HONOURABLE MINISTER FOR WORKS AND HOUSING V. TOMAS NIGERIA LIMITED & ORS.(2001)

HONOURABLE MINISTER FOR WORKS AND HOUSING V. TOMAS NIGERIA LIMITED & ORS.

(2001)LCN/1043(CA)

In The Court of Appeal of Nigeria

On Monday, the 16th day of July, 2001

CA/A/82/2000

JUSTICES

DAHIRU MUSDAPHER Justice of The Court of Appeal of Nigeria

MUHAMMAD SAIFULLAHI MUNTAKA- COOMASSIE Justice of The Court of Appeal of Nigeria

ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria

Between

HONOURABLE MINISTER FOR WORKS AND HOUSING Appellant(s)

AND

TOMAS NIGERIA LIMITED
2. DABIL NIGERIA LIMITED
3. STRAGREST INDUSTRIES NIGERIA LIMITED
4. A. B. NIGERIA LIMITED
5. SERF NIGERIA LIMITED
6. KEY WEST PROPERTIES LIMITED
7. A.I. P. LIMITED
8. GAVA CORPORATION LIMITED
9. WASA INVESTMENT NIGERIA LIMITED
10. KINDWAY ENTERPRISES LIMITED
11. MASUID NIGERIA LIMITED
12. BAFARAWA NIGERIA LIMITED
13. JIN VENTURES LIMITED
14. BEJIK NIGERIA LIMITED
15. TOGISCANI NIGERIA LIMITED
16. GOLOYE NIGERIA LIMITED
17. COSMOS ENG. NIGERIA LIMITED
18. BUSUTUM NIGERIA LIMITED
19. GENERAL LOGISTICS LIMITED
20. BELAWU NIGERIA LIMITED
21. PROSPECTORS MARKETING LIMITED
22. RANIFF INTERNATIONAL LIMITED
23. LABSON NIGERIA LIMITED
24. UMAR YUSUF NIGERIA LIMITED
25. HARDEL AND ERIC NIGERIA LIMITED
26. HONOURABLE ATTORNEY-GENERAL OF THE FEDERATION AND MINSTER OF JUSTICE
27. INSPECTOR-GENERAL OF POLICE Respondent(s)

RATIO

CONDITIONS TO BE PRESENT FOR A COURT TO BE COMPETENT

A court is said to be competent to determine a matter before it when the following are present:
1. if it is properly constituted with respect to the number and qualification of its memberships;
2. the subject-matter of the action is within its jurisdiction;
3. the action is initiated by due process of law; and
4. any action necessary to the exercise of its jurisdiction has been fulfilled.
Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Ogunmokun v. Mil. Adm. Osun State (1999) 3 NWLR (Part 594) 261; A.-G., Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Part 618) 187; Ajao v. Alao (1986) 5NWLR (Part 45) 802. Applying the above rules to this case, rule 2 will therefore be the determining factor as to the competence of the trial court, the claim of the parties before the court will determine whether it has jurisdiction or not. Adeyemi v. Opeyori (1976) 9-10 SC 31; Tukur v. Government of Taraba State (1997) 6 NWLR (Part 510) 549; Holec Projects (Nig.) Limited v. Dafeson Int’l Limited (1999) 6 NWLR (Part 607) 502 C.A. PER BULKACHUWA, J.C.A.

THE JURISDICTION OF THE FEDERAL HIGH COURT IN MATTERS RELATING TO COMPANIES AND ALLIED MATTERS ACT

By virtue of the provisions of S. 251 (1)(e), the Federal High Court has exclusive jurisdiction in civil matters and causes arising from any Act or Decree relating to companies and allied matters and any other common law relating to the operation of companies. It is however, not every act of a company that is covered by the said provisions- Jammal Steel Structures Ltd. v. ACB (1973) 1 All NLR (Pt.2) 208; Bi Zee Bee Hotels Ltd. v. Allied Bank Ltd. (1996) 8 NWLR (Pt.465) 176; NIDB v. Fembol Nigeria Ltd. (1997) 2 NWLR (Pt.489) 543. PER BULKACHUWA, J.C.A.

THE POSITION OF THE LAW ON ABUSE OF COURT PROCESS

In the circumstances, the objection raised is overruled and I so hold.
“There is said to be an abuse of the process of the court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. It is not the existence or pendency of a previous suit that causes the problem. Rather, it is the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not yet been disposed of, that constitute abuse of process of court”.
Per Karibi-Whyte, JSC in Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt.200) 659 at 681. See also Morgan v. West African Automobile Engineering Co. Ltd. (1971) 1NMLR 219: Williams v. Hunt (1905) 1KB 512; Slough Estates Ltd. v. Slough Borough Council (1968) Ch 299; Okorodudu v. Okoromadu (1977) 3 SC 21; Oyegbola v. Esso West Africa Incorporated (1966) 1 All NLR 170.
For a case therefore to be said to be an abuse of the process of court it must contain all the above ingredients. PER BULKACHUWA, J.C.A.

BULKACHUWA, J.C.A. (Delivering the Leading Judgment): The plaintiffs/respondents initiated an action against the defendants/appellants before the Federal High Court, Abuja in Suit 762 Nigerian No. FHC/ABJ/CS/194/2000 claiming the following reliefs:
1. A declaration that effective 4th April, 2000, the plaintiffs are entitled to a further and final term of five (5) years as operators of Toll Plazas nationwide vide their agreements with the 1st defendant dated 4th April, 1996 and 8th September, 1997 respectively as the case may be.
2. A declaration that actions of the 1st defendant to wit:-
(a) service of notices to terminate the subject-matter contract on the plaintiffs;
(b) use of tenderers and bidders to attack and disrupt the smooth operation of the plaintiffs at their respective Toll Plazas;
(c) other efforts to bring the subject-matter agreements to an end and remove the plaintiffs from the management of the Toll Plazas nationwide before the expiration of the final term of five(5) years in 4th day of April 2006 are illegal, unlawful void and invalid.
3. An injunction restraining the defendant by themselves, agents, privies and whosoever from interfering in any way whatsoever with the plaintiffs management and control of the Toll Plazas nationwide till the expiration of the final term of five (5) years in 4th April, 2006.
Upon the service of the writ of summons and the statement of claim on the defendant/appellant, the appellant filed a notice of preliminary objection on the grounds that the Federal High Court, Abuja lacks jurisdiction to entertain the matter as it is based on contract and the issues and matters for determination in the suit are the same as the issues and matters for determination in Suit No. FRC/L/CS/1/99 then pending before the Federal High Court, Lagos.
The trial court after hearing arguments on the preliminary objection held that it had jurisdiction to determine the matter and that the subject matter and the parties on the two suits are different. The appellant being dissatisfied with the ruling has now appealed to this court.
After series of applications, the appeal came up for hearing. At the hearing of the appeal, the parties adopted and relied on the briefs filed, and expatiated on some of the points raised in the briefs.
Arguments were first taken on the preliminary objection filed by the respondent and then on the objection if it is upheld, then there would be no need to go into the main appeal.
Preliminary Objection:
When the appeal was called for hearing on the 7th May, 2001, Mr. T. E. Williams the learned counsel representing the 1st – 25th respondents informed the court that he had filed a fresh notice of preliminary objection to the hearing of the appeal on the 2/5/2001 and had also abandoned the notice of preliminary objection earlier filed on the 20/2/2001 and the objection contained in the brief for the 1st – 25th respondents. This court struck out the earlier objections including the arguments contained in the brief and granted leave to raise the preliminary objection filed on 2/5/2001. In the notice of preliminary objection, the 1st- 25th respondents pray for the following orders:-
“1. Striking out the appeal as the same is a mere academic exercise, incompetent and the court lacks jurisdiction to entertain it.
2. Striking out grounds 1, 2 and 3 of this appeal as the grounds are incompetent.
3. Striking out the entire particulars of grounds 1 & 3 as grounds of incompetence.”
The learned counsel relied on several grounds of incompetence. It is firstly claimed that the substantive matter in the court below has been discontinued and the action had become ipso facto vacated vide Conybeare v. Lewis (1880) 13 CH.D 469 the appeal has become an academic exercise and this court should not indulge itself in academic exercise – See Nzom v. Jinadu  (1987) 1 NWlR (Pt.51)533 at 537. It is again submitted that since the plaintiffs in the court below had filed a notice of discontinuance under Order 30 rule 2(1) of the Federal High Court Rules on the 11/1/2001 and on the 20/2/2001 the suit as well as the appeal had terminated by the operation of law. See Ezeonu v. Agheze (1991)4 NWlR (Pt.187)631 at 643. On the futility of a court engaging in an academic exercise, the learned counsel referred to Adebayo v. Babalola (1995)7 NWLR (Pt.408)383; Ezeanya v. Okeke (1995) 4 NWLR (Pt.338) 142; P.T.I. v. Nesimone (1995) 6 NWLR  (Pt.402) 474; Nwobosi v .ACB Ltd. (1995) 6 NWLR (Pt.404) 658  at 681 and  Tanimola v. Survey Mapping Geodata Ltd. (1995) 6 NWLR (Pt.403) 617.
It is submitted further that whatever be the fortunes of the appeal, the suit in the court below is dead and buried and cannot be resurrected. In the circumstances of the case by Order 30 rule 2(1) (supra) the discontinuance of the suit in the court was effected without the requirement of any leave since pleadings were not closed.
Learned counsel referred to The ‘Vessel Saint Roland’ v. Osinloye (1997) 4 NWLR (Pt. 500) 407; Ijiwoye Bros Ltd. v. N.P.F.M.B. (1990) 2 NWLR (Pt. 134) 583; Aghadiuno v. Onubogu (1998)5 NWLR (Pt. 548) 16. On this point, the respondent’s objection finally relied on Bakare v. A.C.B. Ltd. (1986) 3 NWLR (Pt. 26) 47. He also added that the notice of discontinuance filed has the effect of achieving the results the appeal filed by the appellant seek to achieve. It will therefore serve no purpose to pursue the appeal.
The learned senior advocate for the appellant on the other hand argued that though a plaintiff may without leave of court discontinue an action by virtue of Order 30 rule 1(2) (supra), he submits that the notice may not necessarily terminate all the proceedings in the court below. Further, submitting that the respondents have used the court below to obtain an advantage such as ex-parte orders made subject to undertaking as to damages, the appellant are therefore entitled to set the machinery in motion for the quantification of damages. It is further argued that the substance of the appeal before this court is whether the trial court has jurisdiction to entertain the matter and also whether the suit as filed was not an abuse of the process of the court.
Learned senior advocate referred to the case of Vessel St. Roland (supra) and contends that the court under the circumstances of this case still retains the jurisdiction to make orders in relation to the advantages received by the plaintiffs/respondents. It is submitted that a decision of this court as to issues raised would once and for all protect the appellant (if in its favour) from further abuse of court processes and “litigation round tripping” by the plaintiffs/respondents.
He further submits that a successful appeal will enable the appellant obtain redress for the injunctive orders made against them which lasted for a year and may also determine whether the court below has jurisdiction to entertain the matter.
Now, to understand the arguments of counsel, it may be necessary to set out the facts of this case. The plaintiffs/respondents instituted this action against the appellant and others. The main relief sought was to prevent the appellants from taking over the possession of toll gates from the plaintiffs. The plaintiffs/respondents obtained ex-parte orders of injunction restraining the appellants from taking over possession of the toll gates on 8/5/2000. The appellants thereafter filed preliminary objection on the grounds of lack of competence or jurisdiction of the trial court to deal with the matter and also that the suit was an abuse of the process of court in that a similar suit existed between the parties in another court. The court below heard arguments on this preliminary objection and ruled that it had jurisdiction to entertain the matter and also ruled that the action was not an abuse of the process of the court.
The appellant appealed and the matter was stayed pending the appeal with the ex-parte injunctive reliefs in favour of the plaintiffs/respondents in force. On the 20/2/2001, the plaintiffs/respondents filed a notice of discontinuance of the suit at the court below simultaneously with a notice of preliminary objection on the competency of the appeal  before this court.
Now, the plaintiffs/respondents claim that it is not necessary to pursue the appeal since the action they filed had terminated by operation of law. Since the question asked here is what is the effect of notice of discontinuance of a suit in the court below on the appeal filed under the facts of this case? Order 30 rule 2(1) of the applicable rules of court provide:-
”The plaintiff in an action may, without the leave of the court, discontinue the action or withdraw any particular claim made by him therein as against any or all of the defendants at anytime not later than 14 days after service of  the defence on him or, if there are two or more defendants of the defence last served, by serving a notice to that effect on the defendant concerned”.
It does appear on the face of this rule, a plaintiff may withdraw or discontinue a claim without leave when no statement of defence has been filed or within 14 days of the filing of the statement of defence. It is also true that when an action is withdrawn an appeal in that action becomes ipso facto vacated- see Onybeare v. Lewis (supra). It is generally taken that the appeal becomes no longer necessary as it will serve no purpose since the substance has gone. It would ordinarily amount to an academic  exercise, and the courts must always avoid indulging in academic exercise for example Adebayo v. Babalola (supra). It is also true as argued by the learned counsel to the plaintiffs/respondents that whatever the fortunes of the appeal may be, the substantive matter in the court below cannot be resurrected. Uwaifo, JCA (as he then was) in the Tanimola’s case (supra) said at pg 626-627:-
”The courts deal only with live issues and steer clear of those that are academic. Consequently it would be improper for the Court of Appeal to exercise jurisdiction which imposes to hear appeals in deciding academic questions, the answer to which cannot affect the parties in any way.”

The question that falls for decision is whether under the facts of this case, in which the plaintiffs/respondents had derived an advantage- the ex-parte injunctive orders is whether a decision on the appeal could not affect the parties hereto in one way or the other. It has been held that leave to withdraw or discontinue will be necessary where the plaintiff has obtained an order, for example of interim payment.
Although, a plaintiff may have an unqualified right under Order 30 rule 2(1) (supra) to discontinue his action without leave of the court yet if he abuses such right by serving a notice of discontinuance after obtaining substantial advantages in the action to the prejudice of the defendant he will be guilty of an abuse of the process of court and the court will have the power to set aside the notice of discontinuance see Castanho v. Brown and Root UK Ltd. (1981) AC 557.

Under the peculiar facts of this case, the plaintiffs/respondents obtained benefits and advantages when they were granted ex-parte order to the detriment of the appellants and indeed it is the ex-parte orders, that the appellant are appealing against in that the court had no jurisdiction to entertain the matter in the first place and that the matter as filed was an abuse of the process of court there being in existence a similar case in another court. The plaintiffs/respondents by deriving such substantial benefit in the form of injunctive orders to the prejudice of the appellants could not be said to have acted bonafide in filing the notice of discontinuance. In my view, it does not even matter whether they gave undertaking to damages when they obtained the orders of injunction against the appellant. In the case of The ‘Vessel Saint Roland’ (supra) the Supreme Court ordered the setting aside of the notice of discontinuance, since the respondents in the case had obtained substantial unmerited advantages over the appellant. I am of the view under the peculiar facts of this case that the notice of discontinuance was not filed bona fide, it was an abuse of the process of the court and ought to be struck out. I strike it out and hold that the hearing of this appeal is not an academic exercise.

The second leg of the preliminary objection is concerned with the competency of the grounds of appeal. It is argued that by the provisions of Order 3 rule 2(2) of the Rules of this court, if a ground of appeal alleged error or misdirection, the particulars and nature of the error or misdirection must be clearly stated. See Nwokoro v. Onuma (1999) 12 NWLR (Pt.631) 342. It is claimed that ground one is such a ground and it is deficient of the particulars. On ground 2 it is argued that it amounted to an academic exercise. In my view, that complaint does not amount to competency but to whether it will succeed or not. Ground No.3 is said to be raising a fresh point of law which was not raised or decided in the court below. No leave was obtained or sought before the issue is raised on the ground. That too in my view does not affect the competency of the ground of appeal. Whether it will succeed to nullify the matter or not is a different issue to be decided when hearing the main appeal. On ground one referred to above, the particulars are contained in the ground of appeal, there is no law which says the nature and particulars of the ground cannot be embedded in the ground of appeal.
On the whole, I am of the view that the preliminary objection filed is not made out. The notice of discontinuance filed was not filed in good faith and liable to be set aside and struck out and it is accordingly struck out. It was an abuse of the process of the court to file the notice under the circumstances of this case. I reject the preliminary objection and hereby overrule it. I shall now deal with the appeal on its merit.

Appeal
The appeal is to be determined on the bundle of documents filed  by the appellant with the leave of this court as the records of proceedings together with the supplementary record of proceedings
of the trial court filed by the respondent on the 23/4/2001. The grounds of appeal are listed hereunder:
Grounds of appeal:
1. The court below erred in law when it held that the suit of the plaintiff/respondent instituted and pending before it did not constitute an abuse of process of court when the institution of the said suit amounted to a multiplicity of actions between the same parties on the same matters.
Particulars:
a) The parties, the matter and issues for determination in the suit are the same as matters being litigated upon by the parties in Suit No. FHC/L/1/99 and CA/L/425/99 both pending before the Lagos Division of the Federal High Court and the Lagos Division of the Court of Appeal respectively.
b) The court below was in grave error when it failed to hold that the addition of the Inspector General of Police as a party to the action before it did not constitute a valid ground for the institution of the said suit.
c) The institution of the suit is intended to irritate and annoy the defendant/appellant and obstruct the effective and efficient administration of justice.
2. The court below erred in law when it held that it had jurisdiction to entertain the suit as the said suit is in respect of the revenue of the Federal Government of Nigeria when the said suit involves no dispute between the parties as to revenue of the Federal Government but merely concerned the management and control of Toll Plazas nationwide as per various contracts of management between the defendant/appellant and the plaintiffs/respondents.
3. The court below erred in law when it delivered its decision and made further orders that the status quo between the parties be maintained as the decision and the further orders was not made in open court.
Particulars:
a) Section 36(1) and (3) of the 1999 Constitution of Nigeria provides that in the determination of the civil rights and obligations of persons proceedings of a court of law including the announcement of decisions shall be held in public.
b) A Judge’s chambers is not a court hall to which the public will normally have any right of access.
c) The proceedings and pronouncement of decision appealed are null and void and of no effect whatsoever.
d) The court below acted without jurisdiction.
From the above grounds of appeal, the defendant/appellant formulated the following issues for determination of this court.
1. Whether having regard to the substance of the claims in Suit No. FHC/L/CS/1/99 now pending before the Federal High Court sitting in Lagos, the subsequent institution of Suit No. FHC/ABJ/CS/104/2000 before the Federal High Court sitting in Abuja by the plaintiffs/respondents constitutes an abuse of process of court?
2. Whether having regard to the provisions of section 251 of the Constitution of the Federal Republic of Nigeria, 1999 the Federal High Court has jurisdiction to entertain a suit the subject-matter of which are the contracts for management and control of Toll Plazas by the plaintiffs/respondents?
3. Whether the court below was right to have delivered its ruling, now appealed, in chambers?
The respondents also formulated three issues for determination to wit.
1. Whether the parties and subject-matter in Suit No. FHC/L/CS/1/99 are the same with the parties and subject matter in Suit FHC/ABJ/CS/104/2000 and whether it can be said that the institution of the Suit No. FRC/ABJ/ 104/2000 constitutes an abuse of process of court?
2. Whether having regard to the provisions of section 251(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999, the Federal High Court has jurisdiction to entertain Suit No. FHC/ABJ/CS/104/2000 the subject matter of which is the renewal or extension of contract  for management and control of Toll Plazas by the plaintiffs/respondents?
3. Whether the court below delivered its ruling in chambers.
The two set of issues although worded differently are not dissimilar. The resolution of one set will amount to the resolution of  the other set. I will therefore determine this appeal on the set of issues, as formulated by the appellant. I will however start with issue two as it is mainly on jurisdiction.

Issue 2.
Whether having regard to the provisions of S.251 of the  Constitution of the Federal Republic of Nigeria, 1999 the Federal High Court has jurisdiction to entertain a suit the subject-matter of which are the contract for management and control of Toll Plazas by the plaintiff/respondent? Apart from the briefs filed on behalf of the parties which were adopted and relied upon, learned senior advocate for the appellant and learned counsel for the respondent expatiated orally on the submissions on their briefs.
The trial court in over ruling the objection that it lacked jurisdiction to try the matter held as follows:-
“On the issue of jurisdiction of this court, I rule that the subject-matter of this suit is squarely on S.251(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 because Toll Plazas relates to the collection of the revenue of the Government of the Federation through the Federal Ministry of Works or its Minister which is the relative organ of the Federal Government.
Secondly, jurisdiction is also vested in this court under subsection (c),because all the plaintiffs are limited liability companies whose operations come under Companies and Allied Matters Act, which is a Federal Enactment.
Thirdly, jurisdiction is also vested under the sub-section (P) because the subject-matter relates to management and control of Toll Plazas by the Federal Ministry of Works, which is an agency of the Federal Government.
Fourthly jurisdiction is vested under sub-section(r) because  the reliefs are asking for declaration and interlocutory injunction affecting the Federal Ministry of Works which is an agency of the Federal Government.
There is absolutely no law known to me which excludes contract matters from the jurisdiction of this court. On the contrary, see the Federal High Court (Amendment) Decree No. 60 of 1991 which is a current law. S.7(1) of that Decree is all embracing in its language when it states, the Federal High Court shall to the exclusion of any other court try civil causes and matters connected with or pertaining to:-
(a) The Revenue of the Government of the Federation as in this case.
(b) Any matter in the concurrent legislative list such as Toll Plazas in this case.
(c) Any matter with respect to which the Federal Government has power to make law and in this case Toll Plazas.
Paragraph 3 of the above law is very important because it states, ‘where jurisdiction is conferred on the Federal High Court under sub-section (1) of the sub-section above, such jurisdiction shall continue to include jurisdiction to hear and determine all matters relating to arising from an ancillary to such subject-matter.’
The learned Senior Advocate of Nigeria on behalf of the appellant while contending that the learned trial Judge was wrong to have held as above made the following submissions;
That the dispute between the parties is the management agreements of Toll Plazas- which are mere structures for collection of revenue it is not a dispute for the collection of revenue or where revenue should go to or how it would be distributed and is not one of the civil causes or matters envisaged by the provisions of S.251(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria.
That the management and control of the 25 plaintiffs is not an issue before the trial court.
That the Toll Plazas are mere structures, not incorporated bodies with legal personalities and can therefore not be termed juristic persons who can be called either in law or in fact agencies of the Federal Government.
That the Federal Ministry of Works has no legal personality and is not a party to the case in the lower court. That the agreement for the management and control of the Toll Plazas was between the  Federal Ministry of Works and the plaintiff/respondent and so governed by the law of contract. What was disputed is not the executive or administrative action of the Federal  government or any of its agencies but mere management contract- outside the jurisdiction of the Federal High Court.
That the provisions of S.7(1) of Decree No. 60 of 1991 from where the trial court said it assumed jurisdiction, is inconsistent with the provisions of S.251 of the 1999 Constitution and is therefore null and void to the extent of that inconsistency.
The respondents have, on the other hand maintained that the trial court had jurisdiction to determine the matter for, as they contended, the dispute between the parties relates to the extension or renewal of the contract for the management and control of Toll Plazas nationwide.
That as the collection of fees, dues or charges from Toll Plazas relate to the revenue of the Federal Government, the trial court has jurisdiction on the matter.
That by virtue of the provisions of S. 251(1)(r) of the 1999 Constitution, the Federal Minister for Works and Housing who is an embodiment of the Federal Ministry for Works and Housing is an agency of the Federal Government. That the reliefs sought against the said Minister by the  respondents which are made up of only declarations and injunctions over the renewal or extension of the subject-matter contract brings the matter within the ambit of the jurisdiction of the Federal High Court, moreso in this case where a public officer is sued in his official capacity.
That S. 7(1) Federal High Court (Amendment) Decree No. 16 of 1992 which has gone through various amendment read with S.5.2(1) of the Federal High Way Act of 1971 confers jurisdiction on the Federal High Court in any case of which the reliefs sought therein relates to extension or renewal of contract for the management and control of Toll Gates.
From these submissions, it will appear that the determining factor is the jurisdiction of the Federal High Court to determine the matter at hand. A court is said to be competent to determine a matter before it when the following are present:
1. if it is properly constituted with respect to the number and qualification of its memberships;
2. the subject-matter of the action is within its jurisdiction;
3. the action is initiated by due process of law; and
4. any action necessary to the exercise of its jurisdiction has been fulfilled.
Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Ogunmokun v. Mil. Adm. Osun State (1999) 3 NWLR (Part 594) 261; A.-G., Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Part 618) 187; Ajao v. Alao (1986) 5NWLR (Part 45) 802. Applying the above rules to this case, rule 2 will therefore be the determining factor as to the competence of the trial court, the claim of the parties before the court will determine whether it has jurisdiction or not. Adeyemi v. Opeyori (1976) 9-10 SC 31; Tukur v. Government of Taraba State (1997) 6 NWLR (Part 510) 549; Holec Projects (Nig.) Limited v. Dafeson Int’l Limited (1999) 6 NWLR (Part 607) 502 C.A.

What therefore is the claim of the parties before the lower court?
This is to be found at page 50 of the records of appeal and the reliefs sought by the plaintiffs/respondents are set out below:
1. A declaration that effective from 4th April, 2006, the plaintiffs are entitled to a further and final term of five (5) years as operators of Toll Plazas nationwide vide their agreements with the 1st defendant dated 4th April, 1996 and 8th September, 1997 respectively as the case may be.
2. A declaration that actions of the 1st defendant to wit:-
(a) service of notice to terminate the subject-matter contract on the plaintiffs;
(b) use of tenderers and bidders to attack and disrupt the smooth operation of the plaintiffs at their respective Toll Plazas:
(c) Other efforts to bring the subject-matter agreements to an end and remove the plaintiffs from the management of the toll plazas nationwide before the expiration of the final term of five (5) years on 4th day of April, 2006 are illegal, unlawful, void and invalid.
3. An injunction restraining the defendant by themselves, agents, privies and whosoever from interfering in any way whatsoever with the plaintiffs management and  control of the toll plazas nationwide till the expiration of the final term of five (5) years on 4th April, 2006.
What the trial court is asked to do from the above reliefs is to make declarations and enforce the contract for the operation of Toll Plazas between the parties. The appellant’s contention hence is that the subject of management of toll gates is not within the jurisdiction of the Federal High Court. That the management of the toll gates is not related to revenue, it has to relate to be relevant.
That the management of toll plazas is a matter of contract regulated by ordinary law of contract to be determined at  the High Court. The respondents are contending on the other hand that the collection of fees, dues or charges from toll plazas relate to the revenue of the Federal Government therefore the Federal High Court has jurisdiction as the subject matter relates to the revenue of the Federal Government. Similarly jurisdiction is vested in the  Federal High Court, as the Federal Ministry of Works and Housing, an embodiment of the Federal Ministry of Works, is an agency of the Federal Government.
As I had shown earlier before a court can assume jurisdiction in a matter certain conditions must be satisfied. In the instant case, all  the other conditions being present, the subject matter will be the determining factor. All the reliefs sought at the trial court are based on agreement between the parties as to the running and operation of the toll plazas, the dispute is as to the terms of the agreement and the life span of the agreement. The dispute is not whether the plaintiffs are companies or not. It is not whether the toll plazas are creatures of statutes or not, it is not on how the revenue collected from the toll plazas is to be disbursed, it is simply a dispute on the terms of
agreement between the parties on the entitlement of the plaintiffs to run the toll plazas and the life span of the agreement. Simply put, it is on a contract agreement entered by the parties for the running of the toll plazas.
The trial court in holding that it has jurisdiction to try the matter relied on the provisions of S.251(1)(a)(r)as it contends, the subject matter relates to revenue of the Federal Government, and the Federal Ministry of Works and Housing is an agency of the Federal Government, S.7(1) of the Federal High Court Amendment Decree No. 60 of 1991 the matter before it pertaining to the revenue of the Federal Highway Act, Cap. 135, Laws of the Federation, 1990 as the collection of fees dues or charges from toll plazas relate to the revenue of Federal Government.
Having found earlier that the dispute between the parties is on a contract agreement, the law that establishes and confers jurisdiction on the Federal High Court will determine whether the court has jurisdiction on the case at hand. The constitutional provisions from where the court derives its power will therefore be the deciding factor. S. 251(1) of the 1999 Constitution confers jurisdiction on the Federal High Court and provides as follows;
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes or matters.”
And then went ahead to list the subject matters in which the Federal High Court has exclusive jurisdiction.
There being no other Act of the National Assembly conferring additional jurisdiction on the Federal High Court, its exclusive jurisdiction is therefore confined to the subject matters as contained In S.251(1)(a)(b)(c)(d)(e)(f)(g)(h)(i)G)(k)(l)(m)(n)(o)(p)(q) and (r). These subsections by their ordinary meaning confer exclusive jurisdiction to the Federal High Court in matters specified therein. Any other matter not stated will be outside the court’s jurisdiction.
In the instant case, the trial court assumed jurisdiction by virtue of subsections (a) and (r) which produced hereunder provide as follows:
“S.251 (1)(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said government is a party;
(r) any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative  decision by the Federal Government or any of its agency.”
By virtue of subsection ‘a’ above any matter relating to the revenue of the Federal Government will fall within the exclusive jurisdiction of the Federal High Court. In the instant case, can the subject matter of the suit be said to be relating to the revenue of the Federal Government? In his submission, learned senior advocate for the appellant contends that what was in dispute is not the collection of revenue or where revenue should go to or how it should be distributed.
That what is in dispute is the management agreement of toll plazas of a matter connected with or pertaining to the revenue of government while the respondent is of the contention that the management and control of toll plazas, erection of toll plazas etc., are creations of statute to wit section 2 of the Federal Highway Act of 1971 Cap. 135, Laws of the Federation, 1990 which provision shows  the collection of fees, dues or charges from toll plazas relate to revenue of the Federal Government.
The said provision is provided hereunder:
“2(1) The Minister shall have power to erect, equip and maintain toll gates on any Federal High Way as and when required with the approval of National Council of Ministers.
(2) Without prejudice to the generality of subsection (1) of this section, the Minister may prescribe such fees, dues or charges that may be payable at any toll gate erected, equipped or maintained pursuance to subsection (1) of this section.
(3) In the exercise of the powers conferred upon the Minister by subsection (2) of this section, Minister may classify the categories of vehicles plying or passing  through any toll gate covered by the provisions of this Act and the any amount payable by such category of vehicles.
(4) The Minister may authorize in writing any officer agent or person to exercise any of the powers conferred upon  him by subsection (1)(2)(3) of this section.”
The above section in effect is conferring powers on the Minister with regard to the operation and maintenance of toll plazas. While the dispute between the parties relates to the contract for the control and management of toll plazas. The above section will not therefore be the determining factor on the dispute between the parties. The dispute has to relate to the collection of revenue to come within the jurisdiction of the Federal High Court. In my view, the dispute in this case is on a contractual obligation of the Minister to the plaintiffs/respondents in the management and control of the toll plazas and can therefore not be termed as one that is related to the revenue of the Federal Government. The Federal High Court will therefore not have jurisdiction in the matter.
It is not in doubt that S. 251(1)(r) of the 1999 Constitution confers exclusive jurisdiction on the Federal High Court in “any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
It is however a misconception to say that whenever the Federal Government or an act of its agencies is involved in a case the only court for the determination of the case is the Federal High Court. By the proviso to S. 251(1)(q)(r)(s) of the 1999 Constitution, nothing in the provisions of the sub-sections shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any eactment, “law or equity”. Here the plaintiffs/respondents are complaining about a contractual agreement between them and an agency of the Federal Government. The agreement is one based on the law of contract, therefore, being based on law falls under the proviso to S. 251(1)(a)(r)(s) of the 1999 Constitution. The above proviso will effectively confer jurisdiction on any other court in this instance, the High Court of the FCT to hear and determine the matter.
The supremacy of the Constitution is paramount here. It has conferred exclusive jurisdiction on the Federal High Court and was specific as to subject matters. S. 7(1)(a)(i) of the Federal High Court (Amendment) Decree No. 60 of 1991 must therefore be curtailed by constitutional provisions. If it is in any way inconsistent with the specific powers or jurisdiction of the Federal High Court as provided in the Constitution it must to the extent of that inconsistency be void.

In this case, the dispute arose as to whether the plaintiffs/respondents as companies are entitled by a contractual agreement to run and manage the toll plazas and the life span of the said contractual agreement. It will therefore be out of place to say that the dispute relates to any Act or Decree relating to companies and allied matters or any law relating to the operation of companies. In the circumstances, this case cannot be said to be within the purview of S. 251(1)(e).

Issue 1:
Whether having regard to the substance of the claims in Suit No. FHC/L/1/99 now pending before the Federal High Court sitting in Lagos the subsequent institution of suit No. FHC/ABJ/CS/104/2000 before the Federal High Court sitting in Abuja by the plaintiffs/respondents constitute an abuse of process of court. Learned Senior Advocate Chigbue for the appellant on this issue submitted that the claims in the two suits, are the same, so is the subject matter of the two suits which centers on the contracts for the management of the toll plazas. That the three declaratory reliefs sought in the first case are the same with the three declaratory reliefs being asked for in the second case, so are the injunctive reliefs similar in the two cases. He further submits that the parties in the two suits are the addition of the Hon. Attorney-General as a defendant and the Managing Directors of the 25th – 48th plaintiffs as 1st – 23rd plaintiffs in suit No. FHC/L/CS/99 contending that the difference in the number of plaintiffs in the two suits is merely superficial in form and makes no difference in the constitution of the action in terms of its parties.
Relying on the cases of Harriman v. Harriman (1989) 5 NWLR (pt.119) 6; Shell Trustees (Nig.) Ltd. v. Imani and Sons Ltd. (2000) 6 NWLR (Pt.662) 639 the learned senior advocate submitted that it is an abuse of process of the court for different actions between the same parties to be filed in different courts simultaneously even though the grounds are different. It is also an abuse of process when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent. That where there is multiplicity of actions on the same matter between the same parties even though there is a right to institute the action, the abuse will be in the multiplicity and the manner in which the right is exercised. He urged us to hold that suit No. FHC/ABJ/CS/104/2000 is an abuse of the process of court inviting us to set aside the decision of the lower court and order a dismissal of the action before it.
The respondent on the other hand while submitting on that issue raised objection on the ground of appeal from which that issue was raised to the effect that the statement in the ground of appeal that the plaintiffs are the same does not attack the ruling of the trial court which held that the plaintiffs are different.
That matters not appealed against are considered settled and cannot be raised by an appellant in argument of other matters appealed against and relied on Edozien v. Edozien (1998) 13 NWLR (Pt.580) 133. Urging this court to disregard the appellant’s argument in his brief that the 1st – 23rd plaintiffs in suit No. FHC/L/CS/1/99 cannot and should not be parties ought to be disregarded as that argument does not arise from the ground of appeal or particulars therein.
He further contends that the parties and the subject matters in the two suits are different.
Ground 1 of the grounds of appeal states:-
“The court below erred in law when it held that the suit of the plaintiffs/respondents instituted and pending before it did not constitute an abuse of process when the institution of the said suit amounted to a multiplicity of actions between the same parties on the same matter.”
The above ground in my view is an attack of the ruling of the trial court when it held that the institution of the case before it was an abuse of court process. All that a ground of appeal needs to do is to relate to or attack the decision of a trial court to be competent Atoyebi v. Governor of Oyo State (1994) 5 NWLR (Pt.344) 290; Nnanna v. Onyenakuchi (2000) 15 NWLR (Pt.689) 92.

In the instant case the trial court had ruled that there was no abuse of the process of court when the issue was raised before it. The ground of appeal is attacking that finding, it is therefore competent.
In the circumstances, the objection raised is overruled and I so hold.
“There is said to be an abuse of the process of the court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. It is not the existence or pendency of a previous suit that causes the problem. Rather, it is the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not yet been disposed of, that constitute abuse of process of court”.
Per Karibi-Whyte, JSC in Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt.200) 659 at 681. See also Morgan v. West African Automobile Engineering Co. Ltd. (1971) 1NMLR 219: Williams v. Hunt (1905) 1KB 512; Slough Estates Ltd. v. Slough Borough Council (1968) Ch 299; Okorodudu v. Okoromadu (1977) 3 SC 21; Oyegbola v. Esso West Africa Incorporated (1966) 1 All NLR 170.
For a case therefore to be said to be an abuse of the process of court it must contain all the above ingredients.

In the statement of claim dated 3rd May, 2000 in suit No. FHC/ABJ/CS/104/2000 the reliefs sought by the respondent/plaintiff listed below are at pages 2-9 of the records of proceedings to wit;
1. A declaration that effective from 4th April, 2001 the plaintiffs are entitled to a further and final term of five  years as operators of toll plazas nationwide vide their agreements with 1st defendant dated 4th April, 1996 and 8th September, 1997 as the case may be.
2. A declaration that the action of the 1st defendant, to wit:
(a) service of notice to terminate the subject matter  contract on the plaintiffs;
(b) use of tenderers and bidders to attack and disrupt the smooth operation of the plaintiffs at their respective toll plazas;
(c) other efforts to bring the subject matter agreements to an end and remove the plaintiffs from the management of the toll plazas nationwide before the expiration of the final term of five years on 4th April, 2006, are illegal, unlawful, void and invalid.
3. An injunction restraining the defendants by themselves, agents, privies and whosoever from interfering in any way whatsoever with the plaintiffs management and control of the toll plazas nationwide till the expiration of the final term of five years on 4th April, 2000.
The reliefs sought in case No. FHC/L/CS/1/99 in the further amended statement of claim of the plaintiffs therein found at page 135 of the supplementary record of appeal are listed below.
1. A declaration that the contracts for the operation of the toll plazas nationwide entered into by the plaintiffs with the defendants on 4/4/96 and subsequently amended by the oral agreement of the parties and the addendum dated 8/9/97 is still valid, subsisting, unexpired until 4/4/2006 and cannot be terminated by service of notice on the plaintiff without any breach of the conditions therein contained in the contract.
2. A declaration that the purported notice and letter of termination of contract for service (dated 21/12/98 and 18/3/96 respectively and their addenda dated 11/8/97 by a letter dated 7/12/98 by the defendant is invalid, null and void, unconstitutional and of no effect, whatsoever.
3. A declaration that the interference with the disturbance of the meeting of the plaintiff and their operations at the toll plazas nationwide by the defendant is unlawful and unconstitutional.
4. A perpetual injunction restraining the defendant, their agents, privies etc or whosoever from illegally disturbing, interrupting, terminating or acting in anyway that purport to terminate and/or adversely affecting the valid contract existing and subsisting between the plaintiffs and defendants during the current life span of the contract.
The subject matter from a glance at the two claims in my view is the control and management of toll plazas nationwide, the validity or otherwise of the agreement entered by the parties and the life span of the agreement. The end result of the two suits is to determine these issues and grant declaratory and injunctive reliefs to the plaintiffs, by allowing them the running of the toll plazas nationwide till the termination of the contracts life’s span. The wordings of the two reliefs, may be different but the substance and the end results are the same. So, I have no hesitation in holding that the subject matter of the two suits are the same.
I am also of the view that the plaintiff if granted the relief he is seeking in the Lagos case would have achieved his aim, and it would not matter one way or the other if he fails in the Abuja case. That there are additional parties in the Lagos case as against the Abuja is immaterial, for the parties, in the Abuja case will be bound by the decision in the Lagos case if it were to be successful. Initiating the Abuja case is therefore an abuse of the court process and I so hold.
The third issue centers on whether or not the ruling of the trial court was delivered in chambers by the trial court or not thus rendering it a nullity. Here there are two conflicting views, while the appellants are contending that it was delivered in chambers the respondent are alleging that there is nothing on the face of the records of proceedings to show that it was so. There is always a presumption of legality in any judicial proceedings and the court will not hold  otherwise until there is irrebuttable evidence showing that the contrary is the case. The record of proceedings in this case did not show that the ruling was delivered in chambers, we will therefore presume that it was delivered in an open court as required by constitutional provision.

On the whole, this appeal has merit and must succeed. The trial court was wrong to hold that it has jurisdiction, subject matter between the parties being one of contract its jurisdiction is ousted by the proviso to S. 251(1)(q)(r)(s) of the 1999 Constitution of the Federation of Nigeria. Similarly, the initiation of case No. FHC/ABJ/CS/104/2000 at the Abuja Federal High Court is an abuse of court process there being a similar case No. FHC/L/CS/1/99 at the Lagos Federal High Court.
The respondent’s claim before the Abuja Federal High Court is accordingly dismissed- this being the only option open to a court where a finding of abuse of process of court is made to put an end to litigation. See Owonikoko v. Arowosaiye (1997) 10 NWLR (Pt.523) 61; Arubo v. Aiyeleru (1993) 3 NWLR (Pt.280) 186; Nweke v. Udobi (2001) 5 NWLR (pt.706) 445.

I award cost of N2,000.00 against each of the respondents in this court and N1,000.00 against each of the respondents at the lower court.

MUSDAPHER, J.C.A.: I have read before now the judgment of my learned sister Bulkachuwa, JCA just delivered and I agree with the conclusions arrived at. I merely wish to emphasise certain points.
Preliminary objection:
It is contended by the plaintiffs/respondents, that since they have filed a notice of discontinuance of the substantive suit in the trial court, the interlocutory appeal filed in this court becomes unnecessary.
It has been rendered incompetent by the operation of law. The appellant on the other hand argued that, that (i) there are matters to be considered at the trial court, that is, the issue of damages and (ii) where a plaintiff had benefited substantially in an interlocutory application, the unqualified right to terminate a case as well as an appeal is lost. By virtue of Order 30, of the Federal High Court Rules, the discontinuance of a suit may be made with or without leave depending on the circumstances of the case. The principle underlying the requirement for leave to discontinue a suit is that after proceedings have reached a certain stage or where the plaintiff had obtained
substantial benefits, he cannot thereafter be allowed to escape by the side door and avoid the contest, having brought his adversary into court and having obtained benefits to the detriment of the defendant.
In my view, when, as in this case, the plaintiffs/respondents obtained ex-parte orders to the prejudice of the appellants, the plaintiffs/respondents are no longer dominus litis. It is for the Judge to say whether the action should be discontinued or not. See Aghadiuno v. Ongbogu (1998) 5 NWLR (Pt.548) 16. In my view, considering the undisputed facts of this case, the plaintiffs/respondents having secured substantial benefits and advantages in the form of the injunctive reliefs have lost the power to discontinue the suit without leave. Iguh, JSC said in the case of The Vessel St. Roland v. Oshinloye (1997) NWLR (Pt.500) 387 at 412 thus:
“Additional to all the above, is the fact that it is clear abuse of the process to use the machinery of notice of discontinuance without leave to improve a plaintiff’s position unjustly. See Castanho v. Brown & Root UK Ltd. (1981) Illod’s Rep. 103 at 114 – 115. Similarly filing a notice of discontinuance immediately after obtaining substantial interim advantages or some unjust enrichment in a suit to the prejudice of the defendant constitutes an abuse of the process.”
Since interim advantage may include securing unjustifiable interim injunctive orders to the detriment or prejudice of the defendant.
In such a situation such as this, the court should set aside the notice to discontinue the action as it was done in bad faith, the plaintiffs/respondents cannot be allowed having reaped and enjoyed all advantages to the detriment of the defendants, to escape the contest at that stage without the leave of the court. In the instant case, the reliefs sought by the appellant is whether the trial court has jurisdiction to entertain the matter and whether the action as instituted was not an abuse of the process of the court.
Discontinuance as the respondents/plaintiffs have purported to do, would give them the right to relitigate on the same claims before the same court, I think on the peculiar facts of this case, the plaintiffs have lost the right to simply withdraw without the appeal court determining the appeal of the appellants on those two crucial matters. I am of the firm view that the appeal is not an academic exercise since the appellants were prejudicially affected by the act and conduct of the plaintiffs/respondents. The rights accrued to the appellants to contest the decision of the learned trial Judge on appeal cannot be affected by the unilateral decision of the plaintiffs/respondents to withdraw the action after they had caused the appellants to alter their position at their detriment. The courts should always be very cautious in not allowing technicalities to be used in perpetrating injustice. The right of the plaintiffs/respondents to discontinue this matter and avoid the contest through the back door in my view is lost. The notice of discontinuance should be set aside since it was filed malafide. See Okafor and Others v. A.-G. of Anambra State (1991) 6 NWLR (pt.200) 659. In the case Fakih Bros v. Moller Copenhagen (1994) Lloyd’s Rep. 103 where a notice of discontinuance was filed before defence but after an injunction has been granted, the notice of discontinuance was set aside. See also Ernst and Young v. Bottle Mining Plc, The Times, March, 22nd 1996.
Applying the above principle, I am of the firm view that the notice of discontinuance filed by the plaintiffs/respondents is ineffective and should be set aside. Thus, all the arguments of counsel for the plaintiffs/respondents that the appeal filed by the appellants had been rendered lapsed, unnecessary or is an academic exercise cannot hold water. I accordingly reject this part of the preliminary objection.
It is also contended that grounds of appeal filed by the appellants are incompetent in that the first ground of appeal is deficient in the nature of the error and its particulars. I have myself examined the ground of appeal, the nature and particulars of the ground are embedded in the ground of appeal. There is no legal requirements that the particulars must be set out separately. See Abiola v. Federal Republic of Nigeria (1995) 1 NWLR (pt.370) 155.

The other objection raised in relation to the other grounds do not go to the competency of the grounds, but to the question whether they will succeed or not. That complaint will have to wait, while considering the appeal. In the end, I too reject the preliminary objection raised by plaintiffs/respondents.

Now, I shall consider the issues as formulated by the appellants in the substantive appeal.
The facts put very briefly are that the plaintiffs/respondents were served with a notice to terminate an agreement for the management and control of toll plazas entered into with the appellant.
In resisting the attempt to terminate the agreements, the plaintiffs/respondents instituted an action in suit No. FHC/L/CS/1/99 at the Lagos Federal High Court asking for declaratory reliefs against the defendant/appellant to the effect that the contracts should not be terminated. There was also an injunctive relief restraining the appellant from disturbing the respondents in their possession of the toll plazas. While the proceedings in the aforesaid Lagos case are still pending, the plaintiffs/respondents filed this action at the Federal High Court Abuja claiming similar declarations and injunction. By an ex-parte order, the respondents/plaintiffs obtained interlocutory injunctive reliefs against the appellant. The appellant filed an application in the court below praying for (1) an order striking out the suit on the grounds that the court has no jurisdiction to entertain the same, alternatively (2) that the suit be dismissed, as its institution is perverse, a gross abuse of the process of the court and was filed in bad faith. The grounds for the application were stated, that the court below lacked the jurisdiction to entertain a simple action in contract and that the issues and the matters for determination in the suit were the same as the issues and matters pending for determination at the Lagos suit. After hearing the arguments of counsel, the learned trial Judge dismissed the preliminary objection. It is against the order of dismissal that the appellants have now appealed to this court. Three issues have been submitted for the determination of the appeal:- I shall only deal with two of them in this my contribution.
1. Whether having regard to the substance of the claims in suit No. FHC/CS/1/99 now pending before the Federal High Court sitting at Lagos, the subsequent institution of suit No. FHC/ABJ/CS/104/2000 before the Federal High Court sitting in Abuja by the plaintiffs/respondents constitutes an abuse of the process of the court?
2. Whether having regard to the provisions of S.251 of the Constitution of the Federal Republic of Nigeria, 1999, the Federal High Court has jurisdiction to entertain a suit, the subject matter of which are contracts for management and control of toll plazas by the plaintiffs/respondents?
Issue No.1: Abuse of the process of the Court:
Now, the law is well settled that it is prima facie vexatious and oppressive to take two concurrent actions in the courts for the same reliefs. See Morgan v. W.A.A. & Eng. Co. Ltd. (1971) 1 NMLR 221.
Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue, is an abuse of the process of the court. Kotoye v. Saraki (1992) 9 NWLR (pt.264) 156. Every court must be ready to prevent the improper use of its machinery from being used as a means of vexation and oppression in the process of litigation. Indeed, it is an abuse of process of the court for one to litigate in two courts simultaneously over an issue against an opponent.
See Ode v. Balogun (1999) 10 NWLR (pt.622) 214. The abuse of the process of the court is a term generally applied to a proceeding which is wanting in bonafides and is frivolous, vexatious and oppressive.
Abuse of process can also mean abuse of the legal procedure or improper use of the legal process. It always involves some bias, malice, some deliberateness, some desire to misuse, or pervert the system of administration of justice. See Olutinrin v. Agaka (1998) 6 NWLR (Pt.554) 366.

I have studied the claims in the two suits. I have also carefully examined the parties in both suits. I am of the view that the parties are the same and the subject matter of the dispute is substantially the same. See Harriman v. Harriman (1989) 5 NWLR (Pt.119) 6. The subject matter in the two suits is to do with the management and control of toll plazas and the interpretation of the contract entered between the parties and most importantly the life span of the contracts. The end result of the two actions is the same. What was sought for in the two actions was for the continuation of the respondents/plaintiffs controlling the toll plazas in accordance with the contracts entered between the Minister of Works and plaintiffs or their representatives. The slight difference in the parties is of no importance, the IGP for example is a nominal party. The parties to the agreements are the substantial and crucial parties to the two suits.
I am of the firm view that the two suits are substantially the same. I am not surprised now that the plaintiffs/respondents have purportedly discontinued the suit at Abuja. In any event, this case which was filed during the pendency of the case at Lagos is an abuse of the process of the court and the learned trial Judge was wrong to have held otherwise. I accordingly resolve the first issue in favour of the appellants.

Issue No.2: Whether the trial court has jurisdiction to entertain the matter:-
The learned trial Judge in his ruling on the issue of jurisdiction held:-
“On the issue of jurisdiction of this court, I rule that the subject matter of this suit is squarely on S.251(a) of the
Constitution of the Federal Republic of Nigeria 1990 because toll plazas relate to the collection of the revenue of the government of the Federation through the Federal Ministry of Works or its Minister which is the relative organ of the Federal Government. Secondly, jurisdiction is also vested in this court under subsection (2) because all the 25 plaintiffs are limited liability companies whose operations come under Companies And Allied Matters Act, which is a Federal Enactment. Thirdly, jurisdiction is also vested under subsection (P) because the subject matter relates to management and control of Toll Plazas by the Federal Ministry of Works which is an agency of the Federal Government. Fourthly, jurisdiction is vested under subsection (r) because the reliefs are asking for declaration and interlocutory injunction affecting the Federal Government. There is absolutely no law known to me which exclude contract matters from the jurisdiction of this Court, on the contrary, see the Federal High Court (Amendment) Decree No. 60 of 1991 which is current law S.7(1) of that Decree is all embracing in its language when it states…”
The jurisdiction of the Federal High Court to adjudicate on any matter can now be found under S.251 of the Constitution, the relevant provisions of the Section as far as this case is concerned are:-
“Not withstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters:-
(a) Relating to the revenue of the Government of the Federal in which the said government or any organ thereof or a person suing or being sued on behalf of the said government is a party.
(b) …
(c) …
(d) …
(e) Arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies And Allied Matters Act.
(f) …
(g) …
(h) …
(i)…
(j)…
(k)…
(I)…
(m)…
(n)…
(0)…
(p) the administration or management and control of the Federal Government or any of the agencies
(q)…
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administration action or decision by the Federal Government or any of its agencies:-
To fit in the respondents/plaintiff’s claims under any of the above head needs the careful examination of the claims. The claims as filed by the plaintiffs was to stop the Minister of Works from breaching a contract between the Minister and the plaintiffs. The claim in my view has nothing to do with the revenue of the Federal Government and accordingly, paragraph (a) does not apply. Similarly, sub-paragraph (e) does not also apply, since the dispute between the parties is not a dispute arising from the operation of the Companies and Allied Matters Act nor concerning the operation of any company, the dispute between the parties is only concerned with an action for threatened breaches of contracts. I am also of the view that subparagraphs (p) is also not applicable because the toll plazas cannot be agencies of the Federal Government, they are only structures.
Paragraph (r) is equally inapplicable because the dispute is not seeking a declaration or injunction affecting the validity of any executive or administrative action or decision, the dispute is merely a claim on threatened breach of simple contract entered into between the Minister of Works and Housing and the plaintiffs.
The Federal High Court has the exclusive jurisdiction to deal with the matters spelt out under S.251 of the Constitution in addition to such other jurisdiction conferred upon it by the National Assembly or deemed to have been conferred by the National Assembly. As far as I know, National Assembly has not yet conferred on the Federal High Court, the jurisdiction to adjudicate on a matter of simple contract between the parties as shown in the claims of the plaintiffs/appellants.
Generally it is the relief claimed in court that determines the jurisdiction of the court to adjudicate. See Akinfolarin v. Akinnola (1994) 3 NWLR (Pt.335) 659; Okoroma v. Uba (1999) 1 NWLR (Pt.587) 359. Unlike the State High Court which is a court of unlimited jurisdiction, the Federal High Court is a special court with limited jurisdiction clearly specified under S.251 of the Constitution.

There is nowhere in the Constitution or any other enactment where it stipulated that any suit in which a Federal Government Ministry, agency, functionary or parastatal is sued is justiciable in the Federal High Court except those cases specified under S. 251 of the Constitution. See Omosowan v. Chiedozie (1998) 9 NWLR (Pt.566) 477.
Even if the Minister of Works and Housing is an agent of the Federal Government, an action against him may not be justiciable under S.251 of the Constitution unless it is as regards “the administration or the management and control of the Federal Government or any of its “agencie” or “for a declaration and or injunction affecting the validity of any executive or administrative action or decision.” This suit has nothing to do with these points. See NNPC v. Okwor (1998) 7 NWLR (pt.559) 637.

The issue of jurisdiction is fundamental, it is the foundation and the pivot of adjudication. Thus, if a court lacks jurisdiction, it automatically lacks the necessary competence to try the case at all.
A defect in competence is very fatal because the entire proceedings would be null and void ab initio however well conducted or well decided they might otherwise be. See IGP v. Aigbiremelen (1999) 13 NWLR (Pt.635) 443.

In order to ascertain whether or not a court has jurisdiction to try a claim, the court only needs to look at the plaintiff’s claim. This is so because it is the claim of the plaintiff that determines the jurisdiction of the court entertaining the suit. See Egbuziem v. NRC (1994) 3 NWLR (Pt.330) 23; Mattaradona v. Ahu (1995) 8 NWLR (Pt.412)225.

The claims of the plaintiffs/respondents are for an action against a threatened breach of contract, which in my view does not fall under the provisions specified under S.251 of the Constitution. I have not also been shown and nor am I aware of any legislation by the National Assembly conferring jurisdiction on the Federal High Court to adjudicate on this claim.
I accordingly resolve this issue also against the respondents/plaintiffs.
It is for all the above and the fuller reasons contained in the aforesaid leading judgment, that I too, allow this appeal and set aside the ruling of the trial court. In its place, I order that the plaintiffs/respondents claims be struck out and or dismissed. I abide by the order for costs contained in the leading judgment.

MUNTAKA-COMMASSIE, J.C.A.: I have had the privilege of reading before now the judgment just read and delivered by my learned brother, Bulkachuwa, JCA. The acts and issues canvassed before us were clearly and admiringly too. discussed and resolved.
Learned Counsel for the respondents Mr. Williams sought leave of this court to abandon his earlier notice of preliminary objection and to argue a fresh notice of preliminary objection filed on 2/5/01 both request were granted. The earlier notice filed on 20/2/01 was then struck out. In the course of his argument learned counsel for the respondents stated that since the substantive matter in the court below has been discontinued the action becomes necessarily ispofacto vacated, that being the case the appeal is thereby rendered ineffective any further moves would amount to an academic exercise which this court should not have embarked upon. The whole suit together with  the appeal stood terminated by the operation of law. He relied on the following authorities:-
(a) Conybearre v. Lewis (1879) 12 Ch.D.469;
(b) Nzom v. Jinadu (1987) “NWLR (Pt.51) 533/537
(c) Ezeonu v. Agheze (1991) 4 NWLR (Pt. 187) 631 at 643.
I think the issue of embarking upon an academic exercise is fast becoming trite. Both the Supreme Court and this court in a plethora of cases frown at it. Courts should not indulge in an academic exercise. Since in the case of Nkwocha v. Governor of Anambra State (1984) 1 SCNLR 634, the Supreme Court refrained itself from the determination of any issue which is merely academic. See also Governor of Kaduna State v. Dada (1986) 4 NWLR (Pt.38) 687 – 699 per Uwais JSC (as he then was.) In the case of Ezeanya v. Okereke (supra) at p.165 per Igu, JSC it was stated to the effect that the Supreme Court would decline to decide a point which is academic,speculative or hypothetical.
However, can we rightly hold that the substratum of the appeal has gone since the claim before the trial court has been discontinued.
In other words, can we rightly say that the notice of discontinuance filed by the respondents in the court below was correctly and validly filed under Order 30 rule 2( 1) of the Federal High Court Rules. If the answer is in affirmative then definitely the matter before the lower court could be regarded as dead and buried and cannot possibly be resurrected until the day of resurrection. See Tanimola v. Survey Mapping Geodata Ltd. (1995) 6 NWLR (Pt.403) 617 at 626-627 per Uwaifo JCA (as he then was).
The provisions of Order 30 rule 2( 1)has already been reproduced in the lead judgment of my learned brother, Bulkachuwa, JCA it is not necessary for me to reproduce same here. Suffice it to state that a notice of discontinuance can be validly filed even without leave of the court if there is no unjustifiable taking of undue advantage to the detriment of the other party. In the appeal at hand it was clear that the respondents as plaintiffs in the court below somehow, unmeritedly, obtained some injunctive orders prejudicial and injurious to the appellant. It is clear that the respondents action smacks of mala fide.
In my judgment, I hold that if the respondents had obtained those advantages and benefits bona fide then the notice of discontinuance would have been in order. The action before the lower court would have died a natural death without resurrection. Then the appeal would not have served any useful purpose. But the situation in this matter is different. It was not done in good faith. That explains why the filing of notice of discontinuance before the lower court by respondents must be an abuse of the process of the court and is liable, of being rejected and ought to be struck out. In the case of The Vessel “Saint Roland” & Anor. v. Osinloye (1997) 4 NWLR (pt.500) 387,  the Supreme Court frowns at taking undue advantage of the other party after obtaining some advantage. In the appeal at hand it goes without saying that the respondents got what they wanted in a Lagos High Court and immediately after improving, unjustifiably, themselves quickly filed a notice of discontinuance without leave  before a court of co-ordinate jurisdiction in Abuja court. If this action is not a case of abuse of court process I don’t know of any example of such abuse. The Supreme Court, in that Shipment case of Saint Roland (supra), in effect is saying that it is clear abuse of the machinery of notice of discontinuance without leave to improve a  plaintiff position unjustly. Similarly, filing a notice of discontinuance immediately after obtaining substantial interim advantages or some unjust enrichment in a suit to be prejudicial of the defendant constitutes securing unjustifiable substantial payments in the suit just before the notice to the detriment of the defendant. See page 412 per Igu, JSC.
It seems to me that the case of “Saint Roland” (supra) is on all fours with the present appeal. This is because in the present case, it is clear that the present respondents had already obtained, unjustly, benefits and some advantages when they secured an exparte order to the disadvantage of appellants herein. That per se made the notice of discontinuance inconsequential and since it was made malafide it must be set aside. In fact, it is also an abuse of process of the court that makes the preliminary objection misconceived and same is overruled and also struck out.
On the appeal itself! thought the lead judgment is comprehensive enough so much that it does not call for any comment. I only wish to state that the appeal as a whole is challenging the jurisdiction of the Federal High Court to entertain the matter that being the case I do not think that the framing of the ground should take a particular pattern.
It is customary to show the particulars when even a ground alleged error of law or misdirection but never compulsory to produce them distinctively or separately.Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) 267-278 per Karibi-Whyte, JSC.
On the whole I agree that management of Toll Plaza is a matter within simple contract between the parties and never an issue of  revenue collection or taxation. It has to be decided by reference to the common law which is better been thrashed out by the High Court.
The Federal High Court in this country is not saddled with jurisdiction to hear an action which relates to contract which concerns the management of the Toll Gates. The mere fact that a ministry or institution is an embodiment of the Federal Government (as Ministry of Works and Housing) or an agency of the Federal Government does not ipso facto confer exclusive jurisdiction on the Federal High Court. Section 251(1)(a)-(r) of the Constitution of the Federal
Republic of Nigeria 1999 did not confer jurisdiction on the Federal High Court notwithstanding the provisions of section 7(1)-(i) of the Federal High Court (Amendment) Decree No. 60 of 1991. The Federal High Court any where in Nigeria lacks jurisdiction to hear such contractual matters. The court below should have declined jurisdiction in favour of the High Court Federal Capital Territory Abuja especially when authorities were cited from the Court of Appeal and Supreme Court. The appeal is pregnant with a lot of merits. The conclusion that I reached, after the above little analysis, and for the more elaborate resolution in the lead judgment, is that I too allow this appeal and abide by all the consequential orders, including the order as to costs, made by my learned brother, Bulkachuwa, JCA.

Appeal allowed.

Appearances

Chief Chike Chigbue, SAN (with him, C. Ezenduka, Esq.; Danladi Ochakpe, Esq.; A. Ekpe, Esq., V. F. Omage [Miss] and G. C. Ogwuneze, Esq.For Appellant

AND