United Cement Company of Nigeria Limited V. Akamkpa Local Government Council & Ors (2016)
LawGlobal-Hub Lead Judgment Report
ONYEKACHI AJA OTISI, J.C.A.
This appeal is against the judgment of the Federal High Court sitting at the Calabar Judicial Division Coram Honourable Justice E. A. Obile, delivered on Wednesday, March 27, 2013 wherein the learned trial Judge declined jurisdiction to entertain the suit of the Appellant and made an order transferring the Appellant’s suit to the Chief Judge of Cross River State.
?The Appellant, as plaintiff had filed an originating summons in the Calabar Judicial Division of the Federal High Court, praying inter alia for a declaration that the 1st Respondent herein, sued as 1st defendant therein, does not have the constitutional right to recognize and/or authorize any person or group of person(s) or association as Mines and Quarry Development Association and to operate as such. Learned Counsel for the Respondents filed a Preliminary Objection objecting to the jurisdiction of the Court on the grounds that the dispute between the parties was a trade dispute. In his ruling on the preliminary objection, the learned trial Judge held, inter alia, that “the preliminary objection raised by the
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defendants Counsel is sustained. The objection has merit and is upheld although not on his ground of complain”. The learned trial Judge went on to transfer the originating summons to the Honourable the Chief Judge of Cross River State. Dissatisfied with the said ruling and the consequential order, the Appellant lodged this appeal on April 5, 2013 by Notice of Appeal upon three grounds of appeal.
The parties exchanged Briefs of Argument, including the Appellant’s Reply Brief, which were all respectively adopted on 26/4/2016 by Julius O. Idiege, Esq. for the Appellant, and by Chief F.O. Onyebueke for the Respondents.
The Appellant formulated as a sole issue for the determination the following:
“Whether the learned trial judge was right in law to have declined jurisdiction to entertain the suit of the Appellant?.
This issue was adopted by the Respondents.
It was submitted for the Appellant that the learned trial Judge contradicted himself when he held, inter alia, that ?the preliminary objection raised by the defendants Counsel is sustained. The objection has merit and is upheld although not on his ground of complain”. It was
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contended that having found that the ground of complaint of the Respondents was not sustainable, the learned trial Judge ought to have dismissed their preliminary objection and then proceeded to entertain the claims of the Appellant. But that the learned trial Judge went outside the pleadings to suo motu raise an issue, consider and determine it, without giving the parties opportunity to address him on it. In so doing, it was argued that the Appellants were denied fair hearing; relying on Stirling Civil Engineering (Nig) Ltd v Yahaya (2005) 11 NWLR (Pt 935) 181 at 211-212; Mil Gov. of Lagos State v Adeyiga (2012) ALL FWLR (PT 616) 396 at 414 – 425.
?It was further argued that the learned trial Judge misdirected himself when he held that no constitutional issue had been formulated by the Appellant. This holding is contrary to the issues raised for determination and the clear declarations sought by the originating summons. By the subject matter as well as reliefs sought, the trial Court had been invited to determine issues arising from mines and the constitutional powers of the 1st Respondent in the light of Item 39 of the 2nd Schedule to the Constitution of
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the Federal Republic of Nigeria. That an invitation to a Court to interpret any part of the Constitution of the Federal Republic of Nigeria raises a constitutional question. The Court was urged to hold that the learned trial Judge misconceived the facts of the Appellant’s case by his decision. By virtue of Section 251(1)(n) of the 1999 Constitution, as amended, the trial Federal High Court had jurisdiction to entertain the matter relating to mines and minerals. Reliance was placed on Barry v Eric (1998) 8 NWLR (Pt. 562) 404 at 422-423; C.G.G. (Nigeria) Ltd v Chief Lawrence Ogu (2005) 8 NWLR (PT 927) 366 at 381. It was submitted that the fees that the 1st Respondent authorized the 2nd Respondent to collect were described as “mines fees” and has to do with mines. The Court was urged to hold that the trial Federal High Court had jurisdiction to entertain the matter submitted to it by the Appellant.
?In reply, the Respondents submitted that the claims of the Appellant in the lower Court had nothing to do with the interpretation of the Constitution as argued by the Appellant. The issue also had nothing to do with the legislation on Mines and Minerals or Oil
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Field, Oil Mining, Geological Surveys and Natural Gas. There was also no complaint as to the operation and management complained of are those of the Federal Government or its agencies. That the Appellant has tried to elevate a decision of a local Government into a constitutional provision. Reliance was placed on Peterside v IMB (Nig) Ltd (1993) 2 NWLR (PT 278) 712 at 731 – 732. Learned Counsel argued in conclusion that the Federal High Court had no statutory or constitutional jurisdiction over the subject matter. The Court was urged to dismiss the appeal.
The Appellant had submitted by originating summons, at pages 1 – 3 of the Record of Appeal, the following questions for determination by the Federal High Court:
1. A DECLARATION that by the provisions of the Constitution of the Federal Republic of Nigeria, the 1st Defendant has no constitutional right whatsoever to recognize and/or grant authority to anybody, group of persons or association to operate in the name of or in relation to or pertaining to mines and minerals;
2. A DECLARATION that the purported recognition/authorization of the 2nd Defendant by the 1st Defendant as contained in the
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letter dated 1st June, 2011 issued by the 1st Defendant to the 2nd Defendant to commence operation in whatsoever manner and/or whatever purpose connected to mines and quarry is illegal, null and void and of no effect;
3. AN ORDER directing the 1st Defendant to withdraw forthwith the recognition purportedly given to the 2nd Defendant as contained in the 1st defendant’s letter dated 1st June, 2011 addressed to the 2nd Defendant and for the 1st Defendant to revoke the authority given to the 2nd Defendant and commence operation in whatsoever manner.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd Defendant, its privies and agents from operating in any other guise or aegis and from further molestation, harassment and disturbance of the cement trailer drivers carrying cement from the Plaintiffs factory at Mfamosing, Akamkpa Local Government Area.
AND/or the determination of the following question:
Whether having regards to item No. 39 on the 2nd schedule to the Constitution of the Federal Republic of Nigeria, 2011 (as amended), the 1st Defendant has any right recognize any person, group of persons or associations as Mines and Quarry
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Development Association of Nigeria and to authorize such person(s) association(s) to operate as such.
In support was an affidavit, at pages 4 – 6 of the Record of Appeal, in which it was deposed inter alia, as follows:
8. That sometime in June, 2011, a letter dated 1st June, 2011 was issued. It was written by the 1st Defendant and addressed to the Defendant aid tilted “RE: LETTER OF RECOGNITION/AUTHORITY TO OPERATE IN AKAMKPA L.G.A.” copies of which were sent to a number of institutions including the Plaintiff. The said letter is attached and marked EXHIBIT “A”.
9. That upon being served with the letter mentioned at Paragraph seven above, the Plaintiff briefed its Solicitors who, on 21st June, 2011, wrote to the 1st Defendant, requesting it to urgently withdraw in clear and express terms the recognition granted the 2nd Defendant and to withdraw the approval granted it to operate. The said letter is annexed and marked EXHIBIT “B”.
10. That based on the letter mentioned at Paragraph eight above, agents and privies of the 2nd Defendant have, for some time now, been harassing, intimidating and extorting money from cement trailer drivers who
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load cement from the plaintiffs factory at Mfamosing on their way to their destinations thus, disrupting the smooth operation of the Plaintiff,
11. That despite EXHIBIT ?B” mentioned at Paragraph nine above, the 1st Defendant has refused and/or neglected to withdraw the recognition it granted to the 2nd Defendant on the basis of which the 2nd Defendant is carrying out its illegal extortion of money from cement trailers.
The letter referred to in Paragraph 8 above read in part:
Sequel to your registration with Akamkpa Local Government Due Process and Price Intelligence office of the council as a consultant and the various discussions held with your leadership, Council hereby issues this letter to you to enable you commence operation.
By this letter, you are authorized to collect Mines fees from all trucks operating within the quarries in Akamkpa Local Government Area as well as Unicem
In their letter, referred to in Paragraph 9, objecting to the appointment of the 2nd Respondent, the Appellant wrote:
It is pertinent to bring to your attention the fact that, all issues pertaining to mines and minerals in Nigeria including but
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not limited to fixing and collecting any form of mine fees is under the Exclusive Legislative List in the Constitution of the Federal republic of Nigeria, 2011 (as Amended). It is therefore our candid opinion that no State or Local Government Council including Akamkpa Local Government council can lawfully make any legislation and/or approve the collection of any Mines fees as authorized in your letter…
See pages 1 – 12 of the Record of Appeal. In the counter affidavit of the 1st Respondent as 1st defendant therein, the claims of the Appellant were denied.
In support of their preliminary objection, challenging the jurisdiction of the Federal High Court, the Respondents’ Counsel had argued before the lower Court that the complaint of the Appellant had arisen from a trade dispute between the Appellant and the 2nd Respondent. The Respondents had also argued that the complaint of the Appellant did not fall within the purview of the jurisdiction of the Federal High Court by virtue of Section 251 and 254 of the 1999 Constitution, as amended; see page 27 of the Record of Appeal. On the other hand, the Appellant had contended that their complaint was based
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on a constitutional issue. The Appellant had relied on the provisions of Section 4(1) and (2) and Item 39 of the Second Schedule of Part 1 of the 1999 Constitution, as amended to contend that the trial Federal High Court had jurisdiction to entertain the suit. The learned trial Court in considering the preliminary objection, reformulated the lone issue for determination: whether this Court has the jurisdiction to entertain this suit, and took account of arguments of the parties in upholding the merit of the preliminary objection.
In considering this issue, the learned trial Judge, said at page 45 of the Record of Appeal:
“It is very clear from the claim of the plaintiff and the submission of its counsel that this Court is being asked to determine the constitutionality or otherwise of the 1st defendant’s authority to issue Exhibit A in the light of the provision of item 39 on the 2nd Schedule to the Constitution and not, a trade dispute between the plaintiff and the 2nd defendant as contended by the defendants (sic) counsel…the letter that is Exhibit A is not a deed, will, or an instrument for a declaration of right. No constitutional question has
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been formulated for determination by the plaintiff.”
The learned trial Judge considered Section 4 (1) and (2) and Item 39 of the Second Schedule of Part 1 of the 1999 Constitution, as amended relied upon by the Appellant and held that provisions were not relevant to the case of the Appellant. The preliminary objection was not upheld on the contention of the Respondents that the complaint of the Appellant had arisen from a trade dispute between the Appellant and the 2nd Respondent. The trial Court rather upheld that the preliminary objection on the ground that it lacked jurisdiction to entertain the matter as it did not fall within the purview of Section 251 of the 1999 Constitution, as amended, from which it derived its jurisdiction. The issue as formulated by the learned trial Judge took account of the essence of the preliminary objection raised by the Respondents. The subsequent conclusions of the learned trial Judge, though not exactly couched in distinct terms, took into account the arguments of the parties. The sole issue as formulated by the learned trial Judge was not raised suo motu without giving the parties opportunity to be heard on it. There
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was therefore no breach of fair hearing.
The jurisdiction of a Court is very fundamental to the adjudication of the matter before it. Jurisdiction is the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is always a threshold issue. It is so radical that it forms the foundation of adjudication. The jurisdiction or authority of the Court is controlled or circumscribed by the statute creating the Court itself. or, it may be circumscribed by a condition precedent created by legislation which must be fulfilled before the Court can entertain the suit. These touch on the legal authority of the Court to adjudicate in the matter. If a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508: Aremo II. v Adekanye (2004) 11 MJSC 11; Drexel Energy and Natural Resources Ltd & 2 Ors. v Trans International Bank Ltd (2005) 12 S. C. (Pt II) 240.
?As rightly held by the learned trial Judge, it is the plaintiffs claim that determines the jurisdiction of the trial
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Court. The jurisdiction of the Court is determined by the plaintiff’s claim as disclosed in the writ of sunmons; and or the statement of claim, where it has been filed; this being because the statement of claim supersedes the writ of summons:
NV Scheep v. MV “Araz” (2000) 15 NWLR (681) 668; Ayorinde v. Oni (2000) 3 NWLR (Pt 649) 348; Omnia Nigeria Ltd v Dyktrade Ltd (2007) 12 MJSC 115. In APGA v. Anyanwu (2014) LPELR-22182 (SC), the Supreme Court, per Kekere Ekun, JSC restated the position of the law thus:
“The law is settled that in determining the jurisdiction of a Court to entertain a cause or matter, the processes to be considered by the Court are the processes filed by the plaintiff or applicant i.e. the writ of summons and statement of claim, or…the originating summons and its supporting affidavit.”
See also Opia v. INEC (2014) LPELR – 22185 (SC).
The entire content and claim in the statement of claim is the material to be examined in determining whether or not a Court has jurisdiction to entertain a matter, rather than the defendant’s statement of defence. The defence of the Respondents need not be considered at this stage; Tukur v.
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Govt of Gondola State (No.2) (1989) 4 NWLR (pt 117) 517; Adetayo v. Ademola (2010) 15 NWLR (pt 1215) 169.
The 1st Respondent authorized the 2nd Respondent by letter, already reproduced above to collect Mines fees from all trucks operating within the quarries in Akamkpa Local Government Area as well as Unicem.
The Appellant contends that this action offends Constitutional provisions, specifically: Section 4 (1) and (2) and Item 39 of the Second Schedule of Part 1 of the 1999 Constitution, as amended, and that only the Federal High Court has jurisdiction to entertain a complaint on this basis.
Section 4 (1) and (2) and Item 39 of the Second Schedule of Part 1 of the 1999 Constitution, as amended provide as follows:
4(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative list set out in Part 1 of the Second Schedule to
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this Constitution.
?Item 39
Mines and minerals, including oil fields, oil mining, geological surveys and natural gas.
Section 251(1)(n) of the Constitution brings issues relating to mines and minerals under the jurisdiction of the Federal High Court. The bracketed words in the Constitutional provision: (including oil fields, oil mining, geological surveys and natural gas), bring comparable issues under the jurisdiction of the Federal High Court. See also Section 7(1)(n) of the Federal High Court Act, as amended in 2005. See: S.P.D.C. v Maxon (2005) 9 NWLR (PT 719) 541; Chevron Nig. Ltd vs. Roberts (2010) LPELR-3908 (CA); Julius Berger (Nig.) Plc v Anizzeal Eng. Projects Ltd (2013) LPELR-20694 (CA).
The said letter written to the 2nd Respondent by the 1st Respondent, reproduced in part above, states:
Sequel to your registration with Akamkpa Local Government Due Process and Price Intelligence Office of the council as a consultant and the various discussions held with your leadership, council hereby issues this letter to you to enable you commence operation.
By this letter, you are authorized to collect Mines fees from all trucks
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operating within the quarries in Akamkpa Local Government Area as well as Unicem
(Emphasis mine)
In the affidavit in support of the originating summons, at pages 4 – 6 of the Record of Appeal, the Appellant deposed thus:
4. That the Plaintiff? is engaged in the business of producing, packaging and sale of cement The plaintiff has its factory site at Mfamosing, Akamkpa Local Government Area?
10. That based on the letter mentioned at Paragraph eight above, agents and privies of the 2nd defendant have, for some time not, been harassing, intimidating and extorting money from cement trailer drivers who load cement from the plaintiffs factory at Mfamosing on their way to their destination thus, disrupting the smooth operation of the plaintiff
One of the reliefs sought by the Appellant is:
5. AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd Defendant, its privies and agents from operating in any other guise or aegis and from further molestation, harassment and disturbance of the cement trailer drivers carrying cement from the Plaintiffs factory at Mfamosing, Akamkpa Local Government Area.
(Emphasis mine)
As
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already made clear, jurisdiction of a Court is determined by the statement of claim, which must show precisely what the complaint of the plaintiff really is, for which he has approached the Court for adjudication. It is the actual complaint submitted for adjudication that determines which Court has the vires to entertain the complaint.
An examination of the complaint of the Appellant submitted to the Federal High Court will reveal the following facts: The Appellant is not engaged in any form of mining activities. The Appellant is engaged in the business of producing, packaging and sale of cement, and its factory site is located within the 1st Respondent area. The letter in issue written by the 1st Respondent to the 2nd Respondent authorized the 2nd Respondent to collect what they termed Mines fees from all trucks operating within the quarries in Akamkpa Local Government Area as well as Unicem. The clear terms of the said letter give authority to collect revenue for the 1st Respondent from trucks operating in quarries situate within the 1st Respondent. The letter also explicitly includes the Appellant, not as a quarry but as a company, which has trucks
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operating within the area. In Paragraph 10 of the supporting affidavit, reproduced above, the Appellant admitted this fact by deposing that the 2nd Respondent, consequent upon its authorization by the 1st Respondent, has now been harassing, intimidating and extorting money from cement trailer drivers who load cement from the Plaintiffs factory at Mfamosing on their way to their destinations thus, disrupting the smooth operation of the Plaintiff. These unambiguous terms of the said letter written by the 1st Respondent as well as the clear depositions of the Appellant, reveal in no uncertain terms that there are no mines and minerals, including oil fields, oil mining, geological surveys and natural gas involved to bring the Appellant’s complaint within the jurisdiction of the Federal High Court as provided in Section 251(1)(n) of the Constitution. The Appellant’s grievance appeals to be with the collection of fees, described as mines fees from trucks engaged in lifting cement from their factory. This complaint is not within the purview of the jurisdiction of the Federal High Court. I agree with the learned Counsel for the Respondent that the Appellant has
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sought to elevate an action taken by the 1st Respondent into a Constitutional issue which it is not. The conclusion of the trial learned Federal Judge to the effect that the Appellant came to the wrong Court cannot be faulted.
I see no merit in this appeal. It is accordingly hereby dismissed. I hereby affirm the decision of the Federal High Court sitting at the Calabar Judicial Division Coram Honourable Justice E. A. Obile, delivered on Wednesday, March 27, 2013 declining jurisdiction to entertain the suit of the Appellant. The further order made by the learned trial Judge transferring the Appellant’s suit to the Chief Judge of Cross River State is also hereby affirmed.
The Appellant shall pay costs of N50,000.00 to the Respondents.
Other Citations: (2016)LCN/8873(CA)
