COMPAGUIE GENERALE DE GEOPHYSIQUE (NIGERIA) LIMITED v. CHIEF GREENBANK G. E. IHEKA (2013)

COMPAGUIE GENERALE DE GEOPHYSIQUE (NIGERIA) LIMITED v. CHIEF GREENBANK G. E. IHEKA

(2013)LCN/6181(CA)

In The Court of Appeal of Nigeria

On Friday, the 10th day of May, 2013

CA/PH/256/99

JUSTICES:

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

Between

COMPAGUIE GENERALE DE GEOPHYSIQUE (NIG.) LTD – Appellant(s)

AND

CHIEF GREENBANK G. E. IHEKA – Respondent(s)

RATIO

THE JURISDICTION OF THE FEDERAL HIGH COURT ON MINES AND MINERALS

Under Section 251 (1) of the 1999 Constitution (as amended) the Federal High Court now possesses and exercises exclusive jurisdiction on mines and minerals including oil fields, oil mining, geological surveys and natural gas. The courts have been consistent in upholding this position. See THE SHELL PETROLEUM DEV. COMPANY OF NIGERIA LTD. V. CHIEF G. B. A. TIEBO VII & 4 ORS. (2005) 9 NWLR (Pt.931) 439; ALPHONSUS NKUMA vs. JOSEPH OTUMUYA ODILI (2006) 6 NWLR (Pt.977) 597 and BARRY vs. ERIC (1998) 8 NWLR (Pt.562) 404. PER OKORO, J.C.A

WHETHER OR NOT THE LAW APPLICABLE TO AN ACTION IS THE LAW EXISTING WHEN THE CAUSE OF ACTION AROSE

JOHN INYANG OKORO, J.C.A.: (Delivering the Leading Judgment): This is an appeal against an interlocutory ruling of the Imo State High Court sitting at Orlu in Suit No. HOU/11/99 delivered on 18th June, 1999 wherein the learned trial Judge refused the appellant’s application to strike out the aforementioned suit for want of jurisdiction, the said suit having arisen out of geological survey and other oil exploration/prospecting activities. A summary of the facts leading to this appeal would suffice.
The respondent (as plaintiff at the court below) filed an action at the Orlu High Court, Mgbidi on 7th May, 1999 against the appellant (as defendant) claiming the sum of N20,000,000.00) Twenty Million Naira) as damages for trespass to land in that the respondent’s crops, economic trees and house were damaged when the appellant entered the said land to prospect for crude oil during exploration.
Before the commencement of the hearing of the case, the appellant filed a Motion on Notice on the 13th May, 1999, praying the court below to strike out the suit for want of jurisdiction in that the cause of action arose out of seismic prospecting/oil exploration activities. The appellant relied on Decree Nos. 60 of 1991 and 107 of 1993 and also the case of MPIDI BARRY vs. OBI A. ERIC (1998) 8 NWLR (Pt.562) 404.
By a considered ruling delivered on 18th June, 1999, the learned trial judge refused the application on the ground that Decree No. 3 of 1999, being the only operational Decree on the question of the State High Court’s jurisdiction supersedes Decree No. 107 of 1993. The lower court then held that it has jurisdiction to entertain the matter.
Dissatisfied with the stance of the learned trial judge, the appellant filed Notice of Appeal on 9th July, 1999. The said Notice of Appeal has three grounds of appeal out of which the appellant has distilled three issues for the determination of this appeal.
On 18th February, 2013, when this appeal came up for hearing in this court, learned counsel for the appellant, D. O. Ezaga Esq. who also prepared the appellant’s brief adopted the said brief on behalf of the appellant. B. C. Iheka, Esq. learned counsel for the respondent also adopted the brief of the respondent. The three issues formulated by the appellant are as follows:
“(i) Whether Decree No. 60 of 1991 is a stale law.
(ii) Whether Decree No. 3 of 1999 supersedes Decree 107 of 1993.
(iii) Whether the State High Court has unlimited jurisdiction.”
It was however the view of the learned counsel for the respondent that only one issue is germane for the determination of this appeal. The said lone issue states:
“Whether in view of the premises of the issues of law raised and canvassed in relation to jurisdiction at the lower court, the learned trial judge was wrong in holding that it has jurisdiction to try the Suit No. HOU/11/99.”
Although, the learned counsel for the appellant distilled three issues for the determination of this appeal, he appears to have argued the three issues together in an argument spanning about two pages, though he did not expressly state so. Any wonder therefore that the learned counsel for the respondent distilled only one issue for the determination of this appeal? The truth is that the three issues distilled by the appellant can conveniently be grouped into one issue as couched by the respondent. Accordingly, I shall determine this appeal based on the sole issue as formulated by the learned counsel for the respondent.
In his argument, the learned counsel for the appellant submitted that by Section 1(b) of Decree No. 16 of 1992, Section 4 of Decree No. 60 of 1991 was amended to read thus:
“This Decree may be cited as the Federal High Court (Amendment) Decree, 1992 shall come into force on such a date as the President, Commander-in-Chief of the Armed Forces, after consultation with the Armed Forces Ruling Council, may by order published in the Gazette specify.”
That this provision was duly complied with when Decree No. 60 was restored and brought into force by the relevant Gazette i.e. the “Federal High Court (Amendment) Decree 1991, as amended (Date of Commencement) order, 1993.” According to learned counsel, Decree No. 60 of 1991 is an existing law and not a stale law. Learned counsel made it clear that Section 81 of Decree No. 3 of 1999 is in-pari materia with Section 236 (1) of 1979 Constitution and simply represents the general legal position. According to him, since Decree No. 107 of 1993 was not made subject to Decree No.3 of 1999, both provisions must be read side by side subject to legal interpretation from authorities which have held that the unlimited jurisdiction of the State High Court can be limited by a Decree, citing the case of Att. Gen. Lagos State vs. Dosunmu (1989) ALL NLR (reprint) 504 at 527. Learned counsel submitted that Sections 1 and 2 of Decree No. 107 of 1991 and 1, 2, and 230 of Decree No. 107 of 1993 did exactly just that. He argued further that Decree No.107 is an amendment of the Constitution and consequently a constitutional provision which ought to take precedent and supersede Decree No. 3 of 1999.
Learned counsel further argued that Decree No. 3 of 1999 is not even relevant in countering Decrees 60 of 1991 and No. 107 of 1993 since Decree No. 3 of 1999 addressed electoral and transitional matters as could be seen from its name, heading and explanatory note to wit “State Government (Basic Constitution and Transitional Provisions) Decree.” According to learned counsel, it is for the conduct of elections to the Houses of Assembly and the offices of Governors and Deputy Governors. Also, that it is for offences and penalties and the determination of questions relating to the elections.
Furthermore, it was contended that the issue of jurisdiction is a procedural issue and that the provision of Section 251 (1) (n) of the 1999 Constitution which is in pari materia with Decrees No. 60 of 1991 and No. 107 of 1993 should be taken into cognizance since it was existing at the time of the High Court Ruling and is the current law and ought to have been taken judicial notice by virtue of Section 74 of the Evidence Act (as amended). He refers to the case of SALATI vs. SHEHU (1986) ALL NLR (reprint) 53 at 75.
In conclusion, learned counsel for the appellant submitted that since Section 251 of the 1999 Constitution is in pari materia with Decrees No. 60 of 1991 and No. 107 of 1993, this court should adopt the judicial interpretation as enunciated in MPIDI BARRY vs. OBI A. ERIC (1998) 8 NWLR (Pt.562) 404.
In his response, the learned counsel for the respondent submitted that the lower court was right in holding that it has jurisdiction to try this case. According to him, although Decree No.3 of 1999 has the same provision in Section 8 as in Section 236 (1) of the 1979 Constitution, both do not have equal legal force as it is trite that under a military regime, the provision of a Decree is superior to that of the Constitution referring to the case of ATTORNEY GENERAL OF THE FEDERATION vs. GUARDIAN NEWSPAPERS LTD. (1999) 9 NWLR (Pt.618) 187. He opined that Section 18 of Decree No. 3 of 1999 is superior to and has a greater force of law than Section 236 (1) of the 1979 Constitution.
Learned counsel submitted further that with respect to Decree Nos. 60 of 1991, 107 of 1993 and 16 of 1992 they all preceded Decree No. 3 of 1999 and as such it is the latest in time. That the jurisdiction of the State High Court which was limited by the earlier Decrees was expanded by Section 18 of Decree No. 3 of 1999 in a very clear and unambiguous terms to restore the unlimited jurisdiction of the State High Court. It is his further submission that the promulgators and draftsmen of the said Section 18 of Decree No. 3 of 1999 ire presumed to be aware of the existence of the earlier Decrees but deliberately chose to employ the language of unlimited jurisdiction for the state High Court in the said Decree No. 3 of 1999. According to learned counsel, it was therefore not the intention of the law maker to subject the provision of Section 18 of Decree No. 3 of 1999 to any earlier existing Decree, otherwise it would have been so expressly provided.
In his further argument, learned counsel submitted that Decree No. 3 of 1999 did not merely address only electoral and transitional matters as argued by the appellant. Rather, the transitional provision of the Decree includes electoral matters and this is in addition to provisions of the Decree under which the unlimited constitutional jurisdiction of the State High Court was restored in Section 18 with the force and strength of a Decree.
Finally, learned counsel submitted that the appellant’s contention that the issue of jurisdiction being one of procedural law, it is the 1999 Constitution which was in force at the time the Ruling was delivered and in a current law that should be the applicable law at the hearing of this appeal is not tenable. That unlike procedural Rules of Court, issue of jurisdiction is very basic and fundamental for exercise of any judicial power, citing and relying on SANYAOLU vs. INEC (1999) 7 NWLR (Pt.612) 600. He also opined that the 1999 Constitution which the appellant is urging this court to interpret retrospectively is a democratic instrument unlike Decree No. 107 of 1993. That by the democratic nature of the 1999 Constitution, Section 316 (1) thereof saved the existing powers of courts of law including the lower court in respect of the matter now on appeal. He then urged this court to resolve this issue against the appellant.
In a brief rejoinder, the appellant in his reply brief submitted that Section 251 (1) (n) of the 1999 Constitution is in pari materia with the relevant Section 17 (1) (p) of the Federal High Court law as amended by Section 2 of the Decree No. 60 of 1991 and Section 230 (1) (o) of Decree No. 107 of 1993 which have been interpreted in favour of the Federal High Court’s jurisdiction.
As can be seen from the facts of this case and the argument of learned counsel herein before summarized, the kernel of this appeal is whether the State High Court has jurisdiction to entertain this matter as held by the court below. The finding of fact by the learned trial judge, which has not been challenged is to the effect that the activities of the appellant which has given birth to this appeal arose from oil exploration, mining, geological survey or use of explosives. As was rightly held by the learned trial judge, it is very clear from paragraph 4 of the respondent’s (plaintiff) statement of claim that the appellant (as defendant), in the course of its business of oil exploration and/or prospecting, broke and entered the land of the respondent without his prior consent, authority or permission. Paragraph 7 of the same statement of claim states that an arm of the concrete fence was inundated with cracks resulting from explosives used by the appellant to prospect for oil. Therefore, as regards the cause of action, there seems to be no dispute, or so it seems.
Historically, the State High Court was shorn of jurisdiction to adjudicate on oil and mining matters first on the 30th day of December, 1991 with the promulgation of Decree No. 60 of 1991 tagged: “Federal High Court (amendment Decree) 1991.” Section 2 thereof provides:
“2. For Section 7 of the Principal Act, there shall be substituted the following new Section, that is-
7 (1) the court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters connected with or pertaining to –
(p) Mines and minerals, including oil fields, oil mining, geological surveys and natural gas.”
Thereafter, under the federal High Court (amendment) Decree No. 16 of 1992, the operation of the new Section 7 under Decree No. 60 of 1991 was suspended. Section 2 of the said Decree No. 16 of 1992 states:
“2. Accordingly, any judgment or order of any court or tribunal delivered on or before the commencement of this Decree and made pursuant to the Federal High Court (Amendment) Decree 1991 shall by virtue of this Decree be made null and void and of no effect whatsoever.”
However, on the 17th day of November, 1993, under the Constitution (Suspension and Modification) Decree No. 107 of 1993, the jurisdiction to adjudicate on mines and minerals and allied matters was given exclusively to the Federal High Court. This remained the position before the Constitution of the Federal Republic of Nigeria 1999 came into force.
Under Section 251 (1) of the 1999 Constitution (as amended) the Federal High Court now possesses and exercises exclusive jurisdiction on mines and minerals including oil fields, oil mining, geological surveys and natural gas. The courts have been consistent in upholding this position. See THE SHELL PETROLEUM DEV. COMPANY OF NIGERIA LTD. V. CHIEF G. B. A. TIEBO VII & 4 ORS. (2005) 9 NWLR (Pt.931) 439; ALPHONSUS NKUMA vs. JOSEPH OTUMUYA ODILI (2006) 6 NWLR (Pt.977) 597 and BARRY vs. ERIC (1998) 8 NWLR (Pt.562) 404.

It is trite that the law applicable to an action is the law existing when the cause of action arose.
In the instant case, the cause of action is said to have arisen between February and March 1999. There is nothing to show that Decree No. 3 of 1999 amended or abolished the exclusivity granted the Federal High Court by Decree No. 107 of 1993. The general intendment which has been consistent in all the Decrees aforementioned and the 1999 Constitution of the Federal Republic of Nigeria (as amended) is that the Federal High Court possesses exclusive jurisdiction on mines and minerals, including oil fields, oil mining, geological surveys and natural gas. It is therefore my view that, consistent with decided authorities and the law, it is the Federal High Court which has exclusive jurisdiction to hear this matter. See OBIUWEOBI vs. C.B.N. (2011) 7 NWLR (Pt.1247) 465. This issue is accordingly resolved in favour of the appellant.
Before I end this judgment, I wish to observe that the suit giving birth to this appeal was commenced at the court below about fourteen years ago, same having been filed on 9th July, 1999. It is sad to note that 14 years after the case was filed, hearing is yet to commence while the parties are busy dissipating energy and resources trying to find out which court has jurisdiction to hear the case. It is trite that jurisdiction is the life wire or bedrock of adjudication process since any judgment given by a court without jurisdiction is null and void ab initio. In the circumstance of this case, I am persuaded to express the view that interlocutory decisions though in some cases may be taken up immediately on appeal, but in others should allow the entire case to be heard and determined and then the party wishing to appeal can bring both the interlocutory appeal and the main appeal at once. This procedure saves both time and resources for the litigants. Alternatively, the rules of hearing interlocutory appeals should be tightened such that it would be possible to dispose of such appeals within a short period. Should this decision which we have handed down is further appealed to the Supreme Court; the parties may have to wait a few more years before the first witness could be called. This is not good for the administration of justice. The time to act, I suggest, is now.
In sum, having resolved the lone issue in this appeal in favour of the appellant, it is clear that there is merit in this appeal and is hereby allowed. The Ruling of the Imo State High Court in Suit No. HOU/11/99, delivered on 18th June, 1999 is hereby set aside. The said suit is hereby struck out for want of jurisdiction. I make no order as to costs.

UWANI MUSA ABBA AJI J.C.A. (PRESIDING): I had the privilege of reading in draft the lead judgment of my learned brother J. I. Okoro, JCA just delivered.
I agree entirely with the reasoning and conclusions arrived at that the appeal is meritorious. It is also allowed by me. The ruling of the lower court delivered on the 18th June, 1999 is hereby set aside.
I also do not make any order as to costs.

PHILOMENA MBUA EKPE, J.C.A: I have read before now the judgment just delivered by my learned brother JOHN I. OKORO, JCA. I totally agree with his reasoning and conclusions. My Lord has painstakingly dealt with the issues involved in this appeal and I cannot agree more that there is indeed merit in this appeal and it is hereby allowed. The Ruling of the Imo State High Court in Suit No. HOU/11/99 delivered on the 18th day of June 1999 is hereby set aside. The said suit is hereby struck out for want of jurisdiction. I make no order as to costs.

Appearances

E. S. Agbozero Esq. For Appellant

AND

B. C. Iheka Esq. For Respondent