Julius Berger (Nig.) Plc. V. Anizzeal Eng. Projects Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI A. OTISI, J.C.A.: (Delivering the Leading Judgment)

This appeal is against the Ruling of the Akwa Ibom State High Court, sitting at Uyo, delivered on 15/11/2010. The Respondent as plaintiff had filed Suit No HU/468/2009 seeking the following reliefs:

(a) A declaration that the act of the Defendant in purportedly revoking the Local Purchase Order issued to the plaintiff during the continuation of the supply of the sharp sand ordered constitutes a breach of contract;

(b) The sum of seventeen million five hundred and fifty-eight thousand, eight hundred Naira (N17,558,800.00) being the special damages incurred by the Plaintiff in execution of the contract less the part payment made by the Defendant;

(c) Five hundred thousand (N500,000.00) being anticipated profit from the transactions breached by the Defendant;

(d) Fifty million Naira (N50,000,000.00) being general damages for breach of contract.

After commencement of the pre-trial proceedings in this matter, the Appellant as defendant filed a motion on notice seeking the following order:

An order setting aside the pre-trial conference proceedings so far conducted in this Suit and striking out this suit for lack of jurisdiction by this Honourable Court on the ground that:

The subject matter in this suit relates to a civil cause namely: claim for damages and declaratory relief by the Plaintiff against the Defendant for alleged breach of contract for the supply of (sharp) sand and that by virtue of Section 75 of the Nigerian Mineral and Mining Act 2007 sand is defined as a naturally occurring quarriable mineral and therefore any civil dispute or litigation relating to sand and/or the supply of sand falls under the exclusive jurisdiction of the High Court by virtue of Section 251(1)(n) of the Constitution of the Federal Republic of Nigeria, 1999.

The Respondent opposed the motion. The trial Judge heard the parties and overruled the Appellant, holding that the State High Court had jurisdiction to entertain the suit.

Dissatisfied with the decision of the lower court, the Appellant filed an Amended Notice of Appeal on 16/5/2012, raising four Grounds of Appeal: and, seeking Orders from this Court to allow the appeal and strike out the suit for want of jurisdiction.

Barry N. Kumbe, Esq. of Counsel for the Appellant filed an Amended Brief of Argument on 16/5/12. Idongesit Jackson Esq. for the Respondent filed an Amended Respondent’s Brief on 1/3/2013, deemed properly filed on 4/3/2013. The Appellant’s Reply was filed on 23/3/2013 and deemed on 4/3/2013. These Briefs were adopted by respective Counsel on 4/3/2013.

In the Appellant’s Brief, two Issues were distilled for determination from the 4 Grounds of Appeal as follows:

a. Whether in view of extant provisions of Section 251(1)(n) of the Constitution of the Federal Republic of Nigeria 1999 (herein in this brief referred to as the 1999 Constitution) and Sections 75, 76, and 164 of the Nigerian Minerals and Mining Act, 2007 (the 2007 Act) the lower Court has jurisdiction to hear and determine Suit No. HU/468/2009 – ANIZZEAL ENG. PROJECTS LIMITED VS. JULIUS BERGER (NIG.) PLC., i.e. the subject matter of this appeal.