IN THE HIGH COURT OF JUSTICE OF PLATEAU STATE
HOLDEN AT JOS
ON THURSDAY THE 10TH DAY OF MAY, 2018
BEFORE HIS LORDSHIP: JUSTICE M. I. SIRAJO …………….….JUDGE
SUIT No. PLD/J709/2017
BETWEEN:
SPRING CRADLE NIG. LIMITED…………………………………....PLAINTIFF
AND
Pursuant to the leave granted her, the plaintiff filed this suit on the Undefended List against the defendants. The plaintiff’s claim is for the sum of N7,140,000.00 being the outstanding balance owed her by the defendants as well as 10% post judgment interest and cost of this action. An affidavit of 8 paragraphs sworn to by Amaka Umeh, a litigation secretary in the law firm of Nwogu O. Christian & Co., Solicitors to the plaintiff, supports the claim. From the content of the affidavit, the dispute in this suit arose out of a contract entered into by the parties for the supply of 70 tones of Lead Ore. It is the case of the plaintiff that the defendants supplied only 59 tones leaving a balance of 21 tones after they were paid N23,000,000.00 by the plaintiff at the rate of 340,000.00 per tone. It is the amount paid for the unsupplied balance of 21 tons of lead ore that the plaintiff filed this suit to recover.
Upon being served with the Writ of Summons and the supporting affidavit, the defendants filed a Notice of preliminary objection, Notice of intention to defend and an affidavit simultaneously on 22/12/2017. The defendants also filed a memorandum of conditional appearance on 27/12/2017. The Writ was served on the defendants on 19/12/2017. In the preliminary objection, the defendants sought for an order of this Court striking out the suit. The grounds for the objection were couched thus:-
“1. The subject matter of the suit is the Supply of Mineral Resources and therefore bringing this action before a State High Court offends the provision of Section 251 (1) (n) of the Constitution of the Federal Republic of Nigeria 1999, (as amended).
2. By the agreement of parties in the contract the defendants are not liable.
3. The plaintiff did not serve the defendants with any notice terminating the contract pursuant to the contract agreement before instituting this action.
4. Paragraph 4 of the Plaintiff’s affidavit in support of the Writ of Summons offends Section 115 of the Evidence Act.”
The preliminary objection is supported by an affidavit of 25 paragraphs sworn to by Mr. Denzel Henry Akogwu, the 2nd defendant. After going through the affidavit, I find that the paragraphs of the affidavit that are relevant and related to the grounds of objection are paragraphs 4, 5, 6, 7, 8, 9, 20, 21 and 22. I hereby reproduce them below:
“4. That I know the plaintiff is an artificial person and cannot give a verbal information.
5. That the plaintiff did not disclose the agent of the plaintiff who informed Amaka Umeh a litigation secretary in the firm of Nwogu O. Christian and Co. of the information deposed to in the affidavit in support of the Writ of Summons and therefore the affidavit of the plaintiff is completely defective and speculative.
6. That the contract between the 1st defendant and the plaintiff is for the supply of Lead ore, a mineral resources. The contract agreement is hereby annexed and marked exhibit “A”.
7. That the said contract agreement provides that neither of the parties will be liable.
8. That we were never served with any Notice of Termination of contract by the plaintiff before this suit was instituted.
9. The defendant never wrote to us complaining on the quality of the product before instituting this action.
20. That it is the plaintiff that is in breached of the contract and therefore the 1st defendant and I are not liable in any way to the plaintiff.
21. That I know we are bound by the contract we voluntarily entered into with the plaintiff.
22. That this honorable Court lacks the jurisdiction to entertain this suit being a matter connected with Solid Minerals.”
In response to the notice of preliminary objection, Amaka Umeh, a litigation secretary in the law firm of Nwogu O. Christian and Company filed a counter-affidavit of 17 paragraphs. The gravamen of the counter-affidavit as it relates to the notice of preliminary objection is that the transaction between the parties is a simple contract and that the contract did not state that the defendant should not supply the remaining lead ore or pay back the money for the balance. That this action, having been founded on breach of contract, this Court has jurisdiction to hear and determine the suit.
Learned counsel for the parties have filed written addresses in support of their respective positions.
Let me say at the outset that the contents of the affidavit and the counter-affidavit in support and against the preliminary objection contained several facts that are outside the confines of the grounds of objection. Many of the paragraphs of the affidavit and the counter-affidavit were addressing issues in the substantive suit which I cannot touch at this stage, as I am restricted only to the grounds of the objection for now. I will proceed to determine the preliminary objection.
In the written address settled by Gyang Zi Esq, two issues are formulated on behalf of the defendants/objectors; viz:
“1. Whether in view of the provision of section 251(1) (n) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) this Court has the jurisdiction to try this suit.
2. Whether in view of the contract of the parties; Lead Ore contract dated July 21, 2017 between the parties to this suit, this Honorable Court has jurisdiction to entertain this suit.”
In arguing issue one, learned counsel submitted that by virtue of the provision of Section 251(1) (n) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), only the Federal High Court has exclusive jurisdiction to try and determine this matter as it concerns mines and minerals, specifically the supply of lead ore. Learned counsel contended that even though this suit is for contract, the case cannot be determined without touching on the principal issue as clearly contained at paragraphs 4, 5 and 6 of the affidavit in support of the claim. He urged the Court to resolve this issue in favor of the defendants and strike out the suit. In his opposing submission on this issue, Mr. Nwogu submitted that Section 251(1)(n) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) did not confer exclusive jurisdiction on the Federal High Court on matters of simple contract, tort or damages. He urged the Court to dismiss this ground of objection on the authorities of KLM Royal Dutch Airlines vs. Taher (2014) 2 NWLR (Pt. 1393) 144 Ratio 1; Felix Onuorah vs. Kaduna Refining and Petrochemical Co. Ltd (2005) 2 and 3 SCNJ 180 – 181.
Section 251(1) (n) of the Constitution of the Federal Republic of Nigeria, 1999 confers exclusive jurisdiction on the Federal High Court in Civil causes and matters pertaining to or concerning Mines and Minerals (including oil fields, oil mining, geological surveys and natural gas). Interpreting a similar provision of the 1979 Constitution in the case of Onuorah vs. Kaduna Refining and Petrochemical Co. Ltd, (supra), the Supreme Court, per Akintan, JSC, held that the exclusive jurisdiction conferred on the Federal High Court in such matters did not extend to contract. In the instant case, in an attempt to determine whether this suit is within the jurisdiction of this Court, I took a cursory look into the affidavit in support of the claim and the affidavit in support of the notice of intention to defend. One striking feature I discovered in the two affidavits is that this suit is founded on a contract whose performance has gone sour. What is more, the defendants have annexed to their affidavit as exhibit “A”, a document titled “Lead ore contract” which contains the terms of the contract between them and the plaintiff. The core issue in the suit is therefore nothing but contract for the supply of lead ore. Being a contractual agreement, the subject matter of this suit is not one of the matters within the exclusive jurisdiction of the Federal High Court. I hold that this Court has the requisite jurisdiction to hear and determine this suit. Issue one is therefore resolved against the defendants/objectors.
On the 2nd issue, it is the submission of Mr. Zi on behalf of the defendants/objectors that by virtue of the contract between the parties annexed to the defendants’ affidavit as exhibit “A”, this Court lacks jurisdiction to entertain the suit as the contract has excluded any of the parties from liability arising out of or in anyway connected with the performance of the contract. He cited the Liability cause in the contract.
Under this issue, learned counsel for the defendants also submitted that paragraph 4 of the affidavit in support of the claim offends the provision of section 115 of the Evidence Act as the information deposed to therein were not given by a natural person but by a corporate entity that can only talk through its/her representatives. Without much ado, I agree with this submission. The deponent stated that the facts deposed to by her in that paragraph, containing 6 sub-paragraphs, numbered (a) - (f) were given to her by the plaintiff during briefing in chambers. The plaintiff, Spring Cradle Nig. Ltd, only assumed Legal personality upon incorporation. The plaintiff is not a natural or human person with all the senses and openings of a human being. The plaintiff can neither eat, drink, sleep, walk, sit, stand see, hear nor talk. I cannot imagine how the plaintiff supplied information to the deponent which she verily believed. The plaintiff, being a corporate entity can only talk or give instructions through natural persons. The deponent did not state in her affidavit the name of the natural representative of the plaintiff that gave her the information which she deposed to in those paragraphs. I hold that paragraph 4(a) - (f) of the affidavit in support of the plaintiff’s claim run counter to the provisions of section 115 (1)(4) of the Evidence Act, and they are accordingly struck out.
Striking out paragraph 4 notwithstanding, there are other independent paragraphs to sustain the affidavit. This suit will therefore not be struck out on account of the incompetence of paragraph 4 of the supporting affidavit.
On whether any of the parties is or will be liable under the contract, this I think can only be trashed out in a full dress trial and not through an interlocutory application such as the current preliminary objection.
However, in view of the violent nature of the facts deposed to in the two opposing affidavits, especially with regards to the quantity of Lead ore supplied by the defendants to the plaintiff as well as the quality together with whether or not the defendants have produced the relevant quantity and whether or not the plaintiff has failed to come and lift same, this matter cannot be determined on the undefended list. Accordingly, leave is granted to the defendants to defend this suit. In the circumstance, the suit is transferred to the general cause list for hearing on pleadings, which I hereby ordered. Plaintiff is given 2 weeks within which to file his statement of claim.
Justice M. I. Sirajo
Judge
10/05/2018
Appearances:
O.C. Nwogu for the plaintiff
R. T. Yilwatda for the defendants.
