The Nation Newspaper

Tag: Court

  • Nyako’s impeachment: APC will go to court, says Odigie-Oyegun

    Nyako’s impeachment: APC will go to court, says Odigie-Oyegun

    National Chairman of the All Progressives Congress (APC), Chief John Odigie-Oyegun, yesterday said the party would challenge the impeachment of Adamawa State Governor Murtala Nyako in court.

    Nyako himself has vowed to head for the court.

    Odigie-Oyegun said: “I don’t know how much I can say   to that your question because I think if we are not already in court, I think we should be.

    “But it is clear that there was no due process. Even as loose as the provisions are, they did not have the patience and decency to abide by them.”

    Asked to be specific, Oyegun said: “For example, just to take the basic one:  the law provides that the governor must be personally served. Was he served personally? “Secondly, there was a subsisting court order, which should have stopped the impeachment process until the governor’s petition was disposed off. But they went ahead. “There are a lot more other but when our lawyers go to court, you will see that. Concerning allegation of gross misconduct, it was the most fair- less impeachment procedure on record up to date.

    “I have no doubt in my mind that any properly constituted legal tribunal is going to reverse the process.

    We are going to vigorously challenge what has happened in Adamawa State.”

    Oyegun was however taken to task by reporters on why APC had to blame President Goodluck Jonathan for the impeachment of Nyako after the former governor publicly absolved the President of complicity.

    Oyegun insisted that there was no contradiction between the party’s position and Nyako’s purported statement.

    He added: “There is no contradiction there. The governor did what he had to do. But we will agree as a party what to do when the need arises for us to do it. There is no contradiction, the governor is a governor, the party is a party. That is a bit different.

    “On the loose provision of the constitution, our legal luminaries and representatives will look into it.

    “In this nation, you know what happens, when the weakness of the law favours those who have the hammer in their hand, they use it to the fullest possible effect.”

  • Cabotage levies: NIMASA, NLNG settle out of court

    FRESH fact emerged at the weekend that the Nigerian Maritime Administration and Safety Agency (NIMASA) had withdrew its lawsuit against the Nigeria Liquified and Natural Gas (NLNG) Limited.

    The Attorney General of the Federation and Minister for Justice, Mr. Mohammed Adoke (SAN) was reported to have prevailed on the NIMASA to withdraw the suit.

    It would be recalled that NIMASA had taken the management of the NLNG to court following arguments over whether or not the latter ought to pay 2 % cabotage and 3 % freight levies for shipping by Bonny Gas Limited, a subsidiary of NLNG, estimated at over $400million to NIMASA from September 2007 till date.

    The case which had began under Dr. Ade Dosunmu, the erstwhile Director-General of the agency and was further pursued by his predecessor, Temisan Omatseye, has been a hotly debated issue and reportedly led to the abrupt exit of Omatseye who has been on suspension in the last two years, sources said.

    The Nation can authoritatively report that the matter hitherto under Justice Nyako of the Federal High Court, is presently before Justice Rita Ofili-Ajumogobia of the Federal High Court, Lagos, and initially billed for further hearing in February will not be heard as both parties are returning to the negotiation table anytime soon.

    The Nation reliably gathered from informed sources that the AGF who seemed not comfortable with the turn of events, had issued a directive to the management of NIMASA to have the case withdrawn without further delay in order to settle out of court.

    Sources further told The Nation that Adoke had made frantic moves to have the matter withdrawn in court by the NIMASA management under the former DG, Omatseye, since 2010 but could not have his way because the then management insisted that he had to follow the due process.

    It was learnt that the minister may have arm-twisted the current management into doing his bidding.

    However when our correspondent got across to the Agency through its Head of Media, Hajia Lami Tumaka, she insisted that the matter was still pending in court.

    According to her, “The case is still in court and as such I cannot comment and as to whether NIMASA has settled out of court, it is only the Executive management board that can have a position on that. The case, I understand is coming up for further hearing in February.”

    Speaking with our correspondent yesterday, Professor Itse Sagay (SAN), the counsel representing NIMASA in the case confided in The Nation that both parties had taken the option of an out-of-court-settlement.

    Probed further, the professor of constitutional law reiterated that the case had been withdrawn but emphasised that due to client-confidentiality he would not be persuaded to give further details on the matter.

    Confirming this development, Dr. Kudo Eresia-Eke, Acting General Manager, External Relations, Nigeria LNG Limited, in an exclusive interview with The Nation yesterday said, it was true that NIMASA had indeed withdrew the case from the law court.

    While giving insight on what led to the litigation between his organisation and NIMASA, Eresia-Eke said: “Basically not much has transpired between the NLNG and NIMASA. As you know, what happened was that there were some levies and we argued that those levies were not meant for us because of our Act and they (NIMASA) went ahead to court.”

    Pressed further, he said: “I think later on, they decided to suspend the whole thing. I believed they did so because they had good intentions and we have no problem with that.”

    Expatiating, he said: “My understanding is that they have withdrawn the case and we are going to have a discussion. The negotiations we are going to have would be subject to how they approach us and what the issues might be and we can only respond based on the fact and information we have on ground. It is not what you can conjecture.”

    On insinuations that the AGF may have influenced the outcome of the matter, the NLNG spokesman said the decision to withdraw the case in the instance of the minister was well-intended and may have been taken to actualise peaceful settlement.

    The litigation between the NLNG and NIMASA had been ongoing in the past few years. The Nation gathered that the NLNG management under the former Managing Director, Chima Ibeneche, had asked NIMASA to go to court to contest the NLNG Act, which granted the NLNG and its contractors a tax holiday and several other incentives.

    However, following discussions with NIMASA and NLNG, both parties had agreed that the latter should carry out some projects in lieu of payment.

    The communiqué issued at the end of the parley in 2009 tagged: “Proposal on Projects that will Assist the Development of the Safety Administration in Nigeria”, addressed 14 critical areas of need namely: purchase of two number surveillance helicopters at the cost of $18.0million; four number pollution monitoring, control boats at $20.0m; five number defender, bullet proof patrol boats at $30.90m; two number offshore patrol boats with fire fighting capability at $30.0m; funding of PICOMMS projects at $26.0m to mention but a few.

    But The Nation gathered that the meeting called at the instance of NIMASA to ratify the proposal ended in a deadlock.

  • N10b suit: Court dismisses application against Braithwaite

    N10b suit: Court dismisses application against Braithwaite

    Justice Doris Okuwobi of a Lagos High  Court sitting in Ikeja has dismissed the application filed by Standard Chartered Bank  against the N10 billion suit brought by renowned lawyer and elder statesman, Dr. Tunji Braithwaite.

    Braithwaite sued the bank for erecting a high-rise structure with a multi-level car park close to his residence on Victoria Island, Lagos.

    In her ruling Justice Okuwobi,  dismissed the application for lack of merit.

    The issues raised by the claimant did not hamper the case, she said.

    She said: ”I do not foresee that the defendant/applicant will be denied the right to plead his own case in full and that he will be denied the right to fair hearing. For this reason, this application cannot sail through. Consequently, it is accordingly hereby dismissed.”

    The bank prayed the court to strike out some paragraphs of the claimant’s reply to the bank’s amended statement of defence.

    The claimant amended his claims, prompting the defence to do the same. Expectedly, the claimant exercising his right of reply to the respondent’s amended statement of defence, raised vital issues in support of its position.

    In its response, the defendants urged the court  to strike out certain paragraphs it considered inimical to it, and  argued that new facts outside the issue in contention were introduced by the claimant.

    Earlier, Dr Braithwaite had urged the court to fast-track the proceedings, adding that the defendant is capitalising on the delay to continue to dissipate the res, as they have continued building up to the 13th floor.

    But the defendants through its  counsel, Adeniyi Adegbonmire in his submission, denied  claims that it  was delaying trial.

    Adegbomire said that he had already started cross examining the witness before the plaintiff sought for the amendment of his statement of claims.

    He argued that it is the right of the bank to build, added that the matter had delayed so far because the plaintiff decided to seek injunctive reliefs rather than pursuing the trial.

    He said the motion on notice filed on Friday, May 8, was predicated on the fact that the plaintiff decided to introduce new facts that should have been in its statement of claims in the reply to their amended statement of defence.

    He prayed the court to strike out the paragraphs containing such averments and hold that the plaintiff includes them in their amended statement of claims.

    Opposing the motion, counsel to the plaintiff, Razaq Okesiji told court that the contents of the claimant’s reply to the defence statement and witness statement on oath are relevant to the subject matter of the suit and necessitated by the averments in the amended statement of the defence as well as the documents introduced by the defence, which were not in existence at the time of filing the amended statement of claims.

    He further said the claimant had neither departed, contradicted nor added new item to its claim, which should prejudice the defendant.

    He cited several Supreme Court authorities, Okesiji that the reply was within the rights of the claimant and that Order 15, Rule 19 of the High Court Rules allows new pleadings to come up in a reply.

    He urged the court to dismiss the defendant application.

    He argued that the paragraphs of the claimant’s reply to amended statement of defence and corresponding paragraphs of the statement on oath which the defendant seeks to be struck out relate to the Environmental Impact Assessment Procedure in Nigeria, and the failure of the defendant to compete therewith, which has always been the kernel of the claimant’s case right from the commencement of the suit.

    Braithwaite is seeking an order declaring as illegal, the erection of a 15-storey commercial building and multi-level car park by the bank in an otherwise residential area in Victoria Island, Lagos.

    The claimant is also uncomfortable with the bank’s installation of giant industrial generators directly opposite his house with the concomitant fumes and noise shattering their air and serenity.

    In view of this, Braithwaite is praying the court to grant him N10billion in damages and a demolition of the building.

  • Cabotage levies: NIMASA, NLNG settle out of court

    FRESH fact emerged at the weekend that the Nigerian Maritime Administration and Safety Agency (NIMASA) had withdrew its lawsuit against the Nigeria Liquified and Natural Gas (NLNG) Limited.

    The Attorney General of the Federation and Minister for Justice, Mr. Mohammed Adoke (SAN) was reported to have prevailed on the NIMASA to withdraw the suit.

    It would be recalled that NIMASA had taken the management of the NLNG to court following arguments over whether or not the latter ought to pay 2 % cabotage and 3 % freight levies for shipping by Bonny Gas Limited, a subsidiary of NLNG, estimated at over $400million to NIMASA from September 2007 till date.

    The case which had began under Dr. Ade Dosunmu, the erstwhile Director-General of the agency and was further pursued by his predecessor, Temisan Omatseye, has been a hotly debated issue and reportedly led to the abrupt exit of Omatseye who has been on suspension in the last two years, sources said.

    The Nation can authoritatively report that the matter hitherto under Justice Nyako of the Federal High Court, is presently before Justice Rita Ofili-Ajumogobia of the Federal High Court, Lagos, and initially billed for further hearing in February will not be heard as both parties are returning to the negotiation table anytime soon.

    The Nation reliably gathered from informed sources that the AGF who seemed not comfortable with the turn of events, had issued a directive to the management of NIMASA to have the case withdrawn without further delay in order to settle out of court.

    Sources further told The Nation that Adoke had made frantic moves to have the matter withdrawn in court by the NIMASA management under the former DG, Omatseye, since 2010 but could not have his way because the then management insisted that he had to follow the due process.

    It was learnt that the minister may have arm-twisted the current management into doing his bidding.

    However when our correspondent got across to the Agency through its Head of Media, Hajia Lami Tumaka, she insisted that the matter was still pending in court.

    According to her, “The case is still in court and as such I cannot comment and as to whether NIMASA has settled out of court, it is only the Executive management board that can have a position on that. The case, I understand is coming up for further hearing in February.”

    Speaking with our correspondent yesterday, Professor Itse Sagay (SAN), the counsel representing NIMASA in the case confided in The Nation that both parties had taken the option of an out-of-court-settlement.

    Probed further, the professor of constitutional law reiterated that the case had been withdrawn but emphasised that due to client-confidentiality he would not be persuaded to give further details on the matter.

    Confirming this development, Dr. Kudo Eresia-Eke, Acting General Manager, External Relations, Nigeria LNG Limited, in an exclusive interview with The Nation yesterday said, it was true that NIMASA had indeed withdrew the case from the law court.

    While giving insight on what led to the litigation between his organisation and NIMASA, Eresia-Eke said: “Basically not much has transpired between the NLNG and NIMASA. As you know, what happened was that there were some levies and we argued that those levies were not meant for us because of our Act and they (NIMASA) went ahead to court.”

    Pressed further, he said: “I think later on, they decided to suspend the whole thing. I believed they did so because they had good intentions and we have no problem with that.”

    Expatiating, he said: “My understanding is that they have withdrawn the case and we are going to have a discussion. The negotiations we are going to have would be subject to how they approach us and what the issues might be and we can only respond based on the fact and information we have on ground. It is not what you can conjecture.”

    On insinuations that the AGF may have influenced the outcome of the matter, the NLNG spokesman said the decision to withdraw the case in the instance of the minister was well-intended and may have been taken to actualise peaceful settlement.

    The litigation between the NLNG and NIMASA had been ongoing in the past few years. The Nation gathered that the NLNG management under the former Managing Director, Chima Ibeneche, had asked NIMASA to go to court to contest the NLNG Act, which granted the NLNG and its contractors a tax holiday and several other incentives.

    However, following discussions with NIMASA and NLNG, both parties had agreed that the latter should carry out some projects in lieu of payment.

    The communiqué issued at the end of the parley in 2009 tagged: “Proposal on Projects that will Assist the Development of the Safety Administration in Nigeria”, addressed 14 critical areas of need namely: purchase of two number surveillance helicopters at the cost of $18.0million; four number pollution monitoring, control boats at $20.0m; five number defender, bullet proof patrol boats at $30.90m; two number offshore patrol boats with fire fighting capability at $30.0m; funding of PICOMMS projects at $26.0m to mention but a few.

    But The Nation gathered that the meeting called at the instance of NIMASA to ratify the proposal ended in a deadlock.

     

  • Court stops SAN from appearing in bank’s suit against Dana Group

    Court stops SAN from appearing in bank’s suit against Dana Group

    The Federal High Court in Lagos disqualified yesterday a Senior Advocate of Nigeria (SAN), Chief Bolaji Ayorinde from representing Dana Group of Companies in a debt suit brought against it by Sterling Bank Plc.

    Justice Chukwujekwu Aneke, in a ruling, also disqualified the law firm of Messrs Bolaji Ayorinde & Co from appearing in the case.

    The judge struck out all the process filed by the firm in the over a debt which Dana Group allegedly owes Sterling.

    The company, through two of its subsidiaries, Dana Drugs Limited and Dana Impex Limited, allegedly applied for various credit facilities from Sterling worth about N2.5billion.

    The facilities were said to have been secured with an All Assets Debenture of Dana Group; a mortgage debenture of Dana Impex; corporate guarantee of Dana Drugs, Dana Motors, Dana Pharmaceuticals, and the personal guarantee of Dana Managing Director/Chief Executive Officer Mr Jacky Hathiramani and Mr Ramesh Hathiramani.

    Following the defendant’s alleged inability to meet its obligations, Sterling Bank appointed Mr Kunle Ogunba (SAN) as the Receiver/Manager over Dana Group and Dana Impex.

    The debenture is said to have provided for the appointment of a receiver/manager by Sterling if Dana is unable to pay the debt upon demand.

    Sterling, through Ogunba, said in its motion on notice that Ayorinde’s firm, now engaged by Dana, had previously represented the Sterling and was engaged in the “upstamping of the enabling deed” which is subject matter of the suit.

    “The firm of Messrs Bolaji Ayonrinde & Co has previously acted and continues to act on behalf of the plaintiff (Sterling) herein…in perfecting some of the security documents subject matter of the ongoing proceedings.

    “The firm of Bolaji Ayorinde & Co by virtue of the subsisting relationship with the plaintiff/applicant is in custody of privileged information which is being deployed on behalf of the defendant to the detriment of the plaintiff/applicant herein,” Sterling said.

    But Ayorinde, in a counter-affidavit, said no privileged or confidential document was given to him, adding that the instruments given to him for “upstamping” were documents which others were privy to.

    The SAN further said court’s rules do not support Sterling Bank’s prayers, and that “there is nothing in any laws or statutes which precludes Messrs B. Ayorinde & Co from acting for the defendant.”

    Besides, the senior lawyer said Sterling, through Ogunba, continued to recognise and deal with him through various correspondences and, therefore, the plaintiff waived its right to challenge Ayorinde’s representation of the defendant.

    He urged the court to dismiss the motion on notice for being “incongruous” and for being “brought in bad faith.”

    However, Justice Aneke agreed with Sterling Bank’s submissions and disqualified Ayorinde and all the processes he filed.

    The judge said he has a duty to avoid the unhealthy scenario of conflict of professional interest which Ayorinde’s continuous presence would cause.

    “It would have been different if the services Ayorinde rendered to Sterling Bank were on a different instrument/document and not that which affect the subject-matter of the suit,” Justice Aneke said.

    Another judge of the court, Justice Mohammed Yunusa had earlier granted a similar application to Sterling Bank in a related suit against Dana Group. He also disqualified Ayorinde from representing the defendant.

    Justice Aneke adjourned further proceedings till July 9.

  • Court urged to void PDP’s zoning policy

    A High Court of the Federal Capital Territory (FCT), Abuja, has been asked to declare unconstitutional the zoning policy of the People’s Democratic Party (PDP).

    The prayer is contained in a suit by a governorship aspirant of the party in Akwa-Ibom State, Leo Ekpenyong, marked: CV/1471/2014.

    The plaintiff’s main contention is to the effect that the policy, contained in the PDP’s Constitution, is not only discriminatory, it negates the constitutional provision for the right of every citizen to contest election without being discriminated against, regardless of his place of birth.

    He stated, in a supporting affidavit, that the suit was informed by a recent publication by the Akwa-Ibom chapter of the party, in The Nation newspaper of April 24, 2014 (at pages 59 and 60), indicating that it has zoned the governorship position to Eket Senatorial District of the state.

    Ekpenyong said he is a member of the PDP, an indigene of Akwa-Ibom State, from Etinan Local Government, in Uyo Senatorial District. He contended that the party, by the publication, which it said formed the communique from its state’s Executive Committee meeting of April 22, was determined to discriminate against him and frustrate him in his aspiration for the governorship position.

    He stated that the party’s indication that its decision to zone the position to Eket Senatorial District did not preclude other aspirants from other districts from pursuing the aspirations, was insufficient to assuage the disadvantage the party’s publication has placed his aspiration in the context of the state’s governorship primary election.

    The plaintiff urged the court to decide whether he or any other aspirant to the governorship position in Akwa-Ibom State could be excluded from contesting the party’s forthcoming primary elections or placed at ant disadvantage on account of his Senatorial District, Local Government or ethnicity.

    He also wants the court to decided whether the resolution of the Akwa-Ibom State chapter of the party, published in The Nation newspaper is not unconstitutional, null and void.

    In resolving the questions, the plaintiff wants the court to declare that he or any aspirant to the governorship position in the state can not be excluded from the primary elections or placed at any disadvantage on account of his Senatorial District, Local Government or ethnicity.

    He also seeks a declaration that the Akwa-Ibom PDP’s resolution, published in the newspaper on April 24 is unconstitutional, null and void.

    Ekpenyong argued that the fact that the zoning policy is contained in the PDP’s constitution, is unhelpful to the position taken by the PDP in Akwa-Ibom because such policy violates the provisions of sections 14(2) (a), 15(2), 42(2), 42 (2) of the country’s Constitution and Section 87 of the Electoral Act.

    He contended that in view of the various constitutional provisions against discriminatory practices by political parties, the PDP in Akwa-Ibom State or any other party “has no choice but to maintain the principle of equality of opportunity for all aspirants regardless of where he comes from in the state.”

    The plaintiff noted that the PDP constitution did not recognise bodies like “Town Hall meetings, the Body of Chapter Chairmen, the Body of Local Government Chairmen/Vice Chairmen,” among others, listed as having endorsed the communique published by the party in Akwa-Ibom.

    When the case came up on May 26, Justice A. S. Umar granted the plaintiff’s application for amendment of the originating summons to enable him include the complete copy of the PDP constitution as exhibit.

    The judge ordered service of all processes on the defendant (the PDP) and adjourned to June 26 for hearing.

  • Court dismisses transporter’s motion

    AN ikeja High Court has dismissed an application challenging its jurisdiction today.

    Chairman of Cross Country Limited Chief Bube Okorodudu for an alleged N82.8 million theft charge.

    Justice Lateef Lawal-Akapo, in his ruling on the preliminary notice of objection filed by the transporter, dismissed it for lack of merit.

    Justice Lateef-Akapo held that the court had the jurisdiction to entertain the matter and that the charge against the defendants was competent.

    The trial judge further held that the Economic and Financial Crimes Commission (EFCC) had the power to prosecute criminal proceedings at the Lagos State High Court with or without a fiat from the state’s attorney-general.

    The trial judge consequently adjourned the matter to June 27, 2014 for their arraignment.

    The defendants are facing an eight-count charge of conspiracy, stealing, forgery and altering.

    The EFCC alleged that they stole the money through the fraudulent sale of 17 units of Volkswagen transporter buses belonging to AG Moeller Limited and Mr Adeloye Olukemi.

    Their counsel, Chief Robert Clarke (SAN) and Chief Ladi Williams (SAN), had argued that the EFCC lacked the power to prosecute them before a state high court.

    They maintained that the EFCC needed to obtain a fiat from the state’s attorney-general before they could prosecute the defendants for the alleged offences.

    Responding, the EFCC counsel, Mr Rotimi Oyedepo, urged the court to dismiss both applications and order the defendants to take their pleas.

    Oyedepo said the Court of Appeal, in the case of Erastus Akingbola and Federal Republic of Nigeria, had held that the EFCC had the power to prosecute cases at state high courts

  • Court dismisses airline’s objection

    The National Industrial Court of Nigeria (NICN) in Lagos has dismissed a preliminary objection by Bellview Airlines Limited challenging its  jurisdiction to hear a suit by the family of a pilot who died in its ill-fated aircraft.

    The late Captain Lambert Imasuen flew the Boeing 737-200 aircraft which crashed on October 22, 2005 in Lisa, Ogun State, killing 117 persons onboard, en route Abuja from Lagos.

    In a ruling, Justice Peter Lifu assumed jurisdiction in the suit. He held that the court will  adjudicate over the case since it is connected with the late Imaseun’s contract of employment.

    The suit was filed in representative capacity by Imuwahen Lenita Imasuen, who is the eldest child and administratrix of the Estate of the late Captain Imaseun.

    Apart from Bellview Arilines, other defendants are Kayode Odukoya, Tunde Yusuf, Gabriel Olowo, Emmanuel Ombu, Abisoye Mohammed, Kola Sobande, Chimara Imediegwu and Alex Iheuwa – all directors of the airline.

    The family, through their lawyer Yusuf Asamah Kadiri of Jackson, Etti & Edu Law firm, claimed that despite several demands, the airline and its directors have failed to pay them their late father’s entitlements eight years after he died in the crash.

  • Man to die by hanging

    A High Court sitting in Aba, Abia State has sentenced a middle aged man identified as John Onuabuchi Isaac to death by hanging.

    The  court presided over by Justice C.O Onyeabor ruled that the accused was going to be tied on the neck until he is certified dead after he was convicted of kidnapping a female victim, Mrs. Uchenna Nwogu for ransom.

    Isaac was on February 21, 2011, in suit No. HUK/14c/2010 arraigned at the High Court Ukwa on a three count charge of conspiracy, armed robbery as he was accused of kidnapping one Mrs. Uchenna Nwogu, a resident of the state.

    An offence the state prosecutor said contravenes Section 3 (a) of Kidnapping and Hostage Taking Law No.10 of Abia State 2009.

    It was gathered that on February 26, 2014 the court had struck out two count charges against him in line with the provisions of Sections 151 to 180 which in compliance with section 333 of the Criminal Procedure Laws of Abia State which states that not more than one charge punishable with death shall be charged in the same information.

    The prosecutor, Greg Chikezie, a deputy director in the legal drafting department of Ministry of Justice, Abia State said the accused committed the offence as charged and therefore prayed the court to given him the maximum punishment as provided by law.

    The convict through his counsel, K.J Anya holding brief for C.C Ukachukwu, raised a defence of alibi and denied robbing or kidnapping the said Mrs. Nwogu.

    In her judgment, the presiding Judge, Justice C.O Onyeabor who was on assignment at High Court 3, Aba ruled that the accused was positively identified and fixed at the scene of the incident hence the defence of alibi must fail.

    The trial judge was of the view that the case weighed heavily against the accused when he agreed being in the village on the day of the incident and in finding him guilty held that he (accused) kidnapped Mrs.  Uchenna Nwogu for ransom while armed with gun at Obokwe in Ukwa West Local Government as charged.

    The accused who pleaded for leniency stated that his family had suffered so much while he was in detention and would continue to suffer if was killed

    However; the Onyeabor held he was still going to be condemned to death by hanging.

  • When parties may invoke original jurisdiction of Supreme Court

    IN THE SUPREME COURT OF NIGERIA

    HOLDEN AT ABUJA

    ON FRIDAY THE 11TH DAY OF APRIL, 2014

    BEFORE THEIR LORDSHIPS:

    MAHMUD MOHAMMED, J.S.C.

    JOHN AFOLABI FABIYI, J.S.C.

    NWALI SYLVESTER NGWUTA, J.S.C.

    MARY UKAEGO PETER ODILI, J.S.C.

    MUSA DATTIJO MUHAMMAD, J.S.C.

    KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

    JOHN INYANG OKORO, J.S.C.

    Between :

    The Attorney-General of Lagos State …. Plaintiff

    And

    The Attorney-General of the Federation & 35 Ors …. Respondents

    By an Amended Originating Summons  dated 10th August, 2009 and filed at the Registry of this Court on 12th August, 2009, the Plaintiff Lagos State through its Attorney-General, invoked the originating jurisdiction of the Supreme Court and sued the 1st Defendant, the Federation of Nigeria through the Attorney-General of the Federation and claimed that the House of Assembly of Lagos State of Nigeria is the body entitled, to the exclusion of any other Legislative Body to enact Laws with regard to the imposition and collection of tax on the supply of all goods and services within the Lagos State of Nigeria and that the Lagos State of Nigeria or any agency of the State, is the body entitled, to the exclusion of any other body, to assess and collect such tax, and that the revenue of Lagos State Government has been and continues to be affected by the enforcement of the provisions of the Value Added Tax Decree No.102 of 1993, now Value Added Tax Act Cap VI Laws of the Federal Republic of Nigeria 2004, for the determination of the following questions.

    1. Whether upon the coming into effect of the Constitution of the Federal Republic of Nigeria, 1999, the said Value Added Tax Act is an existing law within the meaning of Section 315 of the said Constitution, being a Federal Legislation which is deemed to be an Act of the National Assembly?

    2. If the answer is in the affirmative whether the combination of the provisions of Section 2, 4, 6 and 7 of the said Value Added Tax Act which empowered a Federal organ to impose and collect taxes on the supply of all goods and services other than those goods and services listed in the First Schedule to the said Act amount to an imposition of tax on the supply of all goods and services within the Lagos State of Nigeria and within other States of the Federation?

    3. If the answer to question 2 is in the affirmative, whether Sections 2, 3, 4, 5, 6 and 7 of the said Value Added Tax Act are within the contemplation and competence of the powers conferred on the National Assembly under Section 4 of the 1999 Constitution.

    The 1st Defendant, the Attorney General of the Federation, upon being served the amended Originating Summons, filed a Notice of Preliminary Objection pursuant to Order 2 Rule 29 of the Supreme Court Rules, 2002 and Section 232 (1) of the Constitution of the Federal Republic of Nigeria, 1999 urging the Court to strike out and/or dismiss the Plaintiff’s suit on the grounds set out in the schedule to the preliminary objection.

    Before considering the issues, the Court stated that a judgment given without jurisdiction creates no legal obligation and does not confer any rights to any of the parties. The Court further stated that being a challenge to the jurisdiction of the Court to entertain Plaintiff’s action, therefore, 1st Defendant’s preliminary objection has to be determined first. Having been raised, all proceedings must abate until the issue is resolved.

    The two issues the 1st Defendant considers to have arisen for the determination of his preliminary objection as distilled at paragraph 3 of his written brief thereon read:-

    “1. Whether the Supreme Court’s original jurisdiction can be invoked where the Acts and Allegations constituting the main dispute are Acts of an Agency of the Federal Government.

    2. Whether the present suit filed during the pendency of several suits between the main parties on record or their agents does not constitute an abuse of court process.”

    On the 1st issue arising from the preliminary objection, Mr. J. B.  Daudu ( SAN), 1st Defendant’s learned senior counsel, submitted that the original jurisdiction of the Supreme Court is provided for under Section 232 (1) of the 1999 Constitution. And for the original jurisdiction of the court to be invoked, it was contended, the Plaintiff’s claim must disclose a dispute between the federation and a state or states as constituent unit or units or between the states inter-se. The dispute, 1st Defendant’s learned senior counsel further submitted, must be one on which the existence or extent of a legal right of the parties in their capacities as such is involved. Learned senior counsel relied on AG Bendel State v. AG Fed (1982) 3 NCLRI, AG Federation v. AG Abia State (2001) 1 NWLR (pt.625) 689 at 728, AG Federation v. AG Imo State (1993) 4 NCLR 178 and more particularly AG Kano State v. AG. Federation (2007) 3 SC 59 at 1.

    Counsel further contended that the affidavit in support of Plaintiff’s originating summons, only disclosed a dispute between the Plaintiff and an agency of the 1st Defendant. Plaintiff’s complaint, it was further argued, centres squarely on the collection of Tax on supply of goods and services by the Federal Inland Revenue Services which Act makes it tremendously difficult for the Plaintiff or any of its agencies to collect taxes from those sources. He submitted that the Plaintiff’s claim is about restraining 1st Defendant’s agent from imposing and collecting taxes on the supply of goods and services within Lagos State and no more. Being a claim pertaining to the acts of an agency of the 1st Defendant rather than a dispute between the federation and the Plaintiff or between the states themselves as constituents of the federation, the original jurisdiction of the Supreme Court under Section 232 (1) of the 1999 Constitution cannot be invoked by the Plaintiff/Respondent. Further relying on the decision of this Court in AG Benue State v. AG Federation and 35 others (supra), learned senior counsel urged that the Plaintiff’s suit as presently constituted be struck-out for want of jurisdiction.

    On the 2nd issue, learned senior counsel for the 1st Defendant contended that the Plaintiff’s suit which seeks to re-litigate afresh issues that had been tried and decided by courts of competent jurisdiction other than the Supreme Court is an abuse of the process of this Court. Learned senior counsel inter alia relied on AG Ondo State v. AG Ekiti State (2001) 7 NWLR (Pt.743) 706, CBN v. Ahmed (2001) 11 NWLR (Pt.24) 369 and Ogoejofo v. Ogoejofo (2006) 22 NWLR 183 and contends that the suit constitutes an abuse of the process of this Court. Learned senior counsel further submitted that the Plaintiff and the 1st Defendant were the principal parties in suit No.ID/105/01 wherein the Plaintiff obtained a decision in his favour. The nominal parties and the 1st Defendant being dissatisfied with the decision filed appeals CA/L/23/04 and CA/L/727m/05 respectively. The two appeals are still pending. It is the same subject matter, contended learned senior counsel that the Plaintiff raises in the present suit. Again, suit No FHC/L/205/04 between the Plaintiff and the agents of the 1st Defendant as well as Plaintiff’s appeal No. CA/L/428/05 on the same subject matter instantly raised by the Plaintiff, have all been determined against the Plaintiff. The Plaintiff is yet to appeal against the decision of the Court of Appeal. On the whole, Plaintiff’s claim, learned senior counsel to the 1st Defendant submitted, should be struck out and/or dismissed.

    Responding to the 1st issue for the determination of the preliminary objection, Mr. Sofunde (SAN)  for the Plaintiff submitted that it is the claim of the Plaintiff that determines a court’s jurisdiction. Learned senior counsel relied on AG Federation v. AG Abia State (2001) 11 NWLR (Pt.625) 689 at 740 and Izenkwe v. Nnadozie 14 WACA 361 at 363 from which the former decision drew.  Learned senior counsel submitted that a dispute is clearly shown to exist between the Plaintiff and the federation. Learned Plaintiff’s counsel concedes that on the authorities, particularly AG Kano v. AG Federation (2007) 6 NWLR (Pt.1029) 164 at 182 the existence of a dispute between the federation and a state or the states inter-se as constituent units is an essential requirement for the invocation of the original jurisdiction of this Court.

    By the reliefs the Plaintiff seeks and the facts as contained in the relevant paragraphs in his supporting affidavit, Plaintiff’s learned senior counsel contended that the Plaintiff’s suit is challenging the constitutionality of the Value Added Tax Act and the illegality of the collection of tax pursuant to the Act. Plaintiff’s grouse in the suit is not really about the act of the collection of these taxes by the F.I.R.S., an agency of the 1st Defendant, but rather on the legality or otherwise of the legislation on which the acts of the F.I.R.S. are founded. The Plaintiff, it is submitted, has no dispute with the Federal Board of Inland Revenue which remains a mere agent but with the legislative competence of the 1st Defendant vis-a-vis the taxes collected by the Board. Were the Plaintiff’s quarrel to be in relation to the act of collecting this tax by 1st Defendant’s agent without more, it would have been impossible to bring Plaintiff’s claim within the purview of Section 232 (1) of the 1999 Constitution that provides for this Court’s original jurisdiction.

    Learned senior counsel cited the cases of AG Abia State v. AG Federation (2007) 6 NWLR (Pt.1029) 200 and AG of Benue State v. AG of the Federation & 35 others unreported decision of this Court in Appeal No.179/2006 delivered on 25th October, 2007.