Oronto Douglas V. Shell Petroleum Development Company Ltd. & Ors (1988)
LawGlobal-Hub Lead Judgment Report
MUSDAPHER, J.C.A.
The plaintiff now appellant is an activist in the protection of the environment. He is actively involved in the protection of the environmental rights promotion of waste management and generally safe and sustainable environment. He claims to be a native of the Niger Delta where there are large deposits of oil and gas. The respondents were jointly engaged in a project for the production of liquefied natural gas. For the project to take off the respondents are required to do preliminary studies on the impact of the project on the environment. They are required to comply with the provisions of Environmental Impact Assessment Decree No. 86 of 1992. The appellant was not satisfied that the respondents had satisfactorily adhered to the provisions of the Decree hence he took an action in the Federal High Court against the respondents and the Federal Environmental Protection Agency. In the course of the action, he discontinued the claim against the agency.
The appellant simultaneously filed the writ or summons with an originating summons. The claim in the writ of summons are for declaration and injunction restraining the respondents from continuing on and/or carrying on with the liquefied Natural Gas project until a proper environmental impact assessment has been conducted strictly in accordance with the terms of the Decree aforesaid. In the originating summons the appellant submitted three questions for determination.
The appellant attached to the originating summons statement of facts and an affidavit verifying the statement. The 1st, 2nd, 3rd and 4th respondents filed notices of preliminary objection contending in the main the appellant’s actions are incompetent in that the appellant lacks the requisite locus standi and that the mode of the commencement of the appellant’s action is procedurally defective.
Arguments were heard by the trial Judge on the preliminary objection and in his ruling delivered on the 17th day of February, 1997, the trial judge. Belgore, CJ. struck out the appellant’s claim on the ground that the procedure adopted was “confused” and also on the ground that the appellant has no legal standing to prosecute the action. It is against this decision that the appellant has filed this appeal. The notice of appeal contains three grounds which read thus.
“1. The learned trial Judge was wrong when he held that
‘The claim is baseless, the plaintiff shows no prima facie evidence that his right was affected nor any direct injury caused him. Foremore, since there was no personal right of the plaintiff infringed nor has he shown any injury suffered if he suffered anything at all, more than the generality of the people.” and thereby reached as incorrect decision.
Particulars of error
(a) The Appellant clearly established sufficient personal interest as a member of the community that alleged environmental pollution against the Respondents.
(b) The Appellant showed that the activities of the Respondents posed environmental danger to him and his community.
(c) The Appellant has also conferred by Statute on him an interest in the subject matter of the litigation (Section 7 of the Environmental Impact Assessment Decree of 1992).
(d) Standing to sue in Nigeria is today based on the doctrine of sufficient interest and no longer the narrow principle of pure personal interest The Appellant established an overwhelming case of sufficient interest.
II. The learned trial Judge was wrong to hold that the action of the Appellant was frivolous because of an alleged mix up in the Originating processes.
Particulars of Error
(a) The action commenced by an originating summons accompanied by a statement of facts and a verifying affidavit. There was also an application to the Registrar of the Federal High Court to issue the process, in and within the Rules of the Court.
(b) There was no mix up in the Originating Process of this case.
(c) Even if there was a mix up it was not sufficient or reason to deny the Appellant hearing or affect the standing of the Appellant to bring the action.
(d) The Ruling is against the weight of evidence.”
It is pertinent, at this stage to state that pleadings have not been ordered and filed. The materials placed before the learned trial Judge was the statement of the facts in support of the Originating Summons and the particulars of claims contained in the Writ of Summons. The Notice of Preliminary Objection did not contain any affidavit evidence.
The Notices of Preliminary Objection are brought under the provisions of Order XXVII of the Federal High Court Civil Procedure Rules. The objections filed were in a nature of demurrer proceedings. The order under reference provides:-
“1. where a Defendant conceives that he has a good legal or equitable defence to the suit, so that even if the allegations of the Plaintiff were admitted or established yet the Plaintiff would not be entitled to any decree against the Defendant, he may raise this defence by a motion that the suit be dismissed without any answer upon questions of fact being required from him.
- For the purposes of such application the Defendant shall be taken as admitting the truth
of the Plaintiff’s allegations and no evidence respecting matters of fact and no discussions on questions of fact shall be allowed.
- The Court on hearing the application, shall either dismiss the suit or order the Defendant to answer the Plaintiff’s allegations of facts and shall make such order as to costs as the Court may deem just.”
There is no doubt that the appellant filed a writ of summons and an originating summons simultaneously. From the notices of the preliminary objection filed in the court below, it appears that the notices were filed against both the writ of summons and the originating summons. The ruling of the trial Judge.
Belgore. CJ. appeared also to have dealt with the two initiating processes.
However, be that as it may, I have mentioned above that no affidavit was filed in support of the preliminary objection. The question which has to be determined now is whether there are sufficient materials placed before the learned trial Judge to enable him reach any valid decision on the competence of the suits filed by the appellant.
It has been held that where a defendant filed a motion on notice of preliminary objection, he also needs to accompany the motion with an affidavit. See Nwabueze v. Okoye (1988) 4 NWLR (pt.91) 664; Bello v. N.B.N. Ltd (1992) 6 NWLR (pt.246) 206; Fawehinmi v. Abacha (1996) 9 NWLR (pt.475) 710.
In the case of Free Ent. (Nig.) Ltd. v. G. T.O.S.A. (1998) 1 NWLR (Pt.532).1. This court per Onalaja, J.C.A., held that in demurrer applications under Order 27 of the Rules of the Federal High Court, by virtue of Ordere 33 of the same rules, it is necessary to file an affidavit in support of the application. See also Aina v. The Trustees of Nigerian Railways Corp. Pensions Fund (1970) 1 All NLR 281; Amawo v. A.G. (1973) NNLR 118 SC. See also F.I. Onwadike and Co. Ltd v. Brawal Shipping (Nig) Ltd (1996) 1 NWLR (pt.422) 65.
In a proper case, it would be manifestly absurd to suggest that a court was bound to proceed on a trial with the taking of lengthy evidence when it appeared that the whole suit could be decided on the pleadings without any evidence being called. That is the essence of demurrer under Order 27 of the Rules of the Federal High Court. But there must be placed before the Judge adjudicating the matter.
sufficient material for him to act upon. There is usually the necessity to file a statement of claim and an affidavit in support of the application to dismiss the action for want of legal competence. The application call not usually be made on the face of the writ of summons only a statement of claim must have been filed. See Adesina v. Olodotun (1972) 2 U.I.L.R. 224 and the Amawo case (supra).Applying all these authorities it appears to me, that the respondents have been very premature in moving the court to dismiss the action on the point of law.
There were no materials for the trial Judge to work with in arriving at any decision on the points raised. I am of the firm view that learned trial Judge had misdirected himself in giving the respondents hearing without an affidavit filed in support of the motion of preliminary objection as required by Orders 27 and 33 of the rules of the court. It is also necessary that at least there is a statement of claim filed to enable the court to determine all the facts the appellant was relying in instituting the cause of action.
There is no doubt that a court is duty bound to make a pronouncement on the issue of the competency of the suit raised before it at the earliest opportunity. Even if the issue of objection is technical it cannot be ignored but it must be raised with sufficient facts to enable the court to deal fairly with the case of both parties. The court cannot speculate on the facts.
In ascertaining the locus standi of a person to prosecute any action, it is usually the statement of claim that should be examined to see whether there is vested a justiciable right capable of being enforced. See Olagbegi v. Ogunneye II. (1996) 5 NWLR (Pt. 448) 332: The issue of locus standi involves the issue of the courts jurisdiction to entertain the matter brought to it. It has been held that such issue cannot ordinarily be considered solely on the face of the writ of summons without a statement of claim filed. See Multi Purpose Ventures Ltd. v. A.-G. River State (1997) 9 NWLR (Pt.522) 642. See also Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) 704. In the case of A.G. Enugu State v. Avop Plc. (1995) 6 NWLR (Pt.399) 90 at 113 Tobi. I.CA. said:
“In deciding the issue of locus standi at the trial Court, only the Statement of Claim should be looked into.”
In the ruling under the appeal the learned trial Judge held partly thus:
“This is apart from the fact that the claim is baseless the plaintiff shows no prima facie evidence that his right was affected nor any direct injury caused to him…”
For a plaintiff to establish his locus standi in an action for declaratory order he must prove that his legal right or interest which he seeks to protect is not a right common to the community at large, unless he can show that he suffered damages more than any person. I wonder how the learned trial Judge came to this conclusion without looking at the statement of claim or in the absence of any evidence. The learned trial Judge could not legally speculate on the basis of the appellant’s claims at that stage. Such a finding that the appellant “has not sustained any injury” is not supported by any material before the trial Judge.
The learned trial Judge also decided that the appellant’s claims were “started in a confused state”…. The action is frivolous and the plaintiff a busy body should not be allowed to bring the court into contempt and ridicule”. With respect to the trial Judge, these matters were not before him and he clearly misdirected himself in treating the notices of preliminary objection at the stage when the appellant has not filed his pleading and when no facts were adduced by the respondents in support of the objection.
The procedure adopted by the trial Judge was clearly in breach of the provisions of Orders 27 and 33 of the Federal High Court (Civil Procedure) Rules.
Since the res in the matter has not been validly determined it will he imprudent for me to discuss the issues raised in the appeal. Suffice it for me only to set aside the decision of the learned trial Judge. Belgore, C.J, on the 17th day of February, 1997.
I do so. I remit the matter back to the Federal High Court. Lagos Division and there to he heard de novo before another Judge. Each party shall bear its costs.
Other Citations: (1988) LCN/0053(CA)
