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.