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.
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