NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY v. NIGERIA LNG LIMITED & ORS (2019)

NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY v. NIGERIA LNG LIMITED & ORS

(2019)LCN/12991(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/L/1241/2017

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria

Between

NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY Appellant(s)

AND

1. NIGERIA LNG LIMITED
2. ATTORNEY GENERAL OF THE FEDERATION
3. GLOBAL WEST VESSEL SPECIALIST NIG. LTD Respondent(s)

RATIO

THE FUNDAMENTAL PRINCIPLE OF THE RIGHT OF FAIR HEARING

The principle of fair hearing guaranteed by the Constitution, derived from the twin pillars of natural justice, postulates and requires that a party in judicial proceedings conducted by a Court of law or other tribunal established by the law, shall be given or afforded a reasonable opportunity to be heard in the proceedings on all material and relevant issues that would determine his civil rights and obligations before a decision is made by the Court or tribunal. Where the right as guaranteed by the Constitution was denied or breached in the conduct of judicial proceedings, the proceedings would have been conducted in violation and contravention of the Constitutional provisions guaranteeing the right and entitlement of a party thereto and so to that extent, null, void and of no legal effect howsoever, no matter how otherwise, well and brilliantly conducted. Not only that, the outcome, the product of or decision reached in such proceedings will be contiguously infected by the nullity of the proceeding to be rendered void in law no matter how otherwise correct it might otherwise have been. Deduwa v. Okorodudu (1976) 9-10 SC, 310; Adigun v. A.G. Oyo State (1987) 1 NWLR (53) 678; Obomhense v. Erhahon (1993) 7 NWLR (303) 22 @ 47; Olumesan v. Ogundepo (1996) 2 NWLR (433) 628; Mains Ventures Ltd v. Petroplast Ind. Ltd. v. N. C. C. (2007) 16 NWLR (1060) 270; NNPC v. Klifco Nig. Ltd (2011) 10 NWLR (1255) 209; Mpama v. F. B. N., Plc (2013) 5 NWLR (1346) 176; Omoniyi v. Alabi (2015) 16 NWLR (1456) 572; C. K. & W. M. C. Ltd. v. Akingbade (2016) 14 NWLR (1533) 487. The right to fair hearing does not end with providing an opportunity to or hearing a party in a case, but also involves full and proper consideration of every relevant and material issues or aspects of the case presented at the hearing, by a Court in the process of determination of the case. The right to fair hearing would lack constitutional value and be useless if the relevant and material issues and aspect of a party?s case presented at the hearing he was afforded and given, were either ignored or not considered by the Court in the process of reaching its decision or judgement in the case.
The failure or omission to consider a case put forward by a party in the decision or judgement of the Court would effectively constitute and amount to the denial and breach of the party?s right to a fair hearing in the case. Fed. Ministry of Health v. Comet Shipping Agencies Ltd. (2009) 9 NWLR (1154) 193; Adeogun v. Fasogbon (2011) 8 NWLR (1250) 427; Ovunwo v. Woko (2011) 17 NWLR (1277) 522; Odetayo v. Bamidele (2007) 17 NWLR (1062) 77; Osasona v. Ajayi (2004) 14 NWLR (894) 527; Katto v. CBN (1991) 9 NWLR (214) 126. PER GARBA, J.C.A.

WHETHER OR NOT A COUNTER-CLAIM IS A SEPERATE AND DISTINCT ACTION FROM THE MAIN ACTION

As a reminder, the law still remains that for the purpose of judicial adjudication and determination, a counter claim properly filed by a Defendant to an action in accordance with the relevant Rules of a trial Court, is a different, separate and distinct action from the main action in which it was brought or filed. For the purpose of the counter claim, the Defendant who is the counter claimant, becomes the Plaintiff and the Plaintiff in the main action becomes the Defendant thereto and the same rules of pleadings and proof applicable to the main action, apply to the counter claim. See Balogun v. Oligbede (1991) 8 NWLR (208) 223; Haido v. Usman (2004) FWLR (81) 1868; Narindex Trust Ltd. v. Nig. Inter-Cont. Merch. Bank Ltd. (2001) FWLR (49) 1546 @ 1564; Obmiami Bricks Stone Nig. Ltd. v. ACB Ltd (1992) 3 NWLR (229) 260; Ogbonna v. A. G., Imo State (1992) 2 SCNJ, 26; Usman v. Garke (2003) FWLR (177) 815, (2003) 14 NWLR (540) 261; Ogli Oko Memorial Farms Ltd v. NACB Ltd. (2008) ALLFWLR (419) 400, (2008) 12 NWLR (1`098) 12; Jeric Nig. Ltd v. UBN, Plc (2000) 12 SC (Pt. II) 13 (2000) 15 NWLR (691) 447.
Because of its nature as a cross action, a trial Court has the binding duty to consider and determine a counter claim after a determination of the main action in which it was brought. See General Oil Ltd v. FSB International Bank Plc (2005) ALL FWLR (277) 1007 @ 1061; Balogun v. Oligbede (supra); Air Via Ltd. v. Oriental Airlines Ltd. (2004) 4 SC (Pt. II) 37; Dansol Org. Ltd v. NTC Ltd (2001) FWLR (59) 1267; Gowon v. Ike-Okongwu (2003) 1 SC (Pt. III) 57; Zenith Int. Bank Ltd. v. Vickdab & Sons Ltd (2010) 40 WRN, 165 @ 176-7; Wilson v. Oshin (2000) 9 NWLR (673) 443; Joseph v. Fajemilehin (2012) LPELR-9849; Beloxxi & Co. Ltd. v. South Trust Bank (2012) LPELR-8021(CA). PER GARBA, J.C.A.

WHETHER OR NOT THE BREACH OF RIGHT TO HEARING VITIATES THE ENTIRE COURT PROCEEEDINGS

The further consequence is that the proceedings, in the eyes of the law, for being conducted in breach of the right to fair hearing, are as if they were never conducted or existed at all for being null, void and of no legal consequence, ab initio. See Adefulu v. Okulaja (1996) 9 NWLR (475) 668 @ 691; Ishola v. Ajiboye (1998) 1 NWLR (532) 71 @ 79; INEC v. Nyako (2011) LPELR-4314 (CA), Amaechi v. INEC (2007) LPELR-8253(CA); Mobil Prod. Nig. v. LASEPA (2002) 18 NWLR (798) 1 @ 32-2; Abubakar v. Nasamu (2012) 2-3 MJSC, 1; Okafor v. A. G. Anambra State (1991) 6 NWLR (200) 659; Dawodu v. Ologundudu (1986) 4 NWLR (33) 104; A. G. Rivers State v. Ude (2006) 17 NWLR (1008) 436.
The Supreme Court in FRN v. Akubueze (2010) 17 NWLR (1223) 525 stated the law that: –
?It is trite law that once it is duly established that the right of hearing as entrenched under Section 33 of the Constitution has been breached in a judicial proceeding, its breach vitiates the entire proceedings. Therefore when the appellate Courts finds that the right of fair hearing is breached, it shall have no alternative but to allow the appeal.? (Underline supplied).
In the absence of valid proceedings and judgement by the Lower Court, there are no valid issues left in the appeal and cross appeal which this Court can competently consider on the merit. See Araka v. Ejeagwu (2000) 15 NWLR (692) 684; Okereke v. Nwankwo (2003) FWLR (158) 1246; (2003) 9 NWLR (826) 592; Ewo v. Ani (2004) ALL FWLR (204) 1464; Nwakanma v. Ojukwu (2007) ALL FWLR (395) 504 @ 519 all cited in the case of Dide v. Seleiletimibi (2008) LPELR-4037(CA) in support of the position.
?In the recent case of Kalu v. State (2017) 14 NWLR (1586) 522 @ 547, the apex Court, per Nweze, JSC in the lead judgement, dealing with the proper order to be made where an appellate finds that an Appellant?s right to fair hearing was denied or breached in proceedings before a trial Court has stated that: –
?Once there is such a denial of the said right, the only order that could be made on appeal is one for retrial or re-hearing. This is to enable the appellant to be properly heard, Otapo v. Sunmonu (1987) 12 NWLR (58) 587; Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23; Danladi v. Dangiri (2014) LPELR-24020 (SC) 58: C-E (Reported as Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124. PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): By way of Originating Summons dated 17th June, 2013, amended by the Amended Originating Summons dated 13th February, 2017, the 1st Respondent in Suit No: FHC/L/CS/847/2013 before the Federal High Court, sitting in Lagos (Lower Court) had submitted fourteen (14) questions for determination and sought twenty-one (21) declaratory, injunctive and other orders from that Court against the Appellant and the other Respondents.

?Primarily, the questions submitted to the Lower Court for answers are whether the 1st Respondent by virtue of Nigeria LNG (Fiscal Incentives, Guarantees and Assurances) Act, Cap N87, Laws of the Federation of Nigeria, 2004 (NLNG Act hereafter), is exempted from the payment of levies and surcharges prescribed in the Nigerian Maritime Administration and Safety Agency Act, 2007, (NIMASA Act), Coastal and Inland Shipping (Cabotage) Act, Cap C51, Laws of the Federation of Nigerian, 2004 (Cabotage Act), the Marine Environment(Sea Protection Levy) Regulations 2012 made pursuant to the NIMASA Act (NIMASA Regulations) and the Marine Shipping (Ship Generated Marine Waste

Reception Facilities) Regulations, 2012 (Marine Waste Regulations). I need to call in the reliefs sought following the determination of the questions, as set out on the summons, and here they are: –
?If the Honourable Court shall determine question 1 and 4 above an affirmative and questions 2-7 and 9-14 above in the negative the Plaintiff seeks the following reliefs jointly and severally against the Defendant:
1.A DECLARATION that the Nigeria LNG (Fiscal Incentives Guarantee and Assurances) Act, Cap N87, Laws of the Federation Nigeria, 2004.
2.A DECLARATION that the Nigerian Maritime Administration and Safety Agency Act, 2007, including the payment levy, charge or imposition under Section 15(a) thereof is inapplicable to the Plaintiff, its agents, subsidiaries, contractors and sub-contractors pursuant to Section 6(8), (9), (10), Section 7(7) and Paragraph 3 of Schedule II of the Nigeria LNG (Fiscal Incentives, Guarantees and Assurance Act, Cap N87, Laws of the Federation of Nigeria 2004.
3.A DECLARATION that the tax and other exemptions/incentives granted to the Plaintiff, its agents, subsidiaries, contractors and sub-Schedule II to

the Nigeria LNG (Fiscal Incentives, Guarantees and Assurances) Act, Cap N87, Laws of the Federation of Nigeria 2004 have not been abrogated, repealed, suspended, circumscribed or limited by Section 15(a) or any other provision of the Nigerian Maritime Administration and Safety Agency Act, 2007.
4.A DECLARATION that the Coastal and Inland Shipping (Cabotage) Act, Cap C51, Laws of the Federation of Nigeria 2004, including the surcharge payable under Section 43(a) thereof, is not applicable to the Plaintiff and its subsidiaries and Schedule II and other provisions of the Nigeria LNG, (Fiscal Incentives, Guarantees and Assurances) Act, Cap N87, Laws of the Federation of Nigeria 2004.
5. A DECLARATION that ships owned or chartered by the Plaintiff or its subsidiaries agents and contractors which are not engaged in coastal trade in Nigeria, but transport cargo internationally to and from other countries, are not liable to pay a 2% surcharge as prescribed for vessels engaged in cabotage by Section 43(a) of the Coastal and Inland Shipping (Cabotage) Act, Cap C51, Laws of the Federation of Nigeria 2004.
6.A DECLARTION that the Marine Environment (Sea

Protection Levy Regulations 2012 is invalid.
7.A DECLARTION that the Marine Environment (Sea Protection Levy Regulations 2017 including any payment, levy, charge or imposition prescribed by Section 2 and 5 thereof is inapplicable to the Plaintiff, its agents, subsidiaries, contractors and sub-contractors pursuant to Section 6(8), (9), (10), Section 7(7) and Paragraph 3 of Schedule II of the Nigeria LNG (Fiscal Incentive, Guarantees and Assurances) Act, Cap N87, Laws of the Federation of Nigeria 2004.
8.A DECLARATION that the Plaintiff?s chartered vessels, which are foreign flagged, and do not carry ?oil in bulls? are outside the contemplation of the Marine Environment (Sea Protection) Levy Regulations 2012.
9.A DECLARATION that the Merchant Shipping Ship Generated Marine Waste Reception Facilities) Regulations 2012 including any payment, levy charge or imposition prescribed by Section 14 and 20 thereof is inapplicable to the Plaintiff, its agents, subsidiaries, contractors and sub-contractors pursuant to Section 6(8), (9), (10), Section 7(7) and Paragraph 3 of Schedule II of the Nigeria LNG (Fiscal Incentives, Guarantees and

Assurances) Act, Cap N87, Laws of the Federation of Nigeria 2004.
10. A DECLARATION that the Plaintiff is not within the contemplation of the ?Offshore Waste Management Charge? established under the Merchant Shipping (Ship Generated Marine Waste Reception Facilities) Regulations 2012, as its facilities are not located offshore, and its vessels call at ports.
11. A DECLARATION that the Federal Government of Nigeria ?. Acting by administrative or executive fiat directly or through any or the Defendants, the National Security Adviser or any other administrative or executive body or person, compel the Plaintiff, its agents subsidiaries, contractors and sub-contractors and shareholders to make the payments stipulated under Section 15(a) or any other provision of Nigerian Maritime Administration and Safety Agency Act, 2007.
12.A DECLARATION that the Federal Government of Nigeria cannot, acting by administrative or executive fiat directly or through any of the Defendants, the National Security Adviser or any other administrative or executive body or person compel the Plaintiff, the agents, subsidiaries, contractors, sub-contractors and

shareholders to make the payments provided under Section 43(a) or any other production by Coastal and Inland Shipping (Cabotage) Act, Cap C51, Laws of the Federation of Nigeria, 2004.
13. A DECLARATION that the decision of the Federation Government of Nigeria through the National Security Adviser, contained in the letter dated 22nd May 2013 finding the Plaintiff liable and directing the Plaintiff to make payments to the 3rd Defendant pursuant to the Nigeria Maritime Administration and Safety Agency Act (NIMASA) Act Cap N161 Laws of the Federation of Nigeria 2004, and the Coastal and Inland Shipping (Cabotage) Act, Cap C51, Laws of the Federation of Nigeria 2004 is null and void.
14. AN ORDER compelling the Defendants to refund to the Plaintiff forthwith the sum of US$20,000,000.00 and all other monies paid on protect by the Plaintiff to the 3rd Defendant its agent(s) further to the directives of the Federal Government of Nigeria acting through the National Security Adviser or otherwise howsoever as contribution to the statutory funds of the 3rd Defendant under the provisions of Nigerian Maritime Administration and Safety Agency Act, 2007, the Coastal

and Inland Shipping (Cabotage) Act, Cap C51, Laws of the Federation of Nigeria 2004 or any other law, together with the interests on the said accrued sums at the prevailing Central Bank of Nigeria Monetary Policy Rate from the respective dates of payment untl the date of liquidation of same.
15.AN ORDER compelling the Defendants to pay to the Plaintiff the sum of US$37,809,395.29 being direct and shipping loss incurred by the Plaintiff due to the 2 day blockade of the Bonny Chamber in May by the 2nd Defendants on the instructions of the 3rd Defendant.
16.AN ORDER perpetually restraining the Defendants or any of them either by themselves or through their agents, servants, privies, assigns successor-in-title or any person, company, agency or organization whatsoever, claiming through, acting for, or deriving authority from the Federal Government of Nigeria, or otherwise howsoever from charging imposing, demanding or collecting the 3% of gross freight earnings tax, charges, or dues on all or any of the Plaintiff?s international in bound and out-bound cargo abroad, ships abroad contracted or sub-contracted by the Plaintiff or belonging to its agents

subsidiaries contractors, subcontractors or shareholders or any other sum further to Section 15(a) or any other provision of the Nigeria Maritime Administration and Safety Agency Act 2007.
17. AN ORDER perpetually restraining the Defendants or any of them either by themselves or through their agents, servants, privies, assigns successors-in-title or any person, company, agency or organization whatsoever, claiming through acting for, or deriving authority from the Federal Government of Nigeria or otherwise however from charging, imposing, demanding or collecting the 2% surcharge from the Plaintiff, its subsidiaries and on its shareholders further on Section 43(a) or any other provisions of the Coastal and Inland Shipping (Cabotage) Act Cap C51, Laws of the Federation of Nigeria 2004, the Marine Environment (Sea Protection Levy) Regulations 2012 and the Merchant Shipping (Ship Generated Marine Waste Reception Facilities) Regulations 2012 or any other law.
18. AND for such further or other order(s) as this Honourable Court may deem fit to make in the circumstances.?

As required by the Rules of the Lower Court, the summons was accompanied and

supported by an Affidavit of Ninety-four (94) paragraphs deposed to by Kehinde Daodu; Legal Practitioner in the chambers of the 1st Respondent?s Counsel, to which were annexed, copies of documents as Exhibits.

In reaction to the summons and Affidavit in support thereof, the Appellant as 3rd Defendant later joined in the action, filed a sixty-four (64) Counter Affidavit deposed to by Heaky Dimowo; an Assistant Director in the employment of the Appellant in defence of the summons and also incorporated or raised a counter claim. Copies of documents were also annexed thereto as Exhibits.

The 1st Respondent filed a Reply Affidavit on 10th May, 2017 and on 1st June, 2017, the Appellant filed an Additional Affidavit along with an Additional Written Address.

After hearing the learned counsel for the parties and a consideration of processes filed by them in the case, the Lower Court in a judgement delivered on 3rd October, 2017 resolved the questions submitted to it and granted the reliefs sought in favour of the 1st Respondent.

?Dissatisfied with the decision, the Appellant brought this appeal vide the Notice of Appeal filed on the 4th

December, 2017 on twenty-nine (29) grounds and in Appellant?s brief filed on 13th March, 2018, deemed on 2nd May, 2018 and further deemed on 17th September, 2018, settled by L.O. Fagbemi, SAN, eleven (11) issues are submitted to the Court for decision. They are as follows: –
?1.Whether the 1st Respondent?s case initiated via an Originating Summons can be properly adjudicated without oral evidence, when the facts of the case as presented on affidavit evidence are hostile and whether the resolution of the 1st Respondent’s case without oral evidence has not vitiated the decision of the trial judge? Ground 3.
2.Whether the 1st Respondent’s case is not incompetent and the learned trial judge was not wrong when he nullified the decision of the National Security Adviser when the issues agitated upon had been determined by an adjudicator to whom parties freely submitted themselves and before whom representations were made without objection which resolution is binding and had been given effect to by the parties as to create estoppel binding on all parties? Grounds 9, 10& 11.
3. Whether an Originating Summons can be properly used to

challenge the decision of a mediator (the National Security Adviser) who has ruled on the disputes of the parties and the trial judge rightly reversed the decision of the National Security Adviser on the payment of the $20 million dollars? Ground 12.
4.Whether the Appellant’s right to fair hearing was not breached when the learned trial judge held that the Appellant raised fresh issues in its Counter-claim, discountenanced and struck out the Appellant’s Counter-Claim thereby denying the Appellant any hearing on the Counter-Claim which is a complete answer to the 1st Respondent’s claims? [Grounds 4, 5 & 8].
5.Whether Appellant’s right to fair hearing was not breached when the learned trial judge failed to give any consideration to the Counter-Affidavit and Written Address of the Appellant and issues therein before and in granting the claims of the 1st Respondent and the breach has not rendered as a nullity, the proceedings and the judgment of the trial Court? [Grounds 6 & 7].
6.Whether the provisions of paragraphs 1, 2, 3, and 6 of Schedule II of the Nigeria LNG (Fiscal Incentives, Guarantees and Assurances) Act 2004 are not

unconstitutional and liable to be so declared, due to their inconsistency with the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended), particularly Section 4 thereof? [Ground 13].
7.Whether. having regard to the purport and intendment of Section 2 of the Nigeria LNG Act, 2004 the construction given to Section 6(8), (9), (10), Section 7(7) Paragraph 3 of Schedule II of the Nigeria LNG Act and its application can stand to justify the grant of the 1st Respondent’s claim? Ground 14.
8.Whether on a proper construction of Section 6(8), (9), (10), Section 7(7) Paragraph 3 of the Schedule II of the Nigeria LNG Act, Section 15 (1) of the NIMASA Act and Section 43(a) of the Cabotage Act and other available materials, the 1st Respondent through its chartered ships are not engaged in Cabotage trade and together with its ships operating internationally and within the Cabotage zone, is exempted from the operation and application of Section 15 (1) of the NIMASA Act and Section 43(a) of the Cabotage Act?[Grounds 17, 18, 19,20,21, 24,25 & 26].
9.Whether having regard to the facts and evidence in this case, the learned

trial judge rightly granted the claims of the 1st Respondent and rightly ordered the Appellant to pay the sum of $20 million (US Dollars) and $37.809,395.29 (US Dollars) to the 1st Respondent? [Grounds 15 & 16].
10.Whether the Marine Environment (Sea Protection Levy) Regulations 2012 and the Merchant Shipping (Ship Generated Marine Waste Reception Facilities) Regulation, 2012 are not valid legislations applicable to the 1st Respondent, its agents, subsidiaries, contractors and sub-contractors and whether the learned trial Court was not wrong in declaring the said Regulations void? [Grounds 22, 23, 27 and 281.
11. Whether the learned trial Court was not wrong when he granted all the reliefs in the Amended Originating Summons. notwithstanding that most of the said reliefs were not proved or substantiated, or do not correspond with any issue determined by the Court, or academic? (Ground 29).?

Grounds 1 and 2 of the Notice of Appeal are abandoned because no issue was distilled from them for determination.

?The 1st Respondent Amended brief settled by Olawale Akoni, SAN was filed on 12th December, 2018, deemed on the 15th January, 2019

wherein, ten (10) issues are set out for determination by the Court in the following terms: –
?i. Whether the Court below was not right in determining the case on the basis of the 1st Respondent?s Originating Summons and consequently granting the reliefs sought? (Distilled from Ground 3 of the Notice of Appeal)
ii. Whether the Court below was not right in striking out the issues formulated and argued by the Appellant which did not flow from questions contained in the 1st Respondent?s Originating Summons? (Grounds 4, 5, 7 and 8).
iii. Whether the Court below erred in law in determining that the National Security Adviser cannot sit in a judicial capacity and determine a legal dispute between the 1st Respondent and the Appellant, and that the Federal Government of Nigeria, acting directly or through the National Security Adviser or otherwise howsoever cannot unilaterally override the existing and binding provisions of the NLNG Act or extend the applicability of the Cabotage Act beyond the scope contemplated by the legislation? (Grounds 9 & 12)
iv.Whether the Court below was wrong in its decision that the 1st Respondent

[together with its agents, subsidiaries, contractors and sub-contractors] is not liable to pay 3% of gross freight prescribed under Section 15(a) of the NIMASA Act, 2007? (Grounds 17 & 18)
v. Whether in view of the fact that the 1st Respondent and/or shipping companies owned by the r Respondent are not engaged in coastal trade in Nigeria, the Court below was wrong in its decision that the Cabotage Act 2004 particularly the 2% surcharge as prescribed in Section 43(a) thereof, are inapplicable to the Respondent or shipping companies owned by the Respondent? (Grounds 18, 19, 20 & 21)
vi.Whether the Court below was wrong in coming to the conclusion that the Marine Environment (Sea Protection Levy) Regulations 2012 made pursuant to the Nigerian Maritime Administration and Safety Agency Act, 2007 and the levies prescribed by Sections 2 and 5 thereof are not applicable to the 1st Respondent, its agents, subsidiaries, contractors and sub-contractors? (Ground 22)
vii.Whether the Court below was wrong in law when the Court held that the Marine Environment (Sea Protection) Levy Regulations 2012 is valid by reason of non-compliance with

the NIMASA Act 2007? (Ground 27)
viii. Whether the Court below was wrong in holding that the Merchant Shipping (Ship Generated Marine Waste Reception Facilities) Regulations 2012 and the levies prescribed there under are not applicable to the 3rd Respondent, its agents, subsidiaries, contractors and sub-contractors? (Ground 23)
viii. Whether the provisions of the Nigeria LNG (Fiscal Incentives, Guarantees and Assurances) Act, Cap N87, LFN 2004 are unconstitutional? {Ground 13)
x.Whether having regard to the entire facts and circumstances of this case, the Court below was not right in determining the questions formulated in the 1st Respondent’s Originating Summons in favour of the 1st Respondent and consequentially granting the reliefs sought? (Grounds 15 & 16)

The Appellant filed the Amended Reply brief on the 21st December, 2018 in response to the Amended 1st Respondent’s brief.

On the 9th January, 2019, the 1st Respondent filed a Respondent’s Notice for the judgement of the Lower Court to be affirmed on grounds other than those relied on by the Lower Court, pursuant to Order 9, Rule 2 of the Court of Appeal

Rule, 2016, which was deemed on the 15th July, 2019.

In addition, also being dissatisfied with some part of the judgment, the 1st Respondent brought a Cross Appeal by the Notice filed on 12th December, 2018, on a sole ground and briefs of argument were filed in respect thereof thus: –
(a) Cross Appellant’s brief, on the 12th December, 2018 and
(b)Cross Respondent’s brief, on the 21st December, 2018.

In line with recognized and established practice, I intend to deal with the main appeal first and in doing so, would adopt the issues formulated in the Appellant’s brief for representing the precise complaints against the decision by the Lower Court, satisfied that they are all derivable from the grounds of the appeal.
Meanwhile, for being abandoned, grounds 1 and 2 of the Notice of Appeal are struck out.

Appellant’s Arguments:
Citing Order 3, Rule 6 and 7 of the Lower Court Rules, 2009, it is submitted that the 1st Respondent’s action was not strictly for interpretation of documents/provisions of statute, but resolution of contentious facts such as: –
“(i)The propriety of the decision of the

National Security Adviser on the liability of 1st Respondent to pay levies under Section 15(a) of the NIMASA Act and Section 43(a) of the Cabotage Act. The Courts will have to consider the propriety of representations, sittings, participations of the parties in the mediatory role of the National Security Adviser.
(ii) Propriety of the claim of $20 Million dollars which is a question of fact;
(iii)Propriety of the claim for $37,809,395.29 as losses incurred by the Plaintiff as a result of blockade of the Bonny Channel. This is a question of fact on which evidence must be led.?

That these facts raise contentious issues for which evidence was required and not matters of interpretation of laws/statues that could be initiated by way of originating summons under the Rules of the Lower Court. In illustration of the position, it is pointed out that the Appellant in reaction to the 1st Respondent?s action, deposed to facts which showed that the subject of the action had been resolved through a mediation process and that parties have started complying with the decision. That the 1st Respondent in the Reply Affidavit vigorously denied the

allegation of the settlement between the parties and so there are conflicting and competing facts in the action which are hotly disputed to make oral evidence necessary for them to be resolved and pleadings should have been ordered by the Lower Court to enable to do so. Agi v. PDP (2017) 17 NWLR (1595) 386 @ 469-70, Doherty v. Doherty (1968) NMLR, 241 and Kankara v. C.O.P. Katsina (2002) 13 NWLR (785) 596 @ 611 were referred to for the submission and it is maintained that the Lower Court was in error to have proceeded to decide the 1st Respondent?s case on the conflicting evidence without calling for oral evidence in view of the claim for $37,809,395.29 which was in the realm of special damages to be strictly proved by way of evidence before it could be granted.
The Court is urged to resolve the issue in Appellant?s favour.

?Issues 2 and 3 are argued together and it is submitted that the 1st Respondent voluntarily invited the Federal Government to politically settle the dispute between it and the Appellant on the subject matter, submitted itself to meetings for the settlement without any objection, agreed with and accepted the resolution

reached at the meetings and even made part payment to the Appellant pursuant to the resolution of the dispute with further payments to be made subsequently in line with paragraph 22 of schedule 2 of the NLNG Act. Appellant?s Counter Affidavit to the summons at pages 3109-3118 and 3158-3198 of Vol. III of the Record of Appeal were referred to by the learned SAN for the Appellant who, in further submission said the dispute resolution mechanism allowed by the NLNG Act was used by the parties and that settlement of dispute through mediation (a known alternative dispute resolution (AAR) mechanism and agreements reached through it has always been recognized, approved and implemented by the parties and Courts by the authority of ?Folarin v. Idowu (2013) LPELR-22123 (CA), Ezerioha v. Ihezuro (2009) LPELR (4122) CA; AG Rivers State v. AG Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31 at 108E-G; Osun State Government v. Dalami Nigeria Limited (2007) 3 SC (Pt. 1) 13.?

?According to learned silk, by the actions and conduct of the parties, the resolution of dispute between them by the process of the mediation to which they submitted themselves, was a

binding agreement, which needs not be in writing and signed but can be entered to orally or inferred from the conduct of the parties or a combination of any of the ways, citing A.G. Rivers State v. A.G. Akwa Ibom State (2011) 8 NWLR (1248) 31 @ 108 and UTC Nigeria Limited v. Philips (2012) 6 NWLR (1255) 136 @ 163, Osun State government v. Danlami Nigeria Limited (2007) 3 SC (Pt. 1) 13 and Oforishe v. Nigeria Gas Company Limited (2017) LPELR-42766 (SC). He said the 1st Respondent and the Appellant are bound by the terms of the agreement which had brought to an end, the dispute and that none of them would therefore be permitted to resile from it on the doctrine of sanctity of contract which the Court must respect.

In addition, that by virtue of Section 169 of the Evidence Act, 2011 and the authority of Okonkwo v. Kpajie (1992) NWLR (226) 633, the 1st Respondent is stopped by its conduct from subsequently disclaiming or resiling from the settled terms of the agreement reached with the Appellant or denying the truth of the agreement as, it was an admission that is by its nature, conclusive. The action of the 1st Respondent before the Lower Court was said to

be in bad faith as the reliefs sought had already been settled and agreed on by the parties, thereby foisting subterfuge on the Appellant on the authority of Seed Vest Micro Finance Bank Plc v. Ogunsina (2016) LPELR-41346 (CA) and Akaninwo v. Nsirim (2008) 1 NWLR (1093) 439. It is also the argument of the learned silk that the action was, on the authority of Amaefule v. State (1988) 2 NWLR (1975) 156 and Arubo v. Aiyeleru (1993) 3 NWLR (280) 126, an abuse of the Court process, liable to be dismissed and that the fact that the action was eminently suitable for trial in a Court is not sufficient basis for the 1st Respondent to disclaim or refused to continue the implementation of the agreement. A.G. Rivers State v. A.G. Akwa Ibom (supra) and FRA Williams v. Williams (2014) LPELR-2264 (CA) were cited and it is argued that the case before the Lower Court was totally academic and hypothetical because its purpose had already been achieved through mediation and political solution leaving no pending live issues for determination, reliance being placed on Adeogun v. Fashogbon (2008) 17 NWLR (1115) 149 and Plateau State v. FGN (2006) 3 NWLR (967) 346. Furthermore, it

is contended that the 1st Respondent did not seek the equitable reliefs of declarations and injunctive orders with clean hands by scheming to circumvent the law against the Appellant after benefiting from the agreement between them by the authority of Emespo J. Construction Limited v. Automotor France S.A. (2016) LPELR-42232 (CA) and Aizeboje v. EFCC (2017) LPELR-42894 (CA), among other cases.

It is also the case of the Appellant that the National Security Adviser (NSA) who presided over the resolution of the dispute between the parties did not arrogate to himself, judicial powers or perform any judicial or legislative act in mediating on the dispute and the English cases of Ex p. Fricard (1983) 1 WLR 11581 Re Clifford and O? Sullivan (1921) 2 AC, 510, ex parte. Haynes Smith (1928) 1 KB, 411, R. v. Race Relations Board ex parte Selverajan (1975) 1 WLR 34 and CF Wiseman v. Borneman (1971) AC, 297 were referred to on when a decision will not normally be held to have judicial capacity. The Court is urged to resolve the issues in Appellant?s favour by holding that the 1st Respondent is estopped from filing the action and that the Lower Court lacked jurisdiction to entertain it.

On issues 4 and 5, it is contended that the Appellant?s right to fair hearing was breached by the Lower Court when in its judgement, it struck out the Appellant?s Counter Claim and failed to consider the case presented in the Counter Affidavit, Additional Counter Affidavit and Written Address duly placed before it. On the propriety of striking out the Counter Claim, the learned silk pointed out that the Lower Court had found that a Respondent to an action begun by an originating summons can file a counter claim, but suo motu struck out the counter claim on the ground that the Appellant cannot formulate issues in such a case without a hearing from the Appellant who was to be adversely affected by the decision. Abdullahi v. Governor, Kano State (2014) 16 NWLR (1433) 1213, CBN v. Hydro Air PTY Limited (2014) 16 NWLR (1434) 482 and Gbagi v. Okpoko (2014) 4 NWLR (1396) 136 were cited for the law that a Court has a duty to hear the parties on an issue raised suo motu before it can base its finding or decision on the issue and it is said that the Lower Court misconceived the purport of the decision in

Achu v. C.S.C. Cross River State (2009) 3 NWLR (1129) 475 relied on to strike out the counter claim since no counter claim was filed in that case, thereby breaching the Appellant?s right to fair hearing.

On the non-consideration of Affidavits and Written Address, the case of Olumesan v. Ogundepo (1996) 2 NWLR (433) 628 was cited for the consequence of the breach on the right to fair hearing guaranteed by Section 36 of the Constitution which requires that a Court must always give opportunity to a Defendant to respond to the case made by a Plaintiff. Also, that the Counter Affidavits raised the issue of the Lower Court?s jurisdiction to entertain the 1st Respondent?s action, which could been be raised orally and should have been determined by it on the authority ofN.D.I.C. v. CBN (2002) 7 NWLR (766) 272 @ 295 and State v. Onagoruwa (1992) 2 NWLR(221) 33 @ 66, respectively. Failure to consider the Appellant?s defence at all, constituted a fundamental breach of its right to fair hearing, contended the learned silk, who also argued in another vein, that the Appellant was entitled to formulate issues in the counter claim being a separate action from

the main action, on the authority of Narindex Trust Limited v. N.IM.B. Limited (2001) 10 NWLR (721) 320 @ 338-9. That failure to consider the Appellant?s Written Addresses, to which the 1st Respondent filed a Reply Address breached its right to fair hearing, as the case was considered only on the 1st Respondent?s evidence and Addresses and the Court is urged to hold that the decision by the Lower Court is null and void, resolve the issue in Appellant?s favour and allow the appeal.

The arguments on issue 6 are that the new laws and regulations in paragraph 3 of Schedule II of the NLNG Act exempting the 1st Respondent from payment of levies, taxes, etc are those not applicable generally to companies incorporated in Nigeria and they are law making fettering and so inconsistent with the provisions of Section 4 of the Constitution which is supreme and prevails over all other laws. Section 1(1) and (3) of the 1999 Constitution and NUEE v. BPE (2010) 7 NWLR (1194) 538 @ 570 and A.G. Abia State v. A.G. Federation (2006) 16 NWLR (1005) 265 @ 381-2, inter alia, were cited for the position and it is further submitted that paragraph 1 of Schedule 2

of the NLNG Act prevents the Federal Government from doing anything to render invalid or unenforceable, rights and obligations arising under the contract between shareholders of NLNG venture and other contracts or arrangements contemplated in the contract only to the extent that such rights and obligations are not illegal in Nigeria or against public policy and are kept validly subsisting by the parties.

The cases of Okonkwo v. Okagbue (1994) 9 NWLR (368) 335 @ 341, Conoil Plc v. Vitol S.A. (2012) 2 NWLR (283) 50 @ 74-6 and Black?s Law Dictionary, 10th Edition, at page 1426 on the meaning of ?public policy or policy of the law? were cited and it is argued that because the Appellant relies on the levies and surcharge claimed from the 1st Respondent for it to carry out its numerous and essential operations, any provision of the NLNG Act that is opposed to the payment of levies and surcharge is injurious to the welfare, good and interest of the public, especially the Nigerian Maritime Industry. According to the learned SAN, paragraphs 1, 2, 3 and 6 of Schedule 2 of the NLNG Act are also unconstitutional, illegal and unenforceable for being

against public policy in so far as they are inconsistent with Section 4 of the Constitution, Section 15(a), NIMASA Act, Section 43(a) of the Cabotage Act and applicable Regulations. In the alternative, the Court is urged to apply the Blue Pencil rule, or test to either invalidate and strike out the whole of paragraph 2 of Schedule 2 of the NLNG Act or the offending unconstitutional words including such fiscal regime shall not be amended in anyway, except with the prior written agreement of the government, the Company and each of the Company?s Shareholders ?and? new laws, regulations? since it is applicable to legislations in addition to contracts. A.G. Abia State v. Attorney General of the Federation (2002) 9 NWLR (772) 222 @ 310, 420 and 474 were cited for the submission and the Court is urged to resolve the issue in Appellant?s favour.

On issue 7, Section 2 of the NLNG Act and Sections 6(8), (9), (10) and 7(7) of paragraph 3 of Schedule 2 of the Act were set out and it is submitted that the words of the provisions are direct and unambiguous to wholistically be given their ordinary grammatical meanings, without importation

and should not be allowed to be used as an engine of fraud, on the authority of, among other cases, Knight Frank Rutley Nigeria v. Attorney General, Kano State (1998) 7 NWLR (556) 1, Olanrewaju v. Governor, Oyo State (1992) 9 NWLR (265) 335 @ 360 and Gbadamosi v. Akinloye (2013) 15 NWLR (1378) 455 @ 478. The exemption from payment of taxes by the 1st Respondent under Section 2 of the NLNG Act for ten (10) years from the day of first production by it, had expired and no other provision provided for any other exemption and so it was inequitable for the 1st Respondent to go to Court to enforce an non-existent rights, argued the learned silk. He further contends that had the Lower Court considered the provisions of Section 2 it would not have reached the conclusion that paragraph 3 of Schedule 2 of the NLNG Act exempted the 1st Respondent from paying taxes, duties, charges and levies under Section 15(a) of NIMASA Act and 43(a) of the Cabotage Act. The Court is urged to resolve the issue in favour of the Appellant.

It is submitted under issue 8 that since the NIMASA Act is an Act subsequent to NLNG Act, the legislature is presumed to be aware of the existence,

purport and intendment of the latter Act and in the event of inconsistency between the two legislations, the subsequent one prevails on the authority of Crownstar Limited v. The Vessel MV Vali (2000) 1 NWLR (639) 37 @ 62. In further argument, it is said that there is conflict between the two (2) Acts contrary to the finding by the Lower Court and the provisions of Section (9) of NIMASA Act and 43(a) of the Cabotage Act are special provisions while Sections 6, 7 and 9 of the Paragraph 3 of Schedule 2 of the NLNG Act are general provisions dealing with exemptions granted the 1st Respondent. It is also the case of the Appellant that contrary to the reasoning of the Lower Court, the 1st Respondent is engaged in coastal trade as provided for in Section 2(a) of the Cabotage Act and so liable to pay the 2% levy prescribed under Section 43(a) since any vessel engaged in transportation from one place in Nigeria to a place outside Nigeria even where done on international basis, will still be said to be engaged in coastal trade. The 1st Respondent was said to have admitted being engaged in coastal trade in paragraph 67 of the Affidavit in support of the Summons and

Exhibit, NLNG 23 at pages 2653 and 2906-7 respectively, of Vol. VI of the Record Appeal and so not exempted from the application of NIMASA and Cabotage Acts on levies and surcharge.

On issue 9, the arguments on issue 3 are adopted and it is maintained that the 1st Respondent cannot resile from the agreement reached through the mediation by the NSA and so the claim for the refund of the N$20, Million Dollars paid in line with the agreement is incompetent and the Lower Court lacked the jurisdiction to pronounce on it. The Court is urged to set aside the order of the Lower Court for the refund of the said sum made without jurisdiction and Attorney General, Rivers State v. Attorney General, Akwa Ibom State (supra) and Babatunde v. B.O.N. Limited (2011) 18 NWLR (1279) 738 @ 761 were cited. On the order for the payment of $37,809,395.29, it is submitted that the claim was in the realm of special damages which must be specifically pleaded with full particulars and strictly proved by evidence as admission is not sufficient to ground the award of the claim, relying on Benin Rubber Production Lmited v. Ojo (1997) 2 NWLR 9521) 358 @ 410 and Sommer v. F.H.A. (1992) 1

NWLR (219) 548 @ 560. It is contended that paragraph 37 of the 1st Respondent?s Affidavit in support of the claim did not offer any explanation as to the cargoes of LNG that culminated in the value claimed and no document was tendered to show how the sums indicated therein were arrived at. That the claim could not be granted on affidavit evidence thereby making originating summons not appropriate made to commence the claim since evaluation of evidence and reasons for the grant would be necessary, which the Lower Court did not do in the order made. The Court is urged to resolve the issue in favour of the Appellant.

?Arguing issue 10, learned SAN said that the sea protection levy and the ship generated marine waste reception facilities levies are payable pursuant to Sections 2, 5, 6 and schedule to the Marine Environment (Sea Protection Levy) Regulations, 2012 and Sections 1, 2(2), 9, 14, 20 and 22 of the Merchant Shipping (Ship Generated Marine Waste) (Reception Facilities) Regulations, 2012; made pursuant to the NIMASA and Merchant Shipping Acts, respectively. That the Marine Environment Levy Regulations were made pursuant to the powers conferred on

the Appellant under Sections 22 and 51 of the NIMASA Act and not Section 26 as wrongly stated by the Lower Court. Citing Section 12(1)(a) and (b) of the Interpretation Act, the learned senior Counsel said the law is that where a statute confers a power to make a subsidiary legislation, the power shall include to make different provisions for different circumstances and subject to conditions, to vary and revoke the instrument, proclamation or notification. Sections 1(1) 22(1)(i)(m), (9),(f) and 5(i)(g) of NIMASA Act were referred to and the Regulations being subsidiary legislations are said, on the authority of Akanbi v. Alao (1989) 3 NWLR (108) 118 and Co-operative Bank of Eastern Nigeria Limited v. Ogwuru (1991) 1 NWLR (168) 458 @ 468, to have same force as the principal legislations which neither the 1st Respondent nor the Lower Court has the power to question the motive of the Appellant in making them by the authority of N.C.C. v. MTN Nigeria Limited (2008) 7 NWLR (1086) 229 @ 261 and Obayuwana v. Governor, Bendel State (1982) 12 SC (Reprint) 67. It is also the argument of the learned silk that since the Regulations were not made under Section 26 of the

NIMASA Act, the Appellant had no duty to comply with the said section in making them and the Court is urged to so hold. The Lower Court is also said to have erred in holding that the Merchant Shipping Regulations were made pursuant to the NIMASA Act, 2004 (sic) and so inapplicable to the 1st Respondent since the Regulations were made pursuant to the Merchant Shipping Act, 2007. It is submitted that the exemption and incentives granted the 1st Respondent under Section 6 and 7 of the NLNG Act do not cover the Marine Environment and Merchant Shipping Regulations and the Court is urged to resolve the issue in Appellant?s favour.

On issue 11, it is submitted that there was no justification for the grant of the reliefs to the 1st Respondent as they do not correspond to those sought in the origination summons which bind the parties and the Lower Court on the authority of among other cases; Oredoyin v. Arowolo (1989) 4 NWLR (114) 172 @ 192. It is pointed out that issues 9 and 11 of the summons were declared academic by the Lower Court but the corresponding reliefs 8 and 10 were granted while Reliefs 11, 12 and 13 do not correspond to the orders made by the Lower Court and so are invalid.

It is then submitted that the levies in question were properly made in exercise of the Appellant?s executive, statutory and administrative powers and functions and in carrying them out by way of forcement, the Appellant did resort to self-help, harassment, intimidation or molestation of the 1st Respondent, but acting lawfully.

In conclusion, the Court is urged to allow the appeal and set aside the orders by the Lower Court or in the alternative, invoke the provisions of Section 15 of the Court of Appeal Act, if it finds that the 1st Respondent?s action is competent, to consider the 1st Respondent?s case along the counter claim by the Appellant and decide the case.

1st Respondent?s Arguments:
The arguments on issue 1 are that it is not the law that once there are dispute of facts in a case then originating summons cannot be used to commence an action, but that the dispute must be on substantial and material facts such that where they are peripheral, the action can be initiated by originating summons, by the authority of Ezeigwe v. Nwawulu (2010) 4 NWLR (1183) 159 and

Jimoh v. Olawoye (2003) 10 NWLR (828) 307 @ 346.

It is contended by the learned Senior Counsel for the 1st Respondent that the totality of the questions submitted to the Lower Court and the reliefs sought from it show ?crystal clear? that the case pertained to the claim of legal rights dependent on the construction if the NLNG Act, NIMASA Act, the Cabotage Act and other subsidiary legislations upon which the declaratory and other reliefs were sought. That the NLNG Act is an extent law which confers certain exemptions on the 1st Respondent while the NIMASA Act, the Cabotage Act and other subsidiary legislations, later in time, imposed certain levies and charges and the questions or issues before the Lower Court were whether those charges and levies applied to the 1st Respondent and whether the NLNG Act was impliedly repealed by the later Acts. According to the learned silk, the case falls squarely within the purview of the provisions of Order 3 Rule 7 of the Rules of the Lower Court and was rightly commenced by way of originating summons, though admittedly, there were peripheral disputes regarding the actions of the NSA, propriety of the claim for

$20Million and for $37 Million being losses suffered by the 1st Respondent which are ancillary questions which flow from the principal issues before the Lower Court. It is pointed out that after joining the suit before the Lower Court, the Appellant was duly served with the 1st Respondent?s summons, and did not raise any objection on the mode of commencement of the action, but rather duly filed its Counter Affidavit and Written Addresses and proceeded to argue its case urging the Lower Court to dismiss the 1st Respondent?s case. That it was only after the judgement of the Lower Court went against it that it has now turned round to complain about the mode of commencement of the action, which it was in law deemed to have waived and can no longer be heard to complain about on the authority of Enterprise Bank Limited v. Aroso (2014) 3 NWLR (1394) 256 @ 295, since the form of commencement of an action does not necessarily make it incompetent. The cases of Famfa Oil Limited v. Attorney General of the Federation (2003) 18 NWLR (852) 453, P.D.P. v. Abubakar (No. 2) (07) 3 NWLR (1022) 575 @ 544 and Dapialong v. Lalong (2007) 5 NWLR (1026) 99 were cited and it is said

that the Appellant did not show any factual dispute (substantial or otherwise) which either remains unresolved or could not have been resolved on the basis of the Affidavit evidence before the Lower Court. The Court is urged to resolve the issue in 1st Respondent?s favour and against the Appellant.

On issue 2, it is submitted that the Lower Court was right to have applied the decision in the case Achu v. CSC, Cross Rivers State (supra) in line with the doctrine of stare decisis upheld by the Supreme Court in many cases including Dingyadi v. INEC (2011) 10 NWLR (1255) 347 or 402 and PDP v. Oranezi (2017) LPELR-4347 (CA), to strike out the issues formulated by the Appellant in the counter claim which did not form part of the questions for determination in the originating summons.

The Lower Court was said to be right to have discountenanced the address on the incompetent issues formulated by the Appellant on the authority ofIlliyasu v. Shuwaki (2009) LPELR-4305 (CA) and Drexel Energy & Natural Resources v. Trans International Bank Limited (2008) 8 NWLR (1119) 388. According to the learned silk, the Appellant cannot complain of denial of fair

hearing since it formulated incompetent issues which the Lower Court was entitled not to consider, thereby shutting itself out of the proceedings and the Court is urged to so hold. It is the case of the 1st Respondent that the Lower Court did not raise the issue of the incompetence of the issues formulated by the Appellant, suo motu without a hearing from the parties. In further argument, it is said that the counter claim by the Appellant was in fact a counter originating summons and not a counter claim in the strict sense which, by the authority of Isa v. Abacha (2012) NWLR (1314) 406 @ 423, it could not file. In the alternative, it is argued that the counter claim was an affidavit and all the questions and reliefs therein are entirely embodied in the Affidavit with no separate summons or motion setting them out for the Lower Court to determine, which is ?strange procedure?. That the Affidavit contravenes Section 115(2) of the Evidence Act for containing extraneous matters, prayers and reliefs which are not facts and so liable to be struck out on the authority of Ahmed v. CBN (2013) LPELR-20744 (SC) thereby rendering the appeal a mere academic

exercise which no Court has jurisdiction to embark upon. Umana v. State (2018) LPELR-44404-(CA) was cited for the position and it is submitted that even if the reason given by the Lower Court for discountenancing the counter claim are found to be wrong, as long as the decision is right, it will be upheld by the Court on the authority of Ezeani v. Uzokwelu (2018) LPELR-43760-(CA). The learned silk also said that even if the decision by the Lower Court to strike out the Appellant?s Counter Claim was wrong, it should not in any way affect the conclusion reached by it in respect of the 1st Respondent?s main claim on the judicial principle that a counter claim is an independent claim which is not necessarily tied to the main claim. The Court is urged to resolve the issue as well as the Appellant?s issues 3, 4 and 5 against the Appellant and in favour of the 1st Respondent.

?The arguments on 1st Respondent?s issue 3 are to the effect that the parties did not voluntarily submit to the mediation by the NSA without protest and so the decision by the NSA was not binding on the 1st Respondent nor deprive it of its right to approach the Lower

Court in respect of the same subject matter so as to deprive it of the jurisdiction to adjudicate over the 1st Respondent?s case. The facts of the case in Attorney General, Rivers State v. Attorney General of the Federation (supra) are said to be different from the case before the Lower Court. According to the learned SAN, the elements of a valid contract or agreement, as set out in Alfotrin v. Attorney General of the Federation (1996) 9 NWLR (475) 634, are clearly absent in the so called political agreement purportedly entered into between the Appellant and 1st Respondent. In further Argument, he said there were vitiating factors like duress and undue influence which put paid to the case of the Appellant that there was an agreement between the parties as in law; they vitiate a contract on the authority of Oilserve Limited v. Ibenu & Company Nigeria Limited (2008) (1070) 191 @ 209, Bua v. Dauda (2003) 13 NWLR (838) 657 @ 680 and the English of Barton v. Armstrong (1976) AC, 104 @ 118-9. It then submitted that the 1st Respondent in the Affidavit in support of the Originating Summons and Reply Affidavit deposed to facts which show ?that it was

railroaded into participating in the purported mediation process? and made a case of duress on the part of the NSA compelling the 1st Respondent to take part in and also enforce the outcome of the process superintended by the NSA. Also, that the Appellant?s undenied blockade resulting in untold damage to the 1st Respondent?s reputation and goodwill, and threat to resume the blockade, compelled it to take part in purported mediation process and so the Court is urged to hold that there was no agreement between the Appellant and 1st Respondent to mediate any dispute between them.

?It is the 1st Respondent?s case that the payment of $20 Million was made in protest as shown in the letter dated 13th June, 2013; Exhibit NLNG 40, contained at pages 3733-3740 of Vol. VIII of the Record of Appeal. In the alternative, it is contended that even if the 1st Respondent voluntarily participated in the mediation by the NSA, the outcome of such a process is neither final nor binding except in situations where it culminates in a negotiated and duly executed agreement, which was not the case between the Appellant and 1st Respondent and so the arguments

on the dispute resolution mechanism provided for under the NLNG Act, go to no issue. That parties cannot by their agreement purport to confer or oust the jurisdiction of a Court by the authority of Magaji v. Ogele (2012) LPELR-9476. It is the submission of the learned senior Counsel that the NSA, an appointee of the Executive Arm of the Federal Government of Nigeria arrogated to himself the judicial powers of a Court which he did not have, to adjudicate over a dispute between the 1st Respondent and the Appellant which is an agency of the Federal Government of Nigeria inspite of the protests by the 1st Respondent. Further, that any purported judicial act of the NSA is unconstitutional, null and void. Garba v. F.C.S.C. (1988) NWLR (1971) 449, Military Governor, Lagos State v. Ojukwu (1986) NWLR (18) 621 and Shinning Star Nigeria Limited v. Aks Steel Nigeria Limited (2011) 4 NWLR (1238) 596 were cited for the submission and the Court is urged to resolve the issue in favour of the 1st Respondent.

?On issue 4, a background to the enactment of the NLNG Act, the preamble to the 2nd schedule thereto, Sections 6(8), 6(9), 6(10), 7(7) and paragraphs 3 of the 2

schedule thereof were set out and it is submitted, relying on the statement by the Appellant in a presentation before the House of Representatives Committee on Gas Resources at a public hearing for the Amendment of the LNG Act, in 2014, on why the Act should be amended, which appears at pages 3276-7 of Vol. VII of the Record of Appeal, that the 1st Respondent enjoys exemption from payment of the 3% levy under the Act and the admission of the 2nd Respondent that the incentives granted under the NLNG Act are not time bound, but were granted from time to time, in a similar presentation before the same Committee dated 20 May, 2016, that both the Appellant and 2nd Respondent have admitted the exemption enjoyed by the 1st Respondent which therefore requires no further proof as stated in Adusei v. Adebayo (2012) 3 NWLR (1288) 534 @ 552. The Court is urged to uphold the decision by the Lower Court on the admission by Appellant and 2nd Respondent.

It then submitted that as a general rule, citing Raleigh Industries Limited v. Nwaiwu (1994) 4 NWLR (341) 260 @ 271 and Ibidapo v. Lufthansa (1997) 4 NWLR (498) 124, statutes are not repealed by implication, but by

direct provisions of a statute and the Courts have held for instance inGovernor of Kaduna State v. Kagoma (1982) 6 SC, 7 @ 106, that where it is intended to repeal a statute, it would be expressly stated otherwise they lean against implying the repeal unless there is clear proof to the contrary or where two (2) statutes are so plainly repugnant to each other that effect cannot be given to both at the same time, Uwaifo v. Attorney General, Bendel State (1982) 7 SC, 1 @ 191 and Olu of Warri v. Kperegbeyi (1994) 4 NWLR (339) 416 as well as the American case of Watt v. Alaska 457 US 259 (1981) were referred to.

It is also argued that the NLNG Act, rather than the NIMASA Act is a specific legislation as it applies to the 1st Respondent and its shareholders while the NIMASA Act applies generally to Shipping Companies in Nigeria and there is nothing in the Act which repeals, overrides or divest the tax incentives regimes and other assurances given to the 1st Respondent under the NLNG Act. Reliance was placed on Okafor v. Omianwu (1964) 1 ALLNLR, 348, Uwaifo v. Attorney General, Bendel State (supra) and Afolabi v. Governor, Oyo State (1985) 2 NWLR @ 734 for

the argument and the Court is urged to hold that the provisions of Section 15(a) of the NIMASA Act do not override the provisions of the NLNG Act.

Furthermore, it is submitted that in making new laws, the National Assembly is presumed to have knowledge of all the existing laws in Nigeria and so at liberty to repeal any law if it so wished and failure to do so is always strictly construed against the law maker on the authority of FCDA v. Sule (1994) 3 NWLR (332) 257. In addition, that since the NIMASA Act expressly repealed a number of legislations in whole or in part specifically, but did not include any part of the NLNG Act among them, by the cannon of interpretation that the express mention of one thing implies the exclusion of the other/s not mentioned, as stated in African Ivory Ins. Co. Ltd. v. Commissioner for Insurance (1998) 1 NWLR (532) 50 and INEC v. PDP (1999) 11 NWLR (626) 200, is applicable to show that the NLNG Act nor any of its party was repealed or overridden by the NIMASA Act. It is maintained that the Lower Court was right to hold that the exemption provided under the NLNG Act remain extant and the Court is urged to so hold.

Under Issue 5, again Sections 6(8), (9) and Paragraph 3 of the Second Schedule to the NLNG were referred to and it is said that the surcharge in Section 43(a) of the Cabotage Act is not applicable to the 1st Respondent, who vessels are not engaged in coastal trade as defined under Section 2 of the Act, but transport of cargo internationally to and from other countries. The Court is urged to uphold the finding by the Lower Court.

In arguing Issues 6, 7 and 8, it is contended that the Lower Court was right to invalidate the Marine Protection Levy Regulations for being inconsistent with Section 26 (2) of the NIMASA Act even if it was supposed to have relied on Sections 22 and 51 of the Act and the Court is urged to so hold, citing, inter alia, Dairo v. UBN, Plc (2007) 16 NWLR (1059) 99 @ 161. The same arguments are adopted in respect of the Merchant Shipping (Ship Generated Marine Waste Reception Facilities) Regulations made pursuant to the Merchant Shipping Act and it is said that the 1st Respondent, by paragraph 56 of the Affidavit in support of the summons, at page 2651 of Vol. VI of the Record of Appeal, has shown that the provisions of Regulations 14 and 20 do

not apply to it. The Court is urged to determine the issues in favour of the 1st Respondent.

On Issue 9, it is argued that the submission that the Paragraphs 1, 2, 3 and 6 of the Schedule II to the NLNG Act are unconstitutional is misconceived because the issue of the constitutionality or otherwise of the provisions or any other provision of the NLNG Act did not arise from the decision of the Lower Court and the Court is urged to discountenance same. On the merit, it is said that the NLNG Act being an Act passed by the National Assembly under Section 4 of the Constitution, which provided for the incentives, assurances and guarantees to the 1st Respondent and so there is no intention whatsoever to fetter the law making powers of the legislative to render any part of it unconstitutional.

?Under Issue 10, it is argued that the 1st Respondent demonstrated its entitlement to the reliefs sought and the Lower Court was right to have granted them. In addition, that the orders for the payment of $20 Million and $37 Million were consequential reliefs which flow from the findings on the main issues formulated and determined by it, under its inherent powers as

decided in Amaechi v. INEC (2008) 5 NWLR (1080) 227. It is submitted that since the Lower Court found that the 1st Respondent was not liable to pay the levies and surcharge, it was entitled to recover the money paid to the Appellant and damages caused by the wrongful blockade of its vessels by the Appellant.

The Court is urged to discountenance the invitation to invoke Section 15 of the Court of Appeal Act on the ground that the Appellant has not furnished any material on which judgement should be entered in its favour.
In conclusion, the Court is urged to dismiss the appeal and affirm the judgement of the Lower Court.

?In the Appellant?s Amended Reply, it is submitted that the 1st Respondent?s objection that the Appellant could not file a counter claim in the case is different and distinct from the issue of the incompetence of the issues raised by the Appellant raised and decided by the Lower Court without hearing the parties; particularly the Appellant. It is also contended that the arguments by the Appellant on whether the counter claim was a counter claim in real sense are incompetent since they are not based on any issue arising

from the grounds of appeal on the authority of Ideozu v. Ochoma (2006) 4 NWLR (970) 364 @ 390. Similarly, all arguments on the propriety of the depositions contained in the Affidavit in support by the counter claim on the same ground.

It is then pointed out that the agreement between the parties was one in which they decided to forbid or give up whatever rights they hitherto enjoyed and agreed to a new position which is binding on them and is referred to as accord, compromise and satisfaction, citing Abey v. Alex (1999) 14 NWLR (637) 148 @ 160-1 and R.E.A.N. Ltd. v. Aswani Ind. Ltd (1991) 2 NWLR (176) 639 @ 666. The 1st Respondent?s letter of 10th May, 2013 at pages 5158-5160 of Vol. VII of the Record of Appeal was referred to on the argument whether the agreement was vitiated by duress and the alleged admission by the Appellant and 2nd Respondent are said to have no bearing on the interpretative jurisdiction of the Court to determine whether the 1st Respondent is exempted from paying levies, dues, surcharge, etc., the subject matter of the appeal.

RESOLUTION:
It may be observed, in Issues 4 and 5, the Appellant has raised and

argued that its right to fair hearing was denied or breached by the Lower Court in its decision and failure to consider the counter claim and the Counter Affidavit, Additional Counter Affidavit and Address in opposition to and in defence to the summons in its judgement. Due to the very fundamental and crucial nature of the right to fair hearing in the conduct of all judicial proceedings by all Courts and other tribunals established by the Constitution or other statutes in Nigeria as well as the established and settled judicial principle of law on the consequence(s) of an established denial or breach of such right in the conduct of any judicial proceedings, it is prudent and so expedient to deal with and consider the issues first, before the other issues raised could be considered on the merit.
?It may be recalled that the complaint by the Appellant is that its right to fair hearing was denied or breached in the judgement by the Lower Court for ignoring all the processes properly filed and placed before it, representing the case of the Appellant in the summons filed by the 1st Respondent. If there was one elementary principle of law in the Nigerian

judicial jurisprudence which is common knowledge now, it would be/is on the legal consequence of an established breach or denial of a party?s constitutionally guaranteed right to a fair trial or hearing in the determination of his civil rights and obligations by a Court or tribunal established by law. The principle of fair hearing guaranteed by the Constitution, derived from the twin pillars of natural justice, postulates and requires that a party in judicial proceedings conducted by a Court of law or other tribunal established by the law, shall be given or afforded a reasonable opportunity to be heard in the proceedings on all material and relevant issues that would determine his civil rights and obligations before a decision is made by the Court or tribunal. Where the right as guaranteed by the Constitution was denied or breached in the conduct of judicial proceedings, the proceedings would have been conducted in violation and contravention of the Constitutional provisions guaranteeing the right and entitlement of a party thereto and so to that extent, null, void and of no legal effect howsoever, no matter how otherwise, well and brilliantly conducted.

Not only that, the outcome, the product of or decision reached in such proceedings will be contiguously infected by the nullity of the proceeding to be rendered void in law no matter how otherwise correct it might otherwise have been. Deduwa v. Okorodudu (1976) 9-10 SC, 310; Adigun v. A.G. Oyo State (1987) 1 NWLR (53) 678; Obomhense v. Erhahon (1993) 7 NWLR (303) 22 @ 47; Olumesan v. Ogundepo (1996) 2 NWLR (433) 628; Mains Ventures Ltd v. Petroplast Ind. Ltd. v. N. C. C. (2007) 16 NWLR (1060) 270; NNPC v. Klifco Nig. Ltd (2011) 10 NWLR (1255) 209; Mpama v. F. B. N., Plc (2013) 5 NWLR (1346) 176; Omoniyi v. Alabi (2015) 16 NWLR (1456) 572; C. K. & W. M. C. Ltd. v. Akingbade (2016) 14 NWLR (1533) 487. The right to fair hearing does not end with providing an opportunity to or hearing a party in a case, but also involves full and proper consideration of every relevant and material issues or aspects of the case presented at the hearing, by a Court in the process of determination of the case. The right to fair hearing would lack constitutional value and be useless if the relevant and material issues and aspect of a party?s case presented at the hearing

he was afforded and given, were either ignored or not considered by the Court in the process of reaching its decision or judgement in the case.
The failure or omission to consider a case put forward by a party in the decision or judgement of the Court would effectively constitute and amount to the denial and breach of the party?s right to a fair hearing in the case. Fed. Ministry of Health v. Comet Shipping Agencies Ltd. (2009) 9 NWLR (1154) 193; Adeogun v. Fasogbon (2011) 8 NWLR (1250) 427; Ovunwo v. Woko (2011) 17 NWLR (1277) 522; Odetayo v. Bamidele (2007) 17 NWLR (1062) 77; Osasona v. Ajayi (2004) 14 NWLR (894) 527; Katto v. CBN (1991) 9 NWLR (214) 126.
?The complaint by the Appellant, of denial or breach of the right to fair hearing, as seen earlier, is two-prong; that its counter claim was struck out and that the Lower Court failed to consider the Counter Affidavit, Additional Counter Affidavit and Address filed in opposition to the summons. From the Record of Appeal, on the 12th June, 2017 the learned Counsel for the parties adopted the processes they filed in respect of the summons and in particular, Mr. M. Igbokwe, SAN, who represented

the Appellant at the trial, had stated, at page 3923 of the Vol. ix at page Record of Appeal, that: –
We filed a Counter Affidavit. We filed an Additional Counter Affidavit and written address. I rely on the processes filed. I adopt all the submissions contained in the written addresses in urging the Court to dismiss the amended Originating Summons and resolve the Counter Claim in favour of the 3rd Defendant.?
Mr. Akoni, SAN, represented the 1st Respondent and he stated that: –
?Our response to the Counter Claim are contained in our processes of 10/5. I urge the Court to dismiss the Counter Claim.?
The Lower Court thereafter adjourned the matter to the 29th September, 2017 for judgement, which was however delivered on the 3rd October 2017, as stated earlier.
In its judgement, the Lower Court, relying on this Court?s decision in Achu v. CSC Cross River State (supra) wherein it was stated that a Defendant to an action begun by originating summons may make a counter claim and not to formulate issues, it concluded, at page 4000 of Vol. IX of the Record of Appeal, that: –

“I am therefore of the view that the Defendants herein are incompetent to formulate the issues they have all formulated and argued in their written addresses as having arisen for the determination of this Court. These issues will be ignore (sic) completely. See also NJC VS. ALADEJANA (2014) LPELR ? 24134.?
The Lower Court then proceeded to consider the Written Address filed by the 1st Respondent in support of the summon, set out the issues raised and the arguments canvassed thereon in the determination of the summons, without even a single reference to any of the processes filed by the Appellant in particular, in opposition to the summons. Specifically, the Lower Court did not make any reference to, let alone consider or take into account, the Counter Affidavit, Additional Counter Affidavit or Address in opposition to the summons, in the determination of the summons, answering the questions submitted to it by the 1st Respondent and granting the reliefs sought by it. The record of the judgement of the Lower Court shows that only the 1st Respondent?s case, as presented in the Affidavit, Reply Affidavit and the Written Address in support of the summons was considered,

appraised, and evaluated by the Lower Court in the determination of the questions and grant of the reliefs which affected the civil rights and obligations of the Appellant.
As shown above, the Appellant?s Counter Affidavits were properly placed before the Lower Court at the trial and were adopted in opposition to the summons. It is therefore patently wrong in fact and glaringly an error in law for the Lower Court to state, in reference to the Appellant, that it did not canvass any argument on an issue duly raised and argued by the other party and so has nothing to offer.
?From the reasoning of the Lower Court, it ignored all the processes filed by the Appellant merely on the ground that it could not/cannot formulate issues different from the ones submitted by the 1st Respondent on the summons, even though it can file a counter claim to the summons. The first point to be made on the reasoning is that the issues or questions submitted by the 1st Respondent to the Lower Court as well as the Written Address in which other issues were raised and canvassed by the 1st Respondent, were predicated on the Affidavit and Reply Affidavit filed in support of

the summons. The Affidavits evidence was the foundation upon which the questions or issues raised by the 1st Respondent were argued or canvassed to persuade the Lower Court to grant the reliefs sought. The Affidavit evidence presented the facts that are the essential and relevant materials for the determination of the questions submitted to the Lower Court for decision in the summons, being the pleadings upon which the parties relied in support of their respective cases. Faseun Motors Ltd v. UBA Ltd (supra) Esezoobo v. N. S. I. T. F. M Board (2012) LPELR-9282 (CA); Agbakoba v. INEC (2008) 18 NWLR (1119) 489. Because actions initiated or commenced by way of originating summons are decided on the basis of the Affidavit evidence filed and relied on by the parties, no oral evidence would be required or necessary to be adduced by the parties, as is required or necessary in actions commenced by way of a writ of summons.
?In that con, Affidavit evidence in actions commenced by way of originating summons plays the dual role of pleadings and evidence in support of the reliefs claimed and defence of the action.

In the determination of the questions submitted to the Lower Court by the 1st Respondent, in this appeal, and before arriving at the decision whether it was entitled to any, some or all of the reliefs sought on the summons, the Lower Court had the primary binding constitutional and judicial duty and obligation to consider and take into account, the Affidavit evidence filed and relied on by the 1st Respondent and the Appellant, which was properly placed before it by them.
The fact that the Appellant had raised or formulated questions or issues that may be different from those raised and canvassed by the 1st Respondent in both the summons and Address, is no legally tenable reason for the complete disregard or deliberate refusal to consider the Counter Affidavit filed by the Appellant, in opposition or defence to the summons. Even without an Address, the Lower Court in the spirit of the tenets of natural justice and the constitutional right to a fair hearing, had a binding duty to consider the Counter Affidavit and Additional Counter Affidavit filed by the Appellant which represented a defence to the summons, in the determination of the questions submitted to it by the 1st Respondent and before

granting the reliefs sought which were directed at and affected its civil rights and obligations.
The second point to be made on the reasoning of the Lower Court is that, at best, if indeed the Appellant had raised or formulated and canvassed issues different from those raised and canvassed by the 1st Respondent on the summons and in the Address, the Lower Court could or should, have ignored those issued and arguments thereon and proceeded to consider the relevant material avernments of the Appellant?s Counter Affidavits and the arguments which are in defence of the issues raised in the summons and argued in the 1st Respondent?s Address. The 1st Respondent has no answer to the failure by the Lower Court to consider the Appellant?s Counter Affidavit, Additional Counter Affidavit and Written Address in defence of the summons, in the 1st Respondent?s Amended brief and so avoided the issue.
?The above apart, I have read the issues formulated in the 84 pages, 3rd Defendant?s Written Address (Appellant?s) in support of its Counter Affidavit, dated and filed on 20th April, 2017, which was adopted and placed before

the Lower Court at the hearing and find it expedient to produce them here, as they appear at pages 3445-3436 of Vol. VIII of the Record of Appeal. They are as follows: –
?1.Whether the Plaintiff acted in bad faith and is estopped from bringing before this Court for determination, claims on the dispute between it and the 3rd Defendant that had been resolved by their agreement pursuant to the mediation and advice of the National Security Adviser, the terms of which were being implemented and after the 3rd Defendant had relied and acted on the Plaintiff?s representations and actions and altered its position to its detriment? (All questions and reliefs sought by Plaintiff)
2.Whether on a proper interpretation of Section 6(8), 6(9), 6(10), 7(7), Paragraph 3 of Schedule II and other provisions of the Nigeria LNG (Fiscal Incentives, Guarantee and Assurances) Act, the Plaintiff, its agents, subsidiaries or shareholders and ships owned, chartered, contracted or subcontracted by them are liable to pay to the Defendant, the levies stipulated under Section 15(a) of the Nigerian Maritime Administration and Safety Agency Act, Section 43(a) of the

Cabotage Act, 2003 and other applicable Regulations? [Questions 2, 3, 4, 5, 6, 7, 10 & Reliefs 2, 3, 4 and 7].
3.Whether the role played by the National Security Adviser in the resolution of the dispute between the Plaintiff and the 3rd Defendant amounts to overriding the NLNG Act by executive fiat or executive action or sitting in a judicial capacity to determine legal dispute between the said parties or compelling the Plaintiff and its cohorts to make payments under the NIMASA and Cabotage Acts? [Questions 12 & 13, Reliefs 11, 12, 13].
4.Whether the Marine Environment (Sea Protection) Levy Regulations 2012 is valid and binding on Plaintiff?s foreign-flagged chartered vessels not carrying oil in bulk and the Plaintiff is subject to ?Offshore Waste Management Charge? [Questions 8, 9 and 11 and reliefs 6, 8, 9 and 10].
5.Whether the 3rd Defendant?s blockade of the Bonny Channels and the arrest and detention of ships belonging to or chartered by the Plaintiff in the course of the exercise and execution of 3rd Defendant?s statutory powers, functions and duties amount to self-help and are acts from which the 3rd

Defendant should be restrained from performing? [Question 14 and reliefs 16, 17, 18, 19 and 20].
As can easily be observed these issues are indicated to have been distilled from the questions raised and submitted by the 1st Respondent on the summons to the Lower Court for decision, and the issues cannot rightly be said to be different from the questions or issues on the originating summons.
The questions raised on the Amended Summons were adopted for determination by the Lower Court at paragraph 3.1 on page 10 of the 1st Respondent?s Written Address in support of the Amended Summons filed on the 13th February, 2017 and so the questions submitted to the Lower Court on the summons and those raised and argued in the 1st Respondent?s Written Address placed before the Lower Court were the same. It follows therefore, that the issues formulated in the Appellant?s Written Address in support of its Counter Affidavits were derived from the questions raised and argued by the 1st Respondent on both the summons and in the Written Address, as indicated in the Appellant?s Address. Specifically, the Appellant?s Issue 2, is the same as

the questions 2-7 and 10 on the Amended Summons, Issue 3 is the same as questions 12 and 13 of the Summons, Issue 4 is the same as questions 8, 9 and 11 of the Summons, Issue 5 is the same as the question 14 of the Summons while Issue 1 is directly related to and derivable from the totality of the questions on the summons. In effect, the issues raised or formulated in the Appellant?s Address are the same with those raised and argued on the summons and in the 1st Respondent?s Address in support therefore and are NOT different from the ones on the summons for them to be incompetent merely on the ground of being formulated by the Appellant. The issues which a Defendant to an action begun by way of Originating Summons cannot formulate, by the authority of Achu v. C. S. C. Cross River State (supra), are issues which are completely differently from the issues or questions raised and submitted to the trial Court for determination on the summons. If the issues formulated by such a Defendant are the same as in the case of the Appellant here, or even substantially so, the fact of the formulation, ipso facto, would not render the issues incompetent since they

do no more than restate the questions or issues on the summons in ways or form that may be different from that used by the Plaintiff.
In the above premises, the Lower Court wrongly held both in fact and in law, deliberately disregarded, refused and ignored the Appellant?s relevant and material side of the case before it as represented in the Counter Affidavit, Additional Counter Affidavit and Written Address in defence of the summons filed by the 1st Respondent. In fact, at page 3996 of vol. IX of the Record of Appeal, the Lower Court in its judgement stated that: –
?A Defendant is bound by the questions formulated by the Plaintiff, and all he needs do is to respond to such questions in a manner that will suit his defence, and in line with his counter-affidavit, in opposition to the affidavit in support of the summons.?
All that the Appellant did in the Counter Affidavit, Additional Counter-Affidavit and Written Address in support of the Counter Affidavit, was to respond to the questions raised in the summons ?in a manner that will suit his defence and in line with his counter affidavit in opposition to the affidavit in

support of the summons?, which Lower Court recognizes it has the right to file in the suit. To turn round to ignore the said processes merely because the Appellant formulated issues in the Address in support of the Counter Affidavit and Additional Counter Affidavit filed in defence of the summon, was to unwittingly, deny the Appellant the right which the Lower Court earlier acknowledged it was entitled to. In the case of Uzuda v. Ebigah (2009) 15 NWLR (1165) 1, it was held by the apex Court, per Mohammed, JSC, that ?
. where a Court fails to give full consideration and determination of the case of a party, it is a situation touching on the violation of the party?s right to fair hearing. It is trite that where there is a breach of a party?s constitutional right to fair hearing, then the proceedings are vitiated thereby requiring the intervention of an appellate Court on a complaint by the affected party. See Amadi v. Thomas Aplin & Co. Ltd (1972) 1 ALL NLR (Pt. 1) 409; Adigun v. Attorney-General, Oyo State (1987) 1 NWLR (Pt. 53) 678 and Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22 @ 32-33.?

Again, the apex Court; per Ejiwunmi, JSC in the case of FGN v. Zebra Energy Ltd (2002) 12 SC (Pt. II) 136, (2002) 18 NWLR (798) 162, referred with approval to the statement by Ogundare, JSC inEkiyor v. Bomor (1997) 9 NWLR (519)1 @ 11 that: –
“It cannot be seriously contended that, where a Court decides a case on the evidence of one of the parties alone while ignoring the evidence for the other side, the hearing is not a fair one. Clearly, the defendants were denied a fair hearing.?
What the Lower Court did, in practical and legal effect, with the respect due to it, was to shut out the Appellant in the determination of the action, by ignoring its own side of the evidence and Address properly placed before it, thereby denying and breaching its fundamental right to fair hearing in the proceedings and the judgement delivered in the action. Again, with deference to the Lower Court, its judgement was one and lopsided on the ground that it is completely based on the 1st Respondent?s side of the case alone to the exclusion of the Appellant?s side which was properly placed before it. Adebayo v. Shogo (2005) 2-3 SCNJ, 60; Ntukidem v. Oko (1986) 5

NWLR 45; Tafida v. Bafarawa (1999) 4 NWLR (579) 70; Gomwalk v. Mil. Adm, Plateau State (2011) LPELR-9185 (CA); Kotoye v. CBN (1989) 1 NWLR (98) 419.
On the complaint about striking out the Appellant?s Counter Claim, I have read the entire judgement of the Lower Court more than once, but was unable to and did not see any specific order made by it striking out the Appellant?s Counter Claim. I have seen at page 3970 of the Record of Appeal where the Lower Court stated and decided that: –
“It appears therefore that the issues raised by the 3rd Defendant herein in the Counter-claim are incompetent, and this Court has no business to deal with those issues as addressed in the written address that accompanied the Counter claim.?
It needs to be pointed out here that the Appellant?s Address that accompanied the counter claim, is/was a separate and distinct process filed by the Appellant from the Address filed in support of the Counter Affidavit and Additional Counter Affidavit in defence of the summons, which the Lower Court ignored in the determination of the summons and which I have held to constitute and amount to denial and

breach of the Appellant?s right to fair hearing, earlier.
Although there is no specific order striking out the counter claim, which the Lower Court recognized was properly brought by the Appellant in the action, the above finding that the issues raised in respect of the counter claim are incompetent and that the Lower Court has no business to deal with them, along with the absence of any record that the issues or the counter claim were considered in the judgement, shows clearly that the counter claim, those issues raised therein and the Address filed by the Appellant in support of the counter claim were completely ignored and not considered by the Lower Court, just like the counter Affidavit, Additional Counter Affidavit and Address filed by the Appellant in defence of the summons.
As a reminder, the law still remains that for the purpose of judicial adjudication and determination, a counter claim properly filed by a Defendant to an action in accordance with the relevant Rules of a trial Court, is a different, separate and distinct action from the main action in which it was brought or filed. For the purpose of the counter claim, the Defendant

who is the counter claimant, becomes the Plaintiff and the Plaintiff in the main action becomes the Defendant thereto and the same rules of pleadings and proof applicable to the main action, apply to the counter claim. See Balogun v. Oligbede (1991) 8 NWLR (208) 223; Haido v. Usman (2004) FWLR (81) 1868; Narindex Trust Ltd. v. Nig. Inter-Cont. Merch. Bank Ltd. (2001) FWLR (49) 1546 @ 1564; Obmiami Bricks Stone Nig. Ltd. v. ACB Ltd (1992) 3 NWLR (229) 260; Ogbonna v. A. G., Imo State (1992) 2 SCNJ, 26; Usman v. Garke (2003) FWLR (177) 815, (2003) 14 NWLR (540) 261; Ogli Oko Memorial Farms Ltd v. NACB Ltd. (2008) ALLFWLR (419) 400, (2008) 12 NWLR (1`098) 12; Jeric Nig. Ltd v. UBN, Plc (2000) 12 SC (Pt. II) 13 (2000) 15 NWLR (691) 447.
Because of its nature as a cross action, a trial Court has the binding duty to consider and determine a counter claim after a determination of the main action in which it was brought. See General Oil Ltd v. FSB International Bank Plc (2005) ALL FWLR (277) 1007 @ 1061; Balogun v. Oligbede (supra); Air Via Ltd. v. Oriental Airlines Ltd. (2004) 4 SC (Pt. II) 37; Dansol Org. Ltd v. NTC Ltd (2001) FWLR (59) 1267; Gowon v. Ike-Okongwu

(2003) 1 SC (Pt. III) 57; Zenith Int. Bank Ltd. v. Vickdab & Sons Ltd (2010) 40 WRN, 165 @ 176-7; Wilson v. Oshin (2000) 9 NWLR (673) 443; Joseph v. Fajemilehin (2012) LPELR-9849; Beloxxi & Co. Ltd. v. South Trust Bank (2012) LPELR-8021(CA). In the present appeal, with the counter claim of the Appellant duly and properly brought and filed in the action before the Lower Court, it was bound to have considered it as a distinct, separate and a cross-action, after a determination of the main action by the 1st Respondent. Its decision to ignore the counter claim in the course of the determination of the summons on the ground that the Appellant as Defendant to the main action cannot formulate issues therein over looked the principle of law demonstrated above that the counter claim for the purpose of determination of the main action, was/is a separate, distinct and a cross-action which is not dependent on the main action. That position by the Lower Court is apparently erroneous in law and constituted failure to hear the Appellant on the counter claim thereby denying and breaching its right to fair hearing in the proceedings and the judgement appealed against.

It is certainly judicially absurd to say that a party who is entitled to file a counter claim in a main action; whether commenced by way of a writ of summons or originating summons (as in the present appeal) cannot formulate issues in respect of such counter claim for determination by the Court because the purpose of the right to file the counter claim would undoubtedly be defeated and rendered of no practical use or value to the counter claimant. The case of Achu v. C. S. C. Cross River State (supra) did not lay that principle since no counter claim was filed in the case and did not say that a counter claimant in actions begun by way of originating summons cannot formulate issues for determination in respect of his counter claim. The simple principle stated in the case is that a Defendant to an action commenced by originating summons, and NOT a counter claimant in such an action, cannot formulate issues for determination in the main action and that was the principle upheld and applied in NJC v. Aladejana (supra).
?Again I find merit in the arguments on the complaint by the Appellant of the denial or breach of its right to fair hearing in respect of its counter claim. ?

In the result, the issues are resolved in favour of the Appellant to the effect that the failure/refusal by the Lower Court to consider the Counter Affidavit, Additional Counter Affidavit and Address filed by the Appellant in defence of the originating summons, in its judgement constituted and amounted to a clear denial and breach of its right to fair hearing in the determination of the summons. As shown earlier, the consequence of the resolution of Issues 4 and 5 of the Appellant in its favour and that its right to fair hearing was denied and breached by the Lower Court in the judgement appealed against, is that the proceedings conducted by the Lower Court which culminated in the judgement, are rendered a nullity and void, ab initio. The further consequence is that the proceedings, in the eyes of the law, for being conducted in breach of the right to fair hearing, are as if they were never conducted or existed at all for being null, void and of no legal consequence, ab initio. See Adefulu v. Okulaja (1996) 9 NWLR (475) 668 @ 691; Ishola v. Ajiboye (1998) 1 NWLR (532) 71 @ 79; INEC v. Nyako (2011) LPELR-4314 (CA), Amaechi v. INEC (2007)

LPELR-8253(CA); Mobil Prod. Nig. v. LASEPA (2002) 18 NWLR (798) 1 @ 32-2; Abubakar v. Nasamu (2012) 2-3 MJSC, 1; Okafor v. A. G. Anambra State (1991) 6 NWLR (200) 659; Dawodu v. Ologundudu (1986) 4 NWLR (33) 104; A. G. Rivers State v. Ude (2006) 17 NWLR (1008) 436.
The Supreme Court in FRN v. Akubueze (2010) 17 NWLR (1223) 525 stated the law that: –
?It is trite law that once it is duly established that the right of hearing as entrenched under Section 33 of the Constitution has been breached in a judicial proceeding, its breach vitiates the entire proceedings. Therefore when the appellate Courts finds that the right of fair hearing is breached, it shall have no alternative but to allow the appeal.? (Underline supplied).
In the absence of valid proceedings and judgement by the Lower Court, there are no valid issues left in the appeal and cross appeal which this Court can competently consider on the merit. See Araka v. Ejeagwu (2000) 15 NWLR (692) 684; Okereke v. Nwankwo (2003) FWLR (158) 1246; (2003) 9 NWLR (826) 592; Ewo v. Ani (2004) ALL FWLR (204) 1464; Nwakanma v. Ojukwu (2007) ALL FWLR (395) 504 @ 519 all cited in the case of

Dide v. Seleiletimibi (2008) LPELR-4037(CA) in support of the position.
?In the recent case of Kalu v. State (2017) 14 NWLR (1586) 522 @ 547, the apex Court, per Nweze, JSC in the lead judgement, dealing with the proper order to be made where an appellate finds that an Appellant?s right to fair hearing was denied or breached in proceedings before a trial Court has stated that: –
?Once there is such a denial of the said right, the only order that could be made on appeal is one for retrial or re-hearing. This is to enable the appellant to be properly heard, Otapo v. Sunmonu (1987) 12 NWLR (58) 587; Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23; Danladi v. Dangiri (2014) LPELR-24020 (SC) 58: C-E (Reported as Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124.?
On the position of the law, since the Court is to allow an appeal once it finds that the right to the fair hearing of an Appellant was denied or breached in proceedings before a trial Court and that the only order that it could make in consequence thereof, is one for re-trial or re-hearing, the duty of the Court to consider other issues in the appeal is obviated and it abates, as

an exception to the general principle of its duty to consider all issues placed before it in an appeal. See Orianwo v. Okene (2002) 14 NWLR (786) 156 @ 182-3; Dakipiri v. Iyala (2004) 4 SCNJ, 35 @ 55-6.
In the above circumstances, the Court cannot accept the invitation to invoke the provisions of Section 15 of the Court of Appeal Act in the absence of valid proceedings conducted by the Lower Court.
In the final result, for the foregoing reasons, the appeal is allowed on ground of the denial or breach of the Appellant?s right to fair hearing in the conduct of the proceedings and judgement of the Lower Court. As a consequence, the judgement delivered by the Lower Court on 3rd of October, 2017 is hereby set aside.

The case is hereby ordered to be sent back to the Administrative Judge of the Lagos Division of the Lower Court to be assigned to a Judge thereof for expeditious determination on the merit.
Parties to bear their respective costs of prosecuting the appeal.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the advantage of reading in advance the draft copy of the judgment just rendered by my learned

brother MOHAMMED LAWAL GARBA, JCA.

I agree with his reasoning and conclusion that the appeal allowed on ground of breach of the Appellant’s right to fair hearing in the proceedings and judgment of the lower Court.

Consequently, the appeal is allowed and the judgment of the lower Court is set aside.
I abide by all other consequential orders in the lead judgment.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege of reading in draft, the leading judgment of my learned brother, MOHAMMED LAWAL GARBA, JCA wherein the appeal was upheld on the narrow issue that the Appellant whose Counter Claim, Cross Affidavit and “Further Counter Affidavit” were not considered by the lower Court was denied a fair hearing.

I agree with the decision reached based on the due consideration of the issues raised in the appeal, and which had to be upheld on a more fundamental issue of denial of fair hearing to the Appellant.

?I too will uphold the appeal and I also abide with the consequential order made that both parties shall bear “their respective costs of prosecuting the appeal” for the simple reason that

the denial of fair hearing to the Appellant occasioned by the lower Court was no fault of either the Appellant or the Respondents, but of the Court’s misconception of the law in relation to a Counter-Claim filed in an action begun by Originating Summons.

I agree that the case be remitted back to the lower Court and to be assigned to another judge who shall hear the case expeditiously within a reasonable time.

Appearances:

Prince L.O. Fagbemi, SAN with him, Mike Igbokwe (SAN), Chief H.D. Afolabi (SAN), L.L. Akanbi, V. Okotie, H. Oredola and A. Ogidan (Ms)For Appellant(s)

O. Akoni, SAN with him, K. Daodu, T. Adetomiwa, P. Akwu for the 1st Respondent.

2nd and 3rd Respondents not represented.For Respondent(s)

Appearances

Prince L.O. Fagbemi, SAN with him, Mike Igbokwe (SAN), Chief H.D. Afolabi (SAN), L.L. Akanbi, V. Okotie, H. Oredola and A. Ogidan (Ms)For Appellant

AND

O. Akoni, SAN with him, K. Daodu, T. Adetomiwa, P. Akwu for the 1st Respondent.

2nd and 3rd Respondents not represented.For Respondent