In The Court of Appeal of Nigeria
(2018)LCN/11124(CA)
On Thursday, the 22nd day of March, 2018
CA/C/244/2017
RATIO
FINES IN LAW
It is very well known in law that a fine is a criminal sanction per STEPHEN JONAH ADAH, J.C.A
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
NATIONAL OIL SPILL DETECTION AND RESPONSE AGENCY (NOSDRA) Appellant(s)
AND
MOBIL PRODUCING NIGERIA UNLIMITED (EXXONMOBIL) Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment)
The Appellant as Plaintiff at the trial Court instituted this action against the Respondent as Defendant claiming the sum of N10,000,000.00 (Ten Million Naira) as penalty fees for the alleged contravention of the National Oil Spill Detection and Response Agency (NOSDRA) Act and its regulations.
The Respondent upon receipt of the originating processes entered a conditional appearance and filed its statement of defence as well as accompanying Court processes in opposition to the plaintiff’s originating process.
In a considered Ruling delivered by I. L. Ojukwu, J, of the Uyo Division of the Federal High Court in Suit No.FHC/L/CS/1623/2016 delivered on the 16th of May, 2017, struck out the case for want of jurisdiction. This appeal is predicated on the said Ruling.
SUMMARY OF FACTS:
A summary of the facts as presented by the Respondent at the trial Court was that upon observing the small amount of oil and water released from its facilities, it immediately shut down the affected tanks operations and activated its emergency response procedure in order to contain the spread of the spilled oil and water which were immediately contained and cleaned up by the Respondent. The Respondent pleaded documents exhibiting the facts of its emergency response procedure and the joint investigation conducted by a team comprising of representatives of the Respondent, the Department of Petroleum Resources (DPR), other relevant Regulatory authorities, host community and Local Government Area representatives.
The Respondent also averred that the clean up, remediation and assessment exercise of the impacted site was indeed in line with the stipulated standards of the NOSDRA Act, 2006 and its Regulations. The Respondent pleaded the Appellant’s Report rating the clean-up exercise as satisfactory. Consequent upon the above, the Respondent stated that there was no basis or justification for the penalty levied against the Respondent as the clean-up exercise done on its Qua Iboe facility was in line with the NOSDRA Act and Regulations.
The Appellant raised three Grounds of Appeal from where two issues were distilled for determination as follows:
(i) “Whether having regard to Section 6(2) and
(3) of the Plaintiff/Appellant’s Establishment Act the Learned Judge was right in holding that the imposition of penalties on the Defendant/Respondent by the Plaintiff/ Appellant was ultra vires its powers.
(ii) Whether the Learned Judge made a correct evaluation and wholesome consideration of the evidence presented by the Plaintiff/Appellant, as well as the declaratory reliefs and orders it sought before striking out the suit.”
The Respondent adopted the above issues as formulated by the Appellant.
In his brief of argument, learned counsel for the Appellant, Ateboh Charles Esq contended that the Appellant’s action in levying fines on the Respondent was within the scope of powers granted the Appellant under its enabling Act. Counsel submitted that the deducible intention of the lawmaker from the provisions of Section 6(2) and (3) of the Appellant’s Act was to imbue the Appellant with the necessary power to compel compliance with the Statutory Regulatory provisions in order to deter environmentally inimical practices in the Nigerian Oil and Gas Sector.
He argued that the Appellant’s letter dated the 22nd of December, 2014 wherein the Respondent was notified of its violations of the provisions of the Appellant’s Act and Regulations and the consequential fines were merely intended to communicate to the Respondent a notice of its violations and fines attached are not conclusive of the imposition of penalties. Counsel posited that Appellant merely applied the provisions of its Act, which was promulgated by the legislature on the Respondent and its action does not amount to a usurpation of the judicial powers of Courts. That it was the Appellant who brought this action against the Respondent at the trial Court for determination. The declarations sought by the Appellant, he argued by their very nature, were invitation to the Court to declare and interpret the provisions of the Appellant’s Act. He cited MOSES EDIRU V. FEDERAL ROAD SAFETY CORPS (2016) 4 NWLR (Pt. 1502) at 209-410; ONONYE V. CHUKWUMA (2005) 17 NWLR (Pt. 953) 90 at 117; AKINTOKUN V. LEGAL PRACTITIONER’S DISCIPLINARY COMMITTEE LPDC 2014 13 NWLR (Pt. 1423) Pg. 74-75.
Reacting to the foregoing, learned counsel for the Respondent, Ituah Imhanze, Esq cited Sections 1(1) and (3), 6(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria as amended and posited, in summary, that only a Court of competent jurisdiction can adjudicate on any allegation before the imposition of a fine. As a sentence can only be pronounced after a conviction for an offence has been made by a Court of competent jurisdiction. He argued that any act otherwise would amount to a denial of Fair Hearing as guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria.
The Appellant being an Administrative Agency, he contended, it has no inherent power in itself or from provisions of its enabling Act, to hold a person guilty of an offence and furthermore, impose fines without proper adjudication by a Court of law. He cited UGBA V. SUSWAM (2014) 14 NWLR (Pt. 1427) 264 at 345. A.S.H.A V. TIJJANI (2012) 8 NWLR (Pt.1303) Pg.511; EGBUNIWE V. F.G.N (2010) 2 NWLR (Pt.1178) 348 at 368 among others.
The Appellant’s argument in this appeal revolve essentially around the fact that the Appellant’s action in levying fine and penalty on the Respondent was done consequent upon its powers in Section 6(2) and (3) of the Act Establishing the NOSDRA. It made heavy weather on provisions of its enabling Act prescribing for penalties and fines for non-compliance. The Respondent’s grouse on the other hand, is whether the Appellant is imbued with the powers to impose fines and penalties in the light of the fact that the powers to make such impositions belong to the judicial arm of the Government and the Courts specifically.
This Court in A.S.H.A. V. TIJJANI (supra) held:
“By the provisions of Sections 1(1) and ( 3 ) of the 1999 Constitution of the Federal Republic of Nigeria, the Constitution is supreme and its provisions are binding on all authorities and persons in Nigeria. Therefore, if any law is inconsistent with any provisions of the Constitution, the Constitution shall prevail and the other law shall to the extent of that inconsistency be void.”
The same Constitution in Section 6(6) vests Judicial Powers on the Courts. A sentence can safely be pronounced after a conviction for an offence has been made by a Court of competent jurisdiction.
The Apex Court in MFA v. INONGHA (2014) 4 NWLR (Pt.1397) 343 at 375 held as follows:
“Fair hearing within the meaning of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties. It requires the observance of the twin pillars of the rules of natural justice, namely: audi alteram partem and nemo judex in causa sua”
Nemo judex in causa sua simply means that no Judge should preside over a matter in which he has personal interest or involvement.
Paragraphs 20 and 21 of the Appellant’s statement of claim read:
Paragraph 20:
“The Plaintiff wrote a sanction notification letter dated the 22nd day of December, 2014 wherein the Defendant was asked to pay a cumulative statutory fine of N10,000,000.00 (Ten Million Naira) only being penalty for the persistent breaches of the provisions of the NOSDRA Act, 2006 and its regulation… ”
Paragraph 21:
“In furtherance of the Plaintiff’s position in paragraph 20, the plaintiff wrote a reminder letter dated 13th July, 2015 prompting the Defendant on the pending sanction slammed on the Defendant….”
(See page 22 of the Records). Granted that a demand was made, but the demand was for a sum of money defined as penalty for infraction of the regulation. This finding was made without giving the Respondent an opportunity to be heard. By so doing, the Appellant constituted itself into a Court with judicial or quasi-judicial powers, when in fact the law creating it did not donate such jurisdiction to it.
By the imposition of the fine, the Appellant acted in a judicial capacity which they are not imbued with under the Constitution. By so doing, the Appellant became a Judge in its own cause, the Complainant as well as the Judge, contrary to the maxim “nemo judex in causa sua”.
The Courts will not allow any authority to act ultra vires its powers under the Constitution. To this end, Sections 1 and 6 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) empowers the Courts to declare any Act of the National Assembly inconsistent with the provisions of the Constitution, null and void. See SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA V. AJUNWA (2015) 14 NWLR (Pt.1480) 403 at 473.
On the facts and circumstances of this case, I am of the firm but humble view that the imposition of penalties by the Appellant was ultra vires its powers, especially where no platform was established to observe the principles of natural justice. Penalties or fines are imposed as punishment for an offence or violation of the law. The power as well as competence to come to that finding belong to the Courts and the Appellant is not clothed with the power to properly exercise that function in view of the law creating the Appellant (NOSDRA). There is therefore a Lacuna in that law creating the Appellant.
In view of the fact that the main crux of the Respondent’s grievance bothers on the imposition of the fines/penalty on it, I hold that there is no merit in this appeal whatsoever.
The second issue as formulated by both parties bothers on evaluation of evidence by the learned trial Judge. In view of the success of the first issue which I resolve in favour of the Respondent and against the Appellant, Issue No.2 has become unnecessary, purely academic and a mere waste of time.
In the premise, this appeal is hereby dismissed. The Ruling of I. L. Ojukwu, J, of the Federal High Court, Uyo Judicial Division in Suit No. FHC/L/CS/1623/2016, delivered on the 16th of May, 2017 striking out the case for want of jurisdiction is hereby affirmed.
I make no order as to costs.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Chioma Egondu Nwosu-Iheme, JCA.
It is very well known in law that a fine is a criminal sanction. This Court in ABDULLAHI VS. KANO STATE (2015) LPELR-25928 (CA) per Abba Aji, JCA, defines fine as a payment of money ordered by a Court from a person who has been found guilty of violating law. It may be specified as the punishment for an offender, usually a minor offence, but could also be specified and used as an option to imprisonment for major crimes or a complement to other punishments specified for such crimes. I must here underline the fact that awarding a fine is a judicial act and it is the sole prerogative of a Court of law under Section 6 of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended). No other organizations or bodies can usurp that power. Any law that would consign to anybody other than the Courts the power to award fine is unconstitutional.
?For this and the elaborate reasons given in the lead judgment I also do hold that this appeal lacks merit and it is hereby dismissed.
I abide by the consequential orders made in the lead judgment.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege of reading the draft of the lead judgment just read by my learned brother NWOSU-IHEME, JCA and I agree with the reasoning and conclusion therein.
The power to punish or impose sentence of fine on a citizen must have been preceded by a trial in which the rules of fair hearing would be observed. That power is ultra vires the Appellant herein. I equally find no merit in the appeal and I consequently dismiss it.
Appearances
I. A. Oyofo, Esq.For Appellant
AND
I. Imhanze, Esq. with him, O. Adebo, Esq.For Respondent
