LawCare Nigeria

Nigeria Legal Information & Law Reports

ABUJA INVESTMENTS CO. LTD & ORS v. SANDERTON VENTURES LTD & ANOR (2022)

ABUJA INVESTMENTS CO. LTD & ORS v. SANDERTON VENTURES LTD & ANOR

(2022)LCN/15969(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, May 05, 2022

CA/A/344/2017

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

1. ABUJA INVESTMENTS COMPANY LIMITED (FORMERLY ABUJA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED) 2. HONOURABLE MINISTER, MINISTRY OF FEDERAL CAPITAL TERRITORY 3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY APPELANT(S)

And

1. SANDERTON VENTURES LIMITED 2. ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)

 

RATIO

PRINCIPLES GUDING THE COURT IN ASCERTAINING WHETHER A GROUNDS OF APPEAL ARE THAT OF MIXED LAW AND FACT OR THAT OF LAW

The resolution of the preliminary objection calls for a close scrutiny of the Appellants’ grounds of appeal with a view to ascertaining whether the grounds are that of mixed law and fact, and for which the leave of Court needs to be sought for and obtained, as being propounded by the objector, or simply that of law and covered by Section 241 (1) (b) of the Constitution. In so doing, I am guided by the principles set out by the Apex Court in the case of CCCICS Ltd vs. Ekpo (2008) 6 NWLR (pt. 1083) 362 at 407-408 per Muhammad JSC, thus: –
i. The first and foremost is for one to examine thoroughly the grounds of appeal in the case concerned to see whether they reveal a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved and admitted.
ii. Where a ground complains of a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law.
iii. Where a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and fact.
iv. A ground which raises a question of pure fact is certainly a ground of fact.

v. …
vi. Where admissible evidence has been led, the assessment of the evidence is entirely for that Court, if there is a complaint about the assessment of the admissible evidence, the ground is that of fact.
vii. …
viii. Where the lower Court or Tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.
ix. Where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal Court would assume that there has been a misconception of the law. This is a ground of law.
x. …
xi. Where a trial Court fails to apply the facts which it has found correctly to the circumstance of the case before it and there is an appeal to a Court of appeal which alleges a misdirection in the exercise of the application by the trial Court, the ground of appeal alleges the misdirection is a ground of law not of fact.
Also, in NNPC vs. Famfa Oil Ltd (2012) 17 NWLR (pt. 1328) 148 at 175, the Apex Court reiterated the fact that:
“At times the difference between a ground of law and a ground of mixed law and facts can be very narrow. Labeling a ground of appeal error of law, or misdirection may not necessarily be so. The appellation is irrelevant in determining whether a ground of appeal is of law or mixed law and fact. See Ajuwa & Anor v. S.P.D.C 2011 12 SC (Pt. IV) P. 118, Opuiyo v. Omoniwari 2007 6 SC Pt. 1 p. 35. The Court should examine the grounds and their particulars and identify the substance of the complaint. In that way, the issue of whether a ground of appeal is of mixed law and fact would be resolved”.
PER BARKA, J.C.A.

CONDITIONS TO BE PRESENT BEFORE AN ARBITRAL PROCEEDING CAN BE SAID TO HAVE BEEN TERMINATED

It is trite that pursuant to the provisions of Section 27 of the Arbitration and Conciliation Act Cap A18, Laws of the Federation of Nigeria 2010, arbitral proceedings can be said to have been terminated when the following conditions are established:
“27(1) The arbitral proceedings shall terminate when the final awards is made or when an order of arbitral tribunal is issued under Subsection (2) of this Section.
(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when-
(a) the claimant withdraws his claim, unless the respondent objects thereto and the arbitral tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the dispute; or
(b) the parties agree on the termination of the arbitral proceedings; or
(c) the arbitral tribunal finds that continuation of the arbitral proceedings has for any other reason become unnecessary or impossible.
(3) subject to the provisions of Sections 28 and 29 (2) of this Act, the mandate of the arbitral tribunal shall cease on termination of the arbitral proceedings.”
PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The appeal is against the ruling of the Federal High Court, Abuja Judicial Division, presided by the Honorable Justice A. R. Mohammed in suit with no. FHC/ABJ/CS/475/14, between 1. Abuja Investments Company Ltd. (Formerly Abuja Investment and Property Development Company Ltd.), 2. Honorable Minister, Ministry of Federal Capital Territory, 3. Federal Capital Development Authority and 4. Attorney General of the Federation delivered on the 28th of April, 2017 wherein the Court by its ruling located at page 894 of the record reasoned and thereby held that:
“It should also be noted that since the 1st Defendant is now relying on the judgment of this Court to contend that the present suit is an abuse of Court process, the conclusion is that the 1st defendant cannot avoid the orders of this Court for the parties to submit to arbitration. As for the contention of the Plaintiff that the basis of this suit is the “Technical Panel Report of a Ministerial Committee constituted on the way forward on the construction of the 832 Housing Units in Kubwa”, let me observe that with the judgment of this Court in suit No. FHC/ABJ/CS/651/2011 endorsing arbitration in the settlement of the dispute between the parties, no report of any committee can have priority over the decision of a competent Court of law. It therefore means that so long as the decision of the Court subsist, none of the parties is allowed to embark on any course of action other than the one directed by the Court, as to do so, would amount to willful disregard to the valid orders of the Court, which is even more serious than any allegation of abuse of Court process. The Plaintiff, in particular cannot disregard the orders of this Court in suit no. FHC/ABJ/CS/651/2011 and take cover under any report of a Ministerial Committee to bring this action. In the same vein, the 1st defendant has no option to avoid the arbitration process ordered to be pursued by this Court in suit No. FHC/ABJ/CS/651/2011.
On the issue of whether or not, the Plaintiff’s suit is statute barred, let me state that as long as the judgment of the Court subsists, the dispute between the parties directed to be referred for arbitration cannot be statute barred. This is because, the decision to go for arbitration was made by the Court, therefore the cause of action subsist as long as the judgment and orders of the Court in suit no. FHC/ABJ/CS/651/2011 subsist.”

The Court in consequence thereof ordered as follows:
i. An order is made staying further proceedings in this suit to enable parties pursue arbitrations as directed by this Court in suit no. FHC/ABJ/CS/651/2011.
ii. The plaintiff and the 1st Defendant are directed to immediately commence the process of arbitration as directed by this Court in suit no. FHC/ABJ/CS/651/2011.
iii. It is directed that once the process of arbitration is completed and decision given by the arbitration panel, the present suit shall abate.

According to the Appellant, the 1st Respondent on the 27th of June, 2014 took out a Writ of Summons against the Appellants as 1st-3rd Defendants as well as the 2nd Respondent herein, who was the 4th Defendant claiming for the payment of the sum of N1,573,277,987.98 (One Billion, Five Hundred and Seventy-Three Million, Two Hundred and Seventy-Seven Thousand, Nine Hundred and Eighty-Seven Naira, Ninety-Eight Kobo) outstanding debt allegedly owed the 1st Respondent by the 1st Appellant as determined by the Report of ‘The Technical Panel on the Review of the Report of the Ministerial Committee (Alkali Panel) on the way forward on the construction of the 832 Unit Kubwa Housing Project’ (hereinafter referred to as the Technical Panel’s Report).

Upon being served with the Writ, Appellants filed a Motion on Notice dated the 7th day of August, 2014 seeking for the following orders:
(1) AN ORDER declaring that this honorable Court has no jurisdiction to try the claim in this suit or should not exercise any jurisdiction in respect of the suit;
(2) AN ORDER dismissing this suit for being an abuse of Court process and/or being statute barred; and
(3) SUCH FURTHER OR OTHER ORDER(S) this Honorable Court may deem fit to make in the circumstances.

The motion was brought pursuant to Order 29 of the Federal High Court (Civil Procedure) Rules, 2009 and the inherent jurisdiction of the Court and predicated upon the grounds aforementioned.

​The motion was supported by a 19 paragraphs Affidavit sworn to by one Se’umbur Atagher, a legal practitioner in the Chambers of ABUBAKAR MUSTAPHA & ASSOCIATES, solicitors to the Appellants, and hinged thereto are 21 Exhibits, which are essentially documents pleaded in and annexed to the 1st Respondent’s Statement of Claim and Witness Statement on Oath. The Appellants also filed a further affidavit to re-exhibit more legible copies of Exhibits 3, 3A and 10 attached to their Affidavit in Support. With the leave of the Court sought and obtained, the 1st Respondent filed a counter-affidavit and written address in opposition to the Appellants’ said motion. Also reacting to the 1st Respondent’s Written Address filed in opposition to the application, Appellants filed a Reply Address on point of law dated 22nd June, 2015, with the leave of Court.

According to the Appellants, it was stated that going by the 1st Respondent’s Statement of Claim and Witness Statement on Oath as well as the affidavit evidence before the lower Court in respect of the Appellants’ application, the following salient facts were stated to be largely undisputed:
I. The 1st Appellant, is a Private Limited Liability Company formerly known as Abuja Investment and Property Development Company Ltd. before it changed its name to its current name Abuja Investments Company Ltd.
II. The alleged debt claimed by the 1st Respondent in the instant suit arose from a contract for the construction of the 832 Housing Units in Kubwa, Abuja which was awarded by the 1st Appellant to the 1st Respondent vide Exhibit 1 attached to the Affidavit in Support of the Appellants’ Motion. The full terms and conditions of the contract are contained in Exhibit 2 attached to the said affidavit in support titled “Articles of Agreement” and “Conditions of Contract” executed by the said two parties on 13th October, 2000 (hereinafter referred to as the “the building contract”)
III. On the face of the building contract, the 1st Appellant (i.e. the Employer) and the 1st Respondent (i.e. the Contractor) were the only parties to the contract and by the provisions of Article 6 of the Articles of Agreement and Clause 35 of the Conditions of Contract any dispute or difference between the said parties arising from or in connection with the contract is mandatorily referrable or referred for arbitration.
IV. Consequent upon intractable differences or dispute between the 1st Respondent and the 1st Appellant in respect of the execution of the building contract including payment or non-payment for work done, the 1st Respondent terminated the contract on the 6th August, 2004 vide Affidavit in Support of the Appellants’ motion and demanded therein, the sum of N2,101,272,219.18 from the 1st Appellant as purported outstanding sum due to it for work done in respect of the contract as at 6th August, 2004. The 1st Appellant equally terminated the contract on 22nd October, 2004 vide Exhibit 3A attached to the Appellants’ Motion. The fact of the termination of the contract having been pleaded in paragraph 35 of the 1st Respondent’s Statement of Claim.
V. Sequel to the termination of the contract, the 1st Respondent instituted two arbitral proceedings against the 1st Appellant seeking payment of alleged outstanding debts in connection with the contract namely, the first arbitration with MR. O. U. IKPA, FNIQS as the sole Arbitrator and the second arbitration with CHIEF OKEY JIM NWAGBARA, FNIQS as the sole arbitrator. This can be seen at paragraphs 36 & 37 of the 1st Respondent’s statement of claim as well as paragraph 5 (I) of the affidavit in support of the Appellants’ Motion as well as Exhibits 4-9 and 14-19 attached thereto).
VI. Sequel to the termination of the contract, the 1st Respondent equally filed two suits namely, Suit no. FCT/HC/CV/265/05 before the High Court of the Federal Capital Territory, Abuja and suit no. FHC/ABJ/CS/651/2011 before the Federal High Court, Abuja Division in respect of the building contract. In the said earlier suit no. FHC/ABJ/CS/651/2011 filed before the lower Court, the 1st Respondent claimed exactly the same alleged debt of N1,573,277,987.98 claimed in the instant suit (i.e. suit no. FHC/ABJ/CS/475/2014) against the appellants herein. In other words, the parties and the claim in the instant suit no. FHC/ABJ/CS/475/2014 are the same with the parties and claim in suit no. FHC/ABJ/CS/651/2011 earlier filed by the 1st Respondent. (See paragraph 57 of the Statement of Claim and paragraph 6 of the Affidavit in support of the Appellants’ motion as well as Exhibit 12 attached thereto).
VII. Consequent upon an application filed by the 1st Applicant in suit no. FCT/HC/CV/265/05 before the High Court of the Federal Capital Territory referred to above challenging the competence of the suit on the ground of the arbitration clause contained in the building contract between the 1st Respondent and the 1st Appellant, the said Court declined jurisdiction to entertain the suit and stayed proceedings therein pending the determination of the arbitration proceedings between the said parties (i.e. the arbitration with MR. O. U. IKPA, FNIQS as sole arbitrator). Exhibit 10 attached to both the affidavit in Support and Further Affidavit in Support of the Appellants’ motion is the ruling of the High Court of the Federal Capital Territory, Abuja containing the said decision.
VIII. Consequent upon the preliminary objections raised separately by the appellants and the 2nd Respondent herein in the said suit no. FHC/ABJ/CS/651/2011 earlier filed by the 1st Appellant before the lower Court, the said Court (Coram Hon. Justice I. N. Auta, C.J.) declined jurisdiction to entertain the suit and made an order striking out same on the basis of the arbitration clause in the building contract and the pendency of an arbitration between the 1st Respondent and the 1st Appellant in respect of the matter which the said learned Judge found was ongoing (i.e. the arbitration with MR. O. U. IKPA, FNIQS as sole Arbitrator). Exhibit 13 attached to the affidavit in support of the Appellants’ motion is the judgment/ruling of the lower Court in respect of the said earlier suit.
IX. The 1st Respondent did not lodge any appeal against either the ruling of the High Court of the Federal Capital Territory, Abuja in suit no. FCT/HC/265/05 or the judgment/ruling of the lower Court in suit no. FHC/ABJ/CS/651/2011 referred to above thereby signifying its acceptance of same, and in spite of the above stated rulings or judgments, the 1st Respondent initiated yet another arbitration proceeding in respect of the same subject matter of this suit or debt against the 1st Appellant with CHIEF OKEY JIM NWAGBARA, FNIQS as the sole arbitrator, Exhibits 14-19 attached to the Affidavit in Support of the Appellants’ Motion are correspondences evidencing the said second arbitration.
X. Without terminating the two arbitrations initiated by him separately before MR. O. U. IKPA, FNIQS and CHIEF OKEY JIM NWAGBARA, FNIQS and inspite of the said earlier rulings/judgment in suit nos. FCT/HC/CV/265/05 and FHC/ABJ/CS/651/2011, the 1st Respondent instituted yet again, the instant suit no. FHC/ABJ/CS/475/2014 before the lower Court claiming substantially the same reliefs claimed by it in the said earlier suit no. FHC/ABJ/CS/651/2011.

The 1st Respondent on his part, narrated his story as follows:
That on the 18th day of September, 2000, the Federal Government of Nigeria, through the 2nd Appellant, gave approval for the award of a contract to the 1st Respondent for the construction of 832 housing units at Kubwa district in the FCT. The contract for the construction of the 832 housing units was thereafter awarded to the 1st Respondent by the 1st Appellant herein as agent of the 2nd and 3rd Appellants by a letter dated the 20th September, 2000, and in consequence of which the 1st Appellant and the 1st Respondent executed a building contract agreement dated the 13th of October, 2000.

​The 1st Respondent mobilized equipment to site and immediately commenced work. However, the execution of the contract was stalled midway due to a variation of the contract sum as a result of the introduction by the 1st Appellant, midway into the contract, of a new wall component known as the RBS panels (a product of the Royal Building Systems in Canada) for the construction of the wall component of the buildings. The execution of the contract was also frustrated by the act of the 1st Appellant engaging sub-contractors and paying money to them without the consent of the 1st Respondent.

Owing to the disagreement arising therefrom, the then Minister of the FCT, Abba Gana constituted a committee in 2003 known as construction of 832 housing units at Kubwa by M/S Sanderton Ventures Limited for Abuja Investment and property development Ltd chaired by one Architect J.L.S. Alkali, then a permanent secretary of the 3rd Appellant. The committee which later came to be known as the Alkali Committee recommended among others that the 1st Appellant pays to the 1st Respondent the sum of N1,092,953,158 (One Billion, Ninety Two Million, Nine Hundred and Fifty-Three Thousand, One Hundred and Fifty-Eight Naira only) in addition to another sum of N220,000,000 (Two Hundred and Twenty Million Naira only) recommended by the panel to be paid by the 1st Appellant to the 1st Respondent for the construction of the 4 model blocks.

Much to the chagrin of the 1st Respondent, the recommendation of the panel was not implemented by the 2nd and 3rd Appellants, instead, the 1st Appellant executed a loan and legal mortgage agreement with the defunct Universal Trust Bank (UTB) wherein the construction site was mortgaged to UTB (which later became the Union Bank of Nigeria) with the consequence that in the event of the 1st Appellant defaulting, the UTB would exercise its right of foreclosure on the construction site.

On the 6th day of August, 2004, the 1st Respondent submitted to the 1st Appellant its notice of determination of the construction contract, and the 1st appellant also by a notice of determination dated the 22nd October 2004. In obedience to the terms of the contract agreement, and in September, 2004, the 1st Respondent commenced arbitration proceedings against the 1st Appellant and a sole arbitrator appointed by the Nigerian Institute of Quantity Surveyors (NIQS) in the person of Mr. O.U. Ikpa, FNIQS, but unfortunately, the arbitration did not see the light of the day as the 1st Appellant ensured that it frustrated the arbitration. The Arbitrator being frustrated by the uncooperative attitude of the 1st Appellant, withdrew from the arbitral proceedings, thus the institution of the action before the lower Court.

In the course of proceedings, 1st Appellant filed a motion on notice praying the Court to dismiss the suit filed by the 1st Respondent on the basis that the suit was an abuse of Court process. The 2nd Appellant also by way of a preliminary objection sought for the striking out of the suit on the ground that the suit was statute barred. After taking arguments on the issues raised by the Appellants, the lower Court delivered the vexed ruling now subject of the instant appeal.

Dissatisfied with the decision of the lower Court, Appellants filed a Notice of Appeal on the 19th day of May, 2017 predicated on seven grounds of appeal, which notice of appeal is located at pages 897-905 of the record. On the 23rd of May, 2017, Appellants compiled and transmitted the record of appeal to this Court. Appellant also filed a brief of argument on the 5th of June, 2017, and a reply brief on the 7th of May, 2018., though deemed on the 2nd of November, 2021, and on the 8th of February, 2022, when the appeal came up for hearing, M.I. Abubakar, the learned counsel for the Appellants adopted the briefs filed and urged the Court to allow the appeal and to set aside the ruling of the trial Court.

The 1st Respondent also filed a brief incorporating a preliminary objection on the 7th of July, 2017. Mrs B.O. Akinseye-George, the learned counsel appearing for the 1st Respondent before the hearing of the appeal, drew the Court’s attention to the preliminary objection filed and argued at pages 6-9 of the 1st Respondent’s brief, and thereby urging the Court to strike out the appeal or any offending part thereof. With respect to the main appeal, learned counsel adopted the brief filed on the 7th of July, 2017, urging the Court to dismiss the appeal.

It should be noted that even though Ikeme Ekwerre Bello, ACSC, FMOJ announced appearance for the 2nd Respondent, no brief was filed on behalf of the Attorney-General of the Federation.

In the Appellants’ estimation, the following are issues that arise for the determination of this Honorable Court in this appeal:
i. Whether the lower Court was right in refusing to dismiss the 1st Respondent’s instant suit no. FHC/ABJ/CS/475/2014 for being an abuse of Court process regard being had of the decision of the lower Court (Coram I. N. Auta C.J.) in suit no. FHC/ABJ/CS/651/2011 earlier filed by the 1st Respondent against the Appellants and the pendency of suit no. FCT/HC/CV/265/05 before the High Court of the Federal Capital Territory, Abuja as well as the two arbitrations in respect of the subject matter of the suit.
ii. Whether in the circumstances of this suit, the lower Court had the jurisdiction or was right to make orders referring or directing the parties, particularly the 1st Respondent and 1st Appellant, to arbitration and for stay of proceedings pending the arbitration.
iii. Whether the suit is statute barred and whether, in view of the finding of the lower Court that the dispute in the suit was subject to arbitration and its order referring or directing the parties to arbitration, it was right for the lower Court to have assumed jurisdiction and determine the said issue of statute bar.

Also, in the brief settled for the 1st Respondent, the following issues were identified for the Court’s resolution.
i. Whether the lower Court was right in refusing to dismiss the 1st Respondent’s suit as being an abuse of Court process.
ii. Having regards to the circumstances of this case, is the arbitration clause contained in the building contract and resort to arbitration statute barred as contended by the Appellants?
iii. Whether the lower Court was right in its finding that the 1st Respondent’s suit was not statute barred.

I have therefore accorded a deep but sober consideration to the issues proposed by the parties, which to my own humble view appears to be the same, but for the language employed. In the determination of the appeal therefore, I intend to adopt those issues crafted by the Appellants, being the complainant, which in any case are for all purposes the same as that formulated by the 1st Respondent’s counsel; but first, the Preliminary Objection.

PRELIMINARY OBJECTION.
The 1st Respondent on the 7th day of July 2017 filed a preliminary objection to the hearing of the appeal based on the following grounds:
i. The Notice and Grounds of appeal are incompetent because they are grounds of mixed law and facts and have been filed without the leave of either the lower Court or this Honorable Court first had and obtained.
ii. All issues formulated from the Appellants’ grounds of appeal and arguments proffered in their support are incompetent having been founded on incompetent grounds of appeal.
iii. The arguments contained in paragraphs 4.1.12 to 4.1.16 and paragraphs 4.3.13 to 4.3.14 of the Appellants’ brief of argument are incompetent being unrelated to the issues they were purportedly canvassed in support.
iv. Issue estoppel/res judicata raised and canvassed at paragraphs 4.1.12 to 4.1.16 of the Appellants’ brief is a fresh point raised and argued without the leave of this Honorable Court.

Moving the objection from pages 6-9 in the brief settled for the 1st Respondent also filed on the 7th of July, 2017, learned counsel submitted that an interlocutory appeal can lie as of right only where the grounds of appeal are grounds of law, and relied on Section 241 (1) (b) of the Constitution of the Federal Republic of Nigeria 1999, and the case of Adejuwon vs. The Executive Governor, Ekiti State (2011) ALL FWLR (pt. 595) 360 at 373-374. He argued that all the six grounds of appeal raised questions of mixed law and facts of which leave is required, since the appeal is predicated on the refusal of the lower Court granting the reliefs sought for. He argued also that the exercise of the lower Court’s discretion being central to the Appellants’ complaint, a ground of appeal challenging that exercise of judicial discretion raises a question of mixed law and facts. Reliance was placed on the cases of Okomu Oil Palm vs. Tajudeen (2016) 3 NWLR (pt. 1499) 284 at 308-311, FBN Plc vs. Abraham (2009) ALL FWLR (pt. 461) 863 and Adeniyi vs. Oyeleye (2014) ALL FWLR (pt. 726) 538 at 577. He complained that Appellants failed to seek for the leave of Court before initiating the appeal in line with Section 242 of the CFRN, 1999, and thereby robbed the Court of the jurisdiction to hear the appeal. Reliance was placed on the cases of UBN Plc vs. Sogunro (2006) ALL FWLR (pt. 337) 402 at 410, and Okunriboye vs. Osuma (2017) ALL FWLR (pt. 866) 342 at 378. Learned counsel continued to submit that all the issues predicated on the incompetent grounds of appeal are also incompetent and liable to be struck out. The case of First Zenith Holdings Limited vs. HTP Engineering Limited (2017) ALL FWLR (pt. 881) 1158 was referred to.

​With respect to ground three of the preliminary objection, learned counsel, states that the ground seeks to question the competence of the arguments proffered at paragraphs 4.1.12 to 4.1.16 and paragraphs 4.3.13 to 4.3.14 of the Appellants’ brief of argument. It was contended that the point regarding issue estoppel/res judicata canvassed thereat is not covered by any of the six grounds of appeal. Counsel also stated that Appellants’ arguments under paragraphs 4.3.13 to 4.3.14 regarding the distinct legal personality of the 1st Appellant is also not covered by the Appellants’ grounds 1 and 2, and thereby urged the Court to strike out the offending paragraphs.

With respect to ground 4, it was contended by the learned counsel that the issue of estoppel strenuously argued is a fresh issue for which the leave of the Court was not sought for nor obtained. He maintained that the point or issue not having been raised and ventilated upon before the trial Court, it cannot be raised on appeal without the leave of Court. The cases of AIC Ltd vs. NNPC (2005) 1 NWLR (pt. 937) 563 at 585, and Oloruntoba Oju vs. AG of the Federation (2017) ALL FWLR (pt. 874) 1965 at 1979 were relied upon.

​Finally, on the issue, learned counsel urged the Court to sustain the preliminary objection and to strike out the appeal and/or to strike out the offending parts of the Appellants’ brief.

Responding to the Respondents’ preliminary objection, the learned counsel for the Appellants in the reply brief filed, and particularly on grounds 1 and 2 of the preliminary objection, submitted that all the grounds of appeal are grounds of law in respect of which an appeal lies as of right to this Court. Learned counsel made reference to Section 241 (1) (b) of the Constitution of the Federal Republic of Nigeria 1999, contending that contrary to the submission made by the Respondents, the grounds of appeal do not raise questions of mixed law and facts. He contended that the two processes filed by the Appellants and the 2nd Respondent challenged the competence of the 1st Respondent’s suit and the jurisdiction of the lower Court to entertain same, and thereby urged the Court to strike out the suit for being an abuse of Court process and/or statute barred. He maintained that the applications did not call for the exercise of discretion by the lower Court, but rather the determination of questions of law. Learned counsel also argued that the Appellants’ grounds of appeal question the wrong interpretation or the effect the lower Court gave to the judgments of the High Court in suit with No. FCT/HC/CV/265/05 and the Federal High Court coram I.N. Auta. He referred to the Supreme Court case of CCCICS Ltd vs. Ekpo (2008) 6 NWLR (pt. 1083) 362 at 407 on the principles to be examined in ascertaining whether grounds are of mixed law and facts submitting that none of the ground of appeal questions the evaluation of facts, assessment of evidence or exercise of discretion by the lower Court, but on competence, jurisdiction and the effect of the judgments of the Courts and the arbitration clause in the contract. He urged the Court to resolve the issue in favor of the Appellants and to reject grounds 1 and 2 of the preliminary objection.

With regards to grounds 3 and 4 of the preliminary objection, counsel argued that the 1st Respondent misconceived the arguments proffered in the paragraphs as they clearly relate to Appellants’ issues 1 and 3. Counsel also argued that the arguments in paragraphs 4.1.12 to 4.1.16 of the Appellants’ brief relate to the Appellants’ issue 1, which sought to show that the lower Court had earlier entertained the suit in which the 1st Respondent had virtually claimed the same reliefs as in the instant case, and that the jurisdiction of the Court is ousted by virtue of the arbitration clause inserted in the contract entered by the parties. On ground 4 of the preliminary objection, counsel was of the view that 1st Respondent having conceded to the fact that the issue was raised in the Appellants’ reply on points of law, contradicted itself by saying that it is a fresh point. He urged the Court to therefore dismiss the preliminary objection as lacking in merit.

The resolution of the preliminary objection calls for a close scrutiny of the Appellants’ grounds of appeal with a view to ascertaining whether the grounds are that of mixed law and fact, and for which the leave of Court needs to be sought for and obtained, as being propounded by the objector, or simply that of law and covered by Section 241 (1) (b) of the Constitution. In so doing, I am guided by the principles set out by the Apex Court in the case of CCCICS Ltd vs. Ekpo (2008) 6 NWLR (pt. 1083) 362 at 407-408 per Muhammad JSC, thus: –
i. The first and foremost is for one to examine thoroughly the grounds of appeal in the case concerned to see whether they reveal a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved and admitted.
ii. Where a ground complains of a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law.
iii. Where a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and fact.
iv. A ground which raises a question of pure fact is certainly a ground of fact.
v. …
vi. Where admissible evidence has been led, the assessment of the evidence is entirely for that Court, if there is a complaint about the assessment of the admissible evidence, the ground is that of fact.
vii. …
viii. Where the lower Court or Tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.
ix. Where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal Court would assume that there has been a misconception of the law. This is a ground of law.
x. …
xi. Where a trial Court fails to apply the facts which it has found correctly to the circumstance of the case before it and there is an appeal to a Court of appeal which alleges a misdirection in the exercise of the application by the trial Court, the ground of appeal alleges the misdirection is a ground of law not of fact.
Also, in NNPC vs. Famfa Oil Ltd (2012) 17 NWLR (pt. 1328) 148 at 175, the Apex Court reiterated the fact that:
“At times the difference between a ground of law and a ground of mixed law and facts can be very narrow. Labeling a ground of appeal error of law, or misdirection may not necessarily be so. The appellation is irrelevant in determining whether a ground of appeal is of law or mixed law and fact. See Ajuwa & Anor v. S.P.D.C 2011 12 SC (Pt. IV) P. 118, Opuiyo v. Omoniwari 2007 6 SC Pt. 1 p. 35. The Court should examine the grounds and their particulars and identify the substance of the complaint. In that way, the issue of whether a ground of appeal is of mixed law and fact would be resolved”.

​Being guided by the above state of the law, I have taken a microscopic examination of the grounds of appeal which are located at pages 897-905 of the record, and my humble view seems to agree with that of the Appellants that the grounds mainly attack the ruling of the lower Court in view of the judgments of the High Court of the Federal Capital Territory Abuja in suit No FCT/HC/CV/265/05 and that of the Federal High Court in suit No. FHC/ABJ/CS/651/2011. For instance, as contended by the learned counsel for the Appellants, grounds 1 and 2 questioned the propriety of the refusal of the lower Court refusing to dismiss the suit before it on the ground of abuse of Court process, while grounds 4 and 5 challenged the refusal of the lower Court not dismissing the suit on the ground of the suit being statue barred. Furthermore, grounds 3 and 6 as contended questioned the lower Court’s assumption of jurisdiction over the suit and granting orders regardless of the earlier suits and arbitration, as well as an order for stay of proceedings. I am unable to see nor agree with the 1st Respondent that the alleged grounds challenged the exercise of the judicial discretion of the lower Court, and all the cases cited though represents the correct position of the law, cannot apply in the present circumstance.

Section 241 (1) (b) of the Constitution of the Federal Republic of Nigeria 1999 as amended is self-explanatory. Where a ground of appeal in an interlocutory appeal is anchored on grounds of law alone, the appeal is as of right, and the seeking for the Court’s leave to do so needless. Having therefore come to the view that the grounds are that of law alone, grounds 1 and 2 of the preliminary objection must fail. Equally, the objection with regards to grounds 3 and 4 of the preliminary objection is bound to fail, being that a careful perusal of paragraph 4.1.12 at page 15 of the Appellants’ brief clearly shows that the complaint therein related to the allegation that the suit constituted a gross abuse of Court process, that the claim sought to be litigated on had been previously settled by I.N. Auta CJ in a previous suit, and that the decision reached in that suit not having been appealed against, rendered the lower Court functus officio, as the issue constituted an issue estoppel robbing the lower Court of the necessary jurisdiction to re litigate on the same issue. This issue no doubt has covered ground one of the grounds of appeal, and the contention that arguments under paragraphs 4.1.12-4.1.16 as well as those arguments captured under paragraph 4.3.13-4.3.14 arising from ground three of the grounds of appeal dealing with the personality of the 1st Respondent, unfounded.

Lastly, can the argument that the issue of estoppel canvassed by the Appellants by their paragraph 4.1.12-4.1.16 of the Appellants’ brief be said to be a fresh issue? In resolving that question, I am swayed by the submission on the point by the learned counsel for the Appellants to the conclusion that such was not a fresh issue having been agitated upon in the Appellants’ application before the lower Court. I fail to see any merit in the preliminary objection and same is hereby dismissed.

Having dealt with the preliminary objection to the conclusion that it is unmeritorious, I now proceed to determine the main appeal relying on those issues identified by the Appellants earlier indicated.

​Issue One.
Whether the lower Court was right in refusing to dismiss the 1st Respondents’s instant suit No. FHC/ABJ/CS/475/2014 for being an abuse of Court process regard being had of the decision of the lower Court (Coram IN Auta CJ) in Suit No. FHC/ABJ/CS/651/2011 earlier filed by the 1st Respondent against the Appellants and the pendency of suit No. FCT/HC/CV/265/05 before the High Court of the Federal Capital Territory, Abuja as well as the two arbitrations in respect of the subject matter of the suit.
The issue also argued by the 1st Respondent under the issue whether the lower Court was right in refusing to dismiss the 1st Respondent’s suit for being an abuse of Court process was argued from pages 8 to 19 in the Appellants’ brief.

It was the contention of the learned counsel for the Appellants, that the lower Court was wrong in not dismissing the 1st Respondent’s suit filed before it for being an abuse of Court process. Relying on the decisions of the Apex Court in Saraki vs. Kotoye (1992) 9 NWLR (pt. 264) 156 at 188 and Nigeria Intercontinental Merchant Bank Ltd vs. Union Bank of Nigeria Ltd (2004) 12 NWLR (pt. 888) 599 at 624, on what constitutes an abuse of the process of Court, it was submitted that an arbitral Tribunal and proceedings are judicial proceedings and within the purview of the two judicial decisions cited above. The case of Environmental Development Construction vs. Umara Associates Nigeria (2000) 4 NWLR 652) 293 at 304 was then relied upon. Learned counsel argued that flowing from 1st Respondent’s statement of claim, witness statement on oath and documents to be relied upon some enumerated facts which were reproduced by the Appellants appears to have been established. He then alluded to portions of the lower Court’s ruling from pages 445-450 of the record, which confirmed the existence of or pendency of a suit on the same issues as well as pending arbitral proceedings, and argued that none of the arbitral proceedings had been shown to have been determined as provided for by Section 27 of the Arbitration and Conciliation Act Cap A18, Laws of the Federation of Nigeria, 2010. On the contention that 1st Appellant failed to cooperate with the 1st Respondent with regards to the arbitral proceedings, it was argued that under such a circumstance, the arbitrators are entitled to proceed with the arbitration regardless of the 1st Appellant’s cooperation and to deliver their verdict. Learned counsel argued that the lower Court faced with all the enumerated facts before it, ought to have upheld the Appellants’ contention to the effect that as at the time the instant suit with No. FHC/ABJ/CS/475/2014 was commenced by the 1st Respondent against the 1st Appellant in respect of the subject matter in the suit, the 1st and 2nd arbitrations and suit with No. FCT/HC/CV/265/05 remained stayed pending arbitration. Furthermore, according to the learned counsel, the present suit being complained about sought to relitigate a claim for debt which had earlier been determined by the Court in suit with No. FHC/ABJ/CS/651/2011 which showed that the parties are the same. Alluding to the principal claim as well as the reliefs sought, counsel argued that the decision of Auta CJ, in the case cited striking out the suit for want of jurisdiction rendered the lower Court functus officio. Relying heavily on the decision of Onyeabuchi vs. INEC (2002) 8 NWLR (pt. 769) 417, learned counsel concluded that the lower Court faced with all the above stated abuses ought to have dismissed the instant suit for being an abuse of Court process and further citing Arubo vs. Aiyeleru (1993) 3 NWLR (pt. 280) 126 at 142 in that regard.

Responding to the issue, learned counsel for the 1st Respondent relied on the case of Okafor vs. A.G. Anambra State (1991) 6 NWLR (pt. 201) 659 at 681, and submitted that in order to sustain an objection to a suit on the ground of abuse of Court process, it must be demonstrated that the multiplicity of the suits is on the same subject matter, and between the same parties and on the same issues. Learned counsel proceeded to assert to the Court that the allegation of abuse of Court process raised by the Appellants is unfounded, contending that the parties in suit FCT/HC/CV/265/05, and the parties in the present case are not the same. That the subject matter in the previous suit is the protection of the construction site from the exercise by the UTB of its right for foreclosure under the loan facility agreement, while the subject matter in the instant case is the recovery of the sums of N1,573,277,987.98 due from the Appellants as recommended by the Alkali Panel, and that the issues in the instant suit and the issues in the earlier suit are not the same and not related. The case of Ikine vs. Edjerode (2002) FWLR (pt.92) 1775 was further cited in support of the argument. On whether the earlier case cited is pending or not, counsel argued that the case has been effectually determined and referred to page 343 of the record. On the arbitral proceedings instituted by the 1st Respondent, learned counsel stated that 1st Appellant frustrated the arbitral process in refusing to cooperate with the arbitrator, who now withdrew from the arbitration by letter dated the 5th of March, 2012. He posits that by the letter dated the 5th of March, 2012 at page 523 of the record, should be situated as a termination of proceedings within the meaning of Section 27 (2)(c) of the Arbitration and Conciliation Act Cap A18 LFN 2004.

On the second arbitration referred to by the Appellants’, counsel urged the Court to discountenance any reference to the purported second arbitration as none existed in fact or in law. Also submitting with respect to suit with No. FHC/ABJ/651/2011, learned counsel argued placing reliance on the decision of Ikine vs. Edjerode (supra), that the suit in question having been struck out, the suit can be reinstituted as the striking out is only a temporary measure which can be refiled or relisted. The learned counsel in an attempt at distinguishing the case of Onyeabuchi vs. INEC (supra), submitted that a judicial decision is deemed final when it leaves nothing to be judicially determined or ascertained thereafter, and relied onFadiora vs. Gbadebo (1978) 11 NSCC 121 at 126. He maintained that the ruling of Auta CJ cannot act as a bar or estop the lower Court from reversing itself on the question of jurisdiction in the face of the affidavit evidence citing A & S B Co (Nig) Ltd vs. FCMB Ltd (2013) 10 NWLR (pt. 1363) 501 at 528. He posits that 1st Appellant having shown that it was not ready to arbitrate, the lower Court was right to have assumed jurisdiction on the suit.

On points of law, it was argued that where the principal parties in both suits are the same or where the two suits involve their privies or where the principal defendants are the same, that is enough to constitute an abuse of the process of Court. Also relying on Intercontinental Merchant Bank Ltd vs. Union Bank of Nigeria Ltd (supra), it was contended that where two actions are commenced the second seeking for a relief which could have been obtained in the first action, any second on the issue is vexatious and constitutes an abuse of the Court process. He urged the Court to thereby resolve the issue in favor of the Appellants.

The Appellants’ grouse to my understanding with respect to the instant issue is that the 1st Respondent’s suit filed before the lower Court constituted an abuse of the Court process, when viewed against the earlier suits filed by the 1st Respondent as well as the arbitration proceedings ordered by those Courts. In discerning whether the suit before the lower Court constituted an abuse of the process of Court, calls for the examination of the earlier suits filed, the arbitral proceedings referred to the Court, as well as the vexed suit filed by the 1st Respondent before the lower Court. It needs to be stated from the outset that Courts jealously guard and protect their processes from abuse by litigants. See TSA Ind. Ltd vs. FBN Plc (2012) 14 NWLR (pt. 1320) 326. This is because when the Court comes to the conclusion that its process is being abused or has been abused, it does not hesitate in dismissing the process. Kode vs. Yussuf (2001) 4 NWLR (pt. 703) 392.

​The term abuse of Court process has been defined by the superior Courts to mean the improper use of the legal process. The improper use of the judicial process to the irritation and annoyance of his opponent and the efficient and effectual administration of justice. A process that is wanting in bona fide and therefore frivolous, vexatious and oppressive. See Adeniyi vs. FRN (2012) 1 NWLR (pt. 1281) 284, R. Benkay (Nig) Ltd vs. Cadbury (Nig) Ltd (2012) 9 NWLR (pt. 1306) 596, Okafor vs. AG Anambra State (1991) 6NWLR (pt. 201) 659, Saraki vs. Kotoye (1992) 9 NWLR (pt. 264) 156, Nigeria Intercontinental Merchant Bank Ltd vs. Union Bank of Nigeria Ltd (2004) 12 NWLR (pt. 888) 599 at 624.

For resolution therefore is whether the suit filed by the Respondents before the lower Court in suit with No. FHC/ABJ/CS/475/2014 before A R Mohammed J, an abuse of the process of Court and/or being statute barred. Of necessity, this calls for the examination of the Respondents’ writ of summons, statement of claim as well as the parties in the action vis a vis the claim, reliefs and parties in the earlier decisions being referred to.

The 1st Respondent’s counsel argued that the parties in suit with no. FCT/HC/CV/265/05 and those in the instant case are not the same, and further that the subject matter in the two suits are not the same, for while the earlier suit sought for the protection of the construction site from the exercise by UTB of its right of foreclosure, the subject matter in the instant suit is the enforcement and recovery of the debt of N1,573,277,987.98 (One Billion, Five Hundred Seventy-Three Million, Two Hundred and Seventy-Seven Thousand, Nine Hundred and Eighty-Seven Naira, Ninety-Eight Kobo) due from the Appellants to the 1st Respondents and further that the issues are not the same, and therefore the issue of abuse of Court process unfounded. I have been referred to the decision of the Apex Court in Nigeria Intercontinental Merchant Bank Limited Vs. Union Bank of Nigeria (2004) LPELR-2003 (SC) which held that: –
“It is an abuse of process of Court to institute multiplicity of actions between the same parties over the same subject matter in different Courts. See Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6. Filing an application in a Court co-ordinate jurisdiction seeking a relief which the other Court has given in respect of the same subject matter is also an abuse of the process of the Court. If two actions are commenced, the second asking for relief which may have been obtained in the first, the second action is prima facie vexatious and an abuse of the process of Court. See Williams v. Hunt (1905) 1 KB 512.”
A crisp understanding of the above decision points to the fact that since the two suits referred to could have been conveniently heard and settled before the parties in the same suit, multiplying the suit, amounts to an abuse of Court process.
I am in agreement with the learned Counsel for the Appellants that the concept of abuse of Court process includes but not limited to instituting different actions between the same parties simultaneously in different Courts even though on different grounds. See Odoko Vs. Ogbeikwu (2003) 7 NWLR (pt. 819) 275 at 289 it is enough that the claims touch on or relate to the same subject matter and essentially between the same parties or their privies or that the claim in the subsequent suit could have been made in the earlier suit.

​There is no disputing the salient facts, which are that: –
i. The second arbitration with CHIEF JIM NWAGBARA, FNIQS as the sole arbitrator which was initiated by the 1st Respondent after the judgment/ruling of the lower Court (Coram I.N. Auta, C.J. in suit no. FHC/ABJ/CS/651/2011) and which has not been terminated by order made by the arbitrator as required by law.
ii. Suit no. FCT/HC/CV/265/05 filed at the High Court of the Federal Capital Territory, Abuja by the 1st Respondent to challenge the foreclosure of the contract or project site by the 1st Appellant in favour of the Union Bank of Nigeria Plc. (i.e. the successor Bank to the Universal Trust Bank Ltd. Who granted loan to the 1st Appellant to finance the execution of the building contract). Proceedings in the suit were merely stayed by the High Court of the FCT pending the determination of the arbitration presided over by MR. O. U. IKPA, FNIQS.

The ruling of the High Court of the Federal Capital Territory in suit with no. FCT/HC/CV/265/05 per Goodluck (J) (as he then was) between Sanderton Ventures Ltd. Vs. Abuja Investment & Property Development Co. Ltd. & Anor located at pages 437-453 of the record, confirmed the pendency of the suit with No. FCT/HC/CV/265/05, having stayed the suit before it pending arbitration. Indeed, the Court at pages 445-461 of the record noted that:-
“Learned Counsel for the Plaintiff contended that the issues before the Court arose after the Notice of Arbitration has been delivered, besides, he submitted that this suit involves a non-party to the arbitration agreement. The jurisdiction of the arbitration he argued, was restricted to the issues submitted for arbitration. Again, learned Counsel for the plaintiff seems to be on his own in his arguments. Rather, I am persuaded by the arguments of M.I. Abubakar Esq. that plaintiff’s reference of the N4,000,000,000.00 (Four Billion Naira) claim for damages does not relieve it of its obligations to refer subsequently to arbitration any dispute that may arise after the submission of its damages. I hold that the jurisdiction of the arbitrator extends to all disputes arising out of and in connection with the building contract. Plaintiff can thus not approbate portions of the arbitration agreement and in the same breath reprobate others.
​I am in agreement with both Learned Counsel for 1st and 2nd Defendants that this suit constitutes an abuse of Court process in so far as it raises issues and reliefs which can be entertained at the arbitration Tribunal along with the N4,000,000,000.00 (Four Billion Naira) claim for damages.
I am in agreement with the submission of learned counsel for the 1st defendant that they are effectively two judicial proceedings filed by the plaintiff in respect of the building contract, whilst the arbitration panel is seized with adjudication over the N4,000,000,000.00 (Four Billion Naira) damages claimed against the 1st defendant, this suit is for the nullification of the foreclosure agreement in respect of the same construction site. Though the grounds are not the same, I am persuaded that in the instant case parties and the subject matter are the same. The grounds in both actions can be effectively entertained in the Arbitration Tribunal. In effect, this second suit is prima facie vexatious and an abuse of Court process.
The 1st defendant’s prayer to dismiss or strike out this suit is refused accordingly, application for stay of proceedings pursuant to Section 5 of the Arbitration of (sic) Conciliation Act is hereby granted. This suit will be stayed pending the determination of the arbitration proceedings.”

​Similarly, in suit with no. FHC/ABJ/CS/651/2011 per I. N. Auta C.J., it was held that:-
“The provisions and intentions of the contract are very clear and simple. The parties have willfully agreed to submit any dispute to arbitration and arbitration alone, the use of the word shall mean that arbitration is the mandatory forum for dispute settlement. The Court disagrees with the argument of the plaintiff that because the defendants have not cooperated with the arbitral proceedings that there is no arbitration in existence. It is not in dispute that the 4th defendant indeed filed a reply to the notice of arbitration filed by the plaintiff. This in my opinion means that there is an arbitral proceeding going on. A very paramount question the Court is minded to ask is whether the reliefs sought by the applicant can be entertained by the arbitral tribunal? The answer is in the affirmative. The Court is therefore of the opinion that the jurisdiction of the Court has been ousted by virtue of the Arbitration clause inserted in the contract willfully entered into by the parties. It is trite law that the Court will not read other meanings to a contract willfully entered into by the parties. The Court therefore decline the jurisdiction to entertain this case and therefore strike out this case.”

Mention must also be made of the arbitral proceedings, whose existence was confirmed by the decision of the Federal High Court per Auta CJ, which finding has not been appealed against, and for which no evidence was produced, to back up the contention that the said arbitral proceedings were indeed terminated as the 1st Respondent’s counsel would want this Court to believe. It is trite that pursuant to the provisions of Section 27 of the Arbitration and Conciliation Act Cap A18, Laws of the Federation of Nigeria 2010, arbitral proceedings can be said to have been terminated when the following conditions are established:
“27(1) The arbitral proceedings shall terminate when the final awards is made or when an order of arbitral tribunal is issued under Subsection (2) of this Section.
(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when-
(a) the claimant withdraws his claim, unless the respondent objects thereto and the arbitral tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the dispute; or
(b) the parties agree on the termination of the arbitral proceedings; or
(c) the arbitral tribunal finds that continuation of the arbitral proceedings has for any other reason become unnecessary or impossible.
(3) subject to the provisions of Sections 28 and 29 (2) of this Act, the mandate of the arbitral tribunal shall cease on termination of the arbitral proceedings.”

I agree with the learned counsel for the Appellants that no such award made by any of the arbitrators was tabled before the Court in line with the stipulation of the law, nor can the contention by the 1st Respondent to the effect that 1st Appellant frustrated the arbitration available to the 1st Respondent in view of the finding of the Federal High Court per Auta CJ on the issue. That apart, the learned counsel for the Appellants rightly did contend that the 1st Respondent by their suit filed before the lower Court attempted to relitigate a claim of debt and the issue of jurisdiction by the lower Court already determined by Auta CJ, in its decision in respect of suit No. FHC/ABJ/CS/651/2011. A careful perusal of the claims in the suit filed before the Federal High Court and that filed before the lower Court related to the debt allegedly owed the 1st Respondent by the Appellants. Hitherto, and faced with the question of jurisdiction, Auta CJ, declined jurisdiction on the basis that the clause relating to arbitration constituted a huddle for which the parties must adhere to before approaching or filing any suit. Mr. Abubakar, is therefore correct in asserting that the said holding not having been appealed on constituted an issue estoppel on the issue of jurisdiction for which the lower Court being a Court of coordinate jurisdiction is precluded from re-opening the issue. The decision of Ayoola, JSC in the case of Onyeabuchi vs. INEC (supra) is most apposite:
“When once it is made clear that the self-same question is substantially in issue in two suits, the precise form in which either suit is brought, or the fact that the plaintiff in one in the one case was the defendant in the other is immaterial, the estoppel subsists between the parties”
​The Apex Court in the case above mentioned, put the nail on the coffin having stated that:
“It is an abuse of the process of Court for the plaintiff to litigate again over an identical question which has already been decided against him”
The learned counsel for the Appellants is therefore on sound footing in his complaint that the suit before the lower Court was in flagrant abuse of the process of Court, considering the avalanche of abuses, and the lower Court obviously erred in not upholding the objection raised on the ground of the abuse of Court process, and thereby dismissing the same. For as held in the cases of Arubo vs. Aiyeleru (supra), Kode vs. Yussuf (supra) and African Reinsurance Corporation vs. JDP Construction Nigeria Ltd (2003) 13 NWLR (pt. 838) 609 @ 636, where the Court comes to the conclusion that its process is abused or in the process of being abused, the proper order to make is that of the dismissal of the process. I wholly agree with the Appellants’ counsel that the suit filed by the 1st Respondent before the lower Court was for all the above reasons, an abuse of the process of Court and thereby liable to be dismissed. This issue is hereby resolved in favor of the Appellants.

​Issue Two
Whether in the circumstance of this case, the lower Court had the jurisdiction or was right to make the orders referring or directing the parties, particularly the 1st Respondent and 1st Appellant to arbitration for stay of proceedings pending arbitration.
M.I. Abubakar, the learned counsel for the Appellants while urging the Court to answer the issue raised in the negative and in favor of the Appellants, enumerated five reasons why the lower Court lacked the jurisdiction to have made the orders made in its ruling of the 28th of April, 2017 firstly, counsel argued that in view of the decision of Auta CJ in the earlier suit of FHC/ABJ/CS/651/2011, to the effect that it had no jurisdiction to entertain the suit, the lower Court had become functus officio. That by assuming jurisdiction and thereby making the orders under challenge, the lower Court constituted itself into an appellate Court. That none of the parties asked for the orders made. That the orders were made on the wrong assumption that the earlier Court per Auta CJ, had referred the parties especially the 1st Appellant and the 1st Respondent to arbitration, and lastly, that the arbitration the Court referred to or directed the parties to was already statute barred.

In response, learned counsel for the 1st Respondent drew the Court’s attention to the fact that it had filed a cross-appeal with regards to the order of the lower Court staying proceedings pending arbitration, and argued that Appellants’ submission made relying on Section 7(1) of the Limitation Act of the FCT Cap 522 Laws of the FCT 2007 and the case of Murmansk State Steamship Line vs. Kano Oil Millers Ltd (1974) NSCC 590 can not avail the Appellants’ being that it was the Appellants that refused to participate in the arbitration. He argued that by the holding of the Supreme Court in the case just cited, the limitation time would start to run after an award is made. He contended that the arbitration clause in the contract in the suit is not a Scot vs. Avery clause and the 1st Respondent having refused to participate in the arbitral proceedings despite the 1st Respondent’s efforts in initiating same, the arbitration cannot be statute barred until an award is made. The case of Nwakhoba vs. Dumez Nig Ltd (2003) FWLR (pt. 179) 1188 @ 1203 was called in aid of the contention. Learned counsel maintained that the provisions of Section 7(1) of the Limitation Act of the FCT will be inapplicable because it was the Appellants’ that made it impossible for arbitration to take place, and the further cases of Abacha vs. Spiff (2009) 5SCNJ 119 at 140, and Nigerian Army vs. Yakubu (2013) ALL FWLR (pt. 677) 592 at 604 were relied upon. The Appellants responded to the 1st Respondent’s submissions on points of law, which response on the issue can be found at pages 10-12 of the Appellants’ reply brief, to which I will refer to in the resolution of the issue.

It seems settled having been conceded that the lower Court had no power or jurisdiction making orders direction the parties to stay action and/or to proceed to arbitration. It is trite as contended that a Court that has no jurisdiction, can only open its mouth to say it has no jurisdiction. It cannot make any other order not even that of transfer. This much was stated inAjomale vs. Yaduat (No.1) 1991 5SCNJ 192, also reported as (1991) LPELR-305 (SC) per Karibi-Whyte:
“where a Court has no jurisdiction with respect to a matter before it, the judicial basis for the exercise of any power with respect to such matter is also absent”
See also Okwuosa vs. Gomwalk & Ors (2017) LPELR-41736 (SC) per Eko JSC.

It follows therefore that the Federal High Court per Auta CJ, having held that it lacked the necessary jurisdiction to entertain the matter before it owing to the presence of the arbitration clause, the lower Court being a Court of coordinate jurisdiction cannot sit on appeal over that decision, and remains ultimately bound until set aside. In any case as rightly conceded, none of the parties asked for the prayers/orders granted by the lower Court. All that the Appellants asked for was an order for the dismissal of the case, which the lower Court failed to do, rather opting to act the father Christmas. It is obvious from ruling of the lower Court that he was swayed by the arguments of the Appellants herein, but chose to or rather misconceived his role in the situation, and thereby of the mistaken belief that the Court before him having ordered for arbitral proceedings, the orders granted were to give vent to that decision. Arguments were also made on whether the order for arbitral proceedings was statute barred. My simple answer to the question is that, the lower Court having been devoid of the requisite jurisdiction to entertain the matter before it, all orders and or decisions made including the issue of whether the arbitration proceedings ordered was statute barred or not is of no moment. This issue is also resolved in favor of the Appellants.

Issue Three
Whether the suit is statute barred and whether, in view of the finding of the lower Court that the dispute in the suit was subject to arbitration and its order referring or directing the parties to arbitration, it was right for the lower Court to have assumed jurisdiction and determine the said issue of statute bar.
It is the contention of learned counsel that the issue seeks to interrogate the correctness or otherwise of the holding of the lower Court that the suit is not statute barred and the propriety of the lower Court assuming jurisdiction to determine the issue of statute bar. He submitted that in the circumstance of the case, especially in the face of the finding by the lower Court that the suit was subject to arbitration, the lower Court had no jurisdiction to determine the issue of status bar or to make any pronouncement on it by virtue of Section 34 of the Arbitration and Conciliation Act. In conclusion, it was submitted that the suit as constituted is statute barred and the lower Court was wrong to have stated otherwise.

Responding to the issue, learned counsel for the 1st Respondent referred the Court to the statement of claim in the determination of when a cause of action can be said to have accrued. GOC vs. Adio (1995) 2 NWLR (pt. 379) 510 at 587, Statoil (Nig) Ltd vs. Inducon (Nig) Ltd (2014) 9 NWLR (pt. 1411) 43 at 84. He contended that the suit of the 1st Respondent is not based on the contract between the parties, but predicated on, and being an action seeking to enforce the 2006 report of the Technical Panel on the review of the report of the Ministerial Committee (Alkali Panel) on the way forward on the construction of the 832-unit Kubwa Housing Project, which recommended the payment of the sums of N1,573,277,987.98 to the 1st Respondent by the 1st Appellant herein. He urged the Court to take note that after the submission of the report, the principals of the parties exchanged correspondences on the matter, and therefore the cause of action did arise on the 8th of August, 2008, when by a letter dated on the same date and addressed to the 2nd Appellant by the Secretary to the Government of the Federation acknowledged the indebtedness of the 1st-3rd Appellants to the 1st Respondent. He argued that the acknowledgment of the presidency binds all the Appellants for reasons stated. With respect to the propriety of the lower Court determining the question of statute bar, learned counsel argued that the pronouncement by the lower Court in no way prejudiced the Respondents’ cause of action nor did it prejudice the jurisdiction or power of the arbitrator. He argued further that Appellants failed to demonstrate how the decision occasioned any miscarriage of justice to the Appellants.

Replying on points of law, learned counsel for the Appellants argued that the lower Court had no jurisdiction to have intervened and to make a determination or pronouncement on the issue of statute bar relative to the arbitral proceedings. Counsel also argued that contrary to the submission made by the 1st Respondent, the power of an arbitral tribunal to entertain objections to its jurisdiction is governed by the provisions of Section 12 of the Arbitration and Conciliation Act, and finally that the cause of action in the matter expired in November 2012 by virtue of Section 7(1) of the Limitation Act.

Having resolved issue one in favor of the Appellants to the effect that the suit before the lower Court constituted an abuse of the process of this Court, and thereby ousted the jurisdiction of the Court, and having also resolved issue two herein also in favor of the Appellants to the effect that the lower Court which had no jurisdiction in the first place, was not in a position to make any orders, this Court is likewise not in a position to resolve the question whether the suit of the 1st Respondent is status barred or not. It should be borne in mind that even though a Court has the right to make consequential orders whether sought for or not in giving vent to its decision, that right flows from a rightful decision made. In the case at hand, neither the Federal High Court per Auta CJ, which struck out the suit for want of jurisdiction can be said to have ordered the parties to proceed to arbitration, nor was the issue properly before the lower Court. I maintain that all the lower Court was expected and empowered to do to the suit filed before it, which was an abuse of Court process, and which deprived the lower Court of the jurisdiction to entertain the suit, was to order for the dismissal of the suit filed before it and no more.

In any case, the resolution of whether the suit is statute barred or not can only be resolved by the arbitration panel by virtue of Section 12 of the Arbitration and Conciliation Act. However, tempting the arguments on the issue are, it is not for this Court to step in and to pronounce on same. In the same vein, the lower Court being devoid of jurisdiction, similarly affected the jurisdiction of this Court and cannot in the circumstance invoke the provision of Section 15 of the Court of Appeal Act and thereby transfer the suit to the FCT High Court. This issue is also resolved in favor of the Appellants.

Hence all the issues having been resolved in favor of the Appellants, the irresistible conclusion is that the appeal is meritorious and deserving of being allowed. In consequence therefore, I hereby allow the appeal, set aside the decision of A.R. Mohammed in suit with No. FHC/ABJ/CS/475/14 delivered on the 28th day of April, 2017. In its place, I hereby enter an order of dismissal of the suit. I also order that the 1st Respondent pays costs of N200,000.00 to the Respondents.

STEPHEN JONAH ADAH, J.C.A.: I read in draft, the judgment just delivered by my learned brother, Hamma Akawu Barka, JCA.

I have seen that the issues raised in this appeal have been adequately addressed by my learned brother. I am in full agreement with the reasoning and the conclusion which I adopt as mine. I also, for the same reasons hold that the appeal has merit. I allow the appeal and I abide by the consequential orders inclusive of order as to costs as made in the lead Judgment.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I had the privilege of reading in draft, the leading judgment just delivered by my learned brother, Hamma Akawu Barka, JCA. The manner in which the preliminary objection and the substantive appeal were resolved in the leading judgment are in accord with my views. I only wish to say a few words on the perjuring misconception that an appeal against an interlocutory decision can only lie from the decision of the High Court to this Court with the leave of Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Section 241 (1) (b) of the 1999 Constitution as amended stipulates as follows:
“(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings”
An interlocutory decision can be made in any civil or criminal proceedings; so provided the ground of appeal against such an interlocutory decision is on questions of law alone, an appeal will lie as of right by virtue of the provisions of Section 241 (1) (b) of the 1999 Constitution as amended.
Now, it is often a very thin line that separates a ground of law only from a ground of mixed law and facts. Happily, the apex Court has laid down the marker on how to ascertain whether a ground of appeal is of law alone, of fact or of mixed law and fact. In the words of Eso, JSC in OGBECHIE vs. ONOCHIE (1986) LPELR (2278) 1 at 8:
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”
Equally, in giving the classification of a ground of appeal in FIRST BANK OF NIGERIA PLC vs. T. S. A. INDUSTRIES LTD (2010) LPELR (1283) 1 at 55. 56, Adekeye, JSC stated as follows:
“The important yardstick for the classification of a ground of appeal is not in form of the question it raises but for instance-
(a) Where the grounds of appeal shows that the trial Court or appellate Court misunderstood the law or misapplied the law to the fact, it is certainly a ground of law.
(b) Where the ground suggests an invitation to the Court where an appeal is lodged to investigate the existence or otherwise of certain facts made by the trial Court or where the evaluation of the evidence tendered is exclusively challenged, it is a ground of fact or at best a ground of mixed law and fact.
(c) Where the question which the Court is bound to answer in accordance with a rule of law arises out of statutory provisions and interpretation of documents, it is a ground of law.
(d) Where the question is one that will require questioning the evaluation of facts by the trial Court before application of the law, it is a ground of mixed law and fact.
(e) Where the ground of appeal questions the exercise of discretion by a trial Court, it is undoubtedly not a ground of law but at best a ground of mixed law and facts because the manner in which a Court ought to exercise its discretion in a particular case is a question of fact depending on facts and circumstances of each case.
(f) Whether or not discretion is exercised judicially and judiciously or arbitrarily in any particular case is a question of mixed law and fact.
(g) A ground of appeal complaining of failure of the Court to discharge its duty of considering and pronouncing on the issues raised before it is a question of law.
(h) A ground of appeal which is a complaint of the misapplication of correctly stated principles of law to the facts of a case is a ground of law alone.
See also OLABOMI vs. OYEWINLE (2013) LPELR (20969) 1 at 11-12. With this marker as a lodestar, I have closely examined the grounds of appeal and I am allegiant to the conclusion in the leading judgment that the grounds of appeal are grounds of law alone and that the Appellant was right to appeal as of right against the decision of the lower Court on the said grounds.

​It is predicated on the foregoing and the more elaborate reasoning and conclusion articulated in the leading judgment, which I adopt as mine, that I equally join in allowing the appeal and on the same terms as set out in the leading judgment.

Appearances:

M.I. Abubakar, with him, Eucharia Ezeani For Appellant(s)

B.O. Akinseye-George (Mrs), with him, O. Okeke – for 1st Respondent

Ikeme Ekwere-Bello (ACSC) FMOJ, with him, O.A. Halliday (SC) – for 2nd Respondent For Respondent(s)