C.G.G. (Nigeria) Limited V. Chief Lawrence Ogu (2005)

LAWGLOBAL HUB Lead Judgment Report

NIKI TOBI, JSC

The respondent was the plaintiff in the High Court. The appellant was the defendant. In an action filed at the Omoku High Court, Rivers State, the respondent claimed the sum of N3,120,000.00 as special and general damages as a result of alleged wrongful and reckless acts of the appellant in breaking and entering into the respondent’s farmland by cutting several seismic lines resulting in wanton destruction of the respondent’s cash/economic crops and trees, fish ponds, juju shrines and farm house.

In a motion dated 14th August, 1997, the appellant urged the court to strike out the action for want of jurisdiction on the ground that ‘the claim as disclosed in the writ of summons, statement of claim and the reply to the statement of defence arose from the shooting of explosives and other geological survey activities in the course of oil exploration activities in the oil field.

The learned trial Judge did not take the issue of jurisdiction in his Ruling. He rather took a procedural matter outside the issue of jurisdiction. Although he came to the conclusion that “the acts of the defendant that caused the plaintiff to launch this claim are acts which relate to geological survey activities”, he stopped there and dealt with whether the proviso to Order 24 Rule 2 of the High Court Rules 1987 of Rivers State was complied with in the motion. The Judge came to the conclusion that the proviso was not complied with. He dismissed the motion for non-compliance.

Not satisfied with the Ruling, the appellant went to the Court of Appeal. That court allowed the appeal and remitted the case to the trial Judge for him to determine the question of jurisdiction raised therein. The Court said at page 81 of the Record:

“Issue of jurisdiction is fundamental to the hearing of any matter before a court of law. Once it is raised no matter the manner of raising it, it must be determined by the court before further proceedings can start. The trial court was utterly wrong in begging the issue. Accordingly, I allow this appeal and set aside the ruling of the trial court delivered on the 4th of August 1998. The case is remitted to the trial court for it to determine the question of jurisdiction raised in the application of the appellant before it.”

Still not satisfied, the appellant has come to this court. Briefs were filed and duly exchanged. The appellant also filed a reply brief. The appellant formulated the following single issue for determination:

“Whether the Court of Appeal ought not to have resolved the issue of jurisdiction and refrain from remitting same as a consequential relief.”

The respondent, on his part, formulated the following issue for determination:

“Whether the court below was right in remitting this case to the trial court for it to determine the question of jurisdiction raised in the motion on notice dated 14/8/97 and filed on 7/10/97 by the appellant.”

Learned counsel for the appellant, Mr. D. O. Ezaga, submitted that since the High Court failed to consider the issue of whether or not it had jurisdiction to try the matter, the Court of Appeal should have cashed in on the opportunity to determine that issue. This is because the entire facts in affidavit necessary for such determination were already placed before the Court of Appeal, counsel reasoned.

He argued that the issue of jurisdiction is purely one of law that does not require evidence since the statement of claim which determines the issue was also before the court. In the circumstances, to remit the issue back to the High Court for determination will not only delay justice but may fail to bring the litigation to an end, learned counsel contended. He cited Odiba V. Azeqe (1998) 9 NWLR (Pt. 566) 370 and Osasona V. Ajayi (2004) 14 NWLR (Pt. 894) 547 at 548, (2004) 5 SCM 130.

Learned counsel contended that the issue of jurisdiction could be raised at any time, even on appeal, for the first time. He urged the court to hold that the issue, which could be raised at any stage in any court ought to be determined once raised and not to be remitted to a lower court where it was earlier raised. An issue can only be remitted for determination to a lower court where the higher court is handicapped in any form or where the law prescribes such, counsel argued. To remit the case to the High Court is to shy away from duty in the circumstances, counsel maintained.

Having succeeded in the appeal, the consequential order therefrom ought to be the granting of the reliefs sought in the appeal, viz: (a) An order setting aside the decision of the High Court and (b) An order striking out the suit for want of jurisdiction, counsel submitted. He cited Barry V. Eric (1998) 8 NWLR (Pt. 562) 856 and section 251 of the 1999 Constitution. Counsel conceded that the Court of Appeal granted the first relief.

It is the submission of counsel that the relief to be granted by the Court of Appeal upon its judgment ought to flow and have a bearing with that judgment. He cited Akinbobola V. Plisson Fisko (Nig.) Ltd. (1991) 1 NWLR (Pt. 167) 270 at 288. By failing to give effect to the order allowing the appeal, the Court of Appeal rendered its judgment contradictory and confusing and should not be allowed to stand, counsel argued. He urged the court to allow the appeal.

Dealing with the only issue formulated by him for determination, learned counsel for the respondent, Mr. Dejo Lamikanra, submitted that the Court of Appeal was perfectly right in remitting the case to the trial court for it to determine the question of jurisdiction raised by the appellant. He cited section 16 of the Court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria, 1990. His second argument is that although the appellant filed four grounds of appeal against the Ruling of the trial court, there was no ground of appeal complaining that the trial court lacked jurisdiction to hear and determine the case. As there was no ground of appeal before the Court of Appeal complaining that the High Court does not have jurisdiction to hear and determine the case, the Court of Appeal could not have proceeded to determine that issue because it lacked the jurisdiction to do so, learned counsel contended. He cited Ebba V. Ogodo (1984) 4 SC 84 at 112 and Alhaji Bako V. Laniyan (2002) 13 NWLR (Pt. 783) 171, (2002) 12 SCM 1.

The third argument of learned counsel is that the Court of Appeal is entitled to have the benefit of the opinion of the trial or lower court in the sense that the trial or lower court has first decided an issue, which is as crucial and fundamental as jurisdiction before being asked to determine it. He cited Ajadi V. Okenihun (1985) 1 NWLR (Pt. 3) 484; Alhaji Ajuwon V. Madam Adeoti (1990) 2 NWLR (Pt. 132) 271 at 296; Olanrewaju V. Governor of Oyo State (1992) 9 NWLR (Pt. 265) 335. He also called the attention of the court to the following authorities in the supplementary list of authorities: Strong and Co. Ltd. V. Woodfield (1905) KB 350 at 357; The Shell Petroleum Development Co. of Nig. Ltd. V. Maxon (2001) 9 NWLR (Pt. 719) 541 at 562, 563, 568 and 569; Alhaji Ndayako V. Jikantoro (2004) All FWLR (Pt. 216) 390 at 415, (2004) 5 SCM 68; section 2 of Decree No. 60 of 1991 and section 251 of the Constitution of the Federal Republic of Nigeria, 1999. He urged the court to dismiss the appeal.

Learned counsel for the appellant, in his reply brief, submitted that the appeal was purely against the decision of the Court of Appeal in all its ramifications and never admitted of any issue directly from the High Court. He argued that the words trial judges” admit of no other interpretation other than judges which made up the Court of Appeal. Counsel contended that the case of Ogoyi V. Umagba (1995) 9 NWLR (Pt. 41) 283 at 293 does not support the interpretation and argument of the respondent.

On the argument of the respondent with regard to remitting the case back to the High Court, learned counsel submitted that section 16 of the Court of Appeal Act presupposes a full trial which was concluded in the High Court and not where the High Court fails to do its duty, in which case, the Court of Appeal should make the necessary pronouncements or findings. He cited Odiba V. Azege (1998) 9 NWLR (Pt. 566) 370.

Learned counsel argued that there was no need for the appellant to couch a ground of appeal at the Court of Appeal complaining that the trial court lacked jurisdiction. Having raised the issue at the High Court and same is not pronounced upon, the appellant rightly called upon the Court of Appeal to make the necessary pronouncement, counsel contended. He said that the cases of Chief Ebba V. Chief Ogodo (1984) SC 84 and Olarewaju V. The Governor of Oyo State (1992) 9 NWLR (Pt. 265) 335 cited by counsel for the respondent are inapplicable. He further called the attention of the court to Ajade V. Okenihun (1985)1 NWLR (Pt. 3) 484 and urged the court once again to allow the appeal. Counsel for the respondent withdrew his preliminary objection and this Court accordingly struck it out. Let me take first the submission of learned counsel for the respondent that there was no complaint in the grounds of appeal that the High Court lacked jurisdiction to hear and determine the case. Learned counsel was kind enough to the appellant by referring to ground 2 which reads:

“The Learned trial judge failed and/or refused to consider the issue of lack of jurisdiction by the defendant and the arguments advanced on same.

PARTICULARS OF ERROR

A court is bound to pronounce and make a finding on all issues raised in argument no matter how irrelevant.”

In the light of the above, I do not really see the point made by learned counsel. Ground 2, in my humble view, clearly attacks the lack of jurisdiction of the High Court. In the circumstance, I hold that the submission is misconceived and I reject it.

Paragraphs 3, 4, 5, 10 and 13 of the Statement of Claim depose to seismic survey operations and seismic lines. Section 2 of the Explosives Regulations, Cap. 117, Laws of the Federation of Nigeria, 1990 defines explosives as including seismic explosives, which the action is based. The same section defines mining as having “the meaning assigned to it in the Minerals Act and shall include the use of explosives in works authorised under the Petroleum Act.” Although there is no definition of “mining” in the Minerals Act as claimed by the definition in the Explosives Regulations of 1990, it is my view that the second arm of the definition of mining is vindicated by the definition of explosives in the same Regulations. By a community reading of the two definitions, I am of the view that the action arose out of mineral exploration activities and therefore had to do with mining.

In Shell Petroleum Development Co. of Nigeria Ltd. V. Maxon (2001) 9 NWLR (Pt. 719) 541, the court held that the relevant provisions of Decree No. 60 of 1991 and Decree No. 107 of 1993 (now section 251(1)(n) of the 1999 Constitution) put any civil cause and matters arising from or connected with or pertaining to mines and minerals, including oil fields, oil mining, geological surveys and natural gas within the exclusive jurisdiction of the Federal High Court. A State High Court, the court held, has no jurisdiction when an action will involve such matters in any form or to any degree.

In Barry V. Eric (1998) 8 NWLR (Pt. 562) 404, it was held that by virtue of section 7(1)(p) of the Federal High Court (Amendment) Decree No.60 of 1991, the Federal High Court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters connected with or pertaining to mines and minerals including oil fields, oil mining, geological surveys and natural gas. This provision was reinforced by the amendment of section 230 of the 1979 Constitution by the Constitution (Suspension and Modification) Decree No. 107 of 1993 which stipulated in its section 230(1)(0) that the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from arms, ammunitions, explosives, mines and minerals including oil fields, mining, geological surveys and natural gas. By the operation of the Decree the jurisdiction of the State High Court is ousted. It lacks the legal power to entertain and hear the suit. See also Compagnie Genrrale De Geophysigue (Nig.) Ltd. V. Assagbara (2001) 1 NWLR (Pt. 693) 155.

It is clear from the above that the State High Court had no jurisdiction to hear the matter, including the decision the court arrived at on the issue of procedure. When the matter went on appeal to the Court of Appeal, that court ordered that the matter be remitted to the High Court to decide on the issue of jurisdiction.

Was the Court of Appeal right in remitting the matter to the High Court? I think not. Jurisdiction is a matter of strict and hard law which can be taken by an appellate court. It is not a matter of fact which is within the purview of the trial Judge. Jurisdiction is a radical and crucial question of competence of the court, which both the trial court and the appellate court have equal right to take.

As it is the claim that has to be looked at or examined to ascertain whether or not a court is possessed with jurisdiction to hear or determine a matter before it, both trial and appellate courts have the jurisdiction to do so, for the fact that the claim is always before the two courts. See Okulate V. Awosanya (2000) 2 NWLR (Pt. 646) 530; Izenkwe V. Nnadozie (1953) 14 WACA 361; Adeyemi V. Opeyori (1976) 9-10 SC 31; Tukur V. Government of Gongola State (1989)4 NWLR (Pt. 117) 517; Egbuonu V. BRTC (1997) 12 NWLR (Pt. 531) 21; Maida V. Modu (2000)4 NWLR (Pt. 651) 99.

In the circumstances, the Court of Appeal should have invoked its section 16 jurisdiction to take the issue of jurisdiction in limine. See generally Nneji V. Chief Chukwu (1988) 3 NWLR (Pt. 81) 184; Adeagbo V. Alhaji Yusuf (1993) 6 NWLR (Pt. 30) 623; Chief Ejowhomu V. Edok-Eter Mandilas Limited (1986) 5 NWLR (Pt. 39); Igwechi V. Atu (1993) 6 NWLR (Pt. 300) 484; Jadesimi V. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264. Learned counsel for the respondent called the attention of the court to section 16 to justify the decision of the Court of Appeal. With respect, section 16 is clearly against his client, as the section vests in the Court of Appeal the jurisdiction of the trial court to “make any order necessary for determining the real question in controversy in the appeal.”

As the Court of Appeal was entitled to invoke its section 16 jurisdiction to deal with the issue, this Court is equally entitled to invoke its counterpart, section 22 of the Supreme Court Act, Cap. 424, Laws of the Federation of Nigeria, 1990, now the Supreme Court Act, Cap. S15, Laws of the Federation of Nigeria, 2004. The section empowers the Supreme Court to make any order necessary for determining the real question in controversy in the appeal. See generally Adeleke V. Cole (1961) 1 All NLR 55; Ode V. The Diocese of Ibadan (1966) 1 All NLR 287; Obiyan V. Military Governor of Mid-West (1972) 1 All NLR 422; Chief Ajagunieun V. Osho (1977) 5 SC 89. The real question in controversy in this appeal, in my view, is whether the High Court of Rivers State has jurisdiction in the matter before it.

As I have come to the conclusion that it is the Federal High Court and not a State High Court that has jurisdiction in the matter, I am left with no alternative than to strike out the matter and I do so accordingly. See Din V. Attorney-General of the Federation (1986) 1 NWLR (Pt. 17) 471; Oiora V. Odunsi (1959) 4 FSC 189; lwuaba V. Nwaosigwelem (1989) 5 NWLR (Pt. 123) 623; Dr. Onagoruwa V. Inspector-General of Police (1991) 5 NWLR (Pt. 193) 593; Okoye V. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501. After all, in an issue of jurisdiction, a court should not be influenced by sentiment to confer jurisdiction on a court which lacks it.

In sum, the appeal is allowed. I set aside the judgment of the Court of Appeal. I strike out the action in the High Court, Omoku, on the ground that the court lacks the jurisdiction to hear the matter. I award N10,000.00 costs in favour of the appellant.

SC. 303/2000