Felix Onuorah V. Kaduna Refining & Petrochemical Co. Ltd (2005)

LAWGLOBAL HUB Lead Judgment Report

AKINTAN, J.S.C.

The appellant, as plaintiff, commenced this action at the Federal High Court, Kaduna as suit No. FRC/KD/CS/7/96 against the respondent, as defendant. His claim was for:

“(a) An order of court declaring the purported price increase/review of the 18 litre empty tins by the defendant from N25 to N40 with effect from 10/5/93 as not affecting the plaintiff who paid for his own empty tins much earlier than the commencement date of the price increase/review.

(b) An order of specific performance directing the defendant to issue/supply the plaintiff the remaining 17,012 pieces of the 18 litres empty tins not later than 30 days from the date of judgment.

(c) N1, 000, 000 general damages from the defendant to the plaintiff for the breach of the arrangement/agreement between him and the defendant.”

The parties filed their respective pleadings and the trial took place before O. J. Okeke, J. The learned trial Judge delivered his reserved judgment on 1/8/97 in which he granted the declaration sought by the plaintiff in the first leg of his claim and the claim for specific performance sought in the second leg. The claim for damages sought in the third leg of the claim was, however, refused. N1,000 was awarded as costs.

The defendant was dissatisfied with the judgment and it filed an appeal at the Court of Appeal, Kaduna Division. A ground of appeal challenging the jurisdiction of the trial court was raised with leave of the Court of Appeal. The parties filed their briefs of argument in the lower court and the issue of jurisdiction of the trial court was the main issue canvassed before the Court of Appeal. The court, in its judgment delivered on 5/6/2000 in suit No. CA/K/215/97 (Coram R. D. Mohammed, Omage & Obadina, JJCA) allowed the appeal on the ground that the trial court lacked jurisdiction to entertain the claim. The judgment and orders of the trial Federal High Court, Kaduna were set aside and an order striking out the plaintiff’s claim was substituted in their place.

The plaintiff was not satisfied with the decision of the Court of Appeal. The present appeal was therefore, filed against the said decision. Seven grounds of appeal were filed against the judgment. The parties filed their respective briefs of argument in this court. The appellant filed an appellant’s brief and a reply brief. The appellant formulated the following four issues as arising for determination in the appeal in the amended appellant’s brief:

“1. Whether the court below was right in the instant matter in requiring the appellant to prove that the respondent is a subsidiary of Nigerian National Petroleum Corporation (NNPC)

2. Is the respondent a distinct and separate legal entity from the Nigerian National Corporation
3. Is the respondent an agent of NNPC and the Federal Government of Nigeria
4. Was the court below right when it held that the Federal High Court, Kaduna had no jurisdiction to hear and determine the appellant’s claim”

The respondent also adopted the above issues in the respondent’s brief.

The main contention of the appellant, as canvassed in the amended appellant’s brief on issues 1 and 2 is that the respondent was a subsidiary of the NNPC and as such the Federal High Court had jurisdiction to entertain the claim. Reference is made to the statement of claim filed by the appellant where it was pleaded that the respondent was a subsidiary of the NNPC. It is then submitted, that since that averment was not denied by the respondent in its statement of defence, it was therefore not necessary for the appellant to lead evidence in proof of the admitted averment. It is further submitted that the question that the respondent had separate identity of its own did not arise. This is because, apart from the admission in the pleadings that it is a subsidiary of the NNPC, the same fact is shown on the receipts issued in favour of the appellant in respect of the transaction that led to the dispute between the parties which clearly describe the respondent as a subsidiary of NNPC. It is therefore, submitted that the respondent does not exist independently from NNPC and the Federal Government of Nigeria and cannot therefore be said to be a separate entity, as held by the lower court.

In the appellant’s third and fourth issues, reference is made to the provisions of sections 5 and 6 of the NNPC Act by which the NNPC is permitted by law to act through the respondent in the discharge of the duties conferred on it by the NNPC Act. Reference is also made to the facts of the case as presented at the trial court, particularly to the fact that the appellant entered into a purchase contract for which payments were made and receipts were also issued. The respondent was clearly described on the receipts as a subsidiary of NNPC. All these are said to show that the respondent is in fact an out-let and an agent of the NNPC. It is submitted that NNPC is an organ of the Federal Government and that the respondent, being an outlet for the discharge of the duties of an organ of the Federal Government (NNPC), is therefore also an agent of the Federal Government of Nigeria. The decision in Opuo v. NNPC (2001) 14 NWLR (Pt. 734) 552 at 569 E-G is cited in support of this submission.

It is submitted in reply in the respondent’s brief that it is the plaintiff’s claim that determines the jurisdiction of a court under Nigerian law. Reference is therefore, made to the plaintiff’s claim in the instant case. It is then argued that the three claims of the plaintiff are based on simple contract. A number of decided cases are cited in support of this contention, among which are Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt 58) 539 at 568; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 549; and Western Steel Works v. Iron & Steel Workers (1987) 1 NWLR (Pt. 49) 284. It is therefore, argued that since the appellant’s claims were based on simple contract, only a court which is empowered to entertain suits relating to contracts can entertain the appellant’s suit.

On the contention of the respondent that the trial Federal High Court lacked jurisdiction to entertain the claim, reference is made to section 230(l)(q), (r) and (s) of the 1979 Constitution as amended by Decree No. 107 of 1993 which sets out the jurisdiction of the Federal High Court. The section provides as follows: