ATTORNEY-GENERAL OF ABIA STATE v. PHOENIX ENVIRONMENTAL SERVICES NIGERIA LIMITED & ANOR
(2015)LCN/8001(CA)
In The Court of Appeal of Nigeria
On Monday, the 5th day of October, 2015
CA/A/212/2014
RATIO
COURT; JURISDICTION; THE IMPORTANCE OF JURISDICTION TO A SUIT; THE EFFECT OF LACK OF JURISDICTION, WHEN THE ISSUE OF JURISDICTION CAN BE RAISED AND WHERE IT CAN BE INITIATED
Jurisdiction is the authority which a court has to decide matters that are brought before it or take cognizance of the matters presented in a formal way for its decision. It is controlled or circumscribed by the statute creating the court. See NDAEYO V. OGUNNAYA (1977) 1 SC 11 and NATIONAL BANK (NIG) LTD V. SHOYOYE (1977) 5 SC 181 (REPRINT). Where a court lacks jurisdiction proceedings conducted by it are a nullity. Therefore an issue of jurisdiction can be raised at any stage of the case even for the first time at the Supreme Court without leave and even viva voce. See NNPC v. ORHIOWASELE (2013) 13 NWLR (1371) 211, 223, 224 AND ANYANWU V. OGUNEWE (2014) 8 NWLR (1410) 437, 460. The place in which a suit may be initiated, heard and determined is an aspect of the jurisdiction of a court. It could be either (i) geographical/administrative or (ii) territorial. In the former, the issue is at to which division of a State High Court is the proper venue for the institution of the case. This is governed by the relevant High Court Rules and, if a case is initiated in the wrong venue, it can be compromised or be transferred to the appropriate venue or judicial division. In the latter case, id est, territorial jurisdiction, the issue is which State High Court has jurisdiction. The issue cannot be compromised and so if a case is initiated in the wrong state, the State High Court lacks jurisdiction; the case can only be struck out and not compromised or be transferred to the right State High Court. See NDAEYO V. OGUNNAYA supra. and IK. MARTINS (NIG) LTD V. UNIVERSITY PRESS LTD (1992) 1 NWLR (217) 322, 331. per. JOSEPH EYO EKANEM, J.C.A.
COURT: JURISDICTION; THE JURISDICTION OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
The jurisdiction of the High Court of the Federal Capital Territory Abuja is provided for in Section 257(1) of the Constitution of Nigeria 1999 (as amended). By the combined effect of Sections 255(1) and 257(1) of the Constitution of Nigeria as well as Section 3 and 9 of the High Court Act that court has territorial jurisdiction over causes or matters arising within the Federal Capital Territory, Abuja and not outside it. per. JOSEPH EYO EKANEM, J.C.A.
COURT: JURISDICTION; THE TERRITORIAL JURISDICTION TO HEAR THE CASE OF BREACH OF CONTRACT
It is settled that in cases of breach of contract, the territorial jurisdiction to hear the case can be determined by reference to the following,
(a) where the contract was made (lex loci contractus);
(b) Where the contract is to be performed (lex loci solutions);
(c) where the defendant resides.
See LANLEHIN v. RUFAI (1959) 5 SCNLR 475, ARJAY LIMITED v. AIRLINE MANAGEMENT SUPPORT LIMITED (2003) 7 NWLR (820) 577, 604 – 605 and 634 KRAUS THOMPSON ORG. LTD V. UNIVERSITY OF CALABAR (2004) 9 NWLR (879) 631, 661, FIRST BANK OF NIGERIA PLC V. ABRAHAM (2008) 18 NWLR (1118) 172, 192 and 203 and DANGOTE GENERAL TEXTILES (NIG) LTD v. HASCON ASSOCIATES (NIG) LTD (2013) 16 NWLR (1379) 60. per. JOSEPH EYO EKANEM, J.C.A.
APPEAL: GROUND OF APPEAL; FROM WHERE CAN A GROUND OF APPEAL ARISE FROM
The argument by the first respondent’s counsel that the issue of fair hearing raised in the notice of appeal was not decided by the trial court does not attract my acceptance. This is because a ground of appeal may arise from;
(i) The text of the decision;
(ii) The procedure under which the claim appealed against was initiated;
(iii) The procedure under which the decision was rendered;
(iv) Other extrinsic features such as jurisdiction of the Lower Court;
(v) Commission or omission by the Lower Court in either refusing to do what it ought to do or doing what it ought not to do or vice versa or even overdoing it, see AKPAN v. BOB (2010) 17 NWLR (1223) 421, 464. per. JOSEPH EYO EKANEM, J.C.A.
PRACTICE AND PROCEDURE: PARTICULARS OF ERROR; THE PURPOSE OF PARTICULARS OF ERROR
The purpose of particulars of error is to highlight or elucidate the complaint in the ground against the judgment. They constitute specification of the error or misdirection complained of in order to show how the complaint will be canvassed to reveal the flaw in a particular portion of the judgment. Thus the particulars must not be independent of the ground of appeal nor can they be used to expand the specific complaint in the ground as in this case. See DAILY TIMES (NIG) PLC V. DSV LTD (2014) 5 NWLR (1400) 321, 348, OLEKSANDR v. LONESTAR DRILLING CO. LTD V. (2015) 9 NWLR (1454) 337, 362, I therefore expunge particular (3) of grounds 2 of the grounds of appeal. per. JOSEPH EYO EKANEM, J.C.A.
CONSTITUTIONAL LAW: THE FUNDAMENTAL RIGHT TO FAIR HEARING; THE EFFECT OF THE BREACH OF FAIR HEARING
Where there is a breach of fair hearing, the whole proceedings including the judgment will be rendered a nullity. See ADIGUN V. ATTORNEY-GENERAL OF OYO STATE (1987) 1 NWLR (53) 687 and UKACHUKWU v. PDP (2014) 17 NWLR (1435) 134, 163. The burden of proof of breach of fair hearing lies on the party who alleges the breach and prove must be based on the facts and circumstances of the case, See S & D CONSTRUCTION COMPANY LIMITED V. AYOKU supra, and UKACHUKWU v. PDP supra.193. per. JOSEPH EYO EKANEM, J.C.A.
STATUTORY INTERPRETATION; CANNONS OF INTERPRETATION
In interpreting the Constitution, the Supreme Court has established certain canons of doing so. In RAFIU NABIU V. STATE (1980) 8 11 SC 130, eight rules were set out. In the case of ATTORNEY-GENERAL BENDEL STATE V. ATTORNEY-GENERAL OF THE FEDERATION (1981) 10 SC 1, twelve rules were set, I shall set out a few of the rules that are relevant in interpreting the provisions of items 1(h) of the fourth schedule to the Constitution. They are:
(i) The language of the Constitution where clear and unambiguous must be given its plain and evident meaning;
(ii) Where the question is whether the Constitution has used an expression in wider or narrower sense, the court should, whenever possible and in response to the demands of justice lean to the broader interpretation. Unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation would best carry out the object and purpose of the constitution;
(iii) A flexible and liberal approach must be adopted;
(iv) Effect is to be given to every word used in the Constitution;
(v) The Constitution is to be interpreted as a whole. per. JOSEPH EYO EKANEM, J.C.A.
JUSTICES:
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
ATTORNEY-GENERAL OF ABIA STATE – Appellant(s)
AND
1. PHOENIX ENVIRONMENTAL SERVICES NIGERIA LIMITED
2. ATTORNEY GENERAL OF THE FEDERATION – Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): At the High Court of the Federal Capital Territory, Abuja, in the Abuja Judicial Division, (“the trial court’) the 1st respondent as plaintiff took out a writ of summons endorsed with a statement of claim in suit No.FCT/HC/ABJ/2016/2011 against the appellant and 2nd respondent as 1st defendant and 2nd defendant, respectively, claiming as follows:
“1. A declaration that the failure of the 1st defendant to give the plaintiff six (6) months Notice of Intention to Terminate the Contract Agreement dated 19/8/2006 is a breach of the terms of the Contract Agreement dated 19/8/2006 entered into between the parties,
2. The sum of N26,133,334.00 (Twenty-Six Million, One Hundred and Thirty-Three Thousand Three Hundred and Thirty-Four Naira) being the balance of the sum of N274,400,000 (Two Hundred and Seventy Four Million, Four Hundred Thousand Naira) being due payment by the 2nd defendant to the plaintiff under Contract Agreement dated 19/8/2006 and Contract award dated 17/8/2006.
3. The sum of Euro 1,500,000.00 (One Million,
Five Hundred Thousand Euros) being the total value of deliveries
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to the plaintiff by S.I.R.A. GROUP as stated in Contract No. Pro 02/ngn – NIG 1207 in execution of contract Agreement dated 19/8/2005 terminated by the 1st defendant.
4. The sum of Euro 6,800,000,00 (Six Million, Eight Hundred Thousand Euros) being the total value of unpaid deliveries to the plaintiff by S.I.R.A. GROUP in Contract Agreement dated 19/8/2006 by the 1st defendant.
5. The sum of Euro 9,800,000.00 (Nine Million Eight Hundred Thousand Euros) being the total value of unpaid deliveries to the plaintiff by S.I.R.A. GROUP in Contract No.012/ngn – NIG 0808 due to the termination of Contract Agreement dated 19/8/2006 by the 2nd defendant.
6. The sum of Euro 1,900,000.00 (One Million, Nine Hundred Thousand Euros) being the total value of unpaid deliveries to the plaintiff by S.I.R.A GROUP in Contract No. Inco. 002/ngn-NIG 080 due to the termination of Contract Agreement dated 19/8/2006 by the 2nd defendant.
7. The sum of 535,165,500 (Five Hundred and Thirty – Five Million, One Hundred and Sixty Five Thousand Five Hundred Naira) being the total value of the properties at the plaintiff Aba Project Site seized and handed over to third
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parties by the 1st defendant’s agents servants and privies.
8. The sum of N336,000,000.00 (Three Hundred and Thirty-Six Million Naira) being the unpaid monthly Solid Waste Collection and Disposal Subvention fee of 28,000,000.00 for one year.
9. The sum of N94,000,000.00 (Ninety – Four Million Naira) being the unpaid monthly Solid Waste Collection and Disposal Subvention fee for the month of September, October and November 2008 amounting to N84,000,000.00 August 2008, from the 2nd defendant to the plaintiff.
10. The sum of N47,840,600.00 (Forty-Seven Million, Eight Hundred and Forty Thousand Naira) being the unpaid Credit facility as at 3/8/2009 obtained by the plaintiff from FIRST INLAND BANK PLC in execution of Contract Agreement dated 19/8/2006 which was terminated by the 1st defendant.
11. Intrinsic Interest rate as shown in the First Inland Bank Plc Statement of Account of November and December 2008 on the said sum of N47,840,600.00 with effect from 31/12/2008 till date of judgment and thereafter from judgment date until full payment of the entire Credit Facility.
12. The sum of N90,142,500 (Ninety Million One Hundred and Forty-Two
3
Thousand, Five Hundred Naira) and the accrued interest thereon as at 3/8/2009 being the unpaid Asset Finance Facility obtained by the plaintiff from FIRST BANK PLC in execution of Contract Agreement dated 19/8/2006 which was terminated by the 1st defendant.
13. Interest at the rate of 19% per annum on the said sum of N90,142,500.00 with effect from 9/8/2009 till the date of judgment and thereafter at the rate of 19% per annum from the date of judgment until full payment of the entire Asset/Finance Facility.”
After hearing evidence and taking the addresses of counsel, the trial court entered judgment in favour of the 1st respondent in terms of reliefs 1, 3, 10, 12 (without the accrued interest on the amount) and 13 (with post-judgment interest fixed at 10% per annum). The trial court refused to grant the other reliefs.
Aggrieved by the judgment the appellant has appealed to this court by way of a notice of appeal which was amended by the order of this court. The amended notice of appeal contains five grounds of appeal. The appellant was also granted leave to raise two issues on points of law that were not canvassed at the trial court.
4The facts of the case leading to this appeal may be summarized as follows: The parties entered into a tri – partite agreement dated 19/8/2006 for the 1st respondent to build, own and operate an integrated municipal waste management facility in Aba, Abia State. The terms of the contract were set out in the agreement and these included the provision of a compost plant, medical waste incineration, collection, recycling and management of solid waste generated within the city limits of Aba in Abia State. There seemed to have been a less than cordial relationship between the appellant and the 1st respondent in respect of the transaction. On 11/12/2008, the appellant terminated the contract or discontinued the performance of its obligations in the contract.
Consequent upon the above, the 1st respondent sued the appellant and the 2nd respondent for the reliefs set out earlier in this judgment. The trial court entered judgment in favour of the 1st respondent as earlier stated.
Out of the five grounds of appeal contained in the amended notice of appeal, the appellant in his brief of argument settled by Valentine Offia, Esq; formulated five issues for the
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courts determination of the appeal. The issues are:
“1. Whether the Lower Court was right to have assumed jurisdiction to hear this suit when the cause of action arose in Abia State of Nigeria and has no nexus with the Federal Capital Territory, the territorial jurisdiction of the Lower Court? (sic) (Ground 1).
2. Whether the appellant was denied fair hearing by the lack of consideration of her case that it was the 1st respondent who breached the contract of 19/8/2006/ and therefore the 1st respondent was not entitled to any notice of termination? (sic) (Ground 2).
3. Whether on the evidence adduced reliefs Nos. 1, 3, 10, 12 and 13 of the statement of claim were satisfactorily proved by the 1st respondent? (sic) (Ground 3),
4. Whether the Lower Court could rely on Exhibits PW1 LL1 – 4, PW1 LLN. 1-2, PW1 TT 1-2, PW1 UU, PW1 WW, PW1 XX and PW1 YY to grant relief 3 in the statement of claim? (sic) Ground 4).
5. Whether having regard to the provisions of paragraph 1 (h) of the Fourth Schedule to the 1999 Constitution (as altered) and Section 51 of the Local Government law Cap, 117, Laws of Abia State, 2005 Exhibit PW1 FFF1-19 is in
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violation of Section 7 of the 1999 Constitution and therefore unconstitutional, void and unenforceable (Ground 5).
In the 1st respondent’s brief settled by George T. Ogara, Esq. the following issues are distilled for the court’s determination of the appeal:
“1. Whether the High Court of the Federal Capital Territory has jurisdiction to hear and determine the case.
2. Whether the Lower Court denied the appellant fair hearing in the determination of this case.
3. Whether the Lower Court was right in entering judgment in favour of the ld respondent granting reliefs 95, (1), (2), (10), (12) and (13) in the statement of claim.
4. Whether the contract agreement dated 19/8/2006 is illegal, void and unenforceable.”
The 2nd respondent did not file a brief of argument. Consequently this court on 4/3/2015 ordered that this appeal be set down for hearing on the briefs of argument of the appellant and 1st respondent alone.
The issues formulated by the appellant and 1st respondent are in substance the same except that the 1st respondent has rightly fused appellant’s issues 3 and 4 into one issue, viz; issue 3. Consequently, I shall adopt the
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issues formulated by the 1st respondent for the determination of the appeal.
It should be mentioned that when this appeal came up for hearing on 7/7/2015, counsel for the appellant, P. U. Ogubunka, Esq (Director, Civil Litigation, Ministry of Justice Abia State) adopted and relied on the appellant’s brief of argument and urged the court to allow the appeal. Emeka Eze, Esq: of counsel for the 1st respondent adopted and relied on the 1st respondents brief of argument, and urged the court to dismiss the appeal.
I shall now commence the determination of the appeal with issue 1 and if necessary deal with issues 2, 4 and 3 in that order.
ISSUE 1 – Whether the High Court of the Federal Capital Territory has jurisdiction to hear and determine the case.
Arguing his issue 1, appellant’s counsel submitted that the issue of jurisdiction may be raised at any stage of proceedings even for the first time on appeal. He referred to Section 257 of the Constitution of Nigeria 1999 and submitted that the High Court of the Federal Capital Territory, Abuja, has jurisdiction to hear and determine suits that occurred within the territorial area of the Federal
8 Capital Territory, Abuja. He added that it is not conferred with jurisdiction to hear and determine causes and matters outside the Federal Capital Territory.
Counsel stated that the 1st respondent’s case was that the appellant breached the contract by not seeing a notice of termination as stipulated in the contract which notice according to him, was to be served in Rivers State, the 1st respondent’s address by the appellant whose address is in Abia state. He was of the view that the cause of action arose in Abia State. Relying on NGIGE v. CAPITAL BANCORP LTD (1999) 7 NWLR (609) 7 and I. K. MARTINS (NIG) LTD v. UPL (1992) 1 NWLR (217) 322, he submitted that it is the High Court of Abia State that has jurisdiction.
In his response, counsel for the 1st respondent submitted that in contract cases, the venue of trial is determined by where the contract 1st to be performed or where the defendant resides. He referred to the cases of ARJAY V. AIRLINE MANAGEMENT SUPPORT LTD (2003) FWLR (156) 943 and FIRST BANK OF NIGERIA PLC V. ABRAHAM (2009) ALL FWLR (461) 863 and submitted that since the parties executed the agreement in Abuja and the 2nd respondent resides
9
and carries on business in Abuja, the trial court had jurisdiction to hear and determine the case.
RESOLUTION OF ISSUE ONE (1)
Jurisdiction is the authority which a court has to decide matters that are brought before it or take cognizance of the matters presented in a formal way for its decision. It is controlled or circumscribed by the statute creating the court. See NDAEYO V. OGUNNAYA (1977) 1 SC 11 and NATIONAL BANK (NIG) LTD V. SHOYOYE (1977) 5 SC 181 (REPRINT).
Where a court lacks jurisdiction proceedings conducted by it are a nullity. Therefore an issue of jurisdiction can be raised at any stage of the case even for the first time at the Supreme Court without leave and even viva voce. See NNPC v. ORHIOWASELE (2013) 13 NWLR (1371) 211, 223, 224 AND ANYANWU V. OGUNEWE (2014) 8 NWLR (1410) 437, 460.
The place in which a suit may be initiated, heard and determined is an aspect of the jurisdiction of a court. It could be either (i) geographical/administrative or (ii) territorial. In the former, the issue is at to which division of a State High Court is the proper venue for the institution of the case. This is governed by the relevant High
10
Court Rules and, if a case is initiated in the wrong venue, it can be compromised or be transferred to the appropriate venue or judicial division. In the latter case, id est, territorial jurisdiction, the issue is which State High Court has jurisdiction. The issue cannot be compromised and so if a case is initiated in the wrong state, the State High Court lacks jurisdiction; the case can only be struck out and not compromised or be transferred to the right State High Court. See NDAEYO V. OGUNNAYA supra. and IK. MARTINS (NIG) LTD V. UNIVERSITY PRESS LTD (1992) 1 NWLR (217) 322, 331.
The jurisdiction of the High Court of the Federal Capital Territory Abuja is provided for in Section 257(1) of the Constitution of Nigeria 1999 (as amended). By the combined effect of Sections 255(1) and 257(1) of the Constitution of Nigeria as well as Section 3 and 9 of the High Court Act that court has territorial jurisdiction over causes or matters arising within the Federal Capital Territory, Abuja and not outside it.
The cause or matter the subject of the suit at the trial court is founded on an alleged breach of contract by the appellant. It is settled that in cases
11 of breach of contract, the territorial jurisdiction to hear the case can be determined by reference to the following,
(a) where the contract was made (lex loci contractus);
(b) Where the contract is to be performed (lex loci solutions);
(c) where the defendant resides.
See LANLEHIN v. RUFAI (1959) 5 SCNLR 475, ARJAY LIMITED v. AIRLINE MANAGEMENT SUPPORT LIMITED (2003) 7 NWLR (820) 577, 604 – 605 and 634 KRAUS THOMPSON ORG. LTD V. UNIVERSITY OF CALABAR (2004) 9 NWLR (879) 631, 661, FIRST BANK OF NIGERIA PLC V. ABRAHAM (2008) 18 NWLR (1118) 172, 192 and 203 and DANGOTE GENERAL TEXTILES (NIG) LTD v. HASCON ASSOCIATES (NIG) LTD (2013) 16 NWLR (1379) 60. It must be mentioned that the presence of any of these factors or a combination of some or all of them is sufficient to vest jurisdiction.
It is the claim of the plaintiff as evidenced in the writ of summons and statement of claim that determines jurisdiction of the court. See AHMED v. AHMED (2013) 15 NWLR (1377) 274, 331.
In the instant case, in paragraph 11 of the statement of claim at page 31 of vol.1 of the record of appeal, it is averred as follows:
“11. The plaintiff
12 avers that the Contract Agreement dated 19/8/2006 was executed at the Federal Ministry of Environment, Federal Secretariat Complex, Three Arms Zone, Abuja, within the jurisdiction of this Honourable Court.”
The above is admitted in paragraph 2 of the amended statement of defence of the appellant and needs no further proof. Since the contract was made in Abuja within the jurisdiction of the trial court, it had jurisdiction over the matter.
Furthermore, in paragraph 3 of the statement of claim, it is averred,
“The 2nd defendant is …with office address at the Federal Ministry of Justice, Maitama, Federal
Capital Territory, Abuja, within the jurisdiction of this Honourable Court.”
This again was admitted by the appellant in paragraph 2 of the amended statement of defence. It has been held that the residence of a company is the place of its management or control. See KRAUS THOMPSON ORGANISATION LTD. V. UNIVERSITY OF CALABAR supra 661 and 656. Being a corporation sole, the residence of the 2nd respondent is his office at the Federal Ministry of Justice, Maitama, Federal Capital Territory, Abuja. Since as one of the defendants before
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the trial court the 2nd respondent is resident in Abuja the trial court had jurisdiction over the case.
I therefore answer issue 1 in the affirmative and resolve it against the appellant.
ISSUE 2 – Whether the Lower Court denied the appellant fair hearing in the determination of this case.
Appellant’s counsel submitted that her defence was that whereas the appellant and 2nd respondent discharged their obligations in the contract, the 1st respondent failed to discharge its obligations in the contract, thus effectively abandoning the contract. This, he said, gave the appellant the right to treat the contract as terminated and thus under no obligation to give notice of termination of the contract to the 1st respondent. He referred to a portion of the judgment of the trial court and submitted that it shut out the case of the appellant thus not considering it. He rounded up on this issue by arguing that the failure of the trial court to grant the appellant’s application to visit the Construction site denied the appellant the opportunity to prove that the 1st respondent did not build a waste recycling facility.
Responding, 1st respondent’s counsel
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submitted that when a party raises the issue of fair hearing on appeal, it means that the procedure adopted at the trial of the case is faulty. It was added that the burden of proof lies on the party alleging and must be discharged based on the facts before the court. Counsel set out the attributes of fair hearing as enunciated in the case of S & D CONSTRUCTION COMPANY LIMITED V. AYOKU (2011) ALL FWLR (604) 1, 22. It was further submitted that the appellant had failed to show denial of fair hearing as the trial considered appellant’s line of defence which was presented without hindrance.
Counsel continued by stating that the complaint that the trial court failed to consider the appellant’s defence is a complaint on the decision of the Lower Court and not the procedure of the trial court. It was further stated that the issue of fair hearing raised by the appellant in the notice of appeal was not decided upon by the trial court in its judgment and so it is incompetent. It was finally submitted that since the appellant freely moved his motion for a visit to the locus, he could not complain of want of fair heading.
The argument by the first
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respondent’s counsel that the issue of fair hearing raised in the notice of appeal was not decided by the trial court does not attract my acceptance. This is because a ground of appeal may arise from;
(i) The text of the decision;
(ii) The procedure under which the claim appealed against was initiated;
(iii) The procedure under which the decision was rendered;
(iv) Other extrinsic features such as jurisdiction of the Lower Court;
(v) Commission or omission by the Lower Court in either refusing to do what it ought to do or doing what it ought not to do or vice versa or even overdoing it, see AKPAN v. BOB (2010) 17 NWLR (1223) 421, 464.
In the instant case, the appellant raised a defence that it was the 1st respondent who abandoned the contract and so, he was not required to give notice of termination. The trial court at page 1058 of vol.111 of the record of appeal responded as follows:
“In the determination of issue one, this court must pause to address the 1st defendant’s counsel first poser wherein he extensively argued about the party who is at fault in breaching the contract agreement. Again, with respect to learned
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counsel for the 1st defendant the issue before the court is not to establish the erring party or reasons giving rise to the breach of Exhibit PW1 FFF 1-19 or to determine whether there is a case of contributory negligence leading to the termination of Exhibit PW1 FFF 1-19″.
The contention of the appellant was that by holding as stated above, the trial court omitted to do what it ought to have done that is to consider its defence. The ground of appeal is thus well founded.
Besides, raising a preliminary objection to a ground of appeal in the body of the argument of an issue as has been done in this instance is a novel and unacceptable procedure. It is an ambushment which is not permissible. See EHINLAWON v. OKE (2008) 16 NWLR (1113) 357, 386-387 and ODEDO v. INEC (2007) 17 NWLR (1117) 554, 598.
I therefore discountenance the submission of 1st respondent’s counsel under consideration,
I shall quickly deal with the submission by appellant’s counsel that the refusal of his application for a visit to the locus in quo amounted to a denial of fair hearing. Ground 2 of the grounds of appeal from which issue 2 was distilled shorn of its particulars
17
reads.
“The appellant was denied fair hearing when all the appellant’s pleadings, evidence and written addresses on the breach of the contract of 19/08/2006 by the 1st respondent were not considered and pronounced upon in the final judgment of the Honourable Court.”
It can easily be seen that there is no part of the ground that complains against the refusal of the application to visit the locus in quo by the trial court. It is only in particular 3 of the ground that it is stated that;
“The refusal of the court to visit the locus in quo denied the appellant of the opportunity to prove
its case that the 1st respondent abandoned the contract of 19/08/2006 (Exhibit FFF 1-19)
The purpose of particulars of error is to highlight or elucidate the complaint in the ground against the judgment. They constitute specification of the error or misdirection complained of in order to show how the complaint will be canvassed to reveal the flaw in a particular portion of the judgment. Thus the particulars must not be independent of the ground of appeal nor can they be used to expand the specific complaint in the ground as in this case. See DAILY TIMES
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(NIG) PLC V. DSV LTD (2014) 5 NWLR (1400) 321, 348, OLEKSANDR v. LONESTAR DRILLING CO. LTD V. (2015) 9 NWLR (1454) 337, 362, I therefore expunge particular (3) of grounds 2 of the grounds of appeal.
Arguments in an appeal must flow from issues which must in turn be derived from the grounds of appeal. In this instance the argument regarding refusal of the appellant’s application for a visit to the locus in quo does not flow from issue 2 in the light of ground 2 of the grounds of appeal, I therefore discountenance it.
Now to the meat of issue 2. Section 36 (1) of the Constitution of Nigeria 1999 (as amended) guarantees the right of a party to a case to fair hearing. The basic attributes of fair hearing include;
(a) That the court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
(b) That the court gives equal treatment, opportunity and consideration to all concerned.
(c) That the proceedings be heard in public and all concerned be informed of and have access to the place of heading.
(d) That having regard to all
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circumstances in every material decision in the case, Justice must not only be done but must manifestly and undoubtedly be seen to have been done.
See S & D CONSTRUCTION COMPANY LTD V. AYOKU (2011) ALL FWLR (604) 1, 22 and ADENIYI V. UBANAGWU (2010) 12 NWLR (1208) 357.
Where there is a breach of fair hearing, the whole proceedings including the judgment will be rendered a nullity. See ADIGUN V. ATTORNEY-GENERAL OF OYO STATE (1987) 1 NWLR (53) 687 and UKACHUKWU v. PDP (2014) 17 NWLR (1435) 134, 163. The burden of proof of breach of fair hearing lies on the party who alleges the breach and prove must be based on the facts and circumstances of the case, See S & D CONSTRUCTION COMPANY LIMITED V. AYOKU supra, and UKACHUKWU v. PDP supra.193. In the instant case, the 1st respondents case against the appellant was that he breached the contract by unilaterally terminating the same without giving it 6 months’ notice to do so contrary to the agreement. In paragraphs 7, 8, 9, 13, 14, 15, 16, 17, 18 and 19 of the appellant’s amended statement of defence at pages 872 – 874 of Vol. 111 of the record of proceedings appellant set up a defence to the claim of
20the 1st respondent. The defence was that the appellant kept his side of the bargain but the 1st respondent breached the fundamental terms of the contract etc. The implication of the defence was that the appellant was entitled to treat the contract as having been abandoned by the 1st respondent thus putting him under no duty to give six months’ notice of termination of the contract. See BEST NIGERIA LIMITED V. BLACKWOOD HODGE (NIG) LTD (2011) 45 NSC QR (VOL.2) 849, 866 ADECENTRO (NIG) LTD V. COUNCIL OAU (2005) 22 NSCQR 161.
By reasons of the pleadings of the 1st respondent and appellant as well as the doctrine of implied joinder of issues, issues were thus joined as to;
(i) Whether or not the 1st respondent was in breach of fundamental terms of the contract.
(ii) Whether or not the 1st respondent had abandoned the contract; and
(iii) Whether or not the appellant was entitled to treat the contract as abandoned by the 1st respondent thus putting him under no obligation to give 6 months’ notice of intention to terminate it.
What was the response of the trial court At page 1058 of Vol.111 of the record of appeal, that trial court stated
21 as follows:
“In the determination of issue one, this court must pause to address the 1st defendant counsel first poser wherein he extensively argued about the party who is at fault in breaching the contact agreement. Again, with respect to learned counsel for the 1st Defendant, the issue before the court is not to establish the erring party or reasons giving rise to the breach of Exhibit PW 1 FFF 1-19 or to determine whether there is a case of contributory negligence to the termination …having held that the contract agreement was terminated by 1st Defendant, the next consideration is whether the termination was in compliance with the termination clause is Exhibit PW1 FFF 1-19”.
I agree with appellants counsel that;
“With the above pronouncements, the trial court shut out the case of the appellant…” (See page 13 of the appellants before of argument).
In effect, the trial court not only failed to consider the case of the appellant but also failed to consider an issue or issues that was or were properly raised before it. In the case of ANYANWU V. OGUNEWE (2014) 8 NWLR (1410) 437, 460, the Supreme Court held that failure by court to
22
consider an issue properly raised before it amounts to a denial of fair hearing.
It has also been held that the judgment of a court must demonstrate a full dispassionate consideration of the issues properly raised and heard and must reflect the result of such exercise, See OJOGBUE V. NNUBIA (1972) 1 ALL NLR (2) 226, 231-232. There was no consideration of the issue/s as highlighted earlier in the treatment of this issue.
I therefore answer issue 2 in the affirmative and in favour of the appellant.
Having resolved that the appellant was denied fair-hearing, I ought to declare the whole proceedings and judgment a nullity but since this court is an intermediate appellate court I shall proceed to deal with other issues.
ISSUE 3 – Whether the Lower Court was right in entering judgment in favour of the 1st respondent granting reliefs 95(1), (2) (sic;3) (10) (12) and (13) in the statement of claim.
Counsel for the appellant in his issues 3 and 4, referred to relief 95 (1) and paragraphs 65 and 70 of the statement of claim and submitted that having expunged Exhibit PW1 BBBB from its record, the trial court ought to have refused to grant the
23
relief and all other ancillary reliefs, since, according to him, the 1st respondent relied solely on the exhibit to prove the alleged breach of contract. He added that no notice of termination of the contract was necessary due to the abandonment of it by the 1st respondent. Regarding relief 95 (3), he submitted that the prayer was incapable of being granted as it was vague and devoid of the meaning of the word “Deliveries”. He added that Exhibit LL1-4 (at pages 391- 394 of the record) which formed the basis of the claim was not executed by SIRA.
Regarding relief 95 (10), he stated that the 1st respondent did not tender any certified bank document to prove the claim. He submitted that there was a discrepancy between the sum claimed and the sums in evidence. He submitted further that there was no pleading on the rate of interest in reliefs No. 12 and 13.
In his response, counsel for the 1st respondent submitted that the appellant having admitted the fact of the termination of the contract there was no need for further proof of the same. He further submitted that the 1st respondent having established breach of the contract, the trial court was
24
right in holding that the appellant breached the contract. He was of the view that the claim of the appellant that the 1st respondent breached the contract was untenable as he did not file a counter- claim seeking any relief.
Counsel went on to submit that whenever a court is satisfied that a breach of contract has occurred. It has a duty to assess damages. It was his view that the 1st respondent pleaded and proved the various payments made with the sum of Euros 1,500,000;00 and proved the pecuniary reliefs in paragraph 95 (10) (12) and (13) of the statement of claim. He added that the 1st respondent was entitled to claim back all the monies paid to other persons under the contract. He cited and relied on NWAOLISAH v. NWABUFO (2011) 6 – 7 (SCC 11) 138 to support his submission.
At pages 1055-1056 of Vol. 111 of the record, the trial court expunged exhibit PW1 BBBB from its record and went on to hold that there was still credible evidence that the appellant terminated the contract of 19/8/2006. It is my view that the trial court was right in so holding. In paragraphs 16-18 of the amended statement of defence (at pages 872 – 874 of Vol. 111 of the
25
record) the appellant in sum admitted discontinuing the contract. The law is that what is admitted needs no further proof. See Section 123 of the Evidence Act and MOZIE V. MBAMALU (2006) 15 NWLR (1003) 466, 493. Besides the DW1 (appellant’s witness) admitted in cross-examination that the contract was terminated (see p.1033 of Vol.111 of the record)
The trial court held that the appellant was in breach of the contract by not giving the required six months’ notice of the termination. In paragraphs 18 of the amended statement of defence, the appellant pleaded as follows:
“18 The 1st defendant had a right to discontinue further assistance based on the breaches of the contract by the plaintiff.”
“21 The plaintiff consistently missed her own deadlines to build and operate the recycling plant which prompted the officials of the 1st defendant to meet with the officials of the plaintiff on the 18th day of June, 2007. When it was mutually agreed that should the plaintiff fail again to build and operate the recycling plant at the end of five months, the 1st defendant may end her assistance”.
The DW1 testified on this (see pages 876-877, Vol. 111 of the
26
record) and was not cross-examined on it. The PW1 testified that the recycling plant was completed within 8 months and on page 1025 of Vol. 111 of the record, he stated that,
“What I mean is that we built constructed the facility within 8 month whilst we were to bring in the plants to be installed in the built up facility”.
Clauses I and K of the agreement imposed a duty on the 1st respondent to:
“1. Purchase, supply install and operate the requisite recycling plants to include the following: Mechanical Manual Sorting platform, Composting Shredder, Composting screener, Composting Windrower, Rebagging and Palletizing plant at the new Solid Waste Management Facility.
K. Complete Design and Installation of the Recycling Facilities for the commencement of Solid Waste Sorting Recycling and Composting activities by 28th February, 2007…” (See pages 152 and 153 of the record),
By the 11/12/2008, when the contract was terminated the 1st respondent had not discharged its obligation in the clauses of the contract quoted above.
Where a party to a contract is guilty of a serious breach of the contract, as in this instance, the innocent
27 party has a right to rescind the contract or treat it as abandoned and he is released from further obligations under it. See DANTATA V. MOHAMMED (2000) 78 LRCN 1422, 1445 – 1446. In such a circumstance the innocent party need not give notice of termination. See the case of ADECENTRO NIGERIA LTD v. COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY (2005) 22 NSCQR 161 (also reported in (2005) 15 NWLR (948) 290). It is therefore my view that the trial court erred in holding that the appellant breached the contract by not giving the 1st respondent six months’ notice of termination of the contract, Contrary to the submission of 1st respondent’s counsel, the appellant need not counter-claim in this circumstance.
Having held that the appellant was not in breach of the contract it follows that relief No. 95 (1) in the statement of claim should have been dismissed. It also follows that reliefs No.95 (3) (10) (12) and (13) should also not have been granted being that they are incidental to relief No.95(1).
I therefore answer issue 3 in the negative and in favour of the appellant.
ISSUE 4 – Whether the contract Agreement dated 19/8/2006 is illegal, null and void, and
28
unenforceable.
Appellant’s argument under this issue is to be found in her issue 5. Appellant’s counsel referred to Section 7 (1) of the Constitution of Nigeria 1999 (as amended), par. 1 (h) of the fourth schedule thereto, Section 51(h) of the Local Government Law Cap 117, Laws of Abia State 2005 and Sections 10 (2) of the Interpretation Act Cap. 1223 Laws of the Federation of Nigeria 2004. He submitted that management and disposal of waste is the constitutional responsibility of Local Government as opposed to the Federal Government or state Government. It was her view that those tiers of Government had no power to execute the agreement the subject of the suit at the trial court or enter into any agreement with any person relating to the recycling of waste. Referring to the case of KNIGHT, FRANK and RUTLEY (NIG) V. ATTORNEY-GENERAL KANO STATE (1998) 7 NWLR (556) 1, he submitted that the agreement was unconstitutional, illegal and void, and that no right can arise under it nor can a cause of action arise from it. He also cited and relied on SODIPO V. LEMNINKAINEN OY (1985) 2 NWLR (8) 547 to buttress his submission.
In response, counsel for the 1st
29
respondent submitted that when a court is called upon to determine if a contract is ex-facie illegal, void and unenforceable, the court will consider the written contract itself. He submitted further that the building of modern waste facility is not part of the functions of the Local Government Councils set out in the fourth schedule to the constitution and that the establishment of integrated municipal solid waste management facility is not the provision or maintenance of public convenience, sewage and refuse disposal.
It was his view that the project is an industrial plan and project for waste management facility which is within the contemplation of items 17(d) and 18 of the second schedule, part 11 (Concurrent Legislative List) of the Constitution and it is for the development of the state. In this regard, counsel urged the court to adopt a flexible, liberal and wholistic approach in interpreting the constitution citing the case of ATTORNEY-GENERAL OF ONDO STATE V. ATTORNEY-GENERAL OF THE FEDERATION (2002) FWLR (117) 2167 , among other cases. It was counsel’s contention that the contract was not ex-facie illegal or void and such its alleged illegality
30
or voidness depended on surrounding circumstances and so the question of illegality or voidness ought to have been raised in the pleading. He referred to and relied on Order 23 Rule 6 (1) of the High Court of the Federal Capital Territory Abuja (Civil procedure) Rule, 2004, ODEJIDE V. REGISTERED TRUSTEES OF GOSPEL LIGHT MINISTRY (2005) ALL FWLR (264) 970, OKAGBUE V. ROMAINE (1982) 5 SC 133 and PAN BISBILDER (NIGERIA) LTD V. FIRST BANK OF NIGERIA LIMITED (2000) FWLR (2) 177, among other cases to buttress his contention.
It was his submission that the law does not allow a party to an agreement to turn back and allege that the same is tainted with illegality.
I shall start from the last submission of counsel for the 1st respondent. The law is that a party who has benefited from an agreement is not permitted to turn round to question the legality or validity of the same agreement as that would be unconscionable and would amount to approbating and reprobating. See FAKOREDE V. ATTORNEY-GENERAL, WESTERN STATE (1972) ALL NLR (1) 178, ATTORNEY-GENERAL, RIVERS STATE V. ATTORNEY – GENERAL AKWA IBOM STATE (2011) 8 NWLR (1248) 31, 186 and FASEL SERVICES LTD V.
31NIGERIAN PORTS AUTHORITY (2004) ALL FWLR (199) 1400, 1424.
I have gone through the statement of claim (at pages 28-53 of vol. 1 of the record) and I note that the 1st respondent did not plead the benefits that the appellant gained from the agreement. It follows therefore that the principle of law highlighted above does not operate to stop the appellant from questioning the constitutionality of the contract.
It is clear from the amended statement of defence of the appellant contained in pages 872 – 874 of vol. 111 of the record of appeal that the appellant did not raise the issue of the unconstitutionality, nullity or illegality of the agreement in his defence. Order 23 Rule 6 (1) of the High Court of the Federal Capital Territory, Abuja Civil Procedure Rules 2004 provides that:
“A party shall plead specifically any matter (for example, performance, release, any relevant statute or limitation, fraud or any fact showing illegality) which, if not specifically pleaded might take the opposite party by surprise.”
As a general rule therefore, a defendant who seeks to contend that a contract is void or illegal must specifically plead the same
32 otherwise he would not be allowed to rely on it. However, where a contract is ex-facie (id est, on its face) void or illegal the court will take notice of that fact and refuse to enforce the contract even though the same is not specifically pleaded. In the case of SODIPO V. LEMNINKAINEN OY (NO.2) (1986) 1 NWLR (15) 220, 232 Eso JSC, stated as follows:
“Where a contract is ex-facie illegal, whether illegality has been pleaded or not the court would not close its eyes against the illegality as it is the duty of every court to refuse to enforce such a transaction even where illegality has not been pleaded.”
At page 233 of the same report, ESO, JSC, agreed with the proposition that where a contract is not ex-facie illegal and the question of illegality depends on the surrounding circumstance, then as a general rule, the court would not entertain the question of illegality unless it is raised in the pleading. See also OKAGBUE V. ROMAINE (1982) 5 SC 133, 156, FASEL SERVICES LTD V. NIGERIA PORTS AUTHORITY (2009) 9 NWLR (1146) 410, 416 and CORPORATE IDEAL INSURANCE LTD v. AJAOKUTA STEEL CO. LTD (2014) 7 NWLR (1405) 165, 189.
Even though the cases
33
referred to above, deal in the main with illegality of contract they also apply with equal force to validity of contract as alleged in this case.
Whether or not a contract is illegal or void ex-facie depends on the object of the contract and the state of the law regarding the contract. A contract is said to be illegal if the subject matter or object of the promise is illegal or prohibited by statute coupled with the provision of sanction such as fine or imprisonment in the event of its contravention. Where the contract is not expressly prohibited by statute but impliedly so as, for example, where certain formalities are to be performed as conditions precedent without prescription of sanction for its non-compliance, the contract is said to be void. See PAN BISBILDER (NIG) LTD V. FIRST BANK OF NIG. LTD (2000) 74 LRCN 109, 122 and CORPORATE IDEAL INSURANCE LTD, supra.
The contention of the appellant in sum is that the contract exhibit PW1 FFF 1-19 is null and void because it is ultra vires the appellant and the 2nd respondent. It was argued by counsel for the appellant that the object of the contract was waste disposal which is within the vires of Local
34
Government Councils under the Constitution. Counsel for the 1st respondent argued that the building of modern waste facility is not a part of the functions of Local Government Councils and that the project under the contract is an industrial establishment for the development of the state (Abia).
It is my view that the contract can speak for itself as to its object.
The recital clause of the contract states as follows:
“1. THE FEDERAL GOVERNMENT is desirous of carrying out the Build, Own and Operate (BOO) Integrated Municipal Solid Waste Management Facility in Aba, Abia State, Nigeria,
2. THE FEDERAL GOVERNMENT has appointed PHOENIX ENVIRONMENTAL SERVICE NIGERIA LIMITED a Municipal Engineering Waste Management Facility with its own Equity Share of this Joint Venture Project which shall include the provision of the following:
(i) A compost plant;
(ii) Medical Waste Incinerator
(iii) Engineering Hazardous Landfill to last for at least 30 years;
(iv) Material Recovery Facility;
(v) Recycling plants as well as to;
(vi) Collect, Recycle and manage the Solid Waste generated within the City Limits of Aba in Abia State
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of Nigeria (hereinafter referred to as the “PROJECT”).
3 The COMPANY has accepted the appointment to carry out the implementation of the PROJECT in accordance with the terms and conditions of this Agreement.
4. THE STATE GOVERNMENT has accepted the Supervisory Role that the FEDERAL GOVERNMENT is providing with respect to this PROJECT and AGREES to allow the COMPANY take over and manage the solid waste collection and Disposal Services within Aba as provided under the Terms and Conditions of this Agreement”
In the body of the agreement it is provided in part as follows:
“(a) Take over the solid waste and separate Medical Waste Collection & Dump Site Management in Aba geared to perform a successful Face Lift for the Aesthetic Image of Aba;
(b) Perform Solid Waste and Medical Waste Demographic Surveys designed to investigate current Waste Volumes’ Compositions and Locations in order to design the Effective waste Collection Strategy and appropriate Zones in which to divide Aba (Surveys cost estimated at N3.5 Million within a period of 4-6 Weeks);
(c) Purchase, Supply and Install the required Recycling plants, other Heavy Equipment
36
and Medical Waste Incinerator (100kg/Hr or 1.3 Tons/Day) to perform the requisite Solid and Medical Waste Sorting, Recycling, Composting and Disposal Services as required under this agreement…
(d) Ensure the safe Collection and Transportation of Waste for the purpose of disposing same to the designated new Waste Management Facility site as may be provided by STATE GOVERNMENT and mutually agreed and accepted by COMPANY;
(e) Purchase, Supply, Install and Operate the requisite Recycling plants to include the following: Mechanical/ Manual Sorting Platform, Composting Shredder, Composting Screener, Composting Windrower, Rebagging and palletizing, plant at the new Solid Waste Management Facility.
(f) Design and build State-of the Art Hazardous and Sanitary Landfill to be completed in 2007 at the new Centralised Solid Waste Management Facility Site…
(g) Complete Design and Installation of the Recycling facilities for the commencement of Solid waste Sorting, Recycling and Composting Activities for the Production of Organic Fertilizer by 28th February, 2007; and
(h) Identify, Secure and Provide Financial Investment to perform the required
37
Solid Waste Recycling and Landfill Construction and operate over the 5-year Amortization period and share net profit generated from the project at a percentage of 80% for the Company and 20% for the STATE GOVERNMENT after the 5-year Amortization period.
It is clear from the foregoing that the objective of the contract is in the main collection, disposal and/or management of solid and medical wastes in Aba, Abia State. Section 7 (1) and (5) of the Constitution of Nigeria provides as follows:
“(1) The system of local government by democratically elected Local Government Councils is under this Constitution guaranteed; and accordingly, the Government of every state shall subject to Section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils.
(5) The functions to be conferred by law upon Local Government councils shall include those set out in the fourth schedule to this Constitution “.
Item 1(b) of the fourth schedule to the Constitution provides as follows:
“The main functions of a local government council are as follows:
(b)
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Provision and maintenance of public conveniences, sewage and refuse disposal”.
If it is found that the object of Exhibit PW1 FFF 1-19 falls exclusively within the above function of the local government council then it follows that the agreement is ultra vires the appellant and 2nd respondent and therefore ex-facie null, void and unenforceable.
In the case of KNIGHT FRANK & RUTLEY (NIG) V. ATTORNEY-GENERAL OF KANO STATE (1998) 7 NWLR (556) 1, 19, UWAIS, CJN stated as follows:
“The powers exercisable by the Federal, State and Local Governments have been clearly identified under the 1979 Constitution. With the exception of the items under the Concurrent Legislative List each of the three tiers of Government exercises power over the subject under its control Therefore, the Government Kano State Government (Kano State Government) acted ultra vires in entering into contract with the appellant to do what only the Local Government councils concerned were entitled to do under the 1979 Constitution and the Local Government Edict, 1977, It is elementary that where a party acted contrary to or infringes or violates any of the provisions of the
39
Constitution, such act is null and void and of no effect whatsoever. It follows that the action by the respondent in entering into contract with the appellants, when the former had no power to do so, is null and void and of no effect whatsoever. Consequently the contract is vitiated. It therefore becomes null and void.”
In interpreting the Constitution, the Supreme Court has established certain canons of doing so. In RAFIU NABIU V. STATE (1980) 8 11 SC 130, eight rules were set out. In the case of ATTORNEY-GENERAL BENDEL STATE V. ATTORNEY-GENERAL OF THE FEDERATION (1981) 10 SC 1, twelve rules were set, I shall set out a few of the rules that are relevant in interpreting the provisions of items 1(h) of the fourth schedule to the Constitution. They are:
(i) The language of the Constitution where clear and unambiguous must be given its plain and evident meaning;
(ii) Where the question is whether the Constitution has used an expression in wider or narrower sense, the court should, whenever possible and in response to the demands of justice lean to the broader interpretation. Unless there is something in the text or in the rest of the Constitution
40
to indicate that the narrower interpretation would best carry out the object and purpose of the constitution;
(iii) A flexible and liberal approach must be adopted;
(iv) Effect is to be given to every word used in the Constitution;
(v) The Constitution is to be interpreted as a whole.
In item (h) of the fourth schedule to the Constitution, Local Government Councils are vested with the function of “sewage” and refuse disposal”. The words are clear and must be given their plain and evident meaning. The word “Sewage” refers to;
“Used water and waste substances that are produced by human bodies that are carried away from houses and factories through special pipes.” See OXFORD ADVANCED LEARNER’S DICTIONARY 7TH ED. P.1339.
The word “refuse” is defined as;
‘Waste material that is thrown away”. See P. 1224 of the OXFORD ADVANCED LEARNER’S DICTIONARY supra.
The Word ‘disposal” is defined as;
“The act of getting rid of something.” See P.422 of the above Dictionary.
In the Chambers Thesaurus at page 291 “disposal” is defined in part as
“Control direction, riddance, getting rid of, throwing-away, clearance, discarding,
41
jettisoning, scrapping.”
In the Merriam Webster Dictionary (On – line) it is defined to include;
“A systematic destruction; especially: destruction or transformation of garbage.”
The Black’s Law Dictionary 5th- Ed. Defines it at P.423 as
”Sale, Pledge, giving away, use, consumption or any other disposition of a thing…”
It follows therefore that refuse disposal involves not only throwing away or getting rid of waste materials but also systematically doing so or using the same for productive purposes, or transforming the same for useful purposes. Thus the function of Local Government Councils in refuse disposal includes not only getting rid of the refuse but also the power to manage or use it (i.e., do something with it) for any legitimate purpose. This view accords with the requirement that words in the Constitution are to be given broad interpretation unless the context or the rest of the Constitution indicates otherwise and this also accords with Section 10 of the interpretation Act which provides that
“An enactment which confers a power to do any act shall be construed as also conferring all such other powers as are reasonably
42
necessary to enable that act to be done or are incidental to the doing of it”.
Certainly the power of waste management is incidental to power of waste disposal. For the avoidance of doubt and for purpose of clarity, I hold that the power to dispose of and/or manage waste lies in the Local Government.
However, it must be re-stated that provisions in the Constitution must be interpreted as a whole and not in isolation from other parts of the Constitution. Section 16 (1) (a) and 2 (b) of the Constitution provides, as an economic objective of the state, for the harnessing of the resources of the nation and promotion of national prosperity as well as directing its policy towards ensuring that the material resources of the nation are harnessed. It should be stated that the phrase “State” when used otherwise than in relation to one of the component parts of the federation, includes government which is defined to include the Government of the Federation, or of any state or of a local government council. See Section 318 (1) of the Constitution of Nigeria.
Industrial, commercial, agricultural developments are included as items in items 17 and 18 of the
43 concurrent legislative list. I therefore agree with 1st respondent’s counsel that it is the intention of the makers of the Constitution that the Federal and State Governments have power to carry out industrial development.
The question is, can the establishment of waste disposal plant (as contemplated by the contract under consideration) be qualified as an industrial development or activity?
“Industry” is defined as
“The Production of goods from raw materials especially in factories” see page 761 of the Oxford Advanced learner’s Dictionary supra.
The Merriam – Webster Dictionary (On – Line) defines it as, “the process of making product by using machinery and factories”.
Part of the objectives of the agreement was the provision of a compost plant and recycling plant. The word compost is defined as:
“A mixture of decayed plants, food etc that can be added to soil to help plant grow” see page 297 of Oxford Advanced Learner’s Dictionary supra.
“Recycle is “to treat things that have already been used so that they can be used again”. See p, 1219 of Oxford Advanced Learner’s Dictionary supra.
The word “plant” is defined as:
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”A factory or place where power is produced or an industrial process takes place”. See p. 1108 of the Oxford Advanced Learner’s Dictionary supra.
It follows therefore from the above that the essence in part of the contract was the establishment of an industry, for the production of compost from waste materials. This is perfectly within the vires of the Federal and State Governments.
It is therefore my view that the power to manage or use waste materials for productive purposes lies concurrently within the three tiers of government, viz; Federal, State and Local Government.
The contract is therefore not ex-facie ultra vires the appellant and 2nd respondent and is therefore not null and void. The appellant therefore ought to have specifically pleaded the alleged voidness of the contract.
I therefore answer issue four in the negative and resolve it in favour of the 1st respondent.
Having earlier held under issue 2 that the appellant was denied fair hearing by the trial court, it follows that the whole proceedings including the judgment is a nullity.
The appeal has merit and it succeeds. I hereby set aside the judgment of the trial
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court and remit the case to the Honourable Chief Judge of the High Court of the Federal Capital Territory, Abuja, for assignment to a judge of that court other than the trial judge (O. O. Goodluck, J.).
The parties shall bear their costs.
MOORE A, A. ADUMEIN, J.C.A.: I read the draft of the Judgment of my learned brother, Joseph E. Ekanem, JCA; just delivered. I agree with the reasoning and conclusions of my learned brother.
For the very clear reasons given by my learned brother, I also allow this appeal, I abide by all the orders made in the leading Judgment.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the opportunity of reading the judgment delivered by my learned brother, Ekanem, JCA. He has exhaustively dealt with the issues proferred in this appeal.
I agree entirely with his reasoning and conclusions reached therein. I also allow the appeal and abide by the consequential orders made by my learned brother.
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Appearances
P.U. Ogubunka, Esq. (Director, For appellants
Civil Litigation, Ministry of Justice,
Abia State (With him Mrs. Ihuoma
Omokwe Assistant Director,
Ministry of Justice, Abia State)
Ogechukwu Chikwendu, Esq.
(Principal State Counsel,
Ministry of Justice, Abia State)
Mrs. Mary Eke (Senior State Counsel,
Ministry of Justice, Abia State)
and C. I. Amanamka Esq.
(Senior State Counsel,
Ministry of Justice, Abia State).
Emeka Eze. Esq. (With him, For 1st Respondent
Izunobia and Mrs Rosemary Salami),
C. S. Ogada, Esq. (State Counsel) For 2nd Respondent.
Appearances
P. U. Ogubunka, Esq (Director, Civil Litigation, Ministry of Justice, Abia State (With him Mrs Ihuoma Omokwe Assistant Director, Ministry of Justice, Abia State) Ogechukwu Chikwendu, Esq (Principal State Counsel, Ministry of Justice, Abia State) Mrs Mary Eke (Senior State Counsel, Ministry of Justice, Abia State) and C. I. Amanamka Esq (Senior State Counsel, Ministry of Justice, Abia State) For Appellant
AND
Emeka Eze. Esq. (With him, Izunobia and Mrs Rosemary Salami) for 1st respondent,
C. S. Ogada, Esq: (State Counsel) for 2nd respondent. For Respondent
