Conciliation Act does not provide for any time frame for the Respondent to wait before applying for the recognition and enforcement of the Final Award. Counsel submitted that the Arbitration proceedings and the Final Award in the instant case was governed by the English Arbitration Act, 1996 as agreed by the parties; and that Section 70(3) of the English Arbitration Act, 1996 provides that an aggrieved party has 28 days within which to challenge a Final Award. Learned counsel submitted that the Appellants had 28 days from the 14th of February, 2017 when the Final Award within which they could challenge the Award in the Court in England; and that having failed to do so, the Appellants’ right of recourse under the English Arbitration Act, 1996 has elapsed.
Learned counsel further submitted that the Arbitration and Conciliation Act does not provide for service of the Order of recognition of the Final Award and that the submissions and authorities cited by the Appellants on the failure to serve the order of recognition of the Final Award are inapplicable to the instant case. As regards the originating Motion filed by the Appellants on the 11th May, 2017 in suit No. FHC/ABJ/CS/411/2017 between the same parties herein; learned counsel argued that the said process was filed at 1.55pm on the 11th of May, 2017 after the Appellants had become aware of the Order/Judgment of the Lower Court in Suit No: FHC/L/CS/625/2017 which was made earlier on the same 11th of May, 2017. Counsel submitted that the Originating Motion filed by the Appellants in Suit No. FHC/ABJ/CS/411/2017 amounts to an abuse of Court process and is not relevant to the instant case. Learned counsel concluded that by the provisions of Section 70(3) of the English Arbitration Act, 1996, the Appellants right to challenge the Final Award had expired on the 28th of March, 2017 and that only Courts in England and Wales can hear or entertain any complaints against the Final Award made in the instant case; Counsel urged this Court to hold that Appellants appeal is completely devoid of merit and thereby deserves to be dismissed, he so urged this Court.
APPELLANTS’ REPLY
Learned senior counsel for the Appellants in Reply to the Respondent’s submission argued that the Appellant’s issue No. 1 was rightly formulated because the said issue deals with the refusal of the learned trial Judge to hear and determine the Appellants’ Motion of 23rd June, 2017 on the merit on grounds of being functus officio and not having jurisdiction. Counsel referred to DAPIANLONG Vs. DARIYE [2007] 8 NWLR (Pt.393) Pg.9 at 39; OBIUWEUBI Vs. CBN [2011] 7 NWLR (Pt.1247) Pg. 465 at 506, Paras. C – D and SANUSI Vs. AYOOLA [1992] NWLR (Pt.265] Pg. 275 to submit that where a Court has found that it has no jurisdiction to determine an Application, it could not have been said that the Court has heard and determined the Application before it. Learned senior counsel cited OBI vs. INEC (Supra) at Pg. 628-629, Paras. H – B to submit that the decision of the learned trial Judge was not a decision on the merits as it did not consider the facts and documentary evidence tendered by the Appellants; and that the contention of the Appellants in this appeal is equally that the Ex Parte Order of 11th May, 2017 is not a Judgment/Order on the merits.
Learned counsel referred to FALOBI Vs. FALOBI (1975) 1 NMLR 169 to submit that even if Order 26 Rule 11 of the Federal High Court Civil Procedure Rules were inapplicable, the law is trite that an Application brought under a wrong provision of the rules of Court or under no specific provision will not be rendered incompetent, provided the Court has the power to entertain the said Application. Counsel argued that the power to set aside its own Ex Parte Order is inherent in the Lower Court irrespective of the provisions of law under which the Application is brought except there is an express provision forbidding the Lower Court. Learned senior counsel referred to C.C. (OLL & GAS) CO. SAL Vs. MASIRI (supra) to submit that the learned trial Judge was not functus Officio. Counsel cited (supra) BOB-MANUEL Vs. BRIGGS [2003] 5 NWLR (Pt. 813) Pg.323 at 339, Paras. D – E to submit that the Respondent’s argument based on Section 34 of the Arbitration and Conciliation Act should be discountenanced on the ground that the Lower Court did not rely on or refer to the provisions of the said Section 34 in its Ruling and that the Respondent did not file a Respondent’s Notice to affirm the Lower Court’s decision on other grounds including Section 34 of the Arbitration and Conciliation Act.
In Reply to the additional submissions of the Respondent, learned senior counsel referred to OBI Vs. INEC [2007] 1 NWLR (Pt.1046) Pg. 465 to argue that the Appellants have a right to be heard, before the Ex Parte Order was made and since they were not heard, they have a right to apply to set it aside. Counsel argued that the case of STABILINI VISIONI LTD VS. MALLINSON PARNTERS LTD (Supra) is relevant to this case and that Order 52 Rule 16 (1) of the Federal High Court Civil Procedure Rules, 2009 derives its authority from the Arbitration and Conciliation Act, 2004. Counsel argued that the Supreme Court’s decision in BILL CONSTRUCTION LTD Vs. IMANI & SONS LTD (Supra) is not on all fours with the instant case because the Appellants were not put on notice or heard before the Order of 11th May, 2017 was made. Counsel referred to ABACHA Vs. FAWEHINMI [2000] 6 NWLR (Pt. 660] Pg.228 to submit that the provisions of the New York Convention, particularly Article 5 which has been domesticated into the Second Schedule of the Arbitration and Conciliation Act, 2004 is of greater vigor and strength than Section 31 (1) (3), 51(1) and 57(1) of the Arbitration and Conciliation Act, 2004.
Learned senior counsel further argued that A.G. ABIA STATE Vs. A.G. FEDERATION (Supra); P.D.P Vs. C.P.C (Supra); DURU Vs. F.R.N (Supra) and OKOROJI Vs. ONWENU(Supra) are all irrelevant to the instant case; and that the cases of EKE Vs. OGBONDA and ATOJU Vs. TRUIMPH BANK PLC (Supra) are relevant to the instant case because the Ex Parte Order of 11th May, 2017 is a nullity for being contrary to the Appellants’ constitutionally enshrined right to fair hearing and the provisions of Article 5 of the New York Convention. Learned senior counsel referred to OTU Vs. A.C.B. INT’L BANK PLC & ORS [2008] 3 NWLR (Pt.1073) Pg.179 SC and UMAR Vs. ONWUDINE (Supra) to support the contention that Appellants can apply to set aside the Ex Parte Order of 11th May, 2017 and/or appeal against the Ex Parte Order. Counsel argued that the ATKINS COURT FORMS and Order 73 Rules 10 (4), (6) & (7) of the Rules of the Supreme Court of England (Supra) provide useful guidance in the instant case. Learned senior counsel submitted that the Appellants were not served with Ex Parte Order of with May, 2017.
Learned counsel referred to THE VESSEL MV NAVAL GENT & ORS Vs. ASSOCIATED COMMODITY INT?L LIMITED (2015) LPELR-25973 (CA) and CHIGBU Vs. TONIMAS NIG LTD [2006] NWLR (Pt.984) Pg. 189 at 213-214, Paras. C – A to submit that the limitation period applicable is 3 months contrary to the Respondent’s argument and reference to the Arbitration Act of England which is not applicable in Nigeria. As regards Originating Motion filed by the Appellants on the 11th May, 2017 in Suit No. FHC/ABJ/CS/411/2017, learned counsel submitted that the said suit was filed within 3 months from the day the Final Award was made on the 14th of February, 2017 and that the right of the Respondent to apply for the recognition and enforcement of the Final Award was yet to inure when the said suit was filed and that Suit No. FHC/L/CS /6251/2017 filed by the Appellant was therefore an abuse of Court Process; counsel submitted that the Appellants were not aware that the Respondents had filed suit No. FHC/L/CS/625/2017 when they filed Suit No: FHC/ABJ/CS/411/2017. In conclusion, learned senior counsel urged this Court to allow this appeal and grant the reliefs sought by the Appellants.
RESOLUTION
The crux of the Appellants’ complaint is against the decision of the learned trial judge that the Lower Court was functus officio in considering the Appellants’ Motion seeking inter alia for an order vacating and/or discharging the subsisting order made by the Court granting leave to the Respondent to enforce London Court of International Arbitration Award made in London on 14th February, 2017. In the words of the learned trial judge at pages 1260 to 1261, Volume III of the records of appeal:
”I have carefully perused through all the processes filed in this suit. The general rule is that once a trial Court delivers it (sic) Judgment/order in a case on the merit, that Court is functus officio in relation to that Judgment once it is delivered. A party dissatisfied with the decision, Judgment or order case only appeal against it.”
Order 26 Rule 11 Federal High Court Rules 2009 upon which this Motion or application is anchored is not applicable in this suit on the grounds that the provisions of Order 26 Rule 11 only apply to Interlocutory orders while the subsisting Order granted by this Honorable Court dated 11th May, 2017 was premised upon an originating Ex-parte Application. See the case of Gomez vs. C & SS (2009) 10 NWLR Part 1149 Page 223 S.C.
The law is well settled that the Court lacks the jurisdiction to set aside its own decision except where the decision is a nullity by reason of breach of due process or has occasioned a miscarriage of justice.
In the instant suit, the decision of this Honorable Court was anchored on the provisions of Order 52 Rule 16 (1 & 2) Federal High Court Rules and Section 31(1) and (2) Section 51(1) and (2) of the Arbitration and Conciliation Act.
I therefore adopt the submission of the Plaintiff/Respondent as provided in the case of Umar vs. Onwudina (supra) (2002) 10 NWLR (Pt.774) page. 124. Consequently, I declare that this Honorable Court is functus officio in making other pronouncement on this suit….”
It is the law that where a Court delivers its decision in a matter, it becomes functus officio and cannot revisit the decision. This is an elementary but fundamental principle of law, as a Court ceases to have legal competence or jurisdiction in respect of a case it has delivered its judgment; it cannot sit and assume the status of an Appellate Court over its own decision. BERLIET (NIG.) LTD Vs. KACHALLA [1995] 9 NWLR (Pt.420); FIRST BANK OF NIGERIA PLC Vs. T.S.A. INDUSTRIES LIMITED (2010) 15 NWLR (Pt.1216) 247.
In the instant case, the learned trial judge is of the opinion that it is functus officio and thus unable to consider, determine the issues and set aside as per the Appellants’ Motion seeking to vacate and discharge the earlier orders made by the Court recognizing and granting leave to the Respondent to enforce the London Arbitral Award. Naturally, the Appellant believes the trial judge erred in this regard. On its own part, Respondent appears to take two seemingly objectionable stances. In the first place, Learned Counsel for the Respondent argued that there is nothing under the relevant Statute or Rules of Court which empowers the Lower Court to vary or discharge its Order granting leave to the Respondent to enforce the London Arbitral Award; at the same time, learned counsel contended that by the provisions of Section 14 of the Court of Appeal Act, there is no right of appeal from an Order made ex parte.
It is difficult for me to admit that I am totally with the learned Counsel for the Respondent. Firstly, I am in agreement that considering the peculiar facts of the instant case, where the Respondent was granted leave to enforce the London Arbitral Award, notwithstanding the fact that the order was predicated on an Originating Motion made ex parte, it is nonetheless a final order, which cannot be set aside by the Court itself. The contention of the Respondent in this regard is manifestly well founded. The real question considering the peculiar facts on record is whether the Lower Court ought to have heard and granted the order of 11th May, 2017 ex parte.
The Originating ex parte is the genesis of the journey leading to the controversy in this appeal. Appellants argued that considering the nature of the relief(s) sought by the Respondent, that is, to enforce the London Arbitral Award against the Appellants, they ought to have been put on notice so as to ensure that the Appellants were given fair hearing as enshrined in the 1999 Constitution given the magnitude of the Award. On the other hand, the Respondent vehemently contended that Order 52 Rule 16(1) of the Federal High Court Rules regulates the manner in which an application for the enforcement of an award should be made, and prescribed that it can be made ex parte as done in the instant case.
Now, Section 31 of the Arbitration and Conciliation Act, provides:
(1) 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.
(2) …
(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 same effect.
Whereas, Order 52 Rule 16 (1) of the Federal High Court Rules, states that:
”An application to enforce an award on an arbitration agreement in the same manner as a judgment or order may be made ex parte, but the Court hearing the application may order it to be made on notice.”
Learned Counsel for the respective parties have referred this Court to the decision in IMANI & SONS LTD Vs. BILL CONSTRUCTION CO. LTD (Supra) where OGUNTADE, JCA (as he then was), while considering the provisions of Section 31 of the Arbitration and Conciliation Act, pronounced as follows:
“The Lower Court reasoned that the purpose of an application brought pursuant to Section 37 of the ABCA Cap. 19 was merely to inform respondent on the application and that it was not meant that such respondent should file a counter-affidavit. By that reasoning the Lower Court was also saying that a respondent put on notice was not expected to even address the Court even on point of law. That the Lower Court understood Section 31 of ABCA Cap. 199 was manifest in what it proceeded to do immediately it refused adjournment sought. Without asking the appellants’ counsel what he intended to do following the refusal by the Lower Court of the application for adjournment, it proceeded to make the order sought on the Originating Summons. A perusal of Section 37 of the ABCA shows that it is not prescribed thereunder that a respondent to an application shall be put on notice but it seems to me that since the procedure is one leading to the granting of an order which may affect another’s proprietary interest, I must read into it a provision to the effect that a party against whom an order under Section 37 ABCA is sought must be put on notice….”
Expressing similar opinions, ADEREMI, JCA (later JSC) (of blessed memory) observed as follows:
”… To have construed Section 37 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 is made is a negation of fair hearing enshrined in our Constitution. And such law must not be accorded any application for it defeats the course of justice and erodes into the confidence which all law abiding citizens must have in the administration of justice – an essential to social order and security…”
The above decision proceeded on appeal to the Supreme Court in BILL CONSTRUCTION CO. LTD Vs. IMANI & SONS LTD [2006] 19 NWLR (Pt.1031) 1, and while the Supreme Court found and held that the Court of Appeal was in error in its decision that the Respondent therein was not granted fair hearing, there was no pronouncement by the Supreme Court relating to the position of the law stated by this Court that a person to be affected by an application brought pursuant Section 31 of the ACA must be put on notice. In the words of TABAI, JSC, at page 17 of the law report;
“The learned trial Judge, rightly in my view, refused that request for an adjournment in that such a counter-affidavit could not be taken as an application to set aside the arbitral award as provided for in Section 29(1)(a) of the Arbitration and Conciliation Act which has to be made within three months of the delivery of the award. The Lower Court, however allowed the appeal and set aside the order made by the trial High Court.
I believe that the Lower Court was in error in its decision in the matter because the counter-affidavit sought to be filed by the respondent could not serve any useful purpose. This is because, any request made in such application to set aside the arbitral award could not be entertained by the Court as it would not have been made within the three months stipulated by law for making such application…”
Contrary to the erroneous contention of the learned Counsel for the Respondent, the decision of the Supreme Court setting aside that of this Court was hinged on the fact that the Counter-Affidavit sought to be filed by the Respondent therein will serve no useful purpose as the time prescribed for the setting aside of the arbitral award had elapsed. It is also striking that in that case the Respondent therein was indeed put on notice of the motion seeking leave to enforce the Arbitral; but rather than file a counter affidavit, it filed a preliminary objection (filed after three months of the delivery of the award) which was subsequently over-ruled by the trial Court; whereupon the Respondent sought an adjournment to file a counter-affidavit in respect of the motion to enforce. This was not granted by the trial judge for the obvious reason enumerated by the Supreme Court. Therefore, I am unable to accept the Respondent’s contention that the pronouncement of this Court in IMANI & SONS LTD Vs. BILL CONSTRUCTION (Supra) with respect to the construction of Section 31 of the ACA was overruled by the Supreme Court on appeal.
As I indicated above, there is nothing to that effect; as a matter of fact, I adopt the reasoning that it must be read into the provision of Section 31 of the ACA that any application for the recognition and enforcement of Arbitral award, which touches on the proprietary or pecuniary interest of another, must be served on that person.
For the avoidance of doubt, the reasoning of this Court in the above case remains much more potent where, as in the instant case, the Respondent seeks leave to enforce an arbitral award within three months of the delivery of the said award. Looking at the decision of the Supreme Court in BILL CONSTRUCTION (Supra), it is obvious that the Court was persuaded to reach its conclusion primarily on the ground that the three months prescribed for the filing of application to set aside an arbitral award under Section 29 of the ACA had elapsed. That is not the situation in this case. Order 52 Rule 1-6 (1) of the Rules of the Lower Court may have given the learned trial judge the discretion to direct that application filed ex parte for the recognition and enforcement of an arbitral award, be made on notice, I believe the discretion will be shown to have been exercised judicially and judiciously, not warranting interference by this Court, the learned trial judge should have exercised restraint and ordered that the Appellants be put on notice before any order is made against them, considering the peculiar circumstances of this case, and in particular Section 29 of the ACA which reads:
“(1) A party who is aggrieved by an arbitral award may within three months –
(q) from the date of the award; or
(b) in a case falling within Section 28 of this Act, from the date the request for additional award is disposed of by the arbitral tribunal, by way of application for setting aside, request the Court to set aside the award in accordance with Subsection (2) of this section.”
Sections 29(1) and 31(1) of the ACA as well as Order 52 Rule 16 (1) of the Federal High Court Rules, seem to me, plain to the effect that, an application for the recognition and enforcement of arbitral award may be made either ex parte or on notice; where it is made ex parte, the Court may direct as it deems fit that the other party be put on notice. It is my view, that where the Application is made within the three months the Award is made, the debtor is permitted to apply to set aside the award, such application must be made on notice or the Court should direct that the other party should be put on notice. On the contrary, where the three months prescribed had elapsed, it implies that the Award debtor does not intend to exercise his right under Section 29 of the Act; and the shoreline is then clear for the Applicant to make his application ex parte without the fear that the statutory right of the Award debtor is being supplanted.
In AYOADE Vs. SPRING BANK PLC [2014] 4 NWLR (Pt.1396] 93, the Court held that:
“One of the cardinal requirement of law, to imbue a Court with jurisdiction to hear a case, is that, the person to be affected by its decision must be duly summoned or served with processes of Court and given opportunities to be heard or defend themselves. That is an inalienable constitutional right of every person. A Court has no jurisdiction to make orders to bind a party that was not given opportunity to be heard by the Court before issuing the order, except such persons are agents, servants, or privies of the parties to the case, in which case they are contemplated
Therefore, having contemplated making the Appellants at the receiving end of the Originating Application filed by the Respondent to enforce the Arbitral Award within three months of its delivery, and as it is aimed at affecting them, the Court ought to have directed that the Appellants be put on notice, to give them opportunity to be heard before visiting on them the calamity of abrogating their statutory right under Section 29 of the ACA, to have the award set aside within three months of delivery.
The learned trial judge adopted the decision of this Court relied upon by the Respondent in UMAR Vs. ONWUDINE (Supra); but as will be seen, both the Respondent and the Lower Court misconceived the reasoning of the Court in that case. If the learned trial judge had carefully studied the decision of this Court in that case, it would have reached a different conclusion. At page 149 to 152 of the Report, this Court, per UMOREN, JCA, while considering the question I earlier raised, as to whether an application should be heard and granted ex parte, held as follows:
“…I have examined the nature of the orders made by the learned trial Judge. I am of the view that it entails deliberation on a number of well-settled issues upon which the right of the applicant to the grant of it depends…”
Clearly, whenever the need arises for the determination of the civil rights and obligation of every Nigerian, this provision (Section 33 of the 1979 Constitution, now Section 36 of the 1999 Constitution) guarantees to such a person a fair hearing within a reasonable time. Fair hearing has been interpreted by the Courts to be synonymous with fair trial and as implying that every reasonable and fair minded observer who watched the proceedings should be able to come to the conclusion that the Court or other tribunal has been fair to all the parties concerned… As this is so, an order which ex-facie, as in this appeal, looks final, lacks at least one of the attributes of fair hearing or as for example, equality of opportunity to both sides to the contest…
Once a party or an appellant as in this case shows that there is an infringement on the principle of natural justice against him, it is my view that he need to show nothing more. The finding that there is an infringement of the principle is sufficient to grant him a remedy….”
Without any particle of doubt, there is nothing in the entire decision of this Court in UMAR Vs. ONWUDINE (Supra) supporting the conclusion reached by the Lower Court and the stance taken by the Respondent. To the contrary, this Court clearly held that any provision of rules of Court or Act which states that an Appellant cannot appeal against an ex parte order which is ex facie a final order or decision is inconsistent, null and void with the Constitution. Also, according to OMAGE, JCA at page 156 of the Report, a party against whom an ex parte order is made has the option of approaching the Court to have same vacated or elect to appeal, as done in that case. To sum it up therefore, the conclusion reached by the learned trial judge runs contrary to the decision it relied upon; it cannot be allowed to stand.
As earlier noted expressly in this judgment, in so far as the application for leave to enforce the Arbitral Award was not served on the Appellants before same was heard and determined, the Appellants’ right to fair hearing would be taken as having been breached, thereby rendering the entire proceedings including the order made by the Lower Court, a complete nullity, and therefore liable to be set aside. See EKE Vs. OGBONDA (Supra); PURIFICATION TECHNIQUES (NIG) LTD Vs. AG, LAGOS STATE [2004] 9 NWLR (Pt.879) 665.
On the whole therefore, Appellants appeal is allowed. The Ruling of the Federal High Court granting leave to the Respondent to enforce the Arbitral Award is a nullity and is accordingly set aside. suit No. FHC/L/CS /625/2017 is remitted to the Hon chief Judge of the Federal High Court for reassignment to another Judge, to be heard and determined. The Appellants as Respondents at the Court below shall be served the Originating Summons and all other processes.
Parties to bear their respective costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother TIJJANI ABUBAKAR, J.C.A., just delivered with which I agree and adopt as mine. I have nothing more to add.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, TIJJANI ABUBAKAR, JCA and I agree with the reasoning contained therein and the conclusion arrived thereat that the Appellants’ appeal has merit. My learned brother has adequately considered all the issues raised as well as the submissions made thereon in this appeal. I have nothing more useful to add.
Appearances:
Prof. Taiwo Osipitan SAN, with him, Ayodele Akintunde SAN, Alfred Akinjo, Ayodeji Alebiosu, Temitope Aribisa and Linda OgedegbeFor Appellant(s)
Charles A. Ajuyah SAN, with him, F. O. Ikogho, Eguono Erhun and J. OsakweFor Respondent(s)
