DANTATA v. CEYLON MULTI-PURPOSE COOPERATIVE SOCIETY LTD (2022)

DANTATA v. CEYLON MULTI-PURPOSE COOPERATIVE SOCIETY LTD

(2022)LCN/16372(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, March 18, 2022

CA/ABJ/CV/644/2020

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

ALHAJI IBRAHIM GAMBO DANTATA APPELANT(S)

And

CEYLON MULTI-PURPOSE COOPERATIVE SOCIETY LIMITED RESPONDENT(S)

RATIO:

THE ACTION MUST HAVE BEEN COMMENCED BY DUE PROCESS OF LAW BEFORE A COURT CAN EXERCISE JURISDICTION

It was further submitted that for a Court to exercise jurisdiction, the action must have been commenced by due process of law and upon the fulfilment of any condition precedent to the exercise of jurisdiction in addition to the subject matter being within the jurisdiction of the Court. The cases of MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR 341 or (1962) NSCC 374 at 380 and ALADEJOBI vs. NBA(2013) 15 NWLR (PT 1376) 66 at 81 were referred to. It was stated that parties cannot confer jurisdiction on a Court and that where a Court lacks jurisdiction, the order to make is to strike out the action. The cases of NDAYAKO vs. SANTORO [sic] (2004) 13 NWLR (PT 889) 187 at 219 and FASAKIN FOODS (NIG) LTD vs. SHOSANYA (2006) 10 NWLR (PT 987) 126 at 157 were relied upon. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JURISDICTION IS THE THRESHOLD OF JUDICIAL POWER AND JUDICIALISM

Jurisdiction is the fons et origo and threshold of judicial power and judicialism. The very lifeline andlivewire of all proceedings in a Court or Tribunal without which the entire proceedings are a nullity however brilliantly they may have been conducted: ROSSEK vs. ACB (1993) 8 NWLR (PT 312) 382 at 437 and 487 and OKE vs. OKE (2006) 17 NWLR (PT. 1008) 224. Jurisdiction is a fundamental prerequisite in the adjudication of any matter. Jurisdiction is the authority, which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. Where a Court does not have jurisdiction to entertain a matter the proceedings however well conducted are a nullity as the defect or lack of jurisdiction is extrinsic to the adjudication. See OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 and MADUKOLU vs. NKEMDILIM (1962) ALL NLR 587 or (2001) 46 WRN 1 at 13.

JURISDICTION MUST BE PLAIN FOR ALL TO SEE AND NOT ASSUMED BUT BASED ON THE PROVISIONS OF A STATUTE UGOCHUKWU ANTHONY OGAKWU, J.C.A

In considering whether a Court has jurisdiction to entertain a matter, it has to be borne in mind that jurisdiction of a Court is not assumed, but must be based on the provisions of a statute. The jurisdiction of the Court does not derive from the sky or to put it in the Latinism, in nubibus. It is statutory. See IKECHUKWU vs. FRN (2015) LPELR (24445) 1 at 16. The jurisdiction of a Court is not something you employ a searchlight to discover, it must be plain for all to. See OBI vs. INEC (2007) 11 NWLR (PT 1046) 565 at 669 and LAWAL vs. EFCC (2020) LPELR (49590) 1 at 11-20.

The Court’s duty when its jurisdiction to entertain a matter is put in issue is to expound its jurisdiction but not to expand it. See TUKUR vs. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT 117) 517 at 549, EGBUE vs. ARAKA (2003) 9 MJSC 17 at 35 and MUDIAGA-ERHUEH vs. INEC (2003) 7 WRN 95 at 112-113. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

THE COMPETENCY OF A COURT AND ITS JURISDICTION TO EXERCISE ITS ADJUDICATORY POWERS

The law would appear to be settled that the competence of a Court and its jurisdiction to exercise its adjudicatory powers in respect of a matter before it is intervolved. A Court could have the jurisdiction in respect of the subject matter, but lack the competence thereby vitiating the effect of the jurisdiction it has. Jurisdiction and competence of a Court are therefore complementary. They go hand in hand and are dependent on each other. In order to be properly seised of a matter, a Court must have both jurisdiction and competence. Competence of the Court is the handmaiden of the jurisdiction of the Court. See IBEANU vs. OGBEIDE (1994) 7 NWLR (PT 359) 697 at 700-701, COTECNA INTERNATIONAL LIMITED vs. IVORY MERCHANT BANK LIMITED (2006) All FWLR (PT 315) 26 at 43 and SOKOTO STATE GOVT vs. KAMDEX NIG. LTD (2007) LPELR (3093) 1 at 16. The authorities seem settled that where a Court is not competent, it cannot exercise jurisdiction. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

THE COMPLAINT OF BREACH OF FAIR HEARING CAN ONLY BE RAISED WHEN IN FACT THE RIGHT HAD BEEN DENIED

The complaint of breach of fair hearing can only be raised and avail a litigant when in fact the right had been denied. The admonition of apex Court in this regard is instructive. Hear Tobi, JSC in ADEBAYO vs. A-G OGUN STATE (2008) 7 NWLR (PT. 1085) 201 at 205-206 or (2008) LPELR (80) 1 at 23-24:
“Learned counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the Constitution is violated or contravened. They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking.”
See also KOLO vs. COP (2017) LPELR (42577) 1 at 45-46, MAGAJI vs. NIGERIAN ARMY (2008) 8 NWLR (PT 1089) 338 and BROSSETTE MANUFACTURING LTD vs. M/S OLA ILEMOBOLA LTD (2007) 14 NWLR (PT 1053) 109 at 139. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The facts of this matter as garnered from the records show that the Respondent herein is a registered co-operative society and the Appellant is a member of the Respondent co-operative society. In the normal course of the business of the Co-operative Society, the Appellant was upon his application granted a loan facility of N15million at the interest rate of 10%. The tenor of the facility was three months. The Appellant defaulted in paying up on the facility as and when due. Consequent upon this, the Respondent wrote to the Registrar/Director of the Co-operative Societies urging him to exercise his powers under Section 49 (3) (a) of the Nigerian Co-operative Societies Act by deliberating on the matter and directing the Appellant to pay back the money owed by him.

The Registrar/Director of Co-operative Societies forwarded the Respondent’s petition/claim to the FCT Co-operative Arbitration Committee for adjudication and resolution. Before the Arbitration Committee, the Appellant admitted his indebtedness and asked for time to make a lump sum payment and then reach an agreement on how the balance will be offset. It was agreed that where the Appellant failed to make the lump sum payment within the stipulated time, the Arbitration Committee would resolve the claim on the merit. The Appellant was unable to make the lump sum payment within the stipulated time and his request for further time within which to do so was not granted. The Arbitration Committee then embarked on a consideration of the merits of the claim. At the end of the proceedings, the Arbitration Committee made its award in favour of the Respondent.

The Appellant having failed to settle the award made by the Arbitration Committee, the Respondent commenced proceedings before the High Court of the Federal Capital Territory, Abuja for the enforcement of the said award in SUIT NO. FCT/HC/M/6169/2019: CEYLON MULTI-PURPOSE COOPERATIVE SOCIETY LIMITED vs. ALHAJI IBRAHIM GAMBO DANTATA. By its Amended Motion on Notice, the Respondent claimed the following reliefs:
“1. LEAVE OF THIS HONOURABLE COURT to enforce the arbitral award made on the 25th of April, 2019 by the FEDERAL CAPITAL TERRITORY ADMINISTRATIVE (FCTA) COOPERATIVE ARBITRATION COMMITTEE as a judgment of the Court.
2. AN ORDER OF THIS HONOURABLE COURT enforcing as judgment of the Court, the arbitration award delivered by THE FEDERAL CAPITAL TERRITORY ADMINISTRATIVE (FCTA) COOPERATIVE ARBITRATION COMMITTEE on the 25th of April, 2019 to wit;
a. That the Respondent is owing the Petitioner the sum of N69, 000,000.00 (sixty-Nine Million Naira) being outstanding sum of N15,000,000.00 (Fifteen Million Naira) and the accrued interest.
b. That the Respondent’ property known as plot 2166 Cadastral Zone A01, Garki, Abuja should be sold immediately to recover the sum of N69,000,000.00 (Sixty-Nine Million Naira) owed to the Petitioner and the excess sum form [sic] the proceeds of the sale of the property be given to the Respondent.”

The grounds upon which the application is predicated are as follows:
“1. Section 49(1) of Nigerian Co-operative Societies Act, 2004 which mandates the Director or the Arbitration Committee of Cooperative Societies registered under the Act to settle disputes arising from any debt between a Cooperative Society and its members and to give an award to be enforced by the Court.
2. The FCTA Arbitration Committee on the 25th of April, 2019 delivered an award in favour of the Applicant which has not been complied with by the Respondent.
3. Section 49 (7) of the Nigerian Co-operative Societies Act mandates the Court to enforce the arbitration award given in favour of a party as judgment of the Court and by Order 19 Rule 13 of the Rules of this Honourable Court, an application to enforce an arbitral award may be brought either by an exparte motion or by motion on notice.
4. The Applicant has brought this application to seek the enforcement of the arbitration award delivered in her favour on the 25th of April, 2019 by the FCTA Arbitration Committee.”

The parties filed and exchanged processes on the application and in its judgment which was delivered on 5th May, 2020, the lower Court granted the Respondent’s application as prayed. The Appellant was dissatisfied with the decision of the lower Court and appealed against the same by Notice of Appeal filed on 10th June, 2020. The chafed judgment of the lower Court is at pages 265-297 of the Records, while the Notice of Appeal is at pages 298-303 of the Records.

Upon the compilation and transmission of the Records of Appeal, the parties filed and exchanged briefs of argument. The Appellant’s brief was filed on 16th June, 2021. The Respondent filed its brief of argument on 29th June, 2021 and the Appellant filed his Reply brief on 27th September, 2021. All the briefs were deemed as properly filed on 29th September 2021. At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.

The Appellant nominated three issues for determination in the appeal, scilicet:
“1. Whether the learned trial Court had the Jurisdiction to entertain the Respondent’s Application for the enforcement of the Arbitral Awards? (Distilled from Ground 1)
2. Whether the learned trial Judge was right when he held that there was no error in the face of the arbitral award rendered by the Arbitral Tribunal? (Distilled from Ground 2)
3. Whether learned trial Judge was right when he held that the Arbitrators did not misconduct themselves during the cause [sic] of the proceedings? (Distilled from Ground 3)”

The Respondent equally crafted three issues for determination, videlicet:
“a. Whether the lower Court had jurisdiction to entertain the Respondent’s Application for enforcement of Arbitral award? (Distilled from Ground 1)
b. Whether the lower Court was right when it held that there was no error of law on the face of the arbitral award rendered by the Arbitral Committee? (Distilled from Ground 2)
c. Whether the lower Court was right when it held that the Arbitration Committee did not misconduct itself during the cause [sic] of the proceedings? (Distilled from Ground 3)”

The issues distilled by the parties are the same two and tuppence. In the circumstances, it is on the basis of the issues as formulated by the Appellant that I will review the submissions of learned counsel and resolve this appeal. However, I will consider issue numbers two and three together.

ISSUE NUMBER ONE
Whether the learned trial Court had the Jurisdiction to entertain the Respondent’s Application for the enforcement of the Arbitral Awards?

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the lower Court erred in assuming jurisdiction to hear and determine the application for the enforcement of the arbitral award when in commencing the arbitration, the Respondent did not write directly to the Director of the Federal Capital Territory Administrative Co-operative Arbitration Committee as required by Section 49 (1), (2) & (3) of the Nigerian Co-operative Societies Act. It was opined that the word “shall” is employed in the stipulation showing that it is mandatory vide KATTO vs. CBN (1991) LPELR 1678 SC at 25-26, OFORKIRE vs. MADUIKE (2003) LPELR-2269 at 15-16, AINA vs. OBABIOLORUN-KOSI (1986) 2 NWLR (PT 22) 316, DAMBAM vs. LELE (2000) 11 NWLR (PT 678) 413 among other cases. It was asserted that since the Respondent did not follow the procedure under Section 49 of the Nigerian Co-operative Societies Act, the proceedings before the Arbitration Committee were rendered null and void ab initio.

The Appellant posited that the right of parties to participate in the appointment of arbitrators of their choice is a condition precedent to be fulfilled before a Court can be said to properly assume jurisdiction to hear a matter before it vide Section 7 (1) and (2) of the Arbitration and Conciliation Act. The Appellant insisted that he was not given the opportunity to appoint an arbitrator of his choice, but that the lower Court wrongly held that the Arbitration and Conciliation Act does not apply to the matter. It was maintained that in the absence of any provision in the Nigerian Co-operative Societies Act for parties to participate in the appointment of an arbitrator, then the provisions of the Arbitration and Conciliation Act will apply.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the lower Court had the jurisdiction to entertain the application for the enforcement of the arbitral award. The cases of DINGYADI vs. INEC (2011) 4 SCNJ 1, ABUBAKAR vs. NASAMU (2011) LPELR – 831 (SC) and PORTS AND CARGO HANDLING SERVICES CO LTD vs. MIGFO (NIG) LTD (2012) LPELR-9725 (SC) were called in aid on the definition and determinant of jurisdiction. It was opined that the Respondent applied to the lower Court for the enforcement of the arbitral award pursuant to Section 49 (5) of the Nigerian Co-operative Societies Act and that the lower Court rightly held that it had jurisdiction to entertain the matter.

It was contended that the Appellant’s submission is an attack or challenge on the jurisdiction of the Arbitration Committee and not that of the lower Court. It was stated that the lower Court rightly found that the Respondent had addressed its complaint to the Director of Co-operatives and further, that the Arbitration Committee stated in its award that it received the dispute through the office of the FCT Chief Registrar of Co-operative Societies. The Appellant, it was posited, in accepting the terms of settlement reached, wrote to the Registrar of Co-operatives, thereby showing his awareness that the petition was written to the Registrar/Director of Co-operatives. It was asserted that the Arbitration Committee had the jurisdiction to entertain the Respondent’s case.

It is the further contention of the Respondent that the Appellant’s reliance on the provisions of the Arbitration and Conciliation Act is flawed since Section 55 (2) of the Nigerian Co-operative Societies Act expressly provides that the Arbitration and Conciliation Act shall not apply. It was maintained that the Appellant who asserted that he was entitled to participate in the appointment of arbitrators had the burden of proving the same but that he failed to do so as the Nigerian Co-operative Societies Act did not make any such provision. The case of LAMU vs. BONGDEN (2017) LPELR-43317 (CA) was cited in support.

RESOLUTION OF ISSUE NUMBER ONE
Jurisdiction is the fons et origo and threshold of judicial power and judicialism. The very lifeline and live wire of all proceedings in a Court or Tribunal without which the entire proceedings are a nullity however brilliantly they may have been conducted: ROSSEK vs. ACB (1993) 8 NWLR (PT 312) 382 at 437 and 487 and OKE vs. OKE (2006) 17 NWLR (PT. 1008) 224. Jurisdiction is a fundamental prerequisite in the adjudication of any matter. Jurisdiction is the authority, which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. Where a Court does not have jurisdiction to entertain a matter the proceedings however well conducted are a nullity as the defect or lack of jurisdiction is extrinsic to the adjudication. See OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 and MADUKOLU vs. NKEMDILIM (1962) ALL NLR 587 or (2001) 46 WRN 1 at 13.

The basis on which the Appellant contends that the lower Court did not have jurisdiction include that the Respondent did not write to the Director of Co-operative Societies before commencing the arbitral proceedings before the Arbitration Committee, that the subject matter was not within the jurisdiction of the Court and that his not having participated in the appointment of the arbitrators, was a feature which prevented the Court from exercising jurisdiction. In sum, that the action was not initiated by due process of law. In the oft-cited case of MADUKOLU vs. NKEMDILIM (1962) ALL NLR 587 at 595, the apex Court stated as follows:
“A Court is competent to adjudicate when –
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) The subject matter of the case is within its jurisdiction and there is no feature which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in the competence of the Court is fatal and the proceedings however well conducted and decided are a nullity as such defect is extrinsic to the adjudication.”

In addition to its general and statutory jurisdiction, a Court also has its inherent jurisdiction. However, the Appellant’s contention in this matter does not call for an exposition on, and consideration of the inherent jurisdiction of a Court. Howbeit, for an exposition of the law on the nature of the inherent jurisdiction of a Court in contradistinction to its general and statutory jurisdiction. See AJAYI (RANTIPE) vs. ALARAB PROPERTIES LIMITED (2021) LPELR (56073) 1 at 21-24.

Now, the concept of jurisdiction of a Court can mean two things: (i) the abstract right of a Court to exercise its powers in causes of a certain class; or (ii) the right of a Court to exercise its powers over a particular subject matter, or res in dispute. In the broader sense of the right of a Court to exercise its powers, jurisdiction implies the legal authority or legal capacity to adjudicate at all. It has not been argued that the lower Court, the High Court of the Federal Capital Territory, Abuja, does not have the legal capacity to adjudicate. It is therefore the narrower sense of the concept of jurisdiction, id est, the exercise of the Court’s power over the particular subject matter or the res in the case that is in contest. It is rudimentary law that jurisdiction is determined by the relief claimed. See IZENKWE vs. NNADOZIE(1953) 14 WACA 361 at 363, ADEYEMI vs. OPEYORI (1976) 9-10 SC 31, TUKUR vs. GOVT. OF GONGOLA STATE (supra), A-G KWARA STATE vs. OLAWALE (1993) 1 NWLR (PT 272) 645 at 663, ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD vs. GARBA (2002) 14 NWLR (PT 788) 538 at 563 and JAMES vs. INEC (2015) ALL FWLR (PT 787) 652 at 704. As stated by Tobi, JSC in ONUORAH vs. KRPC LIMITED (2005) LPELR (2707) 1 at 15:
“The law is elementary that in the determination of whether a Court has jurisdiction in a matter or not, the Court will examine or consider the claims or reliefs. This is because only the claims or reliefs donate jurisdiction to the Court.”

The relief which the Respondent sought against the Appellant at the lower Court, as evident from the Amended Motion on Notice at pages 74-75 of the Records, is for the enforcement of the arbitral award made in its favour by the Federal Capital Territory Administrative (FCTA) Arbitration Committee. Bearing in mind that in case of statutory jurisdiction, we do not require a searchlight to ascertain if the lower Court has jurisdiction to entertain the Respondent’s action, the provisions of Section 49 (5) of the Nigerian Co-operative Societies Act are relevant. It stipulates:
“(5) The decision shall, on the application of the party in whose favour it is made, be enforced by any Court which has jurisdiction in a civil suit between the parties to the dispute to give a judgment for the payment of the amount awarded or, where the decision does not relate to the payment of money, to give a similar decision in the same manner as if the decision has been a judgment or decision of the Court.”

The quaere from the above provision would be whether the lower Court would have had “jurisdiction in a civil suit between the parties to the dispute to give a judgment for the payment of the amount awarded”. Put differently, whether the lower Court could have exercised jurisdiction in an action between the parties for the recovery of the outstanding amount on the loan facility which the Respondent gave to the Appellant. Where it has such jurisdiction, then it definitely has jurisdiction in an application for the enforcement of the arbitral award. Section 257 of the 1999 Constitution gives the High Court of the Federal Capital Territory, Abuja, just as in the same way as a State High Court under Section 272 of the Constitution, the jurisdiction, subject to the provisions of Section 251 of the Constitution and any other provisions of the Constitution, to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue. This provision gives the lower Court the jurisdiction, which is enormous, to entertain the subject matter of an action to recover any outstanding debtor liquidated money demand, such as was the subject matter of the arbitral proceedings: SOCIETY BIC S. A. vs. CHARZIN INDUSTRIES LTD (2014) LPELR (22256) 1 at 46, KOLO vs. BINTU (2017) LPELR (43428) 1 at 28-29 and FAGBEMI vs. OMONIGBEHIN (2012) LPELR (15359) 1 at 39-40 and 43-44. Accordingly, it is beyond confutation that the lower Court was eminently imbued with jurisdiction to entertain the Respondent’s application for the enforcement of the arbitral award.

Before I wrap up this issue, it is pertinent to state that this Court does not have the jurisdiction to entertain appeals directly from the decision of the Arbitration Committee of the Federal Capital Territory. The Appellant in his issue number one as distilled questions the jurisdiction of the lower Court, id est, the High Court of the Federal Capital Territory, Abuja, to entertain the Respondent’s application for the enforcement of the arbitral award. However, as rightly observed by the Respondent, the Appellant’s submissions on the issue are an attack or challenge, not on the jurisdiction of the lower Court, but on the jurisdiction of the Arbitration Committee. The said submissions do not flow from the issue as distilled. The contentions as to whether a complaint was written to the Director of the FCT Co-operative Societies and whether the Appellant ought to have participated in the selection and composition of the Arbitration Committee have absolutely nothing to do with the jurisdiction of the High Court of the Federal Capital Territory, Abuja to entertain on application for the enforcement of an arbitral award. The thrust of the Appellant’s submissions in this issue has not been an effective challenge on the jurisdiction of the lower Court. Be that as it may, as has been already demonstrated, the lower Court had the jurisdiction to entertain the Respondent’s application. This issue is therefore resolved in favour of the Respondent.

ISSUE NUMBERS TWO AND THREE
Whether the learned trial Judge was right when he held that there was no error in the face of the arbitral award rendered by the Arbitral Tribunal?
Whether learned trial Judge was right when he held that the Arbitrators did not misconduct themselves during the course of the proceedings?

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant states that even though the arbitrators were imposed on the parties, but that in arbitral proceedings where parties choose their arbitrators, they take their arbitrators for better or for worse in decisions they reach and cannot object as long as the award is good on its face vide AFRICAN REINSURANCE CORPORATION vs. AIM CONSULTANTS LTD (2004) 11 NWLR (PT 884) 223 at 238 and AYE-FENUSENT LTD vs. SAIPEM (NIG) LTD (2009) 2 NWLR (PT. 1126) 483 at 518. It was posited that in exceptional circumstances an arbitral award can be set aside on grounds, inter alia, of error of law on the face of the award. The cases of KANO STATE URBAN DEVELOPMENT BOARD vs. FANZ CONSTRUCTION LTD (1990) 4 NWLR (PT 142) 1 at 37-38, ARBICO NIG LTD vs. N. M. T. LTD (2002) 15 NWLR (PT 790) 1 at 24-25, BAKER MARINE (NIG) LTD vs. CHEVRON (NIG) LTD (2000) 12 NWLR (PT 681) 393 at 412, ARAKA vs. EJEAGWU (2000) 15 NWLR (PT 692) 684 at 715 and Sections 29 and 30 of the Arbitration and Conciliation Act were referred to.

It was contended that the arbitral award and the decision of the lower Court should be set aside on the grounds of error of law on the face of the award because the relevant provisions of the Nigerian Co-operative Societies Act were violated by the arbitration panel. It was further submitted that by Section 49 (5) [sic] of the Nigerian Co-operative Societies Act, the appropriate venue to ventilate dissatisfaction with the decision of the Arbitration Committee is by appeal directed to the Minster of the Federal Capital Territory, which the Appellant did; and so the lower Court was wrong to consider the Respondent’s motion for enforcement of the award even after its attention was drawn to the appeal filed before the Minister of the Federal Capital Territory.

The Appellant’s contention on his third issue is that the arbitrators misconducted themselves; firstly, as it relates to the extent of the award since what was awarded was not asked for, proved or admitted; as the Appellant only admitted the principal loan and interest for three months only. The case of DIM vs. ENEMUO (2009) 10 NWLR (PT 1149) 353 at 369 was referred to on the meaning of credible evidence.

The second instance of misconduct was said to relate to fair hearing. It was contended that the arbitration panel did not give the Appellant afair hearing, having failed to call or invite him before, and when they gave the award. It was asserted that the violation of the Appellant’s right to fair hearing was a misconduct vide OSWELD vs. GRAY (1855) 24 L. J. Q. B. 69. The basic attributes of fair hearing as laid down in SANI vs. THE STATE (2018) ALL FWLR (PT 590) 1665-1666 and KOTOYE vs. CENTRAL BANK OF NIGERIA (1989) 1 NWLR (PT 98) 419 were restated and it was posited that where there has been a breach of fair hearing, the decision reached must be set aside. The cases of EKPENETU vs. OFEGOBI(2012) 15 NWLR (PT 1323) 276 at 311, NYESOM vs. PETERSIDE (2016) 7 NWLR (PT 1512) 452 at 551 and ENL CONST LTD vs. SHELTER (NIG) LTD (2018) ALL FWLR (PT 959) 1089 were called in aid.

It was conclusively submitted that the lower Court was wrong to rely on Section 294 (1) of the Constitution to hold that final address is not mandatory before the Arbitration Committee, instead of applying Section 36 of the Constitution which deals with fair hearing and which applies to any adjudicatory body. The case of NNPC vs. CLIFCO (NIG) LTD (2011) 10 NWLR (PT 1255) 209 at 231 and 232 was cited in support. The instances which would constitute a misconduct by an arbitrator as established by the cases of TAYLOR WOODROW LTD vs. SUDDEUTSCHE ETNA-WERK GMBH (1993) 4 NWLR (PT 286) 127 at 142, SAVOIA LTD vs. SONUBI (2000) 12 NWLR (PT 682) 539 at 547 and Paragraph 622 of Halsbury’s Laws of England, 4th Edition, Volume 2 pages 330 – 331 were referred to and it was asserted that the conduct of the arbitration panel in denying the Appellant fair hearing was a misconduct which the lower Court ought to have considered in refusing to enter judgment for the Respondent.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent’s submission on the second issue is that the lower Court rightly held that there was no error of law on the face of the arbitral award. The cases of MUTUAL LIFE & GENERAL INSURANCE LTD vs. IHEME (2010) LPELR-4568 (CA) and BAKER MARINE NIG. LTD vs. CHEVRON NIG LTD (1999) LPELR-10632 (CA) were referred to on the meaning of error of law. It was maintained that the Appellant has failed to show any error of law and that the contention that the lower Court failed to take cognisance of his appeal to the Minster of the Federal Capital Territory is not correct as he failed to produce evidence of any appeal he submitted to the Minister. It was posited that even if the Appellant submitted an appeal, which he did not prove that he did, it would not amount to an error of law but would only show an abuse of process of a pending appeal and an application to enforce.

Still in argument, the Respondent submits on the third issue that the lower Court was right when it held that there was no misconduct by the Arbitration Committee and that the Appellant was not denied fair hearing, having been represented by his counsel at the arbitration. Relying on the cases of ARAKA vs. EJEAGWU (2000) LPELR-533 (SC) and ADAMEN PUBLISHERS (NIG) LTD vs. ABHULIMEN (2015) LPELR-25777 (CA) for the meaning of misconduct, it was opined that misconduct has to be such that occasions a substantial miscarriage of justice and that where the complaint is about the finding of fact by the arbitrator, it would not qualify as a misconduct vide DUNLOP NIG PLC (NOW D. N. TYRE & RUBBER PLC) vs. GASLINK NIG LTD (2018) LPELR-43642 (CA) and BAKER MARINE NIG LTD vs. CHEVRON NIG LTD (2000) 3 NWLR (PT 681) 939 at 410 [sic].It was asserted that the complaint on the extent of the award is for the finding of fact on the amount awarded to be reviewed.

It is the further submission of the Respondent that the Terms of Settlement reached by the parties had a timeframe within which the Appellant is to make payment, and that not having kept to the timeframe, it meant that the terms of settlement was no longer binding. The case of DALEK (NIG) vs. OMPADEC (2007) 7 NWLR (PT 1033) 402 was called in aid. The cases relied upon by the Appellant on misconduct were said to have been decided based on the Arbitration and Conciliation Act which, by Section 55 (2) of the Nigerian Co-operative Societies Act, is inapplicable. The question or complaint on any finding of fact, it was stated, has to be by way of appeal to the Minister of the Federal Capital Territory under Section 49 (6) of the Nigerian Co-operative Societies Act, as the High Court does not sit on appeal over decisions arising from arbitration under the Nigerian Co-operative Societies Act. The Respondent maintained that where an award has not been challenged, then effect should be given to it by entering it as the judgment of Court. Section 49 (4) of the Nigerian Co-operative Societies Act and the case of RAS PAL GAZI CONSTRUCTION CO LTD vs. FCDA (2001) LPELR-2941 (SC) were cited in support.

With regard to the complaint on fair hearing, it was stated that the evidence afforded by the Attendance Sheet at the arbitration shows that the Appellant was present at the hearing before the Arbitration Committee through his counsel. It was opined that a party who fails to utilise the opportunity of a hearing afforded him, cannot complain. The cases of INEC vs. MUSA (2003) 3 NWLR (PT 806) 72,DANTATAvs. MOHAMMED (2012) 8 NWLR (PT 1302) 366 and S & D CONSTRUCTION CO. LTD vs. AYOKU(2011) LPELR-2965 (SC) were relied upon. It was submitted that the finding by the lower Court that the Appellant was not denied fair hearing was not appealed against and therefore the finding stands, not having been challenged vide MICHAEL vs. THE STATE (2008) 13 NWLR (PT 1104) 361 and EZERIOHA vs. IHEZUO (2009) LPELR-4122 (CA).

APPELLANT’S REPLY ON LAW
The Appellant contends in the reply brief that the essence of the Arbitration and Conciliation Act is to ensure fair hearing in accordance with Section 36 of the Constitution and therefore Section 55 (2) of the Nigerian Co-operative Societies Act which excludes the application of the Arbitration and Conciliation Act is inconsistent with Section 1 (1) and (3) of the Constitution. It was posited that the constitutional right to fair hearing is construed in accordance with the peculiar facts of the case in order to ascertain if the right to fair hearing had been violated. The case of AWO OMAMMA vs. NWOKORO (2012) 14 NWLR (PT 1321) 488 at 510 was called in aid.

RESOLUTION OF ISSUE NUMBERS TWO AND THREE
The Appellant’s contention under these issues is that on account of the error of law on the face of the award and the Arbitration Committee having misconduct itself, that the lower Court should not have granted the application for the enforcement of the arbitral award. It is imperative to state at this outset that a Court considering an application for the enforcement of an arbitral award or the setting aside of the arbitral award, does not sit on appeal over the decision of the arbitrators. After all, it is hornbook law that parties take their arbitrators for better or worse, both as to the decision of fact and the decision of law. They cannot, when the award is good on the face of it, object to the award on grounds of law or of facts. See COMMERCE ASSURANCE LTD vs. ALLI (1992) LPELR (883) 1 at 19-20. Since the lower Court in considering the application for the enforcement of the arbitral award is not sitting on appeal over the decision of the arbitral Tribunal, once it is satisfied that the arbitral Tribunal complied with the law, as the arbitral Tribunal understood it, rightly or wrongly as they perceived it, that ends the matter as parties take their arbitrators as they find them, for good or for bad, for better or for worse. In OPTIMUM CONSTRUCTION AND PROPERTY DEVELOPMENT CO. LTD vs. PROVAST LTD (2018) LPELR (43689) 1 at 8-11, I was privileged to state as follows:
“By all odds, an arbitral award can be set aside for misconduct where there is an error of law discernible on the face of the award. However a Court before which there is an application to set aside an arbitral award does not sit as an appellate Court over the award of the Arbitrator, it can therefore not determine whether or not the findings of the Arbitrator and the conclusions reached were wrong in law. See BAKER MARINE (NIG) LTD vs. CHEVRON (NIG) LTD (2000) 12 NWLR (PT 681) 397. But what is an error in law on the face of an award which will constitute misconduct? This question was answered by the apex Court in TAYLOR WOODROW OF NIGERIA LTD vs. SUDDEUTSCHE ETNA-WERK GMBH (1993) LPELR (3139) 1 at 20-22. In the words of Ogundare, JSC:
‘To determine whether there has been misconduct, one must necessarily first answer the question: What is an error in law on the face of an award? As was decided by the Privy Council in Champsey Bhara& Co. v. Jivrajs Balloo Spinning & Weaving Co. (1923) A.C. 480; (1923) All E.R. Rep. 235, per Lord Dunedin at pp. 487-488 of the former Report, the expression was thus defined:
An error in law on the face of the award means, in their Lordships’ view, that you can find in the award or a document actually incorporated thereto, as for instance a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous. It does not mean that if in a narrative a reference is made to a contention of one party that opens the door to seeing first what that contention is, and then going to the contract on which the parties rights depend to see if that contention is sound.
Where it is impossible to say, from what is shown on the face of the award, what mistake, if any, the arbitrator has made, or that the arbitrator has tied himself down, on the face of his award, to some special legal proposition which is unusual the award will stand.
The learned authors of Halsbury’s Laws of England 4th Edition at paragraph 623 on page 334 have the following to say on the subject:
An arbitrator’s award may be set aside for error of law appearing on the face of it, though the jurisdiction is not lightly to be exercised. Since questions of law can always be dealt with by means of a special case this is one matter that can be taken into account when deciding whether the jurisdiction to set aside on this ground should be exercised. The jurisdiction is one that exists at common law independently of statute. In order to be a ground for setting aside the award, an error in law on the face of the award must be such that there can be found in the award, or in a document actually incorporated with it, some legal proposition which is the basis of the award and which is erroneous.
If a specific question of law is submitted to the arbitrator for his decision and he decides it, the fact that the decision is erroneous does not make the award bad on its face so as to permit its being set aside, and where the question referred for arbitration is a question of construction, which is, generally speaking, a question of law, the arbitrator’s decision cannot be set aside only because the Court would itself have come to a different conclusion but if it appears on the face of the award that the arbitrator has proceeded illegally, as, for instance, by deciding on evidence which was not admissible, or on principles or construction which the law does not countenance, there is error in law which may be ground for setting aside the award. But the Court is not entitled to draw any inference as to the finding by the arbitrator of facts supporting the award; it must take the award at its face value.”

In the light of the fact that the Court before which an application to enforce an arbitral award is pending is not entitled to draw any inference of fact as to the findings by the arbitrator of facts supporting the award has the Appellant established any mistake made by the Arbitration Committee on the basis of which the lower Court could have declined to sanction the enforcement of the arbitral award as a judgment of the Court on the ground of misconduct or error of law on the face of the award?

The Appellant’s contention on there being an error on the face of the award can be inferred to be that the lower Court proceeded with hearing the Respondent’s application for enforcement of the award even after it had been notified that the Appellant had lodged an appeal to the Minister of the Federal Capital Territory against the arbitral award as provided for in Section 49 (5) of the Nigerian Co-operative Societies Act. I have resorted to the inference because this is what the Appellant submitted in paragraph 4.17 on pages 15-16 of the Appellant’s brief:
“…and the Judgment of the lower Court be set aside on the grounds there is an error of law on the face of the Award because the relevant provisions of the Nigerian Cooperative Societies Act were apparently violated by the Arbitration panel. Thus, the learned trial Judge was wrong to have granted the Respondent’s leave to enforce the Arbitral Award in light of the manifest error of law pointed out by the Appellant.“

The above submission is with respect, nebulous, as the “relevant provisions of the Nigerian Cooperative Societies Act” which “were apparently violated by the Arbitration panel” were not stated. Furthermore, I am unable to find “the manifest error of law pointed out by the Appellant”. Howbeit, in holding that there was no error of law on the face of the award, the lower Court conclusively reasoned and held as follows at page 293 of the Records:
“Based upon the foregoing analyses with respect to fair hearing and lack of jurisdiction on the part of the arbitration Committee which this has extensively dealt with, I have not seen any error of law pointed out by the counsel to the respondent which appears on the face of the award. In essence, the counsel to the respondent did not canvass any legal argument with respect to any error of law on the face of the award, which will warrant this Court to see whether there is any error of law on the face of the award. However, I have dispassionately read the proceedings of the Arbitration Committee more particularly the decision made the 25th day of April, 2019, and I have not discovered any error of law on the face of the award, and to this, I therefore, so hold that there is no error of law discovered on the face of the award.“

The Appellant has not challenged the above finding of the lower Court that he did not “canvass any legal argument with respect to any error of law on the face of the award”, by showing the error he canvassed and how the lower Court was consequently wrong. This notwithstanding, I have, against the background of the Appellant’s submission that he appealed to the Minister, meticulously examined the Records of Appeal, which binds both the Court and the parties, as the Court will not depart from the Records and any extraneous facts not contained in the records cannot be acted upon. See GARUBA vs. OMOKHODION(2011) 15 NWLR (PT. 1269) 145 at 180, ARUM vs. NWOBODO (2013) 10 NWLR (PT 1362) 374 and FHA vs. OLAYEMI (2017) LPELR (43376) 1 at38-39. I was however unable to see proof of any appeal lodged to the Minister of the Federal Capital Territory by the Appellant. There is however warehoused at pages 173-194 of the Records, an Originating Summons filed by the Appellant before the High Court of the Federal Capital Territory, Abuja in SUIT NO. M/7642/2019 wherein he sought an order setting aside the arbitral award. So, if indeed in addition to this Originating Summons the Appellant filed an appeal with the Minster of the Federal Capital Territory, then it would be an abuse of process. See AGWASIM vs. OJICHIE (2004) 18 NSCQR (PT I) 359 at 367 and 369.

I have taken due cognisance of the Appellant’s deposition in paragraph 13 of his affidavit in opposition to the Respondent’s application for the enforcement of the award, where he deposed as follows:
“13. That in dissatisfaction with the arbitral award, I filed an appeal pursuant to Section 49 of The Nigerian Cooperative Societies Act and after some time also filed an Originating Motion with MOTION NUMBER: M/7642/19 praying the Court to Set Aside the Award.”

The Appellant did not exhibit the appeal he filed against the arbitral award. The Respondent has denied that any such appeal was filed and that indeed if any was filed, it would be an abuse of process. It is rudimentary law that he who asserts must prove. The Latinism is expressed as eiincumbitprobatio, qui dicit non quinegat, cum per rerum naturam factum negantisprobationulla sit, that is, the burden of proof lies upon him who affirms, not upon him who denies, since by the nature of things, he who denies a fact cannot produce any proof. Proof is required of a positive assertion, not a denial or negative assertion. See generally AHMADU BELLO UNIVERSITY vs. MOLOKWU (2004) 2 WRN 166 at 184, IDEH vs. EJOVWO (2014) LPELR (23321) 1 at 44-46 and METIBAIYE vs. NARELLI INT’L LTD (2009) 16 NWLR (PT 1167) 326 at 343.

There is nothing in the Records establishing that the Appellant appealed to the Minister of the Federal Capital Territory. The Court is bound by the records and is not to conjecture or surmise on any extraneous facts that are not contained in the Records.

As already stated, even if such an appeal exists, which is not proved, it will be an abuse of process in the light of the Appellant’s Originating Summons for the setting aside of the arbitral award. As intoned by Tobi, JSC in AGWASIM vs. OJICHIE (supra) at 369:
“The above factual position creates a scenario of the appellants pursuing the same matter by two processes. In other words, the appellants, by the two processes, are involved in some gamble or game of chance to get the best in the judicial process … A litigant has no right to pursue paripassu two processes which will have the same effect in two Courts at the same time with a view to obtaining victory in one of the processes or in both. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different positions clearly, plainly and without tricks.”

Just like the lower Court, I am unable to find any error of law on the face of the award.

The Appellant’s allegation of misconduct by the arbitral panel is predicated on his perception that the arbitral panel awarded the Respondent more than what was claimed, proved andadmitted and that the arbitral panel denied him of his constitutional right to fair hearing. For good measure, the Appellant in reply to the Respondent’s contention that the provisions of Arbitration and Conciliation Act do not apply contends that the essence of the Arbitration and Conciliation Act is to ensure fair hearing as stipulated in the Constitution. This contention is with respect a mere sidewind as the stipulations of the Constitution are not to be propelled by the provisions of the Arbitration and Conciliation Act. The Constitution is the grundnorm from which all other laws derive their validity. The fair hearing provision in Section 36 of the Constitution is the machinery or locomotive of justice. It is not a casual principle of law which requires validation of its applicability by reference to any other law including the Arbitration and Conciliation Act. The constitutional fair hearing stipulation is a formidable and fundamental constitutional provision available and effective where the facts disclose a denial of fair hearing. The fact however remains that Section 55 (2) of the Nigerian Co-operative Societies Act expressly enacts that the Arbitration and Conciliation Act is inapplicable in arbitrations under the Nigerian Co-operative Societies Act.

The paramount question for consideration is whether there was misconduct by the Arbitration Committee with respect to the amount awarded and whether the Appellant was denied fair hearing. In resolving these matters, the lower Court held as follows at 296 of the records:
“In financial transactions interest connotes a compensation allowed by law or fixed by the parties for the use or forbearance of borrowed money. It is that payment a borrower pays a lender for the use of money sought and obtained by the borrower from the lender. See the case of Veepee Ind. Ltd V. Cocoa Ind. Ltd (2008) All FWLR (pt 425) p. 1669 at 1680. Therefore, interest may be awarded in a case, either as of right or where it is contemplated by the agreement between the parties.
It is based upon the foregoing that I have to draw an inference that having taken into consideration the cheques issued by the respondent for repayment of the principal loan, and in addition the accrued interest as at then, it could be inferred that the parties have agreed to payment of the 10% interest from the time of the granting the loan to the time of payment of the principal loan. The three months tenure signifies the time upon the principal loan could have been paid and beyond that the interest of 10% will start to accrue.
In the circumstances, it could not be said that the Arbitration Committee has misconducted itself, and to this, I therefore, so hold.”

The Appellant has not faulted the above reasoning and conclusion of the lower Court. Furthermore, in COMMERCE ASSURANCE LTD vs. ALLI (supra), the apex Court held as follows at page 20:
“A person who has submitted to an arbitration cannot turn to the Court to ask it to review the award when he believes it is too high. As the learned authors of Russell on Arbitration (18th Edn.) put it at p. 314:
‘The Court has no power to alter an award; it can only set it aside or remit it to the arbitrator. See also Hall v. Anderson (1825) 2 Bing 476; Moore v. Butlin (1877) 7 L.J.Q.B. 20.”

In holding that the Appellant was not denied his right to fair hearing, the lower Court reasoned and held as follows at pages 291-292 of the Records:

“Going by paragraph 4 of the affidavit of the respondent, it is that the respondent attended all the sittings, through his solicitor, up to the last sitting where the date of 25th April, 2019 and [sic] was taken. By Exhibit ‘R4C’ which is the attendance sheet of the sitting of 6th December, 2018, and by Exhibit ‘R4B’ which is attendance sheet of the sitting of 18th December, 2018, the name of the counsel to the respondent appeared and which shows that he appended his signature, and by paragraph 10 of the reply affidavit of the applicant, it would be seen that the respondent was represented by his solicitor at the hearing of the 18th December, 2018 when the matter was adjourned to 25th April, 2019, and this was not controverted at all by the respondent.
This Court is not unmindful of the provision of Section 36 of the 1999 Constitution of Nigeria, and it is in that spirit that failure to give notice to proceedings to an opposing party in a case where service process is required is a fundamental omission which renders the proceedings void because the Court has no jurisdiction to entertain it, the fundamentality of a hearingnotice on a party intimating him of the hearing of a matter in which he has interest cannot be over emphasized, since it is the service of hearing notice that confers jurisdiction on the Court to entertain the matter. See the case of Ozigbo – Esere V. Debekeme (2018) All FWLR (pt 918) p. 114 at pp. 136-137 paras. H-C. Let me re-iterate that, in the instant case, what the counsel is contending is that the respondent was not informed of the date of the delivering of the award, however, by the said Exhibit ‘R4B’ the counsel to the respondent was there on the 18th of December, 2018 when a date of 25th of April, 2019 was taken for the award, to my mind, and undoubtedly the respondent will not be allowed to complain of lack of fair hearing, this is because, for the fact that the counsel to the respondent was there as at the time the date of 25th April, 2019, for the delivery of the award, was given, certainly he has no cause to complain of lack of fair hearing. See the case of Onadeko V. U.B.N. Plc (2005) All FWLR (pt 250) p. 42 at p. 78 paras. E-H where the Court of Appeal Ibadan Division held that ordinarily failure to give notice of proceedings to an opposing party where service is required is a fundamental omission capable of avoiding proceedings due to loss of jurisdiction on the part of the Court to entertain it with regard to hearing notice, the best notice to parties is the one communicated to them personally in Court. A party is deemed to have notice of trial if he was only represented by counsel when the trial was fixed. In such a situation, a party who had notice of trial thereby but opts to be absent from Court on the trial date, cannot be heard to complain of lack of fair hearing because of non-issuance of hearing notice. See also the case of S & D Construction Ltd V. Ayoku (2011) All FWLR (pt 604) p. 8 at 13 para. B. In this instant case, for the fact that the respondent’s counsel was there before the Arbitration Committee when a date of 25th April, 2019 for the delivery of the award, certainly the respondent will not be heard to complain of lack of fair hearing, and to this I therefore hold, and the argument of the counsel to the respondent is hereby discountenanced.“

The Appellant has not challenged the specific finding of the lower Court that he was represented by Counsel and therefore cannot be heard to complain of lack of fair hearing. Not having been challenged, the finding remains subsisting and binding. See BIARIKO vs. EDEH-OGWUILE (2001) 4 SC (PT II) 96,DURBAR HOTEL PLC vs. ITYOUGH (2016) LPELR (42560) 1 at 7-8 and NNADIKE vs. NWACHUKWU (2019) LPELR (48131) 1 at 27-28.

Concomitantly, the alleged breach of fair hearing is a ruse. The complaint of breach of fair hearing can only be raised and avail a litigant when in fact the right had been denied. The admonition of apex Court in this regard is instructive. Hear Tobi, JSC in ADEBAYO vs. A-G OGUN STATE (2008) 7 NWLR (PT. 1085) 201 at 205-206 or (2008) LPELR (80) 1 at 23-24:
“Learned counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the Constitution is violated or contravened. They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking.”
See also KOLO vs. COP (2017) LPELR (42577) 1 at 45-46, MAGAJI vs. NIGERIAN ARMY (2008) 8 NWLR (PT 1089) 338 and BROSSETTE MANUFACTURING LTD vs. M/S OLA ILEMOBOLA LTD (2007) 14 NWLR (PT 1053) 109 at 139.
Equally, in MAGAJI vs. NIGERIAN ARMY (2008) 8 NWLR (PT. 1089) 338 or (2008) LPELR (1814) 1 at 40, Tobi, JSC observed as follows:
“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The Courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”
See also ORUGBO vs. UNA (2002) 16 NWLR (PT 792) 175 at 211 and 212.

As I approach the terminus for this judgment, let me iterate that the Respondent is a registered co-operative society and the Appellant is a member of the Respondent Co-operative Society. The transaction between them was in the course of the normal business of the co-operative society. The long title of the Nigerian Co-operative Societies Act stipulates the purpose of the Act to be to provide for the Registration and operation of co-operative societies throughout the Federation and for related purposes. Sections 49 and 50 of the Nigerian Co-operative Societies Act sets out the procedure for the settlement of disputes between the Co-operative Society and its member. There is nothing in the procedure which involves parties participating in the selection or appointment of an arbitrator to settle their dispute. Therefore, the Appellant hankering after setting aside the decision of the lower Court on the ground that he was not afforded the opportunity to join in the appointment of the arbitrators is non sequitur. As already stated, the provisions of Section 55 (2) of the Nigerian Co-operative Societies Act makes inapplicable, the Arbitration and Conciliation Act; so the Appellant cannot rely on the said Act and seek to import its stipulations to apply in the dispute resolution procedure in the dispute between him and the Respondent. In a coda, from the totality of the foregoing, the lower Court rightly held that there is no error of law in the face of the award and that the Arbitration Committee did not misconduct itself. These issue numbers two and three are resolved against the Appellant.

In winding up, let me state that while it is correct that appeals are by way of rehearing, the object of the rehearing is for the party dissatisfied with the decision to show why he thinks the decision is wrong. This can only be accomplished by argument directed at the reasoning and conclusion arrived at in the decision appealed against. A situation where an appellant reproduces and regurgitates the submissions he made before the lower Court on appeal, without relating it to how the decision appealed against is wrong does not serve and in fact defeats the purpose of the rehearing. The Appellant’s brief in this appeal is largely an amalgamation of the written address he filed at the lower Court in opposition to the Respondent’s application for the enforcement of the arbitral award (see pages 40-54 of the Records) and the written address he filed in support of his Originating Summons for the setting aside of the arbitral award (see pages 185-194 of the Records). It is therefore little wonder that the argument in the Appellant’s brief, which merely rehashed the written addresses filed at the lower Court, did not effectively challenge the decision of the lower Court. Indeed, such approach as there has been by the Appellant in this matter does not in any way edify or boost the appellate process. Verbum sap!

The three issues for determination have been resolved against the Appellant. This signposts that there is no merit in the appeal. The appeal therefore fails and it is hereby dismissed. The decision of the lower Court delivered on 5th May, 2020 is hereby affirmed. There shall be costs of N200,000.00 in favour of the Respondent.

HARUNA SIMON TSAMMANI, J.C.A.: I was privileged to read the draft of the judgment delivered by Ugochukwu Anthony Ogakwu, JCA.

The issues raised for determination in this appeal were exhaustively and conclusively considered and resolved with clarity by my learned brother. I agree with the reasoning and conclusion reached by my learned brother. On that note, it is also my view that this appeal has no merit. It therefore fails and is accordingly dismissed. I abide by the consequential reliefs granted in the lead judgment including the order on costs.

HAMMA AKAWU BARKA, J.C.A.: I have been privileged to have read before now the judgment just delivered by my learned brother, U. A. Ogakwu JCA with which I am in agreement with the reasoning and conclusion reached therein.

The appeal being unmeritorious ought to and is hereby dismissed. I endorse all orders made in the lead judgment including that made on costs.

Appearances:

Amanzi F. Amanzi, Esq., with him, Umar M. Galadima, Esq. For Appellant(s)

Chinedu G. Udora, Esq., with him, Qudus Alalafia, Esq. For Respondent(s)