SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED v. REGISTRAR OF BUSINESS PREMISES ABIA STATE (2015)

SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED v. REGISTRAR OF BUSINESS PREMISES ABIA STATE

(2015)LCN/7746(CA)

In The Court of Appeal of Nigeria

On Friday, the 23rd day of January, 2015

CA/OW/152/2009

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER AN APPEAL CAN ONLY BE RAISED AND FOUNDED ON VALID COMPLAINTS

Appeal can only be raised and founded on live/valid complaints, arising from the judgment appealed against, challenging a live issue or ratio decidendi in the judgment of the lower court. See the case of Ossai vs. FRW (2012) LPELR -19669(CA); Shettima vs. Goni (2011) 18 NWLR (pt. 1297) 413 at 440; Ayangoke and Anor vs. Keystone Bank Ltd. (2013) LPELR -21806(CA). per. ITA G. MBABA, J.C.A.

APPEAL: WRIT ISSUED FOR SERVICE OUT OF JURISDICTION; WHETHER THE FAILURE TO COMMENCE THE ORIGINAL PROCESS, VALIDLY, AFFECTED THE WRIT AND ROBBED THE COURT OF JURISDICTION

COURT: JURISDICTION; THE EXCLUSIVE JURISDICTION OF FEDERAL HIGH COURT ACCORDING TO THE CONSTITUTION

Was the trial court seized of jurisdiction to entertain this particular case, in view of Section 251(1)(n) of the 1999 Constitution and items 39 and 68, part 1, second schedule to the 1999 Constitution

Section 251(1)(n) of the 1999 Constitution, as amended says:
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters…
(n)mines and minerals (including oil fields, oil mining, geological surveys and natural gas)”
The item 39 part 1 to the 2nd schedule, repeats the provision of the subsection (n) above, while item 68 refers to:
“Any matter incidental or supplementary to any matter mentioned elsewhere in this list”
Of course, item 68 relates, not only to provisions in item 39 but also to other provisions in items 1 to 67.
In effect, the item-39, that is, “mines and minerals (including oil fields, oil mining, geological surveys and natural gas)” and any matter incidental or supplementary thereto, which fall within the exclusive legislative competence of the National Assembly, is reserved for the exclusive jurisdiction of the Federal High Court. per. ITA G. MBABA, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Appellant(s)

AND

REGISTRAR OF BUSINESS PREMISES ABIA STATE Respondent(s)

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Abia State in suit No.HUK/51M/2008, delivered on 14/5/2009 by Hon. Justice C. O. Onyeabo, wherein the trial Court dismissed the preliminary objection raised by the Appellant at the Court below that the suit disclosed no cause of action.

The plaintiff (Appellant herein) had on 2/10/08 filed an ex-parte application seeking an order of mandamus compelling the Respondent to register its (Appellant’s) 100 Oil wells, comprising four flows stations, situate at Ukwa East Local Government Abia State. The exparte application was granted, for the Appellant to apply for the said order of mandamus. Upon the Respondent being served with the Court processes, he filed a notice of preliminary objection dated 27/10/2008, challenging the jurisdiction of the court to entertain the suit on the following grounds:
(1) The suit was not properly constituted as applicant was not a juristic person.
(2) Abia State had no legislative or executive authority over the subject matter of the suit which concerned and related to oil fields and oil wells.
(3) Jurisdiction over mines and minerals (including oilfields, oil mining geological surveys and natural gas) belonged exclusively to the National Assembly and Federal High Court.
(4) The suit disclosed no cause of action, adopted a wrong approach, was frivolous and vexatious in the circumstance and
(5) In the light of the above, the suit was improperly constituted, unmaintainable in law and ought to be dismissed.

In the suit the Respondent, who came by way of originating summons, sought the following reliefs:
(1) By Sections 2(1) and 6(1)(2) of the Laws of Abia State, Vol. 1, 1991 to 1997, the Applicant is empowered to register all business premises as defined in the said law.
(2) By the said sections it is mandatory for the Applicant (sic) to register her flow stations and oil wells with the Applicant
(3) The Registration of Business Premises is for purposes of proper planning and
(4) The Respondent failed or neglected to comply with the said sections 2(1) and 6(1) as required, for which reason the Applicant served demand notices on the Respondent, yet the Respondent has refused to effect the registration.

The facts upon which the reliefs were sought were:
(1) The Applicant is an office established by law.
(2) The Respondent is a registered company and has its operations in oil sector and in an area known by them as IMO RIVER within Abia State.
(3) The Respondent has served Business Premises within Abia State in the said IMO RIVER location and they consist of 100 Oil Wells, making up 4 flow stations
(4) The Applicant served on the Respondent a letter demanding compliance with the law for registration but the Respondent failed to heed the demand.
(5) That it is a public duty to affect registration.

After hearing the arguments on the preliminary objection and considering the submissions of Counsel, the learned trial Court dismissed the preliminary objection, saying:
“In consideration of all the foregoing, I have found that the Applicant is a juristic person so that the suit is properly constituted. I hold that Abia State has the legislative and executive authority over the subject matter of this suit, which is on the payment of business premises registration fee. I agree with the Respondent’s Counsel that jurisdiction over mines and minerals (including oil fields, oil mining, geological survey and natural gas) belong, exclusively, to the National Assembly and Federal High Court. However, none of those matters or issues arising therefrom is before me. The suit, by my finding, discloses a cause of action as shown in the reliefs…” (page 43 of the Records)

Dissatisfied, Appellant filed its notice and grounds of appeal on 27/5/2009, as per pages 44 to 47 of the Records of Appeal. Appellant filed Amended Notice of Appeal on 30/11/2009, wherein it disclosed six (6) grounds of Appeal. It followed this up with a brief of argument filed on the same 30/11/2009 with the following 5 issues for determination:
(1) Whether the lower Court was right to hold that Applicant/Respondent is a juristic person. (Ground 1)
(2) Whether, in the light of the clear provisions of Section 251(1)(n), items 39 and 68 of part 1, second schedule of the Constitution of the Federal Republic of Nigeria, the lower Court has the jurisdiction to hear and entertain the suit (Grounds 2 and 3).
(3) Whether the lower Court was right to rule that the Order of mandamus is a right and ripe order to be applied for by the Respondent, given the nature and circumstances of this case. (Ground 4)
(4) Whether the lower Court was right to hold that the Respondent/Appellant Counsel cannot argue that the registration of business premises law is inapplicable and then seek to rely on the enforcement of its Provisions. (Ground 5)
(5) Whether in view of the Respondent’s non-compliance with the mandatory provisions of Section 97 of the Sheriff and Civil Process Act, the lower Court was right to have assumed jurisdiction to hear and entertain the suit.” (Ground 6)

When the appeal was heard on 27/11/14, Applicant’s Counsel adopted their brief and urged us accordingly, having earlier been granted leave for the appeal to be heard on Appellant’s brief alone. The Respondent had failed and refused to file Respondent’s brief.

Arguing the appeal, the Appellant’s Counsel, Pedro C. Madukwe Esq (who settled the brief), on issue 1, submitted that the trial Court was wrong to hold that the Respondent had legal personality, when it is not a natural person, corporation, or circumstantial proof given for the status to be implied.

He argued that, by law, only natural persons or legal persons, like registered and incorporated companies and incorporated trustees, formed under the Companies and Allied Matters Act (CAMA), or statutory bodies, that can sue and be sued; Counsel conceded that in some instances, it may not be so expressly stated that an artificial person or body is incorporated with perpetual succession and common seal, or any such words to that effect, but its legal personality and characteristic will be implied from its functions. He relied on the case of Thomas Vs Local Government Service Board (1965) All NCR 168.

Counsel argued that the Director of Commerce in the Ministry of Commerce and Industry of Abia State is by Abia State Registration of Business Premises Law, Cap 30 Laws of Abia State, assigned some functions which he is to perform in his capacity of Registrar of Business Premises, but that his duties and functions include some administrative overseeing of the activities of Business Premises Registration in a capacity subjugated to that of his boss, the Honourable Commissioner for Commerce and Industry, as well as the political and executive will of the State Government; that he is not expressly made a legal persona by the law that assigned him those functions, nor can his subsidiary, dependant and assistant be so recognised. He relied on the case of Agbomagbe Bank Ltd Vs General Manager G.B. Olivant Ltd. (1961) All NLR 116; Okechukwu & Sons Vs Ndah (1967) NMLR 368; Plateau State Vs A.G. Federation (2006)3 NWLR (pt. 969) 346 at 367; Maerskline Vs Addide Investment Ltd (2002)11 NWLR (pt.778)317

Counsel cited some sections of the Registration of Business Premises Law to show that the Registrar of the Business Premises Law is subject to the control of the Commissioner for Commerce and Industry. He concluded that the Registrar of Business Premises Law is not a natural person, but an officer who acts in official capacity and so cannot maintain the action in Court. He relied on Fawehinmi vs NBA (2) (2008) All FWLR (Pt.448) 205.

On issue 2, whether the trial Court had jurisdiction in the light of Section 251 (1)(n) of the 1999 Constitution and item 39 and 68 (part 1, Second Schedule of the same Constitution) Counsel answered in the negative, saying that the subject matter which (he said) has to do with mines and minerals, was outside the jurisdiction of the State High Court. Counsel faulted the learned trial Court, when it held that it was not determining any issue of or relating to mines and minerals (including oil fields, oil mining, geological surveys and natural gas), and that the registration of business Premises is quite distinct from the nature of the business being carried out thereon. Counsel relied on paragraphs (2) & (3) of the facts upon which the reliefs were sought (page 3 of the Records of Appeal), where the Respondent said it was mandatory for the Appellant to register its flow stations and oil wells with the applicant; that the Appellant had/has several business premises within Abia State in the Imo River location consisting of 100 oil wells making up 4 flow stations.

He submitted that it was therefore explicit from the affidavit verifying the facts and the reliefs sought, that the Business premises which the Respondent sought to register were oil wells and flow stations; that the Respondent had copiously and clearly stated without any ambiguity that the Appellant had its operations in the oil sector and has business premises within Abia State, which consist of 100 oil wells making up 4 flow stations. Thus, Counsel said, the trial Court’s findings on the issue denying any connection with mines and minerals etc appeared strange to the documents and records placed before it. He argued that the relevant section of the law under which the Respondent dragged the Appellant to Court was the Shell-tailored Fourth Schedule to Section 24, item 12 under Commercial Services Establishments which reads thus: “Flow stations of major oil prospecting Companies e.g. Shell).”

Counsel argued that jurisdiction of Court cannot be determined outside the facts relied upon by the Applicant in his application for an order of mandamus and the Court cannot, suo moto, construct another case for the Applicant, just to assume jurisdiction.
He argued that Appellant’s business is clearly inextricably intertwined with the nature of the business carried out thereon as they cannot be separated; that the question then is what is the business, that is sought to be registered? Answer: Appellants’ oil wells and flow stations.

Counsel submitted that the law under which the Respondent brought the application (Abia State Business Registration Law) is relevant here; that it is trite that in determining jurisdiction of a Court, the enabling law vesting jurisdiction must be examined in the light of the relief sought. He relied on the case of Uzoho Vs National Council of Privatization (2007)10 NWLR (pt. 1042)320. He submitted that the Respondent’s case, clearly, by the effect of Section 251 (1)(n), items 39 and 68 of part 1 of the 2nd schedule of the 1999 Constitution and Section 7(1)(3) of the Federal High Court Act, the National Assembly has exclusive legislative powers, and the Federal High Court has exclusive jurisdiction over all civil matters relating to mines and minerals (including oil facts, oil mining, geological surveys and natural gas); that Abia State Registration of business Premises Law Cap 30, Vol.1, 1991 to 1997, which provides for the registration of the Appellant’s oil wells situate at Imo River, Owaza Asa, Abia State, is null and void, at least to the extent it contravenes the above provisions of the 1999 Constitution. He relied on Fasakin Foods Nig. Ltd. Vs Martins Babatunde Shosanya (2006) All FWLR (pt.320)1059 at 1061-1062

On issue 3, whether the lower Court was right to hold that order of mandamus is right and ripe to be applied for in the circumstances and nature of this case, Counsel answered in the negative. He relied on the case of The State Vs Commissioner of Police, Oyo State & 2 Ors (1981)1 FRN 124; Okonjo Vs Council of Legal Education (1971)1 FRN 70, on when the order of mandamus is available. He also relied on Fawehinmi Vs I.G. of Police (2002)7 NWLR (pt.767) 606, to say that the conditions precedent to the granting of the prerogative order of mandamus, including the ones that the performance of that public duty by the respondent, which must necessary appertain to his (public) office, must have been properly demanded to no avail by the applicant, who himself must have a well established non-controversial specific legal interest to enforce. He argued that the Appellant was/is not an inferior Court, and the registration of business premises by private individuals was/is not a public duty, to warrant the application or writ of mandamus, especially as the Respondent did not demand the Appellant to register its oil wells and flow stations and the Respondent does not have established legal interest in the Appellant registering its oil wells and flow stations. He also added that the Registration of Business Premises Law has also provided for a more convenient mode of its enforcement and relied on Section 22 of the law.

Counsel referred us to Exhibit A (Demand Notice by the Respondent) and submitted that the same was not an effective demand notice, having been signed by a stranger element, though written on the letter head of Ministry of Commerce and Industry, Abia State. See page 6-7 of the Records; that no nexus was established between the Ben Nwafor (Consultant and Managing Director of Japan Concord Investment Ltd) who signed the letter and the Registrar of Business Premises Law. Thus, Counsel argued, that the requirement of issuance of demand notice was not satisfied as to make the granting of an order of mandamus ripe. Therefore, he said the lower Court lacked the requisite jurisdiction to entertain the suit. He relied on the case of Madukolu Vs Nkemdilim (1962) 2 SCNLR 341.

On issue 4, Counsel submitted that the trial Court was wrong, while dismissing the preliminary objection to hold that: “The Respondent’s Counsel cannot in one breath argue that the said Registration of Business Premises Law is inapplicable and then seek to rely on the enforcement of its provisions”; that by so holding, that error resulted in miscarriage of justice to the Appellant’s.

On issue 5, Counsel submitted that by Section 97 of the Sheriff and Civil Process Act, service of the process (writ of summons) issued for service outside the jurisdiction of the issuing Court/State, must be properly endorsed as such, otherwise the writ would be incompetent.

It is noteworthy that Appellant’s Counsel had claimed that the issue 5 derived from ground one of the appeal. I think, that was an error, as Appellant had already distilled issue one from the ground one, and so that ground (1) was no longer available to distil another issue for determination. The law is that only one issue can distil from a single ground of appeal, though a combination of two or more grounds of appeal can give birth to a single issue for determination. See Ossai Vs FRN (2012) LPELR 1969 (CA) (2012)13 wrn 87 Wazo Vs Rail-way Property Company Ltd. & Ors (2014) LPELR -23737 CA; AGODI VS ANYANWU & ORS (2014) LPELR -23746 (CA). See also Usman Vs New Nigerian Bank (2013) LPELR -20404 (CA).

It can, however, be seen that Appellant made a mistake by alleging that the issue 5 distilled from ground 1. It, actually, distilled from ground 6, which was:
“The Honourable Trial Court erred in law when without considering the mandatory provisions of Section 97 of the Sheriffs and Civil Process Act, Cap 407, the Laws of the Federation, 1990, it held that it has jurisdiction to entertain this suit.
PARTICULARS OF ERROR:
(a) By Section 97 of the Sheriffs and Civil Process Act, every writ of Summons for service out of the State in which it was issued shall, in addition to an endorsement of notice, require thereon, a notice to the effect that “this summons is to be served out of the … State and in the … State of”
(b) The Applicant’s originating process failed to comply with this mandatory provision of the law.
(c) ……
(d) The learned trial judge therefore erred when in spite of the mandatory nature of the above Provision, he held that he has jurisdiction.”

Counsel submitted that, the Respondent did not comply with the Provision of Section 97 of the Sheriff and Civil Process Act and relied on the case of Owners of MV “ARABELLA VS NAIC (2008) 11 NWLR (pt.) 182. He said there was no dispute as to the fact that the Appellant on record is situate and has its office at Port Harcourt, Rivers State, while the Respondent is situate in Abia State; he said the process served on the Appellant did not comply with the mandatory Provisions of that law.

Counsel also relied on the case of Kida Vs Ogunmola (2006) All FWLR (Pt.327) 402 at 406 and on the test by Nwadialo on Civil Procedure page 266.
He urged us to resolve the issues for Appellant and allow the appeal.

RESOLUTION OF ISSUES
I think I should start with issue 3, which appears to me to be jumping the gun, in the way Appellant argued it. Appellant had queried whether the lower Court was right to rule that order of mandamus was right and ripe to be applied for by the Respondent in the circumstances of this case. And in arguing the issue, Counsel said the trial Court “held that order of Mandamus was right and ripe order to apply for in the circumstance and nature of this case without satisfying itself that the conditions precedent to its application have been met.” Counsel went on to cite authorities on what order of mandamus is and the conditions to be satisfied before the order of mandamus can be ordered, including the case of The State Vs C.O.P Oyo State & 2 Ors (1981)1 FNR 124 at 127, where it was held:
“The order of mandamus is an order of a most extensive remedial nature and is inform, a command issuing from the High Court of Justice directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty… and it may issue in cases where, although there is an alternative legal remedy, yet that mode is less inconvenient, beneficial and effectual.”

Counsel also relied on the case of Okonjo Vs Council of Legal Education (1971)1 FNR 70, where My Lord, Okagbue JCA, held that:
“The Writ of mandamus lies only to compel performance of a public duty in which no liberty of choice as to the performance or non performance of it is left with the officer or tribunal that has to discharge it, and the applicant must show that he has a real and special interest in the subject matter and a specific legal right to enforce.”

Appellant’s arguments on the issue may be sound, when he stated the criteria required to be satisfied before the granting of the order of mandamus, namely, that:
(i) It issues from a superior Court of a person, corporation or an inferior Court;
(ii) Directing the performance of a certain and established public duty;
(iii) Which appertains to the office of the respondent;
(iv) Which the applicant has real and specific legal interest in;
(v) And which he has demanded to be performed to no avail;
(vi) The enforcement of which duty the law establishing it made no provision for or the mode of enforcement which is less convenient, beneficial or effectual.

But the above criteria, with respect to appellant’s Counsel, cannot be applied in this appeal, when the application for the order of mandamus is yet to be taken/heard, since Appellant had taken a preliminary objection to stall the hearing of the case at the lower Court! There is, therefore, no basis to consider whether the requirements for order of mandamus have been satisfied by the Respondent, the case having not been heard Appellant cannot eat his cake and still have it. After stopping the hearing of the Respondent’s case, Appellant cannot now exploit any perceived weakness in the case to seek the dismissal of the case before it is heard!

It should also be appreciated that the trial Court, having heard the motion ex-parte and granted leave for the Respondent to apply for the prerogative writ of order of mandamus, the Appellant cannot raise the issue on appeal, that the suit is not one for application for that form of relief -Order of mandamus, as that would amount to, an appeal against the ex-parte decision and a challenge to the discretion of the lower Court. See Section 14 (1) of the Court of Appeal Act, 2004, which bars right of appeal against ex-parte decision of the High Court. See also Oceanic Bank Plc Vs Oladepo & Anor (2012) LPELR -19670 CA; (2013)3 WRN 74; Project Nineteen Ltd. & Anor Vs Aziz/Stacons & Associates (2014) LPELR -23736 (CA), where it was held that “… by law, Appellants cannot raise appeal against an ex-parte order of the trial Court…”
Thus, apart from the Appellant trying to prompt the Respondent’s case by raising that issue, it also lacks power to raise the complaint as that would be an attempt to fault an ex-parte order of the trial Court, or appeal against it, contrary to Section 14(1) of the Court of Appeal Act, 2004, which says:
“… but no appeal shall lie from any order made ex-parte, or by consent of the parties or relating only to costs.”

I resolve the issue 3 against the Appellant.

Issue 4 was a quarrel that the trial Court said the Appellant could not assert that the Abia State Registration of Premises Law was inapplicable to the case and at the same time Appellant sought refuge in the same law to found alternative relief for the Respondent; that having submitted that the Registration of Business Premises Law should be struck down, for running contrary to the Constitutional provisions in items 39 and 68 of part 1 Second Schedule, relating to National Assembly’s Power to legislate on matters relating to mines and minerals (including oil fields, oil mining, geological surveys and natural gas), Appellant could not again rely on the provisions of the same law (Section 22) to suggest a more convenient remedy for the Respondent in event of any breach by the Appellant. I think that observation by the Court was well taken, as it would amount to approbating and reprobating, at the same time by Appellant on the same issue, which the law has always abhorred, being a clear evidence of gambling in court.

I cannot also see how what the learned trial judge thought or said about a given submission of Counsel in the case can be a ground for appeal, where the opinion did not touch on the substance of the case, as the opinion of the trial judge on such submissions are mere obiter and do not constitute the ratio decidendi or determinant holding, which affects the interests of the parties, except the same led to miscarriage of justice. Appeal can only be raised and founded on live/valid complaints, arising from the judgment appealed against, challenging a live issue or ratio decidendi in the judgment of the lower court. See the case of Ossai vs. FRW (2012) LPELR -19669(CA); Shettima vs. Goni (2011) 18 NWLR (pt. 1297) 413 at 440; Ayangoke and Anor vs. Keystone Bank Ltd. (2013) LPELR -21806(CA).

I resolve the issue 4 against the Appellant.

Appellant’s issue 5 was whether in view of the Respondent’s non-compliance with the mandatory provisions of Section 97 of the Sheriff and Civil Processes Act, the lower court was right to have assumed jurisdiction to hear and entertain the suit.

That section of the law requires that:
“Every writ of summons for service out of the State in which it was issued shall, in addition to any endorsement of notice required by law of such state… have endorsed thereon, a notice to the following effect… “THIS SUMMONS IS TO BE SERVED OUT OF THE STATE… AND IN THE STATE OF…”
That means, as pertaining to this case, that there should be endorsement on the face of the process, that the writ was issued from Abia State and served out of jurisdiction, in Rivers State which Appellant argued, it has its headquarters or operational base. Counsel also argued that a “writ of summons” used by the Section 97 of the Sheriff and Civil Process Act, includes any writ or process by which a suit is commenced or of which the object is to require the appearance of any person against whom relief is sought in a suit or who is interested in resisting such relief. He relied on Section 95 of the Act and on the book by Nwadialo, on Civil Procedure, at Page 266. In case of Kida vs. Ogunmola (2006) All FWLR (pt.327) 402 at 406 relied upon by the Appellant, it was held:
“The validity of the issue of the originating process is fundamental to the competence of a suit: therefore, failure to commence a proceeding with a writ of summons validly issued goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. Such a flaw clearly borders on the issue of jurisdiction and the competence of the court to adjudicate on the matter…”
Can Appellant rely on the above case to seek a nullification of the originating process(es) in this case, served on it, simply because, according to it, there was no endorsement on the process that the writ was issued from one State and served out of jurisdiction, in another State, as per Section 97 of the Sheriff and Civil Process Act?

There is evidence that the Respondent applied on 23/9/2008 by means of motion ex-parte for;
“Leave to apply for an order of mandamus in terms of the reliefs set out in the statement hereto attached. And for such further order or other orders…”
The application was granted on 25/9/08, pursuant to Order 43 Rule 1(11), Rule 3(1)(2)(3)(5) of the High Court (Civil Procedure) Rules of Abia State 2011, and the Court ordered as follows:
“That LEAVE be and is hereby granted to the Appellant to apply for an Order of Mandamus in terms of the reliefs set out in the statement hereto attached.
That the Appellant is directed to file his Motion on Notice within 14 days henceforth for hearing.
Return date for hearing of the Motion on Notice shall be 9th day of October 2008…”

Of course, the Respondent had filed the Motion on Notice on 2/10/2008, which was served on the Appellant. In all the processes filed, the Respondent had stated that Appellant operated oil wells and flow station in Imo River within Abia State -lying situate at Owaza and Isimiri Ukwa in Ukwa West Local Government. See pages 3 and 4 of the Records.

It is note worthy that Appellant never raised this issue of incompetence of the writ for non-compliance with Section 97 of the Sheriff and Civil Process Act at the court below. Appellant is therefore raising this issue in this court for the first time, but without complying with the rules to raise the same as fresh issue! Though Appellant obtained the leave of this court to argue additional ground six (from which this issue was distilled), Appellant never specified that the same was a fresh issue, never considered or contemplated in the judgment appealed against. See Adie vs. State (2013) All FWLR (pt.684) 167 CA:
“An appeal court will not allow a party or Counsel to attack a judgment on a point not argued at the trial court…”

Even then, there is evidence that Appellant operates its business in Abia State, within the jurisdiction of the court below, and the Rules of Court allow service of processes on a defendant within the jurisdiction of the court. Of course, Appellant never denied being duly served, but merely complained that there was no endorsement on the process that it was served out of jurisdiction.
I do not think Appellant, having admitted being duly served, without any complaint, and having taken due steps to defend the suit, or to seek its striking out (on grounds other than incompetence for non-compliance with Section 97 of the Sheriff and Civil Process Act) can raise such complaint on appeal, especially as that complaint was not contemplated in the judgment appealed against. Appellant is deemed to have waived the right to complain (even if it had a right to do so) in the circumstances.

It should also be noted that the writ was not issued for service out of jurisdiction (in another State) as there was no application to that effect. I had earlier reproduced the of the motion ex-parte on which the order was made.
I am always bothered about the level of mockery the law would be subjected, when a party, who has been served with the processes of court, comes to the same court to seek nullification of the service on him of the processes, alleging improper issuance or service of the process. See Oseni vs. Olge & Anor (2014) LPELR -22919 (CA); Khalid vs. Al-Nasim Travels & Tours Ltd (2014) LPER 22331 CA. I know that in appropriate circumstances, there can be genuine complaint about issuance/service of process, that goes to the root of the case, as shown in that case of Kida vs. Ogunmola (2006) All FWLR (pt.327) 402 at 406, wherein it was held that failure to commence the original process, validly, affected the writ and robbed the court of jurisdiction, as the process lacked competence, but that could not be said of this case, of which the originating process was duly issued, with the leave of the trial court and served on the Appellant. And in the preliminary objection by the Appellant (at the court below), it never challenged the competence of the writ i.e. issuance thereof. Rather, Appellant’s preliminary objection was on the grounds of:
1. Improper constitution of the suit -that the Appellant was not a juristic person.
2. Lack of jurisdiction of the State Legislature over the subject matter -that mines and minerals are in the exclusive list for the National Assembly to legislate on, and that jurisdiction was vested in the Federal High Court to hear such cases, and
3. That the case disclosed no cause of action and was frivolous and vexatious.
(See page 13 of the Records).

I resolve this issue against Appellant.

I shall take the issue 1 and 2 together, since they are on jurisdiction; the first alleging that Respondent is not a juristic person and the second saying the trial court lacked competence to hear the case, being one for the Federal High Court to hear, by virtue of Section 251(1)(n) and item 39 and 68, Part 1, second schedule to the 1999 Constitution.

I think Appellant’s argument under the issue 1 was self defeating, having conceded that the Respondent is a statutory office/officer -Registrar of Business Premises, Abia State, and having acknowledged the existence of the law -Registration of Business Premises Law Cap 30, Laws of Abia State Vol. 1 1991 -1997. In paragraphs 4.03 to 4.05 of Appellant’s brief, Counsel said:
(4.03)The common way that statutes confer legal personality is by the statute expressly saying the body “…is hereby created and it shall be called… and shall be a body corporate and with perpetual succession…
(4.04) We concede that in some instances, it may not be so expressly stated but its legal personality characteristics will be implied from the far reaching, pervasive and independent nature of its functions…
(4.05)The Director of Commerce in the Ministry of Commerce and Industry Abia State is by the Abia State Registration of Business Premises Law, cap 30, Laws of Abia State of Nigeria, assigned some functions which he is to perform in his capacity as the Registrar of Business Premises…”
With such clear admissions about the statutory office/role of the Respondent as the Registrar of statutory body -Registration of Business Premise Law of Abia State, one wonders what Appellant was really complaining about under that issue. The Respondent, being a creation of law, with clear identity and functions therefore, no doubt assumed a legal personality from the date of the enactment of that law, capable of suing and being sued in the con of its duties and functions. The Respondent was, therefore, clothed with jurisdiction to initiate any action in court, deemed necessary to translate its functions. See the case of Uzoho vs. NCP (2007) 10 NWLR (pt.1042); CARLEN NIG. LTD. vs. UNIJOS (1994) 1 NWLR (pt.323) 631, where it was held that the juristic status of a person can be inferred from the statute creating it.

Was the trial High Court of Abia State called upon to exercise jurisdiction over these matters reserved for the Federal High Court?

The trial judge, after duly considering Appellant’s objection on the point, had said:
“I have found that the Appellant is a juristic person… I hold that Abia State has legislative and executive authority over the subject matter of this suit which is on the payment of business premises registration fee. I agree with the Respondent’s Counsel that jurisdiction over mines and minerals (including oil fields, oil mining, geological surveys and natural gas) belong, exclusively, to the National Assembly and Federal High Court. However, non of this matters or issues arising therefrom is before me…”
See page 43 of the Records

I am in total agreement with this reasoning by the trial judge. The case of the Respondent at the court below has earlier been highlighted in this judgment, and the main reliefs are as follows:
2. The Respondent is a registered company and has its business operations in oil sector and in area known by them as Imo River within Abia State.
3. The Respondent has several business premises within Abia State in the said Imo River location and they consist of 100 oil wells, making up 4 flow stations.
4. Applicant served on the Respondent a letter demanding compliance with the law for registration but the Respondent failed to heed the demand.
5 That it is a public duty to affect registration.”

I do not think the reliefs stated above (as resolved by the learned trial judge), strayed into any issue of legislation on mines and minerals or incidental or supplementary to same, to suggest that this suit is one for the exclusive jurisdiction of the Federal High Court. It appears to me, just as the trial court found out, that the State Government is only concerned about registration of business premises in its domain, which, I think, it is entitled to, to track and keep due statistics, and maybe earn revenue for such registration. I do not see such registration or payment for same targeted at Appellant’s activities in its oil operation business or meant to legislate on mines and minerals (including oil mining, oil fields), which is meant for the National Assembly to legislate on, and reserved for the Federal High Court to entertain complaints from.
I do not think I should say more than that on this issue, to avoid delving into the rits of the substantive case, which is yet to be heard. Having resolved all the issues against the Appellant, I hold that the appeal is devoid of merit and should be dismissed. It is accordingly dismissed, with Fifty Thousand Naira (N50,000.00) against the appellant, payable to the Respondent.

IGNATIUS IGWE AGUBE, J.C.A.: I have read the lead judgment of my Lord and learned brother and he has comprehensively and satisfactorily dealt with and resolved all the issues that have been through up in his characteristic acuity. I have nothing to add than to I agree and adopt all his reasoning and conclusion as mine.
I too shall resolve all the Issues against the Appellant and dismiss the Appeal accordingly. I also award the sum of N50,000.00 as costs against the Appellant in favour of the Respondent.

FREDERICK O. OHO, J.C.A.: I have had the privilege in reading in draft, the judgment of my learned Brother Ita G. Mbaba, JCA just delivered. I agree that the Appeal has no merit and same is accordingly hereby dismissed with a cost of N50,000 against the Appellant.

Appearances

Pedro Madukwe Esq.For Appellant

AND

UnrepresentedFor Respondent