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MINING CADASTRE OFFICE v. UIGPETROLEUM & TRANSPORT INVESTMENT LTD
& ANOR
CITATION: (2018) LPELR-46046(CA)
In the Court of AppealIn the Jos Judicial Division
Holden at Jos
ON FRIDAY, 23RD NOVEMBER, 2018Suit No: CA/J/418/2017
Before Their Lordships:
HABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of AppealTANI YUSUF HASSAN Justice, Court of AppealBOLOUKUROMO MOSES UGO Justice, Court of Appeal
BetweenMINING CADASTRE OFFICE - Appellant(s)
And1. UIG PETROLEUM & TRANSPORT INVESTMENTLTD2. GOLDEN INTEGRATED RESOURCES LTD
- Respondent(s)
RATIO DECIDENDI
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1. ACTION - CONDITION PRECEDENT: Whether resorting first to Alternative Dispute Resolution is a condition precedent to instituting an action under theNigerian Minerals and Mining Act"Now, Section 141 of the Nigerian Minerals and Mining Act 2007 provide that:141(1) Any dispute arising between the holder of a Mineral title and the Government in respect of a interpretation and application of this Act, its regulationsand terms and conditions of Mineral titles shall be resolved in the first instance on an amicable basis, and(2) Where the dispute is in the nature of a bonafide investment dispute and such dispute is not amicably settled as provided under Subsection 1 of thissection, it shall be resolved in accordance with the provisions of the Nigerian Investment Promotion Commission Act Cap. N117 Laws of the Federation ofNigeria,(3) Any dispute between the holder of a Mineral Title and the Government shall be resolved in the Federal High Court, if not settled in accordance with theProvisions of Subsection (1) and (2) of this section.Also relevant to proper resolution of this issue are the provisions of Sections 15, 16 and 17 of the Nigerian Minerals and Mining Regulations 2011. Thoseprovisions state thus:15. Dispute Resolution(1) The Minister may, as and when necessary establish a committee to enquire into and resolve any dispute between holders of mineral titles either amongstthemselves or between them and mineral title applicants or third parties.(2) The dispute referred to in Subsection (1) of this Regulation may relate to:(a) disputed boundaries;(b) assessment and payment of compensation;(c) environmental or social obligations;(d) any act or omission connected with mining operation;(e) any dispute arising from the processing or refusal of application for mineral titles; and(f) any dispute between applicants for and holders of mineral titles.(3) The Minister may approve and make any order which may be necessary for the purpose of giving effect to the decisions of the Committee.S.16. Procedures for Dispute Resolution(1)(a) The party who is aggrieved shall submit a memorandum stating briefly the subject matter of complaint, the facts relied upon and the relief or prayersought.(b) The complaint shall be served on the party against whom it is filed, who shall be given opportunity to file a memorandum within seven days.(c) A date and time will be fixed for the parties to dialogue and to present their witness (if any) and any additional documents or material they intend to relyupon.(d) The committee and parties may visit or carry out physical inspection of any material or objects and may make necessary directives to preserve or protectthe subject matter of the dispute.Section 17 provides for appeal by any party aggrieved with the committee's decision. It reads:S. 17: Aggrieved Party may Appeal(1) Any person aggrieved by any decision of the Ministry or any of its agencies on any application or matter under these Regulations, may within seven daysafter being notified of the decision, appeal to the Minister for a review.(2) The appeal shall state:(a) The particulars of the holder or applicant;(b) the particulars of the title in respect of which the appeal is made.(c) The subject matter of the appeal;(d) The grounds of the appeal; and(e) The prayer or relief sought.(3) The Minister may set up a committee to consider the appeal and forward to him a report which shall include its findings and recommendations.(4) On receiving the report, the Minister may uphold, set aside or vary the decision complained of;(5) A notice of the Minister's decision on the appeal may be set sent to the parties within seven days of the receipt of the however any delay to issue thenotice will not nullify the decision of the Minister.(Italics mine.)The provision does not oust the jurisdiction of the Courts as the lower Court held, for Subsection 6 of Section 17 goes on to confer a right on any mineral titleholder still aggrieved with the decision of the Minister to approach the Federal High Court for redress. It reads:(6) The mineral title holder if not satisfied with the outcome of the appeal to the Minister, may seek redress from the Federal High Court.These provisions comprehensively and compulsorily require administrative dispute resolution by any mineral title holder or applicant before resort tolitigation.Now, it is settled that where a statute provides for dispute resolution before resort to litigation, failure to exhaust those remedies is a bar to litigation andputs the jurisdiction of the Court on hold. The authorities on this point are legion. In Delodun Mohammed & Anor v. Kamaldeen Salaudeen & Ors(2017) ALL FWLR (PT. 932) 779 @ 809, I had this to say on this issue citing Walter F. Murphy and C. Herman Pritchett's Courts, Judges and Politics: Anintroduction to the Judicial Process, 2nd Edition, p. 220:"The learned authors Walter F. Murphy and C. Herman Pritchett could not have put it more correctly in their book, Courts, Judges and Politics: An introductionto the Judicial Process, 2nd Edition, when, in the chapter titled 'Access to Judicial Power,' they opined (at p. 220) that:"If government action is challenged in a law suit, the action must be sufficiently final or 'ripe' for review by Federal Courts. This rule forms the basis for thedoctrine of exhaustion of administrative remedies, which requires that persons aggrieved by administrative decisions must have used all the proceduresavailable for correcting the action administratively before they have standing to be heard in Court."Very recently in Attorney General of Kwara State & Anor v. Alhaji Saka Adeyemo (2017) ALL FWLR (PT. 868) 610; (2016) LPELR -SC.650A/2013, theSupreme Court (Rhodes-Vivour, J.S.C.), dealing with not dissimilar provisions of the Chiefs Law of Kwara State reconfirmed this position of the law as earliersettled by it in Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 325) p.1, saying (at p. 24 LPELR):"Where a statute provides a legal line of action for determination of an issue, be that issue an administrative matter, chieftaincy matter, the aggrieved partymust exhaust all remedies in the law before going to Court. See Eguamwense vs Amaghizemwen (1993) 9 NWLR (Pt. 325) p. 1, Chief Israel Aribisala &Ors vs. Talabi Ogunyemi & 2 Ors (2005) ALL NWLR (Pt. 252) p. 451."and adding immediately that:"The provisions of the Chiefs (Appointment and Deposition) Law of Kwara State are clear on the steps to be taken. The 1st - 3rd claimants/respondentsavoided the provisions of the law laid down for settlement of disputes and rushed to Court. This is clearly wrong. The provisions of Section (3) supra must becomplied with before a suit can be filed in Court. The said provision is not unconstitutional."Ngwuta, J.S.C, in the same case further gave the rationale for these provisions in statutes and the effect of non-compliance with them thus:"Above are pre-action requirements in the same class as pre-action notices which have been declared not unconstitutional. ..... The aim of statutorypreconditions for commencement of actions is to provide opportunity for settlement out of Court. ...The intendment is to give the person contemplating Courtaction opportunity to give the matter a second thought before embarking on avoidable litigation. Unless the conditions-precedent to the institution of anaction are complied with, the party initiating the action cannot ignite the jurisdiction of the Court to hear and determine the dispute. In such a case, thematter has to be struck out."That is exactly what should have befallen first respondent at the lower Court. Its case ought to have been struck out, its specious argument here of it beingonly an applicant, that the provisions of Section 141 apply to only mineral title holders, notwithstanding. That argument even flies even in the face of its ownpleadings. 'Mineral title' which it argues it does not hold is defined in Section 164 of the Nigerian Minerals and Mining Act 2007 as follows:'Mineral title' means Reconnaissance Permit, Exploration Licence, Small-Scale Mining Lease, Mining Lease, Water Use Permit, or Quarry Lease or any of thesetitles or any one of these titles, consistent with the context in which the term 'mineral title' is used. In other words, the word 'mineral title' also includesSmall-Scale Mining Lease which it swore it already held from appellant.Even more importantly, 'mineral title' includes its Exploration Licence No. 9673EL it sought to turn to Mining lease and sought relief for "A DECLARATION thatthe plaintiff, pursuant to the Exploration Licence issued by the 1st defendant, paid the necessary fees, satisfied other conditions and expended money andresources on the area of interest and became satisfied that there is sufficient lead/zinc deposit within the area that can be extracted at profit and applied forMining Lease No. 12270." In fact its entire complaint in the action is about appellant's refusal to grant its application to turn its Exploration Licence to MineralLease after it had, according to it, expended huge sums of money exploring for mineral and struck extractable minerals; that appellant was also wrong todeny it the fruits of its labour and to proceed to award Mining Lease No. 12270 to 2nd respondent over the same area of its Exploration Licence. That action,even if first respondent was just an applicant and not a mineral title holder as it wrongly claims, it was obliged to first subject to appellant's internal disputeresolution mechanism by submitting a memorandum to that effect as stated in Sections 141 of the Nigerian Minerals and Mining Act 2007 and 15, 16 and 17of the Regulations 2011. It is only thereafter, it could properly resort to litigation in the lower Court. In that exercise, second respondent would have beenjoined and heard as required by the relevant provisions aforementioned. These provisions, it must also be noted, employ the mandatory 'shall'First respondent's failure to do that denied the lower Court of jurisdiction and Shitu Abubakar, J., was wrong when he decided otherwise.I should also add that His Lordship, Shitu Abubakar, J., should have been more circumspect in his decision, especially when the decision of his Brother, A.L.Alagoa, J., of Jos Division of the same Court in Suit No. FHC/J/CS/12/2011: Geotess Nigeria Ltd. v. Ministry of Mines and Steel Development, which had uphelda similar objection, was brought to his notice."Per UGO, J.C.A. (Pp. 21-30, Paras. C-F) - read in context
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2. LEGISLATION - PUBLIC OFFICERS (PROTECTION) ACT/LAW: Whether the Public Officers Protection Law applies to natural and artificial persons"On the first limb of this issue - of whether the lower Court was correct in its decision that the Public Officers Protection Act applies to and protects onlynatural persons and not artificial persons like appellant - I am of the view that the lower Court was, with due respect, wrong. Interestingly, even the decisionof this Court, Ibadan Division, in Oyo State Board of Internal Revenue v. University of Ibadan (2014) ALL FWLR (PT. 737) 595 @ 609; (2013) LPELR-CA/1/81/2010, which the lower Court wrongly labeled decision of the Supreme Court and further said it had jettisoned cases like Ibrahim v. Judicial, ServiceCommittee of Kaduna State (1988) 14 NWLR (PT 584) 1; Sulgrave Holding Inc. & Ors v. Federal Government of Nigeria & Ors (2012) 17 NWLR (PT.1329) 309 @ 338, Attorney-General of Rivers State v. Attorney-General of Bayelsa State (2013) 3 NWLR (PT. 1340)123 @ 145 cited by appellant's counsel,did not support its decision. Yes, our brother Daniel-Kalio, J.C.A., who delivered lead judgment in that case expressed his doubts as to whether the expression"public officer" in the Public Officers Protection Act and indeed the scheme of that statute was intended to apply to both artificial and natural persons, andnot just natural persons, as the Supreme Court held in Ibrahim v. Judicial, Service Committee of Kaduna State (1988) 14 NWLR (PT. 584) 1 and Or cases,Daniel-Kalio, J.C.A., was at the end of the day very conscious of the fact that he was bound by the Supreme Court's pronouncement in Ibrahim v. Judicial,Service Committee of Kaduna State to the effect that the Public Officers Protection Act applied to not only natural persons but artificial persons too. HenceHis Lordship after his musings wrongly labeled by the lower Court as the current position of the law was quick to add that:"I grant however that the Supreme Court has now clarified the position of the law, see Ibrahim v. Judicial, Service Commission of Kaduna State (1998)LPELR-1408 (SC) P.19 and by that clarification, the protection under the Public Officers Protection Act extends to public bodies such as the Respondent. I ammost definitely bound."That is the correct position of the law - the protection under Section 2(a) of the Public Officers Protection Act extends to public bodies too such as theappellant as confirmed by the Supreme Court in Ibrahim v. Judicial Service Commission of Kaduna State (1998) LPELR-1408 (SC) P.19 and several otherdecisions of the apex Court and this Court and after that case, so the lower Court was wrong in holding differently."Per UGO, J.C.A. (Pp. 11-13, Paras. D-E) -read in context
3. PUBLIC OFFICER - PUBLIC OFFICERS PROTECTION ACT: Application of the Public Officers Protection Act"I am afraid it was also incorrect on the second limb of this issue, namely the date first respondent's cause of action occurred and whether the action wasbrought within three months of the accrual of the cause of action and so not caught by Section 2(a) of the Public Officers Protection Act. That Section statesas follows:Where any action, prosecution or other proceedings is commenced against any person for any act done or in pursuance or execution of any Act or Law or anypublic duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority - (a) the action, prosecution orproceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or in case of acontinuance of damage or injury, within three months (3) next after the ceasing thereof.As pointed out, appellant, apparently conscious of the fact that its preliminary objection was 'likely to flirt with facts' (if I may the expression of Tobi, J.S.C., inAttorney General of the Federation v. A.N.P.P. ( 2003) 8 NWLR (PT. 851) 182 @ 207) regarding when first respondent's application for Mining Lease No. 12270was refused and its cause of action accrued, deposed to an affidavit in support of it to say that besides its newspaper publication of 2012, plaintiff/firstrespondent kept pressuring it to grant its application so it again formally served it by courier (as required by S.14 of the Nigerian Minerals and Mining Act2007) a letter dated 26th April 2016 informing it of the refusal of its application.This is contained in Paragraph 34 of the affidavit of Augustine Bakoshi of appellant in support of the objection contained at pages 121 - 127 of the records asfollows:34. That upon the receipt of the said letter, the defendant wrote a reply letter dated 26th April 2016 to the plaintiff whereby the defendant re-affirmed orreconfirmed the earlier position of the defendant that the Mining Lease Application had since been refused in 2012. A copy of the letter dated 26th April,2016 and evidence of receipt of the said letter through FAST LANE EXPRESS Delivery Service are hereby attached and marked as Exhibits FGN 'G' and 'H'respectively. This assertion of service and receipt of the 26th April, 2016 letter was expressly admitted by first respondent in paragraph 17 of its counteraffidavit as shown hereunder:17. That the plaintiff has met all the conditions precedent for the grant of the Mining Lease applied for (ML 12270) and the plaintiff was not notified of anydefect to its application and was not notified of refusal to issue the ML 12270 despite so much follow up by the plaintiff via its representatives, until throughthe letter dated 26th APRIL 2016 and the letter dated 15th June 2016 written to the plaintiff by the 1st defendant/applicant. The letters are attached asexhibits UIG5 and UIG6 respectively.Exhibit UIG5 (the 26th April 2016 letter of appellant to the Chairman/ Managing Director of 1st respondent contained at p. 201 of the records) opens withthese words in its first paragraph:I am directed to acknowledge the receipt of your letters dated 1st and 21st April, 2016 in respect of the above subject matter, and to also inform you thatyour application for Mining Lease 12270 had been since refused for non-compliance, due to the inability of your company to meet the conditions precedentfor the grant of a mining lease. Please see a copy of Newspaper publication confirming the refusal of your application.What is admitted needs no further proof (Section 20 and 123 of the Evidence Act), it therefore did not lie with first respondent to feign, neither was it open tothe Court below to hold, that service of the 26th April 2016 letter by appellant informing first respondent of the refusal of its application for Mining Lease No.12270 was not proved or brought to its knowledge. That fact having been admitted and so not in issue between the parties needed no further proof and isnot open to disputation.Now, the accrual of cause of action is the event where the cause of action becomes complete so that the aggrieved party can begin and maintain his causeof action (see Attorney-General of Lagos State v. Eko Hotels Ltd (2006) LPELR-3161 (SC) P.55; Owie v. Ighiwi (2005) 1 S.C. (PT 11) 16, (2005) 1 NWLR (PT.917) 184; (2005) LPELR-2846). That, in this case, is the communication by appellant to 1st respondent on 26th April 2016 of the refusal of its application forMining Lease No. 12270. First respondent's three months' to commence action started to run from that 26th April 2016. The 8th September, 2016 when firstrespondent filed its action is more than three months.First respondent's action was therefore undoubtedly caught by Section 2(a) of the Public Officers Act which requires that actions against public officers mustbe commenced within three months of the accrual of the cause of action. The Lower Court was therefore again incorrect in its holding that the action was notcaught by the Public Officers Protection Act."Per UGO, J.C.A. (Pp. 13-18, Paras. F-B) - read in context(2
018)
LPELR
-4604
6(CA)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the
Leading Judgment): This appeal is from the ruling of the
Federal High Court, presided over by M. Shittu Abubakar,
J. and delivered on 2nd November 2017.
There, in Suit No. FHC/BAU/CS/30/2017, first respondent,
an holder of an Exploration License as well as two Small-
Scale mining leases issued by appellant, as plaintiff,
commenced action against appellant and 2nd respondent as
first and second defendants respectively in the Federal
High Court, Bauchi Division for appellant’s refusal of its
application for a Mining Lease No 12270 and its issuance of
same by appellant to 2nd respondent over the same area it
was earlier issued Exploration License by appellant. It
sought against appellant and second respondent the
following declarations, injunctions and damages:
1. A DECLARATION that the plaintiff has been exploring
and was granted an Exploration Licence No. 9673EL for 80
Cadastral Units at Alkaleri Local Government, Bauchi State
on topographical sheet 172 SE for Lead and Zinc by the 1st
Defendant and more described with coordinates Longitude,
latitude respectively as follows:
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a.
b.
c.
d.
2. A DECLARATION that the plaintiff, pursuant to the
Exploration Licence issued by the 1st defendant, paid the
necessary fees, satisfied other conditions and expended
money and resources on the area of interest and became
satisfied that there is sufficient lead/zinc deposit within the
area that can be extracted at profit and applied for Mining
Lease No. 12270.
3. A DECLARATION that the plaintiff having satisfied
Section 50 of the Nigerian Minerals and Mining Act 2007
and Section 57 (1), (2) and (3) of the Nigerian Minerals and
Mining Regulations 2011, is entitled to a grant of Mining
Lease No. 12270.
4. A DECLARATION that the Licence, Permit or Consent
granted to the 2nd defendant by the 1st defendant over the
1st Defendant’s area of interest at Alkaleri Local
Government, Bauchi State is null and void.
5. An order directing the 1st defendant to issue the Plaintiff
Mining Lease No. 12270 on its area of interest at Alkaleri
Local Government, Bauchi State.
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6. An order of injunction restraining the 2nd defendant or
any person deriving title from the 1st defendant from
entering or operating on the Plaintiff’s site at Alkaleri Local
Government, Bauchi State, described by the coordinates
above.
7. Cost of this action.
ALTERNATIVELY
1. A declaration that the Plaintiff expended money and
resources pursuant to the Exploration Licence No. 9673EL
issued by the 1st Defendant and that the action of the 1st
Defendant of refusing to issue the plaintiff Mining Lease
after the statutory period is arbitrary and caused the
Plaintiff so much embarrassment, disappointment, damages
and loss.
2. An order directing the first defendant to pay the plaintiff
the sum of N3,000,000,000 (Three Billion Naira only) as
damages.
3. Cost of this action.
In response to this action, appellant raised a preliminary
objection to the effect that:
1. The said action brought on 8th September, 2015 was
caught by the Public Officers Protection Act as it was not
brought within three months of accrual of its cause of
action.
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2. That 1st respondent had failed to exhaust the remedy
provided by Section 141 of the Nigerian Minerals and
Mining Act 2007 by exploring amicable resolution of the
dispute before commencing its action, so its suit was
premature and incompetent.
First respondent filed an affidavit countering the averments
of appellant in the affidavit supporting the objection. The
objection was thereafter argued by counsel.
Ruling of the trial Federal High Court.
In its ruling of 2nd November, 2017, the trial Judge held
the objection as lacking in merit and overruled it on both of
limbs.
1. On Section 2 (a) of the Public Officers Protection Act, it
held that:
(a) That having regard to the judgment of this Court,
Ibadan Division, in Oyo State Board of Internal Revenue v.
University of Ibadan (2014) ALL FWLR (PT. 737) 595
@ 609; also reported in (2013) LPELR-CA/1/81/2010,
Coram Uwa, Tsammani and Daniel-Kalio, JJ.C.A. (which
judgment the trial judge described as the ‘more recent
decision of the Supreme Court’), the apex Court had
‘jettisoned’ its earlier
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decision in Ibrahim v. Judicial Service Committee of
Kaduna State (1998) 14 NWLR (PT. 584) 1 and all
other cases cited by appellant’s counsel and held that the
protection provided by Section 2 (a) of the Public Officers
Protection Act applies to only natural persons and not
public bodies or institutions, so it was unavailing to
appellant.
(b) The action was filed by 1st respondent within three
months of notification of the refusal of its application by
appellant, and
2. On the second ambit of Plaintiff/1st respondent’s failure
to comply with Section 141 of the Minerals and Mining Act
2007 exhausting statutory remedies therein for internal
dispute resolution before resorting to litigation, the lower
Court held that that is ‘not a condition precedent for filing
action, rather the section merely gives a guide to the
parties on the need to resolve any dispute which may arise
amicably before approaching a court of law’; that Section
141 is not the same thing as arbitration clause and does not
require any of the parties to give pre-action notice before
going to Court.
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To think otherwise, His Lordship continued, would
‘bastardize the provisions of S.36 (1) of the Constitution of
the Federal Republic of Nigeria and restrict the rights of
citizens to go to Court.’
The Appeal
Dissatisfied with that ruling, appellant lodged the instant
appeal on the 7th day of November 2017 on two grounds
and distilled the following two issues for determination:
1. Whether Section 2(a) of the Public Officers Protection
Act is only applicable to natural person(s) and does not
protect the applicant being an artificial person.
2. Whether compliance with Section 141(1) and (2) is not a
condition precedent before the filing of an action under the
Nigerian Minerals and Mining Act, 2007.
First respondent, the owner of the action, thought the only
issue for determination is whether from the facts and
circumstances of the matter the learned trial judge was
right in dismissing the objection of appellant for lack of
merit.
Second respondent, though represented, did not file any
brief of argument and did not frame any issue for
determination.
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On its issue 1, appellant, after pointing out that Oyo State
Board of Internal Revenue v. University of Ibadan
(2014) ALL FWLR (PT. 737) 595 @ 609; (2013)
LPELR-CA/1/81/2010 which the trial judge labeled
judgment of the Supreme Court was actually a decision of
the Ibadan Division of this Court, submitted that given the
decisions of the Supreme Court in Ibrahim v. Judicial,
Service Committee of Kaduna State (1998) 14 NWLR
(PT. 584) 1; Sulgrave Holding Inc. & Ors v. Federal
Government of Nigeria & Ors (2012) 17 NWLR (PT.
1329) 309 @ 338, Attorney-General of Rivers State v.
Attorney-General of Bayelsa State (2013) 3 NWLR
(PT. 1340)123 @ 145, all of which along with several
other decisions of this Court had consistently held that the
words ‘public officer’ as used in Section 2(a) of the Public
Officers Protection Act applies to both natural and artificial
persons, the lower Court was wrong in holding otherwise.
Relying on Osakue v. Federal College of Education
(Technical) Asaba (2010) 10 NWLR (PT. 1201) 1 @ 36,
counsel argued that even if there was a conflict between
the decision of this Court and that of the apex Court, any
Court below the Supreme Court is bound by principles of
stare decisis to follow the decision of the Supreme Court.
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On when the first respondent’s cause of action accrued and
whether first respondent’s action commenced on 15th June
2016 was commenced within three months of accrual of its
cause of action as held by the trial judge, appellant
submitted that the lower Court was again wrong when it
held that first respondent’s cause of could not have arisen
on 27th August, 2012 when appellant made its newspaper
publication refusing its application because publication in
newspaper is not contemplated by the Nigerian Minerals
and Mining Act 2007, and that the 26th April, 2016 letter
appellant claimed to have delivered to first respondent
notifying it of its (appellant’s) refusal of its application had
no evidence to substantiate it. Appellant, relying on the
affidavit in support of its preliminary objection before the
lower Court and processes attached to it as shown in the
records, argued, strongly, that first respondent was aware
of and admitted receipt of its 26th April 2016 Letter,
Exhibit FGN ‘H’, duly delivered by Fast Lane Express
courier service to it informing it of the refusal
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of its application so the trial judge was wrong to ignore that
letter and found its computation of accrual of cause of
action on the later 15th June 2016 letter. Counsel
submitted that in any case, apart from the difference in
dates, the said 15th June, 2016 letter was basically the
same with the earlier 26th April, 2016 letter. From 26th
April 2016 to 8th September 2016 when 1st respondent
filed its action was plainly more than three months of
accrual of its cause of action so it was caught by Section
2(a) of the Public Officers Protection Act and liable to be
struck out, appellant argued.
In reply, first respondent supported the lower Court’s
interpretation of the Public Officers Protection Act applying
to only natural persons and not artificial persons like
appellant.
Without complying with the known procedure of filing a
Respondent’s Notice, respondent also tried to support the
lower Court’s decision on the non-application of Public
Officers Protection Act on the ground that considering the
circumstances of the case, Section 2(a) of Public Officers
Protection Act does not avail appellant because its refusal
of its application
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cannot be said to have been done in pursuance of,
execution or intended execution of any Act or Law or of
any public duty or authority as required by the said
provision.
Assuming that the Public Officers Protection Act applied, it
further argued, the lower court was correct in its decision
that its action filed on 8th September 2016 was filed within
three months of the accrual of its cause of action,
calculating from 15th June, 2016 when appellant in
compliance with Section 14 of the Nigerian Minerals and
Mining Act properly notified it by courier of the refusal of
its application for mining lease. Directing our attention to
Nikagbatse v. Slater (2016) ALL FWLR (PT. 835) 250
@ 254 for definition of cause of action, first respondent
submitted that a cause of means a combination of facts and
circumstances giving rise to the right to file a claim for a
remedy; that a cause of action accrues when every fact
necessary for the plaintiff to prove to support his right to
judgment action exists. In determining if an action is
statute barred, the only processes the Court looks at are
the writ of summons and statement of claim,
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it was argued by first respondent citing again Nikagbatse’s
case and Woherem v. Emereuwa (2004) ALL FWLR (PT
221) 1570 @ 1573 (S.C.). It urged us to resolve this issue
in its favour.
Resolution of issue 1.
The issue here is in two limbs: (1) whether the lower Court
was correct in its decision that the Public Officers
Protection Act applies to and protects only natural persons
and not artificial persons like appellant, and (2) whether in
the event that it applies to artificial persons, first
respondent’s action was commenced within three months
as held by the lower Court and so not caught by Section
2(a) of Public Officers Protection Act.
On the first limb of this issue - of whether the lower Court
was correct in its decision that the Public Officers
Protection Act applies to and protects only natural persons
and not artificial persons like appellant – I am of the view
that the lower Court was, with due respect, wrong.
Interestingly, even the decision of this Court, Ibadan
Division, in Oyo State Board of Internal Revenue v.
University of Ibadan (2014) ALL FWLR (PT. 737) 595
@ 609; (2013) LPELR-CA/1/81/2010, which the lower
Court wrongly labeled decision of the
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Supreme Court and further said it had jettisoned cases like
Ibrahim v. Judicial, Service Committee of Kaduna
State (1998) 14 NWLR (PT 584) 1; Sulgrave Holding
Inc. & Ors v. Federal Government of Nigeria & Ors
(2012) 17 NWLR (PT. 1329) 309 @ 338, Attorney-
General of Rivers State v. Attorney-General of Bayelsa
State (2013) 3 NWLR (PT. 1340)123 @ 145 cited by
appellant'��s counsel, did not support its decision. Yes, our
brother Daniel-Kalio, J.C.A., who delivered lead judgment in
that case expressed his doubts as to whether the
expression '��public officer'�� in the Public Officers
Protection Act and indeed the scheme of that statute was
intended to apply to both artificial and natural persons, and
not just natural persons, as the Supreme Court held in
Ibrahim v. Judicial, Service Committee of Kaduna
State (1998) 14 NWLR (PT. 584) 1 and Or cases,
Daniel-Kalio, J.C.A., was at the end of the day very
conscious of the fact that he was bound by the Supreme
Court'�s pronouncement in Ibrahim v. Judicial,
Service Committee of Kaduna State to the effect that the
Public Officers Protection Act applied to not only natural
persons but artificial
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persons too. Hence His Lordship after his musings wrongly
labeled by the lower Court as the current position of the
law was quick to add that:
“I grant however that the Supreme Court has now clarified
the position of the law, see Ibrahim v. Judicial,
Service Committee of Kaduna State (1998)
LPELR-1408 (SC) P.19 and by that clarification, the
protection under the Public Officers Protection Act extends
to public bodies such as the Respondent. I am most
definitely bound.”
That is the correct position of the law - the protection
under Section 2(a) of the Public Officers Protection Act
extends to public bodies too such as the appellant as
confirmed by the Supreme Court in Ibrahim v. Judicial,
Service Committee of Kaduna State (1998)
LPELR-1408 (SC) P.19 and several other decisions of the
apex Court and this Court and after that case, so the lower
Court was wrong in holding differently.
I am afraid it was also incorrect on the second limb of this
issue, namely the date first respondent’s cause of action
occurred and whether the action was brought within three
months of the accrual of the cause of action and so not
caught bySection
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2(a) of the Public Officers Protection Act. That Section
states as follows:
Where any action, prosecution or other proceedings is
commenced against any person for any act done or in
pursuance or execution of any Act or Law or any
public duty or authority, or in respect of any alleged
neglect or default in the execution of any such Act,
Law, duty or authority – (a) the action, prosecution or
proceeding shall not lie or be instituted unless it is
commenced within three months next after the act,
neglect or default complained of or in case of a
continuance of damage or injury, within three months
(3) next after the ceasing thereof.
As pointed out, appellant, apparently conscious of the fact
that its preliminary objection was ‘likely to flirt with facts’
(if I may the expression of Tobi, J.S.C., in Attorney
General of the Federation v. A.N.P.P. ( 2003) 8 NWLR
(PT. 851) 182 @ 207) regarding when first respondent’s
application for Mining Lease No. 12270 was refused and its
cause of action accrued, deposed to an affidavit in support
of it to say that besides its newspaper publication of 2012,
plaintiff/first
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respondent kept pressuring it to grant its application so it
again formally served it by courier (as required by S.14 of
the Nigerian Minerals and Mining Act 2007) a letter dated
26th April 2016 informing it of the refusal of its application.
This is contained in Paragraph 34 of the affidavit of
Augustine Bakoshi of appellant in support of the objection
contained at pages 121 – 127 of the records as follows:
34. That upon the receipt of the said letter, the defendant
wrote a reply letter dated 26th April 2016 to the plaintiff
whereby the defendant re-affirmed or reconfirmed the
earlier position of the defendant that the Mining Lease
Application had since been refused in 2012. A copy of the
letter dated 26th April, 2016 and evidence of receipt of the
said letter through FAST LANE EXPRESS Delivery Service
are hereby attached and marked as Exhibits FGN ‘G’ and
‘H’ respectively.
This assertion of service and receipt of the 26th April, 2016
letter was expressly admitted by first respondent in
paragraph 17 of its counter affidavit as shown hereunder:
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17. That the plaintiff has met all the conditions precedent
for the grant of the Mining Lease applied for (ML 12270)
and the plaintiff was not notified of any defect to its
application and was not notified of refusal to issue the
ML 12270 despite so much follow up by the plaintiff via its
representatives, until through the letter dated 26th
APRIL 2016 and the letter dated 15th June 2016 written to
the plaintiff by the 1st defendant/applicant. The letters are
attached as exhibits UIG5 and UIG6 respectively.
Exhibit UIG5 (the 26th April 2016 letter of appellant to the
Chairman/ Managing Director of 1st respondent contained
at p. 201 of the records) opens with these words in its first
paragraph:
I am directed to acknowledge the receipt of your letters
dated 1st and 21st April, 2016 in respect of the above
subject matter, and to also inform you that your
application for Mining Lease 12270 had been since
refused for non-compliance, due to the inability of your
company to meet the conditions precedent for the grant of
a mining lease. Please see a copy of Newspaper publication
confirming the refusal of your application.
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What is admitted needs no further proof (Section 20 and
123 of the Evidence Act), it therefore did not lie with first
respondent to feign, neither was it open to the Court below
to hold, that service of the 26th April 2016 letter by
appellant informing first respondent of the refusal of its
application for Mining Lease No. 12270 was not proved or
brought to its knowledge. That fact having been admitted
and so not in issue between the parties needed no further
proof and is not open to disputation.
Now, the accrual of cause of action is the event where the
cause of action becomes complete so that the aggrieved
party can begin and maintain his cause of action (see
Attorney-General of Lagos State v. Eko Hotels Ltd
(2006) LPELR-3161 (SC) P.55; Owie v. Ighiwi (2005) 1
S.C. (PT 11) 16, (2005) 1 NWLR (PT. 917) 184; (2005)
LPELR-2846). That, in this case, is the communication by
appellant to 1st respondent on 26th April 2016 of the
refusal of its application for Mining Lease No. 12270. First
respondent’s three months’ to commence action started to
run from that 26th April 2016. The 8th September, 2016
when first respondent filed its action is more than three
months.
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First respondent’s action was therefore undoubtedly caught
by Section 2(a) of the Public Officers Act which requires
that actions against public officers must be commenced
within three months of the accrual of the cause of action.
The Lower Court was therefore again incorrect in its
holding that the action was not caught by the Public
Officers Protection Act. Issue 1 of appellant is accordingly
resolved in its favour and against first respondent.
That takes me to issue 2 where appellant complained that
first respondent’s failure to first comply with the provisions
of Section 141 (1) and (2) of the Nigerian Minerals and
Mining Act 2007 and its Mining Regulations 2011 which all
enjoin it to resort to amicable resolution before litigation
was also fatal to its case. Citing a number of cases, it
argued that the lower Court misconstrued Section 141 (1)
and (2) of the Nigerian Minerals and Mining Act 2007 and
arrived at a wrong decision when it held that the said
provision does not make a condition precedent to
commencement of action but merely gives the parties a
guide on the need to resolve amicably any dispute which
may arise before resorting to litigation.
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Counsel to appellant urged us to take special note of the
fact that the word employed by Section 141 on the duty to
first resort to amicable resolution is the mandatory ‘shall’,
which it argued suggests the provision does not leave first
respondent with a discretion in the matter, contrary to the
lower Court’s reasoning.
In response, learned counsel to first respondent also
contended it is rather appellant that misconstrued Section
141 of the Nigerian Minerals and Mining Act 2007.
Directing our attention to the said provisions which
variously state that ‘Any dispute arising between the holder
of a Mineral title and the Government in respect of
interpretation and application of this Act, its regulations
and terms and conditions of Mineral titles shall be resolved
in the first instance on an amicable basis,’ and ‘Any dispute
between the holder of a Mineral Title and the Government
shall be resolved in the Federal High Court, if not settled in
accordance with the Provisions of Subsection (1) and (2) of
this Section,’ counsel argued that 1st respondent being not
yet a mineral title holder but merely an applicant for
mineral
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title, the said provisions were not intended to and cannot
apply to it. To that extent, counsel submitted, all the cases
cited by appellant cannot apply to it.
In a 14-page Reply Brief, counsel to appellant submitted
that it is not open to first respondent to argue that it is not
a Mineral title holder given its own admission that it is not
only the holder of Exploration Licence No 9673 EL granted
by appellant. He also pointed to 1st respondent’s admission
in paragraph 44 of the Witness Statement of 1st
respondent’s witness Augustine Bakoshi contained at p. 98
of the records, to the effect that it also currently holds two
Small Scale Mining Leases Nos. 9926 and 15277 as well as
a Quarry Lease No. 9887. Counsel to appellant also
referred us to paragraph 32 of the Counter affidavit of
Engineer Ibrahim Muhammad Panti in opposition to the
preliminary objection contained at p.188 of the records
where the said deponent at first respondent’s instance
swore that the said two Small-Scale Mining Leases issued it
by appellant are not operational because it (first
respondent) had concentrated all its energy and finances
on exploring EL 9673 which
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gave birth to its application for ML 12270 in issue. In any
event, appellant further argued, Sections 15(1) and (2) and
16 of the Nigerian Minerals and Mining Regulations 2011
empowers the Honourable Minister to set up a committee
to inquire into and resolve any dispute between holders of
Mineral titles either amongst themselves or between them
and Mineral title applicant or third party.
Resolution of issue of 1ssue
Now, Section 141 of the Nigerian Minerals and Mining Act
2007 provide that:
141(1) Any dispute arising between the holder of a Mineral
title and the Government in respect of a interpretation and
application of this Act, its regulations and terms and
conditions of Mineral titles shall be resolved in the first
instance on an amicable basis, and
(2) Where the dispute is in the nature of a bonafide
investment dispute and such dispute is not amicably settled
as provided under Subsection 1 of this section, it shall be
resolved in accordance with the provisions of the Nigerian
Investment Promotion Commission Act Cap. N117 Laws of
the Federation of Nigeria,
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(3) Any dispute between the holder of a Mineral Title and
the Government shall be resolved in the Federal High
Court, if not settled in accordance with the Provisions of
Subsection (1) and (2) of this section.
Also relevant to proper resolution of this issue are the
provisions of Sections 15, 16 and 17 of the Nigerian
Minerals and Mining Regulations 2011. Those provisions
state thus:
15. Dispute Resolution
(1) The Minister may, as and when necessary establish a
committee to enquire into and resolve any dispute between
holders of mineral titles either amongst themselves or
between them and mineral title applicants or third parties.
(2) The dispute referred to in Subsection (1) of this
Regulation may relate to:
(a) disputed boundaries;
(b) assessment and payment of compensation;
(c) environmental or social obligations;
(d) any act or omission connected with mining operation;
(e) any dispute arising from the processing or refusal of
application for mineral titles; and
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(f) any dispute between applicants for and holders of
mineral titles.
(3) The Minister may approve and make any order which
may be necessary for the purpose of giving effect to the
decisions of the Committee.
S.16. Procedures for Dispute Resolution
(1)(a) The party who is aggrieved shall submit a
memorandum stating briefly the subject matter of
complaint, the facts relied upon and the relief or prayer
sought.
(b) The complaint shall be served on the party against
whom it is filed, who shall be given opportunity to file a
memorandum within seven days.
(c) A date and time will be fixed for the parties to dialogue
and to present their witness (if any) and any additional
documents or material they intend to rely upon.
(d) The committee and parties may visit or carry out
physical inspection of any material or objects and may
make necessary directives to preserve or protect the
subject matter of the dispute.
Section 17 provides for appeal by any party aggrieved with
the committee’s decision. It reads:
S. 17: Aggrieved Party may Appeal
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(1) Any person aggrieved by any decision of the Ministry or
any of its agencies on any application or matter under these
Regulations, may within seven days after being notified of
the decision, appeal to the Minister for a review.
(2) The appeal shall state:
(a) The particulars of the holder or applicant;
(b) the particulars of the title in respect of which the
appeal is made.
(c) The subject matter of the appeal;
(d) The grounds of the appeal; and
(e) The prayer or relief sought.
(3) The Minister may set up a committee to consider the
appeal and forward to him a report which shall include its
findings and recommendations.
(4) On receiving the report, the Minister may uphold, set
aside or vary the decision complained of;
(5) A notice of the Minister’s decision on the appeal may
be set sent to the parties within seven days of the receipt of
the however any delay to issue the notice will not nullify
the decision of the Minister.
(Italics mine.)
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The provision does not oust the jurisdiction of the Courts as
the lower Court held, for Subsection 6 of Section 17 goes
on to confer a right on any mineral title holder still
aggrieved with the decision of the Minister to approach the
Federal High Court for redress. It reads:
(6) The mineral title holder if not satisfied with the outcome
of the appeal to the Minister, may seek redress from the
Federal High Court.
These provisions comprehensively and compulsorily require
administrative dispute resolution by any mineral title
holder or applicant before resort to litigation.
Now, it is settled that where a statute provides for dispute
resolution before resort to litigation, failure to exhaust
those remedies is a bar to litigation and puts the
jurisdiction of the Court on hold. The authorities on this
point are legion. In Delodun Mohammed & Anor v.
Kamaldeen Salaudeen & Ors (2017) ALL FWLR (PT.
932) 779 @ 809, I had this to say on this issue citing
Walter F. Murphy and C. Herman Pritchett’s Courts, Judges
and Politics: An introduction to the Judicial Process, 2nd
Edition, p. 220:
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“The learned authors Walter F. Murphy and C. Herman
Pritchett could not have put it more correctly in their book,
Courts, Judges and Politics: An introduction to the Judicial
Process, 2nd Edition, when, in the chapter titled ‘Access to
Judicial Power,’ they opined (at p. 220) that:
“If government action is challenged in a law suit, the action
must be sufficiently final or ‘ripe’ for review by Federal
Courts. This rule forms the basis for the doctrine of
exhaustion of administrative remedies, which requires that
persons aggrieved by administrative decisions must have
used all the procedures available for correcting the action
administratively before they have standing to be heard in
Court.”
Very recently in Attorney General of Kwara State &
Anor v. Alhaji Saka Adeyemo (2017) ALL FWLR (PT.
868) 610; (2016) LPELR –SC.650A/2013, the Supreme
Court (Rhodes-Vivour, J.S.C.), dealing with not dissimilar
provisions of the Chiefs Law of Kwara State reconfirmed
this position of the law as earlier settled by it in
Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt.
325) p.1, saying (at p. 24 LPELR):
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“Where a statute provides a legal line of action for
determination of an issue, be that issue an administrative
matter, chieftaincy matter, the aggrieved party must
exhaust all remedies in the law before going to Court. See
Eguamwense vs Amaghizemwen (1993) 9 NWLR (Pt.
325) p. 1, Chief Israel Aribisala & Ors vs. Talabi
Ogunyemi & 2 Ors (2005) ALL NWLR (Pt. 252) p.
451.”
and adding immediately that:
“The provisions of the Chiefs (Appointment and Deposition)
Law of Kwara State are clear on the steps to be taken. The
1st - 3rd claimants/respondents avoided the provisions of
the law laid down for settlement of disputes and rushed to
Court. This is clearly wrong. The provisions of Section (3)
supra must be complied with before a suit can be filed in
Court. The said provision is not unconstitutional.”
Ngwuta, J.S.C, in the same case further gave the rationale
for these provisions in statutes and the effect of non-
compliance with them thus:
“Above are pre-action requirements in the same class as
pre-action notices which have been declared not
unconstitutional. ….. The aim of statutory preconditions for
commencement of actions
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is to provide opportunity for settlement out of Court. …The
intendment is to give the person contemplating Court
action opportunity to give the matter a second thought
before embarking on avoidable litigation. Unless the
conditions-precedent to the institution of an action are
complied with, the party initiating the action cannot ignite
the jurisdiction of the Court to hear and determine the
dispute. In such a case, the matter has to be struck out.”
That is exactly what should have befallen first respondent
at the lower Court. Its case ought to have been struck out,
its specious argument here of it being only an applicant,
that the provisions of Section 141 apply to only mineral title
holders, notwithstanding. That argument even flies even in
the face of its own pleadings. ‘Mineral title’ which it argues
it does not hold is defined in Section 164 of the Nigerian
Minerals and Mining Act 2007 as follows:
‘Mineral title’ means Reconnaissance Permit, Exploration
Licence, Small-Scale Mining Lease, Mining Lease, Water
Use Permit, or Quarry Lease or any of these titles or any
one of these titles, consistent with the context in which the
term ‘mineral title’ is used.
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In other words, the word ‘mineral title’ also includes Small-
Scale Mining Lease which it swore it already held from
appellant.
Even more importantly, ‘mineral title’ includes its
Exploration Licence No. 9673EL it sought to turn to Mining
lease and sought relief for “A DECLARATION that the
plaintiff, pursuant to the Exploration Licence issued by the
1st defendant, paid the necessary fees, satisfied other
conditions and expended money and resources on the area
of interest and became satisfied that there is sufficient
lead/zinc deposit within the area that can be extracted at
profit and applied for Mining Lease No. 12270.” In fact its
entire complaint in the action is about appellant’s refusal to
grant its application to turn its Exploration Licence to
Mineral Lease after it had, according to it, expended huge
sums of money exploring for mineral and struck extractable
minerals; that appellant was also wrong to deny it the fruits
of its labour and to proceed to award Mining Lease No.
12270 to 2nd respondent over the same area of its
Exploration Licence.
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That action, even if first respondent was just an applicant
and not a mineral title holder as it wrongly claims, it was
obliged to first subject to appellant’s internal dispute
resolution mechanism by submitting a memorandum to that
effect as stated in Sections 141 of the Nigerian Minerals
and Mining Act 2007 and 15, 16 and 17 of the Regulations
2011. It is only thereafter, it could properly resort to
litigation in the lower Court. In that exercise, second
respondent would have been joined and heard as required
by the relevant provisions aforementioned. These
provisions, it must also be noted, employ the mandatory
‘shall’
First respondent’s failure to do that denied the lower Court
of jurisdiction and Shitu Abubakar, J., was wrong when he
decided otherwise.
I should also add that His Lordship, Shitu Abubakar, J.,
should have been more circumspect in his decision,
especially when the decision of his Brother, A.L. Alagoa, J.,
o f Jos D iv i s ion o f the same Court in Su i t No .
FHC/J/CS/12/2011: Geotess Nigeria Ltd. v. Ministry of
Mines and Steel Development, which had upheld a
similar objection, was brought to his notice.
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That judgment is contained at pages 250 – 267 of the
records of appeal.
Issue 2 is accordingly resolved in favour of appellant.
In the final analysis, the appeal is meritorious and is
allowed and the decision of M. Shitu Abubakar J., appealed
from is set aside. In its stead, an order is here made
sustaining the preliminary objection of appellant to Suit No.
FHC/BAU/CS/30/2016 of first respondent pending at the
lower Court and the said suit is hereby struck out.
Parties shall bear their costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I
have had the privilege of reading the lead judgment
delivered by my learned brother, Boloukuromo Moses Ugo,
His Lordship has ably considered and resolved the issues in
contention in this appeal. I agree with the reasoning and
abide by the conclusions reached therein.The issues in the
appeal are very narrow and I do not see the need to make
any addition to the deliberations in the lead judgment.
TANI YUSUF HASSAN, J.C.A.: I read before now, the
lead judgment of my learned brother, BOLOUKUROMO
MOSES UGO JCA.
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I agree with the reasoning and conclusion therein that the
appeal has merit and it succeeds. I adopt as mine and I
abide by the order made.
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Appearances:
Y.M. Yakubu, Esq. (Chief State Counsel, FederalMinistry of Justice) For Appellant(s)
M.S. Usman, Esq. holding brief of O.N. Kadanga,Esq. for 1st respondent.
O.E. Aklo, Esq. holding brief of L.O. Longpiya,Esq. for 2nd respondent. For Respondent(s)
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