SEISMOGRAPH SERVICES (NIG) LIMITED v. MELSHEDECK E. MEDUOYE
(2013)LCN/6654(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of December, 2013
CA/B/12/2003
RATIO
WORDS AND PHRASES: COMPETENCE OF COURTS
The settled position of law is that the “competence” of a court being the hand maiden of the “court’s jurisdiction”, a court must therefore have both “jurisdiction” and “competence” to be properly seised of a cause or matter. And a court is said to be “competent” where (i) it is properly constituted with respect to the number and qualification of its members; (ii) the subject matter of the action is within its jurisdiction; and there is no feature in the case which prevents the court from exercising its jurisdiction; (iii) the action is initiated by due process of law; and (iv) any condition precedent to the exercise of jurisdiction has been fulfilled. See COTECNA INTERNATIONAL LIMITED V. IVORY MERCHANT BANK LIMITED [2006] All FWLR (PART 315) 26 at 43; MADUKOLU V. NKEMDILIUM (1962) 2 NSCC 374 at 379-380; and IBEANU V. OGBEIDE (1994) 7 NWLR (Pt. 359) 697 at 709. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
WORDS AND PHRASES: CAUSE OF ACTION
It is my considered view that the law is very settled regarding what “cause of action” means and the process of court from which it is determined or it is to be determined, particularly in a case tried on pleadings, as the instance case. The law in this regard is not only settled that it is from the statement of claim that the “cause of action” is determined but also the date of accrual of the said cause of action. See: THE MILITARY GOVERNOR OF ONDO STATE V. KOLAWOLE (2008) 35 NSCQLR 506. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
SEISMOGRAPH SERVICES (NIG) LIMITED Appellant(s)
AND
MELSHEDECK E. MEDUOYE (For and on behalf of Odun Bekun Community in the Ilaje/Ese Odo Local Government Area Ondo State Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: (Delivering the Leading Judgment): This appeal is against the judgment delivered on 17/3/1999 by the High Court of Justice, Delta State, Warri Judicial Division (hereafter simply referred to as “the lower court”) presided over by Hon. Justice (Mrs.) P.O. Onajite-Kuejubola (hereafter simply referred to as “the learned trial Judge”). The action in which the lower court delivered the judgment appealed against, was instituted by the Respondent as Plaintiff and the lower court in the said judgment found the Respondent’s claim to have succeeded and awarded in his favour, damages assessed at N358,180.00 and interest at 10% thereon per annum from 17/3/99, till the same is paid.
The instant case was contested by the parties on pleadings which they filed and duly exchanged consequent to the Writ of Summons dated 15/9/1993 that issued by the order of the lower court. The Appellant as Defendant before the lower court also amended its pleading. The case of the Respondent as set up in his Statement of Claim dated 18/4/1994 which was eventually filed in the suit, briefly stated is for damages done by the Appellant to the plaintiff’s properties, economic crops, fishing nets/fences and juju shrines to mention a few, at Odun Bekun Community in Ilaje/Ese-Odo Local Government Area of Ondo State, while the said Appellant was carrying out oil exploration and other related activities in the area. It is worth stating that the Respondent as Plaintiff before the lower court procured the order of the said court on 4/10/1993 authorising him to sue and prosecute the instant case for himself and on behalf of Odun Bekun Community of Ilaje/Ese-Odo Local Government Area of Ondo State. The claims of the Plaintiff as contained in paragraph 17 of the Statement of Claim are as follow:-
“PARTICULARS OF DAMAGES
SPECIAL DAMAGES:
1. Cost of re-allocation and to resettle the shrine of the Ojualaga N142,098.00
2. Cost of the re-allocation and to restt.of the Baba Aji 62,078.00
3. Cost of the three buildings destroyed by the defendant N92,000.00
4. Value of the 5 (five) fishing channels destroyed by the defendant 100,000.00
5. Value of the fishing fences destroyed by the defendant 26,000.00
6. Value of yams, plantains, coconuts, cashew trees, sugar canes
and mango trees 15,000.00
7. Value of fish traps destroyed by the defendant 600.00
N437,776.00
GENERAL DAMAGES 62,024.00
Total: N500,000.00
The Plaintiff claim from the defendant through this Honourable Court the said sum of N500,000.00 (Five hundred thousand naira) plus interest of 10% (ten percent) per annum on the said sum of N500,000.00 from the 1st day of September, 1992 until compensation is paid or judgment given whichever is quicker.”
In its Amended Statement of Defence dated 13/9/1996, the Appellant as Defendant before the lower court did not deny carrying out activities in connection with oil exploration, in the area/community of the Respondent. The Appellant however claimed to have observed all safety precautions/regulations in relation to the activities it carried out in the area/community. In the circumstances, the Appellant denied any wrong doing in the area/community of the Respondents and also any liability to the Respondent.
Parties in the case adduced evidence through witnesses in support of their respective cases on the pleadings. Two piece of documentary evidence were also tendered at the hearing. These were marked Exhibits ‘A’ and ‘B’ respectively. The lower court in its judgment duly evaluated the evidence (both oral and documentary) and entered judgment in favour of the Respondent in the manner hereinbefore stated.
The Appellant being dissatisfied with the judgment of the lower court lodged the instant appeal against the same vide a Notice of Appeal dated 22/3/1999 and filed on the same date. The Notice of Appeal contains four grounds of appeal. The complaint in the first of the four grounds is that the lower court lacked the jurisdiction to have heard and delivered judgment in the suit. In the second of the grounds, the complaint is that the lower court erred in law when it entered judgment for the Respondent in the manner it did when the Respondent failed to prove the same as required by law. The complaint in the third of the grounds is that the lower court erred in law in not believing or acting on the evidence of the expert witness called by the Appellant. The complaint in the fourth of the grounds is that it was wrong of the lower court to have relied almost entirely on Exhibit ‘A’.
Only the Appellant filed a Brief of Argument in accordance with the Rules of this Court. This is in the light of the fact that though the Respondent lodged a Brief of Argument in the Registry of this Court in relation to the appeal; the Respondent however never regularised the position of the said Brief of Argument. This being the situation, this Court on 25/3/2013 ordered that the appeal was to be heard upon the Appellant’s Brief of Argument only. This was sequel to a motion dated 11/3/2013 and filed on 13/3/2013 brought by the Appellant seeking for an order in that regard as the Respondent’s Brief of Argument filed on 8/5/2012, was irregularly filed.
Pursuant to the order of this Court (supra), the appeal was entertained on 29/10/2013 on the Appellant’s Brief of Argument alone. The Appellant’s Brief is dated 12/3/2009 and filed on 13/3/2009 but deemed to have been properly filed and served on 19/3/2009. The Brief of Argument was settled by Augustine Ajineh Esq. who duly adopted and relied on the same in urging this Court to allow the appeal. The Respondent who never regularised the position of his Brief of Argument was also absent and unrepresented by counsel at the hearing of the appeal.
The Appellant formulated two Issues for the determination of the appeal in its Brief of Argument. The Issues read thus:-
“(1) Whether in the light of the provisions of Decrees No. 60 of 1991 and No.107 of 1993, the trial court was right to have assumed jurisdiction to hear and determine this suit. (Ground 1)
(2) If the answer is no, whether the trial court was right in discountenancing the evidence of DW2 – an expert without any reason. (Ground 3).”
By the showing of the Appellant from the Issues it formulated as re-produced above, it is clear that it has abandoned grounds 2 and 4 of its grounds of appeal as it has not distilled a single issue covering the two grounds or an Issue from each of the said two grounds.
These grounds of appeal must therefore be struck out having regard to the settled position of the law to the effect that ground/grounds of appeal in respect of which Issues are not distilled, are deemed abandoned and are to be struck out. See NICO OLIVER V. DANGOTE INDUSTRIES LTD [2010] All FWLR (Pt. 506) 1858 at 1873; WEST AFRICAN EXAMINATION COUNCIL V. ADEYANJU [2008] All FWLR (Pt. 428) 206 at 22; and ABDULLAH V. NIGERIAN ARMY [2009] All FWLR (Pt. 500) 643; amongst others. Accordingly, grounds 2 and 4 of the grounds of appeal in the instant appeal are hereby struck out without further ado.
I will now consider the instant appeal on the two Issues formulated for its determination by the Appellant.
ISSUE 1:
In arguing this Issue, the Appellant stated to the effect that the settled position of the law is that the issue of jurisdiction can be raised at any stage of the proceedings in a matter and even at the Supreme Court for the first time. The Appellant however went on to state that it was granted leave by this Court on 4/10/2007 to raise the issue of jurisdiction in the instant appeal.
The submissions of the Appellant in its Brief of Argument on the issue of jurisdiction it raised, are unwieldy or cumbersome and disjointed in that they do not flow or blend into each other smoothly. Be that as it may.
Having regard to the submissions in the Appellant’s Brief of Argument, the stance of the Appellant in the main is that the lower court lacked the jurisdiction to have entertained and determined the instant case in the light of the cause of action of the Respondent vis-a-vis the provisions of Section 7(1)(p) of the Federal High Court (Amendment) Decree No. 60 of 1991 and Section 230(1)(o) of Decree No. 107 of 1993. It is the position of the Appellant that the cause of action in this suit arose sometime in May 1990 while the Respondent filed his writ of summons on 15/9/1993 and statement of claim on 18/4/1994. That by the time the processes were filed, the lower court had been divested of the jurisdiction to entertain cases such as the instant one.
The Appellant cited a host of cases in relation “cause of action” and “jurisdiction”. The Appellant also cited many cases in which the provisions of Section 7(1)(p) of Decree No. 60 of 1991 and Section 230(1)(o) of Decree No. 107 of 1993 have been interpreted. Cases in this regard, include SPDC Ltd v. Bukuma Fishermen Society Ltd (2001) FWLR (Pt.70) 1500 at 1515 – 1516; C.G.G. Nig. Ltd v. Asaagbara (2000) FWLR (Pt. 17) 110 at 119 – 120; SPDC Ltd v. Isaiah (2001) FWLR (Pt. 56) 622 – 623; and C.G.G. Nig. Ltd v. Ogu (2005) 8 NWLR (Pt. 927) 366 at 380 – 381.
The Appellant made the point to the effect that though the relevant law applicable in respect of a cause of action or matter is the law in force at the time the cause of action arose, but that as regards jurisdiction, it is the applicable law in existence when the action is instituted, and the cases of Utih v. Onoyivwe (1991) 1 SCNJ 25 at 45; and Rossek v. ACB Ltd (1993) 8 NWLR (Pt. 312) 382 at 475 were cited in aid. The Appellant also submitted to the effect that in a Military regime that was in existence at the material time of the institution of the instant case, Decrees ranked higher than the Constitution i.e. the 1979 Constitution of Nigeria and that Decrees No. 60 of 1991 and No. 107 of 1993 therefore ranked higher than the provisions of Section 230(1) of the 1979 Constitution of Nigeria. The cases of Obada v. Governor of Kwara State (1990) 6 NWLR (Pt. 157) 482 at 496; and Abacha v. Fawehinmi (2002) FWLR (Pt. 4) 533 at 613 were cited in aid. The Appellant urged this Court to resolve the Issue under consideration in its favour and hold that the lower court lacked the jurisdiction to have entertained the instant case as at the time it assumed the jurisdiction to determine it.
The settled position of law is that the “competence” of a court being the hand maiden of the “court’s jurisdiction”, a court must therefore have both “jurisdiction” and “competence” to be properly seised of a cause or matter. And a court is said to be “competent” where (i) it is properly constituted with respect to the number and qualification of its members; (ii) the subject matter of the action is within its jurisdiction; and there is no feature in the case which prevents the court from exercising its jurisdiction; (iii) the action is initiated by due process of law; and (iv) any condition precedent to the exercise of jurisdiction has been fulfilled. See COTECNA INTERNATIONAL LIMITED V. IVORY MERCHANT BANK LIMITED [2006] All FWLR (PART 315) 26 at 43; MADUKOLU V. NKEMDILIUM (1962) 2 NSCC 374 at 379-380; and IBEANU V. OGBEIDE (1994) 7 NWLR (Pt. 359) 697 at 709.
It is my considered view that the law is very settled regarding what “cause of action” means and the process of court from which it is determined or it is to be determined, particularly in a case tried on pleadings, as the instance case. The law in this regard is not only settled that it is from the statement of claim that the “cause of action” is determined but also the date of accrual of the said cause of action. See: THE MILITARY GOVERNOR OF ONDO STATE V. KOLAWOLE (2008) 35 NSCQLR 506.
It is in my considered view clear as crystal that the Respondent (and those whom he represented) by the averments in paragraphs 3, 4, 5, 7 and 16 of the statement of claim, disclosed the cause of action in the instant case to have arisen from the Appellant’s activities in connection with oil exploration and related activities and also that the said cause of action accrued to him and those he represented, in May, 1990. The averments in the paragraphs of the statement of claim under reference are re-produced hereunder:
“Paragraph 3
The defendant is a limited liability company incorporated under the company laws of the Federal Republic of Nigeria with its office at Biare street, Merogun Waterside, Warri, Warri South Local Government Area of Delta State of Nigeria within the jurisdiction of this Honourable Court.
Paragraph 4
The defendant is a major contractor to oil companies and its duties include exploration for crude oil and other related minerals on behalf of the oil companies. And in exercise of its duties enters into lands belonging to communities or individuals. When the defendant is performing its duties on lands belonging to communities or individuals it could destroy properties, economic crops, juju shrines and other valuable properties and pay compensation to the communities concerned for the destruction of their properties, economic crops and other valuable properties and also pay compensation for the relocation and rehabilitation of juju shrines.
Paragraph 5
In or about the year 1990 the defendant went to the Plaintiff’s village ……………………………..and entered into their bush for the carrying out of Sismographic (sic) survey in the process of exploration for oil and other related minerals. And while the defendant was carrying out its exploration for oil in the Plaintiff’s land, the defendant destroyed economic crops, …………….. The juju shrines destroyed by the defendant in Odun Bekun Village are, the shrine of Ojualagan and the shrine of Baba Aji.
Paragraph 7
The Plaintiff states that while the defendant was carrying on exploration for oil at Odun Bekun village it fired shots into the soil and the shots fired by the defendant react like earthquake and as a result of the shots fired by the defendant into the soil, three (3) houses got sunk at Odun Bekun village. ………………
Paragraph 16
The Plaintiff aver that by the defendant’s operation for the exploration for oil in Odun Bekun bush in Ilaja/Ese-Ode Local Government Area of Ondo State of Nigeria in May 1990 and destroying their economic crops, their fishing fences, their fishing traps, their fishing channels and their juju shrines, the plaintiff have suffered damage and despite repeated demands the defendant fails, refused and neglected to pay the Plaintiff compensation for damages caused to the plaintiff by the defendant.”
It is therefore indisputable that the suit instituted before the lower court in September 1993, by the Respondent is one that is in relation to wrongs allegedly done to the Respondent and those he represented, by the Appellant in May, 1990, in the course of the Appellant’s exploration for oil on the Respondent’s land, or arising from the act or omission on the part of the Appellant in connection with the activities of the Appellant for the purpose of oil exploration on the said Respondent’s land.
I have read all the authorities cited by the Appellant in its Brief of Argument regarding Decree No. 60 of 1991. It is clear from the interpretation which the Supreme Court and indeed this Court consistently gave the provisions of the said Decree that any cause of action which has to do with exploration of oil, or acts arising therefrom, etc, or is connected with any activity in that regard, cannot be entertained by any other court save the Federal High Court. See particularly in this regard, the case of C.G.G. V. ASAAGBARA (supra) cited by the Appellant and which this Court by a majority of two Justices against one decided to the effect that a cause of action that was glaringly in negligence was not maintainable in any other court save the Federal High Court by virtue of the provisions Decrees No. 60 of 1991 and 107 of 1993 respectively in as much as the cause of action in negligence in the case as it were arose from matters under the jurisdiction of the Federal High Court as stated in the Decrees.
In the light of the authorities cited by the Appellant and which I have hereinbefore set out and particularly the C.G.G. case (supra), it is therefore my considered view that the Respondent’s action given the cause of action as disclosed by the averments in the statement of claim hereinbefore re-produced was one that the lower court lacked the jurisdiction to have entertained. In the case of SPDC LTD V. BUKUMA FISHERMEN SOCIETY LTD (supra) cited by the Appellant, this Court per Ogebe, JCA; (as he then was) at pages 1518 – 1519, reproduced the relevant provisions of Decree No. 60 of 1991 thus: –
“Section 7 of the Federal High Court Act as amended by Decree No. 60 of 1991 which came into operation on 26th of August, 1993 by statutory instrument made by the President of the Federal Republic of Nigeria No. 9 of 1993 reads:-
“7(1) The court shall to the exclusion of any other court have original jurisdiction to try causes and matters connected with or pertaining to –
(p) mine and minerals, including oilfields, oil mining, geological surveys and natural gas.
(3) Where jurisdiction is conferred upon the court under subsections (1) and (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.
(4) Notwithstanding anything to the contrary contained in any other enactment or rule of law, including the Constitution of the Federal Republic of Nigeria, any power conferred on a State High Court or any other court of similar jurisdiction to hear and determine any civil matter or proceedings shall not extend to any matter in respect of which jurisdiction is conferred on the court under provisions of this section.
(5) Any decision made after the commencement of this section by any court of law in purported exercise of any power under the Constitution of the Federal Republic of Nigeria or any Federal or State law shall, as from date of making the decision be null and void. …………………”
It is in my considered view clear from the passage re-produced above, that Decree No. 60 of 1991 which came into operation 26/8/1993, was very much in operation at all times before the Appellant commenced the instant action by the writ of summons dated 15/9/1993 that issued therein. A writ of summons it should be appreciated is the originating process upon which other processes filed in the action is predicated. Though it was not until the Respondent filed his statement of claim in 1994 that he disclosed therein that the cause of action pertained to matters in respect of which the Federal High Court had exclusive jurisdiction by virtue of Decree No. 60 of 1991, the action in my considered view remained one in which the lower court was divested of jurisdiction as it would not have had jurisdiction had the statement of claim been filed along with the writ of summons on 15/9/1993. In other words, the Respondent having not initiated the instant action in which his cause of action occurred in May, 1990 before the lower court prior to the coming into operation of Decree No. 60 of 1991 on 26/8/1993, cannot rely on the date of accrual of the said cause of action in invoking the jurisdiction of the lower court to entertain this case. Indeed it would appear that it is for the purpose(s) of situations such as one where a party rightly invoked the jurisdiction of the lower court prior to the commencement of Decree No. 60 of 1991 in respect of matters covered by the said Decree, that it was provided for in Section 7(5) thereof to the effect that such a decision as the one in the instant case made after the commencement of the Decree by the lower court shall be void as from the date of the decision. Indeed, this Court said this much per Ogebe, JCA; (as he then was) in the SPCD Ltd case (supra) at page 1515 thus: –
“Jurisdiction however has to do with the authority of the court to adjudicate on the matter. A plaintiff may have a very good cause of action supported by the existing law and if he takes his case to a court which has no jurisdiction over the subject matter or cause of action, he cannot ventilate his claims before that court. Even if parties are before a court that has jurisdiction and a new law comes into existence which withdraws the jurisdiction of a court from hearing the case, that court automatically ceases to have jurisdiction to continue with the case.”
It is therefore clear in my considered view, that the Respondent in the clear conception and knowledge of the circumstances of his cause of action and which he later disclosed in his statement of claim filed in 1994 was undeniably wrong to have commenced the instant action before the lower court against the backdrop of Decree No. 60 of 1991. Even if he was right or correct (which is not conceded) it is undeniable that the judgment delivered in the case by the lower court became null and void as from the date it was delivered (i.e. 17/3/1999, by virtue of Section 7(5) of the said Decree. Jurisdiction it must be noted and appreciated cannot be conferred on the court by ignorance of the position of the law by the parties to an action; or because the court itself was not aware of the enactment that had ousted it jurisdiction in respect of a matter.
Flowing from all that has been stated is that the Appellant has canvassed convincing arguments that show that the lower court lacked the jurisdiction to have entertained the Respondent’s case and to have delivered judgment therein.
Issue 1 is accordingly resolved in favour of the Appellant.
APPELLANT’S ISSUE 2:
The Appellant has sought for the determination of this issue “if the answer to the issue relating to jurisdiction” is no. The answer I have arrived at concerning the issue of jurisdiction, is that the lower court lacked the jurisdiction to have assumed jurisdiction and to have heard and determined the case. It would therefore appear that on the Appellant’s showing there is no need to embark on the resolution of the second Issue the Appellant formulated.
In any event it is my considered view that the Appellant having not distilled any Issue from the grounds of appeal that questioned the correctness of the decision of the lower court and the evaluation of the evidence in the case by the lower court in arriving at its decision (i.e. grounds 2 and 4 which I had struck out before now), Appellant’s Issue two in the circumstance even if resolved in the Appellant’s favour cannot have any consequence on the appeal. This is because if I had found the lower court to have jurisdiction to have entertained the case and to have delivered judgment therein, the decision reached by the said court cannot be touched inasmuch as there is no ground of appeal cum issue for determination, challenging the correctness of the decision of the said court.
In the circumstance, I hereby strike out Appellant’s second Issue as it has no utilitarian value.
In the final analysis, the appeal is meritorious as Issue 1 has been resolved in favour of the Appellant. The appeal is therefore allowed.
Accordingly, the judgment delivered on 17/3/1999, by the lower court in this case, is hereby set aside in its entirety. In place of the judgment, I hereby enter an order striking on the case on the ground that the lower court lacked the jurisdiction to have entertained and delivered judgment therein.
I make no order as to costs.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I concur with the reasoning and conclusion reached in the judgment just delivered by my learned brother, the Hon. Justice A.O. Lokulo-Sodipo, JCA, to the conclusive effect that the instant appeal is meritorious. Thus, the appeal is equally allowed by me. Resultantly, the Judgment of the High Court of Delta State, Ward Judicial Division, delivered by P.O. Onajite-Kuejubola J; on 17/3/99 in Suit No. W/184/93, is hereby set aside. I abide by the consequential order striking out the case on the ground of lack of jurisdiction
No order as to costs.
TOM SHAIBU YAKUBU, J.C.A.: I was privileged to have read before now, the draft of the judgment just rendered by my learned brother, AYOBODE O. LOKULO-SODIPE, JCA.
I am satisfied that His Lordship’s reasoning which led to the conclusion that the appeal has merits and should be allowed, represents my thoughts on this appeal. I, therefore agree with him and the appeal is accordingly allowed, without further ado.
The judgment delivered by P.O. Onajite-Kuejubola, J., in Suit No. W/184/93 on 17th March, 1999 is set aside in its entirety.
I, also award no costs in respect of this appeal.
Appearances
Uzoma Azikiwe with Richard ChukwuochaFor Appellant
AND
For Respondent
