CORAM

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Helen Moronkeji Ogunwumiju Justice Supreme Court

Ibrahim Mohammed Musa Saulawa Justice Supreme Court

Adamu Jauro Justice Supreme Court

Tijjani Abubakar Justice Supreme Court

Emmanuel Akomaye Agim Justice Supreme Court

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PARTIES

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1. CHIEF NELSON OGBUJI

2. CHIEF ENOCH NWAMUO

3. CHIEF GODWIN OKERE

4. CHIEF ALLISON NWOSU (For Themselves And As Representing Umuagalaba Family, Isi-Etitioha Owaza Autonomous Community In Ukwa West)

APPELLANTS 

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1. EZE YOUNG OGBONNA

2. ATTORNEY GENERAL OF ABIA STATE

3. H.R.H EZE OBIOMA LEVI NWORGU

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, CONTRACT, EVIDENCE, MINING, LAND LAW, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Government of Abia State received a security report indicating that the various Autonomous Communities formed from IPU West Autonomous Communities (Etitioha, Isi-Etitioha, and Igiri- Ukwu) were engaged in a conflict over benefits from Shell Development Company of Nigeria Limited, as Landlord Communities. Acting responsibly, the Abia State Government took urgent measures to prevent the conflict from escalating into hostilities that could disrupt the oil company’s operations. Consequently, a fact-finding committee was established to visit the Owaza Area and identify solutions to the impending problem.

The fact-finding committee met with traditional rulers and heads of landowning families in those communities and, upon completing its assignment, submitted a report to the Government.

Following the receipt of this report, the Government promptly set up a Verification Committee, which also submitted a report. Based on this report, the Government issued a White Paper, the directives of which led to the instant suit.

On September 22, 2003, the appellants filed a suit via a writ of summons at the Abia State High Court, Gbehie Judicial Division, seeking various declaratory and injunctive reliefs against the respondents. They sought a declaration that the directives in the White Paper, which altered agreements between the plaintiffs and Shell Petroleum Development Company of Nigeria Limited, as well as between the plaintiffs and Shell’s contractors, were illegal, null, and void.

They argued that the defendants were not competent to interfere with these agreements and sought an injunction against the defendants or their representatives from acting on these directives.

After the hearing, the trial court ruled in favor of the plaintiffs, granting all the reliefs they sought. Unsurprisingly, the 1st and 2nd respondents appealed this judgment to the Court of  Appeal, Owerri Division. The Court of Appeal set aside the trial court’s judgment and ruled in favor of the appellants before it (respondents herein).

The appellants have now filed the instant appeal, urging this Court to allow the appeal, set aside the judgment of the Court of Appeal, and restore the earlier judgment of the trial High Court of Abia State.

 

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HELD

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Appeal allowed

 

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ISSUES

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 Whether the Abia State Government can validly issue Exhibit A” in view of the constitutional and statutory demarcation of Legislative and Executive functions in Nigeria?

 Whether Exhibits D-G were agreements within the frame work of the law?

 Whether the Court can take judicial notice of a white paper and whether the white paper was properly proved?

 

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RATIONES DECIDENDI

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GROUNDS OF APPEAL – WHETHER ARGUMENTS CAN BE BASED DIRECTLY ON GROUNDS OF APPEAL

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The 3rd respondent’s brief raised no issue for determination. The arguments therein are directly based on the grounds of appeal. A brief of argument in an appeal must state the issues raised from the grounds of appeal for determination in the appeal. The established case law is
that arguments in the brief are based on the issues raised for determination from grounds of appeal and not directly on the grounds themselves. See for example Engineering Enterprises V A-G Kaduna State (1987)2 NWLR 1. – Per E. A. Agim, JSC

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CONTRACT – HOW CONTRACTS CAN BE MADE

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It is elementary law that generally, a contract can be made orally or in writing and that the existence of a contract or agreement between parties can be proved by not only the production of a single formal written document, but also by the production of other documents such as receipts for payments, correspondences, other documentary acknowledgments of facts consistent with the existence of such agreement, the existence of certain circumstances that are consistent with the existence of an agreement between parties, such as circumstances where both parties conduct themselves as though there was an agreement in place. – Per E. A. Agim, JSC

 

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CONTRACT – WAYS OF PROVING THE EXISTENCE OF A CONTRACT OR AGREEMENT

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It is elementary law that generally, a contract can be made orally or in writing and that the existence of a contract or agreement between parties can be proved by not only the production of a single formal written document, but also by the production of other documents such as receipts for payments, correspondences, other documentary acknowledgments of facts consistent with the existence of such agreement, the existence of certain circumstances that are consistent with the existence of an agreement between parties, such as circumstances where both parties conduct themselves as though there was an agreement in place. – Per E. A. Agim, JSC

 

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RECEIPT – WHETHER A RECEIPT CAN BE RELIED ON AS EVIDENCE OF THE EXISTENCE OF A a CONTRACT

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The payment receipt issued by the recipient of the money and accepted by the person that paid the money as evidence of such payment acknowledges or manifests their mutual assent to their reciprocal rights and obligations. A receipt is proof of a concluded contract or agreement and in the absence of a written formal contract or agreement signed by both parties, can be relied on as evidence of the existence of a contract. It is trite law that in the absence of a written formal agreement, the nature of the legal relation between parties to a transaction can be inferred from the terms of the payment receipts. Example is the inference of the existence of a lease or a tenancy agreement from the terms of rent receipts. – Per E. A. Agim, JSC

 

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EXPROPRIATION – WHERE EXPROPRIATION IS DEEMED INVALID OR ILLEGAL

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The Government of Abia State cannot take away or curtail by any means the rights accrued to or vested in the people of Umuagalaba except as provided by a law. Such expropriation that is not enabled by any law is illegal null and void. In any case, such expropriation violate thefundamental right of the people of Umuagalaba to enjoy their rights and interests in their land exclusively. The Directions in the White Paper have the effect of compulsorily acquiring the said rights and interests contrary to S.44(1) of the Constitution of the Federal Republic of Nigeria 1999 which provides that –

“(1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a

law that, among other things-

(a) requires the prompt payment of compensation thereof; and

(b) gives to any person claiming such compensation of his interest in the property and the amount of compensation to a Court of law or tribunal or body having jurisdiction in that part of Nigeria.”– Per E. A. Agim, JSC

 

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DECISION – WHERE THE VALIDITY OF A COURT’S FINDINGS OF FACTS ARE NOT DETERMINED ON APPEAL

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It is noteworthy that the Court of Appeal did not determine the validity of the trial Court’s findings of facts reproduced above. It did not set them aside. Without any determination that those findings are perverse or wrong, the decision of the Court of Appeal on the evidence can not stand. This is because the Court of Appeal cannot interfere with the trial Court’s findings of facts or hold a different or alternative opinion on the evidence without first determining that they are perverse or have violated the law resulting in injustice. – Per E. A. Agim, JSC

 

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WHITE PAPER – DEFINITION OF WHITE PAPER

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Instructively, the term White Paper invariably denotes an intermediate draft of a policy statement, circulated for final comments or consideration. Thus, a White paper is essentially a government’s policy statement or proposal. In other words, it’s an official report prepared by Government explaining some ideas undertaking proposed legislation. Also termed green paper.

See BLACK’S LAW DICTIONARY, 11th edition (2019) @ 1338. Broadly speaking, a White Paper may be defined as an informational document issued by a company or non-profit organization to promote or highlight the features of a solution, product, or service that it offers or plans to offer. – Per I. M. M. Saulawa, JSC

 

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WHITE PAPER – ORIGIN OF WHITE PAPER

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Arguably, the term White Paper originated way back in the 1920s thereby denote a type of position, or industry report usually published by the UK Government. In essence, therefore: White Paper is a report or guide that informs readers concisely about a complex and presents the issuing body’s philosophy on the matter. It is meant to help readers understand an issue, solve a problem or make a decision. A White Paper is the first document researchers should read to better understand a core concept or idea. Since the 1990s, this type of document has proliferated in business. Today, a business-to-business (B2B) White Paper is closer to a marketing presentation, a form of content meant to persuade customers and partners and promote a certain product or view point. That makes B2B White Papers a type of grey literature.

See GRAHAM, GORDON: EXACTLY IS A WHITE PAPER, (2015); ROUSE, MARGARET: WHITE PAPER DEFINITION (2015); STELZNER, MICHAEL A: LEARN ALL ABOUT WHITE PAPERS (2008) Retrieved 18/09/2013; DOERR AUDREY D: THE ROLE OF WHITE PAPERS IN POLICY MAKING PROCESS: THE EXPERIENCE OF GOVERNMENT OF CANADA (1973) THESIS (PhD) – CARLETON UNIVERSITY, 1-56; Wikipedia.org. – Per I. M. M. Saulawa, JSC

 

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AGREEMENT – MEANING OF AN AGREEMENT

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Invariably, the term ‘agreement’ denotes a mutual agreement between two or more persons regarding their relative rights and duties in respect of past or future performances; a manifestation of mutual assent by two or more persons. It also means the parties; actual bargain as found in their language, or by implication from circumstances, dealing, usage of trade, performance, et al. As aptly postulated by Williston:

“An agreement, as the Courts have said, “is nothing more than a manifestation of mutual assent by two or more parties legally competent persons to one another. Agreement is in some respects a broader term than contract, or even than bargain or promise. It covers executed sales, gifts, and other transfers of property, and not to create an obligation.

See SAMUEL WILLISTON: ATREATISE ON THE LAW OF CONTRACTS (WALTER H.B. JAEGER ed). – Per I. M. M. Saulawa, JSC

 

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FACTS ADMITTED – WHETHER COURTS MAY DEMAND THAT FACTS ADMITTED BE PROVEN

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The appellants deemed it expedient, for reasons best known thereto, to “sit’ upon the White Paper they desperately wished to rely on.

Undoubtedly, the provisions of Section 123 of the Evidence Act, 2011 shall not avail the appellants, in support of the proposition that facts admitted need no further proof. Indeed, it’s provided under Section 123 of the Evidence Act, 2011 (supra):

123. No fact needs to be proved in any civil proceedings which the parties in the proceeding or their agents agree to admit at the hearing or which, before the hearing they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings;

Provided that the Court may in its discretion, require the facts admitted to be proved otherwise than by such admissions.

See UREDI VS. DADA (1989) 1 NWLR (pt. 6) 237; LAWAL OWOSHO VS. MICHAEL DADA (1984) 7 SC/49. – Per I. M. M. Saulawa, JSC

 

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FRESH ISSUE – WHERE A FRESH ISSUE IS ARGUED ON APPEAL WITHOUT A MOTION TO THE EFFECT

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There is no doubt that the appellants arguments contained in issue one set out earlier in this judgment are alien to the judgment of the Court below. See ATANDA v. HON. COMMISSIONER FOR LANDS AND HOUSING, KWARA STATE & ANOR (2017) LPELR-42346(SC) (PP. 10-11 PARAS. D), OSAJI v. NIGERIAN ARMY (2022) 12 NWLR (Pt. 1845) 587, OKAFOR V. ABUMOFUANI (2016) 12 NWLR (Pt. 1525) 117. The Appellants did not file any motion to argue this fresh issue on appeal. In the circumstances, issue one has to be struck out. See CORPORATE IDEAL INSURANCE LTD v. AJAOKUTA STEEL CO. LTD & ORS (2014) LPELR-22255(SC) (PP. 23-24 PARAS. F), OBI v. UZOEWULU (2021) LPELR-53063(SC) (Pp. 31-33 paras. B), LAGOS STATE BULK PURCHASE CORPORATION v. PURIFICATION TECHNIQUES (NIG.) LTD (2012) LPELR-20617(SC) (Pp. 30-31 paras. E). – Per H. M. Ogunwumiju, JSC

 

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LEAVE OF COURT – WHETHER THE APPELLANTS CAN INTRODUCE A FRESH ISSUE WITHOUT LEAVE OF COURT

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…The appellants cannot without leave of this Court bring in the issue of the constitutionality of the action of Abia State Government in this circumstance. In any event, the evidence at trial cannot support the argument of the Appellants Counsel in view of the fact that the parties were not in any way quarrelling over the mining rights, mineral rights, oil fields, oil mining etc of the land under the exclusive jurisdiction of the Federal Government. – Per H. M. Ogunwumiju, JSC

 

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JUDICIAL NOTICE – WHETHER A PARTY NEEDS TO TENDER A DOCUMENT THE COURT CAN TAKE JUDICIAL NOTICE OF

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A party needs not tender in Court a document which the Court can competently take judicial notice of. Besides, a party need not tender in evidence a document which has been admitted by both parties in their pleadings. There is no doubt that the White Paper is clearly a subsidiary legislation. – Per H. M. Ogunwumiju, JSC

 

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WHITE PAPER – MEANING OF A WHITE PAPER

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A White Paper is essentially a detailed and informative report on a specific topic, usually produced by a government, corporation or organization. It is a type of document that provides information, analysis and recommendations on a particular subject, often with the goal of influencing public opinion or policy. White Papers are often used as a tool to educate the public, stakeholders and decision-makers about a particular issue, product or technology. They are designed to be easy to understand so that people with limited technical knowledge can  learn about the topic in a straightforward and concise way. White Papers can cover a wide range of topics from complex scientific or technical subjects to more abstract policy issues.

They typically include background information, a discussion of the problem being addressed and an analysis of possible solutions or recommendations. – Per H. M. Ogunwumiju, JSC

 

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WHITE PAPER – THE PROCESS THROUGH WHICH A WHITE PAPER BECOMES BINDING

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The position of the law is that when the government sets up a committee or panel of enquiry on an issue of public importance, thereafter, the government must indicate its acceptance or otherwise of the recommendations of the said Panel or Committee with regard to its Terms of  Reference. Thus, the mere recommendation of a Panel or Committee cannot ground a cause of action. The government where it deems fit may accept the recommendations of the committee and issue what is a colonial anachronism called a “White Paper” as the crystallization of each recommendation and its acceptance or rejection is embodied in a White folder. The White Paper is notice by the Government to the whole world of the position taken by the government on the relevant report submitted by the Panel or Committee. The government is at liberty to  accept or reject the recommendations of a panel it set up. Thereafter, the White Paper becomes binding on the government. See COOKEY v. FOMBO (2005) 15 NWLR Pt. 947 Pg. 187;  GOVERNMENT OF OYO STATE v. FOLAYAN (1995) 1 NWLR Pt. 413 Pg. 292 at 328; TAO & SONS v. GOVERNMENT OF OYO STATE (2011) 6 NWLR Pt. 1242 Pg. 115; AREMO II v. ADEKANYE (2004) 13 NWLR Pt. 891 Pg. 572. – Per H. M. Ogunwumiju, JSC

 

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SUPREME COURT – THE DUTY OF THE SUPREME COURT WITH REGARDS TO MAINTAINING PUBLIC POLICY

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It is the duty of this Court not to scuttle public policy with regards to decisions taken by government to minimize clashes between communities in the oil producing areas which occur too often with loss of lives. – Per H. M. Ogunwumiju, JSC

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Evidence Act, 2011

3. Land Use Act

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