The Shell Petroleum Development Company of Nigeria Limited V. Sirpi-alusteel Construction Limited (2007)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A.
This is an appeal against the ruling of Hon. Justice Obie Daniel Kalio of High Court of Rivers State, Port Harcourt dated 6/5/2006 in suit No. PHC/1289/2004, holding that he had no jurisdiction to hear and determine the plaintiff’s (now appellant) suit.
The appellant instituted an action in the Rivers State High Court sitting at Port Harcourt claiming against the respondent, damages for breach of contract awarded the respondent on 20/11/2001 to rehabilitate four crude oil storage tanks at Ughelli in Delta State and an injunction to restrain the respondent from interfering in any manner whatsoever with the completion of the contract by another person.
It is the appellant’s case that the respondent having been aware of the institution of the suit, they proceeded to the Federal High Court in Benin City, Edo State and filed cross-action on 7/8/2004 with an ex parte motion for an order of injunction restraining the appellant from re-awarding the contract for the rehabilitation of the four storage tanks to any other person which the said court granted on 4/10/2004.
On 15/4/2005, the respondent filed a motion to dismiss the suit or in the alternative to stay further proceedings until the conclusion of his cross-action in the Edo State High Court, Edo where it was obtained. But after listening to arguments on both sides the court struck out the suit on 6/5/2005 declining jurisdiction. Dissatisfied with the ruling, the applicant appealed to this court on two grounds.
One issue identified for determination of the court by the appellant in their brief of argument filed on 21/8/2006 reads thus:-
“Whether the court below was right in holding that it had no jurisdiction to determine the plaintiff’s suit”
In the respondent’s brief of argument filed on 28/9/2006, the only issue that arises for determination is similarly stated as follows:
“Was the court below right in holding that it lacks jurisdiction or not competent to determine the plaintiff/appellant’s suit?”
At the hearing of the appeal, respected learned counsel adopted their briefs of argument. Learned counsel for the appellant, Mr. A. N. Anyamene, SAN, submitted that where jurisdiction of court is challenged, all the court is required to consider is the plaintiff’s writ of summons and the statement of claim. In the instant case, he contended, the relief sought by the appellant is damages for breach of contract. That the statement of claim lucidly gave the cause of action, not as any act relating to or arising from or ancillary to mining operation, but as the defendant’s inability to rehabilitate storage tanks for crude oil already extracted from the bowels of the earth. It is contended that the tanks are receptacles from which crude oil is delivered to buyers. To rehabilitate a tank, he contended, is to make it serviceable for storing crude oil.
The learned senior counsel further submitted that S. 251(1)(n) of the 1999 Constitution and section 7(1) and 7(3) of the Federal High Court Act give exclusive jurisdiction to the Federal High Court in matter pertaining to mines and minerals including oil fields, oil mining, geological surveys and natural gas. That section 7(3) of the Federal High Court Act stipulates that section 7(1)(n) of the Constitution shall be construed to include jurisdiction to hear and determine all issues relating to, arising from or ancillary to mines and minerals. Learned senior counsel placed reliance on the cases of the Shell Petroleum Development Company of Nigeria Limited v. Abel Isaiah & 2 Ors. (2001) 11 NWLR (Pt. 723) 168; Onuorah v. Kaduna Refining and Petro-Chemical Co. Ltd. (2005) 6 NWLR (Pt. 921) 393 and ruling of the Federal High Court, Port Harcourt dated 20/12/2004 in suit No. FHC/PH/CS./434/2004: Suffolk Petroleum Services United v. The Shell Petroleum Development Company of Nigeria Limited.
Finally, learned senior counsel submitted that the action instituted by the appellant is outside the spirit and intendment of the statutes conferring exclusive jurisdiction on the Federal High Court and the respondent cannot be heard to say that any action of the appellant arising from, related to or connected with mines and minerals caused him any “damnum”. He urged the court to set aside the ruling of the learned trial Judge in the court below declining to hear the suit.
On his own part, learned counsel for the respondent, Yekinni Kolawole, Esq. arguing the sole issue as formulated submitted that the statement of claim of the appellant, paragraph 1 stated that the appellant awarded contract for the rehabilitation of four crude oil storage tanks at the Ughelli Quality Control Centre on certain terms and conditions thereto. It is argued that since the tanks which were to be refurbished were to store crude oil from which the oil will be stored and saved for durability before it will be distributed to customers who deal in oil refineries, then it is the Federal High Court only that has absolute power to adjudicate to the exclusion of State High Court. Reference was made to S. 7(1)(n) and 7(3) of the Federal High Court Act. Relying on the case of Shell Petroleum Development Company (Nigeria) Ltd. v. Isaiah (supra), learned counsel submitted that the rehabilitation of the appellant’s crude oil storage tanks is related to, connected with, and arising from or ancillary to mines and minerals.
It is further submitted that the cases of Felix Onuorah Kaduna Refining and Petro-Chemical Company Limited (supra) and Dr. Okoroma v. Christian Uba & Ors. (1999) 1 NWLR (Pt. 587) p. 359 at 387 section H referred to and relied upon by the appellant are not relevant, particularly that since Onuarah’s case was purely based on a contract to purchase empty tins from the respondent at an agreed amount and payment of the agreed sum was made. Reliance was further placed on the cases of Nkuma v. Anene (2002) 3 WRN 48 and Shodeinde v. T.R.TA.M.I. (2001) 44 WRN p. 25 and Baykam Ventures Ltd. v. Oceanic Bank (2005) All FWLR (Pt. 286) 648 at p. 659.
Learned counsel to the respondent, finally urged us to affirm the ruling of the learned trial Judge declining jurisdiction to entertain the suit.
Only a single issue arises in this appeal for determination, namely, whether the court below was right in holding that it had no jurisdiction to determine the plaintiff/appellant’s suit. Parties and indeed the learned trial Judge all agreed that only the plaintiff’s claim should be considered by the court to determine whether or not it has jurisdiction over a suit. In other words, the jurisdiction of a court to adjudicate on a matter is predicated upon the facts placed before it and more importantly by the phraseology of the plaintiff’s claim. See A.-G., Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 618) 187; Adeyemi v. Opeyori (1976) 9-10 SC 31; Abacha v. Fawehinmi (2000) 6 NWLR (Pt.660) 228 and Western Steel Works Ltd. v. Iron and Steel Workers Union (1987) 1 NWLR (Pt.49) 284.
Appellant claims from the respondent the sum of $24 million for breach of contract for full rehabilitation of 4 Nos. crude storage tanks at the Ughelli Quality Control Centre in Delta State and injunction restraining the respondent from interfering in any manner whatsoever with the completion of the contract by other person. The statement of claim, to my mind, lucidly gave the cause of action. It is not as an act relating to, or arising from or ancillary to mining operation, but as the respondent’s inability to rehabilitate storage tanks for crude oil already extracted from the bowels of the earth. My understanding is that these tanks are just the receptacles from which crude oil is delivered to prospective buyers.
The obvious task before the learned trial Judge was to decide what constitutes mining and minerals and oil fields and matter relating or ancillary thereto. He was called upon to define the relevant laws that deal with the jurisdiction of the Federal High Court. The law is now trite that once it is expressly shown that the power to entertain a particular matter is only within the cognizance of the particular court, it is only that court to the exclusion of others that can hear and determine it. The Federal High Court, like the High Court of a State, is a creature of the Constitution and its jurisdiction is defined by the relevant laws. The Court below was referred to S. 251 (1)(n) of the 1999 Constitution and section 7(1) and 7(3) of the Federal High Court Act. Section 251(1)(n) of the Constitution provides that the Federal High Court shall have and exercise exclusive jurisdiction in “mines and minerals (including oil fields, oil mining, geological surveys and natural gas)”. Section 7(1)(n) of the Federal High Court Act is similarly worded as S. 251(1)(n) of the Constitution while S. 7(3) stipulates that S. 7(1)(n) shall be construed to include jurisdiction to hear and determine all issues relating to, arising from or ancillary to mines and minerals. What therefore constitutes mining and minerals and oil fields and matters relating thereto. The court below was referred to the case of The Shell Petroleum Development Company (Nigeria) Limited (supra) for guide. The court relied on the dictum of Ogwuegbu, JSC in his contributory judgment. But for the interpretation of section 230(1)(a) of Decree No. 107 1993 which is pari materia with S. 251(1)(n) of the 1999 Constitution, the material facts of the case are not the same with the instant case. His Lordship’s opinion is not different from the lead judgment of Uthman Mohammed, JSC. He stated at page 179 para. D of the report as follows:-
“I think it cannot be disputed if I say that installation of pipelines, producing, treating and transmitting of crude oil to the storage tanks is part of Petroleum Mining Operations. Therefore if an incident happens during the transmission of petroleum to the storage tanks it can be explained as having arisen from or connected with or pertaining to mines and minerals including oil fields and oil mining. I therefore agree that the subject matter of the respondent’s claim falls within the exclusive jurisdiction of the Federal High Court as is provided under section 230(1)(a) of Constitution (Suspension and Modification) Decree No. 107.”
This court has held similar opinions concerning claims pertaining to oil spillage in Barry and 2 Ors. v. Obi Eric and 3 Ors. (1998) 8 NWLR (Pt. 562) 404 at 416 and The Shell Petroleum Development Company of Nigeria Limited v. Otelemaba Maxon and Ors. (2001) 9 NWLR (Pt. 719) 541.
Learned counsel for the respondent argued that rehabilitation of the appellant’s crude oil storage tanks is related and in connection with, arising from or ancillary to mines and minerals; since minerals according to literary meaning connotes crude oil and gas. He further submitted that transmission of crude oil cannot be complete unless its destination is at the end of the chain which begins with exploration and that storage tanks and their rehabilitation form an integral part of a crude oil mining operation. Relying on Isaiah’s case (supra), learned counsel for the respondent hinged his submission on the meaning given by the court of the verbs “connected” and “pertain”. The court relying on the definition in Black’s Law Dictionary of the two verbs agreed that the verb “connected” means “joined”, “united by function”, by an intervening substance or medium, by dependence or relation or by order in a series”. Whereas the verb “pertain” is defined in Longman’s Dictionary to mean to belong or have connection with (something).
I made further research on the meaning of these two words. The English word “connect” derives from Latin words “connectere-connexum”, meaning “to tie” or “fasten together”, to establish a relationship between”, “to associate”. The word “pertain” derives from the Latin worlds “per” and “tenere”. Hence “pertenere-pertinui” which means “to belong, to relate with or “to belong as a part of accessory.”
Once this relationship of being “connected with” or “pertaining to” is established on the facts, the matter falls within the embrace of the constitution and the Federal High Court shall have exclusive jurisdiction in the matter. See Barry v. Eric (supra). In the instant case, the subject matter of litigation in the con of the words defined above shall be something which “belongs to” or “related to”, something which belongs as a part or accessory or has reference to mines and minerals including oil fields, oil mining, geological. In order to be pertaining to section 251 (1)(n) of the 1999 Constitution.
It is evident from the exposition made by Uthman Mohammed, JSC in Isaiah’s case (supra) and from those painstaking definitions I have made above, the contract entered by the appellant with the respondent did not involve its doing anything to or with crude oil stored in tanks. If anything the storage tanks must be empty of crude oil before the respondent can execute the contract. In the case of Felix Onuorah v. Kaduna Refining and Petro-Chemical Co. Ltd. (supra), the suit originated in High Court of Kaduna State for the specific performance of a contract to supply specific number of 18-litre empty tins for carrying petroleum products. An objection to jurisdiction by the company on the ground that it was suable only in the Federal High Court for being a Federal Agency was rejected all the way to the Supreme Court on the ground that the suit related to a breach of contract simpliciter which is actionable in the State High Court.
It must always be borne in mind that the fact that a party to a suit is a Federal Government Agency does not place it under the exclusive jurisdiction of the Federal High Court. So that the fact that a party is an oil mining company does not mean that actions in respect of commercial contracts in which it is a party are only suable in the Federal High Court. See Dr. Okoroma v. Christian Uba and Ors. The Federal High Court does not have exclusive jurisdiction in all matters involving the Federal Government or any of its agencies. In the instant case, the action of the trial court striking out the appellant’s case for want of jurisdiction is not tenable as there is no provision in the 1999 Constitution or the Federal High Court Act conferring exclusive jurisdiction on the Federal High Court to entertain action of this nature, on simple breach of contract. From all the above reasons, the appeal therefore succeeds. I must set aside the ruling of the trial court declining to hear the appellant’s suit. Accordingly, the suit is remitted to the Chief Judge for assignment to another Judge for expeditious trial. No order is made as to costs.
Other Citations: (2007)LCN/2284(CA)
