SACOIL 281 (NIG) LTD & ANOR v. TRANCORP (NIG) PLC & ORS (2020)

SACOIL 281 (NIG) LTD & ANOR v. TRANCORP (NIG) PLC & ORS

(2020)LCN/15248(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, May 27, 2020

CA/L/1101/2016

Before Our Lordships:

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

1. SACOIL 281 NIGERIA LIMITED 2. EER 281 NIGERIA LIMITED APPELANT(S)

And

TRANSNATIONAL CORPORATION OF NIGERIA PLC 2. THE CHAIRMAN OF CHARTERED INSTITUTE OF ARBITRATIONS (NIGERIA BRANCH) 3. MR. M.D. BELGORE SAN, FCIARB RESPONDENT(S)

RATIO

WHETHER OR NOT A PRELIMINARY OBJECTION SHOULD BE CONSIDERED FIRST BEFORE THE SUBSTANTIVE CASE

The law is settled that if there is a preliminary objection in a matter, the Court should first consider it, as the decision may affect the main appeal particularly if the preliminary objection succeeds. If it succeeds there will be no need to go into the merit of the appeal as that will be an unnecessary and fruitless journey as that would amount to a mere academic exercise. This is because the success of a preliminary objection terminates the further hearing of the matter and it becomes needless apart from an academic exercise to go into the merit of the matter. There is a cloud of cases in this respect. See Salik vs. Idris & Ors (2014) LPELR-22909 (SC); Popoola vs. State (2018) LPELR-43853 (SC); Nwosu vs. PDP (2018) LPELR-44386. In Petgas Resources Ltd vs. Mbanefo (2017) LPELR-42760 (SC), the Supreme Court had this to say:
“As a first line of action in this appeal, It is pertinent to dispose of the Preliminary objection raised. This is very necessary because if found successful, it can determine the fate of the entire appeal, prematurely. I seek to State the position of the law also that a notice of Preliminary objection pursuant to the provisions of Order 2 Rule 9 of the Court’s Rules may validly be raised to question the competence of an appeal in the respondent’s brief of argument. See Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248 at 257 and 258 and Fawehinmi V. N.B.A. (No 1) (1989) 2 NWLR (Pt 105) 494 at 515 – 516. See also Ogidi V. Egba (1999) 10 NWLR (Pt. 621) 42 at 71 and Salami V. Mohammed (2000) 9 NWLR (Pt. 673) 469. In other words, it can operate as a quick and easy weapon in the hands of the respondent to terminate an appeal without dissipating any energy, time, or incurring much expense. Plethora of judicial authorities are overwhelmingly supportive in their pronouncements. PER TOBI, J.C.A.

WHETHER OR NOT IT IS ONLY THE RATIO DECIDENDI OF A COURT’S JUDGEMENT THAT CAN BE APPEALED AGAINST

The law as laid down in many cases is trite and to the effect that it is only the ratio decidendi of a Court’s judgment that can be appealed against. The appeal must be against the ratio and not the obiter. In Onah vs. Schlumberger (Nig) Ltd (2018) 7 NWLR (Pt. 1647) 84 at p 160, the Apex Court held:
“Grounds of appeal must relate to and challenge the decision appealed against. Grounds of appeal must question the ratio decidendi and not the obiter dicta. In other words, an appeal does not lie against an obiter dictum. It lies against the ratio decidendi. In the instant case, the comments of the Court of Appeal on the defence of justification amounted to an obiter dictum of the Court of Appeal and nothing more. Since grounds of appeal must relate to and challenge the decision appealed against, while issues must arise from the grounds, ground 2 which was based on the obiter dictum and the issue formulated there from were incompetent.”
See Saipem Contracting (Nig) Ltd & Ors vs. FIRS &Ors (2018) LPELR-45118 (CA); Omisore & Anor vs. Aregbesola and Ors (2015) LPELR-24803 (SC); K.R.K Holdings (Nig) Ltd vs. FBN & Anor (2016) LPELR-41463 (SC). PER TOBI, J.C.A.

MEANING OF A RATIO DECIDENDI

It will not be out of place to take an excursion into the definition of what the meaning of ratio decidendi is. The Courts in a long line of decided cases settled what constitutes a ratio decidendi once and for all. In Amobi vs. Nzegwu (2013) LPELR-21863 (SC) it was defined by Kekere-Ekun, JSC thus:”The ratio decidendi means “the reason for deciding” or the reasoning, principle or ground upon which a case is decided. The legal principle formulated by the Court, which is necessary in the determination of the issues raised in the case, in other words the binding part of the decision is its ratio decidendi, as against the remaining parts of the judgment, which merely constitute obiter dicta. See: Afro Continental (Nig.) Ltd. vs Ayantuyi (1995) 9 NWLR (Pt.420) 411 @ 435 D – E; Saude Vs Abdullahi (1989) 4 NWLR (Pt. 116) 387 @ 429 & 431: UTC (Nig.) Ltd. vs Pamotei (1989) 2 NWLR (Pt.103) 244 @ 293.” PER TOBI, J.C.A.

DISTINCTION BETWEEN AN OBITER DICTUM AND A RATIO DECIDENDI

In Legal Theory, an obiter dictum, in contradistinction to the ratio decidendi of a case, is a Judge’s passing remarks which do not reflect the reasoning of the Court or ground upon which a case is decided, Paton and Sawyer, “Ratio Decidendi and Obiter Dictum in Appellate Courts” (1947) 63 LQR 461, 481; Rupert Cross, “The Ratio’ in 20 MLR 124-126; A. G. Karibi-Whyte, “The Tyranny of Judicial Precedents”, in (1990) Vol.3 No.1 Cal. LJ; P. U. Umoh, Precedent in Nigerian Courts (Enugu: Fourth Dimension Publishers Ltd. 1984) 208; Nwana v FCDA and Ors (2004) LPELR 2102 (SC) 12, F-G; Yusuf v. Egbe [1987] 2 NWLR (pt.56) 341; Amobi v Nzegwu [2013] 12 SCNJ 91.” Finally on this point, the case ofOnah vs. Schlumberger (Nig) Ltd (supra) is apt. The Apex Court in pages 97, 105-106 held:
“There is a clear distinction between “ratio decidendi” and “obiter dicta”. Ratio decidendi have a binding effect in a judgment. They are authority for what the case decides or stands for. On the other hand, obiter dicta are mere observations of the Court and a Court is entitled to make observations in the process of preparing its judgment. In the instant case, the issue of justification was not an issue formulated for determination by either party and it was no tone of the two issues considered by the Court of Appeal. In the process of considering the defence of qualified privilege the Court of Appeal explained the difference between qualified privilege and the defence of justification. That was an obiter dictum of the Court of Appeal….“Ratio decidendi” means reasons for deciding. It means the principle or rule of law on which a Court’s decision is founded. It is the rule of law on which the latter Court thinks that a previous Court founded its decision; a general rule without which a case must have been decided otherwise.”PER TOBI, J.C.A.

THE CARDINAL PRINCIPLE OF INTERPRETATION OF A DOCUMENT

It is the cardinal principle of interpretation that in construing the meaning of a document, reference must be made to what precedes and what follows it. In Nigerian Army vs. Aminun-Kano (2010) LPELR-2013 (SC), the Supreme Court per Muhammad, JSC reiterated this principle in the following words:
“In order to read the mind of the maker/author of that document it is necessary to subject such document to an appropriate rule of interpretation that a passage is best interpreted by reference to what precedes and what follows it. This makes it mandatory for one to read the whole passage or document and every part of it should be taken into account. Viscounts Simonds, in the case of Attorney-general v. Earnest Augustus (Prince) of Honover (1957) AC 436 at p. 463, stated inter alia: “it must often be difficult to say that any terms are clear and unambiguous until they have been read in their context. That is not to say that the warning is to be disregarded against creating or imaging an ambiguity….it is a must only to the extent that the elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he has read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear or unambiguous.” This means that if a section of a legislation (in this appeal I take it to mean any part of any of the paragraphs contained in Exh. P45) appears to be obscure its true meaning can only be ascertained by reference to what precedes it as well as what follows it. Thus, by taking a look at Exh. P45, starting from the title of the document. “WITHDRAWAL OF CHARGES PREFERRED AGAINST COL. M. AMINU KANO (N.6422) AND SUBSTITUTION WITH A FINAL WARNING LETTER.”PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The judgment that culminated in this appeal is the judgment of 31/5/2016 delivered in Suit No. LD/1179CMW/2015 – Transnational Corp. of Nig. Plc vs. The Chairman of Chartered Institute of Arbitrators (Nigeria Branch) & 3 Ors by Hon. Justice Y.A. Adesanya (Mrs.) of the Lagos State High Court. The facts of the case disclosed at the Lower Court is that the 1st Respondent (then Applicant) executed a Farm-Out and Participation Agreement (FOPA) with the Appellants (then 3rd and 4th Respondents); with an arbitration clause in the agreement. In the FOPA, the 2nd Respondent (then 1st Respondent) was designated as the appointing authority by the parties. There was a dispute between the parties to the FOPA and the 1st Respondent took out a writ of summons instituting an action in the Lagos State High Court in Suit No. LD/778CMW/2015 – Transnational Corporation of Nigeria Plc vs. Sacoil 281 Nig. Ltd & Anor. The Appellants on receipt of the originating processes filed an application for stay of proceedings pending arbitration. This application was opposed by the 1st Respondent.

The Lower Court after hearing the application of the Appellants for stay, gave its ruling (the merit of which I will not go into as same is on appeal before this Court). While the action was before the State High Court and pursuant to the FOPA and the arbitration clause contained therein, the Appellants issued a notice of arbitration to the 1st Respondent and by a letter dated 21/8/2015, the Appellants applied to the 2nd Respondent to appoint three arbitrators to constitute the arbitral Tribunal to hear and determine the dispute between the parties to the FOPA. It is with respect to the request to the 2nd Respondent that the 1st Respondent commenced this action vide an originating summons for the determination of the following question:
“Whether the 1st and 2nd Respondents have the powers or vires to appoint three(3) Arbitrators upon the application of the 3rd and 4th Respondents pursuant to the Arbitration Agreement contained in the Farm-Out Participation Agreement between the Applicant and the 3rd and 4th Respondents.”

The 2nd Respondent at the Lower Court also sought the following reliefs contained on pages 2 -3 of the record of appeal:

“1. A Declaration that within the proper meaning of the provisions of the Arbitration Clause contained in Clause 18 of the Farm-Out and Participation Agreement dated 16th day of October, 2010 (FOPA) between the Applicant and the 3rd and 4th Respondents and Section 44(5), (6) & (7) of the Arbitration and Conciliation Act, Cap A18, Laws of the Federation of Nigeria 2004, the 1st and 2nd Defendants have no power whatsoever and/or howsoever to appoint three(3) Arbitrators and/or arbitrator provided for under the Arbitration Clause upon the application of the 3rd and 4th Defendants dated 21st of August, 2015 or otherwise or upon the application of any of them or howsoever.
2. An Order that any purported appointment made by the 1st and/or 2nd Respondent upon the application of the 3rd and 4th Respondents by their letter dated the 21st of August, 2015 or otherwise howsoever is invalid, null and void and of no effect whatsoever.
3. An Order of perpetual injunction restraining the 1st and 2nd Respondents, either by themselves or their servants, agents, officers or otherwise howsoever from appointing three(3) arbitrators and/or any arbitrator provided for under the Arbitration Clause upon the application of the 3rd and 4th Defendants dated the 21st of August, 2015 or otherwise or upon the application of any of them or howsoever.
4. An Order of perpetual injunction restraining any arbitrator appointed by the 1st and/or 2nd Respondents pursuant to the application of the 3rd and 4th Respondents dated 21st of August, 2015 or otherwise by either or both the 3rd and 4th Respondents from acting as arbitrators over any dispute between the Applicant and the 3rd and 4th Respondents arising out of FOPA.”

The Lower Court after hearing parties to the action in a considered judgment contained on pages 375 -383 particularly at pages 381 – 383 of the record of appeal held as follows:
“A careful reading of the whole provision of Section 44 of the ACA shows that the designation of an appointing authority in Parties’ Arbitration Agreement in international commercial arbitration would appear to be the norm and a standard practice, because running through the whole provision of the section is the reference to an appointing authority, which is not provided for in Section 7 of the Act. (See Section 44 (2)) for appointing a sole Arbitrator, where parties are not in agreement.
Further, the provision in Section 44 also shows that naming an appointing authority does not detract from the parties’ role or function in the process of appointing the said arbitrator(s). In effect, it does not take away the right of the parties to select/nominate the arbitrators, i.e that the parties have input in the appointment. (See Section 44(3).
In the same breath, the provision of Section 44 (4), (5) and (6) pre-supposes the existence of an appointing authority, already designated in the Parties’ Arbitration Agreement. See Section 44 (6) and (7). In other words, unless parties have clearly spelt out the procedure for the appointment of the arbitrators, in addition to naming an Appointing Authority, the provision of Section 44 (5), (6) and (7) would apply as rightly argued by the learned silk for the Applicant. It follows that simply naming the 1st Respondent as an Appointing Authority in Clause 18.3 of the Parties Agreement does not confer on the 1st Respondent, the right to appoint three arbitrators and constitute them into an arbitral tribunal.
Does it follow that the Arbitration Agreement in the parties’ agreement would fail for this reason, i.e. lack of procedure for the appointment? The learned counsel for the 3rd and 4th Respondents has argued that there are two sets of parties in this matter, evidently represented by two counsel. The first set of party being the Applicant, represented by the learned silk and the 2nd set of parties being the 3rd and 4th Defendants represented by him, hence the arbitration in issue was initiated jointly by the 3rd and 4th Respondents’ represented by him and further that assuming parties are to appoint Arbitrators under Sections 7 and 44 of the ACA, the Applicants would appoint one and the Respondents, represented by him would appoint one and then the two Arbitrators appointed by both sets of parties, appoints a third (3rd) Arbitrator. Let me add that where these sets of parties are unable to agree, then the provision of Section 44 (7) of ACA would apply.
Even as argued by the learned silk, the agreement between the parties to the FOPA identifies 3 parties and is intended to treat each of Sacoil and EER (3rd and 4th Respondents) as individuals, i.e. that it is a three-party dispute, it is apparent that the 3rd and 4th Respondents are on the same side of the divide and are ready and willing to jointly appoint one Arbitrator to represent them both, thus given effect to the Arbitration Agreement.
The above procedure would therefore have been the appropriate procedure and one which can be resorted to in the light of Clause 18(3) of FOPA but for the fact that this Honourable Court in an earlier, Suit No. LD/778CMW/2015, between the Applicant and the 3rd and 4th Respondents had in considered Ruling on the 8th December, 2015 dismissed the latter’s Motion on notice dated 24th July, 2015 for an Order staying proceedings in the said suit and refusing to refer the dispute between the parties to arbitration. The Applicant has thereafter filed an appeal against the said Ruling and a motion for Stay of proceedings pending the determination of the appeal before the Court of Appeal.
This Court is mindful of the provision of Section 4(2) of ACA, which provides that where an action has been brought for stay of proceedings pending arbitration before a Court, arbitral proceedings may nevertheless be commenced or continued, and an award may be made by the arbitral tribunal while the matter is pending before the Court in the light of this Court’s Ruling in the earlier suit, the initiation of Arbitral Proceedings by the 3rd and 4th Respondents, albeit before the said ruling was delivered cannot be given any judicial backing. It is against the said initiation by issuance of a Notice for appointment of arbitrators that this Originating summons was filed.
On the totality of the foregoing, this Originating Summons succeeds and the question whether the 1st and 2nd Respondents have the power or vires to appoint three (3) Arbitrators upon the application of the 3rd and 4th Respondents pursuant to the Arbitration Agreement contained in the Farm-Out Participation Agreement between the Applicant and the 3rd and 4th Respondents is answered in the negative.
Accordingly, Prayers I, II, III and IV are granted as prayed.
THAT IS THE JUDGMENT OF THIS COURT.”

The Appellants dissatisfied with the judgment of the Lower Court has filed this appeal containing 3 grounds of appeal vide a notice of appeal dated and filed 22/7/2016 found on pages 384 – 388 of the record of appeal. The grounds of the appeal are as follows:
Ground 1:
The Lower Court erred in law and arrived at a perverse decision when it granted all the reliefs sought by the 1st Respondent by its originating summons dated 11 September, 2015, in spite of the parties’ arbitration agreement to submit any dispute arising from the Farm Out and Participation Agreement to an arbitral Tribunal with three arbitrators.
Ground 2:
The Lower Court erred in law and arrived at a wrong decision when it granted the 1st Respondent’s relief which challenge the appointment of arbitrators “howsoever” in the dispute between the Appellants and the 1st Respondent which is borne out of the FOPA with an arbitration agreement.
Ground 3:
The Lower Court erred in law and arrived at a perverse decision when it granted all the 1st Respondent’s relief on the basis of its earlier decision in a separate action in Suit No. LD/778CMW/2015, and facts not presented before it, without calling parties to address her on the relevance and applicability of the earlier case and facts.

The Appellants’ brief dated and filed 8/11/2016 was settled by Ibifubara Berenibara Esq. In its brief, Appellants raised two issues for determination viz:
a. In view of the agreement of the parties to resolve their disputes under the Farm Out and Participation Agreement by arbitration constituted of three arbitrators, was the Lower Court right to have refused the appointment of arbitrators at all?
b. Whether the Lower Court has not breached the Appellant’s constitutional right to fair hearing when it granted all the reliefs sought by the 1st Respondent on the basis of another action and facts within the personal knowledge of the judge and without calling parties to address her on it.

On issue 1, it is the contention of the learned counsel that at the Lower Court, certain facts were undisputed as between the Appellants and the 1st Respondent and that the settled law in such a situation is that no further proof is required. It is the further contention of counsel that at the Lower Court, the 1st Respondent admitted that the parties have an arbitration agreement for the resolution of any dispute under the FOPA; and by the arbitration agreement, the arbitral Tribunal will be constituted of three arbitrators and therefore on that strength, no further proof is required. Learned counsel cited Okesuji vs. Lawal (1991) LPELR-2447 (SC); Njoemana vs. Ugboma & Anor (2014) LPELR-22494 (CA); Adewunmi vs. Plastex (1986) NWLR (Pt. 32) 767; Odebunmi & Anor vs. Oladimeji & Ors (2012) LPELR-15419 (CA); Olofu vs. Itodo (2010) LPELR-2585 (SC). It is the argument of the learned counsel that parties are bound by the terms of their agreement and are not at liberty to deviate from it and in extension, the Court is also bound to respect the agreement of parties placing reliance on Arjay Ltd vs. A.M.S Ltd (2003) 7 NWLR (Pt. 820) 577 @ 634; Sona Breweries Plc vs. Shina Peters & Anor (2005) 1 NWLR (Pt. 908) 478 @ 489. It is the submission of counsel that the Lower Court erred when it refused to follow the decisions of this Court and those of the Supreme Court which hold consistently that Courts should give effect to the agreement of the parties; thus going against the doctrine of stare decisis. He cited Osakue vs. Federal College of Education (Technical) Asaba (2010) 2-3 SC (Pt. III) 158 @ 179; Akingbola vs. FRN (2015) 10 NWLR (Pt. 1468) 579.

It is the argument of counsel that the issue for determination before the Lower Court in the light of the admission of parties that three arbitrators is to be appointed was; who should appoint the three arbitrators? Counsel submitted that what the Lower Court should have done is to take a position in the answer to the question whether the 2nd Respondent appointed has the powers to appoint all three arbitrators in line with FOPA, or the parties appoint the arbitrators in accordance with the procedure in Section 44 of the ACA. It is the submission of counsel that the Lower Court correctly held that where the procedure for appointment of three arbitrators is not clearly spelt out in the FOPA, then the two sets of parties to the FOPA are to appoint the arbitrators in accordance with Section 44(5), (6) and (7) of the ACA. It is the contention of counsel that the Lower Court deviated completely and made a summersault when it made a declaration aimed at making the Arbitration Agreement ineffective after agreeing that the parties have an arbitration agreement and that the parties to the FOPA can conveniently appoint arbitrators in accordance with Section 44(7) of the ACA to give effect to the Arbitration Agreement.

It is the further submission of learned counsel that the fact that an appeal had been filed against its ruling refusing an application for stay of proceedings in Suit No. LD/778CMW/2015 could not have been the pedestal on which the prayers of the 1st Respondent would have been granted as prayed.

It is the further submission of counsel that the Lower Court having agreed that the parties have an arbitration agreement and the number of arbitrators to be appointed where a dispute arises, it ought to have decided the sole issue presented to it and determine how the three arbitrators should be appointed and nothing more and that by refusing to allow appointment because of pending appeal which does not impact on the appointment of the arbitrators, the Lower Court invariably assumed the position of this Honourable Court in relation to the appeal in Suit No. LD/778CMW/2015, and in circumspective fashion, pre-empted an outcome for the appeal, an exercise which the Court should have refrained from.

Learned counsel for the Appellants emphatically submitted that a finding that the 2nd Respondent is without powers under the Arbitration Agreement of the parties to appoint the three arbitrators should not conclude that the prayers as sought by the 1st Respondent are bound to be granted as prayed stating that had the Lower Court taken into consideration the effect of such an order it would not have granted same. It is submitted by counsel that a close analysis of the prayer will show that aside from seeking an order restraining the 2nd Respondent from appointing three arbitrators, the further implication of the 1st Respondent’s prayer is that in spite of the fact the parties have an arbitration clause:
(a) Perpetual injunction should be ordered to restrain the 2nd Respondent from appointing any arbitrator at all, even where Section 44 of the ACA is to be employed in conjunction with Clause 18.3 of the FOPA; and
(b) An order should be made to perpetually make ineffective any application made by the parties to the 2nd Respondent to appoint any arbitrator in compliance with Clause 18.3 of FOPA and Section 44 of the ACA.

It is the position of Appellants’ counsel that the basis of the order made by the Lower Court is the operating word “howsoever” coined into the prayers; which effect counsel submitted is that even where the parties are to have their dispute resolved eventually by arbitration, there is no way arbitrators should be appointed. Counsel referred to the Black’s Law Dictionary, 10th edition, page 858, and A.B.S.U. vs. Otosi (2011) 1 NWLR (Pt. 1229) 605 @ 622. It is the further submission of counsel that such an order of the Court is not only inimical to the doctrine of the sanctity of parties’ right to resolve their dispute by arbitration, it is also perverse, against public policy, and anti-arbitration order, which Courts are enjoined to refrain from. He relied on SPDC vs. Crestar Integrated Natural Resources Ltd. (2015) LPELR-40034 (CA). It is the final submission of counsel on this issue that totally blocking every possibility of appointing arbitrators even where parties have agreed to submit their dispute to arbitration is contrary to the purport and intent of both the ACA and the UNCITRAL Model Law on International Arbitration and went on to urge that this Court should hold that the Lower Court was wrong to have granted the 1st Respondent’s reliefs as prayed.

On issue two, it is the contention of counsel that the Judge of the Lower Court relied on facts within her personal knowledge to arrive at the decision; a procedure which is loathed by the Court. He cited Josiah Olomosola & Anor vs.Chief Aladire Oloriawo & Anor (2001) LPELR-5776 (CA). It is submitted by counsel that reliance on facts within the personal knowledge of the Lower Court without giving the parties opportunity to address the issue amounts to a denial of the Appellants’ right to fair hearing placing reliance on Daniel vs. FRN (2014) 8 NWLR (Pt. 1410) 570 @ 615. It is the further submission of counsel that this extra information within the personal knowledge of the Lower Court was the factor that influenced the decision of the Court and as such rendered the decision of the Lower Court prejudicial to the Appellants. Counsel relied on Urhobo vs. Oteri (1999) 2 NWLR (Pt. 589) 147 @ 161; Adeyemi vs. Y.R.S. Ike-Oluwa & Sons Ltd (1993) 8 NWLR (Pt. 309) 27 @ 40.

It is the argument of counsel that if the Lower Court intended to rely on Suit No. LD/778CMW/2015, parties should have been invited to apprise the Court of the update on the matter and the potential effect of that matter to this present action but this was not done by the Lower Court, thereby depriving the Appellants of the right to a fair hearing. He relied on Akila vs. Director General, S.S.S. (2014) 2 NWLR (Pt. 1392) 443 @ 474. It is the final submission of Appellants’ counsel that the fact that there is an application for stay of proceedings pending appeal is not sufficient for the Lower Court to hold that arbitrators cannot be appointed at all. Learned counsel finally urged this Court to allow the appeal and set aside the judgment of the lower Court.

The 1st Respondent counsel filed a preliminary objection dated and filed 16/4/2018 and also filed a cross-appeal on 12/3/19. In the preliminary objection, the 1st Respondent is seeking in the main that the appeal be dismissed in its entirety. A sole issue was raised for determination by the 1st Respondent:
“Whether or not the 1st Respondent/Applicant is entitled to the reliefs sought in this application.”

The 1st Respondent counsel is Aanu Ogunro, Esq. Learned counsel submitted that since the complaint of the Appellants in their ground one has nothing whatsoever to do with and is extraneous to the question for determination before the Court, and the reliefs granted are related to a different question entirely. Thus, it is obvious that the Appellants’ complaint do not arise from the judgment of the Trial Court and as such it is invalid and incompetent relying on C.C.B. Plc vs. Ekperi (2007) 3 NWLR (Pt. 1022) 493 @ 509. Learned counsel further submitted that the ground 3 of the Notice of Appeal of the Appellants is incompetent as the said ground does not attack the ratio decidendi of the Lower Court. It is the position of counsel that a calm reading of the portion of the judgment of the Lower Court shows that it deals with the Court’s opinion on the procedure that would have been appropriate for the appointment of three arbitrators to arbitrate over the dispute between the Appellants and the 1st Respondent which was not the question before the Lower Court to determine. It is the further position of counsel that the dicta of the learned trial judge making reference to the decision of the Lower Court in Suit No. LD/778CMW/2015 is an obiter dicta or judicial dicta as it does not touch on the question placed before the Lower Court at all. For this, learned counsel relying on Richard West & Partners Don Ltd vs. Dick (1969) 2 Ch 424; Odunukwe vs. Ofomata (2010) 18 NWLR (Pt. 1225) 404; Abacha vs. Fawehinmi (2000) 6 NWLR (Pt. 660) 229 and Nwankwo & Anor vs. Ecumenical Development Co-operative Society (E.D.C.S) U.A (2007) All FWLR (Pt. 360) 1448 @ 1462 urged this Court to strike out the ground of appeal for being incompetent.

Learned counsel for 1st Respondent contended that the Appellants’ issue 1 as formulated in the Appellants’ brief is incompetent having been formulated both from an incompetent ground 1 and ground 2 of the Notice of Appeal. He relied on Okezie Victor Ikpeazu vs. Alex Otti & Ors (2016) LPELR-40055 (SC) in further submitting that any issue for determination formulated from an incompetent ground of appeal together with another ground of appeal is incompetent and must be struck out. To this end, learned counsel submitted that this Court cannot in the circumstances entertain and/or consider issue 1 of the Appellants’ brief and same should be struck out. Citing Agbaka vs. Amadi (1998) 11 NWLR (Pt. 572) 16 @ 24, it is the submission of counsel that the Appellants’ issue 2 as formulated in the Appellants’ brief is incompetent having been formulated from an incompetent ground 3 of the Notice of Appeal and thus should be struck out. It is the final submission of the learned counsel that the Appellants’ appeal should be dismissed in its entirety as there is no competent issue to be considered by this Court in the Appellants’ brief and consequently, there is no proper Appellants’ brief before the Court. He relied on Korede vs. Adedokun (2001) 15 NWLR (Pt. 736) 483.

The 1st Respondent amended brief dated and filed 15/3/2019 deemed 23/3/2020 was settled by Aanu Ogunro, Esq. In its brief, learned counsel raised two issues for determination to wit:
1. Whether the learned trial Judge was right in granting the reliefs sought by the 1st Respondent.
2. Whether the Appellants’ right to fair hearing was breached by the learned trial Judge’s reference and reliance on the earlier decision of the Court in LD/778CMW/2015.
Learned counsel craved the indulgence of this Court to argue both issues together.

It is the contention of learned counsel that the argument of the Appellants that the Lower Court accepting that there was no procedure under the FOPA, it should have not granted the reliefs which have the effect of preventing even the parties from appointing any arbitrator by themselves at all is erroneous for the following reasons:
i. While it is true that the learned trial Judge found that resort could be made to Section 44 of the ACA for the appointment of arbitrators, she did so, on the basis that the 2 Appellants could appoint one arbitrator and that the 1st Respondent could appoint the other arbitrator as if it were a 2 party arbitrator.
ii. This, notwithstanding, the learned trial Judge then held that no effect could be given to the arbitration clause because she had found in the earlier suit that the arbitration clause ousts the jurisdiction of the Court and that in the light of that, the arbitration cannot be given any judicial backing.

It is the submission of counsel for the 1st Respondent that the learned trial Judge who found that the arbitration clause could not be given any judicial backing could not have given any effect to such arbitration clause as contended by the Appellants and was therefore right in granting all the reliefs sought by the 1st Respondent. It is the further submission of learned counsel that the contention of the Appellants that the Lower Court should not have relied on the decision in the earlier suit is erroneous and misconceived for the following reasons:
i. Facts in respect of the existence of LD/778CMW/2015 had been brought before the Lower Court by the 1st Respondent and the Appellants. He referred this Court to paragraph 8 – 10 of the affidavit of one Humphrey Onyekwu contained on page 6 of the record and paragraph 6d of the counter affidavit of one Ishaya Amaza contained on page 249 of the record.
ii. The Lower Court, Adesanya J. was the one who presided over the said suit LD/778CMW/2015.
iii. The fact relating to the existence of the ruling of the Court was put before the Court by the 1st Respondent’s motion on notice for amendment of the originating summons. Counsel referred this Court to paragraph 4 and 5 of the proposed further affidavit in support of the Amended Originating Summons.
iv. The law is settled that the Lower Court has the power to look at the document in its file to determine the issues before it even if such a document is not an exhibit to the originating summons. He relied on the case of Agbaisi vs. Ebikorefe (1997) 4 NWLR (Pt. 502) 630 @ 648.

It is the argument of counsel that the Court is entitled to rely on a decision in another case as estoppel in a case the Court is considering even when the decision in that other case was delivered after the case the Court is considering was filed. He relied on Halsbury’s Laws of England, 4th Edition, Vol. 16 para 1519. It is submitted by learned counsel that the case of SPDC vs. Crestar Integrated Natural Resources Ltd (2015) LPELR-40034 (CA) relied on by the Appellants is absolutely against the case of the Appellants and in support of the case of the 1st Respondent, thus validating the decision of the Trial Court. Aanu Ogunro, Esq., submitted that the decision in SPDC (supra) or Nigerian Agip Exploration Ltd (another case referred to in SPDC) is to the effect that Section 34 of the ACA restrains the Court from entertaining disputes arising from an arbitration agreement; which section offends against Section 272 of the Constitution. He further submits that Section 34 of the ACA cannot take away the constitutional right of the 1st Respondent to approach the Court for the determination of civil disputes and the power of the Court to make decisions that meet the justice of the case.

It is the contention of learned counsel that the argument of the Appellants that they were denied fair hearing as a result of the Lower Court not inviting parties to address her on the existence and status of Suit No. LD/778/CMW/2015 including the facts of the appeal challenging the ruling in that suit is erroneous and misconceived as those facts were facts brought forward by the Appellants and the 1st Respondent as stated earlier. On this note, counsel submitted that since the entire argument of the Appellants on issue 2 formulated by the Appellants is premised on the untrue allegation that the Court acted on her personal knowledge, the contention of the Appellants on fair hearing must fail in its entirety.

Finally, it is the contention of learned counsel that the ruling in Suit No. LD/778CMW/2015 is an existing decision of the Court which the Court can rely on in reaching its decision without calling parties to address it and the refusal of the Court to call parties to address it does not amount to a breach of fair hearing. He cited Orugbo vs. Una (2002) 16 NWLR (Pt. 792) 175 @ 210; Ejimofor & Ors vs. Nigerian Telecommunications Ltd & Ors (2006) LPELR-7611 (CA) and urge this Court to discountenance the argument of the Appellants on fair hearing. Learned counsel finally urged this Court to dismiss the appeal and uphold the decision of the Lower Court.

The Appellants filed a response to the 1st Respondent’s notice of preliminary objection dated 11/3/2020 but filed on 13/3/2020.

In response to the argument of the 1st Respondent on ground 1 of the Appellants’ notice of appeal, it is the submission of counsel that the 1st Respondent is wrong and misled as the reliefs sought by the 1st Respondent at the Lower Court are primarily to ensure no arbitrator is appointed to constitute an arbitral Tribunal, contrary to the agreement of the parties. It is the position of counsel that the effect of the Lower Court granting the 1st Respondent’s reliefs means that no arbitrator can be appointed by the arbitrating parties and/or the appointing authority and as such an arbitral Tribunal cannot be formed and this is what the ground 1 of the notice of appeal consequently attacks. Counsel relied on Atolagbe vs. Shorun (1985) LPELR-592 (SC). On the competence of ground 3, it is the submission of counsel that the 1st Respondent’s argument is faulty and none of the cases the 1st Respondent relied on supports its argument. It is the further submission of counsel that the Lower Court’s reasoning for granting the 1st Respondent’s reliefs which the Appellants have challenged cannot be classified as an obiter. He placed reliance onNwana vs. FCDA & Ors (2004) LPELR-2102 (SC). Finally, on the alleged incompetence of the Appellants’ issues 1 and 2. It is the contention of counsel that it has been shown that both grounds 1 and 3 are competent and issues 1 and 2 are properly drawn from their respective grounds of appeal. He therefore urges this Court to discountenance the submissions of the 1st Respondent and hold that issues 1 and 2 are competent, as they are formulated from competent grounds of appeal. On the whole, counsel to the Appellants urges this Court to dismiss the 1st Respondent’s objection and hold that the appeal is competent.

The Appellants in exercising their right of reply filed a reply brief on 13/3/2020 which was deemed on 23/3/2020. In their reply brief, it is submitted by counsel that the 1st Respondent’s argument that the Lower Court found that there is a lack of procedure to appoint three arbitrators for the resolution of the dispute is wrong; as the Lower Court was clear and definitive on the procedure for appointing three arbitrators as agreed under the FOPA vis-a-vis the Arbitration and Conciliation Act. It is the further submission of counsel that the Lower Court’s reliance on a different matter (i.e. Suit No. LD/778CMW/2015) now on appeal, in granting the reliefs sought cannot be disregarded, as it forms part of the basis of the Court’s eventual decision. It is the argument of counsel that though the suit was known to the Court, the ruling however, with the post-ruling events was not before the lower Court as at the time of the judgment. Counsel cited Dalyop vs.Madalla (2017) LPELR-43349 21-23; Ojonye vs. Onu & Ors (2018) LPELR-44212 (CA); Ibrahim-Ohida vs. Military Administrator, Kogi State (2000) FWLR (Pt. 12) 2107 while submitting that once an application is dismissed, every process sought to be brought in through the application also stands dismissed and it cannot be a basis for any other decision to stand on, and ought not to be taken into account in its judgment now on appeal. It was argued by counsel that the 1st Respondent’s proposed affidavit in support of the Amended Originating Summons in Suit No. LD/778CMW/2015 was no longer a document for consideration in the file of the lower Court, as it had been dismissed along with the application to amend the originating summons.

It is further submitted by learned counsel that a Court of law can rely on the ratio decidendi of a decision in a previous case when giving its judgment, but not on the facts/status of a previous case not validly before it; as the status of a previous case not presented to the Court, does not constitute an authority on which the Court can rely on in its judgment. The case of Statoil (Nigeria) Limited & Anor vs. FIRS & Anor (2014) LPELR-23144 (CA) was relied on by Appellants’ counsel in arguing that the 1st Respondent has not shown that the arbitration agreement of the parties under the FOPA violates the Constitution or any other statutory enactment. Finally, it is the contention of counsel that the case of Ogunwale vs. Syrian Arab Republic (supra) relied on by the 1st Respondent in arguing the unconstitutionality of Section 34 of the ACA is irrelevant in the instant case. He therefore submitted that the 1st Respondent’s argument that the reference to arbitration takes away its constitutional right to approach the Court is of no moment. On this basis, counsel urged this Court to uphold the Appellants’ argument that the decision of the Lower Court was wrong.

The 1st Respondent (herein Cross-Appellant) filed a cross-appeal on 12/3/2019 but deemed 23/3/2020 against the same judgment of the Lower Court. The cross-appeal of two grounds is found on pages 1-5 of the additional record of appeal deemed on 23/3/2020. The two grounds of appeal are:
Ground 1:
The learned trial Judge erred in law in holding that in a 3 party arbitration as in this case, Section 44 of the Arbitration and Conciliation Act is applicable and can be resorted to, for the purpose of the appointment of 3 arbitrators as agreed under Farm Out Participation Agreement (FOPA) between the said 3 parties, thus implying that the arbitration agreement contained in FOPA is operable, operative and/or capable of having effect and/or enforceable.
Ground 2:
The learned trial Judge erred in law when His lordship held as follows:
Does it follow that the Arbitration Agreement in the parties’ agreement would fail for this reason, i.e. lack of procedure for the appointment? The learned counsel for the 3rd and 4th Respondents has argued that there are two sets of parties in this matter, evidently represented by two counsel. The first set of party being the Applicant, represented by the learned silk and the 2nd set of parties being the 3rd and 4th Defendants represented by him, hence the arbitration in issue was initiated jointly by the 3rd and 4th Respondents’ represented by him and further that assuming parties are to appoint Arbitrators under Sections 7 and 44 of the ACA, the Applicants would appoint one and the Respondents, represented by him would appoint one and then the two Arbitrators appointed by both sets of parties, appoints a third (3rd) Arbitrator. Let me add that where these sets of parties are unable to agree, then the provision of Section 44 (7) of ACA would apply.
Even as argued by the learned silk, the agreement between the parties to the FOPA identifies 3 parties and is intended to treat each of Sacoil and EER (3rd and 4th Respondents) as individuals, i.e. that it is a three-party dispute, it is apparent that the 3rd and 4th Respondents are on the same side of the divide and are ready and willing to jointly appoint one Arbitrator to represent them both, thus given effect to the Arbitration Agreement.

The Cross-Appellant brief was filed on 12/3/2019 but deemed on 23/3/2020. In its brief, counsel for the 1st Respondent/Cross-Appellant raised two issues for determination before this Honourable Court viz:
1. Whether the learned trial Judge ought not to have held that the arbitration agreement contained in FOPA is inoperable, inoperative and/or incapable of having effect and/or unenforceable.
2. Whether the learned trial Judge was right in holding that the 1st and 2nd Cross-Respondents can be treated as one party (a set of parties) who can jointly appoint one of the 3 Arbitrators agreed to be appointed in FOPA.

On issue 1, it is the submission of learned counsel that the learned trial Judge in interpreting the provisions of Section 44 of the ACA, clearly misconstrued the relevant provisions of Sections 44 (5), (6) and (7) of the ACA, in not appreciating that those provisions, in their proper meaning and intendment, contemplates a situation where there are 2 parties to the arbitration and not 3 as in this case. It is the further submission of counsel that a careful look at the said provisions of Section 44 (5), (6) and (7)will show that the provisions relate solely to where there are only two parties to the arbitration and not when there are 3 parties or more as in this case. It is the position of counsel that Nigeria ACA unlike the English Arbitration Act, 1996 does not make any provision for the procedure for the appointment of 3 arbitrators where there are three (3) or more parties to the arbitration. It is the final submission of counsel on this point that had the Lower Court considered the fact that there was a lacuna in the Arbitration Act, it would have had no difficulty whatsoever in holding that the arbitration agreement contained in the FOPA is inoperable, inoperative, incapable of having any effect and unenforceable. He therefore urged this Court to resolve this issue in favour of the Cross-Appellant.

On issue 2, it is submitted by counsel that the decision of the learned trial Judge that the 1st and 2nd Cross-Respondents can be treated as one party for the purpose of appointing one arbitrator is wholly contrary to the agreement of parties as contained in the Farm Out and Participation Agreement (FOPA). It is the contention of counsel that the intention of the parties which is explicitly demonstrated in FOPA is that each of the 1st and 2nd Cross-Respondents should be recognized and treated as a party in its own rights. It is the further submission of counsel that this also applies to the appointment of the three (3) arbitrators agreed by the parties and as such, each of the Cross-Respondents would be treated as an individual party and not a set of parties as the learned trial Judge had found. While relying on Kaydee Ventures Limited vs. The Hon. Minister of Federal Capital Territory and Ors. (2010) 7 NWLR (Pt. 1192) 171 counsel argued that the law is well established that the meaning a Court can place on a contract is such that is plain, clear, and obvious result of the terms used in the agreement.

It is submitted by counsel that the decision of the learned trial Judge, in a 3-party arbitration as in the present case, has no basis or support under the Arbitration and Conciliation Act and is wholly unsupportable, invalid and erroneous. It is the further submission of counsel that the holding of the learned trial Judge is a complete misapprehension of Sections 7 and 44 of the ACAboth which envisages a 2 party arbitration and does not envisage an arbitration such as between the 1st Cross-Respondent, the 2nd Cross-Respondent and the Cross-Appellant, which is a 3-party arbitration. It is finally submitted by counsel that the decision of the Lower Court is wholly erroneous, perverse and, occasioned grave injustice to the Cross-Appellant and that the portion of the judgment ought to be set aside. Counsel urges this Court to resolve this issue in favour of the Cross-Appellant. The Cross-Respondents brief filed 26/2/2020 but deemed on 23/3/2020 raised a sole issue for determination;
“Was the Lower Court right when it found that based on the Arbitration Agreement of the parties and the relevant provisions of the Arbitration and Conciliation Act, 1988, which govern the Arbitration Agreement, a three member arbitral Tribunal can properly be constituted to determine the parties’ dispute?”

On its sole issue for determination, it is the submission of counsel that the submission of Cross-Appellant counsel to the effect that there is no procedure for the appointment of three (3) arbitrators is wrong because there are facts that are undisputed and/or admitted by the Cross-Appellant and the Cross-Respondents that show the procedure for the appointment of an arbitral tribunal of three members under the Arbitration Agreement of the parties as well as the ACA. It is the further submission of counsel that an arbitration agreement shall be a minimum of two persons, however, there is no maximum number of persons that can constitute parties to an arbitration proceedings, insofar as they are parties to the arbitration agreement in issue. He relied on K.S.U.D.B. vs. Fanz Const. Ltd (1990) 4 NWLR (Pt. 142) 1, 32; NNPC vs. Lutin Ltd (2006) 2 NWLR (Pt. 965) 506 @ 542; Dr. Charles D. Mekwunye vs. Lotus Capital Limited & Ors (2018) LPELR-45546 (CA); Bendex Engineering Corporation & Anor vs. Efficient Petroleum Nig. Ltd (2000) LPELR-10143 (CA) and Section 5(1) of the ACA. Counsel in replying to the Cross-Appellant’s argument that the ACA does not contemplate sets of parties and that the Lower Court was wrong to hold that there are two sets of parties involved in the dispute argued that the two sets of parties the Lower Court referred to are the Cross-Appellant on the one hand, and the Cross-Respondents on the other, which are invariably the both sides the Supreme Court referred to in K.S.U.D.B vs. Fanz Const. Ltd (supra) and NNPC vs. Lutin Ltd (supra). It is therefore submitted by counsel that the Lower Court was right when it construed the parties to the arbitration proceedings (dispute) as two sets of parties. He further submitted that a three-party arbitration does not in itself make the arbitration agreement inoperable, inoperative and/or incapable of having effect On the Cross-Appellant’s argument on the Constitution of the arbitral Tribunal of three members, it is submitted by counsel that the argument of the Cross-Appellant’s counsel is wrong and misleading in view of the agreement of the disputing parties and the Arbitration and Conciliation Act which governs their arbitration agreement. It is the contention of learned counsel that in the light of the agreement between the parties, the issue is not about the number of parties to the arbitration agreement but rather on the procedure in appointing the three arbitrators to constitute the arbitral Tribunal. It is the submission of counsel that the appointing authority (that is the 3rd Respondent) has the power to appoint all three members of the arbitral Tribunal to hear and determine the parties’ dispute under the FOPA but where the parties to the arbitration are to appoint arbitrators and there is a failure or inability to do so within the requisite timeframe, the Chairman of the Nigerian Branch of the Chartered Institute of Arbitrators, that is the 3rd Respondent is empowered to appoint to fill the vacant seat of the arbitral Tribunal.

Finally, it is submitted by counsel that the arguments of the Cross-Appellant that the appointment of three arbitrators under the ACA is not achievable under the ACA is not correct and therefore urged this Court to hold that the lower Court was right in holding that the appointment of three arbitrators is procedurally feasible as per the FOPA as well as under the Arbitration and Conciliation Act.

The Cross-Appellant filed a reply brief on 20/3/2020 but deemed on 23/3/2020. In its reply brief, it is the submission of counsel that the cases of K.S.U.D.B vs. Fanz Const. Ltd; NNPC vs. Lutin Ltd and Bendex Engineering Corporation & Anor vs. Efficient Petroleum Nig. Ltd (supra) and the Sections of ACA relied on by the Cross-Respondents are irrelevant to the question of procedure of appointment of three arbitrators in a 3-party dispute as nothing in the said authorities as well as the sections of ACA deals with the appointment of three arbitrators in a 3-party dispute. It is the further submission of counsel that the argument of the Cross-Respondents to the effect that the aforementioned cases recognize that parties to an arbitration dispute can be referred to as both sides have nothing whatsoever and howsoever to do with the number of parties.

It is the contention of counsel that the fact that the 1st and 2nd Cross-Respondents are on the same side of the dispute and that they have decided to use the same counsel does not in any way alter the fact that they are both individual party to FOPA and must be considered as such individual in the appointment of the three arbitrators envisaged and agreed by parties to FOPA. With respect to the case of Mekwunye vs. Lotus Capital Limited & Ors (supra) relied on by the Cross-Respondents, it is the submission of counsel that the issues and facts of that case are wholly distinguishable from this present case. Relying on PDP vs. INEC & Ors (2018) LPELR-44373; INEC & Anor vs. Ray (2004) 14 NWLR (Pt. 892) 129, counsel posited that a decision is an authority for what it actually decided since every Court is only entitled to decide the issue or issues raised on the claim or claims before it. It is submitted that a decided case as an authority, is only applicable where there are no distinguishing features between its facts and the facts of the new case where it is being sought to be applied. To that end, counsel further submitted that the decision of Mekwunye vs. Lotus Capital Limited & Ors is not an authority to be followed in this instance as the facts are wholly distinguishable from those in this instance.

It is the contention of counsel that the argument of the Cross-Respondents that two arbitrators can be appointed by all three parties on the premise that the Respondents are one set (side) of the parties and can jointly appoint a single arbitrator is misconceived. It is the further submission of counsel that the contention that the 3rd Respondent can appoint the three arbitrators or any arbitrator at all where the parties failed to appoint an arbitrator within the timeframe is also misconceived and flawed. It is the final submission of counsel that by failing to respond to the argument of the Cross-Appellant that there is a lacuna in the ACA, in that, it does not make provisions for the appointment of three arbitrators in the event of there being three parties, by reference to the English Arbitration Act, the Cross-Respondents, as a matter of law, are deemed to have conceded the point and the Court of Appeal should have no difficulty in holding that the case of the Cross-Appellant is made.

I have read through all the processes filed by the 1st and 2nd Appellants, as well as that of the 1st Respondent. But before I go into the merit of the appeal, I would like to, at this juncture state that there is a preliminary objection to this appeal which by law, I am enjoined to first consider before going into the substance of the appeal. The reason for this is trite in law. The law is settled that if there is a preliminary objection in a matter, the Court should first consider it, as the decision may affect the main appeal particularly if the preliminary objection succeeds. If it succeeds there will be no need to go into the merit of the appeal as that will be an unnecessary and fruitless journey as that would amount to a mere academic exercise. This is because the success of a preliminary objection terminates the further hearing of the matter and it becomes needless apart from an academic exercise to go into the merit of the matter. There is a cloud of cases in this respect. See Salik vs. Idris & Ors (2014) LPELR-22909 (SC); Popoola vs. State (2018) LPELR-43853 (SC); Nwosu vs. PDP (2018) LPELR-44386. In Petgas Resources Ltd vs. Mbanefo (2017) LPELR-42760 (SC), the Supreme Court had this to say:
“As a first line of action in this appeal, It is pertinent to dispose of the Preliminary objection raised. This is very necessary because if found successful, it can determine the fate of the entire appeal, prematurely. I seek to State the position of the law also that a notice of Preliminary objection pursuant to the provisions of Order 2 Rule 9 of the Court’s Rules may validly be raised to question the competence of an appeal in the respondent’s brief of argument. See Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248 at 257 and 258 and Fawehinmi V. N.B.A. (No 1) (1989) 2 NWLR (Pt 105) 494 at 515 – 516. See also Ogidi V. Egba (1999) 10 NWLR (Pt. 621) 42 at 71 and Salami V. Mohammed (2000) 9 NWLR (Pt. 673) 469. In other words, it can operate as a quick and easy weapon in the hands of the respondent to terminate an appeal without dissipating any energy, time or incurring much expense. Plethora of judicial authorities are overwhelmingly supportive in their pronouncements. For instance, the case of Efet V. INEC (2011) All FWLR (Pt. 565) page 203 at 216 is extant wherein this Court held:- “The aim/essence of preliminary objection is to terminate at infancy or to nib in the bud, without dissipating unnecessary energy in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, forecloses a hearing of the matter in order to save time. Where a notice of preliminary objection is filed and moved before a Court of law, the Court is duty bound to consider the preliminary objection before venturing into the main or cross appeal as the case may be.” Also in Rabiu V. Adebajo (2012) All FWLR (pt. 634) 1836 at 1842 this Court said:- “A preliminary objection as a threshold issue is a pre-emptive strike to scuttle the hearing of the appeal. It has to be disposed of before any further step can be taken in the appeal.” The same foregoing principle of law was applied also in the case of Alege v. Governor Oyo State (2012) All FWLR (pt. 534) 53 or 84 wherein this Court stated the position of the law on the subject succinctly when it said thus:- “However vague or minute a Preliminary Objection is, it must be first considered before the Court can go forth, since the competence of the process is questioned. It must be resolved so that the Court is not made to embark on a futile adventure into an appeal or suit that it either has no power to do or the matter being already dead.” Other related authorities on the same principle are Abe V. Unilorin (2013) All FWLR (Pt. 697) 682 at 691 – 692; Agbareh V. Mimra (2008) All FWLR (Pt. 409) 3 SCNJ 24; Onyemeh V. Egbuchulam (1996) 4 SCNJ 237; and Yaro V. Arewa Construction Ltd & Ors. (2007) 6 SCNJ 418, (2008) All FWLR (Pt. 400) 603. On a community reading of the foregoing cases, the underlying exposure is clear that the purpose of preliminary objection and effect if successively taken, is to put to an end the hearing of an appeal. For a preliminary objection to qualify as such therefore, it should require serious argument and consideration on a point of law which if decided, one way or the other will be decisive of a litigation. In other words, the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. A preliminary objection to be successful ought to be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. It is incumbent on a Court therefore to out rightly consider the preliminary objection raised by a respondent. On determining it, one way or the other, the Court will proceed to either strike out the appeal or consider same on its merit. See Abe V. University of Ilorin (supra); Utuk V. Npa (2005) 6 SC (Pt. 11) 69, and Uwazurike V. Attorney-General, Federation (2007) All FWLR (Pt. 367), 834. The Black’s Law Dictionary, 9th Edition at Page 1299 also gave the effect of preliminary objection that when upheld would render further proceedings before a Tribunal impossible or unnecessary.”
See also Galadima vs. State (2017) LPELR-41911 (SC); Ekemezie vs. Ifeanacho & Ors (2019) LPELR-46518 (SC); AG Lagos State vs. AG Federation (2014) LPELR-22701 (SC).

Having laid that basic foundation, I will now go on to consider the preliminary objection of the 1st Respondent herein on the sole issue formulated by the 1st Respondent which was adopted by the Appellants. Though a Court is at liberty to formulate its issues for determination or adopt any issue(s) formulated by the parties in so far as the issue formulated or adopted disposes of the appeal in its entirety (NNPC & Anor vs. Famfa Oil Ltd (2012) LPELR-7812 (SC); Ikuforiji vs. FRN (2018) LPELR-43884 (SC). I will however adopt the issue for determination as raised by the 1st Respondent on the preliminary objection which is whether the 1st Respondent is entitled to the relief sought in the application. For completeness, I will quote the sole issue for determination in the preliminary objection as stated in the 1st Respondent brief;
“Whether or not the 1st Respondent/Applicant is entitled to the reliefs sought in this application.”

The 1st Respondent premise of the preliminary objection is that the grounds of appeal is incompetent and therefore they should be struck out mainly because the ground is not based or arise from the judgment as they are based on obiter dictum of the judgment and not the ratio decidendi. Consequent upon that, the issues for determination based on incompetent grounds of appeal is not competent and by natural events in law, the brief of argument from an incompetent issue based on an incompetent ground of appeal will also be incompetent as the brief cannot stand on an incompetent issue which invariably cannot stand on an incompetent ground of appeal. An incompetent ground of appeal makes the notice of appeal incompetent. See Chief Emmanuel Eze Onwuka vs. Engineer Samuel Ononuju NSCQR Vol. 38 2009 p. 33.

I will however hasten to add that a single competent ground of appeal can sustain the appeal. That is to say even if a Court holds that all the grounds of appeal are incompetent except one, for the sake of that one, the appeal can be sustained. See Abubakar vs. Waziri & Ors (2008) 14 NWLR (Pt. 1108) 507; Nwaolisah vs. Nwabufoh (2011) 14 NWLR (Pt. 1268) 600.

Counsel to the 1st Respondent has submitted that ground 1 of the notice of appeal is incompetent as the said ground does not arise from the judgment of the Lower Court. Is this true? On the other hand, the 1st and 2nd Appellants contend that the said ground arose from the judgment of the Lower Court. Both counsel cannot be right. One has to be right and the other wrong. But who is right and who is wrong? In answering this question, I will take a little excursion to the law on what constitutes a valid ground of appeal. In Okafor vs. Abumofuani (2016) LPELR-40299 (SC); (2016) 4 S.C. 1, the Supreme Court per Sanusi, JSC put it in these words:
“There is long unending chain of authorities which establishes that for a ground of appeal to be valid and competent, it must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal.”
Similarly, in Oguebego vs. PDP (2016) NWLR (Pt.1503) 446, the Apex court held:
“For a ground of appeal to be valid and competent, it must arise from and be traceable to the judgment appealed against, and should constitute a challenge to the ratio of the decision on appeal. When a ground of appeal as formulated does not arise from the judgment and purports to raise and attack an issue not decided by the judgment appealed against, the same becomes incompetent and liable to be struck out.”
See also Co-Operative & Commerce Bank Plc & Anor vs. Ekperi (2007) LPELR-876 (SC); Ugwu vs. State (2012) LPELR-20616 (SC); Omisore vs. Aregbesola (2015) NWLR (Pt. 1482) 205.

Let me now go on to consider the ground 1 of the ground of appeal as raised by the 1st and 2nd Appellants. The said ground of appeal reads thus:
Ground 1:
The Lower Court erred in law and arrived at a perverse decision when it granted all the reliefs sought by the 1st Respondent by its originating summons dated 11 September, 2015, in spite of the parties’ arbitration agreement to submit any dispute arising from the Farm Out and Participation Agreement to an arbitral Tribunal with three arbitrators.

It is the argument of the 1st Respondent counsel that reading through the above-ground of appeal, ground 1 of the notice of appeal borders on the failure of the Lower Court in pronouncing that three arbitrators ought to be appointed to constitute an arbitral panel; which was not the question the Lower Court was called to determine. To my mind, it seems to me that learned counsel for the 1st Respondent overlooked the law on what a ground of appeal should contain. The ground 1 of the notice of appeal is simply attacking that part of the judgment of the Lower Court granting the reliefs of the 1st Respondent. The submission of 1st Respondent’s counsel that the Lower Court did not make any decision with respect to the complaint of the 1st and 2nd Appellants in ground 1 is not correct. It must be stated here that a ground of appeal must not necessarily attack the question for determination before the Lower Court, as argued by counsel to the 1st Respondent but must and indeed attack any part of the decision of the Lower Court as stated by the Supreme Court in Mercantile Bank of Nig. Plc & Anor vs. Nwobodo (2005) LPELR-1860 (SC), where it held thus:
“It is always an elementary law that grounds of appeal must of necessity arise from the judgment, ruling or decision or any pronouncement of the Court below. When a ground has not the remotest connection with what the Court below decided and which agitated the mind of the appellant to seek for a review and overturn the decision, but he misconceived what he ought to complain against and confused himself by setting up a case not in existence, the Appellate Court would naturally throw away the incompetent appeal. In the event that there is only one such ground, then of course, there would simply be no appeal as what is set down as a ground of appeal is non existent being no more than a figment of imagination of the appellant. I shall in this connection refer to two judgments. In Bello v. Aruwa (Supra) the Court of Appeal held thus; “it is well settled proposition of the law in respect of which there can hardly be a departure, that grounds of appeal against a decision must relate to the decision being appealed against and should constitute a challenge to the ratio of the decision. See Egbe v. Alhaji (1990) NWLR (Pt. 128) 546 at 590. Grounds of appeal are not formulated in abstract. They must arise from the judgment in the same way as the issues arising from the grounds of appeal. However meritorious a ground of appeal may be, it must be connected with the controversy between the parties, so also is the issue arising from the ground. This is indeed a pre-condition if for the vesting of judicial powers under the Constitution in the Courts. See Adesanya v. President of Nigeria (1981) 2 NCLR 358. In other words, like pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds or raise issues not related to the judgment appealed against. See Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 184. See also Bakule v. Tanerewa (Nig.) Ltd. (1995) 2 NWLR (Pt. 308) 724 at 739-740. Equally too in Iloabachie v. Iloabachie (2000) 5 NWLR (Pt. 656) 194, the Court of Appeal held thus; “A ground of appeal which purports to raise and attack an issue not decided by the judgment is incompetent. Thus, where the factual basis for attacking a judgment is false or non-existent, the ground of appeal based on the fictitious or misleading premise is incompetent. It constitutes a clear misrepresentation of the decision of the trial Court which vitiates the basis of the complaint on appeal. In the instant case, the ground of appeal which dealt with the issue of the Trial Court deciding the question of title to land in dispute did not arise from a determination of the Trial Court and is therefore incompetent. Issue 7 formulated therefrom is also incompetent.”
I cannot agree with the 1st Respondent’s learned counsel that ground 1 is incompetent and does not arise from the judgment. I make bold to say ground 1 of the grounds of appeal which simply attacks the reliefs granted by the Lower Court which forms part of the decision of the Court is in order and a valid ground of appeal. This finding clearly indicates that the 1st Respondent’s counsel argument that issue 1 raised from ground 1 is incompetent will hold no water. On this point alone, the appeal cannot be struck out or declared incompetent since this competent and valid ground of appeal can sustain the appeal. See C.S.S. Bookshops Ltd vs. R.T.M.C.R.S. (2006) 11 NWLR (Pt. 992); Daniel vs. INEC (2015) 9 NWLR (Pt. 1463) 113; Abubakar vs. Yar’Adua (2008) 4 NWLR (Pt. 1078) 465.

It is also the contention of counsel to the 1st Respondent that the appeal must fail on the premise that the ground three of the notice of appeal does not attack the ratio decidendi of the Lower Court and as such, same is incompetent. Can the argument of the 1st Respondent be said to be correct? For completeness, the said ground reads:
Ground 3:
The Lower Court erred in law and arrived at a perverse decision when it granted all the 1st Respondent’s relief on the basis of its earlier decision in a separate action in Suit No. LD/778CMW/2015, and facts not presented before it, without calling parties to address her on the relevance and applicability of the earlier case and facts. The 1st Respondent’s counsel argued that the part of the judgment of the Lower Court that formed the basis of the said ground is simply an opinion of the Lower Court and as such is not appealable and cannot culminate into a ground of appeal. The 1st and 2nd Appellants however argued that this cannot be true as the reasoning is the basis for the Lower Court’s decision. I have gone through the judgment of the Lower Court contained on pages 375-383 of the record of appeal, particularly pages 382-383 which reads thus:
“The above procedure would therefore have been the appropriate procedure and one which can be resorted to in the light of Clause 18(3) of FOPA but for the fact that this Honourable Court in an earlier, Suit No. LD/778CMW/2015, between the Applicant and the 3rd and 4th Respondents had in considered Ruling on the 8th December, 2015 dismissed the latter’s Motion on notice dated 24th July 2015 for an Order staying proceedings in the said suit and refusing to refer the dispute between the parties to arbitration. The Applicant has thereafter filed an appeal against the said Ruling and a motion for Stay of proceedings pending the determination of the appeal before the Court of Appeal.
This Court is mindful of the provision of Section 4(2) of ACA, which provides that where an action has been brought for stay of proceedings pending arbitration before a Court, arbitral proceedings may nevertheless be commenced or continued, and an award may be made by the arbitral Tribunal while the matter is pending before the Court in the light of this Court’s Ruling in the earlier suit, the initiation of Arbitral Proceedings by the 3rd and 4th Respondents, albeit before the said ruling was delivered cannot be given any judicial backing. It is against the said initiation by issuance of a Notice for appointment of arbitrators that this Originating summons was filed.
On the totality of the foregoing, this Originating Summons succeeds and the question whether the 1st and 2nd Respondents have the power or vires to appoint three (3) Arbitrators upon the application of the 3rd and 4th Respondents pursuant to the Arbitration Agreement contained in the Farm-Out Participation Agreement between the Applicant and the 3rd and 4th Respondents is answered in the negative.
Accordingly, Prayers I, II, III and IV are granted as prayed.
THAT IS THE JUDGMENT OF THE COURT.” Underlined for emphasis

Further, in the case of Wagbatsoma vs. FRN (2018) LPELR-43722 (SC) the Apex Court in trying to place a distinction between a ratio decidendi and an obiter dictum had this to say:
“My Lords, permit me to re-iterate my views, for the Court of Appeal, in Ibrahim v Fulani and Ors (2009) LPELR-4279 (CA) 35 et seq. According to the Court of Appeal, [per Nweze, JCA, as he then was], the search for the meaning of ratio decidendi pokes into an aspect of a long-drawn debate in the epistemology of Jurisprudence and Legal Theory: Somewhat, beneficially, the search has produced very robust and engaging disquisitions which are remarkable not only for the acuity of their premises and rigour of their logic, but also for the allurement of their syllogisms: Paton and Sawyer, “Ratio Decidendi and Obiter Dictum in Appellate Courts” (1947) 63 LQR 461, 481; Goodhart, Essays in Jurisprudence and the Common Law chapter 1; Glanville Williams, Learning the Law 71; Dias and Hughes, Jurisprudence 74; Lord Lloyd of Hampstead, Introduction to Jurisprudence 375; C. K. Allen, Law in the Making (seventh edition) 259-260; Hood Phillips, 4 First Book of English Law (sixth edition) 202-203; Salmond, Jurisprudence 223, cited in P. U. Umoh, Precedent in Nigerian Courts (Enugu: Fourth Dimension Publishers Ltd, 1984) 208; Rupert Cross, “The Ratio” in 20 MLR 124-116; A. G. Karibi-Whyte, “The Tyranny of Judicial precedents”, in (1990) Vol.3 No.1 Cal. LJ; Odiase v Agho (1972) 1 All NLR 170, 176; Savannah Bank of Nigeria Ltd v P.A.S.T.A. Ltd (1987) 1 SC 198; 278-279; N.A.B Ltd v B. Eng (Nig) Ltd (1995) 8 NWLR (Pt 413) etc… Now, the term ratio decidendi [plural: rationesdecidendi] has not lent itself to a satisfactory definition, C. K. Allen, Law in the Making (supra) 259-260. It is not surprising, therefore, that the definitions proffered by Professors Hood Phillips and Karl Llewellyn have been subjected to scathing strictures. For Hood Phillips, ‘ratio is the reason for the decision or the principle of law on which the decision was based,’ see, Hood Phillips, A First Book of English Law (supra) 202-203. Professor Karl Llewellyn argues that ratio decidendi is ‘prima facie the rule of the case, since it is the ground upon which the Court chose to rest its decision,’ in P. U. Umoh, Precedent in Nigerian Courts (supra) 207. Professor Goodhart has punctured these definitions. In his Essays in Jurisprudence and the Common Law (supra), the distinguished jurisprudent contended that the ratio decidendi is neither the reason for the decision nor the principle of the law in the judgment. Ironically, Goodhart’s definition of the term, which Professor Glanville Williams adapted, has received further qualification. Professor Glanville Williams, adapting Goodhart’s definition had presented the matter thus: ‘the ratio decidendi of a case can be defined as the material facts of the case plus the decision thereon,’ Glanville Williams, Learning the Law (supra) 71, in P. U, Umoh, Precedent in Nigerian Courts (supra) 207. In their authoritative work, Jurisprudence, (supra) page 74, Dias and Hughes pointed out that: Goodhart’s theory implies that it is the deciding Judge who decides what are the material facts and that these can be discovered by a perusal of the judgment. Lord Lloyd of Hampstead aligns himself with this observation of the erudite jurisprudents, Lloyd, Introduction to Jurisprudence (supra) page 375. This may well be so! However, I must hasten to observe that the above criticisms have no utilitarian value for us since we are bound by the approach adopted by the Supreme Court to this question. That approach would appear to be an amalgamation of the views of Hood Phillips and the definition of Goodhart, as adapted by Glanville Williams. Thus, for example, Karibi-Whyte JSC in Savannah Bank of Nigeria Ltd v P.A.S.T.A. Ltd (1987) 1 SC 198; 278-279 offered the following invaluable guides: In determining the ratio decidendi of a case, it is safer to consider the claim before the Court and the issue which the Court was called upon to decide. Thus, the reasons given by the Court for deciding the claim before it is the ratio decidendi which the Court is obliged to follow in subsequent cases and will not lightly depart from unless to avoid the perpetuation of errors…Accordingly, opinions in the judgment which are not part of the material facts even where relevant to the determination of the case do not constitute part of the ratio decidendi and are not binding… [Italics supplied for emphasis]. In Omisore and Anor v Aregbesola and Ors [2015] 15 NWLR (pt 1482) 205, this Court [per Nweze, JSC] explained that: In Legal Theory, an obiter dictum, in contradistinction to the ratio decidendi of a case, is a Judge’s passing remarks which do not reflect the reasoning of the Court or ground upon which a case is decided, Paton and Sawyer, “Ratio Decidendi and Obiter Dictum in Appellate Courts” (1947) 63 LQR 461, 481; Rupert Cross, “The Ratio’ in 20 MLR 124-126; A. G. Karibi-Whyte, “The Tyranny of Judicial Precedents”, in (1990) Vol.3 No.1 Cal. LJ; P. U. Umoh, Precedent in Nigerian Courts (Enugu: Fourth Dimension Publishers Ltd. 1984) 208; Nwana v FCDA and Ors (2004) LPELR 2102 (SC) 12, F-G; Yusuf v. Egbe [1987] 2 NWLR (pt.56) 341; Amobi v Nzegwu [2013] 12 SCNJ 91.” Finally on this point, the case ofOnah vs. Schlumberger (Nig) Ltd (supra) is apt. The Apex Court in pages 97, 105-106 held:
“There is a clear distinction between “ratio decidendi” and “obiter dicta”. Ratio decidendi have a binding effect in a judgment. They are authority for what the case decides or stands for. On the other hand, obiter dicta are mere observations of the Court and a Court is entitled to make observations in the process of preparing its judgment. In the instant case, the issue of justification was not an issue formulated for determination by either party and it was no tone of the two issues considered by the Court of Appeal. In the process of considering the defence of qualified privilege the Court of Appeal explained the difference between qualified privilege and the defence of justification. That was an obiter dictum of the Court of Appeal….“Ratio decidendi” means reasons for deciding. It means the principle or rule of law on which a Court’s decision is founded. It is the rule of law on which the latter Court thinks that a previous Court founded its decision; a general rule without which a case must have been decided otherwise.”

I am tempted to agree with the 1st Respondent counsel’s submission. Truly I am but for the fact that an opinion that is capable of turning around the substance of a decision in its entirety does not pass as mere opinion. From the wording of the judgment, I can but only agree with the submission of the counsel to the Appellants that the Lower Court so far was in tandem with their submission up until it suddenly took a twist and deviated on the premise that there was an appeal against a ruling it had earlier delivered in Suit No. LD/778CMW/2016 involving the same parties, which appeal will certainly impact the case before it, and as such it gave its judgment in favour of the 1st Respondent and granted all the reliefs as prayed. I tend to disagree with counsel for the 1st Respondent that such reference made by the Lower Court can pass as an opinion or as a side comment or remark that did not deal with the reason for the judgment. An opinion, to my mind is a passing or perfunctory remark. It has no catalytic effect; so to say. This is different from what obtains here. The operative word as used in the judgment on page 382 of the judgment is “BUT”. The word ‘but’ is simply defined by the Black’s Law Dictionary 8th Edition on page 213 to mean “Except, except that, on the contrary, or, and also, yet, still…” To appreciate the point I am making, I will quote pages 382-383 of the records again wherein the lower Court held:
“The above procedure would therefore have been the appropriate procedure and one which can be resorted to in the light of Clause 18(3) of FOPA but for the fact that this Honourable Court in an earlier, Suit No. LD/778CMW/2015, between the Applicant and the 3rd and 4th Respondents had in considered Ruling on the 8th December 2015 dismissed the latter’s Motion on notice dated 24th July 2015 for an Order staying proceedings in the said suit and refusing to refer the dispute between the parties to arbitration. The Applicant has thereafter filed an appeal against the said Ruling and a motion for Stay of proceedings pending the determination of the appeal before the Court of Appeal.”

In construing the judgment of the Lower Court, I cannot see my way clear to hold in favour of the 1st Respondent on this issue. This also is resolved in favour of the Appellants and against the 1st Respondent.

Having resolved that the grounds 1 and 3 of the Notice of Appeal are valid and competent, I see no reason in going into the substance of the argument on the competence or otherwise of issues 1 and 2 as formulated from grounds 1 and 3 respectively; as same will amount to a mere academic exercise and a waste of the judicial time of this Honourable Court. See Popoola vs. State (supra).

In the light of the foregoing, I therefore hold that the notice of preliminary objection filed by the 1st Respondent holds no water, and same is hereby dismissed.

The Appellants should not rejoice yet as the resolution of the preliminary objection in favour of the Appellants does not mean total victory for them as the appeal is still to be considered on its merit. I will now go on to consider the main appeal on the merit.

Parties to this appeal have in their respective briefs formulated two issues for determination respectively save for the 2nd and 3rd Respondents which did not file any process in the appeal. The law permits a Court to formulate its own issues or adopt any of the issues formulated by the parties provided those issues are from the ground of appeal. See NNPC & Anor vs. Famfa Oil Ltd (supra).

With the liberty of the law, I will adopt the issues for determination formulated by the 1st Respondent as it is brief and captures the essence of the appeal. For completeness, the issues are hereunder reproduced:
1. Whether the learned trial Judge was right in granting the reliefs sought by the 1st Respondent.
2. Whether the Appellants’ right to fair hearing was breached by the learned trial Judge’s reference and reliance on the earlier decision of the Court in LD/778CV/2015.

The 1st Respondent filed a cross-appeal and in arguing the cross appeal raised two issues for determination. The issues raised therein are clear and straight forward. I will therefore adopt the issues as mine. For the cross-appeal, the following issues are raised for determination;
1. Whether the learned trial Judge ought not to have held that the arbitration agreement contained in FOPA is inoperable, inoperative and/or incapable of having effect and/or unenforceable.
2. Whether the learned trial Judge was right in holding that the 1st and 2nd Respondents can be treated as one party (a set of parties) who can jointly appoint one of the 3 Arbitrators agreed to be appointed in FOPA.

I will now address the issues in the main appeal as stated above one after the other. In my view, the main issue in this appeal whether the main or cross-appeal is whether the Appellants were in order to ask the 2nd and 3rd Respondents to appoint the 3 arbitrators either under the FOPA or the ACA. This is the main issue in the appeal and the cross-appeal. Issue 1 deals with the appointment of arbitrators and whether the Lower Court was right in granting the reliefs sought by the 1st Respondent to the effect that the 2nd and 3rd Respondents had no right to appoint the 3 arbitrators, a fortiori, that the Appellants has no power to ask the 2nd and 3rd Respondents to appoint 3 arbitrators to settle the dispute between the parties to the FOPA. I will take issue 1 of the main appeal and issue 2 of the cross-appeal first and maybe together. This means I will take the issue of whether the Lower Court was right in granting the reliefs of the 1st Respondent and whether the Lower Court was right in holding that 1st & 2nd Respondents can be seen as one party in the arbitration first or together.

From the processes and documents before the Lower Court and the record of appeal, some salient facts stand out.
1. That the Appellants and the 1st Respondent agreed to submit their dispute to arbitration as contained in Clause 18 of the FOPA;
2. That the 2nd Respondent shall be the appointing authority; and
3. That the arbitral Tribunal shall be constituted by three arbitrators where the monetary value of the dispute exceeds Five Million United States Dollars or its currency equivalent.

These facts are agreed between the Appellants and the 1st Respondent. The Lower Court in its judgment found on page 380 of the record of appeal acknowledged these facts when it held that:
“Clearly by the above-stated provision of Parties’ Agreement, the appointing authority is stated to be the Chairman of the Nigerian Branch of the Chartered Institute of Arbitrators and that three Arbitrators are to be appointed to constitute the Arbitral Tribunal.”

The law is settled by a long line of judicial authorities to the effect that undisputed facts need no further proof. See Alahassan & Anor vs. Ishaku & Ors. (2016) LPELR-40083 (SC); Okereke vs. State (2016) LPELR-26059 (SC); Akaninwo & Ors vs. Nsirim & Ors (2008) LPELR-321 (SC).

What then was the dispute between the Appellants and the 1st Respondent at the Lower Court which has culminated into this appeal? The Appellants have argued that having held that no procedure was prescribed in the FOPA for the appointment of the three arbitrators to form an arbitral Tribunal, what the Lower Court should have determined was, who is empowered to make such appointment? Is it the appointing authority or the Appellants and the 1st Respondent themselves in accordance with the provisions of Section 44 (5), (6) and (7) of the Arbitration and Conciliation Act, 1988? It is the submission of the Appellants’ counsel that this was the singular task the Lower Court was saddled with. The Appellants’ case is that the appointment sought to be done by the 2nd and 3rd Respondents is in order.
The 1st Respondent holds a rather different view in its argument. It is the 1st Respondent counsel’s argument that the agreement between Appellants and 1st Respondent is a three-party agreement, whereas the procedure for appointment of the arbitrators as provided in the Arbitration and Conciliation Act only envisages a two-party dispute and not a three-party dispute, therefore rendering the arbitration agreement between the Appellants and the 1st Respondent inoperative and unenforceable. So while the Appellants are contending that the lower Court should have decided either between the parties and the appointing authority who appoints the three arbitrators to form the arbitration Tribunal, the 1st Respondent, on the other hand, is saying this cannot be the consideration, as the Court cannot look at the provision of Section 44 of the ACA since the section does not provide for a three-party dispute, hence the Court should pronounce the agreement between the parties inoperative and ineffective and grant its reliefs. The Lower Court according to the 1st Respondent was in order in granting the reliefs it sought in the Lower Court. It is either the Appellants are correct and the 1st Respondent wrong or the 1st Respondent is correct and the Appellants are wrong. This is what this Court has been called upon to determine.

In deciding the main issue and in this respect issue 1, the relevant documents to look at are the ACA and the FOPA. For ACA, the most relevant provisions are Sections 7 and 44 (5)(6) & (7) while for the FOPA it is clause 18.3. It will not be out of place to reproduce these provisions. I will start with Section 7 of ACA which provides thus:
“(1) Subject to Subsection (3) and (4) of this section, the parties may specify in the arbitration agreement the procedure to be followed in appointing an arbitrator.
(2) Where no procedure is specified under Subsection (1) of this section –
(a) in the case of an arbitration with three arbitrators, each party shall appoint one arbitrator and the two thus appointed shall appoint the third, so however that – (i) if a party fails to appoint the arbitrator within thirty days of receipt of a request to do so by the other party; or (ii) if the two arbitrators fail to agree on the third arbitrator within thirty days of their appointments, the appointment shall be made by the Court on the application of any party to the arbitration agreement;
(b) in the case of an arbitration with one arbitrator, where the parties fail to agree on the arbitrator, the appointment shall be made by the Court on the application of any party to the arbitration agreement made within thirty days of such disagreement.
(3) Where, under an appointment procedure agreed upon by the parties-
(a) a party fails to act as required under the procedure; or
(b) the parties or two arbitrators are unable to reach agreement as required under the procedure; or
(c) a third party, including an institution, fails to perform any duty imposed on it under the procedure, any party may request the Court to take the necessary measure, unless the appointment procedure agreed upon by the parties provides other means for securing the appointment.
(4) A decision of the Court under the Subsections (2) and (3) of this Section shall not be subject to appeal.
(5) The Court in exercising its power of appointment under Subsections (2) and (3) of this Section shall have due regard to any qualifications required of the arbitrator by the arbitration agreement and such other consideration as are likely to secure the appointment of an independent and impartial arbitrator.” The above provision clearly states that the parties to an agreement can state in the arbitration clause the procedure of appointing the arbitrators. If however the agreement does not state the procedure for the appointment of arbitrators in a situation where three arbitrators are required, the procedure will be in line with Section 7 (2) of ACA stated above. By that provision, each party to the agreement will appoint one arbitrator and together they can appoint the third arbitrator. If either party fails in their responsibility to appoint an arbitrator within thirty days or both of them could not agree to a third arbitrator, any of the parties can apply to a Court to appoint the arbitrator. While the procedure stated in Section 7 (1) of ACA means that no matter the number of parties in the arbitration agreement, once the agreement state the procedure of appointment, a Court should enforce that agreement provided the agreement is not contrary to the law. Like all other agreements, a Court is to give life to the terms of a contract as agreed by the parties without reading meaning into the agreement which was not intended by the parties. See Mr. Adedeji vs. Dr Moses Obajimi (2018) LPELR-44360 (SC): Mr Debo O. Enilolobo vs. NPDC Ltd & Anor (2019) LPELR-49512(SC). In the same vein, the arbitration clause in an agreement is binding on the parties to it. See Neural Proprietary Ltd vs. UNIC Ins. Plc (2016) 5 NWLR (Pt. 1505) 374. In Kurubo vs. Zach-Motison (Nig) Ltd (1992) 5 NWLR (Pt. 236) 102, this Court drove home this point beautifully in these words:
“In other words, where the law places a hurdle between a willing and prospective litigant and the Court in terms of enforcing the process of the Court, the litigant must first clear or race over the hurdle before he can enforce the Court process. He cannot jump or beat the gun before the sports official shoots the gun for the commencement of the hurdle race. He could either get himself hurt or disqualify himself in the process. In either case, he is the loser and he will not like that. So let him take first steps first or first actions first. Generally therefore, if a party goes straight to the Court to file an action without reference to arbitration, as contained in the agreement, a Court of law is entitled and indeed is bound to refuse jurisdiction in the matter.”
By simple interpretation when there are three arbitrators to be appointed and there is no agreement between the parties, the appointment must be in line with Section 7 (2) of ACA. The wording of this section implies that for this section to apply there must be two parties to the agreement. That is the clear implication of Section 7 (2) of ACA. I must quickly state that an arbitration clause in an agreement is different from and distinct from other clauses in a written contract. See Celtel Nigeria BV vs. Ecobank Wireless Ltd (2014) LPELR-22430 (CA); NNPC vs. Klifco (Nig) Ltd (2011) 10 NWLR (Pt. 1255) 209.
Another important Section is Section 44 of ACA and specifically Subsections 5, 6, and 7. The section provides thus:
“(5) If three arbitrators are to be appointed, each party shall appoint one arbitrator; and the two arbitrators thus appointed shall choose the third arbitrator who shall act as the presiding arbitrator of the arbitral Tribunal.
(6) If within thirty days after the receipt of a party’s notification of the appointment of an arbitrator, the other party has not notified the first party of the arbitrator he has appointed, the first party may request the appointing authority previously designated by the parties to appoint the second arbitrator.
(7) If within thirty days after the appointment of the second arbitrator, the two arbitrators have not agreed on the choice of the presiding arbitrator, the presiding arbitrator shall be appointed by the appointing authority, in the same way as a sole arbitrator would be appointed under Subsections (1) to (4) of this Section.”
This provision is similar to the above provision of Section 7 (2) of ACA both in content and in interpretation. I will therefore not go into the interpretation again here. I agree with the 1st Respondent that Section 44 anticipates a situation where there are two parties to the arbitration because of the way the section is couched. This section will therefore not be applicable when there are more than two parties to the agreement. I will be addressing the issue of whether there are two or three parties to this agreement. The point that is settled however is that in a situation where there are three arbitrators to be appointed, each of the two parties is to appoint one each, and together they are to appoint the third one who is to preside. The Lower Court after a consideration of the arguments of both counsel held on page 381 of the record of appeal as follows:
“A careful reading of the whole provision of Section 44 of the ACA shows that the designation of an appointing authority in Parties’ Arbitration Agreement in international commercial arbitration would appear to be the norm and a standard practice, because running through the whole provision of the section is the reference to an appointing authority, which is not provided for in Section 7 of the Act. (See Section 44(2), for appointing a sole arbitrator, where parties are not in agreement.)
Furthermore, the provision in Section 44 also shows that naming an appointing authority does not detract from the parties’ role or function in the process of appointing the said arbitrator(s). In effect, it does not take away the right of the parties to select/nominate the arbitrators, i.e that the parties have input in the appointment. (See Section 44(3).
In the same breath, the provision of Section 44(4), (5) and (6) pre-supposes the existence of an appointing authority, already designated in the Parties’ Arbitration Agreement. (See Section 44(6) and (7). In other words, unless parties have clearly spelt out the procedure for the appointment of the arbitrators in addition to naming an appointing authority, the provision of Section 44 (5), (6) and (7) would apply as rightly argued by the learned silk for the Applicant. It follows that simply naming the 1st Respondent as an appointing authority in Clause 18.3 of the Parties Arbitration Agreement does not confer on the 1st Respondent, the right to appoint three arbitrators and constitute them into an arbitral tribunal.”
The difference between Section 7 (2) and Section 44 (5), (6) & (7) is that under Section 7 (2), the application on default of the parties appointing their own arbitrator or if they cannot agree on the appointment of the third arbitrator to preside can be made to the Court. Section 44 on the other hand in such a situation can be made to the appointing authority.
The last document to look at is FOPA particularly Clause 18.3. The clause state thus:
“The Arbitration shall be conducted in accordance with the Arbitration and Conciliation Act Cap. A18, Laws of the Federation of Nigeria, 2004, except to the extent of conflicts between the Arbitration and Conciliation Act and the Provisions of this Agreement, in which event the provisions of this agreement shall prevail. The Chairman of the Nigerian Chartered Institute of Arbitrators shall be the appointing authority. The place of Arbitration shall be London, England.”
The above provision did not state the procedure by which arbitrators can be appointed. The clause only stated that arbitration will be conducted in line with the ACA. It is of note that by the provision of the agreement, the appointing authority is the 2nd and 3rd Respondents. The lower court has held correctly in my view that the mere fact that the agreement places the 2nd and 3rd Respondents as the appointing authority does not take away the obligation on the parties as stated in ACA. The responsibility of the appointing authority must be exercised within the provision of ACA. It is clear that clause 18.3 of FOPA and indeed the provisions of FOPA did not state the procedure for the appointment of arbitrators and therefore in the circumstance, the procedure as stated in ACA will be applicable.
I am in agreement with the Lower Court to the effect that where parties have designated an appointing authority, it doesn’t take away the right of the parties to make the appointment themselves in the procedure and manner as prescribed under Section 44(5) of the ACA. The duty of the appointing authority as can be gleaned from that section can only be activated where on one hand, one of the parties have notified the other of his appointment and the other party has failed to notify the first part of his appointment or where the two arbitrators appointed by the parties fail to agree on the choice of the presiding arbitrator. It is in these instances that the appointing authority can step in. From a clear reading of Section 44(5) of the ACA and Clause 18.3 of FOPA entered by the parties, there is nowhere where the appointing authority was given such power as to appoint the three arbitrators to form an arbitral Tribunal. The above finding clearly shows and indicates that if the facts of the case reveal that the power to entirely appoint the arbitrators is given to the appointing authority, that will be against the tenet and the spirit of ACA which the parties have agreed should govern the arbitration.
Having stated the above, it will not be out of place to now look at the facts of the case to see whether the procedure the Appellants sought to use complied with Section 44 of the ACA. The FOPA agreement made provision for arbitration of 3 persons as arbitrators should dispute arise from the transaction between the parties. Looking at Section 44 of ACA, in a situation such as this which requires the appointment of three arbitrators, each of the parties is to appoint one each and they both can then appoint the presiding arbitrator. When there is however default in this appointment procedure, the appointing authority can come in to remedy the situation by making the appointment from wherever the default occurred. It is argued that Section 44 is only applicable where there are two parties to the arbitration agreement. This interpretation makes logical sense since the section provided that each of the parties can appoint one arbitrator each. It is argued reasonably too that the section will not apply if the parties to the arbitration exceed two parties. This makes sense also. This, therefore, seems to imply that in a situation involving three parties, there is no provision in ACA covering that situation. Before we decide what is doable in such a situation if need be, it is important at this stage to address issue 2 of the issues formulated from the grounds of the cross-appeal which is whether the Lower Court was right to hold that there are two sets of parties in FOPA. This will require taking an excursion into the FOPA. Looking at FOPA found on pages 14 – 50 of the record of appeal, it is clear that it was signed by the Appellants and the 1st Respondent. To appreciate the argument of the 1st Respondent that there are three parties to the agreement, we can take a look at FOPA. The Parties’ Clause found on page 14 of the record of appeal reads:
“PARTIES
1. TRANSNATIONAL CORPORATION OF NIGERIA PLC, a public company limited by shares registered in the Federal Republic of Nigeria, the registered office of which is situated at 11 Alfred Rewane (formerly Kingsway Road) Ikoyi Lagos, Nigeria (hereinafter referred to as “Transcorp”);
2. EER 281 NIGERIA LIMITED, a private company limited by shares registered in Federal Republic of Nigeria the registered office address of which is situated at ACAS office, 9th floor, St. Nicholas House, Catholic Mission Street, Lagos, Nigeria (hereinafter referred to as “EER”);
3. SACOIL 281 NIGERIA LIMITED, a private company limited by shares registered in Federal Republic of Nigeria the registered office address of which is situated at 10th floor, St. Nicholas House, Catholic Mission Street, Lagos, Nigeria (hereinafter referred to as “Sacoil”).
where EER and Sacoil are together the “Investors”.
From the clear wording of the Parties’ Clause reproduced above, the argument of the 1st Respondent to the effect that there are three parties to the arbitration is not completely out of place on the face value. Page 50 of the records that has the signature of the parties to the agreement has space for three of the parties separately to sign and they all did. The Appellants have their separate seal affixed to the agreement with different persons signing for them. That both companies are separate and are not one and the same is clear and obvious. On the face of it therefore, there are three parties to the agreement. This is not in dispute but the question is whether the dispute is a three-party dispute or a two-party dispute. The number of parties in any agreement may not be the same as the number of parties when it comes to disputes. This case in my opinion is one of such situations when parties with similar interests can be grouped as one party. The Appellants are referred to as investors in the agreement. From the content of the agreement, it is clear that the investors, that is, the Appellants are joint investors even though they are a separate entities in law. The consideration paid for the investment apparently was done jointly as there is nothing in the agreement to show that the investors individually paid the consideration for the transaction. Even termination of the transaction is joint. This is a clear inference from the FOPA. In FOPA, they are referred to as “together the investors. ”As much as the agreement is between three parties, the dispute is between two parties as the Appellants are seen as one party as their interest aligns and they are joint investors therefore they swim or sink together. This they alluded to impliedly by filing joint processes and are represented by the same counsel. This is a major game-changer as practically, for the purpose of the transaction and for the appointment of the arbitrators, the Appellants are seen as one party or a set of parties. The Appellants have sailed together all the way and they cannot be divided at this stage of the proceeding. This much the Lower Court held on page 382 of the record of appeal thus:
“Even as argued by the learned silk, the agreement between the parties to the FOPA identifies 3 parties and is intended to treat each of Sacoil and EER (3rd and 4th Respondents) as individuals, i.e. that it is a three-party dispute, it is apparent that the 3rd and 4th Respondents are on the same side of the divide and are ready and willing to jointly appoint one Arbitrator to represent them both, thus given effect to the Arbitration Agreement.”
The import of this is that the Appellants is one party and the 1st Respondent is the other party thus making it a two-party dispute as held by the lower Court and bringing it under the contemplation of Section 44(5) of ACA.

In the circumstance, at this stage, I make bold to say that the Lower Court was right in holding that there are two sets of parties in the FOPA. I resolve the 2nd issue in the cross-appeal against the Cross-Appellant and in favour of the Cross-Respondents.
Now back to issue 1 of the main appeal. The applicable provision is Section 44 of ACA. By the said section, the procedure for the appointment of the arbitrators is that each of the parties will appoint one arbitrator and by this it means the Appellants as one party will appoint one arbitrator and the 1st Respondent will appoint the other arbitrator. The two arbitrators appointed by the parties will now appoint the presiding arbitrator. When there is default at any stage of the appointments, then the appointing authority can be so notified by any of the parties to fill in the vacancy of any arbitrator. If this procedure is not followed, then the appointment or the request for the appointment of the arbitrators by the Appellants will be invalid, null, and void. The question now is was that procedure followed in the instant case? It is clear from the evidence before the Lower Court and particularly from the letter written by the Appellants’ counsel to the 2nd Respondent found on pages 51-52 of the records that the Appellants did not follow the procedure as spelt out in Section 44 (5)(6) & (7) of ACA. The Appellants asked the 2nd & 3rd Respondents to appoint all the 3 arbitrators. This is evidenced by the letter Appellants’ counsel wrote to the 2nd & 3rd Respondent. I reproduce the relevant part of the letter thus:
“As would be gleaned from the annexed Notice of Reference to Arbitration, the monetary value of the dispute is greater than Five Million United States Dollars (US$5,000,000). Accordingly, we hereby request that you use your good offices to appoint three (3) arbitrators to constitute the arbitral panel in this dispute.”
This request is not in line with Section 44 which I have held governs the appointment of arbitrators in the transaction. In the circumstance, is the Lower Court therefore right in granting the reliefs of the 1st Respondent? I am firm in coming to the conclusion that the lower Court was right in so holding as the request for the appointment of arbitrators does not conform with Section 44 (5)(6) & (7) of ACA.
The Appellants’ counsel has submitted that granting all the prayers of the 1st Respondent implies that the parties are foreclosed from appointing arbitrators in the future which order will be contrary to the law that recognizes arbitration as a way of settling a dispute. I do not agree with the submission of learned counsel for the Appellants as that is not the intendment of the Lower Court or in fact the purport of the judgment. The main thrust of the Appellants counsel’s submission in this regard is reliefs 3 & 4 which carry the order for perpetual injunction. On the face of it, one will seem to agree with the Appellants’ counsel but on a careful look at the order granted it is clear that the perpetual injunction granted is not an open-ended or a bottomless pit or endless journey of discovery kind of order. It is not a perpetual injunction granted for all purposes but rather an injunction that is tied to the letter dated 21/8/2015 requesting for the appointment of the three arbitrators all alone by the appointing authority. This order is made to avoid perpetual illegality of the appointing authority to appoint all the three arbitrators outside the provision of Section 44 of the ACA. The purport of the perpetual injunction is that the appointment of the 3 arbitrators by the 2nd & 3rd Respondents cannot be made on the strength of the letter dated 21/8/2015. This means the perpetual injunction granted is limited to the request made on the letter of 21/8/2015. This is therefore not an open-ended perpetual injunction. The Lower Court was therefore right in holding that the reliefs of the 1st Respondent succeed in its entirety. Let me hasten to add however that the reason advanced by the Lower Court is not the appropriate reason for granting the relief of the 1st Respondent. I am resolving the first issue in favour of the 1st Respondent not because of the ruling of the Lower Court refusing the Appellants’ motion for stay, the reason which the lower Court gave for his order in this case, but I am doing so because the Appellants’ request to the 2nd & 3rd Respondents to appoint the three arbitrators does not fall in line with the applicable law or procedure for the appointment of arbitrators as stated in Section 44 (5)(6) &(7) of ACA.

In the light of that, issue 1 is resolved in favour of the 1st Respondent.

I will now proceed to consider issue 2 of the main appeal which is whether the Appellants were denied fair hearing simply because the Lower Court made reference to an earlier ruling it has made over the same matter before the same judge. Before I consider the factual issue of whether they were denied a fair hearing, I must say that an allegation of denial of fair hearing is fundamental. This is because if the party alleging denial of fair hearing succeeds, the whole proceeding will be a nullity no matter how brilliant the proceeding or the judgment as the denial of fair hearing assumes a miscarriage of justice. See Mpama vs. FBN Plc (2013) 5 NWLR (Pt. 1346)176; NUT Taraba State vs. Habu (2018) 15 NWLR (Pt. 1642) 381; Adebesin vs. State (2010) 14 NWLR (Pt. 1413) 609. This makes the allegation of lack of fair hearing very serious. When raised by a party, a Court must look at it carefully. The question of denial of fair hearing implies that the party alleging was not giving the opportunity to present his case as enshrined in Section 36 of the 1999 Constitution of Nigeria before judgment was delivered by the Court. SeeMercantile Bank of Nig Plc vs. Nwobodo (2000) 3 NWLR (Pt. 648) 297; INEC vs. Alhaji Balarabe Musa & Ors (2003) 1 S.C (Pt. 1) 106; Ariori vs. Elemo & Ors (1983) LPELR-552 (SC). I must however quickly state in passing that a wrong exercise of discretion by a Court will not on its own amount to lack of fair hearing. See Odigwe vs. JSC Delta State (2011) 10 NWLR (Pt. 1255) 254.

Having stated the above legal principle, what then is the complaint of the Appellants in relation to the allegation of denial of fair hearing? It is the contention of counsel for the Appellants that the learned trial Judge relied on facts within her personal knowledge and going outside the scope of the pleadings presented in arriving at her decision without calling on parties to address her on the point raised. The 1st Respondent counsel disagreed with this submission while stating that the facts in respect of the existence of LD/778CMW/2015 were brought to the knowledge of the Court by the 1st Respondent and the Appellants. He referred this Court to paragraphs 8-10 of its affidavit found on page 6 of the record of appeal and paragraph 6d of the Appellants’ counter-affidavit found on page 249 of the record of appeal. The law is well settled that where the Court raises a point or issue suo motu, it must give parties the opportunity of addressing it on that point or issue.
In Effiom & Ors vs. Crosiec & Anor (2010) LPELR-1027 (SC), the Apex Court had this to say:
“On the issue of whether it was proper for the Court below to raise the issue of locus standi of the Appellants suomotu and determine same without hearing from the parties, it has long been settled that no Court is entitled to do so. The elementary principle is that it is wrong for a Court to raise any issue of fact suomotu and decide upon it, without giving the parties an opportunity to be heard on it. This is so because the Court is bound by and therefore confined to the issues raised by the parties. Where however the Court raises all issue suomotu which it considers material for the proper determination of the case, it must give parties, particularly the party likely to be adversely affected by the issue, to be heard. See AJUWON vs AKANNI (1993) 9 NWLR (Part 316) 182 at 190; AJAO vs ASHIRU (1973) 11 S.C. 23 at 39-40 ATANDA vs AKANMI (1974) 3 S.C. 109; KUTI vs JIBOWU (1972) 1 ALL N LR (Part 11) 180; R.T.E.A.N vs N.U.R.T.W (1992) 2 NWLR (Part 224) 381; FINNIH vs IMADE (1992) 1 NWLR (Part 219) 511 at 537. While the Court has a duty to give the parties the opportunity to be heard on any issue it raises suomotu a failure to do so does not necessarily lead to a reversal of its decision. To warrant an appellate Court’s reversal of the decision, the Appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. See IMAH vs OKOGBE (1993) 9 N.W.L.R (Part 316) 159 at 178; OLUBODE vs SALAMI (1985) 2 N.W.L.R (Part 7) 282. As I indicated above this principle that the Court ought not to raise an issue suomotu and decide upon it without hearing from the parties applies and so the Court’s deliberation on it was an exercise in futility. It is not mainly to issues of fact. In some special circumstances, the Court can raise an issue of law or jurisdiction suomotu and without hearing the parties decide upon it. TUKUR vs GOVERNMENT of GONGOLA STATE (1989) 4 N.W.L.R (Part 117) 517 is instructive on this point. In that case although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction was taken by the Court.”
One more case on this point will not do anyone any harm. In Stirling Civil Engineering (Nig) Ltd vs. Yahaya (2005) LPELR-3118 (SC), The Apex Court strongly warns against raising an issue suo moto without calling parties to address it on the issue. In that case, it held thus:
“In our adversarial system of adjudication, Courts should be reluctant or loath to raise issues suo motu. This is because the litigation is not theirs but that of the parties. If a Court raises an issue suomotu it has removed itself from its exalted position to flirt with the parties and in the course get itself soiled in the litigation. This does not mean that a Court of law is totally inhibited from raising issues suomotu. It can and in relevant circumstances. For instance, a Court of law can raise issue suomotu, if it is in the interest of justice to do so. Where the issue raised will determine the fortunes of the case one way or the other, a Court of law is entitled to raise it. There could be a situation where the case cannot be determined one way or the other without resolving the issue. In such a situation, a Court is competent to raise it to enable it determine the case. Though Court has the jurisdiction to raise an issue suomotu, it has not the jurisdiction to resolve the issue suomotu. The Court must give an opportunity to the parties to react to the issue by way of address. On no account should a Court of law raise an issue suomotu and resolve it suomotu. That is unjust and a party aggrieved has the right to complain in the way the appellant has complained in this Court. The case law is in great proliferation. Let us take a few cases. In Chief Oje v. Chief Babalola (1991) 4 NWLR (Pt. 185) 267, this Court held that on no account should a Court raise a point suomotu, no matter how clear it may appear to be, and proceed to resolve it one way or the other without hearing the parties.”
Case laws on this point are endless and we can go on and on.

I have looked at the various paragraphs relied on by the 1st Respondent counsel and for completeness I will reproduce them. The said paragraphs 8-10 of the 1st Respondent’s affidavit found on page 6 of the record of appeal reads:
“8. The Applicant in exercise of its right to Court as guaranteed under the Constitution, instituted an action in the State High Court for breach of FOPA by the 3rd and 4th Respondents. The action is constituted as SUIT NO: LD/778CMW/2015, TRANSNATIONAL CORPORATION OF NIGERIA PLC V SACOIL 281 NIGERIA LIMITED & ANOR. The originating processes in the said action is hereby attached and marked as Exhibit KA3.
9. The 3rd and 4th Respondent filed an application for stay of proceedings in the aforementioned to which the Applicant has filed a counter-affidavit. The processes filed by both parties regarding the application of the 3rd and 4th Respondents is hereby attached and marked as Exhibit KA4.
10. I know that one of the issues between the parties for determination by the Court in the Application filed by the 3rd and 4th Respondent is the validity or otherwise of the Arbitration Clause in FOPA.”

The said paragraph 6d of the Appellants counter-affidavit found on page 249 of the record of appeal reads:
“6d. Contrary to the deposition in paragraph 10 of Humphrey Onyeukwu’s affidavit, the application filed by the 3rd and 4th Respondents before this Court in Suit No. LD/778CMW/2015 (now pending before Hon. Justice Adesanya), is an application to stay proceedings of the action pending the determination of the dispute by arbitration in line with the arbitration agreement of the parties in the FOPA.”

I have read the above paragraphs and I agree with the 1st Respondent counsel that the facts of Suit NO. LD/778CMW/2015 was put before the Lower Court by the parties. That apart, it is also not correct as submitted by the Appellants’ counsel that the Lower Court used as the reason for his departure from earlier position relying on the affidavit of a dismissed motion and the documents in the file which the Appellants had no opportunity to address the Court on. Similarly, it is also not correct to submit as the Appellants’ counsel did that what changed the mind of the Lower Court were facts which were within the personal knowledge of the Lower Court. To appreciate the point I am laboring to make here it will not be out of place to reproduce the finding of the Lower Court on page 382-383 of the records. The Lower Court held thus:
“The above procedure would therefore have been the appropriate procedure and one which can be resorted to in the light of Clause 18(3) of FOPA but for the fact that this Honourable Court in an earlier, Suit No. LD/778CMW/2015, between the Applicant and the 3rd and 4th Respondents had in considered Ruling on the 8th December 2015 dismissed the latter’s Motion on notice dated 24th July, 2015 for an Order staying proceedings in the said suit and refusing to refer the dispute between the parties to arbitration. The Applicant has thereafter filed an appeal against the said Ruling and a motion for Stay of proceedings pending the determination of the appeal before the Court of Appeal.”

Though, as earlier stated I do not agree with the reason the Lower Court gave for the judgment (on appeal here) which it held in favour of the 1st Respondent but I must make the point loud and clear that the Appellants cannot complain of a denial of fair hearing as the Lower Court has the powers to take judicial notice of its judgment. The Lower Court did not suo moto raise any issue for which the parties were entitled to be heard. When the motion for stay of proceeding in Suit No: LD/778CMW/2015 was taken, upon which the considered ruling was delivered which is on appeal in this Court as a sister appeal, the Appellants’ counsel had the opportunity to oppose the motion and arguments were taken, consequent upon which, the ruling was delivered. The Lower Court simply made reference to it in holding that as a result of that ruling it cannot refuse the prayers of the 1st Respondent. This in my opinion has nothing to do with the Lower Court raising issue suomoto and resolving same suomoto or referring to an affidavit that has been struck out. In fact, it has nothing to do with the denial of fair hearing. The point I am making is that the fact that the Lower Court referred to a decision it had made over the same matter at interlocutory stage involving the same parties and counsel to which all the counsel had their day in Court in filing processes and addressing Court before the decision was made does not amount to the denial of fair hearing. The Lower Court, in my opinion took the decision it took in the light of the ruling because having not granted the stay of proceedings if it now holds that the 2nd & 3rd Respondents can appoint arbitrators, that decision will be in conflict with the ruling and the decision will almost be a fanciful order without the power of enforcement. This is what informed the Lower Court’s decision. In the circumstance, I really do not understand all the arguments of the Appellants on this issue 2 relating same to the motion to amend the originating summons. All that argument in my view is out of line and not in tune with the perspective of the second issue. A proper appreciation of the issue 2 will show that all the argument on the motion to amend the origination summons and referring to document within case file and lack of fair hearing is totally misplaced with due respect to Appellants’ counsel. The second issue of the main appeal I also resolve in favour of the 1st Respondent.

The next and final issue to consider in this appeal is the issue 1 formulated by the Cross-Appellant in the cross-appeal. The issue simply put is whether the learned trial judge ought to have held that the arbitration agreement contained in FOPA is inoperable, inoperative, and unenforceable. The relevant portion of FOPA in considering this issue is clause 18.3. I had reproduced the clause above but for ease of reference I will reproduce it again. It states:
“The Arbitration shall be conducted in accordance with the Arbitration and Conciliation Act Cap. A18, Laws of the Federation of Nigeria, 2004, except to the extent of conflicts between the Arbitration and Conciliation Act and the Provisions of this Agreement, in which event the provisions of this agreement shall prevail. The Chairman of the Nigerian Chartered Institute of Arbitrators shall be the appointing authority. The place of Arbitration shall be London, England.”
The Lower Court in the judgment made reference to Sections 7 and 44 of ACA and clause 18.3 of FOPA. In this respect, the finding of the Lower Court on pages 381-382 of the records is important. This is what the Court held:
“Furthermore, the provision in Section 44 also shows that naming an appointing authority does not detract from the parties’ role or function in the process of appointing the said arbitrator(s). In effect, it does not take away the right of the parties to select/nominate the arbitrators, i.e that the parties have input in the appointment. (See Section 44 (3).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the same breath, the provision of Section 44 (4), (5) and (6) pre-supposes the existence of an appointing authority, already designated in the Parties’ Arbitration Agreement. (See Section 44 (6) and (7). In other words, unless parties have clearly spelt out the procedure for the appointment of the arbitrators, in addition to naming an Appointing Authority, the provision of Section 44 (5), (6) and (7) would apply as rightly argued by the learned silk for the Applicant. It follows that simply naming the 1st Respondent as an Appointing Authority in Clause 18.3 of the Parties Arbitration Agreement does not confer on the 1st Respondent, the right to appoint three arbitrators and constitute them into an arbitral tribunal.”
In the light of the above, the Lower Court ought to have made a finding as to the efficacy and validity of clause 18.3 in the light of Section 44 of ACA since the particular relief 1 is a declarative relief. This is important as the parties needed to know which document will be applicable for the appointment of the arbitrators. I had mentioned above that FOPA did not state the procedure for the appointment of arbitrators and therefore the applicable section for the appointment of the arbitrators is Section 44 of ACA. It must be stated and loudly too that arbitration is recognized under our legal system. Indeed, Sections 4 and 5 of ACA acknowledges that arbitration can be used to settle disputes. See Kano State Urban Development Board vs. Fanz Construction Company Ltd (1990) 4 NWLR (Pt. 142) 1.
In the circumstance, arbitration clause in an agreement cannot be unenforceable in the face of it as arbitration awards are enforceable. See Ras Palgazi Construction Company Ltd vs. FCDA (2001) LPELR-2941.
Clause 18.3 of FOPA is generally in line with the law in that it recognizes that the parties can take advantage of arbitration in stating that the 2nd Respondent is the appointing authority. To that extent, FOPA does not run contrary to the law as Sections 7 and 44 as mentioned recognizes appointing authority. The Lower Court ought to have made a specific finding to that effect. The arbitration clause has a lacuna as to the procedure for appointment of arbitrators which ACA has filled. In the circumstance, will it be appropriate to hold that the arbitration clause is unenforceable? The clear answer is NO. The law is that a defect in arbitration agreement cannot defeat or invalidate the arbitration clause or procedure since there is express agreement to that effect. See Mekwunye vs. Imoukhuede (2019) LPELR-48998 (SC).

That apart, having held in the sister appeal, Appeal NO. CAL/1102/2016 allowing the appeal for stay, it stands to reason that I should give life to the arbitration clause otherwise, the decision in the sister appeal will be nugatory and will have nothing to stand on to be enforced. It will be a mere academic decision. I am not ready to fall into the temptation of the decision amounting into an academic decision. This is not allowed by the position of our laws. see Salik vs. Idris (2014) 15 NWLR (Pt. 1429) 36; Popoola vs. State (2018) 10 NWLR (Pt. 1628) 4851. This issue, that is, relief 1 in the cross-appeal is resolved in favour of the Cross-Respondent.
For clarity, this Court orders as follows:
l. The Lower Court was right in granting the reliefs of the 1st Respondent against the Appellants.
2. The Lower Court did not deny the Appellant fair hearing in the conduct of the proceedings at the Lower Court.
3. The Lower Court was right in not declaring the arbitration agreement unenforceable.
4. The Lower Court was right in holding that there are two sets of parties for the purpose of the dispute.

In the circumstance, I hold issues 1 and 2 in the main appeal in favour of the 1st Respondent and issues 1 and 2 of the Cross appeal in favour of the Cross Respondent. The main appeal lacks merit, fails and is hereby dismissed. In similar vein, the cross-appeal also lacks merit and it is dismissed. In summary, this Court affirms the decision of Hon. Justice Y.A. Adesanya (Mrs) of the Lagos State High Court in suit No: LD/1179CMW/201S between Transnational Corporation of Nigeria Plc vs. The Chairman of Chartered Institute of Arbitrators (Nigeria Branch) & 3 Ors. delivered on 31/5/16.
Parties are to bear their own cost.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The manner of resolution of the main appeal, the preliminary objection challenging the competence of the main appeal and the cross appeal, in the leading judgment of my learned brother, Ebiowei Tobi, JCA, which I was privileged to read in draft are in accordance with my views on the matter.

In the circumstances, I entirely agree with, and do not desire to add to the reasoning and conclusion contained in the leading judgment. I adopt the salient reasoning and conclusion as mine, and in consequence, join in dismissing both the preliminary objection challenging the competence of the main appeal and the main appeal itself. I also dismiss the cross appeal on the same terms as set out in the leading judgment. I abide by the order as to costs.

JAMILU YAMMAMA TUKUR, J.C.A.: I had a preview of the lead judgment just delivered by my learned brother EBIOWEI TOBI JCA and I adopt the judgment as mine with nothing useful to add.

Appearances:

BERENIBARA ESQ., appears with him,
R. IRENEN ESQ. For Appellant(s)

AANU OGUNRO ESQ. For Respondent(s)