Federal Government set to tackle Aturu’s deregulation suit

0
102

high_court_lagos_federalHaving been caught unaware at the lower court, the federal government has fortified its legal team to challenge the decision of Justice Adamu Bello of the Federal High Court to nullify its powers to deregulate downstream sector of the oil industry. Davidson Iriekpen examines the appeal

When human rights lawyer, Mr. Bamidele Aturu, filed a suit at the Federal High Court in Abuja to challenge the powers of the federal government to deregulate the downstream sector of the petroleum industry, the government did not take it serious. Like every other instituted against it, it thought it would be dismissed on the grounds of lack of locus standi, but it was wrong. The case was determined in favour of Aturu.

In his judgment, Justice Adamu Bello of the Federal High Court not only nullified the powers of the federal government to deregulate the downstream sector of the oil industry.

Justice Bello while delivering judgment in the case involving Aturu and the Minister of Petroleum Resources on March 19, nullified the deregulation of the downstream sector, held that it was unconstitutional for the federal government to deregulate the sector and control the pump price of fuel.

The suit was filed by Aturu in the wake of the protests that greeted the removal of fuel subsidy by President Goodluck Jonathan in January 2012. The removal of the subsidy jacked up the price of petrol from N65 per litre to N140. This angered a lot of Nigerians who poured into the streets to protest.

The judge equally restrained the government from deregulating the petroleum industry or from failing to fix the prices of petroleum products as mandatorily required by the Petroleum Act and the Price Control Act. He held that the policy of government to deregulate the downstream sector of the petroleum industry by not fixing the prices at which petroleum products might be sold in Nigeria was unlawful. The court further held that the deregulation policy was in conflict with Section 16(1)(b) of the 1999 Constitution which provides that the government should control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity. The judge also ruled that the policy of government to deregulate the downstream sector of the petroleum industry by not fixing the prices at which petroleum products should be sold in Nigeria was unlawful, illegal, null, void and of no effect whatsoever being in vicious violation of the mandatory provision of section 6 of the Petroleum Act, cap P.10, Laws of the Federation of Nigeria, 2004. He also held that  the federal government’s policy  to deregulate the downstream sector of the petroleum industry by not fixing the prices at which petroleum products may be sold in Nigeria had the effect of making the freedom of movement guaranteed in section 41 of the 1999 Constitution illusory for the plaintiff and the generality of Nigerians and was therefore illegal, unconscionable and unconstitutional and of no effect whatsoever.

Justice Bello declared:  “That the policy decision of the Defendants to deregulate the downstream sector of the petroleum industry by not fixing the prices at which petroleum products may be sold in Nigeria is unlawful, illegal, null, void and of no effect whatsoever being in flagrant violation of the mandatory provision of section 4 of the Price Control Act, cap P28, Laws of the Federation of Nigeria, 2004.” Having been caught unaware at the lower court, the federal government has fortified its legal team to challenge Aturu and his judgment at the court of Appeal. In a nine-page notice of appeal dated April 10 and filed by seven lawyers led by Dr. Fabian Ajogwu (SAN) and Mrs. A. O. Mbamali, the government predicated its appeal on four grounds. The appellant argued that the trial judge failed to consider and pronounce on all the issues properly submitted before it and that failure to do so amounted to a denial of fair hearing. The government is praying the appellate court to set aside the judgment of Justice Bello and dismiss the respondent’s matter in its entirety or strike it out on the grounds that the respondent lacked the competence (locus standi) to institute thesuit. The appeal, which has the Attorney General of Federation, Minister of Petroleum Resources and Minister of Trade and Investment as appellants, is hinged on the fact the respondent did not have the locus to institute the suit in the first place. In ground one of the appeal, the federal government argued that the lower court erred in law on the question of the locus standi of the respondent, when it relied on the Court of Appeal case of Fawehinmi vs. The President instead of the Supreme Court decision in Adesanya vs. The President. It stated that  the decision in Adesanya vs. The President was given by the Supreme Court, while the decisions in Fawehinmi v. The President, Williams v. Dawodu and Shell Petroleum Development Company Limited v. Nwawka are all of the Court of Appeal.

It contended that nowhere in Adesanya’s case did the Supreme Court recognise or endorse the distinction which the learned trial judge drew “between cases involving private rights which directly affect individuals as against public interest litigations where the private right of the individual litigant may not be directly involved but is concerned with an infraction of the provisions of the Constitution”

“The unanimous decision of the Supreme Court in Adesanya’s case is to the effect that in all cases: ‘The litigant must show that the act of which he complains affects rights and obligations peculiar or personal to him. He must show that his private rights have been infringed or injured or that there is a threat of such infringement or injury’: This decision has been consistently followed by the apex court ever since.

The appellant disclosed that  since 1981 when the Adesanya case was decided, it has become established in concord with the decision in that case that for a complainant or plaintiff to be entitled to a hearing, it has to be determined that on particular facts and situations he has sufficient interest or has suffered injury. It argued that apart from the fact that several decisions of the Supreme Court and the Court of Appeal have confirmed the decision in Adesanya, the modern (or narrow) approach to the question of locus standi being followed in England and Australia are based on statutes and is not followed in Nigerian courts as Nigeria is no longer governed by foreign statutory laws. It stated that the position in Nigeria is that the claim must reveal a legal or justiciable right or show special or sufficient interest adversely affected. The government concluded its argument that the respondent in this suit was not conferred with capacity to sue by the constitution, statute, customary law or contract. His claim did not show sufficient interest, legal or justiciable right, special or sufficient interest adversely affected, and therefore, he lacks the locus standi and cause of action to sue the appellants. On the second grounds, the federal government argued that trial judge misdirected himself because Section 6 of the Petroleum Act is discretionary as it imposes no legal duty on the appellants to fix the prices of petroleum products, given the use of the word “may” therein in relation to that power. The section in question provides that “the Minister of Petroleum Resource may by order published in the Federal Gazette fix the price at which petroleum products or any particular class or classes thereof may be sold in Nigeria or in any particular part or parts thereof” It disclosed that the fixing of prices for commodities is the function of the Price Control Board and Committees established under the Price Control Act; and not the function of any of the appellants, meaning that the appellants cannot usurp that function.

“Both the Price Control Act Cap P28 law of the federation of Nigeria 2004 and the Petroleum Act Cap P10 law of the federation of Nigeria 2004 are existing laws because they pre-date the 1999 Constitution: Section 315(1) of the 1999 Constitution; nothing in the Constitution shall be construed as affecting the power of a court of law to declare invalid an existing law on the ground of inconsistency with any provision of the Constitution: Section 315(3) (d) of the 1999 Constitution.” It noted that Section 6 of the Petroleum Act and Section 4 (Schedule 1) of the Price Control Act are inconsistent with Item 62(e) of the Exclusive Legislative List of the 1999 Constitution because of the non-designation of petroleum products as “essential commodities “by the National Assembly; that designation is required to take the form of either an Act of the National Assembly or a Resolution passed by both Houses of the National Assembly: Paragraph 1 , Part III, 2nd Schedule to 1999 Constitution.

On ground three, the federal government said the judge of the lower court erred in law when it held that “By enacting the Price Control Act and the Petroleum Act and providing in Sections 4 and 6 of those Acts, for the control and regulation of prices of petroleum products, the National Assembly working in tandem with the government has made the Economic Objective in Section 16(1)(b) of the Constitution in Chapter II justiciable. . . . where the National Assembly working in concert with the executive enacts a law whose intent and purport directly touch on any of the objectives in Chapter II it becomes justiciable and a party aggrieved can approach the courts for relief. . .

It argued that in the case of the Attorney-General of Ondo State vs. the Attorney-General of the Federation, which the judge relied upon, the Supreme Court made it clear that it is not in all cases that legislation will make the Fundamental Objectives and Directive Principles justiciable. It copiously quoted  the judgment of Justice Uwaifo, where he held that: “As to the non-justiciability of the Fundamental Objectives and Directive Principles of State Policy in Chapter II of our Constitution Section 6(6)(c) says so. While they remain declarations, they cannot be enforced by legal proceedings. . . But the Directive Principles (or some of them) can be made justiciable by legislation”

It stated that Section 16 (1) (b) of the constitution requires the government to control the national economy in a manner as to secure the maximum welfare, freedom and happiness of every citizen. But that paragraph (c) places on the government the duty of managing the major sectors of the economy. The appellant noted that government is therefore expected to use its best judgment to ensure that the economy is well managed. Failure to deregulate the downstream sector of the petroleum industry may not necessarily achieve this objective. Adding that the government would be held to have discharged the duty (if any) of fixing the prices of petroleum products even if it does not publish the prices. The federal government equally contended that trial court erred in law when it summarily granted the reliefs in the respondent’s originating summons.  It said the laws referred to in the judgment have not removed the power of the federal government to deregulate the downstream sector of the petroleum industry and they have not made it mandatory for the it to fix and publish prices of petroleum products. “The reliefs were granted on the assumption (which may not be correct) thatderegulation will inevitably result in the prices of petroleum products becoming ‘unaffordable’ to the Respondent and the generality of Nigerians “Credible, expert economic evidence is required to prove if deregulation will achieve that effect. None was tendered before the trial court. A decision of a court of law which is not based on credible material evidence is perverse and will be setaside as having occasioned a substantial miscarriage of justice.

 

Information from ThisDay was used in this report.