JULIUS BERGER (NIG.) PLC. V. ANIZZEAL ENG. PROJECTS LIMITED (2013)

JULIUS BERGER (NIG.) PLC. V. ANIZZEAL ENG. PROJECTS LIMITED

(2013)LCN/6162(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 7th day of May, 2013

CA/C/202/2010

RATIO

CONTRACT: WHETHER THE ISSUE OF ILLEGALITY OR VALIDITY OF A CONTRACT CAN BE DETERMINED AT THE PRE-TRIAL STAGE

APPEAL: WHETHER THE ISSUE OF ILLEGALITY OF CONTRACT CAN BE BROUGHT ON APPEAL WHEN IT WAS NOT BROUGHT AT THE TRIAL COURT
Furthermore, as submitted for the Respondent, the issue of illegality of the contract between the parties was not what was submitted to the lower court for determination. It cannot be brought into this application without leave of court. See: Onyemaizu vs. Ojiako (2010) 4 NWLR (Pt.1185) 504; Edopolor & Co. Ltd. v. Sem-Edo Wires Industries Ltd. (1989) 4 NWLR (Part 116) 473, UOR v. LOKO (1988) 2 NWLR (Part 77) 430 at p.437.PER ONYEKACHI A. OTISI, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

JULIUS BERGER (NIG.) PLC. Appellant(s)

AND

ANIZZEAL ENG. PROJECTS LIMITED Respondent(s)

ONYEKACHI A. OTISI, J.C.A.: (Delivering the Leading Judgment): This appeal is against the Ruling of the Akwa Ibom State High Court, sitting at Uyo, delivered on 15/11/2010. The Respondent as plaintiff had filed Suit No HU/468/2009 seeking the following reliefs:
(a) A declaration that the act of the Defendant in purportedly revoking the Local Purchase Order issued to the plaintiff during the continuation of the supply of the sharp sand ordered constitutes a breach of contract;
(b) The sum of seventeen million five hundred and fifty-eight thousand, eight hundred Naira (N17,558,800.00) being the special damages incurred by the Plaintiff in execution of the contract less the part payment made by the Defendant;
(c) Five hundred thousand (N500,000.00) being anticipated profit from the transactions breached by the Defendant;
(d) Fifty million Naira (N50,000,000.00) being general damages for breach of contract.
After commencement of the pre-trial proceedings in this matter, the Appellant as defendant filed a motion on notice seeking the following order:
An order setting aside the pre-trial conference proceedings so far conducted in this Suit and striking out this suit for lack of jurisdiction by this Honourable Court on the ground that:
The subject matter in this suit relates to a civil cause namely: claim for damages and declaratory relief by the Plaintiff against the Defendant for alleged breach of contract for the supply of (sharp) sand and that by virtue of Section 75 of the Nigerian Mineral and Mining Act 2007 sand is defined as a naturally occurring quarriable mineral and therefore any civil dispute or litigation relating to sand and/or the supply of sand falls under the exclusive jurisdiction of the High Court by virtue of Section 251(1)(n) of the Constitution of the Federal Republic of Nigeria, 1999.
The Respondent opposed the motion. The trial Judge heard the parties and overruled the Appellant, holding that the State High Court had jurisdiction to entertain the suit.
Dissatisfied with the decision of the lower court, the Appellant filed an Amended Notice of Appeal on 16/5/2012, raising four Grounds of Appeal: and, seeking Orders from this Court to allow the appeal and strike out the suit for want of jurisdiction.
Barry N. Kumbe, Esq. of Counsel for the Appellant filed an Amended Brief of Argument on 16/5/12. Idongesit Jackson Esq. for the Respondent filed an Amended Respondent’s Brief on 1/3/2013, deemed properly filed on 4/3/2013. The Appellant’s Reply was filed on 23/3/2013 and deemed on 4/3/2013. These Briefs were adopted by respective Counsel on 4/3/2013.
In the Appellant’s Brief, two Issues were distilled for determination from the 4 Grounds of Appeal as follows:
a. Whether in view of extant provisions of Section 251(1)(n) of the Constitution of the Federal Republic of Nigeria 1999 (herein in this brief referred to as the 1999 Constitution) and Sections 75, 76, and 164 of the Nigerian Minerals and Mining Act, 2007 (the 2007 Act) the lower Court has jurisdiction to hear and determine Suit No. HU/468/2009 – ANIZZEAL ENG. PROJECTS LIMITED VS. JULIUS BERGER (NIG.) PLC., i.e. the subject matter of this appeal.
b. Whether or not there are features of stark and incurable illegalities in the Purchase Order contract which the Respondent seeks to enforce against the Appellant which rendered the contract void (illegal) ab initio and therefore unenforceable in any court of law by virtue of the provisions of Sections 2, 33(1), 75, 76(1) – (4), 78(1)(c), 131(a) and (d), 139(1)(a) and (2), 140(1) and (2)(a) and 164 of the 2007 Act.
The Respondent in the Respondent’s Brief also raised two issues as follows:-
a. Whether sand qualifies as mineral within the meaning of Section 251(1)(n) of the Constitution of the Federal Republic of Nigeria, 1999.
b. Whether the contract between the Respondent and the Appellant not covered by the Minerals and Mining Act, 2007 is void to oust the jurisdiction of the lower court from entertaining the Respondent’s action.
The issues raised for the Respondent are subsumed in Issue No.1 raised by the Appellant. I shall therefore adopt the Issues raised by the Appellant.
ISSUE NO 1.
Learned Counsel for the Appellant submitted that Grounds 1, 2 and 3 of the Grounds of Appeal show that the complaint of the Appellant is that the learned trial Judge was wrong to have held that sand is not a mineral and so that the State High Court had jurisdiction to entertain the Respondent’s action. He submitted that it is the plaintiff’s claim as endorsed on the writ of summons and statement of claim that determines whether or not the court has jurisdiction to entertain the suit; relying on SPDC (Nig) Ltd vs. Sirpi Alusteel Construction Ltd . (2007) 1 NWLR (Pt.1067) 128 at 152; A.G. Federation vs. Guardian Newspaper Ltd. (1999) 9 NWLR (Pt.618) 187; Adeyemi vs. Opeyori (1976) 9- 10 SC 31; Abacha vs. Fawehinmi (2000) 6 NWLR (PT 600) 228; Seismographs Services (Nig) Ltd vs. Oshie (2009) 16 NWLR (Pt 1166) 158: A.G. Benue State vs. Umar (2008) 1 NWLR (Pt.1068) 311.
Learned Counsel referred to the statement of claim and submitted that paragraphs 3, 4, 9, 10 and 18(a) thereof would show that the Respondent was awarded a contract to supply sharp sand by the Appellant and in order to meet the demand, the Respondent had to hire a dredger and site to mine or dredge the sand. He referred to various dictionary meanings of sand and to the provisions of Section 75 and Section 164 of the 2007 Act: as well as to the provisions of Section 251(1) of the 1999 Constitution to submit that the claim of the Respondent falls within the exclusive jurisdiction of the Federal High Court. He also relied on C.G.G. (Nig.) Ltd vs. Ogu (2005) 8 NWLR (Pt.927) 366 at 381, (2005) 5 MJSC 1 at 11: SPDC vs. Maxon (2001) 9 NWLR (Pt.719) 541, Barry vs. Eric (1998) 8 NWLR (Pt.562) 404: C.G.D.G. (Nig.) Ltd vs. Asaagbara (2001) 11 NWLR (Pt 723) 168. He urged the Court to hold that sharp sand is a mineral; and to hold that by virtue of Section 251(1) of the 1999 Constitution, the jurisdiction to entertain such matters is vested in the Federal High Court.
Learned Counsel conceded that Reliefs (b), (c) and (d) sought by the Respondent were within the competence of the lower court but submitted that since the Federal High Court can hear and determine all the reliefs sought by the Respondent, it is better for the Respondent to approach that court. He submitted that where there is a court with jurisdiction to hear and determine all the issues raised in a matter, including the principal claim, it is improper to approach a court that can determine only some of the issues. He relied on Onuekwusi vs. Registered Trustees of Christ Methodist Church (2011) 2-3 MJSC (PT 1) 22 at 140: Uchegbu vs. SPDC (supra) at 306; Tukur vs. Govt of Gongola State (No 2) (1989) 4 NWLR (PT.117) 517: Military Admin. Benue State vs. Abayilo (2001) 5 NWLR (Pt 705) 19.
In the Respondent’s Brief, it is submitted that sand does not qualify as ‘mineral’ within the contemplation of Section 251(1)(n) of the 1999 Constitution, which gives exclusive jurisdiction to the Federal High Court in civil cases or matters bordering on:
‘mines and minerals (including oil fields, oil mining, geological surveys and natural gas)’.
It is further submitted that by the expression ‘expressio unius est exclusio alterius’, the Court cannot add sand to the list of items captured in brackets as constituting mines and minerals within the meaning of the provision. That if the draftsmen of the Constitution intended that cases relating to sand should fall within the exclusive jurisdiction of the Federal High Court, they would have added sand to the list of items captured in brackets, relying on Ojukwu vs. Yar’Adua (2008) 4 NWLR (PT 1078) 435 at 448.
Learned Counsel further submitted that by the ejusdem generis rule , where items of a particular class are expressly mentioned, other items contemplated though not mentioned must be those in the class as those mentioned.
It is submitted that in interpreting the provisions of Section 251(1)(n) of the Constitution, the Court cannot isolate the word ‘mineral’ from the con of its application, relying on PDP vs. INEC (1999) 11 NWLR (PT 626) 200 at 207. That the intention of the legislature was to vest in the Federal High Court exclusive jurisdiction over matters relating to mines and mineral derived from mines. She referred to Section 164 of the Minerals and Mining Act 2007, and submitted that the Court lacks the power to read into an enactment what it does not contain. It is contended that it is in accord with common sense and the intention of the legislature to hold that sand is a component of the earth in or on which minerals, by Section 164, are said to occur. She also relied on Ado Ibrahim & Co. Ltd vs. Eldestein Nig. Ltd. (2002) 1 NWLR (Pt.747) 50 at 54.
It is also submitted that sand having not been qualified as minerals within the meaning of the Minerals and Mining Act, 2007, the contract between the parties is not one within the contemplation of the Act.
In the Reply Brief, it is submitted that the cases of Ojukwu vs. Yar’Adua (supra) and Ado Ibrahim & Co Ltd vs. Eldestein Nig. Ltd (supra), relied upon by the Respondent, are distinguishable. That the pertinent question to consider is: what was the nature of the contract between the parties? And, that the provisions of Section 75, 76 and 164 of the Minerals and Mining Act are related and should be read together. It is submitted that the claim of the Respondent was not a claim for simple breach of contract, but that it is the Federal High Court that has exclusive jurisdiction to entertain the Respondent’s claim.
The jurisdiction of a Court is very fundamental to the adjudication of the matter before it. Jurisdiction is the authority which a court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is always a threshold issue. It is so radical that it forms the foundation of adjudication. The jurisdiction or authority of the court is controlled or circumscribed by the statute creating the court itself. Or, it may be circumscribed by a condition precedent created by legislation which must be fulfilled before the court can entertain the suit. These touches on the legal authority of the court to adjudicate in the matter. If a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it: See: OLOBA V. AKEREJA (1988) 3 NWLR (Pt.84) 508; AREMO II V. ADEKANYE (2004) 11 MJSC 11; DREXEL ENERGY AND NATURAL RESOURCES LTD. & 2 ORS. V. TRANS INTERNATIONAL BANK LTD. (2008) 12 S.C. (PT.II) 240.

In the task of determining if the court has jurisdiction to hear and determine a case the following principles must be considered diligently by the Judge.
(a) Whether the subject matter of the case is within the court’s jurisdiction;
(b) Whether there is any feature in the case which prevents the court from exercising its jurisdiction, and
(c) Whether the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction; and
(d) the case or matter must have been brought to the court by the due process the law.
All these requirements must co-exist conjunctively before jurisdiction can be exercised by the court. See:
MADUKOLU V NKEMDILIM (1962) 2 SCNLR 342; DREXEL ENERGY AND INTERNATIONAL BANK LTD (supra); ISAAC OBIUWEUBI v. CBN (2011) 7 NWLR (Pt.1247) 465.

Where an objection is raised to the jurisdiction of the trial Court, to try an action , the Court at the earliest has to enquire whether in fact its Jurisdiction has indeed been ousted. And if ousted, the court ought not to proceed any further with the proceedings. This is because any proceedings conducted without jurisdiction amounts to a nullity, no matter how well it is conducted: and, without the necessary jurisdiction a Court cannot make any valid order. See: A.G. of LAGOS STATE VS. DOSUNMU (1989) 3 NWLR (Pt.111) 552; NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (Pt.135) 715.

It is also settled law, as has rightly been submitted, that the jurisdiction of the court is determined by the plaintiff’s claim as disclosed in the writ of summons; and or the statement of claim, where it has been filed: this being because the statement of claim supersedes the writ of summons. See: NV Scheep v. MV “Araz” (2000) 15 NWLR (PT 681) 668: Ayorinde v. Oni (2000) 3 NWLR (Pt. 649) 348, and Nnadi v. Okoro (1998) 1 NWLR (Pt. 535) 573; Omnia Nigeria Ltd v Dyktrade Ltd (2007) 12 MJSC 115. The content of and claim in the statement of claim is therefore the material to be examined in determining whether or not a court has jurisdiction to entertain a matter, rather than the defendant’s statement of defence. See: Tukur v. Govt. of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517.
The Statement of claim of the Respondent as plaintiff in the lower court being central to the determination of the issue of jurisdiction, I shall reproduce the statement of claim hereunder:
1. The Plaintiff is a limited liability company incorporated in Nigeria and is involved in the execution of engineering projects and allied services.
2. The Defendant is also a limited liability engineering firm currently executing Engineering works on contract from the Government of Akwa Ibom State.
3. On the 3rd of April, 2009, the Defendant issued a Local Purchase Order (hereinafter called (“LPO”) to the plaintiff for the supply of ten thousand cubic metres of sharp sand, for the sum of twenty million naira (N20,000,000)
4. To meet the Defendant’s huge demand for sharp sand and the anticipation of the profit from the transaction, the Plaintiff;
(a) hired a dredger and hauled same to the dredging site at Ibagwa Abak Local Government
(b) leased a dredging site from Asana village, Abak Local Govt. Area;
(c) hired trucks to haul the sand from the Pile Yard to the Defendant’s Yard at Uyo;
(d) leased a pile yard at Asana village
(e) hired a Pale Loader for loading the trucks and stock piling
(f) hired more personnel and
(g) deployed other logistics to ensure delivery according to expectation.
5. Plaintiff commenced the supply and submitted a voucher for part payment as per quantity supplied at that time, which entitled the Plaintiff to the sum of one million, nine hundred and forty-one thousand two hundred Naira (N1,941,200.00)
6. The Defendant paid the above sum and the plaintiff continued the supply.
7. Some days thereafter, the Plaintiff’s truck drivers hauled sand to the Defendant’s Yard to dump as they did the previous day, but were locked out and told to wait.
8. They waited the whole day and were not let in to dump. No explanation was offered. When the Defendant’s staff closed work for the day, the Plaintiff’s trucks had to return the sand they hauled to the Plaintiff’s Pile Yard.
9. The following day, the Plaintiff’s truck drivers again hauled sand to the Defendant’s Yard and were again asked to wait till close of work, at which time the Defendant’s staff at the weigh Bridge told the Plaintiff’s staff that the Defendant’s Dump Site was filled to capacity, but that it would be evacuated the following morning, and that the sand should be brought then.
10. The following day, the ordeal repeated itself and the Plaintiff’s trucks were still not let in to tip the sand.
11. The next day, the Plaintiff’s Project Manager made enquiries at the Defendant’s office and was told to go away and await the Defendant’s management decision on the matter.
12. On the 20th of August, 2009, the Defendant issued and served on the Plaintiff a letter purportedly revoking the LPO, alleging economic down turn.
13. The Plaintiff, by her Counsel wrote to the Defendant, demanding payment of the sum outstanding which demand the Defendant has not met, neither has she replied to the letter.
14. In execution of the contract as per the LPO, the Plaintiff incurred the following expenses:
PARTICULARS OF SPECIAL DAMAGES
(a) hiring and haulage of dredging     –     N15,000,000.00
(b) rent paid for dredging site     –    N500,000.00
(c) hiring of trucks for the duration of
supply of 10,000 cubic metres of sand     –    N2,500,000.00
(d) hiring of Pale Loader for 14 days
at N80,000 per day          –    N1,120,000.00
(e) rent of Pile Yard          –    N200,000.00
(f) Miscellaneous expenses       –    N180,000.00
TOTAL             –    N19,500,000.00
Less part payment of- 2,541,200.00
outstanding cost of expenses       –    N17,558,800.00
15. The Plaintiff anticipated and would have made a profit of five hundred thousand Naira (N500,000.00) from the transaction but for the breach by the Defendant.
16. The Plaintiff borrowed money at an exorbitant interest rate to execute this contract and is presently unable to repay the loan or meet other financial obligations to her employees and therefore due to the breach of this contract interest is still accumulating on the sum borrowed.
17. The Plaintiff pleads and shall at the trial rely on the following documents:
(a)The LPO dated 3rd April, 2009
(b) Defendant’s payment Voucher dated 22nd May, 2009
(c) Defendant’s letter of revocation dated 20th August, 2009
(d) Plaintiff’s counsel letter to the Defendant dated 16th October, 2009
(e) receipt of hiring and haulage of dredger
(f) receipt of hiring of truck
(g) receipt of lease of dredging site
(h) receipt of lease of Pile Yard
(i) receipt of hiring of Pale Loader
The Defendant is given notice to produce her copy of the Plaintiff’s Solicitor’s letter.
18. Wherefore the Plaintiff claims against the Defendant as follows:
a. A declaration that the act of the Defendant in purportedly revoking the Local purchase order issued to the Plaintiff during the continuation of the supply of the sharp sand ordered constitutes a breach of contract.
b. The sum of seventeen million five hundred and fifty-eight thousand, eight hundred naira (N17,558,800.00) being the special damages incurred by the Plaintiff in execution of the contract less the part payment made by the Defendant.
c. Five hundred thousand (N500,000.00) being anticipated profit from the transactions breached by the Defendant.
d. Fifty million naira (N50, 000,000.00) being general damages for breach of contract.
In his submission, learned Counsel for the Appellant has relied on the provisions of Section 251(1)(n) of the 1999 Constitution; and, Sections 75, 76, and 164 of the Minerals and Mining Act, 2007 (the Act). For clarity, I shall reproduce the provisions of Section 251(1)(n) of the 1999 Constitution; and, Sections 75, 76, and 164 of the Minerals and Mining Act, 2007 (the Act).
Section 251(1)(n) of the 1999 Constitution provides as follows:
251 -(1) 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)….
Sections 75, 76 and 164 of the Act provide as follows:
Section 75:
Application
This part applies in relations to all naturally occurring quarriable minerals such as asbestos, china clay, fuller’s earth, gypsum, marble, limestone, mica, pipe clay, slate, sand, stone, laterite, gravel, etc which may also be lawfully extracted under Mining Leases.
Section 76:
Prohibition of unauthorized quarrying
1. Notwithstanding the provisions of any other enactment, consent or approval provided for under an enactment and in particular, sections 9(1), 10, 11, 12 and 13 of the National Inland Water Act, every operation for the purpose of extracting any quarriable mineral from a quarry including sand dredging in the navigable water ways or elsewhere, for industrial use (in this part referred to as a “quarrying operation) shall be conducted under a lease or licence granted by the Minister under this Act.
2. Every grant of a lease or licence shall be made subject to the provisions
3. Pursuant to Section 1(1) of this Act, except as provided in this part, no person shall conduct any quarry operation on any land in Nigeria its contiguous continental shelf and all rivers, streams and water courses throughout Nigeria, any area covered by its territorial waters or constituency and the Exclusive Economic Zone, or divert or impound wafer for that purpose.
4. In this section, “industrial use” includes sale, bargain and usage for or in connection with any industry or trade and excludes sand dredging for the improvement of navigability of waterways, in so far as the sand dredged is not sold or used for commercial purposes.
Section 164:
Interpretation
“Minerals” or “Mineral Resources” means any substance whether in solid, liquid or gaseous form occurring in or on the earth, formed by or subjected to geological processes including occurrences or deposits of rocks, coal, coal bed gases, bituminous shales, tar sands, any substances that may be extracted from coal, shale or tar sands, mineral water, and mineral components in tailings and waste piles, but with the exclusion of Petroleum and water without mineral content;
On the interpretation of statutes, the Supreme Court per Tobi JSC, in the case of Araka vs. Egbue (2003) MJSC 17, said:
“The duty of the Court is to interpret the words contained in the statute and not go outside the words in search of an interpretation which is convenient to the Court or to the parties or one of the parties. Even where the provisions of a statute are hard in the sense that they will do some inconvenience to the parties, the court is bound to interpret the provisions once they are clear and unambiguous. It is not the duty of the Court to remove the chaff from the grain in the process of interpretation of a statute to arrive at favourable terms for the parties outside the contemplation of the lawmaker. That will be tantamount to travelling outside the statute on a voyage of discovery. This Court cannot embark upon such a journey.
The primary function of the Court is to search for the intention of the lawmaker in the interpretation of a statute. Where a statute is clear and unambiguous, as it is in this case, the Court in the exercise of its interpretative jurisdiction, must stop where the statute stops. In other words, a Court of law has no jurisdiction to rewrite a statute to suit the purpose of one of the parties or both parties. The moment a Court of law intends to rewrite a statute or really rewrites a statute, the intention of the lawmaker is thrown overboard and the Court changes place with the lawmaker. In view of the fact that will be against the doctrine of separation of powers entrenched in the Constitution, a Court of law will not embark on such an unconstitutional act. Courts of law follow the literal rule of interpretation where the provision of the statute is clear and no more. And that is the position in this appeal.
In Adewunmi v. Attorney-General of Ekiti State (2002) 2 NWLR (Pt. 751) 474, Wali, JSC said at page 51:
“in case of statutory construction the Court’s authority is limited where the statutory language and legislative intent are clear and plain, the judicial inquiry terminates there. Under our jurisprudence, the presumption is that ill-considered or unwise legislation will be corrected through democratic process. A Court is not permitted to distort a statute’s meaning in order to make it conform with the Judge’s own views of sound social policy.”
In ATTORNEY-GENERAL OF KANO STATE V. ATTORNEY-GENERAL OF THE FEDERATION (2007) 3 S.C. (Pt. 1) 59 the Supreme Court, per Mahmud Mohammed JSC said:
“It is now well settled that the duty of this court and indeed any other court, is to interpret the words contained in the Constitution, and any statute in their ordinary and literal meaning.”
Therefore, where words of a statute are clear and unambiguous, effect should be given to them in their natural meaning except where to do so will result in absurdity. See also: Tanko vs. State (2009) 1 – 3 MJSC 209.

An examination of the Nigerian Minerals and Mining Act will reveal that the purpose of the Act is to have some regulatory control over mining activities in the Country. Section 1(1) of the Act provides that:
The entire property in and control of all Mineral Resources in, under or upon any land in Nigeria… is and shall be vested in the Government of the Federation for and on behalf of the people of Nigeria.
Section 5 provides for the establishment of a Mining Cadastre Office which shall act as the sole agency responsible for the administration of mineral titles. The Mining Cadastre Office, by Section 7, shall maintain Registers for Reconnaissance Permits, Exploration Licences, Mining Leases, Small-scale mining Leases. Water use Permits and Quarry Leases. Qualification for the grant of any of these Permits or Leases is provided for in the Act.
Section 75 provides regulatory control provisions for another set of elements, if I may again reproduce for emphasis:
This part applies in relations to all naturally occurring quarriable minerals such as asbestos, china clay, fuller’s earth, gypsum, marble, limestone, mica, pipe clay, slate, sand, stone, laterite, gravel, etc which may also be lawfully extracted under Mining Leases.
These elements are such as may be lawfully extracted under Mining Leases. The sole purpose being again to regulate and control the mining of quarriable minerals. Therefore ‘sand’ listed in the Act, is in relation to the regulation and control of quarrying or excavating the mineral. Offences under the Act are listed, and Section 142 further provides that offences under the Act are to be tried by the Federal High Court.

Section 251(1)(n) of the Constitution brings issues relating to mines and minerals under the jurisdiction of the Federal High Court. The bracketed words in the Constitutional provision: (including oil fields, oil mining, geological surveys and natural gas) brings comparable issues under the jurisdiction of the Federal High Court. See also Section 7(1)(n) of the Federal High Court Act, as amended in 2005. In SPDC vs. Maxon (supra) of 555 this Court per Pats-Acholonu JCA (as he then was), of blessed memory stated as follows:
“It is my view that any unsavoury result which is actionable in consequence of the activities of companies engaged in operation and relating to prospection in oil, mines, minerals, gas exploration and related geophysical works or activities, shall come within the exclusive jurisdiction of the Federal High Court to adjudicate on.”
Similarly, in Chevron Nig Ltd vs. Roberts (2010) LPELR-3908, this Court per Thomas JCA stated:
“It is trite law, that, where a cause or matter, is arising from, pertaining to or connected with mines, minerals, oil, oil exploration or geophysical surveys, it is only the Federal High Court as created by the Constitution of Nigeria in Section 251 that has the exclusive jurisdiction.”
As already made clear, jurisdiction of a court is determined by the statement of claim, which must show what the complaint of the plaintiff really is, for which he has approached the court for adjudication. The agreement between the parties is contained in paragraph 3 of the statement of claim. The said paragraph 3 is again reproduced for emphasis hereunder:
On the 3rd of April, 2009, the Defendant issued a Local Purchase Order (hereinafter called (“LPO”) to the plaintiff for the supply of ten thousand cubic metres of sharp sand, for the sum of twenty million naira N20,000,000).
The agreement or contract contained in the LPO is for the supply of 10 thousand cubic metres of sharp sand at a total cost of N20 million. Paragraph 4 lists what the Respondent did in preparation for the execution of the agreement. In paragraph 5 is pleaded the part of the contract which had been executed, as follows:
Plaintiff commenced the supply and submitted a voucher for part payment as per quantity supplied at that time, which entitled the plaintiff to the sum of one million, nine hundred and forty-one thousand two hundred Naira N1,941,200.00).
The contract had already been partially executed before the Appellant stopped further supply. The Respondent’s claim before the lower court has nothing to do with the existence of a mining lease, permit or licence. The Respondent simply approached the court to enforce his existing contract with the Appellant.
The enforcement of a contract is within the jurisdiction of the State High Court. See Section 257(1) of the 1999 Constitution, as amended. See also: Ado Ibrahim & Co Ltd vs. Eldestein Nig. Ltd (supra).
It is my firm view, having regard to the pleadings and claims of the Respondent as plaintiff in the lower court, that the matter he submitted for adjudication before the lower court was in respect of a contract he had with the Appellant; and, this cause was within the jurisdiction of the State High Court that he had approached.
Issue No 1 is therefore resolved against the Appellant.
ISSUE NO 2
Learned Counsel submitted that the learned trial Judge failed to consider and pronounce on the issue of Illegality of the contract raised by the Appellant in her processes filed in the lower court, namely: paragraphs 10 to 12 of her Further Statement of Defence: Pre-trial Form 18, (question 9 and the answers thereto) and in her Request for Discovery of Documents respectively and in the Respondent’s admission in paragraph 3 of its sworn affidavit in answer to Appellant’s Request for Discovery which touched on the jurisdiction of the lower court to entertain the Respondent’s action with a view to enforcing the contract. It is conceded that the issue of illegality of the contract was not raised distinctly in the motion for preliminary objection. Learned Counsel however submitted that the lower court had alluded to it in its Ruling but failed to consider and pronounce on its effect on her jurisdiction to entertain the suit.
As held above, and as Learned Counsel for the Appellant had rightly submitted under Issue No 1, the processes considered by the trial court where its vires is challenged are the writ of summons and the statement of claim; and no more. The statement of defence, and all the processes listed above by the Appellant are not part of the processes to be considered. The claims that a plaintiff submits to the court for adjudication determine whether or not the court has jurisdiction; not the defence the defendant has to the action, no matter the validity of the defence. Indeed facts pleaded by a defendant do not account in determining the jurisdiction of the trial court to entertain a matter submitted by a plaintiff for adjudication. The facts pleaded by defendants still require proof in evidence, and cannot become decisive factors to be considered of this preliminary stage. See: AG Kwara State vs. Olawale (1993) 1 NWLR (Pt 272) 645 at 675 where the Supreme Court held that:
“Hence, when the issue of jurisdiction has been clearly established on the writ of summons, and the statement of claim, it is not necessary to consider the statement of defence. Jurisdiction already assumed cannot be divested on the strength of a valid defence to the action.”

As rightly submitted by learned Counsel for the Respondent, the issue of illegality or validity of a contract cannot be determined at pre-trial stage. A court must have the vires to entertain a suit before the pre-trial sessions come into play. Therefore the pre-trial session processes cannot come into consideration in determining whether or not a court has jurisdiction to hear the matter ab initio.
Furthermore, as submitted for the Respondent, the issue of illegality of the contract between the parties was not what was submitted to the lower court for determination. It cannot be brought into this application without leave of court. See: Onyemaizu vs. Ojiako (2010) 4 NWLR (Pt.1185) 504; Edopolor & Co. Ltd. v. Sem-Edo Wires Industries Ltd. (1989) 4 NWLR (Part 116) 473, UOR v. LOKO (1988) 2 NWLR (Part 77) 430 at p.437.
I am therefore of the firm view that the lower court need not have considered and or pronounce on the effect of unproved averments of the defendant or pre-trial process answers in determining if the court had jurisdiction to entertain the suit. Issue No 2 is thus resolved against the Appellant.
I therefore hold that the State High Court has jurisdiction to entertain the matter submitted to it by the Respondent for adjudication.
This appeal therefore fails and is hereby dismissed.
Costs of N50,000.00 are awarded in favour of the Respondents.

MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment written by my learned brother Onyekachi A. Otisi, JCA, in this appeal and agree entirely with the views expressed and conclusions reached on the two (2) issues submitted by the learned counsel for the Appellant for decision in the appeal. The law on the issues has been adequately demonstrated in the lead judgment and for reasons set out therein which I adopt, the appeal is wanting in merit and dismissed by me too. I abide by the order on costs made in the lead judgment.

UZO I. NDUKWE-ANYANWU J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Onyekachi A. Otisi, JCA. I agree that once the jurisdiction of a court is challenged as to its competence to hear a matter placed before it, the court has only one thing to do. The court assumes jurisdiction under Section 6 of the 1999 Constitution to determine whether it has jurisdiction. Where a court holds that it has no jurisdiction, there is only one thing left for the court to do. It would therefore strike out the suit. However, where it has jurisdiction, it would continue and entertain the matter to conclusion.
I agree that the court has jurisdiction to entertain this matter. This appeal fails and is hereby dismissed. I abide by the orders as to costs.

Appearances

Barry N. Kumbe, Esq.,For Appellant

AND

Idongesit Jackson, Esq.For Respondent