(2017) LPELR-42664(CA)

Transcription

1 WARRI REFINING & PETROCHEMICAL CO. LTD v. GECMEP (NIG) LTD CITATION: JIMI OLUKAYODE BADA PHILOMENA MBUA EKPE In the Court of Appeal In the Benin Judicial Division Holden at Benin ON WEDNESDAY, 5TH JULY, 2017 Suit No: CA/B/499/2016 Before Their Lordships: MOORE ASEIMO ABRAHAM ADUMEIN Between WARRI REFINING & PETROCHEMICAL CO. LTD GECMEP NIGERIA LIMITED RATIO DECIDENDI And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Respondent(s) - Appellant(s)

2 1. CONTRACT - AGREEMENT: Whether parties are bound by the terms of their agreement "In this appeal under consideration, it is not in dispute that both the Appellant and the Respondent agreed on the terms of the contract and exchanged documents to that effect. The Appellant did not make reference to Section 12 (2) of the Nigerian National Petroleum Corporation Act in the offer letter to the Respondent nor in the agreement. If the Appellant had intended that the Respondent would be bound by the said Section 12 (2) of the N.N.P.C. Act in its contractual relationship with the Appellant, it would have inserted it in the agreement between the parties. This is because parties to a contract are bound by the terms agreed to and the Court is only to give effect to the agreement. The Learned Counsel for the Appellant contended that the lower Court lacked the jurisdiction to entertain this case, but I do not agree with that view. This is because, the transaction between the Appellant and Respondent is a simple contract. I am of the view that for Section 12 (2) of the Nigerian National Petroleum Corporation Act to apply, it has to be activated by incorporating same into the contract between the parties. I am fortified in my view above by the decisions of the Supreme Court in the case of N.P.A. VS CONSTRUZ IONI GENERALLI (F.C.D) (Supra), where the Supreme Court was invited to uphold Section 97(2) of the Ports Act which provides thus:- "No suit shall be commenced against the authority until one month at least after notice of intention to commence the same shall have been served upon the authority by the intending Plaintiff or his agent..." The said Section 97(2) of the Ports Act is impari materia with Section 12(2) of the Nigerian National Petroleum Corporation Act. The Supreme Court in declining to apply the Provisions to a case of contract held thus:- "We shall now deal with the other point which to our mind, does not seem to be well settled, namely, whether the kind of statutory privilege which we have been considering is applicable to an action founded upon a contract. In other words, whether Section 97 of the Ports Act applies to cases of contract. We think that the answer to this question must be in the negative. We agree that the Section applies to everything done or omitted or neglected to be done under the powers granted by the Act. But we are not prepared to give to the Section the stress which it does not possess. We take the view that the Section does not apply to cases of contract...." We too are of the opinion that de Commarmond S.P.J. has quite rightly stated the law in the passage of his judgment cited above. It seems to us that an enactment of this kind i.e. Section 97 of the Ports Act is not intended by the legislature to apply to specific contracts. It is pertinent to point out that the view which we have just expressed seems to be in consonance with the trend of the Judgment pronounced in English cases dealing with similar provisions in certain English statutes. We shall refer only to one case as an example. In MIDLAND RAILWAY COMPANY VS THE LOCAL BOARD FOR THE DISTRICK OF WITHINGTON (1882-3) 11 Q.B.D. Page 788, the Court of Appeal construed Section 264 of the Public Health Act 1875 (38 & 39 Vict C55), which more or less falls in line with Section 97 of the Ports Act, the subject matter of this appeal. We think that it is desirable that we should here set out the provision of Section 264 of the Public Health Act 1875, as follows:- "Section 264:- A writ or process shall not be issued out against or served on any local authority, or any member thereof, or any officer of a local authority or persons acting in his aid, for anything done or intended to be done or omitted to be done under the provisions of this Act until the expiration of one month after notice in writing has been served on such local authority, member, officer or person..." Delivering Judgment of the Court at page 794, Brett M.R. made the following illuminating observation:- "It has been contended that this is an action in contract, and that whenever an action is brought upon a contract the Section does not apply. I think that where an action has been brought for something done or omitted to be done under an express contract, the section does not apply, according to cases cited, an enactment of this kind does not apply to specific contracts. Again when goods have been sold, and the price is to be paid upon a quantum merit, the section will not apply to the action for the price, because the refusal or omission to pay would be a failure to comply with the terms of the contract and not with the provisions of the statute." We agree with their Lordships exposition of the law on this point." In this appeal, I am of the view that Section 12(2) of the Nigerian National Petroleum Corporation Act does not apply to cases of contract. This is because it would be unfair to clothe the Nigerian National Petroleum Corporation with special protection in all cases of contract as that would contradict the general principles upon which the law of contract is based. Consequent upon the foregoing, I am of the view that Section 12 (2) of the Nigerian National Petroleum Corporation Act is not applicable to this case as the requirement of pre-action notice was not incorporated into the contract between the parties. See the case of ONUORAH VS KADUNA REFINING AND PETROCHEMICAL CO. LTD (2005) 2 S.C. Part II Page 1." Per BADA, J.C.A. (Pp , Paras. C-A) - read in context

3 2. COURT - JURISDICTION: What determines jurisdiction of Court to entertain a cause/matter "Where jurisdiction of a Court is challenged as in this case the starting point is to consider the materials placed before the Court by the Plaintiff, which are the Writ of Summons and Statement of Claim or the Originating Summons and the affidavit in support of the Summons. See - JAMES VS I.N.E.C. (Supra); - ABDULHAMID VS AKAR (2006) ALL FWLR Part 231 Page 1191; - SHELON VS GOBANG (2009) 6 MJSC II Page 62. In ONUORAH VS KPRC (2005) 2 S.C. Part II Page 1 at 10, the Supreme Court held among others thus:- "It is settled law that in order to determine the claim before the Court and consequently, whether or not the Court has jurisdiction to entertain the action, it is necessary to have a recourse to the Writ of Summons and the statement of claim." Per BADA, J.C.A. (Pp , Paras. C-A) - read in context 3. JURISDICTION - JURISDICTION OF THE FEDERAL HIGH COURT: Conditions for the exercise of the jurisdiction of the Federal High Court "... Furthermore, for Section 251(1)(r) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to be properly invoked, the Federal Government or any of its agencies and the Plaintiff's suit must relate to issues that concerned the executive and administrative decision of the Federal Government or its agencies as opposed to issues relating to its contractual obligation with another party. In WEMA SEC & FIN PLC VS N.A.I.C. (2015) 16 NWLR Part 1484 Page 93 at , the Supreme Court held thus:- "Section 7 of the Federal High Court Act, Cap 134 Laws of the Federation 1990, set out the limited jurisdiction of the Federal High Court. Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) now delineates the jurisdiction of that Court and circumscribes it to only eighteen items, such matters are exclusively reserved for the Federal High Court. In effect, the draft person, deliberately itemized the matters which are intended to be under the exclusive jurisdiction of that Court. Simply put, therefore that Court is a Court of enumerated jurisdiction and afortiori, its exclusive jurisdiction is expressly tied to those items enumerated thereunder. As such, in the exercise of its said exclusive jurisdiction, that Court can only orbit within the universe of those enumerated issues and to others as may be conferred upon it by an Act of the National Assembly. However, actions on simple contract are not included in those items enumerated above, as such, the Federal High Court cannot arrogate to itself a jurisdiction only exercisable by the State High Court on such simple contractual matters as the one which the Appellant tabled before the trial Court in this case." So far, I have shown that in cases of simple contract, Federal High Court lacked jurisdiction, but on the other hand, under the provisions of Section 251(1)(p) and (r) of the 1999 Constitution the Federal High Court is vested with the exclusive jurisdiction in matters or causes involving the administration or management and control of the Federal Government or any of its agencies and any action for declaration or injunction affecting the validity of any executive decision of the Federal Government or any of its agencies. See the following cases:- - ONUORAH VS KPR (Supra); - NEPA VS EDEGBENRO (2002) 18 NWLR Part 789 Page 79; - OWENA BANK PLC VS PUNJAB NATIONAL BANK (2000) 5 NWLR Part 658 Page 635; - ASO MOTEL KADUNA VS ADEYEMO (2006) 7 NWLR Part 978 Page 87; For the Federal High Court to have exclusive jurisdiction under Section 251(1)(p) and (r), there are condition precedent to be fulfilled. (i) The action must be one against the Federal Government or any of its agencies. (ii) The action must be for declaration or injunction. (iii) The action must affect the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. These pre-conditions must be satisfied or met together before the exclusive jurisdiction of the Federal High Court can properly be invoked. See - ACHEBE VS NWOSU (2003) 7 NWLR Part 818 Page 103 at "Per BADA, J.C.A. (Pp , Paras. B-G) - read in context

4 4. JURISDICTION - JURISDICTION OF THE FEDERAL HIGH COURT: Whether the jurisdiction of the Federal High Court pertains to cases of simple contracts "In ADELEKAN VS ECU-LINE (NIG) (2006) 12 NWLR Part 993 Page 33 at 58 Paragraphs B - D, where the Supreme Court per Ogbuagu JSC held among others as follows:- "As regards Ground (c) I had earlier in this judgment reproduced claims of the Appellant in paragraph 29 of his statement of claim. I repeat that those in my respectful view are clearly a case based on simple contract and certainly not admiralty. A claim for damages for breach of contract or even alternative claim for damages for negligence (which as rightly submitted in the brief of the Respondent will only by collateral to the contract) cannot be entertained and determined in the Federal High Court. Therefore the learned trial Judge lacked the jurisdiction to entertain the claim in simple contract. What is more, Section 230(1) of the Constitution of the Federal Republic of Nigeria 1979 and even Section 251 of the Constitution of the Federal Republic of Nigeria 1999, the Federal High Court has no jurisdiction in matters of simple contract." Per BADA, J.C.A. (Pp , Paras. A-A) - read in context

5 JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Ruling of the Delta State High Court sitting at the Warri Judicial Division in Suit No. W/54/2015 Between - GECMEP NIGERIA LIMITED VS WARRI REFINING & PETROCHEMICAL CO. LTD delivered on 11th day of August Briefly, the facts of this case are that the Respondent who was the Plaintiff at the lower Court instituted an action against the Appellant who was the Defendant in that Court. The claim is as follows:- "(i) An Order of this Honourable Court declaring the Defendant s letter dated 30th April 2014 rejecting the Heptane Chemicals supplied to it by the Plaintiff as null and void and of no effect whatsoever. (ii) The sum of N20,278, being the debt owed to the plaintiff by the Defendant for the supply of Heptane Chemicals. (iii) 21% interest accruing on the debt from 3rd of December 2013 when the debt was due for payment to the date of payment of the debt. (iv) The sum of N450, being Special Damages arising from transportation and Hotel bills expended by the Plaintiff in nine (9) trips to 1

6 the Defendant s office over the delayed payment. (v) The sum of N50 million as general damages for breach of contract. The Defendant hereinafter referred to as Appellant filed its Statement of Defence while the Plaintiff hereinafter referred to as Respondent filed its reply to the Statement of Defence. The Appellant filed an application to set down the matter for hearing on issues of law raised in the Statement of Defence which bordered on the jurisdiction of the lower Court to entertain the Respondent s matter before it. After hearing the application, the lower Court in a considered Ruling held as follows:- On whether the lower Court has jurisdiction over the subject matter, the Court held thus: from the Claimant s claim as contained in paragraph 23(i) (v) of the statement of claim as reproduced earlier in the Ruling, and in view of the decisions in all the cases considered herein, the Plaintiff s claim is in respect of breach of a simple contract of supply of chemicals from the defendants... therefore it is one which in my estimation can be determined by a Court other 2

7 than the Federal High Court. On whether pre-action notice is applicable to the instant case, the trial Court in its ruling held thus:- The question that comes to one s mind at this time is whether there is provision of pre-action notice in the contract between the Plaintiff/Respondent and the Defendant/ Applicant. If the answer is no, then the parties are bound by the term of their contract. Consequently, since there is no provision for preaction notice in the contract between the Plaintiff/Respondent and the Defendant/Applicant the Court will assume jurisdiction over the matter. The Appellant who is dissatisfied with the Ruling of the lower Court appealed to this Court. The Learned Counsel for the Appellant formulated two issues for the determination of the appeal. The issues are reproduced as follows:- "(1) Whether having regards to the Respondent s claim in Court and the law, the lower Court has the jurisdiction to hear and determine the Respondent s case before it as the Appellant is a Federal Government Agency. (Distilled from Ground 1). (2) Whether 3

8 the lower Court has the Jurisdiction to entertain the Respondent s case in Court as the same was filed without due process first had and obtained. (Distilled from Ground 2). On the other hand, the Learned Counsel for the Respondent also formulated two issues for the determination of the appeal. The issues are reproduced as follows:- (1) Whether the subject matter of this suit does not come within the realm of breach of simple contract as to fall within the Exclusive or Residual jurisdiction of the State High Court. (Distilled from Ground 1). (2) Whether Section 12(2) of the Nigerian National Petroleum Corporation Act Cap N123, Laws of the Federation of Nigeria 2004 is applicable to the instant case. (Distilled from Ground 2)." At the hearing of this appeal, the Learned Counsel for the Appellant stated that the appeal is against the Ruling of Delta State High Court delivered on 11/8/2015. The notice of appeal was filed with the leave of Court granted on 17/11/2016 and the notice now filed on 29/11/2016. The Appellant s brief of argument was filed on 11/1/17 while the Appellant s reply brief was 4

9 filed on 23/2/17. The Learned Counsel for the Appellant adopted and relied on the said brief in urging that the appeal be allowed. The Learned Counsel for the Respondent referred to the Respondent s brief of argument filed on 10/2/2017. He adopted and relied on the said brief in urging that the appeal be dismissed. I have carefully examined the issues formulated for the determination of the appeal by Counsel for the parties, the issues are similar but the issues formulated by Counsel for the Appellant are apt and relevant for the determination of the appeal. I will therefore rely on the said issues. ISSUES FOR THE DETERMINATION OF THE APPEAL. ISSUE NO. 1 Whether having regard to the Respondent s claim in Court and the law, the lower Court has jurisdiction to hear and determine the Respondent s case before it as the Appellant is a Federal Government Agency. The Learned Counsel for the Appellant submitted that the lower Court lacked the jurisdiction to hear and determine the Respondent s claim in Court having regard to the Respondent s reliefs and the enabling law. He went

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11 further in his submission that it is the law that in issues of jurisdiction, recourse is had to the statement of claim. He relied on the case of CENTRAL BANK OF NIGERIA VS OKOJIE (2015) ALL FWLR Part 807 Page 478 at 496. He referred to the claim of the Respondent and submitted that the Respondent can only succeed on its claim for damages allegedly flowing from the rejected supplies as contained in paragraph 23 (ii) (v) of the Amended Statement of claim when the Court had come to the conclusion that the Appellant s said letter rejecting the Respondent s supplied product was null and invalid. He went further that the Respondent s relief for declaration as contained in paragraph 23 (i) of the Amended Statement of claim is the principal relief of the Respondent and that it is not the issue of breach of contract. He relied on the following cases:- - GOVERNMENT OF GONGOLA STATE VS TUKUR (1989) 4 NWLR Part 117 Page 592; - ATTAH VS INSPECTOR GENERAL OF POLICE (2015) ALL FWLR Part 805 Page 108; - WARRI REFINERY & PETROCHEMICAL CO. LTD VS AGBUJE (2005) ALL FWLR Part 253 Page 659 at 678 Paragraphs E F. 6

12 He contended that the Appellant is a Federal Government Agency and that by the provisions of Section 251(1)(r) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), it is the Federal High Court that enjoys the exclusive jurisdiction to entertain matters as in the Respondent s claim. He went further in his submission that the claim of the Respondent is outside the jurisdiction of a State High Court and rather that it is the Federal High Court that has exclusive jurisdiction to hear and determine the Respondent s claim. He referred to the following cases:- - ONUORAH VS KADUNA REFINERY & PETROCHEMICAL CO. LTD (2005) ALL FWLR Part 256 Page 1356 at 1368; - WEMA SECURITIES AND FINANCE PLC VS NIGERIAN AGRICULTURAL INSURANCE CORPORATION (2015) ALL FWLR Part 807 Page 410 at ; - CENTRAL BANK OF NIGERIA VS OKOJIE (Supra) at 498. The Learned Counsel for the Appellant submitted that it is the Federal High Court that has jurisdiction to entertain the Respondent s case. He urged this Court to set aside the Ruling of the lower Court and uphold the objection of the 7

13 Appellant. He relied on the case of OGUEBEGO VS PEOPLES DEMOCRATIC PARTY (2016) ALL FWLR Part 822 Page He also submitted that the decision of the lower Court is perverse and it should be set aside. He relied on the following cases:- - DAUDA VS ACCESS BANK PLC (2016) ALL FWLR Part 831 Page 1489 at 1520; - ADEBIYI VS STATE (2016) ALL FWLR Part 827 Page 739 at 749 Paragraphs F G. The Learned Counsel finally urged that this issue be resolved in favour of the Appellant. In his response, the Learned Counsel for the Respondent submitted that in order to determine whether the Court has jurisdiction to entertain a claim, it is the Writ of Summons and Statement of Claim or Originating Summons and supporting affidavit of the Plaintiff that would be considered. He relied upon JAMES VS I.N.E.C. (2015) 12 NWLR Part 1474 Page 538; He went further in his submission that the lower Court was wrong when it pre-occupied itself with the Respondent s collateral relief aimed at nullifying the letter of 30th April He contended that the relief sought cannot be construed in isolation of the entire

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15 statement of claim. He relied on the case of STATOIL NIG. LTD VS S.D.W.P. LTD (2015) 16 NWLR Part 1485 Page 361 at Page 406 Paragraphs E F. It was also contended by Learned Counsel for the Respondent that the letter of 30/4/2014 sought to be declared null and void was written by the Appellant in the course of its contractual relationship with the Respondent. He argued further that the relief to declare the letter null and void in no way take the subject matter of the action from the realm of debt recovery arising from simple contract. He relied on the case of WEMA SEC. & FIN. PLC VS N.A.I.C. (2015) 16 NWLR Part 1484 Page 93 at Paragraph G F. He urged that this issue be resolved in favour of the Respondent. In his reply brief of argument, the Learned Counsel for the Appellant urged that this Court should discountenance the contentions of the Learned Counsel for the Respondent. He referred to the following cases:- - UNION BANK OF NIG. PLC VS DAPPA-BIRIYE (2000) FWLR Part 18 at 348 particularly at 353; - ENERGY MARINE INDUSTRIAL LTD VS MINISTER OF THE FEDERAL CAPITAL

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17 TERRITORY (2011) ALL FWLR Part 576 Page 604 at 613. He finally urged that this issue be resolved in favour of the Appellant. The issue under consideration in this appeal, is whether having regard to the Respondent s claim, the lower Court has the jurisdiction to hear and determine the Respondent s case before it, as the Appellant is a Federal Government Agency. Where jurisdiction of a Court is challenged as in this case the starting point is to consider the materials placed before the Court by the Plaintiff, which are the Writ of Summons and Statement of Claim or the Originating Summons and the affidavit in support of the Summons. See - JAMES VS I.N.E.C. (Supra); - ABDULHAMID VS AKAR (2006) ALL FWLR Part 231 Page 1191; - SHELON VS GOBANG (2009) 6 MJSC II Page 62. In ONUORAH VS KPRC (2005) 2 S.C. Part II Page 1 at 10, the Supreme Court held among others thus:- It is settled law that in order to determine the claim before the Court and consequently, whether or not the Court has jurisdiction to entertain the action, it is necessary to have a recourse to the Writ of Summons and the

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19 statement of claim. A careful perusal of paragraphs 3 20 of the Amended Statement of Claim of the Respondent before the lower Court would reveal that the subject matter of this action is one of debt recovery rooted in simple contract. The said paragraphs 3 20 of the Amended Statement of Claim is reproduced as follows:- 3. On 7th of May, 2013, the Plaintiff became a registered contractor of the Defendant for the supply of chemical products as may be agreed by the parties. The Plaintiff pleads her certificate of Registration with the Defendant dated 07/05/13 wherein one MERCY JOHNSON who resides in Abuja was named as the Plaintiff s representative. 4. Sequel to the Plaintiff s registration with the Defendant, the Defendant by a letter dated 31st May, 2013 invited the Plaintiff to bid for a tender for the supply of chemical described as HEPTANE N, DEN: 0.684, B/PT.98.4C in 20,000kg in drums. The Plaintiff pleads the Defendant s Request for Offer dated 31/05/2013 and shall rely upon same at the trial. 5. The plaintiff on 23/7/2013 sent a price quotation totalling N23,587, to the 11

20 defendant for the supply of the chemicals from abroad. The Plaintiff pleads her letter of 23rd July, 2013 to the defendant containing the quotation. The Defendant is hereby given notice to produce the original of the letter. 6. By a letter dated 04/09/2013 and captioned "PURCHASE OF HEPTAIN: PRICE CONFIRMATION, THE Defendant wrote to Plaintiff asking her to confirm within two days whether it can supply the products at their in-house price of Twenty-one Million, Eight Hundred and Five Thousand, and Twenty naira (N21,805,020.00). the plaintiff pleads a copy of the defendant s letter. 7. The Plaintiff accepted the Defendant s offer vide a letter dated 5/9/2013 and same is pleaded. The Defendant is hereby given notice to produce the original of the letter 8. The defendant awarded the contract to the Plaintiff whereof she issued a Local Purchase Order (LPO) to the Plaintiff in the agreed sum of N21,805, (Twenty-one Million, Eight Hundred and Five Thousand, and twenty Naira). The Plaintiff pleads a copy of the LPO No. WRPC/LA 1976/0913/ATO dated 23/09/2013 issued to her by the defendant upon the acceptance of her 12

21 counter-offer. 9. The Plaintiff avers that with the defendant s LPO, she approached her banks for loan whereof the sum of Fifteen Million, Two Hundred Thousand Naira was granted to her by First Bank Nigeria Plc. The Plaintiff pleads First Bank Nigeria PLC s letter dated 21st October, 2013 granting the loan to the Plaintiff. 10. The Plaintiff avers that before the supply of the products were made to the defendant, she took the samples thereof to the defendant s laboratory where it underwent first, second and third tests before she was asked to go ahead with the supply. 11. The Plaintiff avers that on 3/12/2013, she delivered to the Defendant 18,600kg of Heptane which was 1,400kg short of the 20,000kg demanded. The short-fall resulted from the quantity (1,400kg) that expelled in the course of transportation from Lagos to Warri for which the Defendant was duly notified on delivery. The Plaintiff pleads a copy of Waybill No dated 3/12/2013 by which the delivery of the 18,600kg of Heptane was made by the Plaintiff and acknowledged by the Defendant. 12. The plaintiff further avers that in the presence of the 13

22 Plaintiff s representative Mercy Johnson, random testing was carried out on the chemicals after which on the 7th of December, 2013 the products were moved from the point of delivery into the Defendant s Chemical warehouse indicating its acceptance. 13. The defendant having received, accepted and moved the products into her warehouse, on the 13th of December, 2013 the Plaintiff presented her invoice to the Defendant for payment. The Plaintiff pleads a copy of the acknowledged invoice for the sum of N20,278, (Twenty Million, Two Hundred and Seventy Eight Thousand, Sixty-Five Naira) only, which sum accommodated the little shortfall in the quantity delivered. 14. The Plaintiff through her representative Mercy Johnson made several visits from Abuja to the defendant s Finance Department in Warri sometimes in December 2013, January, February, March and most part of April 2014 during which on each occasion she was assured that the money was being processed and that she should exercise patience. 15. The Plaintiff avers the she had all along attributed the delay to the bureaucratic nature of the Defendant until the 29th day of 14

23 April, 2014 when to her rude shock Mercy Johnson received a phone call from the Defendant s office notifying her that she has a rejection letter of the chemicals she supplied on 3rd December, 2013 (i.e. a period of almost 5 months) and that she should come for collection of the letter. 16. The Plaintiff avers that the phone number by which the Defendant called Mercy Johnson on 29th April, 2014 as well as the address and particulars of Mercy Johnson were all supplied to the Defendant upon the Plaintiff s registration with the Defendant on the 7th of May Upon receipt of the phone call, the Plaintiff s representative travelled to Warri to collect the letter and express her disgust over the development. The Plaintiff pleads the letter of rejection dated the 30th of April 2014 which was prepared on the day it was handed over to the Plaintiff s representative. 18. The Plaintiff avers that while sharing grievances with other contractors with the defendant are usually frustrated by insiders where the contractor has not greased the palms of the staff of the company involved in the transaction up to the treasury or where 15

24 the transaction is not sponsored by any of the big officers of the establishment. The Defendant was further made to understand that the inexplicable delay in processing her payment was to give her time to key-in and do the needful in the industry. 19. The Plaintiff s representative immediately went to the Managing Director of the defendant to lay complaint on the matter whereof she was assured that the matter will be resolved amicably and that the payment will be effected. 20. The Plaintiff s representative made numerous trips to the Defendant s office in Warri in the hope that the matter will be resolved amicably until when it became obvious that she was being deceived. The Plaintiff pleads a copy of letter she wrote out of frustration to the Managing Director of the defendant on the matter. Notice is hereby given to the Defendant to produce the original copy of the letter. The said paragraphs gave details of the transaction right from the registration of the Respondent as a contractor of the Appellant, through to when offer and acceptance of the contract was made, the consideration agreed 16

25 by the parties, its performance by the Respondent, inspection and acceptance of the products by the Appellant leading to demand for payment by the Respondent. In ADELEKAN VS ECU-LINE (NIG) (2006) 12 NWLR Part 993 Page 33 at 58 Paragraphs B D, where the Supreme Court per Ogbuagu JSC held among others as follows:- As regards Ground (c) I had earlier in this judgment reproduced claims of the Appellant in paragraph 29 of his statement of claim. I repeat that those in my respectful view are clearly a case based on simple contract and certainly not admiralty. A claim for damages for breach of contract or even alternative claim for damages for negligence (which as rightly submitted in the brief of the Respondent will only by collateral to the contract) cannot be entertained and determined in the Federal High Court. Therefore the learned trial Judge lacked the jurisdiction to entertain the claim in simple contract. What is more, Section 230(1) of the Constitution of the Federal Republic of Nigeria 1979 and even Section 251 of the Constitution of the Federal Republic of Nigeria 1999, the Federal High Court has no jurisdiction in matters of 17

26 simple contract. In this appeal, I am of the view that the letter of 30/4/14 is a document touching on the contract of the parties and it is a Court imbued with jurisdiction on matters of simple contract that can determine the validity. Furthermore, for Section 251(1)(r) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to be properly invoked, the Federal Government or any of its agencies and the Plaintiff s suit must relate to issues that concerned the executive and administrative decision of the Federal Government or its agencies as opposed to issues relating to its contractual obligation with another party. In WEMA SEC & FIN PLC VS N.A.I.C. (2015) 16 NWLR Part 1484 Page 93 at , the Supreme Court held thus:- Section 7 of the Federal High Court Act, Cap 134 Laws of the Federation 1990, set out the limited jurisdiction of the Federal High Court. Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) now delineates the jurisdiction of that Court and circumscribes it to only eighteen items, such matters are exclusively reserved for the Federal 18

27 High Court. In effect, the draft person, deliberately itemized the matters which are intended to be under the exclusive jurisdiction of that Court. Simply put, therefore that Court is a Court of enumerated jurisdiction and afortiori, its exclusive jurisdiction is expressly tied to those items enumerated thereunder. As such, in the exercise of its said exclusive jurisdiction, that Court can only orbit within the universe of those enumerated issues and to others as may be conferred upon it by an Act of the National Assembly. However, actions on simple contract are not included in those items enumerated above, as such, the Federal High Court cannot arrogate to itself a jurisdiction only exercisable by the State High Court on such simple contractual matters as the one which the Appellant tabled before the trial Court in this case. So far, I have shown that in cases of simple contract, Federal High Court lacked jurisdiction, but on the other hand, under the provisions of Section 251(1)(p) and (r) of the 1999 Constitution the Federal High Court is vested with the exclusive jurisdiction in matters or causes involving the administration or management 19

28 and control of the Federal Government or any of its agencies and any action for declaration or injunction affecting the validity of any executive decision of the Federal Government or any of its agencies. See the following cases:- - ONUORAH VS KPR (Supra); - NEPA VS EDEGBENRO (2002) 18 NWLR Part 789 Page 79; - OWENA BANK PLC VS PUNJAB NATIONAL BANK (2000) 5 NWLR Part 658 Page 635; - ASO MOTEL KADUNA VS ADEYEMO (2006) 7 NWLR Part 978 Page 87; For the Federal High Court to have exclusive jurisdiction under Section 251(1)(p) and (r), there are condition precedent to be fulfilled. (i) The action must be one against the Federal Government or any of its agencies. (ii) The action must be for declaration or injunction. (iii) The action must affect the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. These pre-conditions must be satisfied or met together before the exclusive jurisdiction of the Federal High Court can properly be invoked. See ACHEBE VS NWOSU (2003) 7 NWLR Part 818 Page 103 at In this appeal under 20

29 consideration, it is my view that the Learned trial Judge was right when he held that the transaction between the Appellant and Respondent was a simple contract. And that being the case, the Federal High Court lacked jurisdiction to entertain cases of simple contract. This Issue No. 1 is hereby resolved in favour of the Respondent and against the Appellant. ISSUE NO. 2. Whether the lower Court has the jurisdiction to entertain the Respondent s case in Court as the same was filed without due process first had and obtained. (Distilled from Ground 2)." The Learned Counsel for the Appellant submitted that the lower Court lacks the jurisdiction to entertain the Respondent s case as it was commenced without the requisite due process first had and obtained. He referred to Section 12 (2) of the Nigerian National Petroleum Corporation Act, Cap 123, Laws of the Federation of Nigeria He contended that there is no evidence that the Respondent complied with the statutory requirement of serving a pre-action notice on the Appellant before the commencement of this action against the Appellant at the lower Court. He 21

30 argued that the letter of frustration which the Respondent referred to in paragraph 20 of the amended statement of claim did not meet the requirements of a pre-action notice to be served on the Appellant as required by the law. He relied on AMADI VS NIGERIAN NATIONAL PETROLEUM CORPORATION (2000) FWLR Part 9 Page 1527 at 1551 paragraphs A B. He submitted that this suit is not only incompetent but that the lower Court lacks the jurisdiction to entertain the same. He relied on the following cases:- - NIGERIAN NATIONAL PETROLEUM CORPORATION VS TIJANI (2007) ALL FWLR Part 344 Page 129; - XINET SINGAPORE LIMITED VS MOFAS SHIPPING LINE (NIG) LTD (2014) ALL FWLR Part 715 Page 305 at ; - NIGERCARE DEVELOPMENT CO. LTD VS ADAMAWA STATE WATER BOARD (2008) ALL FWLR Part 422 Page 1052 at 1081; - NIGERIAN NATIONAL PETROLEUM CORPORATION VS UDENZE (2016) ALL FWLR Part 817 Page 721 at He argued further that it is trite law that a pre-action notice being a statutory requirement is mandatory and a condition precedent on an intending Plaintiff desirous of instituting an action against 22

31 statutory companies/institutions as the Appellant herein. He went further that it is not a contractual term that is amenable to negotiation between the parties as the rationale for the said notice is to enable the Defendant know in advance the anticipated action and possible amicable settlement of the matter without recourse to litigation. He relied on the following cases:- - NIGERIAN NATIONAL PETROLEUM CORPORATION VS UDENZE (Supra); - XINET SINGAPORE LIMITED VS MOFAS SHIPPING LINE (NIG) LTD (2014) ALL FWLR Part 715 Page 305; - NIGERCARE DEVELOPMENT CO. LTD VS ADAMAWA STATE WATER BOARD (Supra). Learned Counsel also referred to Section 22 of the NNPC Act where the word Corporation was defined. He submitted that the Provision of Section 12 (2) of the NNPC Act applies to Warri Refining and Petrochemical Company Ltd. He finally submitted that the lower Court wrongfully assumed jurisdiction to hear and determine the Respondent s claim which sought the pronouncement of the State High Court to declare as invalid the decision by the Appellant (a Federal Government Agency) to reject the chemical supplies made to 23

32 her by the Respondent, contrary to the sacrosanct provisions of Section 251(1) (r) of the 1999 Constitution of the Federal Republic of Nigeria. He urged this Court to set aside the Ruling of the lower Court made on 11/8/2015 and uphold the Appellant s objection as to lack of jurisdiction of the lower Court to hear and determine the matter as filed by the Respondent at the lower Court. The Learned Counsel for the Respondent in his response to the submission of the Learned Counsel for the Appellant submitted that the pleadings of the parties to this appeal is rooted in contract. He stated that Section 12 (2) of the Nigerian National Petroleum Corporation Act, is not in the terms of the contract and the documents exchanged by the parties. He relied on the following cases:- - N.P.A. VS CONSTRUZ IONI GENERALLI F.C.A. (1974) N.S.C.C Page 622 at Pages ; - N.P.A. VS LOTUS PLASTICS LTD (2005) 19 NWLR Part 959 Page 158 at 196 paragraphs F H, paragraphs H F, 208 Paragraphs G H and 209 paragraphs C G; - WEMA SEC & FIN. PLC VS N.A.I.C (Supra); 24

33 He finally urged this Court to resolve this issue in favour of the Respondent. In his reply brief of argument, the Learned Counsel for the Appellant contended that the cases relied upon by the Respondent are inappropriate. He then relied on XINET SINGAPORE LTD VS MOFAS SHIPPING LINE NIG. LTD (Supra); He urged this Court to discountenance the argument of the Respondent s Counsel and then set aside the Ruling of the lower Court made on 11/8/15. In this appeal under consideration, it is not in dispute that both the Appellant and the Respondent agreed on the terms of the contract and exchanged documents to that effect. The Appellant did not make reference to Section 12 (2) of the Nigerian National Petroleum Corporation Act in the offer letter to the Respondent nor in the agreement. If the Appellant had intended that the Respondent would be bound by the said Section 12 (2) of the N.N.P.C. Act in its contractual relationship with the Appellant, it would have inserted it in the agreement between the parties. This is because parties to a contract are bound by the terms agreed to and the Court is only to give effect to the agreement. 25

34 The Learned Counsel for the Appellant contended that the lower Court lacked the jurisdiction to entertain this case, but I do not agree with that view. This is because, the transaction between the Appellant and Respondent is a simple contract. I am of the view that for Section 12 (2) of the Nigerian National Petroleum Corporation Act to apply, it has to be activated by incorporating same into the contract between the parties. I am fortified in my view above by the decisions of the Supreme Court in the case of N.P.A. VS CONSTRUZ IONI GENERALLI (F.C.D) (Supra), where the Supreme Court was invited to uphold Section 97(2) of the Ports Act which provides thus:- No suit shall be commenced against the authority until one month at least after notice of intention to commence the same shall have been served upon the authority by the intending Plaintiff or his agent... The said Section 97(2) of the Ports Act is impari materia with Section 12(2) of the Nigerian National Petroleum Corporation Act. The Supreme Court in declining to apply the Provisions to a case of contract held thus:- We shall now deal with the other 26

35 point which to our mind, does not seem to be well settled, namely, whether the kind of statutory privilege which we have been considering is applicable to an action founded upon a contract. In other words, whether Section 97 of the Ports Act applies to cases of contract. We think that the answer to this question must be in the negative. We agree that the Section applies to everything done or omitted or neglected to be done under the powers granted by the Act. But we are not prepared to give to the Section the stress which it does not possess. We take the view that the Section does not apply to cases of contract.... We too are of the opinion that de Commarmond S.P.J. has quite rightly stated the law in the passage of his judgment cited above. It seems to us that an enactment of this kind i.e. Section 97 of the Ports Act is not intended by the legislature to apply to specific contracts. It is pertinent to point out that the view which we have just expressed seems to be in consonance with the trend of the Judgment pronounced in English cases dealing with similar provisions in certain English statutes. We shall refer only to 27

36 one case as an example. In MIDLAND RAILWAY COMPANY VS THE LOCAL BOARD FOR THE DISTRICK OF WITHINGTON (1882 3) 11 Q.B.D. Page 788, the Court of Appeal construed Section 264 of the Public Health Act 1875 (38 & 39 Vict C55), which more or less falls in line with Section 97 of the Ports Act, the subject matter of this appeal. We think that it is desirable that we should here set out the provision of Section 264 of the Public Health Act 1875, as follows:- Section 264:- A writ or process shall not be issued out against or served on any local authority, or any member thereof, or any officer of a local authority or persons acting in his aid, for anything done or intended to be done or omitted to be done under the provisions of this Act until the expiration of one month after notice in writing has been served on such local authority, member, officer or person... Delivering Judgment of the Court at page 794, Brett M.R. made the following illuminating observation:- It has been contended that this is an action in contract, and that whenever an action is brought upon a contract the Section does not apply. I think that 28

37 where an action has been brought for something done or omitted to be done under an express contract, the section does not apply, according to cases cited, an enactment of this kind does not apply to specific contracts. Again when goods have been sold, and the price is to be paid upon a quantum merit, the section will not apply to the action for the price, because the refusal or omission to pay would be a failure to comply with the terms of the contract and not with the provisions of the statute. We agree with their Lordships exposition of the law on this point. In this appeal, I am of the view that Section 12(2) of the Nigerian National Petroleum Corporation Act does not apply to cases of contract. This is because it would be unfair to clothe the Nigerian National Petroleum Corporation with special protection in all cases of contract as that would contradict the general principles upon which the law of contract is based. Consequent upon the foregoing, I am of the view that Section 12 (2) of the Nigerian National Petroleum Corporation Act is not applicable to this case as the requirement of pre-action notice was 29

38 not incorporated into the contract between the parties. See the case of ONUORAH VS KADUNA REFINING AND PETROCHEMICAL CO. LTD (2005) 2 S.C. Part II Page 1; This Issue No. 2 is also resolved in favour of the Respondent and against the Appellant. In the result, with the resolution of the two issues for determination in this appeal in favour of the Respondent and against the Appellant, it is my view that this appeal is devoid of merit and it is hereby dismissed. The Ruling of the trial Court in Suit No. W/54/2015 Between GECMEP NIGERIA LIMITED VS WARRI REFINING & PETROCHEMICAL CO. LTD delivered on 11th day of August 2015 is hereby affirmed. The Respondent is entitled to costs which is fixed at (N100,000.00) One Hundred Thousand Naira against the Appellant. Appeal dismissed. PHILOMENA MBUA EKPE, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother J.O. Bada JCA. The two issues raised therein have been craftily and painstakingly delved into. I am in total agreement with the reasoning and conclusions reached. The totality of

39 30

40 this appeal to my mind is hereby adjudged unmeritorious. I agree and adopt the judgment of my learned brother that the appeal be dismissed. Accordingly, the ruling of the trial Court in suit No. W/54/2015 delivered on the 11th day of August, 2015 is affirmed. I abide by the order as to costs in the lead judgment. Appeal dismissed. MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the special benefit of reading before now the judgment just delivered by my learned brother, JIMI OLUKAYODE BADA, JCA. I am in complete agreement with my learned brother that, having regard to the peculiar facts and circumstances of this case, the lower Court was properly vested with jurisdiction to entertain and determine the respondent s suit, which was initiated in accordance with law. I adopt the comprehensive reasons given by His Lordship and I also dismiss this appeal. I affirm the decision contained in the ruling of the trial Court delivered on 11/08/2015. I abide by the order as to cost made in favour of the 31

41 respondent. 32