Appeal Court Strikes Out Ogun State Appeal On Appointment Of Arbitrator

The Court of Appeal sitting in Ibadan has struck out an appeal
filed by the Ogun State government to challenge the appointment of
Mrs Remi Awe as a co-arbitrator in a dispute between the state
government and Bond Investment and Holdings Limited.

A three-man panel of the court, comprising of Justice Jimi
Olukayode Bada (presiding), Justice Ugochukwu Ogakwu and Justice
Folasade Ojo held that the lower court did not act out of
jurisdiction when it granted consequential orders and held that the
appeal lacked merit and is liable to be struck out.

Ogun State had filed the appeal against the ruling delivered by
the Federal High Court, Abeokuta Judicial Division on December 12,
2018, in a suit delineated FHC/AB/CS/62 2018 between Bond
Investment and Holdings Limited against the Attorney General of
Ogun State, Ogun State Commissioner for Finance, the Governor of
Ogun State and the Ogun State Government.
The appellants had in their Notice of Appeal filed by their lawyer,
Mr. M.O Ogunsanwo, the Assistant Director, litigation department,
Ogun State Ministry of Justice, prayed the court to determine
whether the lower court did not violate appellants’ constitutional
fundamental rights when it held that the appellants did not oppose
the appointment of Mrs. Remi Awe as co-arbitrator.

The Appellants contended that the trial court violated their
constitutional right to fair hearing when it held that the
appellants have failed to respond to the application filed on
behalf of the respondent on June 14, 2018, which was not
opposed.

The appellant also prayed the court to determine whether the
lower court has jurisdiction to direct the appellants to cooperate
in concluding the arbitration.

However, the respondent through her counsel, Chief Bolaji
Ayorinde (SAN), had submitted that the appeal is incompetent and
should be struck out, arguing that the issue bordering on the
procedure for appointing an arbitrator has been barred by the
Arbitration and Conciliation Act, Cap A 18 Laws of the Federation
of Nigeria 2004.

In his lead judgment, Justice Jimi Olukayode Bada held that the
appeal is incompetent in view of the fact that the issues relating
to it are issues which the Court as an Appellate Court lacks
jurisdiction to entertain Pursuant to section 7 (2) (3) & (4) of
the Arbitration and Conciliation Act.

The court held that Section 36(1) of the 1999 Constitution gives
the appellant the right to a fair hearing, however, the
constitution only creates an opportunity for a party to be heard
before a decision is taken against his interest.

The court held that where an affidavit deposed to certain facts
and the other party did not file a counter-Affidavit, the facts
deposed to in the affidavit would be deemed unchallenged and
undisputed.

“It is, therefore, my view that the failure of the appellants to
file a Counter Affidavit to the respondent’s application filed on
June 14, 2018, will be taken by this court as an admission of the
facts by the appellants as contained in the respondent’s
application. The appellants would as well be taken to have admitted
that the affidavit was made in good faith.

“Consequent upon the foregoing, it is my view that the trial
court was right to have held that the respondent’s application was
unopposed, the appellants have not filed a counter-affidavit or any
other type of response to the application,” Justice Bada held.

The court further held that “it is settled in law that where a
party is given ample opportunity to pursue his case within the
confines of the law but choose not to utilize same, he cannot later
be heard to complain that his right to fair hearing has been
breached.

“I have said it in the past and I will say it again that the
duty of the Court is to create the environment for a fair hearing
and it’s the decision of a party to take advantage of the
environment created. A party cannot blame the Court if it fails to
take advantage of the environment created by the Court. The
Appellant should not blame the Court of Appeal. He has himself to
blame.

“In the circumstance, it is my view that the Appellants’ right
of fair hearing was not in any way violated since I have earlier
agreed with the findings of the Trial Court that the Respondent’s
Application fled on 14-6-2018 was unopposed and the Appellants
having failed to respond to the Application despite been duly
served,” the court held.

The Court of Appeal sitting in Ibadan has struck out an appeal
filed by the Ogun State government to challenge the appointment of
Mrs Remi Awe as a co-arbitrator in a dispute between the state
government and Bond Investment and Holdings Limited.

A three-man panel of the court, comprising of Justice Jimi
Olukayode Bada (presiding), Justice Ugochukwu Ogakwu and Justice
Folasade Ojo held that the lower court did not act out of
jurisdiction when it granted consequential orders and held that the
appeal lacked merit and is liable to be struck out.

Ogun State had filed the appeal against the ruling delivered by
the Federal High Court, Abeokuta Judicial Division on December 12,
2018, in a suit delineated FHC/AB/CS/62 2018 between Bond
Investment and Holdings Limited against the Attorney General of
Ogun State, Ogun State Commissioner for Finance, the Governor of
Ogun State and the Ogun State Government.
The appellants had in their Notice of Appeal filed by their lawyer,
Mr. M.O Ogunsanwo, the Assistant Director, litigation department,
Ogun State Ministry of Justice, prayed the court to determine
whether the lower court did not violate appellants’ constitutional
fundamental rights when it held that the appellants did not oppose
the appointment of Mrs. Remi Awe as co-arbitrator.

The Appellants contended that the trial court violated their
constitutional right to fair hearing when it held that the
appellants have failed to respond to the application filed on
behalf of the respondent on June 14, 2018, which was not
opposed.

The appellant also prayed the court to determine whether the
lower court has jurisdiction to direct the appellants to cooperate
in concluding the arbitration.

However, the respondent through her counsel, Chief Bolaji
Ayorinde (SAN), had submitted that the appeal is incompetent and
should be struck out, arguing that the issue bordering on the
procedure for appointing an arbitrator has been barred by the
Arbitration and Conciliation Act, Cap A 18 Laws of the Federation
of Nigeria 2004.

In his lead judgment, Justice Jimi Olukayode Bada held that the
appeal is incompetent in view of the fact that the issues relating
to it are issues which the Court as an Appellate Court lacks
jurisdiction to entertain Pursuant to section 7 (2) (3) & (4) of
the Arbitration and Conciliation Act.

The court held that Section 36(1) of the 1999 Constitution gives
the appellant the right to a fair hearing, however, the
constitution only creates an opportunity for a party to be heard
before a decision is taken against his interest.

The court held that where an affidavit deposed to certain facts
and the other party did not file a counter-Affidavit, the facts
deposed to in the affidavit would be deemed unchallenged and
undisputed.

“It is, therefore, my view that the failure of the appellants to
file a Counter Affidavit to the respondent’s application filed on
June 14, 2018, will be taken by this court as an admission of the
facts by the appellants as contained in the respondent’s
application. The appellants would as well be taken to have admitted
that the affidavit was made in good faith.

“Consequent upon the foregoing, it is my view that the trial
court was right to have held that the respondent’s application was
unopposed, the appellants have not filed a counter-affidavit or any
other type of response to the application,” Justice Bada held.

The court further held that “it is settled in law that where a
party is given ample opportunity to pursue his case within the
confines of the law but choose not to utilize same, he cannot later
be heard to complain that his right to fair hearing has been
breached.

“I have said it in the past and I will say it again that the
duty of the Court is to create the environment for a fair hearing
and it’s the decision of a party to take advantage of the
environment created. A party cannot blame the Court if it fails to
take advantage of the environment created by the Court. The
Appellant should not blame the Court of Appeal. He has himself to
blame.

“In the circumstance, it is my view that the Appellants’ right
of fair hearing was not in any way violated since I have earlier
agreed with the findings of the Trial Court that the Respondent’s
Application fled on 14-6-2018 was unopposed and the Appellants
having failed to respond to the Application despite been duly
served,” the court held.