Business

Taking Preliminary Objection With Main Suit Amounts To Overruling Before Argument

Published

12 years ago

November 2, 2011

IN SUPREME COURT OF NIGERIA

On Friday, the 24th day of June, 2011

Suit No. SC3/2011

BEFROE THEIR LORDSHIIPS

DAHIRU MUSDAPHER … Justice of the Supreme Court

CHRISTOPHER MITCHELL CHUKWUMA ENEH … Justice of the Supreme Court

OLUFUNLOLA OYELOLA ADEKEYE … Justice of the Supreme Court

SULEIMAN GALADIMA … Justice of the Supreme Court

BODE RHODES VIVOUR … Justice of the Supreme Court

BETWEEN

1. HON. ZAKAWANU I. GARUBA

2. HON. LEVIS A. AIGBOGUN

3. HON. FRANCIS O. OKIYE

4. HON. BLESSING AGBEBAKU

5. HON. CHRISTOPHR I. ADESOTU

6. HON. SUNDAY EBOSELE EREEGHAN

7. HON. EMAMMA OKODUWA

HON. ZAKAWAN I. GARUBA & ORS V. HON. EHI BRIGHT

OMOKHODION & ORS CITATION (2011) LPELR.SC 3/2011 \

The purported amendment of the record of appeal/proceeding as claimed by the appellants has no sanction of the court either by granting or refusing the amendment and so it is a nonstarter. Meaning that the mere filing of an affidavit challenging the instant record/ proceeding of 26/4/2010 without more cannot by that fact alone (ie. without more) effectively and effectually amend the record of appeal. And I so hold.

What are the consequences for so holding as per the foregoing? They are far reaching. I have already set out the grounds of appeal and the four issues particularly issues 1 and 2 raised therefrom for determination in this matter as above. The appellants have made no bones as to the common basis of the said four issues and even the 10 grounds of appeal in this matter. The four issues so also grounds 3, 4, 6, 8, 9 and 10 of the grounds of appeal by the nature of the questions they have raised respectively have to stand or fall based on whether or not the record of appeal/proceeding of 26/4/2010 has been duly amended by the affidavit filed by the appellants challenging the record. These issues and the grounds as argued by the appellants have been premised on the unfounded basis that the record/proceeding of 26/4/2010 has been so amended hence the complaint as per issue one that the lower court has subtracted or read out of the record, “what is there” and on issue two of not having taken judicial notice of the judgments of this court cited in ground one. That the appellants have laboured under a misconception and misapprehension as to the amendment of the record of appeal/proceeding of 26/4/2010 is borne out from their submission as per paragraph 4.05 page 13 of their brief and I quote:

“The lower court… was in grave error when it stated that no case was cited or referred to in the record of appeal. The court did not advert its mind to the affidavit challenging the record of court dated 26/4/2010 on the omission of the cited authorities … we submit that the conclusion of the Court of Appeal … that the cases were not cited or referred to in the proceedings of the trial Court for 26/4/2010 is not borne out of the record of appeal at pages 250, 251, 252, 253, 257,258,259260 -263A of the Record of Appeal The conclusion of the Court of Appeal that no case was cited or referred to is not borne out of the record … “

Their misconception with respect is profound. It is settled law that courts, the parties and their counsel are bound by the record of appeal. And so no court has the jurisdiction to go outside the record to draw conclusions which are not supported by the record. I find that the four issues and grounds 3, 4, 6, 8, 9 and 10 also have been raised on the basis that the said record of appeal/proceeding of 26/4/2010 has been fuly amended by the affidavit challenging the record of appeal to include the proceedings of 26/4/2010. This is not so as per my findings above.

In the result having pulled the rug as it were from underneath the appellants submissions as to the competency with regard to the four isues raised for resolution here and the said rounds above mentioned they become baseless and utterly without foundation and therefore incompetent and should be struck out. It is trite that you cannot stand something on nothing and expect it to stand and in the same way issues for determination must spring from grounds of appeal which in turn must have arisen from the court’s decision. Finally, it has been argued in this matter that this appeal has been struck out by the lower court for failing to seek and obtain have of court before filing the appeal as prescribed by Section 242 of the 1999 Constitution as amended having raised grounds of fixed law and facts therein. It is also common ground that the trial Court’s directive deal first with the preliminary objections mounts to an interlocutory order based on the exercise of its discretion. It is trite law that an appeal against an interlocutory decision other than on grounds of law requires have of court. The provisions of Sections 241(l) and 242 (supra) have clearly set out when appeals will be presented as of right or with leave respectively of the Federal High Court or State High Court or the Court of Appeal as the case may be. And so it is settled law that right to appeal is statutory. Whether the instant exercise by the appellants of their right to appeal is properly founded in law has been challenged by the respondents based on the nature of the instant 3 grounds raised against the trial Court’s decision in this matter. This has formed the basis of grounds 1, 2 and 5 to this court.

The question to be resolved in this respect is whether or not the 3 (three) grounds of appeal raised before the lower court require leave of court to be competent having been raised against the trial Court’s decision in exercise of its discretionary power. This depends on whether or not the grounds raised are questions of law. The point therefore must be made that the distinction between a ground of law and a ground of fact or mixed law and facts though very thin, is fundamental to resolving the instant question, which is difficult and blurred to define and apply. See: Ugboaja v. Akinloye Somemimo (2008) 16 NWLR (pt.1113) 278 at 293-294. See Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 718. To determine whether a ground of appeal is one of law or fact requires examining the main ground in the context of its particulars so as to determine the nature of the question the ground has raised or complaining about. The appropriate approach to determming the issue put simply in the circumstances is whether the 3 grounds irrespective of how couched have challenged ie. questioned the discretionary exercise of the power of the trial Court to hear the preliminary objections of the 3 sets of defendants/respondents first before dealing with substantive matter on the merits or to deal with the originating summons and the preliminary objections together. See Nwaaike v. Ibekwe (1987) 4 NWLR (pt.67) 718, Obi v. Owolabi (1990) 5 NWLR (pt.153) 702, Olaosebikan v. Williams (1996) 5 NWLR (pt.449) 437 at 442. The trial Court opted to near the preliminary objections first in exercise of its discretionary power. It is beyond argument that the appellants have questioned the trial Court’s discretion in making the interlocutory order in other words, thus questioning the evaluation oj the facts. See State v. Bassey (1994) 9 NWLF (Pt.367) 130 at 13D. I find that by examining the said 3 grounds of appeal will lead to further examining of the facts and circum stances on which the trial Court’s exercis! of its discretion in the matter of the direc tive it has given is premised and I have no doubt that the 3 grounds are a product of exercise of discretion and so a composite of mixed law and facts.

Again, even then reading the main grounds of the 3 grounds of appeal along side their particulars shows that they are complaining of the trial Court’s exercise c its discretionary power. And I so find. This question has been settled by the pronouncement of this court in F.B.N. Ltd. v. Abraham (2008) 18 NWLR (PU1l8) 172 at 189A-B wherein it held that and I quote:

“A ground of appeal questioning the exercise of discretion by a lower court is not a ground of law but a ground of mixed law and facts.”

From my reasoning above I am in entire agreement with the finding in the above cited case. So that the 3 grounds of appeal in this matter having raised a question of mixed law and facts require leave of court, the appellants have filed this appeal without first having obtained leave of court and they will take the consequences. It is trite that without leave of court having been first sought and obtained before filing the appeal, the appeal will be incompetent and liable to be struck out pursauant to Section

233(3) of the 1999 Constitution and I so hold. Having so concluded I see no justification examining any other issues raised here as this finding goes to the root of the appeal vis-à-vis the notice of appeal not having any competent ground on which to sustain it and the appeal therefore being incompetent it is here by struck out.

For all the reasons I have given above, I find no merit in this appeal and it stands dismissed in its entirety. I hereby affirm the decision of the local court. I make no order as to costs.

Cross Appeal

The respondents/cross-appellants in the cross appeal are the 12th -14th respondents in the main appeal. They have filed a Notice of Appeal dated 3/2/2011 and have filed their brief of argument in the cross appeal and from it has distilled a sole issue for determination, viz:

“ … whether the Ruling by way of a directive of the learned trial judge on the 26th April 2010 amounted to a decision for which the appellants can appeal.”

Arguing the sole issue raised in this matter they have submitted that the directive of 26/4/2010 as per the interlocutory order made by the trial Court on 26/4/2010 has done no more than to have considered the priority of the pending applications before it and so not a decision within the meaning as contemplated in Sections 241, 242, 243 and 318 of the 1999 Constitution as amended. As a guide to the court to resolving this matter they have cited United Ventures Ltd. V. F.C.M.B. Ltd. (1998) 4 NWLR (Pt.547) 596 at 555 paragraphs B-F and 564 per Musdapher JCA (as he then was), Okeke v. Uzo Chukwuma Motors (2001) 3 NWLR (Pt.700) 338 at 345 – 355 C/ A, 11 NWLR (Pt.724) 341 at 348 paragraphs G-H, Chidozie v. Mosowan (1999) 1 NWLR (Pt.556) at 328 paragraphs C-D, F-H. The court is urged to resolve this issue in favour of the respondents/ cross appellants.

To be Continued

Business

Paper Industry’s Economic Contribution Hits N398bn

Published

2 days ago

April 22, 2024

The Tide

The contribution of the paper industry rose to N398.8billion in 2023 from N356billion it recorded in 2022.
Chief Executive Officer of the Centre for the Promotion of Private Enterprise (CPPE), Dr. Musa Yusuf, disclosed this in a report released to mark the inauguration of World Envelopes Day in Lagos.
Marking the event, which also commemorated the 50th anniversary of envelope manufacturing firm, FAE Limited, Yusuf stated that the paper industry has a profound economic impact across all sectors of the economy.
He, however, noted that the growth in digital technology had greatly disrupted the sector, especially as a mode of communication.
“As of 2023, the value of the Nigerian paper industry was N398.8billion naira, according to the National Bureau of Statistics.
“The value was N365bn in 2022; N363 billion in 2021; and N255billion in 2020. This is a significant contribution to our GDP. However, when compared to the size of our economy, which is estimated at N230trillion as of 2023, it is still very small”, the CPPE boss stated.
Yusuf said the paper industry had been largely in recession because of the digital technology disruptions and other macroeconomic headwinds, especially relating to exchange rate depreciation, forex liquidity crisis and high cost of fund and energy cost escalation.
He emphasised that the paper industry had a profound economic impact across all sectors of the economy, which underscored the need for government intervention in the sector.
In her opening remarks, the Managing Director of FAE Limited, Funlayo Bakare, described World Envelopes Day as the brainchild of the company, which sought to set aside April 16 as a day to celebrate the fundamental role envelopes play in daily communication.
“As we celebrate our golden jubilee, we are delighted to announce the inauguration of World Envelopes Day, to be celebrated annually on the 16th day of April.
“This is a pioneering initiative by FAE Ltd in accordance with our leadership position in the sector.
“The establishment of World Envelopes Day is to raise awareness about the importance of envelopes in various aspects of human endeavour, including personal correspondence, business transactions, and creative expressions”, she said.
The Publisher of The Guardian Newspaper, Maiden Ibru, who chaired the occasion, stressed the need to strike a balance between digitalisation and physical paper production, especially due to the indispensable role paper plays in cultural preservation.
Nigeria once had three paper mills: the Nigeria Paper Mill Limited, located in Jebba, Kwara State; the Nigerian Newsprint Manufacturing Company Limited, Oku-Iboku, Akwa Ibom State; and the Nigerian National Paper Manufacturing Company Limited in Ogun State.
The mills are no longer operational, and the country has had to depend on importation to make up for the shortfall.
The Asset Management Company of Nigeria has taken over the management of NNMC over unpaid debts.

Business

Aviation Union Threatens Strike Over Revenue Deduction

Published

2 days ago

April 22, 2024

The Tide

The Air Transport Services Senior Staff Association of Nigeria (ATSSSAN) has said it would embark on industrial action if the Federal Government refuses to exempt aviation agencies from a directive that seeks to deduct 50 per cent from their Internally Generated Revenue (IGR).
ATSSSAN disclosed this in a communique issued by its National Executive Council (NEC) after its National Economic Council meeting in Ibadan, Oyo State.
The NEC, which had in attendance all 17 affiliates of ATSSSAN comprising all branch Chairmen, Secretaries, and national officers, reiterated calls for the exemption of the aviation agencies from the deduction of 50 per cent of their IGR under the Fiscal Responsibility Act.
The association said the agencies were not established for profit, hence stifling them of the required funds would jeopardise the effective performance of their safety and security mandates.
ATSSSAN warned that if the Federal Government insist on the deduction, it would compound the current financial state of the agencies, and “we may be forced to direct all aviation workers to down tools until the government reverses itself”.
Last year, the Federal Government directed the Office of the Accountant General of the Federation to immediately commence the presidential directives on a 50 per cent automatic deduction from the IGR of Federal Government-owned enterprises.
The Minister of Finance and Coordinating Minister of the Economy, Wale Edun, had issued a circular titled, “Re: Implementation of the Presidential Directives on 50 per cent Automatic Deduction from Internally Generated Revenue of Federal Government Owned Enterprises (FGOEs)”.
According to the circular, all partially-funded Federal Government agencies and parastatals (receiving capital or overhead allocation from the Federal Government’s budget) should remit 50 per cent of their gross IGR, while all statutory revenues, like tender fees, contractor’s registration, and sales of government assets, among others, should be remitted 100 per cent to the sub-recurrent account.
ATSSSAN stated its apprehension over what it perceives as deliberate efforts by certain private airlines to stop their employees from forming labour unions.
Citing Section 40 of the Nigerian Constitution and international labor norms, the association contends that such actions constitute a violation of workers rights.
The statement, however, did not specify the airline operators suppressing workers from joining unions.
Part of the statement read, “The NEC-in-session calls on all employers in the private sector in the aviation industry to respect collective bargaining agreements in order to avert industrial crises at the workplace.
“NEC-in-session was seriously disturbed by the continuous willful acts by some private airlines towards frustrating the unionization of their employees, contrary to the letters and spirit of Section 40 of the Constitution of the Federal Republic of Nigeria and relevant international conventions and laws”.
The association, therefore, called upon the Federal Ministry of Labour and Employment to uphold and enforce employees’ rights to unionise within the aviation industry.
It urged the Minister of Aviation and Aerospace Development, Festus Keyamo, to orchestrate a dialogue involving all relevant stakeholders, including the non-compliant airlines and labour unions, under the auspices of the Labor Ministry.
At the meeting, other issues affecting workers, especially members’ welfare and working conditions, and the aviation industry at large were discussed, and positions and resolutions were taken.
The aviation group decried what it perceive as a dearth of avenues for career progression within government-owned aviation entities.

Business

NCDMB Rakes In $1m Return On NEDOGAS Investment

Published

2 days ago

April 22, 2024

The Tide

Management of the Nigerian Content Development and Monitoring Board (NCDMB) says it has received a cheque of $1 million from Nedogas Development Company Limited (NDCL).
A statement made available to newsmen by the Directorate of Corporate Communications and Zonal Coordination of the Board said the sum received was part of the return on investment (ROI) on one of its strategic investments.
The statement added that: “The cheque was presented by the Chairman of the company, Engr. Emeka Ene, when he visited the Nigerian Content Tower in Yenagoa, Bayelsa State, where he was received by the NCDMB’s Executive Secretary, Engr. Felix Omatsola Ogbe, and other members of the Board’s management.
“Nedogas Development Company Limited (NDCL) is a joint venture company between Xenergi Limited and NCDMB Capacity Development Intervention Company.
“As part of the project, Nedogas NDCL constructed and commissioned a 300 MMscfd Capacity Kwale Gas Gathering (KGG) and injection facility located in the Umusam Community, near Kwale in Delta State, Niger Delta, Nigeria.
“The KGG Facility was designed to handle stranded gas resources in Nigeria’s OML56 oil province by providing the opportunity for independent operators in the area to monetize natural gas from their fields through the gas gathering, compression, injection and metering infrastructure of the KGG for quick market access.
“Nedogas is one of the several strategic and successful investments of the NCDMB funded from the Nigerian Content Development Fund (NCDF), in line with the Board’s mandate to build capacity and catalyze local projects in the Nigerian oil and gas industry as enshrined under the Nigeran Oil and Gas Industry Content Development (NOGICD) Act”.
In his remarks, according to the statement, the NCDMB Executive Secretary stated that the success story of NEDOGAS at Kwale, Delta State, could be replicated in other oil and gas producing communities to minimise gas flaring, saying that Ogbe also declared the Board’s readiness to continue collaborating with the company.
“Their model should be extended to other parts of the country where gas flaring is continuing.They have shown that with the modular system, we can quickly remove flaring from our operations in Nigeria.
“The NCDMB had continued to receive briefings from its investment partners. We’re still waiting for them to come back with success stories. Some of them are near completion and have not started operations yet”, the NCDMB’s Executive Secretary said.
In his remarks, Chairman of NEDOGAS, Mr. Emeka Ene, conveyed the company’s excitement in returning part of the credit and profit, adding that it was a proof that the NCDMB’s investment was a success and they are getting back that investment, adding that the firm looks forward to further collaboration with the NCDMB to expand its scope.
Responding, the NCDMB boss said the Board was now doing effectively and practically and tangibly what it was set up for, saying its mandate was to impact the economy by direct interventions.
“That’s the way the economy can grow, improve the gas infrastructure in such a way that’s sustainable despite the tight economic conditions”, he said.
He added that, “the value propositions of the Nedogas project include total eradication of flared gas and conversation of environmental pollutants into products of value and creation of a strategic gas gathering hub and injection node for quick access to market for gas owners to monetize gas”.
Other benefits, according to Ogbe, include the provision of alternative gas supply to western flank of the OB3 line to add to the volumes of economic sustainability and increase in Nigeria’s Gross Domestic Product (GDP).
“The partnership with NEDOGAS is one of NCDMB’s 15 strategic investments geared towards actualizing the Federal Government’s aspirations in key areas of the oil and gas industry.
“Most of the projects were targeted at actualizing the Federal Government’s Decade of Gas programme.
“Some of NCDMB’s notable third-party investments include Waltermith’s 5000 barrels per day (bpd) modular refinery in Imo State, Azikel Group12,000 bpd hydro-skimming modular refinery in Gbarain, Bayelsa State, and Duport Midstream’s 2,500bpd modular refinery in Edo State.
“Other investments of the Board include Better Gas Energy for LPG terminal and gas distribution, partnership with Rungas Prime Industries Limited to establish a cooking gas cylinders manufacturing plant in Polaku, Bayelsa State, and Alaro City in Lagos and the partnership with Butane Energy to deepen LPG utilization in the North”, he stated.
The Executive Secretary also noted that there was the partnership with BUNORR Integrated Energy Limited in Port Harcourt, Rivers State, to produce 48,000 litres of base oil per day and partnership with the Nigerian National Petroleum Corporation (NNPC) Limited, Brass Fertilizer and Petrochemical Company Limited, and DSV Engineering to establish a 10,000 Ton Methanol Production Plant, Odioama, in the Brass Local Government Area of Bayelsa State.