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

EMERALD ENERGY RESOURCES LTD. v. SIGNET ADVISORS LTD

(2020)LCN/14763(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, November 13, 2020

CA/L/1330/2018

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)

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.

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. FH Signet Advisors Limited vs. Emerald Energy Resources Limited on 21/9/2018. The facts at the lower Court that led to this appeal are that the Respondent (Applicant at the lower Court) obtained an arbitral award from London Centre of International Arbitration against the Appellant (Respondent at the lower Court) on 31/1/2016. To enforce the said arbitral award in Nigeria, the Respondent filed an application that is the Originating Motion on 19/10/2017. The application is contained on pages 4-5 of the records of appeal wherein the Respondent sought the following relief:
“An Order of this Honourable Court recognizing as binding and granting leave to the Applicant to enforce the Award dated the 31st of January 2016, (a duly Certified True Copy of which is annexed to the Supporting Affidavit as Exhibit 7), made in the Arbitral Proceedings between the Applicant (as the “Claimant”) and the Respondent (as the “Respondent”) by the

Arbitral Tribunal consisting of Chairman, Audley Sheppard QC, Professor Fidelis Oditah QC SAN and Hilary Heilbron QC, Arbitrators appointed pursuant to Clause 12 of the Reinstatement Letter dated the 1st of January, 2011 and Clause 7 of the second Letter Agreement dated the 28th of September, 2012 in the same manner as a Judgment or Order of this Honourable Court to the same effect.
AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.”

The claim of the Respondent in summary is that the arbitral award he got in England should be recognized and enforced in Nigeria in the same manner as a judgment and order of the Court in Nigeria. The Appellant (Respondent at the lower Court) in opposition to the motion filed a counter affidavit dated 14/12/2917. The lower Court after considering the arguments of both counsel delivered its ruling found on pages 486-494 of the records of appeal (pages 1-9 of the judgment) where it held specifically on page 494 of the record thus:
“I have read Exhibits 1, first letter Agreement dated 3rd March 2010, Exhibit 2, the Reinstatement letter dated January 1, 2011,

the Arbitral Award, Exhibit 7 as well as other exhibits attached to the affidavit, counter affidavit and further and better affidavits filed in this application.
I am of the firm view that all necessary ingredients for a valid arbitration, decision are present in this application.
This application succeeds and is hereby granted.”

The Appellant dissatisfied with the ruling of the lower Court initiated this appeal vide a notice of appeal. The extant notice of appeal of the Appellant is dated 5/12/2018 but filed on 6/12/2018 found on pages 187 – 191 of the additional record of appeal. The notice of appeal contains six grounds of appeal which bereft of their particulars are:
GROUND ONE
The trial Court erred in law by delivering judgment contrary to Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which has occasioned a miscarriage of justice of the Appellant.
GROUND TWO
The Honourable lower Court erred in law by failing to hold that the Appellant was under a known and disclosed incapacity hindering the enforcement of the arbitral award of the London Court of International

Arbitration dated 31st January 2017.
GROUND THREE
The Honourable lower Court erred in law by granting leave for the enforcement of the arbitral award of the London Court of International Arbitration dated 31st January 2017 when the said award exceeded the jurisdiction of the arbitral tribunal.
GROUND FOUR
The Honourable lower Court erred in law by failing to hold that the arbitral award was against public policy and thus unenforceable in Nigeria.
GROUND FIVE
The Honourable lower Court erred in law by failing to hold that the Arbitral Award sought to be enforced had failed to comply with a condition precedent under the law of England where it was made.
GROUND SIX
The Honourable lower Court erred in law by failing to determine the question of law upon which the parties before it had joined issues and instead determined the suit based on its own issues or considerations upon which the Appellant was never invited to comment.

The Appellant brief dated and filed 12/12/2018 was settled by Emonye O. Adekwu Esq. In the brief, counsel raised three issues for determination before this Honourable Court viz:

Whether the judgment of 21 September 2018 and the circumstances leading up to it ought not to be stricken for breaching fundamental provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Whether the judgment of 21 September 2018 is not vitiated and liable to be so set aside for failing to consider and resolve the issues of law joined by the parties.
3. Whether upon proper resolution of all issues of law submitted at the lower Court, the lower Court ought not to have refused to grant leave for the enforcement of the award.

On issue one, it is the submission of counsel that the judgment of 21/9/2018 was delivered outside the 90-days period stipulated by Section 294(1) of the Constitution and that the Appellant suffered a miscarriage of Justice. Counsel threw his weight on the fact that the judgment of the lower Court was not delivered on 21/9/2018 but rather it was delivered on 3/10/2018. It is the submission of counsel that the record of appeal was obfuscated. It is the further contention of counsel that from the proceedings before the lower Court with respects to adjournments, it cannot be said that justice was

done in the case. He relied on Chief Ezeniyili Uzowulu (Oduah) & Ors vs. Mr. Ofulue Akpor & Ors (CA/B/194/1999) (2014) NGCA 34 (21 January 2014). It is the argument of counsel that the failure of the learned trial Judge to grant the request for adjournment of Appellant at the lower Court on the day of the adoption was not done in line with judicial principle that is, it was not judicial and judicious. It was the further submission of counsel that from the surrounding facts, coupled with the effort put into obfuscating the date the judgment was delivered clearly shows a total disregard by the lower Court for the constitutional rights of the Appellant as well as a particular interest of the lower Court in an outcome of the proceedings, which were before it. With respect to Order 22 Rule 9 of the Federal High Court (Civil Procedure) Rules 2009 relied on by the trial Judge in holding that the final address of the Appellant was adopted, learned counsel submitted that the rules of Court does not override the provisions of the Constitution.

On issue two, it is the contention of Appellant’s counsel that the lower Court failed to resolve the matters upon

which the parties joined issues before it and that from the records, it can be gleaned that the lower Court did not address or resolve the complaints made to it pursuant to Section 52 of the Arbitration and Conciliation Act (“the ACA”) by the Appellant and upon which the Respondent joined issues with the Appellant. Counsel posited that the thrust of the Appellant’s objection to the enforcement of the award was neither that there was no arbitration between the parties or that the award was not valid, rather the complaint of the Appellant was that the award could not be enforced in Nigeria based on the provisions of Section 52 of the ACA. Counsel relied on Ogundare & Ors vs. Alao (2013) LPELR-21845 (CA) in arguing that the lower Court abandoned the issues which the parties were joined upon but rather relied upon its own entirely different consideration to resolve the suit before it, which as counsel submitted was fundamentally wrong in law and warrants the nullification of the judgment. Counsel therefore urged this Court to nullify the judgment of the lower Court as it breached the right to fair hearing of the Appellant for failure to

consider the issues submitted to it.

On issue three, it is the contention of counsel to the Appellant that the case of the Appellant at the lower Court is that the Appellant is an agent of a disclosed principal and that same amounted to a known and disclosed incapacity recognized by Section 52(a)(i) of the ACA as sufficient ground to prevent the recognition of the award. It is further submitted that incapacity of a party is a sufficient ground recognized under the Article IV of the New York Convention (which the ACA is fashioned after) for not enforcing an arbitral award. He placed reliance on Fougerolle SA (France) vs. Ministry of Defence of the Syrian Arab Republic (1990) XV Yearbook Commercial Arbitration, 515. On the definition of incapacity, counsel relied on the Black’s Law Dictionary, 8th Ed. Learned counsel cited Ataguba & Co vs. Gura (2005) 8 NWLR (Pt. 927) 429; P.E Ltd vs. Leventis Trad. Co. Ltd (1992) NWLR (Pt. 244) 675 in stating the law of agency and how it relates to the issue at hand. Counsel submitted that the provisions of Section 52(a)(i) of the ACA requires the Court, once a challenge has been made of some incapacity existing,

to consider the alleged incapacity irrespective of whether same has been considered by the arbitral panel. Counsel posited that the offhand disregard of the rules of agency by the lower Court is against public policy.

Going further, counsel submitted that the arbitral tribunal lost sight of the fundamental nature of an arbitration proceeding which is that the jurisdiction of the arbitral tribunal is limited to the issues submitted to it. He cited Statoil (Nig) Ltd vs. Nigerian National Petroleum Corporation (2013) 14 NWLR (Pt. 1373) 1 @ 29. It is the further contention of counsel that the submission to arbitration which crystallized the partiesÃ¢ÂÂ consent to arbitration did not contain the issue of charge/senior lien etc which the award dealt with in paragraphs 148, 149 and 219 (d) of the award. It was submitted by counsel that at the time the request was made, the arbitral tribunal did not possess the power to take new issues without the express consent of all the parties, the absence of which the arbitral tribunal was jurisdictionally limited to the issues contained in the submission to arbitration.

On the issue of public policy, counsel

relied on Chief Afolayan vs. Oba Ogunrinde & 3 Ors (1990) 1 NWLR (Pt. 127) 369 @ 371; (1990) 2 SCNJ 62 in submitting that the act of the arbitral panel in shoving aside the rules of agency was not only wrong but has made the now sought recognition and enforcement of the award contrary to public policy. It is the contention of counsel relying on Schedule 1, Section 2(2)(b) and Section 66 of the Arbitration Act, 1996 which according to counsel, governs the enforcement of arbitral awards in England, Wales and Northern Ireland (which Act also governs the enforcement of this present award) that leave ought to be obtained in England by the Respondent before same can be binding and enforceable in Nigeria. For this position, counsel relied on the English case of Essex County Council vs. Premier Recycling Ltd (2006) EWHC 3594.

The Respondent filed a preliminary objection dated 27/5/2019 but filed on 30/5/2019. The preliminary objection is brought under several grounds; which are 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

Appellantâs brief of argument was filed out of time. The preliminary objection is supported by a six paragraph affidavit urging this Court to strike out the appeal.

The Respondentâs brief dated 27/5/2019 but filed 30/5/2019 was settled by Ebele Ifepe Esq. In the Respondentâs brief, counsel argued the preliminary objection.

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 comply with personal service 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 wherefrom 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. 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/285/2011 delivered on 7th January, 2012).

On the Respondent’s brief, counsel raised three issues for determination to wit:
1. Having regards to the circumstances leading to the judgment, subject matter of this appeal, whether the judgment is in breach of the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Whether the judgment, subject matter of this appeal failed to resolve any issue(s) joined by the parties and whether the failure (if any) has led to a miscarriage of justice on the Appellant.
3. Having regard to the judgment, subject matter of this appeal and

circumstances leading to it, whether the said judgment breached any constitutional provision and therefore is liable to be set aside or impugned.

On issue one and with respect to the contention of the Appellant counsel that the actual date of the delivery of the judgment is 3/10/2018 as against 21/9/2018, it is submitted by learned counsel for the Respondent that the record of appeal including records of proceedings of the lower Court is conclusive of the matters stated therein and the Court and parties are bound by the record of appeal. He cited Ossai vs. Wakwah (2006) 4 NWLR (pt. 969) 208 @ 232; Kiwo vs. State (2015) 3 NWLR (Pt. 1446) 207 @ 224. It was posited by counsel that the argument of the Appellant counsel is an attempt to cloth address of counsel with the garb of evidence. Counsel relied on Agbamu vs. Ofili (2004) 5 NWLR (Pt. 867) 540 @ 571. It is the further contention of counsel that the judgment having been signed on 21/9/2018, this Court cannot act on speculation but on clear evidence. He relied on Overseas Construction Company vs. Creek Ent. Ltd (1985) 3 NWLR (Pt. 13) 407. Going further, counsel submitted that even if the contention of

the Appellant counsel is correct (that is, the judgment was delivered on 3/10/2018), the only way such error in the record of appeal can be corrected is by impeachment of the record by deposition in an affidavit and that same not being impeached, enjoys the presumption of regularity. Learned counsel relied on OgliOko Memorial Farms Limited & Anor vs. Nigerian Agriculture and Co-Operative Bank Limited & Anor (2008) LPELR-2306 (SC); Chief of Army Staff & Anor vs. Ali Isah (2017) LPELR-41979; Raphael Fako & Anor vs. United Bank for Africa Plc (2013) LPELR-20312 (CA). Counsel argued that assuming without conceding that the lower Court delivered its judgment outside the 90 days period provided by Section 294(1) of the 1999 Constitution, it is not necessarily every failure of the Court to deliver its judgment within the prescribed 90 days that can invalidate the judgment of a Court. Counsel placed reliance on Section 294(5) of the 1999 Constitution and the case ofNagebu Co. (Nig) Ltd vs. Unity Bank Plc (2014) 7 NWLR (Pt. 1405) 42 @ 66-67. Citing the case of Nwadiogbu vs. A.I.R.B.D.A (2010) 19 NWLR (Pt. 1226) 364 counsel argued that the grant or

refusal of adjournment is an issue which falls within the exclusive province of the judicial discretion of the trial Court and same was exercised judicially and judiciously in this case and that the Appellant did not suffer any miscarriage of justice in consequence of the lower Court’s refusal to accede to its counsel’s request for adjournment as the written address and other accompanying processes were deemed adopted by the Court upon the oral application of the Respondent’s counsel under Order 22 Rule 9 of the Federal High Court (Civil Procedure) Rules 2009.

The Respondent’s learned counsel argued that the Appellant’s argument that its right to fair hearing was violated because of the refusal of the lower Court to grant an adjournment, cannot be sustained as the date fixed by the Court for the adoption of addresses was by consensus of counsel relying on Kotoye vs. CBN (1989) 1 NWLR (Pt. 98) 419; Military Governor of Lagos State vs. Adeyiga (2012) 5 NWLR (Pt. 1293) 291 @ 320. It is the contention of counsel that the cases ofAmough vs. Zaki (supra); Olori Motors & Co vs. UBN Ltd (supra) and FBN Plc vs. TSA Ind. Ltd

(supra) relied on by the Appellant counsel to the effect that the Appellant was denied fair hearing, was in error, misapprehending the facts and circumstances that gave rise to the positions taken by the Court in those instances. It is the submission of Respondent’s counsel that the Respondent did not gain any advantage from the absence of the Appellant’s counsel in Court as the Respondent’s counsel only adopted his written address and other accompanying processes without any adumbration.

Respondent’s counsel argued issues two and three of the Respondent’s brief together. On these issues, it is the submission of counsel that against the argument of counsel to the Appellant, the Originating Motion was predicated on Section 51 of the Arbitration and Conciliation Act which is the statutory provision that governs the registration of foreign arbitral awards and as such Section 52 of the ACA is inapplicable. It is the argument of counsel that while it is the duty of the Court to consider the addresses of counsel, the primary function of the Court in the adjudication of cases is to evaluate evidence and apply the laws. Counsel

also argued that assuming the Appellant’s counsel is correct in his argument that the lower Court did not consider the address of parties, the lower Court is at liberty to identify the real issues in the case and could depart from the issues formulated by the parties in order to put the parties’ case properly before the Court. For this position, counsel relied on Onwo vs. Oko (1996) 6 NWLR (Pt. 456) 584 @ 601. Going further, counsel posited that where the Court does not address the issues of law so raised by the Appellant it would at best amount to non-resolution of issues which is not vital to the case and thus their non-resolution by the Court is not sufficient to vitiate the judgment of the lower Court. He placed reliance on Orianwo vs. Okene (2002) 14 NWLR (Pt. 786) 156 @ 182-183; Ajibulu vs. Ajayi (2004) 11 NWLR (Pt. 885) 458 @ 476. Counsel relied on Ovunwo vs. Woko (2011) 17 NWLR (Pt. 1277) 522 @ 549 in positing that where this Court finds that vital issues were not considered, the best option open to this Court is to resolve same in this appeal based on the materials that have been placed before this Court.

Counsel submitted that where

the conclusion or decision in a judgment is right, even if the reasons adduced by the Court is wrong, the judgment cannot be upturned on appeal. He called in aid the cases of T.M Lewin Nigeria Limited vs. Smartmark Limited (2017) LPELR-43136 (CA); Anyafulu vs. Agazie (2006) 5 NWLR (Pt. 973) 260 @ 283. On the argument of counsel on agency, it is the Respondent’s counsel argument that the issue of incapacity of the Respondent was raised at the Arbitral Tribunal and was resolved in favour of the Respondent and therefore the decision of the Arbitral Tribunal is binding on the parties. He cited Tulip (Nig) Ltd vs. N.T.M.S.A.S (2011) 4 NWLR (Pt. 1237) 254 @ 275. On the argument of Appellant counsel that the Appellant is an agent of a disclosed principal and ought not to have been made a party but its principal, it is the contention of Respondent’s counsel that the Appellant both acted as an agent and as one of the principals; which fact was established at the arbitration and the lower Court. He cited Osigwe vs. PSPLS Mgt. Consortium Ltd (2009) 3 NWLR (Pt. 1128) 378 @ 399-400. Counsel further argued that the failure to join the other disclosed principals

would at any rate amount to non-joinder which could not have vitiated the proceedings. Learned counsel posited that the argument of Appellant counsel that the co-joining of the two separate arbitrations required the agreement of the other parties is nothing short of an attempt by the Appellant to approbate and reprobate. He cited Okoye vs. Nigerian Const. & Furniture Co. Ltd (1991) 6 NWLR (Pt. 199) 501 @ 530; Jadesimi vs. Okotie-Eboh (1989) 4 NWLR (Pt. 113) 113 @ 125. With respect to the argument of the Arbitral Tribunal dealing with a dispute not contemplated within the terms of the submission to arbitration, Respondent’s counsel submitted that the issue is one of the issues agreed in the Reinstatement Agreement to be referred to arbitration and the Arbitral Tribunal rightly made the declaration. He relied on Ogunwale vs. Syrian Arab Republic (2002) 9 NWLR (Pt. 771) 127 @ 152. Finally, on Appellant’s argument that the award had not become binding and enforceable by reason of Section 66 of the Arbitration Act of England, Wales and Northern Ireland, it is the submission of counsel that it is never the intendment of Section 51 of the ACA (which

is the equivalent of Section 66 of the Arbitration Act of England, Wales and Northern Ireland) that leave to enforce a foreign arbitral award must be obtained first in the foreign country before it can be enforced in Nigeria. He placed reliance onTulip (Nig) Ltd vs. N.T.N.S.A.S (supra) @ 274-275

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 Respondent’s brief on 21/10/2019.

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 5 of the record wherein the Respondent provided its address for service as 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 this Court. On the failure of the Appellant to identify the grounds issues were distilled from, Respondent’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. On 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 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.

In its reply to the Appellant’s brief, counsel argued that issue three of the Respondent’s brief was not stated to be distilled from any ground of appeal which offends the trite principle of law that issues submitted for determination must be distilled from the grounds of appeal. He relied on Fawehinmi vs. Globe Motors Holding (Nig) Ltd

(2017) LPELR-42887 (CA). Counsel argued that issue one having being distilled from ground one, issue three cannot therefore be distilled from ground one; as same will be rendered incompetent and liable to be struck out. He relied on Society Plc SA vs. Charzin Industries Limited (2014) 4 NWLR (1398) 497 @ 531; Fawehinmi vs. Globe Motors Holdings (Nig) Ltd (supra). Counsel also argued that the issue two of the Respondent’s brief is also incompetent having being distilled from an incompetent ground three. With respect to other submissions of counsel, Appellant counsel reiterated his submissions as canvassed under its Appellant brief.

At this stage before this Court are two processes to address. They are; the appeal predicated on the notice of appeal filed on 5/12/2018 found on pages 187-191 of the additional record of appeal 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 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 (S.C.), 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 to 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 party 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 debito justitiae 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 to enable the Court to make an informed decision. Litigation is not 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 to 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 4-5 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.”

The above is the position of the law but the question is whether the three issues that the Appellant raised as issues for determination do not arise from the grounds of appeal? I cannot seem to see my way clear to agree with the Respondent that the issues formulated for determination do not arise from the grounds of appeal. I had mentioned the grounds of appeal earlier in this judgment and the issues formulated by the Appellant, I do not intend to repeat them here but I make bold to say that the issues were properly formulated from the grounds of appeal and do not offend any law. I am tempted to reproduce the grounds and issues for determination again to drive home my point. It will not cost anything except for space. It is not a crime to be verbose if it is made for emphasis sake and clarity. The grounds of appeal are as follows:
GROUND ONE
The trial Court erred in law by delivering judgment contrary to Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which

has occasioned a miscarriage of justice of the Appellant.
GROUND TWO
The Honourable lower Court erred in law by failing to hold that the Appellant was under a known and disclosed incapacity hindering the enforcement of the arbitral award of the London Court of International Arbitration dated 31st January 2017.
GROUND THREE
The Honourable lower Court erred in law by granting leave for the enforcement of the arbitral award of the London Court of International Arbitration dated 31st January 2017 when the said award exceeded the jurisdiction of the arbitral tribunal.
GROUND FOUR
The Honourable lower Court erred in law by failing to hold that the arbitral award was against public policy and thus unenforceable in Nigeria.
GROUND FIVE
The Honourable lower Court erred in law by failing to hold that the Arbitral Award sought to be enforced had failed to comply with a condition precedent under the law of England where it was made.
GROUND SIX
The Honourable lower Court erred in law by failing to determine the question of law upon which the parties before it had joined issues and instead determined the suit based on its

own issues or considerations upon which the Appellant was never invited to comment.

The Appellant issues for determination are:
1. Whether the judgment of 21 September 2018 and the circumstances leading up to it ought not to be stricken for breaching fundamental provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Whether the judgment of 21 September 2018 is not vitiated and liable to be so set aside for failing to consider and resolve the issues of law joined by the parties.
3. Whether upon proper resolution of all issues of law submitted at the lower Court, the lower Court ought not to have refused to grant leave for the enforcement of the award.

Looking at the grounds and the issues, it is not difficult to see and hold that each issue is based on the grounds. The law on the relationship between the grounds of appeal and the issues for determination is that the law does not frown at an issue formulated from more than one ground but rather frowns at formulating more than one issue from one ground. This is what in law is called the law against proliferation of issues. See

Philips vs. Eba Odan Commercial and Industries Co Ltd (2012) 4 S.C. 47; Amodu vs. Commandant, Police College, Maiduguri & Anor (2009) 15 NWLR (Pt. 1163) 75.

Looking at the grounds of appeal and the issues, it is appropriate and safe to hold that issue 1 is formulated from ground 1, while issue 2 is formulated from ground 6 and finally issue 3 is formulated from grounds 2, 3, 4 and 5. The Appellant did not break any law. If anyone should complain of the breach of the rules of the subject of the formulation of issues, it is the Appellant that should complain of the issue 3 of the Respondent. The Appellant has correctly in my view urged this Court to strike out issue 3 of the Respondent’s issue as it offends the principle of proliferation of issues. This is so because issues 1 and 3 are formulated from ground 1.
On this ground again, the preliminary objection fails.

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 out of time and leave is not sought, that process will be ignored as it is of no moment. No Court shall allow any parties take it for granted by filing processes out of time. 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 part of counsel. The elementary rule of Court is that rules of Court which are for the practice of parties before a Court are to be obeyed as they are not made for fun. See Asika & Ors vs. Atuanya (2013) 14 NWLR (Pt. 1375) 510; G.M.O. Nworah & Sons Co. Ltd vs. Akputa (2010) 2 FWLR (Pt. 519) 2909.

Specifically addressing the processes in this appeal and looking at the record of appeal and the case file, the Respondent’s 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 brief was therefore deemed properly filed and served on the same day. The preliminary objection also fails on this ground. On the whole, the Respondent’s preliminary objection fails and it is dismissed with cost of N100,000 against the Respondent.

It is now time to go into the merit of the appeal. To make it easy and much more for the reason that it is clear and apt to the point, I will adopt the Appellant’s issues for determination as my issues for determination in this appeal. I will start with issue 1. For completeness, I will reproduce issue 1 again to wit:
Whether the judgment of 21 September 2018 and the circumstances leading up to it ought not to be stricken for breaching fundamental provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

On this issue, Appellant naturally wants this issue resolved in his favour and the judgment of 21/9/2018 to be declared invalid as it breached Section 294 (1) of the 1999 Constitution of Nigeria as it was delivered outside the 90 days stated in the Constitution. According to him, the judgment was not delivered on 21/9/2018 but rather on

3/10/18 and that the record was obfuscated when the judgment was said to be delivered on 21/9/18. The Appellant is also very unhappy that the judgment was delivered in his absence when he never had the opportunity of adopting his written address. The Appellant’s counsel in urging the Court to hold that the lower Court refusal to grant him adjournment amounted to denying his client fair hearing, tried to bring out the inconsistency in the adjournment schedule of the lower Court over the matter which makes it suspicious that the lower Court had an interest in ensuring that the judgment was delivered on that day. In dealing with issue 1, I will consider all those points the Appellant is relying on to vitiate the judgment of 21/9/2018.

Let me start with the subject of adjournment. It is settled and trite that the subject of adjournment is within the discretionary power of the Court. It is within the exclusive power and discretion of a Court to decide whether to grant an adjournment in a case or not. This is much more in the level of discretion rather than legality. The only caveat is that a Court in exercising discretion must do so judicially and

judiciously. The implication of that is that a Court when faced with an application for adjournment must be fair and take into consideration all the factors before it, asking itself whether it will be fair to grant the adjournment. The Court must answer this question as an unbiased umpire before exercising the discretion. In making a decision one way or the other, the Court has to look beyond the arrogance of counsel but rather consider it from the perspective of justice bearing in mind the litigant. The truth is that some counsel could really be arrogant in the way they conduct their cases but a Court must look beyond the counsel and think of the litigant. The Court must look at the holistic picture in its application of discretion. See Onuora vs. Ofomata (2012) LPELR-19942 (CA); MFA & Anor vs. Inongha (2014) 1-2 SC (Pt. 1) 43. In Nwadiogbu & Ors vs. Anambra/Imo Rivers Basin Development Authority & Anor (2010) 19 NWLR (Pt. 1226) 364 the Supreme Court held along these lines as follows:
“The question of adjournment is within the discretion of the Court, in exercising such discretion the Court must consider all the circumstances of the case in

ensuring that the discretion is exercised judicially and judiciously. In exercising its discretion no case can be authority for the other, because that in effect would be an end to the discretion. Each case has its peculiar facts which cannot be the same with the others although they may be similar. Hence, in exercising its discretion the Court has to consider the totality of the cases. The fact that the appellate Court would have exercised its discretion differently from that of the trial Court is not a sufficient reason to interfere with the exercise of discretion by the trial Court. See Okeke v. Oroh (1999) 6 NWLR (pt 606), Odusote V. Odusote (1971) 1 NWLR 228.
When a case has been fixed for hearing the trial Court must ensure the hearing of the case except if a party applying for adjournment showed sufficient reason why the case must be adjourned, that is, by placing sufficient materials before the Court upon which it can exercise its discretion, otherwise, an adjournment of a case fixed for hearing would mean further delay to the other litigants who might otherwise have had their cases heard. See Solanke v. Ajibola (1968) 1 All NLR 46 at 54;

Norwest Heavy Duty Industrial Plastic Ltd. v. Folarin (2002) 2 NWLR (pt.239) 54/66; and Jonason Triangzed Ltd v. Charles Moh and Partners (supra) at 176.
However, an appellate Court may interfere with the exercise of judicial discretion if it is shown that there has been a wrong exercise of the judicial discretion such as where the Court acts under a misconception of law or under misapprehension of fact by considering irrelevant matter. See University of Lagos and Anor V. Aigoro (supra) 88; Enekebe V. Enekebe (1964) All NLR 95.”
A Court is not under obligation to grant adjournment to a counsel simply because he asked for it. Adjournment must be earned and not picked. It is not granted as of right but rather the counsel applying for same must give good reason why the application for adjournment must be granted. Any counsel who sees a request for adjournment like an item in the supermarket to be picked after payment will be making a very big mistake. That is not how it works. Any party seeking for adjournment must give the Court good reasons why the adjournment should be granted. This is because adjournment is a set back to the proceedings of the

Court for that day and as such creates hardship for the other party and the Court. It is a waste for that day. In view of the implication of an adjournment, it should only be granted in deserving situations.
The Court exercising the discretion must do so within the confines of the law and justice. When a case is adjourned in the presence of a counsel or his client or either the counsel or his client had knowledge of it, the counsel seeking for adjournment on the day the matter comes before the Court has to give reasons that are acceptable to the Court to be granted adjournment. This I did not see in the records. In this regard the Appellant did not earn the adjournment before the lower Court, correctly in my view.

A quick excursion into the record of appeal shows that on 24/6/18 (found on pages 450-452 of the records), both counsel were in Court when the matter was adjourned to 27/6/2018 for Ruling and continuation of hearing. The main application (the Originating motion) was adjourned to 27/6/2018. The ruling to be delivered on the 27/6/18 is the application for stay which had been filed. The proceeding of 27/6/2018 is found on pages 481-483 of the

record. On the said day, ruling was delivered on the motion for stay of proceedings which was dismissed. Counsel to the Appellant was not in Court. There is nothing in the record that shows why the Appellant was not in Court. This means that no reason was given to the Court explaining why counsel was not in Court. On the application of the Respondent’s counsel, the lower Court went on with the hearing of the Originating motion in the absence of the counsel to the Appellant and indeed there was no representation from the Appellant. The lower Court went on with the matter on that day since there was no reason given by the Appellant counsel for his absence who has knowledge of the adjourned date. On that day, that is 27/6/2018 relying on Order 22 Rule 9 of the Federal High Court Rules, correctly in my view, the lower Court took the argument of Appellant’s counsel in the address filed as adopted. The Respondent’s counsel did not adumbrate on his address earlier filed. The case was adjourned to 21/9/2018 for ruling on the originating motion. The proceeding for that day showed that only Respondent’s counsel was present. Appellant counsel again

was absent. On 21/9/18, the Respondent’s counsel applied that the address be re-adopted. This was granted and the process was readopted and ruling was delivered. The reason why the addresses were re-adopted is not clear to me as it was not stated. After the re-adoption of the addresses, the ruling was delivered. This is what can be deduced from the record of appeal. Is there anything wrong with this procedure which will affect the validity of the judgment? I make bold to say I see nothing wrong. The lower Court in my opinion has given the Appellant the opportunity to present his case and therefore he cannot complain of lack of fair hearing. Once a party has been afforded the opportunity to present his case, that party cannot complain of the denial of fair hearing. In Magna Maritime Services Ltd & Anor vs. Oteju & Anor (2005) 14 NWLR (Pt. 945) 517, the apex Court held:
“The question of adjournment is within the discretion of the Court, in exercising such discretion the Court must consider all the circumstances of the case in ensuring that the discretion is exercised judicially and judiciously. In exercising its discretion no case can be

authority for the other, because that in effect would be an end to the discretion. Each case has its peculiar facts which cannot be the same with the others although they may be similar. Hence, in exercising its discretion the Court has to consider the totality of the cases. The fact that the appellate Court would have exercised its discretion differently from that of the trial Court is not a sufficient reason to interfere with the exercise of discretion by the trial Court. See Okeke v. Oroh (1999) 6 NWLR (pt 606), Odusote V. Odusote (1971) 1 NWLR 228.
When a case has been fixed for hearing the trial Court must ensure the hearing of the case except if a party applying for adjournment showed sufficient reason why the case must be adjourned, that is, by placing sufficient materials before the Court upon which it can exercise its discretion, otherwise, an adjournment of a case fixed for hearing would mean further delay to the other litigants who might otherwise have had their cases heard. See Solanke v. Ajibola (1968) 1 All NLR 46 at 54; Norwest Heavy Duty Industrial Plastic Ltd. v. Folarin (2002) 2 NWLR (pt.239) 54/66;

and Jonason Triangzed Ltd v. CharlesMoh and Partners (supra) at 176.
However, an appellate Court may interfere with the exercise of judicial discretion if it is shown that there has been a wrong exercise of the judicial discretion such as where the Court acts under a misconception of law or under misapprehension of fact by considering irrelevant matter. See University of Lagos and Anor V. Aigoro (supra) 88; Enekebe V. Enekebe (1964) All NLR 95.”
See also Compact Manifold & Energy Services Ltd vs. Pazan Services Nig Ltd (2019) LPELR 49221; Inakoju & Ors vs. Adeleke & Ors (2006) 12 S.C. 1.
There is evidence in the record that the Appellant’s counsel had knowledge of the adjournment to 27/6/2018 but he did not show up in Court. A person who had knowledge of the date and refused to appear in Court cannot complain of lack of fair hearing. This Court said this much in Samuel vs. Samuel (2019) LPELR-48471 (CA), Bdliya, J.C.A. held:
“A dispassionate perusal of the proceedings of the lower Court conducted from the 20th of January, 2016 to the 4th of May 2016, has shown that the appellant and/or counsel were aware of the hearing dates of the petition

but refused to or neglected to appear in Court. Where a party to a matter before a Court of law has been aware of the hearing date(s) but refused or neglected to appear in Court, he can not be heard to complain of denial of fair hearing. In BON Ltd vs. Adegoke (2006) 10 NWLR Pt. 198 P. 339 @ 355, when faced with the same issue on denial of fair hearing, it was held that the principle of fair hearing is satisfied if the party complaining has been given the opportunity to be heard but he failed to appear in Court. He cannot complain that he was not afforded the opportunity to present his case to the Court. Similarly, in the case before the lower Court, the appellant and or her counsel were aware of the hearing dates when the proceedings were conducted by the Court, but failed to appear in Court. The law is trite, the doctrine of fair hearing envisages fairness to all the parties to the dispute, the Court, and the society at large who may be affected by the outcome of the dispute. It is therefore in the interest of all that litigation before the Court should not be prolonged or delayed without any justifiable reason. The appellant was therefore not denied fair

hearing by the lower Court in the conduct of the proceedings.”

It is not out of place to drop a case to the effect that the fact that counsel was not in Court when the judgment was delivered will not necessarily make the judgment invalid. This point the Supreme Court made in Chime & Ors vs. Chime & Ors (2001) LPELR-24858 (SC) when it held per Wali, J.S.C. thus:
“I am yet to come across a provision of any of our laws which provides that where a judgment is delivered without due notice of the delivery date to a party involved in consequence of which he is absent in Court when the judgment is delivered, the judgment so delivered is null and void. Its delivery is neither without jurisdiction, nor is it null and void. It may amount to a mere irregularity which has no effect on the substance of the judgment or jurisdiction of the Court.”

The main question now is whether the judgment was delivered after the 90 days as required by the Constitution and what is the effect of that. Section 294 (1) of the 1999 Constitution of Nigeria states clearly that a Court created under the Constitution must deliver its judgment within 90 days from

when the parties addressed the Court. The parties first addressed the lower Court on 27/6/2018 and the judgment was delivered on 21/9/2018. Though the Appellant is challenging the record as to when the judgment was delivered, I must state that as far as the record is concerned, the judgment was delivered on 21/9/2018. If my mathematics is correct, between 27/6/2018 and 21/9/2018 is less than 90 days. It is exactly 88 days. The judgment was therefore delivered within time. That apart, in the proceedings of 27/6/2018, the addresses were readopted on 21/9/2018. The judgment was delivered on same day. When processes or address is readopted, the time will start running from the date of the re-adoption of the address. Whichever way it is looked at, the judgment was delivered within time and therefore there was no breach of the constitutional provision.

This now takes me to another aspect of the first issue which is very germane to this appeal. The Appellant is challenging the record of appeal as it relates to the date the judgment was delivered, the proceedings on the dates of adjournment and the consent of the Appellant counsel on those dates as to the dates

the matter is adjourned to. The Appellant is challenging the record of appeal as to when the judgment was delivered. In law, what the Appellant is attempting to do is to impeach the record. The way and manner a party or counsel can impeach a record is clearly stated by the Court. In this respect, the Supreme Court has in a number of cases stated how the record of appeal or Court’s record can be impeached. There is a presumption of regularity in favour of Court’s processes. The Record of appeal is binding on the Court and the parties except it is impeached in the way and manner recognized by the Court. See Akinpelu vs. Adegbore & Ors (2008) LPELR-354 (SC);Ogli Oko Memorial Farms Ltd & Anor vs. NACB Ltd & Anor (2008) 12 NWLR (Pt. 1098) 412.
To challenge the proceedings of a Court or the record of a Court, the party challenging the record must file an affidavit to that effect serving same on the Judge or the Registrar of the Court. See Sommer & Ors vs. FHA (1992) 1 NWLR (Pt. 129) 548. In Andrew & Anor vs. INEC &Ors (2017) 9 NWLR (Pt. 1625) 507, the apex Court held:
“The record of proceedings of a Court is presumed by

law to be correct until the contrary is proved. See: Section 147 Evidence Act. And a party who seeks to challenge the correctness of the record must swear to an affidavit setting out the facts or parts of the proceedings wrongly stated in the record. Such affidavit must be served on the trial Judge and/or the Registrar of the Court who would then, if he desires to contest the affidavit, swear to and file a counter-affidavit. See: Ehikioya v. C.O.P. (1992) 4 NWLR (Pt. 233) 57 at 70; Agwarangbo v. Nakande (2000) 9 NWLR (Pt. 672) 341 at 360.”
The Appellant only challenged the record in the brief of argument. This is not acceptable as this amount to evidence which the address of counsel cannot contain. See Chiokwe vs. State (2012) 12 S.C. (Pt.V) 147.
Since the Appellant could not successfully challenge the records, the record of appeal is binding on the Appellant and so it is safe to hold and I do hold that the judgment was delivered on 21/9/2018.

Assuming this position is wrong, the point must be made that the mere fact that a judgment was delivered after 90 days does not necessarily mean that there is a miscarriage of justice and that the

judgment will be nullified. This will be taking too far the constitutional provision of Section 294 (1) of the Constitution. To appreciate this point, it will not be out of place to know what amounts to a miscarriage of justice. In Oke & Anor vs. Mimiko & Ors (2014) 1 NWLR (Pt. 1388) 332, the Supreme Court while stating what will amount to miscarriage of justice held:
“On what amounts to miscarriage of justice this Court has in a long line of judicial authorities set out some definitions on what can in the course of adjudication be termed “miscarriage of justice”. Tobi J.S.C. in Gbadamosi v. Dairo (2007) 3 NWLR (pt. 1021) 282 at 306 treated it thus:-
“Miscarriage of justice connotes decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantiated rights of the party. Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it”.
In Aigbobahi vs. Aifuwa (2006) 6 NWLR (Pt.976) 270 at 290 – 291 this Court said:
“…miscarriage of justice can be said to be such a departure from the rules

which permeate all judicial process as to make what happened not in the proper sense of the word judicial procedure at all. What constitutes a miscarriage of justice vary, not only in relation to particular facts, but with regard to the jurisdiction invoked by the proceedings in question. It is enough if what is done is not justice according to law”.
The two definitions above say it as it is and in simple term would mean that when in the course of a proceeding the goal post is shifted to the detriment of one of the parties or where it can be said that from what had transpired from the very beginning of the judicial process or at any point during the exercise of the judicial proceedings that the scale of justice had been tilted to favour one party thus jeopardising the equal right of the other party then a miscarriage has occurred.”
The Courts exist to do justice, that is to determine the rights and liabilities between the parties fairly and equally in line with the law. When any decision does not comply with the rule of law, there is said to be a miscarriage of justice. When the decision of the Court determines the rights of the parties, any

error or mistake in a judgment will not necessarily lead to a miscarriage of justice. Based on the definition above, it is clear that the fact that a judgment is delivered after 90 day alone will not amount to miscarriage of justice. The point is that, even if the judgment is held to have been delivered after 90 days, there is no evidence to show the miscarriage of justice that the Appellant suffered by the late delivery of the judgment. This position has the backing of the 1999 Constitution which provides in Section 294 (5) that the judgment delivered after 90 days will only be set aside if the Court is satisfied that the party complaining has suffered a miscarriage of justice. See Nwabunike vs. State (2019) LPELR-47748 (CA); International Beer & Beverages Industries Ltd & Anor vs. Mutunci Co Nig Ltd (2012) 6 NWLR (Pt. 1297) 487.

There is no breach of any constitutional provision on the judgment delivered on 21/9/2018. I resolve this issue against the Appellant and in favour of the Respondent.
I will now turn to issue 2, which is:
Whether the judgment of 21 September 2018 is not vitiated and liable to be so set aside for

failing to consider and resolve the issues of law joined by the parties.

It is trite principle of law that a Court either trial or appellate Court must resolve all issues, particularly issues of law presented before it by the parties. A good judgment must evaluate the evidence before the Judge, make findings based on the evaluation and then apply the law in the circumstance to arrive at a decision. No matter the style adopted by a Judge (there is no generally acceptable style of writing judgment), the judgment must contain the basic characteristics of a good judgment. The style in writing a judgment is peculiar to a Judge but which ever style is used, a good judgment must have the characteristics of a good judgment stated above. In Omotola & Ors vs. State (2009) 2 FWLR (Pt. 468) 3437, the apex Court stated the characteristics of a good judgment in these words:
“As made clear in the above passage of the judgment of the Court below, the learned Justice of the Court below who wrote the lead only opened its judgment by highlighting or restating the facts which the trial Court had accepted. I do not see how the statement could be considered as

injurious to the interest of the appellants as would make it amount to a miscarriage of justice. It seems to me that the manner in which a judgment is to be written cannot be made universal to Judges. Each Judge has his own style and each case often calls for an approach considered most useful to make the particular judgment good enough for the occasion. The important thing is that all the known elements in a good judgment must be incorporated. In this connection, I gratefully adopt the observation of Akintan J.S.C. in Ogba v. Onwuzo (2005) 14 NWLR (Pt. 945) 331 at 334-335 where he said:
“Judgment writing is an art by itself in which every individual has his own peculiar style and method. All that a good judgment requires is that it must contain some well known constituent parts. Thus, some of the constituent part which a good judgment must contain in case of a trial Court include: (1) the issues or questions to be decided in the case; (2) the essential facts of the case of each party and the evidence led in support; (3) the resolution of the issues of fact and law raised in the case; (4) the conclusion or general inference drawn from the facts and the law

as resolved; and (5) the verdict and orders made by the Court. See Oro v. Falade (1995) 5 NWLR (Pt. 396) at 407-408; Mogaji v. Odofin (1978) 4 SC 9;Ojogbue v. Nnubia (1972) 1 ANLR (Pt. 2) 226; and Olomosola v. Oloriawo (2002) 2 NWLR (Pt. 750) 113 at 125.”
See also A.G. Federation & Ors vs. Abubakar & Ors (2007) 10 NWLR (Pt. 1041) 1.

The Appellant’s argument on this issue is that, the relevant provision that was put in the front burner of the application in the lower Court was Section 52 of the Arbitration and Conciliation Act (ACA) and not Section 51. The lower Court as submitted by counsel to the Appellant never considered the provision of Section 52 of the ACA and that omission has occasioned a miscarriage of justice as the Court did not consider all the issues raised before it. The Respondent on the other hand submitted that the relevant provision for the determination of the application is Section 51. This is the appropriate time or place to reproduce the two sections above mentioned. I will start with Section 51. The section which deals with the recognition and enforcement of arbitral award states thus:

“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;
(b) the original arbitration agreement or a duly certified copy therof; and
(c) where the award or arbitration agreement is not made in the English Language, a duly certified translation thereof into English language.”
Section 52 of the ACA which deals with the grounds for the refusal of the recognition and enforcement of an arbitral award provides as follows:
“(1) Any of the parties to an arbitration agreement may, request the Court to refuse recognition or enforcement of the award.
(2) The Court where recognition or enforcement of an award is sought or where application for refusal of recognition or enforcement thereof is brought may, irrespective of the country in which award is made, refuse to recognise or enforce an award-
(a) if the

party against whom it is invoked furnishes the Court proof- (i) that a party to the arbitration agreement was under some incapacity; or (ii) that the arbitration agreement is not valid under the law which the parties have indicated should be applied, or failing such indication, that the arbitration agreement is not valid under the law of the country where the award was made; or (iii) that he was not given proper notice of the appointment of an arbitrator or of the proceedings or was otherwise not able to present his case; or (iv) that the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration; or (v) that the award contains decisions on matters which are beyond the scope of the submission to arbitration, so however that if the decisions on matters submitted to arbitration can be separated from those not submitted, only that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or (vi) that the composition of the arbitral tribunal, or the arbitral procedure, was not in accordance with the agreement of the parties; or (vii)where there is no agreement

between the parties under sub-paragraph (vi) of this paragraph, that the composition of the arbitral tribunal, or the arbitral procedure, was not in accordance with the law of the country where the arbitration took place; or (viii) that the award has not yet become binding on the parties or has been set aside or suspended by a Court of the country in which, or under the law of which, the award was made; or
(b) if the Court finds- (i) that the subject-matter of the dispute is not capable of settlement by arbitration under the laws of Nigeria; or (ii) that the recognition or enforcement of the award is against public policy of Nigeria.”
To appreciate which section is applicable to the case it will be necessary to reproduce the originating motion found on pages 4-5 of the records. The originating motion was filed pursuant to Section 51 of the ACA and Order 52 Rules 16 & 17 of the Federal High Court Rules. As far as the Respondent is concerned, the section under which the application was brought is Section 51 of the ACA. The prayer is as follows:
“An Order of this Honourable Court recognizing as binding and granting leave to the

Applicant to enforce the Award dated the 31st of January 2016, (a duly Certified True Copy of which is annexed to the Supporting Affidavit as Exhibit 7), made in the Arbitral Proceedings between the Applicant (as the “Claimant”) and the Respondent (as the “Respondent”) by the Arbitral Tribunal consisting of Chairman, Audley Sheppard QC, Professor Fidelis Oditah QC SAN and Hilary Heilbron QC, Arbitrators appointed pursuant to Clause 12 of the Reinstatement Letter dated the 1st of January, 2011 and Clause 7 of the second Letter Agreement dated the 28th of September, 2012 in the same manner as a Judgment or Order of this Honourable Court to the same effect.
AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.”
Sections 51 & 52 of the ACA all relate to the enforcement of an arbitral award. The sections are different sides of the same coin. While Section 51 deals with enforcement in its positive sense, Section 52 deals with enforcement in the negative sense. By this I mean that an application under Section 51 makes provision for arbitral awards to be enforced and what

need to be put in place to enforce it. Section 52 on the other hand states the grounds upon which a party can apply to set aside or disable the enforcement of the arbitral award. Section 51 is normally filed by the person who succeeds in the arbitral panel or Tribunal while Section 52 is normally filed by the party that lost at the arbitral panel or Tribunal. While the originating motion is seeking for the enforcement of the arbitral award, the lower Court can, without necessarily seeing a motion filed under Section 52, while deciding a case filed pursuant to Section 51 also consider Section 52 especially when the section is raised in the lower Court. This is more so when the law is clear and settled to the effect that a Court is to pronounce on any issues raised in a matter especially when the issue has a bearing on the rights of the parties. In C.N. Okpolo & Sons Ltd vs. NB Plc (2018) ALL FWLR (Pt.928) 1, the Supreme Court held:
“In several decisions of this Court, it has been repeatedly held that all lower Courts, as a general rule, must pronounce on all issues properly placed before them for determination in order, apart from the issue of fair

hearing not to risk the possibility that the only issue or issues not pronounced upon are crucial, failure to pronounce on them will certainly lead to a miscarriage of justice. There is therefore need for every Court or Tribunal to make findings and pronounce on material and fundamental issues canvassed before it by the parties because failure to do so, as I said earlier, may result in a miscarriage of justice. See Brawal Shipping (Nig) Ltd v. F.I. Onwadike Co. Ltd (2000) 6 SCNJ 508 at 522, Ojogbue V. Nnubia (1972) 6 SC 227, Katto V. CBN (1991) 9 NWLR (pt.214) 126, Yakassai v. Incar Motors Ltd. (1975) 5 SC 107; Citec International Estate Limited &Ors v. Josiah Oluwole Francis &Ors (2014) LPELR-22314 (SC).”
The Appellant (as Respondent in the lower Court) filed a 27 paragraph affidavit in opposition to the Originating motion wherein the deponent averred stating grounds upon which the arbitral award cannot be enforced in line with some of the provisions of Section 52 of the ACA. The written address of the Appellant counsel in the lower Court found on pages 272-278 was centered mainly on reasons why the arbitral award should not be enforced. The

reasons he gave were incapacity, the tribunal exceeding jurisdiction, arbitral award not being in line with public policy and failure of the proceedings to satisfy condition precedent to its enforcement under the law of England. These are points mostly under the provision of Section 52 of the ACA. The lower Court has a duty in law to make a decision as it affects the provisions of Section 52 as the issue was raised by the Appellant before it. The Appellant has argued that the lower Court did not consider the issue of the applicability of Section 52 of the ACA to the decision of the case. I do not agree with the Appellant in this submission that the lower Court did not resolve the issues of law joined by both parties in the ruling. The lower Court on pages 488-493 of the record made reference to those factors that the Appellant submitted should enable the Court to refuse the application of enforcement and eventually came to the conclusion that the arbitral award can be enforced as the points are not capable of refusing the enforcement of the award. It is after making that point that the lower Court held on page 494 of the record thus:
“I have read Exhibit

1, first letter Agreement dated 3rd March 2010, Exhibit 2, the Reinstatement letter dated January 1, 2011, the arbitral Award, Exhibit 7 as well as other exhibits attached to the affidavit, counter affidavit and further and better affidavits filed in this application. I am of the firm view that all necessary ingredients for a valid arbitration decision are present in this application.
This application succeeds and is hereby granted.”
I had mentioned above that there is no generally acceptable style of judgment writing provided the characteristic of a good judgment are contained therein. The lower Court may not have in many words dealt with Section 52 but the Court had in few words dealt with the issues the parties placed before it. This issue is resolved in favour of the Respondent.

The final issue is issue 3 which is stated hereunder:
Whether upon proper resolution of all issues of law submitted at the lower Court, the lower Court ought not to have refused to grant leave for the enforcement of the award.

In addressing this issue, I will only look at the provisions of Section 52 put in the front burner of this issue raised by the

Appellant. The relevant provisions are Subsection 2(a)(i) (ii)(iv) (v) (viii) of the ACA. I will look at these provisions to finally arrive at a decision whether this appeal will succeed or not.
The arbitral award will not be enforced according to Section 52 (2)(a)(i) once one of the parties to the arbitration agreement was under some incapacity. The Appellant argument is that it was an agent to a disclosed principal and that based on the law of agency, the Principal it represented in the agreement should be held responsible and therefore since the Principal was not a party to the arbitral Tribunal, it should not be enforced in Nigeria. The lower Court on this point held that this being an issue that the arbitral tribunal has dealt with, it is not an issue for it to deal with. While it is true that this issue was handled by the arbitral tribunal, I really do not see anything wrong with revisiting that issue since it is a ground known under the ACA to refuse the enforcement of arbitral award. This is more so when the application before this Court is for the enforcement of the arbitral award.
To know exactly whether the Appellant is an agent to a

disclosed principal, the necessary documents to look at are the 1st letter of agreement made on 3/3/2010 (found on pages 11-14 of the records), the Reinstatement letter of 1/1/2011 (found on pages 20-23 of the records) and the second letter of agreement of 28/9/2012 found on pages 26-30 of the records). In all of these documents, the Appellant’s name appears as the organization engaging the Respondent and except for the letter of Reinstatement of 1/1/12, the Appellant signed as the organization making the offer which the Respondent accepted. It was only in that letter that the Appellant signed on behalf of the ‘the joint interest owners’. The arbitration clause as contained in Clauses 7 of the 1st and 2nd letters and Clause 12 of the Reinstatement letter refers to the parties, which means the Appellant and the Respondent, as those submitting to arbitration. The fact that the Appellant is said to act on behalf of the joint interest of the OML-141 does not make the Appellant an agent of the other within the strict context of the law of agency. The Appellant is focusing on the law of agency and that since there is a disclosed principal, the

arbitration would have included the disclosed principal. The question is, who is the disclosed principal on the face of the documents before the Court. The documents with the arbitration clause that is clause 7 of the agreement of 3/3/2010 was signed by the Appellant alone while clause 12 of the agreement of 1/1/2011 was signed by the Appellant on behalf of the joint interest. Who are these joint interest owners? The agreements and the documents before the arbitral tribunal did not disclose the face behind the joint interest. The principal must be known and disclosed to the other party to enjoy the principal/agent relationship and the attendant benefit that relationship enjoys. See Oriebosi vs. Andy Sam Investment Co Ltd (2014) LPELR-23607 (CA); Ukpanah vs. Ayaya (2011) 1 NWLR (Pt. 1227) 61. A faceless principal cannot in all intent and purpose be referred to as a disclosed principal.
That apart, the duty to show that a Principal/Agent relationship exist rest on the Appellant. There must be evidence to show that such a relationship exists between the Appellant and the faceless joint interest owners. In doing so there is need for evidence to show

the level and limit of the scope of the authority of the agent, in this respect, the Appellant. This is so because an agent will be liable for his acts if he acts outside the scope of his authority. See Cotecna Int’l Ltd vs. Churchgate Nig. Ltd & Anor (2010) 12 S.C. (Pt. II) 140. It is not enough in my view to merely say, the Appellant is ‘acting on behalf of the OML-141 Joint Interest’. The Appellant has not really established the existence of the Principal/Agency relationship with the Joint Interest owners.
The Appellant had argued that the Respondent should have joined the principal. The question is, who is the principal? What is the name of the principal which is to be sued along with the Appellant on record? This is not known and disclosed. The Respondent submitted correctly in my view that what the Appellant is complaining about is that the Principal was not sued along and so the arbitral award should be invalidated, but that such does not represent the position of the law. I agree that the fact that a disclosed principal was not sued or brought before the arbitral tribunal does not in any way makes the award invalid. This is

because the non-joinder of a necessary party does not make any judgment invalid and more so that a principal and agent can be joint tort feasor in which case either of the parties can be sued. See Mohammed vs. Babalola (SAN) (2011) LPELR 8973. In Bello vs. INEC & Ors (2010) 8 NWLR (Pt. 1148) 342 the apex Court held:
“The failure to join as a party a person who ought to have been so joined gives rise to the mistake of non-joinder of party. The fact that a necessary party to the action has not been joined will not render the action a nullity. The proceedings of a Court of law will not be a nullity on the ground of lack of competence of the Court jurisdiction’s merely because a plaintiff fails to join a party who ought to have been joined. The Court cannot dismiss a suit because a party who ought to have been joined was left out.
Onibudo v. Abdullahi (1991) 2 NWLR pt. 172 pg.230
Atuegbu v. Akwa South Local Government (2002) 15 NWLR pt. 791 pg. 635
Ayorinde v. Oni (2000) 3 NWLR pt. 649 pg. 348
Ifeanyi Chukwu (Osondu) Ltd v. Saleh Boneh Ltd.(2000) 5 NWLR pt. 656 pg. 322
Onayemi v. Okunubi & Anor (1965) 1 ALL NLR pg.362.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Warri Refinning & Petrochemical Co. Ltd. v. Omo (1999) 12 NWLR pt. 630 pg. 312”
Above it all, the Appellant did not complain that it has incapacity at the point of signing the letters referred to above containing the arbitration clause. In the circumstance, the enforcement of the arbitral award cannot be refused on the ground of incapacity. I also firmly along this line hold that I cannot see how the award is against public policy either in Nigeria or in England.

The Appellant also submitted that the arbitral award should be set aside or the enforcement refused because the arbitral award dealt with dispute outside what was submitted to the arbitral tribunal. On this point, learned counsel referred to the decision made on charge/senior lien over joint interest cash flow in paragraph 148,149 and 219(d) found on pages 100 and 118 of the records. The Respondent claim at the arbitral tribunal as contained on page 35 of the record is for payment of the total sum of US$5,683,947.70 interest and cost. The decision of the arbitral tribunal in the paragraphs mentioned above cannot be said to be in excess of the jurisdiction of the arbitral tribunal

or that the tribunal dealt with issues not submitted to it. I do not agree with the submission of the Appellant on this point and so I cannot refuse the enforcement of the arbitral award on that point.

Finally on issue 3, the Appellant submitted that the arbitral award should not be enforced in Nigeria because the award does not comply with Section 66 of the Arbitration Act of England which makes provision for how an arbitral award can be enforced in England. I agree with the Respondent to the effect that the English Arbitration Act that is Section 66 which is similar to Section 52 of the ACA is not the applicable law to determine in what circumstance arbitral award from England can be enforced in Nigeria. The English Arbitration Act cannot dictate to Nigerian Courts the circumstance upon which an arbitral award can be enforced in Nigeria. Nigeria has its own laws that regulate arbitration procedures and specifically has made provisions on how foreign arbitral awards can be enforced. It is the Nigerian law that is, the ACA that will be followed. The relevant provision to determine how an arbitral award from England or anywhere in the world can be enforced

is Section 51 of the ACA which I had reproduced above. The relevant provision is Section 51 and once this provision is adhered to, the foreign arbitration award will be enforced in Nigeria. It is of necessity to mention that arbitral awards are binding on all parties and has the force of judgment in Nigeria See: Kano State Urban Development Board vs. Fanz Construction Co Ltd (1990) 6 S.C. 103.
This is not just a Court of law but a Court of equity and justice. There is no dispute from the Appellant that there were agreements entered into between her and the Respondent for the payment of fees as financial advisor to the Appellant and the faceless joint interest on OML-141. There is also no dispute that the Appellant submitted to arbitration voluntarily and participated fully in the arbitral tribunal. The Appellant who now wants the arbitral award set aside or not to be enforced in Nigeria took part in the whole process. She appointed an arbitrator from her side and took part in all the proceedings. When the arbitration did not favour her, she is now looking for ways to set it aside. It is within the powers of the Appellant to set aside the arbitration award

within the provision of Section 52 of ACA but the general principle and attitude of Court should be to uphold the arbitral award except it falls within the provision of Section 52 of the ACA. The Court should not treat arbitral awards with levity whether it is domestic awards or international awards. People who have submitted to arbitration should be made to accept the arbitral award except in deserving situations and the enforcement should not be refused for reasons that are not cogent. Once the arbitration award satisfies the provision of its enforcement that is Section 51 of the ACA, Courts of law and justice should not encourage the refusal of its enforcement. The award is sought to be enforced in Nigeria and it therefore stands to reason that the applicable law for the enforcement of the award is not where the award was made, that is England but rather where the award is sought to be enforced, that is Nigeria. In Calais Shipholding Company vs. Bronwen Energy Trading Limited (2014), this Court per Oseji, J.C.A. (now J.S.C.) held:
“…the Arbitration and Conciliation Act provided a simpler and much easier approach to the registration in Nigeria, of such

foreign awards. It provides in Section 51(1) as follows:- “An arbitral award shall irrespective of the country in which it is made, be recognized as binding and subject to this Section and Section 32 of this Act, Shall, upon application in writing be enforced by the Court”. Thus, subject to Section 32 and 51(2) of the Arbitration and Conciliation Act, an arbitral award obtained anywhere in the world can be registered and recognized by any Court in Nigeria without recourse to a foreign Court to first adopt same as it’s judgment. See OGBUNEKE SONS AND COMPANY LTD V ED & F (NIG) LTD (2010) LPELR (4688) CA.”

The lower Court stated the ingredients upon which a valid arbitral award will be enforced in Nigeria and held on page494 of the records that the condition having been met, the arbitral award is valid and therefore the application succeeds. For completeness I will refer to one or two cases on the subject of the ingredients that a valid arbitration needs to satisfy before it can be binding and enforced in Nigeria. In Ugela vs. Tarvenda & Ors (2013) LPELR-21232 (CA), this Court

per Mshelia, J.C.A. stated this ingredient thus:
“The ingredients which must be satisfied before a decision of a valid arbitration can be enforced by a Court as a binding decision are fully explained in these cases as follows:- 1. Voluntary submission of the matter in dispute to an arbitration of one or more persons. 2. That it was agreed by the parties that the decision of the arbitration would be accepted as final and binding. 3. That the said arbitration was in accordance with the custom of the parties. 4. That the arbitrators reached a decision and published their award. 5. That the decision was accepted by the parties at the time of award. See Awosile v. Sotunbo (1992) 5 NWLR (Pt. 243) @ 514, Oparaji V. Ohanu (1999) 9 NWLR (Pt. 618) 290 @ 304, Eke V. Okwaranyia (2001) 4 SCNJ 300 @ 323, Ezeanoikwa V. Mouneke (2005) ALL FWLR (Pt. 256) 1327 @ 1327.”

I agree with the lower Court that the arbitral award sought to be enforced has satisfied the above conditions and therefore the award is enforceable. This appeal fails in its entirety and it is dismissed. The preliminary objection of the Respondent to this appeal as mentioned earlier fails and it

is dismissed with N1000,000 in favour of the Appellant. This appeal fails and it is dismissed. I award N500,000 in favour of the Respondent.

In the circumstance, the ruling of Hon. Justice Babs O. Kuewumi of the Federal High Court in Signet Advisors Limited vs. Emerald Energy Resources Limited in suit FHC/L/CS/1596/17 is affirmed.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the painstaking judgment prepared by my learned brother, EBIOWEI TOBI, J.C.A

BALKISU BELLO ALIYU, J.C.A.: I read in draft the lead Judgment prepared by my learned brother TOBI EBIOWEI, J.C.A. just delivered. I agree with the reasoning and the conclusion reached therein that the appeal lacks merit and I dismiss it.
I affirm the Judgment of the Federal High Court delivered on the 21st September, 2017 in respect of Suit No: FHC/L/CS/1596/2017. I abide by the order of cost made in the lead Judgment.

Appearances:

O. ADEKWU Esq. For Appellant(s)

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