Honourable Amina Adamu Augie, JSC

“In this case, the “alleged error” as the first Respondent put it, is a violation of the Appellant’s right to fair hearing, which is enough to grant him a remedy. It does not need to show that the decision would have been different, if parties had been heard on the issue. They were not heard; particularly on the issue that put the last nail on the Appeal’s coffin”

In the Supreme Court of Nigeria

Holden at Abuja

On Friday the 12th Day of January, 2018
Before Their Lordships

Ibrahim Tanko Muhammad
Olukayode Ariwoola
Kumai Bayang Aka’ahs
Amina Adamu Augie
Paul Adamu Galinje
Justices, Supreme Court
SC.143/2008

Between

South Atlantic Petroleum Limited ………Appellant

And
1. The Minister of Petroleum Resources
2. Emo Exploration and Production Limited
3. ONGC/Mittal Energy Limited ……Respondents
(Lead Judgement delivered by Hon. Amina Adamu Augie, JSC)

Facts

Sometime in 1998, the Appellant was awarded an Oil Prospecting Lease (OPL 246), covering an area of 1000 square miles for a statutory 5-year tenure, and it was later extended for a final 5-year statutory tenure, which was to expire on 28/3/2008. The said OPL 246, entitled the Appellant to an exclusive right to explore and prospect for petroleum in the license area, and if during the exploration and prospecting, commercial quantities of crude oil are found, to apply for the conversion of the OPL 246 to an Oil Mining Lease (OML) for a renewable statutory term of 20 years.

Upon discovery of crude oil in commercial quantity, the Appellant applied to the Department of Petroleum Resources (DPR) for the conversion of OPL 246 into an OML, and was granted OML 130 covering an area of 500 square miles. Since by law, the maximum size of an OML is 500 square miles, and the policy of the Federal Government is that, upon the grant of an Oil Mining Lease to the grantee or holder of an Oil Prospecting Lease, the grantee or holder is taken to have relinquished the uncontroverted residue to the Federal Government. When the Appellant applied for the conversion of the remaining 500 square miles of OPL 246 into an additional OML, the application was turned down. The DPR also indicated that the said uncontroverted portion/residue would revert to the Government, in line with existing Petroleum Regulations. Thereafter, the DPR offered the said uncontroverted portion of OPL 246 for sale to other third parties, including the 2nd and 3rd Respondents.

Aggrieved, the Appellant filed an ex-parte application at the Federal High Court for leave to apply for Judicial Review, and same was granted. Further to this, the Appellant on 10/5/2006, filed an Originating Motion seeking Declaratory and Injunctive Reliefs, to the effect that its rights and interests in OPL 246 remained extant until March 2008 notwithstanding the grant of OML 130 out of OPL 246, and that the letters conveying the refusal to grant the additional OML and the mandatory relinquishment of the uncontroverted portion of OPL 246, were unlawful, null and void.

The 1st Respondent, filed a Notice of Preliminary Objection to the competence of the suit, on the ground that the relief being sought by the Appellant in the suit was for an order of Certiorari to quash the decisions of the Minister complained of in the said letters; thus, the action ought to have been commenced within 3 (three) months of the accrual of the cause of action, as required by Order 47 Rule 4(2) of the Federal High Court (Civil Procedure) Rules. The trial Court, in its judgement, upheld the Preliminary Objection, and held that the time within which the Appellant ought to apply for Judicial Review had lapsed. The trial Court also considered the main question in the suit, and found that there was nothing unlawful in the letters, the residue of OPL 246 having been automatically relinquished by the Appellant by operation of the law.

Dissatisfied, the Appellant appealed to the Court of Appeal. The Court of Appeal in its judgement delivered on 29/4/2008, held that the grant of OPL 246 expired on 28/3/2008; therefore, since the term granted to the Appellant under OPL 246 had been exhausted through effluxion of time, there was no live issue left for determination in the appeal. Consequently, the appeal was dismissed.

The Appellant further appealed to the Supreme Court, and formulated four issues for determination in its amended brief of argument. The 1st Respondent in its Respondent’s brief also formulated four issues for determination. The 2nd and 3rd Respondents who were not parties at the lower Court, also sought and obtained leave to be joined as interested parties in the appeal. Upon being joined, the 2nd and 3rd Respondents filed a Notice of Preliminary Objection praying that the Appeal be dismissed for being a nullity, on the ground inter alia, that the suit which culminated in the appeal was already statute barred at the time it was commenced. The 2nd and 3rd Respondents adopted the four issues distilled by the Appellant in respect of the main appeal.

Issue for determination

In the determination of the appeal, the Supreme Court considered only the first issue formulated by the Appellant as follows

Whether or not the lower Court was right, when it dismissed the appeal based on the ground that the appeal has become academic, without giving the Appellant an opportunity to be heard on it.

Arguments

The Appellant argued that the approach adopted by the Court of Appeal, was fundamentally flawed, because while a Court is permitted to raise an issue suo motu, it is under an obligation to invite parties to address it on the point raised suo motu. The Appellant relied on OJE v BABALOLA (1991) 4 NWLR (Pt. 185) 267 at 280. Also citing IROM v OKIMBA (1998) 3 NWLR (Pt. 540) 19, the Appellant argued that the proper approach, would have been for the Court below to defer judgement, and recall parties to address it on the issue of the effect of the expiration of the OPL on the appeal. The Appellant submitted that the failure of the Court below to give the parties an opportunity to address it on the said issue raised suo motu before delivering its judgement which was based on this issue so raised, amounted to a case of mis-trial and a breach of its right to fair hearing.

Conversely, the 1st Respondent contended that, the Appellant failed to show that the decision would have been different if the Court of Appeal had invited the parties to address it on the effect of the expiration of OPL 246. Counsel argued further that, the Appellant failed to show that the alleged error by the Court of Appeal had occasioned a miscarriage of justice.

The 2nd and 3rd Respondent, on the other hand, argued that the expiration of OPL 246 on 28/3/2008 had never been in controversy nor raised by the Court below suo motu, and that the said expiration, had in fact been intricately knitted to the substance of the suit, particularly as the Appellant had, in its appeal, urged the Court of Appeal to extend time on the expired OPL 246, which expiration the Appellant admitted in its brief of argument.

Court’s Judgement and Rationale The Apex Court, relying on its decisions in SALU v EGEIBON (1994) 6 NWLR (PT. 348) 23, held that if a principle of natural justice is violated, it does not matter whether if the proper thing was done, the decision would have been the same, the proceeding will still be null and void; therefore, “decision must be declared to be no decision”. The Court also held that once an Appellant shows an infringement of the principle of natural justice against him, he need not show anything more, and the finding that there is such an infringement is sufficient to grant him a remedy.

Reliance was also placed on ADIGUN v A-G OYO STATE (1987) 1 NWLR (Pt. 53) 678 at 721. The Court held that, the alleged error in the instant case, is the violation of the Appellant’s right to fair hearing, which is enough to grant him a remedy, and the Appellant did not need to show that the decision would have been different if parties had been heard on the issue. Their Lordships held further that, the Court of Appeal ought to have recalled the parties, especially the Appellant who would be adversely affected by the dismissal of the appeal, after it had reserved judgement and discovered that OPL 246 had expired, to address it on the deleterious effect of the expiration of the OPL 246 on the Appeal. By the provision of Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), no matter how obvious the answer would appear to be, since the lower Court was going to base its decision on the appeal becoming spent and consequently academic, it was incumbent on the lower Court to address it on the effect of the appeal becoming stale.

Based on the foregoing conclusion, the Supreme Court held that the rule of fair hearing had been breached, and the appeal per force succeeded. The appeal was thereby allowed, and the matter sent back to the Court of Appeal for hearing and determination on the issues between the parties, and any other issue(s) raised suo motu.

Appeal Allowed

Representation Adetunji Oyeyipo, SAN with Olabisi O. Soyebo, SAN, Adewale Atake Esq., Mabruk Kunmi-Olayiwola Esq. and Victor Okpara Esq. for the Appellant.

Fidelis Oditah, QC, SAN, Robert Clarke, SAN, and Miss Onyeka Enunwa for the 1st Respondent.

Ahmed Raji, SAN, with Adeola Adedipe Esq., Victor Okwudiri Esq., O.C. Ogunyemi Miss and Idongesit Antai Esq. for the 2nd and 3rd Respondents.

Reported by Optimum Publishers Limited (Publishers of the Nigerian Monthly Law Reports (NMLR))

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