PABOR GARENKEME & ORS v. MOBIL PRODUCING (NIGERIA) UNLIMITED (2014)

PABOR GARENKEME & ORS v. MOBIL PRODUCING (NIGERIA) UNLIMITED

(2014)LCN/7005(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of March, 2014

CA/PH/115/2006

JUSTICES

EJEMBI EKO Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

Between

1. PABOR GARENKEME
2. AWELA MARGARET
3. CHIEF ATOU KELEKELE
4. OSCAR EBIYE
(For themselves & as representing 3,089 Individuals in Ekeni, Ezetu II, Foropah, Opudumo, Lobia Market, Amatu Zion communities in Southern Ijaw & Ekeremor Local Government Areas respectively in Bayelsa State)

v. Appellant(s)

AND

MOBIL PRODUCING (NIG) UNLIMITED Respondent(s)

RATIO

THE TEST TO APPLY IN DETERMINING WHETHER A DECISION IS FINAL OR INTERLOCUTORY

I agree with the Appellants that the proper test to apply in determining whether a decision is final or interlocutory is the one that looks at the order made. See FIDELITY BANK PLC v. M.T. TABORA (2009) 8 NWLR (Pt. 1142) 83 at 101 – 102. An interlocutory decision is a decision or order made, usually in the course of the proceeding that does not finally determine or complete the suit by pronouncing on the rights of the claimant qua defendant in the suit. This is the test applied in EXCEL PLASTIC INDUSTRY LTD v. FIRST BANK OF NIGERIA PLC (2005) 11 NWLR (Pt. 935) 59 at 89 – 90; CHINWEZE OKOYEKWU v. CHIEF CHRISTY OKOYE (2009) 6 NWLR (Pt. 1137) 350 at 369 – 370. PER EKO, J.C.A.

WHETHER OR NOT AN APPEAL FILED OUT OF TIME IS INCOMPETENT

I am satisfied that the appeal is against an interlocutory decision and therefore ought, pursuant to Section 24 (2) (a) of the Court of Appeal Act, 2004, to have been brought within 14 days after the decision delivered on 7th December, 2004. An appeal filed out of the time prescribed for doing so is incompetent. It denies the Appeal Court jurisdiction to consider the merits of the appeal. See MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587; (1962) 2 SCNLR 341.
The law is well settled that the question of jurisdiction strikes at the root of any cause or matter. Consequently, it raises the issue of the competence of the court to adjudicate in the particular proceedings. Any defect in competence renders the proceedings a nullity, no matter how well conducted or decided the proceedings had been. See JOSIAH AYODELE ADETAYO & ORS v. KUNLE ADEMOLA & ORS (2010) 15 NWLR (Pt. 1215) 169; SKENCONSULT (NIG) LTD v. UKEY (1981) 1 SC 6. PER EKO, J.C.A.

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): On 7th December, 2004 the Federal High Court, sitting at Yenagoa (Coram: Okechukwu J. Okeke, J) delivered a ruling wherein it held that the Appellant’s suit no. FHC/YNG/NG/CS/522/2004 was statute barred by virtue of Section 16 of the Limitation Law of Rivers State applicable in Bayelsa State. Aggrieved by the decision of the Federal High Court the Appellants, as the Plaintiffs, filed their notice of appeal against the decision on 21st February, 2005.

On 21st January, 2011 the Respondent filed Notice of Preliminary objection contending that the interlocutory appeal, brought more than 75 days after the decision appealed, offended Section 24 (2) (a) of the Court of Appeal Act, 2004. The period prescribed by Section 24 (2) (a) of the Court of Appeal Act for bringing an appeal against interlocutory decision is 14 days.
The preliminary objection was argued in the Respondent’s Brief filed on 21st January, 2011. The said brief was deemed filed and served on 9th June, 2011.

At the hearing of the appeal on 26th February, 2014 the Respondent, through their counsel, moved the preliminary objection and urged us to strike down the appeal for being incompetent. Relying on NIGER CONSTRUCTION LTD v. OKUGBENU (1987) 2 NSCC 1258 counsel for Respondent submits that the Ruling delivered on 7th December, 2004 which “dismissed” the Plaintiffs’ suit for being statute barred was interlocutory and that as such the appeal against the interlocutory decision ought, by dint of Section 24 (2) (a) of the Court of Appeal Act, to have been brought within 14 days after the decision.

The suit of the plaintiffs, terminated by the ruling of 7th December, 2004, had the following reliefs:
1. A declaration that the 3,093 claimants are omitted claimants (sic) that were impacted by the defendant Idoho Oil field spillage on or about 12th January, 1998.
2. The flat rate of N20,000.00 per claimant as was adopted and paid by the Defendant as compensation in the said spillage.
ALTERNATIVELY
3. An order of the court fixing an amount representing fair and adequate compensation to the plaintiff’s clients.

Upon the preliminary objection of the Respondent, as the Defendant, that the suit was statute barred, the suit was terminated without the court below determining the rights of the parties thereto vis-‘a-vis the claims endorsed on the writ of summons and the statement of claim. I agree with the Appellants that the proper test to apply in determining whether a decision is final or interlocutory is the one that looks at the order made. See FIDELITY BANK PLC v. M.T. TABORA (2009) 8 NWLR (Pt. 1142) 83 at 101 – 102. An interlocutory decision is a decision or order made, usually in the course of the proceeding that does not finally determine or complete the suit by pronouncing on the rights of the claimant qua defendant in the suit. This is the test applied in EXCEL PLASTIC INDUSTRY LTD v. FIRST BANK OF NIGERIA PLC (2005) 11 NWLR (Pt. 935) 59 at 89 – 90; CHINWEZE OKOYEKWU v. CHIEF CHRISTY OKOYE (2009) 6 NWLR (Pt. 1137) 350 at 369 – 370.

I am satisfied, from the content of the Appellants’ Reply Brief that they have no doubt whatsoever about the proper test for determining whether a decision is final or interlocutory. Having applied this same test to the decision delivered on 7th December, 2004 I do not have any doubt that the decision was interlocutory, and not final; the said decision having not finally determined the rights of the parties to the suit or the claims made against the defendants. While the decision upheld the defendant’s contention that the suit of the claimant against them was stale and statute barred, it did not decide on the merits of the claims or reliefs brought against the defendant by the claimants.

This appeal, being incompetent, is hereby struck out.

I have read the Record of appeal particularly the endorsements on the writ of summons and the statement of claim; the preliminary objection giving rise to the Ruling of 7th December, 2004 and the grounds of appeal complaining that the court below erred in law in the decision. I have also painstakingly read the briefs of argument exchanged by the parties in the appeal. Even if the appeal were to be competent; on the merits, I would have been most reluctant in setting aside the decision of the court below that the suit was statute barred. That finding of fact by the court below is unassailable.

The Appellants, as claimants, have admitted, in their brief, their own obscurantism in pleading their cause of action in the statement of claim. It does not lie in the mouth of the Appellants, as claimants, to submit that from paragraphs 7 and 8 of their own statement of claim it is not clear that it was on 12th January, 1998 that the oil escaped into their territories and which escape or pollution “gave rise to the plaintiffs’ cause of action”. There is no virtue in iniquity. This is a court of justice. He who comes before us, as a court of justice, to seek justice must come with clean hands. Equity, they say, acts in personam. When a claimant admits that he had engaged in obscurantism in pleading his cause against the defendant in order to avoid being detected by the court’s radar on limitation he can not complain that the court calculated the date of accrual of the cause of action from the available and visible date he had himself pleaded. It is only on the facts available to the court that the court acts on. The claimant owes the court and his adversary the duty of impleading his cause succinctly and clearly.

As I earlier stated I would have dismissed the appeal and affirmed the decision of the court below if the appeal were competent. Since the appeal is incompetent, it is hereby struck out pursuant to Order 6 Rule 6 of the Court of Appeal Rules, 2011. I make no order as to costs.

MODUPE FASANMI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother EJEMBI EKO, J.C.A. just delivered.
This is an interlocutory appeal which ought to have been brought within 14 days after the decision which was delivered on 7th Dec.2004. Appellants filed their notice of appeal on 21st Feb. 2005. An appeal filed out of time prescribed by the law denies the appellate court jurisdiction to entertain the appeal. See Madukolu v. Nkemdilim (1962) 1 N.L.R part 587; (1962) 2 S.C.N.L.R at 341.
I agree with the reasoning and conclusion that the appeal is incompetent. It is accordingly struck out. I abide by the consequential orders contained therein.

STEPHEN JONAH ADAH, J.C.A.: I was obliged in advance with a copy of the judgment just delivered by my learned brother Eko, J.C.A. and I am in accord with him that this appeal being an interlocutory appeal ought to have been filed as provided by Section 24(2)(a) of the Court of Appeal Act within 14 days.
When the Appellant failed to come within the time set, the next opportunity opened to him was to seek the leave of Court to extend time. Since the Appellant did not do this, this appeal is truly incompetent. I agree with my learned brother Eko, J.C.A. that this appeal is incompetent.
I also order the striking out of this appeal for being incompetent.

Appearances

Appellants’ counsel absent.For Appellant

AND

O. Osuobi with A. E. Apera-Yusuf.For Respondent