United Cement Company of Nigeria V. Dangote Industries Ltd. & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

In the application filed on 23/11/05, the appellant/applicant United Cement Company Nigeria Limited prayed this court for:

“An order suspending the restraining order in suit No. FHC/ABJ/CS/140/2005 dated the 27th of October, 2005. (Per Hon. Justice S. T. Adah in this appeal pending the hearing and determination of the appeal.)”

In the scenario leading to this application, the 1st respondent, Dangote Industries Limited by a writ of summons and statement of claim filed on the 11th of March, 2005, at the Federal High Court Abuja claimed against the appellant/applicant United Cement Companies Ltd. and the 2nd respondent Hon. Minister of Solid Minerals Development amidst other reliefs as follows:

“A declaration that the 2nd defendant by its purported approval of EAL LWS 17410 and 17411 in the 1st defendant’s favour, exercised its powers and discretions under the Minerals and Mining Act 1999 without good faith and legal justification, improperly, unfairly and in a way discriminatory against the plaintiff.”

The 1st respondent simultaneously filed an interlocutory injunction before the same court against them. The appellant/applicant filed a notice of preliminary objection challenging the jurisdiction of the court. The court dismissed the objection and claimed that it had jurisdiction.

The appellant/applicant filed an appeal against the decision of the Federal High Court delivered on the 28th June, 2005.

The appellant filed an application for a stay of further proceedings pending the determination of this appeal. The 1st respondent filed another application praying for an order of interim injunction against the appellant.

In the ruling delivered on the 27th of October, 2005 the learned trial Judge granted the appellant’s motion for stay of further proceedings but in addition imposed the specific condition that “the parties to the action are, while the matter pends in court restrained from engaging in any activity over the area in dispute.”

The appellant had filed notice of appeal against that decision, the notice was attached to the application as exhibit B.

Meanwhile, the learned appellants counsel Mr. Okunloye SAN argued and submitted in favour of granting the application for discharging this order of restraint by raising salient points as:

1. There was no application for injunction before the lower court as at the time the order was made.

2. An order of injunction is not an ancillary order to an order for stay of proceeding, and cannot be made as a consequential order in the circumstance.

3. Parties were not called upon to address the court on whether the grant of injunction was necessary.