Honourable Minister for Works and Housing V. Tomas Nigeria Limited & Ors. (2001)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

The plaintiffs/respondents initiated an action against the defendants/appellants before the Federal High Court, Abuja in Suit 762 Nigerian No. FHC/ABJ/CS/194/2000 claiming the following reliefs:

1. A declaration that effective 4th April, 2000, the plaintiffs are entitled to a further and final term of five (5) years as operators of Toll Plazas nationwide vide their agreements with the 1st defendant dated 4th April, 1996 and 8th September, 1997 respectively as the case may be.
2. A declaration that actions of the 1st defendant to wit:-

(a) service of notices to terminate the subject-matter contract on the plaintiffs;

(b) use of tenderers and bidders to attack and disrupt the smooth operation of the plaintiffs at their respective Toll Plazas;

(c) other efforts to bring the subject-matter agreements to an end and remove the plaintiffs from the management of the Toll Plazas nationwide before the expiration of the final term of five(5) years in 4th day of April 2006 are illegal, unlawful void and invalid.

3. An injunction restraining the defendant by themselves, agents, privies and whosoever from interfering in any way whatsoever with the plaintiffs management and control of the Toll Plazas nationwide till the expiration of the final term of five (5) years in 4th April, 2006.

Upon the service of the writ of summons and the statement of claim on the defendant/appellant, the appellant filed a notice of preliminary objection on the grounds that the Federal High Court, Abuja lacks jurisdiction to entertain the matter as it is based on contract and the issues and matters for determination in the suit are the same as the issues and matters for determination in Suit No. FRC/L/CS/1/99 then pending before the Federal High Court, Lagos.

The trial court after hearing arguments on the preliminary objection held that it had jurisdiction to determine the matter and that the subject matter and the parties on the two suits are different. The appellant being dissatisfied with the ruling has now appealed to this court.

After series of applications, the appeal came up for hearing. At the hearing of the appeal, the parties adopted and relied on the briefs filed, and expatiated on some of the points raised in the briefs.

Arguments were first taken on the preliminary objection filed by the respondent and then on the objection if it is upheld, then there would be no need to go into the main appeal.

Preliminary Objection:

When the appeal was called for hearing on the 7th May, 2001, Mr. T. E. Williams the learned counsel representing the 1st – 25th respondents informed the court that he had filed a fresh notice of preliminary objection to the hearing of the appeal on the 2/5/2001 and had also abandoned the notice of preliminary objection earlier filed on the 20/2/2001 and the objection contained in the brief for the 1st – 25th respondents. This court struck out the earlier objections including the arguments contained in the brief and granted leave to raise the preliminary objection filed on 2/5/2001. In the notice of preliminary objection, the 1st- 25th respondents pray for the following orders:-

“1. Striking out the appeal as the same is a mere academic exercise, incompetent and the court lacks jurisdiction to entertain it.

2. Striking out grounds 1, 2 and 3 of this appeal as the grounds are incompetent.
3. Striking out the entire particulars of grounds 1 & 3 as grounds of incompetence.”

The learned counsel relied on several grounds of incompetence. It is firstly claimed that the substantive matter in the court below has been discontinued and the action had become ipso facto vacated vide Conybeare v. Lewis (1880) 13 CH.D 469 the appeal has become an academic exercise and this court should not indulge itself in academic exercise – See Nzom v. Jinadu (1987) 1 NWlR (Pt.51)533 at 537. It is again submitted that since the plaintiffs in the court below had filed a notice of discontinuance under Order 30 rule 2(1) of the Federal High Court Rules on the 11/1/2001 and on the 20/2/2001 the suit as well as the appeal had terminated by the operation of law. See Ezeonu v. Agheze (1991)4 NWlR (Pt.187)631 at 643. On the futility of a court engaging in an academic exercise, the learned counsel referred to Adebayo v. Babalola (1995)7 NWLR (Pt.408)383; Ezeanya v. Okeke (1995) 4 NWLR (Pt.338) 142; P.T.I. v. Nesimone (1995) 6 NWLR (Pt.402) 474; Nwobosi v .ACB Ltd. (1995) 6 NWLR (Pt.404) 658 at 681 and Tanimola v. Survey Mapping Geodata Ltd. (1995) 6 NWLR (Pt.403) 617.

It is submitted further that whatever be the fortunes of the appeal, the suit in the court below is dead and buried and cannot be resurrected. In the circumstances of the case by Order 30 rule 2(1) (supra) the discontinuance of the suit in the court was effected without the requirement of any leave since pleadings were not closed.

Learned counsel referred to The ‘Vessel Saint Roland’ v. Osinloye (1997) 4 NWLR (Pt. 500) 407; Ijiwoye Bros Ltd. v. N.P.F.M.B. (1990) 2 NWLR (Pt. 134) 583; Aghadiuno v. Onubogu (1998)5 NWLR (Pt. 548) 16. On this point, the respondent’s objection finally relied on Bakare v. A.C.B. Ltd. (1986) 3 NWLR (Pt. 26) 47. He also added that the notice of discontinuance filed has the effect of achieving the results the appeal filed by the appellant seek to achieve. It will therefore serve no purpose to pursue the appeal.

The learned senior advocate for the appellant on the other hand argued that though a plaintiff may without leave of court discontinue an action by virtue of Order 30 rule 1(2) (supra), he submits that the notice may not necessarily terminate all the proceedings in the court below. Further, submitting that the respondents have used the court below to obtain an advantage such as ex-parte orders made subject to undertaking as to damages, the appellant are therefore entitled to set the machinery in motion for the quantification of damages. It is further argued that the substance of the appeal before this court is whether the trial court has jurisdiction to entertain the matter and also whether the suit as filed was not an abuse of the process of the court.

Learned senior advocate referred to the case of Vessel St. Roland (supra) and contends that the court under the circumstances of this case still retains the jurisdiction to make orders in relation to the advantages received by the plaintiffs/respondents. It is submitted that a decision of this court as to issues raised would once and for all protect the appellant (if in its favour) from further abuse of court processes and “litigation round tripping” by the plaintiffs/respondents.

He further submits that a successful appeal will enable the appellant obtain redress for the injunctive orders made against them which lasted for a year and may also determine whether the court below has jurisdiction to entertain the matter.

Now, to understand the arguments of counsel, it may be necessary to set out the facts of this case. The plaintiffs/respondents instituted this action against the appellant and others. The main relief sought was to prevent the appellants from taking over the possession of toll gates from the plaintiffs. The plaintiffs/respondents obtained ex-parte orders of injunction restraining the appellants from taking over possession of the toll gates on 8/5/2000. The appellants thereafter filed preliminary objection on the grounds of lack of competence or jurisdiction of the trial court to deal with the matter and also that the suit was an abuse of the process of court in that a similar suit existed between the parties in another court. The court below heard arguments on this preliminary objection and ruled that it had jurisdiction to entertain the matter and also ruled that the action was not an abuse of the process of the court.

The appellant appealed and the matter was stayed pending the appeal with the ex-parte injunctive reliefs in favour of the plaintiffs/respondents in force. On the 20/2/2001, the plaintiffs/respondents filed a notice of discontinuance of the suit at the court below simultaneously with a notice of preliminary objection on the competency of the appeal before this court.

Now, the plaintiffs/respondents claim that it is not necessary to pursue the appeal since the action they filed had terminated by operation of law. Since the question asked here is what is the effect of notice of discontinuance of a suit in the court below on the appeal filed under the facts of this case? Order 30 rule 2(1) of the applicable rules of court provide:-

”The plaintiff in an action may, without the leave of the court, discontinue the action or withdraw any particular claim made by him therein as against any or all of the defendants at anytime not later than 14 days after service of the defence on him or, if there are two or more defendants of the defence last served, by serving a notice to that effect on the defendant concerned”.

It does appear on the face of this rule, a plaintiff may withdraw or discontinue a claim without leave when no statement of defence has been filed or within 14 days of the filing of the statement of defence. It is also true that when an action is withdrawn an appeal in that action becomes ipso facto vacated- see Onybeare v. Lewis (supra). It is generally taken that the appeal becomes no longer necessary as it will serve no purpose since the substance has gone. It would ordinarily amount to an academic exercise, and the courts must always avoid indulging in academic exercise for example Adebayo v. Babalola (supra). It is also true as argued by the learned counsel to the plaintiffs/respondents that whatever the fortunes of the appeal may be, the substantive matter in the court below cannot be resurrected. Uwaifo, JCA (as he then was) in the Tanimola’s case (supra) said at pg 626-627:-

”The courts deal only with live issues and steer clear of those that are academic. Consequently it would be improper for the Court of Appeal to exercise jurisdiction which imposes to hear appeals in deciding academic questions, the answer to which cannot affect the parties in any way.”

The question that falls for decision is whether under the facts of this case, in which the plaintiffs/respondents had derived an advantage- the ex-parte injunctive orders is whether a decision on the appeal could not affect the parties hereto in one way or the other. It has been held that leave to withdraw or discontinue will be necessary where the plaintiff has obtained an order, for example of interim payment.

Although, a plaintiff may have an unqualified right under Order 30 rule 2(1) (supra) to discontinue his action without leave of the court yet if he abuses such right by serving a notice of discontinuance after obtaining substantial advantages in the action to the prejudice of the defendant he will be guilty of an abuse of the process of court and the court will have the power to set aside the notice of discontinuance see Castanho v. Brown and Root UK Ltd. (1981) AC 557.

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

The second leg of the preliminary objection is concerned with the competency of the grounds of appeal. It is argued that by the provisions of Order 3 rule 2(2) of the Rules of this court, if a ground of appeal alleged error or misdirection, the particulars and nature of the error or misdirection must be clearly stated. See Nwokoro v. Onuma (1999) 12 NWLR (Pt.631) 342. It is claimed that ground one is such a ground and it is deficient of the particulars. On ground 2 it is argued that it amounted to an academic exercise. In my view, that complaint does not amount to competency but to whether it will succeed or not. Ground No.3 is said to be raising a fresh point of law which was not raised or decided in the court below. No leave was obtained or sought before the issue is raised on the ground. That too in my view does not affect the competency of the ground of appeal. Whether it will succeed to nullify the matter or not is a different issue to be decided when hearing the main appeal. On ground one referred to above, the particulars are contained in the ground of appeal, there is no law which says the nature and particulars of the ground cannot be embedded in the ground of appeal.

On the whole, I am of the view that the preliminary objection filed is not made out. The notice of discontinuance filed was not filed in good faith and liable to be set aside and struck out and it is accordingly struck out. It was an abuse of the process of the court to file the notice under the circumstances of this case. I reject the preliminary objection and hereby overrule it. I shall now deal with the appeal on its merit.

Appeal

The appeal is to be determined on the bundle of documents filed by the appellant with the leave of this court as the records of proceedings together with the supplementary record of proceedings

of the trial court filed by the respondent on the 23/4/2001. The grounds of appeal are listed hereunder:

Grounds of appeal:

1. The court below erred in law when it held that the suit of the plaintiff/respondent instituted and pending before it did not constitute an abuse of process of court when the institution of the said suit amounted to a multiplicity of actions between the same parties on the same matters.

Particulars:

a) The parties, the matter and issues for determination in the suit are the same as matters being litigated upon by the parties in Suit No. FHC/L/1/99 and CA/L/425/99 both pending before the Lagos Division of the Federal High Court and the Lagos Division of the Court of Appeal respectively.

b) The court below was in grave error when it failed to hold that the addition of the Inspector General of Police as a party to the action before it did not constitute a valid ground for the institution of the said suit.

c) The institution of the suit is intended to irritate and annoy the defendant/appellant and obstruct the effective and efficient administration of justice.

2. The court below erred in law when it held that it had jurisdiction to entertain the suit as the said suit is in respect of the revenue of the Federal Government of Nigeria when the said suit involves no dispute between the parties as to revenue of the Federal Government but merely concerned the management and control of Toll Plazas nationwide as per various contracts of management between the defendant/appellant and the plaintiffs/respondents.
3. The court below erred in law when it delivered its decision and made further orders that the status quo between the parties be maintained as the decision and the further orders was not made in open court.

Particulars:

a) Section 36(1) and (3) of the 1999 Constitution of Nigeria provides that in the determination of the civil rights and obligations of persons proceedings of a court of law including the announcement of decisions shall be held in public.

b) A Judge’s chambers is not a court hall to which the public will normally have any right of access.

c) The proceedings and pronouncement of decision appealed are null and void and of no effect whatsoever.

d) The court below acted without jurisdiction.

From the above grounds of appeal, the defendant/appellant formulated the following issues for determination of this court.

1. Whether having regard to the substance of the claims in Suit No. FHC/L/CS/1/99 now pending before the Federal High Court sitting in Lagos, the subsequent institution of Suit No. FHC/ABJ/CS/104/2000 before the Federal High Court sitting in Abuja by the plaintiffs/respondents constitutes an abuse of process of court?
2. Whether having regard to the provisions of section 251 of the Constitution of the Federal Republic of Nigeria, 1999 the Federal High Court has jurisdiction to entertain a suit the subject-matter of which are the contracts for management and control of Toll Plazas by the plaintiffs/respondents?
3. Whether the court below was right to have delivered its ruling, now appealed, in chambers?

The respondents also formulated three issues for determination to wit.

1. Whether the parties and subject-matter in Suit No. FHC/L/CS/1/99 are the same with the parties and subject matter in Suit FHC/ABJ/CS/104/2000 and whether it can be said that the institution of the Suit No. FRC/ABJ/ 104/2000 constitutes an abuse of process of court?
2. Whether having regard to the provisions of section 251(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999, the Federal High Court has jurisdiction to entertain Suit No. FHC/ABJ/CS/104/2000 the subject matter of which is the renewal or extension of contract for management and control of Toll Plazas by the plaintiffs/respondents?
3. Whether the court below delivered its ruling in chambers.

The two set of issues although worded differently are not dissimilar. The resolution of one set will amount to the resolution of the other set. I will therefore determine this appeal on the set of issues, as formulated by the appellant. I will however start with issue two as it is mainly on jurisdiction.

Issue 2.

Whether having regard to the provisions of S.251 of the Constitution of the Federal Republic of Nigeria, 1999 the Federal High Court has jurisdiction to entertain a suit the subject-matter of which are the contract for management and control of Toll Plazas by the plaintiff/respondent? Apart from the briefs filed on behalf of the parties which were adopted and relied upon, learned senior advocate for the appellant and learned counsel for the respondent expatiated orally on the submissions on their briefs.

The trial court in over ruling the objection that it lacked jurisdiction to try the matter held as follows:-

“On the issue of jurisdiction of this court, I rule that the subject-matter of this suit is squarely on S.251(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 because Toll Plazas relates to the collection of the revenue of the Government of the Federation through the Federal Ministry of Works or its Minister which is the relative organ of the Federal Government.

Secondly, jurisdiction is also vested in this court under subsection (c),because all the plaintiffs are limited liability companies whose operations come under Companies and Allied Matters Act, which is a Federal Enactment.

Thirdly, jurisdiction is also vested under the sub-section (P) because the subject-matter relates to management and control of Toll Plazas by the Federal Ministry of Works, which is an agency of the Federal Government.

Fourthly jurisdiction is vested under sub-section(r) because the reliefs are asking for declaration and interlocutory injunction affecting the Federal Ministry of Works which is an agency of the Federal Government.

There is absolutely no law known to me which excludes contract matters from the jurisdiction of this court. On the contrary, see the Federal High Court (Amendment) Decree No. 60 of 1991 which is a current law. S.7(1) of that Decree is all embracing in its language when it states, the Federal High Court shall to the exclusion of any other court try civil causes and matters connected with or pertaining to:-

(a) The Revenue of the Government of the Federation as in this case.

(b) Any matter in the concurrent legislative list such as Toll Plazas in this case.

(c) Any matter with respect to which the Federal Government has power to make law and in this case Toll Plazas.

Paragraph 3 of the above law is very important because it states, ‘where jurisdiction is conferred on the Federal High Court under sub-section (1) of the sub-section above, such jurisdiction shall continue to include jurisdiction to hear and determine all matters relating to arising from an ancillary to such subject-matter.’

The learned Senior Advocate of Nigeria on behalf of the appellant while contending that the learned trial Judge was wrong to have held as above made the following submissions;

That the dispute between the parties is the management agreements of Toll Plazas- which are mere structures for collection of revenue it is not a dispute for the collection of revenue or where revenue should go to or how it would be distributed and is not one of the civil causes or matters envisaged by the provisions of S.251(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria.

That the management and control of the 25 plaintiffs is not an issue before the trial court.

That the Toll Plazas are mere structures, not incorporated bodies with legal personalities and can therefore not be termed juristic persons who can be called either in law or in fact agencies of the Federal Government.

That the Federal Ministry of Works has no legal personality and is not a party to the case in the lower court. That the agreement for the management and control of the Toll Plazas was between the Federal Ministry of Works and the plaintiff/respondent and so governed by the law of contract. What was disputed is not the executive or administrative action of the Federal government or any of its agencies but mere management contract- outside the jurisdiction of the Federal High Court.

That the provisions of S.7(1) of Decree No. 60 of 1991 from where the trial court said it assumed jurisdiction, is inconsistent with the provisions of S.251 of the 1999 Constitution and is therefore null and void to the extent of that inconsistency.

The respondents have, on the other hand maintained that the trial court had jurisdiction to determine the matter for, as they contended, the dispute between the parties relates to the extension or renewal of the contract for the management and control of Toll Plazas nationwide.

That as the collection of fees, dues or charges from Toll Plazas relate to the revenue of the Federal Government, the trial court has jurisdiction on the matter.

That by virtue of the provisions of S. 251(1)(r) of the 1999 Constitution, the Federal Minister for Works and Housing who is an embodiment of the Federal Ministry for Works and Housing is an agency of the Federal Government. That the reliefs sought against the said Minister by the respondents which are made up of only declarations and injunctions over the renewal or extension of the subject-matter contract brings the matter within the ambit of the jurisdiction of the Federal High Court, moreso in this case where a public officer is sued in his official capacity.

That S. 7(1) Federal High Court (Amendment) Decree No. 16 of 1992 which has gone through various amendment read with S.5.2(1) of the Federal High Way Act of 1971 confers jurisdiction on the Federal High Court in any case of which the reliefs sought therein relates to extension or renewal of contract for the management and control of Toll Gates.

From these submissions, it will appear that the determining factor is the jurisdiction of the Federal High Court to determine the matter at hand. A court is said to be competent to determine a matter before it when the following are present:

1. if it is properly constituted with respect to the number and qualification of its memberships;
2. the subject-matter of the action is within its jurisdiction;
3. the action is initiated by due process of law; and
4. any action necessary to the exercise of its jurisdiction has been fulfilled.

Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Ogunmokun v. Mil. Adm. Osun State (1999) 3 NWLR (Part 594) 261; A.-G., Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Part 618) 187; Ajao v. Alao (1986) 5NWLR (Part 45) 802. Applying the above rules to this case, rule 2 will therefore be the determining factor as to the competence of the trial court, the claim of the parties before the court will determine whether it has jurisdiction or not. Adeyemi v. Opeyori (1976) 9-10 SC 31; Tukur v. Government of Taraba State (1997) 6 NWLR (Part 510) 549; Holec Projects (Nig.) Limited v. Dafeson Int’l Limited (1999) 6 NWLR (Part 607) 502 C.A.

What therefore is the claim of the parties before the lower court?

This is to be found at page 50 of the records of appeal and the reliefs sought by the plaintiffs/respondents are set out below:

1. A declaration that effective from 4th April, 2006, the plaintiffs are entitled to a further and final term of five (5) years as operators of Toll Plazas nationwide vide their agreements with the 1st defendant dated 4th April, 1996 and 8th September, 1997 respectively as the case may be.
2. A declaration that actions of the 1st defendant to wit:-

(a) service of notice to terminate the subject-matter contract on the plaintiffs;

(b) use of tenderers and bidders to attack and disrupt the smooth operation of the plaintiffs at their respective Toll Plazas:

(c) Other efforts to bring the subject-matter agreements to an end and remove the plaintiffs from the management of the toll plazas nationwide before the expiration of the final term of five (5) years on 4th day of April, 2006 are illegal, unlawful, void and invalid.

3. An injunction restraining the defendant by themselves, agents, privies and whosoever from interfering in any way whatsoever with the plaintiffs management and control of the toll plazas nationwide till the expiration of the final term of five (5) years on 4th April, 2006.

What the trial court is asked to do from the above reliefs is to make declarations and enforce the contract for the operation of Toll Plazas between the parties. The appellant’s contention hence is that the subject of management of toll gates is not within the jurisdiction of the Federal High Court. That the management of the toll gates is not related to revenue, it has to relate to be relevant.

That the management of toll plazas is a matter of contract regulated by ordinary law of contract to be determined at the High Court. The respondents are contending on the other hand that the collection of fees, dues or charges from toll plazas relate to the revenue of the Federal Government therefore the Federal High Court has jurisdiction as the subject matter relates to the revenue of the Federal Government. Similarly jurisdiction is vested in the Federal High Court, as the Federal Ministry of Works and Housing, an embodiment of the Federal Ministry of Works, is an agency of the Federal Government.

As I had shown earlier before a court can assume jurisdiction in a matter certain conditions must be satisfied. In the instant case, all the other conditions being present, the subject matter will be the determining factor. All the reliefs sought at the trial court are based on agreement between the parties as to the running and operation of the toll plazas, the dispute is as to the terms of the agreement and the life span of the agreement. The dispute is not whether the plaintiffs are companies or not. It is not whether the toll plazas are creatures of statutes or not, it is not on how the revenue collected from the toll plazas is to be disbursed, it is simply a dispute on the terms of

agreement between the parties on the entitlement of the plaintiffs to run the toll plazas and the life span of the agreement. Simply put, it is on a contract agreement entered by the parties for the running of the toll plazas.

The trial court in holding that it has jurisdiction to try the matter relied on the provisions of S.251(1)(a)(r)as it contends, the subject matter relates to revenue of the Federal Government, and the Federal Ministry of Works and Housing is an agency of the Federal Government, S.7(1) of the Federal High Court Amendment Decree No. 60 of 1991 the matter before it pertaining to the revenue of the Federal Highway Act, Cap. 135, Laws of the Federation, 1990 as the collection of fees dues or charges from toll plazas relate to the revenue of Federal Government.

Having found earlier that the dispute between the parties is on a contract agreement, the law that establishes and confers jurisdiction on the Federal High Court will determine whether the court has jurisdiction on the case at hand. The constitutional provisions from where the court derives its power will therefore be the deciding factor. S. 251(1) of the 1999 Constitution confers jurisdiction on the Federal High Court and provides as follows;

“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes or matters.”

And then went ahead to list the subject matters in which the Federal High Court has exclusive jurisdiction.

There being no other Act of the National Assembly conferring additional jurisdiction on the Federal High Court, its exclusive jurisdiction is therefore confined to the subject matters as contained In S.251(1)(a)(b)(c)(d)(e)(f)(g)(h)(i)G)(k)(l)(m)(n)(o)(p)(q) and (r). These subsections by their ordinary meaning confer exclusive jurisdiction to the Federal High Court in matters specified therein. Any other matter not stated will be outside the court’s jurisdiction.

In the instant case, the trial court assumed jurisdiction by virtue of subsections (a) and (r) which produced hereunder provide as follows:

“S.251 (1)(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said government is a party;

(r) any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative decision by the Federal Government or any of its agency.”

By virtue of subsection ‘a’ above any matter relating to the revenue of the Federal Government will fall within the exclusive jurisdiction of the Federal High Court. In the instant case, can the subject matter of the suit be said to be relating to the revenue of the Federal Government? In his submission, learned senior advocate for the appellant contends that what was in dispute is not the collection of revenue or where revenue should go to or how it should be distributed.

That what is in dispute is the management agreement of toll plazas of a matter connected with or pertaining to the revenue of government while the respondent is of the contention that the management and control of toll plazas, erection of toll plazas etc., are creations of statute to wit section 2 of the Federal Highway Act of 1971 Cap. 135, Laws of the Federation, 1990 which provision shows the collection of fees, dues or charges from toll plazas relate to revenue of the Federal Government.

The said provision is provided hereunder:

“2(1) The Minister shall have power to erect, equip and maintain toll gates on any Federal High Way as and when required with the approval of National Council of Ministers.

(2) Without prejudice to the generality of subsection (1) of this section, the Minister may prescribe such fees, dues or charges that may be payable at any toll gate erected, equipped or maintained pursuance to subsection (1) of this section.

(3) In the exercise of the powers conferred upon the Minister by subsection (2) of this section, Minister may classify the categories of vehicles plying or passing through any toll gate covered by the provisions of this Act and the any amount payable by such category of vehicles.

(4) The Minister may authorize in writing any officer agent or person to exercise any of the powers conferred upon him by subsection (1)(2)(3) of this section.”

The above section in effect is conferring powers on the Minister with regard to the operation and maintenance of toll plazas. While the dispute between the parties relates to the contract for the control and management of toll plazas. The above section will not therefore be the determining factor on the dispute between the parties. The dispute has to relate to the collection of revenue to come within the jurisdiction of the Federal High Court. In my view, the dispute in this case is on a contractual obligation of the Minister to the plaintiffs/respondents in the management and control of the toll plazas and can therefore not be termed as one that is related to the revenue of the Federal Government. The Federal High Court will therefore not have jurisdiction in the matter.

It is not in doubt that S. 251(1)(r) of the 1999 Constitution confers exclusive jurisdiction on the Federal High Court in “any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”

It is however a misconception to say that whenever the Federal Government or an act of its agencies is involved in a case the only court for the determination of the case is the Federal High Court. By the proviso to S. 251(1)(q)(r)(s) of the 1999 Constitution, nothing in the provisions of the sub-sections shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any eactment, “law or equity”. Here the plaintiffs/respondents are complaining about a contractual agreement between them and an agency of the Federal Government. The agreement is one based on the law of contract, therefore, being based on law falls under the proviso to S. 251(1)(a)(r)(s) of the 1999 Constitution. The above proviso will effectively confer jurisdiction on any other court in this instance, the High Court of the FCT to hear and determine the matter.

The supremacy of the Constitution is paramount here. It has conferred exclusive jurisdiction on the Federal High Court and was specific as to subject matters. S. 7(1)(a)(i) of the Federal High Court (Amendment) Decree No. 60 of 1991 must therefore be curtailed by constitutional provisions. If it is in any way inconsistent with the specific powers or jurisdiction of the Federal High Court as provided in the Constitution it must to the extent of that inconsistency be void.

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

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

Issue 1:

Whether having regard to the substance of the claims in Suit No. FHC/L/1/99 now pending before the Federal High Court sitting in Lagos the subsequent institution of suit No. FHC/ABJ/CS/104/2000 before the Federal High Court sitting in Abuja by the plaintiffs/respondents constitute an abuse of process of court. Learned Senior Advocate Chigbue for the appellant on this issue submitted that the claims in the two suits, are the same, so is the subject matter of the two suits which centers on the contracts for the management of the toll plazas. That the three declaratory reliefs sought in the first case are the same with the three declaratory reliefs being asked for in the second case, so are the injunctive reliefs similar in the two cases. He further submits that the parties in the two suits are the addition of the Hon. Attorney-General as a defendant and the Managing Directors of the 25th – 48th plaintiffs as 1st – 23rd plaintiffs in suit No. FHC/L/CS/99 contending that the difference in the number of plaintiffs in the two suits is merely superficial in form and makes no difference in the constitution of the action in terms of its parties.

Relying on the cases of Harriman v. Harriman (1989) 5 NWLR (pt.119) 6; Shell Trustees (Nig.) Ltd. v. Imani and Sons Ltd. (2000) 6 NWLR (Pt.662) 639 the learned senior advocate submitted that it is an abuse of process of the court for different actions between the same parties to be filed in different courts simultaneously even though the grounds are different. It is also an abuse of process when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent. That where there is multiplicity of actions on the same matter between the same parties even though there is a right to institute the action, the abuse will be in the multiplicity and the manner in which the right is exercised. He urged us to hold that suit No. FHC/ABJ/CS/104/2000 is an abuse of the process of court inviting us to set aside the decision of the lower court and order a dismissal of the action before it.

The respondent on the other hand while submitting on that issue raised objection on the ground of appeal from which that issue was raised to the effect that the statement in the ground of appeal that the plaintiffs are the same does not attack the ruling of the trial court which held that the plaintiffs are different.

That matters not appealed against are considered settled and cannot be raised by an appellant in argument of other matters appealed against and relied on Edozien v. Edozien (1998) 13 NWLR (Pt.580) 133. Urging this court to disregard the appellant’s argument in his brief that the 1st – 23rd plaintiffs in suit No. FHC/L/CS/1/99 cannot and should not be parties ought to be disregarded as that argument does not arise from the ground of appeal or particulars therein.

He further contends that the parties and the subject matters in the two suits are different.

Ground 1 of the grounds of appeal states:-

“The court below erred in law when it held that the suit of the plaintiffs/respondents instituted and pending before it did not constitute an abuse of process when the institution of the said suit amounted to a multiplicity of actions between the same parties on the same matter.”

The above ground in my view is an attack of the ruling of the trial court when it held that the institution of the case before it was an abuse of court process. All that a ground of appeal needs to do is to relate to or attack the decision of a trial court to be competent Atoyebi v. Governor of Oyo State (1994) 5 NWLR (Pt.344) 290; Nnanna v. Onyenakuchi (2000) 15 NWLR (Pt.689) 92.

In the instant case the trial court had ruled that there was no abuse of the process of court when the issue was raised before it. The ground of appeal is attacking that finding, it is therefore competent.

In the circumstances, the objection raised is overruled and I so hold.

“There is said to be an abuse of the process of the court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. It is not the existence or pendency of a previous suit that causes the problem. Rather, it is the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not yet been disposed of, that constitute abuse of process of court”.

Per Karibi-Whyte, JSC in Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt.200) 659 at 681. See also Morgan v. West African Automobile Engineering Co. Ltd. (1971) 1NMLR 219: Williams v. Hunt (1905) 1KB 512; Slough Estates Ltd. v. Slough Borough Council (1968) Ch 299; Okorodudu v. Okoromadu (1977) 3 SC 21; Oyegbola v. Esso West Africa Incorporated (1966) 1 All NLR 170.

For a case therefore to be said to be an abuse of the process of court it must contain all the above ingredients.

In the statement of claim dated 3rd May, 2000 in suit No. FHC/ABJ/CS/104/2000 the reliefs sought by the respondent/plaintiff listed below are at pages 2-9 of the records of proceedings to wit;

1. A declaration that effective from 4th April, 2001 the plaintiffs are entitled to a further and final term of five years as operators of toll plazas nationwide vide their agreements with 1st defendant dated 4th April, 1996 and 8th September, 1997 as the case may be.
2. A declaration that the action of the 1st defendant, to wit:

(a) service of notice to terminate the subject matter contract on the plaintiffs;

(b) use of tenderers and bidders to attack and disrupt the smooth operation of the plaintiffs at their respective toll plazas;

(c) other efforts to bring the subject matter agreements to an end and remove the plaintiffs from the management of the toll plazas nationwide before the expiration of the final term of five years on 4th April, 2006, are illegal, unlawful, void and invalid.

3. An injunction restraining the defendants by themselves, agents, privies and whosoever from interfering in any way whatsoever with the plaintiffs management and control of the toll plazas nationwide till the expiration of the final term of five years on 4th April, 2000.

The reliefs sought in case No. FHC/L/CS/1/99 in the further amended statement of claim of the plaintiffs therein found at page 135 of the supplementary record of appeal are listed below.

1. A declaration that the contracts for the operation of the toll plazas nationwide entered into by the plaintiffs with the defendants on 4/4/96 and subsequently amended by the oral agreement of the parties and the addendum dated 8/9/97 is still valid, subsisting, unexpired until 4/4/2006 and cannot be terminated by service of notice on the plaintiff without any breach of the conditions therein contained in the contract.
2. A declaration that the purported notice and letter of termination of contract for service (dated 21/12/98 and 18/3/96 respectively and their addenda dated 11/8/97 by a letter dated 7/12/98 by the defendant is invalid, null and void, unconstitutional and of no effect, whatsoever.
3. A declaration that the interference with the disturbance of the meeting of the plaintiff and their operations at the toll plazas nationwide by the defendant is unlawful and unconstitutional.
4. A perpetual injunction restraining the defendant, their agents, privies etc or whosoever from illegally disturbing, interrupting, terminating or acting in anyway that purport to terminate and/or adversely affecting the valid contract existing and subsisting between the plaintiffs and defendants during the current life span of the contract.

The subject matter from a glance at the two claims in my view is the control and management of toll plazas nationwide, the validity or otherwise of the agreement entered by the parties and the life span of the agreement. The end result of the two suits is to determine these issues and grant declaratory and injunctive reliefs to the plaintiffs, by allowing them the running of the toll plazas nationwide till the termination of the contracts life’s span. The wordings of the two reliefs, may be different but the substance and the end results are the same. So, I have no hesitation in holding that the subject matter of the two suits are the same.

I am also of the view that the plaintiff if granted the relief he is seeking in the Lagos case would have achieved his aim, and it would not matter one way or the other if he fails in the Abuja case. That there are additional parties in the Lagos case as against the Abuja is immaterial, for the parties, in the Abuja case will be bound by the decision in the Lagos case if it were to be successful. Initiating the Abuja case is therefore an abuse of the court process and I so hold.

The third issue centers on whether or not the ruling of the trial court was delivered in chambers by the trial court or not thus rendering it a nullity. Here there are two conflicting views, while the appellants are contending that it was delivered in chambers the respondent are alleging that there is nothing on the face of the records of proceedings to show that it was so. There is always a presumption of legality in any judicial proceedings and the court will not hold otherwise until there is irrebuttable evidence showing that the contrary is the case. The record of proceedings in this case did not show that the ruling was delivered in chambers, we will therefore presume that it was delivered in an open court as required by constitutional provision.

On the whole, this appeal has merit and must succeed. The trial court was wrong to hold that it has jurisdiction, subject matter between the parties being one of contract its jurisdiction is ousted by the proviso to S. 251(1)(q)(r)(s) of the 1999 Constitution of the Federation of Nigeria. Similarly, the initiation of case No. FHC/ABJ/CS/104/2000 at the Abuja Federal High Court is an abuse of court process there being a similar case No. FHC/L/CS/1/99 at the Lagos Federal High Court.

The respondent’s claim before the Abuja Federal High Court is accordingly dismissed- this being the only option open to a court where a finding of abuse of process of court is made to put an end to litigation. See Owonikoko v. Arowosaiye (1997) 10 NWLR (Pt.523) 61; Arubo v. Aiyeleru (1993) 3 NWLR (Pt.280) 186; Nweke v. Udobi (2001) 5 NWLR (pt.706) 445.

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

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Other Citations: (2001)LCN/1043(CA)