CORAM

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EJEMEBI EKO

HON. JUSTICE JAMES SHEHU ABIRIYI

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PARTIES

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MALEL VENTURES LIMITED APPELLANTS

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PETROLEUM EQUALIZATION FUND MANAGEMENT BOARD RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant is a Petroleum Marketing Company with a Filling Station along Bali-Mutum Biu Road, Bali, Taraba State. By an Originating Summons dated 8th March, 2015 the Appellant as Plaintiff claimed that the Respondents had declared its filling station dormant and thus proceeded to seal up the said Station while at the same time refusing to pay to the Appellant, the bridging claims contrary to the provisions of Sections 1(a)(b), 4(2)(a)(b) and (d) and 6(1) and (2) of the Petroleum Equalization Fund (Management Board) Act. The Respondent is a Statutory Body charged with the responsibility of reimbursing petroleum marketing companies for losses sustained and suffered by those Marketing Companies as a result of sale of petroleum products at uniform prices throughout the country. The Respondent in its Counter-affidavit denied ever sealing or declaring the Appellant’s filling station dormant but, merely suspended the Appellant’s account with it due to certain irregularities in the lifting and sale of petroleum products at the Appellant’s filling station which required reimbursement from the Respondent. The Respondent further challenge the Appellant to produce evidence of the declaration of dormancy and the sealing of the filling station by the Respondent either addressed to it or placed on the said filling station. The Respondent who filed a Counter-claim against the Appellant sought for the refund of the total sum of N77,278,259.23k, it paid to the Appellant as bridging claims/reimbursement which the Appellant was not entitled to contrary to Section 2 and 4(2)(a)(b) and (c) of the Petroleum Equalization Fund (Management Board etc) Act Cap. P. 11 Laws of the Federation. The Appellant as Plaintiff at the trial Court did not deny the receipt of the said sum of N77, 278,259.23k from the Respondent as bridging claims for the period of 2012 to 2014. After the final submissions of Counsel, the trial Court wrote and delivered 2 (two) separate judgments. In one of the judgments, the Court resolved question 1 (one) and 2 (two) in the Originating Summons against the Plaintiff/Appellant and thus refused the reliefs it sought. The trial Court in the second judgment delivered same date on the Counter-claim resolved the two questions formulated for determination in favour of the Respondent/Counter-claimant and granted all the reliefs contained in the Counter-claim. The Appellant, irked by the decision of the Federal High Court sitting in Jalingo, has lodged two separate Notices of Appeal to this Court which was subsequently amended to one. The Respondent raised a preliminary objection that grounds 14 and 19 of the amended Notice of Appeal were not derived from the Judgment appealed against, hence are incompetent and urged the court to strike out the said grounds and issues distilled therefrom.

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HELD

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Appeal Dismissed

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ISSUES

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Whether the trial Judge was right to have resolved question number one against the Appellant and held that Plaintiff did not establish that it was the Defendant/Respondent who declared its Service Station dormant? Whether the trial Judge was right when he held that the Appellant seems not to be sure of who declare its Service Station dormant. Whether from the evidence before the Court the Appellant’s claim that the Respondent declared or place a dormancy status on its Filling Station is speculative and there was no concrete evidence that it was the Respondent who did it? Whether in dismissing the Appellant’s claim, the trial Judge properly consider the facts and evaluated the affidavit evidence before him? Whether the Respondent/Counter-claimant proved the Counter-claim to warrant the trial Judge resolving the two questions for determination in favour of the Counter-claimant and granting all the reliefs sought?

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RATIONES DECIDENDI

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PRELIMINARY OBJECTION -CONSEQUENCE OF A PRELIMINARY OBJECTION

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“From a long line of decided cases it is settled that the procedure by way of a Preliminary Objection will be utilized to terminate in its entirety any pending suit or Appeal as the case may be”.

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NOTICE OF MOTION – WHEN SHOULD A NOTICE OF MOTION BE ADOPTED?

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“The procedure by way of a Notice of Motion should be adopted if the intention is to do away with certain aspects only of the suit or the appeal and not the entire suit or appeal in question.

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SUBSTANTIAL JUSTICE – DUTY ON COURTS TO DO SUBSTANTIAL JUSTICE

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“The decision in Britanica U. Nig Ltd v. Seplat Pet. Dev. Company Ltd (Supra), a decision of the apex Court, has in my view introduced another dimension to cases of this nature and that is that, the Courts should be mindful of doing substantial justice to the case before it without undue regard to the form or procedure by which the suit or the appeal was challenged whether in part or as a whole”.

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GROUND OF APPEAL -REQUIREMENT FOR THE VALIDITY OF A GROUND OF APPEAL

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“A ground of appeal is a complaint against a ruling or decision of Court. However, for a ground of appeal to be valid, it must be a challenge to the kernel of the decision appealed against. It must be a complaint arising from the ratio decidendi of that decision or judgment appealed against.

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ORIGINATING SUMMONS – WHETHER ORIGINATING SUMMONS IS THE PROPER MODE OF INSTITUTING ACTION WHERE FACTS ARE LIKELY TO BE DISPUTED

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“The point I am diving at is very simple one that is, and that the suit commenced by way of the Originating Summons and the counter-claim of the respondent thereto were both hotly disputed or contested by parties on both sides thus lending credence that in circumstances such as these, where facts are likely to be disputed, suits or actions founded on those facts should or ought to be commenced or initiated by way of Writ of Summons where pleading can be ordered and not by Originating Summons. See: Inakoja vs. Adeleke (2007) 4 NWLR (Pt. 1025) 427, 571; Fanfa Oil Limited Vs. Attorney-General of Federation & Anor. (2003) 18 NWLR (Pt. 852) 453; Din Vs. Attorney General Federation (1986) 1 NWLR (Pt. 17 ) 471.” –

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COMMENCEMENT OF ACTION – WHEN IS IT APPROPRIATE TO INITIATE ACTION BY ORIGINATING SUMMONS?

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“An action commenced by way of Originating Summons is a procedure utilized in cases where the facts are not in dispute or where there is no likelihood of their being in dispute. Originating Summons are also reserved for issues like the determination of short questions of construction and not matters of such controversy that the justice of the case could demand the setting of pleadings. See: West Africa Cotton Ltd Vs. Salihu Samaila Yankara (2007) LPELR -9045(CA). It is thus not advisable to make use of Originating Summons procedure for hostile procedures where facts are in dispute as in this case on appeal. The cases of Doherty Vs. Doherty (1969) NMLR 24 and other case mentioned before now have put to rest any doubts as to when it is appropriate to initiate action by Originating Summons.” –

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COMMENCEMENT OF ACTION -STATUS OF A SUIT COMMENCED BY A WRONG PROCEDURE

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“It is thus not advisable to make use of Originating Summons procedure for hostile procedures where facts are in dispute as in this case on appeal. The cases of Doherty Vs. Doherty (1969) NMLR 24 and other case mentioned before now have put to rest any doubts as to when it is appropriate to initiate action by Originating Summons. What then is the fate of suits commenced by a wrong procedure as in the Originating Summons? From decisions such as Helen Johnson Udo Vs. The Registered Trustees of the Brotherhood of the Cross and Star (2013) LPELR-19910(SC), Adejumo Vs David Hughes Co. Ltd (1989) LPELR-20454 (CA) ADebanjo V. Johnson (1969) All NLR 176,190, it has been held that notwithstanding that action was commenced by a wrong procedure, (as in this case, by Originating Summons), the suit or action remain valid so far as there was no objection raised against it.” –

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DECLARATORY ORDER- DUTY OF A PERSON WHO SEEKS DECLARATORY ORDER

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“It is trite that the person who seeks declaratory order must lead sufficient evidence of his entitlement to the said order, regard being had to the 2 (two) questions or issues the trial court was called upon to answer in relation to relevant provisions of the Petroleum Equalization Fund (Management) Board etc) Act Cap P.11.LFN 2004.” –

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DECLARATORY ORDER- DUTY ON A PERSON SEEKING DECLARATORY ORDER

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“The person seeking for declaratory order must lead credible and admissible evidence to entitled to the declaration sought notwithstanding any admissions the party on the opposite side might have made if any. Araye V. Ofili (1986) NWLR (Pt.14) or (1986) 1 SC 231; Olubudon & Ors Vs. Lawal (2008) 6 SCNJ 269.” –

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PETROLEUM EQUALIZATION FUND (MANAGEMENT) BOARD – POWERS AND DUTIES OF THE SECRETARY OF PETROLEUM EQUALIZATION FUND (MANAGEMENT) BOARD

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“Under the Petroleum Equalisation Act, the secretary through, the Board has powers to manage funds established under Section 1 of the Petroleum Equalisation Fund Act. Such powers or duties, set out under Section 4 (2)(a)-(e) of the Act include:
(i)determining the net surplus revenue recovable from any oil marketing company and accruing to that company from the sale by it of petroleum products at such uniform prices as may be fixed by the minister
(ii)determining the amount of reimbursement due to any oil marketing company which has suffered a loss as a result of the operation of the enactment as aforesaid
(iii)the payment of all disbursements authorized under or by virtue of this Act.
(iv) accounting for all monies collected, paid or otherwise expended under this Act.
(v)Carrying out such other duties as may from time to time be specified by the Board
By section 2 of the Petroleum Equalisation Fund, Act, the Fund established under that Section shall be used only to reimburse petroleum oil marketers for losses sustained by them solely and exclusively as a result of sale by them of petroleum products at uniform prices.

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STATUTORY PROCEDURE – COMPLIANCE WITH STATUTORY PROCEDURE IS MANDATORY

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“It is settled law that where a legislation lays down a procedure for doing a thing there should be no other method of doing it. See Okereke V. Yar’adua (2008) 12 NWLR (1100) 95.” –

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CASES CITED

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None

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STATUTES REFERRED TO

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Court of Appeal Rules, 2016|Evidence Act|Petroleum Equalization Fund (Management) Board Act Cap P.11.LFN 2004.|

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CLICK HERE TO READ FULL JUDGMENT

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