CORAM

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SIR BIOBELE ABRAHAM GEORGEWILL …. JUSTICE, COURT OF APPEAL

ISAH BATURE GAFAI …………………………. JUSTICE, COURT OF APPEAL

NEHIZENA IDEMUDIA AFOLABI …………… JUSTICE, COURT OF APPEAL

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PARTIES

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 ALHAJI RUFAI ISHAKA & ORS

APPELLANTS 

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MULTIVERSE MINING AND EXPLORATION PLC

RESPONDENTS 

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AREA(S) OF LAW

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MINING LAW, REPRESENTATIVE ACTION, LOCUS STANDI, MINERALS AND MINING ACT, COMMUNITY CONSENT, EXPLORATION LICENSE, PRACTICE AND PROCEDURE, APPEAL, EVIDENCE LAW, LAND LAW, INJUNCTIVE RELIEF

 

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SUMMARY OF FACTS

The 1st-3rd Respondents sought a declaration that the exploration license issued to the Appellant by the 4th Respondent (Director General Nigeria Mining Cadastre Office) was invalid for failure of the Appellant to first obtain the consent of Abuni Community Land Owners in line with Section 100 of the Mineral and Mining Act 2007 and the Regulations 2011. The Respondents also claimed that the Appellant failed to undertake a community development agreement and a designed environmental impact assessment to mitigate pollution impact in the Community.

The 1st and 2nd Respondents contended they only gave consent to the 3rd Respondent to process mining license as in Exhibit C, and discovered that the area in dispute was licensed to the Appellant when the 3rd Respondent went to the 4th Respondent to process the mining license. Upon this discovery, the 1st-3rd Respondents approached the trial court seeking redress after several complaints to the 4th Respondent to revoke the Appellant’s license.

The Appellant’s defense was that it had sought and obtained consent of the land owners via Exhibit A (Community Participation/Collaboration Agreement between Multiverse Plc and the Abuni Community in 2012) and Exhibit B (Consent Form signed by the Emir of Azara and his brother). When the Sarkin Abuni and Paramount Ruler of Abuni Community petitioned the 4th Respondent over the Appellant’s obtaining license without their consent, the Appellant sent Exhibit E1 to the 4th Respondent and hurriedly obtained Exhibits E2 and E3.

On 7th June 2012, the Appellant entered into Community Participation/Collaboration Agreement with Abuni Community (Exhibit A), signed by the 1st Respondent as Youth Leader and the Sarkin. On 30th January 2014, the Appellant applied for mining exploration license using a “Consent Letter from Land Owner(s)/Occupier(s)” signed by HRH Dr. Kabiru Musa Ibrahim (Exhibit B). On 28th May 2014, Mining Exploration License No. 17568 EL was granted with effect from 22nd April 2014 to 21st April 2017 (Exhibit D).

The trial court found in favor of the 1st-3rd Respondents on 23rd January 2023. The Appellant appealed this decision.

 

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HELD

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The appeal was dismissed. The Court of Appeal upheld the trial court’s decision, finding that the 1st and 2nd Respondents had proper locus standi to sue in representative capacity on behalf of Abuni Mining Land Owners and the entire Abuni Community. The court held that only a member of the group, family, or community represented can challenge the proper representation or capacity in which plaintiffs sue, and since the Appellant was not a member of the Abuni Community, it lacked standing to challenge the Respondents’ representative capacity. The court found that the essential requirements for representative action were met: common interest, common grievance, and beneficial relief for all members of the group.

 

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ISSUES

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1. Whether the Trial Court rightly upheld the institution of the Suit by the 1st and 2nd Respondents in representative capacity “on behalf of Abuni Mining Land Owners and the entire Abuni Community.”?

2. Whether the trial Court was right when it held that the 1st, 2nd and 3rd Respondents have established their case and granted the reliefs sought.?

 

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RATIONES DECIDENDI

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ESSENTIAL REQUIREMENTS FOR REPRESENTATIVE CAPACITY – THREE ELEMENTS:

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“It is trite that the essential requirements for people who desired to sue in a representative capacity include: Common interest; the plaintiff and the group they represent must share a similar interest in the subject matter. Common grievance; the plaintiff and the group must suffer the similar grievance and injury. Beneficial Relief; the relief sought must be beneficial to all members of the group.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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BURDEN TO PROVE REPRESENTATIVE CAPACITY – MATTER OF EVIDENCE:

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“Whether a party has authority to sue in a representative capacity is a matter of evidence and if raised, evidence must be sufficiently adduced to that effect. Specifically, the 1st & 2nd plaintiffs pleaded in their paragraph 1 of their statement of claim which is not in dispute that they instituted this appeal in dual capacity for themselves and on behalf of the Abuni mining land owners and the entire community.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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WHO CAN CHALLENGE REPRESENTATIVE CAPACITY – STANDING TO OBJECT:

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“It is trite that it is only a member of that group, family or community that can dispute or challenge the proper representation or the capacity in which the plaintiff(s) sued. It will be an exercise in futility for the defendant/appellant in this appeal who is not one of those the plaintiff/respondent represent to challenge his or their authority to so sue.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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LACK OF STANDING TO CHALLENGE REPRESENTATIVE CAPACITY – MEDDLESOME INTERLOPER:

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“In this appeal none of the respondents and those represented opposed to the respondent’s capacity to represent them or sue on their behalf. Thus, the capacity to sue in the representative capacity does not lie or reside with the appellant who had nothing to share in the respondent’s victory. The appellant is thus chasing shadows on this issue as to the capacity of the 1st — 3rd respondent to sue in this appeal.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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APPELLATE COURT’S DISCRETION IN ISSUE FORMULATION – AVOIDING PROLIXITY:

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“After a careful review of the Notice of Appeal, the two volumes of the Record of Appeal and particularly the Appellant’s brief of argument, the four issues formulated and argued for the determination of this appeal by the appellant to my considered view are affected by prolixity. This is out rightly against the Rules of practice in the appellate court where the principle has been settled.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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JUDICIAL DISCRETION IN ISSUE ADOPTION – APPELLATE AUTHORITY:

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“It is rather a triable argument or merely frivolous for the appellant to contend that the appellate Court, in considering an appeal before it has no discretion to either adopt the issues formulated for determination by the parties or alternatively formulate such issue(s) it believes would adequately determine the grievance in the appeal.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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CONSOLIDATION OF SIMILAR ISSUES – EFFICIENCY IN APPEAL DETERMINATION:

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“Issues 2, 3, and 4 as formulated by the Appellant appears identical and an offshoot of each other especially that the stem from the orders of the trial court. In the circumstance, for precision and conciseness, I will adopt the issues as formulated by the 1st — 3rd respondents which adequately recaptures the crux of this appeal and precisely sums up all the issues as distilled by the appellant.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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COMMUNITY CONSENT REQUIREMENT – SECTION 100 COMPLIANCE:

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“The 1st-3rd Respondents sought for a declaration that the exploration license issued to the Appellant by the 4th Respondent was invalid for failure of the Appellant to first obtain the consent of Abuni Community Land Owners in-line with the provisions of Section 100 of the Mineral and Mining Act, 2007 and the Regulations 2011.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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EXPLORATION LICENSE VALIDITY PERIOD – TEMPORAL LIMITATIONS:

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“The subject matter of the Suit was the Exploration License No. 17568 EL as Exhibit D and on the face of the License the ‘Effective Date: 22nd APRIL, 2014’, and ‘Expiry Date: 21st APRIL, 2017’ by the time this Suit was commenced on 24th October, 2018 the Exploration License had ceased to be in effect.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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DISTINCTION BETWEEN AGREEMENT AND CONSENT – LEGAL REQUIREMENTS:

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“Exhibit A which the Appellant placed heavy reliance and argued vehemently as consent it obtained is nothing more than an agreement of carrying out mining operations in Abuni Community. Also, that Exhibit B which the Appellant claimed to be the consent it obtained from the land owners was signed by the Emir of Azara and his brother who are not from Abuni Community and are not land owners capable of granting consent to the Appellant.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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EFFECT OF UNCONTRADICTED EVIDENCE – DEEMED ADMISSION:

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“This evidence put forward by the 1st– 3rd Respondents was not contradicted by the Appellant either by way of cross examination or contrary evidence, and evidence not contradicted is deemed admitted.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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SCOPE OF EXPLORATION LICENSE – STATUTORY LIMITATIONS:

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“The Lower Court’s power to grant relief on the complaint is circumscribed and ought therefore to have been restricted to the rights appertaining to an Exploration License specified under Section 60(1)(a)-(h) of the Nigerian Minerals and Mining Act, 2007, as what the Lower Court could restrain are those things or rights specified in the said Section of the Act, and nothing else beyond them.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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BURDEN TO ESTABLISH DISPUTED AREA – PRECISE IDENTIFICATION REQUIRED:

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“The burden was on the 1st – 3rd Respondents to state and prove the exact identity or delineation or boundary of the supposed land in dispute. Their failure to do that means that the order of injunction granted in their favour by the Lower Court was unwarranted and must therefore be set aside.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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• Nigerian Minerals and Mining Act 2007 (Sections 46, 60-63, 65-74, 100)

• Nigerian Minerals and Mining Regulations 2011

• Federal High Court Rules

 

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