MINISTER OF PETROLEUM RESOURCES & ANOR v. SPDC NIG. LTD (2021)

MINISTER OF PETROLEUM RESOURCES & ANOR v. SPDC NIG. LTD

(2021)LCN/14991(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, February 05, 2021

CA/A/824/2019(R)

RATIO

APPLICATION: ATTITUDE OF THE APPEAL COURTS TO INTERLOCUTORY APPLICATIONS

I have gone through the affidavits sworn to on behalf of the parties and the arguments in support of the application and against it. It is crystal clear, that the depositions in all the affidavits, substantially touch on the substance of the appeal pending in this Court. These proceedings are interlocutory. It is not only trite, but it is elementary, that at such a stage, this Court is precluded from considering or deciding on issues that are in the ambit of the appeal. The reason is clear. It will amount to prejudging the appeal and putting the Court in an awkward position resulting on denial of fair hearing. See EZEKIEL IBIGBAMI & ANOR VS. MILITARY GOVERNOR OF EKITI STATE (2003) LPELR-5619 (CA); IKUMOLUYI & ANOR VS. F.R.N. (2008) LPELR-3683 (CA), AND OCHOLI JAMES VS. INEC (2015) LPELR – 24494 (SC) AT PAGE 92. PER ABUBAKAR DATTI YAHAYA, J.C.A.

JURISDICTION: FUNDAMENTAL NATURE OF JURISDICTION

It is trite, that issue of jurisdiction is fundamental and can be taken up at any stage in the journey of a case, even at the Supreme Court for the first time and without leave. In MOSES VS. STATE (2006) 11 NWLR (PT. 992) 458 AT 503, the Supreme Court held that “…an appeal Court will not ordinarily entertain issues that are fresh and not brought and decided before a lower Court, without the leave of the Court having been had and obtained … the only exceptions are where the issue of jurisdiction is raised as a fresh point, leave is not necessary.” The Applicants here therefore, have an unfettered right to raise it, even without leave. That they are seeking leave to do so, is only abundante cautela. See also OBIAKOR & ANOR VS. THE STATE (2002) 10 NWLR (PT.776) 612 AT 626; FCDA VS. EZINKWO (2007) WRN (VOL.18) 158; AND APC VS. GEORGE NDUUL & ORS (2017) LPELR-42415 (SC). PER ABUBAKAR DATTI YAHAYA, J.C.A.

PROCESS: NATURE OF AN IRREGULARITY AFFECTING ORIGINATING PROCESS

An irregularity affecting originating process, is a fundamental irregularity that goes to the roots. See HERITAGE BANK VS. BENWORTH (SUPRA) AT PAGE 434 C AND NIGERIAN ARMY VS. SAMUEL (2013) 14 NWLR (PT. 1375) 466 AT 486. PER ABUBAKAR DATTI YAHAYA, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

1. THE HONOURABLE MINISTER OF PETROLEUM RESOURCES 2. THE MINISTER OF STATE FOR PETROLEUM RESOURCES APPELLANT(S)

And

THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED RESPONDENT(S)

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This is a Ruling on the application of the two Appellants/Applicants filed on the 27th October, 2020, praying for-
1. AN ORDER of this Honourable Court granting leave to the Appellants/Applicants (“Applicants”) to introduce and argue in the appeal filed against the Judgment of the Federal High Court Abuja Division, per Honourable Justice T. O. Taiwo dated the 23rd of August, 2019 in Suit No: FHC/ABJ/CS/524/2019; The Shell Petroleum Development Company of Nigeria vs. 1. The Minister of Petroleum Resources, 2. The Minister of State for Petroleum 2 (two) fresh grounds not taken before trial Court in that:
a. the Respondent failed to seek the leave of this Honourable Court before commencing its application for judicial review (i.e the point of law incorporated as Ground one in the ‘Additional Grounds of Appeal’ attached to the affidavit in support as “ExhibitA3”).
b. the Respondent failed to commence its action for judicial review within the prescribed period of three months provided by the Rules of this Honourable Court (i.e the point of law incorporated as Ground 2 additional

Grounds of Appeal attached in support as “Exhibit A3”).
2. AN ORDER of this Honourable Court granting the Applicants leave to admit fresh evidence not made available to the Federal High Court in the course of proceedings in the matter sought to be appealed against.
3. AN ORDER of injunction restraining the Respondent, either by itself, or through its servants, privies and agents from giving effect to, deriving any benefits from and or exercising any rights over the judgment of the Federal High Court Abuja Division, per Honourable Justice T. O. Taiwo dated the 23rd day of August 2019 in Suit No: FHC/ABJ/CS/524/2019 The Shell Petroleum Development Company of Nigeria vs. 1. The Minster of Petroleum Resources, 2. The Minister of State for Petroleum particularly the portion(s) of the judgment (at pages 20-21) granting the declaratory reliefs sought on the Respondent’s Originating Summons dated 16th May, 2019, declaring as follows:
“I therefore find that having fulfilled all obligations required for the renewal of Oil Mining Lease 11, including the payment of rents and royalties and having applied for the renewal of the lease in line with the

law, the Plaintiff should be granted a renewal. I therefore grant the following reliefs, 1, 2 and 3.”
Pending the hearing and determination of the appeal filed by the Appellants/Applicants as shown in the Notice of Appeal dated 2nd September, 2019 (attached to the affidavit in support and marked “Exhibit A2”).
4. AN ORDER of this Honourable Court staying the execution and/or compliance with the judgment of the Federal High Court, Abuja Division, per Honourable Justice T. O. Taiwo dated the 23rd day of August, 2019 in Suit No: FHC/ABJ/CS/524/2019 The Shell Petroleum Development Company of Nigeria vs. 1. The Minster of Petroleum Resources, 2. The Minister of State for Petroleum particularly the portion(s) of the judgment (at page 21) making/issuing orders as follows:
“As regards relief No. 4 which is an order compelling the defendants to grant the application of the Plaintiff and the other lessees of OML 11 for the renewal of OML 11 in terms of the Plaintiff’s letter to the 1st defendant dated the 16th October, 2017, I hereby order that defendants are hereby compelled to grant the application for the renewal of OML 11 but it shall be in accordance

with paragraph 10 of the First Schedule to the Petroleum Act as regards the number of years stated therein and that there shall be no reduction in the size of OML 11 as being contemplated by the defendants”.
Pending the hearing and determination of the appeal filed by the Applicants as shown in the Notice of Appeal dated 24th September, 2019 (attached to the affidavit in support and marked “Exhibit A2”).
AND for such further or other orders as this Honourable Court may deem fit to make in the circumstance.

The application is supported by an affidavit with fourteen exhibits. There is also a further affidavit in support of the application. Being opposed to the application, the Respondents filed a counter affidavit on 3rd November, 2020, and also exhibited thirteen documents. On the 4th of November, 2020, this Court directed parties to file written addresses in support of their various stands. The Applicants filed their written address on 11th November, 2020. The Respondents filed their written address on 17th November, 2020. The Applicants filed their Reply on points of law on 20th November, 2020 but was deemed filed on 18th January, 2021.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The application is sequel to the judgment of the Federal High Court in suit No. FHC/ABJ/CS/524/2019 delivered on 23rd August, 2019, wherein, the trial Judge as part of the judgment, ordered that the defendants (Applicants in this Motion) are “compelled to grant the application, for the renewal of OML 11 but it shall be in accordance with paragraph 10 of the First Schedule to the Petroleum Act as regards the number of years stated therein and that there shall be no reduction in the size of OML 11 as being contemplated by the defendants.”

The dissatisfaction with the said judgment, led the Appellants/Applicants to file an appeal against it, dated 2nd September, 2019. The Appellants also filed another Notice of Appeal dated 24th September, 2019, and withdrew the Notice of Appeal dated 2nd September, 2019.

In the Written address filed by the Applicants, learned counsel P. Owhoavwodua for the Applicants, identified the following four issues for determination-
a. Whether leave ought to be granted to raise a ground of appeal that the lower Court lacks jurisdiction, the plaintiff having failed to satisfy a precondition (leave to seek Judicial Review) to

institute the suit as provided in Order 34 Rule 3 of the Federal High Court Civil Procedure Rules 2019.
b. Whether leave ought to be granted to raise a ground of appeal that the cause of action is extinct, not having been commenced within 3 months as stipulated in Order 34 Rule 4 of the Federal High Court Civil Procedure Rules 2019 for actions in connection with Judicial Review.
c. Whether this Court will admit fresh evidence of a special nature having a bearing on national security; the learned trial Judge having misdirected himself in failing to invite the parties to review its content in chambers.
d. Whether the judgment of the Court ought not to be stayed by way of an injunction restraining the Appellants from deriving any benefit from the judgment, the enforcement of which is likely to destabilize the political and economic stability of the Niger Delta, pending the determination of the appeal against the judgment?

O. Adekoya SAN who filed the written address of the Respondents, adopted the issues identified by the Applicants and proffered in a manner characteristics of her, detailed arguments in response to the issues. Learned silk

also went ahead to identify a fifth issue – Whether in the circumstances of this case, this Honourable Court should grant the reliefs sought in the application and also proffered arguments on it.

ambit of this application. For instance, paragraph 18 of the counter-affidavit, following the deposition in the affidavit in support of the application, is on national security, issues that are to be decided at the appeal stage not now. In other words, it is at the appellate stage, that this Court would decide on whether the letters and the cases under reference, disclose in fact, national security or not. Also paragraphs 21 and 24 of the counter-affidavit is a catalogue of what the Respondents have committed in terms of resources to develop and maintain the area in dispute, to show that they have fulfilled their obligations to be entitled to the renewal of the Oil Mining Lease 11. Again this is the issue that would be decided in the appeal, not at this stage. I believe that a number of issues raised in the counter-affidavit, should await the hearing of the appeal. Some of them can be raised by way of Preliminary Objection to grounds of appeal, if the application is granted.

Both parties in this application, have, in their addresses also, gone beyond bounds, and are trying to draw us into deciding substantive issues of the appeal, at this stage. We will

not toe that line. We shall limit our consideration to the germane issues necessary, for the determination of this application. All depositions in the affidavits or arguments in the written addresses that tend to engage us in deciding substantial issues of the appeal would therefore not be considered in that vein.

ISSUE 1
Whether leave ought to be granted to raise a ground of appeal that the lower Court lacks jurisdiction, the Plaintiff having failed to satisfy a precondition (leave to seek Judicial Review) to institute the suit as provided in Order 34 Rule 3 of the Federal High Court Civil Procedure Rules 2019.

Learned counsel for the Applicants submitted in the written address, that a ground of appeal must be raised from the proceedings of the Court whose decision is being challenged. Therefore, to raise a fresh issue not canvassed at the lower Court, leave is required, he argued. See AKPENE VS. BARCLAYS BANK OF NIGERIA LTD. (1977) 1 SC. 47 AND AGNES EJIOFODOMI VS. H.C. OKONKWO (1982) 11 S.C. 74 AT 96-98. However, he argued, where substantial points of law are involved and in order to obviate miscarriage of justice, there is an exception –

ADIO & ANOR VS THE STATE (1986) NWLR (PT. 24) AT 587. Further, that where the new issue borders on jurisdiction, no leave is required – GAJI VS. PAYE (2003) 8 NWLR (PT. 823) AT 599 AND OLOBA VS. AKEREJA (1988) 3 NWLR (PT. 84) 508. Counsel submitted that the prayer seeking leave to raise fresh jurisdictional grounds of appeal is only out of abundance of caution – EKITI L.G. A. VS. AJE PRINTING (NIG) LTD. (2009) 4 NWLR (PT. 1131) AT 323 AND ELUGBE VS. OMOKHAFE (2004) 18 NWLR (PT.905) 319. Counsel argued that the reliefs sought by the Respondents as Plaintiffs at the trial Federal High Court, were to compel a public officer, the Minister of Petroleum Resources in the discharge of his duty, to issue a licence in favour of the Respondent, and should have been by way of a judicial review, not Originating Summons. That this error is fundamental to the substantive jurisdiction of the Court, that it can even be raised suo motu by the Court.

In a response, learned senior counsel for the Respondents inadvertently submitted at paragraph 5, page 3 of the Written address, that “Depositions in the counter-affidavit offend the provisions of the Evidence Act and should

be struck out. However at paragraph 5.1, learned senior counsel pointed out that paragraphs 10, 11, 19, 21, 22, 31, 40, 41 and 42 of the Applicants’ Affidavit, contain prayers, legal arguments, opinions and conclusions and not facts, thus offending Section 115(1) and (2) of the Evidence Act 2011. The cases of A.G. ANAMBRA STATE VS. A.G. FEDERATION & 35 ORS (2005) 9 NWLR (PT. 931) 572; BAMAIYI VS. STATE (2001) 8 NWLR (PT. 715) 270 AT 289 AND SAIDU AHMED VS. CENTRAL BANK OF NIGERIA (2013) LPELR-20744 SC, were relied upon, with a prayer to strike out the said paragraphs.

The Applicants in the Reply on points of law, disagreed and submitted that the said paragraphs are facts which would prove or disprove a fact in issue and have only demonstrated the exceptional circumstances why the application should be granted.

I have looked at the said paragraphs. Paragraph 10 deposes that a pre-action notice was not given and the action was not commenced within three months of the alleged failure to exercise a public duty. These are facts, not arguments or conclusions. It is not offensive. Paragraph 11 is a statement that a relief not sought, was granted.

It is not a legal argument. Whether it is true or not is another matter. Paragraph 19 is a deposition of what the judgment and Ruling of the trial Court stated. There is no offence here. Paragraph 21 is a deposition of what the applicant is aware of. It is not offensive. Paragraph 22 is a deposition of what a letter dated 29th January, 2018, contains. So also paragraph 31. Paragraphs 40, 41 and 42 are as submitted by learned counsel for the Applicants, depositions of facts which disclose exceptional circumstances that would warrant the grant of the application. I therefore do not find merit in the objection to the said paragraphs and I sustain them.

On the merit of the issue, learned senior counsel submitted that the proposed fresh ground of appeal, does not raise any jurisdictional issue, because it is not a challenge to the right of the trial Court to exercise its powers in the class of matters that includes the Respondent’s case or to exercise power in respect of the Respondent’s claim. If anything, only procedural issue was raised, not one that touches on the substantive jurisdiction of the trial Court, he argued. He placed reliance in

HERITAGE BANK LTD. VS. BENTWORTH FIN. (NIG.) LTD. (2018) 9 NWLR (PT. 1625) 420 AT 434 and submitted that the issue of procedural jurisdiction can be waived. Since ground 1 did not raise a jurisdictional issue, it is a fresh issue and the Applicants must obtain leave to raise it. He argued that the Applicants have not made out a case for the grant of the leave, as the issue was not pleaded, does not involve substantial points of law and further evidence would be required – MALAMI & ANOR VS. OHIKHUARE & ORS (2017) LPELR – 42580 (SC).

Now, learned senior counsel for the Respondent has argued that the proposed ground 1 of the appeal, is not a challenge to the power of the trial Court to adjudicate on the matter and to grant the reliefs sought, as contained in paragraph 6.7 of the Written address. In my view, what is fundamental in this issue, is whether the suit was instituted and initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341. There is no issue between the parties as to whether the Court possesses the requisite jurisdiction to entertain the suit as per

its subject or to grant the prayers. The issue in contention is initiation by due process of law. The Applicants say there was no initiation by due process of law. The Respondent says there was initiation by due process. This clearly raises and is an issue of jurisdiction, contrary to the stand of the Respondent. It is trite, that issue of jurisdiction is fundamental and can be taken up at any stage in the journey of a case, even at the Supreme Court for the first time and without leave. In MOSES VS. STATE (2006) 11 NWLR (PT. 992) 458 AT 503, the Supreme Court held that “…an appeal Court will not ordinarily entertain issues that are fresh and not brought and decided before a lower Court, without the leave of the Court having been had and obtained … the only exceptions are where the issue of jurisdiction is raised as a fresh point, leave is not necessary.” The Applicants here therefore, have an unfettered right to raise it, even without leave. That they are seeking leave to do so, is only abundante cautela. See also OBIAKOR & ANOR VS. THE STATE (2002) 10 NWLR (PT.776) 612 AT 626; FCDA VS. EZINKWO (2007) WRN (VOL.18) 158; AND

APC VS. GEORGE NDUUL & ORS (2017) LPELR-42415 (SC). So even if the Applicants had raised the issue orally, we would still have heard them, in order to determine same. As this application is not oral, it is imperative to hear parties on it by hearing arguments in order to resolve same. The hearing of course would be after the leave is granted which is not necessary anyway.

Furthermore, it is only when the issue of jurisdiction raised is argued on appeal, that this Court would determine whether it is an issue of substantive jurisdiction or one of procedural jurisdiction which could be waived. The case of HERITAGE BANK VS. BENTWORTH (SUPRA) was decided at the appellate stage, not at a point of seeking leave to raise it, as is the position now before us. Issue of jurisdiction is a red flag for the Courts to be cautious so that precious judicial time would not be wasted. Issue 1 is therefore resolved in favour of the appellants.

ISSUE NO. 2
Whether leave ought to be granted to raise a ground of appeal that the cause of action is extinct, not having been commenced within three months from the date the cause of action accrued as stipulated in Order 34 Rule 4 of the Federal High Court Civil Procedure Rules 2019 for actions in connection with Judicial Review.

This issue is also clearly tied to issue No. 1 as it is a matter of whether the action at the trial Court had been initiated by due process or not and time lapse, thus an issue of jurisdiction. The same principles applicable in issue No. 1, are also applicable here i.e. that we ought to allow the Applicant to canvass same. Both sides have gone into the merit of the issue, in their argument. We refuse to be seduced at this stage, to make pronouncements on the substantive issues on appeal. Both parties should keep their gun powder dry and make their cases at the appropriate stage – the appeal – not this interlocutory stage. We discountenance their arguments on the merit of the appeal. Issue No. 2 is resolved in favour of the Applicants and against the Respondents.

ISSUE NO 3.
Whether this Court will admit fresh evidence

of a special nature having a bearing on national security, the learned trial Judge having misdirected himself in failing to invite the parties to review its content in chambers.

This issue has to do with evidence as per Exhibit MPR4 at the trial Court, which was rejected. Counsel for the Applicants has argued that it has to do with national security. It is not for this Court at this stage, to determine whether the trial Judge was right or wrong in rejecting the evidence; nor to evaluate the issue of national security. They are to be taken at the appellate stage if the prayer is granted. We shall therefore refrain from delving into the substantial issues in the appeal.

Learned counsel for the Applicants placed reliance on COUNCIL OF CIVIL SERVICE UNIONS VS. MINISTER FOR CIVIL SERVICE (1984) UKHL 9: (1984) 3 ALL ER 935 AND Section 243 of the Evidence Act on the need to prove that the interest of national security infact exists. Learned counsel referred to Order 1 Rule 20 (3) of the Court of Appeal Rules on the issue of admitting fresh evidence (sic). He then drew a distinction between admitting fresh evidence per se, and evidence of national

security. He referred to Section 243 of the Evidence Act and the cases of ANURADHA BHASIN VS. UNION OF INDIA (2020) SCC ONLINE SC 25; COUNCIL OF CIVIL SERVICE UNIONS VS. MINISTER FOR CIVIL SERVICE (SUPRA) AND A.G. FEDERATION VS. MANDARA (1983) 1 NCR 155, to show that there is a special procedure for admitting evidence of national security. That is why he argued, that the evidence on national security was not available to the Applicants but was with other relevant security agencies, whose duty it is, to decide what to make available to the public and so the Applicants could not have obtained the evidence sought to be admitted now, with reasonable diligence. Further, if the evidence is admitted, it will have an important effect on the whole case. On the evidence being apparently credible, capable of being believed, not necessarily incontrovertible, counsel submitted that the evidence will be credible, incontrovertible and would reveal the unsavoury activities in Niger Delta and some of the measures taken by the Federal Government to contain the situation.

Reacting, learned senior counsel for the Respondents relied on the case of

ASABORO VS. ARUWAJI & ANOR (1974) 4 SC 119 AT 123 – 125, which spelt out the conditions to be satisfied for the grant of leave to introduce additional evidence on appeal, and submitted that the Applicants have not satisfied those conditions. On the condition that evidence sought to be adduced could not have been obtained with reasonable diligence at the trial, learned senior counsel enumerated “some of the evidence which the Applicants now seek to rely on”. Counsel submitted that “some specific documents forming part of the Exhibits to the Applicants’ affidavits, were actually addressed to, or copied to the Nigerian National Petroleum Corporation (NNPC) which shares office premises with, and is under the supervision of the Applicants”. So, he argued, that the documents were in existence and in the possession of the Applicants and could have been made available, but were not. On the credibility of the evidence sought to be adduced, learned senior counsel submitted that the evidence is not credible and would not have an important influence on the result of the case, because it has no bearing on the interpretation of the rights conferred by statute on the Respondents, which is

the question placed before the trial Court, (not “this Honourable Court” as submitted); does not relate to OM 11, the subject matter of the suit, and is not relevant for the determination of the Respondent’s legal entitlement to a renewal, since OML 25 has been renewed. He referred to U.B.A PLC. VS. BTL. INDUSTRIES LTD. (2005) 10 NWLR (PT.933) 356 AT 370 – 371 AND 350 – 371. He urged us to reject the prayer for leave to adduce fresh evidence at the appeal.

There have to be special grounds before the Court will permit or grant leave to an Applicant to adduce fresh evidence on appeal.
In ROTIMI AMAECHI VS. INEC (2008) LPELR – 446 (SC), the Supreme Court per Oguntade JSC, held that “In civil cases, the Court will permit fresh evidence in furtherance of justice under the following circumstances: (i) Where the evidence sought to be adduced is such as could not have been obtained with reasonable care and diligence for use at the trial. (ii) Where the fresh evidence is such that if admitted would have an important, but not necessarily crucial, effect on the whole case. (iii) Where the evidence sought to be tendered on appeal in such as is apparently

credible in the sense that it is capable of being believed. It need not necessarily be incontrovertible…” See also ASABORO VS. ARUWAJI (SUPRA) which shows that at least one of the recognized principles of law should be satisfied.

On the condition that the evidence sought to be adduced could not have been, with reasonable diligence, obtained for use at the trial, learned senior counsel for the Respondents submitted that “some specific documents which form part of Exhibits to the Applicant’s Affidavits were actually addressed to, or copied to NNPC which shares office premises with, and is under the supervision, of the Applicants, and departments of the Applicants.” Even if that is the position, that is not evidence that NNPC made those documents available to the applicants. Furthermore, if it is only “some specific documents” that were made available, what about the other documents? There are supposed to be other documents that cannot be in the public domain due to their sensitive nature, and could only be made available to Court in Chambers for it to see that they exist. Learned counsel for the applicants has submitted that some of the sensitive

evidence was with the security agencies and were not available to the applicants at the time of trial. Further, that it was only later, that the Honourable Attorney-General got hold of same. There are depositions in paragraphs 19, 22, 24, 25, 27 and 31 that speak of security issues concerning the nation. I am therefore in agreement with the applicants, that the documents sought to be tendered were not available at the time of the trial and they pertain to the security of the country.

On whether the evidence sought to be adduced would have an important effect on the whole case, it is my view that matters of security for the nation, would always have an important role to play in the social and economic aspect of the nation, including litigations associated with same. Whether the evidence sought to be tendered would alter the case is not the issue. The issue is whether it would have an important effect on the whole case and I hold that it would.

On the credibility of the evidence sought to be tendered, it is clear to me that considering the source it is emanating from and the contents, some of which have been reported in Newspapers regarding unrest in

the area, the evidence is apparently credible. It is however left for the Court at the appropriate time, to conclusively say whether it is credible or not. We are only concerned with appearance for now, a prima facie issue. I hold that the applicants have satisfied the principles required to be granted leave to adduce fresh evidence on appeal.

It is important to also state that the evidence sought to be tendered, is said to involve sensitive security issues. Where such is the case, it is removed from the normal requirements of seeking to tender fresh evidence, and hearing it in public. In A.G. FEDERATION VS. MANDARA (SUPRA), the Supreme Court held that it would hear the case in camera, “in the interest of the security of the nation which transcends every other interest…” To further buttress the point that evidence of national security cannot be handled in the same manner as other evidence not involving national security, the case of COUNCIL OF CIVIL SERVICE UNIONS VS. MINISTER FOR CIVIL SERVICE (SUPRA) is apt where the issue arose as to whether procedural propriety must give way to national security. The Court held that national security

must take precedence over procedural propriety – pages 412 – 413.
The learned trial Judge had rejected and excluded Exhibit MPR4, a letter that is supposed to indicate the existence of evidence with national security implication. The pieces of evidence are the Exhibit A6 now in this application. The relief sought for at the trial Court, is for the interpretation of the law as to whether the 1st Applicant has discretion or not, to renew the licence. The Applicants raised issues of national security which they say, should be taken into consideration before the renewal. The Respondent argues to the contrary and that there are no national security issues. This is a substantial issue as there are differences of opinion as to what the law is and means. There is therefore the need for fresh evidence to be led for a due determination of the law. See MAINSTREET BANK REGISTRARS LTD. VS. PROMISE (2016) LPELR – 40572 (CA).
This Court is always desirous of deciding appeals on the merit and we do not shut out parties. We encourage parties to lay all their cards on the table for determination. This issue is therefore resolved in favour of the applicants and against the Respondent.

ISSUE NO 4
WHETHER THE JUDGMENT OF THE COURT OUGHT TO BE STAYED BY WAY OF AN INJUNCTION RESTRAINING THE APPELLANTS FROM DERIVING ANY BENEFIT FROM THE JUDGMENT, THE ENFORCEMENT OF WHICH IS LIKELY TO DESTABILISE THE POLITICAL AND ECONOMIC STABILITY OF THE NIGER DELTA, PENDING THE DETERMINATION OF APPEAL AGAINST THE JUDGMENT.

Learned counsel for the applicants submitted that the prayer for stay of the judgment of the trial Court, is to ensure the continuous political and economic stability of the Niger Delta region of Nigeria. He referred to OKAFOR VS. NNAIFE (1987) 4 NWLR (PT.64) 12; VASWANI TRADING CO. VS. SAVALAKH; AKEEM VS. UNIVERSITY OF IBADAN (2001) 15 NWLR (PT. 736) 352 AND ABDULKADIR VS. ALI (1999) 1 NWLR (PT. 588), on the conditions to be established for an Order of stay of execution or injunction pending appeal.

On question of jurisdiction, learned counsel for the Appellants submitted that there are two grounds of appeal on jurisdiction which are competent and an injunction ought to be granted upon a notice of appeal that raise genuine question of jurisdiction – MARTINS VS. NICANNAR FOOD CO. LTD. (1988) 2

NWLR (PT. 74) 75 AND ADEFULU VS. OYESILE & ORS. (1989) 5 NWLR (PT. 122) 377. Counsel submitted that the appeal also raises substantial question of law as to whether the Court has jurisdiction to direct a renewal of the subject matter and that this is a novel point as all the issues hitherto, were on revocation. Either side may have a decision on his side. A stay should therefore be granted – JOSIEN HOLDINGS LTD. VS. LORNAMEAD LTD. (1995) 1 NWLR (PT. 371) 254. Counsel also argued that the res, which is the right of the 1st Applicant to exercise a discretion to renew the licence, should be presumed by maintaining the status quo – DANTATA SAWOE CONSTRUCTION VS. EGBE (1993) 4 NWLR (PT. 287) 335 AT 345.

On losses to be incurred if the stay is granted, learned counsel argued that although the Respondent is likely to suffer huge economic damage if the licence is not renewed and issued immediately, the loss is quantifiable in damages. That this loss, cannot be equated with the insecurity in the area that may cause loss of lives and affect the sovereignty of Nigeria which cannot be compensated in monetary terms.

Counsel also submitted that special

circumstances exist such that greater hardship and inconvenience leading to substantial injustice would afflict the applicants, if the stay is not granted. That a situation of helplessness, irreversible, will be visited on the applicants if the stay is not granted and they eventually succeed in the appeal – AJOMALE VS. YARDUAT (NO.2) (1991) 5 NWLR (PT. 191) 266 AT 291. So the balance of convenience is on the side of the applicants he argued – KOTOYE VS. CBN (1989) 1 NWLR (PT. 98) 419 AND BUHARI VS. OBASANJO & ORS. (2003) 17 NWLR (PT. 850) 587 AT 657-658. He urged us to grant an Order staying execution of the judgment delivered on August 23, 2019, and restraining the Respondents from taking any steps in executing the judgment, pending the determination of the appeal.

For the Respondent, learned senior counsel submitted that refusing the application, would not destablise the political and economic stability of the Niger Delta, and then placed reliance on SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD. VS. AMADI & ORS. (2011) LPELR-3204 (SC) on the factors to guide a Court on grant for a stay of execution or injunction, pending appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On strong and arguable grounds of appeal, learned senior counsel argued that the appeal was properly commenced by Originating Summons and so the appeal does not raise any substantial or recondite questions of law for determination – ADEFULU VS. OKULAJA & ORS (1993) 2 NWLR (PT. 274) 227 AT 230. That the issue of national security raised in ground 3 of the Notice of Appeal, was only brought up by the appellants after the commencement of the action and no evidence was led to prove the national security concerns. On ground 4, learned senior counsel argued that the letter of 5th July, 2019, refusing to renew the subject matter is a document procured during the pendency of litigation and is therefore inadmissible – ANAGBADO VS. FARUK (2018) LPELR – 44909 (SC). This submission as well as those in respect of grounds 5, 6, 7, 8 and 9 are actually on the merit of the appeal to be addressed during the appeal. We decline to make pronouncements over them at this stage.

Learned senior counsel has also submitted, that it is not enough to show that a notice of appeal discloses or raises recondite points of law. The applicants must also show that refusing the

application would cause irreparable damage to them – ATAYI FARMS LTD. VS. NACB LTD. (2003) 4 NWLR (PT. 810) 427 AND ENERGO NIG. LTD. VS. JAMES OKPE (2010) LPELR- 4112 (CA), counsel argued that the applicants have not established this.

On the res, learned senior counsel argued that it is infact, the Respondent’s right to the renewal of OML 11 and so the res, if the application is granted, will not be completely destroyed – LASODE VS. OKOROJI & ANOR (2008) LPELR – 8492 (CA). Learned senior counsel referred to NDABA (NIG.) LTD. VS. UBN PLC. (2007) 9 NWLR (PT. 1040) 439 AT 473 on special circumstances for stay of execution and argued that the applicants have failed to establish them.

On balance of convenience, learned senior counsel referred to the decision in KOTOYE VS. CBN (SUPRA) relied upon by the Applicants, to submit that it is in favour of the Respondent, not the Applicants. Counsel referred to the ripple effects of loss of jobs and of livelihood.

On the issue of foisting a situation of helplessness on the Court of Appeal, learned senior counsel argued that if the application is refused and the applicants succeed in the appeal,

the deed is not accomplished as it can be changed. There is therefore no situation of helplessness foisted on the Court of Appeal, counsel argued. Counsel also argued that the Applicants have not only failed to show that damages would adequately compensate the Respondent if the application is granted, and the Respondent succeeds on appeal, they have not made any undertaking as to damages in favour of the Respondent. Counsel urged us to refuse the application.

Learned counsel for the Respondents had also identified a fifth issue for determination to be:
Whether in the circumstances of this case, this Honourable Court should grant the reliefs sought in the application.

This issue raises what has been the situation between the parties in the written addresses they filed. It does not add anything outside the issues to be determined in the application. The Respondent has maintained the position in the address, that this Court should refuse the reliefs sought for in the application. I therefore do not find it necessary to go into it, since its substance has already been captured in the addresses of the parties. It is struck out.

The parties have already enumerated the conditions to be satisfied for an Order of a stay of execution and I do not find it necessary to re-state them. As stated on the on set, parties have gone into the merit of the appeal. We shall not follow them in that path.

The fact that the Respondent keeps deposing in the counter-affidavit that there are misleading impressions and false depositions in the affidavit in support of the application, shows that there are triable issues seriously contested, which can only be determined at the hearing of the appeal, not at this stage. As pointed out by the learned counsel for the applicants, one of the issues to be determined is whether the Court has the jurisdiction to compel the applicants to renew the licence of OML 11 for the Respondents. The previous actions were on revocation of the licences, not renewal. There are therefore substantial and strong arguable grounds on jurisdiction which are novel and as such can be determined in favour of one or the other. The area is dicey.

On irreparable damage, I agree that there is a consideration of the sovereignty of the country and possibility of national security being affected

which may lead to such damages as would be irreparable, apart from the rippling effects on other Oil Mining leases. When the possibility of a breakdown of law and order is raised, there is the consideration that the extent of the resultant damages can never be anticipated. Wisdom would therefore dictate caution, in setting off the events that may lead to breakdown of law and order.

The Respondent has made a copious catalogue of losses that may ensue, if the application for stay is granted, especially on the part of Nigerians and those who would lose employment and means of livelihood. The question that crosses my mind is then, what happens if the applicants succeed on appeal and the renewal is not sanctioned? There would be losses to the country and permanent losses to the Respondent. That is a worse scenario, and is not connected with the grant of the application. On the other hand, if the application is not granted and the appeal succeeds, the deed would have been sealed and there would be no going back to the status quo, in terms of the sovereign issue which is fundamental and the breakdown of law and order due to the incessant and perilous state of

affairs in the region concerning the activities of the Respondent in the area where the OML 11 is situated, according to the depositions of the applicants. Again, if the application is granted and the Respondent succeeds on appeal, then whatever monetary losses it suffers, would be temporary and it could be compensated. Those who lost their jobs would have done so temporarily and they could be re-engaged. The balance is therefore on the side of the Applicants, especially as the possibility of complete helplessness to be foisted on the Court of Appeal, rendering the appeal nugatory, is real.

In considering all the requirements to be established to warrant the grant of the application, I am of the view that the applicants have discharged the onus on them, and they succeed. In addition, we cannot take lightly, security implications which have been raised, even if not conclusively established at this stage (which can only be established at the hearing of the appeal), and the issue of sovereignty also raised.

In the result, this application succeeds and it is granted. The Applicants are granted leave to introduce and argue in the Appeal No.

CA/A/824/2019, two grounds of appeal Nos 1 and 2 as contained in the Proposed Notice of Appeal attached herein as Exhibit A3. The Appellants/Applicants are also given leave to introduce fresh evidence of a special nature in relation to National Security indicated to the trial Judge. An Order is hereby made, staying the execution and/or compliance with the Judgment of the trial Court dated the 23rd day of August, 2019 in Suit No. FHC/ABJ/CS/524/2019, particularly, the portion of the judgment which granted an Order compelling the defendants now applicants, to grant the application for the renewal of OML 11 in favour of the Plaintiff now Respondent, with the order that there shall be no reduction in the size of the OML 11 as being contemplated by the defendants, now applicants, pending the determination of the appeal now pending in this Court (Exhibit A3).

This Court is empowered to accelerate the hearing of appeals in the interest of justice. Counsel are also required to ensure speedy hearing of appeals. In view of this, and the circumstances surrounding all issues, we do not find it necessary to extract any undertaking as to damages at this stage.

The parties, if they co-operate with each other, can have the appeal heard and determined expeditiously.
No Order as to costs.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the Ruling just delivered by my learned brother, Abubakar Datti Yahaya, JCA.

I am in complete agreement with the reasoning and his conclusion which I adopt as mine. I accordingly grant the application of the two Appellants/Applicants and I abide by the orders as made in the lead Ruling of my learned brother.

MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading in advance the Ruling just delivered by my learned brother, ABUBAKAR DATTI YAHAYA, JCA.

I agree with the reasoning and conclusion reached therein, and adopt same as mine.

I have therefore no hesitation in granting the application as prayed, the applicants are granted leave to introduce and argue two grounds of appeal as numbers 1 and 2 contained in the proposed Notice of Appeal attached as Exhibit A3.

The Applicants are also given leave to introduce fresh evidence of special nature in relation to national security indicated to the trial Court.

The judgment of the trial Court of 23rd August, 2019 in FHC/ABJ/CS/524/2019 is hereby stayed.
No order as to costs.

Appearances:

OSARO EGHOBAMIEN SAN, with him, PIUS OWHOAVWODUA and KAYODE ONDE For Appellant(s)

MRS. OLUFUNKE ADEKOYA, SAN, with him, CHRISTABLE NDEOKWELU and RACHAEL NSEFIC-EYO For Respondent(s)

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