“In this case, the “alleged error”
as the first Respondent put it, is a violation of the Appellant’s
right to fair hearing, which is enough to grant him a remedy. It
does not need to show that the decision would have been different,
if parties had been heard on the issue. They were not heard;
particularly on the issue that put the last nail on the Appeal’s
coffin”
In the Supreme Court of Nigeria
Holden at Abuja
On Friday the 12th Day of January,
2018
Before Their Lordships
Ibrahim Tanko Muhammad
Olukayode Ariwoola
Kumai Bayang Aka’ahs
Amina Adamu Augie
Paul Adamu Galinje
Justices, Supreme Court
SC.143/2008
Between
South Atlantic Petroleum Limited
………Appellant
And
1. The Minister of Petroleum Resources
2. Emo Exploration and Production Limited
3. ONGC/Mittal Energy Limited ……Respondents
(Lead Judgement delivered by Hon. Amina Adamu Augie,
JSC)
Facts
Sometime in 1998, the Appellant was awarded an Oil Prospecting
Lease (OPL 246), covering an area of 1000 square miles for a
statutory 5-year tenure, and it was later extended for a final
5-year statutory tenure, which was to expire on 28/3/2008. The said
OPL 246, entitled the Appellant to an exclusive right to explore
and prospect for petroleum in the license area, and if during the
exploration and prospecting, commercial quantities of crude oil are
found, to apply for the conversion of the OPL 246 to an Oil Mining
Lease (OML) for a renewable statutory term of 20 years.
Upon discovery of crude oil in commercial quantity, the
Appellant applied to the Department of Petroleum Resources (DPR)
for the conversion of OPL 246 into an OML, and was granted OML 130
covering an area of 500 square miles. Since by law, the maximum
size of an OML is 500 square miles, and the policy of the Federal
Government is that, upon the grant of an Oil Mining Lease to the
grantee or holder of an Oil Prospecting Lease, the grantee or
holder is taken to have relinquished the uncontroverted residue to
the Federal Government. When the Appellant applied for the
conversion of the remaining 500 square miles of OPL 246 into an
additional OML, the application was turned down. The DPR also
indicated that the said uncontroverted portion/residue would revert
to the Government, in line with existing Petroleum Regulations.
Thereafter, the DPR offered the said uncontroverted portion of OPL
246 for sale to other third parties, including the 2nd and 3rd
Respondents.
Aggrieved, the Appellant filed an ex-parte application at the
Federal High Court for leave to apply for Judicial Review, and same
was granted. Further to this, the Appellant on 10/5/2006, filed an
Originating Motion seeking Declaratory and Injunctive Reliefs, to
the effect that its rights and interests in OPL 246 remained extant
until March 2008 notwithstanding the grant of OML 130 out of OPL
246, and that the letters conveying the refusal to grant the
additional OML and the mandatory relinquishment of the
uncontroverted portion of OPL 246, were unlawful, null and
void.
The 1st Respondent, filed a Notice of Preliminary Objection to
the competence of the suit, on the ground that the relief being
sought by the Appellant in the suit was for an order of Certiorari
to quash the decisions of the Minister complained of in the said
letters; thus, the action ought to have been commenced within 3
(three) months of the accrual of the cause of action, as required
by Order 47 Rule 4(2) of the Federal High Court (Civil Procedure)
Rules. The trial Court, in its judgement, upheld the Preliminary
Objection, and held that the time within which the Appellant ought
to apply for Judicial Review had lapsed. The trial Court also
considered the main question in the suit, and found that there was
nothing unlawful in the letters, the residue of OPL 246 having been
automatically relinquished by the Appellant by operation of the
law.
Dissatisfied, the Appellant appealed to the Court of Appeal. The
Court of Appeal in its judgement delivered on 29/4/2008, held that
the grant of OPL 246 expired on 28/3/2008; therefore, since the
term granted to the Appellant under OPL 246 had been exhausted
through effluxion of time, there was no live issue left for
determination in the appeal. Consequently, the appeal was
dismissed.
The Appellant further appealed to the Supreme Court, and
formulated four issues for determination in its amended brief of
argument. The 1st Respondent in its Respondent’s brief also
formulated four issues for determination. The 2nd and 3rd
Respondents who were not parties at the lower Court, also sought
and obtained leave to be joined as interested parties in the
appeal. Upon being joined, the 2nd and 3rd Respondents filed a
Notice of Preliminary Objection praying that the Appeal be
dismissed for being a nullity, on the ground inter alia, that the
suit which culminated in the appeal was already statute barred at
the time it was commenced. The 2nd and 3rd Respondents adopted the
four issues distilled by the Appellant in respect of the main
appeal.
Issue for determination
In the determination of the appeal, the Supreme Court considered
only the first issue formulated by the Appellant as follows
Whether or not the lower Court was right, when it
dismissed the appeal based on the ground that the appeal has become
academic, without giving the Appellant an opportunity to be heard
on it.
Arguments
The Appellant argued that the approach adopted by the Court of
Appeal, was fundamentally flawed, because while a Court is
permitted to raise an issue suo motu, it is under an obligation to
invite parties to address it on the point raised suo motu. The
Appellant relied on OJE v BABALOLA (1991) 4 NWLR
(Pt. 185) 267 at 280. Also citing IROM v OKIMBA
(1998) 3 NWLR (Pt. 540) 19, the Appellant argued that the
proper approach, would have been for the Court below to defer
judgement, and recall parties to address it on the issue of the
effect of the expiration of the OPL on the appeal. The Appellant
submitted that the failure of the Court below to give the parties
an opportunity to address it on the said issue raised suo motu
before delivering its judgement which was based on this issue so
raised, amounted to a case of mis-trial and a breach of its right
to fair hearing.
Conversely, the 1st Respondent contended that, the Appellant
failed to show that the decision would have been different if the
Court of Appeal had invited the parties to address it on the effect
of the expiration of OPL 246. Counsel argued further that, the
Appellant failed to show that the alleged error by the Court of
Appeal had occasioned a miscarriage of justice.
The 2nd and 3rd Respondent, on the other hand, argued that the
expiration of OPL 246 on 28/3/2008 had never been in controversy
nor raised by the Court below suo motu, and that the said
expiration, had in fact been intricately knitted to the substance
of the suit, particularly as the Appellant had, in its appeal,
urged the Court of Appeal to extend time on the expired OPL 246,
which expiration the Appellant admitted in its brief of
argument.
Court’s Judgement and Rationale The Apex Court, relying on its
decisions in SALU v EGEIBON
(1994) 6 NWLR (PT. 348) 23, held that if a
principle of natural justice is violated, it does not matter
whether if the proper thing was done, the decision would have been
the same, the proceeding will still be null and void; therefore,
“decision must be declared to be no decision”. The Court also held
that once an Appellant shows an infringement of the principle of
natural justice against him, he need not show anything more, and
the finding that there is such an infringement is sufficient to
grant him a remedy.
Reliance was also placed on ADIGUN v A-G OYO STATE
(1987) 1 NWLR (Pt. 53) 678 at 721. The Court held that,
the alleged error in the instant case, is the violation of the
Appellant’s right to fair hearing, which is enough to grant him a
remedy, and the Appellant did not need to show that the decision
would have been different if parties had been heard on the issue.
Their Lordships held further that, the Court of Appeal ought to
have recalled the parties, especially the Appellant who would be
adversely affected by the dismissal of the appeal, after it had
reserved judgement and discovered that OPL 246 had expired, to
address it on the deleterious effect of the expiration of the OPL
246 on the Appeal. By the provision of Section 36(6) of the
Constitution of the Federal Republic of Nigeria, 1999 (as amended),
no matter how obvious the answer would appear to be, since the
lower Court was going to base its decision on the appeal becoming
spent and consequently academic, it was incumbent on the lower
Court to address it on the effect of the appeal becoming stale.
Based on the foregoing conclusion, the Supreme Court held that
the rule of fair hearing had been breached, and the appeal per
force succeeded. The appeal was thereby allowed, and the matter
sent back to the Court of Appeal for hearing and determination on
the issues between the parties, and any other issue(s) raised suo
motu.
Appeal Allowed
Representation Adetunji Oyeyipo, SAN with Olabisi O. Soyebo,
SAN, Adewale Atake Esq., Mabruk Kunmi-Olayiwola Esq. and Victor
Okpara Esq. for the Appellant.
Fidelis Oditah, QC, SAN, Robert Clarke, SAN, and Miss Onyeka
Enunwa for the 1st Respondent.
Ahmed Raji, SAN, with Adeola Adedipe Esq., Victor Okwudiri Esq.,
O.C. Ogunyemi Miss and Idongesit Antai Esq. for the 2nd and 3rd
Respondents.
Reported by Optimum Publishers Limited (Publishers of
the Nigerian Monthly Law Reports (NMLR))
“In this case, the “alleged error”
as the first Respondent put it, is a violation of the Appellant’s
right to fair hearing, which is enough to grant him a remedy. It
does not need to show that the decision would have been different,
if parties had been heard on the issue. They were not heard;
particularly on the issue that put the last nail on the Appeal’s
coffin”
In the Supreme Court of Nigeria
Holden at Abuja
On Friday the 12th Day of January,
2018
Before Their Lordships
Ibrahim Tanko Muhammad
Olukayode Ariwoola
Kumai Bayang Aka’ahs
Amina Adamu Augie
Paul Adamu Galinje
Justices, Supreme Court
SC.143/2008
Between
South Atlantic Petroleum Limited
………Appellant
And
1. The Minister of Petroleum Resources
2. Emo Exploration and Production Limited
3. ONGC/Mittal Energy Limited ……Respondents
(Lead Judgement delivered by Hon. Amina Adamu Augie,
JSC)
Facts
Sometime in 1998, the Appellant was awarded an Oil Prospecting
Lease (OPL 246), covering an area of 1000 square miles for a
statutory 5-year tenure, and it was later extended for a final
5-year statutory tenure, which was to expire on 28/3/2008. The said
OPL 246, entitled the Appellant to an exclusive right to explore
and prospect for petroleum in the license area, and if during the
exploration and prospecting, commercial quantities of crude oil are
found, to apply for the conversion of the OPL 246 to an Oil Mining
Lease (OML) for a renewable statutory term of 20 years.
Upon discovery of crude oil in commercial quantity, the
Appellant applied to the Department of Petroleum Resources (DPR)
for the conversion of OPL 246 into an OML, and was granted OML 130
covering an area of 500 square miles. Since by law, the maximum
size of an OML is 500 square miles, and the policy of the Federal
Government is that, upon the grant of an Oil Mining Lease to the
grantee or holder of an Oil Prospecting Lease, the grantee or
holder is taken to have relinquished the uncontroverted residue to
the Federal Government. When the Appellant applied for the
conversion of the remaining 500 square miles of OPL 246 into an
additional OML, the application was turned down. The DPR also
indicated that the said uncontroverted portion/residue would revert
to the Government, in line with existing Petroleum Regulations.
Thereafter, the DPR offered the said uncontroverted portion of OPL
246 for sale to other third parties, including the 2nd and 3rd
Respondents.
Aggrieved, the Appellant filed an ex-parte application at the
Federal High Court for leave to apply for Judicial Review, and same
was granted. Further to this, the Appellant on 10/5/2006, filed an
Originating Motion seeking Declaratory and Injunctive Reliefs, to
the effect that its rights and interests in OPL 246 remained extant
until March 2008 notwithstanding the grant of OML 130 out of OPL
246, and that the letters conveying the refusal to grant the
additional OML and the mandatory relinquishment of the
uncontroverted portion of OPL 246, were unlawful, null and
void.
The 1st Respondent, filed a Notice of Preliminary Objection to
the competence of the suit, on the ground that the relief being
sought by the Appellant in the suit was for an order of Certiorari
to quash the decisions of the Minister complained of in the said
letters; thus, the action ought to have been commenced within 3
(three) months of the accrual of the cause of action, as required
by Order 47 Rule 4(2) of the Federal High Court (Civil Procedure)
Rules. The trial Court, in its judgement, upheld the Preliminary
Objection, and held that the time within which the Appellant ought
to apply for Judicial Review had lapsed. The trial Court also
considered the main question in the suit, and found that there was
nothing unlawful in the letters, the residue of OPL 246 having been
automatically relinquished by the Appellant by operation of the
law.
Dissatisfied, the Appellant appealed to the Court of Appeal. The
Court of Appeal in its judgement delivered on 29/4/2008, held that
the grant of OPL 246 expired on 28/3/2008; therefore, since the
term granted to the Appellant under OPL 246 had been exhausted
through effluxion of time, there was no live issue left for
determination in the appeal. Consequently, the appeal was
dismissed.
The Appellant further appealed to the Supreme Court, and
formulated four issues for determination in its amended brief of
argument. The 1st Respondent in its Respondent’s brief also
formulated four issues for determination. The 2nd and 3rd
Respondents who were not parties at the lower Court, also sought
and obtained leave to be joined as interested parties in the
appeal. Upon being joined, the 2nd and 3rd Respondents filed a
Notice of Preliminary Objection praying that the Appeal be
dismissed for being a nullity, on the ground inter alia, that the
suit which culminated in the appeal was already statute barred at
the time it was commenced. The 2nd and 3rd Respondents adopted the
four issues distilled by the Appellant in respect of the main
appeal.
Issue for determination
In the determination of the appeal, the Supreme Court considered
only the first issue formulated by the Appellant as follows
Whether or not the lower Court was right, when it
dismissed the appeal based on the ground that the appeal has become
academic, without giving the Appellant an opportunity to be heard
on it.
Arguments
The Appellant argued that the approach adopted by the Court of
Appeal, was fundamentally flawed, because while a Court is
permitted to raise an issue suo motu, it is under an obligation to
invite parties to address it on the point raised suo motu. The
Appellant relied on OJE v BABALOLA (1991) 4 NWLR
(Pt. 185) 267 at 280. Also citing IROM v OKIMBA
(1998) 3 NWLR (Pt. 540) 19, the Appellant argued that the
proper approach, would have been for the Court below to defer
judgement, and recall parties to address it on the issue of the
effect of the expiration of the OPL on the appeal. The Appellant
submitted that the failure of the Court below to give the parties
an opportunity to address it on the said issue raised suo motu
before delivering its judgement which was based on this issue so
raised, amounted to a case of mis-trial and a breach of its right
to fair hearing.
Conversely, the 1st Respondent contended that, the Appellant
failed to show that the decision would have been different if the
Court of Appeal had invited the parties to address it on the effect
of the expiration of OPL 246. Counsel argued further that, the
Appellant failed to show that the alleged error by the Court of
Appeal had occasioned a miscarriage of justice.
The 2nd and 3rd Respondent, on the other hand, argued that the
expiration of OPL 246 on 28/3/2008 had never been in controversy
nor raised by the Court below suo motu, and that the said
expiration, had in fact been intricately knitted to the substance
of the suit, particularly as the Appellant had, in its appeal,
urged the Court of Appeal to extend time on the expired OPL 246,
which expiration the Appellant admitted in its brief of
argument.
Court’s Judgement and Rationale The Apex Court, relying on its
decisions in SALU v EGEIBON
(1994) 6 NWLR (PT. 348) 23, held that if a
principle of natural justice is violated, it does not matter
whether if the proper thing was done, the decision would have been
the same, the proceeding will still be null and void; therefore,
“decision must be declared to be no decision”. The Court also held
that once an Appellant shows an infringement of the principle of
natural justice against him, he need not show anything more, and
the finding that there is such an infringement is sufficient to
grant him a remedy.
Reliance was also placed on ADIGUN v A-G OYO STATE
(1987) 1 NWLR (Pt. 53) 678 at 721. The Court held that,
the alleged error in the instant case, is the violation of the
Appellant’s right to fair hearing, which is enough to grant him a
remedy, and the Appellant did not need to show that the decision
would have been different if parties had been heard on the issue.
Their Lordships held further that, the Court of Appeal ought to
have recalled the parties, especially the Appellant who would be
adversely affected by the dismissal of the appeal, after it had
reserved judgement and discovered that OPL 246 had expired, to
address it on the deleterious effect of the expiration of the OPL
246 on the Appeal. By the provision of Section 36(6) of the
Constitution of the Federal Republic of Nigeria, 1999 (as amended),
no matter how obvious the answer would appear to be, since the
lower Court was going to base its decision on the appeal becoming
spent and consequently academic, it was incumbent on the lower
Court to address it on the effect of the appeal becoming stale.
Based on the foregoing conclusion, the Supreme Court held that
the rule of fair hearing had been breached, and the appeal per
force succeeded. The appeal was thereby allowed, and the matter
sent back to the Court of Appeal for hearing and determination on
the issues between the parties, and any other issue(s) raised suo
motu.
Appeal Allowed
Representation Adetunji Oyeyipo, SAN with Olabisi O. Soyebo,
SAN, Adewale Atake Esq., Mabruk Kunmi-Olayiwola Esq. and Victor
Okpara Esq. for the Appellant.
Fidelis Oditah, QC, SAN, Robert Clarke, SAN, and Miss Onyeka
Enunwa for the 1st Respondent.
Ahmed Raji, SAN, with Adeola Adedipe Esq., Victor Okwudiri Esq.,
O.C. Ogunyemi Miss and Idongesit Antai Esq. for the 2nd and 3rd
Respondents.
Reported by Optimum Publishers Limited (Publishers of
the Nigerian Monthly Law Reports (NMLR))
Read more https://nairalaw.com/duty-of-court-to-hear-parties-on-issue-raised-suo-motu-before-deciding-same/