· contract appeal has nothing to confine myself only to the first two with the learned justice...

IN THE MATTER OF THE ARBITRATION ACT 1996 (ENGLAND & WALES}

- and -

THE MINISTRY OF PETROLEUM RESOURCES

THE FEDERAL REPUBLIC OF NIGERIA

OF HON. JUSTICE S.M.A. BELGORE

FNIALS, LLD

Consult and Arbitrator, am

to the Bar in January

been in active legal

in Judiciary. I spent 21

between 1986 and 2007.

Judiciary between 2006

Tribunal of

are set out in

Case 1:18-cv-00594-CRC Document 3-6 Filed 03/16/18 Page 2 of 27

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on behalf of Process and

incorporated in the Territory

statement addressed to the Arbitral Tribunal in

in connection with this arbitration.

solicitors, Harcus

Preliminary Objection

Notice");

in relation to the

January 2014 ("Respondent's

of 22 July 2009

of Products from

Resources of the Federal

Limited (a Nigerian

Agreement for

Petroleum Resources

January 2010

of Michael Quinn,

I have also

as well as evidence and

proceedings. A full

and/or

solely for the use of

to Arbitral

N and


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interest in accepting these

an adviser to the Government of the

have neither advised nor do

to the Ministry of Petroleum

never had any cause to

Republic Nigeria or P&l

to time the Government

ministries and other

capacity as a judge,

r::inrcc has any relevance

to the Court and have complied

Courts, the duties of an

the Civil Procedure

protocol for the

Protocol).

is appropriate for the

1 this report, details

me, as a matter of N

lacked legal

as alleged, and or

failed to comply

Allied Matters Act,

("CAMA"), as alleged, and

as a

ru:.1rni:•r or not the Ministry lacked legal

the GSPA as alleged, and whether or not


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matter Nigerian constitutional law, the Ministry

of Nigeria is an organ of the

and is perfectly able to enter into a Government, in the name of the

separate from Government

in the Constitution of

of the CFR and states:

this Constitution,

President and may as

any made by the National

either directly or through the Vice-President

of the Federation or officers in

execution and

National Assembly and to

National Assembly has, for

supplied)

empowers the

of the

may, in his discretion,

rnrno,,r of the Federation

including the

in my view, that the Minister

or she executes a contract

contract is binding on

of Government would

Corporation v. Cudjoe

Adekeye

agency" and


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seen as an organ of the

State & 2 Others v. Abayilo

r~r·r~•-r which determine whether or not an

are:-

of organization are

limited v. NERFUND [2009] 8 NWLR

Aboki, JCA) stated thus:

""" 1"""·'''1 to cover all organs established

out its functions."]

at

7 NWLR (Pt. 559) 637 at E,

conclusion that because

by virtue of Sec

was to be known as styled as

of the Federal

the GSPA as an

itself. It is said to

Federal Government of

private law sense.

that the Ministry is an

to as the

Nigerian

advanced in the

of the Federal

this point in

are actually

Petroleum Corporation

the Nigerian

of Nigeria 2004. NN

marketing,

Resources is

reasons given


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to petroleum resources, does so

by the contract. It is irrelevant

personality.

constitutional law as it applies to

set out in the English House of

the Environment [1978] A.C.

in this argument [that when

he personally became the

the relationships

government departments in

the ministers of the

all grades

that some of the more

have been eliminated if government" - a term

ministers of

rLJF"r<r••n the administrative

servants employed in the various

in

of the Interpretation Act

"Interpretation Act")

matters

section and in

common law of

statutes of general

January, 1900, shall

competence of the

Petroleum

as an organ of


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shall comment upon the

(1990) 4 NWLR PT. 147 72.

the proposition that "Under

ingredients of a contract.

'l"nr·mc>r1 if of the ingredients

nothing to do with legal capacity at

rules as to offer and acceptance,

that the minds of the

trustees of a church in Lagos negotiating

the question which arose was

trustees, a new

same proposition.

headnote states:

that must be present in a

intention to create legal

rn~""''"' are autonomous

is absent. In other

case, Tobi J.C.A.

contract. It is

contract. They are

autonomous units in the sense that

for a contract

appeal deals


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contract

appeal has nothing to

confine myself only to the first two

with the learned Justice Tobi

not contesting any this. It is

contract - for the reasons given above, it

Resources did have capacity to contract, on

LTD V. NEV/CO LTD (2004) 3 NWLR PT.

a pre-incorporation contract. It not

of a Government's capacity to contract.

analyses the different sorts

to sue or to be sued. The

as support for the proposition

is conferred upon it either

case is also relied upon in

of the above-mentioned

can validly enter into a contract

case relates to a

is raised in

doubt, to the extent

does not have

In my opinion it is clear that the Ministry

named as a defendant to a breach of contract claim

it signed as an organ of the Government. The effect

Government that is being sued, in

the it so qua

a construction contract

for breach of

in own name.


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essentially, that a non-natural

own name if a statute, or the common

could apply not just to a conventional

trade unions, friendly

to sue and be sued.

the reasoning in the case,

legal entity, does not have

to the position of the Ministry of

is an organ of the Government and

{2010] NWLR PT. 1216 PG. at

in support the proposition that

a separate legal personality.

case to a suit brought

which the judiciary

came before the Court of Appeal,

the judiciary (including the

had capacity to sue for libel.

decided in favour of

corporate bodies" in

by statute

Government of the

with a corporate entity.

the 1999

incorporated

government functionaries

of Appeal in

cannot sued


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at paragraph 30 above, when a

is in effect the Government that is

own right, and not as an organ

law, the judiciary is not an

2 NWLR PT 175 566.

in Respondent's

is not a juristic person

Ministry cannot

it cannot be named as a

as an organ of Government.

case are worthy of brief consideration.

sue

wrongful dismissal.

Institute, and were

Institute at the time of

the Director, Mr

as Second Defendant,

and Technology.

Ministry of Science and

that it was not possible for

because it was not a

to note that no

Technology

Government. Rather,

facility and was in a sense

out at page of

Nigerian Stored Products

under the National

which owned

or its

or


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opinion that the GSPA entered into

of the Federal Government

Federal Government of Nigeria,

Respondent represented and

right and authority to enter into,

It seems quite extraordinary

lack capacity as a defence to a

to the extent that the Ministry

the GSPA, it is my opinion

authority arises

it to be represented

. It seems to me

as the Minister of

more, clearly supports a

on

GSPA, being a contract

Petroleum Resources.

in my opinion by

authority and areas of

Resources. In

Federal Government

Policy Regulations",

Gazette on 19 February

charged with

note also that under

who is authorized

natural gas), and to

and leases

Minister

a


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set out in the First Witness

support a conclusion that the Minister

the GSPA on behalf of Government.


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Whether or not the Claimant failed to

the Companies and Allied Matters Act,

Nigeria 2004 (11CAMA"), as alleged, and if so

::1TT'Pr1rPn by illegality, as a result.

intending to carry on business in

to of this Act, every

commencement of this Act was

carrying on business

to obtain incorporation as a separate

so incorporated, the foreign

or exercise any of the powers

business or an address

purpose other

as matters preliminary to

in contravention of

shall affect the status of

before the commencement

exempted under any

I should point out am

May 2006, and that on

Developments (Nigeria)

it would appear

incorporation of separate

into no

project contemplated


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54 (1) point on the facts, I

the case, I disagree with the

54 is designed to ensure that

in Nigeria incorporate a Nigerian

understand the Respondent's

54 merely by reason

In my opinion, the requirement

not before entering into a contract to

commencement that business in

business contemplated by

the GSPA. I note that the

the 20 year duration

to incorporate a N

were to identify an earlier point, in

might conceivably

at which P&ID were to commence

contemplated by the GSPA. It

contract.

60 of CAMA states

sections to foreign companies

it declared that-

shall be construed as

or in

Watanmal {Singapore) v. Liz Ola/in &

Appeal (Lagos Division)

out in

1990 does this not

company must

that foreign

agent. Had

would no


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a foreign company, is entitled to sue

320, paras

went on to say:

appellant cannot sue to recover,

Nigeria is to turn our companies

potential advance fee

credit is normally

indebted to the foreign creditors

umbrella of truncated construction

Nigeria. That will be

at page 321, paras A-B)

of the provisions of Section

to prohibit a foreign company

through the process of

Musdapher, J.C.A. at page

v. Techno ltd (1999} 4 NWLR (Pt at

that:

in Nigeria can sue name

agents in Nigeria. It can never

cannot sue to claim its

or being sued in

went on to say, in the Ritz case:

nnr1anrn1 misapprehension of

COUnsel for the rD<::l'11"'111rlD

a foreign company

cannot carry on business

""'""'~ same ... / must state

same as capacity to sue

•c1nocc11 I have gone

of on

the draftsman . .... n'""'''"'

same as:


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or continue a particular

or permanent occupation.

on to add thus: "to hold one's self out to

Commerce and Industry ltd v Europa

who to Harrods to buy

Courts, so also can a British

goods has not paid be sued

international relations and no

case, a contract had

goods to the Nigerian

on

In the Ritz & Co case, it was

a contract had been

between 1982 and 1983, and

that entering into a contract to

, and that such contracts are

entering into a contract

"carrying on

in my opinion the GSPA was

in Respondent's

4 NWLR Pt. 1184, Thirwell v

All NLR None

decisions relating

Pawa Complex International Inc.

is relied upon in the

held

a particular ""'""'"'"

in not


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up an appointment as a

In addition, the Court of Appeal

ltd as authority for the proposition

not mean "carrying on business" in

states clearly on face that P&I

company. In my opinion, even if it were

entering into a contract amounts to

Section 54 (1), then in any

to rely upon the section would

is well established in Nigerian as more

v. Adebayo [2005] 19 NWLR 44

relying on the decisions in Ariori &

Odu' a Investment Co. v.

and voluntary surrender or

implies a dispensation or ,,.,,..,.., .... ,.,,,...

which at his option, he

on to describe the operation waiver

a However, to amount to

the doctrine is must

act or which constitutes

a voluntary act. Thus, a man not

interest. If therefore,

to up some or

has not


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held to have waived those rights. He

entering into the Definitive

had to insist upon compliance

estoppel is well known to N

case West Construction Company

at H-A, involved a

respondent, a Portuguese national,

the Immigration Act in

illegality defence was

is ignoble on face

dishonest, and

conscience ought not in

not lend itself to a defence

being and is an

5 NWLR (Pt 760} 41

Pounds Sterling,

in of the respondent were

appellant raised a defence

exchange control laws.

highest degree of

to have knowledge of

draw benefit

it as illegal

as one cannot

the element

outset be abhorred


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v. Service Commission of Cross River State & Anor.

to a claim for wrongful

raised a defence of illegality

certain civil service rules. Supreme

illegalities and ultra vi res acts on

were in fact perpetuated by the

or perpetuated the illegalities or ultra

in Oyegoke v. lriguna, the Su

negative and resolved the

the Nigerian Federal

Nigerian Telecommunications 2

rnn1T1nnrn B. v. Private Ltd ("Pentascope") delivered on

on point.

were as follows. On 18 March

Nigerian Telecommun

the Bureau of Public

ntemationai B.V. Private

into, Pentascope was

the Netherlands. The

I tender issued by

BPE inviting q

ministrative, financial,

through an open

Contract was signed after the

that Pentascope was

was accommodated on the

Agreement Pentascope im

was some two years later, on the

in to

Mobile


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illegality for want of

approval the comments of

went on to cite, with approval

(2004} 3 NWLR (Pt 861)

a person who has

from raising, because of

an otherwise lawful transaction.

a party to profit from his own

other party by his

transaction is unenforceable or to use

(1989} 1 NWLR (Pt

involved in this case it

an agreement to turn

void. In pursuance of the principle

evolved the technique of

from such construction in

to benefit from his own ,.,,,.r,nn

As Widgery L.J.

proposition that a man not

no doubt a very

effect is usually

it would result in

the plaintiffs were

following

Pentascope was a

Management


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Pentascope their own premises as a

my answer to the two questions

ue!>uum 1: Whether or not the Ministry lacked

to validly enter into the GSPA as alleged,

Agreement is void as a result.

the Ministry entered into

such the GSPA is binding on

correctly named as a defendant in

Whether or not the Claimant failed to

of section 54 of the Companies and Allied

Federation of Nigeria 2004 ("CAMA")1 as am~e:e~a

GSPA is void, and/or affected by as

was no breach of section 54

a separate Nigerian

with section 54; (ii) in any

into the GSPA; and

on business"

right to rely


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· contract appeal has nothing to confine myself only to the first two with the learned justice...

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