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The Shell Petroleum Development Company Of Nigeria Limited V. Chief Joel Anaro & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

our separate actions were instituted by the Plaintiffs herein seeking damages from Shell Development Company of Nigeria Limited for oil spillage. The said suits Nos. W/16/83, W/17/83, W/72/83 and W/80/83 were instituted for and on behalf of Obotobo, Sokebolo, Ofogbene (Ezon Burutu) and Ekeremor Zion (Ezon Asa) Communities respectively. The suits were consolidated by Order of the then Bendel State High Court on 21/3/85. At the end of the trial in which parties called witnesses, the trial court in a judgment delivered on 27th May, 1997 in favour of the Plaintiffs awarded damages as follows:-

1. Suit No. W/16/83 – N4,095,085.00
2. Suit No. W/17/83 – N13,278,306.00
3. Suit No. W/72/83 – N7,392,589.00
4. Suit No. W/80/83 – N5,522,701.00

The defendant was dissatisfied and appealed against the judgment to the Court of Appeal, Benin City in CA/8/255/97. The Court of Appeal delivered its judgment on 22nd May, 2000 dismissing the appeal. The appellant was still not satisfied and appealed to the Supreme Court. In the appellant’s brief of argument, four issues were submitted for determination. The issues are as follows:-

1. Whether the State High Court had jurisdiction to try the consolidated suits herein in the light of Decree No 59, Admiralty Jurisdiction Decree 1991, Decree No. 60 Federal High Court (Amended) Decree 1991, Decree No.16 Federal High Court (Amended) Decree1992 and/or Decree No.107 Constitution (Suspension and Modification) Decree 1993.
2. Whether the courts below erred in law in holding that the Minerals Act did not have impact on the plaintiffs claims (Ground 2 particular 5).
3. Whether the courts below were right in holding that the doctrine of Res Ipsa Loquitur was available to the Plaintiffs herein.
4. Whether the courts below were right in basing the damages awarded on (PW1, the Valuers Reports) Exhibits 1-4 when parts of his evidence had been adjudged to be hearsay and therefore inadmissible and worthless.

Learned counsel for the respondents adopted issues 1 and 3 as framed by the appellant’s counsel and contended that issue No.2 in the appellant’s brief is incompetent and should be discountenanced on the ground that it did not arise from any grounds in the Notice of Appeal. He said that issue 4 has to be recasted to reflect the complaint in Ground 6. He therefore formulated three issues for determination.

They are:-

1. Whether the State High Court had jurisdiction to try the consolidated suits herein in the light of Decree No.59 Admiralty Jurisdiction Decree 1991; Decree No.60 Federal High Court (Amendment) Decree 1991; Decree No. 16 Federal High Court (Amendment) Decree 1992; and/or Decree No. 107 Constitution Suspension and Modification Decree 1993 (Ground 1)
2. Whether the court below was right in upholding the decision of the trial court that the doctrine of Res Ipsa Loquitur was available to the plaintiffs/Respondents.
3. Whether the court below was right in upholding the damages awarded by the trial court in the set of four consolidated suits when, in considering the awards, the evidence of PW1, the Valuer, was not expunged as hearsay evidence.

Learned counsel reproduced certain sections of Decree Nos.59 and 60 of 1991, 16 of 1992 and 107 of 1993 and submitted that the combined effect of these Decrees was to deprive the State High Court the jurisdiction to determine admiralty matters concurrently with the Federal High Court, as the suits were not saved by Section 7(6) of Decree No.60 of 1991. He argued that it would be doing violence to the words of the proviso contained in Section 7(6) of Decree No. 60 to reach any other conclusion other than the abatement of the suit and transfer to the Federal High Court. He therefore urged that the appeal should be allowed on this ground alone.

On issue 2, learned counsel argued that title to creeks or other water courses is vested in the State by virtue of Section 3(1) of the Minerals Act Cap 220, Laws of the Federation of Nigeria which was considered by the West Africa Court of Appeal in Bassey v Ekanem XIV WACA 364 at 365 per Sir John Verity CJ which was followed by the Supreme Court in Evoyoma and Ors v. Daregba and Ors (1968) 1 All NLR (Old Series) 192 at 195 and Brigbo and Ors v. Pessu and Ors (1974) 1 All NLR (Old Series) 2 at 37. He said Bairamian JSC took a different view of the effect of Section 3(1) of the Minerals Act in Lawani v. Lemonu (1965) 1 All NLR (Old Series) 23 and adopted in Uyovwukerhi v. Afonughe (1976) 1 NSCC 249. He said that none of the Supreme Court cases which were decided after the decision in Lawani v Lemonu (supra) were cited in the Uyovwukerhi’s case and so invited this court to prefer and allow the line of decisions which followed Bassey v. Ekanem (supra). He finally submitted that the claim for damages arising from the rights of the Plaintiffs to “fresh water creek” and/or based on loss of fisheries ought not to have been entertained as the plaintiffs have not established their legal right thereto.

On the application of the doctrine of Res Ipsa Loquitur, learned counsel referred to the pleadings and evidence and contended that if there is evidence of how the occurrence took place, an appeal to Res Ipsa Loquitur is misconceived and inappropriate and he submitted that the doctrine was misapplied in this case.

Lastly, dealing with the damages awarded which were based on the valuers Reports, parts of which were found to be hearsay evidence and therefore inadmissible, learned counsel submitted that they are manifestly baseless and excessive and should not have been used to complete the damages. In conclusion he urged this court to allow the appeal.

Regarding issue 1, learned counsel for the respondents referred to the Writs of Summons in the consolidated suits which were filed at the High Court of Justice, Warri, several years before the promulgation of the Decrees alluded to by the appellant and argued that when the suits were consolidated in 1983, the Delta State High Court enjoyed concurrent jurisdiction with the Federal High Court by virtue of Section 236 of the 1979 Constitution (then in operation) and submitted that Decrees No. 59 Admiralty Jurisdiction Decree 1991, the Federal High Court Amendment Decrees No. 66 of 1991 and 16 of 1992 and the Constitution (Suspension and Modification) Decree No.107 of 1993 were promulgated in response to the judgment of this Court in Western Steel Works v Iron and Steel Workers Union (1987) 1 NWLR (Pt.49) 288 at 288 per Aniagolu JSC where he clearly stated that Section 236 conferred unlimited jurisdiction on the State High Court in Admiralty Matters thereby making that jurisdiction to be concurrent with that of the Federal High Court. He submitted that when the Admiralty Jurisdiction Act 1962 was repealed, anything done which had taken place under the Act was saved and moreover, it is a cardinal principle of law that a statute cannot apply retrospectively unless it is made to do so by clear and express terms or it is in respect of purely procedural matters.

On whether the doctrine of Res Ipsa Loquitur was available to the plaintiffs/respondents, learned counsel maintained that the pleadings and evidence adduced showed that the respondents did not sufficiently know how the spillages occurred nor did they give explanation as to how they occurred and it is because of the uncertainty about how the spillages occurred that made them to rely on the doctrine. Learned counsel also submitted that aside the maxim of Res Ipsa Loquitur, the respondents also canvassed the rule in Rylands v. Fletcher (1868) 3 HL in saying that there would not have been spillages if there was no negligence in the maintenance of the pipes by the appellant.

On the quantum of damages awarded, learned counsel for the respondents contended that the valuation reports confirmed the pleadings and evidence adduced on which the trial court based its finding and which were affirmed by the court below. It was further submitted that the valuer’s report was expert evidence and is admissible under Section 57 of the Evidence Act.

The pivot of the appellant’s appeal that the consolidated actions commenced by the respondents as plaintiffs in 1983 abated was hinged on Sections 7(6) and 8(1) of the Federal High Court Act Decree No. 60, 1991 which state: –

“7(6) Any decision made after the commencement of this section by any court of law in any purported exercise of any power under the Constitution of the Federal Republic of Nigeria 1999 or of any Federal or State law shall, as from the date of making of the decision be null and void if it…