MELA & ORS v. CHEVRON (NIG) LTD (2022)

MELA & ORS v. CHEVRON (NIG) LTD

(2022)LCN/17088(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, May 27, 2022

CA/OW/53/2018

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Ibrahim Wakili Jauro Justice of the Court of Appeal

Between

1. CHIEF HERBERT CHIMA MELA 2. EZE-ELECT GEORGE NKWOPARA 3. HON. NDUKWE ONYEWUENYI 4. RICHARD NNAWUHIE 4. MAXWEL AKUJOBI (Suing For Themselves And On Behalf Of Victims Of Ihuoma “B” RIG AZ 5892 Located At Umudibia Owerri West Local Government Area Of Imo State) APPELANT(S)

And

CHEVRON NIGERIA LIMITED RESPONDENT(S)

RATIO

THE POSITION OF LAW WHERE THE INJURY COMPLAINED OF IS ACONTINUING ONE

In NWANKWO V. NWANKWO (2017) LPELR 42832 (CA) it was held that the law is that where the injury complained of is a continuing one, time does not begin to run for the purpose of application of Limitation Law, until the cessation of the event.
In paragraph 6 of the Statement of claim, filed on the 22nd of February, 2010, (pages 8–10 of the Record of Appeal), the Plaintiff had averred thus:
Paragraph 6 – “Immediately after drilling the oil location the defendant complied with safety standards and terms of agreement thereafter neglected or resiled from and left the oil location unattended to which situation has lasted about ten years”.
The implication of these facts is that as at the time of the suit, the subject matter of this appeal was instituted, the nuisance was continuing. From the facts in the Statement of Defence, there is no specific denial of the facts stated in paragraph 6 of the Statement of Claim. The facts therein are therefore deemed admitted by the Respondent.
Admittedly, Legal Principle are not always inflexible. Sometimes they admit to certain exceptions, thus, where there has been a continuance of the damage, a fresh cause of action arises from time to time as often as damages is caused. AREMO II V. ADEKANYE (2004) ALL FWLR (Part 2113) Page 2132. PER PEMU, J..CA.

THE POSITION OF LAW ON STATUTES OF LIMITATION

The law as it pertains to Statutes of Limitation is that a cause of action will not abate or become time barred until the injury or damage which is of a continuing nature completely stops or abates – INEC v Onowakpoko (2018) 2 NWLR Part 1602 134 at 167 Para E-H per Kekere-Ekun, JSC; Gwede v INEC (2014) 18 NWLR Part 1438 page 56 at 116-117 Para H-A per Galadima, JSC. PER ADEFOPE-OKOJIE, J.C.A.

THE POSITION OF LAW WHERE AN ALLEGED BREACH OF A FUNDAMENTAL RIGHT IS INCIDENTAL TO THE MAIL COMPLAINT

With respect to the contention of the Appellants that their claim hinges on the enforcement of Fundamental Human Rights, the law is trite that where the alleged breach of a fundamental right is ancillary or incidental to the main complaint, it is incompetent to come under the Fundamental Human Rights Rules – Ezeanochie v Igwe (2020) 7 NWLR Part 1724 Page 430 at 452 Para A-B per Augie JSC. PER ADEFOPE-OKOJIE, J.C.A.

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court Owerri in a ruling delivered on the 11th day of June 2012 in Suit No: FHC/OW/CS/44/2010.

In the said ruling, the Court below upheld the Respondents’ Motion on Notice to dismiss the suit and same was accordingly dismissed on the ground that the Appellants’ action was statute barred.

SYNOPSIS OF FACTS
The Appellants instituted the suit, the subject matter of this appeal on the 22nd of February, 2010, seeking the sum of N3 Billion (Three Billion Naira) as special damages and general damages. And the sum of N1 Billion (One Billion Naira) being costs of medical bill and N2 Billion (Two Billion Naira) as general damages.

The Respondent posits that the action is statute barred because the cause of action arose from the averments in paragraphs 6 and 7 of the Statement of Claim.
The Respondent filed a Motion on Notice dated 24th of May, 2011, seeking a dismissal of the suit.

The Court below dismissed the suit holding that the suit was statute barred by virtue of Section 18 of the Limitation Law of Imo State 1994, the suit having been filed more than five years after the cause of action arose in 2000.

The Appellants are aggrieved by this decision and pursuant to the Practice Direction of this Honourable Court have appealed same by filing a Notice of Appeal on the 15th of November, 2017 (pages 117–128 of the Record of Appeal) encapsulating nine (9) Grounds of Appeal.

The Appellants filed their Appellants’ brief on the 29th of March, 2018, but same was deemed filed on the 9th of April, 2019. It is settled by Chief J.G. Young- Arney.

The Respondent’s brief was filed on the 2nd of November 2018 but same was deemed on the 9th of April, 2019. It is settled by Olusola Laniyan, Esq.

The Appellants filed a reply brief on the 6th of February, 2019 and same was deemed on the 9th of April, 2019.
The Appellants distilled four (4) issues for determination from the Notice and Grounds of Appeal viz:
ISSUES FOR DETERMINATION:
ISSUE 1:
Whether considering the wordings of paragraphs 7 and 8 in particular of the statement of claim which confirm continuous damages, the learned trial Judge was not in error of law when he held at page 11 of his ruling that the damages plaintiffs/appellants suffer “…was the effect of the damage…..”
ISSUE 2:
Whether the learned trial Judge was not in error for dismissing Appellants’ action on the basis of the provisions of the Limitation Law 1994 of Imo State.
ISSUE 3:
Whether having found that the averments in the statement of claim are so vague and in view of the Court’s decision in AREMO II V. ADEKANYE & ORS. (2004) 13 NWLR (Pt.891) 572 at pp 593–514 paras. H–A the learned trial Judge was not in error to hold that “The Plaintiffs/Respondents cause of act therefore course in 2000”.
ISSUE 4:
Whether considering the state of the writ of summons together with the statement of claim and Sections 33(1) and 46 (1), (2) of the Constitution of the Federal Republic of Nigeria 1999 as amended the learned trial Judge was not in error to hold that appellants’ claim is not for enforcement of fundamental rights.

The Respondent on his part proffered three (3) issues for determination from the Notice and Grounds of Appeal which are:
(i) Whether by virtue of the averments in paragraphs 6 and 7 of the Appellants’ Statement of Claim, the learned trial Judge was right when he held that the Appellants’ suit was statute barred?
(ii) Whether the learned trial Judge was right when he held that the suit is statute barred in accordance with Section 18 of the Limitation Law of Imo State, 1994?
(iii) Whether the claim of the Appellants before the lower Court is one for enforcement of Fundamental Rights?

On the 7th day of March, 2022, the parties adopted their respective briefs of argument. A cursory look at the respective issues for determination show that the Respondent adopts the Appellants’ issues for determination.
I shall therefore consider this appeal based on the Appellants’ issues for determination.

ISSUE NO 1:
The Appellants submit that it is the law that a plaintiff is only seised of a cause of action at the point he suffers injury from the wrongful act of the defendant. Cites, UBN PLC V. OMNI PRODUCTS (NIG.) LTD. 2006 FWLR. (Part 323) 1726. He submits that the Appellants’ complaint is that the Respondent (Chevron) defaulted in maintaining its oil facility and there were oil spills, vibration, pollution, health hazard etc, which eventually caused damages to them. That the cause of action arose when they started suffering damages. That by paragraphs 6–10 of the Statement of Claim, both the default in the management of the oil location and the injury suffered by the appellant are still ongoing.

ISSUES 2 AND 3
They submit that the Respondent did not deny that the action of the Appellants is continuous damage. That the learned trial Judge was therefore wrong at page 11 of the ruling, when he held that the plaintiff/Respondent alleged that the damage caused by the Defendant/Applicant neglect is continuous, but they failed to state precisely when the alleged damage commenced. That the learned trial Judge further went on an excursion of discovery of the commencement date of the damage. They further submit that Section 18 of the Limitation Law 1994 of Imo State, does not specify whether in the cause of continuous damages, time starts running at the commencement of the damage or at the cessation of the damage.

Submit that the damages complained of and the neglect are still ongoing even as at the time of this appeal.

ISSUE No. 4
Submits that the Statement of Claim at pages 4–6 of the Record of Appeal and paragraphs 8, 9 and 10 thereof are clear cases of infringement of right to life and right against torture, inhuman treatment or degrading treatment.

That the right complained of are those expressly protected by the Constitution. That the Appellants’ rights to seek enforcement in this case amounts to fundamental rights.

That the enforcement of fundamental rights can be commenced by Writ of Summons citing ABACHA V. FAWEHINMI 2000 FWLR (Part 4) at 533.
That the learned trial Judge was wrong to have held that the Appellants’ claim is based on the Law of Torts.

RESOLUTION
I shall consider Issues 1, 2 and 3 together. The plank of the Appellants’ case is that the Respondent’s Oil well was left unattended to, thereby causing them untold hardship. At the lower Court, the defendants had filed a Preliminary Objection to the intent that the action is statute barred, which was upheld by the Court below.

This is the subject matter of this appeal. Is the Court below right in upholding the Preliminary Objection?

The very acts of the Respondent was a continuous nuisance because according to the Statement of Claim the Plaintiff had averred in paragraph 6 of it, that the actions of the Respondent has been continuous for about a period of ten years, and is still continuing as at the time the action, the subject matter of this appeal was filed in 2010.
In NWANKWO V. NWANKWO (2017) LPELR 42832 (CA) it was held that the law is that where the injury complained of is a continuing one, time does not begin to run for the purpose of application of Limitation Law, until the cessation of the event.
In paragraph 6 of the Statement of claim, filed on the 22nd of February, 2010, (pages 8–10 of the Record of Appeal), the Plaintiff had averred thus:
Paragraph 6 – “Immediately after drilling the oil location the defendant complied with safety standards and terms of agreement thereafter neglected or resiled from and left the oil location unattended to which situation has lasted about ten years”.
The implication of these facts is that as at the time of the suit, the subject matter of this appeal was instituted, the nuisance was continuing. From the facts in the Statement of Defence, there is no specific denial of the facts stated in paragraph 6 of the Statement of Claim. The facts therein are therefore deemed admitted by the Respondent.
Admittedly, Legal Principle are not always inflexible. Sometimes they admit to certain exceptions, thus, where there has been a continuance of the damage, a fresh cause of action arises from time to time as often as damages is caused. AREMO II V. ADEKANYE (2004) ALL FWLR (Part 2113) Page 2132.

In paragraph 7 of the Statement of Claim, it was averred thus:
Paragraph 7: “Because of the Defendants’ neglect, the oil location has been causing death, sickness, land pollution, air pollution, water pollution, waste and economic strangulation to the Plaintiff. The oil location cause grave noise pollution, vibrations and chemical discharge. Nexious gas oozes out of the oil location, producing acute smell, damaging the eco system and causing health hazards and death”.

Again, the Defendant did not reply specifically to these facts. The facts are therefore deemed admitted.

There is no doubt that the averment in paragraph 7 of the Statement of Claim amounts to continuous threats and danger to the lives, health and wealth of the Plaintiffs/Appellants.

The Court below did not take this into consideration. The Plaintiff had averred that this situation had obtained ten years before the institution of this suit in 2010, which brings it back to the year 2000. And that the damage continued as at the institution of this suit, the subject matter of this appeal.

Faced with these facts, the Court below was wrong to have declared the suit, the subject matter of this appeal statute barred and I so hold.
Issues 1, 2 and 3 are resolved in favour of the Appellants and against the Respondent.

Issue No. 4: For a claim to qualify as failing under fundamental right, it must be clear that the principal reliefs is for securing the enforcement of fundamental rights, and not for the nature of the claim to redress a grievance that is ancillary to the principal reliefs which itself is not ipso facto a claim of fundamental right. The proper approach is to examine the reliefs sought by the Appellant before the trial Court.
In the present case, the principal relief is for payment of the sum of Three Billion Naira as special and general damages which has nothing to do with Fundamental Right Enforcement. This issue is therefore utterly misconceived, and I so hold.

The Court was therefore right to have held that the claim was for tort and not fundamental right.
This issue is resolved in favour of the Respondent and against the Appellants.
The appeal succeeds and same is allowed.

The ruling of the Federal High Court Owerri, delivered on the 11th of June, 2012 in Suit No: FHC/OW/CS/44/2010 is hereby set aside. This matter shall be remitted to the Federal High Court Owerri, for retrial on its merits. No order as to costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA, where the facts and contentions of Counsel to the parties have been well set out.
I am in agreement with my learned brother’s reasoning and conclusion.

The law as it pertains to Statutes of Limitation is that a cause of action will not abate or become time barred until the injury or damage which is of a continuing nature completely stops or abates – INEC v Onowakpoko (2018) 2 NWLR Part 1602 134 at 167 Para E-H per Kekere-Ekun, JSC; Gwede v INEC (2014) 18 NWLR Part 1438 page 56 at 116-117 Para H-A per Galadima, JSC.

In determining whether a case is statute barred, a Judge has recourse to the Writ of Summons and Statement of Claim – Mulima v Usman (2014) 16 NWLR Part 1432 Page 160 at 199 Para A-B per Okoro JSC; at 208 Para B-C per Rhodes-Vivour JSC.

An examination of the Writ of Summons and Statement of Claim filed before the lower Court show that the injury is continuous and is yet to abate as at the time of filing of the suit, I hold.

With respect to the contention of the Appellants that their claim hinges on the enforcement of Fundamental Human Rights, the law is trite that where the alleged breach of a fundamental right is ancillary or incidental to the main complaint, it is incompetent to come under the Fundamental Human Rights Rules – Ezeanochie v Igwe (2020) 7 NWLR Part 1724 Page 430 at 452 Para A-B per Augie JSC.

For the fuller reasons given by my learned brother, I too allow this appeal. The ruling of the Federal High Court delivered on the 11th of June, 2012 in Suit No: FHC/OW/CS/44/2010 is hereby set aside and this case shall be remitted to the Federal High Court for retrial on the merits.

IBRAHIM WAKILI JAURO, J.C.A.: I have before now been availed with the judgment delivered by learned brother RITA N. PEMU, JCA just delivered. From the resolution of the issues in this appeal, I am in complete agreement with his lordship that the appeal is meritorious and ought to be and is hereby allowed by me.
I abide by the order of retrial made.