Zimiro Emejuru & Anor V. Obediah Abraham & Ors (2007)
LawGlobal-Hub Lead Judgment Report
DONGBAN-MENSEM, J.C.A.
The appellants as plaintiffs in the trial court filed a suit in which they claimed as follows, against the respondents as
defendants, jointly and severally:-
“1. A declaration that the land called and known as “UGBATE LAND” the subject matter of this suit, situate at Ubarama in the Ekpeye District of Ahoda Local Government Area of Rivers State is the bona fide property and owned by the plaintiffs without any encumbrances.
“2. A perpetual injunction restraining the 1st and 2nd set of defendants, their agents, servants and privies from alienating, further entering, allotting, partitioning or sharing for farming or any other purposes or putting into any groups or individual use the land called and known as UGBATE situate at Ubarama in the Ekpeye District of the Ahoda Local Government Area of Rivers State.
“3. The sum of N13, 380,000.00 as damages for trespass by their defendant.
The particulars of claim made out in the statement of claim has paragraph 39 as follows:-
“Not minding the pendency of this suit at the appeal courts, the 3rd defendant, that was joined in this suit by the order of this honourable Court on the 15th day of January, 2001 on the application of the plaintiffs in or about the year 1997 entered into the plaintiffs’ property or the land in dispute and commenced laying Gas Pipelines and that without the plaintiffs consent and authority caused massive destruction to their cash crops farmland, ancestral landmarks and building in the process.”
The 3rd respondent, against which this claim is specifically made, filed and argued a preliminary objection to the jurisdiction of the State High Court. The preliminary objection was rooted in the provisions of section 251 (1) (n) of the 1999 Constitution.
In a considered ruling pronounced on the 6th day of May 2002, the learned trial Judge, Hon. Justice Obie Daniel Kalio upheld the preliminary objection and struck out the suit of the appellants.
The appellants have come before this court upon one ground of appeal from which a sole issue was distilled for the determination of this court.
The relief sought of this court is an order setting aside the ruling of the High court and directing that the suit be heard on its merit.
The issue formulated by the appellants is as follows:
“Whether the Court below was right when it held that it
lacked jurisdiction to entertain the plaintiff’s suit.”
The 1st & 2nd respondent’s is formulated sole issue too which is similar in terms with that of the appellants.
The 3rd respondent’s is slightly different and is as follows:
“Whether the claims as recited in the amended statement of claim touch and concern the subject of natural gas as covered by section 251 (I) (n) of the constitution of the Federal Republic of Nigeria 1999”.
In a nut shell, has the jurisdiction of the State High Court to determine the entire suit been ousted by the claim against the 3rd respondent?
The appellants’ learned counsel submits that the claims of the appellants were not related with the matters provided for by section 251 (n) of the 1999 Constitution (supra).
The learned counsel posits that the reasoning of the learned trial Judge and its conclusion are not supportable by the facts placed before it. It is further the submission of the learned Counsel that the learned Judge acted in error in importing the phrase “connected with or pertaining to” into the Construction of section 251(1)(n) of the 1999 Constitution (supra). Counsel distinguished the facts of this case and that of the Shell Petroleum Development Co. (Nig) Ltd. v. Isaiah (2001) 11 NWLR (Pt. 723) p. 168, in which the Supreme Court interpreted the provisions of section 251 of 1999 Constitution as then stated in section 230 (1) (a) of Decree No. 107.
Counsel contends that the issue in the Shell case (supra) was oil spillage whereas the issue in the instant appeal is a declaration of title to land. The learned Counsel cited the cases of:
Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) P 116 and Achebe v. Nwosu (2003) 7 NWLR (Pt.818) 103, (2002) FWLR (Pt.106) P 1000 at 1021 as authority by the Supreme Court and this Court respectively, to say that the State High Court has exclusive jurisdiction over lands in Urban Area by the provisions of section 39 (1) of the Land Use Act.
Although the two sets of respondents filed different briefs, their position on the issue for determination is the same.
The learned counsel for the 1st and 2nd respondents submits that by the joinder of the claim against the 3rd respondents, and the pleadings in support thereof (paragraphs (39-44) of the statement of claim, the appellants as plaintiffs “unwittingly radically” affected the configuration of the causes of action resulting in the ousting of the jurisdiction of the trial court: .
The learned counsel submits further that within the con of section 251 (1) (n) of the 1999 Constitution, activities revolving around the laying and construction of pipelines for the evacuation or transportation of natural gas is embraced within the meaning of “Mines and Minerals. The learned trial Judge was therefore right in relying on the case of Shell v. Isaiah (supra). Also cited in support of this submission is the case of Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) P 517 at 549.
The learned counsel for the 3rd respondent drew the fine line which lies at the root of the jurisdictional contention of the 3rd respondent. It is the submission of the learned counsel that by the amendment, two distinct causes of action appears from the amended statement of claim of the appellants to wit: one for a declaration of title to “Ugbate land” between the appellants and the 1st and 2nd respondents. The second cause of action is that for trespass against the 3rd respondent arising from the laying of gas pipelines for the distribution of natural gas. It is therefore tenuous, submits counsel, for the appellants to contend that their claim is merely that for the declaration of title, perpetual injunction and trespass.
Citing the case of Tukur v. Govt. of Gongola State (supra) the learned counsel submits that the trial Court, in determining the suit placed before it, must look not only at the reliefs sought but also at the underlying facts which conjunctively constitute the cause of action. In the words of Nnaemeka-Agu, JSC:- (in Tukur v. Govt. of Gongola State supra)
“By the expression “cause of action” is meant the factual base or some factual situations a combination of which makes the matter in litigation an enforceable right or an actionable wrong…”
Applying this decision to the instant appeal, the learned counsel for the 3rd respondent submits that the pith and substance of the claim against the 3rd respondent is the laying of gas pipelines and that is the factual base constituting the cause of action.
Upon the authorities of Shell v. Isaiah (supra) Nafiu Rabiu v. The State (1981) 2 NCLR 293, (1980) 8-11 SC 130 and Tukur v. Govt of Gongola State (supra) the learned counsel submits further that being a constitutional provision, section 251 (1) (n) must be given a broad construction so as to give true effect to it. The learned trial Judge, submits learned counsel was therefore right in importing into the construction of section 251 (1 (n) of the 1999 Constitution (supra), the phrase “arising from” “connected with” or “pertaining to” as that was the only way proper effect could be given to that provision.
The bone of contention in this appeal is the effect of the joinder of the 3rd respondent as a defendant in this suit.
It is the position of the 3rd respondent particularly, and also of the 1st & 2nd respondents, that the claim of the appellants against the 3rd respondent expanded the scope of the claim of the appellants by introducing a claim for damages resulting from the laying of gas pipelines, which “caused massive destruction to their cash crops, farm land, ancestral land marks and buildings in the process.”
Laying of gas pipelines no doubt relates to mining activities.
Section 251 (1)(n) of the 1999 Constitution respectively provide as follows:
“251 (1)- Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters”.
251 (1) (n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas).
By these provisions, mining is clearly an area of the exclusive jurisdiction of the Federal High Court, All the parties are ad idem that had the head of claim against the 3rd respondent as defendant not been added to the claim of the plaintiffs, their suit would clearly have been determinable by the State High Court. With the addition of the claim for damages against the 3rd respondents, a dichotomy was thereby created. In such a situation, the Supreme Court has directed that the suit is better heard and determined by the court with the requisite jurisdiction to try all the heads of claim in the suit.
Obaseki, JSC conveys the guidance in these terms:
“In the process of expounding the jurisdiction conferred on them, the courts have always emphasized the need to decline jurisdiction where its exercise will determine issues it has no jurisdiction to hear and determine …”(Refer:- Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt.117) P 517 at 549).
This is exactly what the learned trial court has done. I find no error in such good caution.
I am unable to comprehend the argument of the learned counsel to the appellant to the effect that the learned trial Judge “imported” the terms “pertaining to” “concerning or arising from” into the suit of the appellants. Those are the unseen terms at the root of the appellant’s suit against the 3rd respondent.
However, for the avoidance of doubt, we hereby refer to the pronouncements of this court and the Supreme Court on the meaning and effect of these terms in the matter of the jurisdiction of the Federal and State High Courts. In the case of SPDC V. Maxon (2001) 9 NWLR (Pt. 719) P 541 at 553-554, Pats Acholonu, JCA (as he then was and now of blessed memory), held that:
“The English word “pertain” means “to belong to” “to relate”. It also means to belong as a part or accessory” “to have reference to”.
The words “connected with” as used in S. 7(1) of Decree No. 60 1991 derive from the Latin maxim “connectere connesum” meaning “to tie or fasten together” to establish a relationship, to associate … for the subject matter or cause to be “connected with” mines, minerals including oil fields, oil mining … it ought to be something which is “tied to” or fastened together with” or something which “establishes a relationship between” or “associates with” mines and minerals including oil fields, oil mining … Once this relationship is established on the facts, the matter falls within the exclusive jurisdiction of the Federal High court”.
Similarly, in SPDC v. Isaah. Ogwuegbu, JSC considered the meaning of the said terms as follows:
” … Connected is defined in Black’s Law Dictionary, 6th Ed. as joined; united by junction, by an intervening substance or medium, by dependence or relation or by order in a series” whereas the verb “pertain” is defined in Longman’s Dictionary of Contemporary English to mean “to belong or have connection with (something)” [See also Mpidi Barry v. Eric (1998) 8 NWLR (Pt.562) P 404].
By these pronouncements, the claim of the appellant is “pertaining to” and “concerning or arising from” the “laying of Gas Pipelines”, an area of adjudication reserved for the Federal High Court.
A claim premised as this one is on the “laying of Gas Pipelines” which caused “massive destruction to cash crops, farmland, ancestral landmarks and building” is undoubtedly a claim arising from mining activities.
The inclusion of the 3rd respondent and the nature of the claim made against it clearly divests the State High Court of jurisdiction in the matter which now lies squarely and exclusively at the door step of the Federal High Court.
As to whether this appeal should be allowed only in respect of the 3rd respondent, I find the application as one made with neither conviction nor the requisite legal procedures. It is accordingly discountenanced.
This appeal is a fishing expedition doomed from inception by the terms of the claim against the 3rd respondent in a State High Court. It is my humble opinion that the learned counsel for the two sets of respondents have made out a superior case which I hereby endorse in affirming the decision of the learned trial Judge.
The appeal is dismissed.
A cost of N5, 000.00 is awarded to each of the two sets of respondents i.e. N5,000.00 to the 1st and 2nd respondent and N5,000.00 to the 3rd respondent.
Other Citations: (2007)LCN/2508(CA)
