DANGOTE COAL MINES LTD v. COMR. ALU MOSES ODEH

Legalpedia Citation: (2025-05) Legalpedia 20106 (CA)

In the Court of Appeal

MAKURDI

Mon May 5, 2025

Suit Number: CA/MK/11/2022

CORAM

Biobele Abraham Georgewill Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Nehizena Idemudia Afolabi Justice of the Court of Appeal

PARTIES

DANGOTE COAL MINES LTD

APPELLANTS

COMR. ALU MOSES ODEH

RESPONDENTS

AREA(S) OF LAW

CIVIL PROCEDURE, MINING LAW, JURISDICTION, AFFIDAVIT EVIDENCE, PRELIMINARY OBJECTION, PRACTICE AND PROCEDURE, COMPETENCE OF PROCESSES, CONSTITUTIONAL LAW, EVIDENCE LAW, APPEAL, SUBSTANTIAL JUSTICE, COMPENSATION LAW

SUMMARY OF FACTS

The Respondent, Comr. Alu Moses Odeh, commenced a suit before the High Court of Benue State, Otukpo Division, on March 9, 2021, against Dangote Coal Mines Ltd (the Appellant) seeking various reliefs including: N2,500,000 representing surface rent for 25 hectares of land acquired by the Defendant at N100,000 per hectare; N25,000,000 being compensation for farms and crops destroyed; N500,000,000 being compensation including the effect of Environmental Impact Assessment; and N100,000,000 being general damages.

Upon service of the originating processes but before filing any Statement of Defence, the Appellant filed a Notice of Preliminary Objection on June 24, 2021, supported by an Affidavit and annexed documents marked as Exhibits, together with a Written Address. The Appellant challenged the competence of the Respondent’s suit on various grounds including lack of jurisdiction, absence of cause of action, lack of locus standi, lack of authority to commence the suit, and failure to fulfill condition precedent for filing suit in representative capacity.

The Appellant supported its Notice of Preliminary Objection with a 16-paragraph Affidavit deposed to by one Elvis Egodo, which contained factual assertions about mining licenses, water analysis, and government permits. Several documents were annexed to the Affidavit as Exhibits A, B, C, and D.

The Respondent filed a Written Reply Address on September 20, 2021, in opposition to the Notice of Preliminary Objection. The Appellant subsequently filed a Written Reply on Points of Law on October 4, 2021.

After hearing arguments from both parties, the trial court delivered its ruling on November 29, 2021, dismissing the Appellant’s Notice of Preliminary Objection for lacking merit. The trial court held that it had jurisdiction to entertain the suit as the Respondent’s claim was compensatory in nature and fell within the court’s jurisdiction under Section 39 of the Land Use Act and Section 6(6)(a)(b) of the 1999 Constitution.

Dissatisfied with this ruling, the Appellant appealed to the Court of Appeal on seven grounds on November 30, 2021. The Respondent subsequently filed a Notice of Preliminary Objection on May 19, 2023, challenging the competence of the appeal on the ground that the Affidavit supporting the Appellant’s Notice of Preliminary Objection before the trial court was unsigned by the deponent, rendering it invalid and incompetent.

HELD

1. The Respondent’s Notice of Preliminary Objection challenging the competence of the appeal was upheld.

2. The Court held that the Affidavit supporting the Appellant’s Notice of Preliminary Objection before the trial court was incompetent as it was not signed by the deponent as required by Section 117(4) of the Evidence Act 2011.

3. The Court ruled that an unsigned Affidavit is invalid and incompetent, and cannot support any application or process that relies on it.

4. Both the Appellant’s Notice of Appeal and the Appellant’s Notice of Preliminary Objection before the trial court were struck out for being incompetent.

5. The appeal was struck out for being incompetent.

6. Suit No. OHC/26/2021: Comr. Alu Moses Odeh v. Dangote Coal Mine Ltd was remitted to the trial court to proceed according to law.

7. No order was made as to costs.

ISSUES

1. Whether by virtue of Section 251(1)(n) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) and Section 113 of the Nigeria Minerals and Mining Act 2007, the Federal High Court has not been clothed with the exclusive jurisdiction to hear matters or causes relating to mines and minerals thus, depriving the lower Court of jurisdiction to entertain same?

2. Whether jurisdiction of the Federal High Court is limited to matters where the Federal Government or its agencies are parties only without recourse to subject matter as provided for under the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Statutes of the National Assembly?

3. Whether the lower Court was right when it made references to and pronouncements on issues not raised in the Writ of Summons or Pleadings but in the Written Address of the Respondent in opposition to the Preliminary Objection filed by the Appellant in its determination of the issue of whether or not it had jurisdiction to entertain the Suit?

RATIONES DECIDENDI

AFFIDAVIT REQUIREMENTS – NECESSITY OF DEPONENT’S SIGNATURE

“An Affidavit when sworn shall be signed by the deponent or if he cannot write or blind, mark by him personally with his mark, in the presence of the person whom it is taken.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

UNSIGNED AFFIDAVIT – INVALIDITY AND INCOMPETENCE

“Happily, there is no dispute between the parties to this appeal as to the correct position of the law that an unsigned document, whether an originating process or not, is a useless document, and therefore, worthless for all purposes that require authentication for its authenticity.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

UNSIGNED AFFIDAVIT – FUNDAMENTAL VICE IN LAW

“In law, both at Common Law and also as applicable in this country, an Affidavit not personally signed by the deponent is an important omission and is thus a fundamental vice. It follows, therefore, an Affidavit when sworn to must be signed by the Deponent or if he cannot write or is blind, marked by him personally with his mark in the presence of the person before whom it is taken. This is truly so because in law, an unsigned Affidavit is not an Affidavit and, therefore, cannot be relied upon in a matter or action or application sought to be proved by Affidavit evidence.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

VOLUNTARY USE OF AFFIDAVIT – DUTY TO FILE COMPETENT AFFIDAVIT

“The Appellant having of its own volition chosen to support its Notice of Preliminary Objection with its copious Affidavit and documents to prove its Grounds of Objections, it was under a duty to support its Notice of Preliminary Objection with a valid and competent Affidavit and not with an invalid and incompetent Affidavit in support.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

INCOMPETENT AFFIDAVIT – EFFECT ON SUPPORTING PROCESS

“It follows, therefore, a document purporting to be an Affidavit but which was not signed as prescribed or required by law is not in law an Affidavit, and same cannot support an application purporting to have been before the lower Court supported by an Affidavit, and which the Appellant solely relied to support his Preliminary Objection.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

ISSUE OF JURISDICTION – FUNDAMENTAL NATURE AND WHEN IT CAN BE RAISED

“Now, the issue of competence or otherwise of the Appellant’s Notice of preliminary objection as heard and determined by the lower Court is an issue of jurisdiction and competence. In law, it being an issue of jurisdiction and competence it is a fundamental issue, and it can be raised at any stage of the proceedings even for the first time in this Court. Indeed, it can even be raised viva voce, and can be raised by either or any of the parties or even by this Court suo motu whenever there are sufficient facts ex facie in the Record of Appeal establishing a want of competence or jurisdiction in the Court.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

JURISDICTION AS EPICENTRE OF ADJUDICATION – REQUIREMENTS FOR COURT COMPETENCE

“Indeed, jurisdiction is the epicentre of the adjudication process and therefore, it determines the powers of a Court to either hear and or determine a cause or matter or to decline to do so where it has not, the jurisdiction so to do. A Court, it has been said over and over again, is competent only when it is properly constituted as regards numbers and qualifications of the members, no member is disqualified for one reason or another; the subject matter of the case is within its jurisdiction; there is no feature in the case which prevents the Court from exercising its jurisdiction, and the case before the Court is initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

INCOMPETENT PROCESS – EFFECT ON COURT’S JURISDICTION

“In the light of the very clear facts in this appeal, as highlighted above, the Appellant’s Notice of Preliminary Objection, supported with an unsigned and therefore, incompetent Affidavit, was itself incompetent. The lower Court, therefore, as rightly contended for the Respondent, had no jurisdictional competence to hear and determine the Appellant’s incompetent Notice of Preliminary Objection challenging the competence of the Respondent’s Suit before it.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

DUE PROCESS REQUIREMENT – INITIATION BY PROPER PROCESS

“My lords, with the above findings, it has become very obvious, and I so further hold, that the Appellant’s Notice of Preliminary Objection was not initiated following the due process of law to have clothed the lower Court with the requisite jurisdiction to consider and determine same one way or the other even on the merit.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

LACK OF JURISDICTION – NULLITY OF PROCEEDINGS

“It is equally trite that where the Court lacks jurisdiction to entertain a cause or matter, the entire process, no matter how well conducted, is an exercise in futility. The proceedings would amount to a nullity ab initio and liable to be set aside.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

INCOMPETENT PROCESS – PRINCIPLE OF NULLITY

“My lords, once a Court process is found to be incompetent, that indeed should be the end of the matter, since one cannot put something on nothing and expect it to stand, for nullity upon nullity would still amount to nullity and nothing more! The proper order to make in such a circumstance is to strike out the incompetent process, and set aside any proceedings and or decisions reached on such an incompetent process.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

SUBSTANTIAL JUSTICE VERSUS TECHNICAL COMPLIANCE – ROLE OF COURTS

“The role of the Court is to apply the principles of substantial justice according to law. The principle cannot be applied outside the law or in contradiction of the law. A Court of law will not be performing its role as an independent umpire if it bends backward to do justice to one of the parties, at the expense of the other party. Justice, that very expensive commodity in the judicial process, should be evenly spread between the parties. Where a Rule of Court has clearly and unambiguously provided for a particular act or situation, the Courts have a duty to enforce the act or situation and here the issue of doing substantial justice does not or should not arise. The party who failed to comply with the Rule has himself to blame.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

CONCURRENCE OF JUSTICES – AGREEMENT WITH LEAD JUDGMENT

“I am in full agreement with the reasoning expressed in the lead judgment just delivered by my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, PJCA, that this appeal be struck out owing to its incompetent Notice of Appeal. Consequently, I too hereby strike out the appeal. I abide by the consequential order made in the lead judgment.” – Per BATURE ISAH GAFAI, J.C.A.