PAN OCEAN OIL CORPORATION NIGERIA LIMITED v. MR SUNNY MENE-OKOTIE
(2015)LCN/7935(CA)
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of July, 2015
CA/B/329/2012
RATIO
COURT: JURISDICTION; THE EXCLUSIVE JURISDICTION OF THE FEDERAL HIGH COURT
Invariably, the power of the Federal High Court is traceable to the Grand Norm itself – the Constitution of the Federal Republic of Nigeria, 1999 as amended. Most especially, by virtue of the provisions of Section 251(1)(n) of the 1999 Constitution (supra), it’s provided that –
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 -…
(n) Mines and minerals (including oil fields, oil mining, geological surveys and natural gas;
Pursuant to the above unequivocal provisions of Section 251(n) of the 1999 Constitution (supra), the National Assembly in the exercise of the exclusive legislative powers thereof, enacted the Federal High Court Act CAP. F12, Laws of the Federation of Nigeria, 2004, thereby conferring exclusive jurisdiction upon the court below the following far-reaching exclusive jurisdiction:
7. Original Jurisdiction
(1) The court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters…
(n) Mines and minerals including oil fields, oil mining, geological surveys and natural gas.
Undoubtedly, the provision of Section 7(1)(n) of the Federal High Court Act CAP. F12, Laws of the Federation of Nigeria, 2004 (Supra) is in pari materia with the provision of Section 251(1)(n) of the 1999 Constitution (Supra).
The exclusive jurisdiction of the Federal High Court has been a subject of interpretative pronouncements by the Supreme Court in a plethora of veritable far-reaching authorities. Indeed, one of the foremost of such authorities is the case of SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED VS. ISAIAH (2001) ALL NLR 559 @ 566, wherein it was aptly held, thus:
“In establishing whether the construction and maintenance of an oil pipeline is part of mining operations, it is relevant to refer to the practice of the oil prospecting licence holders during mining operations. These have been described in the Petroleum Act 1960 and Oil Pipeline Act 1956. If petroleum is discovered through the approved mining operations arrangement is made by the oil prospecting licence holder, which struck the oil, to evacuate the oil from the oil well to an oil terminal. This is done either through a pipeline or a tanker. The pipeline is constructed and maintained by the oil company which transport the oil from the oil-well to the terminal. Thus the most important aspect of oil mining operation is the construction of oil pipeline for the evacuation of the crude oil to the oil terminal through an oil pipeline. The holder of an oil pipeline licence has been made responsible under the law to pay compensation to any person whose land or interest in land or who suffers any damage in connection with the operation of the pipeline.
For the foregoing reasons the construction, operation and maintenance of an oil pipeline by a holder of oil prospecting licence is an act pertaining to mining operations.” Per Uthman Mohammed, JSC @ 566 paragraphs A-E. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
COURT: JURISDICTION; WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION TO ENTERTAIN AN ACTION FOR DECLARATION OF TITLE TO LAND
All the cases in which the Court of Appeal and this Court had decided that the provisions of both Decrees ousted the jurisdiction of a State High Court clearly touched on issues of compensation for pollution and damages resulting from mining operations and related matters, and none was on compensation for owners of the land. This is simply a land dispute. It could well have been a land dispute as to who was entitled to the compensation for a land to be used for farming, golfing or a football field.” (Underlining added for emphasis). Secondly, the case of ASABORO VS. PAN OCEAN OIL (NIG) LTD (Supra) was merely for a declaration of title to land, simpliciter. Undoubtedly, in the instant case, the Respondent’s claim is regarding (a) special and general damages as compensation; (b) a declaration that he’s the proper person so entitled to claim for the said compensation for trespass; and (c) an order of permanent injunction. He led evidence of the title thereof to the land in dispute over which he claimed for compensation thereby arising from damages consequent upon oil mining and production activities. In the case of NKUMA VS. ODILI (supra), the Supreme Court effectively laid down the [proposition of] law, to the effect, that –
The crucial question is – Has the plaintiff called sufficient evidence that will enable the court grant to him the relief being sought? It is my view eminently unjustifiable for this court to lay it down as a principle that a person who merely wishes to claim compensation for land must first seek a declaration of title. Per Oguntade, JSC, @ 599 – 600. Most instructively, in the case of ADETAYO VS. ADEMOLA (2010) 15 NWLR (Pt. 1215) 169, a suit was instituted in the Federal High Court, Lagos seeking declaratory and injunctive reliefs. Prior to the hearing of the suit, the 1st Defendant filed a notice of preliminary objection urging the Federal High Court to dismiss the action for want of jurisdiction. The respective parties addressed the court on the issue of jurisdiction. Consequent whereupon, the Federal High Court ruled to the effect that it had jurisdiction to entertain the action by virtue of the provisions of Section 251(1)(r) of the 1999 Constitution. Upon an appeal, a sole issue came up for determination, viz:
“Whether by virtue of the provisions of Section 251(1)(r) of the 1999 Constitution, the Federal High Court has jurisdiction to entertain an action for a declaration of title to the land.”
At the conclusion of hearing of the appeal, the Court of Appeal in a reserved Judgment came to the conclusion that the provisions of Section 251(1)(r) of the 1999 Constitution have not conferred such jurisdiction on Federal High Court. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
APPEAL: ISSUE(S) FOR DETERMINATION; WHETHER THE ISSUE OF TITLE TO THE LAND IN DISPUTE BECOMES AUTOMATICALLY IN ISSUE WHERE A CLAIM IS MADE AS REGARDS TRESPASS TO LAND AND INJUNCTION
In the case of DOSUMU VS. NNPC (2014) 6 NWLR (Pt. 1403) 282, this court has demonstrably reiterated the trite fundamental principle, that where a claim is made as regards trespass to land and injunction, the issue of title to the land in dispute becomes automatically in issue. See also MOGAJI VS. CADBURY (NIG) LTD (1985) 2 NWLR (Pt. 341) 676; ODUKWE VS. OGUNBIYI (1998) 8 NWLR (Pt. 561) 339; CARRENA VS. AKINLASE (2008) 14 NWLR (Pt. 1107) 262 @ 289 paragraphs G-H. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
ACTION: CLAIM FOR COMPENSATION AND DAMAGES FOR UNLAWFUL ENTRY INTO LAND: WHETHER THE CLAIM FOR COMPENSATION AND DAMAGES FOR UNLAWFUL ENTRY INTO LAND IN DISPUTE HAS AMOUNT TO AN ACTION RELATING TO LAND CAUSES OR MATTERS WITHIN THE PROVISIONS OF THE LAND USE ACT
Most instructively, the law is well settled, that any claim for compensation and damages for destruction of crops, plants, et al, consequent upon Respondent’s unlawful entry into the land in dispute has amounted to an action relating to land causes or matters within the purview of the provisions of Sections 39, 41 and 42 of the Land Use Act (Supra). See ADETAYO VS. ADEMOLA (Supra) @ 191-192 paragraphs H-C; paragraphs B-B, respectively per Mahmood Mohammed, JSC (as he then was).In the case of ASABORO VS. PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (Pt. 971) 595, this court aptly held: I hold the view that the claim of the Appellants for compensation and damages for destruction of their rubber plants as a result of the respondent’s unlawful entry into their estate is an action relating to land. Per Ngwuta, JCA (as he then was) @ 617. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
COURT: JURISDICTION; WHETHER THE APPELLATE COURT HAS JURISDICTION IN A CASE WHERE A PLEA OF LACK OF JURISDICTION AND/OR BREACH OF FAIR HEARING HAS BEEN RAISED, DETERMINED AND DULY UPHELD ON APPEAL
My view is predicated on the well settled principle, that where a plea of lack of jurisdiction and/or breach of fair hearing has been raised, determined and duly upheld on appeal, as in the instant case, the appellate court is devoid of jurisdictional competence to proceed to determine the rest of the other issues on the merits. See ARAKA VS. EJEAGWU (2000) FWLR (Pt. 36) 830; (2000) 15 NWLR (Pt. 692) 684; EWO VS. ANI (2004) 3 NWLR (Pt. 826) 592; NWAKANMA VS. OJUKWU (2007) ALL FWLR (Pt. 395) 504; DIDE VS. SELEITIMIBI (2008) 15 NWLR (Pt. 1110) 221 @ 243 paragraphs A – B. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
Justice
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
Justice
PAN OCEAN OIL CORPORATION (NIGERIA) LIMITEDAppellant(s)
AND
MR. SUNNY MENE-OKOTIE
(Suing for himself and on behalf of Imene Okotie family of Ifole)Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is against the judgment of the Federal High Court, holden at Asaba, delivered on June 29, 2012 in Suit No.FHC/ASB/CS/52/2010. By the judgment in question, the court below, coram I.N. Buba, J; granted all the reliefs sought by the Respondent against the Appellant.
BACKGROUND FACTS:
Both parties are ad idem, regarding the fact that the genesis of the instant appeal dates back to May 19, 2010. That was indeed the day the Respondent filed in the court below the said suit, vide a writ of summons, and statement of claim, claiming against the Appellant the following reliefs:
“(a) The sum N75,194,886.13 (Seventy Five Million, One Hundred and Ninety Four Thousand, Eight Hundred and Eighty Six Naira, Thirteen Kobo) as special and general damages due and payable as compensation in accordance with the provision of the Oil Pipeline Act 1990, for the acquisition of Plaintiffs’ land for the construction of Oil Pipeline at Ifole, new Mosogar together with an access way to link same, large scale destruction of economic trees, desecration of ancestral shrines and burial grounds, and for the renewal of expired lease.
(b) A declaration that the Plaintiff is the proper person entitled to claim from the Defendant all money(s) due and payable as compensation for the braxen act of trespass on part of the said land i.e. by destroying economic trees and desecrating ancestral shrines and burial grounds, altering the nature and character of the land by way of construction, maintenance and operations of an Oil Pipeline across same and same as well as maintaining an Oil Pipeline access way (Panaco Road) to link the said Pipeline and the Benin/Sapele highway without the consent, concurrence and authority of the Plaintiff which piece of land are in possession of the Plaintiff in exercise of the Defendant’s right under and by virtue of Oil Prospecting, Oil exploration and Oil exploitation Licenses granted to the Defendant.
(c) An order of permanent injunction restraining the Defendant, it’s servant and or agents from having any dealing whatsoever for the purpose of paying any sum of money as compensation or giving out any benefit whatsoever in respect of it’s activities i.e. construction, maintenance and operation of an Oil Pipeline together with an Oil Pipeline access way within Plaintiffs’ Area of Delta State, to any false claimant of Mosogar Community or to any person whatsoever other than the Plaintiffs.”
Pleadings were filed and exchanged by the respective parties. Eventually, the suit proceeded to trial. A total of three witnesses testified as PW1, PW2 & PW3 for the Respondent. The Respondent himself did testify on 28/03/12 as PW4, and tendered various documents as exhibits. On the part thereof, the Appellant called one witness, Michael Odigue, who testified as DW1.
The trial having come to an end, the parties’ learned counsel filed their respective written addresses. Consequent upon which the Lower Court proceeded to deliver the vexed Judgment, to the following conclusive effect:
“this court has no doubt in the circumstance of this case that the plaintiff has on preponderance of evidence or balance of probabilities proved its case against the defendant, therefore this court holds:
a. That the plaintiff’s case is not statute barred.
b. That this court has exclusive jurisdiction to entertain this suit.
c. That the plaintiff has fully discharged the evidential burden on him to entitle him to all the reliefs he is claiming in this suit.
Accordingly, judgment be and is hereby entered for the plaintiff in the following terms:
1. The sum of N75,194,886.13 (Seventy-Five Million, One Hundred and Ninety Four Thousand, Eight Hundred and Eighty-Six Naira, Thirteen Kobo) as special and general damages due and payable as compensation in accordance with the provision of the Oil Pipeline Act 1990, for the acquisition of Plaintiffs’ land for the construction of Oil Pipeline at Ifole, new Mosogar together with an access way to link same, large scale destruction of economic trees, desecration of ancestral shrines and burial grounds, and for the renewal of expired lease.
2. A declaration that the Plaintiff is the proper person entitled to claim from the Defendant all money(s) due and payable as compensation for the braxen act of trespass on part of the said land i.e. by destroying economic trees and desecrating ancestral shrines and burial grounds, altering the nature and character of the land by way of construction, maintenance and operations of an Oil Pipeline across same and as well as maintaining an Oil Pipeline access way (Panaco Road) to link the said Pipeline and the Benin/Sapele highway without the consent, concurrence and authority of the Plaintiff which piece of land are in possession of the Plaintiff in exercise of the Defendant’s right under and by virtue of Oil Prospecting, Oil exploration and Oil exploitation Licenses granted to the Defendant.
3. In view of the Judgment in Exhibit P7A & P7B an order of injunction restraining the Defendant, it’s servant and or agents from having any dealing whatsoever for the purpose of paying any sum of money as compensation or giving out any benefit whatsoever in respect of its activities i.e. construction, maintenance and operation of an Oil Pipeline together with an Oil Pipeline access way within Plaintiffs’ Area of Delta State, to any false claimant of Mosogar Community or to any person whatsoever other than the Plaintiffs.”
The appeal having been entered, the parties proceeded to file their respective briefs of argument. Most particularly, the Appellant’s brief was settled by Ayo Asalli, Esq on 12/10/13. While the Respondent’s brief was initially filed by S.O. Agwinede, Esq on 28/8/14, but deemed properly filed and served on 28/4/15.
The Appellant’s brief spans a total of 30 pages. At pages 4-5 of the brief in question, three issues have been raised for determination, viz:
“(i) Whether having regard to the nature of the wrong alleged by the respondent against the appellant, the learned trial judge was right in holding that the respondent’s case is not caught by statute of limitation.
(ii) Whether having regard to the jurisdiction of the Lower Court as contained in Section 251 of the 1999 Constitution as amended, the Lower Court has the power to make declaration of title, trespass and ownership of land.
(iii) Whether having regard to the pleadings and the evidence adduced at the Lower Court, the learned trial judge was right to have granted all the reliefs claimed by respondent as per paragraph 27 of the amended statement of claim especially the monetary sum N75,194,886.13 (Seventy Five Million, One Hundred and Ninety Four Thousand, Eight Hundred and Eight Six Naira, Thirteen Kobo) awarded as special and general damages.”
Issue No.1 is canvassed at pages 5 – 10 of the brief. Without much ado, it was submitted that the Lower Court was wrong in holding that the Respondent’s action was not caught by Limitation Law. That, having regard to the nature of the wrong alleged, et al, the action was caught by the statute of limitation and thus statute – barred. See OGUNDIPE VS. NDIC (2008) ALL FWLR (Pt. 432) 1220 @ 1239; GULF OIL COY (NIG.) LTD VS. OLUBA (2002) 12 NWLR (Pt. 780) 92 @ 108; ASABORO VS. PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (Pt. 971) 595 @ 617.
Further submitted, that from the respective pleadings and evidence led, the cause of action in the present case was based on the acquisition by the Appellant in 1976 and the consequent alleged permanent destruction of economic crops, desecration and destruction of ancestral shrine and burial grounds. See paragraphs 11, 22 & 27 of the Amended Statement of claim and evidence of PW4 at pages 220 & 239 of the Record.
It’s contended, that any action bordering on limitation law, is liable to render the action as statute barred, thus raises a jurisdictional question: OGUNDIPE VS. NDIC (supra); EBOIGE VS. NNPC (1994) 5 NWLR (Pt. 347) 649; GULF OIL CO. (NIG) LTD VS. OLUBA (supra).
Further contended, that the findings and conclusion of the Lower Court at page 236 of the Record have no basis in law, having regard to the facts of this case. That the cases of OKAFOR VS. AG ANAMBRA STATE (2001) 7 WRN 77 @ 92, et al, relied upon by the Lower Court in the said findings are distinguishable from the instant case.
It was argued, that the Respondent’s claim was not predicated on trespass per se, but rather for payment of compensation for alleged destruction of economic crops, desecration of ancestral shrines and burial grounds, as a result of the acquisition done by the Appellant in 1976 in accordance with the Oil Pipelines Act 1990. See paragraphs 11, 22 and 27(a) of the Amended Statement of claim contained at pages 218 – 223 of the Record; AFRIBANK NIGERIA PLC VS. ADIGUN (2009) ALL FWLR (Pt. 476) 2009 @ 2012 – 2022 paragraphs B – H.
Thus, the court is urged to hold that the limitation Law applies to this action, and same should be struck out.
ON Issue No.2, it was submitted, inter alia, that having regard to the jurisdiction of the court below, as contained in Section 251 of the 1999 Constitution, as amended, the Lower Court lacks the power to make declaration of title and ownership of land.
Pages 31 to 32 and 34 of the Record were referred to, regarding the findings of the court below on the issue of ownership of the land in dispute. It was submitted, that the jurisdiction of the Lower Court under Section 251 of the 1999 Constitution does not extend to making findings on trespass to land and declaration of ownership and title to land. See AFRIBANK (NIG.) PLC VS. AKIWASA (2006) ALL FWLR (Pt. 304) 401; OBIUWE UBI VS. CBN (2011) ALL FWLR (Pt. 575) 208 @ 240; NKUMA VS. ODILI (2006) ALL FWLR (Pt. 313) 24 @ 43 paragraphs A – E; ASABORO VS. PAN OCEAN (NIG) LTD (supra).
The court is urged to hold, that the Lower Court was wrong to have assumed jurisdiction on the subject matter of the Respondent’s claim as it relates to the doctrine of continuity of trespass to land.
On Issue No.3, it’s submitted that having regard to the pleadings and evidence adduced at the trial, the Lower Court was wrong to have granted all the reliefs claimed by the Respondent as per paragraph 27 of the Amended Statement of Claim thereof, especially the sum of N75,194,886.13 as special and general damages. Further submitted, that the Lower Court ought not to have granted any of the reliefs sought by the Respondent as he was not entitled thereto.
The Appellants conceded, however, to the trite principle that an appellate court should not interfere with the decision of a Lower Court regarding amount of damages awarded, unless it’s satisfied that: (a) the court proceeded on a wrong principle of law, or; (b) the amount awarded is so high as to make it an entirely erroneous estimate of damages to which the claimant is entitled: AKINKUGBE VS. EWULUM HOLDINGS NIG. LTD (2008) ALL FWLR (Pt. 423) 1269 @ 1288; SOLEH BONEH OVERSEAS (NIG) LTD VS. AYODELE (1989) 1 NWLR (Pt. 99) 549; NARENDEX LTD VS. NIM V (2001) 4 SCNJ 214 @ 227 lines 23 – 35; XTOUDOUS SERVICES (NIG) LTD VS. TAISEI (WA) LTD (2006) ALL FWLR (Pt. 333) 1640 @ 1653.
It was postulated, that from the pleadings thereof, especially paragraph 22 of the Amended Statement, the Respondent has failed to specially plead, with particulars, and strictly prove the special damages pleaded therein. See NGILARI VS. MOTHERCAT LTD (1999) 13 NWLR (Pt. 636) 626 @ 648 paragraphs B – C; UHUNMWANGHO VS. UHUNMWANGHO (1992) 2 NWLR (Pt. 226) 709 @ 714; SPDC (NIG) LTD VS. HH PERE COLE (1978) 3 SC 128 @ 133 lines 35 – 40; OHADUGBA VS. GARBA (2000) FWLR (Pt. 16) 2721 @ 2746 – 2747 paragraphs F – D, et al.
Further postulated, that the Lower Court was wrong to have granted the declaration sought against the Appellant because the Respondent failed to adduce credible evidence to sustain this prayer which must be proved on the strength of the case thereof. See SALAMI VS. LAWAL (2008) ALL FWLR (Pt. 438) 200 @ 230.
Equally argued, that the Lower Court was wrong to have granted the order for perpetual injunction sought by the Respondent. The reason being that the Mosogar Community named and affected by the injunction was not made a party to the case, which was unjust and (tantamounts to) a breach of fair hearing. That, such an order is liable to be set aside by an appellate court: YUSSUF VS. IITA (2009) ALL FWLR (Pt. 476) 1989 @ 2006; NDULUE VS. IBEZUM (2002) 12 NWLR (Pt. 780) 138 @ 169 paragraphs A-C.
Conclusively, the court is urged to allow the appeal and dismiss the Respondent’s claim.
Contrariwise, the Respondent’s brief spans a total of 32 pages, inclusive of the two pages regarding the list of authorities. At page 3 of the said brief thereof, the Respondent has raised what he termed “the real issues for determination in this appeal”, viz:
“(a) Whether from the nature of trespass committed on the Respondent’s family land by the Appellant, the trial Court was right when it held that the respondent’s action was not statute barred?
(b) Whether from the pleadings and evidence adduced by the parties, the Lower Court had the requisite jurisdiction to entertain the Respondent’s claim?
(c) Whether from the totality of the oral and documentary evidence adduced at the Lower Court, the trial Court was right when it held that the Respondent has discharged the evidential burden on him to entitle him to the reliefs he claimed at the Lower Court?”
The first issue is canvassed at pages 6-13 of the said brief. It’s submitted, inter alia, that from the pleadings and evidence adduced at the trial, the Respondent’s action was not statute-barred. Further submitted, that the Appellant’s trespassory acts of laying the said oil pipelines, inside the Respondent’s land are a continuing acts of trespass under the doctrine of continuing trespass: BLACK’S LAW DICTIONARY 6th Edition @ 1503; FRANCIS OKAFOR VS. AG ANAMBRA STATE (2001) 7 WRN 77 @ 92; LIASU ADEPOJU VS. RAJI OKE (1999) 3 NWLR (Pt. 594) 154 @ 163; ALHAJI OYEBAMIJI VS. LAWNSON (2008) 15 NWLR (Pt. 1109) 122 @ 138.
It was contended, that in the instant case, the payment of adequate compensation is a condition precedent to the acquisition, entry and operation of oil prospecting, exploitation and exploration activities by a holder of oil mining lease and oil pipelines license like the Appellant over the land covered by the said lease and license. See Section 17 of the Petroleum Drilling And Production Regulation No.69 of 1969.
Further contended, that contrary to the provision of Section 17 of the PDP Regulations No. 69 of 1969, the Appellant armed with Exhibit D1 and oil pipeline license, broke into the Respondent family’s land in dispute and commenced petroleum prospecting, exploitation and exploration activities thereon without paying compensation to the Respondent and members of the family thereof. There was no iota of evidence produced at the trial to show that the Appellant paid compensation to anybody.
It was argued, that the Respondent claimed for the continuous acts of trespass of the Appellant on the Respondent’s land. See paragraphs 21(a), 23(a), 24 and 25 of the Amended Statement of Claim. Thus, it’s a total misconception and misapprehension of the law and facts, to submit as was done by the Appellant, that the Respondent’s claim is limited to the 1976 acts of trespass committed by the Appellant.
Thus, Court is urged to hold that the Respondent’s action is timeous and not statute barred, and accordingly resolve issue No.1 in Respondent’s favour.
On the second issue, it was submitted, inter alia, that the Lower Court had and possessed the requisite jurisdiction to entertain the Respondent’s action. That, from the pleadings and evidence adduced by the parties, the main claim of the Respondent is founded on damages occasioned by the construction, operation and maintenance of oil pipelines by the Appellant on the Respondent’s land. See pages 218 – 223, Record; paragraph 13 of the Amended Statement of Claim; paragraphs 5 & 6 of the Statement of Defence of the Appellants (pages 150 – 153 of the Record). That both parties led evidence in line with their respective pleadings.
It’s contended, that the Lower Court has original jurisdiction to try civil cases and matters relating and pertaining to mines and minerals including oil fields, oil mining, geological surveys and natural gas to the exclusion of other High Courts: Section 7, Federal High Court Act Cap.12 Laws of the Federation of Nigeria, 2004; Section 251(1)(n) of the 1999 Constitution; SPDC NIG. LTD VS. ISAIAH (2001) ALL NLR 559 @ 566.
However, the Respondent urged upon the court to discountenance the cases of NKUMA VS. ODILI (2006) 6 NWLR (Pt. 977) 587 and ASABORO VS. PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (Pt. 971), cited and relied upon by the Appellant in the brief thereof, as they are allegedly totally not applicable to the facts of the instant case.
The court is thus urged to answer the second issue in the affirmative, and resolve same against the Appellant.
The third issue is canvassed at pages 18-29 of the said brief. In a nutshell, it’s submitted that the Respondent has discharged the evidential burden on him through his pleadings, oral and documentary evidence adduced at the Lower Court. The Respondent, for claiming compensation for damages, has the responsibility to establish that he’s in actual possession or has immediate right to possession, or that he is the owner of the land in dispute. He also has the burden of proving the identity and precise area of the land: KAMIYU OGUNYOMI VS. OLADOSU OGUNDIPE (2010) 45 WRN 116 @ 131.
Reference was made to Exhibit P1 and evidence of PW1, a licensed surveyor, who testified on Exhibit P1, on a scientific delineation and description of the area of the Respondent’s land in dispute. No counter plan was filed by the Appellant to discredit or show their area of petroleum prospecting, exploitation and exploration activities, especially their oil pipelines’ track. As such, the Appellant is deemed to have admitted the description of the area of the Respondent’s family land trespassed upon. See AKUSOBI VS. OBINECHIE (2004) 2 NWLR (Pt. 857) 355 @ 370 – 371.
Paragraph 5 of the Amended Statement of Claim as well as Exhibits P7A, P7B, P8 and P9 (A) – (H), were alluded to the effect that the Respondent has established how the Respondent and his family members have been defending the land in dispute against trespassers and adverse claimants through litigation. And that the Respondent also testified that the graves and shrines of the grandparents thereof were on the land when the Appellant commenced its trespassory activities on it. This is enough evidence of possession: MURANA AJADA VS. MADAM DORCAS OLAREWAJU (1969) ALL NLR (Reprint) 374 @ 381; WUTA OFEI VS. MARVEL ANGUAH (2961) WLR; OBGU VS. WOKOMA (2005) 14 NWLR (Pt. 944) 118 @ 138 – 139.
Regarding damages, it was submitted that the Respondent rightly claimed the sum of N75,194,886.13 as special and general damages. See AG OYO STATE VS. FAIRLAKES HOTELS LTD (2012) 4 LC 319 @ 354; AKINFOSILE VS. MOBIL OIL (NIG) LTD (1969) 6 NSCC 376 @ 381.
Thus, the court is urged to discountenance the Appellant’s submission that a claim for damages is not maintainable except it is compartmentalized into “special” and “general” damages.
That in the instant case, the Respondent claimed and particularized the said amount as both general and special damages. The court is urged to ascribe, as the court below has rightly done, the highest probative value to Exhibits P5 and P6 being documents produced by expert upon which evidence were led. See ODULAJA VS. HADDED (1973) ALL NLR (Reprint) 836 @ 841; BANQUE GENEVOISE COMMERCE ET DE CREDIT VS. CIA MAR. DI ISOLA SPETSAL LTD (owners of the steamship or vessel “SPETSAL PATRIOT) (1962) 2 ALL NLR (Reprint) 565 @ 572; OBIZIAKWOR VS. OBIZIAKWOR (2008) 8 NWLR (Pt. 1090) 551 @ 579; OLUJINLE VS. ADE AGBO (1988) 4 SC 1 @ 22.
It was contended, that the case of UHUNMWANGHO VS UHUNMWANGHO (1992) 2 NWLR (Pt. 226) 226 @ 709, does not help the Appellant’s case. The reason being that the Respondent in Appendix 1 to Exhibit P5 and Exhibit P6 has stated with utmost particularity the detailed requirements laid down in UHUNMWANGHO’S case (supra).
Further submitted, that both oral and documentary evidence must be demonstrated and tested in open court. Inquisitorial or investigation of a documentary evidence outside the courtroom is prohibited by the law of evidence: METIBAIYE VS. NARELLI INT. LTD (2009) 16 NWLR (Pt. 1167) 326 @ 354.
That counsel’s address is not a substitute for the evidence that ought to have been elicited under cross-examination: GBADAMOSI VS. TOLANI (2011) 20 WRN 79 @ 95.
Citing and relying on Section 36(2) of the Land Use Act CAP. L5, Laws of the Federation of Nigeria, 2004, it was contended that the Respondent, and members of the family thereof are deemed to be holders of Customary Right of Occupancy in and over the land in dispute; at the commencement of the Act in 1978.
The court is urged to answer the 3rd issue in the affirmative and resolve same in the Respondent’s favour.
Conclusively, the court is urged upon to accordingly affirm the decision of the Lower Court.
In my considered view, the three issues raised in the respective briefs of argument of the parties are not all that mutually exclusive. Thus, for the determination of the appeal, the Appellant’s three issues would be adopted.
However, due to the fundamentally crucial nature thereof, the Issue No.2 ought to be determined, first and foremost.
ISSUE NO.2:
The second issue raises the very crucial question of whether or not having regard to the jurisdiction of the Lower Court, as contained in Section 251 of the 1999 Constitution as amended, the Lower Court has the power to make a declaration of title, trespass and ownership of land.
Most specifically, the Appellant’s ground raised in the second issue is prompted by the findings at pages 31-32 and 34 of the Supplementary Record of Appeal, viz:
This court believes the expert evidence of PW1 which is being reinforced by Exhibit P1 on the land as between the Respondent and the Plaintiff’s land on which the defendant is carrying out their trespassory activities. Plaintiff has established both possessory and ownership rights in and over the area of the land over which he is claiming trespassory damages against the defendant.
…
This court agrees that by virtue of the aforementioned documentary and oral evidence of the plaintiff and his witnesses the plaintiff has proved his ownership of the land beyond any question especially as the defendant did not lead any evidence in rebuttal beyond its general traverse in its pleadings.
Instructively, at the trial of the said suit, the parties had joined issues on their respective pleadings and evidence adduced thereupon. In paragraph 13 of the extant Amended Statement of Claim thereof, the Respondent pleaded, thus:
13. That upon the said revelation, the Plaintiff thereafter embarked upon a voyage of discovery in order to ascertain who actually is the trespasser and other possible areas of encroachment and after a very diligent inquiries from some of their licensees on the land, same came out with the following findings:-
(a) That the Defendant was responsible for the construction, maintenance and operations of the said oil pipeline.
(b) That a hut was build by the side of the said pipeline within the Plaintiff’s land which is used as a base for the security officers of the Defendant who are on the look out for pipeline vandals.
(c) That an oil manifold or value was also built on a portion of the said pipeline within Plaintiff’s said land which the Defendant codenamed “OKPARIN VALVE”.
In proof of the foregoing pleading thereof, the Respondent led evidence in line therewith. The PW1, Stanley Egogo, testified at pages 227-229 of the Record. Professionally, the PW1 is a registered surveyor. The PW2 Augustine Igine, testified at pages 229-230 of the Record. The PW3, Meyura Ekenwa, an estate surveyor and valuer, testified at pages 233-236 of the Record. Lastly, the PW4, the Respondent testified at pages 236-240 of the Record.
Contrariwise, the Appellant’s only witnesses, DW1, testified at pages 241-243 of the Record. The DW1 was Michael Odigue, a Community Liaison Officer (CLO) of the Appellant. With particular regard to the land in dispute, the DW1 testified, inter alia, under cross-examination, thus:
DW1: Exhibit P9 (h) is a notice of acquisition announced in Vanguard publication in 1976. There were national dailies like Daily Times, Nego Nigeria and Nigerian Observer. Apart from Exhibit D1 we do have survey covering the one in dispute. The problem we have is locating this survey. DW1 shown Exhibit P1.
DW1: The area shown is the area in dispute. I do not have documents here to show that we paid compensation. What we do in the area we acquired is routine maintenance. I know routine maintenance does not involve exploration; it is just to enable crude oil to flow.
Invariably, the power of the Federal High Court is traceable to the Grand Norm itself – the Constitution of the Federal Republic of Nigeria, 1999 as amended. Most especially, by virtue of the provisions of Section 251(1)(n) of the 1999 Constitution (supra), it’s provided that –
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 –
…
(n) Mines and minerals (including oil fields, oil mining, geological surveys and natural gas;
Pursuant to the above unequivocal provisions of Section 251(n) of the 1999 Constitution (supra), the National Assembly in the exercise of the exclusive legislative powers thereof, enacted the Federal High Court Act CAP. F12, Laws of the Federation of Nigeria, 2004, thereby conferring exclusive jurisdiction upon the court below the following far-reaching exclusive jurisdiction:
7. Original Jurisdiction
(1) The court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters
…
(n) Mines and minerals including oil fields, oil mining, geological surveys and natural gas.
Undoubtedly, the provision of Section 7(1)(n) of the Federal High Court Act CAP. F12, Laws of the Federation of Nigeria, 2004 (Supra) is in pari materia with the provision of Section 251(1)(n) of the 1999 Constitution (Supra).
The exclusive jurisdiction of the Federal High Court has been a subject of interpretative pronouncements by the Supreme Court in a plethora of veritable far-reaching authorities. Indeed, one of the foremost of such authorities is the case of SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED VS. ISAIAH (2001) ALL NLR 559 @ 566, wherein it was aptly held, thus:
“In establishing whether the construction and maintenance of an oil pipeline is part of mining operations, it is relevant to refer to the practice of the oil prospecting licence holders during mining operations. These have been described in the Petroleum Act 1960 and Oil Pipeline Act 1956. If petroleum is discovered through the approved mining operations arrangement is made by the oil prospecting licence holder, which struck the oil, to evacuate the oil from the oil well to an oil terminal. This is done either through a pipeline or a tanker. The pipeline is constructed and maintained by the oil company which transport the oil from the oil-well to the terminal. Thus the most important aspect of oil mining operation is the construction of oil pipeline for the evacuation of the crude oil to the oil terminal through an oil pipeline. The holder of an oil pipeline licence has been made responsible under the law to pay compensation to any person whose land or interest in land or who suffers any damage in connection with the operation of the pipeline.
For the foregoing reasons the construction, operation and maintenance of an oil pipeline by a holder of oil prospecting licence is an act pertaining to mining operations.” Per Uthman Mohammed, JSC @ 566 paragraphs A-E.
As alluded to above, the applicability and relevance of the Apex Court’s dictum in the case of SPDC LTD VS. ISAIAH (supra) to the instant case, is very much instructive. Undoubtedly, the cases of NKUMA VS. ODILI (supra) and ASABORO VS. PAN OCEAN OIL (NIG) LTD (supra), cited and heavily relied upon by the Appellant, are equally very much instructive. In the case of NKUMA VS. ODILI (supra), the various suits therein specifically dealt with title to the piece of land in respect of which Agip Oil Ltd deposited money being compensation for damages arising from the company’s drilling and mining activities on the land in question. Whereupon, two communities, Ogwuma village in Oguta of Imo State and Isukwa in Ndoni of Rivers State, laid rival claim to the said sum deposited as compensation. The two rival communities filed their respective suits claiming title to the said land. Consequent whereupon, the trial court constrained itself in the findings thereof, thereby resulting in rendering the issue of damages secondary, while the issue of declaration of title was elevated to a high pedestal or centre stage. Not surprisingly, the Apex Court aptly held thus:
“The Plaintiff’s Suit was filed in 1977 and the Defendant’s in 1978. It seems to me however that a simple claim concerning entitlement to compensation for land as in this case cannot be seen as one “connected with or appertaining to mines and minerals including oil fields.” It cannot be disputed that if the case was connected with or appertaining to land and minerals including oil fields it would abate by virtue of Section 7 of Decree No. 60 of 1991 which came into force on 30/12/91. I think that Appellant’s Counsel has stretched beyond reasonable limit, the meaning to be ascribed to the expression “connected with or appertaining to mines and minerals including oil fields.” All the cases in which the Court of Appeal and this Court had decided that the provisions of both Decrees ousted the jurisdiction of a State High Court clearly touched on issues of compensation for pollution and damages resulting from mining operations and related matters, and none was on compensation for owners of the land. This is simply a land dispute. It could well have been a land dispute as to who was entitled to the compensation for a land to be used for
farming, golfing or a football field.” (Underlining added for emphasis).
Secondly, the case of ASABORO VS. PAN OCEAN OIL (NIG) LTD (Supra) was merely for a declaration of title to land, simpliciter. Undoubtedly, in the instant case, the Respondent’s claim is regarding (a) special and general damages as compensation; (b) a declaration that he’s the proper person so entitled to claim for the said compensation for trespass; and (c) an order of permanent injunction. He led evidence of the title thereof to the land in dispute over which he claimed for compensation thereby arising from damages consequent upon oil mining and production activities.
In the case of NKUMA VS. ODILI (supra), the Supreme Court effectively laid down the [proposition of] law, to the effect, that –
The crucial question is – Has the plaintiff called sufficient evidence that will enable the court grant to him the relief being sought? It is my view eminently unjustifiable for this court to lay it down as a principle that a person who merely wishes to claim compensation for land must first seek a declaration of title. Per Oguntade, JSC, @ 599 – 600.
Most instructively, in the case of ADETAYO VS. ADEMOLA (2010) 15 NWLR (Pt. 1215) 169, a suit was instituted in the Federal High Court, Lagos seeking declaratory and injunctive reliefs. Prior to the hearing of the suit, the 1st Defendant filed a notice of preliminary objection urging the Federal High Court to dismiss the action for want of jurisdiction. The respective parties addressed the court on the issue of jurisdiction. Consequent whereupon, the Federal High Court ruled to the effect that it had jurisdiction to entertain the action by virtue of the provisions of Section 251(1)(r) of the 1999 Constitution.
Upon an appeal, a sole issue came up for determination, viz:
“Whether by virtue of the provisions of Section 251(1)(r) of the 1999 Constitution, the Federal High Court has jurisdiction to entertain an action for a declaration of title to the land.”
At the conclusion of hearing of the appeal, the Court of Appeal in a reserved Judgment came to the conclusion that the provisions of Section 251(1)(r) of the 1999 Constitution have not conferred such jurisdiction on Federal High Court. Thus, this court allowed the appeal, and accordingly struck out the action.
On a further appeal to the Supreme Court, it was conclusively held thus:
As there is nothing in these Sections 39, 41 and 42 of the Land Use Act that conferred any jurisdiction on the Federal High Court to entertain land causes or matter, I entirely agree with the court below that the Federal High Court has no jurisdiction to hear and determine any dispute on declaration of title to land.
See ADETAYO VS. ADEMOLA (2010) LPELR – 155 (SC) @ 23 – 24; (2010) 15 NWLR (Pt. 1215) 169 @ 191 – 192 paragraphs H – C; paragraphs B – B, per Mahmood Mohammed, JSC (as he then was).
By virtue of the provisions of Section 39 of the Land Use Act (Supra), the High Court of a State or FCT (as the case may be) shall have exclusive original jurisdiction in respect of the following –
(a) Proceedings in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed to be granted by him under this Act; and for the purpose of this paragraph, proceedings for a declaration of title to a statutory right of occupancy;
(b) Proceedings to determine any question as to persons entitled to compensation payable for improvements on land under this Act.
In the case of DOSUMU VS. NNPC (2014) 6 NWLR (Pt. 1403) 282, this court has demonstrably reiterated the trite fundamental principle, that where a claim is made as regards trespass to land and injunction, the issue of title to the land in dispute becomes automatically in issue. See also MOGAJI VS. CADBURY (NIG) LTD (1985) 2 NWLR (Pt. 341) 676; ODUKWE VS. OGUNBIYI (1998) 8 NWLR (Pt. 561) 339; CARRENA VS. AKINLASE (2008) 14 NWLR (Pt. 1107) 262 @ 289 paragraphs G-H.
In the circumstance, it should be reiterated that in the instant case, the Respondent’s claim is for (i) payment of compensation for the damages allegedly arising from the Appellant’s oil mining operation and activities on the land in dispute; (ii) a declaration that the Respondent (Plaintiff) is the proper person entitled to claim from the Appellant (Defendant) all money(s) due and payable as compensation for braxen(sic) act of trespass on the said land; and (iii) an order of permanent injunction.
At pages 31 to 32 of the Supplementary Record, the Lower Court has found thus:
This court believes the expert evidence of PW1 which is being reinforced by Exhibit P1 on the identity, description and location of the plaintiff’s land on which the defendant is carrying out their trespassory activities. Plaintiff has established both possessory and ownership rights in and over the area of the land which he is claiming trespassory damages against the defendant.
What’s more, at page 34 of the said Supplementary Record, the Lower Court still dwells on the volatile issue of ownership of the land in dispute:
This court agrees that by virtue of the aforementioned documentary and oral evidence of the plaintiff and his witnesses the plaintiff has proved his ownership of the land beyond any question especially as the defendant did not lead any evidence in rebuttal beyond its general traverse in its pleadings.
Most instructively, the law is well settled, that any claim for compensation and damages for destruction of crops, plants, et al, consequent upon Respondent’s unlawful entry into the land in dispute has amounted to an action relating to land causes or matters within the purview of the provisions of Sections 39, 41 and 42 of the Land Use Act (Supra). See ADETAYO VS. ADEMOLA (Supra) @ 191-192 paragraphs H-C; paragraphs B-B, respectively per Mahmood Mohammed, JSC (as he then was).
In the case of ASABORO VS. PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (Pt. 971) 595, this court aptly held:
I hold the view that the claim of the Appellants for compensation and damages for destruction of their rubber plants as a result of the respondent’s unlawful entry into their estate is an action relating to land. Per Ngwuta, JCA (as he then was) @ 617.
In the circumstance, there is every cogent reason for me to hold that the Court below lacks the fundamental jurisdiction to decide the instant case which raises issues of title to land, trespass, and/or ownership of the land in dispute. The second issue is accordingly resolved in favour of the Appellant.
Hence, having resolved the second issue in favour of the Appellant, there is no gainsaying the fact that the rest of the two other issues have become rather academic. My view is predicated on the well settled principle, that where a plea of lack of jurisdiction and/or breach of fair hearing has been raised, determined and duly upheld on appeal, as in the instant case, the appellate court is devoid of jurisdictional competence to proceed to determine the rest of the other issues on the merits. See ARAKA VS. EJEAGWU (2000) FWLR (Pt. 36) 830; (2000) 15 NWLR (Pt. 692) 684; EWO VS. ANI (2004) 3 NWLR (Pt. 826) 592; NWAKANMA VS. OJUKWU (2007) ALL FWLR (Pt. 395) 504; DIDE VS. SELEITIMIBI (2008) 15 NWLR (Pt. 1110) 221 @ 243 paragraphs A – B.
Hence, against the backdrop of the foregoing postulations, the appeal is hereby adjudged to be meritorious, and accordingly allowed by me. The Judgment of the Federal High Court holden at Asaba, Delta State, delivered in Suit No. FHC/ASB/CS/52/2010 on June 29, 2012 by I.N Buba, J; is hereby set aside.
There shall be no order as to costs.
HAMMA AKAWU BARKA, J.C.A.: Having read the judgment just delivered by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JCA, I am in full agreement with the reasoning and the conclusion reached thereto. The appeal is allowed, and the decision of the Lower Court set aside.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I am in entire agreement with, and do not desire to add to the conclusions expressed by my learned brother, Ibrahim Mohammed Musa Saulawa, JCA, in the lead judgment just delivered, which lead judgment I had the opportunity of reading in draft.
I agree with the reasoning which crystallised in the resultant conclusion that the appeal is meritorious and ought to be allowed. Accordingly, I also join in allowing the appeal. The judgment of the Federal High Court, Asaba Division, Coram Judice: Buba, J. in Suit No.FHC/ASB/CS/52/2010 delivered on 29th June, 2012 is hereby set aside. I abide by the order as to costs.
Appeal allowed.
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Appearances
Ayo Asala Esq. with him John Smart Esq.For Appellant
AND
S. O. AgwinedeFor Respondent
