Breach Of Contract: Court Strikes Out Ogun Government Suit Challenging Bode Mustapha's Application - THE ENCOUNTER NEWS


Monday, October 12, 2020

Breach Of Contract: Court Strikes Out Ogun Government Suit Challenging Bode Mustapha's Application

ABEOKUTA - An Ogun State High Court sitting in Abeokuta has struck out an application filed by the State government seeking to nullify an Arbitration Award in case between Bond Investments and Holding Limited,  owned by Chief Bode Mustapha.

Bode Mustapha's Bond Investments company had approached the Federal High Court in Abeokuta in a suit number FHC/AB/CS/62/2018 to award him the sum of N10,000,000 against Ogun state government as general damages and loses suffered for breach of contract. 

The state government not satisfied with the court ruling, approached an Appeal Court sitting in Ibadan, Oyo State to challenge the FHC ruling. 

The Appeal Court headed by Hon. Justice J. O Bada in the suit number CA/IB/58/2019 declared that pursuant to the notice of withdrawal filed in respect of the motion filed on February 28, 2019 struck it out. 

The court added that the application filed on behalf of the appellant on February 25, 2019 was struck out for lack of diligent prosecution. 

Hearing in this appeal is adjourned till November 30, 2020. Hearing notice is to be effected on counsel for the appellant before that date.

However, the Ogun State Government, apparently not satisfied with the Arbitral Award, approached the State High Court in Abeokuta and in a notice of motion dated March 17, 2020 and filed on March 18, 2020.

The applicants in the suit number M/35/2020 include; Attorney General of Ogun State, Ogun State Commissioner for Finance, Governor of Ogun State and Ogun State Government while respondents are; Bond Investments and Holding Limited , Olatunde Busari (SAN), Mrs Remi Awe and Chief Ifedayo Adedipe (SAN) sought the following reliefs;

"An order setting aside the arbitral award of N4,185,000,000.00 awarded to the first respondent by the 2nd-4th respondents on 25thday of February,2020, and order setting aside the sum of N10,000,000.00 awarded as general damages and losses suffered for breach of contract.

"An order setting aside the sum of N15,000,000.00 awarded as portion of the tribunal’s fees paid by the 1st respondent and an order setting aside the sum of N20,000,000.00 being the amount awarded as costs of 1st respondent’s legal representation."

The grounds of the reliefs as stated on the face of the application are; that an appeal against the order of the Federal High Court, Abeokuta appointing a Co-Arbitrator for the notice of arbitration dated 12th December 2017, was still pending at the Court of Appeal, when the Arbitral Tribunal concluded their sitting and gave award.

That an application for a stay of execution against the ruling of the Federal High Court, Holden at Abeokuta in suit number FHC/AB/CS/62/2018-Bond Investments Holdings Ltd vs Attorney General of Ogun State delivered on 11th December,2018,as well as an injunction restraining all parties, as well as Remi Awe from acting as Arbitrator or carrying into effect by however means the ruling of the Federal High Court, Abeokuta was still pending at the Court of Appeal, Ibadan Judicial Division

That as a result of the pending appeal as well as the applications before the Court of Appeal, which were duly served on the respondents the applicants were unable to present their case before the arbitral  tribunal

In addition to these grounds, the applicants filed an affidavit of 18 paragraphs deposed to by one Olumuyiwa Ogunsanwo, Assistant Director of Litigation in the Ministry of Justice, while the applicant’s counsel P.O Akinsinde filed a written address

The 1st respondent filed a counter affidavit of 7 paragraphs with seven exhibits marked BO1-BO7 deposed to by one Wale Arowosaye, litigation officer in the law firm of B.A .LAW.LL.P, while Akinlabi Apara also filed a written address.

The counsel to the respondent put two issues forward; whether the instant application is not an abuse of court process, whether in light of the pending appeal filed by the applicant at the court of appeal, the arbitral tribunal acted within the jurisdiction when it went ahead with its proceedings

The judge, Justice O.A Onafowokan in his ruling pointed out that the arbitral proceedings went on to conclusion and the final(Exhibit .P.0 6) was published on 25/2/2020, adding that the award was presented to the Federal High Court for recognition and enforcement and by its enrolled order of 3/3/2020 in suit number FHC/AB/CS/2020,stressing that the award was recognized and made the judgement of the Federal High Court

Onafowokan said it is pertinent to point out that from the facts of this case, adding that some facts are not in dispute, and these are; there is a pending appeal number CA/IB/58 between the parties at the Court of Appeal, Ibadan in respect of the appointment of a co-arbitrator by the Federal High Court in suit number FHC/AB/CS/62/2018.

"There are two pending applications between the parties at the court of appeal Ibadan, arbitration had been concluded and the final arbitral award published  on 25/2/2020 and the award has been recognized as a judgement of the Federal High Court on 3/3/2020."

The judge ruled that the relief being claimed before the Court of Appeal is the same relief being sought in this application and to grant same will not only overreach the court of appeal, it will undermine its authority and render nugatory any order that may be made by the court of appeal

"It is therefore my considered view that filing the instant application before this court with the knowledge of the pending appeal is not only surreptitious, it is an abuse of process. Abuse of process, as espoused in authorities too numerous to mention, means the process of the court has not been bonafide and properly.

"It is improper use of the judicial process by a party in litigation to interfere with the due administration. For all said above, I am of the unwavering view that this application view that this application is an abuse of process and it is accordingly dismissed."

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