THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD V. DONATUS EZEUKWU & ORS
(2010)LCN/3760(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of April, 2010
CA/PH/132/2002
RATIO
WORDS AND PHRASES: MEANING OF IN ADDITION
The word “in addition to” is defined by Black’s Law Dictionary 6th Edition at page 38 thus:-
“Implies physical contact, something, added to another.”
New Webster’s Dictionary of the English Language at page 9 defines “in addition to” as “as well as.” PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
JUDICIAL PRECEDENCE: APPLICATION OF THE PRINCIPLE OF STARE DECISIS
It is trite law that lower Courts follow decisions of higher Courts on similar issues unless such lower Courts are able to satisfactorily distinguish the case being handled, by them from the decisions of the higher Courts. This is known as the application of the principle of stare decisis. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
WORDS AND PHRASES: MEANING OF STARE DECISIS
In TEJUMADE CLEMENT & ANOR. VS. BRIDGET IWUANYANWU & ANOR. (1989) 3 NWLR (PT. 107) 39 AT 54. The Supreme Court in explaining the meaning of Stare decisis stated as follows:-
“Stare decisis means to abide by the former precedent where the same points come again in litigation and it presupposes that, the law has been solemnly declared and determined in the former case and thus precludes the Judges of the subordinate Courts from changing what has been determined.”
In paragraph C- D. of the page 54 of the report, the Court stated that:-
“A precedent is an adjudged case or declaration of a higher Court considered as furnishing an example or authority for an identical or similar case aHerwarc1sadsing or a similar question of Jaw. Thus prior cases which are close in facts or legal principles to the case under consideration are called precedents.”
And on the application of the doctrine of stare decisis the Supreme Court declared as follows:
“A Court lower in the Judicial hierarchy is bound by the ration decidendi of a higher Court but not necessarily by the Obiter dictum. The rule is designed to ensure uniformity in decision making; foster stability and enhance the development of a consistent and coherent body of law as well as assure equality of treatment for litigants similarly situated.” PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
WORDS AND PHRASES: MEANING OF SUBJECT TO
The expression “subject to” means liable, subordinate, subservient, or inferior to; governed or affected by; provided that or provided; answerable for: see Black’s Law Dictionary, 6th edition, page 1425.
It must therefore be understood that “subject to” introduces a condition, a restriction, a limitation, a proviso; See OKI v. OKE (1994) 1 ALL NLR Pt.1 Pg. 442 at 450. it subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended not to be diminished by the subject section: See LSDPC v. FOREIGN FINANCE CORPORATION (1987) 1 NWLR Pt. 50 Pg. 413 at 461; AGUA LTD v. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR Pt. 91 Pg. 622 at 655. The expression generally implies that what the section is subject to shall govern; control and prevail over what follows in that subject section of the enactment, so that it renders the provision to which it is subject to conditional upon compliance with or adherence to what is prescribed in the provision referred to: See TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR Pt. 117 Pg. 517 at 542. 565, 580; IDEHEN v. IDEHEN (1991) 6 NWLR Pt. 198 Pg. 382 at 148; LABIYI v. ANRETIOLA (1992) 8 NWLR Pt. 258 Pg. 139 at 163-164. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
THE SHELL PETROLEUM DEVELOPMENT CO. OF NIG. LTD. Appellant(s)
AND
1. DONATUS EZEUKWU
2. PRINCE STEPHEN OLEGORO
3. SEBASTINE OHA
4. ONYEWUCHI ANELE
5. UGORJI CHIBUZO (For themselves and on behalf of the People of Obihi Ohaji/Egbema L.G.A. Imo State) Respondent(s)
ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Imo State High Court sitting at Oguta presided over by His Lordship, Hon. Justice S.C. Nwachukwu delivered on 24th day of July, 2001 dismissing Defendant/Appellant’s motion challenging the Jurisdiction of the Court to entertain Plaintiffs/Respondents Suit.
At the lower Court, the Plaintiffs/Respondents claimed against the Defendant/Appellant as follows:-
The sum of One Hundred Million Naira (N100,000,000.00) as fair, reasonable and adequate compensation and/or damages due and payable to the Plaintiffs by the Defendant for damages, deprivation and or injuries to the Plaintiffs’ right in respect of the Plaintiffs’ pieces or parcel of land which situate and lying at Obihi in Obaji/Egbema Local Government Area of1mo State resulting in loss of income from Farming, Palm produce, lumbering, animal husbandry hunting etc.
PARTICULARS OF DAMAGES:
(a) N39,325,000.00 being compensation for loss of use of the land described in paragraph 3 of the Statement of Claim measuring 15.73 hectares at N2,500,000.00 per hectare per twenty years.
(b) N60,675,000.00 being general damages for loss of economic crops and trees huntable wild lives etc as a result of perpetual flooding of Plaintiff’s lands and for inconveniences, suffering and deprivation. Or in the Alternative to (a) above.
(c) An Order, of Court that an Independent Registered Estate Valuers acceptable to both parties be retain to put a proper, fair and adequate capital value for 20 year loss of use of the said land described in paragraph 3 of this Statement of Claim form 1990 till 2010.
From the Plaintiffs’ Statement of Claim contained at pages 6 to 10 of the records of proceedings, it seems that the complaint of the Plaintiffs was in connection with mining, exploration and exploitation of oil, as well as Appellant’s “Ogwuala 1 and 2 Oil wells” situate on the Respondent’s land.
The Defendant/Appellant then filed a Notice of Preliminary objection challenging the Jurisdiction of the Court to entertain and try a suit complaining of alleged injuries suffered as a result of establishment of oil wells and operations of Oil Mining. The Plaintiff/Appellant’s Notice of Preliminary Objection is contained at page 12 of the records. The objection was based on the facts averred in the Plaintiffs’ Statement of Claim as well as endorsed in the writ of Summons.
In his ruling at pages 23 to 29 of the records of proceedings the learned trial Judge dismissed the Notice of Preliminary Objection.
Dissatisfied with the decision of the trial Court, the Appellant appealed to this Court vide its Notice of Appeal dated 1st August, 2001 containing three grounds of appeal.
The appeal was heard on the 9th February, 2010 and in line with the Rules and Practice of this Court, the parties duly filed their briefs of Argument. The Appellant’s bridal’ Argument is dated 30/6/03 ,and filed on 9/7/10, the Appellant also filed a reply brief dated 7/12/02 and filed on 14/12/07. Learned Counsel for the Appellants adopted the two briefs of Argument and urged the Court to allow the appeal and strike out suit No. HOJ/54/200 on the ground that it is only the Federal High Court that has Jurisdiction to hear the matter.
The Respondent’s brief of Argument is dated 17/5/06 and deemed filed on 8/2/07. Learned Counsel for the Respondents adopted the said brief of Argument and urged the Court to dismiss the appeal.
From the three grounds of Appeal, Learned Counsel for the Appellant formulated three Issues for determination which are stated as follows:-
(i) Was the learned trial Judge right in declaring that certain sections of Decrees 60 and 107 now deemed to be Acts of National Assembly were inconsistent with Section 251(1) of the 1999 Constitution and accordingly, void and of no effect.
(ii) Was the learned trial Judge right in refusing to follow the interpretations already given to Decrees 60 of 1991 and 107 of 1993 by superior Courts of record on the ground of inconsistency with Section 25(1) of the 1999 Constitution contrary to and in violation of the age long principle of stare decisis.
(iii)Whether the learned trial Judge was right in ruling that he could assume Jurisdiction to entertain the Plaintiffs’ Suit based on Sections 10, 19 and 20 of the Oil Pipelines Act Cap 338 LFN 1990.
On his part, the learned Counsel for the Respondents formulated two issues for determination, the Issues are:-
1. Whether certain sections of Decrees No. 60 and 107 (now Act of National Assembly are inconsistent with Section 251(1) (n) of the 1999 Constitution if, yes was the learned trial Judge right in declaring same void and of no effect.
2. Was the learned trial Judge right in holding that he has Jurisdiction to entertain the Plaintiffs’ claim.
In my view the Issues as formulated by the learned Counsel to the Appellant will suffice in the determination of this appeal.
On Issue No. 1 Learned Senior Counsel for the Appellant referred to the portion of the Ruling of the learned trial Judge at page 29 of the printed records Lines 13 to 17 where the learned trial Judge declared thus:
“I have to add that to the extent that Decree 60 of 1991 and Decree No. 107 of 1993 which are existing laws under Section 315 of the Constitution of 1999 purport to oust the Jurisdiction of the State High Court in hearing and determining Civil matters and causes arising from or connected with mining etc is (sic) void and of no effect.”
That earlier at page 28 lines 20 to 22 of the records of proceeding, the learned trial Judge had while considering certain provisions of Decrees 60 of 1991 and 107 of 1993 maintained vis-a-vis the 1999 Constitution stated as follows:-
“This is not to say that the inconsistent words of Decrees 60 of 1991 and 107 of 1993 can be construed as part of the 1999 Constitution and indeed are inconsistent with the 1999 Constitution and to the extent of such inconsistency they remained void and of no effect.”
That the areas where the learned trial Judge found inconsistent with Section 251 of the 1999 Constitution were those areas in all the statutes providing for exclusive Jurisdiction of the Federal High Court in oil mining and oil related matters. Further, the trial Judge appeared to agree with the submissions of the learned Counsel to the Plaintiffs/Respondents who said the two Decrees in conflict with Section 251 of the 1999 Constitution simply because the words “connected with”, or “relating to” mining and mining operations, oil wells were according to him clearly deleted in the 1999 Constitution as opposed to their provisions in the two Decrees. And further more, all the decisions based on the provisions of the two Decrees were no longer good authorities to establish the exclusive Jurisdiction of the Federal High Court in mines, minerals (including oil fields) mining, geological survey and natural gas. That the trial Judge came to the conclusion that the ouster of State High Court Jurisdiction in the trial of matters connected with oil mining, oil fields, oil wells; geological survey and natural gas etc by Decrees (now Acts) No. 60 of 1991 and 107 of 1993 were according to the learned trial Judge in conflict with the 1999 Constitution and accordingly went on to assume jurisdiction to entertain the suit.
Learned Counsel for the Appellant submits that there is no conflict whatsoever between the join provisions of Decrees 60 of 1991 and 107 of 1993 and Section 251(1) of the 1999 Constitution with regard to the exclusive jurisdiction of the Federal High court to entertain suits connected with, related or pertaining to oil mining, exploration, exploitation including oil field, oil wells, geological survey and natural gas etc. Learned Counsel for the Appellant contends that the trial Judge did not state clearly or at all, the aspects or contents of the said two Decrees which made them inconsistent with the 1999 Constitution and yet assumed that such “inconsistent words” existed and could be found in the two Decrees and under the said assumption the trial judge at page 28 of the printed records declared.”
“This is not to say that the inconsistent words of Decrees 60 of 1991 and 107 of 1993 can be construed as part of the 1999 Constitution, Counsel for Appellant contends that they disagree with the learned trial Judge that any words or provisions “inconsistent” with the 1999 Constitution can be found in the said Decrees with regards to the exclusive Jurisdiction of the 1999 Constitution. And that if the learned trial Judge reasons for holding that Decrees 60 and 107 on the one hand are inconsistent with Section 251(1) of the 1999 Constitution on the other hand for the simple reasons that they:
“purport to oust the jurisdiction of the State High Court in hearing and determining civil matters and causes arising from or connected with mining.”
Learned Senior Counsel for Appellant submits that the said conclusion is equally erroneous because Section 251(1) of the 1999 Constitution did not in the first place give the State High Courts Jurisdiction to entertain suits pertaining to, connected with, related to oil mining, oil fields, exploration etc. That it is only where there is original provision for such Jurisdiction ab initio that removal of such provision by any law or statute will be said to be inconsistent. That indeed Section 251(1)(n) of the 1999 Constitution made it clear that the Federal High Court should have and exercise Jurisdiction in matters affecting:-
“(n) mines, and minerals (including oil fields, oil mining, geological surveys and natural gas.”
Counsel for the Appellants submits that in the instant appeal, Plaintiffs/Respondent are complaining .of situations arising out of oil mining operations, oil fields, oil wells etc. That they said so clearly in paragraphs 3, 10 and 11 of the Statement of Claim where the Plaintiffs/Respondents made it clear that they were complaining of the effect of the Defendant’s establishment of its Ogwuala 1 and Ogwuala 2 oil wells, Access Road thereto.
Further it is submitted for the Appellant that all the laws in force now and decided cases show that any legal action in which the subject matter touches on oil drilling exploration, exploitation or in any manner connected to such exercise (including oil fields, oil wells) should be tiled at the Federal High Court and such other Courts not being Federal High Court are indeed excluded from entertaining such suits.
Again it is submitted for the appellants that Decree 60 of 1991, Decree 16 of 1992 and 107 of 1993 being existing laws under Section 315(1) of the 1999 Constitution have remained in force since the coming into effect of the 1999 Constitution and have been deemed to be laws made by the National Assembly.
Also, item 68 of the Exclusive Legislative List Second Schedule Part 1 gives the National Assembly exclusive jurisdiction in legislate on “any matter incidental or supplementary to any matter mentioned elsewhere in this list.”
Counsel for the Appellants therefore submits that oil/gas mining operations and exploration matters pertaining to or touching on hand, oil fields, land acquisition, leases, rents etc are mattes pertaining to or touching on or incidental or supplementary to all mining and exploration mentioned in the exclusive list and since the National Assembly has exclusive jurisdiction to legislate upon such matters only Federal High Court can exercise jurisdiction to entertain such matters.
Counsel for the Appellant submits that a grant of a lease or license to prospect or explore for oil anywhere in Nigeria, and the consequent payment of rents thereto constitute, an authority which is a prerogative or an exclusive right of the Federal Government of Nigeria, that notwithstanding whatever arrangement an oil prospecting Company may have with the original owners of the land in which oil prospecting or exploration might be carried out, there must be in existence an oil prospecting or exploration lease or license granted by the Federal Government in respect of such parcel of land and accordingly a subject matter within the exclusive jurisdiction of the Federal High Court. That “Licenses”, “Leases”, “Rents”, and “compensations”, are definitely matters related to incidental to, oil mining activities which the National Assembly has been given powers to legislate upon. Thus item 68 of the exclusive legislative list gives the National Assembly exclusive Jurisdiction to legislate on.
“Any matter incidental or supplementary to any matter mention elsewhere in this list.”
Also, section 7(3) of Decree No. 60 provides that when Jurisdiction is conferred, upon the Federal High Court under Sub-sections (1) & (2) of this Section such Jurisdiction shall be construed to include Jurisdiction to hear and determine all Issues relating to, arising from, or ancillary to such subject matter. That Section 7(5) of Decree 60 of 1991 expressly remove jurisdiction to entertain matters pertaining or relating to oil mining, exploration, oil fields etc and matters relating or incidental, thereto, from any other Court not being the Federal High Court, thus whether the issue in controversy affects the subject matters stated in Section 251(1) or the 1999 Constitution or in Decree 60 of 199I or 107 or 1993 or matters ancillary thereto it is the Federal High Court that has exclusive Jurisdiction to entertain such matters.
Learned Counsel for the Appellants argues that it is clear that from whatever angle the Plaintiffs/Respondents claims are examined, whether as oil exploration exercise, oil fields, oil wells, rent, compensations, they fall squarely within matters exclusively reserved for the Federal High Court and not State High Court.
Counsel for the Appellants submits that it cannot be a valid argument to maintain that because certain expressions which are contained in the Decrees were not repeated in Section 251(1) of the 1999 Constitution, therefore the Decrees are in conflict with the Constitution. That the Constitution being a broad document is not expected to provide all the minutes details of a statute, reference made to DIRECTOR SSS VS. AGBAKOBA 1999(3) NWLR (PT. 595) as; FAWEHINMI VS. IGP (2002) 1 NWLR 606; P.D.P. VS. IWE (2001) FWLR (PT.31) 2735; ADEGOKE ADEWUMI & ANOR. VS. THE ATTORNEY GENERAL OF EKITI STATE AND OTHER (2002) FWLR (PT. 92) 1835; NOHB VS. AJOGWU (2000) (PT. 682) 626.
Learned Counsel for the Appellant submits that the trial Judge was not right in holding that there was conflict between Decrees 60 of 1991 and 107 of 1993 on one hand and section 251(1) of the 1999 Constitution and urged us to resolve the issue in favour of the Appellant.
In his response to the submissions of learned Counsel to the Appellant on Issue No.1 learned Counsel for the Respondents submits that the learned trial Judge was right to hold that certain Sections of Decree No. 60 of 1991 and 107 of 1993 were in conflict with Sections 251(1)(n) of the 1999 Constitution and therefore void to the extent of their inconsistency. That it is trite law that the substantive law at the time the cause of action arises governs the case while the procedural law at the time of hearing will be applicable to the case, reference made to made to CGG NIG LTD. VS. ASAGBARA (2000) FWLR (PT. 17) 110; MOBIL PROD. NIG UNLTD. VS. LASEPA (2002) 18 NWLR (PT. 798) 1 at 12
Learned Counsel for the Respondents posed a question whether the jurisdiction provided by Section 7 of Decree No. 60 of 1991 and Section 230 of Decree No. 107 1993 are the same as the jurisdiction provided by Section 251(1)(n) of the 1999 Constitution. He answered in the negative and referred to the provisions of the said laws and contends that the words, “Connected with” “Pertaining to” and “arising from” are words of expansion, reference made to ACHEBE VS. NWOSU (2003) 7 NWLR (Pt.818) 103; NERDC VS. GOWLE NIG. LTD. (2000) 9 NWLR (PT.673) 532.
Learned Counsel for the Respondents argues that by the submission of the Appellant in paragraph 5.11 and paragraph 5.12 of its brief, the National Assembly cannot, make law or deemed to have made Law which has the effect to add or subtract from what the 1999 Constitution provided and make law or deem to have made law in respect of matters which are not within the exclusive and concurrent legislative list, reference made to MINISTER FOR WORKS AND HOUSING VS.THOMAS NIGERIA LTD. (2002) 2 NWLR (PT752) 750; MUSA VS. INEC (2002) 11 NWLR (PT. 778) 223; ABIA STATE AND 35 OTHERS VS. A.G FEDERATION (2002) 6 NWLR (PT.763) 264.
Learned Counsel for the Respondents contends that interpreting the words; “Arising from”,” connected with” and “pertaining to”, into the provision of Section 251(1)(n) of the 1999 Constitution will amount to adding and/or altering the jurisdiction of the Federal High Court as provided by the 1999 Constitution and this will amount to great violation of the clear and unambiguous language of the Constitution, reference made to UMOH VS. NKAN (2001) NWLR (Pt. 701) 512; SHELL PETROLEUM NIG. LTD. VS. AMARO (2000) 10 NWLR (PT. 675) 248. That assuming without conceding that the provision of Section 251(1)(n) of the 1999 Constitution is not clear then the Court will look at the intention of the legislature, reference made to NIGERIAN POSTAL SERVICES VS. ADEPOJU (2003) FWLR (PT.147) 1060; DANTSOHO VS. MOHAMMED (2003) 6 NWLR (PT.817) 457.
Learned Counsel for the Respondents contends that the words “Pertaining to”, “Arising from” and “Connected with” were clearly stated in Section 251(1)(b)(c)(d)(e) of the 1999 Constitution but in Section 251(1)(n) of the same Constitution, the legislature carefully removed the said words i.e. “Pertaining to”, “Arising from” and “Connected with”, clearly showing and demonstrating any doubt that they have no intention of maintaining and or continuing with the expanded jurisdiction of the Federal High Court as was the case under Decree 60 of 1991 and 107 of 1993. That the Legislature does not make mistake reference made to ENYINWAYA VS. COMMISSIONER OF POLICE (1985) 6 NCLR 464; ALAMIEYESEIGHA VS. TEIWA (2002) FWLR (PT. 96) 552; ACHEBE VS. NWOSU (2003) 7 NWLR (PT.818) 103; NERDC VS. GONLE NIG. LTD. (2003) 9 NWLR (PT. 672) 542.
It is the submission of Counsel for the Respondents that in interpreting the intention of the Legislature in Section 251 (1)(n) 1999 Constitution cannot be separated from the aim and purpose for which the Federal High Court was established, he referred to SHITTU VS. NIGERIAN AGRIC & COOPERATIVE BANK LTD. (2001) 10 NWLR (PT. 721) 298; TOGUN VS. OPUTA (No.2) (2001) 16 NWLR (PT. 740) 597; BRONIK MOTORS LTD. & Anor. vs. WEMA BANK LTD. (1983) ALL NLR 272.
Further, Counsel for the Respondents submitted that when the Constitution has made provision for a particular act or has provided for a particular Jurisdiction, any Legislation which attempts to add, alter, duplicate or even repeat what the Constitution has already provided will remain invalid, reference made to MUSA VS. INEC (2002) 11 NWLR (PT. 778) 223.
It is the submissions of the Respondents that the Jurisdiction provided in Section 7 of Decree No. 60 of 1991 and Section 230(1) of Decree No. 107 of 1993 which form the basis of the decisions in all the cases cited and relied upon by the Appellant in the Court below in different from the Jurisdiction provided in Section 251(1)(n) of the 1999 Constitution
Therefore, the issue of stare decisis which the Appellant laid so much emphasis on becomes a non-issue, reference made to JUSTICE PARTY VS. INEC (2003) 52 NRW 84; BUHARI VS. OBASANJO (No. 3) (2004) 1 WRN.
Replying on points of law, learned Counsel for the Appellant submits that all the cases cited by the learned Counsel for the Respondents are inapplicable and reiterated that the exclusive Jurisdiction of the Federal High Court as contained in Section 7(1)(p) and Section 230(1) of Decree No. 107 of 1993 are protected by Section 230(1) of the 1999 Constitution when it says; Notwithstanding 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 exclusion of any other Court therefore, learned Counsel for the Appellant submits that the position of the law under Section 230(1)(o) of Decree No. 107 of 1993 and Section 251(1)(n) of the 1999 ,Constitution remains the same as the Sections are in pari material and urge the Court to hold so.
To resolve Issue No. L, it is necessary to refer to the portion of the Ruling of the trial court which stated that certain provisions of Decrees 60 of 1991 and 107 of 1993 are inconsistent with the 1999 Constitution and also the provisions of the said Decrees and the 1999 Constitution to determine the inconsistency if any.
At page 28 lines 20- 22 of the records of proceedings the learned trial Judge states thus:-
“This is not to say that the inconsistent words of Decrees 60 of 1991 and Decree 107 0f 1993 can be construed as part of the 1999 Constitution and indeed are inconsistent with the 1999 Constitution and to the extent of the inconsistency they remained void and of no effect.”
Section 7(1) of the Federal High Court Amendment Decree No. 60 of 1991 states as follows;
“The Court shall, to the exclusion of any other Court, have original jurisdiction to try civil causes and matters connected with and pertaining to:-
(p) Mines and Minerals, including oil fields, mining and geological surveys and natural gas.
Section 230(1) of Decree No. 107 of 1993 states as follows:-
“Notwithstanding 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, or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters arising.”
(o) Mines and minerals (including oil fields, oil mining, geological surveys and natural gas.
Section 251(1)(n) of the 1999 Constitution states as follows:-
Notwithstanding anything to the contrary contained in this Constitution and in addition to such others 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 exclusion of any other Court in civil causes and matters (n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas).
It appears that what agitated the trial Court to rule that the provisions of Decrees 60 of 1991 and 107 of 1993 to be inconsistent with the 1999 Constitution is the absence of the words “connected with”, “pertaining to” and ‘arising from”, as contained in Section 7(1)(p) of Decree No. 60 of 1991 and Section 230(1)(o) of Decree No. 107 of 1979 in Section 251(1)(n) of the 1999 Constitution, but looking at the Section 251(1) of the 1999 Constitution, it is clear the Section has protected the provisions of Decrees No. 60 of 1991 and 107 of 1993. What it says;-
Notwithstanding 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.
The words as used in Section 251(1) of the 1999 Constitution are critical expressions germane to critical resolution of the Jurisdiction of the Federal High Court, the words are “notwithstanding” and “in addition to.”
In NDIC VS. OKEM (2004) 10 NWLR (PT. 880) 107 (Supra) 182-183 paragraphs H – A. Uwaifo JSC held thus:-
“When the term “notwithstanding” is used in a section in statute, it is meant to exclude an impinging or impending effect of any provision of the statute or other, subordinate Legislation so that the said’ section may fulfill itself. It follows that, as used in Section 251(1) of the 1999 Constitution, no provision of that Constitution shall be capable of undermining the said section.”
The word “in addition to” is defined by Black’s Law Dictionary 6th Edition at page 38 thus:-
“Implies physical contact, something, added to another.”
New Webster’s Dictionary of the English Language at page 9 defines “in addition to” as “as well as.”
It is thus clear that the combination of “Notwithstanding” and in “addition to” as used in Section 251(1) meant that nothing shall derogate iii the Jurisdiction of the Federal High Court as contained in both Section 251(1) and Section 7 of the federal High Court Act in its entirety.
Section 251(1) of the 1999 Constitution cannot be derogated from by the Constitution as the Constitution itself has said that nothing shall impede it. In OBI VS. INEC (2007) 11 NWLR (PT.1046) 565 the Supreme Court reiterated the effect of “Notwithstanding” on Section 251(1) of the Constitution. Aderemi JSC in his lead judgment adopted entirely the dictum of Hon. Justice Uwaifo JSC earlier quoted in this judgment in NDIC VS. OKEM (supra) and went to hold that the Federal High Court had jurisdiction in the matter.
Again in SHITTU VS. NACB (Supra) the Court of Appeal when it considered the extent of the Jurisdiction of the Federal High Court under Section 230(1) (a) of Decree 107 of 1993 which is in pari materia with Section 251(1)(n) of the 1999 Constitution.
Obadina JCA states thus:-
However, it is observed that the provisions contained in Section 7(1)(t) and (u) of Decree No. 60 of 1991 are conspicuously omitted in Section 230(1) of the 1979 Constitution as amended by Decree No. 107 of 1993. However, the omission does not mean that Section 7(1)(t) and (u) are impliedly repealed as Section 230(1) itself seems to have protected the provisions when it says:-
“Notwithstanding anything to the contrary contained in this Constitution in addition to such other jurisdiction as may conferred upon it by an Act of National Assembly or a Decree, the Federal High Court shall have.”
A critical look at the provisions of Decree No. 60 of 1991 and Section 230(1) of the 1979 Constitution as amended… but in addition to jurisdiction over revenue matters, the Federal High Court has jurisdiction as may be given to it from time to time by the National Assembly from those matters over which the National Assembly has power to make laws.
The words “connected with”, “pertaining to” and arising from”, are contained in Section 7(1)(p) of Decree No. 60 of 1991 and Section 230(1)(o) of Decree No. 107 of 1979 these are existing laws before the coming into effect of the 1999 Constitution of the Federal Republic of Nigeria.
Now Section 315(1) of the 1999 Constitution states:-
“Subject to the provisions of this Constitution an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be:-
(a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and
(b) a law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by the Constitution to make laws.”
Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria states:-
“Notwithstanding anything to the contrary 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 exclusion of any other Court in civil causes and matters.”
Section 252(2) of the 1999 Constitution of the Federal Republic of Nigeria states:-
“Notwithstanding subjection (1) of this Section, the National Assembly may by law make provisions conferring upon the Federal High Court powers f additional to those conferred by this Section as may appear necessary or desirable for enabling the Court more effectively to exercise its Jurisdiction,”
A careful combined reading of Sections 251(1), 252(2) and 315(1) (a) of the 1999 Constitution makes Decrees No, 60 of 1991 and 107 of 1993 existing enacted by the National Assembly, These Acts of the National Assembly for all intent and purposes appear necessary or desirable for enabling the Court more effectively to exercise Jurisdiction in relation to Section 251(1) (n) of the 1999 Constitution,
Basically, it is the claim of the Plaintiff before the Court that confers Jurisdiction on the Court. In the instant appeal, in paragraphs 3, 8, 10 and 11 of the statement of claim Plaintiffs/Respondents pleaded facts showing that the complaint of the Plaintiffs was based on incidences of oil exploration and exploitation said, to be carried out on their piece or parcel of land by the Defendant/Appellant. Accordingly, the complaint of the plaintiffs/Respondents was in connection and related to oil exploration, oil fields and oil wells.
It was the contention of the Appellant at the lower Court that in so far as the ,complaint of the Plaintiffs/Respondents had something to do with oil mining, oil exploration, oil wells etc. the suit should be commenced and determined at the Federal High Court pursuant to Section 251(1)(n) of the Constitution of the Federal Republic of Nigeria.
As stated in this Judgment Decrees No, 60 of 1991 and 107 of 1993 by the operation of the Constitution are now Acts of the National Assembly which confer exclusive Jurisdiction on the Federal High Court in civil causes and matters connected with or pertaining to mines and minerals including oil fields mining and geological surveys and natural gas as such the issue of inconsistency with 1999 Constitution of the Federal Republic of Nigeria does not arise at all as posited by the learned trial Judge in his ruling.
In SPDC VS. ISHAIAH (Supra) at page 184 paragraph G Ogwegbu, JSC said:
“I should say that Section 7 (5) of Decree No. 60 of 1991 ousted the Jurisdiction on State High Court and Magistrate Court under Section 20 of oil pipelines Act Cap 338 Laws of the Federation 1990. As a result, State High Court and Magistrate Courts have no Jurisdiction whatsoever in matter under Section 7(1) and (2) of Decree No. 60 1991.”
And this Court in Appeal No. CA/PH/78/2005 ALETO VS. NWAPI unreported delivered on 11th December, 2006, a cause or matter which was commended in 2001 pertaining to oil mining etc, Saulawa, JCA stated thus:-
“Hence in the light of the above it should be reiterated that the exclusive jurisdiction of the Federal High Court as provided in Section 251(1)(n) of the 1999 Constitution (supra) as well as Section 7(1)(p) of the Federal High Court (Amendment) Decree 1991 (supra) in matters pertaining to or connected with oil spillage etc is rather unquestionable.”
With the foregoing, therefore, the learned trial Judge was in great error when he ruled that certain Sections of Decrees No. 60 of 1991 and 107 of 1993 were in conflict with Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria and therefore, void to the extent of the inconsistency, accordingly issue No. 1 is resolved against the Respondents in favour of the Appellants.
Issue No. 2 Was the learned trial Judge right in refusing to allow the interpretations already given to Decrees 60 of 1991 and 107 of 1993 by superior Courts of records on the ground of inconsistency with Section 251(1) of the 1999 Constitution contrary to, and in violation of the age long principle of Stare decisis?
With the resolution of Issue No. 1. against the Respondents, the learned trial Judge was certainly wrong in refusing to follow the interpretations already given to Decrees 60 of 1991 and 107 of 1993 by superior Courts of record.
It is trite law that lower Courts follow decisions of higher Courts on similar issues unless such lower Courts are able to satisfactorily distinguish the case being handled, by them from the decisions of the higher Courts. This is known as the application of the principle of stare decisis.
In TEJUMADE CLEMENT & ANOR. VS. BRIDGET IWUANYANWU & ANOR. (1989) 3 NWLR (PT. 107) 39 AT 54. The Supreme Court in explaining the meaning of Stare decisis stated as follows:-
“Stare decisis means to abide by the former precedent where the same points come again in litigation and it presupposes that, the law has been solemnly declared and determined in the former case and thus precludes the Judges of the subordinate Courts from changing what has been determined.”
In paragraph C- D. of the page 54 of the report, the Court stated that:-
“A precedent is an adjudged case or declaration of a higher Court considered as furnishing an example or authority for an identical or similar case aHerwarc1sadsing or a similar question of Jaw. Thus prior cases which are close in facts or legal principles to the case under consideration are called precedents.”
And on the application of the doctrine of stare decisis the Supreme Court declared as follows:
“A Court lower in the Judicial hierarchy is bound by the ration decidendi of a higher Court but not necessarily by the Obiter dictum. The rule is designed to ensure uniformity in decision making; foster stability and enhance the development of a consistent and coherent body of law as well as assure equality of treatment for litigants similarly situated.”
By the principles of the doctrine of precedents or doctrine of stare decisis, the learned trial Judge is bound to apply all the cases cited before him in appropriate instances where applicable and if he fail to do so for no justifiable reason as in the instant case it amount to Judicial Indiscipline which should not be taken kindly by the operators of the legal system as this unruly conduct portend to cause havoc and destabilize the entire legal system; accordingly issue No. 2 is resolved against the Respondents and in favour of the Appellants.
Issue No.3.
Whether the learned trial, Judge, was right in ruling that he could assume Jurisdiction to entertain the Plaintiffs’ Suit based on Section 19 and 20 of oil pipelines Act Cap.338 Jaws of the Federation.
While treating Issue No. 1, Issue No. 3 was equally treated in the sense that while applying the authority of SPDC vs. ISAIAH (Supra) to hold that Section 7(5) of Decree No, 60, of 199.Lousted the Jurisdiction on. State High Court and Magistrate Court under Section,20 of oil and pipelines Act Cap 338 Laws of the Federation 1990. 1It is clear by this Supreme, Court authority that the learned trial Judge cannot assume. Jurisdiction to entertain the plaintiffs. Suit based on Section 19 and 20 of the oil pipelines Act Cap 338 laws of the Federation, therefore Issue No.3. is resolved against the Respondents in favour of the Appellant.
In the result this appeal has merit and it is accordingly allowed. The Ruling of the Imo State High Court sitting at Oguta presided over by S.N. Nwachukwu, delivered on 24th July, 2001 is hereby set aside and Suit No. HOG/54/2000 is struck out N30,000.00 costs to the Appellant against the Respondents.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have had the privilege of reading in draft the comprehensive and erudite judgment just delivered by my learned brother, ABUBAKAR JEGA ABDUL-KADIR, JCA. I am in complete agreement with his reasoning and conclusion that this appeal has merit and should be allowed. I will add a few words of my own for emphasis.
This is an appeal against the Ruling of the Imo State High Court sitting at Oguta presided over by His Lordship, Hon. Justice S. C. Nwachukwu delivered on 24th day of July, 2001 dismissing Appellant’s motion challenging the jurisdiction of the Court to entertain Respondents’ suit. The Appellant was the defendant at the lower court and the Respondents were the Plaintiffs.
It is essential for the understanding of this appeal to set out the full claims of the Respondents at the lower court. The writ of summons states as follows:
“The sum of One hundred Million Naira (N1,000,000.00) as fair, reasonable and adequate compensation under/or damages due and payable to the Plaintiffs by the Defendant for damages, deprivation and or injuries to the Plaintiff’s right in respect of (Plaintiffs) pieces or parcel of land which situate and lying at Obihi in Ohaji/Egbema Local Government Area of Imo Staet resulting in loss of income from Farming, Palm produce, Lumbering, Animal Husbandry, hunting etc.”
It was filed on 2/10/2000. The full statement of claim is set out below:
1. The Plaintiffs’ bring this suit for themselves and on behalf of the people of Obitti Community in Ohaji/Egbema Local Government Area of Imo State.
2. The Defendant is a private oil company incorporated in Nigeria carrying out commercial activities for profit with Head Office at 21/22 Marina Lagos and Eastern Divisional Office at Rumuobialmni Industrial Area Port Harcourt Rivers State of Nigeria.
3. The Plaintiffs are the beneficial owners from time immemorial and for the purpose of the Land Use Act entitled to the Customary Right of Occupancy over all that dry land, Farm land and those lands upon which the Defendant established its Ogwuala 1 and 2 Oil Wells, Access Road thereto, Helipat and Camp Site, measuring approximately 15.73 hectares in Area and it is more particularly shown and delineated in a survey plan prepared by a licenced surveyor. This survey plan shall be founded upon at the trial.
4. The Defendant under a temporary occupancy for a term of 20 years, entered upon the Plaintiffs/ lands described in paragraph 3 above in 1990 paying therefore a one time token sum for the loss of surface right without paying for the loss of use of the land for the said 20 years tenure which commenced from the 1st day of January, 1990.
5. The Plaintiffs shall contend that the Defendant surveyed the land described in paragraph 3 above in 1990 when it took possession of same. The Defendant is hereby put on notice to produce their Pre-Construction .Survey Plan as well as the trial.
6. The Plaintiffs’ land described in paragraph 3 above is used for all season farming, lumbering, hunting, palm produce etc.
7. The Plaintiffs said dry land comprises a gentle well drained slope from the Community Centre into the low lying flood plains.
8. In order to access its oil wells, the Defendant caused to be deposited along an access road they constructed, a high column of lateritic material, earth filling compacted and blinded off with bitumen which provided an all season access road to their oil installations.
9. The access road was raised so high above the pre-construction ground level thereby constituting an artificial, dam across the Plaintiffs’, flood plain. The water is trapped on either side of the access road thus perpetually flooding the Plaintiffs’ farm land and destroying their economic crops and trees in the process.
10. The Plaintiffs shall at the trial contend that the Defendant’s occupation of the lands described in paragraph 3 above have been depriving the Plaintiffs of their hunting, farming, lumbering, animal husbandry rights etc. which is their occupation and livelihood.
11. The Plaintiffs shall also contend that the Defendant’s activities have rendered, the said land described in paragraph 3 above and the adjoining lands impossible of gainful use by the Plaintiffs and their kinsfolk. The Plaintiffs will show further that the Defendant in establishing their Ogwuala 1 and 2 Oil Wells as, well as the construction of its access roads used heavy duty equipment and machinery including monster trucks, tractors, excavators, wielding machines in the process. This scared off huntable wild lives.
12. The Plaintiffs shall contend at the trial that the Defendant took possession of the said land described in paragraph 3 above by misrepresentation to them that Defendant’s company was a federally owned concern, by Land Use Decree all land belong to Federal Government and their exercise is in the national interest.
PARTICULARS OF MISREPRESENTATION
a) That mineral oil is a federally owned concerned.
b) That by Land Use Decree, all land belongs to the Federal Government (the Plaintiffs’ shall rely and found on the Defendant’s letter reference No. PAGE/83.31/7310 of 6/7/00.
c) That the Defendant’s exercise is in the National and Public Interest.
d) That the exercise of the Defendant is not actuated by purely commercial profit making hence the Defendant never offered any compensation for the loss of use of the said land and for havoc caused on the said land to the Plaintiffs.
13. It was only recently that the Plaintiffs’ children who had the opportunity of Western Education informed the Plaintiffs’ that, the Defendant is a Private Limited Company carrying out purely commercial activities for its profit motives and that the Land Used Decree did not divest them of their use of the land which information aggrieved the Plaintiffs.
14. The Plaintiffs aver that the Defendant’s 20 years tenancy obtained by misrepresentation which expires in the 2010 had not been paid for till date.
15. The Plaintiffs shall at the trial show that the Defendant (and other oil companies) pay more than N2,000,000.00 per hectare for a tenure of 20 years for similar lands the Defendant is occupying.
a) In 1996, the Defendant paid Nigeria Railway Corporation the sum of N823,240.00 in,respect of 0.3742 hectares of dry land for loss of use of same.
b) In 1996, the Defendant also paid the Ministry of Works Aba, Abia State the sum of N231,880.00 in respect of 0.1054 hectares of dry land at Aba belonging to the Ministry of Works Abia State for the loss of use of same. The Plaintiffs shall at the trial found and rely upon the Defendant’s form CI of 26/6/96 captioned Claims for and under: Mineral Oil and Pipeline Act, Abia State of Nigeria in respect of the above mentioned payments. The Defendant is hereby given notice to produce the original copies of the said documents.
16. The Plaintiffs shall at the trial further lead evidence to show the following:
a) For Pipeline acquisition in the 24 Cawthorne Channel/BT. Leopline in Bonny, the Defendant paid the sum of N1,000,000.00 per hectare. The Plaintiffs shall at the trial found and rely upon the copy of the Defendant’s compensation receipt No. 126802 of 24/12/96. The Defendant is hereby given notice to produce the original copy of same.
b) In 1998, the Defendant agreed with the then Landlords spanning from Bonny through Andom to Akwa Ibom State through which their Eastern Coastal Trunldine Pipeline passed for a renewal of their expired 1977 lease of the pipeline, Right of way for the sum of N500,000.00 per hectare of swamp coastal land. The Plaintiffs shall at the trial found and rely upon the copy of the Defendant’s compensation receipt No. 42737 of 9th November, 1999 and its. annexure. The Defendant is hereby given notice to produce the original copy of same.
c) In 1996, TSKJ Ltd., a Consortium of French Tecnimont Italian Snamprogette, America Kellog and Japanese JGL Corporation who built the NLNG in Bonny leased a parcel of land measuring 180 metres by 1280 metres in Bonny for 8 years at US$1,000,000.00 more than N100,000,000.00. The Plaintiffs shall at the trial found and rely upon the copy of the lease agreement all effort made to secure the original copy having abortive.
17. WHEREFORE the Plaintiffs claim against the Defendant the sum of One Hundred Million Naira (N100,000,000.00) as fair, reasonable and adequate compensation under/or damages due and payable to the Plaintiffs by the Defendant for damages, depriving and/or injuries to the Plaintiffs’ rights in respect of their (Plaintiffs) pieces or parcels of land which situate and lying at Obitti in Ohaji/Egbema Local Government Area of Imo State resulting in loss of income from farming, palm produce, lumbering, animal husbandry, hunting, etc.
PARTICULARS OF DAMAGES
(a) N39,325,000.00 being compensation for loss of use of the land described in paragraph 3 of the Statement of Claim measuring 15.73 hectares at N2,500,000.00 per hectare per twenty years.
(b) N60,675,000.00 being general damages for loss of economic crops and trees huntable wild lives etc, as a result of perpetual flooding of Plaintiffs’ lauds, and for inconveniences, suffering and deprivation.
Or in the Alternative to (a) above.
(c) An order of court that an Independent Registered Estate Valuers acceptable to both parties be retain to put a proper, fair and adequate capital value for 20 years loss of use of the said land described in paragraphs 3 of this Statement of Claim from 1990 till 2010.
The Appellant filed a notice of preliminary objection on the following grounds:
“(a) This court lacks jurisdiction to entertain and determine tile suit having regard to the Plaintiffs’ averments and complaints as contained, in the Statement of Claim.
(b)The suit is an abuse of the process of this Honourable Court.”
In his ruling at pages 23-29 of the records of proceedings the learned trial Judge dismissed the Notice of Preliminary Objection.
Dissatisfied with the decision of the trial court, the Appellant appealed to this court vide its Notice of Appeal dated 1st August, 2001 containing three grounds of appeal.
Learned counsel for the Appellant formulated three Issues for determination which are stated as follows:
(i) Was the learned trial Judge right in declaring that certain Sections of Decrees 60 and 107 now deemed to be Acts of National Assembly are inconsistent with Section 251(1) of the 1999 Constitution and accordingly, void and of no effect.
(ii) Was the learned trial Judge right in refusing to follow the interpretations already given to Decrees 60 of 1991 and 107 of 1993 by superior courts of record on the ground of inconsistency with Section 251(1) of the 1999 Constitution contrary to and in violation of age-long principle of stare decisis.
(iii) Whether the learned trial Judge was right in ruling that he could assume jurisdiction to entertain the Plaintiffs’ Suit based on Sections 10, 19 and 20 of the Oil Pipelines Act Cap 338 LFN 1990.
In my humble view, the three issues pose the question of whether or not given the existing laws and in the circumstances of this case, the learned trial judge had the jurisdiction to hear the claim at the lower court.
Learned counsel for the Appellant submitted that the trial Judge was not right in holding that there was conflict between Decrees No. 60 of 1991 and 107 of 1993 on one hand and Section 251(1) of the 1999 Constitution and urged us to resolve the issue in favour of the Appellant. He argued that the wordings of the said Acts of the National Assembly stating the jurisdiction of the Federal High Court to entertain suits connected with, related or pertaining to oil mining, exploration, exploitation including oil fields, oil wells, geological survey and natural gas etc were not inconsistent with the provisions of S.251(1) of the 1999 Constitution.
Counsel for the Appellant submitted that it cannot be a valid argument to maintain that because certain expressions which are contained in the in Section 251(1) of the 1999, Constitution therefore the Decrees are in conflict with the Constitution. That the Constitution being a broad document is not expected to provide all the minute details of a statute. He cited DIRECTOR SSS v. AGBAKOBA (1993) 3 NWLR Pt. 595 Pg. 425; FAWEHINMI v. IGP (2002) 7 NWLR 606; P.D.P. v. IWE (2001) FWLR Pt. 31 Pg. 2735; ADEGOKE ADEWUMI & ANOR. V. THE ATTORNEY GENERAL OF EKITI STATE & ORS. (2002) FWLR Pt. 92 Pg. 1835; NOHG v. AJOGWU (2000) Pt. 682 Pg. 626.
Appellant’s counsel submitted that Decrees No. 60 of 1991, No. 16 of 1992 and 107 of 1993 being existing laws under Section 315(1) of the 1999 Constitution have remained in force since the coming into effect of the 1999 Constitution and have been deemed to be laws made by the National Assembly.
Counsel for the Appellant also argued that Item 68 of the Exclusive Legislative List in Part 1 of the Second Schedule to the 1999 Constitution gives the National Assembly exclusive jurisdiction to legislate on any matter incidental or supplementary to any matter mentioned elsewhere in the list.
Counsel for the Appellant therefore submitted that oil and gas operation and exploration matters pertaining to or touching on land, oil fields, land acquisition, leases, rents etc are matters pertaining to or touching on or incidental or supplementary to oil mining and exploration mentioned in the exclusive list. Thus, since the National Assembly has exclusive jurisdiction to legislate upon such matters only Federal High Court can exercise jurisdiction to entertain such matters.
In reply, learned counsel for the Respondents submitted that the learned trial Judge was right to hold that certain Sections of Decrees No. 60 of 1991 and 107 of 1993 were in conflict with Section 251(1) (n) of the 1999 Constitution and thereof void to the extent of their inconsistency. That it is trite law that the substantive law at the time the cause of action arose governs the case while the procedural law at the time of hearing will be applicable to the case. He cited CGG NIG. LTD. v. ASAGBARA (2002) FWLR Pt. 17 Pg.110; MOBIL PROD. NIG. UNLTD. v. LASEPA (2002) 18 NWLR Pt. 798 Pg. 1 at 12.
Learned counsel for the Respondents submitted that the jurisdiction provided by Section 7 of Decree No. 60 of 1991 and Section 230 of Decree No. 107 of 1993 are the same as the jurisdiction provided by Section 251(1)(n) of the 1999 Constitution. He referred to the provisions of the said Acts and words of expansion which is not allowed. He cited ACHEBE v. NWOSU (2003) 7 NWLR Pt. 818 Pg. 103;, NERDC v. GONZE NIG. LTD. (2000) 9 NWLR Pt. 673 Pg. 532.
Learned counsel for the Respondents argued and opposed the submission of the Appellant in paragraph 5.11 and paragraph 5.12 of the Appellant’s brief. He argued that the National Assembly cannot enact an Act or be deemed to have enacted legislation which has the effect of adding or subtracting from what the 1999 Constitution provided. He cited MINISTER FOR WORKS & HOUSING v. THOMAS NIG. LTD. (2002) 2 NWLR Pt. 752 Pg. 750; MUSA v. INEC (2002) 11 NWLR Pt.778 Pg. 223; ABIA STATE & 35 ORS. v. A.G. FEDERATION (2002) 6 NWLR Pt. 763 Pg. 264.
Learned counsel for the Respondents contended that inputting the words “arising from”, “connected with” and “pertaining to” into the provision of Section 251(1)(n) of the 1999 Constitution will amount to adding and/or altering the jurisdiction of the Federal High Court as provided by the 1999 Constitution and this will amount to it great violation of the clear and unambiguous language of the Constitution. He relied on UMOH v. NKAN (2001) NWLR. Pt. 701 Pg. 512. SHELL PETROLEUM ING. LTD. v. AMARO (2000) 10 NWLR (Pt.675) Pg. 248. He argued that assuming without conceding that the provision of Section 251(1) (n) of the 1999 Constitution is not clear, then the court will look at the intention of the legislature. He cited NIGERIAN POSTAL SERVICES v. ADEPOJU (2003) FWLR. Pt. 147 Pg: 1060; DANTSOHO v. MOHAMMED (2003) 6 NWLR Pt. 817 Pg. 457. Be argued that the removal of these words showed that the framers of the Constitution clearly demonstrated an intention not to maintain the expanded jurisdiction of the Federal High Court. He argued that the legislature does not make a mistake. He cited ENYINWAYA v. COMMISSIONER OF POLICE (1985) 6 NCLR, 464; ALAMIEYESEIGHA v. TEIWA (2002) FWLR Pt. 96 Pg. 552; ACHEBE v. NWOSU (2003) 7 NWLR Pt. 818 Pg. 103; NERDC v. GONZE NIG. LTD. (2000) 9 NWLR Pt. 673 Pg. 532.
Any interpretation of S.251(1)(n) of the 1999 Constitution must not be separated from the purpose for the establishment of the Federal High Court. He cited SHITTU v. NIGERIAN AGRIC & CO-OPERATIVE BANK LTD. (2001) 10 NWLR Pt. 721 Pg. 298; TOGUN v. OPUTA (No 2) (2001) 16 NWLR Pt. 740 Pg. 597; BRONIK MOTORS LTD. & ANOR. v. WEMA BANK LTD. (1983) ALL NLR 272.
Further, counsel for the Respondents submitted that when the Constitution has made provision for a particular act or has provided for a particular jurisdiction, any legislation which attempts to add, alter, duplicate or even repeat what the Constitution had already provided will remain invalid. He cited MUSA v. INEC (2002) 11 NWLR Pt.778 Pg. 223.
Counsel argued that previous decisions based on Acts of the National Assembly made before the 1999 Constitution are irrelevant to this case, and the doctrine of stare decisis is applicable. He cited JUSTICE PATY v. INEC (2003) 52 NRW 84; BUHARI v. OBASANJO (No.3) (2004) 1 WRN Pt.1 Pg. 5.
As I said earlier, this appeal turns on the interpretation of S.251(1)(n) of the 1999 Constitution. Succinctly put, the view of the Appellant is that S.251(1)(n) conceives of the inclusion of similar legislation to widen the scope of the jurisdiction of the Federal High Court. The opinion of learned Respondent’s counsel on the other hand is that since the cause of action arose after the promulgation of the 1999 Constitution, no other legislation can validly be applied to widen the scope of or the express provisions of the Constitution as set down in S.251(1)(n). Let us examine S.251(1)(n) of the 1999 Constitution. It is set out below:
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such others 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 exclusion of any other court in civil causes and matters (n) Mines and Minerals (including oil fields, oil mining, geological surveys and natural gas.).”
Section 7(1) of the Federal High Court Amendment Decree No. 60 of 1991 and S.230(1) of Decree No. 107 of 1993 state respectively as follows:-
“S.7(1) The court shall, to the exclusion of any other court, have original jurisdiction to try civil causes and matters connected with and pertaining to:
(p) Mines and Minerals including oil fields, oil mining and geological surveys and natural gas.
S.230(1) of Decree No. 107 of 1993:-
“Notwithstanding anything to the contrary in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of National Assembly, or a Decree, the Federal High Court shall be and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising:-
(o) Mines and Minerals (including oil fields, oil mining geological surveys and natural gas.
The learned trial Judge to struck down S.7(1) of the Federal High Court Amendment Decree No. 60 of 1991 wherein the words “connected with” and “pertaining to” were used in relation to the jurisdiction of the Federal High Court in respect of “mines and minerals, including oil fields, mining and geological surveys and natural gas.” He also struck down S.230(1) of Decree No. 107 of 1993 where the words, “and matters arising from” were used in relation to the jurisdiction of the Federal High Court in matters “mines and minerals including oil field, oil mining, geological surveys and natural gas.” He held that these legislations by expanding the provisions of the 1999 Constitution were ultra vires the Constitution.
The learned trial Judge held that there was a deliberate omission of these words and that being words used in an ordinary legislation not contained in the Constitution were ultra vires the Constitution. His Lordship struck down those parts of Decree No. 60 of 1991 and Decree No. 107 of 1993 as being inconsistent with S.251(1) (n) of the 1999 Constitution.
We are all agreed that these provisions are existing Acts of the National Assembly by virtue of S.315(1) of the 1999 Constitution. The question is whether as argued by Respondents’ counsel they are ultra vires the 1999 Constitution because these Acts cannot at the same time contain concurrent provisions of the Constitution. MUSA v. INEC cited supra by counsel cannot apply in this case. That case dealt with the powers of INEC to regulate freedom of association through political parties outside the guidelines stipulated by Sections 221-229 of the 1999 Constitution.
The question posed by this case is very important because all the decisions cited by counsel on both sides were based on causes of action which arose before the coming into effect of the 1999 Constitution. Even SPDCN v. GOODLUCK (2008) 14 NWLR Pt. 1107 Pg. 294 was based on a writ filed in 1998.
Do the words “pertaining to” contained in S.7(1) of the Federal High Court amendment Decree No. 60 of 1991 or the words “arising” in S.230(1) of Decree No. 107 of 1993 actually enlarge the provisions of the 1999 Constitution?
Kutigi JSC (as he then was) in A.G. ABIA v. A.G. FEDERATION (2002) 6 NWLR Pt. 763 Pg. 264 explaining the doctrine of covering the field held at page 369 as follows in setting parameters for validating the provisions of the Electoral Act 2001;
“where the provision in the Act is within the legislative powers of the National Assembly but the Constitution is found to have already made the same or similar provision, then the new provision will be regarded as invalid for duplication and or inconsistency and therefore inoperative. The same fate will befall any provision of the Act which seeks to enlarge, curtail or alter any existing provision of the Constitution. The provision or provisions will be treated as unconstitutional and therefore null and void.”
A close examination of the two Acts will show that even though they appear to be duplication of S.251 of the Constitution, they are more explanatory of the jurisdiction of the Federal High Court. S.251 itself contains provisions which admit of additional jurisdiction than that specified by the Constitution. Thus the provisions contained in these Act of the National Assembly cannot be interpreted as contradictory to the provisions of the Constitution rather they complement them and give meaning to them. See Kalgo JSC 1 A.G. ABIA v. A.G. FEDERATION supra quoting with approval Sir. Udo Udoma JSC in NAFIU RABIU v. THE STATE (1980) 8-9 SC 130 at Pg. 148 – 149 where His Lordship said:
…that the function of the Constitution is to establish a framework and principle of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution. My Lords, it is my view that the approach of this court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat. I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”
See also EHUWA v. OSIEC (2006) 18 NWLR Pt..1012 Pg. 544.
The word “notwithstanding” which begins S.25(1) which begins S.251(1) of the 1999 Constitution has been judicially defined in NNPC v. LUTIN INVESTMENTS (2006) 1 SCNJ 131; (2006) 2 NWLR Pt. 965 Pg. 506 at Pg. 529 the Supreme Court defined the word to mean;
“a term of exclusion in legal drafting. It simply means in spite of or irrespective of or disregarding.”
In NDIC v. OKEM ENT. LTD. (2004) 10 NWLR Pt. 880 Pg. 107 at Pg. 182-183, the Supreme Court considered S.251(1) of the 1999 Constitution conferring jurisdiction on the Federal High Court and S.272(1) of the Constitution which confers jurisdiction on the State High Court Uwaifo JSC made a lucid explanation and interpretation of the status of each court in the jurisdiction tussle between the State High Court and Federal High Court. His Lordship opined as follows:
As has been observed, section 251(1) of the Constitution begins with “Notwithstanding anything to the contrary contained in this Constitution” while section 272(1) is specifically made “subject to the provisions of section 251.” When the term “notwithstanding” is used in a section of a statute, it is meant to exclude an impinging or impending effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself; It follows that, as used in section 251(1) of the 1999 Constitution, no provision of that Constitution shall be capable of undermining ‘the said section. In regard to section 272 of the Constitution, section 251 is directly relevant in that the former is made subject to it. The expression “subject to” means liable, subordinate, subservient, or inferior to; governed or affected by; provided that or provided; answerable for: see Black’s Law Dictionary, 6th edition, page 1425.
It must therefore be understood that “subject to” introduces a condition, a restriction, a limitation, a proviso; See OKI v. OKE (1994) 1 ALL NLR Pt.1 Pg. 442 at 450. it subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended not to be diminished by the subject section: See LSDPC v. FOREIGN FINANCE CORPORATION (1987) 1 NWLR Pt. 50 Pg. 413 at 461; AGUA LTD v. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR Pt. 91 Pg. 622 at 655. The expression generally implies that what the section is subject to shall govern; control and prevail over what follows in that subject section of the enactment, so that it renders the provision to which it is subject to conditional upon compliance with or adherence to what is prescribed in the provision referred to: See TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR Pt. 117 Pg. 517 at 542. 565, 580; IDEHEN v. IDEHEN (1991) 6 NWLR Pt. 198 Pg. 382 at 148; LABIYI v. ANRETIOLA (1992) 8 NWLR Pt. 258 Pg. 139 at 163-164.
The phrase “in addition to” is defined in the Oxford Advanced Learned Dictionary 6th edition to mean a phrase used when you want to mention a thing after something else.
Thus clearly S.272 is made subject to S.251(1) and the jurisdiction of the State High Court is made subject to that of the Federal High Court in relation to matters provided under S.2S1(l) of the Constitution.
It is also clear from the above that the 1999 Constitution envisaged and anticipated a situation in which other Acts of the National Assembly may widen the jurisdiction expressly conferred on the Federal High Court by S.251.
One of the canons of interpretation of statutes is the purposive approach, While the purposive approach is adopted in the interpretation of statutes, its application gives rise to the need to consider the history and other extraneous matters and events that reveal the purpose of and the intention of the legislation. See A.G. LAGOS v. A.G. FEDERATION & 35 ORS. (2003) 6 SCNJ 1; FED. REPUBLIC OF NIGERIA v. ALH. MIKA ANACHIE & ORS. (2004) 1 SCNJ 1.
This antecedent of the Federal High Court was also given by Obadina JCA in SHITTU v. NIG. AGRIC & COOP BANK LTD. (2001) 10 NWLR Pt. 721 Pg. 298 at Pg. 315-318 where His Lordship emphasized that the history of the constitutional or statutory provision or decisions antecedent thereto must be taken into consideration in order to ensure that violence is not done to the development of the laws. See also TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR Pt. 117 Pg. 517.
The superior courts have always in the interpretation of constitutional provisions adopted a liberal approach and in so doing given the provisions an interpretation that accords with the intention of the framers of the document. See IBRAHIM v. BARDE (1996) 9 NWLR Pt. 474 Pt. 513 at 577; AHMED v. KASSIM (1958) SCNLR 28; OJOKOLOBO v. ALAMU (1987) 3 NWLR Pt. 61 Pg. 377 at 402.
Let us examine S.251 of the Constitution alone, devoid of any attempt to use previous legislation to aid us in our quest to determine the intention of the framers of the Constitution.
In employing the purposive rule of interpretation, the Judge must interpret the Constitution as a whole and no part of it should be construed in isolation as such a construction can lead to absurdity.
Thus a holistic approach best serves the purposive rule of interpretation. See OYENIRAN v. EGBETOLA (1997) 5 NWLR Pt. 504; Pg. 122; UGWU v. ARARUME (2007) 12 NWLR Pt. 1048 Pg. 367; A.G. LAGOS v. A.G. FEDERATION (2004) 18 NWLR Pt .. 904 Pg. 1; DIMEGWU v. OGUNEWE (2008) 17 NWLR Pt. 1116 Pg. 358 at Pg. 384; OJUKWU v. OBASANJO (2004) 7 SCNJ 33.
The kernel of the argument of the learned Respondents’ counsel is that in our interpretation of S.251 (1)(n) we should adopt the maxim expressio unius est exclusio alterius (or inclusio unius est exclusio alterius or enumeratio unius exclusio alterius) meaning. what is not expressed is specifically excluded and to find that the words “relating to”, “Connected with”, “pertaining to”, “arising from” being expressly included in S.251 (1)(a)(b)(c)(d)(e)(f)(g) their exclusion in paragraphs (h)(i)(j)(k)(l)(m)(n)(o)(p)(q)(r)(s) means that matters relating, pertaining to or connected with these latter paragraphs are outside the jurisdiction of the Federal High Court, while the substantive matters for example mines and oil mining and oil exploration per se are within the jurisdiction of the Federal High Court.
That in my view would be an absurd interpretation of S.251(1)(n) Constitution. A more holistic and liberal interpretation which automatically incorporates the spirit of these expansive words as included in the previous paragraphs of the same section would be more in accord with the intention of the legislature. That is the only interpretation that cannot be in conflict with the spirit and letters of the Constitution.
In FELIX ONUORAH v. KADUNA REFINING & PETROLEUM CO. LTD. (2005) 2 SCNJ 170; UNITED BANK FOR AFRICA PLC. v. BTL INDUSTRIES (2006) 12 SCNJ 217 and OBI v. INEC (2007) 11 NWLR Pt. 1048 Pg. 565 the Supreme Court held that it is the claim of the Plaintiff that confers jurisdiction on a court. That is to say it is the subject matter of litigation that confers jurisdiction on a court. In OBI v. INEC supra the Supreme Court held that jurisdiction ought to be conferred on a court in view clear and unambiguous language not needing a search light to discover.
A careful reading of the Respondents’ statement of claim which I deliberately set out in full at the beginning of this judgment shows that learned counsel for the Respondents at the lower court cleverly avoided any allegation that any mining or oil exploration was conducted on the Respondents’ land but claimed compensation for torts consequential to the acts of the Appellant. They also claimed misrepresentation of the terms of a lease in an attempt to disguise the claim as one of breach of lease contract. Paragraph 8, 9 10 and 11 which describe how the alleged torts were committed, show clearly that the tortuous acts cannot be divorced from the main purpose of oil exploration and mining which brought the Appellant to the land.
It is conceded that, the claims of the Respondents before the lower court were ingeniously couched in very clever terms to disguise the fact that the claims were related to the mining or oil explorations of the Appellant. We are not hoodwinked by that subterfuge. It cannot work. It stands to reason that the lease agreement and the alleged torts committed by the Appellant on the land of the Respondents were done in prosecution of their business of setting up their oil fields and/or mining oil in such oil fields. The Respondents cannot hide behind the clever wording of their claims to wrest jurisdiction from the Federal High Court.
With the greatest respect to the learned trial Judge, assuming jurisdiction in this matter against the express provisions of the Constitution was not good enough. The lead judgment has dealt widely with the doctrine of stare decisis and has chastised the trial court adequately. I will say no more.
I agree in toto that this appeal is meritorious. I abide by all the consequential orders in the lead judgment.
MOJEED ADEKUNLE OWOADE, J.C.A. (Dissenting): I had a preview of the judgment just delivered by my learned brother Jega, JCA. Unfortunately, as much as I try to, I am not in a position to agree with the reasoning and the conclusion in the lead judgment. My reasons are stated hereunder.
The respondents as plaintiffs in this case took out a writ of summons claiming against the defendant/appellant in its paragraph 17 as follows:
17. Wherefore the plaintiffs claim against the defendant the sum of One hundred Million Naira (N100,000,000) as fair, reasonable and adequate compensation and/or damages due and payable to the plaintiffs by the defendants for damages, deprivation and/or injuries to the plaintiffs’ rights in respects of their (plaintiffs) pieces or parcels of land which situate and lying at Obitti in Ohaji/Egbema Local Government Area of Imo State resulting in loss of income from farming, palm produce, lumbering, animal husbandry, hunting etc.
PARTICULARS OF DAMAGES
(a) N39,325,000.00 being compensation for loss of use of the land described in paragraph 3 of this statement of claim measuring 15.73 hectares at N2,500,000.00 per hectare per 20 years.
(b) N50,575,000.00 being general damages for loss of economic crops and trees, huntable wild lives, etc. as a result of perpetual flooding of plaintiffs’ lands and for inconveniences suffering and deprivation.
OR IN THE ALTERNATIVE TO (a) ABOVE
(c) An order of court that an independent Registered Estate Valuer acceptable by both parties be retained to put a proper and adequate capital value for the 20 years loss of the use of the said land described in paragraph 2 of this statement of claim from 1990 till 2010.
At the lower court, the defendant/appellant raised an objection to the jurisdiction of the State High Court on the premise that the respondents’ suit pertains to or is related to Mines, Minerals (including oil wells and oil fields). This claim was denied by the plaintiff/respondent who argued in turn that the suit is for compensation due to the negligence of the appellant in the use of their land.
The trial State High Court assumed jurisdiction and held:
1. The Constitution in S. 251(1)(n) set out the jurisdiction of the Federal High Court to the exclusion of other courts. This Court is satisfied that the jurisdiction of the High Court to hear and determine claims of compensation as provided by SS19 and 20 of Oil Pipelines Act Cap. 338 Laws of the Federal 1990 cannot be construed to have been ousted by S.251(1)(n) of the 1999 Constitution if the constitution had intended to oust this jurisdiction, it should clearly state so; it is trite that to oust the jurisdiction of a court to entertain matter, which the court had earlier had jurisdiction to entertain the provision would have to be construed strictly.
2. However, under S.251 of the Constitution, the National Assembly, is empowered to confer additional jurisdiction to the Federal High Court when it pleases. This is not to say, that the inconsistent words of Decrees 50 of 1999 and 107 of 1993 can be construed as part of the 1999 constitution. For this to be so, the National Assembly is required to make law to that effect.
3. That to the extent that Decree 60 of 1991 and Decree No. 107 of 1993, which are existing laws under Section 315 of the Constitution of 1999, purport to oust the jurisdiction of the State High Court in hearing and determining civil matters and causes arising from or connected with mining etc, is void and of no effect.
In determining this appeal, the parties are agreed on two legal issues. The first is that the jurisdiction of a court is determined by the claims of the plaintiff, the second is that, Decrees No. 60 of 1991 and 107 of 1993 qualify as existing laws under the provision of section 315 of the 1999 Constitution.
My first line of dissent from the lead judgment in this case is my belief that there is nothing in the claim of the Plaintiffs/Respondents which brings it within the purview of the provision of Section 251(1) (n) of the 1999 Constitution.
My learned brother who delivered the lead judgment referred more specially to paragraphs 3, 8, 10, and 11 of the statement of claim as facts showing that the complaint of the plaintiffs was based on incidences of oil exploration and exploitation said to be carried out on their piece or parcel of land by the Defendant/Appellant” for ease of reference, the said paragraphs are reproduced below:
“3. The plaintiffs are the beneficial owners from time immemorial and for the purpose of the land use Act entitled to the Customary Right of Occupancy over all that dry land, farmland as those lands upon which the defendant established its Ogwuala 1 and 2 oil wells, Access Road thereto, Helipart and Camp Site measuring approximately 15.73 hectares in area and it is more particularly shown and delineated in a survey plan prepared by a licensed surveyor and this survey plan shall be founded upon at the trial.
8. In other to access its oil wells, the defendant caused to be deposited along an access road they constructed a high column of laterite material, earth filling compacted and blinded off with bitumen which provided an all season access road to their oil installations.
10. The Plaintiffs shall at the trial contend that the defendant’s occupation of the lands described in paragraph 3 above have been depriving the plaintiffs of their hunting, farming, lumbering, animal husbandry right etc. which is their occupation and livelihood.
11. The Plaintiffs shall also contend that the defendant’s activities have rendered the said’ land described in paragraph 3 above and the adjoining lands impossible of gainful use by the plaintiffs and their kinsfolk. The plaintiffs will show further that the defendant in establishing their Ogwuala 1 and 2 oil wells as well as the construction of its access roads, used heavy duty equipment and machinery including monster trucks tractors, excavators, wielding machines in the process. This scared off huntable wild lives.
With utmost respect to my learned brothers on the side of the lead judgment, think the cause of action here concerns compensation for destruction of land, this in spite of the mention of the defendants’ Ogwuala 1 and 2 oil wells in the Plaintiffs/Respondents’ Statement of Claim.
Section 251(1)(n) of the 1999 Constitution deals with the jurisdiction of the Federal High Court on “Mines and Minerals (including oil fields, oil mining, geological surveys and natural gas”) but a holistic reading of the paragraphs of the statement of claim would only support a claim on “compensation for the loss of the use of the land of the plaintiffs and for the loss of economic crops, trees and huntable wild lives etc.
The fact that the defendant/appellant in this case is an oil prospecting company on the land does not change the claim of the plaintiff from that of compensation for damages to land to that of “mines and geological survey.”
The nearest analogy that one may recall here is the jurisdiction of the same Federal High Court under, Section 251(1)(d) of the 1999 Constitution which is (d) “connected’ with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bill of exchange, letters of credit, promissory notes and other fiscal measures: provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.” Under the above provision of Section 251(1) (d) ordinary cases involving banker customary relationship including dispute in respect of an overdraft, or the negligent payment dishonouring of a customer’s cheques and all banking transactions having nothing to do with the Federal Revenue are all outside the purview of the jurisdiction of the Federal High Court. See Jammal Street Structures Ltd. vs. ACB (1973) 1 All NLR (Pt.11) 208; Bronik Motors vs. WEMA Bank Ltd. (1983) 1 SCNLR 272.
So it is as I believe in the instant case that the provision at Section 251(1)(n) falling with “mines and minerals” (including oil fields, oil mining, geological surveys and natural gas) covers disputes that directly concern the items mentioned in section 251(1)(n) and cannot extend to a claim for damages and compensation for destruction of land as in this case.
Secondly, the lead judgment of my learned brother, Jega, JCA, agreed with the view of the Appellant’s counsel in this case that because Decrees No. 60 of 1991 and No, 107 of 1993 are existing Laws under the provision of section 315 of the 1999 Constitution, the words “Arising from”, “connected with” and “pertaining to” that are found in Decrees Nos. 60 of 1991 and 107 of 1993 should be incorporated into the construction and interpretation of section 251(n) of the 1999 Constitution. My learned brother, Jega, JCA found further justification in this expansive view of the jurisdiction of the Federal High Court by the use of the words “Notwithstanding” and “in addition to” in the opening paragraphs of the provision of section 251(2) of the 1999 Constitution. That is:
“251(1) Notwithstanding 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 exclusion of any other court in civil causes and matters.
By this, the learned Presiding Justice reasoned that Decrees No. 60 of 1991 and 107 of 1993 are Acts of the National Assembly which further amplifies the jurisdiction pf the Federal High Court in Section 251(1)(n) of the 1999 Constitution. However, in relation to a previous legislation on an existing law the truth is that any portion of such law which either expands or limits the provision of section 251(1)(n) of the Constitution is indeed to that extent inconsistent with the Constitution and in agreement with the lower court in the instant case, is to that extent null and void.
In other words, the supposed expansive jurisdiction of the Federal High Court in Section 251(n) by the addition of the words “arising from” or “pertaining to” contained in the provision of Decrees No. 60 of 1991 and 107 of 1993 cannot stand. The jurisdiction of the Federal High Court in relation to mines and minerals is as contained in the provision of Section 251(1)(n) of the 1999 Constitution until such a time that the National Assembly confers additional jurisdiction which may expand the express wordings of the provision of Section 251(1)(n) of the 1999 Constitution. Where a provision of an Act of the National Assembly is within the legislation powers of the National Assembly but the constitution is found to have already made the same or similar provision then the provision of the Act of National Assembly will be regarded as invalid for duplication and/or inconsistency and therefore inoperative. Also, any provision of the Act which seeks to enlarge, curtail or alter any existing provision of the constitution will be treated as unconstitutional null and void. See A.G. Abia State vs. A.G. Federation (2002) 6 NWLR (Pt.763) 264; A.G. Ondo State vs. A.G. Federation (2002) 9 NWLR (Pt. 772) 222 and A.G. Lagos State vs. A.G. Federation (2003) 12 NWLR (Pt. 833) 1 at 119.
It is for these reasons, that I agree with the learned counsel for the respondents that incorporating the words “arising from”, “connected with” and “pertaining to” into the provision of Section 251(1)(n) of the 1999 Constitution will amount to adding and/or altering the jurisdiction of the Federal High Court as provided by the 1999 Constitution and this will amount to a violation of the clear and unambiguous words of the Constitution. See Umoh vs. Akan (2001) NWLR (Pt.701) 512 and Shell Petroleum Nig. Ltd. vs. Amaro (2000) 10 NWLR (Pt. 675) 248.
It must also be mentioned that while the draftsman of the 1999 Constitution deliberately retained the words “pertaining to”, “arising from” and “connected with” in section 251(1)(b), (c), (d) & (e) of the Constitution, the legislature carefully removed the words, “pertaining to”, “arising from” or “connected with” in section 251(1)(n) clearly showing and demonstrating that the legislature has no intention of maintaining and or continuing with the expanded jurisdiction of the Federal High Court as was the case under Decrees 60 of 1991 and 197 of 1993.
Finally, I must emphasize that the paramount guiding principle in the determination of this appeal is the claim before the trial court. The decision of the Supreme Court in Shell Petroleum Development Co. (Nig.) Ltd. vs. Isaiah (2001) 11 NWLR (Pt. 723) at 168 heavily relied on by the learned counsel for the appellant was indeed in the main concerned with the interpretation of the provision of section 7 of Decree No. 60 of 1991 which was said to have ousted the jurisdiction of the State High Courts and Magistrate Courts under sections 19 and 20 of Oil Pipelines Act, Cap. 338 Laws of the Federation of Nigeria, 1990 and did not deal with any expansive jurisdiction of the Federal High Court in section 251(1)(n) of the 1999 constitution by incorporating the words, “pertaining to”, “connected to” or “arising from” contained in either Decree No. 60 of 1991 or Decree No. 107 of 1993.
In the instant case, it is my view that the plaintiffs/respondents’ claim as endorsed on the statement of claim is for compensation for occupied land and damages for tort of negligence which has nothing to do with dispute involving mines and mineral (including oil field and geological survey) as provided in section 251(1) (n) of the 1999 Constitution which essentially relates to disputes founded on fiscal measures and revenue of the Federal Government. For example, the situation here would have been different if the respondents had asked the appellant to stop their operations in their community. In that case, the dispute would have shifted from that of compensation for destruction of land to a dispute on oil wells properly so called.
Accordingly, this appeal is dismissed. I affirm the jurisdiction of the High Court of Imo State to try the claim of plaintiffs/respondents.
I make no order as to costs.
Appearances
Mr. S. LaniyanFor Appellant
AND
Mr. B.U. Okafor holding the brief of L.C. UgorjFor Respondent
