Malabu Oil and Gas Limited V. The President and Commander in Chief, Federal Republic of Nigeria & Ors (2009)
LawGlobal-Hub Lead Judgment Report
UWAHI MUSA ABBA AJI, J.C.A.
This is a Cross Appeal by the 7th Respondent in the appeal against part of the ruling of Justice Binta Nyako of the Federal High Court, Abuja delivered on the 14th day of March, 2006 which struck out the legal objection of the 7th Defendant/Respondent/Cross Appellant in defence to the Plaintiff/Appellant’s claim before the trial court.
The 7th Respondent/Cross Appellants’ legal objection is as set out in paragraphs I, 8 and 9 of its statement of defence as follows:-
Paragraph 1
7th Defendant shall contend that this action against it is incompetent and the Honourable court has no jurisdiction to entertain the plaintiffs claim against it.
Particulars
a. By written agreement between the Plaintiff and 7th Defendant the parties agreed to submit their differences and disputes to international Arbitration.
b. By the terms of the Farm in Agreement between Plaintiff and 7th Defendant, the arbitral award is final and binding on the parties from the date that it is made without any right to appeal to any court.
c. Plaintiff and Defendant having submitted their differences and disputes to International Arbitration, plaintiff is stopped from re-Litigating the same issues or re-opening in any manner the issues resolved in the final award made in respect of the said differences and disputes.
d. 7th Defendant joinder as a party in this case is an abuse of judicial process as Plaintiff and Defendant have submitted their differences and disputes arising out of and concerning the Head of Agreement and Farm in Agreement all in respect of OPL 245 to an Arbitral Tribunal which has made its award thereon.
Paragraph 8
The Arbitral Tribunal has concluded proceedings and handed down its Award in which it found in favour of the defendant and against the plaintiff. With respect to the matter pleaded in paragraphs 17 and 18 of the statement of claim and the reliefs claimed in this action, the Arbitral Tribunal has resolved all the issues and the Plaintiff is bound by the Arbitral Award.
Paragraph 9
Defendants shall contend that the action against it is incompetent and that the court lack jurisdiction to entertain same in that:-
(a) The action is an abuse of judicial process in that the matters sought to be raised by Plaintiff in this action are matters raised and determined by an International Arbitral Tribunal of the international Court of Arbitration to which Plaintiff and 7th defendant were parties.
(b) The Arbitral Award following arbitration pursuant to the terms of the Heads of Agreement and Farm In Agreement entered into by the Plaintiff and the Defendant is binding on the Plaintiff and Plaintiff is not entitled to resort to the court for the resolution of the issues now sought to be raised in this proceedings.
(c) The Arbitral Award has resolved all the differences and disputes between the Plaintiff and 7th Defendant. Accordingly it is not open to the Plaintiff to re-open or re-litigate in this Honourable court, the issues in the arbitration between Plaintiff and 7th Defendant.
(d) The issues raised by plaintiff in this action and the reliefs claimed as against 7th Defendant having been raised and resolved in the Arbitration Award to which Plaintiff and 7th Defendant were parties, Plaintiff is stopped from re-litigating the said issues and making the said claims against the 7th Defendant.
The legal objection was predicated on the Cross Respondent’s Amended Statement of Claim in paragraphs 17 and 18 wherein it set out its claims against the Cross-Appellant as follows:-
17 The Plaintiff avers that the 1st to 6th defendants have now purportedly allocated OPL 245 to Shell Nigeria Ultra Deep Limited, the 7th Defendant.
18 The Plaintiff avers that the purported withdrawal and revocation of OPL 245 by the 1st to 6th defendants and the subsequent alleged allocation of the Block to Shell Nigeria ultra Deep Limited, the 7th Defendant is arbitrary, capricious, illegal and contrary to natural justice and null and void.
And sought the following reliefs specifically against the Cross Appellant:-
- A declaration that the award of OPL 245 to Shell Nigeria Ultra Deep Limited, the 7th Defendant by the 1st to 6th Defendants is illegal, null and void.
- An order setting aside the award of OPL 245 by the 1st to 6th Defendants to the 7th Defendant Shell Nigeria Ultra Deep Limited.
- An order of injunction restraining the Defendants by themselves, their servants, agents or privies from interfering with Plaintiff’s right or interest in OPL 245 by allocating same to the Shell Nigeria Ultra Deep Limited, the 7th Defendant (see page 30 of the record).
The facts leading to the Cross Appeal are as follows:-
Sometimes in 1998, the Cross Respondent applied for and obtained from the 2nd Respondent an Oil Exploration Licence, OPL 245 and paid all the necessary fees as required. Thereafter it entered into negotiations with the Cross Appellant and subsequently entered into partnership with the Cross Appellant for joint exploration of the OPL 245. They executed a Farm in Agreement and a Deed of Assignment ceding 40% interest in the Block to the Cross Appellant. In May, 2001, the 4th and 5th Respondents conveyed approval for the Cross Respondent to begin operations on OPL 245.
However, in July 2001, the Cross Respondent was informed that its allocation had been withdrawn and the licence had been revoked and no reason for the revocation was given by any of the 1st – 6th Respondents. OPL 245 was subsequently granted to the Cross Appellant.
The Cross Respondent aggrieved by the situation instituted an action at the Federal High Court, Abuja Division seeking among other reliefs a declaration that the withdrawal of the licence was illegal, and that the grant of OPL 245 to it is still subsisting. The Cross Respondent also urged the Court to declare the subsequent allocation of OPL 245 to the Cross Appellant as null and void.
At the trial court, the 1st – 6th Defendants raised a preliminary objection that the action was statute barred under the Public Officers Protection Act having been brought outside the 3 months limit for such actions. The 7th Defendant also raised a preliminary objection praying the Court to set out certain paragraphs in its Statement of Defence for arguments and to dismiss the Plaintiff’s claims against it on the said paragraphs.
On 14th March, 2006, the Court ruled on the preliminary objections. It upheld the objection of the 1st-6th Defendants and dismissed the suit. The court also dismissed the objection of the 7th Defendant holding that the application was premature.
The Plaintiff was dissatisfied with the ruling of the Court. It appealed against the decision in a Notice of Appeal dated 6th April, 2006. The 7th Defendant on 30th May, 2006 also filed a cross appeal challenging the dismissal of its objection.
While the appeal was pending, the Cross Respondent and the 1st – 6th Respondents resolved their differences and settled the matter out of court. Consequent upon which the Cross Respondent’s title to the OPL 245 was returned to it. In consequence, the Cross Respondent discontinued the main appeal. However, the 7th Respondent/Cross Appellant on the other hand insists on continuing with its cross appeal.
The Cross Appellant appealed upon a sole ground of appeal vides a Notice of Appeal dated 30th May, 2006 and filed on the 9th June, 2006. The ground of appeal without its particulars is hereby reproduced:-
The learned trial judge misdirected himself in law in holding that;
There is no way that it can be determined in limine because it will entail going into the whole of the arbitral proceedings which is contained in the pleading of the defendant and not contained in the plaintiff’s case at all. To make any pronouncement on it will be making a pronouncement on the substantive suit without hearing the plaintiff on the issue, I find that the issues of res judicata raised by the 7th defendant at this stage is premature and is struck out.”
As is the practice in this court, parties filed and exchanged briefs of argument. In the Cross Appellant’s brief of argument settled by CA. Ajuyah, Esq., filed on 5th December 2007, learned counsel formulated a lone issue for determination, to wit;
“Whether the learned trial judge was right in holding that the Cross/Appellants objections raised in its pleadings and set down for argument pursuant to Order 25
Rules 2 and 3 of the Federal High Court Rules was premature?”
In the Cross Respondents’ Brief of Argument settled by A.B. Mahmoud, SAN, deemed properly filed on the 17th November, 2008, the learned senior counsel adopted the lone issue formulated by the Cross Appellant for determination.
The 1st, 2nd, 4th, 5th and 6th Respondents’ brief of argument settled by Olawale Akoni, SAN, and filed on 11th July, 2008, formulated this issue for determination to wit;
“Whether from the entire facts leading to this Cross Appeal and the prayer being sought by the Cross Appellant in the same, this Honourable Court has jurisdiction to entertain the Cross Appeal being an academic or hypothetical issue?
In the 3rd Respondent’s brief of argument settled by Patrick Michael, Esq., and filed on the 11th July, 2008, learned counsel formulated an identical issue with that formulated by the 1st, 2nd, 4th, 5th and 6th Respondents’ counsel for determination.
At the hearing of the appeal, learned counsel for the parties adopted their respective briefs of argument as their argument for and against the Cross appeal and urged the court to allow and dismiss the cross appeal respectively. The Cross Appellant also relied on its reply brief filed on the 11th November, 2008 but deemed properly filed on the 17th November, 2008.
Arguing his lone Issue for determination to wit; “Whether from the entire facts leading to this Cross Appeal and the prayer being sought by the Cross Appellant in the same, this Honourable Court has jurisdiction to entertain the Cross Appeal being an academic or hypothetical issue?”
Learned senior counsel for the Cross Appellant, C.A. Ajuyah, SAN, cited Order 25 Rules 2 and 3 of the Rules of the Federal High court (Civil Procedure) Rules which he submitted permits a party to raise legal points capable of disposing the entire case of his opponent or any part thereof. He submitted that the provision is clear and unambiguous and does not therefore require any interpretational aid. He submitted that in compliance with the provisions of the Rule, Cross Appellant pleaded in its paragraph 7, 8 and 9 of its statement of defence the facts showing that the action is incompetent and that the trial court has no jurisdiction to entertain the same. The paragraphs have already been reproduced in this judgment.
Learned counsel for the Cross Appellant therefore submitted that the learned trial judge was in grave error in coming to the decision to strike out the objection for the reasons that:-
- The objection raised by the 7th Defendant/Cross Appellant was part of its defence to the action and by the clear provision of Oder 25 Rule 2 of Federal High Court Rules, it was within the rights of the Cross Appellant to plead and raise before the trial the points of law contained in paragraphs 1,8 and 9 which in law are sufficient to dispose of the action against it. The learned counsel also submitted that the Cross Appellant having complied with the rules by raising points of law in defence and the learned trial judge having heard the parties on the points of law so raised in defence was duty bound to determine the points so raised on the merit. He placed reliance on the case of MALLAM YUSUF JIMOH & ORS VS MALLAM KARIMU AKANDE & ANOR (2000) 1-2 SC (PT.1) 117.
II. He also submitted that it is not the intention of the Rules that the points of law envisaged must of necessity have been raised in the Plaintiff’s pleading and in the defence as suggested by the learned trial judge. He further submitted that the point of law in the circumstance of this case is that contained in the statement of defence and that the trial judge was therefore in error in striking out the Cross Appellant objection on the basis that the objection was contained only in the statement of defence and not in the appellant’s pleadings.
III. -He further submitted that the point of law raised by the Cross Appellant that the High Court lacked jurisdiction to entertain the suit as the action is an abuse of judicial process in that the matters sought to be raised by the Appellant/Cross Respondent against the Cross Appellant are matters raised and determined by the International Arbitral Tribunal to which the Appellant; Cross Respondent and Respondent! Cross Appellant were parties, is a matter of law which can be determined without full trial or oral evidence. He further contended that it is an issue of law which does not call for evaluation of evidence of witnesses. He relied on the case of NDIC VS CENTRE BANK & ANOR (2002) 7 NWLR at 273.
Learned counsel therefore submitted that those awards by the International Tribunal are conclusive of facts and law and binds the Cross Respondent and that it is these awards which covered the same subject matter OPL245 that the Cross Respondent now wants the court to resolve as between it and the Cross Appellant. It is the view of learned counsel that it is not competent for the Appellant to raise before the lower court issues and claims which the parties have by their agreement submitted to Arbitration and which have been duly resolved in the manner agreed by the parties to the submission. He referred to Halsbury’s Laws of England 4th edition volume 2 paragraph 684 page 394; Sections 31 and 51 Arbitration and Conciliation Act, Cap 18 Laws of the Federation, 2004.
learned counsel also submitted that the award disposes of those disputes between the parties which were submitted to Arbitration. He submitted that it is the law that where one party to a submission brings a court action against the other in relation to the subject matter of the arbitration based on the same cause of action, the court would dismiss the action on the ground that the issues had been disposed of and were res judicata, thus giving rise to issue estoppel and therefore constitute a bar to subsequent proceedings. He cited and relied on the following books. Law and Practice of International Commercial Arbitration (By Alan Redfern and Martin Hunter) 2nd Edition pg.396; Russell On Arbitration 21st Edition paragraphs 6.006, 6.190, 6.201, 6.207 at pages 311, 315, 316 and 318; Law and Practice of Arbitration by Justice Oroja and Prof. Ajomo, Chapter 8 page 265; RAS PAL TAZI CONSTRUCTION V FCDA (2001) 10 NWLR (PT722) PG 559 AT 571.
He further submitted that the attempt to reopen this suit on those issues determined on the award is an abuse of the process of the court. He cited the case of ARUBO VS AIYELERU (1993) 3 NWLR (PT250) PG 126 @ 142. See also OWNERS OF THE MV ARABERLA VS NIGERIA AGRICULTURAL INSURANCE CORP (2008) 11 NWLR 183.
The learned counsel urges this Honourable Court to allow this appeal as the reasoning and decision of the trial judge are not supported by Order 25 rules 2 and 3 of the Federal High Court Rules and by Judicial and Statutory authorities on the effect of an arbitrary award on subsequent proceedings on the same issues and by the same parties.
In his response, learned senior counsel for the Appellant/Cross Respondent, A. B. Mahmoud, SAN, submitted that it is not in dispute that the preliminary objection of the Cross Appellant was heard on its merit and dismissed by the lower court. It is his view that the court was right in dismissing the objection raised by the Cross Appellant as premature and cited in support the case of WOHEREM VS EMEREUWA (2004) 13 NWLR (pt.890) 398 at 419. Relying on the said ease, it is submitted that the Cross Appellant in its Statement of Defence brought issues which had not been raised by the Cross Respondents and were not part of the Cross Respondents case in the lower court and that the trial court rightly observed that such can only be the Cross Appellants defence to the action as such cannot form the basis for the dismissal of the suit in limine. He cited in aid the case AKIBSI v MIL. GOV. ONDO STATE (1990) 3 NWLR (PT140) PG 525 at 531, that a preliminary objection on point of law could only be determined by reference to the pleadings especially the statement of claim.
Learned senior counsel for the Cross Respondent also argued that the Cross Appellants arguments on estoppel per res judicata are completely unfounded as for the plea to be available to a party he must show that the subject matter and the parties in the case at hand are same with the previous case decided. He cited in aid the case of ARCHIBONG v ITA (2004) 2 NWLR (PT 858) PG 590 at 649.
In line with this decision, learned senior counsel submitted that a plea of estoppel per res judicata is not available to the Cross Appellant because the subject matter in the present suit is not the same as the one decided by the arbitral proceedings. It is submitted that the issue of the revocation of OPL 245 was not before the Arbitration Panel and the 1st to 6th Respondents were not parties in the alleged arbitration proceedings. It is also his submission that the issue of res judicata does not arise in this case as the law is that for a plea of estoppel per res judicata to succeed, all its ingredients must co-exist and once any of them was missing, as in the present case, the plea must fail, citing in support the case of AFOLABI V GOV. OSUN STATE (2003) 13 NWLR (PT 836) PG 119 at 130-131. Learned senior counsel therefore submitted that what the Cross Appellant has put before this court is purely academic question, one that will not affect the parties whichever way it is decided. The following cases were cited in support; MAMMAN v SALAUDEEN (2005)18 NWLR (pt 985) PG 478 at 500; AG. ANAMBRA V A TTORNEY GENERAL OF THE FEDERATION (2005) 9 NWLR (PT 931) PG 572 at 607; OLANIYI v AROYEHUN (1991) 5 NWLR PT 652 at 692.
Learned counsel urged the court to dismiss the Cross appeal. In his own response, to the issue as formulated by him to wit: –
“Whether from the entire facts leading to this Cross Appeal and the prayer being sought by the Cross Appellant in the same, this Honourable Court has jurisdiction to entertain the Cross Appeal being an academic or hypothetical issue?
learned senior counsel for the 1st, 2nd, 4th, 5th and 6th Respondents, Olawale Akoni, SAN, answered the question in the negative and submitted that it is trite law that jurisdiction is the bedrock of any judicial adjudication and a court is only competent to entertain a suit or an application and to pronounce thereon only when it has jurisdiction in respect of same. He submitted that before a court can have jurisdiction to entertain an appeal brought before it and to pronounce thereon, there must be no feature in the case which prevents the court from exercising Its jurisdiction. It is his view that, from the facts of this appeal, it is crystal clear that there are salient features which rob this court of exercising its jurisdiction in respect of the 7th Respondent’s Cross Appeal dated 30th May, 2006 and filed on the 9th June, 2006. He submitted that from tile facts of this ease, it is clear that no purpose will be served if the Cross Appeal is heard by this court. It is stated that the Notice of Appeal shows that the Cross Appellant is praying for the Cross Appeal to be allowed and the claim of the Appellant/Cross Respondent against the Cross Appellant to be dismissed.
It is therefore his contention that the trial court having dismissed the claim of the Appellant/Cross Respondent, there is no claim presently before this Court to dismiss and the Cross Appellant has not shown how the dismissal by the trial court injured it or how a second dismissal by this Honourable Court will be needed for the case once dismissed to be properly dismissed. It is therefore submitted by the learned senior counsel that this appeal merely raises a hypothetical or academic question for determination, a question which if determine one way or other will not affect the ruling of the trial court or the position of the parties in relation thereto. It is his view that a Cross Appellant is duty bound to lodge an appeal if the relief sought will benefit it and not to seek the court’s opinion on an issue that is legally unprofitable. The cases of OLANIYAN V ADENIYI (2007) 3 NWLR (PT 1020) 1 at 25-26 paragraphs H-A; OLORIODE V OYEBI (1984) 1 SCNLR 3, were cited in aid.
He submitted that courts have no jurisdiction to embark on a fruitless exercise by considering academic or hypothetical and theoretical issues. He referred to the following cases: – EDUN VS YUSUF (2006) 5 NWLR (PT.973) at 225 page 242 to 243 paragraphs H-A; AG. ANAMBRA V ATTORNEY GENERAL OF THE FEDERATION (2005) 9 NWLR (PT.931) PG 572 at 607 Paragraph A, 610 Paragraphs C-E; ADEWUMI VS A.G EKITI (2002) 2 NWLR (PT 751) at 474 at 525; BHOJSONS PLC VS DANIEL KALIO (2006) 5 NWLR (PT973) at page 330; page 352; ONOCHIE VS ODOGWU (2006) 6 NWLR (PT. 975) PG 65 particular reference to pg.99. and AG FED. Vs FAFUNWUA ONIKOYI (2006) 18 NWLR (PT.1010) at page 51 at page 85:
Learned senior counsel argued that this court lacks the requisite jurisdiction to determine the issues raised by the cross appeal being mere hypothetical or academic questions of law and urged this court to so hold and dismiss the cross appeal.
In his own response, learned counsel for the 3rd Respondent, Patrick Michael, Esq., submitted in the same form and con the arguments as canvassed in the 1st, 2nd, 4th, 5th and 6th Respondents’ brief of argument. In effect they wrote identical briefs of argument including all authorities cited therein. Perhaps this is not unconnected with the fact that the briefs emanated from the same Chamber, Babalakin & Co. there is therefore no need to reproduce them here. Same will be considered jointly and severally. In the Respondent/Cross Appellant’s Reply Brief.
in response to the respective Respondents’ briefs of argument, learned counsel for the Cross Appellant, C.A. Ajuyah, SAN, submitted that the Single issue framed by the 1st to 6th Respondents does not arise from the Cross Appellant’s one ground of appeal set out in its Notice of Appeal and submitted that the Rules of this court do not permit a Respondent to frame issues at large and cited Order 17 Rules 3 (1) and 4 (2) of the Rules of this court and submitted that the Respondents’ issue for determination like that of the Appellant must arise from the grounds of appeal filed by the Appellant except where the Respondent has filed a Cross Appeal. He cited the following cases; UDOM VS MICHELETTI (1997) 52 LRCN 1940; NZEKWU VS NZEKWU (1989) 2 NWLR (PT104) 373; EDOPOLOR & CO LTD V SEME EDO WIRE LTD (1989) 4 NWLR (PT116) 473; JATU VS AMED (2003) FWLR (PT151) 1887.
Learned counsel submitted that the 1st to 6th Respondents did not file any Cross Appeal and as the issues framed by them do not arise from the Cross Appellant’s Grounds of Appeal, the issue framed and argued by them is incompetent and urged the court to discountenance the same. It is submitted that all the arguments of the 1st to 6th Respondents and that of the Cross Respondent that the cross appeal is academic and hypothetical are untenable. It is his contention that there are two separate appeals from the lower court as filed by the Appellant/Cross Respondent and that of the Respondent/Cross appellant. He submitted that the reliefs sought by the Cross Appellant are different from those of the Cross Respondent and they remain two separate appeals and each party is entitled to this Honourable Court’s determination. He cited in support the case of REGISTERED TRUSTEES OF AMORC VS AWONIYI (1994) 7 NWLR (PT355) 154 at 189, wherein it was held that a cross appeal is an appeal Independent of the main appeal, and that If for any reason Appellant’s Appeal is stayed, discontinued, struck out or dismissed, the Cross Appeal can proceed, citing also the case of MC GOWAN & ANOR VS MIDDLETON II QBD 464. It is also submitted that, so long as the 7th Respondent’s complain against the ruling of the lower court did not form the basis of the settlement and 7th Respondent was not a party to the settlement, the fact of success does not make 7th Respondent’s cross appeal academic or hypothetical. That all the cases cited by the 1st to 6th Respondents and the Appellants are cases cited out of con and do not apply to this case. The court was urged to dismiss the 1st to 6th Respondents and Appellant’s grounds of objection and determine the cross appeal on its merit.
On the contention of the Appellant that the Cross Appellant objection did not arise from the facts pleaded in the statement of claim, that the objection was premature and the lower court was right in so deciding, Ajuyah, SAN, submitted that the Cross Respondent’s argument Is legally untenable when the Appellant did not contend at the trial that the application was premature when It consented to the points of law to be set down for argument. It is argued that a party to a suit is not entitled to approbate and reprobate in matters of procedure. He cited in aid the case of UDE VS NWARA (1993) 2 NWLR (PT278) 638 at 662.
The learned counsel further submitted that the submission of the Appellant that by Order 25 of the Federal High Court Rules, defendant raising points of law must admit the pleadings of the plaintiff’s case and the 7th Respondent’s objection did not admit to the plaintiff’s case is without basis. The court was urged to allow the cross appeal.
I have carefully considered all the issues as canvassed by the respective learned counsel, however before I delve into the issue for determination proper, let me first consider a preliminary issue that rear its head from the Cross Appellant’s reply brief, that the issue formulated by the 1st to 6th Respondents did not arise from the ground of appeal as filed by the Cross Appellant. It is submitted that by virtue of Order 17 Rules 3 (1) and 4 (2) of the Rules of this Court 2002, the Respondents having not filed a Cross Appeal cannot formulate issues outside the ground (s) of appeal filed by the Appellant. He submitted that the Respondents issue did not arise from the Cross Appellant’s grounds of appeal.
It is now settled that issue or issues formulated for determination in an appeal must be related to or predicated upon a ground or grounds of appeal. Both the Appellant and the Respondents are entitled to formulate their respective issues, which must also flow from the ground or grounds of appeal in the matter. If however, any issue has no bearing with ground of appeal, it becomes irrelevant. The irrelevant ground and arguments canvassed in support will accordingly be struck out for want of competence. See OYEDE VS OLUSESI (2005) 16 NWLR (PT951) 341; CHUKE v F.H.A. (1999) 10 NWLR (PT624) 594; and TUKUR VS GOVERNOR OF TARABA STATE (1997) 6 NWLR (PT 510) 549.
The Cross Appellant filed a lone ground of appeal. The ground without the particulars is as follows:-
The learned trial judge misdirected himself in law in holding that
“There is no way that it can be determined in limine because it will entail going into the whole of the arbitral proceedings which is contained in the pleading of the
Defendant and not contained in the Plaintiffs case at all. To make any pronouncement on it will be making a pronouncement on the substantive suit without hearing the Plaintiff on the issues….”
The 1st to 6th Respondents formulated this issue as arising from the Cross Appellant’s sole ground of appeal; “Whether from the entire acts leading to this Cross Appeal and the prayer being sought by the Cross Appellant in the same, this Honourable Court has jurisdiction to entertain the Cross Appeal being an academic or hypothetical issue?
A Respondent to appeal in his reply to the Appellant’s brief must confine himself with the issues arising from the grounds of appeal. Thus a Respondent who has not cross appealed and has not sought and obtained leave of the court to raise a fresh issue cannot formulate an Issue not covered by any of the grounds of appeal filed by the Appellant. In the instant case, it is clear that the Issue formulated by the 1st to 6th Respondents is not related to the Cross Appellant’s grounds of appeal. While the Cross Appellant is contending that the trial court misdirected itself as regards the application of Order 25 of the Federal High Court (Civil Procedure) Rules, the Respondents are by their issue for determination contending the jurisdiction of this court to entertain the cross appeal being an academic or hypothetical issue.
Where however, any issue formulated has no bearing with the ground of appeal it becomes irrelevant and arguments canvassed in support will be discountenanced by the court. See ANYATULU V AGAZIE (2006) 5 NWLR (PT973) 260; MASHUWORENG VS ABDU (2003) 11 NWLR (PT831) 403; OYEDE VS OLUSESI (SUPRA); STATE VS OKOYE (2007) 16 NWLR (PT 1061) 604.
As the issue raised by the Respondents for determination did not arise from the Cross Appellant’s ground of appeal challenging the decision of the trial court, the issue and the arguments canvassed thereon are hereby discountenanced for being incompetent. See STATE VS OKOYE (supra); MARK v EKE (2004) 5 NWLR (pt 865) 54; and OBASANJO v YUSUF (2004) 9 NWLR (PT 877) 144; OSSAI V WAKWAH (2006) 4 NWLR (PT 969) 208; ZAGA VS ANAN (2005) 10 NWLR (PT933) 299.
The main contention of the Cross Appellant in the Cross Appeal was the finding of the learned trial judge in dismissing the preliminary objection raised by the Cross Appellant in its Statement of Defence pursuant to Order 25 of the Rule of the Federal High Court (Civil Procedure) Rules, when the lower court held thus;
“I have left the objection of the 7th Defendant last. This is because; the objection raised by the 7th Defendant appears to me to be his defence to the action. There is no way that it can be determined in limine because it will entail going into the whole of the arbitral proceedings which is contained in the pleading of the defendant and not contained in the plaintiffs case at all. To make any pronouncement on it will be making a pronouncement on the substantive suit without hearing the plaintiff on the issue, I find that the issue of res judicata raised by the 7th defendant at this stage is premature and is struck out.” See page 467 of the Record of Appeal.
Order 25 Rules 2 and 3 of the Rules of the Federal High Court provides thus:-
“2(1) A party shall be entitled to raise by his pleadings any point of law, and any point so raised shall be disposed of by the judge who tries the cause at or after the trial.
(2) A point of law so raised may, by consent of the parties, or by Order of the Court or a judge in chambers on the application of either party, be set down for hearing and disposed of at any time before trial.
(3) If in the opinion of the court or a judge in chambers the decision of the point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set off, counter claim, or reply therein, the court or Judge in chambers may thereupon dismiss the action or make such order therein as may be just.”
The provisions of the said rules are clear and unambiguous. It is clear by this Rule that a Defendant or Respondent is entitled to plead in defence to the action points of law and thereafter apply for the points of law so pleaded to be set down for argument either before or during trial.
Now the question is, was the dismissal of the Cross Appellant’s Preliminary Objection on the ground that same was premature a misdirection in law? The Cross Appellant contended that it is, in that the objection raised was part of its defence to the action and properly brought pursuant to Order 25 rules 2 and 3 of the rules for Federal High Court. He also contended that it is not the intention of the rules that the points of law raised must of necessity have been raised in the plaintiff’s pleading and in the defence as suggested by the learned trial judge. He also contended that the point of law raised by the Cross Appellant is that the matters sought to be raised by the Appellant against the Cross Appellant are matters raised and determined by the International Arbitral Tribunal to which the Appellant and the Cross Appellant were parties.
In determining the preliminary objection, the trial court held that the objection raised by the Cross Appellant appears to the court to be its defence to the action, and therefore to make any pronouncement on it will be making a pronouncement on the substantive suit without hearing the Plaintiff on these issues and concluded that the defence of res judicata raised therein at that stage is premature and struck out the preliminary objection.
In my humble view, the learned trial judge considered the objection on the merit, his finding thereon is unimpeachable. It is clear that what the Cross Appellant did in his Statement of Defence was to bring in issues which had not been raised by the Cross Respondent and were not part of the Cross Respondent’s case in the lower court. It is now settled that whether an action is incompetent for or by any reason whatsoever, such can only be determine by the claim of the plaintiff before the court and or the statement of claim and not even by the statement of defence. In the instant case, the Cross Respondent raised the point of law contemplated in the Statement of Defence and tried to show that the matters sought to be raised by the Appellant are matters raised and determined by the International Arbitration Tribunal to which the Appellant and the Cross Appellants were parties. With respect to the learned senior counsel for the Cross Respondent, what the Cross Appellant had introduced and sought to be determined and dismissed by way of Preliminary Objection is a defence to the Cross Appellant against the Cross Respondent’s claim before the trial court. It is not and does not amount to an issue of law which the court will determine and dismiss the Appellant’s claim based on what was stated by the Cross Appellant, without hearing the Appellant on the other side. The objection is a defence to the Cross Respondent’s claim as found by the lower court and any pronouncement on it at that stage will amount to a pronouncement on the substantive suit without hearing the Cross Respondent on the issue. A preliminary objection on point of law challenging the validity of institution of a suit could only be determined by references to the pleadings especially the statement of claim. See AKINBI VS MIL. GOV. ONDO STATE (1990) 3 NWLR (PT140) PG 525 at 531.
It is also clear that the argument of the Cross Appellant was that the matters sought to be raised by the Cross Respondent were matter raised and determined by International Arbitration Tribunal to which the Cross Respondent and the Cross Appellants were parties and therefore the High Court lacked jurisdiction to entertain the suit. The Cross Appellant’s contention was that point was a matter of law which called for no oral evidence and should be determined without a full trial. The main claim of the Cross Respondent before the Federal High Court related to the revocation of OPL 245 by the Federal Government of Nigeria through its operatives and the subsequent grant of the same block to the Cross Appellant. These clearly were not matters before the International Arbitration Tribunal. The Cross Appellant’s argument on estoppel per res judicata are dearly unfounded. For a plea of res judicata to be available to a party, he must show that the subject matter and the parties in the case at hand are the same. See ARCHIBONG v ITA (2004) 2 NWLR (PT 858) PG 590 at 649. A plea of res judicata can only be relied upon where the subject matter in the previous suit and the subject in the present suit are the same. In the instant case therefore, a plea of estoppel per res judicata is not available to the Cross Appellant because the subject matter of the present suit is not the same as the one decided by the arbitral proceedings. The issue of the revocation of OPL 245 was not before the Arbitral Panel. The 1st to 6th Respondents were not parties in the alleged arbitration proceedings. It is clear that the subject matter of the alleged arbitration was the contractual relationship between the Cross Appellant and the Cross Respondent under the Farm in Agreement in respect of the production sharing contract between them, while on the other hand, the subject matter at the lower court relates to the statutory relationship between the 1st to 6th Respondents and the Cross Respondent and the Cross Appellant came in as a necessary party.
It is the law that for a plea of estoppel per res judicata to succeed, all the ingredients must co-exist and once any of them was missing as in the present case, the plea must fail. In the instant case therefore, it is clear that a plea of estoppel per res judicata is not available to the Cross Appellant because the subject matter in the present suit is not the same as the one decided by the arbitral proceedings. The issue of the revocation of OPL 245 was not before the Arbitration Panel and also the 1st to 6th Respondents were not parties in the Arbitration proceedings.
Based on the foregoing, the learned trial judge was right when he held that the Cross Appellant’s objections raised in its pleading and set down for argument pursuant to Order 25 Rules 2 and 3 of the Federal High Court Rules was premature.
Now, the question that may be asked at this juncture is what is the effect of this cross appeal on the claims of the Cross Respondent that was dismissed before the trial court and the withdrawal of the substantive appeal filed by it before this court against the order of dismissal by the trial court?
The substantive case had already been dismissed by the lower court and the Cross Appellant by this cross appeal is asking this court to dismiss a case that was already dismissed by the lower court. There is no claim legally speaking upon which this court can make an order for dismissal. The Cross Appellant has not shown how the dismissal by the trial court injured it or how a second dismissal by this court will be needed for the case once dismissed to be properly dismissed. This is purely an absurdity. I entirely agree with the submission of the learned senior counsel for the Cross Respondent that what the Cross Appellant has put before this court is purely academic question, one that will not affect the parties whichever way it is decided, a question which if determine one way or the other will not affect the ruling of the trial court or the position of the parties thereto. The courts have always frowned at deciding mere academic questions. In MAMMAN VS SALAUDEEN (2005) 18 NWLR (PT. 958) PG 478 at 500, the Supreme Court held thus:-
“The Supreme Court is not interested in determining academic questions because a resolution of the same in favour of either party to an appeal does not have any effect on the decision of the lower court.”
Similarly, this court, in the case of AG FED. VS FAFUNWA ONIKOYI (2006) 18 NWLR (PT.1010) 51 at 85 held as follows:-
“The Courts for good reasons do not and should not engage in mere academic exercise in the consideration and determination of matters that come before them. Courts do not act In vain, nor do they embark on an academic exercise as they are not academic institutions. Therefore whenever an Issue is brought to the court in an
Appeal, application or any other processes before it, and it is merely hypothetical and calling for an academic exercise which cannot be enforced as In the instant application such an issue is not only frowned at by the court but it refrains from embarking upon such a purposeless exercise …”
Against the background of the reliefs sought by the Cross Appellant, it becomes manifestly clear that the Cross Appellant is asking the court to embark on an academic exercise which the Supreme Court has frowned at. The fact that there are two distinct separate appeals as argued by the learned senior counsel for the Cross Appellant is immaterial. The suit of the Cross Respondent was dismissed by the lower court and the appeal filed against the dismissal which would have given life to it was withdrawn and dismissed. In effect there was nothing upon which the cross appeal could stand as you cannot place something on nothing and expect it to stand; UAC VS MCFOY (1961) 3 ALLER 1169. The determination of the Cross Appeal therefore becomes academic. The cross appeal must fail because the reliefs sought by the Cross Appellant even if granted cannot profit the Cross Appellant, as the appeal against it was dismissed by the trial court and the main appeal instituted by the Cross Respondent before this court withdrawn and dismissed. The case of the REGISTERED TRUSTEES OF ROSICRUCIAN ORDER AMORC, NIGERIA V AWONIYI (1994) 7 NWLR (PT.355) 154 at 189, relied upon by the learned senior counsel for the Cross Appellant does not avail him as the facts are not on all fours with the present appeal.
Based on the above therefore, the lone issue for determination in the cross appeal is hereby resolved against the Cross Appellant in favour of the Respondents. The Cross Appeal therefore lacks merit and it is hereby dismissed. N50, 000.00 costs each in favour of the Cross Respondent and the Respondents against the Cross Appellant.
Other Citations: (2009)LCN/3430(CA)
