Nigeria Liquefield Natural Gas Limited V. Opuada Dublin Green & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
MOHAMMED LAWAL GARBA, J.C.A.
The Respondents as Plaintiffs, had filed an action against the Appellant at the Rivers State High Court (to be called simply High Court hereafter) vide a writ of summons dated and filed on 1/3/2001. The claim endorsed on the writ and later pleaded in the statement of claim was for the sum of Thirty Eight Billion, Four Hundred Million Naira only N38,400,000,000.00) being and representing special and representing special and general damages suffered by the plaintiffs as a result of the chemical pollution by the defendant from 2000 to 2001 of BONNY rivers, creeks, swamps, fishing channels and adjoining seas in Rivers State, thereby paralysing the plaintiffs fishing activities.
After being served with the writ and statement of claim, the Appellant filed a notice of preliminary objection questioning the jurisdiction of the High Court to entertain the action of the Respondents. The ground of objection was that the subject matter of the Respondents’ action being damages for pollution caused by natural gas emission, the High Court lacks the jurisdiction to adjudicate over it. After hearing learned counsel on the objection, the High Court decided that it has jurisdiction to adjudicate in the suit and so dismissed the objection in a ruling delivered on the 16/3/04. The nine (9) lines ruling of the High Court which is at page 22 of the record of appeal is as follows:-
“RULING
This is a preliminary objection brought by the Defendant/Applicant for this suit to be dismissed and or struck out on the ground that the Court lacks jurisdiction to entertain it. It was agreed by both Counsels that the submissions and agreements in PHC/487/2001 would be adopted here and the ruling there adopted as the ruling in this case since there is similarity in the issues at stake. Therefore since I have held in PHC/487/2001 that the jurisdiction of this court is not ousted by the issues in contention. I hereby hold that this Court has jurisdiction to entertain this matter. Therefore I order the dismissal of the Preliminary Objection as lacking in merit.”
Not satisfied with the decision of the High Court, the Appellant brought this appeal by the Notice of Appeal dated and filed on 30/3/04. The appeal was premised on the following three (3) grounds which for their brevity, I can afford to set out without the particulars:-
“1. The learned Trial Judge erred in law when she ruled that the High Court below has jurisdiction over a matter within the exclusive jurisdiction of the Federal High Court.
- The learned Trial Judge erred in law when she refused or failed to follow the decision of the Supreme Court in SHELL PETROLEUM DEVELOPMENT CO. LTD. V. ISAIAH (2001) 11 NWLR (part 72) 168.
- The Learned Trial Judge erred in law when she failed to examine the plaintiffs’ claim and relief as endorsed on writ of summons and statement of claim before coming to the conclusion that she has jurisdiction over the matter.”
With the leave of the court, the Appellants’ brief of argument filed on the 8/6/06 was deemed filed on the 26/9/06 while the Respondents’ were granted enlargement of time to file the Respondents’ brief on the 3/7/07, Up to the date of hearing the appeal on 28/5/2009, there was no record that a Respondent’s brief was filed in the appeal.
From the three (3) grounds of appeal, the learned counsel for the Appellant had raised and submitted three (3) issues for determination in the appeal. They are:-
(1) Whether the trial court was right in assuming jurisdiction without considering the Plaintiffs’ claim and relief as endorsed on the Writ of Summons and Statement of Claim?
(2) Whether the trial judge was right in holding that the High Court of Rivers state had jurisdiction to entertain and determine the suit particularly having regard to the provisions of section 251 of the Constitution of the Federal Republic of Nigeria and Section 2 of the Federal High Court (Amendment Decree) 1991?
(3) Whether the trial court can disregard a binding authority of a superior court when same is relevant and cited?
Though the learned counsel did not indicate in the brief from which of the grounds of appeal these issues were distilled, as diligent practice called for, it can easily be said that issue 1 derived from ground of appeal 3, issue 2 from ground 1 and issue 3 from ground 2. At the hearing of the appeal, learned counsel for the Appellant had urged the court to hear the appeal on the Appellants brief alone since the Respondents had not filed their brief even after an enlargement of time to do so was granted to them by the court on the 3/7/07.
After a confirmation from the record of the court that the Respondents’ application filed on 26/6/07 for enlargement of time for them to file the Respondent’s brief in the appeal was granted on the 3/7/07 and that there was no record that the brief was filed within the time extended/or at all, the Court granted the request for the appeal to be hear on the Appellants’ brief alone. The court was strengthened in making the above order by the fact that even though the learned counsel for the Respondents was duly and properly served with the hearing notice of the appeal, he was absent from the court and there was no communication from him to excuse the absence at the hearing. In addition, none of the Respondents was in court on the date of the hearing. It was for above reasons that the court decided to hear the appeal on the Appellants’ brief alone since in the circumstances, the Respondents and their counsel can reasonably be assumed to have lost interest or are no longer interested in the diligent prosecution of the appeal. For judicial and practical purposes therefore, the appeal is uncontested by the Respondents because its determination would entirely be based on the Appellant’s brief alone and in law the Respondents deemed to have no answer to and have conceded the points canvassed by the Appellant. AKANBI V. ALATEDE (NIG.) LTD (2000) 1 NWLR (part 639) 1251 OLUWOLR V. ABUBAKARE (2004)10 NWLR (Part 882) 549, SHONA-JASON LTD. V. OMEGA AIR LTD (2006) 1 NWLR (part 960) 1.
However, I should point out that the above position of the law not with standing, the failure or option by a Respondent not file a Respondents brief does not automatically guarantee the success of the uncontested appeal. The law still requires the court to consider whether or not the appeal is sustainable in law. JOHN HOLT VENTURES V. OPUTA (1996) 9 NWLR (part 470) 1011 SOFOLAHAN V. FOLAHAN (1999) 10 NWLR (part 621) 861 ECHERE V. IZIRIKE (2006) 12 NWLR (part 994) 3861 (2006) ALL FWLR (323) 1597 AT 1608. For that reason I would proceed with the consideration of the merit of the appeal in law.
Reading the grounds of appeal carefully, it would appear that the crucial question or issue that requires determination in the appeal is the issue 2 raised by the learned Appellant counsel. That is the substantial issue which in my view would fully dispose of the appeal since it questions the jurisdiction of the High Court over the Respondents’ case. Issue 1 and 3 deal with principles of law on practice and procedure which are not as weighty as the issue of jurisdiction in this appeal I intend therefore to consider and determine issue 2 as formulated in the Appellants brief first.
The issue is whether the trial judge was right in holding that the High Court of Rivers State has jurisdiction to entertain and determine the suit particularly having regard to the provisions of section 251 of the Constitution of the Federal Republic of Nigeria 1999 and section 2 of the Federal High Court (Amendment) Decree 1991.
After a reference to the claim of the Respondents and section 251 (1) (n) of the 1999 Constitution, learned counsel for the Appellant said the learned trial judge clearly erred in law since the Federal High Court was vested with exclusive original jurisdiction to determine any suit related to, arising from and ancillary to mines and minerals, including oil field, oil mining, geological surveys and natural gas. Section 2 of the Federal High Court Decree 1991 was also relied on for that positing as well as the cases of S.P.D.C LTD. V. ISAIAH (2001) 11 NWLR (part 723) 168 at 184-5, C. C. LTD V. OGU (2005) 14 WRN 1 at 14 – 11 and S.P.D.C. LTD V. TIEBO VII (2005) 9 NWLR (part 931) 439 at 459 – 60. It was the further submission of learned counsel that though the state High Court was vested with seemingly wide jurisdiction under section 272 of the 1999 Constitution, it is subject to the provisions of section 251 of the same Constitution on the authority of T.D. E.T.P.R.B. V. MULTICHOICE NIG. LTD. (2005) 14 WRN 145 at 174. We were urged to hold that the High Court lacks jurisdiction to entertain the suit and to answer the issue in the negative.
I would start a determination of the issue by saying that the law is now settled that by the provisions of section 251 (1) (n) of the 1999 Constitution, (in force when the case to which this appeal relates was filed) any civil cause or matter arising from, or connected with or pertaining to mines and minerals, including oil field, oil mining, geological surveys and natural gas court within the exclusive jurisdiction of the Federal High Court. That a State High Court has no jurisdiction when an action involves such matters in any form or to any degree. See E.G.G. Nig. (LTD) V. OGU (supra) also reported in (2005) 8 NWLR (part 927) 366 at 381, paragraph A – C, S.P.D.C. (NIG.) LTD V. MAXON (2005) 9 NWLR (part 719) 541, SPDC (NIG.) LTD V. ISAIAH (supra) at page 179, SPDC (NIG.) LTD V. TIEBO VII (supra), NKUMA V. ODIU (2006) NWLR (part 977) 587 at 602.
Perhaps I should point out here that even though the words or expressions “arising from” “connect with” “pertaining to” or “relating to” used in the preceding paragraphs of Section 251 (1) were not expressly and specifically used in paragraph (n) thereof, these decisions were based on the established principles of Constitutional interpretation. The known position of the law on the interpretation of Constitutional provisions is that no particular provision is interpreted in isolation of the other provisions, but particularly the ones to which it is associated with or related to in the determination of the object of the provision. Put another way, in the determination of the intendment and purpose for which a particular provision in the Constitution was enacted to serve, other provisions, particularly in the same section are to be taken and read together and not one in isolation of the others or other as the case may be. See BRONIK WEMA BANK (1985) 6 NCLR (PART 6) 1 AT 21, ABESANYA v. PRESIDENT FRN (1981) 5 SC at 112 at 134, OBA OYEYIPO v. OYINLOYE (1987) 2 SC 148 at 159, ONA V. ATENDA (2000) 5 NWLR (part 656) 244, OJUKWU V. OBASANJO (2004) 12 NWLR (part 886) 169, A.G. LAGOS STATE V. EKO HOTELS LTD (2006) 18 NWLR (part 1011) 378. The principle of law established and restated in these cases is golden in the practice of interpretation and application of Constitutional provisions by the courts in Nigeria.
Bearing the binding position of the law in mind, the interpretation, of the provisions of section 251 (1)(n) should not be done in isolation and disregard of the other paragraphs of the subsection. Rather, all the paragraphs of subsection (1) in particular, should be taken and read in conjunction with each other in order to bring out the sincere and intended purpose of the provisions. The undoubted object and intendment of the provisions of subsection (1) of section 251 of the 1999 Constitution which is patently clear from the unambiguous words used therein, are to confer or vest exclusive jurisdiction in the Federal High Court over or in civil causes or matters with regard to all the items or issues listed and set out in paragraphs (a) – (s) of the subsection, save for the proviso thereunder. For that reason, for the purpose of the interpretation and application of the provisions of any of the paragraphs, the over all object and intendment of the subsection has to be borne in mind and taken into consideration in line with the golden rule of interpretation. That is a binding duty from which there is no escape on the part of the court whenever the provisions of the subsection fall for interpretation in a matter or case before it.
In the above premises, in my interpretation and application of the provisions of section 251(1)(n) relevant to this appeal, I look at and take into account the other related paragraphs of the subsection and hold the view firmly, that the provisions are meant to confer or vest exclusive jurisdiction in the Federal High Court, in civil causes or matters, arising from, connected with, pertaining to or relating to (as used in those other paragraphs)”mines and minerals (including, oil fields, oil mining, geogical surveys and natural gas.”
Proceeding, holding the above view, the pertinent words in the provisions of section 251(1), i.e. “arising from”, “connected with” and “pertaining to” have been defined judicially by this court in the case of SPDC(NIG.) LTD V. MAXON (supra) as follows:-
“The English words” pertain” means to belong, to relate, to belong as a part or accessory, to have
reference to.”
“The words “connected with” means to tie or fasten together, to establish a relationship between, to associate.”
“The expression arising from” connotes and denotes emanating from or springing or having its offshoot from.” The term means “something which is a direct offspring of the matter.” With these judicial definitions of the words or expressions used in the Constitutional provisions, their ordinary meaning would be confined within the con of the facts disclosed on the writ or in the statement of claim to those definitions. In other words, the definitions would guide a determination of whether or not the facts of the Respondents’ claim fall under the exclusive jurisdiction vested in the High Court by the provisions of section 251 (1) (n) of the Constitution and section 2 of the Federal High Court Decree of 1991.
Using the definitions in the application of the above provisions of the Constitution and the Decree to the facts of the claim in the case of SPDC (NIG.) LTD V. ELDER MINA LALIBO & ORS. appeal NO.CA/PH/58/2008, decision of which delivered on 14th July 2008, I had held as follows in the lead judgment:-
“Consequently by the combined effect of the clear and unambiguous provisions of section 251 (1) (n) of the Constitution and the Provision of section 2 of the Decree No. 60, the Federal High Court is vested with and enjoys exclusive jurisdiction other civil causes or matters connected with or pertaining to mines and minerals, including oil field, oil mining, etc. The State High Court therefore has no jurisdiction over such causes or matters.”
The facts of the appeal in respect of the above unreported decision related to oil spillage from a flow station which was held to be connected with or pertaining to oil mining and operation of the Appellant in the appeal.
The relevant facts in the present appeal, as contained in paragraphs 2, 4, 5 and 6 of the Appellants’ statement of claim dated the 1st of March, 2001, are as follows:-
- The Defendant is a multinational company incorporated in Nigeria with several plants and pipeline installations in Bonny for the production and exportation of liquified natural gas, and has recently accomplished its 100th shipment to foreign countries.
- From the year 2000 to 2001 the defendant, in the course of production, continuously discharged several quantities of poisonous and toxic chemicals, oils, and effluents into the Bonny rivers, creeks, fishing channels and swamps wherein the plaintiffs carried on their fishing occupation, causing severe chemical pollution of the tidal water and swamps, thereby paralysing the plaintiffs’ fishing activities.
- The entire environment was severely polluted, and most of the plaintiffs’ fishing areas declared “EXCLUSION ZONES” by the defendant.
- The said chemical pollution of the water have occasioned the flight of fishes from the rivers and creeks, and destroyed the swamp resources of oysters, periwinkles, crabs and mudskippers upon which the plaintiffs largely depended for domestic use and for sale. Plaintiffs suffered self loss of fishing rights. Plaintiffs have also suffered the loss of customers.
Communally, the above pleadings are to the effect that the Appellant, involved in production and exportation of liquefied natural gas in Bonny, had from the year 2000 to 2001 in the course of production, continuously discharged poisonous and toxic chemicals, oils and effluents into the Bonny rivers, creeks, fishing channels and, swamps, where the Respondents carried on their fishing occupation. That the chemicals, oils and effluents discharged by the Appellant caused severe pollution of the tidal waters and swamps causing the flight of fishes therefrom and destroyed the swamp resources upon which the Respondents largely depended for domestic use and for sale thereby causing them severe loss of fishing lights and customers. So in their own statement of the facts giving rise to their claims, the Respondents have indicated that the discharge of the offensive chemicals, oils and effluents, was in the course of the production and exportation of liquefied natural gas, which is the primary business of the Appellant. Put another way by the Respondents’ own showing, the discharge arose out of and was directly connected with the production and exportation of liquefied natural gas under taken by the Appellant at Bonny. The claims of the Respondent therefore pertain to, arose from and are connected with the offensive discharge occasioned by and in the course of the production and exportation of liquefied natural gas by the Appellant which they asserted had caused them losses for which they claim damages in the statement of claim. It is consequently beyond viable argument that the claims by the Respondent in the statement of claim are causes on matters that relate to, arising from and connected with the production of natural gas which by virtue of section 251(1) (n) of the 1999 Constitution and section 2 of Federal High Court Decree No. 60 of 1993, are within the exclusive jurisdiction of the Federal High Court. The Rivers State High Court in the circumstances lacks the jurisdiction to entertain and adjudicate over such causes or matters as disclosed in the Respondents statement of claim.
The production of natural gas by the Appellant is at the root or is the foundation of the claims by the Respondents as was clearly averred in paragraph 4 of the statement of claim. Whatever duty of care was owed to the Bonny Community as a whole and the Respondents in particular, by the Appellant arose out of and was in direct connection with or relation to the activities of the production of natural gas. It was as pleaded by the Respondents, in the course of the production of the natural gas that the alleged offensive discharge, which gave rise to the claims by the Respondents was made. There is no logical and reasonable way to divorce or separate the claims made by the Respondents from the production of natural gas by the Appellant in the circumstances disclosed from the facts relied on by the Respondents. The High Court was as a result, wrong in law to have held that it had the jurisdiction to entertain and adjudicate on the claims by the Respondents.
I accordingly resolve the issue in favour of the Appellant.
The resolution of the above issue in Appellant’s favour has practically subsumed or overtaken the other issues raised by the Appellant which are not longer of moment in the appeal.
In the final result, I find merit in the appeal and allow same for the reasons set out before now. Consequently the decision of the High Court delivered on 16th March, 2004 that it had jurisdiction to entertain and adjudicate on the Respondents claims is hereby set aside. For lack of jurisdiction on the part of that court, the Respondent suit before it is struck out.
I make no order on costs and parties shall bear their costs of prosecuting the appeal.
Other Citations: (2009)LCN/3385(CA)
