MOBIL PRODUCING NIGERIA UNLIMITED v. SUFFOLK PETROLEUM SERVICES LIMITED
(2016)LCN/8221(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of February, 2016
CA/PH/667/2013
RATIO
COURT: JURISDICTION; WHAT IS MATERIAL AND RELEVANT FOR THE CONSIDERATION WHETHER THE TRIAL COURT HAS THE REQUISITE JURISDICTION TO ENTERTAIN THE CLAIMS OF THE PLAINTIFF
The cardinal principle, which is indisputable, is that it is the plaintiff’s claim, as disclosed from the endorsement on the writ of summons and/or the statement of claim, that is material and relevant for the consideration whether the trial Court has the requisite jurisdiction in law to entertain the claims of the plaintiff. See MUSTAPHA V. GOVERNOR, LAGOS STATE (1987) 2 NWLR [pt.58] 539; TUKUR V. GOVERNMENT, GONGOLA STATE (1989) 4 NWLR [pt.117] 517 at 549; NIGERIA AGIP OIL CO. LTD V. CHIEF M. WILLIAM KEMMER (2001) 8 NWLR [pt.716] 506; O.H.M.B. V. GARBA (2002) 14 NWLR [pt.788] 538; ONUORAH V K.R.P.C LTD 2005) 6 NWLR [PT.921] 393; MINISTER OF WORKS & HOUSING V. SHITTU (2008) ALL FWLR [pt.401] 847 at 864. per. EJEMBI EKO, J.C.A.
COURT: JURISDICTION; THE EFFECT OF A COURT OF RECORD ASSUMING AND EXERCISING JURISDICTION OVER A MATTER IT HAS NO JURISDICTION TO ENTERTAIN
The effect of a Court of record assuming and exercising jurisdiction over a matter it is has no jurisdiction to entertain is that it acted ultra vires its jurisdiction and its proceedings and decision or order, no matter how well conducted and considered, are all null and void. See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341. The law is well settled that the question of jurisdiction strikes at the root of any cause or matter and thus raises the issue of the competence of the Court to adjudicate in the particular proceedings. The defect in competence is so fatal, I repeat, that it renders the proceedings a nullity and decided the proceedings had been. See ADETAYO & ORS V. ADEMOLA (2010) 15 NWLR [pt.1215] 169. per. EJEMBI EKO, J.C.A.
PRACTICE AND PROCEDURE: GAGGING SUIT; WHEN IS A SUIT SAID TO BE A GAGGING SUIT
The suit was commenced mala fide and it is a gagging suit. In R V. DAILY MAIL (EDITOR), EX PARTE FACTOR (1928) 44 TLR 303 Lord Reid of England had said that a gagging suit is one filed to prevent or suppress the right of speech. It was conceived then that once a matter is subjudice citizens no longer have the right to freely and a in public comment on the subject of the suit. Accordingly a suit filed to attain that purpose only was held to be a gagging suit. Lord Denning, MR, in WALLER STEINER V. MOIR (1974) 3 ALL E.R. 217, had stated that any suit filed to prevent or suppress the exercise of a legitimate and lawful right of free speech and discussions of any matter in the interest of the public is a gagging suit which is an abuse of the Court process. The law is emphatic, the law Lord held, that the issuance of a writ should not used to muzzle the exercise of another right. On these authorities I had held in ORJI UZOR KALU V. FRN (2012 LPELR – 9287 (CA) that a suit filed, ostensibly, to prevent or suppress the exercise of a right vested by law is a gagging suit and an abuse of the judicial process of the Court. Such suit does the administration of justice no good, but a corruption of it. This is exactly what the respondent herein, as the plaintiff, had done. This much was admitted in the Respondent’s brief in the passage I had reproduced above. I agree with Mrs. Essien, SAN that the conception and the filing of this suit were all done mala fide and in the perversive abuse of Court process. per. EJEMBI EKO, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
BITRUS G. SANGA Justice of The Court of Appeal of Nigeria
Between
MOBIL PRODUCING NIGERIA UNLIMITED Appellant(s)
AND
SUFFOLK PETROLEUM SERVICES LIMITED Respondent(s)
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): On 14th August, 2013 the respondent, as the plaintiff, commenced the suit no FHC/PH/C/S/203/2013, that is now the subject of this appeal. In the suit the respondent sought a number of declarations and injunctive orders to restrain the appellant “from howsoever proceeding or further proceeding with the proposed arbitration billed to take place in London, United Kingdom, under contract No A2246515 for the MIPS Project”. The said arbitration proceeding was commenced on 26th October, 2011 by the appellant pursuant to Article 30 of the said contract No A2246515 between the appellant and the respondent. The contract was for installation of major pipeline projects EPCM -1 Offshore Pipeline and Platform Tie-Ins. The parties to the contract are in dispute over some terms or aspects of the contract, particularly as regards the issue of the alleged breach of the Recovery Plan Heads of Agreement. The respondent alleged that the appellant refused to issue the compensatory scope of work to the respondent as agreed. The appellant and the respondent could not amicably resolve their dispute through “good faith negotiations”. By
letter dated 20″ October, 2011 the appellant wrote to the respondent that she “has decided to refer the on-going dispute to Arbitration under Article 30 [Governing Law and Dispute Resolution] of the said contract No A2246515.
It is common ground to all the parties herein that the appellant, bent on proceeding in the arbitration, appointed an arbitrator, one Dr. Robert Gaitskell, QC. On her part the respondent insisted that it would not participate in the arbitral proceedings on the grounds “that the conditions precedent thereto as enshrined in the contract agreement have not been met”. Thereafter, the appellant proceeded to write the Acting Secretary General of the Permanent Court of Arbitration at the Hague to constitute an appointing authority that will appoint an arbitrator for the Plaintiff/Respondent.
In what appears to be the ulterior motive for commencing this suit, the respondent in Paragraph 2.14 in the Respondent’s Brief says –
2.14: when it became clear that the Appellant was committed to going to the arbitration even though the conditions precedent to the invocation of the arbitration clause as contained in Article 30.2 of the Contract Agreement have
not been complied with, the Respondent was constrained to institute the suit which gave rise to this appeal by way of originating summons filed on 14th August, 2013 against the Appellant and its party-appointed arbitrator, Dr. Robert Gaitskell, QC in order for the Court below to interpret the contract Agreement viz-a-viz the conduct of the parties and ascertain whether or not the provisions of the said Article 30.2 have been complied with.
As it appears the suit was, in the first place, conceived and filed as a “gagging suit”. I will later to the point.
This is the convenient point to reproduce the provisions of Article 30.0 of the MIPS contract No A2246515, and it is herein below reproduced as follows:
“GOVERNING LAW AND DISPUTE RESOLUTION
30.1 The validity, interpretation and construction of SUBCONTRACT shall be governed by and construed in accordance with laws of the Federal Republic of Nigeria, without reference to its principles of conflict of law rules and expressly excluding the UN Convention on Contracts for the International Sale of Goods.
30.2 The parties shall use reasonable efforts to resolve all disputes arising out or relating to this SUB CONTRACT
through good faith negotiations. If negotiation within the PROJECT team fails to resolve the dispute, then each party shall nominate a senior representatives of its management to meet at any mutually agreed location to resolve the dispute. If such negotiation do not result in mutually acceptable resolution, the dispute shall be handled in accordance with article 30.3.
?30.3 Any dispute arising out of, or in connection with this subcontract which is not resolved in accordance with Article 30.2 shall be finally settled by arbitration under the rules of the United Nations Commission on International Trade Law (UNCITRAL), by three (3) arbitrators. Within thirty (30) days following receipt by a party of written notice that the other party has commenced arbitration, each party shall appoint an arbitrator. The arbitrators thus appointed shall within a further thirty (30) days appoint a third arbitrator. If within the time limits specified above, either the arbitrators appointed by the parties do not agree on the appointment of such third arbitrator, or the parties fail to appoint the arbitrators to be appointed by them, then the Secretary General of the Permanent Court
of Arbitration at the Hague shall select an appointing authority pursuant to a written request of any party involved in the dispute for the appointment of such arbitrator or arbitrators (notice of the request having been duly given in writing by the applicant party to the other party or parties. The arbitration shall take place in London, England and the language of the arbitration shall be English. The arbitrators shall take into account principles of legal privileges, such as those involving the confidentiality of communications between a lawyer and a client. The parties waive any right to seek rulings from any Court on issues of LAW THAT ARISE DURING THE ARBITRATION AND TO CHALLENGE THE AWARD ON THE GROUNDS THAT THE ARBITRATORS MADE ERRORS OF LAW. Judgment upon the award may be entered in any Court of competent jurisdiction. The arbitrators shall render any monetary award, including all reasonable costs of arbitration in U.S. Dollars. The parties waive any right to punitive or other exemplary damages allowable by common law or statute”. [See 121 of the Records] [Underlining supplied for emphasis]
?The originating summons taken out on 14th August, 2013 had
posed the following questions and sought the following reliefs; that is
LET MOBIL PRODUCING NIGERIA UNLIMITED and DR. ROBERTY GAITSKELL C/O of Mobil House, Lekki Expressway, Victoria Island, Lagos within Thirty (30) days after the service of this summons on it, inclusive of the day of such service, cause an appearance to be entered for it to this summons which was issued upon application of SUFFOLK PETROLEUM SERVICES LIMITED of Adamac House, Plot 20, East-West Road, Port Harcourt, Rivers State who claims to be aggrieved by the failure, neglect and/or refusal of the 1st Defendant to comply with conditions precedent to the invocation of the arbitration clause in contract No A2246515 for the Major Integrity Pipelines Project EPCM-1 Offshore Pipeline and Platform Tie-Ins and resorting to arbitration having waived same in two earlier suits arising out of the same contract. The plaintiff being dissatisfied with the conduct of the Defendants in prematurely resorting to arbitration in view of the provisions of the Contract Agreement brings this summons for the determination of the following questions, that is to say:
? 1. Under and by virtue of the provisions of Article
30.2 of the Contract Agreement for Contract No A2246515 for the Major Integrity Pipelines Project EPCM-1 Offshore Pipeline and Platform Tie-Ins (MIPS) awarded by the 1st Defendant to the plaintiff, have the 1st Defendant and the Plaintiff exhausted alternative dispute resolution mechanism through good faith negotiations which is a condition precedent to the invocation of the arbitration clause contained in Article 30.3 before the 1st Defendant resorted to arbitration.?
2. Under and by virtue of the provisions of Article 30.2 of the aforesaid Contract No A2246515 for the MIPS Project awarded by the 1st Defendant to the plaintiff, is the recourse to arbitration by the 1st Defendant without first complying with the conditions precedent thereto not premature, wrongful and unjustifiable?
3. Having failed, refused and/or neglected to invoke the arbitration clause under the same Contract No A2246515 for the MIPS Project in two earlier lawsuits – suit Nos. FHC/PH/CS/146/2010 and FHC/PH/CS/561/2010 – has the 1st Defendant not repudiated and therefore waived its right to go to arbitration for the settlement of disputes arising out of the said contract?
?If the answer to
No.1 above is to the effect that the parties to Contract No A2246515 for the Major Integrity Pipelines Project EPCM-1 Offshore Pipeline and Platform Tie -Ins have not exhausted the conditions precedent to the invocation of the arbitration clause as provided for in the Contract Agreement, then the plaintiff urges the Court to answer Nos. 2 and 3 above in the affirmative and claims a DECLARATION that the 1st Defendant is bound to comply with and exhaust the provisions of Article 30.2 of Contract No A2246515 for the MIPS Project for good faith negotiations between the parties thereto as a condition precedent to the invocation of the arbitration clause contained in Article 30.3 of the said Contract Agreement.
Further, if the answer to the question 1 is in the negative and the answer to questions 2 and 3 in the affirmative, then the plaintiff seeks:
?1. A declaration that the issuance of a Notice of Arbitration by the 1st Defendant to the plaintiff over the dispute between the two parties in the course of the execution of Contract No A2246515 for the MIPS Project awarded by the 1st Defendant to the plaintiff without first complying with the conditions precedent
thereto is premature, wrongful and unjustifiable and amounts to a breach of Article 30.2 of the said contract No A2246515.
2. A declaration that having failed to invoke the application of the provisions for arbitration as contained in Article 30.3 of Contract No A2246515 for the MIPS Project awarded by the 1st Defendant to the Plaintiff in two earlier lawsuits between the Plaintiff herein and the 1st Defendant in the course of the execution of the same Contract No A2246515, that is to say, suit Nos. FHC/PH/CS/146/2010 and FHC/PH/CS/561/2010, the 1st Defendant has repudiated and waived its right to go to arbitration under the contract.
3. A declaration that the purported appointment of the 2nd Defendant by the 1st Defendant as its party-appointed Arbitrator in pursuit of the arbitral proceedings slated to take place in London, United Kingdom is wrongful and amounts to a breach of the aforesaid Contract No A2246515 for the MIPS project between the said 1st Defendant and Plaintiff.
?4. An injunction to restrain the Defendants by themselves, servants, agents, privies, workmen and/or collaborators from howsoever proceeding or further proceeding with the proposed
arbitration billed to take place in London, United Kingdom under Contract No A2246515 for the MIPS Project
?5. Any further order or other orders that the Honourable Court may deem fit to make in the circumstances of this application”.
The suit, on the originating summons, was commenced at the Federal High Court, sitting at Port Harcourt. On the same issue of the alleged breach of contract No A2246515 the respondent, as the Plaintiff, in the same Federal High Court and between the same parties, had instituted and was maintaining three suits; to wit: Nos: FHC/PH/CS/623/2011; FHC/PH/CS/644/2011 and the instant suit No FHC/PH/CS/203/2012. The suit no FHC/PH/CS/644/2011 sought orders prohibiting the arbitration proceedings.
Hon. Justice Lambo Akanbi of the Federal High Court, Port Harcourt had heard suit no FHC/PH/CS/644/2011 and ruled upon the appellant’s preliminary objection that the Federal High Court had no jurisdiction in the matter and that the Court could not prohibit arbitration, and further that the proper place to vent any lack of conditions precedent for the invocation of the arbitration clause was the arbitral tribunal. The suit no FHC/PH/CS/644/2011 was
struck out on 29th February, 2012. The respondent appealed the said decision and orders delivered on 29th February, 2012. And as admitted in Paragraph 2.13 of the Respondent’s Brief; the Respondent subsequently withdrew the appeal. This, in effect, means that the decision and orders made by Akanbi, J on 29th February, 2012 in the suit No FHC/PH/CS/644/2011 remain extant and binding on the parties thereto, some of whom are also the parties in the subsequent suit no FHC/PH/CS/203/2012 and this appeal.
?At the trial Federal High Court the appellant had raised and argued, as preliminary objection, the issue whether: The instant suit was not barred by issue estoppel by virtue of the ruling of the Federal High Court in suit no FHC/PH/CS/644/2011 which struck out the suit seeking prohibition of the arbitration. This question or point is very central in the appellant’s issue No 4 raised and argued in the Appellant’s Brief, filed on 31st October, 2013.The parties herein were parties in the suit no FHC/PH/CS/644/2011 in which, upon a preliminary objection duly argued, it was held authoritatively by Federal High Court (Coram: Lambo Akanbi, J) sustaining the objection, on
29th February, 2012 as follows: –
Learned counsel for the plaintiff has also submitted that the arbitral proceedings is initiated in bad faith and to that extent it (the arbitral tribunal) has no jurisdiction to entertain the dispute submitted for arbitration hence the need to promptly approach this Court [the Federal High Court, Port Harcourt] to ventilate their grievance. They have indeed so promptly acted. But the question is where should such jurisdictional issue be canvassed? Section 12 (3) of the Arbitration And Conciliation Act governs the issue of jurisdiction in arbitral proceedings. That should be a matter for the arbitral tribunal to hear and determine any dispute raised before it within the time stipulated in the Act. That can only be raised at the arbitral tribunal when the arbitral proceedings commence in the tribunal. See NNPC V. KLIFCO LTD (2011) 10 NWLR [pt.11255] 209.
The same issue of the resort to the arbitration being premature and incompetent for proper invocation of the jurisdiction of the arbitral tribunal remains the core issue in this suit. Section 12 (1) of the Arbitration and Conciliation Act is clear and unambiguous that an arbitral
tribunal is competent to rule on questions pertaining to its own jurisdiction and on any objections, including the prematurity of the invocation of its jurisdiction. By Sub Section (3) of Section 3 of the same Act all pleas pertaining to the jurisdiction of the arbitral tribunal to entertain any arbitration are not only within the jurisdiction of the arbitral tribunal they are, or can be, raised and determined in any arbitral proceedings.
?The authoritative declaration by Akanbi, J on 29th February, 2012 that the proper forum to raise the issue whether the arbitral tribunal’s jurisdiction under the Contract Agreement No A2246515 had been properly or competently invoked is the arbitral tribunal remains extant and binding on the respondent until set aside. See Section 168 (1) of the Evidence Act, 2011 by which such presumption enures in its favour, and also ROSSEK V. A.C.B. (1993) 10 SCNJ20 where the full Court of the Supreme Court, per Ogundare, JSC declared that –
A judgment remains binding until it is set aside by a competent Court: HODKINSON V. HODKINSON (1952) page 285, 288, (1952) 2 ALL ER567, 569. To hold otherwise is to clothe a party against whom a
judgment has been obtained with the discretion to decide, in his wisdom, that the judgment is invalid and not binding on him.
The decision of Akanbi J in suit no FHC/PH/CS/644/2011 on 29th February, 2012 up holding the present appellant’s objection to the jurisdiction of the Federal High Court in that case, and holding that “the issue whether the arbitration clause in the Contract No A2246515 had been properly invoked such that the arbitral tribunal could competently exercise its jurisdiction to decide whether it had jurisdiction to entertain the dispute submitted to it for arbitration is a matter for the arbitral tribunal to hear and determine” is a binding decision that has not been set aside. The appeal against the decision was withdrawn and dismissed. That decision on the jurisdiction of the arbitral tribunal to decide whether it has jurisdiction to hear and determine the dispute submitted to it upon the appellant’s invocation of the arbitration clause remains valid, subsisting and binding having not been set aside. See AKERE V. GOVERNOR, OYO STATE (2012 50 NSCQR 345 AT 41 – 415; LSBPC V. PURIFICATION TECH LTD (2012) 52.1 NSCQR 274 at 309.
Section 12 (1) – (4) of the Arbitration and Conciliation Act provide instances where an arbitral agreement, or the jurisdiction of an arbitral tribunal could be challenged by the party to the agreement, such as the contract No A2246515 and/or Article 30 therein. As this Court had stated in STATOIL (NIG) LTD & ANOR V. F.I.R.S. & ANOR (2014) LPELR – 23144 (CA), Section 12 (3) – (4) of the Act are an authority that the plea of lack of jurisdiction can be raised by any party to the agreement in the course of the arbitral proceedings. This decision also affirms the premise Akanbi, J stood in his decision of 29th February, 2012.
Mrs. Essien, SAN has submitted, correctly in my view, that the decision of the Federal High Court (Akanbi, J) in the suit no FHC/PH/CS/644/2011 in which the appellant and the respondent were both parties raises issue estoppel if not estoppel per rem judicatam, which in effect operates to estop the respondent from subsequently re-litigating on the same issue against the appellant herein. See IKOTUN V. OYEKANMI (2008) 10 NWLR [pt.1094] 100 at 115 – 116; BWACHA V. IKENYA (2011) 3 NWLR [pt.1235] 610.
The issues in the suits nos FHC/PH/CS/644/2011 and the
instant suit FHC/PH/CS/203/2012 are substantially the same. The major parties in the two suits are the same. As observed by Mrs. Essien, SAN “the questions for determination and the reliefs sought” in both suits are virtually in pari materia. Re-litigating an issue already decided by a Court, correctly or wrongly, is a specie of abuse of judicial process. See IKOTUN V. OYEKANMI (supra).
The decision of Akanbi, J had declared authoritatively that the proper forum to challenge the jurisdiction of the arbitral tribunal under the contract tribunal under the Contract No A2246515 is the arbitral tribunal. And that is the decision, the 3 declaratory reliefs sought in the instant suit seek to rescind or contradict. The prohibition or prevention of the arbitration proceedings initiated is the main target of the injunctive restraining order sought in Relief 4.
?I have read the Respondent’s Brief filed on 16th April, 2015. It is submitted therein that the suit no FHC/PH/CS/644/2011 and the instant suit no FHC/PH/CS/203/2013 are different in content as well as the reliefs. Mr. Wanogho for the respondent submits, in the Respondent’s Brief, that suit no FHC/PH/CS/644/2011 and
the present suit are not the same, and that while the suit no FHC/PH/CS/644/2011 sought an order prohibiting the convening of the proceedings of the arbitral tribunal initiated by the appellant, the suit no FHC/PH/CS/203/2013 seeks declarations inter alia that the arbitral proceedings purportedly initiated by the appellant was premature and incompetent, the conditions precedent for the commencement of the convening of the arbitral tribunal and the commencement of the arbitral proceedings having not been fulfilled. Counsel is merely being seductive and semantic. It is in respect of the Contract No A2246515, and particularly the interpretation of Article 30 thereof, that Akanbi, J in the suit no FHC/PH/CS/644/2011 on 29th February, 2012 declared that the proper forum to raise this jurisdictional issue is the arbitral tribunal when it commences its proceedings. Another Judge of the same Federal High Court can not constitute himself an appellate Judge and confer on himself appellate jurisdiction over that decision. On that jurisdictional issue the Federal High Court had become functus officio. As Wali, JSC had put it in JOHN ANDY SONS & CO LTD V. NATIONAL
CEREALS RESEARCH INSTITUTE (1997) 3NWLR [pt.491] 1, once an issue or issues have been raised and determined by the Court between the litigating parties, the Court becomes functus officio to either direct or allow the parties to re-open the same issues before it for re-litigation. See also NNAJIOFOR V. UKONU (1985) 2 NWLR [pt.9] 686.
Mr. Wanogho of counsel had also submitted that the decision of Akanbi, J touted as constituting issue estoppel was a mere obiter dictum. According to Blacks Law Dictionary, 9th ed., obiter dictum is just merely “something said in passing” in the judgment or judicial decision that is not directly upon the question put before the Court for its decision. By this definition I am not persuaded by Mr. Wanogho that the decision of Akanbi, J on 29th February, 2012 upon a preliminary objection raised in the suit no FHC/PH/CS/644/2011was a mere obiter dictum. Rather, it was the ratio decidendi for upholding or sustaining the objection to the jurisdiction of the Federal High Court in view of the arbitration clause in the Contract No A2246515.
Next, Mr. Wanogho had unconvincingly argued that the striking out of the suit no FHC/PH/CS/644/2011 on
29th February, 2012, upon the successful preliminary objection of the defendant therein (now the respondent herein) does not prevent this subsequent action being brought between the same parties over the same subject matter, as the order striking out the suit is dissimilar to an order dismissing the suit. The case:N.D.I.C. V. OKEKE (2011) 6 NWLR [pt.1244] 445 at 462 – 463 (CA) is not, and can not be, a general authority that the effect of the order striking out a suit is merely to remove the case from the Court’s cause list, and that the same suit could be brought back, either by re-listing it on the cause list or re-filing a fresh suit. It may be an authority for the peculiar circumstances of that suit in which the suit was struck out for want of diligent prosecution before hearing on merits commenced. The order made by Akanbi, J striking out the suit no FHC/PH/CS/644/2011 upon successful preliminary objection does not fall within the peculiar situation in NDIC V. OKEKE (supra). In the instant case, Contract No A2246515 is the issue in suit no FHC/PH/CS/644/2011 and the present suit no FHC/PH/CS/203/2012. In sustaining the preliminary objection and
consequently striking out suit no FHC/PH/CS/644/2011 the learned trial Judge had the occasion to view Article 30 of the Contract No A2246515 and thereafter expressed his views on its purport and legal effect. The order striking out suit no FHC/PH/CS/644/2011 is consequent upon the jurisdictional issue raised in the preliminary objection. This is what distinguishes NDIC V. OKEKE (supra) from the instant case. The decision culminating in the striking out order operates not only as being functus officio it also estops the party against whom the order was made from reopening the jurisdictional issue raised by the defendant thereon on the basis of Article 30 in Contract No A2246515 for as long as the decision subsists between the same parties in dispute over the said Contract No A2246515.
A party, as submitted by Mrs. Essien, SAN, is precluded from contesting the contrary of any precise point of law or facts, or both, which has been distinctly put in issue and decided by a Court of law. See Para. 1530 HALSBURY’S LAWS OF ENGLAND 4th ed, Vol. 16. Re-litigating on such an issue, that a Court is functus officio, in my firm view amounts to abusing the due process of the
Court. See NNAJIOFOR V. UKONU (supra); JOHN ANDY SONS & CO LTD V. NCRI (supra); IKOTUN V. OYEKANMI (supra); AGWASIM V. OJICHIE (2004) 10 NWLR [pt.882] 613 at 624 – 625; R-BENKAY NIG LTD V. CADBURY NIG LTD (2012) LPELR- 7820 (SC).
The respondent was consequently estopped from re-opening the same jurisdictional issue arising from Article 30 of the Contract No A2246515 for re-litigation as he had done in this suit no FHC/PH/CS/203/2012. The jurisdictional issue here is three fold; that is: issue estoppel, the same Federal Court differently constituted being functus officio and the conduct of the respondent, as the plaintiff, amounting to abuse of the Court’s process. These issues have a bearing, one way or the other, on the jurisdiction of the same Federal High Court, differently constituted, to entertain suit no FHC/PH/CS/203/2012 in view of the earlier decision of Akanbi, J in FHC/PH/CS/644/2011 on 29th February, 2012. See IBOK V. HONESTY II (2007) 6 NWLR [pt.1029 55; IKOTUN V. OYEKANMI (supra), NNAJIOFOR V. UKONU (supra); AGWASIM V. OJICHIE (supra). Agreeing with the appellant that the Federal High Court (Coram: H.A. Ngajiwa, J) lacks the necessary
jurisdiction to entertain the suit, and ought not to have assumed jurisdiction to entertain the cause or matter of the suit no FHC/PH/CS/203/2012, I hereby strike out the said suit including the decision and orders made therein.
The parties herein in their respective briefs have raised and argued the issue: whether or not the Federal High Court has jurisdiction to entertain the case whose subject-matter is a contract relating to and connected with mines and minerals, including oil fields, oil mining, geological surveys and natural gas? Both Section 7 (1) (n) of the Federal High Court Act, as amended in 2005, and Section 251 (1) (n) provide almost ipsissima verba, thusly –
The Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters(n) mines and minerals including oil fields, oil mining, geological surveys and natural gas.
?The contract, the centre of the civil dispute between the parties herein, is the Agreement copied at pages 33 – 138 of the Record of Appeal. The scope of work in the contract for service, as specified at page 131 of the Record is –
?Generally described as offshore pipeline installation
engineering, procurement, construction and installation work [WORK] for Mobil Producing Nigeria Unlimited’s Major Integrity Projects (MIPS), Offshore Nigeria, including but (not limited to) as may be required and specified in LOA(S) related:
.shore crossing;
.onshore pipeline sections;
.the fabrication and installation of associated raisers;.topsides interconnectivity pipin;
.pig launchers and receivers;
.pump and air-compressor skids; and
?.deck extensions, as wells as execution of the tie ins,the in-place abandonment of existing pipeline segments, removal of the existing risers etc
?In course of time during the subsistence of the contract a dispute arose between the parties to the Contract No A2246515 with respect to some aspects of the contract. The appellant alleging breach of the contract and irreconcilable dispute between the parties to the contract had invoked the Arbitration clause in Article 30 of the contract, and sought reference of the dispute to arbitral tribunal for the determination of the dispute. This, the respondent stoutly resisted. The respondent was constrained to institute this action on 14th August, 2013, ostensibly to forestall the arbitral
proceedings and in the words of Mr. R.E. Wanogho at Paragraph 2.14 of the Respondent’s Brief,
“for the Court below to interpret the Contract Agreement viz-a-viz the conduct of the parties and ascertain whether or not the provisions of the said Article 30.2. have been complied with.”
The question is: whether in or over civil causes or matters arising from contract for service, or a contract for provision of services, the Federal High Court, by dint or Section 7(1) of the Federal High Court Act, as amended in 2005, and Section 251 (1) of the 1999 Constitution, as amended, has jurisdiction to entertain civil causes or matters?
The cardinal principle, which is indisputable, is that it is the plaintiff’s claim, as disclosed from the endorsement on the writ of summons and/or the statement of claim, that is material and relevant for the consideration whether the trial Court has the requisite jurisdiction in law to entertain the claims of the plaintiff. See MUSTAPHA V. GOVERNOR, LAGOS STATE (1987) 2 NWLR [pt.58] 539; TUKUR V. GOVERNMENT, GONGOLA STATE (1989) 4 NWLR [pt.117] 517 at 549; NIGERIA AGIP OIL CO. LTD V. CHIEF M. WILLIAM KEMMER (2001) 8 NWLR [pt.716] 506;
O.H.M.B. V. GARBA (2002) 14 NWLR [pt.788] 538; ONUORAH V K.R.P.C LTD 2005) 6 NWLR [PT.921] 393; MINISTER OF WORKS & HOUSING V. SHITTU (2008) ALL FWLR [pt.401] 847 at 864.
The nature of the claim brought by the plaintiff/respondent as can be seen from the questions and reliefs set out at pages 1 – 3 of the Record, which I had earlier reproduced in this judgment, is one clearly for breach of contract, the Interpretation of the contract document and a consequential injunctive order to support the declaratory reliefs. The contention of the appellant, relying on Section 7 (1) of the Federal High Court Act, Section 251 (1) of the 1999 Constitution and the decided cases: ONUORAH V K.R.P.C LTD (supra); ADELEKAN V. ECULINE NV (2006) 12 NWLR [pt993] 33 at 52; PORTS & CARGO HANDLING SERVICES CO LTD V. MIGFO NIG LTD (2012) 18 NWLR [pt.1333], is that over simple contracts the Federal High Court lacks jurisdiction to entertain such claim.
?On the side of the respondent, as the plaintiff, it is posited that the Federal High Court, by virtue of Section 251 (1) (n) of the 1999 Constitution, has jurisdiction to entertain their claim. And that in S.P.D.C V. ISAIAH
(2001) 11 NWLR [pt.723] 168 at 178 – 180 the Supreme Court had put to rest the issue in holding that “the construction, operation and maintenance of an oil pipeline by a holder of oil prospecting licence is an act pertaining to mining operations” which falls within the exclusive jurisdiction of the Federal High Court. Respondent further relies on the case: MOBIL PRODUCING NIG ULTD V. SUFFOLK PETROLEUM SERVICES LTD (2013) 17 NWLR [1384] 573 CA (which is currently on appeal at the Supreme Court, and therefore sub judice).
Relying further on the dissenting opinion of Saulawa, JCA in SPDC V. SIRPI-ALUSTEEL CONSTRUCTION LTD?(2007) 1 NWLR [pt.1067] 128, at 168, respondent’s counsel submits robustly that once it is shown that the contract is one that falls squarely within the provisions of Section 251 (1) (n) of the 1999 Constitution, it does not matter whether or not the claim emanating therefrom is for breach of contract, and further that the nature of the claim by the plaintiff is immaterial once from the pleadings the nature of the contract and the activities there under are clear and unambiguous. This dissenting opinion, which is not the decision of the Court,
has laid so much emphasis on the “PURPOSE OF CONTRACT” Test. Counsel submits therefore that ONUORAH V. KRPC (supra), which has nothing to do with either installation or maintenance of oil pipeline, but only in respect of a dispute over sale of empty jerry cans, is not relevant to the instant case. Mr. Wanogho for the respondent seems to suggest his preference to the dissenting judgment of Saulawa, JCA in SPDC. V. SIRPI-ALUSTEEL CONSTRUCTION LTD (supra). The minority judgment in the case by Saulawa, JCA, held that contract for maintenance or rehabilitation of crude oil storage tanks comes within the provisions of Section 251 (1) (n) of the Constitution and the decision of the Supreme Court in SPDC V. ISAIAH (supra). The majority of Galadima and Rhodes-Vivour JJCA(as they were then), however, held that the breach of contract for rehabilitation of 4 crude oil storage tanks is not a matter within the purview of Section 251 (1) (n) of the Constitution. Counsel also commended to us BARRY V. ERIC (1998) 8 NWLR [pt.562] 404 and the SPDC V. MAXON (2001) 9 NWLR [pt.719] 541 as the authorities to follow.
The migration of bees from the plaintiff’s honey-bee farm following
loud explosions from detonation of explosives in the course of geological survey associated with oil prospecting and exploration was held in BARRY V. ERIC (supra) to be an injury or damage directly connected to, or pertaining to, oil mining over which the Federal High Court has exclusive jurisdiction to entertain by dint of Section 251 (1) (n) of the Constitution. That is the basis of that decision.
In the SPDC V. MAXON (supra) the injury for which damages and compensation were sought were consequent upon an oil spillage directly from an oil pipeline from the SPDC oil pipeline at Buguma. The oil spillage that caused such enormous nuisance was “in consequence of the activities of the companies engaged in operations relating to prospections in oil mines, minerals, gas exploration and related geological works or activities”.
In the SPDC V. ISAIAH (supra) there was a direct oil spillage from an oil pipeline that was being repaired upon it being dented following the tree that fell on it accidentally. The oil spillage from the oil pipeline was a thing that was directly associated with, related to, arising from, or connected to mines, minerals including oil mining.
The claim was this held to be a claim for damages from oil spillage that falls within the exclusive jurisdiction of the Federal High Court vested by Section 7 (1) (n) of the Federal High Court Act, and/or Section 251 (1) (n) of the 1999 Constitution. The Supreme Court citing BARRY V. ERIC (supra) in that case held further that the construction, operation and maintenance of an oil pipeline by a holder of an oil licence is an act pertaining to oil mining operations in respect of which only the Federal High Court has jurisdiction.
These cases are distinguishable from the class of NKUMA V. ODILI (2006) ALL FWLR [pt.313] 24; NIGERIAN AGIP OIL CO LTD V. CHIEF M. WILLIAM KEMMER (2001) 8 NWLR [pt.716] 506; SPDC V. SIRPI-ALUSTEEL CONST. LTD (supra) and DR. OKOROMA V. CHRISTIAN UBA & ORS (1999) 1 NWLR [pt.587] 359 in which it was held, in effect, that the fact that a party is an oil company does not mean that actions in respect of commercial contracts in which he is a party are only maintenable in the Federal High Court. In these cases it was held that it is not the purpose of the contract for service with an oil company that determines the jurisdiction of the
Federal High Court vested by Section 7(1) of the Federal High Court Act and Section 251 (1) (n) of the Constitution in respect of claims for breach of contract or disputes over commercial agreements or contracts. The Supreme Court decisions in VICTOR ADELEKAN V. ECU-LINE (2006) 12 NWLR [pt.993] 33 and PORTS & CARGO HANDLING SERVICES CO LTD & ORS V. MIFGO NIG LTD (2012) 18 NWLR [pt.1333] 555 at 591 – 592 further emphasized that the Federal High Court lacks jurisdiction over a claim founded on alleged breach of contract.
The dispute in NKUMA V. ODILI (supra) was over who was entitled to be paid compensation for a parcel of land being used for oil prospecting.The dispute was over who was the rightful person to be paid the compensation as the owner of the land. The purpose the land was being used, or the use of the land for oil prospecting, was held not to be material for the determination of the jurisdiction of the Federal High Court since the ownership of the land, in the first place, and its use for oil prospecting are two distinct matters or issues. Section 251 (1) (n) of the Constitution, it was held, can not be stretched thus far to confer
jurisdiction on the Federal High Court over land dispute. The claim and counter-claim for the compensation for the parcel of land used for oil prospecting can not be determined without the Court first deciding who owns the disputed land. Accordingly, the nature of the claim and counter claim is one of land dispute over which the Federal High Court lacks jurisdiction.
The dispute in NIGERIAN AGIP OIL CO LTD V. KEMMER (supra) arose purely from lease agreement affecting an oil company that was using the land for its business of oil prospecting. It was held that the dispute over lease agreement affecting an oil company does not fall within the jurisdiction vested on the Federal High Court by Section 251 (1) (n) of the 1999 Constitution. The opinion expressed by pats Acholonu JCA (as he then was), which I am in complete agreement with, is that the purpose the demised land was meant is not relevant once the subject matter of the dispute, which is over lease agreement, is clearly outside the jurisdiction of the Federal High Court.
The majority opinion in SPDC V. SIRPI-ALUSTEEL CONST. LTD (supra) is that an action for breach of contract of service for the
rehabilitation of the SPDC’s4 crude oil storage tanks is an action for mere breach of contract, actionable at the State High Court and not the Federal High Court. This case further demonstrates that the purpose of contract of service, and not its alleged breach, is not the determinant of the nature of the claim. And it is trite that it is claim or the nature of the plaintiff’s claim that is relevant in considering the jurisdiction of the trial Court.
?As stated in DR. OKOROMA V. CHRISTIAN UBA (supra) at page 150 of the report –
The fact that a party is an oil company does not mean that actions in respect of commercial contracts in which it is a party are suable in the Federal High Court
This is instructive because many counsel for plaintiffs have fallen in that misconception, like also judicial officers. From the authorities let it be summarized thus: neither the party nor the purpose of the contract for service beneficial to the oil company is relevant in considering whether the action falls within the exclusive jurisdiction of Federal High Court. Rather, it is the nature of the claim that is material for the determination of the trial Court’s jurisdiction. Thus
as it was held in ONUORAH V. K.R.P.C (supra), NKUMA V. ODILI (supra); NIGERIAN AGIP OIL CO LTD V. KEMMER (supra); THE SPDC V. SIRPI-ALUSTEEL CONST. LTD (supra); ADELEKAN V. ECU-LINE (supra;) PORTS & CARGOS. CO LTD V. MIFGO (supra) disputes over breach of contract, be it simple contract or contract for service, are not actionable in the Federal High Court. The Court with jurisdiction in the circumstance by virtue of Section 272 of the 1999 Constitution is the State High Court, and not the Federal High Court whose jurisdiction is limited and circumscribed by Section 251 (1) of the same Constitution.
Accordingly, it is my firm view, from the nature of the claims put up by the plaintiff/respondent in the suit no FHC/PH/CS/203/2012, that the suit for breach of contract for service and/or interpretation of the provisions of the said contract No A2246515 is not one that falls within the jurisdiction of the Federal High Court vested expressly by Section 7 (1) Federal High Court Act and Section 251 (1) of the 1999 Constitution, as amended. The effect of a Court of record assuming and exercising jurisdiction over a matter it is has no jurisdiction to entertain is
that it acted ultra vires its jurisdiction and its proceedings and decision or order, no matter how well conducted and considered, are all null and void. See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341. The law is well settled that the question of jurisdiction strikes at the root of any cause or matter and thus raises the issue of the competence of the Court to adjudicate in the particular proceedings. The defect in competence is so fatal, I repeat, that it renders the proceedings a nullity and decided the proceedings had been. See ADETAYO & ORS V. ADEMOLA (2010) 15 NWLR [pt.1215] 169. This suit suffers the same consequence for the defect in the competence of the trial Court. Accordingly, the suit no FHC/PH/CS/203/2012 is hereby struck out.
I had earlier alluded to the fact of this suit being a gagging suit. This suit was initiated mala fide going by the Freudian slip of the respondent’s counsel in Paragraph 2.14 of the Respondent’s Brief that-
When it became clear that the Appellant was committed to going to the arbitration – the Respondent was constrained to institute the suit which gave rise to this appeal by way of originating summons filed on 14th August,
2013 against the Appellant and its appointed arbitrator, Dr. Robert Gaitskou, QC, in order for the court below to interpret the contract Agreement viz-a-viz the conduct of the parties and ascertain whether or not the provisions of the said Article 30.2 had been complied with.
The filing of the suit at the Federal High Court on the heels of the same Federal High Court (Coram: Akanbi, J) decision on 29th February 2012, in suit no FHC/PH/CS/644/2011, that the Federal High Court is not the proper forum to raise the jurisdictional issue in view of the arbitration clause contained in Article 30.2 of the contract Agreement the subject of the dispute is therefore mischievous. The respondent appealed the decision and subsequently withdrew the appeal to enable it file this suit. I had earlier in this judgment said that the said decision of 29th February 2012 subsists and binds the parties thereto, including the respondent. The respondent, in filing of this suit, has one ulterior purpose, and that is to use its pendency to arrest or scuttle the arbitration proceedings and also as a ruse to justify the respondent’s conduct of repudiating and/or refusing its obligation
under the arbitration clause.
The suit was a contrivance to gag the enforcement of the arbitration provisions in the Contract no. A2246515. The suit was commenced mala fide and it is a gagging suit. In R V. DAILY MAIL (EDITOR), EX PARTE FACTOR (1928) 44 TLR 303 Lord Reid of England had said that a gagging suit is one filed to prevent or suppress the right of speech. It was conceived then that once a matter is subjudice citizens no longer have the right to freely and a in public comment on the subject of the suit. Accordingly a suit filed to attain that purpose only was held to be a gagging suit. Lord Denning, MR, in WALLER STEINER V. MOIR (1974) 3 ALL E.R. 217, had stated that any suit filed to prevent or suppress the exercise of a legitimate and lawful right of free speech and discussions of any matter in the interest of the public is a gagging suit which is an abuse of the Court process. The law is emphatic, the law Lord held, that the issuance of a writ should not used to muzzle the exercise of another right. On these authorities I had held in ORJI UZOR KALU V. FRN (2012 LPELR – 9287 (CA) that a suit filed, ostensibly, to prevent or suppress the exercise of
a right vested by law is a gagging suit and an abuse of the judicial process of the Court. Such suit does the administration of justice no good, but a corruption of it. This is exactly what the respondent herein, as the plaintiff, had done. This much was admitted in the Respondent’s brief in the passage I had reproduced above. I agree with Mrs. Essien, SAN that the conception and the filing of this suit were all done mala fide and in the perversive abuse of Court process. The appellant’s right to resort to arbitration and or initiate arbitral proceedings is not in doubt under Article 30 of the Contract no. A2246515. It is that right the instant suit, notwithstanding the decision in suit no FHC/PH/CS/644/2011 delivered on 29th February, 2012, that the respondent, admittedly, has intended to muzzle by the filing of the instant suit. The avowed intent to arrest the arbitral proceeding is what makes this suit a gagging suit. It is a bold and audacious desecration of the temple of justice.
I shall not consider remitting the case to the appropriate State High Court pursuant to Section 15 Court of Appeal Act, read together with Order 6 Rule 2 of the extant Rules of
this Court, 2011, and Section 22 of the Federal High Court Act, as amended, and Order 49 Rules 5 of the Federal High Court (Civil Procedure) Rules, 2009 in view of my earlier stance on the decision of the Federal High Court (Coram: A. Akanbi, J) on 29th February 2012 in suit no FHC/PH/CS/644/2011. I therefore end and rest the matter at this point. The order striking out the suit no FHC/PH/CS/203/2-12 shall be the order of the Federal High Court in the said suit, and it is so made.
The appellant is entitled to costs thrown away in this suit that in my views was a gagging suit that was completely unwarranted in the first place in view of the appropriate forum offered by Article 30.2 of the Contract No A2246515. Costs assessed at N300,000.00 shall be and hereby awarded to the appellant against the respondent.
MOHAMMED LAWAL GARBA, J.C.A.: I agree.
BITRUS G. SANGA, J.C.A.: I have had the privilege of reading a draft of the judgment just delivered by my learned brother EJEMBI EKO J.C.A. His Lordship, has captured the essence of the Suit before the lower Court that gave rise to the filing of this appeal and I am in total agreement with him that since the decision
of Lambo Akanbi J delivered on 29/2/2012 in Suit No. FHC/PH/CS/644/2011 was not set aside it remains binding on the lower Court and thus it is functus officion. Therefore the assumption of jurisdiction by H.A. NGAMJIWA J of the same Federal High Court in Suit No. FHC/PH/SC/203/2012 which deals with the same parties and subject matter is wrong and I also strike out that suit and the decision emanating from it.
I have also noted the decision by my learned brother on the jurisdiction of the Federal High Court pursuant to Section 7(1) of the Federal High Court Act 2005 (as amended) and Section 251(1) of the 1999 Constitution (as amended) as it pertains to breach of contract be it simple contract or contract of service and I associate myself with his holding that the Court with jurisdiction to hear that suit is not the Federal High Court but a High Court of the State. I associate myself and adopt the authorities cited by the Learned Law Lord in respect to this appeal and agree that Suit No. FHC/PH/CS/203/2012 be and is hereby struck out. I also associate myself with the findings of My Lord that the suit before the lower Court initiated by the Respondent was a
“gagging suit” aimed at stultifying the course of justice. I abide with the consequential order as to cost.
Appearances
Mrs. M.A. ESSIEN, SAN with O.U. Ulasi, Esq. and U.J. Otikor, EsqFor Appellant
AND
R.E. Wanoghol Esq with I. Uba, Esq.For Respondent
