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CITEC INTERNATIONAL ESTATES LIMITED v. FEDERAL HOUSING AUTHORITY (2019)

CITEC INTERNATIONAL ESTATES LIMITED v. FEDERAL HOUSING AUTHORITY

(2019)LCN/13573(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 26th day of June, 2019

CA/A/623/2014

JUSTICES:

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

CITEC INTERNATIONAL ESTATES LTD – Appellant(s)

AND

FEDERAL HOUSING AUTHORITY – Respondent(s)

RATIO

THE CONCEPT OF ABUSE OF COURT PROCESS

Now, the concept of abuse of Court process is imprecise as held in the case of IDRIS V. AGUMAGU (2015) 13 NWLR (PT) AT 478 – 479, it involves circumstances and situations of infinite variety and conditions. One common feature of abuse of Court process is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. The abuse lies in the multiplicity of actions on the same subject matter against the same opponent on the same issues. The abuse lies in the multiplicity of actions on same issues, and not multiplicity of actions regarding varying issues, even though the parties are the same. I am therefore of the opinion that in the instant case, it was indeed an abuse of Court process as contemplated by our laws when the ex parte application was filed by the respondent during the pendency of the Originating Motion and Interlocutory Application. And this necessarily affected the jurisdiction of the Court to entertain the application. See also N.D.I.C V. U.B.N PLC (2015) 12 NWLR (PT 1473) 246. PER YAHAYA, J.C.A.

THE ESSENCE OF CONSOLIDATION OF ACTIONS

Consolidation of actions is aimed at saving costs and the time of Court, where there are common questions of law and fact bearing sufficient importance to the subject matter of the action, so that disposition of the actions would be at the same time. See DELTA STEEL VS. ADITYA PRABHA (1991) 3 NWLR (Pt. 179) 369. In ANDY UBA VS. DAME ETIABA (2008) 6 NWLR (Pt. 1067), the Court of Appeal quoted the judgment of the Court in UME VS. IFEDIORAH (2001) 8 NWLR (Pt. 714) 35 at 43.
“Consolidation of actions, in essence facilitates the joinder and trial at the same time, consequent upon the Court’s order of two or more pending actions. The actions so joined, persist in their separateness and disjunctiveness in spite of the simultaneous trial in a single proceeding. It follows naturally therefore that judgment must be given in respect of each action that had gone into seeming fusion.”
PER YAHAYA, J.C.A.

THE PRINCIPLE THAT PARTIES MSUT NOT DO ANYTHING TO FOIST A FAIT ACCOMPLI ON THE COURT

Courts have consistently warned that when there is an ongoing litigation, nothing must be done by any of the parties to foist a fait accompli on the Court, see ODEGBO & ORS v MOFUNANYA & ORS (2016) LPELR 42107 (CA), ADEYEMI V THE ESTATE OF DR. (CHIEF) VICTOR AWOSIKA & ANOR (2013) LPELR – 20213 (CA). PER YAHAYA, J.C.A.

THE CONSEQUENCE OF ABUSE OF CORUT PROCESS

The consequence of abuse  is that the ex parte motion is liable to be struck out, as it is the motion constituting the abuse. This is what makes the motion on notice relevant as it shows that there was indeed an abuse of Court process by the respondent when he filed the motion ex parte. The law gives the Courts the licence under its wide inherent powers, to truncate any matter which is tainted with an abuse of judicial process. Where the Court finds that there is an abuse, the process would be vacated. -O.S.I.E.C V. N.C.P (2013). The trial Court should have struck out the motion ex parte by granting the motion on notice. If the trial Court had done that, there would not have been a need for consolidation, and issues one and two of this appeal would not have arisen.IDRIS V. AGUMAGU (SUPRA) AT 480 – 481. PER YAHAYA, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF PARTIES TO ENSURE THAT THEIR PROCESSES ARE SERVED

It is the duty of parties to ensure that their processes are served to ensure that the other party is aware of whatever argument it seeks to canvass. That being said, in the case ofPLASTEX (NIG) LTD v. MAINLAND OIL & GAS (2018) LPELR-43509 (CA) held:
“It is common ground that service of process is fundamental, the absence of which renders all proceedings taken void ab initio. This no doubt remains the position of the law, established in a long line of cases including Mark vs. Eke (2004) 1 SC (pt.11) 1, where Musdapher JSC stated that: “when an order is made or judgment entered against a defendant who claimed not to have been served with the originating process such an order or judgment becomes a nullity if the defendant proves non-service of the originating process.”
See  OKOYE VS. CENTRE POINT MERCHANT BANK LTD (2008) 15 NWLR (PT. 1110) 335, NBN LTD VS. GUTHRIE NIG. LTD (1993) 3 NWLR (PT. 284) 643 ANDNEPA VS. URUAKPA (2010) LPELR-4409 (CA).” PER BARKA, J.C.A. (PP. 28-29, PARAS. D-A. PER YAHAYA, J.C.A.

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of the Federal Capital Territory Abuja, delivered on the 12th December, 2013.

The appellant at the trial Court by Originating Motion on notice in Suit No: FCT/HC/CV/2550/13 dated 9th of April, 2013, applied for an order to set aside the arbitral award made against it by the arbitration panel on the 31st of January, 2013. By another Motion on Notice in Suit No M/6083/2013 dated 16th of April, 2013, the appellant applied seeking an order of Interlocutory injunction restraining the respondent from filing any process in this suit or taking further step in this suit towards enforcing the Arbitral award made on the 31st of January, 2013 pending the hearing and determination of the Originating Motion on Notice dated 9th of April, 2013.

In response to the applications filed by the appellant, the respondent filed an ex parte Motion in Suit No: M/10783/12 dated the 30th of May, 2013 seeking for the enforcement of the Arbitral award made on 31st January, 2013.

The appellant then filed a Motion on

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Notice in Suit no: FCT/HC/M/639/13 dated the 11th of October, 2013 wherein it sought an order of Court dismissing/striking out in limine, the respondent’s Ex parte application for the enforcement of the Arbitral award to which the respondent filed a 12 paragraph counter – Affidavit and written address dated 29th October, 2013.

The trial Court in its Ruling refused to set aside the Arbitral Award and consolidated the appellant’s Motion seeking to dismiss in limine the respondent’s Ex parte Motion and the Respondent’s Motion Ex parte. The parties thereafter argued the two applications together.

The trial Court delivered its Ruling on the consolidated Motion wherein it dismissed the appellant’s Motion on Notice seeking to dismiss the respondent’s Motion Ex parte for enforcement of the Arbitration Award.
It is this Ruling that has resulted in this appeal.

Learned counsel for the appellant Mr Sam T. Ologunorisa SAN settled the appellant’s brief, which was filed on the 10th of February, 2017 wherein three issues for determination were distilled. They are:
1. Whether the trial Court was right to have consolidated the hearing of the

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appellant’s Motion on Notice No: M/639/2013 filed on 11/10/2013 with the respondent’s Ex parte Motion of 30th May, 2013. (Ground 3 of the amended Notice of Appeal)
2. Whether the learned trial judge rightly dismissed the appellant’s Motion on notice filed on 11/10/2013. (Ground 1 of the amended Notice of Appeal)
3. Whether the trial Court was right to recognise and order the enforcement of the Arbitral award of 31st January, 2013 in this suit upon an ex parte application. (Ground 2 of the amended Notice of Appeal)

The respondent’s brief of argument was filed by its counsel Mr I. C. Ifediora on the 29th of March, 2018 but deemed properly filed on the 14th of November, 2018. Therein, he also distilled three issues for determination vis:
1. Whether the trial Court was right to have consolidated the hearing of the appellant’s Motion on Notice No: M/639/2013 filed on 11/10/13 with the respondent’s ex parte Motion of 30th May, 2013. (Ground 3 of the Amended Notice of Appeal)
2. Whether the learned trial judge rightly dismissed the appellant’s Motion on notice filed on 11/10/2013. (Ground 1 of the Amended Notice of Appeal)

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3. Whether the trial Court was right to recognise and order the enforcement of the Arbitral Award of 31st January, 2013 in this suit upon an ex parte application. (Ground 2 of the Amended Notice of Appeal)

The issues as distilled by the appellant and the respondent are exactly the same. I shall utilise them as raised in resolution of this appeal.
ISSUES ONE AND TWO
1. Whether the trial Court was right to have consolidated the hearing of the appellant’s Motion on Notice No: M/639/2013 filed on 11/10/13 with the respondent’s ex parte Motion of 30th May, 2013.  (Ground 3 of the Amended Notice of Appeal)
2. Whether the learned trial judge rightly dismissed the appellant’s Motion on notice filed on 11/10/2013. (Ground 1 of the Amended Notice of Appeal)

Counsel to the appellant submitted that on the 9th of April, 2013, the appellant filed an Originating Motion on Notice in the trial Court wherein it prayed for the following:
1. An order setting aside the Arbitral award dated 31st January, 2013 (and tendered as Exhibit A1 with

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the Affidavit in support of this application) made by the Arbitral panel/tribunal of Chief Bayo Ojo CON, SAN, FCIArb, Ch. Arb; Chief Jimmy Okey Nwagbara MCIArb; and Chief Felix Okereke – Onyeri FCIArb; on grounds of misconduct.
ALTERNATIVELY OR IN ADDITION
2. An order remitting the Arbitral award dated 31st January, 2013 (tendered as Exhibit A1 with the Affidavit in support of this application) made by the Arbitral Panel/Tribunal of Chief Bayo Ojo CON, SAN, FCIArb, Ch. Arb; Chief Jimmy Okey Nwagbara MCIArb; and Chief Felix Okereke Onyeri FCIArb; to the same Arbitral Panel/Tribunal for the reconsideration of the defence and/or cross-claim of the present applicant.
3. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.

And that the reliefs sought showed that the appellant took steps to have the Arbitral award set aside.

Counsel submitted that on the 16th of April, 2013 the appellant filed a Motion on Notice for an order of Interlocutory injunction, seeking to restrain the respondent from taking any step and also sought to

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restrain the respondent from filing any process towards recognising, enforcing and executing the Arbitral award dated 31st January, 2013 published by the Arbitral panel.

Counsel argued that while the Originating and Interlocutory Motions were pending, the respondent filed an ex parte Motion seeking recognition and enforcement of the Arbitral award on the 30th of May, 2013. And that the appellant sensing that the Motion the respondent filed was wrong, filed and served on the respondent, a Motion seeking for an order dismissing and setting aside in limine the ex parte Motion of the respondent for constituting an abuse of Court process on the 11th of October, 2013.

Relying on the case of MADUKOLU V. NKEMDILIM (1962) 2 ALL NLR 581 AT 589 – N590 counsel further argued that the complaint of the Motion of 11th October, 2013, borders on the issue of abuse of Court process and the disciplinary jurisdiction of the trial Court, which makes it a threshold issue which goes to the root of the jurisdiction of the trial Court. He therefore submitted that the trial Court ought to have heard the appellant’s Motion of 11th October 2013 first before hearing the

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respondent’s Motion ex parte. As the issue of jurisdiction is so fundamental that once the Court’s jurisdiction to hear a matter is challenged, it must be dealt with first before any other step in the proceedings is taken.  ALL PROGRESSIVE GRAND ALLIANCE (APGA) V. SENATOR CHRISTIAN N. D. ANYANWU & 2 ORS LEGALPEDIA CITATION LER (2014) SC. 20/2013; OMOKHAFE V. MILAD EDO STATE (2005) 2 M.J.S.C. 173 AT PP. 183 – 184 PARAS G – A; STATE V. ONAGORUWA (1992) 2 NWLR (PT 221) 33.

Counsel further submitted that it is only where the trial Court finds no merit in the appellant’s Motion filed on the 11th October, 2013 that it could proceed to hear the respondent’s ex parte Motion. He added that the trial judge was thus wrong to have consolidated both the appellant’s Motion filed on the 11th October, 2013 and the respondent’s Motion ex parte dated 30th May, 2013 and ruled on them together which went against the principles guiding the consolidation of matters.

He relied on the case of NGERE V. OKURUKET ‘XIV’ (2015) 15 NWLR (PT 1482) 392 AT 405 PARAS A – F in defining the meaning of consolidation. And that one of the

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factors a Court will consider before exercising the discretion to order for a consolidation would include existence of common questions of law or fact in each of the actions which could conveniently be disposed of in the same proceedings. And that consolidation will not be ordered where it will cause embarrassment or injustice to one of the parties.

Counsel to the appellant thus submitted that in the instant case, the consolidation of the appellant’s Motion on notice with the respondent’s ex parte Motion which resulted in the recognition and order of enforcement of the Arbitral award without the appellant being heard occasioned a miscarriage of justice to the appellant. The reason counsel added is because the Motion dated 11th October, 2013 was to challenge and/or stop the hearing of the respondent’s ex parte Motion of 30th May, 2013 which if heard will have the effect of deciding the issue of the recognition and enforcement of the Arbitral award, without the appellant being afforded opportunity to be heard. He added that since consolidation means hearing simultaneously, consolidation of the two Motions in the circumstances of this

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case defeats the objective the appellant set out to achieve by her own Motion because the trial Court would still hear the Motion ex parte without the input of the appellant or an opportunity to be heard on the matter.

In arguing that the learned trial judge was wrong to have dismissed its motion on notice, Counsel to the appellant submitted that by the Motion for injunction, the appellant did not only seek to restrain the respondent from taking any step, but also to restrain the respondent from filing any processes towards recognising, enforcing and/or executing the Arbitral award pending the outcome of the Originating Motion.

Counsel to the appellant argued that the law is settled that where there is an application before the Court, neither the Court nor any party thereto can take any step which is inimical to the said application and both parties are expected to fold their arms and await the determination of the application however it turns out. This according to counsel is because doing anything, as in this case, the filing of the ex parte application by the respondent, may fetter the discretion of the Court and foist upon it a situation of

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helplessness by presenting it with a fait accompli – ABUBAKAR V. UNIPETROL PLC (2002) 8 NWLR (PT 769) 242 AT 251 – 252; U.B.N V. FAJEBE FOODS (1994) 5 NWLR (PT. 344) AT 345 – 346 and ARGOS (NIG) LTD V. UMAR (2002) 8 NWLR (PT 769) 284 AT 292 PARAS C – D. Counsel to the appellant further argued that where a party sought to be restrained refuses to be restrained as in this case in defiance of this principle, the Motion ex parte is liable to be set aside. VASWANI V. SAVALAKH & CO (1972) NSSC (VOL 7) 692 AT 695.

Counsel submitted that the situation wherein there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness as in the circumstances of this case, then the motion ex parte ought to be set aside. He further submitted that to determine the substance of the appellant’s Motion on notice dated 11th October, 2013, the entire circumstances regarding existing Court processes pending at the time and leading to the filing of the Motion ought to have been examined. And that if that had been done, the inference drawn by the trial judge that the Motion sought to deny the respondent access to Court is one that would not

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have been made.

Learned counsel to the appellant has also submitted that the counter – affidavit filed on the 28th of October, 2013 by the respondent and referred to in the Ruling of the trial Court was never served on the appellant and the trial Court closed its eyes to it and proceeded to hear and dismiss the appellant’s Motion while granting the respondent’s ex parte Motion. This according to counsel, has far reaching consequences on the appellant’s right to fair hearing not only as it relates to that Motion on Notice, but indeed to the entire proceedings leading to the order for the recognition and enforcement of the Arbitral award. He relied on the case of IHEDIOHA V. OKOROCHA (2016) 1 NWLR (PT 1492) AT 179 PARAS D – F where it was held that service of Court process is an important aspect of the judicial process, and failure to serve a named party with the Court processes offends Section 36(1) of the Constitution of the Federal Republic of Nigeria (as amended) and renders the proceedings of the Court a nullity. This notwithstanding counsel added, the trial judge relied on the unserved processes in his Ruling which was unfair to the appellant

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and denied it fair hearing. NEWSWATCH COMMUNICATIONS LTD V. ATTA (2006) LPELR – 1986 (SC)/(2006) 12 NWLR (PT. 993) 144; ONAGORUWA V. I.G.P (1991) 5 NWLR (PT 193) 593 AT 640.

Counsel in urging us to resolve this issue in favour of the appellant argued finally on these issues that the two Motions consolidated and heard by the learned trial judge did not raise common questions of law or facts to warrant the consolidation as such, there was no basis for the consolidation of the two Motions and that the right to fair hearing of the appellant had been contravened which rendered the entire proceedings and Ruling of the trial Court a nullity.

Counsel to the respondent in response to the appellant’s submission that the Motion on Notice dated 11th October, 2013 raised the issue of jurisdiction, submitted that it is necessary to set out the prayers in the said Motion which are:
1. An order dismissing and/or striking out in limine the Motion Ex parte for the recognition and enforcement of the Arbitral award filed by the respondent.
2. And for such further order or orders as this Court may deem fit to make in the

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circumstances of this case.

Counsel to the respondent submitted showed no issue of jurisdiction being raised. He argued that the appellant having approached the Court with a number of applications cannot at the same time argue that the Court lacked jurisdiction. He therefore urged this honourable Court to hold that neither the appellant’s Motion on notice dated 11th October, 2013 nor the respondent’s ex parte Motion dated 30th May, 2013 raised any issue of jurisdiction.

On the complaint by the appellant that the trial judge consolidated the two Motions and that common questions of law and facts do not arise, counsel to the respondent argued that the appellant failed to analyse the two Motions to show that common questions of law do not arise. Counsel to the respondent added that in the Trial court’s consolidated Ruling dated 12th of December, 2013 at pages 780 – 787 of the record, the trial Court first considered the appellant’s Motion on notice dated 11th October, 2013 and rejected it before considering the respondent’s Motion ex parte dated 30th May, 2013 and granting it. As such, the trial Court considered the two Motions separately and that

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the word consolidation only enabled the Court to hear the two applications together.

Counsel to the respondent relying on the case of M.C INVESTMENT LTD V. CORE INVESTMENTS LTD (2012) 6 SCNJ 111 went on to argue that neither the law nor the rules of Court provides for an application to set aside an application to enforce an award.

On the appellant’s argument that the granting of the Motion ex parte of 30th May, 2013 filed by the respondent deprived it (the appellant) of its right to fair hearing by depriving it of the right to request the Court to refuse the recognition of enforcement of the award, counsel to the respondent argued that the refusal of the trial Court to set aside the Arbitral award was based on the fact that the Mbora project was distinct from the Gwarimpa project which were guided by separate agreements. He added that the lower Court therefore rejected the main reason why the appellant approached it to set aside the Arbitral award and agreed with the respondent and the Arbitral panel which meant that there was nothing standing in the way of the Motion ex parte being granted. Counsel added that the trial Court having refused to grant

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an order setting aside the Arbitral award, the appellant cannot be heard to argue that he was not afforded the opportunity to request the Court to refuse the recognition and enforcement of the Arbitral award.

Citing the case of SUNKO (NIG) LTD V. SKYE BANK PLC (2017) 12 NWLR (PT. 1579) 237 counsel to the respondent urged us to hold that the respondent’s ex parte Motion to enforce the Arbitral award in the circumstances of this case did not breach the right to fair hearing of the appellant.

On non-service of Court processes on the appellant, Counsel to the respondent submitted that the appellant did not complain at the lower Court that it was not served with the counter – affidavit and written address. He pointed this Court to page 782 of the record of proceedings where in the Ruling of the lower Court, it reflected thus:
“On the last adjourned date, learned counsel for the parties moved and adopted their applications and written address and oral submissions in support and the suit was adjourned for ruling.”

Counsel added that if the appellant had not been served with the respondent’s counter-affidavit to the appellant’s Motion

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on Notice, it would have raised it at the time the Motion was argued. He also added that the counter – affidavit did not contain anything to which the appellant would reply. Counsel to the respondent concluded that assuming without conceding that the appellant was not served with the respondent’s counter – affidavit, the failure could not occasion a miscarriage of justice as there is nothing, no fact, contained therein which the appellant could have responded to. He urged us to dismiss this issue for lacking in merit.

Indeed, it is trite that when issues of jurisdiction are raised, that they are dealt with first; for failure to do so may render an entire trial a nullity regardless of how beautifully it was conducted or how reasoned the decision may be. In the instant case, counsel to the appellant has argued that the complaint of the motion of the 11th October, 2013 borders on the issue of abuse of Court process and the disciplinary jurisdiction of the trial Court and that the trial judge ought to have heard the appellant’s motion on notice before hearing the respondent’s motion ex parte.

The crux of issues one and two is whether or not

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there was abuse of Court process and whether the trial judge was right in dismissing the appellant’s motion on notice dated the 11th of October, 2013. The form of jurisdiction complained about here is that of the disciplinary jurisdiction of the trial Court which to me means that the appellant is complaining about the jurisdiction of the Court to entertain the ex parte application filed by the respondent which constituted an abuse of Court process when the respondent filed a motion ex parte seeking to enforce the Arbitral award when there were other motions already pending before the trial Court for the setting aside of same.
Now, the concept of abuse of Court process is imprecise as held in the case of IDRIS V. AGUMAGU (2015) 13 NWLR (PT) AT 478 – 479, it involves circumstances and situations of infinite variety and conditions. One common feature of abuse of Court process is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. The abuse lies in the multiplicity of actions on the same subject matter against the same opponent on the same issues. The abuse lies in the multiplicity of

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actions on same issues, and not multiplicity of actions regarding varying issues, even though the parties are the same. I am therefore of the opinion that in the instant case, it was indeed an abuse of Court process as contemplated by our laws when the ex parte application was filed by the respondent during the pendency of the Originating Motion and Interlocutory Application. And this necessarily affected the jurisdiction of the Court to entertain the application. See also N.D.I.C V. U.B.N PLC (2015) 12 NWLR (PT 1473) 246.
The appellant filed an originating motion seeking to set aside the Arbitral award and then filed an interlocutory injunction seeking to restrain the respondent from enforcing the Arbitral award. While these two motions were pending, the respondent filed a motion ex parte seeking to enforce the Arbitral award to which the appellant filed another motion on notice seeking to set aside or prevent the motion ex parte from being heard. There is definitely an abuse of Court process here. The filing of the motion ex parte during the pendency of the other motions (originating motion and interlocutory application) is an abuse of Court process. The

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issues and parties before the Court were the same. The subject matters before the Court was also the same. Thus, for the respondent to then file the ex parte application for the enforcement of the Arbitral award after being put on notice by the appellant contesting the enforcement of the Arbitral award is reckless and a wanton disregard for Court processes.
Now, suppose the trial Court had found for the appellant on the originating motion, would the respondent have filed an ex parte application seeking to recognise, enforce and execute the Arbitral award? Definitely not! So, why should the respondent be allowed to get away with filing an ex parte motion during the pendency of other motions on the same subject matter and even have it granted? Hence, the argument of counsel to the respondent that the motions were considered separately and the word consolidation merely enabled the Court to hear the two applications together is misplaced.
Consolidation of actions is aimed at saving costs and the time of Court, where there are common questions of law and fact bearing sufficient importance to the subject matter of the action, so that disposition of the

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actions would be at the same time. See DELTA STEEL VS. ADITYA PRABHA (1991) 3 NWLR (Pt. 179) 369. In ANDY UBA VS. DAME ETIABA (2008) 6 NWLR (Pt. 1067), the Court of Appeal quoted the judgment of the Court in UME VS. IFEDIORAH (2001) 8 NWLR (Pt. 714) 35 at 43.
“Consolidation of actions, in essence facilitates the joinder and trial at the same time, consequent upon the Court’s order of two or more pending actions. The actions so joined, persist in their separateness and disjunctiveness in spite of the simultaneous trial in a single proceeding. It follows naturally therefore that judgment must be given in respect of each action that had gone into seeming fusion.”

However, the issue is not whether the consolidated motions were heard and dealt with separately; the issue is that audience was even granted at all to the respondent’s motion ex parte. It should have been thrown out the moment it came to the notice of the learned trial judge, since other motions on notice on the same subject matter, were already pending.
Counsel to the appellant has argued that by filing the interlocutory injunction, it sought not only to prevent the

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respondent from taking any step in the enforcement of the award but also prevent the respondent from filing any processes as well. And that the filing of the ex parte motion for enforcement is a fait accompli. I agree. Courts have consistently warned that when there is an ongoing litigation, nothing must be done by any of the parties to foist a fait accompli on the Court, see ODEGBO & ORS v MOFUNANYA & ORS (2016) LPELR 42107 (CA), ADEYEMI V THE ESTATE OF DR. (CHIEF) VICTOR AWOSIKA & ANOR (2013) LPELR – 20213 (CA). I do believe that in the circumstances of the case, a fait accompli was foisted on the Court, by the ex parte application filed by the respondent. This is more so as the ex parte motion of the respondent seeking to enforce the Arbitral award was taken together with the motion on notice filed by the appellant, seeking to set it aside in limine. As such, I disagree with counsel to the respondent that there was nothing in the way of the motion ex parte preventing it from being granted. There were two other pending motions.
The consequence of abuse is that the ex parte motion is liable to be struck out, as it is the

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motion constituting the abuse. This is what makes the motion on notice relevant as it shows that there was indeed an abuse of Court process by the respondent when he filed the motion ex parte. The law gives the Courts the licence under its wide inherent powers, to truncate any matter which is tainted with an abuse of judicial process. Where the Court finds that there is an abuse, the process would be vacated. –O.S.I.E.C V. N.C.P (2013). The trial Court should have struck out the motion ex parte by granting the motion on notice. If the trial Court had done that, there would not have been a need for consolidation, and issues one and two of this appeal would not have arisen. IDRIS V. AGUMAGU (SUPRA) AT 480 – 481. It is also worth noting, that it was most inappropriate, to consolidate a motion ex parte with a motion on Notice.
On that basis, the motion ex parte with suit no: M/10783/13 dated 30th May, 2013 filed by the respondent is hereby struck out.

Counsel to the appellant has also raised the issue of non – service wherein it complained that the counter – affidavit to the motion on notice dated 11th of October, 2013, filed by

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the respondent was not served on it, yet the trial judge relied on it in his Ruling. Counsel to the respondent has argued in response that the appellant did not complain at the point of adoption of all processes and that the counter – affidavit does not contain anything materially significant the appellant would have wanted to reply to, to entail a breach of right to fair hearing.

Now, I must say that it is not the place of the respondent to state what the case of the appellant may or may not be. As such to argue that the appellant would not have replied to anything in the counter-affidavit and written address is overreaching. It is the duty of parties to ensure that their processes are served to ensure that the other party is aware of whatever argument it seeks to canvass. That being said, in the case of PLASTEX (NIG) LTD v. MAINLAND OIL & GAS (2018) LPELR-43509 (CA) held:
“It is common ground that service of process is fundamental, the absence of which renders all proceedings taken void ab initio. This no doubt remains the position of the law, established in a long line of cases including Mark vs. Eke (2004) 1 SC (pt.11) 1, where

23

Musdapher JSC stated that: “when an order is made or judgment entered against a defendant who claimed not to have been served with the originating process such an order or judgment becomes a nullity if the defendant proves non-service of the originating process.”
See  OKOYE VS. CENTRE POINT MERCHANT BANK LTD (2008) 15 NWLR (PT. 1110) 335, NBN LTD VS. GUTHRIE NIG. LTD (1993) 3 NWLR (PT. 284) 643 ANDNEPA VS. URUAKPA (2010) LPELR-4409 (CA).” PER BARKA, J.C.A. (PP. 28-29, PARAS. D-A.
This shows that the importance of service cannot be overemphasised. In the instant case, I am drawn to the argument of the appellant that it was not served with the counter – affidavit as there is no proof of service on it. The question of non-objection as the time does not therefore arise.

It is my opinion that issues one and two have merit as canvassed by the appellant, and are therefore resolved in favour of the appellant against the respondent. The motion ex parte filed by the respondent on the 14th of August, 2013 is hereby struck out. There is nothing to consolidate.

ISSUE THREE
WHETHER THE TRIAL COURT WAS RIGHT TO

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RECOGNISE AND ORDER THE ENFORCEMENT OF THE ARBITRAL AWARD OF 31ST JANUARY, 2013 IN THIS SUIT UPON AN EX PARTE APPLICATION.

Counsel to the appellant submitted that access to Court with a view to seeking recognition and enforcement of Arbitral award is governed by the Arbitration and Conciliation Act (the Act) and Sections 31, 32, 51, and 52, of the Act are relevant in this case.

Counsel submitted that an application for recognition and enforcement of an Arbitral award under sections 31 and 51 of the Act is subject to Sections 32 and 52 respectively. As such, according to Sections 31 and 51 of the Act, an application for enforcement cannot be by ex parte since the other parties to the arbitration are to have an opportunity to refuse the recognition or enforcement in exercise of their rights donated by Sections 32 and 52 of the Act.  SUNDERSONS LTD V. CS PTE LTD (2015) 17 NWLR (PT 1488) AT 373 PARAS C – G.

Counsel argued further that the only way a party to an arbitration agreement can exercise this right to oppose the recognition and enforcement is if he is

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aware that such an application has been made by the party seeking recognition and enforcement of the award. And that cannot be possible where the application is made ex parte. Counsel to the appellant added that although the provision in sections 31 and 52 calls for the application to be in writing which could either be ex parte or on Notice, however when the sections are read together with Sections 32 and 52, an ex parte application would potentially deny the other party to the arbitration agreement the right to fair hearing conferred by Sections 32 and 52 of the Act and defeat the manifest intention of the law maker.-
ASSOCIATED DISCOUNT HOUSE LTD V. AMALGAMATED TRUSTEES LTD (2007) 10 MJSC 49 AT 88 PARAS BG; OLOWU & ORS V. ABOLORE & ANOR (1993) 6 SCNJ (PT 1) AT 1920; NAFIU RABIU V. THE STATE (1980) 811 S.C. 130 AT 149; MOHAMMED V. OLAWUNMI (1990) 21 NSCC (PT 1) 36 AT 48/ (1990) 2 NWLR (PT 133) 458 AT 484.

Counsel to the appellant further submitted that when a statute has provided a procedure for doing an act, only that procedure and none other is permissible and it was regrettable that the trial judge allowed the

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respondent come before it by way of ex parte Motion, thereby shutting the doors to the appellant being heard which constituted a denial to the appellant’s right to fair hearing when it (the trial Court) acted upon the ex parte Motion of the respondent to determine the recognition and enforcement of the Arbitral award.  SYLVA V. INEC (2015) 16 NWLR (PT 1486) 576 AT 621, PARAS B – C.

Counsel to the appellant concluded by urging this honourable Court to allow the appeal and set aside the consolidated ruling of the trial Court delivered on 12th December, 2013.

In response to this issue, counsel to the respondent simply noted that the complaint in this issue had been covered under issues 1 and 2 of the respondent’s brief; and therefore adopted it (the respondent’s) argument under issues 1 and 2 above in urging this honourable Court to reject issue 3.

Counsel to the respondent concluded by urging us to dismiss this appeal with substantial and punitive costs to the respondent.

The major contention of the appellant is that, the respondent having made the application for enforcement of the Arbitral

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award via motion ex parte has locked out or denied the appellant its right to object to the enforcement of the Arbitral award even though this right is guaranteed by statute. Sections 31, 32, 51 and 52 are the relevant sections governing the enforcement of Arbitral awards in the Arbitration Act.
Section 31 and 32 of the Arbitration Act provide:
31.(1) An Arbitral award shall be recognised as binding and subject to this Section 32 of this Act, shall, upon application in writing to the Court, be enforced by the Court.
(2) The party relying on an award or applying for its enforcement shall supply-
(a) the duly authenticated original award or duly certified copy thereof; (b) the original arbitration agreement or a duly certified copy thereof.
(3) An award may, by leave of the Court or a judge, be enforced in the same manner as a judgement or order to the same effect.
32. Any of the parties to an arbitration agreement may request the Court to refuse recognition or enforcement of the award.
Section 51 and 52 of the Act provide:
51. (1) An Arbitral award shall, irrespective of the country in which it is made, be recognised as

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binding and subject to this Section 32 of this Act, shall, upon application in writing to the Court, be enforced by the Court.
(2) The party relying on an award or applying for its enforcement shall supply:
(a) the duly authenticated original award or a duly certified copy thereof;
(b) the original arbitration agreement or a duly certified copy thereof; and
(c) where the award or arbitration agreement is not made in the English language, a duly certified translation thereof into the English language.
52. (1) Any of the parties to an arbitration agreement may request the Court to refuse recognition or enforcement of the award.
From the foregoing, it is clear that an Arbitral award may be enforced but such enforcement is subject to Section 32 of the Act. Section 32 of the Act basically makes provision for a party aggrieved by the Arbitral award to request the Court to refuse recognition or enforcement of the award.
Now, that it is clear that the provisions give a party the right to object to the enforcement of an Arbitral award on grounds. Does the application of the other party for enforcement via motion ex parte serve as a

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means of shutting out the complaining party? To this, I respond in the affirmative. What comes to mind is that if a party applies via ex parte for the recognition and enforcement of an Arbitral award the other party would not be afforded the opportunity of objecting to the recognition and enforcement of the Arbitral award. How will the other party be aware since motion ex parte processes are not to be served on the opposing party? How then will the other party exercise its right to apply to Court for the refusal for recognition and enforcement of the Arbitral award if it is not put on notice?
It is the argument of the appellant that the intention of the lawmaker should be given effect to and that as regards Sections 31, 32, 51 and 52 of the Act, the application cannot be made ex parte. I agree. It is a principle of interpretation that statutes should be read as a whole and literal construction given to the words in their ordinary natural meaning – NWAKIRE VS. C.O.P (1992) NWLR (Pt. 241) 289. The legislature in enacting a law, must have meant what it said and the words used are not in vain.
The appellant in this issue has questioned whether the

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trial Court was right to have recognised or enforced the Arbitral award upon a motion ex parte. I answer in the negative and resolve this issue against the respondent and in favour of the appellant.
This issue would be relevant if there was an ex parte application properly pending. Since I have held that the ex parte application is an abuse of process and has been struck out, there is thus nothing before the trial Court to base its recognition and enforcement of the Arbitral award upon.

In the result, this appeal has merit and it succeeds. The Ruling of the trial Court delivered on the 12th December, 2013 from which this Appeal emanated from, is hereby dismissed.
No order as to costs.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the preview of the lead judgment of my learned brother, ABUBAKAR DATTI YAHAYA, JCA.

I am in agreement with his reasoning and conclusion and orders reached therein.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, Lord Justice A. D. Yahaya, JCA. I completely agree with the

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reasoning, conclusions and orders therein.

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Appearances:

B. J Bulama with him, A. I Aderogba For Appellant(s)

J.A Augustine with him, G. Adams For Respondent(s)

 

Appearances

B. J Bulama with him, A. I Aderogba For Appellant

 

AND

J.A Augustine with him, G. Adams For Respondent