Judgment
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment) : This appeal is against the ruling of the High Court of Delta State sitting at Effurun (the lower Court) delivered on 1/6/2017 in Suit No. EHC/161/2017 by Gbemre, J. In the ruling, the lower Court upheld the preliminary objections filed by the 1st and 2nd respondents against the suit filed by the appellant on the basis that the dispute between the parties ought to be submitted to arbitration as stipulated in the agreement governing their relationship. The lower Court therefore struck out the suit.
Aggrieved by the decision, the appellant appealed to this Court by the means of a notice of appeal filed on 30/6/2017, which notice was amended by the leave of this Court granted on 8/2/2021. The facts of the case that led to this appeal as are relevant to the issues to be discussed in this judgment are that the appellant was engaged by the 1st respondent to construct a proposed College of Science for it. The contract was governed by Articles of agreement and conditions of service.
The appellant stated that it completed the job and the 2nd respondent, the architect, engineer and planner engaged by the 1st respondent for the job, submitted the architect’s final certificate to the (1st) respondent in favour of the appellant. The said certificate certified the sum of N51,572,556.39 as being due to the appellant. Upon default of payment, the appellant wrote a demand notice to the (1st) respondent. When payment was not made, the appellant filed a writ of summons accompanied by a statement of claim in which it claimed monetary reliefs against the respondents.
The appellant also applied for summary judgment against the respondents. In response, the 1st respondent entered a conditional appearance and filed a notice of preliminary objection praying the lower Court to dismiss or strike out the suit on the grounds that the suit was incompetent and that the lower Court lacked the jurisdiction to entertain the same.
The 1st respondent subsequently filed a notice of intention to defend, an affidavit disclosing a defence on the merit, a statement of defence and a motion for extension of time within which to file the said processes. The 2nd respondent on his part filed a statement of defence, witness deposition and a notice of preliminary objection to the suit, among other processes. The processes were filed on the same date.
