Preliminary Objections (Contesting Jurisdiction Of A Court And Substantive Suits), A Battle Of Priority By Olamide Owolegbon

At the commencement of a suit and upon the service of the writ, a defendant’s counsel should first consider the crucial question of competence (likelihood of raising a preliminary objection contesting the jurisdiction of the court) , if upon careful perusal of the originating processes and statement of claim, it is clear that the objection would be granted. This is pertinent, as it prevents a situation where parties embark on an exercise in futility.

The supreme court in the case of “Abubakar & ors V. Nasamu and ors [2012] 5 SCM, 1” held that jurisdiction is crucial and radical issue and it is mandatory to first resolve it before proceeding with the suit, the reason behind this being that issue one in the briefs of all the parties in the four consolidated appeals is jurisdictional in nature, it is mandatory to first and foremost resolve it one way or the other before proceeding to considering other issue in the appeals on the merit. The reason being that jurisdiction is a radical and crucial question of competence. Once there is a defect in competence, it is fatal and the proceedings are a nullity.

In A.-G, Adamawa State v. A.-G., Fed. [2014] 14 NWLR (Pt.1428) 570 per OGUNBIYI J.S.C. rightly alluded to Order 29 Rule 1 of the Federal High Court Rules, 2009 which provides thus:

  1. where a defendant wishes to –

(a) dispute the Court’s jurisdiction to try the claim; or

(b) argue that the Court should not exercise its jurisdiction, he may apply to the Court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have, and the Court may take such application together with the Plaintiff’s substantive suit in so far as the substantive suit does not involve the taking of oral evidence.

The position aforementioned leaves the consideration of the hearing of the application for preliminary objection solely or jointly with substantive suit at the mercy of the court.

Then in Lafia L.G. V. Exec. Govt. Nasarawa State [2013] ALL FWLR (pt 668) 956 S.C. @982 para H per Rhode- Vivour JSC pointed out that  jurisdiction is fundamental in every suit. It is a threshold matter, so once raised,  must be decided quickly before anything else. This is so because if a court lacks jurisdiction to hear a case, but goes ahead to hear the case, no matter how well the case is decided, the entire proceedings would amount to a nullity. It is the life and soul of a case. It is so important that it can be raised at anytime in the court of first instance, on appeal, and even in the Supreme Court for the first time. It can also be raised suo motu provided counsels are given the opportunity to address the court on it before a decision is taken.

Also in Ajayi V. Adebiyi [2012] ALL FWLR (pt 634) 1 S.C. @30 para C per Adekeye JSC mentioned inter alia, it is noteworthy that an application or preliminary objection seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurer and therefore can be filed and taken even before the defendant files his statement of defence or without the defendant filing a statement of defence. The reason being that the issue of jurisdiction can be raised at anytime. In addition, the relevant things to be considered by the court in determining the issue of jurisdiction are the facts as deposed to in affidavits, writ of summons and the statement of claim where one had to be filed and served. The statement of defence is not one of the relevant materials for that purpose.

In the case of National Deposit Insurance Corporation V. Central Bank of Nigeria (2002) FWLR (pt 99) 1021, the court identified the difference between demurrer and objection to jurisdiction by holding that “there is distinction between objection to jurisdiction and demurrer. It is misleading to equate demurrer with objection to jurisdiction. It is a standing principle that in demurrer, the plaintiff must plead and it is upon the pleading that the defendant will contend that accepting all facts pleaded to be true, the plaintiff has no cause of action, or where appropriate, no locus standi. The issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not entirely depend as such on what a plaintiff may plead as facts to prove the relief he seeks. What it involves is what will enable the plaintiff to seek a hearing in court over his grievance and get it resolved because he is able to show that the court is empowered to entertain the subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction”

It is true that once an issue of jurisdiction is raised in any suit, the court must not give an order in the suit affecting the defendant until the issue of jurisdiction is settled. The trial court obviously made a wrong order in dismissing the application of the appellant based on issues of jurisdiction, locus standi of the plaintiff / respondent and limitation law.

In the case of  Petrojessica Enterprises Ltd v. Leventis Technical co ltd (1992) 5 NWLR (pt.244) 675 at 693, it was held that jurisdiction is the very basis on which any tribunal tries a case. It is the lifeline of all trials. A trial without jurisdiction is a nullity. This importance of jurisdiction is the reason why it can be raised at any stage of a case be it at trial.

Wrapping up, I submit that where preliminary objection touches upon the competence of the action or on the jurisdiction of the court to entertain same, it would be impulsive and reckless for any court to proceed with a suit which is deficient in that respect, as any proceedings or decision taken without jurisdiction, no matter how brilliantly or fussily conducted, would amount to nullity. As you cannot place something on nothing and expect it to stand. It will simply crumple like a pack of cards.

 

Olamide Owolegbon Esq.

@olamide_kaka

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Port Harcourt, Warri Refineries Commence Preliminary Production …As NNPC Announces Repairs Of Arepo Pipeline

The Management of the Nigerian National Petroleum Corporation (NNPC) on Monday announced that the Port Harcourt and Warri refineries have been successfully re-streamed after a nine-month phased rehabilitation exercise conducted by its in-house engineers and technicians.

The Corporation in a statement revealed that both plants have commenced preliminary production of petroleum products after successful test-runs noting that while PHRC is ramping up its operation to about 60 percent of its 210, 000 barrels per day name plate capacity, WRPC production is projected to hit 80 percent of its installed 125,000 bpd capacity.

The NNPC informed that the PortHarcourt Refinery is projected to boost the nation’s local refining capacity with a product yield of 5 million litres of petrol per day while Warri Refinery would contribute 3.5 million litres of petrol to local refining capacity.

Providing insight into the rehabilitation exercise, the NNPC noted that it had to adopt the phased rehabilitation strategy after the Original Refinery Builders (ORB) who were initially contacted for the project came up with unfavorable terms.

“Though a decision was taken in 2011 to rehabilitate all the refineries using the ORB of each of the refineries, we were impelled to switch strategy after the ORBs declined participation and nominated some partners in their stead who came up with outrageously unfavorable terms’’.

The NNPC stated that the nominated partners, as sole-bidders came up with humongous price offers after two years of thorough and exhaustive scope of work definition and price negotiations. The proxies were also unwilling to provide post rehabilitation performance guarantees.

“The phased rehabilitation strategy which entailed phased and simultaneous rehabilitation of all the refineries using in-house and locally available resources in line with the spirit and letter of the Nigerian Content Law, also involved the use of Original Equipment Manufacturer representatives to effect major equipment overhaul and rehabilitation’’.

The Corporation informed that the phased rehabilitation programme which started in October 2014 after the required funding stream was established created a 70 percent reduction in costs which helped largely in mitigating the financing challenges of refinery rehabilitation.

The Corporation said that with the successful re-streaming of the PHRC and WRPC attention has now moved to the 110, 000 barrels per day Kaduna Refining and Petrochemicals Company which is billed to come on stream soon.

In a related development, NNPC has disclosed that it has successfully recovered the System 2B Pipeline which was breached last week at Arepo, Ogun State.

The Corporation stated that its team of engineers who were deployed to the scene of the incident was able to access the pipeline after the fire was put out and commenced repair work immediately.

“We wish to announce that the vital System 2B Pipeline which was breached at Arepo last week has been fixed and brought back on stream. Pumping of products through the system commenced on Monday upon successful completion of repair work over the weekend.

“We also wish to call on all those engaged in the criminal acts of pipeline sabotage and oil theft to desist in order to avoid such horrendous deaths as was witnessed in the recent incident.”

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Buhari’s First Month: A Preliminary Appraisal By Waziri Adio

Exactly a month ago, President Muhammadu Buhari took over the reins of power. It is still early days yet, just one month out of 48, a mere two per cent of a four-year term.  Ordinarily, it is too early for even a tentative appraisal.

But these are no ordinary times. Nigeria is in a very terrible place. And most Nigerians, especially those who deliriously bought into the promise of change, expect the world of their new president, and expect it quickly, or at least expect to quickly see reassuring signs of it.

But it is not clear that President Buhari got that memo about pace and the foreshadowing import of take-off or, in case he did get the memo, that he thinks much of it. Beside the burden of expectations and the normal search for signs, the past four weeks have thrown up a number of issues that are getting even the most ardent Buharists worried. These issues may define the character and the capacity of the new administration and are worth highlighting early on as a service to both the president and the country. I will examine some of these issues below, using three criteria to undertake what I have deliberately called a preliminary appraisal.

Public Perception: The increasingly widespread perception is that Buhari has not taken off with a bang, or to use the new cliché, that ‘he has not hit the ground running’.  This contrasts sharply with the impression avidly sold and enthusiastically bought during the campaigns. Buhari had been positioned as a man ready to govern from day one. Beyond the work of campaign spin merchants, the fact that Buhari had been a head of state and that he had, for four electoral cycles, been a conscious candidate, not a drafted or an accidental one, helped in solidifying this impression. Besides, the presidential election was conducted a clear two months before the inauguration and he has had the rare luck of not being distracted by post-election litigations.

It is thus not unreasonable to expect that Buhari, given his antecedent and the admitted urgency of the task at hand, would set to work immediately. It is also not unreasonable that he would settle in quickly, aided by a core team that he would have identified over time and with a blueprint that he might just need to temper with inherited realities. A month after, his core team is not yet in place. The president is yet to name his Chief-of-Staff, even if in acting capacity, or choose his advisers, even when the last Senate had promptly approved his request for advisers.

The Secretary to the Government of the Federation, the engine room of government, has also not been appointed. If the president has a blue-print, the best we can do for now is to speculate about it, as none has been clearly articulated or even suggested.

While the president may need to consult in choosing ministerial nominees and would need the Senate to confirm them, the key appointments mentioned above are almost exclusively his prerogative. In a pre-inauguration interview with Daily Trust, Buhari said he had an idea or a list of his key appointees already but would rather keep it in his chest. If that sounded defensible prior to inauguration, I doubt if it still does a month after. In a recent interview with Arise TV, President Buhari said he was not in a hurry to appoint ministers. Well, they will be his ministers. But the president needs to realise that this is not exclusively in his hands. If he is not in a hurry, the country is. And a critical element of leadership is knowing where your people are.

Some explanations have been given on the president’s current pace. One explanation is that he needs to be fully aware of what he has inherited before making appointments and commitments. Another is that he is just being careful, trying to avoid mistakes and desirous of appointing only untainted people. Yet another is that he wants all the factions in his party to wear themselves out first. Then, there is the argument that as a matter of personal style, the president abhors being pressured and he takes his time to come to a decision. To be sure, every president is entitled to his/her style. But to be effective, presidents need to align their styles with the moment and the mood of their people.

The reasons given for the delay in appointments and policy direction cannot pass the muster for long. Presidents will make mistakes because they are human. And having the power to fire and hire and amend initiatives, they are allowed to adjust and adapt. By the way, they won’t know they have made mistakes until they act. Also, even if he takes the entire 48 months of his term, the president will still make mistakes and will not have all the information he needs. We live in a world of incomplete information anyway, yet decisions have to be made. Nigerians yearn for a president who will be decisive, not one that will be above mistakes or one that will make only perfect decisions. Additionally, the myth of a president who can govern effectively without aides and ministers has zero shelf life.

I have no scientific data on this, but my hunch is that the president’s stock of goodwill is getting depleted by the impression of seeming vacillation. While giving allowance for the fact that some people for certain reasons will never be Buhari’s fans no matter what he does (there will be haters, as the Adidas advert says) and that politicians frustrated by his peculiar style might be the ones whispering the tale about indecisiveness, it is very important to pay special attention to how public perception evolves. Public perception is very critical to democratic governance and the effusive support of even fanatical supporters should not be taken for granted. Perception can be fickle. The good news is that it is early days yet, and it is still possible for Buhari and his team to pro-actively take charge of the narrative and shape how the administration is perceived, not just through spin but, more importantly, through concrete actions.

Key Campaign Promises: President Buhari rode to power on a chariot of promises. He vowed to curb corruption, tackle insecurity, and rescue the economy. All these resonated with most Nigerians, gave him an edge over an incumbent, and secured him a historic win. But as the late Mario Cuomo memorably stated, Buhari would have discovered by now that ‘you campaign in poetry; you govern in prose’. From the little that has happened in the first one month, it is difficult to say Buhari will or will not deliver on his campaign promises. But some patterns are emerging that are worth paying attention to.

One, it is clear that fighting Boko Haram will be Buhari’s big thing. This is clearly signposted by his decision to ask for the relocation of the command headquarters to Maiduguri, his meetings with service chiefs and his visits to Chad and Niger and the G7. Next, or at par to security, will be anti-corruption. The most memorable line from his inaugural speech remains ‘I belong to everybody and I belong to nobody,’ suggesting that he would not be held hostage by vested interests, including those in his party, and that the days of sacred cows and impunity are numbered. The mere knowledge that a new sheriff is in town has already woken up some anti-corruption agencies and has put everyone else on notice. But his mere presence is not enough. He needs to take concrete steps that will show he really means business. Otherwise, the fear factor will disappear, same with the momentum. The flak he has received for not publicly declaring his asset (a clear promise he made in his Covenant with Nigerians) and for not commiserating with victims of recent attacks by Boko Haram underscore the fact that governance is a delicate balance between substance and symbolism. This is a lesson that can be ignored at great cost.

The economy is clearly not Buhari’s strong suit and no one should be apologetic about it. But given the current state of the economy and the need for clear direction and urgent but informed decisions, this fact makes a compelling case for the appointment of his advisers and ministers on the economy. Ahead of this, I suspect a statist impulse, an over-careful approach and the possibility that eventual reforms might not go far enough. Punch yesterday reported that the government has incurred N57 billion on petroleum subsidy under one month. If there is anything on which there is close to a consensus today, it is on the need to remove this badly targeted and corruption-riddled subsidy programme. Even if there is a plan to fix our refineries, what is to be lost by removing the subsidy?

Also, the presidency has denied a story about a plan to sell off some aircraft in the presidential fleet. This would have sent a powerful message about the desire to cut waste and would have strengthened the hands of the administration when it eventually requests citizens to make sacrifices. When he eventually gets to it, I think it is important for the president to adopt a very radical approach to cutting/eliminating wastes, from symbolism of reducing aides and salaries through leading constitutional reforms that will eliminate unnecessary structures and roll back the prebendal state to campaigning against an entrenched ethos that sees public resources as good only for plunder.

Political Management: Mark H. Moore, the pre-eminent authority on strategic public management, insists that political management is the most important work of public officials, presidents inclusive. President Buhari needs to take politics more seriously. His present stand-offish position may come back to bite him. He doesn’t need to make himself the leader of his party, the All Progressives Congress (APC), and I won’t advise him to impose his candidates on the National Assembly. But he cannot stand by while his party becomes engulfed in an internecine warfare, loses the capacity to enforce its will, and becomes a systemic risk.

There is a real chance that the calculated insurgency in the National Assembly, and the thorough mismanagement of it by APC, may spin out of control. Whether he likes it or not, Buhari is now a politician and he is a president in a political environment. Even if there are points to be scored for not appearing dictatorial and not interfering in a battle with guilty parties on all sides, allowing the crisis to fester and not taking charge of the political environment is counter-productive.

A crisis-ridden party and an unstable parliament will negatively impact his ability to see through his legislative and reform agenda and weaken his capacity to govern. Using his convening power and moral authority, he needs to actively pursue genuine reconciliation and nudge his party to move from an electoral platform to a real political party. This also makes a compelling case for why he should prioritise political management as a critical area of presidential work and why he needs to promptly appoint his advisers on political, inter-party, and legislative affairs.

The take-off is critical to any enterprise. But the beginning is not destiny. Just a single major action could spark life into Buhari administration. It is still morning yet.

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