EMERALD ENERGY RESOURCES LTD v. SIGNET ADVISORS LTD (2020)

EMERALD ENERGY RESOURCES LTD v. SIGNET ADVISORS LTD

(2020)LCN/14764(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, November 13, 2020

CA/L/932/2018

RATIO

BRIEF: PURPOSE OF A REPLY BRIEF

The purpose of a reply brief is not for Appellant to have a second bite at the cherry. The purpose of the reply brief is to address points or issues that the Respondent raised which the Appellant did not have the opportunity to address earlier when he filed his brief. It is not to add as an addendum to what the Appellant had earlier argued or to correct an earlier position or make the earlier submission richer or more fanciful. See Oguanuhu & Ors vs. Chiegboka (2013) 2-3 S.C. (Pt. v) 27; Gwede vs. Delta State House of Assembly & Anor (2019) LPELR-47441. PER TOBI, J.C.A.

PRELIMINARY OBJECTION: RATIONALE FOR DEALING WITH PRELIMINARY OBJECTION FIRST

I will deal with both processes starting with the notice of preliminary objection to the appeal. This is because my decision on the preliminary objection will determine whether I will consider the appeal on the merit. If the preliminary objection succeeds, there will be no need to consider the appeal on the merit anymore as that will amount to a complete waste of time and resources. Once a preliminary objection succeeds, venturing into the appeal will be as useless as hoping that a person whose head has been cut off will come back to life. That is not possible. The law on this point is settled beyond dispute and therefore citing cases here may just be an over kill. However to fulfill all righteousness I will cite a case or two, maybe two actually. See Dr. Abdul vs. CPC (2014) 1 NWLR (Pt. 1388) 299; APC vs. Ibrahim Umar & Ors (2019) LPELR-47296. PER TOBI, J.C.A.

PROCESS: NATURE OF THE QUESTION OF THE SERVICE OF PROCESS

The question of the service of process is fundamental as this is what confers jurisdiction on the Court over a person or party. The Court has no jurisdiction over a party who has not been served with the process of Court. See Barnabas Nwadiaro & Ors vs. The President and Members of Customary Court Ossomala (2016) LPELR-40925. In Onwubuya & Ors vs. Ikegbunam (2019) LPELR-49373 (SC), the apex Court held:
“This issue borders on service of Court process on the Appellants as ordered by the lower Court. The issue of service of other Court processes on a Defendant or Respondent is central in any adjudication by Courts and unless and until service of originating processes are effected on a Defendant, the Court seized of the cause or matter cannot assume Jurisdiction and embark upon the hearing of the suit or action. This is pivotal to adjudication as it will afford the party concerned appear to defend the suit or action of the Plaintiff or Claimant. The service of the processes must be effected on the person(s) or parties concerned before the jurisdiction of the Court can be activated or ignited. The requirement of putting the other part on notice underscores a party’s right to be heard or be given an opportunity to be heard, a principle deriving its source from natural justice. Proceedings conducted in a trial without due processes being served on the parties or one of the parties amount to a nullity. The outcome of the proceedings will surely be against the principle of natural justice affecting the competence of the Court which sat over the matter. See SKENCONSULT NIG. LTD. VS.UKEY (1981) 1 SC 6.”
In fact, service of the process gives notice to a party that there is a matter against him in the Court the process emanated from. Without service of the Court process on any of the parties, all proceedings over the matter will come to a nullity. The apex Court held this position clearly in Adegbola vs. Osiyi (2018) 4 NWLR (Pt. 1608) 1 in these words:
“Service of Court process on a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the Court seised of the matter. Clearly, due service of process of Court is a condition sine qua non to the hearing of any suit. Therefore, if there is a failure to serve process where service of process is required, the person affected by the order but not served with the process is entitled ex debitojustitiae to have the order set-aside as a nullity.”
This is why Courts will always insist on ensuring that service is effected on a party in line with the law before they proceed on the hearing of a case. The inability of the bailiff of Court to serve processes has led to so much adjournment and in busy divisions, this could be costly. This is why counsel should not just depend on bailiffs but must follow up effectively on the bailiffs to ensure that service is effected and the proof of service is in the Court’s file before the day of hearing. The service of process is therefore fundamental. What is clear from the facts of this case is that the Respondent was not served with the notice of appeal personally. PER TOBI, J.C.A.

COUNSEL: DUTY OF COUNSEL IN COURT TOWARDS JUSTICE

Learned counsel as ministers in the temple of justice have a responsibility to assist the Court in doing justice and to ensure that all material facts are brought before the Court so that the Court can make an informed decision. Litigation is not a hide and seek, as the motive of the Court and counsel in any case is to ensure justice is done to all parties. See Owolabi & Anor vs. INEC & Ors (2019) LPELR-48918; Adams vs. Umar & Ors (2008) 4 FWLR (Pt. 445) 6727; NEC & Ors vs. Wodi (1989) 2 NWLR (Pt. 104) 444. PER TOBI, J.C.A.
APPEAL: THE LAW ON RELATIONSHIP BETWEEN ISSUES OF DETERMINATION AND THE GROUND OF APPEAL

The law on the relationship between issues for determination and the ground of appeal is clear. The law is that, issues for determination must arise from the ground of appeal. There must be a connection between the issues for determination and the grounds of appeal just as there must be a connection between the grounds of appeal and the judgment or ruling appealed against. See Anyaonu vs. Chukwuma & Ors (2010) LPELR-3792 (CA); Adelekan vs. Ecu-Line NV (2006) 12 NWLR (Pt. 993)33; Ajaokuta Steel Company Ltd vs. Greenbay Investment & Securities Ltd (2019) LPELR-46929 (S.C.).
I agree with the Respondent to the extent that an issue for determination which has no relationship to the grounds of appeal is incompetent and is to be struck out. In Okonobor & Ors vs. Edegbe& Sons Transport Company Limited & Anor (2010) 17 NWLR (Pt. 1221) 181, the apex Court per Onnoghen, J.S.C. held:
“It is settled law that an issue raised in an appeal must relate to the ground(s) of appeal filed. No issue is allowed to be raised outside the ground(s) of appeal. in the instant appeal, it is clear that Issue 2 does not relate to the single ground filed. It is therefore incompetent and liable to be struck out.” PER TOBI, J.C.A.

JURISDICTION: AT WHAT STAGE CAN THE ISSUE OF JURISDICTION BE RAISED

the law is settled and trite that jurisdiction can be raised at anytime and even at the Supreme Court for the first time. Once a party challenges jurisdiction, the law is that it does not have to relate to any ground of appeal. SeeINEC, Anambra State & Anor vs. Ifeanyichukwu Okonkwo (2008) LPELR-4315 (CA); Agwu & Ors vs. Julius Berger Nigeria Plc (2019) LPELR-47625 (SC). PER TOBI, J.C.A.

PROCESS: DUTY OF A PARTY OUT OF TIME IN FILING HIS PROCESS

If a party is out of time in filing his process, he must seek leave of Court to file it out of time and to regularize his process. This is trite position of the law. If the process is filed out of time and leave is not sought that process will be ignored as it is of no moment. No Court will allow any party takes it for granted and a Court must jealously protect its rules. For a party that is out of time, not to seek leave to file its process out of time and to regularize the process earlier filed but insist that a Court should accept the process shows a mark of arrogance on the part of counsel. PER TOBI, J.C.A.

JURISDICTION: IMPORTANCE OF JURISDICTION

The subject of jurisdiction is a critical factor in the Court’s power to entertain a matter before it. A Court would be wasting time in attending to a matter that it has no jurisdiction over. This is because all the proceeding and the decision reached will be a nullity no matter the length of time it took and how brilliant the judgment is as jurisdiction is the life wire of any Court. A human being without breath is dead and therefore as important as breath is to a human being so is jurisdiction to a Court. See APC vs. Uduji (2020) 2 NWLR (Pt. 1790) 541. In Uzor vs. Deawoo Nig Ltd (2019) 10 NWLR (Pt. 1680) 207, the Supreme Court emphatically held on this point thus:
“The issue of jurisdiction is very fundamental and it is the centre pin upon which the entire litigation hinges upon, hence it can be raised at any stage either by the parties or Court. Being a threshold issue, it is fundamental to the exercise by the Court of the powers conferred on it by the Constitution. Consequently, any adjudication done without jurisdiction is a nullity no matter how well conducted.”
In view of the importance and the effect of jurisdiction on a matter, the law is trite to the effect that once it is raised, it should be considered first and in fact it can be raised for the first time in the appellate Court. See Owei vs. Ighiwi (2005) 1 S.C. (Pt. II) 16. PER TOBI, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

EMERALD ENERGY RESOURCES LIMITED APPELANT(S)

And

SIGNET ADVISORS LIMITED RESPONDENT(S)

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the ruling of Hon. Justice Babs O. Kuewumi of the Federal High Court, sitting in Lagos delivered in Suit No. FHC/L/CS/1596/2017 – Signet Advisors Limited vs. Emerald Energy Resources Limited on 18/5/2018. The ruling was based on the preliminary objection of the Appellant (Respondent at the lower Court) filed on 14/12/2017 and contained on pages 199-202 of the records of appeal seeking for an order of the trial Court dismissing the suit of the Respondent (Applicant at the lower Court) for want of jurisdiction. The preliminary objection was predicated on the grounds as contained on page 199 of the record. The grounds are that the affidavit in support of the originating motion of the Respondent is defective as it breached the provision of the Evidence Act 2011, the application is statute barred and that the award sought to be enforced is not properly authenticated or certified. In reaction to the preliminary objection, the Respondent filed a counter affidavit in opposition. After considering the processes filed and the arguments of both parties, the lower Court delivered its

ruling found on pages 395-413 of the record of appeal (pages 1-19 of the ruling). The trial Judge specifically on page 413 of the record held in this wise:
“The Supreme Court has emphasized the need to preserve the sanctity of International Arbitration Agreements. OWNERS OF MV V. NOCS LTD 3 (2003) 15 NWLR (PT. 844) P. 469. It is therefore too early in the day to defeat the recognition and enforcement of this arbitral award on a technical ground of this nature.
On the whole, I hold that this application is lacking in merit. It is hereby dismissed.”

The Appellant dissatisfied with the ruling of the lower Court has thus filed this appeal vide a notice of appeal dated and filed on 28/5/2018 found on pages 414-416 of the record of appeal. The notice of appeal contains three grounds of appeal, which bereft of their particulars are:
GROUND ONE
The Honourable lower Court erred in law by failing to hold that the Affidavit in support of the Originating Motion fundamentally contravened provisions of the Evidence Act and was thus liable to be discountenanced and struck out.
GROUND TWO
The Honourable lower Court erred in law

by applying the provisions of the Evidence Act after holding that the London Court of International Arbitration Rules specifically provided the means of authentication of its award.
GROUND THREE
The Honourable lower Court erred in law by holding that the application for enforcement of the arbitral award of the London Court of International Arbitration was not statute barred under the Arbitration and Conciliation Act.

The Appellant’s brief filed on 18/9/2018 but deemed as properly filed and served on 24/9/2020 was settled by Emonye Adekwu Esq. In the brief, learned counsel raised a sole issue for determination before this Court to wit:
Whether the lower Court was not in error to refuse the challenge to its jurisdiction?

On the sole issue for determination, it was argued by counsel to the Appellant that with respect to the defective affidavit, the lower Court viewed the provisions of Section 115(1), (3) – (4) of the Evidence Act as permissive or liberal. It was further argued by counsel that a reading of the said provision shows that the requirement of the said section is mandatory. Counsel relied on Onochie vs. Odogwu

(2006) 6 NWLR (Pt. 975) 65 @ 89; Ogidi vs. State (2005) 5 NWLR (Pt. 918) 286 @ 327; Ola vs. Unilorin (2014) 15 NWLR (Pt. 1431) 475-476; Nigeria LNG Ltd vs. African Development Insurance Co. Ltd (1995) 8 NWLR (Pt. 416) 677 @ 699-700. Learned Counsel on the strength of the aforementioned cases argued that the person who deposed to the affidavit of the Respondent had no personal knowledge of the facts that occurred before the conduct of the suit but only gleaned same from documents and in doing that failed to state the name of the person(s) who made the documents available to him, nor the time, place and circumstance of the information. It is the further contention of learned counsel that against the holding of the lower Court, Section 113 of the Evidence Act is not available to cure the unreliability of the contents of an affidavit that does not meet the requirements of Section 115. For this position counsel relied on Buhari vs. INEC (2008) 4 NWLR (Pt. 1078) 608; Gundiri vs. Nyako (2014) 2 NWLR (Pt. 1391) 243; Ahmed vs. CBN (2013) 11 NWLR (Pt. 1365) 368.

On the argument that the award to be enforced was not duly authenticated, it is the argument of counsel

that the lower Court in its judgment held that the award had not been authenticated in line with the London Centre of International Arbitration (LCIA) rules but nevertheless proceeded to apply the provisions of the Evidence Act to hold that the award was properly certified under Nigerian law. It is the contention of learned counsel that although Sections 31(1) and 51(1) of the Arbitration and Conciliation Act (ACA) and Article IV (1) of the New York Convention require the authentication or certification of an award before it can be presented for enforcement in local Courts, the ACA and NYC do not expressly provide what amounts to authentication or certification. In a bid to provide the meaning of authentication, counsel relied on the Convention on the Execution of Foreign Arbitral Awards (Geneva, 1927); Nicola Christine Port, Dirk Otto, Patricia Nacimiento and Herbert Kronke, Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention (Kluwer Law International, 2010), p. 145; A Handbook for Judges (International Council for Commercial Arbitration, 2011), II.2.12.; Black’s Law Dictionary and the foreign cases of

O Limited (Cyprus) vs. M Corp (formerly A Inc.) United States & Ors, Supreme Court of Austria, 3 September, 2008, 30b35/08f, XXXIV Y.B COM Arb.409 (2009); A Groutas Co Ltd vs. Pepelasi (1998) 1 AAD 1675. In the light of the foregoing, counsel argued that the requirement of authentication is aimed at ensuring that a local Court can have a neutral basis of ensuring that the signatures which appear on the award are those of the arbitrators. Counsel contended that the proper officers under the LCIA rules (under which the parties submitted to arbitration) to authenticate an award is either the President or Vice President of the LCIA Court or a division of three or five members of the LCIA Court, against the lower Court’s reliance on Sections 104 and 105 of the Evidence Act in holding that the award was duly certified under the Nigerian law as the said sections relate to public officers and public documents which arbitration proceedings and awards do not come under.

On the argument on the application being statute barred, it is the argument of counsel that the basis of the lower Court holding that the application was not statute barred was because it

held that there was no limitation period for the enforcement of arbitral award under the ACA. Learned counsel reiterated his argument that the enforcement of the arbitral award can only be done under the Reciprocal Enforcement of Judgments Ordinance, Cap. 175, Laws of the Federation of Nigeria 1958 (the 1958 Ordinance) which stipulates a limitation of 12 months for the enforcement of arbitral award. Counsel contended that the proceedings at the lower Court were commenced after 12 months of the delivery of the award. In buttressing his point, counsel relied on Section 2 of the 1958 Ordinance on the definition of judgment and submitted that the subject matter of this appeal is an arbitration award made in England, which to that extent comes within the first part of Section 2 of the 1958 Ordinance. Counsel further relied on Sections 66, 100-103 and 104 of the Arbitration Act, 1986 (the statute regulating enforcement of arbitration in England). Finally, Counsel relying on Macaulay vs. RZB of Austria (2003) 12 SC (Pt. II) 22 @ 24-28 submitted that the law in the present circumstance stipulates a limitation period of 12 months from the making of the award and having

elapsed, the Respondent failed to seek the enlargement of time in relation to the enforcement of the award. It is counsel’s final submission that the appeal should be allowed and the entire proceedings of the lower Court be dismissed.

The Respondent filed a preliminary objection to the appeal dated and filed on 30/5/2019. The preliminary objection is brought under several grounds, chief of which is failure to serve the notice of appeal on the Respondent personally, failure of the Appellant to identify the grounds of appeal the issues were distilled from and that the Appellant brief of argument was filed out of time. The preliminary objection is supported by a seven paragraph affidavit urging this Court to strike out the appeal for the grounds stated above.

The Respondent’s brief dated 27/5/2019 but filed 30/5/2019 and deemed on 24/9/2020 was settled by EbeleIfepe Esq., In the Respondent’s brief, counsel argued the preliminary objection in paragraphs 2.16 – 2.45 covering pages 5-11 of the brief.

On the issue of lack of personal service, counsel relied on Order 2 Rule 1(a) of the Court of Appeal Rules 2016 in stating that a

notice of appeal being an originating process which initiates the appeal and activates the appellate jurisdiction of the Court, ought to be served personally and as such, failure to serve the Respondent personally with the notice of appeal renders the appeal incompetent. For this position counsel relied on Madukolu & Ors vs. Nkemdilim (1962) 1 All NLR 583; Chief James Okangi vs. Bayo Fatoba (2012) 7 NWLR (Pt. 1299); Registered Trustees, U.A.M.C vs. Enemuo (2015) All FWLR (Pt. 768) 953 @ 965; Yakubu vs. F.M.B.N Ltd (2015) 11 NWLR (Pt. 1470); Ihedioha vs. Okorocha (2016) 1 NWLR (Pt. 1492) 147 @ 182; Adegbola vs. Osiyi (2018) 4 NWLR (Pt. 1608) 1 @ 12-13; CBN vs. Okojie (2015) All FWLR (Pt. 807) 478 @ 507; UAC vs. Mcfoy (1962) AC 152 @ 160.

On the failure of the Appellant to identify the grounds where the issues were distilled from the notice of appeal, counsel cited Chami vs. UBA (2010) 6 NWLR (Pt. 1191) 474 @ 493; Olowosago vs. Adebanjo (1988) 4 NWLR (Pt. 88) 275 @ 283 in submitting that all issues submitted by parties for the determination by the Court in an appeal must derive from one or more of the grounds contained in the notice of appeal,

failure of which will render the issues incompetent.

On the failure of the Appellant to file its brief within the time allowed by the rules of Court, counsel argued that the Appellant’s brief was filed out of time, the consequence of which is that the brief is incompetent and if the brief is incompetent there is no competent appeal before the Court. He relied on Order 19 Rule 2, 10(1) & (2) of the Court of Appeal Rules, 2016 and the cases of Ifesinachi Mass Transit Limited vs. Ogaga Ovrawah & Anor (2016) LPELR-40147 (CA); Rt. Hon. Chibuike Rotimi Amaechi vs. The Governor of Rivers State & Ors (2017) LPELR-43065 (CA); Mohammed vs. Klargester (Nig) Ltd (1996) 1 NWLR (Pt. 422) 54; Goji vs. Ewete (2001) 15 NWLR (736) 373; Adefemi vs. Abegunde (2004) 15 NWLR (Pt. 895) 1/23; Okechukwu vs. INEC (2014) 17 NWLR (Pt. 1436) 255. Counsel also relied on John vs. Black (No. 1) 1988 1 NWLR (Pt. 72) 648; Jimoh O. Ojugbele vs. Musefin O. Lamidi & Ors (1999) 10 NWLR (Pt. 621) 167 @ 171 to the effect that rules of Court are meant to be complied with. On this note, counsel urged this Court to strike out the appeal. He cited Oke vs. Oke (2006) 4 NWLR

(Pt. 1008) 224 @ 242; Sekoni vs. U.T.C Nig. Plc (2006) All FWLR (Pt. 310) 1620; Odey Oyama & Anor vs. Agbiji Mbeh Agbiji & Ors (Unreported Appeal No. CA/C/NAEA/2851 2011 delivered on 7th January, 2012).

After the above argument on the preliminary objection, Respondent’s counsel advanced arguments on the merit of the appeal wherein he also formulated a sole issue for determination to wit:
Whether the learned trial Judge was right to have dismissed the Appellant’s preliminary objection to the competence of the Originating Motion dated 19th October, 2017.

On the Appellant counsel’s argument on defective affidavit, it is the contention of counsel that the relevant subsection of Section 115 referred to never made demand on the deponent to give details of the persons who availed it the documents beyond the way and manner the deponent put it. Counsel further argued that the position of the Appellant counsel does not represent the position of the law. Counsel cited Miss Nkiru Amobi vs. Mr. Grace O. Nzegwu & Ors (2013) LPELR-21863 (SC); Chigbu vs. Tonimas Nig. Ltd (2006) 9 NWLR (Pt. 984) 198 @ 205 in postulating that no

one should read into the law what is not contained therein. It is the submission of counsel that the Appellant misconstrued the purport of Section 115 (1), (3) and (4) of the Evidence Act and relied on cases rightly determined to support a situation that is non-existent in the extant appeal. It was contended by learned counsel that assuming that there is such requirement; the provision of the source of the document as stated by the deponent is in compliance with the law. He relied on General Muhammed Buhari vs. Independent National Electoral Commission & Ors (2008) LPELR-814 (SC); Akukalia Chike Ofodile SAN OFR vs. Nwamunamma Helen Agusiogo & Ors (2013) LPELR-21226 (CA). It is the submission of counsel that Section 115(4) of the Evidence Act is inapplicable to facts or information gleaned from documents made available to the deponent by the Respondent. Learned counsel submitted further that even if there is a violation of Section 115 of the Evidence Act, it can be cured by Section 113 of the same Act since the affidavit was shown to be sworn before the appropriate officer of Court.

On the issue of authentication, counsel referred to Section 51 of the Arbitration and Conciliation Act

as being the Act that governs the enforcement of foreign arbitral award and that in doing that, it is the requirement of the Act that the Applicant who wants the arbitral award enforced should supply either an original copy of the award authenticated or a duly certified copy of it in support of the application for leave to enforce same. He relied on Imani & Sons Ltd vs. Bil Const. Co. Ltd (1999) 12 NWLR (Pt. 630) 254 @ 261. Counsel also cited Ogu vs. M.T. & M.C.S. Ltd (2011) 8 NWLR (Pt. 1249) 345 @ 375 in stating that the original copy of an arbitral award or a duly certified copy thereof can successfully ground the application for the enforcement of arbitral award. It is the contention of counsel that contrary to the Appellant’s argument that only the president, vice-president, a division of three or five members of the London Court of International Arbitration would be the competent officers to authenticate or certify an award, that Article 26(7) of the LCIA Rules actually empowers the Registrar of the London Court to authenticate LCIA awards. Counsel argued that Article 3 of the LCIA Rules referred to by the

Appellant counsel is inapplicable to this case. He cited Leadership Newspaper Group Ltd vs. Matu (2017) 2 NWLR (Pt. 1548) 15 @ 54 in stating that authenticating an award entails the act of proving that it is genuine and that the authentication or certification of the Registrar of the London Court of International Arbitration, being a recognized and high ranking official of that body, is sufficient for the purpose of Section 51(1)(a) of the ACA. For this position, counsel placed reliance on Ainabebholo vs. E.S.U.W.F.M.P.C.S Ltd (2007) 2 NWLR (Pt. 1017) 33 @ 50 – 51.

It is the submission of counsel that the Appellant having not contested the facts in the affidavit of the Respondent that the Arbitral Tribunal made an award in favour of the Respondent and same was published, its undue insistence on the technicalities of authentication/certification of the award instead of addressing the substance of the matter is contrary to the letter and spirit of Section 51 of the ACA. Learned counsel relied on Enekwe vs. I.M.B (Nig) Ltd (2006) 19 NWLR (Pt. 1013) 146. It was contended by counsel that the copies of the foreign cases cited by the Appellant in arguing the

issue of authentication and certification was not availed to anyone and that the laws applicable are those of the place where the award was made or the place where the award is to be enforced, which in this case, is the Evidence Act in Nigeria. It is the further contention of counsel that the finding of the lower Court remains extant as it has not been set aside. He relied onNigeria National Petroleum Corporation vs. Ezekiel Nwafor & Anor (2017) LPELR-42287 (CA). Furthermore, it was contended by counsel that while ground 2 of the notice of appeal complains against the employment of the provisions of the Evidence Act in determining the certification of the arbitral award, in its brief, it went beyond the grounds to attack the findings of the lower Court with respect to the certification based on Sections 104 and 105 of the Evidence Act. He relied on Muhammad Ruwa vs. Alhaji Umaru Mai Manja (2018) LPELR-44939 (CA).

Finally on the issue of statute barred, it is the argument of counsel that the Appellant’s counsel has failed to accept the reality that the Reciprocal Enforcement of Judgments Ordinance, Cap. 175, Laws of the Federation of Nigeria,

1958 is inapplicable to the instant case as the Originating Motion was brought under the Arbitration and Conciliation Act. Counsel in arguing that there is no limitation period for the enforcement of foreign arbitral awards under the ACA, cited Integrated Data Services Ltd vs. Mr. Olajide O. Adewumi (2013) LPELR-21032 (CA) in stating that where there is a conflict between the provisions of a specific statute and a general statute, the former shall override the latter. Counsel contended that only arbitral awards which have been elevated to the status of judgment of the Court in England after leave has been granted to enforce same as judgment of the Court is within the contemplation of the Reciprocal Enforcement of Judgments Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958 and that only such awards are subject to the limitation period of 12 months. Counsel relied heavily on Tulip (Nig) Ltd vs. N.T.M.S.A.S (2011) 4 NWLR (Pt. 1237) 254 @ 274; Olusegun Adebayo Oni & Anor vs. Dr. John Olukayode Fayemi & Ors (2003) LPELR-20671 (SC). It is the final submission of counsel that the argument of the Appellant that the award comes under judgment as

contemplated under the 1958 Ordinance is erroneous and that even if they are true, they do not relate to this case as the Respondent clearly chose the procedure it wanted to follow. Learned Counsel finally urged this Court to dismiss the appeal.

The Appellant’s counsel in responding to the arguments and submissions contained in the Respondent’s brief, filed a reply to the Respondent’s preliminary objection and its brief on 21/10/2019 but deemed on 24/9/2020.

On the issue of lack of personal service, it is the contention of Appellant’s counsel that the service of notice of appeal must not be personally done on the Respondent and that it is sufficient that it is served in accordance with the provisions of Order 2 of the Court of Appeal Rules, 2016. In backing his argument, counsel referred this Court to page 2 of the record wherein the Respondent provided its address for service to be that of its counsel, and that the affidavit of the bailiff who served the notice of appeal has not been challenged in any manner. He commended the case of FBN Plc vs. TSA Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247 @ 309 to the Court.

On the argument of the Respondent stating that the failure of the Appellant to identify the grounds issues were distilled from, Appellant’s counsel submitted that the Respondent’s understanding appears to be that the Appellant must specifically state and indicate the ground of appeal from which an issue is distilled. Counsel argued that while this may be a good practice, it is not the law and the cases cited by the Respondent are in support of their submission.

For the Respondent’s argument that the Appellant’s brief was filed outside the prescribed time, Appellant’s counsel argued that the Respondent has not stated the date of receipt of the record of appeal by the Appellant and that by Order 19 Rule 2, the date is important in deciding when time starts to run, in the absence of which, the Court cannot speculate. It is further submitted that on 18/9/2018, the Appellant filed a motion for extension of time which the Respondent did not make reference to.

On Appellant’s reply on points of law to the Respondent’s brief of argument, to my mind, I see same as Appellant rehashing what was stated in his Appellant brief and

as such I will not be going into it. The purpose of a reply brief is not for Appellant to have a second bite at the cherry. The purpose of the reply brief is to address points or issues that the Respondent raised which the Appellant did not have the opportunity to address earlier when he filed his brief. It is not to add as an addendum to what the Appellant had earlier argued or to correct an earlier position or make the earlier submission richer or more fanciful. See Oguanuhu & Ors vs. Chiegboka (2013) 2-3 S.C. (Pt. v) 27; Gwede vs. Delta State House of Assembly & Anor (2019) LPELR-47441.

At this stage before this Court, are two processes to address. They are; the appeal predicated on the notice of appeal filed on 28/2/2018 found on pages 414-416 of the record filed by the Appellant and the notice of preliminary objection to the appeal filed on 30/5/19 by the Respondent. I will deal with both processes starting with the notice of preliminary objection to the appeal. This is because my decision on the preliminary objection will determine whether I will consider the appeal on the merit. If the preliminary objection succeeds, there will be no need

to consider the appeal on the merit anymore as that will amount to a complete waste of time and resources. Once a preliminary objection succeeds, venturing into the appeal will be as useless as hoping that a person whose head has been cut off will come back to life. That is not possible. The law on this point is settled beyond dispute and therefore citing cases here may just be an over kill. However to fulfill all righteousness I will cite a case or two, maybe two actually. See Dr. Abdul vs. CPC (2014) 1 NWLR (Pt. 1388) 299; APC vs. Ibrahim Umar & Ors (2019) LPELR-47296.

The preliminary objection as mentioned above is predicated on three major grounds namely failure to serve the notice of appeal on the Respondent personally, failure of the Appellant to identify the grounds of appeal the issues were distilled from and that the Appellant’s brief of argument was filed out of time. I will address them one after the other. I will start with the failure of the Appellant to personally serve the Respondent with the notice of appeal. The Respondent argued that it was not personally served with the notice of appeal and as such the notice should be

struck out and consequently the appeal should be struck out. Learned Counsel relied on Order 2 of the Rules of this Court. The point must be made for starters that once a process is filed, service of same is mostly governed by the rules of the Court in which the process was filed and the matter will be heard. In this instance, the Court of Appeal Rules 2016 will be the applicable rule of Court. Order 2 (1)(a) of the Court of Appeal Rules makes a general provision for the personal service of the originating process of Court. The question of the service of process is fundamental as this is what confers jurisdiction on the Court over a person or party. The Court has no jurisdiction over a party who has not been served with the process of Court. See Barnabas Nwadiaro & Ors vs. The President and Members of Customary Court Ossomala (2016) LPELR-40925. In Onwubuya & Ors vs. Ikegbunam (2019) LPELR-49373 (SC), the apex Court held:
“This issue borders on service of Court process on the Appellants as ordered by the lower Court. The issue of service of other Court processes on a Defendant or Respondent is central in any adjudication by Courts and unless

and until service of originating processes are effected on a Defendant, the Court seized of the cause or matter cannot assume Jurisdiction and embark upon the hearing of the suit or action. This is pivotal to adjudication as it will afford the party concerned appear to defend the suit or action of the Plaintiff or Claimant. The service of the processes must be effected on the person(s) or parties concerned before the jurisdiction of the Court can be activated or ignited. The requirement of putting the other part on notice underscores a party’s right to be heard or be given an opportunity to be heard, a principle deriving its source from natural justice. Proceedings conducted in a trial without due processes being served on the parties or one of the parties amount to a nullity. The outcome of the proceedings will surely be against the principle of natural justice affecting the competence of the Court which sat over the matter. See SKENCONSULT NIG. LTD. VS.UKEY (1981) 1 SC 6.”
In fact, service of the process gives notice to a party that there is a matter against him in the Court the process emanated from. Without service of the Court process on any

of the parties, all proceedings over the matter will come to a nullity. The apex Court held this position clearly in Adegbola vs. Osiyi (2018) 4 NWLR (Pt. 1608) 1 in these words:
“Service of Court process on a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the Court seised of the matter. Clearly, due service of process of Court is a condition sine qua non to the hearing of any suit. Therefore, if there is a failure to serve process where service of process is required, the person affected by the order but not served with the process is entitled ex debitojustitiae to have the order set-aside as a nullity.”
This is why Courts will always insist on ensuring that service is effected on a party in line with the law before they proceed on the hearing of a case. The inability of the bailiff of Court to serve processes has led to so much adjournment and in busy divisions, this could be costly. This is why counsel should not just depend on bailiffs but must follow up effectively on the bailiffs to ensure that service is effected and the proof of service is in the Court’s file before the day of

hearing. The service of process is therefore fundamental. What is clear from the facts of this case is that the Respondent was not served with the notice of appeal personally. That is not in dispute. Could this mean that the preliminary objection will succeed on that ground? Not so fast, there is a game changer in the proviso to Order 2(1)(a) that excuses personal service in some instances. By the proviso, this Court will not insist on personal service and indeed the Respondent cannot insist on personal service if “the Court is satisfied that the notice of appeal has in fact been communicated to the Respondent.” In a situation such as this, where there was no personal service of the notice of appeal, the Court will not decline jurisdiction or the Court will not allow any objection to the hearing of the appeal on that ground once the Court is satisfied that the notice of appeal has been communicated to the Respondent.
Learned counsel as ministers in the temple of justice have a responsibility to assist the Court in doing justice and to ensure that all material facts are brought before the Court so that the Court can make an informed

decision. Litigation is not a hide and seek, as the motive of the Court and counsel in any case is to ensure justice is done to all parties. See Owolabi & Anor vs. INEC & Ors (2019) LPELR-48918; Adams vs. Umar & Ors (2008) 4 FWLR (Pt. 445) 6727; NEC & Ors vs. Wodi (1989) 2 NWLR (Pt. 104) 444.
I am going all this length to make a point in agreeing with the Appellant that this head of preliminary objection cannot stand if we look at Order 2(3) of the Court of Appeal Rules. I will reproduce the order for ease of reference: “Where in any proceeding in the Court below a party has given an address for service, notice of appeal from any decision made under such proceeding may be served on such party at such address for service and notice of any application preparatory or incidental to any such appeal, may be served in like manner at any time before the date on which the Respondent gives notice of his address for service in accordance with the immediate following Rule.”
By the above provision, if the Respondent has earlier given address for service, once the process is served in that address, even if it is not served on the

Respondent personally, it will be good service. A community reading of Order 2 (1)(a) & (3) of the Court of Appeal Rules, it is clear that the general rule of personal service has exceptions. It means therefore that even if the Respondent was not personally served, the service will be acceptable by the Court if the notice of appeal has been communicated to him which the Court is satisfied with. What is more, Sub-rule 3 provides that if in a process, the Respondent has placed an address for service particularly his counsel’s address, service to that address is good service. It is quite interesting that the Respondent who is the Applicant at the lower Court in the matter on appeal in the originating motion filed on 19/10/2017 by his counsel Emeka Etiaba SAN put as address the office of his counsel. This is on pages 1-2 of the records. Service on this address is sufficient service on the Respondent. On this premise the first ground of preliminary objection fails.

The second ground of the objection is that the issue raised for determination does not arise from any ground of appeal and therefore the sole issue raised for determination is

incompetent. Is this really true? The law on the relationship between issues for determination and the ground of appeal is clear. The law is that, issues for determination must arise from the ground of appeal. There must be a connection between the issues for determination and the grounds of appeal just as there must be a connection between the grounds of appeal and the judgment or ruling appealed against. See Anyaonu vs. Chukwuma & Ors (2010) LPELR-3792 (CA); Adelekan vs. Ecu-Line NV (2006) 12 NWLR (Pt. 993)33; Ajaokuta Steel Company Ltd vs. Greenbay Investment & Securities Ltd (2019) LPELR-46929 (S.C.).
I agree with the Respondent to the extent that an issue for determination which has no relationship to the grounds of appeal is incompetent and is to be struck out. In Okonobor & Ors vs. Edegbe& Sons Transport Company Limited & Anor (2010) 17 NWLR (Pt. 1221) 181, the apex Court per Onnoghen, J.S.C. held:
“It is settled law that an issue raised in an appeal must relate to the ground(s) of appeal filed. No issue is allowed to be raised outside the ground(s) of appeal. in the instant appeal, it is clear that Issue 2 does not relate

to the single ground filed. It is therefore incompetent and liable to be struck out.”

I have stated the ground of appeal earlier in this judgment, I therefore do not deem it fit to repeat them here. The summary of the ground of appeal is that the lower Court was wrong to assume jurisdiction in the matter by not holding as requested by the Appellant that the action was statute barred and that the appeal is incompetent. That is the substance of the appeal. The issue the Appellant raised for determination is “whether the lower Court was not in error to refuse the challenge to its jurisdiction.” I do not see how this issue on jurisdiction is different or a total rebel to the grounds of appeal. Maybe learned counsel to the Respondent is seeing what I am not seeing or I am seeing what he is not seeing. It is appropriate at this stage to reproduce the Respondent’s issue for determination. This is his own issue for determination to wit:
Whether the learned trial Judge was right to have dismissed the Appellant’s preliminary objection to the competence of the Originating Motion dated 19th October, 2017.

I really do not see the difference in substance between the issue formulated by the Appellant and that formulated by the Respondent apart from the language used. They are all dealing with the main issue of jurisdiction. Whether the cup is half full or half empty, it is the same content depending where you are looking from. That apart the law is settled and trite that jurisdiction can be raised at anytime and even at the Supreme Court for the first time. Once a party challenges jurisdiction, the law is that it does not have to relate to any ground of appeal. SeeINEC, Anambra State & Anor vs. Ifeanyichukwu Okonkwo (2008) LPELR-4315 (CA); Agwu & Ors vs. Julius Berger Nigeria Plc (2019) LPELR-47625 (SC). The preliminary objection fails again on this point.

The last point of the preliminary objection is that the Respondent submitted that the Appellant brief was filed out of time. The position of the law is clear on this. If a party is out of time in filing his process, he must seek leave of Court to file it out of time and to regularize his process. This is trite position of the law. If the process is filed out of time and leave is not sought that process will be ignored

as it is of no moment. No Court will allow any party takes it for granted and a Court must jealously protect its rules. For a party that is out of time, not to seek leave to file its process out of time and to regularize the process earlier filed but insist that a Court should accept the process shows a mark of arrogance on the part of counsel. Specifically addressing the processes in this appeal and looking at the record of appeal and the case file, the Respondents position is completely wrong as it does not reflect the factual situation. The Appellant filed a motion for extension of time on 18/9/18 which had a prayer to deem the Appellant’s brief filed on same day as properly filed and served. This was moved and granted on 24/9/2020. The preliminary objection also fails on this ground. On the whole, the Respondent preliminary objection fails and it is dismissed with cost of N100,000 in favour of the Appellant against the Respondent.

I will now turn to the main appeal. Both parties in their brief formulated a sole issue for determination. The issues are similar but for the language used in couching them. The substance of the issue is the same.

I will however adopt the issue formulated by the Respondent as the issue for determination in this appeal. I will reproduce it here again for ease of reference:
Whether the learned trial Judge was right to have dismissed the Appellant’s preliminary objection to the competence of the Originating Motion dated 19th October, 2017.

The parties entered into a transaction wherein the Appellant retained the services of the Respondent as financial advisor on agreed terms. In the second letter agreement, an arbitration clause was inserted wherein both parties agreed that should a dispute arise, arbitration should be done at the London Court of International Arbitration according to the rules of LCIA. Dispute arose and arbitration was done as agreed. The Arbitral Tribunal made an arbitration award in favour of the Respondent on 31/6/2016. The Appellant did not want to pay the arbitral award. In the circumstance, the Respondent in its desire to enforce the arbitral award in Nigeria filed an originating motion on 19/10/2017 for an order recognizing the award as binding and seeking for leave to enforce same as judgment or order of Court. This was filed at the

Federal High Court. The Appellant filed a preliminary objection to the originating motion challenging the jurisdiction of the Court to hear the originating motion. The premise upon which the preliminary objection was filed is that, firstly the originating motion is incompetent as the affidavit in support of the originating motion is defective. Secondly, that the award sought to be enforced is not duly authenticated in line with Article 3 (1) of the LCIA Rules and thirdly that the application, that is, the originating motion is statute barred as it was not brought within 12 months as required by Section 2 of the Reciprocal Enforcement of Judgment Ordinance, Cap 175, Laws of the Federation of Nigeria, 1958 (referred to in this judgment as the ordinance of 1958). The lower Court after considering all the documents before it, the affidavit evidence and the submission of counsel held in favour of the Respondent dismissing the preliminary objection of the Appellant. Consequent upon that the Appellant filed this appeal on 28/5/18 found on pages on 414-416 of the records. In this appeal, the main and simple issue for determination is whether the lower Court was right

in its ruling. The Appellant naturally is emphatic that the lower Court was wrong, the Respondent also naturally with the same strength and vigor submitted that the lower Court was right. The Appellant is urging me to set aside the ruling of the lower Court while the Respondent is asking me to affirm the decision of the lower Court. This Court cannot satisfy both parties as their demands and desire are miles apart. At the end of this judgment, one party will be happy while the other will be unhappy. The duty of a Court is not to make litigants happy but to do justice within the context of the law. This is what I am going to do now as I address the substance of this appeal.

The matter in the lower Court leading to this appeal was commenced by the Respondent before this Court seeking for an order for the lower Court to recognize and enforce an arbitral award made by LCIA in its favour against the Appellant in this appeal. The Appellant in this Court as Respondent in the lower Court filed a preliminary objection challenging the jurisdiction of the lower Court to entertain the originating motion. The specific prayer in the notice of preliminary objection was

to dismiss the suit for want of jurisdiction. The grounds of the notice of preliminary objection was that the supporting paragraphs of the affidavit are defective since they are in breach of the provision of the Evidence Act, the originating motion is statute barred and that the award was not properly authenticated and certified.

In considering this appeal, I must be conscious of the fact that I am exercising appellate jurisdiction and not original jurisdiction in this appeal. It is important to make this point so that I do not go to the whole gamut of the subject of jurisdiction and especially on issues that will preempt the decision of any Court on matters that do not affect jurisdiction but rather on the main application as to whether the originating motion can succeed.

of any Court. A human being without breath is dead and therefore as important as breath is to a human being so is jurisdiction to a Court. See APC vs. Uduji (2020) 2 NWLR (Pt. 1790) 541. In Uzor vs. Deawoo Nig Ltd (2019) 10 NWLR (Pt. 1680) 207, the Supreme Court emphatically held on this point thus:
“The issue of jurisdiction is very fundamental and it is the centre pin upon which the entire litigation hinges upon, hence it can be raised at any stage either by the parties or Court. Being a threshold issue, it is fundamental to the exercise by the Court of the powers conferred on it by the Constitution. Consequently, any adjudication done without jurisdiction is a nullity no matter how well conducted.”
In view of the importance and the effect of jurisdiction on a matter, the law is trite to the effect that once it is raised, it should be considered first and in fact it can be raised for the first time in the appellate Court. See Owei vs. Ighiwi (2005) 1 S.C. (Pt. II) 16.

The subject of jurisdiction should be responsively raised by counsel and should not be used to buy time and delay proceedings. Once it is raised therefore, no Court

should feel intimidated and shy away from assuming jurisdiction if the law confers jurisdiction on it. Let me quickly add that a Court should not assume jurisdiction if it does not have jurisdiction as no Court should fish for jurisdiction. There is really no need to do that. Both counsel and Court should and would treat the issue of jurisdiction with all amount of seriousness. It is not a child’s play to challenge jurisdiction of a Court. It is serious business and it should be so treated. This is a general comment.

Let me now address the merit of the appeal. As earlier mentioned, the Appellant challenge of the jurisdiction of the lower Court is based on 3 grounds. Ground 1 and 3 in my opinion deal more with and challenges the evidential value of the affidavit in support and the arbitral award which according to the Appellant was not authenticated in line with the Rules of LCIA. Can this be true? I am really wondering how matters of evidential value have become grounds of challenging jurisdiction of a Court.

There are different points upon which jurisdiction can be challenged but I am not aware that jurisdiction can be challenged on the

appropriateness or otherwise of evidence. The issue of admissibility of evidence cannot be an issue to challenge of jurisdiction. The issue of evidential value to be placed on an oral or documentary evidence is not an issue that deals with jurisdiction. By challenging of jurisdiction, the message sent loud and clear is that the Court has no right and power to consider any aspect of the case. This means therefore, particularly when jurisdiction is challenged on grounds of statute bar, despite the good cause of action a party has, the Court cannot look at it as his right is short-circuited. SeeSulgrave Holdings Inc & Ors vs.FGN & Ors(2012) 17 NWLR (Pt.1327) 309.
The point I am laboring to make here is that grounds 1 and 3 in the preliminary objection, namely that some paragraphs of the affidavit in support of the preliminary objection are offensive to the provision of the Evidence Act and that the award sought to be enforced is not properly authenticated or certified will not affect the jurisdiction of the lower Court. These are issues which at the hearing of the application, the lower Court can consider. To buttress this point, a little excursion to

one or two cases will not be out of place. In Ejiofodomi vs. Okonkwo (1982) 11 S.C. 14, the Supreme Court held:
“A challenge to the jurisdiction of a Court could be based on varied and diverse points, for example,
(a) That the judge was not properly appointed;
(b) That the matter in issue is outside the limits of the territorial jurisdiction of the Court;
(c) That the claim is above the justificiable power of the adjudicating Court;
(d) That the period allowed the Court to embark upon the hearing of the case has expired, etc.”
Jurisdiction cannot be challenged on ground of evidential value of any piece of evidence. This is taking the issue of jurisdiction too far. Once a statute gives jurisdiction to a Court, the Court will exercise jurisdiction. See Seamarine Int’l Ltd vs. Ayetoro Bay Agency (2016) 4 NWLR (Pt. 1502) 313. The Appellant has not challenged the jurisdiction of the Court in grounds (1) & (3) on Constitution of the Court, territorial limit, on grounds of claim but on grounds of evidence. I have no difficulty in dismissing grounds (1) & (3) as ground of challenging the jurisdiction of the lower Court.

I will therefore not fall for the temptation of delving into those grounds to decide one way or the other for any of the parties as in my opinion they are not in the front burner of the preliminary objection in law. At this stage, I shall not delve into matters which may be prejudicial to the issues that will affect the merit of the case.

I will now deal with ground 2 which is the real issue of jurisdiction. The Appellant challenged the originating motion on the grounds that in line with Section 2 of the Reciprocal Enforcement of Judgment Ordinance, Cap 175, Laws of the Federation of Nigeria, (hereinafter referred to as the Ordinance of 1958) which according to counsel is the applicable law, the Respondent should have filed the motion within 12 months of the award, having not done so, the action is statute barred. The Respondent on the other hand is of the view that Section 2 of the Ordinance of 1958 is not applicable but rather The Arbitration and Conciliation Act (ACA) pursuant to which the application is made. It is the position of counsel to the Respondent that since ACA does not have a period of limitation, the action is not statute

barred. The main legal issue for determination here therefore is which of the two laws are applicable in this instance. If I hold that it is the Ordinance of 1958, the appeal will succeed and be allowed but if I hold that it is the ACA then the appeal will fail and be dismissed. The Respondent has argued emphatically that the Ordinance of 1958 will only apply to awards which have been elevated to the status of a judgment in the place the award was given, in this instance England. As to when an award will have the status of a judgment, Learned Counsel to the Respondent referred to Tulip (Nig) Ltd vs. N.T.M.S.A.S. (supra). On the authority of the Tulip case, an award from England such as the award sought to be recognized by the originating motion, to be elevated to the status of a judgment, the party seeking for recognition and enforcement of the award must file an application before the Court in England for leave to enforce the arbitral award in the same manner as a judgment of the Court in England and when such an application is granted it becomes a judgment of the English High Court. It is only then that the Ordinance of 1958 will be applicable. I agree with

this position. There is no evidence before the lower Court or anywhere in the record of appeal that the award has been elevated to the status of a judgment having met the procedural requirement.
Before I really consider which of the laws is applicable, it is appropriate at this stage to reproduce the relevant provisions of the laws. Section 2 of the Ordinance of 1958 which the Appellant is using as a limitation law provides thus:
“Where a judgment has been obtained in the High Court in England or Ireland or in the Court or session in Scotland, the judgment creditor may apply to a High Court at any time within twelve months after the date of the judgment or such longer period as may be allowed by the Court to have the judgment registered in the Court and on any such application the Court may, if in all the circumstances of the case thinks it is just and convenient that the judgment should be enforced in Nigeria, and subject to the provisions of this ordinance, order the judgment to be registered accordingly.”
This is the provision the Appellant is referring to in its case at the lower Court and this appeal that the application for the

recognition and enforcement of the award is statute barred as the period within which the application should be made is 12 months. The award was given in England on 30/1/16 while the application was commenced on 15/10/17. The application going by the Ordinance of 1958 ought to have been filed on 31/1/17. The application was however filed on 15/10/17 which is about 10 months later. The provision of the law is not open to double interpretation as the application for the enforcement of the judgment of an English Court in Nigeria has to be filed within 12 months.
If this law is applicable then the application is statute barred and not withstanding what is involved or at stake, the appeal will be allowed and the application dismissed. The above section referred to the judgment of the Court of England. If therefore what the application covers is not a judgment, the section will not apply. The process sought to be recognized and enforced is an arbitral award from LCIA London. Arbitral awards have binding force for all intent and purpose on the parties who choose arbitration instead of going to Court to settle their dispute. In RasPalgazi Construction Company Limited vs. FCDA

(2001)LPELR-2941 (SC), the apex Court held:
“A valid award on a voluntary reference no doubt operates between the parties as a final and conclusive judgment upon all matters referred. It should be remembered that when parties decide to take their matter to arbitration, they are simply opting for an alternative mode of dispute resolution. It must be emphasized that the parties have a choice to either go to Court and have their dispute determined by the Court or refer the matter in dispute to an arbitrator for resolution. Reference to arbitration, the mode adopted by the parties in the present case is consistent with the agreement executed by both parties. Arbitration as an alternative mode of dispute resolution has for decades been given legal backing. See Arbitration and Conciliation Act of 1988. See: also the cases of Commerce Assurance Ltd v. Alhaji Buraimoh Alli (1992) 3 NWLR (Pt. 232) 710; KSUDB v. Fanz Construction Co Ltd (1990) 4 NWLR (Pt. 142) 1.
An arbitrator’s award under the provisions of Section 4(2) of the Act when filed in Court should for all purposes have the force and effect as a judgment.”

An arbitral award once published operates as a final and conclusive judgment. In fact, it constitutes a final judgment over the matter referred to the arbitral Panel. See The United Nigeria Insurance Company Limited vs. Leandro Stocco (1973) ANLR 135. Another case on this point will not be out of place, that is the case of NITEL Ltd vs. Okeke (2017) 9 NWLR (Pt. 1571), where the Supreme Court in stating the status of an arbitral award held: “Arbitration proceedings are sui generis. An application to set aside an arbitral award is not in the nature of an appeal against the award. An arbitral award is regarded as a final and conclusive judgment on all matters referred, and the Courts are enjoined, as far as possible, to uphold and enforce arbitral awards, having regard to the fact that it is a mode of dispute resolution voluntarily agreed upon by the parties.”
There is no doubt that an arbitral award has the force of a judgment. It has a binding force and operates as a judgment. Without undermining the binding force of an arbitral award, the fact still remains that an arbitral award is conclusive, final and operates as a judgment but it is not a

judgment in the strict sense of a judgment. There is a difference between an arbitral award and a judgment of a Court. To show that an arbitral award is not a judgment in the strict legal sense of the word judgment, particularly as it relates to this case, for an arbitral award to be elevated to the status of a judgment of the Court of England, the party relying on that award must follow the procedure I had stated above, which is stated in the case ofTulip vs. N.T.M.S.A.S. (supra) at pages 275-276 thus:
“An arbitral award made in England can only be elevated to the status of a judgment if the party in whose favour the award is made had applied before the English High Court for leave to enforce the arbitral award in the same manner as a judgment and once the High Court in England grants such an order, it then becomes a judgment of the English High Court. It is only then that the Reciprocal Enforcement of Judgments Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958 and Foreign Judgments (Reciprocal Enforcement) Act will apply. In the instant case, having regards to the fact that the arbitral award had not become enforceable as a judgment of

Court, the provisions of the Reciprocal Enforcement of Judgments Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958 and Foreign Judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria,1990 were not applicable to this case.”
This procedure is not needed when what is sought to be enforced is a judgment. This shows that although an arbitral award operates as a judgment, there is still a difference between an arbitral award and a judgment. This point can further be emphasized when we look at the definition of judgment under the ordinance of 1958. The said law defined a judgment in these words:
“Judgment means a judgment or order given or made by a Court in any civil proceedings, whether before or after the commencement of this ordinance whereby any sum of money is made payable, and includes an award in proceedings or an arbitration if the award has, in pursuance of the law in force in the place where it is made, becomes enforceable in the same manner as a judgment given by the Court in that place…”
The award will be elevated to a judgment when the award pursuant to the law in force in England

becomes enforceable in the same manner as a judgment of England. For an arbitral award to be enforced as a judgment in England, the party seeking to enforce it as a judgment must seek leave to be so enforced and it is when such an order is granted that it can be enforced as a judgment. In the absence of such an order from the Court in England, the award remains an award which has a binding force but is not equated as a judgment. This distinction is important and relevant to this appeal. This is because the provision of Section 2 of the Ordinance of 1958 only covers judgment and orders but not arbitral awards except for awards that have been elevated to the status of judgment having satisfied the condition stated above. The implication of all this as rightly submitted by the Respondent’s counsel is that the 12 months limitation period within which the Respondent should have brought the Originating motion for the recognition and enforcement of the arbitral award of LCIA will not apply to the matter affected by this appeal. What was before the lower Court was therefore an award and not a judgment of the Court of England. In the circumstance, the Ordinance

of 1958 will not apply to the facts of this appeal.
To buttress further the above point, I find great inspiration in the Tulip case I referred to earlier in this judgment. In that case, His Lordship, Mshelia, J.C.A. at page 282 categorically stated how an arbitral award can be elevated to the status of a judgment so as to enjoy the limitation stated in Section 2 of the Ordinance. His Lordship held:
“For an arbitral award to fall within the purview of Section 2(1) of the Foreign Judgments (Reciprocal Enforcement) Act, same must have been elevated to the status of a judgment of the High Court. Having regards to the facts of the instant case, the respondent must have sought and obtained leave of the High Court of England to enforce the award in the same manner as judgment of Court.”
In the circumstance, since there is no evidence that the Respondent applied and got an order to elevate the award to a judgment of the English Court, it stands to reason that the arbitral award remains an award and not a judgment. I must state clearly at the risk of sounding verbose but for emphasis sake make the point that the fact that the award is not a

judgment in the strict legal sense does not make it any less binding particularly when both parties submitted to arbitration by appointing their respective arbitrators.
The application upon which the Appellant is challenging the jurisdiction of the lower Court to entertain was brought under the ACA. The prayer is for the lower Court to recognize and enforce the arbitral award from LCIA. I hope I will not be going too far but suffice to say that Section 51 (1) of ACA makes provision for the binding nature of arbitral awards irrespective of where they were made. His Lordship Mshelia, J.C.A. said this much in the earlier referred case of Tulip in these words:
“By the provision of Section 51(1) of the Arbitration and Conciliation Act, Cap.19, Laws of the Federation of Nigeria, 1990, an arbitral award shall irrespective of the country in which it was made, be recognised as binding subject to the provisions of the Act, and shall upon application in writing to the Court, be enforced by the Court.”
On issues involving arbitration and conciliation in Nigeria the applicable law is ACA. The provision of ACA regulates everything about arbitration

and arbitral award. Sections 31 (1) and 51 (1) of ACA states that arbitral award shall be recognized as binding and be enforced in Nigeria. I reproduce the provisions of the above sections. I will start with Section 31 (1) & (2) of ACA. That section provides:
“(1) An arbitral award shall be recognised as binding, and subject to this section and Section 32 of this Act, shall, upon application in writing to the Court, be enforced by the Court.
(2) 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;”
Section 51 (1) of ACA provides thus:
“51. (1) An arbitral award shall, irrespective of the country in which it is made, be recognised as binding and subject to this section and Section 32 of this Act, shall, upon application in writing to the Court, be enforced by the Court.
(2) 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;

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(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 English language.”
The application of the Respondent at the lower Court was for the recognition and enforcement of the arbitral award from LCIA, London. This is found on pages 1 and 2 of the record of appeal. The procedure and the application is brought within the provisions of ACA as stated above. Jurisdiction is conferred by statute. See: Onyenobi vs. Amadi & Ors (2013) LPELR-2204 (CA); Chief Ehuwa vs. Ondo State Independent Electoral Commission NSCQR Vol. 28 2006 page 545. The ACA gives the power to the Respondent to make the application and the lower Court power to entertain the application. I really cannot see anything to have disqualified the lower Court from exercising jurisdiction. In fact the application as shown from the facts of the originating motion is brought under ACA and the relevant rules of the Federal High Court. I agree entirely with the Respondent that the relevant law under which the application is made and will be

decided is not Section 2 of the Ordinance but rather Sections 31 and 51 of ACA. In the circumstance, the question to answer is whether under the ACA, there is a limitation period within which the Respondent can apply for the recognition and enforcement of the arbitral award. I have gone through the ACA, I cannot seem to see my way clear to agree with the Appellant. I will rather agree with the Respondent that there is no provision for limitation period in ACA.
The limitation period not made part of ACA cannot apply to the application before the lower Court in this matter. The obvious conclusion to reach in this case is that the application is not statute barred. I agree with the lower Court. I therefore affirm the ruling of Hon. Justice Babs O. Kuewumi of the Federal High Court delivered on 18/5/2018 in the matter of Signet Advisors Limited vs. Emerald Energy Resources Limited. This appeal fails and it is dismissed.

I award the sum of N500,000 (Five Hundred Thousand Naira) in favour of the Respondent against the Appellant. I had earlier dismissed the Respondents preliminary objection with N100,000 cost.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I concur in the lucid judgment prepared by my learned brother, EBIOWEI TOBI, J.C.A

BALKISU BELLO ALIYU, J.C.A.: My learned brother TOBI EBIOWEI, J.C.A. obliged me with the draft of the lead Judgment just delivered. I entirely agree with him that the Preliminary Objection lacks merit and I too dismiss It. I also agree that the appeal lacks merit and I join his Lordship in also dismissing the appeal. I abide by the order of cost made in the lead Judgment. Appeal dismissed.

Appearances:

E.O. ADEKWU, Esq. For Appellant(s)

EMEKA ETIABA, SAN appears with him, S. OGBOGBOYIBO, Esq. For Respondent(s)