MUTUAL COMMITMENT CO. LTD v. CLEAR CUT OIL & GAS (NIG) LTD (2021)

MUTUAL COMMITMENT CO. LTD v. CLEAR CUT OIL & GAS (NIG) LTD

(2021)LCN/14926(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, January 27, 2021

CA/A/CV/589/2020

RATIO

APPLICATIONS: LIBERTY OF COURT TO CHOOSE WHICH COMPETING APPLICATIONS PENDING

It needs be said at this point that the Court hearing a case is at liberty to choose which of the competing applications pending before it serves better the course of justice and pursue it. There are several authorities of this Court and the Supreme Court on this.

Few of them will illuminate the position better. In the case of Olumesan v. Ayodele Ogundepo (1996) LPELR – 2625 (SC), Iguh, JSC, held:
“I agree with Mr. Fagbemi that the rules as to priority of hearing of two opposing applications, such as an application for an adjournment and a counter application for dismissal is that the Court ought to take the course which will best ensure the doing of substantial justice to the parties where the facts and circumstances of the case so warrant and there are no inhibiting factors against such a course of action. In the circumstances of the present case, it seems to me that the application which ought to have been heard first and ruled upon was that seeking for an adjournment of the appeal to enable the appellant to regularize his appeal. That was the earlier of the two applications before the Court.”
In the case of Nalsa & Team Associates v. NNPC (1991) LPELR 1935 (SC), the Supreme Court per Nnaemeka-Agu, JSC, on the guiding principle for the priority of hearing competing applications before it held as follows:
“… Where the complaint is as to failure to take a step as provided by the rules or in accordance with an order of Court made under the rules, there is already in existence a valid proceeding before the Court. In such a case, if there are two motions, one seeking to raise a point of non-compliance with a rule or an order of Court and the other seeking to strike out or dismiss the proceedings on the ground of the non-compliance, a Court of justice and equity ought to take the motion which seeks to regularize the proceedings and preserve them from being struck out or summarily dismissed first before considering the application for striking out or dismissal for non-compliance. Indeed, invariably, in practice, the motion to summarily dismiss or strike out the appeal is withdrawn and struck out and the applicant compensated with costs. This is in accord with the rule that the Courts are now expected to do substantial, and not technical, justice. In such cases, the aim of the Court ought to be to lean in favour of the proceeding that will bring about the doing of substantial justice. Where, however, as in this case, the complaint in the preliminary objection is to the effect that the Court has no jurisdiction to hear the appeal at all or that there is no competent appeal before the Court or that a threshold issue is involved, then a fundamental issue which goes to the vires of the Court has been raised. When such is the case, it is necessary to note that one of two factual situations may arise. The Respondent’s motion may be one which is capable of breathing life into the incompetent process. In other words, the erring Appellant has realized his mistake and has filed a motion which, if granted will correct it and bring about a valid and competent appeal. When such is the case, although, in the hay days of technicality, the practice was to take the motion which sought to strike out the appeal as incompetent first, leaving the Appellant to seek to commence another appeal if he liked, I am of the view that that does not accord with the present inclination of the Courts to do substantial justice for the days of technicality are gone. If, as a reflection of the present mood of Courts to do substantial rather technical justice, a Court of justice and equity decides to first take a motion which seeks to bring about a competent appeal where there is ex facie a proper application for such, before taking the one which seeks to strike out the appeal as incompetent, I can see nothing wrong with the practice. For, to adopt that course will save both time and expenses. In saying so, I am not unaware that in Chief Ebenezer Awote v. Sumola Kadiri Owodunni & Anor. (1986) 5 N.W.L.R. (Pt.46) 941, at p.950, my learned brother, Oputa, J.S.C., expressed the opinion that this was not proper course because as the appeal was incompetent, ex nihilo nihil fit (you can build nothing out of nothing). But with respects, I think the statement was obiter and that, although reflective of the old practice, does not now represent the mood of the Courts. Now, where there is before the Court a proper application to correct the error even if it could have the effect of breathing life into an incompetent appeal, I see nothing wrong with the Court taking such an application first.” PER ADAH, J.C.A.
MOTIONS: DUTY OF THE COURT WHERE THERE ARE COMPETING MOTIONS

The law is now settled that where there are competing motions, the Court should take as a priority the Motion that would promote substantial justice as opposed to technicality. The liberty is that of the Court hearing the case who must take into consideration the interest of justice in prioritizing the Motions. PER ADAH, J.C.A.

APPLICATION: LIBERTY OF PARTIES TO A SUIT TO FILE ANY APPLICATIONS

The law is trite and easy to appreciate that every party to a suit is at liberty to file any application it wants in furtherance of his own case. Where applications are filed to overreach the opponent, the Court has the ability and capacity to sieve the chaff from the wheat. The lower Court from the facts on record before us had converted the Motion exparte into a Motion on Notice before consolidating the Motions. PER ADAH, J.C.A.

ACTION: MEANING AND ESSENCE OF CONSOLIDATION

Consolidation is not to be misunderstood. Consolidation is the process whereby two or more distinct actions pending in the same Court are by order of Court joined and tried together at the same time. The actions though separate and distinct are tried simultaneously in the same proceedings. Although, consolidated actions are tried and determined in the same proceeding, each remains a separate and distinct action and has its own judgment given separately at the end of the common trial. See the case of Kutse v. Balefur (1994) 4 NWLR (Pt. 337) 196 at page 209 E – G.
Where there is consolidation of Motions, the essence is to accord the trial Court a fast and convenient way of dealing with the applications before the Court. The fact that the applications are consolidated does not cause a disintegration of the identity of the applications. Each of the applications maintains its profile and identity and the decision on its must be distinct and separate. In that wise, where one of the consolidated applications is abandoned, the trial Court at hearing of the application can strike it out leaving intact the consolidated case. PER ADAH, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

MUTUAL COMMITMENT COMPANY LIMITED APPELANT(S)

And

CLEAR CUT OIL AND GAS NIGERIA LIMITED RESPONDENT(S)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory sitting at Apo, Abuja, delivered on the 22nd day of June, 2020, coram: S.B. Belgore, J.

The appellant as the plaintiff before the trial Court filed a Motion dated 14th of February, 2020, seeking the following reliefs against the respondent:
1. An Order of the Honourable Court setting aside the Arbitral Award dated the 27th of January, 2020 and attached hereto as Exhibit ‘A’ having being issued without jurisdiction and the basis of which is against public interest.
2. An Order of this Honourable Court nullifying the entire arbitration process leading to the award of Exhibit ‘A’ on the grounds of misconduct by the arbitrators. An order of this Honourable Court setting aside the arbitral award in Exhibit ‘A’ for being glaringly against the facts and evidence before the Tribunal. An Order of this Honourable Court setting aside the Arbitration Award in Exhibit ‘A’ for having being obtained by way of misrepresentation and without evidence of performance.

AND for such orders this Honourable Court may deem fit to make in the circumstances.The respondent as the defendant pursuant to Section 31 of the Arbitration and Conciliation Act 2004 and Order 19 Rules (13)(1)(2) of the High Court of the FCT counter-claimed as follows:
a. An Order of this Court granting the Applicant leave to enforce the arbitration award made on the 27th of January, 2020 pursuant to an arbitration between the applicant and the respondent required by their memorandum of understanding dated 1st February, 2016.
b. An Order of this Honourable Court enforcing the said award against the respondent.
c. AND for such further orders as this Court may deem fit to make in the circumstance.Parties filed and exchanged their respective pleadings. Thereafter, the two motions were consolidated by the trial Court.

At the end of trial, the trial Court in a considered judgment delivered on 22nd June, 2020, dismissed the case of the appellant and found in favour of the respondent and subsequently ordered that leave be granted to the applicant (i.e Clear Cut Oil and Gas Nigeria Ltd.) to enforce the arbitral

award made on the 27th January, 2020 against the respondent (Mutual Commitment Company Limited).

Dissatisfied with the said Judgment, the appellant initiated this appeal vide Seven (7) Grounds Notice of Appeal filed on the 22nd day of July, 2020. The record of appeal was transmitted to this Court on 27/07/2020.

The parties filed and exchanged their respective briefs of arguments. Appellant’s brief was filed on 24/08/2020 while the Respondent’s brief was filed on 21/09/2020. Appellant’s Reply Brief was filed on 09/10/2020.

The appellant in his brief distilled four (4) issues for determination of this appeal, thus:
1. Whether the trial Court in deciding the case was right to have prioritized, heard and determined the respondent’s motion exparte M/6391/2020 dated 13/03/2020, as against the appellant’s motion M/5322/2020 dated 14/02/2020 despite the latter been on grounds of jurisdiction and first in time. (Distilled from ground One and Three).
2. Whether the trial Court was right to have held in its judgment that respondent’s Motion Exparte M/6391/2020 was not an abuse of Court process despite the

pendency of the appellant’s Motion on Notice M/53/22/2020 over the same subject matter and having the same parties. (Distilled from Ground Two).
3. Whether the trial Court in deciding this case was not duly bound to make a legal pronouncement on the appellant’s Motion M/5322/2020, thus whether failure of the trial Court to hear and determine the appellant’s Motion M/5322/2020 was not a constitutional breach of fair hearing of the appellant? (Distilled from Ground Four and Five).
4. Whether having regard to the ruling of the trial Court delivered on 18/05/2020, consolidating the appellant’s Motion M/5322/2020 to be heard with the respondent’s Motion M/6391/2020, the trial Court was not wrong to have heard the respondent’s motion alone without first setting aside its said earlier ruling on consolidation. (Ground 6).

In response, counsel for the respondent distilled two issues for the determination of this appeal, as follows:
1. Whether or not under the circumstances of this case and considering the effects of the appellant attaching and arguing its Motion on Notice No. M/5322/2020 to its counter affidavit

to the respondent’s Motion, the appellant could complain that it was not given opportunity to be heard. (Distilled from Grounds 4, 5 and 6).
2. Whether or not the appellant did not surrender to the grounds of the respondent for the enforcement of the arbitral award by abandoning its grounds seeking to set aside the arbitral award. (Distilled from Grounds 1, 2 and 3).

The four (4) issues submitted by the appellant more represents his grievances, I shall therefore, adopt the said issues alongside with that of the respondent in deciding this appeal. I now start with issue one.
Issue One:
This issue is – whether the trial Court in deciding the case was right to have prioritized, heard and determined the respondent’s motion exparte M/6391/2020 dated 13/03/2020, as against the appellant’s motion M/5322/2020 dated 14/02/2020 despite the latter being on grounds of jurisdiction and first in time.

Counsel for the appellant while arguing this issue canvassed that when a Court is faced with a Motion challenging its jurisdiction and another one, that the Motion challenging its jurisdiction must as a matter of priority be first

heard before the other. He cited the cases of Nwankwo v. Yar’adua (2010) 12 NWL (Pt. 1209) 518 SC and Transocean Shipping Ventures Private Ltd v. MT Sea Sterling (2018) LPELR – 45108 (CA) PP. 38 – 39 Paras. D – C. That the crux of the appellant’s Motion M/5322/2020 was that the arbitral panel was without jurisdiction as to composition as such, that the trial Court was duty bound to first find out whether the arbitral panel had jurisdiction or not before proceeding to hear and determine the respondent’s motion exparte. That the issue of jurisdiction can be raised at any time even on appeal. He relied on Madukolu v. Nkemdilim (1962) 2 SCNLR, Riruwai & Ors. v. Shakarau & Ors. (2008) LPELR – 4898 CA, Julius Berger Nigeria Plc & Anor v. Mrs Philomena Ugo (2014) LPELR – 23152 CA and Nalsa & Team Associates v. Nigerian National Petroleum Corp (1991) 8 NWLR (Pt. 212) 652. He urged the Court to resolve this issue in favour of the appellant.

In response, contrary to the appellant’s submission, counsel for the respondent argued that the trial Court began by consolidating the motions of the respondent

and appellant by virtue of its powers in Order 41 Rule 8 of the High Court Civil Procedure Rules 2018. As per right to fair hearing, counsel argued that such right is available to both appellant and respondent and that it requires only that the opportunity to be heard be given to all the parties. He maintained that the appellant was given more than a fair opportunity to state their case. He cited Mbanefo v. Molokwu & Ors. (2014) LPELR – 22257 (SC). Counsel pointed out that the proceedings of the trial Court were adjourned more than three times for the appellant to move its Motion. (He referred the Court to pages 251 to 255 of the record of appeal). He contended that the appellant having failed to move their motion on three occasions, that the trial Court was therefore, right to hold as it did that the motion was abandoned.

Counsel further canvassed that the contention of the appellant that the Court needed to de-consolidate the consolidated motions before giving ruling in spite of the appellant abandoning its own motion is of no moment. He stated the trite position of the law, that when matters are consolidated, they are heard together but they

should be decided separately as the trial Court did in this case. He relied on Habib (Nig.) Bank Ltd v. Opomulero & Ors. (2000) LPELR – 5688 (CA), Obiekweife v. Unumma (1957) 2 SCNLR 331, Attah v. Nnacho (1964) 1 All NLR 313, Delta Steel Company Ltd. v. Owners of the Ship Adetya Prabha (1991) 3 NWLR (Pt. 179) 369, Enigwe v. Akaigwe (1992) 2 NWLR (Pt. 225) 505, Dugbo v. Kporoaro (1958) SCNLR 73, Nwidenyi v. Aleke (1996) 4 NWLR (Pt. 442) 349 at 358 – 59 and 360. Counsel stated that it is uncharitable for the appellant in the face of clear records, blame the trial Court for its own failure and negligence. He urged the Court to uphold their argument and resolve this issue in favour of the respondent.

The crux of this issue is the power of the lower Court to prioritize the pending applications before the Court and hear it. I have gone through the arguments of the parties on this issue. It needs be said at this point that the Court hearing a case is at liberty to choose which of the competing applications pending before it serves better the course of justice and pursue it. There are several authorities of this Court and the Supreme Court on this.

provided by the rules or in accordance with an order of Court made under the rules, there is already in existence a valid proceeding before the Court. In such a case, if there are two motions, one seeking to raise a point of non-compliance with a rule or an order of Court and the other seeking to strike out or dismiss the proceedings on the ground of the non-compliance, a Court of justice and equity ought to take the motion which seeks to regularize the proceedings and preserve them from being struck out or summarily dismissed first before considering the application for striking out or dismissal for non-compliance. Indeed, invariably, in practice, the motion to summarily dismiss or strike out the appeal is withdrawn and struck out and the applicant compensated with costs. This is in accord with the rule that the Courts are now expected to do substantial, and not technical, justice. In such cases, the aim of the Court ought to be to lean in favour of the proceeding that will bring about the doing of substantial justice. Where, however, as in this case, the complaint in the preliminary objection is to the effect that the Court has no jurisdiction to hear the

appeal at all or that there is no competent appeal before the Court or that a threshold issue is involved, then a fundamental issue which goes to the vires of the Court has been raised. When such is the case, it is necessary to note that one of two factual situations may arise. The Respondent’s motion may be one which is capable of breathing life into the incompetent process. In other words, the erring Appellant has realized his mistake and has filed a motion which, if granted will correct it and bring about a valid and competent appeal. When such is the case, although, in the hay days of technicality, the practice was to take the motion which sought to strike out the appeal as incompetent first, leaving the Appellant to seek to commence another appeal if he liked, I am of the view that that does not accord with the present inclination of the Courts to do substantial justice for the days of technicality are gone. If, as a reflection of the present mood of Courts to do substantial rather technical justice, a Court of justice and equity decides to first take a motion which seeks to bring about a competent appeal where there is ex facie a proper

application for such, before taking the one which seeks to strike out the appeal as incompetent, I can see nothing wrong with the practice. For, to adopt that course will save both time and expenses. In saying so, I am not unaware that in Chief Ebenezer Awote v. Sumola Kadiri Owodunni & Anor. (1986) 5 N.W.L.R. (Pt.46) 941, at p.950, my learned brother, Oputa, J.S.C., expressed the opinion that this was not proper course because as the appeal was incompetent, ex nihilo nihil fit (you can build nothing out of nothing). But with respects, I think the statement was obiter and that, although reflective of the old practice, does not now represent the mood of the Courts. Now, where there is before the Court a proper application to correct the error even if it could have the effect of breathing life into an incompetent appeal, I see nothing wrong with the Court taking such an application first.”
The law is now settled that where there are competing motions, the Court should take as a priority the Motion that would promote substantial justice as opposed to technicality. The liberty is that of the Court hearing the case who must take into consideration

the interest of justice in prioritizing the Motions. In the instant case, the lower Court ordered a consolidation of the two pending Motions. This option was also available to the lower Court under the Rules of the lower Court. The record of the Court showed that the appellant refused to turn up for the hearing of its Motion inspite of the opportunities given to it by the learned trial judge. From this, it is obvious and certain that this issue must be and it is hereby resolved in favour of the respondent.

Issue Two:
This issue is – whether the trial Court was right to have held in its judgment that respondent’s Motion Exparte M/6391/2020 was not an abuse of Court process despite the pendency of the appellant’s Motion on Notice M/53/22/2020 over the same subject matter and having the same parties.

Counsel for the appellant while arguing this issue submitted that the mere fact of the pendency of the appellant’s motion M/5322/2020 which the respondent was duly aware but chose to file another Motion M/6391/2020 over the same subject and same parties is an abuse of Court process. That the issues in both Motions must not

necessarily be like a Siamese twins before it can connote an abuse. He referred the Court to the case of Momoh v. Adedoyin (2018) 12 NWLR Part 1633 p. 374 Para B – G. He posited that the respondent’s Motion M/6391/2020 is an abuse of Court process having regard to the pendency of the appellant’s Motion M/5322/2020, been on the same subject matter and having the same parties. Counsel urged the Court to so hold and resolve this issue in favour of the appellant.

Counsel for the respondent, while arguing this issue posited that the appellant’s motion seeking an order of Court to set aside the arbitral award and could not possibly be an application challenging the jurisdiction of the trial Court to hear the application of the respondent seeking to enforce that said arbitral award. He emphasized that the appellant’s application was not one challenging the jurisdiction of the trial Court to hear and determine the application by the respondent. He urged the Court to discountenance all the authorities relied upon by counsel for the appellant as they are not applicable in the instant case.

Counsel further argued that the

application to enforce an arbitral award and one seeking to set aside are two distinct applications and proceeding and that consolidation is lawful and not abuse of Court process. He urged the Court to resolve this issue in favour of the respondent and dismiss the appeal with substantial cost.

From the holding of this Court in respect of the first issue, it is far fetch that the question raised in this issue had already been answered in the affirmative. The law is trite and easy to appreciate that every party to a suit is at liberty to file any application it wants in furtherance of his own case. Where applications are filed to overreach the opponent, the Court has the ability and capacity to sieve the chaff from the wheat. The lower Court from the facts on record before us had converted the Motion exparte into a Motion on Notice before consolidating the Motions. The Motion filed by the respondent was aimed at enforcing the arbitral award while the Motion filed by the appellant was aimed at dismissing this issue in limine. The Court in its wisdom called on the parties for the hearing of the Motions. It holds therefore, that the issue raised is not abusive

of the process of the Court. This issue is also resolved in favour of the respondent.

Issue Three:
This issue is – whether the trial Court in deciding this case was not duty bound to make a legal pronouncement on the appellant’s Motion M/5322/2020, thus whether failure of the trial Court to hear and determine the appellant’s Motion M/5322/2020 was not a constitutional breach of fair hearing of the appellant?

Counsel for the appellant on this issue argued that it has long been the law that in any judgment/ruling of a Court that all the issues placed before a Court must be considered and determined. That a deliberate failure to do so by a Court has been characterized as a failure to perform its statutory duty. He relied on the case of Nyawen v. Badon & Other (CA/YL/82/2014) (2016) NGCA 9 (29 June, 2016). He emphasized that the failure of the trial Court to consider, hear and determine the appellant’s said Motion M/5322/2020 renders the whole proceedings inclusive of the judgment of a nullity. He opined that the comment of the trial Court that the appellant’s counsel abandoned their said motion is misconstrued, as the

appellant had intimated the Court about his intention to amend the appellant’s Motion M/5322/2020. Counsel submitted that a 7 day appearance of a new counsel in a matter is not enough to term a process not authored by him as abandoned despite making it clear to the Court of their intention to amend. He urged the Court to hold that the constitutional rights to fair hearing of the appellant has been breached accordingly, vitiates the whole proceedings before trial Court. He urged the Court to resolve this issue in favour of the appellant.

This issue is directly on the right to fair hearing under Section 36 of the 1999 Constitution. The record before this Court shows that the appellant abandoned the Motion he filed, so the Court had to strike it out. The decision of the lower Court is apt and correct. The right to fair hearing is never breached when the Court called on the party concerned to move his Motion and he was not found. The application was deemed abandoned by the lower Court. This decision cannot be faulted. The issue is accordingly resolved in favour of the respondent.

Issue Four:
This issue is – whether having regard to the

ruling of the trial Court delivered on 18/05/2020, consolidating the appellant’s Motion M/5322/2020 to be heard with the respondent’s Motion M/6391/2020, the trial Court was not wrong to have heard the respondent’s motion alone without first setting aside its said earlier ruling on consolidation.

Counsel for the appellant while arguing this issue stated the trite position of the law that a decision of a Court, whether wrong or right, remains valid and subsisting until set aside by a Court that has the jurisdiction to do so. He relied on Jimoh & Ors. Akande & Anor. (2009) 5 NWLR (Pt. 1135) 549. He submitted that by virtue of the trial Court’s ruling that consolidated Motion M/5322/2020 of the appellant with Motion M/6391/2020 of the respondent, that the trial Court has made a decision which was valid and subsisting not only on the parties concerned but also the Court. He cited: Okezie Victor Ikpeazu v. Alex Otti & 3 Ors. (2017) NACLR Pt. 36 Page 1 @ 18 Para. C. Counsel explained that to consolidate means to make solid or firm, to unite, compress or pack together and form into a more compact mass, body or system.

He submitted further that the trial Court having been satisfied by the respondent counsel’s application for consolidation, made an order on 18/05/2020 consolidating Motion M/5322/2020 with Motion M/63/91/2020 to be heard together, remains valid and subsisting on both parties and even the Court, until set aside. He relied on Reuben Izeze v. INEC & 2 Ors. (2018) NACLR Pt. 139 Pg. 107. He maintained that the failure of the trial Court to set aside its order dated 18/05/2020 before proceeding to hear only the respondent’s Motion M/6391/2020, consequentially renders the hearing of the respondent’s Motion M/6391/2020 alone, contemptuous and bound to fail and not entitled to be heard on any subsequent application. He relied on the case of F.A.T.B. v. Ezegbu 1992 NWLR Pt. 264 P. 132. That the respondent in moving Motion M/6391/2020 and been in contempt of the order of the trial Court dated 18/05/2020, never met any requisite conditions as contained in F.A.T.B. v. Ezegbu (supra). He urged the Court to so find, allow this appeal and set aside the whole decision of the trial Court delivered on 22nd June, 2020.

trial judge exercised his discretion well in that circumstance. The issue is hereby resolved in favour of the respondent.

From the foregoing consideration, it is very certain that his appeal is bereft of merit. The appeal is hereby dismissed. Judgment of the lower Court in Suit No: FCT/HC/M/5322/2020, delivered on 22nd June, 2020 is hereby affirmed.
The parties are to bear their respective costs.

PETER OLABISI IGE, J.C.A.: I agree.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I read in draft the judgment just delivered by my learned brother, Stephen Jonah Adah, JCA, I agree with the reasoning and conclusion reached.

I also dismiss the appeal for lacking merit and make no order as to costs.

Appearances:

A.T. Aboki, Esq. with him, Foisal Abubakar, Esq. For Appellant(s)

Lagi Innocent, Esq. with him, Khadiah El-Usman, Esq. – for Respondent For Respondent(s)