ATTORNEY GENERAL OF RIVERS STATE & ORS v. LAGOS CHAMBER OF COMMERCE & INDUSTRY
(2018) LCN/4585(SC)
In The Supreme Court of Nigeria
On Wednesday, the 17th day of October, 2018
SC.964/2016(R)
RATIO
WHETHER THE LAGOS CHAMBERS OF COMMERCE CAN INVITE THE SUPREME COURT TO EXERCISE ITS ORIGINAL JURISDICTION
… Section 232 [1) of the Constitution of the Federal Republic of Nigeria 1999 [as amended) states:- “232 (1) The Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.” From the above provision, the Intervener/applicant herein is not one of the parties which can invoke the original jurisdiction of this Court. This application by the Intervener/applicant is frivolous and makes the applicant a busybody in a matter which does not involve her. Lagos chamber of commerce is neither the Federation of Nigeria nor a State of the Federation. What I am saying in a nutshell is that the applicant has no locus standi to ventilate the issues he tries to canvass in this Court. PER JOHN INYANG OKORO, J.S.C.
JUSTICES
WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
Between
- ATTORNEY GENERAL OF RIVERS STATE
2. ATTORNEY GENERAL OF BAYELSA STATE
3. ATTORNEY GENERAL OF AKWA IBOM STATE
-PLAINTIFFLAGOS CHAMBER OF COMMERCE & INDUSTRY
-INTERVENER/APPLICANT Appellant(s)
AND
ATTORNEY GENERAL OF THE FEDERATION Respondent(s)
JOHN INYANG OKORO, J.S.C. (Delivering the Lead Ruling): The intervener/applicant filed a motion on notice on 13/11/17 seeking an order of this Court granting leave to the Applicant to be heard in these proceedings concerning the question whether the Plaintiffs/Respondents’ Amended Originating summons dated 27th April, 2017 and questions which they submit for determination, ought to be heard by the Court in its original jurisdiction. On 20th of July, 2018, this Court gave a ruling and held that it has original jurisdiction to entertain the Plaintiffs’ claim. Thus, the intervener/applicant’s motion has been overtaken by events.
For the avoidance of doubt, Section 232 [1) of the Constitution of the Federal Republic of Nigeria 1999 [as amended) states:-
“232 (1) The Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.”
From the above provision, the Intervener/applicant herein
1
is not one of the parties which can invoke the original jurisdiction of this Court. This application by the Intervener/applicant is frivolous and makes the applicant a busybody in a matter which does not involve her. Lagos chamber of commerce is neither the Federation of Nigeria nor a State of the Federation. What I am saying in a nutshell is that the applicant has no locus standi to ventilate the issues he tries to canvass in this Court. Accordingly, this application lacks merit and is hereby dismissed, being an abuse of Court process.
As I stated earlier, this Court held clearly that it has jurisdiction to hear this matter, thus exercising its original jurisdiction. It is also on record that the plaintiffs and the Defendant filed terms of settlement in this Court on 6th April, 2018. The parties had urged this Court to make the terms of settlement the judgment of this Court. That order had to be delayed pending the determination of the Interyeners motion on notice.
Having held that the Intervener’s application is frivolous and unmeritorious, the coast is now clear to conclude on the prayers of the plaintiffs and Respondents concerning the terms of settlement.
2
I recall also that in my Ruling of 20th July, 2018, I held that this Court, in exercise of its original jurisdiction can order that the terms of settlement by parties be made the judgment of this Court. Accordingly, I hereby order that the terms of settlement entered into and duly signed by both the Plaintiffs and Defendant and their counsel be and is hereby made the judgment of this Court in respect of the dispute between the parties to this suit. The said terms of settlement shall be and remain the judgment of this Court.
The Intervener/Applicant shall pay costs of N2 million naira to each set of Respondents to its application which shall be borne personally by counsel to the Intervener/applicant.
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: It is obvious that applicant in this application does not fall within the parties recognized by the Constitution over which this Court can and has the original jurisdiction.
This Court had, on 20th July,2018 determined in a ruling to the effect that this Court has original jurisdiction to hear and determine the questions posed in the Originating Summons which decision still subsists.
3
Applicant is not a party recognized by the Constitution over whom the Court has original jurisdiction.
In the circumstance, the applicant has no locus standi to present the application for the reliefs sought and the application is consequently dismissed for want of jurisdiction with N2,000,000 in favour of each set of respondents to be paid personally by learned SAN, Babatunde Fagbohunlu, SAN.
Haven dismissed the application, consent Judgment is hereby entered in terms of the terms of settlement filed on 6th April, 2018.
I agree with the lead ruling delivered by okoro JSC and the consequential order as to costs.
Judgment in terms of the said Terms of settlement.
MUSA DATTIJO MUHAMMAD, J.S.C.: By its motion on notice filed on 13th November 2017, the applicant seeks the Court’s leave to intervene in a dispute between parties that have invoked the original jurisdiction of this Court by virtue of Section 232{1) of the 1999 Constitution as amended which Provides:-
“232(1) The Supreme Court shall, to the exclusion of any other Court have original jurisdiction in any
4
dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence of or extent of a legal right depends.”
It is important to note that the intervener/applicant’s motion is being argued long after this Court had on the 20th day of July 2018, ruled that by virtue of Section 232(1) of the 1999 Constitution it had and infact assumed jurisdiction to adjudicate in a matter between the plaintiffs which are States and the Defendant, the Attorney General of the Federation. Addedly, the parties had filed terms of settlement on 6th April 2018 which instructively, abides the Courts assumption of jurisdiction over the dispute between parties and the determination of the instant application.
The intervener/applicant essentially seeks to dissuade the Court from assuming jurisdiction. The Court by its ruling of 20th July, 2018 rightly or wrongly had decided otherwise and in so doing become functus officio on the point.
Granted without conceding that this Court can revisit the issue it must further ascertain what the
5
intervener/applicants interest or platform is that entitles him to move this Court and join the proceedings at this point. Absolutely nothing!
The intervener can neither be a party to the dispute between the plaintiffs and the defendant herein given the nature of the Court’s original jurisdiction invoked nor, if they otherwise can become a party to a dispute that had ceased with the settlement of same by the parties thereto.
It is for the foregoing and the added reasons contained in the lead ruling of my learned brother JOHN INYANG OKORO JSC that I adjudge the intervener’s motion unmeritorious. I dismiss same. I abide by the consequential orders reflected in the lead ruling including making the terms of settlement entered into by parties as the judgment of the Court in respect of their dispute and the cost of the application put at Two Million naira (#2,000,000.00k) to be paid by the intervener/applicant to each set of respondents to its application which cost shall be paid personally by counsel to the intervener/applicant.
KUMAI BAYANG AKA’AHS, J.S.C.: My learned brother, Okoro JSC made available to me his
6
leading Ruling in this application wherein he dismissed the application as lacking in merit and an abuse of Court process. I respectfully agree with the said ruling.
Before the intervener/applicant filed its motion on notice, the Plaintiffs in the suit had invoked the original jurisdiction of this Court for the determination of certain questions in the Originating Summons on which the parties reached terms of settlement which were filed in the Registry of the Supreme Court on 6th April, 2018. And on 20 July, 2018 the Full Court gave a ruling in which it held that it had original jurisdiction to entertain the Plaintiffs’ claim.
In its motion filed on 13 November, 2017 the intervener/applicant sought .for leave to be heard on the question whether the Plaintiffs/Respondents Amended Originating Summons dated 27 April, 2017 and the questions they submitted for determination ought to be heard in its original jurisdiction.
Section 232(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows:-
“232(1) The Supreme Court shall, to the exclusion of any other Court have original jurisdiction in any
7
dispute between the Federation and State or between States if and in so far as that dispute involves any question {whether of law or fact) on which the existence of a legal right depends”
It is quite strange to me that the intervener/Applicant who is not one of the States of the Federation or the defendant in the action is the one challenging the action; moreso since the parties have settled the dispute and filed terms of settlement. If the applicant has any complaint against the parties on the terms of settlement agreed on, or such terms impinge on its rights as a Chamber of Commerce, the present suit as constituted is not the appropriate forum to ventilate its grievance. It is at best a busy body. It completely lacks the locus to seek to be allowed to challenge the parties on the agreement they have reached. The original jurisdiction of this Court is narrowly circumscribed and limited to disputes between a State and the Federal Government or between States inter se.
In the circumstance, the application is frivolous and is accordingly dismissed. The terms of settlement already filed shall be the judgment of this Court.
8
I abide by the order of costs made in the leading ruling to be paid personally by Fagbohunlu SAN.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The Intervener/Applicant, the Lagos Chamber commerce and Industry, by its motion on notice filed 13/11/17 sought an order of this Court granting it leave to be heard in these proceedings “concerning whether the Plaintiffs/Respondents’ Amended originating summons dated 27/4/2012 and the questions which it submits for determination, ought to be heard by this Honourable Court in its original jurisdiction ” The application had to await the ruling of this Court determining whether or not it had jurisdiction to entertain the suit ab initio. On 20/7/2018 this Court held that its original jurisdiction had been properly invoked by the plaintiffs. To my mind, the ruling has rendered this application moot.
Section 232(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides for the parties/subject matter over which this Court can exercise its original jurisdiction in the following terms:
”232(1) The Supreme Court exclusion shall, to the exclusion of any other Court, have original
9
jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.
The Intervener/Applicant is neither the Federation of Nigeria nor one of the States of the Federation. It has no locus standi to seek to be heard in these proceedings.
I agree entirely with the lead ruling just delivered by my learned brother, JOHN INYANG OKORO, JSC that the application is not only incompetent, it is vexatious and an abuse of the Court’s process. I also dismiss it and award costs of N2, 000,000.00 in favour of each set of respondents to be paid personally by Babatunde Fagbohunlu, SAN.
The Terms of Settlement executed by the parties and their counsel filed on 6/4/2018 are hereby entered as the judgment of the Court.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Okoro, JSC, obliged me with the draft of the leading Ruling just delivered. I entirely agree with His Lordship that the Intervener’s application is frivolous and, indeed, vexatious.
10
From the phraseology of Section 232 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), it is crystal clear that no forensic learning is required for a clear understanding that individuals or other legal persons [outside those envisaged therein], no matter their status, cannot take advantage of the provisions to pursue any claim from this Court sitting in its original jurisdiction,Plateau State of Nigeria and Anor v AG, Federation and Anor (2006) LPELR – 2921 (SC) 70; A -D; AG, Abia v AG, Federation and Ors (2007) LPELR – (SC) 612; AG, Lagos State v AG, Federation and Ors (2014) LPELR- 22701(SC); A. G. Federation v A. G, Abia State [2001] 11 NWLR (pt 725) 698; A. G. Kano State v A. G. Federation (2007) 6 NWLR (pt. 1029) 164, 182-183; A. G. Anambra State v A. G. Federation (2007) 12 NWLR (pt 1047) 4,42 -43.
The reason is simple. The said Section that is, Section 232 (1) (supra), canalizes the original jurisdiction of this Court within a narrow compass: a compass in which only the following features are recognizable namely,
(1) There is a justiciable dispute involving any question of law or fact;
(2) The dispute must be:
11
(a) Between the Federation and a State in its capacity as one of the constituent units of the Federation; or
(b) Between the Federation and more States that are in their capacities as members of the constituent units of the Federation; or
(c) Between States in their aforesaid capacities and the dispute must be one-in which the existence or extent of a legal right in the aforesaid capacity is involved. These rationalizations from case law are no longer subject to any forensic disputations, A.G. Lagos v A. G. Federation (supra); A. G. Abia State v A. G. Federation and Ors (supra); A. G. Plateau State and Anor v A. G. Federation and Anor (supra); A. G. Federation v A. G. Abia State (supra); A. G. Kano State v A. G. Federation (supra); A. G. Anambra State v A. G. Federation (supra).
The implication, therefore, is that the Intervener’s application before this Court is not only vexatious; it is, actually, irritating. It deserves to be dismissed.
It is for these, and the more elaborate, reasons in the leading Ruling that I, too, shall enter an order dismissing the said application. I abide by the consequential orders in the leading Ruling. Application dismissed.
12
EJEMBI EKO, J.S.C.: Lead Ruling delivered by J. l. Okoro, JSC is hereby adopted by me, including all orders made therein. The principle of locus standi is designed to keep out busy bodies and their frivolities. This application is frivolous. The Applicant has no locus standi. The Applicant is simply a busy body. The application is hereby dismissed.
Adoption of the Terms of Settlement was delayed by this frivolous application. Terms of Settlement filed on 5th April, 2018 are hereby adopted as Judgment in this suit.
Costs at #2,000,000.00 to each set of Respondents to be borne by the Counsel Fagbohunlu, SAN, and I further advise him to have a second look at the Rules of Conduct for Legal Practitioners.
TERMS OF SETTLEMENT
A. whereas By their Amended Originating Summons dated and filed the 27th day of April 2017, the Plaintiffs herein while invoking the original jurisdiction Supreme Court submitted the following questions for resolution before the Apex Court as well as claiming the following consequential reliefs:
- Whether by virtue of Section 162(1); (2) and
13
(10) (a-c) of the Constitution of the Federal Republic of Nigeria 1999 as amended under which the States are entitled to a share of the monies accruing to the Federation Account an implicit or a quasi Trust obligation is created that mandatory statutory provisions from which such funds are derived shall be diligently observed and enforced by the Federal Government or its nominee cognate Minister, Organs and or Parastatals ensuring thereby that beneficiary States qua plaintiffs et al are not underpaid/shortchanged in real terms, what is due them under the Constitution and contract or enabling statute.
2. Whether there is a statutory obligation imposed on the Defendant pursuant to Section 16(1) of the Deep Offshore and Inland Basin Production Sharing Contracts Act Cap D3 of the Laws of the Federation 2004, to adjust the share of the Government of the Federation in the additional revenue accruing under the various Production Sharing Contracts approved by The Federal Government if the price of crude oil at any time exceeds twenty dollars ($20.00USD) per barrel, in real terms, to such extent that the production sharing contracts shall be economically
14
beneficial to the government of the Federation;
3. Whether the failure of the Defendant to accordingly adjust the share of the Government of the Federation in the additional revenue accruing under the Production Sharing Contracts approved by the Federal Government following the increase of price of crude oil in excess of twenty dollars ($20.00 USD)per barrel in real terms, constitute a breach of the said Section 16 (1) of the Deep Offshore and Inland Basin Production Sharing Contracts Act and has thereby affected the total revenue accruing to the Federation and consequently the total statutory allocation accruing to the Plaintiffs by virtue of the provisions of Section 162 of the Constitution of the Federal Republic of Nigeria 1999 as amended. And for the granting of the following reliefs:
a. A Declaration that there is a statutory obligation imposed on the Defendant pursuant to Section 16(1) of the Deep Offshore and Inland Basin Production Sharing Contracts Act Cap D3 Laws of the Federation of Nigeria 2004, to adjust the share of the Government of the federation in the additional revenue accruing under the production sharing Contracts if
15
the price of crude oil at any time exceeds twenty dollars ($20.000USD) per barrel in real terms to such extent that the Production Sharing Contracts shall be economically beneficial to the government of the Federation; and a fortiori the component Federating States of the Federal Republic of Nigeria especially the 1st, 2nd and 3rd Plaintiffs.
b. A Declaration that the failure of the Defendant to accordingly adjust the share of the Government of The Federation in the additional revenue in the Production Sharing Contracts (variously approved by the Defendant) following the increase of price of crude oil in excess of twenty dollars ($20.00 USD) per barrel in real terms, constitute a breach of the said Section 16 (1) of the Deep Offshore and Inland Basin Production Sharing Contracts Act and has thereby affected the total revenue accruing to the Federation and consequently (i) the total statutory allocation accruing to the Plaintiffs by virtue of the provisions of Section 162 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
c. A Consequential Order of this Honourable Court compelling the Defendant to adjust the share of the
16
Government of the Federation in the additional revenue under all the Production Sharing Contracts in Nigeria’s Oil Industry within the Inland Basin and Deep Offshore areas as approved by the Defendant from the respective times the price of crude oil exceeded twenty dollars ($20.00LISD) per barrel in real terms and to calculate in arrears with effect from August 2003 and recover and pay immediately all outstanding statutory allocations due and payable to the Plaintiffs arising from the said adjustments.
B. AND WHEREAS
(i) On the 14th day of November, 2017 when this matter came up before the full Court with all parties and their counsel present, The Honourable Attorney General of the Federation, Abubakar Malami SAN as Counsel to the Defendant indicated the preparedness of the Defendant to explore an amicable settlement of the issues raised in these proceedings by the Plaintiffs for which he prayed for an adjournment. The matter was thereafter adjourned to the 9th of April 2018.
(ii) Pursuant to the fact in clause B (i) above, the parties herein were invited to the Chambers of the Honourable Attorney General of the Federation on Tuesday 20th
17
March 2018 wherein in a cordial atmosphere, they bared their minds and came to the inevitable conclusion that the issues placed before this Honourable Court not being hostile or adversarial in nature ought to be resolved in the overall interest of both parties and moreso in the larger interest of the Federal Government and entire citizenry of the Federal Republic of Nigeria.
(iii) In accordance with the understanding recited in clause B(ii) above, both parties herein and being under no disability freely agree and resolve as follows:-
a. That reliefs (a) (b) and (c) in the Amended Originating Summons relating to the larger interest of the Federal Government of Nigeria and the entire citizenry of the Federal Republic of Nigeria and which therefore shall be diligently implemented.
b. That the Hon. Attorney General of the Federation on behalf of the Defendant working jointly with the Plaintiffs hereby undertake to immediately set up a body and the necessary mechanism for recovery of all lost revenue accruing to the Federation Account arising from, associated with or pertaining to relief (c) above in the past and up till the date of full recovery
18
and accruing in future or an acceptable installment payments thereof within ninety (90) days next from the date of execution of these presents or its being made judgment of this Honourable Court.
c. That the Solicitors of the Plaintiff and or their nominee professional advisers shall be members of that body and necessary recovery mechanism set up by the Honourable Attorney General of the Federation in (b) above.
d. That the cost of the recovery in clause b.iii (b) above shall be netted off and payable from the Gross recovered sums from time to time prior to placement of the net recoveries in the Federation Account.
e. That the 13% (percent) derivation due to the Plaintiffs shall be paid to them upon recovery in accordance with Section 162 of the 1999 Constitution as amended.
f. That these Terms of Settlement shall be made the Judgment of this Court.
g. There shall be no order as to costs.
Dated at Abuja this 5th day of April
19
Appearances:
Lucius E. Nwosu, SAN with him, R. A. Lawal-Rabana (SAN), Kemasuode Wodu, Esq. (Hon. Attorney General and Commissioner for Justice, Bayelsa State), Uwemedimo Nwoko, Esq. (Hon. Attorney General and Commissioner)
and Florence Feberisma (Solicitor General of Rivers State)
Babatunde Fagbohunlu, SAN with him, Hamid Abdulkareem,Esq., Bimbo Atilola and Great Nnamani, Esq. for
Intervener/ApplicantFor Appellant(s)
- O. Omonowa, Esq. (Director of Civil Litigation, Federal
Ministry of Justice) with him, T. A. Gazali (Chief State
Counsel), Yewande Awopetu (Chief State Counsel), Oyin
Koleosho (Senior State Counsel) and O. A. Oloruntogbe (Senior State Counsel)For Respondent(s)
Appearances
Lucius E. Nwosu, SAN with him, R. A. Lawal-Rabana (SAN), Kemasuode Wodu, Esq. (Hon. Attorney General and Commissioner for Justice, Bayelsa State), Uwemedimo Nwoko, Esq. (Hon. Attorney General and Commissioner)
and Florence Feberisma (Solicitor General of Rivers State)
Babatunde Fagbohunlu, SAN with him, Hamid Abdulkareem,Esq., Bimbo Atilola and Great Nnamani, Esq. for
Intervener/ApplicantFor Appellant
AND
- O. Omonowa, Esq. (Director of Civil Litigation, Federal
Ministry of Justice) with him, T. A. Gazali (Chief State
Counsel), Yewande Awopetu (Chief State Counsel), Oyin
Koleosho (Senior State Counsel) and O. A. Oloruntogbe (Senior State Counsel)For Respondent
