Kwara State Water Corporation & Ors V. Aic Nig. Ltd & Anor (2008)

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CHIMA CENTUS NWEZE, J.C.A.

The first respondent here-in [plaintiff at the lower court] took out a writ of summons at the Federal High Court holden at Ilorin against the appellants [defendants at the lower court] claiming certain declaratory and injunctive reliefs.

Sequel to the settlement of pleadings, the first respondent [as plaintiff] beseeched the court with an application for an order of stay of proceedings and a reference to arbitration.

The lower court [coram Olayiwola J] granted the reliefs prayed for: it entered an order staying the proceedings. In consequence, it granted the parties the indulgence to explore a resolution of their differences through arbitration. The defendants were dissatisfied with the outcome of that application, hence this appeal. They formulated three issues for the determination of this court.

The first respondent greeted the Notice of Appeal with a preliminary objection, praying for:

An order striking out grounds (sic) the Appellants’ Notice of Appeal dated 1/3/07 on the ground of incompetence for non-compliance with Section 242 of the Constitution of the Federal Republic of Nigeria 1999.

The objection was erected on four grounds, namely:

(a) The decision of the Federal High Court delivered on the 14th (sic, 18th) of February, 2005 was interlocutory in nature.

(b) Grounds 3, 4 and 5 of the Appellants’ Notice of Appeal dated 1st March, 2005 do not raise questions of Law and are on the contrary grounds of facts or at best mixed law and fact.

(c) An appeal against the interlocutory decision of the Federal High Court on grounds other than error of law does not lie as of right.

(d) The Appellants did not obtain the leave of either the Federal High Court or this Honourable Court before filing grounds 3, 4 and 5 of their Notice of appeal dated 1st March, 2007.

When the appeal came up for hearing on October 22, 2008, counsel for the first respondent adopted the brief deemed properly filed on June 18, 2008.

Before proceeding with the determination of this appeal, it is only meet and proper that I dispose of the issues raised in the said objection. I will, therefore, deal with it now.

THE PRELIMINARY OBJECTION