FUGRO SUBSEA LLC v. PETROLOG LTD (2021)

FUGRO SUBSEA LLC v. PETROLOG LTD

(2021)LCN/15013(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, February 19, 2021

CA/L/1122/2018

RATIO

PRELIMINARY OBJECTION: WHAT DOES A PRELIMINARY OBJECTION CHALLENGE

A preliminary objection challenges the issue of jurisdiction of a Court or its competence to entertain a matter for defined reasons. See Hassan v Aliyu (2010) LPELR-1357(SC), (2010) 17 NWLR (PT 1223) 547. As clarified in Akpan v Bob (2010) LPELR-376(SC) at 39 – 40:

“An objection in law portrays a formal opposition of an objector against the happening of an event which has already taken place or is about to take place now or in the future and the objector seeks the Court’s immediate ruling or intervention on the point. A preliminary objection seeks to provide an initial objection before the actual commencement of the thing being objected to.”
It is therefore for the objector to give grounds for the objection and for the other party thereto to respond. The adverse party cannot by way of response to an objection evoke or frame issues for determination. Similarly, a respondent cannot challenge the competence of an appeal by an issue or issues he has formulated for the determination of the appeal, which issues would necessarily be rooted in the grounds of appeal filed by the appellant. See Okelue v Medukam (supra); Medukam v Egemole (2010) LPELR-9143(CA). PER ONYEKACHI AJA OTISI, J.C.A.
APPEAL: RULE ON FORMULATION OF ISSUES FOR DETERMINATION

Counsel have always been admonished to marry the issues raised for determination to the ground or grounds of appeal. See Akpan v. FRN (2011) LPELR-3956(CA); Yussuf v. Ilori (2007) LPELR-5137(CA); Ukwuoma v. Okafor (2016) LPELR-41505(CA); Daisi v IGP (2019) LPELR-47897(CA).

This paints a clear picture of the appeal and obviates the need for the respondent and the Court to examine the grounds of appeal vis-a-vis the issues raised for determination in order to ascertain the competence or otherwise of the issues and ascertain whether any ground of appeal has been abandoned. If this admonition had been adhered to by learned Counsel for the Appellant, there would have been no need for this head of the objection. That said, the point must be made that the extant COA Rules do not prescribe that Issues for determination must be tied to the grounds in briefs of parties, on pain of a sanction. Thus, where an appellant has failed to tie his issues to the grounds of appeal, as is the convention or practice, the attitude of the appellate Courts appears to be one of liberality. The Court would resound the caution but still go on to examine the issues against the grounds. Therefore, while failure to adhere strictly to the practice may not be penalized, the Court is bound to ensure that the issues formulated for determination of an appeal are in fact related to or arise from the grounds of appeal. PER ONYEKACHI AJA OTISI, J.C.A.
APPEAL: REQUIREMENT FOR ISSUES FOR DETERMINATION TO BE COMPETENT

Further, it is settled that for issues for determination in an appeal to be competent, they must flow from the grounds of appeal. See Akpan v Bob (supra); Nwankwo v Yar’Adua (2010) LPELR-2109(SC); Ukiri v Geco-Prakla (Nig) Ltd (2010) LPELR-334(SC); Idika & Ors v Erisi & Ors (1988) 2 NWLR (PT 78) 563. An issue for determination in an appeal must be formulated from a ground of appeal which in itself represents the broad outline of the complaint against the decision being challenged. PER ONYEKACHI AJA OTISI, J.C.A.

APPEAL: PURPOSE OF A GROUND OF APPEAL

The purpose of a ground of appeal is to define the complaint against the decision being appealed against. Issues for determination cannot therefore be at large, but must fall within the purview of the grounds of appeal filed. It cannot be overemphasized that competent issues for determination must be based on, related to or arise from the grounds of appeal. Any issue or issues not formulated or distilled from a ground of appeal is incompetent and must be struck out. See Okonobor & Ors v Edegbe & Sons Transport Co. Ltd (supra); Olowosago v. Adebanjo (1988) 9 SC 87; Drexel Energy and Natural Resources Ltd v. Trans International Bank Ltd (2008) 18 NWLR (PT.1119) 388. PER ONYEKACHI AJA OTISI, J.C.A.
APPEAL: NATURE OF AN OMNIBUS GROUND OF APPEAL

The ground that a judgment or decision of the lower Court is against the weight of evidence is an omnibus ground of appeal. Clarifying what is implied by an omnibus ground, the Apex Court, per Kalgo, J.S.C. in Bisiriyu Akinlagun & Ors. v. Taiwo Oshoboja & Anor (2006) LPELR-348(SC) at page 19, (2006) 5 SC (PT.11) 100:
“An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law. See Ajibona v. Kolawole (1996) 10 NWLR (Pt.476) 22.”
See also Lagga v. Sarhuna (2008) LPELR-1740(SC); Nefco Nigeria Limited & Ors v. Mr Udo Ekere & Ors. (2013) LPELR-20423(CA). Therefore, no issue can be raised on an omnibus ground alone. The omnibus ground will stand as support for a complaint on a finding of fact on a specific issue that must be founded on a substantive ground of appeal challenging that finding. As unequivocally stated by this Court in The Nigeria Foundation for The Support of Victims of Terrorism v. Coalition on International Criminal Court Ltd/Gte (2020) LPELR-49885(CA), per Nimpar, J.C.A., at page 10:
“It is now settled that an Appeal predicated on the omnibus or general ground is not at large. It cannot be used to raise an issue of law as has been done in the Appellant’s brief. Such issue of law must be raised as a separate Ground of Appeal and made an adjunct to the Omnibus Ground of Appeal. See DAVIES V. POWELL DUFFRYN ASSOCIATED COLLIERIES LTD. (1942) AC 601 at 616 – 617 and Onaga & Ors. v. Micho & Co. & Ors. (1961) All NLR 324; (1961) 2 ANLR 209; (1961) 2 SCNLR 107.” PER ONYEKACHI AJA OTISI, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Tani Yusuf Hassan Justice of the Court of Appeal

Between

FUGRO SUBSEA LLC APPELANT(S)

And

PETROLOG LIMITED RESPONDENT(S)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the Ruling and Judgment of the Federal High Court, Lagos Division Coram: C.M.A Olatoregun, J., delivered on May 4, 2018 and May 21, 2018 respectively, in favour of the Respondent.

The facts leading to this appeal, as can be gleaned from the Record of Appeal and from the processes of the parties, may be summarized in this manner: The Respondent, an indigenous Oil and Gas Company in Nigeria, is the owner and operator of the “DSV VINNICE”, a diving support vessel that carries the Nigerian Flag. On 22/3/2015, the Appellant and Respondent entered in a Memorandum of Agreement (MOA) for the purpose of establishing mutual cooperation in seeking business opportunities of mutual interest in diving and subsea services in Nigeria and Africa at large which will require the DSV VINNICE. Parties reached a firm agreement under the MOA that in the event of success in obtaining a new business opportunity, the basic principle of cooperation shall be that the party who has secured the contract shall act as the lead contracting party with the client, and subcontract

the applicable services to the other party. Subsequent to the execution of the MOA, the Appellant secured a contract with Sonangol PEP, an Angolan Company to render emergency pipeline repair on Oil Block 3/05 in the subsea area of Congo and Angola. In furtherance of the MOA, the Appellant engaged the Respondent as a subcontractor, and hired the DSV VINNICE to carry out the specialist operation in the high seas. Parties then executed a Charter Party Agreement on 11/10/2015 in respect of the DSV VINNICE. Under the agreement, the Appellant as charterer of the DSV VINNICE was responsible for paying for charter hire fees at an agreed marine vessel rate of $105,000 USD per day, which sum covered vessel hire, cost for Dive Technicians, meals and accommodation for the vessel crew, mobilization/demobilization of vessel, mobilization/demobilization of personnel, and all other expenses that were incidental to the operation of the DSV VINNICE. However, the Appellant failed to meet this financial obligation. As at 7/4/2016, the total value of the outstanding invoices of the Respondent yet to be settled by the Appellant amounted to $2,181,967.87 Despite repeated demands by

the Respondent for settlement of its indebtedness, the Appellant failed to do so, which prompted the Respondent to institute Suit No: FHC/L/CS/567/2016, leading to this appeal, under the undefended list procedure of the lower Court. Pursuant to the Rules of the lower Court, the Respondent as plaintiff by an Originating Motion ex-parte, first sought the following Orders, pages 1 – 15 of the Record of Appeal:
1. AN ORDER granting leave to issue Writ of Summons in respect of a claim to recover a debt and liquidated money demand as specified in the “proposed” Writ of Summons attached to the supporting affidavit as Exhibit C9.
2. AN ORDER of this Honourable Court granting leave to issue the Writ of Summons referred to in (1) above for the service out of the jurisdiction of this Court and/on the Defendant in Plot 1F Sector MNI, Mussafah, Abu Dhabi, United Arab Emirates.
3. AN ORDER of this Honourable Court entering this Suit for hearing in the “Undefended List” and to mark the said Writ accordingly.
4. AN ORDER of this Honourable Court granting leave to serve the Writ of Summons on the Defendant outside the jurisdiction of

this Honourable Court at Plot 1F Sector MN1, Mussafah, Abu Dhabi, United Arab Emirates by use of a courier or air mail service particularly DHL Nigeria.
5. An Order of this Honourable Court granting leave to mark the writ of summons with the requisite endorsement as per notice thereon to the effect that the writ is to be served out of the jurisdiction of this Honourable Court.
6. AN ORDER of MAREVA INJUNCTION restraining the Defendant, its directors, agents, servants and/or privies from alienating, transferring, dissipating, and moving outside the jurisdiction Defendant’s fixed and moveable assets which are within Nigeria, particularly:
a. One Unit of Fugro two (2) man Mobile Dive System in Shell H-Block.
b. One Unit of Fugro Mobile Dive System and Decompression Chamber/Dive Control in Shell H-Block.
c. One Unit of Fugro Mobile Dive System and Decompression Chamber/Dive Control in Lagos Anchorage.
d. One Unit of Fugro Fibre Glass SRP Boat (Lady Hend) located at Shell H-block.
e. One Unit of Fugro Decompression Chamber/Dive control located in Onne, Port-Harcourt, Rivers State.
f. One Unit of Fugro AV 19

Rack System located in Onne, Port Harcourt, Rivers State.
g. One Unit of Fugro Launch and Recovery System located in Onne, Port-Harcourt, Rivers State.
h. One Unit of Fugro Machinery Container located in Onne, Port-Harcourt, Rivers State.
i. One Unit of Fugro Subsea Inspection Equipment located in Onne, Port-Harcourt, Rivers State.
pending the hearing and final determination of this claim as an undefended Suit.
AND FOR SUCH FURTHER ORDER or Orders as this Honourable Court may deem fit to make in the circumstances of this case.

The lower Court granted all these reliefs sought by the Respondent in the said application in its Ruling delivered on 5/5/2016. Pursuant to that Order of Court, the Respondent on 12/5/2016, filed the Writ of Summons marked ‘undefended’ and an affidavit in respect of same as prescribed by Order 12 of the lower Court’s Rules. The Appellant did not file a notice of intention to defend but rather entered a Conditional Memorandum of Appearance and also filed a Motion on Notice on 22/6/2016 seeking these Orders, page 248 of the Record of Appeal:

AN ORDER of Stay of proceedings in

this Suit.
2. AN ORDER directing the parties to proceed to arbitration in respect of the dispute between them in line with Clause 12 of the Memorandum of Agreement between the parties dated the 22nd March, 2015 AND Clause 34 of the BIMCO Charterparty Agreement dated 11th October, 2015;
AND/OR
3. AN ORDER of the Honourable Court striking out this Suit for lack of jurisdiction
4. AN ORDER of accelerated hearing of this application
5. SUCH FURTHER or other ORDER(S) as this Honourable Court may deem fit to make in the circumstances.

The Respondent, in response to the Appellant’s Motion on Notice, filed a Counter Affidavit. The Appellant filed a Further and Better Affidavit, to which the Respondent filed a Further and Better Counter Affidavit. The lower Court heard the Appellant’s Motion of Notice and on 4/5/2018 delivered its ruling thereon, dismissing the said application.

At the hearing of the matter on 21/5/2018, the Appellant had still not filed any notice of intention to defend the suit, the averments in the affidavit filed in support of the writ of summons and the claim on the said writ were therefore

undisputed and unchallenged. The learned trial Judge, noting that the Appellant, as defendant therein, had failed to deliver any notice of intention to defend the action, entered judgment in favour of the Respondent wherein all the reliefs sought by the Respondent in the Writ of Summons filed on 12/5/2016 were granted by the lower Court.

Aggrieved by the Ruling and Judgment of the lower Court delivered on 4/5/2018 and on 21/5/2018, the Appellant lodged this appeal by Notice of Appeal on three grounds of appeal, filed on 31/5/2018, pages 444 – 446 of the Record of Appeal.

The parties filed Briefs of Argument, pursuant to the Rules of this Court. The Appellant’s Brief was filed on 29/10/2019 but deemed properly filed and served on 9/12/2020. The Respondent’s Brief was filed on 5/11/2019 but deemed properly filed and served on 9/12/2020. The Respondent also filed a Motion on Notice on 5/11/2019 seeking the striking out/dismissal of the entire appeal, and/or Issue 3 as formulated in the Appellant’s Brief. Arguments in support of the said Motion were contained in the Respondent’s Brief. The Appellant filed a Counter Affidavit

in opposition, and a written address in support thereof, on 27/11/2019, as well as a Reply Brief on 27/11/2019. The Respondent filed a Reply on Points of Law on 18/3/2020. Two Lists of Additional Authorities were also filed by the Respondent on 18/3/2020 and on 7/12/2020.

At the hearing of the appeal on 9/12/2020, learned Senior Counsel for the Respondent, Chief Wole Olanipekun, SAN, who appeared with Akintola Makinde, Esq., and Olajide Salami, Esq., moved their motion, being in the nature of a preliminary objection. Learned Senior Counsel adopted the arguments in support of the Motion as were canvassed in the Respondent’s Brief and urged the Court to uphold their objection. Babajide Olowoyeye, Esq., who appeared with Denis Dema, Esq., for the Appellant, adopted their arguments in opposition to the Motion on Notice as canvassed in the Appellant’s Reply Brief of 27/11/2019. He urged the Court to dismiss the Respondent’s Motion. As is customary, the preliminary objection shall first be considered.

Motion on Notice.
The Respondent in the Motion on Notice seeks the following Orders:
1. AN ORDER of this Honourable Court

striking out and/or dismissing the appeal.
FURTHER AND/OR IN THE ALTERNATIVE TO PRAYER 1 ABOVE:
2. AN ORDER of this Honourable Court striking out Issue 3 as formulated in the appellant’s Brief of Argument filed on 30th October, 2019 and all the arguments made therefrom.
AND FOR SUCH OTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances of this case.
TAKE FURTHER NOTICE that the grounds upon which this application is brought are as follows:
i. The lower Court delivered its Ruling and Judgment on 4th May, 2019 and 21st May, 2019 respectively.
ii. Being dissatisfied with the decisions of the lower Court in (1) supra, the appellant filed a Notice of Appeal containing 3 grounds of appeal before the lower Court dated 31st May, 2018.
iii. Ground 3 in the notice of appeal dated 31st May, 2018 is an omnibus ground of appeal.
iv. Ground 3 in the said notice of appeal cannot on its own sustain or be the predicate for an issue for determination.
v. Appellant filed its Brief of Argument on 29th October, 2019 where it distilled three issues for determination.
vi. Further to (iv) and (v)

supra, Issues 1, 2 and 3 formulated in the Appellant’s Brief of Argument were not linked to any ground of appeal.
vii. In the circumstance of the appeal against the decisions of the lower Court, the appellant could only validly formulate a maximum of two issues for determination in its Brief of Argument.
viii. The three issues formulated in the appellant’s Brief of Argument are incompetent.
ix. The appellant’s Brief of Argument filed on 29th October, 2019 is incompetent.
x. Further to (i – ix) supra, the entire appeal is incompetent and ought to be struck out by this Honourable Court.
xi. Issue 3 formulated in appellant’s Brief does not arise from the Ruling and Judgment of the lower Court delivered on 4th May, 2019 and 21st May, 2019 respectively, neither does it relate to any issue joined by the parties at the lower Court.

In support of the Motion was an affidavit of 4 paragraphs deposed to by Owolabi Quam Bisiriyu, Legal Practitioner in the law firm of Wole Olanipekun & Co. The Counter Affidavit of 21 paragraphs was deposed to by Babajide Olowoyeye, Esq., Legal Practitioner in The Carrington Law Firm.

Arguments
Senior Counsel for the Respondent submitted that a Notice of Appeal, being the originating process for an appeal, is brought to life by the issues for determination, and a party to an appeal must situate its issues for determination in the grounds of appeal. This is fundamental as an entire appeal can be struck out for incompetent issues for determination. Authorities relied on include Oceanic Bank Int. Ltd v Chitex Ind. Ltd (2001) FWLR (PT 4) 678 at 689; Dada v Dosunmu (2006) 18 NWLR (PT 1010) 134 at 165. The Appellant in the Appellant’s Brief had raised three issues for determination. It was contended that all three issues were fundamentally defective and thereby rendered incompetent and liable to be struck out. The Appellant raised three issues for determination whereas only two grounds of appeal can independently sustain the issues for determination. The third ground is the omnibus ground which cannot, on its own anchor an issue for determination. Reliance was placed on the pronouncement of the Supreme Court in Mrs. Grace Chiadi & Anor v Miss Opuine Aggo & 2 Ors (2018) 2 NWLR (PT 1603) 175 at 211.

It was submitted that issues for determination must be distilled from the grounds of appeal contained in the notice of appeal, and any issue for determination that has no reference to or that has not arisen from a ground of appeal would not be considered by the appellate Court. An issue formulated for determination in an appeal that is neither related to nor can be distilled from each or all of the grounds of appeal, is unarguable and liable to be struck out for being incompetent, citing Araka v Egbue (2003) 15 NSCQR 150, Ifediorah v Ume (1988) 2 NWLR (PT 74) 5; Nwadike v Ibekwe (1987) 4 NWLR (PT 67) 718. The Court was invited to note that that the Appellant failed to tie his issues to any ground of appeal. Where an issue raised in the brief does not relate to a ground of appeal, it is incompetent, a non-issue and needs to be struck out; relying on Okoye v NCFC Ltd (1991) 6 NWLR (PT 199) 501 at 533. Further, it is not permissible to canvass arguments on issues that have no bearing with any ground of appeal, citing AP Ltd v Owodunni (1991) 8 NWLR (PT 210) 391 at 423. The Court was urged to strike out the three issues for determination as framed by the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On Issue 3, in particular, it was argued that the said issue did not arise from the decision of the lower Court and that it did not relate to any of the issues agitated at the lower Court by the parties or those complained of in the grounds of appeal. An issue must be formulated from a ground of appeal, and where it is not so encompassing, it becomes a non-issue and must be ignored, citing Labiyi v Anretiola (1992) 8 NWLR (PT 258) 139. The Court was urged to strike out the Appellant’s Issue 3 and all submissions made thereon, not being supported by any ground of appeal and therefore incompetent. Further reliance was placed on Oniah v Onyia (1989) 1 NWLR (PT 99) 514.

An appeal is a continuation of hearing and also be way of rehearing, pursuant to Order 7 Rule 2 of the Court of Appeal Rules, 2016 and citing Aiyeola v Pedro (2014) 13 NWLR (PT 1424) 409 at 447. It was argued that there was no case made at the lower Court on alleged dissimilarities between the proposed writ of summons attached to the motion ex parte of 25/4/2016 and the Writ of Summons filed on 12/5/2016, as argued in Issue 3 by the Appellant. The said issue, not having been contested

at the lower Court, could not have formed part of the decision of the lower Court from which this appeal has arisen. An appeal can only arise from the ratio decidendi of the lower Court’s decision, relying on Military Administrator, Ekiti State v Adeyelu (2007) All FWLR (PT 369) 1195 at 1220. Senior Counsel finally urged the Court to uphold the Respondent’s objection.

For the Appellant, the following three issues were raised for the determination of the Respondent’s motion, which in the Reply Brief, were argued as Issues 5, 6 and 7:
5. Whether issue three (3) of the Appellant’s Brief of Argument is an issue on Jurisdiction that can be raised at any time even for the first time on appeal and then, even orally.
6. Whether all the three (3) issues for determination stated in the Appellant’s Brief of Argument dated 29th October, 2019 relates to the Three (3) Grounds of Appeal contained in the Appellant’s Notice of Appeal dated 31st May, 2018.
7. Whether the Court of Appeal is restricted to only the Grounds of Appeal set-forth by the Appellant in determining an Appeal brought before it.

On Issue 5, it was submitted that an issue of jurisdiction can be raised at any time, even on appeal, and orally, citing Oliyide & Sons Ltd v OAU, Ile-Ife (2018) LPELR-43711(SC). The judgment on appeal was given on a defective Writ of Summons. This defect was said to be that it did not comply with a condition precedent to the filling of same. The Order of Court on 5/5/2016 was to the effect that the Respondent should file a writ of summons same as the proposed amendment which was not marked “UNDEFENDED” but rather the Respondent filed a writ of summons marked “UNDEFENDED” in violation of the said order. The Respondent also failed to file and attach a statement of claim with the said writ of summons filed on 12/5/2016, as stipulated by Order 13 Rule 1 of the Federal High Court (Civil Procedure Rules) 2009. The effect of non-compliance with a condition precedent is that the lower Court would be without jurisdiction to hear the matter, relying on NCC v Motophone Ltd & Minister of Communications (2019) 14 NWLR (PT 1691) 30. It was further submitted that the issue of jurisdiction can be raised even when it was not captured by the grounds of appeal,

citing Okunrinjeje & Anor v Ajikobi (2018) LPELR-44850(CA).

On Issue 6, it was argued that the three issues distilled for determination were solidly footed in the three grounds of appeal. Issue 1 relates to ground 2, Issue 2 relates to ground 2 while Issues 1 and 2 which relate to the Ruling and Judgment of 4/5/2016 and 21/5/2016 on appeal, were distilled from ground 3, the omnibus ground.

On Issue 7, it was argued that the Court is not restricted to only the grounds of appeal set forth by the Appellant in determining the appeal. The Court may suo motu set forth issues for determination, relying on Order 7 Rule 5 of the Court of Appeal Rules, 2016 (COA).

In their Reply on points of law, Senior Counsel for the Appellants urged the Court to strike out the issues formulated by the Appellant. A party is not entitled to formulate issues for determination of a preliminary objection. Reliance was placed on Okelue v Medukam (2011) 2 NWLR (PT 1230) 176 at 195. It was submitted that an issue for determination cannot be used as a reaction to a preliminary objection. Issues for determination must arise from grounds of appeal; EFCC v Akingbola (2015)

11 NWLR (PT 1470) 249 at 293 – 294.

The Court was invited to note that the Appellant did not identify the ground of appeal upon which its Issue 3 was predicated. The Appellant’s contention that its Issue 3 raises a jurisdictional point cannot be a valid defence to formulation of an issue at large that is not rooted in the grounds of appeal.

It was submitted that the provisions of Order 7 Rule 5 COA does not relate to formulation of issues and does not permit formulation of issues for determination outside the grounds of appeal. The discretion therein is for the Court and not an appellant, where the Court decides to raise an issue that it considers meritorious suo motu, the respondent must be given opportunity to respond. Issue 3 was not raised by the Court; therefore Order 7 Rule 5 is not applicable. Senior Counsel relied on Okelue v Medukam (supra) to urge the Court to strike out Issue 3.

It was further submitted that the Appellant, by its submissions, formulated Issues 1 and 2 from ground 3, which is not permitted. One ground of appeal cannot be the basis for more than one issue for determination. The two issues formulated from

ground 3 ought to be struck out. The Appellant’s arguments on this point as set out in paragraph 8.5 of the reply brief should be taken as an admission against interest as contemplated by Section 20 of the Evidence Act. Reliance was also placed on Arta Industries (Nig) Ltd v NBCI (1998) 4 NWLR (PT 546) 357; Seismograph Industry Ltd v Eyuafe (1976) 9 – 10 SC 135. As an admission against interest, the Appellant cannot resile from the consequences of such an admission.

In the List of Additional Authorities filed on 18/3/2020, Senior Counsel also cited and relied on Odogwu v State (2013) 14 NWLR (PT 1373) 74; Idris v Archibong (2001) 9 NWLR (PT 718) 447 at 455.

Resolution of Motion on Notice
Let me commence by noting that it was very absurd for the Appellant to formulate issues for resolution of the preliminary objection by way of a motion on notice filed by the Respondent. A preliminary objection challenges the issue of jurisdiction of a Court or its competence to entertain a matter for defined reasons. See Hassan v Aliyu (2010) LPELR-1357(SC), (2010) 17 NWLR (PT 1223) 547. As clarified in Akpan v Bob (2010) LPELR-376(SC) at 39 – 40:

“An objection in law portrays a formal opposition of an objector against the happening of an event which has already taken place or is about to take place now or in the future and the objector seeks the Court’s immediate ruling or intervention on the point. A preliminary objection seeks to provide an initial objection before the actual commencement of the thing being objected to.”
It is therefore for the objector to give grounds for the objection and for the other party thereto to respond. The adverse party cannot by way of response to an objection evoke or frame issues for determination. Similarly, a respondent cannot challenge the competence of an appeal by an issue or issues he has formulated for the determination of the appeal, which issues would necessarily be rooted in the grounds of appeal filed by the appellant. See Okelue v Medukam (supra); Medukam v Egemole (2010) LPELR-9143(CA).
The Respondent challenged the competence of the issues distilled by the Appellant for the resolution of this appeal by way of a motion on notice. The said motion on notice was in effect, a preliminary objection. It was therefore, for the

Appellant to respond to the contentions of the Respondent on the competence of the issues distilled for the determination of the appeal and not for the Appellant to now formulate issues for determination of a preliminary objection/motion that he did not originate and which challenged the competence of the issues raised for determination of the appeal itself. The issues formulated by the Appellant for determination of the preliminary objection of the Respondent are therefore incompetent and are hereby struck out.

Notwithstanding, in consciousness of the responsibilities of a penultimate Court, I shall consider the arguments of the Appellant in response to the objections of the Respondent on the merit.

The Notice and Grounds of Appeal as lodged by the Appellant as follows:
GROUND ONE: ERROR IN LAW
The Honourable Court below erred in law when it heard that the Appellant’s objection to exercise of jurisdiction is frivolous and that the dispute been an admiralty matter is within its jurisdiction notwithstanding the agreement of parties to resort to arbitration in settlement of its disputes.

PARTICULARS
i. By the Charter party agreement and the memorandum of agreement signed between the parties, parties unequivocally agreed to refer their disputes to arbitration.
ii. The Court lacked jurisdiction to adjudicate on the dispute.
iii. The resort of the respondent to the lower Court is a breach of the terms of the contract between the parties, the provision of the admiralty jurisdiction Act notwithstanding.
GROUND TWO: ERROR IN LAW
The Honourable Court below erred in law when it grated all the reliefs and prayers sought by the Plaintiff/Respondent in its Writ Summons and Statement of Claim and brought under the summary Judgment/Undefended List, same having been made by the Court in error that it had jurisdiction notwithstanding the clear agreement of the parties to resort to arbitration in settlement of its disputes.
PARTICULARS
i. The Honourable Court neglected the Charter party Agreement and Memorandum of Agreement signed by the parties wherein parties on unequivocally agreed to refer their disputes to arbitration and went ahead to entertain the dispute brought before it by the Plaintiff/Respondent.
ii. The Honourable lack

jurisdiction to pronounce on the Plaintiff/Respondent’s Writ of Summon and Statement of Claim and brought under the summary Judgment/Undefended List having neglected to comply with the mandatory provisions of Section 5 of the Arbitration and Conciliation Act.
GROUND THREE: OMNIBUS GROUND
THE RULING AND THE JUDGMENT DATED 4TH DAY OF MAY 2018 AND 21ST DAY OF MAY 2018 RESPECTIVELY IS UNREASONABLE and/or unwarranted and cannot be supported having regard to the agreement of the parties to resolve all disputes by arbitration thus violating the rules of pacta sunt servanda.
From these grounds, the Appellant distilled 3 Issues for determination:
1. Whether the Lower Court was right when it dismissed the Appellant’s Application dated 22nd June, 2016 for AN ORDER staying proceedings and directing parties to proceed to arbitration in respect of the dispute between them in line with Clause 12 of the Memorandum of Agreement between the parties dated the 22nd March, 2015 AND Clause 34 of the BIMCO Charterparty Agreement dated 11th October, 2015 in its Ruling delivered on 4th May, 2018.
2. Whether the Lower Court lacked the jurisdiction to

entertain SUIT NO. FHC/L/CS/567/2016 and deliver the judgment it delivered on 21st day of May, 2018.
3. Whether the Lower Court lacked the jurisdiction to deliver its judgment of 21st May, 2018 wherein it granted all the reliefs sought by the Claimant in its Writ of Summons dated 12th May, 2016, marked “UNDEFENDED” in view of the fact that the Respondent filed a Writ of Summons different from the proposed Writ of Summons exhibited in the Affidavit in support of the Respondent’s Originating Motion Exparte dated 25th April, 2016 and the fact that the Respondent failed to file a Statement of Claim in support of the said Writ of Summons dated 12th May, 2016.

As rightly observed by the Respondent, the Appellant failed to tie the issues to any grounds. Counsel have always been admonished to marry the issues raised for determination to the ground or grounds of appeal. See Akpan v. FRN (2011) LPELR-3956(CA); Yussuf v. Ilori (2007) LPELR-5137(CA); Ukwuoma v. Okafor (2016) LPELR-41505(CA); Daisi v IGP (2019) LPELR-47897(CA). This paints a clear picture of the appeal and obviates the need for the respondent and the Court to examine the grounds of

appeal vis-a-vis the issues raised for determination in order to ascertain the competence or otherwise of the issues and ascertain whether any ground of appeal has been abandoned. If this admonition had been adhered to by learned Counsel for the Appellant, there would have been no need for this head of the objection. That said, the point must be made that the extant COA Rules do not prescribe that Issues for determination must be tied to the grounds in briefs of parties, on pain of a sanction. Thus, where an appellant has failed to tie his issues to the grounds of appeal, as is the convention or practice, the attitude of the appellate Courts appears to be one of liberality. The Court would resound the caution but still go on to examine the issues against the grounds. Therefore, while failure to adhere strictly to the practice may not be penalized, the Court is bound to ensure that the issues formulated for determination of an appeal are in fact related to or arise from the grounds of appeal.

I would also emphasize that issues for determination are formulated from the grounds of appeal only and not from other details in the Notice of Appeal, as

Appellant’s Counsel appeared to suggest in paragraph 8.7 of his Reply Brief.

In the Reply Brief, the Appellant’s Counsel argued that Issue 1 relates to ground 1, Issue 2 relates to ground 2, and that Issues 1 and 2 also relate to ground 3, while Issue 3 arose from the ruling and judgment of the lower Court delivered on 4/5/2018 and 21/5/2018. In other words, Issue 1 was formulated from grounds 1 and 3; Issue 2 was formulated from grounds 2 and 3, while Issue 3 was not framed from any ground but was contended to arise from a jurisdictional issue. Straightway, it can be said without equivocation, that there are glitches to the competence of the issues as framed for determination of this appeal.

There are established rules and principles that govern formulation of issues for determination of an appeal. Fundamentally, neither party in an appeal, is allowed or entitled to formulate more issues than the grounds of appeal; Anyegwu & Anor v. Onuche (2009) LPELR-521(SC); Nweze v State (2017) LPELR-42344(SC). While an issue for determination may arise from one or a combination of grounds of appeal, one ground of appeal cannot birth more than

one issue. Thus, while, where appropriate, a number of grounds of appeal could birth a single issue, one issue cannot be founded on more than one ground of appeal. This is proliferation of issues, which is totally frowned upon. See Labiyi v. Anretiola (1992) LPELR-1730(SC), (1992) 10 SCNJ 1 at 2; Nwankwo v Yar’Adua (2010) LPELR-2109(SC); Yisi Nigeria Limited v. Trade Bank Plc (2013) LPELR-20087(SC). Where an appellant has formulated more than one issue from one ground of appeal, the issues are incompetent and liable to be struck out. See Okwuagbala & Ors v. Ikwueme & Ors (2010) LPELR-2538(SC); Okonobor & Ors v Edegbe & Sons Transport Co. Ltd (2010) LPELR-2488(SC).
Further, it is settled that for issues for determination in an appeal to be competent, they must flow from the grounds of appeal. See Akpan v Bob (supra); Nwankwo v Yar’Adua (2010) LPELR-2109(SC); Ukiri v Geco-Prakla (Nig) Ltd (2010) LPELR-334(SC); Idika & Ors v Erisi & Ors (1988) 2 NWLR (PT 78) 563. An issue for determination in an appeal must be formulated from a ground of appeal which in itself represents the broad outline of the complaint against the decision being

challenged. The purpose of a ground of appeal is to define the complaint against the decision being appealed against. Issues for determination cannot therefore be at large, but must fall within the purview of the grounds of appeal filed. It cannot be overemphasized that competent issues for determination must be based on, related to or arise from the grounds of appeal. Any issue or issues not formulated or distilled from a ground of appeal is incompetent and must be struck out. See Okonobor & Ors v Edegbe & Sons Transport Co. Ltd (supra); Olowosago v. Adebanjo (1988) 9 SC 87; Drexel Energy and Natural Resources Ltd v. Trans International Bank Ltd (2008) 18 NWLR (PT.1119) 388.
The ground that a judgment or decision of the lower Court is against the weight of evidence is an omnibus ground of appeal. Clarifying what is implied by an omnibus ground, the Apex Court, per Kalgo, J.S.C. in Bisiriyu Akinlagun & Ors. v. Taiwo Oshoboja & Anor (2006) LPELR-348(SC) at page 19, (2006) 5 SC (PT.11) 100:
“An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not

against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law. See Ajibona v. Kolawole (1996) 10 NWLR (Pt.476) 22.”
See also Lagga v. Sarhuna (2008) LPELR-1740(SC); Nefco Nigeria Limited & Ors v. Mr Udo Ekere & Ors. (2013) LPELR-20423(CA). Therefore, no issue can be raised on an omnibus ground alone. The omnibus ground will stand as support for a complaint on a finding of fact on a specific issue that must be founded on a substantive ground of appeal challenging that finding. As unequivocally stated by this Court in The Nigeria Foundation for The Support of Victims of Terrorism v. Coalition on International Criminal Court Ltd/Gte (2020) LPELR-49885(CA), per Nimpar, J.C.A., at page 10:
“It is now settled that an Appeal predicated on the omnibus or general ground is not at large. It cannot be used to raise an issue of law as has been done in the Appellant’s brief. Such issue of law must be raised as a separate Ground of Appeal and made an adjunct to the Omnibus Ground of Appeal. See DAVIES V. POWELL DUFFRYN ASSOCIATED COLLIERIES LTD. (1942) AC 601 at 616 – 617 and

Onaga & Ors. v. Micho & Co. & Ors. (1961) All NLR 324; (1961) 2 ANLR 209; (1961) 2 SCNLR 107.”
Now, applying these principles to the issues for determination as framed by the Appellant, the incompetence of the said issues becomes very apparent. In the first place, by the admission in paragraph 8.5 of the Appellant’s Reply Brief, Issue 1 was distilled from grounds 1 and 3; while Issue 2 was distilled from grounds 2 and 3. Thus, Issues 1 and 2 were both distilled from ground 3. By established principles governing formulation of issues as highlighted above, this amounts to proliferation of issues; Labiyi v. Anretiola (supra); Nwankwo v Yar’Adua (supra); Yisi Nigeria Limited v. Trade Bank Plc (supra). Ground 3, which is an omnibus ground of appeal, cannot birth 2 different issues for determination. Both Issues 1 and 2 are thereby rendered incompetent. See Okwuagbala & Ors v. Ikwueme & Ors (supra); Okonobor & Ors v Edegbe & Sons Transport Co. Ltd (supra) and are hereby struck out.

Issue 3 was admittedly not founded on any ground of appeal. It is trite that an issue for determination must be distilled from a ground of appeal.

To reiterate any issue not formulated or distilled from a ground of appeal is incompetent and must be struck out. See Okonobor & Ors v Edegbe & Sons Transport Co. Ltd (supra); Olowosago v. Adebanjo (supra); Drexel Energy and Natural Resources Ltd v. Trans International Bank Ltd (supra); Bayero v. Mainasara & Sons Ltd (2006) LPELR-7587(CA), (2006) 8 NWLR (Pt.982) 391.

The Appellant’s Counsel argued that Issue 3 was an issue relating to jurisdiction and that the issue of jurisdiction can be raised, even when it was not captured by the grounds of appeal, citing Okunrinjeje & Anor v Ajikobi (supra). There is no doubt that the issue of jurisdiction can be raised at any stage of the proceedings, even without leave of Court. See Gaji v Paye (2003) LPELR-1300 (SC); Opobiyi v Muniru (2011) LPELR-8232(SC); Agbiti v Nigerian Navy (2011) LPELR-2944(SC). But that issue must arise from or be related to a ground of appeal. In Okunrinjeje & Anor v Ajikobi (supra), the issue of jurisdiction was not raised in the air, the Court found it was subsumed in the appeal. What must be relied on is the ratio decidendi of a case and not a comment made obiter.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The particulars in support of the ground must reveal the breach on jurisdiction complained about in no uncertain terms; Federal Housing Authority v Kalejaiye (2010) LPELR-1267(SC); Minister of Petroleum & Mineral Resources v Expo-Shipping Line (Nig) Ltd (2010) LPELR-3189(SC). The ground of appeal must detail the precise complaint on jurisdiction in its particulars. This would present a clear picture of the complaint to the adverse party and demonstrate to the Court that there has indeed been a breach of jurisdiction. This is fundamental as it is not every complaint labelled as a breach of jurisdiction that is, in actual fact, what it portends to be. As was emphasized in Federal Housing Authority v Kalejaiye (supra) per Mukhtar, J.S.C. (as he then was), page 25-26:
“It is not every ground of appeal that raises the issue of jurisdiction that will be regarded as one. The particulars supporting the ground must be thoroughly examined in order to convince a Court that there exists a breach complained of.”
In this appeal however, Issue 3 has not arisen from any ground of appeal with detailed particulars.

Further, the Appellant’s Counsel relied on Order 7 Rule 5 of the COA, which provides:
Notwithstanding the foregoing provisions, the Court in deciding the appeal shall not be confined to the grounds set forth by the Appellant provided that the Court shall not if it allows appeal, rest its decision on any ground not set forth by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground.
I absolutely do not see how these provisions assist the Appellant in justifying an issue not distilled from any ground of appeal, even if it is an issue of jurisdiction. By the clear wordings of Order 7 Rule 5, it is the Court that is empowered to raise such an issue suo motu but it must give the parties an opportunity to address it on that issue. The point has been made that the issue of jurisdiction can be raised at any stage of the proceedings, even by the Court suo motu, with the caveat that the parties must be given an opportunity to address it on; Olutola v University of Ilorin (2004) LPELR-2632(SC); Stirling Civil Engineering (Nigeria) Ltd v Yahaya (2005) LPELR-3118(SC); Egharevba v Eribo (2010) 9 NWLR (PT 1199) 411;

Jev v Iyortyom (2014) LPELR-23000(SC). Senior Counsel for the Respondent rightly pointed out that the Court did not raise any issue of jurisdiction suo motu. Therefore, the provisions of Order 7 Rule 5 do not avail the Appellant.
The complaint in Issue 3 was that the lower Court had no jurisdiction to deliver the judgment of 21/5/2016 because the Writ of Summons filed by the Respondent was different from the proposed Writ of Summons exhibited in the Affidavit in support of the Respondent’s Originating Motion Ex parte dated 25/4/2016 in that it was marked ‘Undefended’ and that the Respondent failed to file a Statement of Claim in support of the said Writ of Summons dated 12/5/2016. I note that this complaint was not made at all before the lower Court. There was therefore no decision thereon by the lower Court. The law is quite settled that grounds of appeal must arise from the decision appealed against and the complaint must be against the ratio of the decision; FRN v Mohammed (2014) LPELR-22465(SC). A ground of appeal must arise from the decision of the lower Court on appeal. Issue 3 cannot be hanging on nothing. I agree with the Respondent that Issue 3 is incompetent.

In sum, there is merit in the Preliminary Objection. It is therefore upheld. The issues framed by the Appellant for the determination of this appeal are all incompetent. The only result is that the Issues cannot be considered by the Court. Issues 1 – 3 are accordingly struck out.

Ordinarily, this ought to be the end of this appeal, but Senior Counsel for the Respondent formulated a sole issue for determination from the Appellant’s grounds of appeal:
Considering the facts and circumstances of the case at the lower Court, whether the said Court was correct to have reached the decisions delivered on 4th May, 2018 and 21st May, 2018. (Grounds 1, 2, and 3)

This Issue encompasses the complaints of the Appellant. I shall therefore consider the merits of this appeal on this sole issue.

Substantive Appeal
Arguments for the Appellant
The parties herein had entered into a commercial agreement in 2015 as regulated by a Memorandum of Agreement (MOA) dated 22/3/2015 and the BIMCO Charter Party Agreement dated 11/10/2015 wherein parties agreed in Clause 12 of the MOA and Clause 34 of the BIMCO

Charter Party Agreement that in the event, a dispute arises between the Respondent and the Appellant herein, the aggrieved party should resort to Arbitration in London. The said Clause 12, pages 16 – 22 of the Record of Appeal, and Clause 34 of the BIMCO Charter Party Agreement, page 38 of the Record of Appeal, are reproduced hereunder:
Clause 12.1
“The Parties agree that any and all claims, disputes, controversies and any other matter arising out of or related to any validity, scope, making, interpretation, enforceability, performance, breach of, or relating in any way to this MOA, or the relationship between PETROLOG LIMITED and FUGRO created by this MOA, or the subject matter of this MOA, including, but not limited to, arbitrability or the authority or capacity of any signatory to this Agreement (collectively, a “Dispute”), will be resolved by consultation between the Parties.
Clause 12.2
Any Dispute not resolved within thirty (30) days after the notice from PETROLOG LIMITED or FUGRO requesting such consultation, will be determined and resolved by submission to the International Chamber of Commerce for binding

arbitration in London, England according to the Rules of Arbitration of the London Maritime Arbitrators Association, supplemented by the International Bar Association Rules on the Taking of Evidence in International Maritime Arbitration. The arbitration will be conducted in English.”
Clause 34 of the BIMCO Agreement:
“(a) This Charter Party shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this Charter Party shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Clause. The arbitration shall be conducted in accordance with the London Maritime Association (LMAA) terms current at the time when the arbitration proceedings are commenced.”

The complaint of the Appellant was that the Respondent, against the sanctity of the contract by the MOA and the BIMCO Charter Party Agreement, rushed to the lower Court, which gave judgment in favour of the Respondent, in violation of the said Agreements. Parties are bound

by their contract, citing Vincent U. Egharevba v. Dr Orobor Osagie (2009) LPELR-1044(SC); Mr. Charles Mekwunye v. Mr. Christian Imoukhuede [2019] 13 N.W.L.R (Pt) 60 at 459. The Appellant’s Counsel also relied on the provisions of Section 5 (1) of the Arbitration and Conciliation Act, Laws of The Federation of Nigeria, Cap A18, which provides:
“If any party to an arbitration agreement commences any action in Court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement, may at any time after appearance and before delivering any pleading or taking any other steps in the proceedings, apply to the Court to Stay Proceedings.”

It was submitted that the dispute clauses in both agreements between the parties would show the applicable laws, the mode of dispute resolution, being arbitration, and venue of such arbitration. It connotes that parties should respect arbitration clauses as embedded in the agreements between them. Reliance was placed on the decisions in Folarin Rotimi Abiola Williams v. Chief Oladipupo Akanni Olumuyiwa Williams & Ors. (2014) LPELR-22642 (CA);

Sino-Afric Agriculture & Ind Company Limited & Ors v. Ministry of Finance Incorporation Anor (2013) LPELR-22370 (CA). Counsel argued that in obedience to the said Agreements, the Appellant expected that the Respondent would explore arbitration, only for the Respondent to file the instant Suit No. FHC/L/CS/567/2016 in breach of their said Agreements. The Appellant had by its Motion on Notice of 22/6/2016 prayed the lower Court to Stay Proceedings in the said action and for Court to direct parties to proceed to Arbitration in compliance with Clause 12 of the MOA and Clause 34 of the BIMCO Charter Party Agreement, but the lower Court dismissed the said prayers. It was posited that the lower Court erred in law to have refused the Appellant’s said prayers, citing Folarin Rotimi Abiola Williams v. Chief Oladipupo Akanni Olumuyiwa Williams & Ors. (supra); Mr. Charles Mekwunye v. Mr. Christian Imoukhuede (supra). By virtue of Section 5(1) of the Arbitration and Conciliation Act, the Appellant acted within the bounds of the law. The Court was invited to take judicial notice of a directive issued by the former Chief Justice of Nigeria, Hon. Justice Walter Onoghen

(Rtd.) on 26/5/2017. The decision in City Engineering Nigeria Ltd. v. Federal Housing Authority (1997) LPELR-868 (SC) was also relied on.

It was further posited that if the Appellant’s motion seeking an Order to Stay Proceedings and parties directed to Arbitration had been granted, there would have been no reason for the lower Court to deliver its judgment of 21/5/2018. Counsel argued that since the Ruling delivered by the Lower Court on 4/5/2018 was incompetent, the lower Court lacked the jurisdiction to deliver the judgment of 21/5/2018. Where a Court entertains a matter that it lacks jurisdiction to entertain, its decision no matter how well constructed is a nullity, citing Ugwojor v Chevron Nigeria Limited & Ors (2006) LPELR -11772(CA). There are three factors which must co-exist before a Court can assume jurisdiction over a matter as espoused by the Supreme Court in the case of Peter Okonkwo & Ors. v. Bernard Okonkwo & Ors. (2010) LPELR-9357(SC):
(a) It is properly constituted as regards numbers and qualification of the members of the bench and no members is disqualified for one reason or the other.
(b) The subject-matter

of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction and
(c) The case comes by due process of law upon fulfilment of any condition precedent to the exercise of jurisdiction.

On the meanings ascribed to the phrases “due process of law” and “condition precedent” as contained in (c) above, Counsel relied on a number of judicial authorities, such as Okoreaffia & Anor. v. Agwu & Anor. (2008) LPELR-4724 (CA); Sylva v. INEC & Ors (2015) LPELR-24447 (SC); Nigercare Development Company Ltd. v. Adamawa State Water Board & Ors. (2008) LPELR-1997(SC); Allanah & Ors v. Kpolokwu & Ors (2016) LPELR-40724(SC). Non-compliance with a condition precedent to instituting an action robs the Court of its jurisdiction to entertain same. It was submitted that the Respondent did not institute Suit No. FHC/L/CS/567/2016 by due process of law because the Respondent failed to explore the Arbitration clauses contained in Clause 12 of the MOA and Clause 34 of the BIMCO Charter Party Agreement, which is a condition precedent to the exercise of the

jurisdiction of the lower Court, citing Sino-Afric Agriculture & Ind Company Limited & Ors v. Ministry of Finance Incorporation Anor (supra).

The Respondent instituted this Suit by an Originating Motion Ex-parte dated 25/4/2016 seeking in the main “AN ORDER granting leave to issue Writ of Summons in respect of a claim to recover a debt and liquidated money demand as specified in the “proposed” Writ of Summons attached to the supporting affidavit as Exhibit C9”. The Lower Court in its Ruling delivered on 5/5/2016 granted all the Respondent’s prayers. Appellant’s Counsel contended that Exhibit C9, the Proposed Writ of Summons, was different from the Writ of Summons which was eventually filed by the Respondent on 12/5/2016 in that the said Writ of Summons filed on 12/5/2016 was marked “UNDEFENDED” while the Proposed Writ of Summons, Exhibit C9, was not marked “UNDEFENDED”. He argued that the Order of the lower Court on 5/5/2016 was for the Respondent to file a Writ of Summons the same in content and form with Exhibit C9 attached to the Affidavit in support of the Respondent’s

Originating Motion ex parte of 25/4/2016 with no modification. The Respondent’s act of marking the Writ of Summons filed on 12/5/2016 “UNDEFENDED” amounted to a violation of the Order of the Lower Court delivered on 5/5/2016.

It was further argued that, assuming without conceding that there was no agreement between parties to resort to Arbitration in the event that a dispute arises in respect of the contract between them, the lower Court still erred in law to have delivered its judgment of 21/5/2018 when the Respondent as claimant did not file a Statement of Claim in support of the said Writ of Summons of 12/5/2016. Reliance was placed on the provisions of Order 13 Rule 1 of the Federal High Court (Civil Procedure Rules) 2009. It was argued that it is only by filing a Statement of Claim that a Plaintiff can validly bring his claim before the Court and absence of a Statement of claim means there are no claims before the Court to sustain the Plaintiff’s action, citing and relying on Ohaji v. Unamka (2010) LPELR-3545(CA); Fumudoh v Aboro (1991) 9 NWLR (PT 214) 210. It was submitted that with the defective writ of summons and the

Respondent’s failure to file a Statement of Claim, there was no basis for the judgment of the lower Court delivered on 21/5/2018 as a defective Writ of Summons cannot give life to the jurisdiction of the Court, citing the case of Esiri & Ors v. Registered Trustees Anointed Word Bible Ministries & Anor (2018) LPELR-44541 (CA).

The Court was finally urged to hold that in the light of the Respondent’s defective Writ of Summons of 12/5/2016, and in view of the fact that the Respondent failed to file a Statement of Claim, the Respondent had no claim before the lower Court, which had no jurisdiction to entertain the said Suit No FHC/L/CS/567/2016. The Court was urged to allow the appeal and set aside the judgment of the lower Court delivered on 21/5/2018 as well as the Ruling of the lower Court delivered on 4/5/2018. The Court was further urged to refer the parties to proceed to Arbitration in London as contained in Clause 12 of the MOA and Clause 34 of the BIMCO Charter Party Agreement, in the event that the Respondent intends to ventilate any grievances.

Arguments for the Respondent
The action was commenced under the Undefended List procedure, for the claim of $2, 181,967.87, which was said to be due as an obligation from the Appellant to the Respondent. The Appellant did not contest the correctness of the sum or the entitlement of the Respondent to the said amount by way of a notice of intention to defend or any other manner whatsoever, right from 17/6/2016 when the Appellant entered conditional appearance up until 21/5/2018 when the lower Court delivered judgment. The Court was urged to construe this appeal in the light of the foregoing facts and consequential legal issues, as there was no factual or legal basis to upturn the decision of the lower Court.

The predicate of Appellant’s Brief was essentially a challenge to the jurisdiction of the lower Court to have heard and determined the Suit based on the MOA of 22/3/2015 and the Bimco Charter Party Agreement of 11/10/2015, and in particular, Clause 12 of the MOA and Clause 34 of the Charter Party Agreement. On the premise of these clauses, the Appellant filed a motion on 22/6/2016 seeking a referral of the suit to arbitration, which was opposed by the Respondent. The lower Court took arguments of Counsel and

held that Section 20 of the Admiralty Jurisdiction Act (AJA) was a statutory limitation to the enforcement of the clauses contained in Clause 12 of the MOA and Clause 34 of the BIMCO Charter Party Agreement, and declared that the said Clauses were null and void. Senior Counsel for the Respondent found it significant that the Appellant did not challenge findings of the lower Court in this appeal. The said decisions are therefore binding on the Appellant, citing Ogunde v. Abdulsalam (2017) LPELR-CA/L/797/2010, at pages 65-66; Akere v. Governor Oyo State (2012) 12 NWLR (Pt. 1314) 240 at 278; ACN v. Nyako (2012) 10 – 11 SC 83 at 139; SCC Nig. Ltd v. Anya (2012) 9 NWLR (Pt. 1305) 213 at 222. Senior Counsel listed findings of the lower Court, which were not appealed against and which he argued were binding on the Appellant, and ought to be affirmed by this Court thus:
i. The claim filed by the respondent as Plaintiff before the lower Court was an admiralty action within the contemplation of the Constitution and the Admiralty Jurisdiction Act.
ii. Where any of the conditions set out in Section 20 of the AJA is present, the provision of the said

Section becomes activated.
iii. Section 20 of the AJA is a statutory limitation.
iv. Clauses 13 and 14 of the respective Agreements grounding Appellant’s position are null and void by the token of the operation of the AJA, particularly Section 20 thereof.

It was argued that the claim at the lower Court was an admiralty action in respect of obligations arising from the hire and charter of a Ship. In the light of the findings of the lower Court on the nature of the claim, it was submitted that arguments on pacta sunt servanda, which the Appellant relied on, cannot be sustained, the trite position of the law being that statutory provisions can limit or inhibit the application of the doctrine of pacta sunt servanda. The decisions in M.V. Panormos Bay v. Olam (Nig.) Plc (2004) 5 NWLR (Pt .865) 1; JFS Investment Ltd. v. Brawal Line Ltd. & Ors (2010) LPELR-SC.116/2002, P. 39 were cited and relied on. It was submitted that the doctrine of pacta sunt servanda was not absolute and the facts of this case constitute a situation where priority and deference must be given to the extant statutory provisions.

It was further submitted that

the lower Court was correct when it held that all the elements in Section 20 of AJA need not be present as the introduction of the word qua article “OR” introduces a disjunctive colouration, relying on Izedonmwen v. U.B.N Plc (2012) 6 NWLR (Pt. 1295) 1 at 35. Reliance was also placed on the depositions in the Counter Affidavit, particularly in paragraph 5 (i) – (vii) to submit that the depositions show that Section 20 (a), (b), (c), (d), (f) and (h) of the AJA make the case one in which the said Section 20 is applicable.

Senior Counsel posited that that this appeal has not presented any valid basis for the setting aside of the lower Court’s decisions. Nigeria has the closest connection with the dispute and the United Kingdom has absolutely no connection with the dispute. Reliance was also placed on The Eleftheria (1969) 1 Lloyds L.R; The Fehmarn (1951) 1 All ER 333 at 335 per Denning MR, which decisions were considered and cited with approval by the Supreme Court in Sonnar (Nig.) Ltd v. Nordwind (1987) 4 NWLR (Pt. 66) 520 at 545.

The Court was urged to discountenance all the cases relied on by the Appellant as they are

distinguishable and inapplicable, but rather apply the decisions of M.V. Panormos Bay v. Olam (Nig.) Plc. (supra); JFS Investment Ltd. v. Brawal Line Ltd. & Ors (supra); Sonnar (Nig.) Ltd v. Nordwind (supra), which were relevant to determination of this appeal.

It was further argued that it is the Appellant that needs to overcome a condition precedent and not the Respondent. A condition precedent to the setting aside of the lower Court’s Judgment is a setting aside of the finding that the claim before the lower Court was an admiralty claim. In Ikpeazu v. Otti & Ors (2016) LPELR- 40055 (SC), the Supreme Court held that an appellate Court can only upturn a trial Court’s decision if the fundamental findings populating the decision are set aside. No such jurisdiction to set aside the lower Court’s decision has been activated in the absence of a case challenging those findings. Further, in its final Judgment, the lower Court found that there was no bona fide defence on the merit filed pursuant to Order 12 Rule 3 of the then extant Federal High Court (Civil Procedure) Rules 2009. The lower Court was satisfied that the facts in the

affidavit entitled the Respondent to judgment. There was no appeal against these findings. There was no contest as to the quantum of indebtedness of the Appellant to the Respondent. In the circumstance, there was no arbitrable dispute. On the sui generis nature of undefended list actions, the decision of this Court in Uhembe & Anor. v. Parkes (2013) LPELR-20273 (CA), P. 15, was cited and relied on. Reliance was also placed on Ifeanyi Chukwu T.I.V v. OCB Ltd (2015) 17 NWLR (Pt. 1487) 1 at 25 – 26. Having failed to contest its indebtedness, it was submitted that judgment was properly and judiciously entered against the Appellant. Further submitting on the undefended list procedure, reliance was placed on Cash Affairs Finance Ltd. v. Inland Bank (Nig) Plc (2000) 5 NWLR (Pt 658) 568 at 587. By this decision, the only writ of summons issued in this suit was the one dated 12/5/2016 and issued pursuant to the order of Court made on 20/5/2016. It was only after the order of Court made pursuant to the originating motion ex parte, that the writ of summons could have been marked as undefended. The order granting the motion is still extant and there was no

challenge to same. From Order 12 Rule 1, the lower Court Rules, the mode of commencing an action under the undefended list procedure is sacrosanct and different from the ‘general’ mode of commencement of an action thereat, which does not require the leave of Court. It was submitted that the Respondent duly complied with the said procedure.

On the submission of the Appellant that a statement of claim ought to be filed with the writ of summons, reliance was placed on earlier arguments that the undefended list is sui generis and specifically governed by Order 12 of the 2009 Rules of the lower Court as then extant. The law is trite that the specific overrules the general, relying on Abubakar v. Nasamu (No. 2) (2012) 17 NWLR (Pt. 1330) 523 at 576. The general provisions for pleadings as contained in Order 13 of the lower Court’s Rules are inapplicable to undefended list actions, referring also to Order 12 Rule 3 (3) of the lower Court’s Rules, which the Respondent had complied with. The Court was finally urged to resolve the issue for determination in favour of the Respondent and dismiss this appeal.

The Appellant filed a Reply Brief, which I shall comment on anon.

Resolution
I want to foremostly observe that the Reply Brief, in which the Appellant raised seven Issues for determination, out of which four issues relate to the Respondent’s Brief, is rather befuddling and is by no means a reply brief, as provided for by Order 19 Rule 5(1) of the Court of Appeal Rules, 2016, which provides that a reply brief which shall deal with all the new points arising from the Respondent’s brief. By these provisions, a reply brief is not mandatory. It is only necessary and usually filed when an issue of law or argument raised in the respondent’s brief calls for a reply. Where a reply brief is necessary, it should be limited to answering any new points arising from the respondent’s brief. A reply brief does not provide a fresh window for an appellant to reargue or rehash submissions already made in the appellant’s brief. It is also does not provide opportunity for the appellant to raise new arguments or distil new issues for determination of the appeal. However, when a respondent has raised new points in his brief and the appellant fails to file a reply to the new points

argued, he will be deemed to have admitted the truth of everything stated in the respondent’s brief in so far as such is borne out by the record; Godsgift v State (2016) LPELR-40540(SC); Abdullahi v. The Military Administrator & Ors (2009) LPELR-27(SC) Ojiogu v. Ojiogu & Anor (2010) LPELR-2377(SC). See also Mainstreet Bank Ltd v Binna (2016) 12 NWLR (PT 1526) 316 at 331-332; Mozie v Mbamalu (2006) 15 NWLR (Pt 1003) 466 at 497, cited and relied on by the Respondent in the List of Additional Authorities filed on 18/3/2020.

On the comments made by the Appellant’s Counsel on the number of pages of the Respondent’s Brief, I note that Appellant’s Counsel rightly referred to Order 19 Rule 3(6)(a) of the COA Rules, 2016, by which every brief is to be tagged at 35 pages. I also note that submissions in the Respondent’s Brief were actually concluded at page 34 thereof. Page 35 is the date and signature page, while other pages, which really are an appendix to the Brief, marked (i) and (ii) contain the Respondent’s List of Authorities. The complaint of the Appellant’s Counsel is therefore non sequitur. See also Daniel v FRN

(2014) 8 NWLR (PT 1410) 570 at 600, also reported in (2013) LPELR-22148(CA) at page 27, which was cited and relied on by the Respondent in the List of Additional Authorities filed on 18/3/2020.

The Appellant’s Reply Brief has not responded to any new issue of law contained in the Respondent’s Brief. It has largely rehashed earlier arguments made in the Appellant’s Brief. I shall therefore discountenance the said Reply Brief.

The action leading to this appeal was commenced by the Respondent by way of Originating Motion ex parte pursuant, inter alia, to Order 12 Rules 1 and 2 of the Federal High Court (Civil Procedure) Rules, 2009. Orders 1 and 3 sought by the Respondent were:
1. AN ORDER of this Honourable Court granting leave to issue a writ of Summons in respect of a claim to recover a debt and liquidated money demand as specified in the “proposed” Writ of Summons attached to the supporting affidavit as Exhibit C9.
3. AN ORDER of this Honourable Court entering this suit for hearing in the “Undefended List” and to mark the said Writ accordingly.

Order 12 of the Federal High Court (Civil Procedure) Rules, 2009 makes provisions for the Undefended List procedure. I shall reproduce hereunder Order 12 Rules 1, 2, 3 and 4:
1. Whenever application is made to a Court for the issuance of a writ of summons in respect of a claim to recover a debt or liquidated money demand and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.
2. There shall be delivered by the Plaintiff to the Registrar for the issuance of the writ of summons as aforesaid, as many copies of the above-mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service.
3. (1) If the party served with the writ of summons and affidavit delivers to the

Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just.
(2) Where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the ordinary cause list and the Court may order pleadings, or proceed to hearing without further pleadings.
(3) Where pleadings are ordered the provisions of Order 13 Rule 3 of these Rules shall apply.
4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3 (1) of this order, or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his claim formally.
The Undefended List procedure, governed by these provisions has received established interpretation in a number of judicial pronouncements. As rightly submitted by Senior Counsel for the Respondent, the Undefended List

procedure is sui generis. See Uhembe v Parkes (supra). Basically, the object of the undefended list procedure is for a quick despatch of certain types of cases, such as debt or liquidated money demand. The purpose of the Undefended List procedure is to enable a plaintiff to obtain quick judgment in clear cases where the defendant has no defence to the claim of debt or liquidated sum by the plaintiff, and it is inexpedient to allow a defendant to defend for mere purposes of delay. See Ataguba & Co. v. Gura (Nig) Ltd (2005) LPELR-584(SC); Macaulay v. NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283, (1990) LPELR-1801(SC); Akahall & Sons Ltd v. NDIC (2017) LPELR-41984(SC).
By this peculiar procedure, an application is first made to a Court for the issuance of a writ of summons in respect of a claim to recover a debt or liquidated money demand and the application must be supported by an affidavit which would set forth the grounds upon which the claim is based and stating that, in the deponent’s belief, there is no defence thereto. Now, the affidavit evidence of the plaintiff must reveal facts that ground the belief that the defendant has no defence to the

action. This is fundamental, because where there are uncertainties or nebulous depositions, the matter cannot be heard under the undefended list procedure.
The Court, if satisfied that there are good grounds for believing that there is no defence thereto, shall enter the suit for hearing in the “Undefended List”, and mark the writ of summons accordingly. A date for hearing shall then be given. The marking of the writ of summons as Undefended List is done pursuant to the order of the Court. This obviously means that the writ of summons attached to the originating motion ex parte seeking order of Court to mark the writ as undefended, cannot be the same writ of summons to be served on the defendant. The writ of summons served on defendant, if the order of Court is granted, is a specially and peculiarly endorsed writ of summons now marked undefended. The writ of summons initiated under this procedure cannot be issued by the Registrar prior to the presentation and consideration of the application for issuance of same by the Court, otherwise such writ of summons which is issued and marked undefended before the Court’s order to do so shall be incompetent and

liable to be declared a nullity by the Court. See Cash Affairs Finance Ltd. v. Inland Bank (Nig) Plc (supra); Obaro v Hassan (2013) LPELR-20089(SC); Equity Bank of Nigeria Ltd. v. Halilco Nigeria Ltd. (2006) LPELR-5611(CA), (2006) 7 NWLR (Pt 980) 568; Bayero v. Mainasara & Sons Ltd (2006) 8 NWLR (Pt.982) 391 at 425; (2006) 36 WRN 136; China Geo-Engineering Corporation Nig Ltd v Isa (2007) LPELR-8954(CA).
The complaint of the Appellant that the Respondent should have filed a writ of summons that was the same as was exhibited on the affidavit in support of the Originating motion ex parte, and which was not marked “Undefended” is therefore misconceived. The Respondent would have been acting out of turn if the writ of summons exhibited to the affidavit in support of the originating motion ex parte was marked undefended. A fortiori, if the writ of summons served on the Appellant as defendant failed to have marked thereon Undefended List, the Order of the lower Court would not have been complied with. The Writ of Summons marked Undefended and served on the Appellant was therefore not in violation of the Rules of this Court.

Now, after the writ of summons marked Undefended is served on the defendant, the defendant is to file in Court, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit. The Court must scrutinize the affidavit evidence of the defendant attached to the notice of intention to defend to see if a defence has been disclosed on the merit. Only a real defence and not a sham defence that is merely intended to delay and frustrate the plaintiff will be allowed. See Macaulay v. NAL Merchant Bank Ltd (supra); UBA Plc v Jargaba (2007) LPELR-3399(SC); Nkwo Market Community Bank (Nig) Ltd v Obi (2010) LPELR-2051(SC). In the affidavit, the defendant must condescend upon particulars and state clearly what his defence is. See Peter Tiwell (Nig) Ltd v Inland Bank (Nig) Ltd (1997) 3 NWLR (PT 494) 408. It must not be a general denial or an affidavit that makes no real disclosure. It must not be a half-hearted defence; Tahir v. J Udeagbala Holdings Ltd (2003) LPELR-6144(CA). The facts to be stated in the affidavit of the defendant must be such that will require the plaintiff to offer

explanation for matters involved in his case or seriously question or challenge the claim of the plaintiff.
In Nishizawa Ltd v. Jethwani (1984) LPELR-2037(SC), (1984) 1 S.C. 234 at pages 39 – 40 of the E-Report, Aniagolu, J.S.C. gave two broad guiding principles on the undefended list procedure to be borne in mind, namely:
“(i) that a defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed, not at offering any real defence to the action, but at gaining time within which he may continue to postpone meeting his obligation and indebtedness; and
(ii) that, on the other hand, a plaintiff should not be permitted to shut out a real (not a sham) defence to an action by his clinging to the assertion that once the defendant has failed to “show cause against such [plaintiffs] application by affidavit” as required by Order 10 Rule 3 of Lagos High Court Rules, he is out of Court and must have a judgment signed against him no matter how genuine a defence he has disclosed by means other than by an affidavit under that rule of the Order.”

It is not for the Court to decide, upon filing of a notice of intention to defend and the affidavit in support, whether the defence put forward by the defendant in the affidavit succeeds or will ultimately succeed. What the trial Court is required to do at that stage is simply to consider the affidavit evidence from both parties and decide whether the affidavit of the defendant discloses any defence to the action. There is no resolution of the conflicts or contending positions of the parties so as to arrive at a judgment as to which of the parties is right or entitled to judgment on the merit at this stage; Nishizawa Ltd v. Jethwani (supra); Imoniyame Holdings Ltd & Anor v. Soneb Enterprises Ltd & Ors (2010) LPELR-1504(SC); NPA v. Aminu Ibrahim and Company & Anor (2018) LPELR-44464(SC). G.M.O. Nworah & Sons Co Ltd v Akputa (2010) LPELR-1296(SC), (2010) 9 NWLR (PT 1200) 443.
Where the defendant succeeds in creating doubts as to the veracity of the plaintiff’s claims, a defence has been disclosed on the merit. At that point, the Court shall grant leave to the defendant to defend the action

and the Suit shall be removed from the Undefended List and transferred to the general cause list. The Court may then order pleadings, or proceed to hearing without further pleadings. Thus, pleadings may or may not be ordered by the trial Court where the conclusion that the defendant has disclosed a defence on the merit has been reached. Therefore, by the Undefended List procedure, pleadings need not filed alongside the originating motion ex parte for an order to have the writ marked undefended. The contention of the Appellant’s Counsel that the Respondent had failed to file and attach a statement of claim with the said writ of summons filed on 12/5/2016, is misconceived and not in line with the peculiarities of the undefended list procedure.

The Appellant, without reacting to the processes served on it on the Undefended List, filed a motion in which it challenged the jurisdiction of the trial Court and sought a stay of proceedings on account of the terms of Clause 12 of the MOA between the parties and Clause 34 of the BIMCO Charter party Agreement. The said Clause 12 of the MOA and Clause 34 of the BIMCO Charter Party Agreement were reproduced

earlier. The trial Court noted the provisions of these Clauses and held that the contract between the parties was an admiralty contract and that the arbitration clauses relied on by the Appellant were null and void in that they cannot purport to oust the jurisdiction of the Court, in the face of unambiguous Constitutional and statutory provisions, specifically, Section 251(1)(g) of the 1999 Constitution, as amended and Section 1 and 2(3) of the Admiralty Jurisdiction Act, 1991. The learned trial Judge proceeded to consider the provisions of Section 20 of the Admiralty Jurisdiction Act, which provide:
20. Any agreement by any person or party to any cause, matter or action which seeks to oust the jurisdiction of the Court shall be null and void, if it relates to any admiralty matter falling under this Act and if-
(a) the place of performance, execution, delivery, act or default is or takes place in Nigeria; or
(b) any of the parties resides or has resided in Nigeria; or
(c) the payment under the agreement (implied or express) is made or is to be made in Nigeria; or
(d) in any admiralty action or in the case of a maritime lien, the

plaintiff submits to the jurisdiction of the Court and makes a declaration to that effect or the rem is within Nigerian jurisdiction; or
(e) it is a case in which the Federal Government or the Government of a State of the Federation is involved and the Federal Government or Government of the State submits to the jurisdiction of the Court; or
(f) there is a financial consideration accruing in, derived from, brought into or received in Nigeria in respect of any matter under the admiralty jurisdiction of the Court; or
(g) under any convention, for the time being in force to which Nigeria is a party, the national Court of a contracting State is either mandated or has a discretion to assume jurisdiction; or
(h) in the opinion of the Court, the cause, matter or action should be adjudicated upon in Nigeria.
The learned trial Judge then held, pages 432 – 434 of the Record of Appeal:
“It should be noted that the conditions set out above are disjunctive owing to the use of the word ‘OR’ or the inflection of the word ‘OR’ after each of the sub paragraphs. All the conditions need not be present before

the Court can give effect to Section 20 of the Admiralty Jurisdiction Act. The existence of any of the conditions listed under Section 20 will suffice to activate the provisions of that section…
Where any of the conditions stated in the sub paragraphs a – h of Section 20 is satisfied, a private agreement between parties to oust the jurisdiction of the Court as in the instant case will be null and void.
There is no dispute from the facts and evidence before this Court as the import and interpretation of Clauses 12 and 34 of the respective agreements, which form the kernel of the Applicant’s application. Parties are ad idem on the fact that the said Clauses ousted the jurisdiction of this Court from entertaining any dispute arising from the Charter Party Agreement between the parties. Parties cannot by agreement bar the Court from exercising its statutory powers.”

On the application of the maxim pacta sunt servanda, the learned trial Judge held, page 434 of the Record of Appeal:
“In MV PANORMOS BAY V OLAM (NIG) PLC (2004) 5 NWLR (PT 865) 1, the Court in applying the latin maxim pacta sunt servanda held that it

is the duty of the Court in construing a contract to give effect to the intention of the parties. The Court can only discharge such duty where there is no statutory limitation.
I have held that Section 20 of the Admiralty Jurisdiction Act is a statutory limitation to the enforcement of the clauses contained in Clause 12 of the Memorandum of Agreement dated 22nd March, 2015 and Clause 34 of the BIMCO Charter Party Agreement dated 11th October, 2015. The arbitration clauses are null and void.”

The lower Court then dismissed the application and went on to adjourn the matter for hearing.

Now, the first query is whether the Appellant in fact appealed against these specific findings of the lower Court. An examination of the grounds of appeal, which were reproduced earlier in this Judgment, particularly grounds 1 and 3 thereof, would reveal, as rightly pointed out by Senior Counsel for the Respondent, that the Appellant did not appeal against the findings of the lower Court that the contract between the parties was an admiralty contract and that the arbitration clauses relied on by the Appellant, Clause 12 of the MOA and Clause 34 of the BIMCO

Charter Party Agreement, were null and void in that they cannot purport to oust the jurisdiction of the Court in the face of Constitutional and statutory provisions.

It is trite that findings of Court that have not been appealed against are binding on the parties; Adejobi v State (2011) LPELR-97(SC); Amale v Sokoto Local Government & Ors (2012) LPELR-7842(SC); Ladoja v Ajimobi (2016) LPELR-40658(SC). Such finding cannot be tampered with by the appellate Court. The vital findings by the lower Court that the contract between the parties was an admiralty contract, that Clause 12 of the MOA and Clause 34 of the BIMCO Charter Party Agreement were incapable of ousting the jurisdiction of the lower Court, and nullifying them, upon which the decision of the lower Court on 4/5/2018 was based, therefore subsist.

In the event that the findings made by the lower Court did not exist or were appealed against, the second query would be whether the trial Court had jurisdiction to enforce the terms of the arbitration clauses in the said MOA and the BIMCO Charter party Agreement, having regard to the doctrine of pacta sunt servanda and in consideration of the

provisions of Sections 1 and 20 of the Admiralty Jurisdiction Act. The doctrine of pacta sunt servanda or the more incisive pacta convent quae neque contro leges neque dolo malo inita sunt omni modo observando sunt, simply means that agreements of parties to a contract, which are neither contrary to the law, nor fraudulent, are to be adhered to in every manner and every detail; AG Rivers State v AG, Akwa Ibom State & Anor (2011) LPELR-633(SC); Teju Investment and Property Co. Ltd v. Subair (2016) LPELR-40087(CA); Incorporated Trustees of Nigerian Baptist Convention & Ors v Governor of Ogun State (2016) LPELR-41134(CA). Section 20 of the Admiralty Jurisdiction Act was reproduced earlier. Section 1 of the said Act provides:
1. (1) The admiralty jurisdiction of the Federal High Court (in this Act referred to as “the Court”) includes the following, that is-
(a) jurisdiction to hear and determine any question relating to a proprietary interest in a ship or aircraft or any maritime claim specified in Section 2 of this Act.
(Emphasis mine)
By these clear provisions, an admiralty contract falls within the purview of the Act. From the

facts leading to this appeal, the contract between the parties was an admiralty contract.
In Lignes Aeriennes Congolaises v. Air Atlantic (Nig) Ltd (2005) LPELR-5808(CA), this Court, per Garba, J.C.A. (now J.S.C.) on Section 20 Admiralty Jurisdiction Act said, at page 20:
“The words in the section being simple, clear and even laconic should be given their ordinary, literary and grammatical meaning…
The ordinary and literal meaning of the words is that any agreement entered into or made by any person, whether a party to any cause, matter or action, or not which seeks to oust the jurisdiction of the Court shall be null and void, if it relates to admiralty matter and falls into any of the categories set out in the section.”
Contributing to the lead Judgment, Ogunbiyi, J.C.A. (as he then was) said, pages 29 – 30, 35 – 37 of the E-Report:
“On a clear intendment of the provision of Section 20 of the Admiralty Jurisdiction Decree (AJD, 1991) which same had been reproduced on the lead judgment, the intentional interpretation is specific, well spelt out and very much unambiguous. Without having to brain storm

the contemplation, it is not far-fetched that the Court has a great latitude in the determination of the jurisdictional powers of invocation thereof. This is evidenced by the provision of Sub-Section (h) of the Decree to wit if:
“h) in the opinion of the Court, the cause, matter or action should be adjudicated upon in Nigeria.”
The Court’s jurisdiction is well spelt out by the provision of Section 6(6)(a) of the Constitution. The provision of Section 20 (h) of the AJD, 1991 of itself also serves as corroboration wherein the use of the phrase, “if in the opinion of the Court”, is of great significance on the issue of whether or not the Court had jurisdiction. The case of Sonnar (Nig.) Ltd & Anor. v. Partenreedri M. S. Nordwind & Anor. (1987) 4 NWLR (Pt. 66) 520, (1987) All NLR 548, is of significant relevance for guidance…
There is no doubt that parties to a contract are allowed within the law to regulate their rights and liabilities themselves. See the case of Gott v. Gandy 2 E & B 845 at p.847 per Erle, J.
The Courts do not make contracts for the parties. The duty of the Court is to give effect to be intention of the

parties as it is expressed in and by their contract – See Bramwell B. in Stadhard v Lee 3 B & S 364 at p 372. It is also conceded that when the intention of parties to a contract, as to the law governing the contract, is expressed in words, this certainly expressed intention in general and as a general rule determines the proper law of the contract. For this to be effective however, the choice of the law must be bona fide, legal and reasonable. In other words, it should not be capricious and absurd, but clearly identifiable and clear cut.
Lord Denning M. R. in answer to a question “can parties by their private act remove the jurisdiction vested by our constitution in our Court?” had this to say in The Fehmorn (1958) 1 All E.R. 333 at p.335.
” … English Courts are in charge of their own proceedings and one of the rules which they apply is that a stipulation that all disputes should be judged by the Tribunals of a particular country is not absolutely binding. Such a stipulation is a matter to which the Courts of this country will pay much regard and to which they will normally give effect. But it is subject to the overriding principle that no one

by his private stipulation can oust these Courts of their jurisdiction in a matter that properly belongs to them. I would ask myself therefore is this dispute a matter which properly belongs to the Courts of this country?” (underlining mine for emphasis.)
With due regard, Oputa, J.S.C., in adopting the pronouncement by Lord Denning (supra) had the following to say in contributing to their decision in the case of Sonnar (Nig) Ltd & Anor v. Partenreedri M. S. Nordwind & Anor (supra) at page 576.
“Our Courts should not be too eager to divest themselves of jurisdiction conferred on them by the Constitution and by other laws simply because parties in their private contracts chose a foreign forum and a foreign law. Courts guard rather jealously their jurisdiction and even where there is an ouster of that jurisdiction by statute it should be by clear and unequivocal words. If that is so, as indeed it is, how much less can parties by their private acts remove the jurisdiction properly and legally vested in our Courts? Our Courts should be in charge of their own proceedings. When it is said that parties make their own contracts and that the Courts

will only give effect to their intentions as expressed in and by their contract, that should generally be understood to mean and imply a contract which does not rob the Courts of its jurisdiction in favour of another foreign forum.”
The lower Court was properly in order by refusing to be robbed of its jurisdiction.”
The learned trial Judge held that the Court can only discharge its duty to give effect to the intention of the parties to a contract where there are no statutory limitations. I agree completely. A Court can only enforce a contract on the doctrine of pacta sunt servanda within statutory limits. This point was elucidated in Adedeji v Obajimi (2018) LPELR-44360(SC) where the Supreme Court per, Bage, J.S.C. said:
“It is trite that Courts are imbued with the judicial authority and jurisdiction to give life to contractual agreements made between parties, provided that, such contracts are rooted within the law.”
Therefore, a contract that falls outside statutory limits cannot be enforced by the Court; The MV Panormos Bay & Ors v Olam Nigeria Plc (supra); JFS Investment Ltd v Brawal Line Ltd (2010)

LPELR-1610(SC); Hull Blyth Nigeria Ltd v Jetmove Publishing Ltd (2018) LPELR-44115(CA). See also Fastech Nigeria Limited v Zamfara State Government & Ors (2019) LPELR-48135(CA) cited in the second List of Additional Authority filed by the Respondent on 7/12/2020.
The Respondent’s claims arose from a Charter Party Agreement between the Respondent as owners of the Vessel and the Appellant as charterers/hirers of the Vessel. As rightly found by the lower Court, the facts of the case position the contract within the confines of the admiralty jurisdiction of the lower Court. I therefore find no reason to disturb the conclusion of the learned trial Judge that the agreement between the parties came within the contemplation of provision of Section 20 of the Admiralty Jurisdiction Act, 1991, which rendered the arbitration clauses null and void. The decision of the lower Court delivered on 4/5/2018 dismissing the Appellant’s motion on notice, is therefore, hereby affirmed.

After the decision of 4/5/2018, what remained before the trial Court was the Respondent’s claim brought under the Undefended List. The Appellant had filed no notice of

intention to defend supported by an affidavit. The basic principle of our adversarial jurisprudence is that it is the duty of the defendant to raise his defence; Federal University of Technology Minna, Niger State & Ors v. Olutayo (2017) LPELR-43827(SC). Under the Undefended List procedure, where the defendant fails to file a notice of defence and affidavit in support, which discloses sufficient particulars to challenge and cast some doubt on the plaintiff’s claim, or where the defendant’s depositions in the affidavit in support of the notice of intention to defend shows that he has no defence to the action, and he is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgment may be given thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his claim formally. See Ben Thomas Hotels Limited. v. Sebi Furniture Company Limited (1989) LPELR-769(SC); Imoniyame Holdings Ltd & Anor v. Soneb Enterprises Ltd & Ors (supra); Akahall & Sons Ltd v. NDIC (2017) LPELR-41984(SC).
It has been settled by the provisions of Order 12 of the lower Court’s Rules and by a

plethora of judicial pronouncements that, as long as a plaintiff’s affidavit in support of his claim under the undefended list procedure has disclosed an unassailable claim and states grounds for his belief that the defendant has no defence thereto, a defendant who fails to file a notice of intention to defend supported by an affidavit which raises some doubt as to the veracity of the plaintiff’s claims and reveals a triable issue, is deemed to have admitted the said claims. See Ben Thomas Hotels Limited. v. Sebi Furniture Company Limited (supra); Imoniyame Holdings Ltd & Anor v. Soneb Enterprises Ltd & Ors (supra); Akahall & Sons Ltd v. NDIC (supra). Citing with approval First Bank (Nig.) Ltd v. Khaladu (1993) 9 NWLR (Pt. 315) 44, the Supreme Court, per Akaahs, J.S.C., in Akahall & Sons Ltd v. NDIC (supra) said, pages 13 – 14 of the E-Report:
“It was explained in First Bank (Nig.) Ltd v. Khaladu supra at page 55 that the failure to deliver a notice of intention to defend means only one thing that is, that the defendant has no defence to the plaintiff’s claim. Therefore, failure to file or deliver a notice of intention

to defend as provided by the rules is tantamount to an admission by the defendant of the plaintiff’s claim and it is settled law that facts admitted need no proof. In the instant case, since the respondent failed to file the notice of intention to defend the affidavit, the appellant need not lead evidence to prove the debt.”
By Order 12 (3), the defendant has five days to file a notice of intention to defend with his affidavit in support. By Order 12 (4), where any defendant fails to deliver the notice of defence and affidavit as prescribed by Order 12 Rule 3 (1), or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his claim formally. That is to say, the only duty placed on the trial Court after the defendant has failed to file a notice of intention to defend with an affidavit revealing a triable issue within the prescribed period, or when the trial Court has ruled that the defendant revealed no defence on the merit, is to enter judgment in favour of the plaintiff.

The Respondent’s claim was filed on 20/5/2016. Up until 4/5/2018 when the trial Court dismissed the Respondent’s application for stay of proceedings and the matter further adjourned, the Appellant presented no notice of intention to defend with an affidavit in support that disclosed a defence on the merit. In judgment delivered on 21/5/2018, the learned trial Judge noted, page 442 of the Record of Appeal:
“The Defendant failed to deliver any notice of intention to defend this action.
I am satisfied on the facts disclosed in the affidavit and the exhibits attached to enter Judgment for the Plaintiff within the contemplation of Order 12 Rule 4 of the Federal High Court (Civil Procedure Rules 2009.
Judgment is entered for the Plaintiff as prayed.”
In the circumstance that the Appellant failed to file a notice of intention to defend and an affidavit disclosing a defence on the merit, the learned trial Judge rightly entered judgment against the Appellant and in favour of the Respondent. In Obitude v. Onyesom Community Bank Limited (2014) LPELR-22693(SC), the Supreme Court, per Peter-Odili, J.S.C. restated the position of the law:

“Where a trial Court finds as in this case that defendant has no defence to a plaintiff’s suit placed under the undefended list, the Court has no option other than to enter judgment for the plaintiff for the sum of money claimed.”
Once more, I see no reason to disturb the conclusion of the learned trial Judge.

This appeal is completely without merit. It fails and is hereby dismissed. The decisions of the lower Court delivered on 4/5/2018 and on 21/5/2018 in Suit No: FHC/L/CS/567/2016 are hereby affirmed. The Respondent is entitled to costs which is assessed at N200, 000.00.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have read the leading judgment prepared by my learned brother ONYEKACHI AJA OTISI, J.C.A. The leading judgment is not only so comprehensive and covered every conceivable issue but all the issues dealt with therein have been resolved with admiration. There is nothing meaningful that I can add to the leading judgment by way of contribution.

In the circumstances, I adopt the leading judgment as mine and equally hold that the appeal is totally lacking in merit. I abide with the consequential Orders made

in the leading judgment, including the order in relation to costs.

TANI YUSUF HASSAN, J.C.A.: I have had the privilege of reading in draft the lead judgment which has just been delivered by my learned brother, ONYEKACHI AJA OTISI, J.C.A. I am in complete agreement with the reasoning and conclusion and it is for those reasons that I also dismiss the appeal for lacking in merit. I affirm the judgment of the trial Court in suit No. FHC/L/CS/567/2016 and abide by the order as to costs.

Appearances:

Babajide Olowoyeye, Esq., with him, Denis Dema, Esq. For Appellant(s)

Chief Wole Olanipekun, SAN, with him, Akintola Makinde, Esq. and Olajide Salami, Esq. For Respondent(s)