ECOBANK (NIG) LTD & ORS v. AITEO EASTERN E AND P CO. LTD & ANOR
(2022)LCN/16397(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, February 17, 2022
CA/A/1067/2019(R)
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
1. ECOBANK NIGERIA LIMITED 2. FIDELITY BANK PLC 3. FIRST BANK OF NIGERIA LIMITED 4. GUARANTY TRUST BANK PLC S. SHELL WESTERN SUPPLY AND TRADING LIMITED 6. STERLING BANK PLC 7. UNION BANK OF NIGERIA PLC 8. ZENITH BANK PLC 9. CITIBANK INTERNATIONAL PLC 10. FBN TRUSTEES LIMITED 11. ZENITH TRUSTEES LIMITED 12. CITIBANK, N.A., LONDON BRANCH APPELANT(S)
And
1. AITEO EASTERN E AND P COMPANY LIMITED 2. AFRICA FINANCE CORPORATION RESPONDENT(S)
RATIO:
MEANING OF THE WORD FEDERATION
In Section 318 (1) of the 1999 Constitution, the word “Federation” means “the Federal Republic of Nigeria”. ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A
WETHER THE COURT WILL INTERFERE WITH THE CONTRACTUAL TERMS AND AGREEMENT BETWEEN PARTIES.
The Court would always with caution with knowledge of the necessary facts as presented to it interfere with the contractual terms and agreements between parties. It is the duty of this Court to do justice and ensure fairness between all parties before it and will also not act in vain. ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A
POSITION OF LAW WHEN AN APPEAL IS UNDULY LEFT IN THE DOCKET OF THE COURT
My respectful view and humbly in that regard is, if an appeal is being unduly left in the docket of the Court as it would seem the Applicant herein asserts, the Applicant and any other party holding the view that the Appellant is not doing due diligence in respect of the appeal, is entitled under the rules of this Court and as a Minister in the Temple of Justice owes the duty and has ample opportunity to not allow such delay to continue. ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgement): By Motion on Notice dated and filed November 4th, 2021, brought pursuant to Section 15 of the Court of Appeal Act, Section 13 of the Federal High Court Act, Order 4 Rules 6 & 11 of the Court of Appeal Rules, 2016 and under the inherent jurisdiction of this Honourable Court as recognized and preserved by Section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 1st Respondent/Applicant seeks the following orders of the Court:
1. AN ORDER OF INJUNCTION restraining the Appellants and 2nd Respondent by themselves, individually, jointly and/or severally, through their agents, representatives, privies, management and/or professional advisers be they Barristers and/or Solicitors in Nigeria or in England, proxies or any other person(s) acting on their behalf or authority, from giving effect to the ex-parte Interim orders of anti-suit injunction made by the Honourable Mrs. Justice Cockerill DBE, without notice, on the 14th December, 2020 in Claim No. CL- 2020-000808 between Africa Finance Corporation and 8 Ors v. Aiteo Eastern E & P Company Limited initiated at the High Court of Justice, Business and Property Courts of England and Wales, Commercial Court (QBD), by the Appellants and the 2nd Respondent, thirteen months after this appeal was filed by the Appellants on 12th November, 2019 and entered on 19th November, 2019.
2. AN ORDER OF INJUNCTION restraining the Appellants and the 2nd Respondent either by themselves, individually, jointly and/or severally, through their agents, representatives, privies, management and/or professional advisers be they Barristers and/or Solicitors in Nigeria or in England, proxies or any other person(s) acting on their behalf or authority, or howsoever described from continuing with, or taking any step or further steps in the proceedings in Claim No. CL-2020-000808 between Africa Finance Corporation and 8 Ors v. Aiteo Eastern E & P Company Limited initiated by the Appellants and the 2nd Respondent at the High Court of Justice, Business and Property Courts of England and Wales, Commercial Court (QBD), by the Appellants and the 2nd Respondent, thirteen months after this appeal was filed by the Appellants on 12th November, 2019 and entered on 19th November, 2019.
3. AN ORDER OF MANDATORY INJUNCTION compelling the Appellants and the 2nd Respondent either by themselves, individually, jointly and/or severally, through their agents, representatives, privies, management and/or professional advisers be they Barristers and/or Solicitors in Nigeria or in England, proxies or any other person(s) acting on their behalf or authority, or howsoever described to discontinue Claim No. CL-2020-000808 between Africa Finance Corporation and 8 Ors v. Aiteo Eastern E & P Company Limited initiated by the Appellants and the 2nd Respondent at the High Court of Justice, Business and Property Courts of England and Wales, Commercial Court (QBD), by the Appellants and the 2nd Respondent, on the 11th day of December, 2020, before High Court of Justice, Business and Property Courts of England and Wales, Commercial Court (QBD), by the Appellants and the 2nd Respondent, thirteen months after this appeal was filed by the Appellants on 12th November, 2019 and entered on 19th November 2019.
4. AN ORDER OF MANDATORY INJUNCTION compelling the 1st – 4th, and 6th – 8th Appellants and the 2nd Respondent either by themselves individually, jointly and/or severally, through their agents, representatives, privies, management and/or professional advisers be they Barristers and/or Solicitors in Nigeria or in England, proxies or any other person(s) acting on their behalf or authority, or howsoever described to discontinue the arbitration proceedings purportedly commenced at the International Court of Arbitration at the International Chambers of Commerce thirteen months after this appeal was filed here in Nigeria by the 1st – 4th and 6th – 8th Appellants and the 2nd Respondent as Claimant against 1st Respondent/Applicant vide a Notice of Arbitration filed on 11 December, 2020, for the purpose of resolving a purported dispute arising from and or connected with this appeal.
5. AN ORDER OF INJUNCTION restraining the 1st – 4th and 6th – 8th Appellants and the 2nd Respondent either by themselves, individually, jointly and/or severally, through their agents, representatives, employees, nominees, privies, assigns, management and/or professional advisers be they Barristers and/or Solicitors in Nigeria and/or in England or any other country, independent contractors, appointees, proxies or any other person(s) acting on their behalf or authority, or howsoever described in any manner or by any means whatsoever from proceeding with, or continuing with, or taking any step or taking any further step(s) in the arbitration proceedings purportedly commenced at the International Court of Arbitration at the International Chambers of Commerce initiated thirteen months after this appeal has been filed and entered the 1st to 4th and 6th to 8th Appellants/Respondents against 1st Respondent/Applicant vide a Notice of Arbitration filed on 11 December, 2020, for the purpose of commencing the resolution of the purported dispute arising from and or connected with this appeal.
6. AN ORDER OF INJUNCTION restraining the 5th Appellant/Respondent by itself or through its agents, servants, representatives, privies, management and/or professional advisers, be they Solicitors and/or Barristers in Nigeria and/or England proxies or any other person(s) acting on its behalf howsoever described from proceeding with or continuing with, or taking any step or taking any further steps in the arbitration proceedings purportedly commenced at the International Court of Arbitration at the International Chambers of Commerce (ICC) initiated by the 5th Appellant/Respondent against the 1st Respondent/Applicant thirteen months after this appeal has been filed and entered here in Nigeria, vide a Notice of Arbitration filed on 11 December, 2020, for the purpose of commencing the resolution of the purported dispute arising from and or connected with this appeal.
7. AN ORDER OF MANDATORY INJUNCTION compelling the 5th Appellant/Respondent by itself or through its agents, servants, representatives, privies, management and/or professional advisers, be they Solicitors and/or Barristers in Nigeria and/or England proxies or any other person(s) acting on its behalf howsoever described to discontinue the arbitration proceedings purportedly commenced at the International Court of Arbitration at the International Chambers of Commerce (ICC) commenced by the 5th Appellant against the 1st Respondent thirteen months after this appeal has been filed and entered here in Nigeria vide a Notice of Arbitration on 11 December, 2020, for the purpose of commencing the resolution of the purported dispute arising from and or connected with this appeal.
8. AND FOR SUCH FURTHER OR OTHER ORDERS as the Honourable Court may deem fit to make in the circumstances.
The sixteen (16) grounds upon which this application is based are as contained on the motion paper. There are fifteen (15) paragraphs in support of the application of even date and eighteen (18) Exhibits.
The 2nd Respondent did not take any step herein as stated by the learned Counsel that the appearance of the 2nd Respondent was limited to confirmation of service only as it had raised the issue of diplomatic immunity at the Court below and would not want to be seen as waiving it.
The Appellants filed in response to the application of the 1st Respondent, counter-affidavit and further counter-affidavit dated and filed on November 10th, 2021 and November 18th, 2021, respectively.
At the hearing of the application, the learned silk for the 1st Respondent, Chief Wole Olanipekun argued that the sanctity of the Nigerian Court, proceedings and sovereignty are at stake and urged based on the processes filed in support of the application, that they be upheld. That, part of the submission of the other side is that the English Court should not show any recognition to the proceedings before the Nigerian Court and that there is delay in the Court of Appeal due to Covid-19 pandemic. He urged that the application be granted and this Court to denounce and condemn what the Appellants have done.
Mr. Fagbohunlu SAN for the Appellants relied in opposition on the said counter-affidavit and further counter-affidavit. He argued that the Applicant’s application seeks to restrain arbitration and the litigation on-going in England. That, the Applicant failed to show the connection between the proceedings in England and the instant appeal. And that the Applicant got orders from the Court below without full disclosure regarding the arbitration clause contained in the agreement between the parties. He submitted that the instant application is an abuse of the process of the Court and there was no denigration of the Nigerian Court. He urged therefore that the application be dismissed with heavy costs.
In reply, Dr. Ekwuasom for the Applicant/1st Respondent submitted that the order of injunction being sought is not incompetent and that the suit by Tempo Energy Nigeria Ltd, a subsidiary of the Applicant cannot render the instant application an abuse of the process of the Court as the 1st Respondent is not the same with the said Tempo Energy Nigeria Ltd and urged that the application be granted.
RESOLUTION BY THE COURT
I shall briefly state the gist of the facts that culminated into this appeal as garnered from the processes before this Court which are not in dispute before the parties.
As between the parties, in the main, there are two separate facility agreements, in the total sum of US$1,977,680,000 granted to the Applicant by the Appellants and the 2nd Respondent in the main in respect of Oil Mining Lease 29 (OML 29) and the Nembe Creek Trunk Line. The two separate agreements are on shore and the Shell Facility Agreement as Off Shore, both as contained in Exhibits 1 and 2 respectively. Both agreements contain provisions for resolution through arbitration. The exact outstanding amount on the said loan became an issue between the parties therefore, demands for repayment to the Applicant were not met and it became an issue as can be seen in Exhibit 3, being the demand letter from the Appellants to the Applicant.
It is not in dispute that the Applicant on October 31st, 2019 instituted an action against the Appellants and other parties to the facility agreements at the Federal High Court, Abuja in Suit No. FHC/ABJ/CS/1310/2019 in AITEO EASTERN E & P COMPANY LIMITED V. AFRICA FINANCE CORPORATION & ORS (SUIT NO. FHC/1310). It prayed therein for an order of interim injunction. The Court below granted the prayers of the 1st Respondent in its ex-parte application for interim injunction restraining the Appellants (Defendants to the Suit) in the main from acting or taking any step to interfere with the res of the dispute, giving effect to the content of their demand letter or taking any step to enforce any right in respect of alleged indebtedness of the Applicant which was being contested. Aggrieved by the ex-parte orders of injunction, the Appellants approached this Court with their Notice of Appeal dated November 12th, 2019. The Appellants have commenced arbitration proceedings against the Applicant before the International Chamber of Commerce (ICC) on December 11th, 2020, in accordance with the Offshore, Shell Facility Agreement, Arb ref. 25880/AZR/SPN/AB and Arb ref. 25881/AZR in respect of the Onshore Facility Agreement with the 2nd Respondent, 1st to 4th, 6th to 8th and the 10th to 11th Appellants.
There is also subsisting between the parties Anti-Suit interim injunction proceedings against the Applicant granted on December 14th, 2020 by the High Court of England and Wales, Queens Bench Division, from continuing to participate in Suit No. FHC/1310 in Nigeria and initiating any other suit except the ICC arbitration in London on the facility agreements between them. The final hearing therein is fixed for March 22-24 2022.
Tempo Energy Nigeria Ltd, a subsidiary of the Applicant also filed an action against the lenders and arbitrator in Suit FCT/HC/CV/079/2021, TEMPO ENERGY LTD V. AFRICA FINANCE CORPORATION & ORS and interim injunction was granted therein restraining the lenders from participating in the two arbitrations, the proceedings at the Court in England and Suit FHC/1310. Two appeals are pending before this Court which emanated as a result of the injunctive orders in favour of Tempo Energy Ltd.
It is necessary to note that the action by the Applicant against the Appellants/lenders at the High Court of the Federal Capital Territory, FCT, Suit FCT/HC/BW/CV/18/2021, AITEO EASTERN E & P COMPANY LIMITED V. AFC & ORS wherein interim order restraining the lenders from continuing the two arbitration proceedings in London or commencing any other was granted, was discontinued on July 30th, 2021.
Effort has been made to carefully enumerate the foregoing in order to give a comprehensive presentation of the circumstances of this application and the issues involved herein. The instant application now seeks afore stated Seven (7) reliefs in the main.
I have very carefully and painstakingly read through the reliefs being sought by the Applicant and all the processes filed by the parties for and against the instant application, having so done, one is of the considered view and humbly that this application is not grantable.
The application, with respect, fails to take cognizance of the powers of this Court and the need for propriety or otherwise of some orders when made and outside the scope, limits and even the jurisdiction of the Court.
Section 6 (1) of the 1999 Constitution of the Federal Republic of Nigeria states thus:
“The judicial powers of the Federation shall be vested in the Courts to which this section relates being Courts established for the Federation.”
In Section 318 (1) of the 1999 Constitutiion, the word “Federation” means “the Federal Republic of Nigeria”. In other words, the judicial powers of this Court, the Court of Appeal of Nigeria, is for the Federal Republic of Nigeria. In general, it may then amount to going outside its scope or jurisdiction where the Court makes some orders to restrain all the categories of people contained in the reliefs being sought herein by the Applicant within and outside Nigeria, from giving effect to the order made by an English Court, or taking any or further steps in the proceedings on-going at the English Court, or to compel the Appellants and the Respondent to discontinue the claim before the English Court as well as the arbitration proceedings at the International Court of Arbitration by the International Chambers of Commerce, or to restrain them from proceeding or continuing with the arbitration proceedings and to compel them to discontinue the arbitrations.
As regards the reliefs with respect to the arbitration proceedings in reliefs 4, 5, 6 and 7, it would appear in my view and humbly that the Court would then be making different agreement terms for the parties, if the Court is to compel and restrain the Appellants from proceeding or continuing with the arbitration proceedings with respect to what the parties agreed between them in both Facility Agreements, the Onshore and Offshore agreements, without any credible and cogent reasons for such. I am afraid no Court is so empowered.
Calmly reading through all the processes filed before this Court one finds that the two Facility Agreements between the Applicant and the Appellants contain Arbitration clauses. The Appellants’ position is that there has been a breach of the Arbitration clauses when the Applicant instituted Suit FHC/1310 at the High Court in Nigeria. The Appellants are before this Court on appeal against the interim order against them granted at the Court below in the said suit.
I find on page 158 of Exhibit 2 attached to the Appellants’ counter-affidavit in the Facility Agreement between the Applicant and Shell Western Supply and Trading Limited, the Off-Shore Agreement Clause 41.1 that there is Referral to Arbitration which provides thus:
“41.1.1 Subject to Clause 41.2 (Finance parties’ option), any party to this agreement (other than the obligor) may elect to refer for final resolution any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity, or termination or any non-contractual obligations arising out of or in connection with this agreement (a “Dispute”) by arbitration under the Rules of Arbitration of the International Chamber of Commerce (the “ICC”) in force at that time (the “ICC Rules”) which ICC Rules are deemed to be incorporated by reference into this Clause 41.1
41.1.3 The place and seat of arbitration shall be London, England.
In Exhibit 8, the Arbitration Request in respect of the Onshore Agreement between the parties pages 14-15 thereof part V, Clause 41 on Enforcement, I equally find referral to arbitration and Clause 41.1.1 states as follows:
“Subject to Clause 41.2 ( Finance Parties’ option), any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity, or termination or any non-contractual obligations arising out of or in connection with this agreement (a “Dispute”) shall be referred to and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (the “ICC”) in force at that time (the “ICC Rules”) which ICC Rules are deemed to be incorporated by reference into this Clause 41.1
41.1.3 The place and seat of arbitration shall be London, England.”
The Court would always with caution with knowledge of the necessary facts as presented to it interfere with the contractual terms and agreements between parties. It is the duty of this Court to do justice and ensure fairness between all parties before it and will also not act in vain.
Regarding the phrase contained in all the reliefs which is as follows: “thirteen months after this appeal has been filed and entered on December 11th, 2020.”
My respectful view and humbly in that regard is, if an appeal is being unduly left in the docket of the Court as it would seem the Applicant herein asserts, the Applicant and any other party holding the view that the Appellant is not doing due diligence in respect of the appeal, is entitled under the rules of this Court and as a Minister in the Temple of Justice owes the duty and has ample opportunity to not allow such delay to continue. The foregoing is expected herein as the rules of this Court allow the Applicant to do the needful where the Appellants fail to do so in order to save the time and resources of the parties as well as the Court if that be the situation.
In the light of the foregoing and having very carefully considered the reliefs being sought as aforestated and for the reason that this Court would not act in vain, the Applicant’s application is hereby refused.
PETER OLABISI IGE, J.C.A.: I agree.
DANLAMI ZAMA SENCHI, J.C.A.: I had the opportunity of reading in draft the lead ruling of my learned brother, ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA just delivered and I agree with the findings and conclusion reached therein that this application lacks merit, misconceived and it is struck out by me as well.
Appearances:
Mr. Babatunde Fagbohunlu, SAN, with him, Mr. Chukwuka Ikwuazom, SAN, Mrs. Imabong Haastrup and Kehinde Olona For Appellant(s)
Chief Wole Olanipekun, SAN, with him, Dr. Onyechi Ikpeazu, SAN, Mr. Emeka Ozoami, SAN, Mr. Abdul Mohammed, SAN, Mr. N. C. Ozonma Nordis-Elendu, Akintola Makinde and Yewande Meroyi – for 1st Respondent
Mrs. Oluyoke Aliu – for 2nd Respondent For Respondent(s)
