In The Court of Appeal of Nigeria
On Friday, the 19th day of January, 2018
Before Their Lordships
MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKAJustice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGOJustice of The Court of Appeal of Nigeria
SEPLAT PETROLEUM DEVELOPMENT COMPANY LTDAppellant(s)
1. BRITTANIA-U NIGERIA LIMITED
2. CHEVRON NIG. LTD
3. CHEVRON U.S.A. INC.
4. BNP PARIBAS SECURITIES CORPORATION
5. MR. HERMANT PARTELRespondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the composite ruling of Yunusa J. of the Federal High Court, sitting at Lagos, delivered on the 13th May 2014. The ruling was in respect of several applications filed by all the defendants in suit No.FHC/L/CS/1171 challenging the jurisdiction of the Federal High Court to entertain the suit of 1st respondent (Brittania-U Nigeria Limited) because, according to the objectors, the dispute arose from a simple contract which the Federal High Court lacks subject matter jurisdiction and that the suit disclosed no reasonable cause of action. In addition, appellant who was sued as the 5th defendant sought an order in the alternative that its name be struck out because it had been improperly joined to the suit.
The case of the 1st respondent is that, sometime in 2013 she participated in a bid process undertaken by the 2nd respondent for the sale of its interests in three oil Mining Leases (OMLs) 52, 53 and 55 (referred to herein as the “Assets”). She averred that, following the bid round and meetings held between her and 2nd & 3rd respondents on the 14th of November 2013 where requirements were reviewed by the 2nd, 3rd & 4th respondents and further presentations made by the 1st respondent’s bankers, there was an acceptance of her final bid offer by the vendors and so a contract exists between her and 2nd respondent for the acquisition of 2nd respondent’s 40% interest in the said Oil Mineral Leases yet 2nd, 3rd and 4th respondents refused to declare her the winner and execute with her a Sale and Purchase Agreement, otherwise called SPA.
As regards appellant, 1st respondent further averred that it was granted unfair, unjust and unauthorized access to her bid documents, her financial mode land analysis in breach of a Confidentiality Agreement signed by the Parties.
She thus approached the Federal High Court for that Court to declare basically that there already existing between her and 2nd and 4th respondents a binding contract for the transfer of oil Mineral Leases 52, 53 and 55; that the Court order specific performance of that binding contract, award exemplary damages for breach of contract, among other reliefs.
It was to that suit and its claims which shall be reproduced later in this judgment that all the defendants including appellant raised preliminary objections as earlier stated.
Ruling of the Federal High Court
After hearing counsel on the motions, the learned trial judge. Yunusa J, gave a composite ruling on the 13th day of May, 2014 dismissing all the objections. His Lordship held that the Federal High Court has original jurisdiction to the exclusion of any other Court to hear and determine the dispute in the suit because it is connected to mines and minerals including oil fields, oil mining, geological surveys and natural gas under Section 251(1) of the Constitution which confers exclusive jurisdiction on the Federal High Court; involved the administration or management and control of the Federal Government or any of its agencies namely NNPC; that 1st respondent’s claim disclosed a reasonable cause of action. and that the suit involved interpretation of the 1999 Constitution of the Federal Republic of Nigeria which was the exclusive preserve of the Federal High Court.
Appeal and issues for determination
All the defendants are dissatisfied with the ruling and have lodged appeals to this Court. This is the appeal of Seplat Petroleum Development Company Limited, the fifth defendant in the suit. She shall henceforth be referred to as the appellant. She raised five grounds of appeal from which she framed the following two issues for determination:
1. Whether the Federal High Court was right in its finding that it had jurisdiction to entertain the suit.
2. Whether the Federal High Court was right in its finding that 1st respondent’s claims disclosed a reasonable cause of action.
The 1st respondent/claimant who was the only party to respond to this appeal first objected to the said five grounds of appeal of the appellant. She wants grounds 1, 2 and 3 struck out because they are in her view repetitive, narrative and argumentative. Grounds 4 and 5, she contends, raised issues of fact but filed without leave of Court and so further incompetent. In the event that her objection does not find favour with us, she expressed her intention to adopt the two issues formulated by appellant above for the determination of the appeal.
Arguing issue 1 – of whether the Federal High Court was right in its finding that it had jurisdiction to entertain the suit – learned counsel for appellant led by D.D. Dodo S.A.N. and Etigwe Uwa S.A.N. faulted the trial Judge’s holding that the contract involved in 1st respondent’s suit is not a simple contract but a special one because it involved the assignment of interest in Oil Mining Leases (O.M.L.). They argued that the reasoning of the lower Court reveals a misapprehension of the 1st respondent’s case as well as a misapplication of the provisions of the 1999 Constitution and other extant Laws relating to the Oil industry cited by it in its ruling. Noting that the Court’s jurisdiction is determined by the claims in the writ of Summons and the statement of claim. Counsel referred us to the claims of 1st respondent as well as her pleadings and submitted that those claims revolve around the bid process undertaken by the 2nd respondent to identify the party to purchase its said Assets, breach of confidentiality agreement by the vendors and interference with the bid process. Counsel pointed out that there is even no mention in the statement of claim of dispute on transfer and assignment of assets between 2nd and 1st respondent because no right, interest or obligation has been created in favour of 1st respondent over the said assets to enable or sustain any such averment. Counsel arguedÂ too that contrary to the ruling of the trial Judge, the action did not involve any government agency let alone the administration and control of such agency as required by Section 251(1) of the 1999 Constitution to confer jurisdiction on the Federal High Court. They argued that it did not also involve interpretation of the Constitution or a proceeding for a declaration or an injunction affecting the validity of any executive or administrative action or decision by a Federal Government agency. They cited N.C/C.E (NPI) V. Mabot Association Ltd. (2010) 2 NWLR (PT 1179) 612 @ 632 among others to submit that matters of simple contract are not included under Section 251 of the 1999 Constitution of Nigeria, therefore it is the High Courts of the States and the Federal Territory, and not the Federal High Court, that have jurisdiction in such matters. Counsel submitted that the 1st respondent’s claim is to compel an obligation arising from a simple contract and same is not covered by Section 251 (1) of the Constitution to confer jurisdiction on the Federal High Court and we should so hold.
On issue 2 of Whether the Federal High Court was right in its finding that 1st respondent’s claims disclosed a cause of action, learned counsel again submitted that whether a cause of action is disclosed by a claimant’s case is also determined by the averments in the writ of summons and statement of claim. They defined a cause of action as the facts or combination of facts which establishes or gives rise to a right of action. Citing Veepee Industies Ltd v. Cocoa Industries Ltd (2008) 13 NWLR (PT. 1105) 486 @ 505-506 learned counsel submitted that to confer a cause of action, the claimant’s pleadings must refer to evidence upon which the Court can imply prima facie existence of a legal right. Counsel submitted that was not the case in the 1st respondent’s case therefore her case ought to have been struck out by the lower Court. Counsel argued that 1st respondent’s case was hinged on the alleged agreement between her and 2nd, 3rd and 4th respondents to enter into a contract if she met certain requirements 2nd respondent had asked 1st respondent to meet; that she met certain requirements met those requirements and even acted to her detriment yet the 2nd respondent did refuse to execute the SPA for her. Appellant’s counsel then drew our attention to items 2 and 4 of the Bid Procedure Document pleaded by 1st respondent in support of its case and argued that it was there stated clearly that the bid does not constitute an offer or invitation for the sale or purchase of appellant’s assets or business described in it and shall not form the basis of any contract; that CNL (Chevron Nigeria Ltd and BNP Paribas (2nd and 4th respondents), rather 2nd respondent had the right to call for bids for the sale of its assets and had even reserved the right to negotiate with any bidder as well as reject any bids as an industry practice within the oil and gas sector in Nigeria. Similar right, counsel further submitted, has been recognized by this Court in CBN v. System Application Products Nig. Ltd (2005) 3 NWLR (PT. 911) 911@ 152 @ Para C- H.
Citing Adebanjo v. Brown (1990) 3 NWLR (PT. 141) 661 @ 689-690 (S.C.), Tsokwa Oil Marketing Co. v. B.O.N. Ltd (2002) 11 NWLR (PT. 777) 163 (S.C.) , Chukwuma v. Ifeloye (2008) 18 NWLR (PT 1118) 204 @ 241 among a host of other cases, counsel further argued that the right to call for a bid cannot be constrained neither can it constitute estoppel; that negotiation remains negotiation and cannot on its own constitute a binding contract. The SPA (Sales and Purchase Agreement) they also argued was a formal requirement for acceptance of the preferred bid; that the non-execution of an SPA is material but the 1st respondent was unsuccessful in its bid for the assets. A contract (SPA) to assign the Assets reflecting the final negotiated terms agreed to by 1st respondent and 2nd respondent, they argued, must exist to affirm the existence of a contract, and in its absence, there was no offer and acceptance and no contract and that meant that the 1st respondent had no cause of action to enforce against appellant and therefore her case ought to have been struck out and we should so do.
Responding first on the issue of the jurisdiction of the Federal High Court over the claims of 1st respondent, Messrs Rickey Tarfa S.A.N. and A. J. Owonikoko S.A.N., leading a battery of other counsel, while recognizing that it is the writ of summons and statement of claim that determines the jurisdiction of Court and simple contracts are outside the jurisdiction of the Federal High Court, placed great emphasis on the fact that the contract between 1st respondent and the 2nd to 4th respondents that is the subject matter of 1st respondent’s claim related to Oil Mineral Leases, otherwise called OMLs. Oil fields and minerals, they argued, is placed in the exclusive jurisdiction of the Federal High Court by Section 251 (1) (n) of the 1999 Constitution of the Federal Republic of Nigeria so 1st respondent was right to bring its case to that Court and that Court correct to so find. Counsel thus argued that the contract in question over the Mineral Leases was not a simple contract that could be entertained by the State High Court but a special contract relating to the ownership of an oilfield that required the transfer of interests in mines and minerals from 2nd respondent to 1st respondent. For a valid contract over Oil Mineral Leases, counsel further argued, the consent of the Minister of Petroleum Resources was necessary and mandatory. They drew our attention to the fact that 1st respondent already had a pending application before the Federal High Court to join the Minister of Petroleum Resources and the Nigerian National Petroleum Corporation (NNPC) to the suit as co-defendants. The combined of all that including the application to join the Minister and NNPC, they further argued, is to call for interpretation of the Constitution as it affects the Federal Government and its agencies. They also referred us to Section 44 (3) of the Constitution of this country which confers the entire property and control of all minerals, mineral oils and natural gases in the Government of the federation. They also made reference to Section 8 (1) (a) Petroleum Act, Cap. P10 Laws of the Federation of Nigeria providing that the Minister of petroleum shall exercise general supervision over all operations carried on under licences and leases granted under that Act. Counsel argued that the appellant’s counsel could not supply the Court with any case where it was held that claim bordering on OML as in this appeal is not within the exclusive jurisdiction of the Federal High Court. They said in Mobil Producing Nig. Unlimited v. Suffolk Petroleum Services (2007) 16 NWLR (PT. 1384) 573 @ 582 (C.A.), it was clearly stated that a contract pertaining to Oil Mineral leases (OMLs) is within the exclusive jurisdiction of the Federal High Court. They described the cases of Onuorah v. Kaduna Refining and Petroleum Co. Ltd (2005) 6 NWLR (PT 921) 393, NEPA v. Edegbero (2002) 18 NWLR (PT 798) 79 @ 100, Oliver v. Dangote Ind. Ltd (2009) 10 NWLR (PT 1150) 467 relied on by appellants as inapposite and urged us to discountenance them.
On the issue of 1st respondent’s case not disclosing a cause of action, counsel after adopting appellant’s counsel’s statement of the law on what constitutes a cause of action, argued that, to have a cause of action, 1st respondent need not necessarily show that she would succeed at the trial, all the Court need do at this stage is to be satisfied that she had made out a case fit for the defendants to answer. Counsel submitted that 1st respondent had disclosed such a case. In paragraph 5.75 of 1st respondent’s brief of argument, they argued that 1st respondent’s case “was that the two stages of the process had been completed, consideration (or binding assurances to pay) had been agreed and supplied, and what was left was the signing of the Sales and Purchase Agreement (SPA).”
All those facts, they argued, could be determined after trial. Noting that the appellant relied on the clauses in the bid agreement which purportedly gave them a right to unilaterally revoke the contract at any stage, they referred us to BFI Group v. B.P.E. (2012) 7 S.C. (PT 111) 1, (2012) 2 NWLR (PT 1150) 467; (2013) ALL FWLR (PT 676) 444 where they said the Apex Court held that upon declaration of a person as the preferred bidder and request on it by the respondent to make the necessary affirmations, there came into being a valid and binding contract upon which an order for specific performance can be made as in this case. Counsel finally urged us to so hold, resolve this issue too in favour of 1st respondent and dismiss the appeal.
Appellant filed a reply brief wherein her counsel defended her grounds of appeal against the attack of 1st respondent as well as respond to the arguments of 1st respondent’s counsel on the merits of the appeal.
In response to the preliminary objection of 1st respondent to appellant’s grounds of appeal, appellant’s counsel submitted, first, that a complaint that a ground of appeal is repetitive is not part of Order 6 Rule 2(3) of the Rules of this Court specifying what should not be contained in a ground of appeal; the key components of the rule, they argued, are that a ground of appeal should not be argumentative or narrative. For the complaint that grounds 1 -3 of the grounds of appeal were narrative and argumentative, they argued that the underlying principle behind the formulation of grounds of appeal is that they must be drafted in such a manner as not to mislead or confuse the respondent and the Court, accordingly, it is not every complaint that grounds of appeal are argumentative and narrative that can render such grounds incompetent and liable to be struck out. They cited among others the cases of Oduneye v. F.R.N. (2014) LPELR- 2300 p. 26 Para A-G, and Oranezi v. P.D.P. & Ors (2016) LPELR-41533 where it was held per Iyizoba and Yusuf, JJ.C.A, respectively that the fact that a ground of appeal is argumentative is not enough to deny an appellant his right of appeal. Learned counsel next went through each of the five grounds of appeal of the appellant and submitted that they severally convey a clear complaint, pointing out in addition that the 1st respondent’s counsel has not also complained that they found any of the grounds of appeal incomprehensible or misleading. They asserted that all five grounds of appeal are valid and we should so hold.
On the attack of grounds 4 and 5 of the grounds of appeal (the grounds complaining of absence of cause of action) as raising issues of fact and so requiring leave of Court, counsel argued that a ground that complains about lack of or absence of cause of action does not raise any issue of fact nor need an examination of facts as the facts pleaded in the statement of claim are deemed admitted for the purposes of deciding if a cause of action was disclosed. Learned counsel cited the provisions of Order 6 Rule 2(3) of the Rules of the Federal High Court as well as a number of cases including Egbe v. Alhaji (1990) 1 NWLR (P 128) 546 @ 591 – 592 for this proposition and urged us to dismiss the preliminary objection in its entirety.
Coming to the merits of the arguments of 1st respondent on the appeal itself, appellant’s counsel argued, among others, that besides the fact that 1st respondent by its argument is seeking to give its case a different coloration from what they actually pleaded and claimed, it is important to also note, in answer to their argument of leases being transferred by the contract of assignment between them and 2nd respondent, that the mere fact that an entity was or is selected as a preferred bidder was not a sure indication that it will receive the interests in the oil Asset, for the transfer of the interest in Oil Mineral Lease was first at the discretion of Chevron and finally at the discretion of the Minister of Petroleum Resources. They thus submitted that because being selected as preferred bidder did not guarantee that the assets will be transferred to the preferred bidder, the selection process cannot be seen as single transaction with the transfer of interests in the oil asset; the latter is separate and subsequent (not consequent) to the bid process and regulated by the provisions of the Constitution and the Petroleum Act cited by 1st respondent. Since the dispute arose as regards the choice of a preferred bidder who may or may not have become the assignee/contractor, they argued, the discourse around the internal and external assignment, prior written consent of state party and waiver of fees will only crystalize after selection of the preferred bidder.
RESOLUTION OF ISSUES
Preliminary objection: Let me first take on the preliminary objection of 1st respondent. As earlier shown in the summation of the arguments of counsel, the first arm of the preliminary objection was that grounds 1 – 3 of the grounds of appeal are repetitive, argumentative, narrative and vague and so incompetent. Here I must express first my agreement with appellant that Order 7 Rule 3 of the Rules of this Court 2016 which defines what a ground of appeal shall not contain does not mention repetitiveness. It simply says: “Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of evidence. And any ground of appeal or part thereof which is not be permitted under this rule may be struck out by the Court of its own motion or on application by the Respondent.” In any event, I cannot even imagine how grounds of appeal can be held incompetent and struck out merely on the ground that the particulars in support of such different grounds are repetitive, for if a finding or pronouncement of a Court gives rise to or supports different complaints/grounds of appeal, the same particulars must necessarily be repeated in support of each of such grounds. Incidentally, the complaint of repetitiveness of particulars in the grounds of appeal constitutes the main objection of 1st respondent to grounds 1- 3 of appellant as can be seen from paras 3.10 to 3.05 of her brief of argument where her counsel repeatedly hammered on that issue, so much that in paragraph 3.03 of 1st respondent’s brief they printed the word ‘repetitive’ in bold letters.
And coming to the same grounds being narrative and argumentative, which issues I have said 1st respondent hardly pursued, I agree with the appellant’s counsel that appellant’s grounds 1-3 cannot be seriously described as narrative and argumentative. Appellant clearly set out in the most comprehensive and lucid manner her complaint of challenge of lack of jurisdiction in the lower Court in those grounds. Clarity of complaint in a ground of appeal, I must emphasize, is the main purpose of formulation of grounds of appeal: Oduneye v. F.R.N. (2014) LPELR 23007 (C.A.) 26; NRC v. Cudjoe (2008) 10 NWLR (PT. 1095) 329 @ 349; Oloruntoba-Oju v. Abdulraheem (2009) ALL FWLR (PT 497) 1 @ 29 (S.C.). I guess that is also the rationale behind the use of the discretionary word ‘May’ by the rule-maker in the later part of Order 7 R. 3 reproduced above. The employment of that word seems intended to give the Court a discretion to exercise when it is urged to strike out grounds of appeal for being narrative or argumentative, which I venture to think is recognition of the fact that the right of appeal is a constitutional one so it is only in cases where the complaint of appellant is really unintelligible that the Court should resort to the extreme measure of striking out: see again Oloruntoba-Oju v. Abdulraheem supra.
In any event, and over and above all that has been said above is the fact that grounds 1 to 3 objected to all challenge, the jurisdiction of the lower Court to entertain the suit of 1st respondent. That being the case, the objection on grounds of their being narrative or argumentative can hardly stifle that complaint after all it is settled that no technicality and/or the inept manner a jurisdictional challenge is made can prevent it from being considered: see Enugwu v. Okefi (2000) 3 NWLR (PT 650) 620; Galadima v. Tambai (2000) 6 SCNJ 190; Nuhu v. Ogele (2004) FWLR (PT. 193) 362 @ 385 (S.C.). In effect, I find this arm of the objection unmeritorious.
The other arm of the objection is that grounds 4 and 5 of the appeal complaining about 1st respondent’s lack of cause of action raise issues of fact for which leave of Court ought to have been obtained to file them and appellant’s failure to do that rendered the said two grounds incompetent. Here again I completely agree with appellant’s answer that the said two grounds are competent and leave of Court was not necessary to file them. I say so because an application to strike out a pleading or suit on the grounds that it disclosed no cause of action admits for the purposes of that application the facts pleaded by the claimant in his statement of claim: see Labode v. Otubu supra (per Uwais C.J.N.), as he then was at p.229 paras B-C, & Onu J.S.C. @ p. 236-237 paras H.A; Ibrahim v. Osim supra, per Karibi-Whyte J.S.C. at p.1197 lines 40-45. That means facts are not disputed, and where facts are not disputed, the ground is one of law alone: see Ogbechie v. Onochie (1986) 2 NWLR (PT 23) 484 @ 491 paras F – G. per Eso J.S.C.; A.G., Kwara State v. Olawale (1993) 3 NWLR (PT 272) 645 @ 662 (S.C.); Arjay Ltd v. Airline Management Support Ltd (2002) FWLR (PT. 156) 943 @ 961 (S.C.) In Okedare v. Adebara (1994) 6 NWLR (PT. 349) 157@ 179 B-G (S.C.), it was even further stated that a ground which does not dispute the fact but merely raises legal conclusions arising from the admitted facts is a ground of law even though some of the particulars supplied are matters of fact. This, coupled with the earlier statement of the law on the challenge of cause of action means that it cannot be seriously said that grounds 4 and 5 which challenge the lower Court’s decision that 1st respondent had a cause of action involves disputed facts.
In the final analysis, I hold the preliminary objection of 1st respondent misconceived. It is accordingly overruled and dismissed.
With that, I proceed to the merits of the arguments on the appeal.
MERITS OF THE APPEAL
Issue 1: Whether the Federal High Court was right in its finding that it had jurisdiction to entertain 1st respondent’s suit. The combatants in the appeal, the appellant and the 1st respondent, are in agreement that what determines the jurisdiction of the Court is the writ of summons and the statement of claim. They cannot be more correct, for that is the law: see Onuorah v. Kaduna Refining and Petroleum Co. Ltd (2005) 6 NWLR (PT 821) 393; SPDC Nig. Ltd v. Sirpi-Alusteel Construction Co. Ltd (2008) 1Â NWLR (PT 1067) 128 @ 147, Tukur v. Government of Gongola State(1989) 4 NWLR (PT 117) 517 @ 549.
Counsel to 1st respondent placed so much reliance on her pending motion to join NNPC and the Minister for Petroleum to support her claim to the jurisdiction of the lower Court as those two are agents of Federal Government. Counsel’s thinking is that their status as federal agencies will confer jurisdiction on the lower Court if there wasn’t one. That is even as it avers nothing in its existing pleadings concerning them. In effect by that submission, what 1st respondent wants us to do is to decide the matter on the basis of an anticipated case. It assumes that, that application will be granted. Whether or not a Court has jurisdiction can be only determined on what is already before the Court as writ of summons or statement of claim and not on the basis of any other process let alone an anticipated process contrary to the suggestion of 1st respondent. In Society Bic S.A. V. Charzin Industries Ltd(2014) 4 NWLR (PT. 1398) 497 @ 551 – 552 it was said per Odili J.S.C., that:
“It can safely be such that jurisdiction is determined by what the plaintiff is demanding and cannot be a situation where the response is anticipated, if I may say so, would be the decider. Going contrary to using the claim as a determinant is like begging the question, allowing the cart before the horse or possible journey into speculation in getting into material outside what the initiator of the Court process was put forward.”
So, what are the claims of the 1st respondent before the Federal High Court that are outside its jurisdiction? They are contained in paragraph 94 of her statement of claim and read as follows:
“Whereof the Plaintiff claims
Against the 1st Defendant only:
(1) A Declaration that by the final binding offer made by the plaintiff to the 1st defendant on 14th November, 2013 at the invitation of the 1st Defendant in the sum of one billion and fifteen million US dollars (US$1, 015,000.000.00), for acquisition of the 40% participating interest of Chevron Nigeria Limited in Oil Mining Leases 52, 53 and 55 has been accepted by the 1st Defendant by its conduct, oral and written representations made thereafter on which the plaintiff relied and acted to its detriment, and that by provision of the irrevocable Standby Letter of Credit for the sum of the two and hundred and fifty million (US$250) opened in favour of the 1st Defendant, to remain in force until 14th September, 2014 as part payment; and further provision of firm letter of commitment by the plaintiffs bankers for payment of the balance of 765 million US dollars demanded for and duly furnished to the 1st Defendant on 15th November, 2013, the parties have entered into binding contract for the acquisition of the OMLs 52,53 and 55 by the plaintiff from the 1st Defendant for valuable consideration.
ALTERNATIVELY TO DECLARATION NO.1
(2) A Declaration that the demand by the 1st Defendant on 14th November, 2013 that the plaintiff procures its bankers to furnish firm commitment for payment of its final biding offer in the sum of one billion and fifteen million US dollars, for acquisition of the 40% participating interest of Chevron Nigeria Limited in Oil Mining Leases 52, 53 and 55 amounted to a counter offer to plaintiff’s final binding offer which the plaintiff accepted on 15th November, 2013 when it provided same to the 1st Defendant for payment of the balance of 765 million US dollars in addition to the irrevocable Standby Letter of Credit for the sum of the two and hundred and fifty million (US$250) opened in favour of the 1st Defendant, to remain in force until 14th September, 2014 by reason whereof the parties have entered into binding contract for the acquisition of the OMLs 52, 53 and 55 by the plaintiff from the 1st defendant for valuable consideration.
AGAINST ALL THE DEFENDANTS:
(3) A Declaration that the 1st-4th Defendants have no right to proceed to invite bids, offer or accept, negotiate, purport or so represent or engage in any transaction or contract to transfer, sell, farm out or otherwise deal in, dispose of change encumber, or divest the 40% participating interest of Chevron Nigeria limited in oil mining leases 53,53 and 56 in Nigeria in favour of any other person entity or whomsoever or in derogation from or in disregard of the agreement entered into between the plaintiff and the 1st Defendant on 14th and 15th November, 2013 whereby the parties entered into binding contractfor the acquisition of the OMLs 52, 53 and 55 by the plaintiff from the 1st Defendant in the sum of one billion and fifteen million US dollars (US$1, 015,000,000.00).
(4) A Declaration that the letter dated 9th December, 2013 addressed by the 1st Defendant to the Plaintiff purporting that the plaintiff’s final binding offerdo not meet the criteria that OMLs had to be sold individually and that NNPC made clear that without meeting this requirement, the government would not approve the sale of the OMLs. “and further plaintiffs offer”… did not provide the required financial support to satisfy Chevron’s internal Treasury requirement” are false, made in bad faith, extraneous to the terms of the bid irrelevant to and ineffectual to determine the contract freely entered into between the plaintiff and 1st Defendant for a valuable consideration which have been secured for full satisfaction.
(5) A Declaration that the letter by 1st defendant dated 9th December, 2013 purporting to inform plaintiff that its bid do not meet the criteria that OMLs had to be sold individually “and that NNPC made clear that without meeting this requirement the government would not approve the sale of the OMLs. and further plaintiffs offer “… did not provide the required financial support to satisfy chevron’s internal Treasury requirement” is belated and unlawful, the final binding offer sought to be thereby rejected having become subsumed in a valid binding and enforceable contract for the acquisition of the OMLs 52,53 and 55 by the plaintiff from the 1st defendant in the sum of one billion and fifteen million US dollars (US$1, 015 000,000.00).
6. An order granting a decree of specific performance directing the 1st and 2nd Defendants to provide the SALE AND PURCHASE AGREEMENT for execution by the plaintiff to evidence its acquisition of 40% participating interest of the 1st Defendant in OMLs 52, 53 and 55 in Nigeria stipulated in their revocable standby letter of credit and the Bid process Document pursuant to which he parties conducted the sale.
(7) An Order in the alternative to relief 6 granting special damages against the 1st and 2nd Defendants in the sum of us$10,935,001,000.00 (ten billion, nine hundred and thirty-five million, one hundred United States Dollars) or so much thereof as the Court may adjudge fair and equitable as the enterprise value lost by the Plaintiff on account of failure or breach of the contract of acquisition of 40% participating interest of the 1st Defendant in OMLs 52, 53 and 55 in Nigeria stipulated in the irrevocable stand by letter of credit and the Bid Process Document pursuant to which the parties conducted the sale.
(8) Exemplary Damages in the sum of one billion United States dollars (or its naira equivalent) for the wrongful interference by the 2nd-5th Defendants acting in active connivance or collusion with 1st Defendant to unjustly prejudice and frustrate the contractual relationship between the plaintiff and the 1st Defendant by making illegitimate and unauthorized use of sensitive business and proprietary information disclosed by the plaintiff in support of its bid to acquire the 1st Defendant’s OMLs 52, 53 and 55 and which information were known by the 2nd -5th defendants to have been so disclosed in strict confidence and solely for the
purpose of supporting the plaintiffs bid but which were divulged to third party leading to huge business losses and reputational damage to the plaintiff.
(9) An Order of perpetual injunction restraining the Defendants, their servants, agents privies, proxies, front, staffers or hirelings howsoever called from proceeding to invite bids, offering or accepting, negotiating or engage in any transaction or contract calculated or purporting, to transfer, sell, farm out or otherwise charge, encumber deal in, dispose of or divest the – 40% participating interest of Chevron Nigeria limited in Oil Mining Leases 52,53 and 55 in Nigeria in favour of any person, entity or whomsoever at all in derogation from or in disregard of the agreement entered into between the plaintiff and the 1st Defendant on 14th and 15th November. 2013 whereby the parties entered into binding contract for the acquisition of the OMLs 52,53 and 55 by the plaintiff from the 1st defendant in the sum of one billion and fifteen million US dollars (USS 1,015,000.000.00).
(10) Cost of this suit.
(Italics and other emphasis mine).
None of these claims called for interpretation of the Constitution or related to a Federal agency let alone for the administration and control of such federal agency including NNPC, contrary to the finding of the lower Court.
First respondent’s case in her rather verbose 94 paragraph statement of claim is not any different. I shall reproduce a few paragraphs of that statement of claim where she pleaded her case as follows:
8. The 5th Defendant amongst other indigenous oil and gas industry operators participated in bids by private and confidential treaty in the divestment of 1st defendant from its state in OMLs 52, 53 and 55 assets in the oil industry in Nigeria, which took place between the months of June and October, 2013.
9. The plaintiff avers that the 1st Defendant owns 40% interest in Oil Mining Leases (OMLs) 52, 53 and 55 in Nigeria under a joint venture agreement with the Nigerian National Petroleum Corporation who hold the remaining 60%.
10.The Plaintiff avers that the 1st Defendant was desirous of out rightly assigning/divesting its 40% interest OMLs 52, 53 and 55 to any interested person through private sale by competitive bidding.
11. The Plaintiff further avers that the 1st Defendant consequently engaged the services of the 3rd Defendant BNP Paribas Securities Corp as its Financial Advisers- and to handle the process of assigning/divesting its 40% interest in OMLS 52. 53 and 55.
12. The 4th Defendant was appointed and given the responsibilities of the bid coordinator by the 1st and 2nd Defendants.
13. The plaintiff avers that by a Bid Procedures document dated June 2013, the 1st Defendant through its Agent, BNP Paribas Securities Corp advised bid participants of the procedures to be followed with a view to assigning the 40% interest of Chevron Nig. Ltd., in OMIS 52,53 and 55 to any interested person in Nigeria as a single transaction.
The plaintiff shall rely at the trial of this suit on the Bid Procedures date June, 2013, the 1st-4th Defendants are hereby given notice to produce the original in their custody.
14. The plaintiff avers that the said transaction was to be conducted in two stages, subject to any changes which may be considered appropriate by the 1st Defendant.
15. The Plaintiff avers that the first stage was for review of information memorandum and indicative offer. Any interested party was required to execute confidentiality agreement and such party was to be subsequently invited to submit indicative offer.
16. The Plaintiff further avers that the second stage includes due diligence, contract document and binding offer. The Plaintiff and a limited number of participants who submitted indicative offer at stage 1 were found acceptable and proceeded to Stage II which involved conduct of due diligence virtual data room, (VDR) management presentation, physical data room, contract documents and finally submission of a binding offer that will be appraised by the 1st to 4th Defendants to culminate in choosing a preferred bidder.
17. The preferred bidder was to be informed of the success of its bid and invited to submit a final binding offer to acquire interest in the targeted OMIS which the plaintiff shall rely of the trial of this suit on the Bid procedures documents containing different stages in the bid process up to completion of the assignment of the targeted OMLS to the successful bidder.
The plaintiff shall at the trial of this suit rely on the Bid Procedure Document containing different stages in the bid process up to completion of the assignment of targeted OMLs to the successful bidder.
18. The Plaintiff avers that in compliance with the first requirement as contained in the Bid Procedures, the Plaintiff duly executed a Confidentiality Agreement dated 14th day of June, 2013 with the 2nd Defendant and submitted it to the 1st/2nd Defendant accordingly; and was given to understand that all other participating bidders executed similar confidentiality agreements with the 1st and 2nd Defendants of the material time.
The Plaintiff shall rely on a copy of the confidentiality agreement dated 14th day of June, 2013, the 1st-4th Defendants are hereby given notice to produce the Original in their custody.
19. The plaintiff avers that on 29th July, 2013, the Plaintiff by a letter dated 29th July, 2013, submitted the required indicative Offer with necessary bid documents by which it offered to buy the 40% interest of the 1st Defendant in OMIS 52, 53 and 55 in Nigeria in the sum of US$1,200,000,000.00 (one billion, two hundred million United States Dollars).
The plaintiff shall rely on the letter of 29th July, 2013, indicative Offer with necessary bid documents, the 1st-4th Defendants are hereby giving notice to produce the Original in their custody.
20. The Plaintiff avers that it was successful of the first stage and was invited by the 1st to 4th Defendants to proceed to the second stage.
The Plaintiff shall rely on the 1st to 4th Defendants’ email dated 6th August, 2013.
65. On the 10th December, 2013, the plaintiff was shocked and completely bewildered to receive from the 1st Defendant a letter dated 9th December, 2013 purporting to be responding to the pre-action notice of 5th December, 2013Â and in which the 1st Defendant alleged, inter alia, that it was entitled to unilaterally resile from its agreement to conclude the sale at anytime,Â and further that insinuated that the final biding offer made by plaintiff to acquire the targeted 3 OMLs did not meet requirement by NNPC that the OMLs had to be sold individually, and that NNPC would not approve the sale of the OMLs and further that the plaintiffs offer also did not provide the required financial support to satisfy Chevron’s internal Treasury requirement.
66. Plaintiffs states the reason advanced in the said letter to the effect that its final binding offer to not meet the
criteria that OMLs had to be sold individually and that NNPC made clear that without meeting this requirement, the government would not approve the sale of the OMLs “and further plaintiffs offer”… did not provide the required financial support to satisfy Chevron’s Internal Treasury requirements are false. The reasons were advanced in bad faith deriving from extraneous matters unrelated to the terms of the bid, and were never contemplated by parties to be valid for rescinding the contract freely entered into between the plaintiff and the 1st Defendant for a valuable consideration which have been secured for full satisfaction.
67. The Plaintiff states that the reasons proffered by the 1st Defendant for seeking to avoid its contractual obligations to the plaintiff are disingenuous and totally extraneous to the terms of the bid or the additional terms unilaterally imposed by the 1st-4th Defendants to be complied with by the plaintiff all of which were duly satisfied before a final agreement was executed by parties on 14th November, 2013.
The plaintiff shall rely on the 1st Defendant’s letter dated 9th December, 2013.
68. Furthermore, 1st – 4th Defendants had been representing to the plaintiff that it had a settled bargain, and in that respect had been demanding the plaintiff to perform its own obligating under the contract by providing and keeping open in favour of the 1st Defendant, the irrevocable standby letter of credit for the sum of US$@50 million which is to be converted to immediate value upon signing of the Sales and Purchase Agreement, and further bank assurance for payment of the balance upon security of collaterals consisting of part of the assets of the plaintiff.
The plaintiff shall rely on its email of 2nd December, 2013 and its Solicitors’ letter of 5th December, 2013 and the 1st to 4th Defendants are hereby given notice to produce the copy in their custody.
69. Further or in the alternative to the case of the plaintiff that it had secured a binding and enforceable agreement of the 1st Defendant for acquisition of the targeted OMLs for the total sum of US$1,015 billion, the plaintiff avers that failure of the 1st Defendant to proceed to conclude the transaction was by reason of unlawful interference in the transaction by the 2nd, 3rd 4th and 5th Defendants with a view to stalling it, and paving way for some other interested third parties personified or connected to the 5th Defendant.
These claims and averments of 1st respondent show without any doubt that her simple case before the Federal High Court was for that Court to declare that the vital elements of a binding contract of offer and acceptance and consideration – were already in place between her and 2nd defendant so it was not open to 2nd respondent or any of the defendants to back out or refuse to execute with her a Sale and Purchase Agreement (SPA) for Oil Mineral leases 52, 53 and 55 to consummate that agreement. That simple, cut and dried case, in my humble opinion, does not by any means impinge on mines and oil fields or call for transfer of mining lease to confer jurisdiction on the Federal High Court. I repeat it is a case that merely calls for application of elementary principles of contract law to determine whether there was a contract in place between parties which the defendants are trying to resile from or refusing to consummate by signing a SPA for which the Court can make a declaration and order specific performance of. It is a simple case of interpretation of the conduct of the parties to decipher and declare if a contract had come into being between them. Settle that issue and the case is done. Such is not of itself and by itself a special contract relating to operation of mines and minerals as the lower Court reasoned; it is rather a simple case of alleged breach of contract, a matter which is within the jurisdiction of the State High Court and not the Federal High Court.
It must be noted too that it is now well-settled that the Federal High Court lacks jurisdiction over cases of breach of contract of this kind that jurisdiction belongs to the State High Courts. That was confirmed first in SPDC Nig. Ltd v. Sirpi-Alusteel Construction Co. Ltd (2008) 1 NWLR (PT 1067) 128 @ 150 cited by both parties. There this Court also stated unequivocally as has again been reconfirmed very recently by this Court per Mbaba J.C.A., inMTN Communications Ltd v. Abia State Government (2016) 1 NWLR (PT 1495) 475 @ 501 following Adetayo v. Ademola (2010) 15 NWLR (PT 1215) 169 @ 190 (S.C.)- that the fact that a party is a federal agency does not mean that it can only be sued in the Federal High Court. Hear Galadima J.C.A. (as he then was) at p.150:
“It must always be borne in mind that the fact that a party to a suit is a federal agency does not place it under the exclusive jurisdiction of the Federal Courts so that the fact that a party is an oil company does not mean that actions in respect of commercial contracts in which it is a party are only suable in the Federal High Court…….the Federal High Court does not have exclusive jurisdiction in all matters involving the Federal Government or any of its agencies.”
With his brother Rhodes-vivour, J.C.A. (as he also then was) quipping in thus at P. 152:
“In my respectful view, the statement of claim reveals a clear case of breach of contract, and such an action or cause of action is actionable in the High Court and not in the Federal High Court.”
This position of the law has been since further confirmed by the Apex Court in Onuorah v. Kaduna Refining and Petroleum Co. Ltd (2005) 6 NWLR (PT.Â 921) 393 at 405. There Akintan J.S.C. delivering the judgment of the Court (with his brothers Onu, Ejiwunmi, Tobi and Edozie JJ.S.C concurring actively) said this at p. 407:
“A close examination of the additional jurisdiction conferred on the Federal High Court in the Section and by the 1979 Constitution clearly shows that the Court was not conferred with jurisdiction to entertain claims founded on contract as in the instant case. In other words, Section 230(1) provides a limitation to the general and all-embracing jurisdiction of the State High Court because the items listed under the said Section 230(1) can only be determined exclusively by the Federal High Court. All other items not included in the list would therefore still be with in the jurisdiction of the State High Court. In the instant case, since disputes founded on contract are not among those included in the additional jurisdiction conferred on the Federal High Court, that Court therefore had no jurisdiction to entertain the appellant’s claim. The lower Court therefore acted rightly in its decision that the Federal High Court lacked jurisdiction to entertain the claim.
“The question whether the respondent is a subsidiary or agent of NNPC or not has no role when a consideration of the jurisdiction of the Court is being made. This is because, as already stated above he determining factor the Court which in this, is was founded on breach of contract.”
The Apex Court recently reconfirmed this position in P & C.H.S. Co. Ltd v. Migfo (Nig.) Ltd (2012) 18 NWLR (PT 1333) 555, the facts of which are rather similar to this one, Migfo’s case was also about a bid process. Like here, the plaintiffs/respondents in Migfo sought declarations that by the intentions, declarations, understanding, joint venture agreement and irrevocable commitments expressed by them as plaintiff and the 2nd defendant in the Technical Proposal/Bid Documents there was a binding joint venture and partnership agreement between them concerning the control and management of Terminal C of Tin Can Island Port, Apapa which parties were bound to honour. They thus approached the Federal High Court claiming nine reliefs like the instant one with reliefs 1, 2, and 9 mirroring all others being:
1. A declaration that the intentions, declarations, understanding, joint venture agreement and irrevocable commitments expressed by plaintiffs and the 2nd defendant in the Technical Proposal/Bid Documents dated June, 2005 and their executed Memorandum of Understanding dated 27th July, 2005 submitted to the Bureau of Public Enterprises in respect of their bidding for the management and operation of Terminal C, Tincan Island Port, Apapa, Lagos in the name of the 2nd defendant, are binding on the plaintiffs and the 2nd defendant.
2. A declaration that the intentions, declarations, understanding, joint venture agreement and irrevocable commitments expressed by plaintiffs and the 2nd defendant in the Technical Proposal/ Bid Documents dated June, 2005 and their executed Memorandum of Understanding dated 22nd July, 2005 submitted to the Bureau of Public Enterprises in respect of their bidding for the management and operation of Terminal C, Tin Can Island Port, Apapa, Lagos, the plaintiffs and the 2nd defendant are joint venture bidders for and joint partners in respect of the management and operation of Terminal C, Tin Can Island Port, Apapa, Lagos.
9. An order directing the 2nd defendant to specifically perform intentions, understanding, joint venture agreement and irrevocable commitments expressed by plaintiffs and the 2nd defendant in the Technical Proposal/Bid Documents dated June, 2005 and their executed Memorandum of Understanding dated 27th July, 2005, on the shareholding and management structures of the joint venture as relating to the defendant and its business as Management/Operator of the said Port.
Like this case, preliminary objection was raised to the jurisdiction of the Federal High Court to entertain the action but the trial judge, relying on similar arguments like those of Yunusa J. here also held that the case was related to the management and control of Tin Can Island Port, a maritime facility and so covered by Section 251(1)(g) of the 1999 Constitution and within the exclusive jurisdiction of the Federal High Court. That decision was upheld by this Court unanimously. Upon further appeal to the Supreme Court, both decisions were upturned, also unanimously, with Ngwuta J.S.C. saying thus at 604 – 605:
“In my humble view, the sum total of the ‘intention, understanding, joint venture agreement and irrevocable commitments…’ which form the basis of the questions asked in the originating summons and the reliefs sought speaks of contract sought to be declared binding on the parties and to be enforced, as well as specific performance of the contract.
“The questions raised and the declarations and orders sought are predicated on contract between the parties. The mere fact that the intentions, declarations, understanding, joint venture agreement and irrevocable Technical Proposal/Bid documents and Memorandum of Understanding all refer to and relate to the management and operation of Terminal C, Tin Can Island Port, Apapa, a maritime structure for maritime operations, does not make the transaction between the parties less of a contractual relationship”
With his brother Tabai J.S.C. saying (at p. 600) that:
“I have no doubt in my mind that the dispute is simply on the alleged joint ownership contract and the claim is founded on that alleged contract. It is settled that the Federal High Court lacks jurisdiction in matters of simple contract such as the instant case, I agree entirely with the learned senior counsel for appellants that Onuorah v. Kaduna Refining and Petroleum Co. Ltd (2005) 6 NWLR (Pt. 921) 393 at 405 is quite apposite.”
I shall also make bold to say that, it seems fairly clear to me that the intention behind the enactment of Section 251(1) of the Constitution of this country (as amended) is that Federal matters – that is, matters reserved for the Federal Government in the Constitution – ought to and must be litigated only in its own Court, the Federal High Court. That intention and conclusion is not far-fetched but rather clear when one relates the items (including mines and minerals) listed and reserved for the Federal High Court in Section 251 (1) to those reserved exclusively for the Federal Government in the Exclusive List in Part 1 of the Second Schedule of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Each and all of the items reserved for the exclusive jurisdiction of the Federal High Court in Section 251(1) of the Constitution is/are also in the Exclusive Legislative List. Mines and minerals, for instance, is item 38 of the Exclusive Legislative List. Viewed from this practical angle, it can hardly be seriously asserted that the instant issue between the parties of whether two registered companies (both being oil companies notwithstanding) have reached a binding agreement/contract which they are bound to honour is a federal matter and so litigable in the Federal High Court under Section 251(1) of the 1999 Constitution.
In pushing his position, counsel for 1st respondent tried to draw a parallel between this case and the case of Federal Government of Nigeria v. Zebra Energy Ltd (2002) 18 NWLR (PT. 798) 162 to submit that Zebra Energy also related to Oil Mineral Lease and was commenced in the Federal High Court from where it ended at the Supreme Court. I am afraid the material facts of Zebra Energy which conferred jurisdiction on the Federal High Court are missing in this case. In Zebra Energy, the defendant was the Federal Government of Nigeria (not mere oil company like this one) which can be sued only in its Court as said above and further provided for in Section 251(1)(p) of the Constitution. The subject matter of the case was the validity of the administrative action of the Federal Government through its Director of Department of Petroleum Resources to withdraw, by its letter 6th July, 1999 reproduced at p. 190 of that case, the Allocation of Oil Block, otherwise called Oil Petroleum Lease (OPL) 248. In the said letter, the Federal Government of Nigeria through its Director of Petroleum Resources, Mr. Dublin-Green, informed Zebra Energy thus:
WITHDRAWAL OF ALLOCATION OF OPL 248
I have been directed to inform you of the cancellation of the allocation of OPL 248 recently allocated to your company.
2. This is in accordance with the recommendation of the Panel appointed by the President and Commander in Chief of the Armed Forces of the Federal Republic of Nigeria, to review all contracts, Licences and appointments made between the 1st January and 28th May, 1999.
3. Any further information you may require on this matter should be addressed to the Director, Petroleum Resources, 7, Kofo Abayomi Street, Victoria Island, Lagos.
Director of Petroleum Resources.
It is this decision of the Federal Government of Nigeria to withdraw and cancel an admittedly already awarded OPL (not a bid like the present one) that Zebra Energy challenged, rightly in the Federal High Court. In other words, both Federal Government and subject matter to confer jurisdiction in the Federal High Court under Section 251(1)(p) of the Constitution were present in that case.
It is worthy of note too that all Oil Minerals in Nigeria, it is common ground even in this case, belong to the Federal Government and it is the final approving authority in transfer of Oil Mineral Leases. In other words, the issue from the word go was also about the direct ownership of Oil Block or lease already transferred to and vested in Zebra Energy by the Federal Government, its ultimate owner – which again brings into focus a straight forward out and out mine ownership (OPL 248) issue, which issue is again subject to the undoubted exclusive jurisdiction of the Federal High Court under Section 251(1) (m) of the Constitution.
Counsel for first respondent also tried to make heavy weather of the fact that appellant did not cite any case where it was decided that a case concerning interest in Oil Mineral Leases (O.M.L.) can be litigated in the state High Court. Well, counsel might be correct, but there is in fact such a case decided by this Court, incidentally by this Division too. That is in the unreported case of CA/L/353/2015: The Shell Petroleum Development Co. of Nigeria Ltd v. Crestar Integrated Natural Resources Limited delivered on 12th July, 2017. That case was quite similar to this case but even arguably more related to OML and its operation. The issue there was contract for joint ownership of OML and Shell Petroleum Development Company’s refusal to execute a similar Sale and Purchase Agreement (S.P.A.). There, Nimpar J.C.A. (with the concurrence of Tijani Abubakar and Ogakwu JJ.CA), addressing almost all if not even all the issues raised here, had this to say:
“Can it also be said that the claim or the reliefs have anything to ‘connected to’, ‘pertaining to’, relating to” or arising from” ancillary toÂ minerals or mines? I have been trying to explain that there is no how a challenge to the jurisdiction of the Court will not be grounded in the claim and it must be emphasized that it is not the submissions of counsel but the claim of the claimant that will determine jurisdiction. This is because only the claim or the reliefs donate jurisdiction.”
“I have viewed the claim again and I do not find that it has anything to do with OML 25 other than who are the participating owners and sharing ratio. It is only the interest in OML 25 that is sought to be defined, i.e., the transfer and nothing directly with OML 25its operations. The claim has not affected the operations of OML 25 and its explorations and related activities but simple contract, the SPA. Those phrases cannot also be the reason to stretch the jurisdiction of the Court when the subject matter of the claim is simple contract. The claim is founded on a contract for the assignment of part interest in OML 25 being the interest of the applicants and it cannot be equated to a challenge of the actions of NNPC. NNPC has no role in dividing (sic deciding) who takes what share of ownership in the OML 25. The respondent sought to bring in the issue of administrative or executive actions but I have said earlier that this contention cannot stand.
“The full gist of the grouse of the respondent is clearly demonstrated by the aggregate facts as stated in the statement of claim crystallized in the reliefs above. The respondent carefully crafted its reliefs and all that concerns NNPC is that the appellants should put NNPC on notice. The biting complaint of the respondent is breach of Agreement (SPA) to assign to the respondent their 45% interest in OML 25 and to become the operator, to search for, win, work, carry anddispose of petroleum from the oilfield. Until the agreement is executed, the list of things to do in the oilfield cannot materialize. At the stage it is, is like somebody knocking at the door seeking to enter the house. Until the door is opened can he claim what is inside the house as his own? So how then does the respondent’s claim have anything to do with mineral or mines as decided by the Court below. Until the assignment is fully executed, and the respondent takes benefit, it is a busy body, the respondent has nothing to do with OML 25 until the SPA agreement is fully implemented…………
The statement of claim has nothing to do with the operations of oilfield OML 25, it was merely asking to enforce the agreement and the right to participate in OML 25. That is different from an operating duty which can only arise upon the fulfillment of the SPA agreement. The NNPC or the interpretation of the Petroleum Act is not the case of the respondent going by its pleadings. I think it must be clearly understood that for the dispute to fall under the Federal High Court’s jurisdiction where the foundation is in an area of mines and minerals and admiralty or any item listed under Section 251 (1) of the Constitution, it must not directly involve issues or question of contract, payment for services rendered or the agreement but touching on the core substance of the item listed. The dispute should border exactly on what the subject matter is. There is a thin but dividing line there but quite discernible and a clear understanding on how to determine whether the Federal High Court has jurisdiction was further demonstrated in the case of …..
“The clear cut and settled point is that the Federal High Court has no jurisdiction in matters of simple contract; this was decided in a long line of cases thus, Onuorah v. Kaduna Refining & Petrochemical Co. Ltd supra; Ports and Cargo Handling Services Co. Ltd v. I.T.P.P supraÂ and Adelekan v. Ecu-Line MV supra. The decisions in the above cases are all applicable because the underlining factor therein is that they were all contractual disputes with nothing to do with the main subject matter of the item or subject area whose jurisdiction is squarely given to the Federal High Court.”
And zeroing in finally, Her Lordship held as follows:
“l have stated earlier that the claim did not relate to any relief to such issues of mines and mineral, it is merely seeking reliefs related to a breach or attempted breach of contract. If the relationship had gone beyond contract and delved into how the OML shall be operated in its core areas, then It can come under the Federal High Court’s jurisdiction. The trial Court held that he is undoubtedly convinced that it has jurisdiction because the dispute is connected to OML and the oilfield. I searched for the connection but see none. The OML 25 happens to be the subject of the contract and nothing else. Expectedly, all contracts are in respect of some subject matter and it could relate to anything like maritime, aviation, weights and measures, drugs, arms and any of the items listed in Section 251(1). Parties should not have lost sight of the guiding principle of jurisdiction which is the claim. It also depends on how the said claims is framed and linked with the item/subject matter. If the arguments of the respondent and the trial Court are to fly, what is the dispute with OML 25? Nothing. I disagree with the Court below that it has jurisdiction in the matter as properly constituted.”
For reasons earlier stated, I reach exactly the same conclusion as our learned brothers above.
Perhaps I should further emphasize the fact that, the mere fact that the name ‘mines, minerals and oilfields’ is mentioned in a case does not without more turn it to one for mines and minerals under Section 251(1)(n) of the 1999 Constitution and within the exclusive jurisdiction of the Federal High Court. Hence it has been settled by the Apex Court, after a fierce battle by the litigants, that the Issue of compensation for land acquired for oil prospecting and location of minefield and/or which of two or more persons is entitled to compensation for such land, despite the fact that an oil company was a party to the case, is not one that borders on mines and minerals under Section 251(1)(n) of the 1999 Constitution and within the jurisdiction of the Federal High Court but is rather a matter within the jurisdiction of the State High Court: see Nkuma v. Odili (2000) ALL FWLR (PT 313) 24 (S.C.). In the same vein, it has also been decided that the issue of who is entitled to rents for land on which a mine field is located by an oil prospecting company is one within the jurisdiction of the State High Court rather than the Federal High Court: See NAOC v. Kemmer (2001) 8 NWLR (PT.506) (CA).
For all the foregoing reasons, I hold without equivocation that the Federal High Court lacked jurisdiction over the straight forward claims of 1st respondent in the instant case for the Court to declare whether or not it had reached a binding contract with 2nd respondent for the sale of 2nd respondent’s 40% interest in Oil Mineral Leases (OMLs) 52, 53 and 55.
I accordingly resolve issue 1 in favour of the appellants.
That ordinarily renders academic and otiose issue 2 of whether 1st respondent lacked reasonable cause of action. Nevertheless, as an intermediate Court of appeal, we are bound to resolve it too. I therefore proceed to do that.
ISSUE 2: WHETHER THE 1ST RESPONDENT HAD CAUSE OF ACTION IN THE SUIT.
Now, a cause of action is the facts or combination of facts which establishes or gives rise to a cause of complaint; it is the factual situation which gives a person a right to judicial relief; see Adekoya v. FHA (2008) 8 NWLR (PT. 1090) 551. In Ibrahim v. Osim (1988) NSCC 1184 @1198, Karibi-Whyte J.S.C. aggregated the various definitions of cause of action and stating the law thus:
“All the definitions agree that a cause of action consists of the bundle or aggregate of facts in the relationship between the parties which the law will recognize as enabling the plaintiff to enforce the claim against the Defendant…….The expression has been defined in Drummond Jackson v. British Medical Association (1970) 1 W.L.R 688 to mean a cause of action with some chance of success when only the allegations in the pleadings are considered.”
As shown earlier, appellant’s main complaint on this ground is hinged on Clauses 2 and 4 of the Bid Procedure Document pleaded and relied on by the 1st respondent/claimant in paragraphs 13 and 17 of her statement of claim. Those two clauses of the Bid Procedure Document read thus:
2. This document does not constitute an offer or invitation for the sale or purchase of assets or businesses described herein and shall not form the basis of any contract.
4. CNL and BNP Paribas reserve the unilateral right, at any time, determined in their sole discretion and without prior notice to the Recipients to (i) negotiate with one or more parties and enter into an agreement relating to the assignment of part of or all of the interest with any party, and (ii) to modify the rules and procedures set forth herein or any procedure relating to the Proposed Transaction.
First respondent/claimant with its corporate eyes wide open entered into this one-sided agreement with 2nd and 4th respondents as the law guiding its bid for the interests in issue even, as the document stated clearly that the bid does not constitute an offer or invitation for the sale or purchase of assets or business described herein, shall not form the basis of any contract, and that 2nd and 4th respondents, CNL and BNP Paribas, shall reserve the unilateral right, at any time, to determine in their sole discretion and without prior notice to 1st respondent to (i) negotiate with one or more parties and enter into an agreement relating to the assignment of part of or all of its interest in the OMLs with any party, and (ii) to modify the rules and procedures set forth herein or any procedure relating to the Proposed Transaction. Second and fourth respondents, it turned out,
subsequently took actions which were not to the liking or interest of the 1st respondent but within their rights under these clauses of the Bid Procedure Document by declining to consummate a contract otherwise called a Sale and Purchase Agreement (SPA) with her. Can 1st respondent validly complain? Does she have a cause of action to do so? Certainly not. It is a case of volenti non-fit injuia – to one consenting, no injury is done. That agreement in the Bid procedure is the law written for themselves by 1st respondent and 2nd and 4th respondents concerning their rights in the bid process, it must be respected by all including the Court. In BFI Group Corporation v. Bureau of Public Enterprises (2012) 7 S.C. (PT 111) 1, (2012) 2 NWLR (PT 1150) 467; (2013) ALL FWLR (PT 676) 444, a case incidentally cited by counsel for 1st respondent in support of her case, the Apex Court per Fabiyi, J.S.C. delivering the lead judgment of the Court, had this to say:
“It must be reiterated here that the Court must treat as sacrosanct the terms of an agreement freely entered into by the parties. This is because parties to a contract enjoy their freedom to contract on their
own terms so long as it is lawful. The terms of a contract between parties are clothed with some degree of sanctity and if any question should arise with regard to the contract, the terms in any document which constitute the contract are invariably the guide to its interpretation. When parties enter into a contract, they are bound by the terms of the contract as set out by them. It is not the business of the Court to rewrite a contract for the parties, Afrotec Technical Services Nig. Ltd v. M.I.A. & Sons Ltd. (2000) 15 NWLR (PT 692) 730 @ 788, (2000) FWLR (PI 35) 643.”
That settles it, even as I must say that, that is the extent of the application of BFI Group v. Bureau of Public Enterprises to the instant case because clause 4.8 of the bid document in BFI Group Corporation which the Apex Court held the Bureau of Public Enterprises was bound to honour stated the exact opposite of clause 4 of the bid document in the instant case. In BFI Group Corporation Clause 4.8 of the bid document which was tendered as Exhibit D1 stated that:
Bid proposals must remain valid 60 days after the submission date. All proposals submitted by the bidders are required to be binding offers acceptable by BPE to be binding contract between the parties during the validity period. (Italics mine).
It is this clause the apex construed and emphasized repeatedly in its judgment to be binding on BPE, and holding consequently that the trial Court and this Court were wrong in trying to rewrite as it were the agreement between the parties in upholding BPE’s decision to back out of its contractual obligation. The Apex Court, contrary to 1st respondent’s contention, did not say in BPE that a bid process always creates binding obligations between contracting parties regardless of the terms under which it was conducted. In effect, the ratio decidendi of BFI Group Corporation v. Bureau of Public Enterprises is rather in favour of the appellant and against 1st respondent. In the event, I hereby also resolve this issue in favour of appellant and hold that 1st respondent had/has no cause of action. Consequently, I make an order dismissing her 1st respondent’s action.
In the final analysis, there is merit in each of the two main pegs of the appeal and I hereby allow it. I hold that the Federal High Court lacked jurisdiction to entertain Suit No: FHC/L/CS/1171/2013. lf it had jurisdiction, 1st respondent lacked cause of action in the suit, and that is sufficient reason why an order for transfer of the suit to the State High Court cannot be made.
In the result, the appeal is allowed, the ruling of Yunusa J. of 13/05/2014 in suit No. FHC/L/CS/1171/2013 is hereby set aside and substituted with an order striking out that suit from the Federal High Court.
Parties shall bear their costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the Judgment delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA.
I agree with the reasoning and conclusion. I also dismiss the preliminary objection of the 1st Respondent and I allow the Appeal.
I abide with the consequential Order and the Order as to Costs.
HAMMA AKAWU BARKA, J.C.A.: I was opportuned to have read in draft the judgment just delivered by my learned brother BOLOUKUROMO MOSES UGO JCA.
Having also read the records and the submissions of the senior counsel on the issues agitated upon, I cannot but agree with the lead judgment that the appeal has merit and ought to and is hereby allowed. In the event, the decision of Yunusa J. in suit No: FHC/L/CS/1171/2013 delivered on the 13th of May, 2014 is hereby set aside. In its place, order that the suit be struck out. I abide on orders made as to costs in the lead judgment.
Mrs. Chinasa Unaegbunam with her, Mrs. Queenette HoganFor Appellant(s)
A.J. Owonikoko, SAN with him, Dr. O. Famuyiwa, B.C. MbaeaJe, Esq., l. Magbagbeola, Esq., E.O. Osifo, Esq. and T. Ugo, Esq. for 1st Respondent.
A.O. Ayodeji, Esq. with him, M. Mbaneme, Esq. for 2nd and 4th Respondents.
A.V. Etuwewe, Esq. for 3rd and 5th Respondents.For Respondent(s)
Mrs. Chinasa Unaegbunam with her, Mrs. Queenette HoganFor Appellant
A.J. Owonikoko, SAN with him, Dr. O. Famuyiwa, B.C. MbaeaJe, Esq., l. Magbagbeola, Esq., E.O. Osifo, Esq. and T. Ugo, Esq. for 1st Respondent.
A.O. Ayodeji, Esq. with him, M. Mbaneme, Esq. for 2nd and 4th Respondents.
A.V. Etuwewe, Esq. for 3rd and 5th Responden