Facts:

The respondents, the Nigerian National Petroleum Corporation and the Pipeline and Products Marketing Company Limited commenced an action at the Federal High Court Abuja Division by Originating Summons against First Fuels Limited the appellant claiming that the Arbitration Tribunal misconducted themselves by determining the issue before them beyond the scope of the parties submission and thus acted in excess of their jurisdiction in the Arbitral Award given. At the Federal High Court the appellant raised a preliminary objection on the grounds of the jurisdiction of the court and the incompetence of the suit. The Judge directed that the preliminary objection and the substantive suit be heard together and directed defendant to file its defence to the Originating Summons within 8 days.

The appellant filed an interlocutory appeal against the decision of the Federal High Court and contending inter alia that the trial court was in error to have decided to hear, the preliminary objection challenging its jurisdiction and the competence of the suit with the originating summons. The respondents raised a preliminary objection as to the jurisdiction of the Court of Appeal to hear the appeal on the ground that the appellant’s grounds of appeal raised the issues of facts or mixed facts and law and as such, did not lie to the Court of Appeal as of right, but requires leave of either the lower court or the Court of Appeal.