Nigerian National Petroleum Corporation v. Chief Gani Fawehinmi & Ors (1998)

LawGlobal Hub Lead Judgment Report – COURT OF APPEAL

AYOOLA, J.C.A. (Delivering the Leading Judgment)

The main question on this appeal from the decision of the Federal High Court is whether section 12 (2) of the Nigerian National Petroleum Corporation Act (Cap 320; LFN 1990) (“the Act”) is compatible with sections 6(6)(b) and 33(1) of the Constitution of the Federal Republic of Nigeria, 1979 (“the Constitution”) and Article 3(1) and (2) of the African Charter on Human and People’ Rights (“the Charter”). Section 12(2) of the Act provides that:

“No suit shall be commenced against the Corporation before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the Corporation by the intending plaintiff or his [or her] agent; and the notice shall clearly and explicitly state the cause of action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief which he claims.”

Section 6(1) of the Constitution provides that:

            “The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.”

Section 6(6) (b) of the Constitution provides that:

“The judicial powers vested in accordance with the foregoing provisions of this section-

               (b)          shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”.

Article 3 of the Charter provides as follows:

     “1.         Every individual shall be equal before the law.

2.          Every individual shall be entitled to equal protection of the law.”

Section 33(1) of the Constitution provides that:

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

The plaintiff/respondent (“the plaintiff”) sued the Nigerian National Petroleum Corporation (“the Corporation”) and several others sometime in 1992 claiming “an account of all export earnings realised by Nigeria from the sale of crude oil during the Gulf crises particularly between August and 31st December, 1990 and of the manner in which the defendants applied and or expended the said export earnings.” The Corporation applied to the court for an order striking out the action as against it on the ground that; “the plaintiff/respondent did not give to the 4th defendant/applicant the statutory notice as required by section 11(2) (sic) of the Nigerian National Petroleum Corporation Act, 1977.” Counsel for the plaintiff at the High Court, Mr Falana, opposed the application on the ground that section 12(2) of the Act is in conflict with sections 6, 17 and 33 of the Constitution and Articles 3 and 7 of the Charter. In a reasoned ruling the Federal High Court (Belgore C.J.) upheld the contention of the plaintiff, the learned Chief Judge being of the view that the provisions of section 12(2) of the Act are discriminatory and are incompatible with Article 3 of the Charter, are against the Constitution and are void.