Battle for Obu Mining Sites: BUA Wins, Dangote Appeals

Obinna Chima writes on the raging tussle over the ownership of the mining sites in Obu, Okpella, in Etsako East Local Government Area of Edo State by both Dangote Group and BUA Group

There appears to be no end in sight in the ongoing battle for the ownership of the mining sites in Obu, Okpella, in Etsako East Local Government Area of Edo State by both the Dangote Group and BUA Group.

Both companies, last week, resumed fierce tussle for the disputed assets which begun in 2017.

The State Governor, Godwin Obaseki, had in 2017, led Police to shut down the mining site, arrested BUA staff and directed that both companies laying claim of ownership to the site should wait for the outcome of the court case on the dispute.

That has now been decided in BUA’s favour, a decision now appealed by Dangote.

The community leaders had then alleged that the Federal Ministry of Mines and Solid Minerals, that had the present Governor of Ekiti State, Mr. Kayode Fayemi, as minister then, was supporting one of the parties in the dispute.

However, last week, both companies resumed fresh ownership tussle for the mining sites.

Okpella is known for its natural sedimentary rock-based mineral resources, which include limestone, calcium, and granite, feldspar, talc, clay, marble, etc.

There is no doubt in this round, BUA won going by the court judgement delivered in its favour. BUA’s position has always been that it was operating peaceful on the now disputed site for over five years before Dangote suddenly made an appearance to lay claim to the mining site after acquiring Ado Ibrahim International Company (AIICO), which had been in dispute with Edo State Government about the site.

BUA’s Favourable Court Ruling

According to a statement from BUA Group, a Federal High Court in Benin City had restrained Dangote Industries and the Nigerian Police Force from interfering with its operations at the disputed mining sites in a judgement delivered recently.

BUA recalled that it was legally operating on its mining sites before operations at three of those mines were allegedly disrupted abruptly by the then Inspector General of Police, the then Edo state commissioner of Police in 2017, on the order of Dangote Industries & Dangote Cement.

According to the statement, the court ordered the Inspector General of Police as first respondent, Commissioner of Police, Edo State as second respondent, Dangote Industries as third respondent and Dangote Cement as fourth respondent, to steer clear of the mining sites or interfering in any manner whatsoever with BUA’s operation of disputed mining lease sites.

The statement added: “BUA wishes to inform its shareholders, employees, customers, regulators, host communities, security agencies and the general public that the Federal High Court, Benin, in a recent judgement, has made an order, which upholds BUA’s fundamental right to peaceful possession of the mining sites in Obu, Okpella, Edo State (operated by BUA Cement and which BUA became seised by virtue of mining leases granted by the Federal Government of Nigeria), without unlawful interference from the Inspector General of Police, first respondent; Commissioner of Police, Edo State, second respondent; Dangote Industries third respondent; and Dangote Cement Plc as fourth respondent.

“It would be recalled that BUA was legally operating its various mining sites in Obu-Okpella, Edo State before the above-named respondents abruptly disrupted our operations at three of those mines in 2017 during the pendency of two other matters. The first and second respondents at the behest of the third and fourth respondents invaded and shut down the operations.

“We then approached the courts to enforce our fundamental rights to the property of the mines as well as our rights to continue operating from those mines. Whilst we were awaiting judgement, we continued to sustain our operations from our other numerous mines in that area unaected by these actions.”

The statement further explained that after a prolonged trial, which commenced in 2017, “the court not only found that we have always been in possession of the mining sites, but clearly found that the first and second respondents were used and allowed themselves to be used by the third and fourth respondents to invade, and disrupt our operations in the anected and disputed mine sites during the pendency of two other matters between us and the third and fourth respondents.

“The court accordingly granted an order restraining the first and second respondents (The Police) as well as the third and fourth respondents (Dangote Industries & Dangote Cement Plc) from interfering in any manner whatsoever with BUA’s operation of disputed mining lease sites. The two other matters remain pending in court.

“This judgement is one major step towards the final vindication of our rights over the mining sites and in line with BUA’s position that it holds the legal mining leases to the disputed sites, and that all parties in this dispute allow the courts be the final arbiter as has been our mantra, “Let the Courts Decide”.

BUA disclosed that it has since resumed operations at the sites as ordered by the court.

Dangote Insists on Ownership

However, in its reaction, Dangote Group, in its statement, denied the claim of ownership of the mining by BUA Group.

It advised the regulatory agencies to, “disregard completely the unfounded and mischievous claim and publication by BUA Group,” saying “it was riddled with misrepresentations and deliberate distortions of facts.”

Dangote Group, in the statement signed by the Group Executive Director, Devakumar Edwin, explained that Dangote Group through its lawyers had vigorously defended the suit filed by BUA Group, seeking a perpetual injunctive order against further interferences with their purported fundamental rights to property and privacy.

He said the group had appealed the high court judgment “and until the appellate court rules, BUA cannot lay claim or even operate on the mining site.”

Giving details of the case, Edwin recalled that in 2014, Dangote Group and AICO entered into an agreement for the transfer of 2541ML from AICO to Dangote Group.

“AICO thereafter applied to the Ministry of Mines for the approval of the transfer vide a Mining Lease Transfer Form dated 11 July 2014. In 2016, the Ministry of Mines wrote to Dangote Group to convey the approval of the ministry for the transfer/assignment of 2541ML from AICO to Dangote Group with effect from 03 February 2016.

“Following the approval of the ministry, Dangote Group became the legal holder and owner of the Mining Lease No. 2541ML. The 2541ML Certificate was thereafter endorsed to reflect the transfer from AICO to Dangote Group,” he added.

Dangote Group warned the public and those working with BUA Group not to take any steps to enter, mine or interfere with the disputed mining leases pending the determination of the appeal and/or the two suits pending before Umar J. as any such steps would be considered a contempt of court.

He noted that the Supreme Court in the case of Governor of Lagos State v. Chief Ojukwu (1986) 1 NWLR (pt. 18) 621), has held that “once a party is aware of a pending court process, even when the court has not made a specific injunctive order, parties are bound to maintain the status quo pending the determination of the court process.”

Edwin faulted BUA Group’s claim to the title pursuant to Mining Leases 18912 and 18913.

He said: “However, as recently as 09 October 2019 while its wholly incompetent fundamental rights suit was still pending, BUA Group through its subsidiary (Edo Cement Company Ltd) applied to the Director-General of Mining Cadastre Office & Centre, Abuja for the renewal of the said Mining Leases Nos. 18912 and 18913. In response to BUA Group’s renewal applications, the Mining Cadastre Office, in Abuja in its letters dated 18 October 2019 wrote back to BUA Group to inform them in very categorical terms that the mining leases nos 18912 and 18913 were non-existent and were not valid mineral titles.

“Interestingly and to show the character of BUA Group, these supremely critical facts were never brought to the attention of the Federal High Court in the fundamental rights suit even though the Mining Cadastre Office letters were written about 8 (eight) months before the judgment of the court was delivered. In effect and significantly so, when that court was handing down its decision and issuing injunctive orders to protect BUA, BUA knew and was well aware, by virtue of the above-referenced letters, that its purported rights to the mining lease were non-existent!

“These facts were however mischievously and in a brazen display of mala fide concealed by BUA Group from the court! Even these facts constitute sufficient proof that BUA Group’s claim to Mining Leases Nos. 18912 and 18913 rest entirely on quicksand and is therefore invalid baseless and totally non-existent. The general public is advised to be guided accordingly.

BUA Insists Judicial Process Must be Respected

However, reacting to the statement by Dangote, a statement by BUA Group alleged that Dangote, misinterpreted facts.

“We read with dismay the publication by the Dangote Group which purports to set the records straight with regards to the earlier publication of the BUA group on the recent judgment of the Federal High Court in Suit No. FHC/B/CS/101/2017: BUA v. IGP & Ors. (“BUA Fundamental Right Suit”), which restrains Dangote Industries Limited (“DIL”) and other Respondents in the suit from interfering in BUA Group’s mining sites in Obu, Okpella, Edo State. In the said publication by Dangote Group, it was alleged that the initial publication of the BUA Group was riddled with misrepresentations and deliberate distortions of facts.

“We however note that the Dangote Group failed to identify any specific fact, which was distorted. On the contrary, the Dangote Group reiterated the fact that the judgment of the Court indeed restrained DIL and the other Respondents, as contended by BUA, albeit stating that the judgment of the Court constitutes complete aberrations and contains manifests contradictions; and it has exercised its legal right to appeal the decision of the Court. Whilst we consider this attempt to disparage the Court on the pages of print media as an affront, we shall not be joining issues with the Dangote Group, as we are of the view that the Court can protect itself and DIL reserves the right to appeal the decision of the Court. Paradoxically, the Dangote Group’s publication was fraught with untrue statements, which it touted as the facts of the matter in an attempt to misinform the general public.

“Accordingly, we seek to clarify the fallacies as follows: Title to Mining Sites The Dangote Group alleged that BUA claims to have been granted its mining licenses from the Governor of Edo State. In this regard, it is imperative to note that BUA has never contended that the Governor of Edo State granted its licenses, as the authority to grant a mining license is within the sole jurisdiction of the Ministry of Mines and Steel Development through the Nigeria Mining Cadastre Office, which granted the BUA licenses. Further, both the Hon. Minister of Mines and Steel Development and the Nigeria Mining Cadastre Office are defendants in Suit No. FHC/B/CS/7/2016: BUA International Limited & Anor. v. Hon. Minister of Mines and Steel Development (“BUA Suit”), wherein BUA asserts its legal and beneficial ownership of the mining sites.” Further, the Dangote Group explicitly asserted that BUA does not have any right to the mining sites on the basis of the response of the Director-General of the Mining Cadastre Office to BUA’s application to renew its licenses. Needless to say, the Director-General’s ministry and parastatal are also Defendants in the BUA Suit pending in Court and the reaction is therefore not surprising. “We wish to state clearly that the mining license granted to Dangote Group explicitly states that the location is in Kogi State, Nigeria, while the BUA licenses and mining sites respectively cover and are located in Obu, Okpella, Edo State, Nigeria.

“The Dangote Group’s attempt to lay claim to mining sites not within a geographical area covered by its license is therefore ludicrous. The general public is therefore advised that Dangote Group’s claims are nothing but an attempt to unilaterally determine the outcome of the very matter the Court has been approached to determine in Suit No. FHC/B/CS/7/2016 – BUA Suit, which is still pending. Legal Procedures The Dangote Group also questioned the right of BUA to institute the BUA Fundamental Right Suit on the basis that it was a clear abuse of court process as there are two other pending suits – the BUA Suit and Suit No. FHC/B/CS/74/2016: Dangote Industries Limited & Anor. v. BUA International Limited & Ors (“Dangote Suit”).”

This is notwithstanding that the Dangote Group itself ironically commenced the Dangote Suit during the pendency of the BUA Suit. Moreover, it is trite law that any fundamental right suit is an independent claim, which does not impede a pending dispute. In this instance, the suit was deemed necessary in view of Dangote Groups use of the Nigeria Police Force to disrupt the possessory right of BUA Group and to safeguard the lives of BUA Group’s employees.

Indeed, Court confirmed this in the BUA Fundamental Rights Suit, where it was stated: “That the 1st and 2nd Respondents (Police) allowed themselves to be used by the 3rd and 4th Respondents (DIL and Dangote Cement)” It is imperative to note that the Dangote Group’s use of the Nigeria Police Force to disrupt BUA’s operations was done brazenly after DIL had applied to Court for a restraining order against BUA in Suit No. FHC/B/CS/74/2016, which was granted ex parte, but set aside by the Court upon a robust challenge by BUA. Interestingly, the Dangote Group did not deny resorting to self-help in its publication. It is our contention that no one should be above the law, no matter how highly placed, powerful or influential as the rule of law is the pillar and foundation of any democracy. With respect to the Dangote Group’s interpretation of the consequence of its Appeal of the decision of the Court, it is trite law that an Appeal does not amount to a stay of execution, and the Dangote Group is only being mischievous by suggesting that BUA is refrained from taking benefit of the judgment, which was in its favor. As held by the Supreme Court in the case of Tai Ajomale v. Yuduat and Anor (1991) All N.L.R. 197: “the successful litigant is prima facie entitled to the fruits of the judgment in his favour, it is expressly provided in Section 24 of the Supreme Court Act, 1960, that an appeal does not operate as a stay of execution.” The Courts have also reiterated the position of law in the case of Enabulele v. Agbonlahor (1994) 5 NWLR (PT. 342) 112 at P125, where it was held that: It is trite law that under Section 18 of the Court of Appeal Act, 1976, the filing of a Notice of Appeal does not operate as a stay of execution since the Court will not normally deprive a successful party of the fruits of his successful litigation” the statement added.

Conclusion

Meanwhile, some stakeholders in the sector have stressed the need for the warring factions to embrace dialogue.

The Miners Association of Nigeria appealed to both companies not to raise tension in the community with the dispute.

They warn that, it is important that the matter is resolved in the interest of the community and Edo State so as to prevent any breach of peace, as the battle shifts to the Appeal Court for resolution. Ultimately if an amicable resolution is not reached, the Supreme Court will most likely have to decide who owns the mining sites.