Attitude of the Supreme Court to Academic/Hypothetical Issues or Questions

CASE TITLE: SOUTH ATLANTIC PETROLEUM LTD v. MINISTER OF PETROLEUM RESOURCES & ORS (2023) LPELR-59746(SC)

JUDGMENT DATE: 3RD FEBRUARY, 2023

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT: CHIMA CENTUS NWEZE, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on civil procedure.

FACTS:

This appeal is against the ruling of the Court of Appeal sitting in Lagos: coram: Ugochukwu Anthony Ogakwu JCA; Abimbola Osarugue Adejumo JCA; Ebiowei Tobi JCA, delivered on 6th day of February, 2019.

The Federal Government of Nigeria, through the Minister of Petroleum Resources, by a letter dated February 23rd, 1998, awarded an Oil Prospecting Licence (OPL) for a statutory five-year tenure, to the Appellant. The Appellant’s license was, further, extended for another tenure of five years, by a letter dated November 12th, 2002. It was, therefore, due to expire on March 28th, 2008.

Subsequently, the Appellant applied to the Department of Petroleum Resources for the conversion of the eastern portion of the said OPL 246 to an Oil Mining Lease (OML). This was accordingly, approved by the said Department. Again, the Appellant, by its letter dated June 27th, 2005, applied for an “additional” OML deriving from the remainder of the OPL 246. However, this was not approved and the DPR then sought to auction the unconverted portion for OPL 246 for sale to third parties, among which included the 2nd and 3rd Respondents. The Appellant approached the trial Federal High Court, vide an ex parte application for leave to apply for judicial review before the Federal High Court, Lagos Judicial Division. The application was granted. The trial Court per Mustapha J., ordered that the application be brought by way of originating motion and that the leave shall operate as a stay of actions relating to OPL 246.

Accordingly, the Appellant commenced an action via an originating motion seeking various reliefs to the effect that its rights and interests in OPL 246 remain extant until March 2008, notwithstanding the grant of OML 130 out of OPL 246.

In response, the 1st Respondent filed a notice of preliminary objection challenging the competence of the suit. The ground was that the relief sought was for an order of certiorari to quash the decisions of the Minister complained of in the said letters. As such, the suit ought to have been commenced within three months of the accrual of the cause of action as required by Order 47 Rule 4 (2) of the Federal High Court Rules.

The trial Court, by its judgment delivered on October 4th, 2006, upheld the 1st Respondent’s objection and consequently, the Appellant’s originating motion was dismissed. Dissatisfied, the Appellant lodged an appeal at the Court of Appeal. While the appeal was pending, OPL 246, expired on March 28th, 2008, by effluxion of time.

The Court of Appeal when delivering its judgment on April 19th, 2008, raised an issue suo motu, namely: that the Appellant’s appeal being devoid of live issues had become academic. Without affording the parties the opportunity to address on the said issue, the Court reasoned that the bedrock of the appeal has been destroyed because the tenure allocated to the Appellant for the OPL 246, had expired by effluxion of time. Aggrieved by the procedure adopted by the Court, the Appellant filed an appeal at the Supreme Court and the Supreme Court in its judgment delivered on January 12th, 2018, held that the Appellant had been deprived of its right to fair hearing by reason of the failure of the Court of Appeal to invite the parties to address it on the issue it raised suo motu. Hence, the appeal was allowed and it was ordered that the matter be sent back to the Court of Appeal for rehearing.

Back at the Court of Appeal, the Appellant filed an application seeking amongst other reliefs an order for leave to amend its Notice of Appeal and brief of argument.

The Court of Appeal in its ruling allowed the application in part. Dissatisfied with part of the ruling of the Court of Appeal refusing the leave for amendment of the notice of appeal and brief of argument, the Appellant appealed to the Supreme Court. The Supreme Court however, upon discovering that the issue raised suo motu by the Court of Appeal had been overlooked by the parties in their arguments, invited the parties to address it on the said issue.

ISSUES FOR DETERMINATION:

The appeal was determined on the sole issue thus:

“Whether on the facts and circumstances of this case, the term of OPL 246 had expired by effluxion of time by March 28th, 2008, and if so, whether the assumed expiration of the term of OPL 246 had the effect of rendering the appeal devoid of live issues and therefore academic?”.

DECISION/HELD:

In the final analysis, the appeal was rendered academic and was consequently, dismissed.

RATIOS:

• PRACTICE AND PROCEDURE – ACADEMIC OR HYPOTHETICAL QUESTION(S)/ISSUES/SUIT/EXERCISE: When is an appeal or a suit academic; whether Courts deal with only live issue(s)
• PRACTICE AND PROCEDURE – ACADEMIC OR HYPOTHETICAL QUESTION(S)/ISSUES/SUIT/EXERCISE: Whether the Supreme Court can determine a suit with no live issues on the ground that same was alive when it was filed/on appeal at the Court of Appeal
• PRACTICE AND PROCEDURE – ACADEMIC OR HYPOTHETICAL QUESTION(S)/ISSUES/SUIT/EXERCISE: Whether Courts should restrict hearings to consideration of live issues only
• JUDGMENT AND ORDER – WRITING OF JUDGMENT: Position of the law where a Court in the course of writing its judgment discovers an important issue that was not addressed by the parties at the time of hearing