Sunday Ugwojor V. Chevron Nigeria Ltd. & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
GEORGE OLADEINDE SHOREMI, J.C.A.
In Suit No. EHC/222/2000 between the Appellant and the Respondents, the Appellant as plaintiff in the lower court claims in his Statement of Claim as follows:-
STATEMENT OF CLAIM
1. The plaintiff is a Nigerian citizen resident at No. 30, Labourd Road, Sapele and at all times material to this suit is carrying on the business of felling trees and sawing same into planks.
2. The 1st defendant is a company registered under the laws of the Federal Republic of Nigeria and duly licensed to carry on business of petroleum exploration.
3. The 2nd defendant is a company incorporated under the laws of the Federal Republic of Nigeria and is involved in the business of marine transportation.
4. The 3rd defendant is a limited liability company registered under the laws of the Federal Republic of Nigeria and also involved in the business of marine transportation.
5. The 4th defendant is a company incorporated under the laws of the Federal Republic of Nigeria and also involved in the business of marine transportation.
6. At all times material to this suit, the 2nd defendant is the owner of the Vessel/Boat MV Julee, and the tugboats D.P. 24 and DP 41.
7. At all times material to this suit, the 3rd defendant is the owner of a boat MV/Lucy.
8. At all material to this suit, the 4th defendant is the owner of a boat MV Eloho.
9. The plaintiff avers that on or about 11/8/99 the following vessels”-
(a) M/V Julee – Belonging to 2nd defendant
(b) DP 24 (tugboat) – Belonging to 2nd defendant
(c) DP 41 (tugboat) Belonging to 2nd defendant
(d) M/V Lucy – Belonging to 3rd defendant
(e) M/V Eloho- Belonging to 4th defendant
Were moving in a convoy on a contract on behalf of Chevron Nigeria Ltd (1st defendant) on the Okpokiti River, Warri.
10. The plaintiff avers that the said vessels/boats moved on the River Negligently and caused the plaintiffs canoe to sink.
11. The canoe of the plaintiff aforesaid contained the following items”
(a) Two motor saws valued at N300,000.00
(b) 108 pieces of 2×4 plywood valued at N,120,000
(c) The sum of N7,000.00 cash.
12. The canoe of the plaintiff sunk by the defendants negligence is worth N73,000.00
13. The plaintiff avers that he reported the matter to the Police who after carrying out a thorough and proper investigation issued out an extract in which it indicted the defendants. The plaintiff will at the trial found on the said Police report.
14. The 2nd defendant admitted liability for negligence through a letter which it wrote to the plaintiff and also confirmed the ownership of the boats and the facts that the vessels/boat aforesaid were working on a contract for Chevron Nigeria Ltd. The plaintiff will at the trial found on the said letter.
15. The plaintiff avers that the said incident accident occurred as a result of the negligence of the defendants in that they moved their boats on the river without due regard and attention of other persons authorized to use the river.
16. The plaintiff avers that he uses the motor saws for business and realized the sum of N15,000.00 (fifteen thousand-naira) daily from each of the motor saw lost as a result of negligence action of the defendants.
17. The plaintiffs business has suffered and the plaintiff has been put to great loss and expense.
WHEREOF the plaintiff claims against the defendants jointly and severally as follows:-
1. Value of two motor saws N300,000.00
2. Value of 108 pieces of 2×4 plywood 20,000.00
3. Cash lost in the accident 7,000.00
4. Value of cane lost in the waves 73,000.00
5. Loss of business earnings from the Motor
saws @ B30,000.00 per day for 30 days 11,700.00
N12,200.00
18. The plaintiff also claims the sum of N30,000.00 on the two motor saws per day until judgment is entered and thereafter until final settlement of judgment debt.”
After the Statement of Claim was filed and served the 4th Respondent filed an application challenging the jurisdiction of the Delta State High Court to entertain the suit.
The application reads thus:
“SUIT NO. EHC/222/2000
BETWEEN:
MR. SUNDAY UGWOJOR PLAINTIFF/RESPONEENT
AND
1. CHEVRON NIGERIA LTD.
2. SEA TRUCKS NIGERIA LTD.) DEFENDANTS/RESPONDENTS
3. NIGER BENUE TRANSPORT CO. LTD.)
4. K.B. OMATSEYE NIG. LTD. DEFENDANT/APPLICANT
NOTICE OF PRELIMINARY OBJECTION
TAKE NOTICE that this Honourable Court will be moved on ……. the day of… 2000 at the hour of 9 O’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the 4th defendant/applicant on a preliminary objection praying the court for an order striking out in limine the suit.
AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances.
GROUNDS
(a) The cause of action and or claim of the plaintiff is outside the jurisdiction of the Court.
(b) The action of the plaintiff is incompetent being one based on liability in a claim for negligence.”
In a considered Ruling delivered on the 10th day of January the trial Judge upheld the objection and held as follows.
“I hold that this court lacks jurisdiction to entertain the plaintiffs claim in suit No EHC/222/2000 and the same is hereby struck out”.
He also declined to transfer the case to the appropriate Federal high Court. It is upon this ruling that the Appellant appealed to this Court by a Notice of Appeal dated 18th February 2002.
Three grounds of appeal were filed from which the appellant had formulated three issues for determination.
(1) Whether the learned trial Judge was right when it held that the State High Court had no jurisdiction to entertain the plaintiffs claim.
(2) Whether the learned trial Judge was right in entertaining the preliminary objection when same was in the nature of a demurrer which has been abolished under the relevant Rules of Court.
(3) Whether the learned trial Judge was right in relying on the deposition contained in the affidavit in support of the Preliminary Objection.”
The 1st Respondent adopts the issues as formulated by the appellant.
The 2nd Respondent on his own also formulated 3 issues for determination as follows:-
“ISSUE 1:
Whether the learned trial Judge erred in law, when he held that the High Court of Delta State sitting at Effurun, had no jurisdiction to entertain suit No.EHC/222/2000 as Plaintiff/Appellant’s claim is purely an admiralty matter.
ISSUE 2:
Whether the learned trial Judge erred in law when he entertained the Notice of Preliminary Objection filed by the 4th Defendant/Respondent with the supporting affidavit.
ISSUE 3:
Whether the Notice of Preliminary Objection by the 4th Defendant/Respondent challenging the jurisdiction of the Court offends against the Rule of Demurrer.”
The 3rd Respondent also formulated 3 issues as follows:-
“1. Whether the trial Judge erred in law when he held that he lacks jurisdiction to entertain suit No. FHC/222/2000, same being an Admiralty matter falling within the exercise jurisdiction of the Federal High Court, having regards to the provision of S.251(1)(g) of the 1999 of the Federal Republic of Nigeria and Ss. (1)(a),2 (1) and 3(a), (b) and (e) of the Admiralty Jurisdiction Decree No. 59 of 1991.
(2) Whether the learned trial Judge erred in law, when he struck out the said suit No. FHC/222/2000 in view of the provisions of the S.2(7)(5) and (6) of the federal High Court (Amendment) Decree No. 60 of the 1991 an existing law by virtue of S.315 for the 1999 Constitution, having correctly held that he lacks jurisdiction to entertain same.
(3) Whether the learned trial Judge erred in law when he heard the notice of preliminary objection and the supporting affidavit which was filed by the 4th Defendant/Respondent having regards to order 24 Rule 1 of the high Court (Civil Procedure) Rules 1988 laws of the Bendel State as applicable to delta state, Ss. 86, 87 and 89 of the Evidence Act Cap. 112 Law of the Federation of Nigeria 1990.”
The 4th Respondent also formulated 3 issues for determination as follows:-
ISSUE 1
Whether the rule against demurrer bars raising a Notice of Preliminary Objection challenging the Jurisdiction of the trial Court.
“ISSUE 2
Whether the trial Court relied on inadmissible evidence or extraneous matters outside Plaintiffs Statement of Claim in holding that Plaintiffs Claim is outside the jurisdiction of the High court of Delta State.
ISSUE 3
Whether the claim of the Plaintiff/Appellant as formulated in the Writ of Summons and Statement of Claim is an admiralty matter, and if it is, whether it is not caught by the effect of Section 215(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999; giving exclusive Jurisdiction to the Federal High Court.”
On argument of the issue as raised by each party, I intend to go by the issues as raised by the appellant as this will take care of issues raised by the Respondents.
ISSUE
Whether the learned trial Judge was right when he held that the Delta State High Court had no jurisdiction to entertain the plaintiffs claim.
In his argument, the appellant argued in his brief that it is trite law that it is the plaintiff’s claim that determine the jurisdiction of the court and not the interpretation placed on it by any parties, citing: IGBAFEN V. NIG. PORTS PLC (2000) 17 WRN 56 and other cases.
He also argued that it is not in dispute that in this case the cause of action took place at the Okpokiti River, but says Okpokiti River is an Inland Waterway. He submitted that there is nothing in the Statement of Claim to suggest that Okpokiti River is synonymous with the River Niger or River Benue or is an affluent of any of these rivers or it has been designated to be an International Water Way.
He concluded that Okpokiti River not having been designated as an International Waterway is clearly excluded from the jurisdiction conferred on the Federal High Court by S.251(1)(g) of the Constitution of the Federal Republic of Nigeria.
1st Respondent contention is that Okpokiti River is an Inland Water way and falls under the provision of S. 251 of the 1999 Constitution which gives exclusive rights to the Federal High Court and that the jurisdiction of the Federal High Court is not limited to Shipping and Navigation of the Niger River is inclusive of it together with admiralty matter.
The 2nd Respondent in the same vein argued that Okpokiti River is an Inland Water way and whether it is designated to be an International Water way or not according to the Supreme Court in the case of A.G. Federation v. A.G Abia State & 35 Ors. (2002) FWLR Pt. 1021 at 90.
The 3rd Respondent (for the avoidance of repetition) also argued in line with 1st, 2nd and 4th Respondents.
The 4th Respondent issue III can be accommodated in the Appellant’s issue 1. The bottom rock of his argument right from the lower court is that with the exclusive nature of the jurisdiction conferred on the Federal High Court by the Admiralty Jurisdiction Act No. 59 of 1991 and by the Constitution of the Federal Republic of Nigeria, there can be no whittling down of the exclusive jurisdiction of the Federal High Court in admiralty matters as the Appellant would seem to postulate.
Section 251(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria reads:
“251(1) Not withstanding 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 exclusive of any other court in civil causes and matters –
(g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal Ports, (including the Constitution and power of the Ports authorities for Federal Ports) and carriage by sea;”
The foregoing provisions gives the Federal High Court exclusive jurisdiction to hear and determine or entertain any civil causes or matters to the exclusion of any other court relating to any admiralty jurisdiction, all Federal Ports and carriage by sea.”
Section 1 of the Admiralty Jurisdiction Act 1991 provides as follows:
“1(1) The admiralty jurisdiction of the Federal High Court (in this Decree referred to as “the Court”) includes the following, that is-
(a) Jurisdiction to hear and determine any question relating to a proprietary interest in a ship or aircraft or any maritime claim specified in Section 2 of this Decree;
(2)-(1) A reference in this to a maritime claim is a reference to a proprietary maritime claim or a general maritime claim.
(2) A reference in this Decree to a proprietary maritime claim is a reference to –
(a) xxxx
(b) xxxx
(c) xxxx
(d) xxxx
(3) A reference in this decree to a general maritime claim a reference to –
(a) a claim for damage done by a ship whether by collision or otherwise; (Underlining mine)
(b) a claim for damage received by a ship;
(c) xxxx
(d) xxxx
(e) a claim for loss of or damage to goods carried by a ship;
3. Subject to the provisions of this decree; the admiralty jurisdiction of the Court shall apply to-
(a) all ships, irrespective of the places of residence or domicile of their owners; and
(b) all maritime claims, wherever arising.
Xxxx
19. Notwithstanding the provisions of any other enactment or law, the Court shall, as from the commencement of this Decree, exercise exclusive Jurisdiction in admiralty causes or matters, whether civil or criminal.
xxxx
26 – (1) In this Decree, unless the con otherwise requires-
xxxx
“Inland waters” means waters within Nigeria other than waters in the sea;
xxxx
“Ship” means a vessel of any kind used or constructed for use in navigation by water, however it is propelled or moved and includes –
(a) a barge, lighter or other floating vessel, including a drilling rig;
(b) a hovercraft;
(c) an off-shore industry mobile unit; and
(d) xxxx”.
It is not in dispute that the cause of action arose on the Okpokiti River Warri on 11th day of June, 1999 after the commencement of the constitution of the Federal Republic of Nigeria which gave exclusive jurisdiction to the Federal high Court power to entertain civil matters arising from any admiralty jurisdiction pursuant to S. 251(1)(g) of the 1999 Constitution and Section 7(1) (a) of the Federal High Court Act which confers on the Federal High Court Admiralty jurisdiction and which jurisdiction is provided for and in the Admiralty Act 1991 quoted above:
The appellant’s contention that Okpokiti River had not been declared to be an inland waterway or international waterway can not hold water.
Section 251(1)(g) of the Constitution of the Federal Republic of Nigeria went further to say “Or such other inland waterway as may be designated by any enactment to be an international waterway.
Decree No. 59 of 1999 is an existing Law by the National Assembly and since it has not been repealed or amended or declared inconsistent with Section 251 (1)(g) of the 1999 Constitution by any Court, it remains applicable to causes or matters.
In AG. Federation v. AG .. Abia State & 36 Ors. (2202) FWLR Pt. 102 1 at 90 the Supreme Court held
“that any other waterway of Nigeria i.e. Inland Waterway) whether it be declared an international Waterway or not is caught by the provisions to be subject to the jurisdiction of the Federal High Court. It does not necessarily imply that undesignated Inland waterways to be International Waterway are thereby excluded from falling within the jurisdiction of the federal high Court.
From the legislation quoted above and the cases considered. I hold that the Delta State High Court has no jurisdiction to entertain the claims of the appellant and the proper order to make is to strike it out.
AKINBOLA V. PLISON FISKO NIG. LTD. (1988) 4 NWLR (PT 88) 355
AWU LODGE HOTELS LTD. V. MERCANTILE BANK NIG. LTD. (1993) 3 NWLR PT. 284 721
I.K. MARTINS NIG. LTD. V. UNIVERSITY PRESS NIG. LTD. 1992 1NWLR (PT. 271) 322.
Issue No 1 of the Appellant is resolved in favour of the respondents’
ISSUE NO.2
Whether the learned trial Judge was right in entertaining the preliminary objection when same was in the nature of demurrer which has been abolished within the relevant rules of Court.
The appellant cited order 24 Rule 1 of the High Court/Civil Procedure Rule) Bendel State applicable to Delta State which says:
“No demurrer shall be allowed”.
His argument is that the respondent should have been allowed to raise it in their Statement of Defence and the points so raised to be set aside for hearing and disposed of accordingly.
He relied on
LASISI FADARE V. AG. OYO STATE (1982) 1 FNR 98
2 MOBIL OIL PLC V. A L 36 INC. (2000) FWLR Pt. 10; 1632 2000 9 WRN 29.
The determination of this issue No. 2 will resolve issue No. 2 of the 1st Respondent issue No. 3 of the 3rd respondent and issue No. 1 of the 4th Respondent.
The 1st respondent argued that where the jurisdiction is raised as a preliminary point of law, it should be taken first and can be raised in limine citing FEDERATION v. A.G. OYO STATE (1982) 4 SC 1 SHELL PET. DEV. v. NWEKWA (2001) 10 NWLR PT. 72 AT 64 CANLAN (NIG.) LTD V. UNIJOS 1994 1 NWLR PT. 523 631.
The 2nd respondent submitted that a preliminary objection based on jurisdiction is to be heard first before the case can commence to trial.
The 3rd and 4th respondents also argued in the same vein and therefore it will not be necessary to further repeat their argument.
Jurisdiction is very vital in the realm of administration of justice. Any step taken without jurisdiction is null and void. One should not attempt to put something to nothing.
C.G.G. NIG. LTD. 2006 3 NWLR Pt. 96 282
In NDIC v. CBN (2002) FWLR PT. 99 PAGE 1021 AT 1025 the Supreme Court held thus
“It is very desirable that the Preliminary Objection be raised early on issue of jurisdiction but once it is apparent to any party that the court may lack jurisdiction it can be raised even viva voce.
CROWN STAR CO. LTD. V. THE VESSEL/MV VAH 2000 1 NWLR PT. 639 37
MADUKOLU V. NKEDILIM (1962) 2 SCNLR 341.
The Statement of Claim to which the learned Judge made use of and served on the respondents have placed the facts upon which the claim is made squarely at the feet of Admiralty and it behoves on the respondent to warn the trial Judge of embarking on a fruitless voyage.
See Akpata JSC in OKEYA V. NC & FC 1991 6 NWLR Pt. 199,201
“The objection to the jurisdiction of a court is an issue touching on the competence of the court to entertain the matter placed before it. When it is raised either in the statement of defence or by way of demurrer pursuant to Order 29, as in this case, the issue should be resolved on the facts pleaded by the plaintiffs without adducing oral evidence.
An issue touching on jurisdiction is invariably a matter of law. A Judge should not continue to exercise judicial powers of adjudication when his competence to do so in respect of the matter before him is challenged. When there is such a challenge to his competence, the Judge’s jurisdiction at that stage is restricted to the exercise of ascertaining whether he has jurisdiction to entertain the cause or matter. It is when he is satisfied that he has jurisdiction that he may proceed to hear evidence and to adjudicate on the matter.
In the case of Attorney-General Lagos State v. Dosunmu (1989) 3 NWLR (part 111) 552 at page 566 Oputa. JSC, explained that when a court’s jurisdiction is challenged in a statement of defence “it is neater and for better to settle that issue one way or another before proceeding to hearing of the case on the merits. The reason is that jurisdiction is a radical and crucial question of competence. Either the court has jurisdiction to hear the case or it has no”. The then learned Justice of this Court made the above explanation while frowning at the stance of the trial court in that case in saying in his ruling that “evidence shall be led on the matters pleaded by the parties before trial of any question of law which arise on the pleadings as to whether or not this Court has jurisdiction to adjudicate and determine the plaintiffs case:.
I will like to add that when the jurisdiction of the Court is challenged by way of demurrer, it is not only “neater and far better to settle that issue one way or another before proceeding to hearing of the case on merit”, it is imperative that the issue be settled on the allegation contained in the statement of claim without taking oral evidence. It is assumed at that stage that the allegations of the plaintiff were admitted or established by the defendant. The legal position as to the competence or otherwise of the trial court to entertain the case is arrived at solely on the facts disclosed in the’ statement of claim.”
NKUMA V. ODILI (2006) 6 NWLR Pt. 977, 587.
The Supreme Court held that it is the plaintiff’s claim that determines jurisdiction of a trial court. In other words jurisdiction of a trial court is determined by the subject matter and claim before the Court. Thus in considering a suit, it is the plaintiffs claim as endorsed on the writ of summons or Statement of Claim that the Court considers and not the defence.
ADOYEMI V. OPEYORI (1976) 9 -10 SC 31
I hold that since there is no jurisdiction in the State High Court to try the issue at hand, the objection is well taken and issue NO.2 is also resolved in favour of the Respondents.
ISSUE NO.3
Whether the learned trial Judge was right in relying on the disposition contained in the affidavit in support of the preliminary objection. In support of this argument he cited authorities.
On the other hand the respondents argued otherwise and said there was nothing offensive about the affidavit.
Let me quote the affidavit, in support of the motion paper. It reads.
“1. I am a litigation clerk with the law firm of R.E. AKPORIDO & CO. solicitors to the 4th defendant/applicant. By virtue of the foregoing, I am familiar with the facts of this case.
2. I have the consent and authority of my employers and that of the 4th defendant to depose to these facts.
3. That I have read through the statement of claim of the plaintiff.
4. That the claim of the plaintiff is predicted on an alleged negligent conduct of the 4th defendant arising from the activities of vessels on the Okpokiti River, Warri, a tributary of the River Niger.
5. That I am informed by R.E. Akporido of the firm of AKORIDO & CO. and I verily believe her that the action of the plaintiff is incompetent
6. That it is in the interest of justice to strike out the suit.”
I also quote sections 86 and 87 of the Evidence Act which reads:
“S 86 Every affidavit need in the court shall contain only a statement of facts and circumstance to which the nature deepen either of his own personal knowledge or from information which he believe to be true.
S 87 An affidavit shall not contain extraneous matter by way of objection or proper on legal argument.”
The argument of the learned counsel for the appellant is misconceived as the contents of the affidavit does not offend against any part of the Evidence Act.
Even if he succeeded in striking them out in the lower court, the court would still proceed to hear the applicant based on jurisdiction which the learned trial Judge pronounced upon after looking into the Statement of Claim.
The issue is also resolved against the appellant.
The appellant urged this Court to allow the appeal, set the order/ruling of the High Court of delta State made on 10/12/2002 and send back for retrial before another judge of the High Court of Delta state.
Since all the issues were resolved against the appellant the proper order to make is that of dismissal.
In the final analysis, this appeal lacks merit and is hereby dismissed. The ruling of the lower court is affirmed, There shall be a cost of N5,000.00 each to the respondents against the appellant.
Other Citations: (2006)LCN/2008(CA)
