Nigerian National Petroleum Corporation (Nnpc) & Anor V. Chief Stephen Orhiowasele & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

The respondents as plaintiffs commenced their suit before an Effurun High Court Delta State, presided over by Omo Agege CJ (as he then was) claiming against the appellants (defendants) the sum of Twenty Million Naira for special and general damages for the negligence of the defendants, allowing crude oil spill from its burst oil wells onto the land, swamps creeks, ponds shrines of the plaintiffs. The plaintiffs sued for themselves and as representatives of the Ogbe-Udu Community, in Okpe Local Government Area of Delta State. PAGE| 2 Both courts below found for the respondents. The sum of N18,329,350.00 (Eighteen Million, Three Hundred and Twenty-Nine Thousand, Three Hundred and Fifty Naira) was awarded by the Trial High Court. The Court of Appeal agreed with the learned trial judge but reduced the judgment sum by N2,000,000.00 (Two Million Naira). Still dissatisfied with the judgment of the Court of Appeal the appellant have come here on a further and final appeal presenting four issues in their brief deemed duly filed on the 10th of January, 2007. The respondents brief was deemed duly filed on the 2nd of May, 2012. In the appellants brief four issues were formulated for determination. They are: 1. Whether the respondents claims were statute barred. 2. Whether the Federal High Court had jurisdiction to entertain the claims of the respondents. 5. Whether the respondents were entitled to the special damages in the sum of N15,329,350.00 awarded by the lower court. 4. Whether the extra award of N3,000,000.00 (Three Million Naira) as general damages after the initial award of special damages amounts to double compensation. Learned counsel for the respondents adopted in the respondents brief the four issues formulated by the appellants learned counsel. It is long settled that once the issue of jurisdiction is raised it must be heard first. Once raised all proceedings abate until it is resolved. The issue of jurisdiction is threshold. It is very fundamental as it goes to the competence of the court. It is very important, so it can be raised by any of the parties, or even by the court suo motu. Once raised the judge would do well to examine it in detail and rule appropriately. The fundamental nature of jurisdiction is further emphasized by the fact that it can be raised at trial, on appeal and even before the Supreme Court for the first time. Once a court has no jurisdiction to hear a case and it goes ahead to hear the case there would be nothing as useless as conducting a case even if flawlessly only to find out that the case ought not have been heard at all because the judge has no jurisdiction to hear the case. The entire proceeding would be a nullity. Cases conducted without jurisdiction are declared a nullity and struck out. See Barclays Bank of Nig. v. CBN (1976) 6 SC p.175 PAGE| 3 Oloba v. Akereja 1988 3 NWLR pt.84 p.508 A.G. Lagos State v. Dosunmu 1989 ALL NLR p.504 Usman Dan Fodio University v. Kraus Thompson Organisation Ltd. 2001 15 NWLR pt.736 p.305. In view of what I have been saying Issue No.2 on the appellants brief, adopted by the respondents is crucial and important. If it succeeds the entire proceedings before both courts below will be declared a nullity and it will be unnecessary to consider any of the other issues. Learned counsel for the appellants argued that by Section 7(p) of the Federal High Court Amendment Act and Section 1 of the Admiralty Jurisdiction the Federal High Court and not the State High Court has jurisdiction over the respondents’ claims. Relying on SPDC (Nig.) Ltd. v. Isaiah 2011 11 NWLR pt.723 p.168. He urged on this court to allow the appeal on this ground. In reply, learned counsel for the respondents observed that by virtue of the provisions of Section 236(1) of the 1979 Constitution the Delta State High Court was correct to hear the respondents’ claims. He further observed that it was wrong to raise the issue of jurisdiction for the first time in this court, contending that it is incompetent and should be struck out. A trial conducted without jurisdiction is a waste of precious judicial time. The whole proceeding no matter how well conducted and decided would ultimately be declared a nullity. That explains why the issue of jurisdiction can be raised and heard at and time. During trial, on appeal, or in the Supreme Court for the first time. See Usman Dan Fodio University v. Kraus Thompson Organisation Ltd. Supra. An appellant seeking, to raise the issue of jurisdiction before this court for the first time does not need to ask for leave. All that he needs to do is to raise the issue of jurisdiction in his brief, thereby given the respondent enough time to respond. The issue of jurisdiction raised by the appellant for the first time before this court is very much in order. PAGE| 4 Legislations relevant for consideration of this issue on jurisdiction are: 1. Constitution of Nigeria 1979. Section 230(1) 2. Constitution (Suspension and Modification) Decree No.107 of 1993. Section 230 (i)(o). 3. Petroleum Act 1960 and the Oil pipeline Act, 1956. The principles which guide a court in determining if it has jurisdiction are: (a) that the subject matter of the case is within its jurisdiction; (b) that there is no feature in the case which prevents the court from exercising its jurisdiction; and (c) that the case comes before the court initiated by due process of Law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v. Nkemdilim 1962 2 SCNLR p.341. The issue in this matter on jurisdiction is whether the facts of this case fall within matters connected with or pertaining to mines and minerals, including oil fields, oil mining, geological surveys and natural gas. This falls within (a) and (b) above. If so found then, does the state High Court have jurisdiction to hear claims involving oil spillage. It becomes clear that a court will have the necessary competence to hear and determine a matter before it if the subject matter is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. Section 230(1) of the 1979 Constitution vested in State High Courts unlimited jurisdiction to hear and determine about eighteen major items numbered (a) to (s) including the respondents claims in this action. But in 1993 the Constitution (Suspension and Modification) Decree No.107 of 1993 with commencement date of 17/11/95 came into force. Section 250(1) of the Decree restored the jurisdiction of the Federal High Court pertaining to all the eighteen items, including the respondents claims in this action. Section 230 (i)(o) of Decree No.107 of the Constitution (suspension and Modification) Decree PAGE| 5 No.107 of 1993 provides as follows: “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 or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from (a) mines and minerals (including oil fields mining, geological surveys and natural gas)” Now, do the facts in this case fall within (a) above. That is to say within matters connected with or pertaining to mines and minerals, including oil fields, oil mining, geological surveys and natural gas. The construction, operation and maintenances of an Oil pipeline by a holder of oil prospecting licence is an act pertaining to mining operations. It is clear from the pleadings that the spillage and pollution occurred due to the negligence of the appellants handling their oil wells. Since the spillage occurred it can be explained as having arisen from or connected with or pertaining to mines and minerals including oil fields and mining. See The Petroleum Act 1960. Oil Pipeline Act 1956 Shell Petroleum Development Co. Nig. Ltd. v. Isaiah 2001 11 NWLR pt.723 p.168. The facts of this case fall comfortable within Section 250(i) (a) of the 1979 Constitution as amended by Decree No.107 of 1993. “Notwithstanding” in Section 230(i) of the 1979 Constitution means that no provision in the Constitution itself or any statute or legislation shall be allowed to prevail over the provisions of Section 230(i) supra. Notwithstanding is thus a term of exclusion. The Federal High Court has exclusive jurisdiction over the eighteen items, (a) to (s), but for the Federal High Court to have jurisdiction to adjudicate the course of action must be or arise from one of the items in (a) to (s) and one of the parties must be the Federal Government or an agency of the Federal Government. See Zakari v. IGP 2000 8 NWLR pt.670 p.666. Akegbajo v. Dr. Ataga 1998 1 NWLR pt.534 p.459 PAGE| 6 IGP v. Aigbiremelen 1999 13 NWLR pt.635 p.443 NEPA v. Edegbero 2002 18 NWLR pt.798 p.79 Oloruntoba-Oju v. Abdul Raheem & 3 Ors. 2009 5-6 SC (pt.11) p.57 Obiuweubi v. CBN 2011 2-3 SC pt.1 p.46 There is no doubt that the 1st appellant is an agency of the Federal Government of Nigeria. Before I conclude I must say a thing or two on cause of action and jurisdiction. In Obiuweubi v. CBN supra I said that: “…. The law in force or existing at the time the cause of action arose is the law applicable for determining the case. This law does not necessarily determine the jurisdiction of the court at the time that jurisdiction is invoked. That is to say the law in force at the time cause of action arose governs determination of the suit, while the law in force at the time of trial based on cause of action determines the court vested with jurisdiction to try the case. For example Decree 107 of 1993 came into force on 17/11/93. A litigant who had a cause of action in 1990 would have his case governed by the law at the time (i.e. 1990) if trial commences before 1995 the court to try the case would be the State High Court but if after 17/11/93 the case would be tried by the Federal High Court.” If is so obvious that cause of action and jurisdiction are not interchangeable. The effect of Section 230(i) (a) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Decree No.107 of 1993 is to oust the jurisdiction of the State High Court to adjudicate on mines and minerals and allied matters and give that jurisdiction exclusively to the Federal High Court. In Obiuweubi v. CBN supra I examined several cases decided by this court, to mention a few OHMB v. Garba 2003 7 SC (pt.11) p.138 Olutola v. Unilorin 2004 18 NWLR pt.905 p.416 Osakue v. FCE 2010 2 – 3 SC (pt.111) p.158 and held that: “For the State High Court to have jurisdiction under Decree 107 of 1993 the cause of action PAGE| 7 must arise before 17/11/93 and the trial must also be in progress before the said date. That is to say all part heard cases in the State High Court before 17/11/93 can continue after 17/11/93 in the State High Court because Decree 107 of 1993 does not have retrospective operation, and in view of Section 6(i) of the interpretation Act Cap 192 Laws of the Federation of Nigeria 1990.” In further examination of these cases I found that in Osakue v. FCE supra and Olutola v. Unilorin (supra): “Trial commenced for the first time in 1994 i.e. after 17/11/93 when Decree 107 of 1993 came into force. The Federal High Court had exclusive jurisdiction as at 17/11/93. Consequently proceedings before the State High Court in 1994 are clearly a nullity.” Applying the above to the case in hand trial commenced for the first time on 1/12/93, i.e. after 17/11/93 when Decree No.107 of 1993 came into force. The Federal High Court had exclusive jurisdiction as at 17/11/93. Consequently proceedings before the State High Court on 1/12/93 are clearly a nullity for the simple reason that as at 1/12/93 the State High Court has no jurisdiction to hear the respondents claim since that jurisdiction was taken away on 17/11/95 when Decree No.107 of 1993 was promulgated. This issue has determined this appeal. Considering, other issues in the light of my findings on jurisdiction would amount to an academic exercise. This appeal succeeds. The judgment of the High Court and Court of Appeal are hereby set aside with no order on costs. The claims of the respondent can only be heard by a Federal High Court.

SC.261/2003