ASHAKA CEMENT LTD v. MELA & ORS (2020)

ASHAKA CEMENT LTD v. MELA & ORS

(2020)LCN/14801(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, November 10, 2020

CA/G/94A/2019

RATIO

JURISDICTION: FUNDAMENTAL NATURE OF JURISDICTION

Jurisdiction is a fundamental, radical and critical issue in adjudication as it goes to the root of all actions and proceedings in Court. A Court that operates without jurisdiction is like a builder erecting a building without foundation. Thus, adjudication must faithfully follow on the heels of jurisdiction. Consequently, any trial conducted or decision reached without jurisdiction is a complete nullity – Adetayo V Ademola (2010) All FWLR (Pt. 533) 1806. It is due to the overwhelming significance of the issue of jurisdiction that whenever it is raised in any proceedings, it should be determined by the Court before going into any other issue -Okonkwo V Okonkwo (2010) 14 NWLR (Pt. 1213) 228; FBN Plc V TSA Inds. Ltd (2010) NWLR (Pt. 1216) 247.
Again, the issue of jurisdiction is delicate and fundamental. It strikes at the very root of any cause or matter. Hence, as aforesaid, any decision reached without jurisdiction, no matter how painstakingly reached, would come to naught at the end of the day. It is therefore imperative that any perceived flaw should be raised timeously, without any intention to overreach. PER HANNATU SANKEY, J.C.A.

JURISDICTION: TYPES OF JURISDICTION

Jurisdiction is also a question of law. In that vein, there are two types, to wit: Jurisdiction as a matter of procedural law, and Jurisdiction as a matter of substantive law – AG Kwara State V Adeyemo (2016) LPELR-41147(SC) 14015, E-C, per Rhodes-Vivour, JSC. It is in view of the gravity of its effect that the law has taken time to draw a distinction between substantive irregularities which are capable of overturning a trial no matter how well conducted, and irregularities which merely touch on procedure and as such, can be regularized, once detected, more so when raised at the earliest opportunity – Aruwaju V Ashara (2014) LPELR-22735(CA) 38-39, C-A.

A litigant may waive the former. For instance, a litigant may submit to the procedural jurisdiction of a Court where a Writ of summons has been served outside jurisdiction without leave; or where a litigant (a defendant) waives compliance by the claimant of service on him of a Pre-action Notice. However conversely, no litigant can confer jurisdiction on a Court where the Constitution or Statute says that the Court does not have jurisdiction.
The rationale behind this is that conditions in a Statute for the benefit of a person or a class of persons may be waived by the person(s) who are to benefit from it – Adegoke Motors Ltd V Adesanya (1989) 3 NWLR (Pt. 109) 255’ Nwabueze V Okoye (1985) 1 NWLR (Pt. 2) 195; Ezomo V Oyakhire (1981) 1 SC 6. On the other hand, where the right conferred by the Constitution or Statute involves an element of public policy, i.e. of interest to the public, such a right cannot be waived – Ariori V Elemo (1983) 14 NSCC 1. PER HANNATU SANKEY, J.C.A.

COURT: DUTY OF TRIAL COURT TO CONSIDER AND MAKE PRONOUNCEMENT ON ALL ISSUES BEFORE IT

It is also in this light that a trial Court has a duty and is enjoined to consider and make a pronouncement upon all the issues raised by the parties before it, especially when such issues touch on the matter of its jurisdiction. A trial Court ought not to confine itself to limited issues which it considers sufficient to dispense of the case. This is only reasonable in order to obviate the danger of a higher Court holding a contrary view on the material nature of the issues raised. For the sake of emphasis, the Judge of a trial Court must demonstrate a full and dispassionate consideration of all the issues raised and canvassed before it. Failure to do so will lead to a failing or flaw in the case which, when resolved one way or another, could affect the ultimate outcome of the case on appeal – Orji V PDP (2009) 14 NWLR (Pt. 1161) 310, 408; Samba Petroleum Ltd V UBA Plc (2010) 6 NWLR 530, 531; Brawal Shipping V Onwadike (2000) 6 SCNJ 508, 522, per Uwaifo, JSC. PER HANNATU SANKEY, J.C.A.

NEGLIGENCE: MEANING AND NATURE OF NEGLIGENCE

Now, negligence has been defined in the Oxford Advanced learner’s Dictionary 5th Edition as “lack of proper care and attention, careless behaviour”. In its 8th Edition, it is defined as “failure to give somebody/something enough care and attention”. Thus legally, negligence has been described as being the omission to do something which a reasonable man would do, or the doing of something which a reasonable man would not do. Thus, to maintain an action for negligence, it must be shown (a) that there was a duty on the part of the defendant towards the person injured; (b) that the defendant negligently performed or omitted to perform his duty; (c) that such negligence was the effective causes of injury or damage to the plaintiff.
Therefore, what amounts to negligence is a question of fact and not one of law; and each case must be decided in the light of its own facts and circumstances. Hence, for a Plaintiff to succeed in an action for negligence, he or she must plead all the particulars of the negligence alleged in sufficient detail and the duty of care owed by the Defendant; and all these must be supported by credible evidence at the trial. A Plaintiff can only succeed in an action for negligence if, in addition to pleading it and the particulars thereof, he/she must also show the duty of care owed to him/her by the Defendant and the breach of that duty by the Defendant. It is not enough to allege all these in pleadings without establishing them by credible and reliable evidence at the trial. See Universal Trust Bank Ltd V Ozoemena (2007) LPELR-3414(SC) 13-21, D-E, per Kalgo, JSC. A few weighty pronouncements from the apex Court may be useful to illustrate this.

In the case of Anyah V Imo Concorde Hotels Ltd (2002) 18 NWLR (Pt. 799) 377, the Supreme Court held:
“For the defendant to be liable for negligence, there must be either an admission by him or sufficient evidence adduced to a finding of negligence on his part… The most fundamental ingredient of the tort of negligence is the breach of the duty of care, which must be actionable in law and not a moral liability. And until a Plaintiff can prove by evidence the actual breach of the duty of care against the Defendant, the action must fail.” (Emphasis supplied)
Consequently, the onus of proving that the result of the negligence of a Defendant was the effective cause of the injury, is firmly and un-waveringly upon the Plaintiff. On the other hand, the Defendant is responsible for all the consequences he could foresee or reasonably be expected to foresee as a natural result of his negligent act or his negligent omission. The Defendant is also liable for all the direct physical consequences even though they could not have been foreseen. PER HANNATU SANKEY, J.C.A.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

ASHAKA CEMENT LTD APPELANT(S)

And

KILANG MELA (KOJEN TANGALE) Village Head Of Komta, For Himself And As Representative Of Komta Community 2. J. GOMA YAKUBU 3. J. HEBREWS BIRKILA 4. J. DEMION SOKKA 5. HUSSANI INUWA 6. ADAMU FURANI 7. TSABTA GARBA 8. SOUL BELLO 9. MALLAM HAMIDU 10. MAIKUDI YA’U 11. POLYCARP HUSSAINI 12. JAURO MALLAM UMAR 13. YA’U ZUBAIRU 14. JULI SALEH 15. ADAMU ILU 16. DIJA MOHAMMED 17. AMINA KAKA MUSA 18. MUSA GUDO 19. HAUWAWU AHMADU 20. JAHA GOMA 21. MALAMA MAIKUDI 22. PESA SAIDU 23. SUBAJO ZUBAIRU 24. WULI YERIMA 25.BILKI BUBA 26. BIMBI ABDULLAHI 27. YAWI SALEH 28. HABU TUMBIDO 29. DUBBA TUKUR 30. HAJARATU IDI 31. HAUWA AHMADU 32. IBRAHIM HARUNA 33. GAMBO ZUBAIRU 34. MUSA MAIBAGAL 35. AMINA MOHAMMED 36. ANWA AHMADU 37. YERIMA MUSA 38. ALI TUKUR 39. AHMADU WETI 40. SHU’AIBU GOMA 41. ADO HARUNA 42. MOHAMMED ADAMU 43. UMAR HARUNA 44. AHMADU ZUBAIRU 45. Z. ADO ZUBAIRU 46. MAIMUNA ADAMU 47. AISHA UMAR 48. DADO AHMADU 49. FATU TUKUR 50. ADAMA ZUBAIRU 51. MUSA SAIDU 52. AUWA’U AHMADU 53. AISHATU MAWU 54. HAUWA BAKA 55.MAIKUDI YA’U 56. HAUWA IBRAHIM 57. MUSA YA’U 58. IBRAHIM HARUNA 59.SULEI YAKUBU 60. MUSA MAIBAGAL 61. MALAM BABUGA 62. ADAMU ILU 63. MOHAMMED ADAMU 64. ADO HARUNA 65. BUBA HUSSAINI 66. TUKUR HUSSAINI 67. AUTA HUSSAINI 68. SALEH MUSA 69. UMAR ADAMU 70. ZUBAIRU ADAMU 71. IBRAHIM YUSUF 72. KWARYA TURMI 73. SOUL BELLO (The 2nd, 3rd And 4th Plaintiffs Sues For Themselves And As Representatives Of Alatai Community Of Billiri Local Government Area Of Gombe State) 74. J. ELMAS G. AIKI 75. J. BITRUS BORNO 76. HON. DANLADI AMOYO (KASAFIN TANGALE) 77. CHIROMA KWAMA 78. JOHN LABAN 79. MOHAMMED LAKOLTHOM 80. MAISAN IDI 81. BOYI KORI 82. SHETU TAFIDA 83. JOSEPH TAMBA 84. ZAKARIYA GAMA AIKI 85. DANLADI MEZA 86. KADIN TAFIDA 87. MONDAY SOKKA 88. DANJUMA BARAS 89. HASSAN YAHAYA 90. MAMUDA SARKA 91. JUNGUDO GIDADO 92. AFUDE PILAN 93. BABA CINIKI 94. BABA YAYIMFATARI 95. ADAMU KADUM 96. PETER SARKIN YAKI 97. J. DEMIAN SOKKA 98. EMMANUEL KOKKA 99. LAGOS KWAMA 100. BITRUS DANJAURO 101. HASKA MADI 102. J. YUSUF AMILA 103. MELA CIYAWA 104. HARUNA DANGADO 105. MAMUDA DAUDA 106. SAMUEL BOYI 107. AMOS LAKELTUM 108. BABA DANBORNO 109. PETER DUKKU 110. BABA DUKKU 111. BOYI MABUDI 112. KOFUR MESHAK 113. KARO AHMADU 114. ELMAS G. AIKI 115. ADAMU KAWULE 116. J. MESHAK MELA (The 72nd, 73rd And 74th Plaintiffs Sues For Themselves And As Representatives Of Kwibah Community Of Billiri Local Government Area Of Gombe State) 117. HON. DANIEL NAKEWA (CHAIRMAN TCDA KOMTA BRANCH) 118. MRS. RONA ZAKARIYA (WOMEN LEADER) 119. YOHANNA SOJA 120. DANJA ABORE 121. BUBA AMINU 122. DAVID AMINU 123. ZAKKARI AUDU 124. DANIEL MATHEW 125. DANLADI AMOYO 126. YAMI DANJA 127. KYASU BIRKILA (The 113th And 114th Plaintiffs Sues For Themselves And As Representatives And As Representatives Of Kwillapandi Community Of Billiri Local Government Area Of Gombe State) RESPONDENT(S)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the Federal High Court Gombe Judicial Division delivered in Suit number FHC/GM/CS/22/18 on September 27, 2019, Coram: Afolabi, J.

Therein, the learned trial Judge granted the reliefs sought by the Respondents in their Originating Summons and awarded damages to the tune of N100, 000, 000.00 (One Hundred Million Naira) as well as cost of N1, 000, 000.00 (One Million Naira) to the Respondents against the Appellant.

Concisely, the facts leading to the Appeal are as follows:
The Respondents commenced a representative action vide an Originating Summons against the Appellant in the lower Court claiming several reliefs. The Respondents prayed for the resolution of certain questions as follows:
i. “Whether upon the construction of the right to life created in favour of the plaintiffs in Section 33(1) of the Constitution of the Federal Republic of Nigeria as amended in 2011 vis-a-vis the mining rights granted to the defendant under the Nigerian Minerals and Mining Act 2007 and Nigerian and Minerals Mining

Regulations 2011 the Defendant has powers to deprive intentionally right to life of the plaintiffs or any other person in Komta, Alatai and Kwilapandi, and Kwibak communities in Billiri L.G.A. of Gombe State. If otherwise whether the plaintiffs are entitled to judgment against the Defendant.
ii. Whether upon the construction of the rights created in favour of the plaintiffs being victims of the mining activities of the defendant in Komta, Alatai, Kwilapandi and Kwibah communities in Billiri L.G.A. of Gombe State and by the construction of Section 125 of the Nigerian Minerals and Mining Act 2007 and Regulations II of Nigeria Minerals and Mining Regulations 2011 and alongside Exhibits placed before this Court the plaintiffs are entitled to judgment against the defendant as claimed hereunder.”

In the event of affirmative answers, the reliefs therein sought as hereunder:
“The plaintiffs hereby seek against the Defendant the following reliefs.
I. An order for award of the sum of Three Billion Naira (N3, 000, 000, 000.00) damages in favour of families of nine (9) deceased persons, families of twelve (12) women who suffered untimely

miscarriages of pregnancies and family of one (1) daughter who suffered permanent paralysis in consequence of Defendant’s negligent acts vide pollutions of their sources of drinking water contaminated with mineral toxics, waste effluent released into the communities; pursuant to mining activities.
II. An order for award of the sum of Five Hundred Million Naira (500, 000, 000.00) only in damages in favour of five (5) persons who suffered various kinds of surgeries and one Hundred (100) people who suffered various kinds of diseases and complications and who are still on medication pursuant to the Defendant’s negligent conduct in contaminating their drinking water with mineral toxics and forms of pollutions in connection with mining activities.
III. An order for award of the sum of Four Hundred Million Naira (4, 000, 000.00) only damages in favour of over fifty (50) people who lost their livestock’s to wit: Cows, Sheep, Goats, Donkeys and fowls through the consumption of Defendant’s toxic water.
IV. An award of the sum of One Billion Naira (N1, 000, 000, 000.00) only damages in favour of sixty seven (67) farmers

whose farm produce were destroyed by flood released by Defendant, who suffered low yield/harvest of crops annually in consequence of land degradation pursuant to toxic minerals released from the mining that destroyed the fertility of the natural soil of over two hundred hectares of farmlands in the four affected communities that had been rendered unproductive.
V. An order for revocation of defendant’s mining lease and rights for non-compliance with the provisions of Sections 125 of the Nigerian Minerals and Mining Act 2007 and Regulation II of the Nigerian Minerals and Mining Regulations 2011 Section 16(4) of the National Minerals and Metal Policy 2008 which led to colossal loss of both human lives and material resources from the four affected communities.
VI. An order for perpetual injunction restraining the Defendant, its agents, servants and legal representatives from further carrying out mining activities that would be prejudicial to the plaintiffs in particular and the entire communities of Alatai, Kwilapandi, Kwibah and Komta in Billiri L.G.A. of Gombe State.
VII. An order directing the Defendant to enter a bond of community

development of the four affected communities of Alatai, Kwilapandi, Kwibah and Komta of Billiri L.G.A. of Gombe State to wit: construction of health centres for treatment of victims of mining activities, construction of roads for easy access and evacuation of victims, sinking of motorized boreholes to replace the contaminated streams, ponds and hand dug wells, electrification of the communities, buildings/renovation of schools in the affected communities; in order to raise hopes to the demoralized victims.
VIII. An order for the award of the sum of Three Hundred Million Naira (300, 000, 000.00) only general damages in favour of the plaintiffs against the Defendant.”

The gist and essence of the claim in the suit is that the Appellant is alleged to have been negligent in the course of its mining activities which resulted in deaths and illnesses suffered by the Respondents and other persons represented in the suit. In the 42 paragraph affidavit in support of the Originating Summons, some other causes of action disclosed are the breach of statutory duty of care, nuisance and the unnatural use of land (the Rule in Rylands V Fletcher).

Upon being served the Originating Summons, the Appellant filed a Notice of preliminary objection wherein he challenged the jurisdiction of the trial Court to entertain the suit on the following three grounds:
1. “The action is incompetent on the ground that the Hon. Court lacks jurisdiction to hear and determine the action.
2. The action is not properly commenced and the filing fees not paid as required by law.
3. The counsel that filed the action on behalf of the plaintiffs under the Legal Aid Act lacks the authority and legal capacity to institute action on behalf of the plaintiffs, in that the claim is not covered under Sections 7 and 8 of the Legal Aid Act 2004.
GROUNDS UPON WHICH RELIEF IS SOUGHT
1) The action under Section 251(1) (a-s) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Order 55 Rule 1(1) (2) of the Rules of Court cannot be heard and determined.
2) The action ought to have been commenced by way of a writ of summons, in that the matter is such that there are serious contestable facts that only pleadings can settle the facts. Serious hostile issues are involved.

3) The necessary filing fees was not assessed and paid as required by the Rules of Court.
4) Under the Legal Aid Act, the counsel who filed the action being an employee is legally not entitled to institute and prosecute the action on behalf of plaintiffs who are not entitled to enjoy the privilege of an indigent party to an action.”

By a Ruling delivered on January 29, 2019, the lower Court overruled the Appellant’s objection. Its reasoning and findings in respect of each ground of objection are inter alia as follows (pages 572 to 574 of the Record):
“I will now consider the issue of the competence of the Preliminary objection itself. Counsel to the plaintiffs/Respondents had argued that the preliminary objection is incompetent as same was filed without the defendant’s first filing a memorandum of appearance and same was not accompanied by an affidavit. Section 115 of the Evidence Act… Also in the case of the Chief Judge of Abia State Hon. Justice K.O. Amah & Ors v. Nwankwo (2007) LPELR-8225(CA), His lordship Rhodes-Vivour J.C.A. (as he then was) on pages 23-24 paragraph A had this to say –
“Preliminary objection

strictly speaking deals with law, consequently there is no need for supporting affidavit, but the grounds of the objections must be clearly stated. He went further to hold that “A preliminary objection may be supported by affidavit depending on what is objected to. If the preliminary objection is on law an affidavit is unnecessary, but if on facts an affidavit is mandatory.”
Grounds 2 upon which the defendant’s preliminary objection is grounded states … It is easy to see that this ground even though has its roots and origin in law, its resolution is firmly rooted in facts… These facts could only have been deduced by the Court if the defendants had bothered to file an affidavit of fact in support of this leg of the ground of objection, or at the very least put up a defence to the originating summons… the defendant ought to have filed an affidavit. It behoved on them to enlighten the path of the Court as it led it to the serious, contestable hostile facts alluded to. In the light of this failure, I find that ground two of the preliminary objection is incompetent and it is hereby struck-out.
I will deal with

grounds 3 and 4 together… Section 9(1) of the Legal Aid Act, 2011 states: “Legal Aid shall only be granted to a person whose income does not exceed the national minimum wage”… The plaintiffs have no burden to prove the regularity of the process used to decide their eligibility for Legal Aid. The onus to prove the irregularity or ineligibility of the plaintiffs for legal aid is that of the defendants as the law has become established on this point that he who alleges must prove… ground 3 and 4 upon which their preliminary objection is predicated must fail and I so hold and the said grounds 3 and 4 are hereby dismissed.
Finally, on grounds 1, which deals with the jurisdiction of this Court to hear and determine this matter, I will draw enlightenment from the case of Andee Iheme v. Chief of Defence Staff & Ors (2018) LPELR-45354(CA), the Court of Appeal in that case held inter alia: – “Thus, fundamental rights arising from matters outside its jurisdiction cannot be enforced by the Federal High Court”, it is not debatable that both the State and Federal High Courts have concurrent jurisdiction in the determination

of Fundamental Rights cases however this is subject to the original jurisdiction of the Court. In the instant case, the fundamental right to life which the plaintiffs now wants a determination on, steams (sic) from the mining activities of the defendants. Section 251(1) (N) of the 1999 Constitution clearly puts mining within the exclusive enclave of the Federal High Court…
In the light of the preceding, it is the holding of this Court that the honorable Court has jurisdiction over this matter and grounds 1 of this preliminary objection is also dismissed. In totality, I find that the preliminary objection is completely lacking in merit and is misconceived both in law and in the facts and same is hereby dismissed…” (Emphasis supplied)

Dissatisfied by this Ruling, the Appellant filed an Appeal vide a Notice of Appeal on February 7, 2019. Thereafter on May 31, 2019, the Appellant proceeded to file a counter-affidavit in answer to the averments in the supporting affidavit of the Originating Summons. In further response, the Respondents filed a Further and Better affidavit on June 6, 2019. Issues having been joined, the matter

proceeded to hearing on June 13, 2019.

Judgment was subsequently delivered on September 27, 2019. The issues which the learned trial Judge considered in basing its decision are as follows:
1. “Whether or not upon construction and interpretation, there exist any right(s) under Sections 123 and 125 of the Nigerian Mineral and Mining Act 2007; Regulation 11(4) of the Mining Regulations (2011) and Section 33(1) of the Constitution (as amended) 1999 in favour of the plaintiffs, which the defendant has violated?
2. Whether, there is before this Court sufficient evidence or proof to grant the reliefs sought by the plaintiffs in the event the first issue is in the affirmative?”

In its Judgment, the lower Court found the Appellant liable to the Respondents in part. It therefore granted some of the reliefs sought by the Respondents. He thus awarded damages against the Appellant in the sum of N100, 000, 000.00 (One Hundred Million Naira) and cost of N1, 000, 000.00 (One Million Naira).

Dissatisfied with the Judgment, the Appellant appealed to this Court vide two Notices of Appeal both dated September 27, 2019, but separately

filed on September 30, 2019 and October 28, 2019 respectively. At the hearing of the Appeal on September 16, 2020, the Notice of Appeal filed on September 30, 2019 was withdrawn and it was accordingly struck out. Thus, the Appeal and the Briefs of argument are predicated and argued on the Notice of Appeal dated September 27, 2019, but filed on October 28, 2019.

At the hearing of the Appeal on September 16, 2020, learned Counsel for the Appellant, A.M. Kayode, Esq. adopted and relied on the submissions contained in the Appellant’s Brief of argument dated and filed on 24-12-10, as well as the Appellant’s Reply Brief of argument filed on 25-02-20 in response to the Respondents’ Brief of argument, both Briefs of argument settled by him, in urging the Court to allow the Appeal and set aside the Judgment of the lower Court.

In turn, T.U. Lektu, Esq. Deputy Director with the Legal Aid Council, adopted the arguments in the Respondents’ Brief of argument filed on 05-02-20 and settled by P.K. Gayus, Esq. in urging the Court to dismiss the appeal and affirm the Judgment of the lower Court.

The Appellant in his Brief

of argument distilled four issues for the determination of the appeal as follows:
1) Whether the learned trial Judge rightly or wrongly assumed jurisdiction over the Respondents’ Suit despite the Court’s lack of substantive, subject matter and procedural jurisdiction over the Suit. (Grounds 3, 12, 13 and 14)
2) Whether the learned trial Judge rightly or wrongly assumed jurisdiction over the claims of the Respondents notwithstanding the fact that necessary statutory filing fees were not paid when the Suit was commenced and same was wrongly commenced by Counsel in the Legal Aid Council. (Grounds 1, 2 and 6)
3) Whether the Suit despite raising contentious issues, was rightly or wrongly commenced through Originating Summons. (Ground 5)
4) Whether [the] learned trial Judge rightly or wrongly held that the Respondents discharged their burden of proving the allegations made against the Appellant, their entitlements to the reliefs granted as well as the cost awarded. (Grounds 7, 8, 9, 10, 11, 15, 16, 17 and 18)

The Respondents in their Brief of argument adopted the issues formulated by the Appellant. Therefore, the issues framed by

the Appellant are adopted in the determination of the Appeal as they adequately cover the issues raised in the 18 Grounds of Appeal. However, since jurisdiction is a threshold issue and the life-blood of any suit before a Court of law, without which any proceedings conducted are futile, issue one and three shall be addressed first.

ARGUMENTS
Issue one – Whether the learned trial Judge rightly or wrongly assumed jurisdiction over the Respondents’ suit despite the Court’s lack of substantive, subject matter and procedural jurisdiction over the Suit.
Under issue one, learned Counsel for the Appellant submits that the essence and substance of the Respondents’ suit was that the Appellant was negligent in the conduct of its mining activities which has negatively affected the lives, properties and health of the Respondents and those represented by them. The Respondents also complained of an alleged breach of statutory duty by the Appellant in the course of its mining activities and the unnatural use of land through the discharge of toxic wastes. Counsel refers to paragraph 9 of the affidavit in support of the Originating Summons and submits that negligence, nuisance and the rule in Rylands V Fletcher

are central causes of action in the affidavit in support of the Originating Summons.

Based on this, the Appellant in his counter-affidavit and written address challenged the jurisdiction of the trial Court to entertain the suit. However, the learned trial Judge held that because the issue of jurisdiction had earlier been raised and argued in the Appellant’s Notice of preliminary objection and same had been dismissed on January 29, 2019, he could not sit on appeal over his decision. He therefore declined to determine the issue of jurisdiction raised in the substantive matter.

Counsel however submits that at the time the Appellant challenged the jurisdiction of the trial Court in its Notice of preliminary objection, she had not yet filed her counter-affidavit in response to the Respondents’ affidavit in support of their Originating Summons, because the objection was raised in limine. Instead, the counter-affidavit was filed after the ruling of the Court in respect of the objection on the issue of the jurisdiction of the lower Court to entertain the suit. He contends that after filing the counter-affidavit, the Appellant was still entitled

to raise the issue of jurisdiction fully, despite the fact that same had been raised partially as an interlocutory issue.

Counsel further submits that the fact that a Court has given an interlocutory ruling on an issue does not preclude the same Court from pronouncing on the same issue in its final Judgement. The rule which estops a Court from revisiting its Judgement is restricted to where the Judgement of the Court is a final one and not an interlocutory one, as in the instant case. Reliance is placed on Obineche V Akusobi (2010) 12 NWLR (Pt. 1298) 393; & Azazi V Adhekegba (2005) All FWLR (Pt. 484) 1545, 1561.

Counsel also submits that a Court has a duty to decide on every issue placed before it, and so the trial Court erred when it declined to decide on the issue of jurisdiction placed before it – Marine Management Associates Inc. V National Maritime Auth. (2012) 19 NWLR (Pt. 1333) 506, 532, A; & Dingyadi V INEC (2010) 18 NWLR (Pt. 1224) 1, 51, G-H.

On the substantive issue of jurisdiction raised in the counter-affidavit, Counsel submits that the Respondents’ cause of action which was based on the tort of

negligence, nuisance, the rule in Rylands V Fletcher and breach of statutory duty of care, are outside the subject-matter jurisdiction of the lower Court. They are outside the jurisdiction conferred on the Federal High Court by Section 251(1) of the 1999 Constitution (as amended), the Federal High Court Act and other enabling Laws.

Counsel submits that contrary to the reasoning of the lower Court, neither the Appellant nor the Respondents are agencies of the Federal Government. Also, the Respondents neither challenged the mining license of the Appellant nor did they make the provisions of the Minerals and Mining Act of 2007 the platform of their case. Therefore, the lower Court lacked subject-matter jurisdiction.

Counsel further submits that causes of action founded on tort are within the exclusive jurisdiction of the State High Court, and so again, the Federal High Court lacks substantive jurisdiction to entertain such causes – FBN Plc V Ben Segba Technical Services Ltd (2015) LPELR-25737(CA); & Rahman Brothers V NPA (2019) 6 NWLR (Pt. 1667) 126, 140-141, E-A.

Thus, in view of the apparent want of substantive jurisdiction of the lower

Court to entertain the suit, Counsel urged the Court to set aside the Judgment of the lower Court.

In response, learned Counsel for the Respondents submits that a cause of action and the standing to sue are linked to the issue of jurisdiction. Where the Plaintiff does not have a cause of action or standing to institute an action, the Court cannot properly assume jurisdiction to entertain the matter – Arowolo V Akaiyejo (2012) 4 NWLR (Pt. 1290) 286; UBN Plc V Ntuk (2003) 16 NWLR (Pt. 845) 191.

Counsel submits that the failure of the Appellant to prove that the Respondents had no locus standi to institute the action against the Appellant renders this issue, as well as the Appeal, doomed. Counsel also submits that the issue of jurisdiction is the subject of an interlocutory appeal before this Court in respect of the Ruling of the lower Court dismissing the Appellant’s objection to the suit.

Counsel further submits that the subject matter or cause of action is the entire set of factors or circumstances that give rise to an enforceable claim; every fact which is material to be proved to entitle the plaintiff to succeed. It is also the

Plaintiff’s claim that determines jurisdiction – Sulgrave Holdings Inc. V FGN (2012) 17 NWLR (Pt. …) 309 SC (citation incomplete); Nduka V Ogbonna (2011) 1 NWLR (Pt. 1227) 153; Emeka V Okadigbo (2012) 18 NWLR (Pt. …) 53 (citation incomplete). Counsel therefore submits that the Respondents’ claim or subject matter or cause of action or dispute against the Appellant at the lower Court was hinged on the heading of the Originating Summons which stated –
“In the matter of application for the interpretation of the construction of rights of the plaintiffs in Alatai, Kwilapandi, Kwibah and Komta communities as victims of Ashaka Cement Coal Mines located at Maiganga Village, Akko LGA of Gombe State.”

Counsel submits that the combined effect of the above application supported by the 42 paragraph affidavit of the Respondents, the 28 documentary Exhibits, 26 photographs, reliefs sought, and the submissions of the Respondents in their written address, comprise of the Respondents’ claim or subject matter in the suit before the trial Court. Counsel therefore submits that the Appellant’s submission that paragraph 9

of the Respondents’ affidavit rendered the Respondents’ claim to be one of the tort of negligence under the principle in Rylands V Fletcher amounts to a misconception of the law – Mosojo V Oyetayo (2003) 13 NWLR (Pt. 837) 343.

In addition, Counsel submits that the law applicable to a case is the law at the time when the cause of action arose and was initiated. Therefore, the law applicable to the Respondents’ case when the cause of action arose and the suit was initiated are as set out in the Originating Summons, to wit: Section 33(1) of the 1999 Constitution (as amended in 2011); Sections 123 and 125(a) and (b) of the Nigerian Minerals and Mining Act, 2007; and Order 3 Rules 6 and 7 of the Federal High Court (Civil Procedure) Rules, 2009. Counsel submits that the Appellant failed to prove that the subject matter is not within the jurisdiction of the lower Court and that it was improperly filed.

Counsel further submits that the Respondents’ claim was rooted in the Originating Summons seeking for the interpretation and construction of their rights in Section 33(1) of the Constitution vis-a-vis the Appellant’s

mining rights under the Nigerian Minerals and Mining Act, 2007 and Mining Regulations, 2011. Therefore, in line with the Respondents’ claim, only the Federal High Court has jurisdiction over minerals and mining matters – Section 251(1) (n) of the 1999 Constitution (supra); Emejuru V Abraham (2007) LPELR-5123(CA); Julius Berger (Nig) Plc V Anizzeal Eng. Projects Ltd (2013) LPELR-20694(CA); Mobil Producing Nig. Ltd V Suffolk Petroleum Services Ltd (2016) LPELR-40034(CA).

Counsel also submits that the Appellant’s contention that the learned trial Judge erred when he declined to determine the issue of jurisdiction raised in the Appellant’s counter-affidavit and written address was misconceived. He argues that the issue was already the subject of an Appeal vide the Appellant’s Notice of Appeal dated February 7, 2019, coupled with a motion for stay of proceedings pending the Appeal.

In a brief reply on point of law, learned Counsel for the Appellant submits that the submission on locus standi is extraneous to the Appeal because the Respondents’ want of locus standi is neither part of the Notice of Appeal nor the

Appellant’s Brief of argument. He therefore invited the Court to ignore the submissions on the issue.

With regard to the Respondents’ reliance on Section 33(1) of the 1999 Constitution (supra) which deals with the right to life, Counsel submits that it is misplaced. This is because the basis for the Respondents’ claim is negligence, breach of statutory duty of care leading to death and pollution of farm environment, which claims are outside the issue of fundamental rights.

On the Respondents’ reference to the title/heading of the Originating Summons being: “The interpretation/construction of the rights of the Plaintiffs…”, Counsel submits that by the Respondents’ pleadings as well as the explicit finding of the trial Court, negligence and the breach of duty of care are the Respondents’ cause of action; and these are outside the jurisdiction of the lower Court.

Counsel further submits that in determining the subject matter jurisdiction of any Court, the Court would look at the substance rather than the form/heading of the Plaintiff/Claimant’s claims. The suit was cloaked in the robe of a

fundamental rights enforcement. In substance however, the causes of action were negligence, breach of duty of care, pollution and unnatural use of land (rule in Rylands and Fletcher), which causes are not within the jurisdiction of the lower Court to entertain -Rahman Brothers Ltd V NPA (2019) LPELR-46415(SC).

In respect of the interlocutory ruling of the lower Court and the appeal filed against it by the Appellant on 07-09-19, Counsel submits that these events took place prior to the filing of the Appellant/Defendant’s counter-affidavit in response to the supporting affidavit of the Originating Summons. The ruling had therefore only dealt with preliminary issues which arose before the counter-affidavit was filed. Thus, the interlocutory appeal had been overtaken by events, and so was rendered academic.

Counsel submits that the hostile nature of the suit, as disclosed in the counter-affidavit and as acknowledged by the lower Court, ought not to have been ignored by the trial Court in its Judgement. Therefore, based on the changed circumstance, the learned trial Judge was not functus officio and the Appellant did not abuse the Court process on

the issue of jurisdiction. This is more so that ground 2 of the preliminary objection which dealt with the suitability of commencing the suit by means of an Originating summons was merely struck out, and not dismissed.

In addition, Counsel submits that, being an issue of jurisdiction, the Appellant was entitled to raise it regardless of the interlocutory ruling and even for the first time on appeal before this Court. Counsel again urged the Court to resolve issue one in favour of the Appellant.

RESOLUTION OF ISSUE ONE
Jurisdiction is a fundamental, radical and critical issue in adjudication as it goes to the root of all actions and proceedings in Court. A Court that operates without jurisdiction is like a builder erecting a building without foundation. Thus, adjudication must faithfully follow on the heels of jurisdiction. Consequently, any trial conducted or decision reached without jurisdiction is a complete nullity – Adetayo V Ademola (2010) All FWLR (Pt. 533) 1806. It is due to the overwhelming significance of the issue of jurisdiction that whenever it is raised in any proceedings, it should be determined by the Court before going into any

other issue -Okonkwo V Okonkwo (2010) 14 NWLR (Pt. 1213) 228; FBN Plc V TSA Inds. Ltd (2010) NWLR (Pt. 1216) 247.
Again, the issue of jurisdiction is delicate and fundamental. It strikes at the very root of any cause or matter. Hence, as aforesaid, any decision reached without jurisdiction, no matter how painstakingly reached, would come to naught at the end of the day. It is therefore imperative that any perceived flaw should be raised timeously, without any intention to overreach.

Before examining the substance of this issue, I must hasten to agree with learned Counsel for the Appellant that the issue of locus standi, (also referred to as standing to sue) raised by learned Counsel for the

Respondents in his Brief of argument, is entirely alien to this Appeal. It neither forms a part of the Grounds of Appeal nor has it been canvassed as an issue to be determined in this Appeal. Therefore, all the submissions made by learned Counsel for the Respondents on this are entirely misconceived and misplaced. They are therefore summarily discountenanced.

In respect of the jurisdiction/power of the trial Court to pronounce on the issue of jurisdiction raised at the hearing of the suit after it had been raised as a preliminary issue before issues were duly joined by the parties, I have to say that I do not agree with the Respondents and the learned trial Judge that the Appellant, by simply filing her objection on the ground of jurisdiction in limine at the onset of the proceedings, even before she filed her counter-affidavit to the Originating Summons, the door was permanently closed to it thereafter.
I am not unmindful of the reason advanced by the trial Court for refusing to countenance the issue of jurisdiction touching on the mode by which the suit was commenced. It based its refusal on the assertion that it had already pronounced upon the

issue of jurisdiction in its earlier ruling on the preliminary objection. Nevertheless, as was rightly submitted by the Appellant, the issue was raised afresh after the Appellant had now filed her counter-affidavit and issues had then been properly joined on the facts. In my respectful view, the issue of jurisdiction in the objection may have been raised prematurely in the overall circumstances of the case, that is, before issues were duly joined. However, subsequently when new facts came to light vide the counter-affidavit and therefore circumstances changed before the hearing of the substantive suit, the trial Court was not precluded from deciding or pronouncing on the issue of jurisdiction thrown up by the pleadings/affidavits and raised by the Appellant. That would not have amounted to sitting on appeal on its decision.
This is more so that from trial Court’s own ruling on the preliminary objection, it stated that it was hamstrung in agreeing with the Appellant that the suit was a hostile proceeding requiring a full hearing vide pleadings and oral evidence because the Appellant had not yet responded to the Respondents’ affidavit of facts.

Thus, the Appellant having subsequently filed its counter-affidavit still within the same proceedings, all the materials that were necessary had been placed before the trial Court, upon which it could have made a considered decision one way or another.
Certainly, the circumstances had changed with the filing of the counter-affidavit contesting the facts contained in the Respondents’ affidavit in support of the Summons, in addition to the filing of a Further and Better affidavit by the Respondents themselves. Therefore, the learned trial Judge was obligated to have pronounced on the issue of subject-matter jurisdiction raised in the light of the facts placed before it in substantive suit- Tsokwa v. Mijinyawa (2014) LPELR-24200(CA) 35, per Sankey, JCA.
It is also in this light that a trial Court has a duty and is enjoined to consider and make a pronouncement upon all the issues raised by the parties before it, especially when such issues touch on the matter of its jurisdiction. A trial Court ought not to confine itself to limited issues which it considers sufficient to dispense of the case. This is only reasonable in

order to obviate the danger of a higher Court holding a contrary view on the material nature of the issues raised. For the sake of emphasis, the Judge of a trial Court must demonstrate a full and dispassionate consideration of all the issues raised and canvassed before it. Failure to do so will lead to a failing or flaw in the case which, when resolved one way or another, could affect the ultimate outcome of the case on appeal – Orji V PDP (2009) 14 NWLR (Pt. 1161) 310, 408; Samba Petroleum Ltd V UBA Plc (2010) 6 NWLR 530, 531; Brawal Shipping V Onwadike (2000) 6 SCNJ 508, 522, per Uwaifo, JSC.

In respect of the substance of this issue, the Appellant has challenged the substantive jurisdiction of the trial Court on the ground of the absence of subject matter jurisdiction. In summary, it is Counsel’s submission that:
a) by the jurisdiction conferred on the Federal High Court by Section 251 of the Constitution (supra), it was not vested with jurisdiction to entertain causes or matters based on the torts of negligence, duty of care and the rule in Ryland V Fletcher;
b) By the claim of the Respondents as contained in the affidavit in

support of the Originating Summons, particularly paragraphs 9 to 12 thereof, their cause of action was based on the torts of negligence, nuisance, breach of duty of care and the rule in Ryland V Fletcher. It is therefore the State High Court, and not the Federal High Court, that was vested with the subject-matter jurisdiction to entertain the suit.
On the matter of whether or not by Section 251(1) (n) of the Constitution, the trial Court was vested with jurisdiction to entertain the suit, it is settled law that jurisdiction is not conferred by parties to a suit, contrary to the submission of learned Counsel for the Respondents. Rather, it is granted by Statute. As such, it cannot be removed or conferred by any act of the parties. I therefore do not agree with the Respondents that the mere heading or titling of the Originating Summons (which heading was actually inserted by the Respondents themselves), was sufficient on its own to decipher the cause of action of the Plaintiffs, to wit:
“In the matter of application for the interpretation and construction of rights of the plaintiffs…”
It goes beyond that.

Section 251(1) (n) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides –
“251. (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas);”
What the entire provisions of Section 251(1) (a)-(s) of the Constitution does is that it makes the Federal High Court a Court of enumerated jurisdiction, and not one of general jurisdiction. Thus, for the Federal High Court to have jurisdiction over a matter, the subject matter of the action must fit into one of the enumerated areas of jurisdiction. This point was made by Nweze, JCA (as he then was) in Oladipo V Nigerian Customs Service Board (2009) 12 NWLR (Pt. 1156) 563, 585 thus:
“Before we return to this question, we must first return to the implication of the drafting technique in Section 251 (supra). The point must be

noted that the draftsman of that section painstakingly itemized the subject matters that fall within the exclusive jurisdiction of the Federal High Court. In all, that section vested exclusive jurisdiction on the Federal High Court in eighteen major items… The implication of this technique is that the said Court (Federal High Court) is actually a Court of enumerated jurisdiction, that is, a Court whose jurisdiction is not only delimited by statute but whose jurisdiction is delineated in relation only to the subject matter enumerated therein. It would therefore, amount to wreaking havoc on the express letters and intendment of the said Section 251 to construe it as granting the said Court a carte blanche to deal with every conceivable matter (that is beyond those expressly enumerated… The effect of the circumscription of the jurisdiction of the Court to those eighteen major items is that whenever the question of jurisdiction of the Court is canvassed, attention ought to be focused on the subject matter of the suit. If the subject matter of the suit cannot be pitch forked into any of those eighteen items, then that Court is not the proper forum

for the ventilation of the action…”
Courts have also consistently held that it is the case of the Plaintiff as endorsed on the Writ of summons and elaborated in the Statement of claim, or any other originating process such as the Originating Summons and affidavit in support, in the instant case, that determines the jurisdiction of the Court – Elelu-Habeeb V AG Federation; Merill Guaranty Savings & Loans Ltd V WorldGate Building Society Ltd; Uwazurike V Nwachukwu (2013) 3 NWLR (Pt. 1342) 503; Ahmed V Ahmed (2013) 15 NWLR (Pt. 1377) 274.
That is also why Courts do not look at faces, designations or duties of parties, and by the same reasoning, do not look at subjective titles or headings crafted by parties to a suit, to determine whether or not it has jurisdiction – Dagazau V Borkir Int. Co. Ltd (2011) 14 NWLR (Pt. 1267) 261.
Thus, where the cause of action of a plaintiff does not fit into one of the enumerated areas of jurisdiction of the Federal High Court as spelt out in Section 251(1) of the Constitution, the fact (for instance) that one of the parties to the action is the Federal Government or an agency of the Federal

Government, is irrelevant and it cannot give the Federal High Court jurisdiction over the subject matter. It is only where both the High Court and the Federal High Court have concurrent jurisdiction over a subject matter that the fact that one of the parties is the Federal Government or an agency of the Federal Government is relevant; and it is in such a situation that the decisions in NEPA V Edegbero (2002) 18 NWLR (Pt. 798) 79 and Abia SIEC V Kanu (2013) 13 NWLR (Pt. 1370) 69 become useful. See Adetayo V Ademola (2010) 15 NWLR (Pt. 1215) 169; Ahmed V Ahmed (supra); Ahmed V Ahmed (supra); NNPC V Idi Zaria (2014) LPELR-22362(CA).
By the same reasoning, the fact that a Plaintiff decides to cloak his suit by its heading, in the garb of a Fundamental Rights action – claiming right to life vide Section 33(1) of the Constitution (supra), arising from an alleged negligence, breach of statutory duty of care, nuisance and pollution as a result of the mining activities of a Defendant – Sections 123 & 128 of the Minerals and Mining Act, does not automatically place it within the fold of matters delineated under Section 251 of the Constitution

Constitution to be heard exclusively by the Federal High Court.
Instead, the law is settled that in the matter of the substantive jurisdiction of a Court conferred upon it by the Constitution or by Statute, it is either the Plaintiff’s Writ of summons and statement of claim or his Originating summons and affidavit in support (as the case may be), that will be examined to establish his cause of action. It is the deciphering of the cause of action from this exercise that is used in the determination of whether or not the Court is vested with jurisdiction to entertain, hear and determine the suit. Indeed, the Court will not even examine the counter-affidavit or statement of defence filed by the other side.
This was the position of the Supreme Court in its landmark decision in Inakoju V Adeleke (2007) LPELR-1510(SC) 54-55, per Tobi, JSC:
“There is a common agreement that in the determination of Jurisdiction, the Court process to be used is the pleading of the plaintiff, which is the statement of claim. As this action is commenced by originating summons, the Court process to be used is the affidavit in support of the summons. In

other words, the Court will not examine a counter-affidavit even if filed… Put differently, it is the case put forward by the plaintiff that determines the jurisdiction of the Court.”
Again in the more recent decision of the Supreme Court in Lau V PDP (2017) LPELR-42800(SC) 33, B-D, Augie, JSC reiterating its earlier decision, held:
“As the Appellant rightly submitted, it is the plaintiff’s pleading that is used in the determination of whether the Court has jurisdiction, and the Court will not examine a Counter-affidavit filed by the other side – Inakoju V Adeleke (supra), where this Court stated clearly that it is the Affidavit in support of the Originating Summons that is used in determining the issue of whether or not the Court has jurisdiction.”
See also Rahman Brothers Ltd V NPA (2019) LPELR-46415(SC) 7-15, F-D, per Onnoghen, JSC.
In the instant case under consideration, the Respondents filed a 42 paragraph affidavit in support of their Originating Summons. Paragraphs 5 to 20 (at pages 30 to 34 of the Record) thereof state as follows:
4. “…
5. I further know as a fact that the

Defendant commenced mining of coal deposits at Maiganga Village sometimes in 2011 which is approximately eight (8) years till date.
6. That the Defendant’s site at Maiganga Village of Akko L.G.A. of Gombe State is located at the geographical boundary of Billiri L.G.A. of Gombe State thus, Alatai, Kwilapandi, Kwibah and Komta communities respectively are neighbouring communities to Maiganga Village and the mining site in particular with less than two (2) kilometers proximity.
7. That the major source of livelihood of the four (4) communities of Alatai, Kwilapandi, Kwibah and Komta is farming and pasturing respectively. That they cultivates (sic) maize, guinea corn, beans, groundnuts in commercial quantity and also rear cows, goats and sheep.
8. I know as a fact that agricultural activities had drastically dropped in the four (4) communities in consequence of the mining activities of the defendant.
9. I also know as a fact that this cause of action arose pursuant to the defendant’s want of due care and attention to protect the interest of the four (4) border communities near its mining site. The defendant negligently constructed a

mine drainage to drain excess water collected in the mining site at the rainy season which drainage later developed into a dam contaminated with all sorts of toxic minerals, that the defendant without any control mechanism cause this polluted water to over flood and contaminate the sources of drinking water of the inhabitants i.e. streams and hand dug well as well as farmlands and crops. The photographs of the mine drainage dated 01/07/0218 (sic) is hereby attached and marked exhibits A1, A2, A3 and A4 respectively.
10. That apart from the impact of mine drainage purposefully constructed to evacuate excess water and divert same to the four affected communities, the defendant also negligently pile hills of waste debris from the mining site and littered same at the border of the four affected communities which toxic materials therein are washed by the rain into the farmlands and crops of the four (4) affected communities with devastating effect to human lives, animals and crops.
The photographs of the dumped waste debris depicting the hills dated 22/5/2015 and 01/07/2018 is herein attached and marked exhibits B1, B2, B3, B4, B5, B6, B7, B8, B9,

B10 and B11 respectively.
11. I further know as a fact that the over flooding water from the defendant’s mining site has affected all hand dug wells and natural streams and ponds used by the inhabitants of the four communities. That since they have no alternative source of drinking water they were coerced to resort to use of the contaminated surface water at the streams and ponds for themselves and their animals.
The photographs of the contaminated water streams and ponds is herein attached and marked exhibits C1, C2, C3, C4, C5, C6 and C7 respectively.
12. That these chemical waste/effluent, air pollution and noise released from the mining site into the territory of Alatai, Kwilapandi, Kwibah and Komta respectively for the past eight (8) years of mining activities has destroyed several lives of the inhabitants, large hectares of planted crops, several economic trees, varieties of livestock and has degraded the entire farmlands and pastoral fields as unproductive.
13. I know as a fact that immediately mining activities commence, my subjects in the four (4) affected communities suffered several forms of health

hazards ranging from miscarriages of pregnancies in women, high infant mortality, diarrhea, paralysis, eye problems leading to permanent blindness, stomach aches, repeated headaches, body rashes, etc that inconsequence Alatai community loss 6 people while Kwilapandi 2 and Kwibah 1 respectively. That all these wanton deaths were traced to complications from mining activities from diagnosis from different Hospitals, clinics and laboratories in Gombe State.
14. I further know that apart from 8 deaths recorded, Alatai community also suffered 12 miscarriages of pregnancies while 5 people had to undergo various forms of surgery. Then a total of 20 people in all the four communities were treated of severe stomach aches and one (1) suffered permanent paralysis at Komta community.
The hospital clinics cards and laboratory cards showing different kinds of diagnosis of illnesses of patients is herein attached and marked exhibits D1, D2, D3, D4, D5, D6, D7, D8, D9, D10, D11, D13, D14, D15, D16 and D17 respectively.
15. I know as a fact that apart from the health hazard meted on the four communities herein the mining activities also had adverse environmental

hazard on the communities. That the communities suffered a serious destruction from the contaminated water released from the mining site which over flooded on several hectares of farmlands and destroyed crops of sixty-seven (67) farmers. That pursuant to the said destruction I cause a letter of complaint to the paramount ruler His Royal Highness, Mai Tangle for his intervention to no avail. The letter of complaint dated 29th June, 2008 is hereby attached and marked as exhibits “E1, E2 and E3”.
16. That pursuant to the release of toxics, mineral wastes/effluent from mining activities into the territory of the four (4) communities the farmlands which formerly were very fertile have now suffered severe degradation, in that they are no longer productive as the soil doesn’t respond to fertilizer application, in the interim the vegetation does not produce grasses and shrubs for livestock feed inconsequence the area is fast turning into a desert.
The photograph of soil degradation is herein captured and marked as exhibit “F”.
17. That the persistent flood from the mines drainage and dam due to the

defendant’s mining activities has adversely washed away the feeder road linking Kwilapandi community to the adjourning (sic) communities. That pursuant to the danger of deep pot holes which rendered the community inaccessible particularly during rainy season, this prompted the communities to appeal to Billiri L.G.A. to permit the defendant rehabilitate the feeder roads to ameliorate their sufferings in which the Local Government responded positively but to no avail. The reaction of Billiri L.G.A. vide letter Ref. BRLG/GEN/2/V.II dated 25/1/2015 is herein attached and marked as exhibit “G”.
18. I know as a fact that in spite of the colossal loss suffered by these communities in terms of loss of lives, ill-health, loss of livestock, crops, economic trees and environmental degradation pursuant to the defendant’s mining activities, the defendant has never embark on intervention projects to ameliorate the sufferings of the communities how so ever.
19. I also know as a fact that when the mining activities with its attendant consequences persisted unchecked by the regulatory authorities we had no alternative than to engage the

services of a legal Attorney Messrs M.A. Galaya & Co who petition the defendant against its excesses that the said letter was copied to all regulatory organizations in the mining sector.
The letter cause to the defendant dated 21/5/2015 is hereby attached and marked as exhibit “H”.
20. I further know as a fact that after receipt of our Attorney’s letter over fourteen (14) months previously and the defendant in a rude reaction vide his solicitor Messrs A. Dauda & Co blatantly denied all his misdeeds and claimed to be a saint in the matter.
The defendant’s reaction vide a letter from his solicitor dated 26th September, 2016 is herein attached and marked as exhibit “I”.” (Emphasis supplied)
There is no doubt that the Appellant was engaged in the business of mining of coal in Maiganga in Gombe State, and that the Respondents’ complaints are that as a result of actions amounting to the torts of negligence, nuisance, breach of statutory duty of care and pollution, they suffered losses and damages to their persons and properties. It is based on these complaints that

they filed the action before the lower Court seeking both declarations, monetary claims and injunctions against the Appellant.
From the above paragraphs of the affidavit, it is self-evident that the Respondents’ claim was not at all based on either the mining rights of the Appellant or any claim against them pertaining to the mining license granted to them, or the excavation of any minerals from the mining site or the like. Instead, their complaints are hinged entirely on allegations that as a fall-out of the mining of coal by the Appellant on a site close to the Respondents’ communities, they have suffered loss of lives, illnesses and damage to their environment, land and animals due to pollution in the air and water.
That being the case, in spite of the self-described or self-imposed heading/title at the top of the Originating Summons that it was an application for the interpretation of Section 33(1) of the Constitution (supra) and Sections 123 and 125(a) and (b) of the Nigerian Minerals and Mining Act, 2007 inter alia, the cause of action of the Respondents as disclosed in the affidavit in support of the Summons is one for the torts

of negligence, nuisance, pollution and breach of statutory duty of care. Consequently, the cause of action is not covered by Section 251(1) (n) of the Constitution (supra).
Based on the settled position of the law, since the cause of action as evident from the affidavit of the Respondents, is the alleged negligence, nuisance, breach of duty of care and unnatural use of the land by the Appellant, the avowed position of the law by virtue of Section 251(1)-(4) of the Constitution (supra) which delineates and circumscribes the jurisdiction of the Federal High Court, is that the trial Court is without jurisdiction to entertain the Respondents’ claim. Again, this is notwithstanding the fact that the alleged torts of negligence, nuisance, pollution and breach of statutory duty of care were committed by the Appellant in the course of carrying out her mining of Coal deposits in a neighbouring village. Contrary to the finding of the trial Judge, this, without more, does not automatically bring it within the confines of Section 251 (1) (n) of the Constitution (supra) such as to confer jurisdiction on the trial Court, to wit: Federal High Court. Issue one is

therefore resolved in favour of the Appellant.

Issue three – Whether the suit despite raising contentious issues, was rightly or wrongly commenced through Originating Summons.
Under this issue, learned Counsel for the Appellant submits that the Respondents in their suit instituted vide an Originating Summons, raised issues of breach of statutory duty of care, death of community members, water pollution and non-natural use of land in the affidavit in support thereof (paragraphs 9 to 17). In response, the Appellant filed a counter-affidavit wherein she joined issues with the Respondents on the alleged negligence in her mining activities. In this regard, the Appellant pleaded the use of best practices in the disposal of waste arising from her activities, and also pleaded compliance with rules and regulations made by regulating authorities in the conduct of her mining activities. Both the Appellant and the Respondents relied on conflicting reports of experts. However, none of the experts testified or was cross-examined. Based on these, Counsel submits that the issues placed before the lower Court were very contentious and so warranted the taking of oral

evidence.

Counsel therefore submits that the Originating Summons was not suitable for this proceeding which was evidently of a hostile nature. Counsel relies on Order 3 Rules 2, 6 and 7 of the Federal High Court Rules, 2009 which are clear provisions on when a suit can be commenced through a Writ of Summons and when it will be appropriate to commence a suit through an Originating Summons. He also relies on Asogwa V PDP (2012) LPELR-8575(CA); Sanbell Investment Ltd V Emlo Holdings Ltd (2014) LPELR-22991(CA). Counsel finally urged the Court to resolve this issue in favour of the Appellant.

In response, learned Counsel for the Respondents relies on Order 3 Rule 1 to submit that a party has an unfettered discretion to decide the mode of commencement of his suit. He contends that the Appellant missed the substance of the Respondents’ suit, especially in view of the wordings of the application in the Respondents’ Originating summons. He argues that by the nature of the Respondents’ application and fundamental rights issues raised therein, only proceedings vide an Originating Summons can remedy

it, as proceedings commenced by way of a Writ of summons cannot interpret the fundamental rights of a party.

Counsel submits that this same issue was canvassed in the preliminary objection raised by the Appellant at the lower Court which he failed to support with an affidavit. Thus, having failed to disclose the alleged contestable facts and hostile issues, it is caught by the presumption of law in Section 167(d) of the Evidence Act, 2011. Besides which the ruling of the lower Court on the preliminary objection is the subject of an appeal filed on September 7, 2019 filed by the Appellant.

Finally, Counsel submits that even in the substantive suit, the Appellant failed to prove any contestable issue vide the counter-affidavit and Exhibit ASG1 (the Environmental Report) filed as its defence to the claim in the Originating Summons. He therefore urged the Court to resolve this issue in favour of the Respondents.

In a brief reply on point of law, learned Counsel for the Appellant submits that the Respondents lack the unfettered right to determine the mode of commencing the suit before the lower Court. Instead, whereas an Originating Summons can only

be utilized where facts are not disputed; a Writ of Summons is the appropriate mode of commencing a suit where facts are disputed and evidence ought to be taken – Incorporated Trustees of all Farmers Assoc. Of Nigeria V Akpan (2018) LPELR-44342(CA). In this regard, Counsel refers to page 11 of the Judgement where the learned trial Judge acknowledged that “the facts of these claims are serious and contentious.” Thus, the Originating Summons was an inappropriate mode for the commencement of the suit.

In respect of the claim for special damages for the destruction of the Respondents’ crops and means of livelihood, Counsel submits that this has no relationship with the fundamental right to life which the Respondents contend is their cause of action. Special damages must be specially pleaded and strictly proved. Thus, special damages cannot be awarded where a suit is commenced by Originating Summons. For the same reason, Section 167(d) of the Evidence Act only applies where a document which a party ought to have produced was not produced. It does not apply to situations where the suit is commenced by Originating Summons and a trial is not

conducted.

RESOLUTION OF ISSUE THREE
The starting point in the resolution of this issue of whether or not the suit before the trial Court was properly instituted vide the Originating summons, must be to reiterate my earlier findings under issue one above, which is that: the cause of action of the Respondents as disclosed in their affidavit in support of the Originating summons is the torts of negligence, nuisance, pollution, and breach of statutory duty of care leading to loss of lives, illnesses, pollution and degradation of the air, water, land and environment in their communities.
Now, negligence has been defined in the Oxford Advanced learner’s Dictionary 5th Edition as “lack of proper care and attention, careless behaviour”. In its 8th Edition, it is defined as “failure to give somebody/something enough care and attention”. Thus legally, negligence has been described as being the omission to do something which a reasonable man would do, or the doing of something which a reasonable man would not do. Thus, to maintain an action for negligence, it must be shown (a) that there was a duty on the part of the

defendant towards the person injured; (b) that the defendant negligently performed or omitted to perform his duty; (c) that such negligence was the effective causes of injury or damage to the plaintiff.
Therefore, what amounts to negligence is a question of fact and not one of law; and each case must be decided in the light of its own facts and circumstances. Hence, for a Plaintiff to succeed in an action for negligence, he or she must plead all the particulars of the negligence alleged in sufficient detail and the duty of care owed by the Defendant; and all these must be supported by credible evidence at the trial. A Plaintiff can only succeed in an action for negligence if, in addition to pleading it and the particulars thereof, he/she must also show the duty of care owed to him/her by the Defendant and the breach of that duty by the Defendant. It is not enough to allege all these in pleadings without establishing them by credible and reliable evidence at the trial. See Universal Trust Bank Ltd V Ozoemena (2007) LPELR-3414(SC) 13-21, D-E, per Kalgo, JSC. A few weighty pronouncements from the apex Court may be useful to illustrate this.

supposed duty is founded and the duty to the Plaintiffs, in breach of which the Defendant is sued; particulars must be given in the pleading showing in which respect the Defendant was negligent; and the details of the damage sustained. These facts must thereafter be established/proved by credible evidence adduced before the Court to the standard required in civil suits, which is on a balance of probabilities.
This is as diametrically opposed to instances which call for the institution of a suit by means of an Originating Summons where it is focused mainly on the construction and/or interpretation of statutes, instruments, contracts, wills, and other such documents. Therein also, it is supported by affidavit evidence and it is presumed that facts are not in dispute.
In addition to negligence, the Respondents have also made nuisance a part of their cause of action. On what constitutes a nuisance, it must appear that physical injury is inflicted on the Plaintiff’s property; or that the ordinary use of the Plaintiff’s property is materially interfered with. However, whether anything is a nuisance is to be determined, not merely by an

abstract consideration of the thing itself, but with reference to the locality, the duration, and all the circumstances, which again calls for evidence to be adduced, both oral and documentary. This is more so where, as in the instant case, the facts are disputed. It warrants the calling/adducing of evidence in support to resolve the conflicts inherent therein. See Universal Trust Bank Ltd V Ozoemena (2007) LPELR-3414(SC) 27-28, A-D, per Oguntade, JSC; Bolton V Stone (1951) AC, 865; Prosser V Levy (1955) 1 WLR 1224.
As has been rightly submitted by learned Counsel for the Appellant, Order 3 Rules 6 and 7 of the Federal High Court Rules are lucid and explicit in providing direction as to when a suit can be commenced through an Originating Summons; while Order 3 Rule 2 provides for situations when it will be appropriate to commence a suit vide a Writ of Summons. For the avoidance of doubt, the requisite Rules provide –
“ORDER 3
1. Subject to the provisions of any enactment, civil proceedings may be begun by writ, originating summons, originating motion or petition or by any other method required by other rules of Court governing a

particular subject matter.
2. Subject to the provisions of these Rules or any applicable law requiring any proceeding to be begun otherwise than by writ, a writ of summons shall be the form of commencing all proceedings:
a) Where a plaintiff claims:
i. any relief or remedy for any civil wrong, or
ii. damages for breach of duty, whether contractual, statutory or otherwise, or
iii. damages for personal injuries to or wrongful death of any person, or in respect of damage or injury to any person, or property.
b) Where the claim is based on or includes an allegation of fraud, or
c) Where an interested party claims a declaration.”
Thereafter, Rules 6 and 7 of the Rules provide –
6. “Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
7. Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right

depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.”
Consequently, it is beyond doubt that by Rules 6 and 7 of Order 3, only non-contentious suits which deal with the interpretation of statutes, documents and contracts may be commenced through Originating Summons. Thus, where a party seeks any relief or remedy for any civil wrong, or damages for breach of duty, whether contractual, statutory or otherwise, or damages for personal injuries to or wrongful death of any person, or in respect of damage or injury to any person, or property, more so where the claim is contentious and the proceedings hostile cannot be commenced by way of an Originating Summons, but by a Writ of Summons. Thus, contrary to the submission of learned Counsel for the Respondents, it is utterly misleading to say with reference to Order 3 Rule 1 of the Rules that a party has an unfettered discretion to decide on the mode/manner in which to institute an action. It is certainly not so. A combined reading of Order 3 Rules 1 and 2 along with

Rules 6 and 7 expose the fallacy in this notion.
The allegations of breach of statutory duty of care, negligence, nuisance, water pollution, unnatural use of land (the Rule in Rylands V Fletcher) alleged against the Appellant in the Respondents’ affidavit requires oral evidence as well as documentary evidence (where available) as the vehicle of proof. Thus, such causes of action should not be determined on the strength of an Originating Summons which is completely limited to situations where there is absolutely no disputes on facts and is based instead on the construction and interpretation of statutes and/or documents.
In addition to this, the suit in which special damages for negligence, death and bodily injuries were alleged to have been caused by the Appellant, ought not to have been on the basis of an Originating Summons because any award in that regard requires strict proof. See Asogwa V PDP (2012) LPELR-8575(CA); Sanbell Investment Ltd V Emlo Holdings Ltd (2014) LPELR-22991(CA).
For the sake of emphasis and in the interest of clarity, since the competing affidavits before the trial Court, to wit: the Plaintiffs’ affidavit in

support of the Originating Summons, the counter-affidavit of the Defendant and the Further and Better affidavit of the Plaintiffs, are undoubtedly conflicting and reveal the very hostile nature of the Respondents’ case against the Appellant, the case is not one which should have been determined based solely on affidavit evidence. Instead, by reason of the manifest and apparent disputations on facts and the contentious nature of the matter, the case called for a full hearing on the General Cause List, with its attendant requirements for the filing of pleadings and the taking of both oral and documentary evidence, which would be subjected to tests of veracity in the form of examination-in-chief, cross-examination and re-examination, in proof of the allegations and in defence thereof.
This Court, as well as the apex Court, have consistently pronounced on this settled position of the law. For instance, in the case of Dawlang V COP, Enugu State (2017) LPELR-43449(CA) 26-28, E, this is what my learned lord, Ogunwumiju, JCA had to say on the subject:
“On the mode of commencement as submitted by the Respondents’ counsel,

Order 3 of the Federal High Court Rules provides for form and procedures relating to commencement of action in the Federal High Court. Rules 1, 2 and 6 of the said Order provides as follows: …
The procedure of originating summons is meant for actions between parties who are substantially agreed on the facts of the case but merely want a directive of the Court on a certain point of law, mere construction of documents, etc. There is no need for pleadings. Where there are substantial disputed facts, the proper mode for commencing such an action is by writ of summons so that pleadings can be filed. Thus, as a matter of procedural requirement, it is improper to commence proceedings by originating summons where the facts are or are likely to be contentious and disputed. Due to the restricted and confined purview of originating summons, where it is unclear to counsel whether or not to commence an action by a writ of summons or by an originating summons, it is only advisable and good practice to adopt a writ of summons.”
See also the decision of Saulawa, JCA in the case of AG Ondo State V Tene (2015) LPELR-25730(CA) 60-61, E-A.
Interestingly, the learned trial

Judge in his Judgement, agreed with the Appellant that the issues raised in the affidavit of the Respondents were contentious. Yet in spite of this, he still proceeded to hear and determine the suit based solely on the affidavit evidence placed before him, instead of ordering for pleadings and taking oral evidence to resolve the contentious issues, in faithful obedience to the Rules governing the procedure of that Court.
For ease of reference, the learned trial Court held as follows in its Judgement, particularly at pages 639 to 640 of the Record:
“It is my view that the standard of proof described in the case cited supra, has not been adequately satisfied by the plaintiffs especially in the face of the defendant’s denials as the facts of those claims are in serious contention, and the evidence lead (sic) in support to establish damages in the realm of special damages by the plaintiffs are manifestly insufficient… I have meticulously gone through the said exhibits and I fail to see how they have established the nexus of the mishap of ill-health to the contamination or pollution of their water or communities by the defendant. The

evidence shows at best that people in that community suffered from medical conditions and ailment which plagues the human race in general…
Failure to link the act of the respondent conclusively to the loss for which damage is being claimed can only lead to a dismissal of the claim for damages. Based on the foregoing principles, I find that the plaintiffs have failed to link the action of the defendant to their loss and accordingly, those heads of claims must fail and I so hold.” (Emphasis supplied)
Significantly from the above findings, the learned trial Judge recognized that the facts in the affidavits before him were “in serious contention” and therefore hostile. That being the case, the least that was expected of him, subject of course to the Court having subject matter jurisdiction, (which based on my finding under issue one above, it did not have), was to have immediately ordered for pleadings to be filed and oral evidence to be adduced in order to resolve the obvious disputes on facts revealed in the various affidavits of the contending parties.
It is therefore for these established facts that I hold the

considered view that the trial Court was in error in when it proceeded to hear and determine the suit wherein it was evident that facts were strongly in dispute, vide an Originating Summons. I am of the firm view that from the affidavit evidence and the exhibits in support of the claim for negligence, nuisance, pollution and breach of statutory duty of care, the trial Court was quite wrong to assume and exercise jurisdiction in the circumstances. It was certainly not the appropriate or right vehicle for the Respondents to have transported its claims against the Appellant to the trial Court. Instead, by virtue of Order 3 Rule 2 of the Rules of that Court, the Respondents should have approached the Court via a Writ of Summons; and failing that, the learned trial Judge, upon coming to the realization that facts were violently in dispute and that the proceedings were therefore hostile, should have immediately ordered for pleadings to be filed and promptly transferred the case to its General Cause List for a full-fledged trial. Based on these findings, issue three is also resolved in favour of the Appellant.
In conclusion, it is my finding that both on the

matter of substantive and subject matter jurisdiction of the trial Court based on Section 251(1) of the Constitution (supra), and on the matter of hearing such hostile proceedings where the facts are in dispute by means of an Originating Summons, the trial Court was bereft of jurisdiction to hear and determine the suit as it purported to do. I do so find.

In view of these findings, the suit before the trial Court was incompetent and the trial Court was without jurisdiction to hear it, the preconditions to jurisdiction having not been met. See the locus classicus on the subject of jurisdiction – Madukolu V Nkemdilim (1962) LPELR-24023(SC) 910, F-D, per Bairamian, JSC. Therein, the apex Court set down the yardsticks for measuring whether or not a Court is vested with jurisdiction and is competent to hear a matter as follows:
“Put briefly, a Court is competent when –
(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents

the Court from exercising its jurisdiction; and
(3) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well-conducted and decided; the defect is extrinsic to the adjudication.” (Emphasis supplied)
In affirming and restating its position in the Madukolu’s case (supra), the Supreme Court, per Mohammed, JSC in WAEC V Akinkunmi (2008) LPELR-3468(SC) 25, E, again stated –
“The law is trite that where a claim is not initiated by due process of law, the claim is incompetent and where all the same, the claim was heard by the Court, the proceedings before the Court are a nullity. See Madukolu & Ors v. Nkemdilim & Ors (1962) 2 S.C.N.L.R 341.”
Consequently, the trial Court having acted without jurisdiction, the appropriate Order to make is one of striking out. Where a Court lacks jurisdiction and the suit itself is declared incompetent, all the proceedings thereunder are a nullity, no matter how well conducted. Having come to this determination, this

Court is unable to proceed to determine issues two (2) and four (4) for determination as they have been rendered otiose and redundant.
It is therefore for the above reasons that I hold the considered view that the trial Court lacked the jurisdiction to hear and determine the suit as constituted, and that the trial Court was wrong in holding otherwise. Therefore, all the proceedings of the trial Court, including the Judgment and Orders made therein, are hereby declared a nullity.
In the result, I find merit in the Appeal. It succeeds and is allowed.
Accordingly, the claim of the Respondents before the Federal High Court Gombe Division in Suit No. FHC/GM/CS/22/2018, delivered on September 27, 2019 by Afolabi, J., is hereby struck out both for lack of jurisdiction and for the incompetence of the suit.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had read in draft the judgment just delivered by my learned brother SANKEY JCA. I agree with her reasoning but I will add a few words of mine in the area of jurisdiction.

The question of jurisdiction of a Court is a radical and crucial question of

competence because if a Court had no jurisdiction to hear a case, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be because a defect in competence is not intrinsic but extrinsic to the entire process of adjudication Dapianlong vs Dariye (2007) 8 NWLR pt 1036 pg 330.
More importantly the issue of jurisdiction can be raised at any time by a party even on appeal in the Supreme Court. It is important that the issue of jurisdiction should be raised timeosely and resolved first before embarking on further proceedings. Ukwu vs Bunge (1997) 8 NWLR pt 518 pg 527. Jeric Nig Ltd vs U. B. N Plc (2000) 12 SC pt II pg 133; A.G Lagos State vs Dosunmu (1989) 3 NWLR pg 552, Nnonye vs Anyichie (2005) 2 NWLR pt 910 pg 623.
The Appellant without filing its counter affidavit filed a preliminary objection which the lower Court dismissed. When the Appellant filed its counter affidavit, the question of jurisdiction cropped up again but the learned trial judge foreclosed dealing with that challenge.
It is trite law that Courts are creatures of statutes and it is the Statute that created

a particular Court that will also confer on it, its jurisdiction. Jurisdiction may be extended not by the Courts but by the legislature. See Okulate vs Awosanya (2000) 1 SC pg 107, Messrs NV Scheep vs The MV S Araz (2000) 12 SC pt I pg 164.
Where the jurisdiction of a Court over a suit is challenged, the Court is entitled under Section 6 of the 1999 Constitution to consider the plaintiff’s claim before it in order to decide whether it has the jurisdiction to entertain it. See Adeleke vs OSHA (2006) 16 NWLR pt 1006 pg 608; Egbebu vs I.G.P (2006) 5 NWLR pt 972 pg 146.
It is rather surprising that this matter was initiated by Originating Summons. Where however, the matter is initiated by Originating Summons and an objection is taken to the jurisdiction of the Court, it is always neater, tidier, better and advisable that arguments be taken on the objection together with the substantive matter. See Dapianlong Vs Dariye (supra), Adeleke vs OSHA (supra) Senate President vs Nzeribe (2004) 9 NWLR pt 878 pg 251 Amadi vs NNPC (2000) 10 NWLR pt 674 pg 76.
The procedural requirement that an issue of jurisdiction should be resolved first does

not mean that it must be treated separately. It can be taken along with arguments on the merits of a case. The important thing is that the Court should first express its views on the issue of jurisdiction before considering the merits of the case.
The advantage of such proceedings is that in the event of an appeal by any of the parties, it is easy for the Appellate Court to express its views on the decision of the lower Court as to jurisdiction and the merit of the case, and hereby remove the necessity for two appeals, the one as to the jurisdiction of the Court, and the other as to the merit of the case. Senate President vs Nzeribe (supra).
The main thrust of this matter is not necessarily, the mining rights or the things pertaining to that. It appears and rightly too that the real issue in this matter is probably alleged torts of negligence nuisance, pollution and breach of statutory duty of care were committed by the Appellant. These heads do not come anywhere under Section 251(1)(n) of the Constitution to warrant or foist jurisdiction on the Federal High Court.

For these and the more robust reasoning and conclusions in the lead

judgment, I found that this appeal is meritorious. It is allowed. I abide by all the consequential orders contained in the lead judgment and adopt them as mine.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the Judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA.
My learned brother was indepth and painstaking in the reasoning and conclusion reached on all the most crucial issues for determination. I agree with her in the conclusions reached.
I shall however put in some words of mine for emphasis.

Jurisdiction of the Court is very fundamental. As such, it should be determined first; if a Court has no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio, no matter how well conducted and finally decided. A defect in competence is not only intrinsic, but also extrinsic, to the entire process. See Madukolu vs. Nkemdilim (1962) 2 SCNLR 341; Oloba vs. Akereja (1988) 3 NWLR (Pt. 84) 508, AG Rivers State vs. AG Akwa Ibom State & Anor (2011) LPELR-633 (SC), p. 123, paras E – F.
In the case of Madukolu vs. Nkemdilim (1962) LPELR-24023 (SC), it

was held:
“Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and (3) the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.” Per BAIRAMIAN, JSC (Pp. 9-10, paras. F-D).
See also Oke & Ors vs. Aiyedun (1986) LPELR-2427 (SC), per Kazeem, JSC (Pp. 19 – 20, paras E – C.

The Respondents’ cause of action is one for tort of negligence, nuisance, pollution and breach of duty of care, and therefore not covered by Section 251(1) (n) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). To be explicit, the Respondents’ claim was not at all based on either mining rights of

the Appellant, or any claim against them pertaining to the mining licence granted to them, or the excavation of any minerals from the mining site or anything of the sort, notwithstanding the fact that the alleged torts of negligence, nuisance, pollution and breach of statutory duty of care were committed by the Appellant in the course of carrying out her mining of coal deposits in the neighboring village. It is therefore without doubt that the trial Court lacked subject matter jurisdiction to try the matter.

The other contending issue that borders on jurisdiction is whether the matter was rightly commenced by originating summons.
The case of Elelu – Habeeb & Anor vs. AG Federation & Ors (2012) LPELR-15515 (SC) very clearly states the circumstances in which it is appropriate to commence an action by originating summons. It was thus held in that case:
“The law is indeed well settled that Originating Summons procedure for initiating action is not suitable and therefore not available for action involving hostile proceedings where the facts are seriously in dispute as the case in

Adebayo Doherty and Another v. Richard Ade Doherty 1968 N.M.L.R. 241. This Court has decided in many cases some of which are Keyamo v. L.S.H.A. (2002.) 18 N.W.L.R. (Pt. 799) 605 at 613 and Pam v. Mohammed (2008) 16 N.W.L.R. (Pt. 1112) 1 at 51, that Originating Summons can be used in matters that involved the interpretation of contracts, documents, Constitution and other statutes where matters or facts are not in dispute.” Per MOHAMMED, JSC (P. 49, paras. A-D).
The learned trial Judge accepted the Appellant’s contention that the issues raised in the affidavit of the Respondents were contentious. One would therefore expect that he would do the needful and appropriate by ordering pleadings and taking oral evidence to resolve the contentious issues, but most surprisingly he went ahead to determine the matter on the affidavit evidence.
This is palpably wrong. It is unavoidable to hold that this step is injurious to the Appellant.
These views have been dealt with in not only detailed, but scholarly style by my Lord in the lead Judgment.
Therefore, I adopt my Lord’s conclusion that the trial Court lacked the jurisdiction to hear this matter. The entirety

of the proceedings including the Judgment is a complete nullity and is hereby set aside.

Appearances:

M. Kayode Esq., with him Rabiu Ayuba Esq. For Appellant(s)

U. Lektu Esq., Deputy Director Legal Aid Council, with him Y. P. Mallum Esq. For Respondent(s)