G. G. (Nigeria) Ltd V. Collins Amaewhule (2005)

LawGlobal-Hub Lead Judgment Report

DONGBAN-MENSEM, J.C.A.

In a suit No. PHC/664/94 between Mr. Collins Amaewhule v. C.G.G. (Nig.) Ltd., the plaintiff claimed against the defendant, “the sum of N1,000,000.00 (One million naira) only being for special and general damages for the extensive damages to the plaintiff’s houses and buildings lying and situate at Eliozu village, Oro-Igwe in Obio/Akpor Local Government Area of Rivers State which resulted from the negligence of the defendant in carrying out seismic survey works and operations at Eliozu village … between the 28th of February and the 4th of March, 1993”.

Pleadings were filed and the suit proceeded to hearing up to conclusion.

At the stage of address, the learned Counsel to the defendant filed a motion challenging the jurisdiction of the trial State High Court to hear and determine the suit.

The jurisdictional competence of the trial Court was challenged upon the provisions of the Federal High Court (Amendment) Decree, 1991, which Commenced on the 26/08/93. It was the contention of the learned counsel to the defendant/appellant that the said Decree came into operation well over a month before the suit of the plaintiff/ respondent was filed.

Counsel submitted that the learned trial Judge had no jurisdiction in the suit which relates to seismic and explosive matters. Counsel urged the learned Judge to strike out the suit.

The plaintiff’s learned Counsel argued to the contrary and urged the learned trial Judge on, being of the considered view that the contents of the plaintiff’s claim placed the suit within the powers of the State High Court to determine.

In a well considered ruling, the learned trial Judge dismissed the motion and declared that the State High Court had jurisdiction to hear and determine the matter.

The defendant, hereinafter referred to as the appellant, has come before us, urging us to over-turn the decision of the trial court.

Three grounds of appeal were filed from which the appellant had formulated for him, three issues for determination. These issues are:

(i) Whether the learned trial Judge was right in inferring and holding that the filing of this suit took place before the law ousting jurisdiction through a Gazette was put in place without properly checking the true position through the writ and the gazette.

(ii) Whether the State High Court can assume jurisdiction in this suit, even if the cause of action arose and/or the suit is filed before the commencement of the Decrees.

(iii) Whether the Port Harcourt High Court, being a State High Court, has jurisdiction to try this suit.

The plaintiff, herein after referred to as the respondent, formulated a sole issue from the three grounds of appeal.

The respondent’s issue is;

“whether the High Court of Rivers State had jurisdiction to try and determine the subject matter in suit No. PHC/664/93 ”

I find the issue made out by the respondent as more appropriate for the determination of the very narrow, though fundamental subject of this matter; that of jurisdiction.

It is the position of the appellant that the learned trial Judge erred by holding that the suit arose and was commenced before the Federal High Court (Amendment) Decree No. 60 of 1991, came into force. That the course of action in the suit arose between the 28th February and the 4th of March, 1993, while the action commenced on the 28th September, 1993.

To buttress his submission, the learned Counsel relies on the following facts and authorities:

1. The writ of summons in the suit recorded at pages 1-4 of the records of this appeal.
2. The statutory instrument No.9 of 1993.
3. Isaiah and 2 ors. v. Shell Petroleum Dev. Co. Nig. Ltd. (2001) 11 NWLR (Pt. 723) p.168 at 183.
4. Mpidi Barry & Ors. v. Obi A Eric & Ors (1998) 8 NWLR (Pt. 562) 404.

It was equally the contention of appellant that the learned trial Judge misdirected himself in assuming jurisdiction on the ground that the suit had commenced before the Federal High Court o (Amendment) Decree No. 60 of 1991, came into force. The learned Counsel for the appellant argues that even if the cause of action and the filing of same were before the commencement of the said Decrees, those facts do not vest on the State High Court the jurisdiction to try the matters which have now been placed under the exclusive jurisdiction of the Federal High Court. Counsel drew our attention to the proviso to section 7(6) of Decree 60 of 1991, which states that all pending matters at the commencement of the Decree shall abate and be transferred immediately to the registrar of the Federal High Court. Counsel relies on the case of:

University of Ilorin v. Olutola (1998) 12 NWLR (Pt. 576) pg. 72 at 79-80 which held that the said Decree has a retrospective Status.

Further, contends counsel, since the suit was commenced after the Decree, the priviso to section 7(6) (supra) would not apply because the jurisdiction to transfer exists only where the matter was already pending not after. The former, contends counsel is abatement of jurisdiction while the latter is a lack of jurisdiction ab initio. Counsel cites in support, the cases of:

1. Saidu Garba v. Federal Civil Service (1988) 2 SC (Pt. 11) 221 at 232-235; (1998) 1 NWLR (Pt.71) 449
2. Ige v. Obiwale (1969) 1 All NLR p. 292.
3. Anoleye v. Board of Customs & Excise & Anor. (1990) All NLR 127 at 128.
4. C.G.G. (Nig.) Ltd. v. Chief Lawrence Ogu, (unreported) SC.303/2000; (2005) 8 NWLR (Pt.927) 366.

Upon these facts, statutes and decided cases, submits the learned Counsel for the appellant, the trial court lacked the requisite jurisdiction to try the suit. The Decree No 60 had placed all matters which relate to seismic and explosives exclusively under the jurisdiction of the Federal High Court.

The learned Counsel urges us to set aside the decision of the Port Harcourt High Court of 22/04/98 and strike out the said suit No. PHC/664/93 for want of jurisdiction.

The learned Counsel for the respondent magnanimously concedes to the fact that the reason given in the ruling of the learned trial Judge, upon which his Lordship assumed jurisdiction was wrong both in fact and in law. Counsel however contends that the learned trial Judge nonetheless had the requisite jurisdiction to try and determine the suit.

It is the position of the counsel for the respondent that the subject matter in the suit does not fall within the provisions of Decree No. 60 and 107 of 1993. Counsel purports that by the terms of the relief sought as expatiated in the statement of claim, the subject matter of the suit is negligence, that there is nothing therein which suggest that the defendant’s seismic activities which gave rise to the suit was in the process of oil milling.

It is the submission of counsel that to hold otherwise would be to speculate in the absence of facts to substantiate the contention of the appellant before the trial court. Counsel submits that it is not the province of this court to speculate. Counsel relies on the following authorities:

1. Tukur v. Government of Gongola State (1989) 4 NWLR (PU17) p. 517 at 549
2. Western Steel Works v. Steel Workers (1987) 1 NWLR (Pt.49) p. 284
3. Thomas Oyibo v. Chief Peter Tolubi (1995) 7 NWLR (Pt.408) p. 480
4. Benjamin Ekpeogu v. Ashaka Cement Coy. Plc. (1997) 6 NWLR (Pt. 508) p.280 at 292(B)
5. Overseas Construction Ltd. v Creek Ent. Ltd. (1985) 3 NWLR (PU3) p. 407 at 414-419.
6. Complete Communications Ltd. v Miss Bianca Onoh (1998) 5 NWLR (Pt. 549) p. 197 at 218.

It was also the submission of the learned Counsel that not every error or misdirection committed by a learned trial Judge will result in its judgment being over-turned by the appellate court but only such as occasion a miscarriage of justice. Counsel cites in support the following cases:

1. Udeze v. Chidebe (1990) NWLR (Pt. 125) 141 p. 162
2. Oro & Ors. v. Falade & Ors. (1995) 4 NWLR (Pt.396) p. 385 at 416-417 (H-B).

I must say on this last point that, the learned Counsel for the respondent is right. Not all errors lead to a miscarriage of justice or re so substantial that such could lead to a reversal of the decision of the trial court.

However, is this principle applicable in the circumstances of this appeal?

The learned Counsel urges us to discountenance the contention of the appellant, answer the issue in this appeal in the affirmative, affirm the decision of the learned trial Judge and dismiss the appeal with substantial cost.

We had earlier reproduced in this judgment, the claim of the respondent before the trial court. The respondent seeks compensation for damages to his buildings occasioned by the seismic activities of the appellant. In the very words of the respondent; “the subject matter of the suit is negligence and that the negligence arose from the seismic activities of the defendant”.

The question to ask, in order to place this appeal in its proper prospective is what is seismic activity ordinarily associated with?

The Encyclopeadia Britannica, 2005, Deluxe Edition defines seismic survey as;

“a method of investigating subterranean structure, particularly as related to exploration for oil, gas and ore deposits”

It appears therefore that seismic activity is ordinarily associated with mining.

First and foremost, it is instructive to state that the provisions of Decrees No. 60 and 107 have since been incorporated into the provisions of section 251(1)(n) of the Constitution of the Federal Republic of Nigeria of 1999.

In the case of:- C.G.G. (Nig.) Ltd. v. Chief Lawrence Ogu (unreported) S.C. 303/2000; (2005) 8 NWLR (Pt.927) 366 the Supreme Court, per Niki Tobi JSC gave a full judicial elucidation to the statutory provisions pertaining to seismic activity in Nigeria. The Apex Court considered and interpreted the provisions of section 2 of the Explosives Regulations Cap 117, Laws of the Federation of Nigeria, 1990, which defines explosives as including seismic explosives,; which is also the subject matter of the instant appeal.

The court held that mining is defined by section 2 of the Explosives Regulations (supra) as having;

“the same meaning assigned to it in the Minerals Act and shall include the use of explosives in works authorized under the Petroleum Act”

The Apex Court found that although there is no definition of “mining” in the Minerals Act as claimed by the definition in the Explosives Regulation of 1990, it held that “the second arm of the definition of mining is vindicated by the definition of explosives in the same regulations”. Giving a community reading of the two definitions, the Supreme Court per, held that mineral exploration activities have to do with mining.

In the particulars of negligence laid out copiously in the statement of claim of the respondent at pgs 4-7 of the records, reference is made to the use of “dynamite and such like explosives substances in carrying out seismic survey works and operations which caused the vibrations that caused the damage to the respondent’s buildings which are said to be within one hundred and eighty (180) meters of the site of seismic operation.”

By the clear provisions of the then Decree No. 60 of 1991 and Decree No. 107 of 1993, which are now the provisions of section 251 (1)(n) of the 1999 Constitution, every civil cause or matter arising from or connected with, or pertaining to mines and minerals, including oil fields, oil mining, geological surveys and natural gas fall within the exclusive jurisdiction of the Federal High Court.

(Refer:

1. Shell Petroleum Dev. Co. (Nig.) Ltd. v. Maxon (2001) 9 NWLR (Pt.719) P. 541.
2. Barry v. Eric (1998) 8 NWLR (Pt.562) p. 404 &
3. Compagnie Generale De Geophysique Nig. Ltd. Assagbar (2001) 1 NWLR (Pt. 693) P 155.

It is correct to say, as contends the learned Counsel to the respondent that the claim discloses the subject matter of the suit to be negligence. The negligence however, arose, as claimed by the respondent, from seismic activities of the appellant. Seismic activities have been adjudged to be mining activities, an area of adjudication which falls exclusively within the judicial competence of the Federal High Court to the exclusion of every other court (Ref. section 251(1) of the 1999 Constitution). The State High Courts, that of the federal Capital Territory inclusive, are jurisdictionally incompetent to hear and determine matters pertaining to mining, etc.

The fact that a plaintiff crafts out his suit in terms which tend to take it out of the province of an activity or the provisions of a particular law does not necessarily change the character of the suit. The change of law does not affect the accrued rights of the plaintiff, if any, no, only the venue has changed, power has shifted and the plaintiff, of necessity, must take his claim to the court with the legal power to determine it. (refer University of Ilorin v. Olutola (supra) and Compagnie Generate (supra).

No amount of rigmarole will change the facts and confer jurisdiction where it does not repose by the operation of law. It is a matter of facts. It was the Venerable John Adams, the second President of the United States of America (1735-1826) who said that:

“Facts are stubborn things, and whatever may be on our wishes, our inclinations, they cannot alter the state of facts and evidence.”

The facts, the contents and the essence of the claim of the respondent place his suit squarely at the feet of seismic activities which are mining related activities. The Federal High Court possesses the exclusive adjudicatory authority to hear and determine the matter.

The High Court of the Rivers State Government lacks jurisdiction.

This appeal succeeds. The decision of the State High Court of 22/04/98, is hereby set aside. Consequentially, the suit No. PHC/664/93 filed before the State High Court is hereby struck out for the lack of the jurisdiction of the State High Court to hear and determine same. I award a cost of N5,000.00 to the appellant against the respondent.

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Other Citations: (2005)LCN/1789(CA)