Nigeria Gas Company Limited V. Gasland Company Limited (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The appeal is from a ruling of the Federal High Court (the Court below) whereby the Court below struck out the appellant’s preliminary objection to its jurisdiction on the ground that the preliminary objection was filed outside the 21 days prescribed by the Federal High Court (Civil Procedure) Rules 2009, (the Rules of the Court below).

In a nutshell, the respondent by a writ of summons and accompanying statement of claim filed on 26-03-14, sought for a declaratory, injunctive and specific performance reliefs against the appellant with respect to a franchise embodied in a National Gas Sales and Purchase Agreement (GSPA) between the appellant and the respondent. The respondent sued on the GSPA at the Court below alleging its breach by the appellant.

In line with one of the clauses of GASPA, the respondent and the appellant engaged in negotiations to settle the dispute. They were not successful. After negotiations had broken down, the appellant filed a motion on notice challenging the jurisdiction of the Court below to entertain the action on the premise that a pre-action notice was not

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served on the appellant by the respondent as required by Section 12(2) of the Nigerian National Petroleum Act Cap. 123, Laws of the Federation of Nigeria, 2004 (NNPC Act).

The motion on notice was determined on the merit upon which the Court below struck out the objection to its jurisdiction on the ground that it was filed outside the 21 days permitted by Order 29 Rule 4 of the Rules of the Court below and should be taken with the substantive suit under its rules.

Not satisfied with the decision of the Court below striking out the objection to jurisdiction (supra), the appellant filed a notice of appeal on 05-12-14 with one ground of appeal closely followed by a brief of argument filed on 22-12-14 bearing the following issue for determination –

“Whether the learned trial Judge was right in refusing the objection to the Court’s jurisdiction because if was raised outside the time permitted by Order 29 of the Federal High Court Civil Procedure Rules 2009.”

The appellant argued that jurisdiction is a threshold/constitutional issue as well as the life line for continuing any proceedings in Court which can be raised at any stage of the

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proceedings even for the first time on appeal vide Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675 at 693, N.D.I.C. v. C.B.N. and Anor. (2002) 7 NWLR (Pt. 766) 272 at 294-295, Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508 at 520-521, Nwora v. Nwabueze (2011) 15 NWLR (Pt. 1271) 467 at 507; that Order 29 Rule 4 of the Rules of the Court below is a subsidiary legislation subservient to Section 22 of the N.N.P.C. Act, a substantive enactment by the National Assembly; that Order 29 Rule 4 of the Rules of the Court below read with Rule 5 thereof stating that if the objection is not taken within 21 days then it can be entertained by the Court at the close of the case is contrary to the established principle of stare decisis stated by the cases cited (supra) that an issue of jurisdiction once raised should be dealt with instantly and; also, that it would work against speedy dispensation of justice if such objection is not taken instantly and violate the fundamental objective of the Rules of the Court below citing in support N.D.I.C. v. C.B.N. (supra) at 294-295 and the unreported case of C.G.G. Nigeria Ltd. v. Chief Lawrence Ogu:

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Appeal No. CA/PH/88/1999 delivered on 18-09-2000 to the effect that an issue of jurisdiction once raised should be determined on the spot before any other step is taken in the proceedings; and that the case of C.B.N. v. Akingbola and Anor. (2013) LPELR-21475 is distinguishable from the facts of this case in that the time frame of 21 days under Order 29 Rule 4 was not raised or discussed; therefore the appeal should be allowed.