CHAIRMAN AND MEMBERS OF THE SPECIAL INVESTIGATION PANEL OF THE NHRC ON OIL SPILLS & ENVIRONMENTAL POLLUTION & ORS v. TOTAL E & P (NIG) LTD (2021)

CHAIRMAN AND MEMBERS OF THE SPECIAL INVESTIGATION PANEL OF THE NHRC ON OIL SPILLS & ENVIRONMENTAL POLLUTION & ORS v. TOTAL E & P (NIG) LTD

(2021)LCN/15154(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 05, 2021

CA/C/400/2017

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. CHAIRMAN AND MEMBERS OF THE SPECIAL INVESTIGATION PANEL OF THE NATIONAL HUMAN RIGHTS COMMISSION ON OIL SPILLS & ENVIRONMENTAL POLLUTION 2. THE NATIONAL HUMAN RIGHTS COMMISSION 3. ALL FARMERS ASSOCIATION OF NIGERIA (AFAN) AKWA IBOM STATE 4. ALL FARMERS ASSOCIATION OF NIGERIA (AFAN) CROSS RIVER STATE APPELANT(S)

And

TOTAL E & P NIGERIA LIMITED RESPONDENT(S)

RATIO

EFFECT OF THE FAILURE TO EFFECT SERVICE OF COURT PROCESS WHERE IT IS REQUIRED

The issuance and service of the writ of summons on a defendant are no doubt conditions precedent to the exercise of jurisdiction which a trial Court may have over the subject matter of the action against the defendant. Therefore, where there is evidence that service was not effected on the defendant, any judgment emanating from such proceedings is a nullity. In other words, failure to serve a process where service is required is so fundamental that the party not served and against whom any order is made in his absence is entitled to have the order set aside on the ground that a condition precedent to the exercise of the jurisdiction by the Court has not been fulfilled. See KIDA V. OGUNMOLA (2006) 13 NWLR (prt 997) 377, NATIONAL BANK OF NIGERIA LTD V. GUTHRI (NIG) LTD (1993) 3 NWLR (prt 204) 643 and FIDELITY BANK PLC. V. M.T. “TABORA” (2018)2 NWLR (prt.1632) 135 at 162 – 163. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

INTERPRETATION OF SECTION 97 OF THE SHERIFFS AND CIVIL PROCESS ACT REGARDING THE EFFECT OF THE FAILURE TO ENDORSE THE REQUIRED NOTICE ON AN ORIGINATING PROCESS FOR SERVICE OUT OF THE STATE IN WHICH IT WAS ISSUED

WHETHER A WRIT OF SUMMONS ISSUED AT THE FEDERAL HIGH COURT OF ONE STATE MEANT TO BE SERVED IN A DIFFERENT STATE OF THE FEDERATION MUST BE ENDORSED IN COMPLIANCE WITH THE PROVISIONS OF SECTIONS 96 AND 97 OF THE SHERIFFS AND CIVIL PROCESS ACT

In the case of OWNERS OF THE M.V “ARABELLA” V. NAIC also reported in (2008) LPELR -2848(SC), the main issue is whether a writ issued at the Federal High Court, Lagos for service on a defendant outside Lagos needs to comply with the provisions of Sections 96 and 97 of the Sheriffs and Civil Process Act. The Supreme has held that the rules of Court requiring endorsement or leave to issue and serve outside the jurisdiction or coverage of the Court issuing the writ are made applicable by Section 96 (2) of the Sheriffs and Civil Process Act which means the rules are also applicable to writs meant for service by the Federal High Court. In his contribution, AKINTAN, JSC stated thus: “The Sheriffs and Civil Process Act (Cap 407 Laws of the Federation of Nigeria, 1990), according to its heading is “an act to make provision for the appointment and duties of Sheriffs, the enforcement of judgments and orders and the service and execution of civil process of the Court throughout Nigeria”. In Section 19 (1) of the Act, which is the interpretation section, Court is defined as includes a High Court and a Magistrate Court”. It is not in doubt that the provisions of the said Section 97 of the Act are applicable in all High Courts, including the Federal High Court. The said provisions in my view have nothing to do with the coverage of the jurisdiction of the Federal High Court which is nationwide. It is therefore a total misconception to believe that the provisions of the section are inapplicable to the Federal High Court because the jurisdiction of that Court covers the entire nation.” Contrawise, in BOKO V. NUNGWA (supra) the apex Court held that Federal High Court was not contemplated by the lawmakers when the Sheriffs and Civil Process Act was enacted. The Court reasoned that in Section 94 of the Act, the power to make rules is conferred specifically on the Chief Judge of the Federal Capital Territory and Chief Judges of the States. Thus, the specificity with which the provisions in the Sheriffs and Civil Process Act, Section 96 has been framed, since the Federal High Court was not mentioned by name, it follows that it cannot be roped in or smuggled into being a part of those Courts for which the statute was enacted. Indeed, as far as service and execution matters are involved, the Federal High Court does not come within the ambit of Sections 94 and 96(2) of the Sheriffs and Civil Process Act. Also in the case of BIEM V. SOCIAL DEMOCRATIC PARTY (supra) cited and relied by the learned counsel for the respondent, the Supreme Court considered Sections 254 of the 1999 Constitution and 44 of the Federal High Court Act in relation to the powers of the Chief Judge of the Federal High Court to make rules. And that, since the powers are not derived from the Sheriffs and Civil Process Act, but from the Constitution and Federal High Court and the Sheriffs and Civil Process not being the principal legislation that deal with the service of Court processes of any Court in Nigeria where it relates to Federal High Court, the Act can only apply in case of the State High Courts and the FCT High Court. Unlike in the case of MV “ARABELLA V. NAIC (Supra), the Supreme Court considered the import of Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules that interpret the phrase “outside jurisdiction” to mean outside the Federal Republic of Nigeria in the later case of BIEM V. S.D.P (supra) and arrived at the conclusion that the originating summons issued by the Federal High Court, Makurdi which was to be served in Abuja could not be considered to be service outside the jurisdiction and therefore did not require to be endorsed as a concurrent writ. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

WHETHER THE PROVISIONS OF THE CONSTITUTION MUST BE STRICTLY COMPLIED WITH

The Constitution as we all know is the groundnorm and what it has stipulated remains sacrosanct and immutable and nothing can be done about it but to strictly comply with it. See INAKOJU V. ADELEKE (2007)4 NWLR (prt 1025) 423, A.G, ONDO V. A.G, FEDERATION (2002) 9 NWLR (prt. 1427) 2614 and UGBA V. SUSWAM (2014)14 NWLR (prt.1427) 264. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

WHETHER THE NATIONAL ASSEMBLY CAN AWARD DAMAGES OR COMPENSATION FOR OIL SPILLAGES

By virtue of the provisions of Section 6 (1) of the 1999 Constitution as amended, the judicial powers of the Federation are vested in the Courts of law. Likewise, Section 4 of the said Constitution vest legislative powers on the National Assembly. The question then is, can the 1st appellant through the 2nd appellant exercise powers of awarding damages or compensation for oil spillages? The provision of Section 251(1) (n) of the Constitution specifically vests exclusive jurisdiction on the Federal High Court as regards to matters and civil causes relating to mines and minerals (including oil fields, oil mining geological surveys and natural gas). Learned counsel for the appellants however referred to Articles 23 and 24 of the African Charter on Human and Peoples’ Rights to contend that the right to health including right to a healthy environment is guaranteed. He also made an allusion that Section 21 of the Oil Pipelines Act protects the interest of affected local community and thus, where their interests are injuriously affected, the Court may order compensation. Perhaps, the learned counsel is unwittingly elevating the status of the 2nd appellant otherwise the Constitution does not permit the exercise of a jurisdiction which by its nature belongs to the judiciary. In S.P.D.C. LTD V. AJUWA (supra) per EKO, JCA (as he then was) at pages 486-487 para G-A said:- “The respondents argue that the National Assembly in this matter passed the resolutions as arbitration panel. Chief Richard Akinjide SAN submits rightly in my view that the legislative and investigative powers vested in the National Assembly and/or its committee by Section 4 and 88 of the Constitution do not empower the National Assembly and/or its committee to exercise judicial powers which are expressly vested in the Courts, and that the power the National Assembly and its committee arrogated themselves to conduct an investigatory proceedings and thereafter award damages, as they did, was ultra vires.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering The Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Uyo, Coram F. O. Riman, J. delivered on the 17th day of May, 2017 granting the judicial review of the proceedings of the 1st appellant as regards complaint No. C/2016/320697-320697/HQ of 2016: ALL FARMERS ASSOCIATION OF NIGERIA (AFAN) AKWA IBOM STATE CHAPTER and TOTAL E & P NIGERIA LTD complaint NO. C/2016/569865/HQ of 2016 ALL FARMERS ASSOCIATION OF NIGERIA (AFAN), CROSS RIVER STATE CHAPTER in favour of the applicant (now respondent).

The applicant applied for leave exparte and upon its grant on 23/6/2016, the applicant now respondent through a motion on notice brought pursuant to Order 34 Rule 5 of the Federal High Court (Civil Proceeding) Rules 2009 prayed for an order of judicial review of the 1st appellant’s proceedings as well as certain declaratory reliefs at pages 48-49 of the record of appeal. On service of the originating processes on the appellants, the 2nd and 3rd appellants (as 2nd and 3rd respondents) raised preliminary objection challenging the jurisdiction of the

lower Court to entertain the suit but the 3rd appellant later withdrew its preliminary objection. The grounds upon which the 2nd appellant predicated its objection are as follows:-
1. The Honourable Court lacks the procedural jurisdiction to try this matter.
2. Section 18(3) of the enabling Act creating the 1st respondent provides for the service of one month pre-action notice on the 1st respondent by the applicant before any suit shall be commenced against 2nd respondent commission and its agents.
3. The applicant has not complied with the mandatory provisions of Section 18(3) of the enabling Act creating the 2nd respondent.
4. The applicant’s counsel has not complied with the mandatory provisions of Order 4 Rules 5 (2) (c) of the Federal High Court (Civil Procedure) Rules 2009 and Order 34 Rules 6 (1) & (4).
5. Suit NO. FHC/UY/74/2016, is incompetent and premised on a non-existent or an unknown law.
6. No proper service has been effected on the 2nd respondent.

After hearing parties on the above preliminary objection, which were replicated in the sister matters before the lower Court, same was

dismissed and thereafter the lower Court heard the substantive originating motion and granted all the reliefs sought by the respondent herein in a judgment delivered on 17/5/2016.

It is against the said judgment that the appellants approached this Court through a notice of appeal filed on 20/7/2017 containing eight grounds of appeal at pages 253 – 259 of the record of appeal. The appellants were subsequently granted leave by this Court to amend their notice of appeal and the said amended notice of appeal also contains eight grounds of appeal.

At the hearing of appeal on 14/1/2021 C. A. Gbehe Esq. on behalf of the appellants adopted and relied on the amended appellants’ brief of argument and the reply brief respectively filed on 20/12/2019, 18/5/2020 but deemed on 14/1/2021 in urging this Court to allow the appeal. Henry C. Chibor Esq. adopted and relied on the respondent’s brief of argument filed on 24/1/2020 but deemed on 14/1/2021 in urging this Court to dismiss the appeal. Also, both learned counsel agreed that the judgment of the Court on this appeal shall bind appeals Nos. 396/2017, 397/2017 and 399/2017 involving the same appellants and same respondent as well as Monipulo Limited and also being on the same subject matter.

Learned counsel for the appellants distilled four issues for the determination of this appeal as follows:-
1. Whether the lower Court was right to have proceeded to hear and determine the originating motion, when it was not clothe with jurisdiction.
2. Whether the 1st and 2nd appellants acted ultra vires their powers.
3. Whether the applicant/respondent’s right to fair hearing was violated by the 1st and 2nd appellants.
4. Whether a body set up pursuant to statutory provisions to carry out investigation and make recommendations can be regarded as usurping the judicial powers of Courts, particularly that of the Federal High Court.

Learned counsel for the respondent on his part formulated three issues for the determination of the appeal. These are:-
1. Whether ground 8 of the appeal against an interlocutory ruling delivered by the trial Court on 6th day of March, 2017 is competent considering that the notice of appeal was filed outside the time prescribed by statute to appeal against the interlocutory ruling; and if in

the affirmative whether the originating processes in Suit NO FHC/UY/68/74/2016 were properly served on the 1st and 2nd appellants?
2. Whether the substantive claim of the 3rd appellant in complaint Nos. C/2016/320697 & 320704/HQ of 2016: ALL FARMERS ASSOCIATION OF NIGERIA (AFAN) AKWA IBOM STATE CHAPTER V. TOTAL E & P NIGERIA LIMITED and complaint NO. C/2016/569865/HQ of 2016: ALL FARMERS ASSOCIATION OF NIGERIA (AFAN) CROSS RIVER STATE CHAPTER V. TOTAL E & P NIGERIA LIMITED which is hinged primarily on Oil Spill, gas flaring and environmental pollution allegedly arising from the respondent’s oil exploration activities is not ultra vires the powers of the 1st and 2nd appellants to entertain and determine same?
3. Whether the procedure adopted by the 1st appellant in complaint Nos. HQ of 2016/320697 & 320704 HQ of 2016: ALL FARMERS ASSOCIATION OF NIGERIA (AFAN) AKWA IBOM STATE CHAPTER –V- TOTAL E & P NIGERIA LIMITED and complaint No. C/2016/569865/HQ of 2016: ALL FARMERS ASSOCIATION OF NIGERIA (AFAN) CROSS RIVER STATE CHAPTER –V- TOTAL E & P NIGERIA LIMITED is not a negation of the rules of natural justice and a violation of the respondent’s right to fair hearing?

A close look at the two sets of issues shows that they are seemingly the same except that the four issues formulated by the appellants are more concise and quite apposite. I shall determine the appeal on the bases of the issues formulated by the appellants, the undoubted owners of the appeal. But before delving into the respective submissions of counsel, it is pertinent to recast the facts of the case as could be garnered from the record of appeal.

On March 4, 2016, the 2nd appellant made a publication in the Vanguard Newspaper setting up a panel (the 1st appellant) to hear and determine claims for compensation arising from alleged Oil Spill environmental pollution and other deleterious effects arising from the oil exploration activities of the respondent which allegedly impacted negatively on the members of the 3rd and 4th appellants. The terms of reference as contained in the said publication are:-
(a) To consider all complaint received by the commission on oil spillage and similar activities of oil pollution of the environment.
(b) To invite memoranda from members

of the public on any action, inaction, omission, negligence leading to such oil spillage, non effective clean up of such pollution or spillage, non-payment or wrongful payment of compensation.
(c) To find out persons responsible for any of such alleged oil spillage, environmental pollution or degradation as complained.
(d) To make recommendations as to the measure to prevent acts of oil spillage, non-effective clean up of oil spillage, environmental pollution, or others who are affected by these terms of reference or the complains.
(e) To make recommendations as to damages for victims of any violations resulting from the findings of the investigation panel.
(f) Any other matter or matters that may be relevant to the successful conclusion of the assignment.

Against this background, the 3rd appellant submitted memorandum cataloging its claims in the sum of N1,405,000,000,000.00 (One Trillion Four Hundred and Five Billion Naira only in complaint Nos. C/2016/320697 & 320704/HQ of 2016: ALL FARMERS ASSOCIATION OF NIGERIA (AFAN) AKWA IBOM STATE CHAPTER V. TOTAL E & P NIGERIA LIMITED and complaint No. C/2016/569865/HQ of 2016: ALL

FAMERS ASSOCIATION OF NIGERIA (AFAN) CROSS RIVER STATE CHAPTER V. TOTAL E & P NIGERIA LIMITED.

Miffed by the above, the respondent as applicant filed an action before the lower Court for judicial review pursuant to Order 34, Rule 5 of the Federal High Court (Civil Procedure) Rules 2009.

On issue No.1, learned counsel for the appellant submitted that by the combined effect of Section 96 and 97 of the Sheriffs and Civil Process Act, the respondent as applicant at the lower Court needed to first of all seek and obtain the leave of Court to issue and serve the originating motion and accompanying Court processes in Abuja outside the jurisdiction of the Court on the 1st and 2nd appellants. Counsel cited the case of OWNERS OF M.V. “ARABELLA” V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 4-5 SC 189 to contend that before a Court can be clothed with the jurisdiction to hear and determine a suit, the condition precedent for the commencement of the suit must be fulfilled.

In response to the above, learned counsel for the respondent referred to Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules 2009 to

contend that the requirement for prior leave to serve outside jurisdiction is not the requirement of the applicable rules of Court. He contended that the respondent’s exparte application for leave to mark the originating processes as having been issued in Uyo, Akwa Ibom State and for service at the Federal Capital Territory, Abuja suffices and qualified as leave to serve the processes within the contemplation of the law.

Still in argument, counsel submitted that the principle of obtaining leave to issue and serve outside the jurisdiction of the Federal High Court as decided in M. V. “ARABELLA” V. N.A.I.C. (Supra) is no longer the law. He cited BOKO V. NUNGWA (2019)1 NWLR (prt 1654) 395 at 444 – 445 and BIEM V. SDP (2019) 12 NWLR (prt. 1687) 377 at 405 – 406 to the effect that serving an originating process outside the division of the Federal High Court which issued same, does not amount to service outside jurisdiction.

The issuance and service of the writ of summons on a defendant are no doubt conditions precedent to the exercise of jurisdiction which a trial Court may have over the subject matter of the

action against the defendant. Therefore, where there is evidence that service was not effected on the defendant, any judgment emanating from such proceedings is a nullity. In other words, failure to serve a process where service is required is so fundamental that the party not served and against whom any order is made in his absence is entitled to have the order set aside on the ground that a condition precedent to the exercise of the jurisdiction by the Court has not been fulfilled. See KIDA V. OGUNMOLA (2006) 13 NWLR (prt 997) 377, NATIONAL BANK OF NIGERIA LTD V. GUTHRI (NIG) LTD (1993) 3 NWLR (prt 204) 643 and FIDELITY BANK PLC. V. M.T. “TABORA” (2018)2 NWLR (prt.1632) 135 at 162 – 163.

The appellants’ contention in this case is that it is only after leave to issue and serve the originating process and other processes outside the jurisdiction of the trial Court by the respondent that same would have been marked “to be served in Abuja,” out of jurisdiction and then the service on the 2nd appellant would be effected in Abuja.

By virtue of Section 97 of the Sheriffs and Civil Process Act, every writ of summons or originating process for service out of the state in which it was issued must in addition to any required endorsement of notice, have endorsed on it a notice indicating that the summons is to be served out of the state and in which state it is to be served. Thus, failure to endorse the required notice on an originating process for service is not a mere irregularity but a fundamental defect that renders the originating process incompetent. See NWADIARO V. UNIPORT (2019)11 NWLR (prt.1684) 490.
In the case of OWNERS OF THE M.V “ARABELLA” V. NAIC also reported in (2008) LPELR -2848(SC), the main issue is whether a writ issued at the Federal High Court, Lagos for service on a defendant outside Lagos needs to comply with the provisions of Sections 96 and 97 of the Sheriffs and Civil Process Act. The Supreme has held that the rules of Court requiring endorsement or leave to issue and serve outside the jurisdiction or coverage of the Court issuing the writ are made applicable by Section 96 (2) of the Sheriffs and Civil Process Act which means the rules are also applicable to writs meant for service by the Federal High Court.

In his contribution, AKINTAN, JSC stated thus:
“The Sheriffs and Civil Process Act (Cap 407 Laws of the Federation of Nigeria, 1990), according to its heading is “an act to make provision for the appointment and duties of Sheriffs, the enforcement of judgments and orders and the service and execution of civil process of the Court throughout Nigeria”. In Section 19 (1) of the Act, which is the interpretation section, Court is defined as includes a High Court and a Magistrate Court”. It is not in doubt that the provisions of the said Section 97 of the Act are applicable in all High Courts, including the Federal High Court. The said provisions in my view have nothing to do with the coverage of the jurisdiction of the Federal High Court which is nationwide. It is therefore a total misconception to believe that the provisions of the section are inapplicable to the Federal High Court because the jurisdiction of that Court covers the entire nation.”
Contrawise, in BOKO V. NUNGWA (supra) the apex Court held that Federal High Court was not contemplated by the lawmakers when the Sheriffs and Civil Process Act

was enacted. The Court reasoned that in Section 94 of the Act, the power to make rules is conferred specifically on the Chief Judge of the Federal Capital Territory and Chief Judges of the States. Thus, the specificity with which the provisions in the Sheriffs and Civil Process Act, Section 96 has been framed, since the Federal High Court was not mentioned by name, it follows that it cannot be roped in or smuggled into being a part of those Courts for which the statute was enacted. Indeed, as far as service and execution matters are involved, the Federal High Court does not come within the ambit of Sections 94 and 96(2) of the Sheriffs and Civil Process Act. Also in the case of BIEM V. SOCIAL DEMOCRATIC PARTY (supra) cited and relied by the learned counsel for the respondent, the Supreme Court considered Sections 254 of the 1999 Constitution and 44 of the Federal High Court Act in relation to the powers of the Chief Judge of the Federal High Court to make rules. And that, since the powers are not derived from the Sheriffs and Civil Process Act, but from the Constitution and Federal High Court and the Sheriffs and Civil Process not being the principal

legislation that deal with the service of Court processes of any Court in Nigeria where it relates to Federal High Court, the Act can only apply in case of the State High Courts and the FCT High Court. Unlike in the case of MV “ARABELLA V. NAIC (Supra), the Supreme Court considered the import of Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules that interpret the phrase “outside jurisdiction” to mean outside the Federal Republic of Nigeria in the later case of BIEM V. S.D.P (supra) and arrived at the conclusion that the originating summons issued by the Federal High Court, Makurdi which was to be served in Abuja could not be considered to be service outside the jurisdiction and therefore did not require to be endorsed as a concurrent writ. In a similar vein, the writ of summon in the instant case issued by the Federal High Court Uyo, Akwa Ibom State which was to be served on the 2nd appellant in Abuja is not service outside jurisdiction, requiring endorsement, as a concurrent writ. Issue No.1 is therefore resolved against the appellants.

On issue No.2, learned counsel for the appellants referred copiously to the provisions of Sections 5 and 6 of the National Human Rights Commission Act in submitting that the respondent did not place any evidence before the lower Court showing any aspect of the 1st and 2nd appellants that was ultra vires. Counsel also submitted that the respondent has failed to file a copy of the proceedings it sought to be quashed as required by Order 34 Rule 9 (2) of the Federal High Court (Civil Procedure) Rules 2009. He referred to ABACHA V. FAWEHINMI (2000)6 NWLR (prt. 600) 228 to the effect that an aggrieved person can enforce his right through any statutory procedures as such the 1st appellant is vested with powers to investigate the activities of the respondent which has human rights implications.

Counsel submitted further that the fact that the pipelines Act, vest powers of adjudication in relation to claims for pipeline explosions or oil spillage to Courts exercising civil jurisdiction in the area of occurrence such as High Courts and Magistrate Courts, it is therefore erroneous to assume that Section 251(1) (n) of the 1999 Constitution vest exclusive jurisdiction to the Federal High Court on all matters relating to mines, geological survey, oil field, oil and gas.

On the part of the respondent, counsel argued both the appellants’ issues Nos. 2 and 4 together and submitted that the respondent had through exhibits TPENG (i) and (v) placed sufficient material before the trial Court which rightly held that any exercise of power by the 1st and 2nd appellants to award damages or compensation whether predicated on a complaint or at all is ultra vires. He referred to SPDCN LTD V. AJUWA (2015)14 NWLR (prt.1580) 433 which counsel argued is on all fours with the facts in the instant case.

The respondent further submitted that the Constitution is the grund norm from which all other laws including rectified conventions and treaties, derives their validity. Any other law that is inconsistent with the Constitution is void to the extent of its inconsistency. The trial Court according to the learned counsel was not concerned about the powers of the 1st and 2nd appellants but that such investigative powers that entails adjudication over disputes relating to oil exploration activities, determining rights of parties and awarding damages or compensation are ultra vires their

powers. Furthermore, the trial Court is empowered to exercise its supervisory powers of judicial review by way of an order of certiorari over the 1st and 2nd appellants regardless of the fact that the 2nd appellant is a statutory body.

The main contention here is whether it is ultra vires the powers of the 1st and 2nd appellants to conduct investigation respecting allegations of environmental pollution vis-a-vis, the adverse effects arising from the oil exploration activities of respondent. By virtue of the provisions of Section 6 (1) of the 1999 Constitution as amended, the judicial powers of the Federation are vested in the Courts of law. Likewise, Section 4 of the said Constitution vest legislative powers on the National Assembly. The question then is, can the 1st appellant through the 2nd

appellant exercise powers of awarding damages or compensation for oil spillages? The provision of Section 251(1) (n) of the Constitution specifically vests exclusive jurisdiction on the Federal High Court as regards to matters and civil causes relating to mines and minerals (including oil fields, oil mining geological surveys and natural gas).
Learned counsel for the appellants however referred to Articles 23 and 24 of the African Charter on Human and Peoples’ Rights to contend that the right to health including right to a healthy environment is guaranteed. He also made an allusion that Section 21 of the Oil Pipelines Act protects the interest of affected local community and thus, where their interests are injuriously affected, the Court may order compensation. Perhaps, the learned counsel is unwittingly elevating the status of the 2nd appellant otherwise the Constitution does not permit the exercise of a jurisdiction which by its nature belongs to the judiciary. In S.P.D.C. LTD V. AJUWA (supra) per EKO, JCA (as he then was) at pages 486-487 para G-A said:-

“The respondents argue that the National Assembly in this matter passed the resolutions as arbitration panel. Chief Richard Akinjide SAN submits rightly in my view that the legislative and investigative powers vested in the National Assembly and/or its committee by Section 4 and 88 of the Constitution do not empower the National Assembly and/or its committee to exercise judicial powers which are expressly vested in the Courts, and that the power the National Assembly and its committee arrogated themselves to conduct an investigatory proceedings and thereafter award damages, as they did, was ultra vires.”
In this case, the subject matter of the 1st appellant’s investigatory proceedings vide Exhibit TEPNGNI, which arises from mines and minerals (including oil fields, oil mining geological surveys and natural gas) is exclusively vested in the Federal High Court pursuant to Section 251(1) (n) of the 1999 Constitution, as amended. Thus, considering and determining complaints on oil spillage and similar activities of oil pollution is therefore ultra vires the 1st appellant. It is also my respectful view that making determination as to the damages or compensation payable in relation to any violation, the appellants would

be acting in a judicial capacity which they are not imbued with under the Constitution. The appellants not being a Court of law cannot therefore impose any fine and any law or regulations empowering the appellants to do so are not only unconstitutional but capable of violating the fundamental rights of the respondent as enshrined in Section 36(1) and (2) of the Constitution.

As part of its supervisory control over an inferior Court tribunal or a body entrusted with the performance of administrative, judicial or quasi judicial function, the lower Court has the inherent duty and obligation to ensure such inferior bodies does not exceed their jurisdiction or commit irregularities. Issue No.2 is resolved against the appellants.

Issues Nos. 3 and 4 of the appellants having been answered in the affirmative that is, the mandate given to the 1st appellant by the 2nd appellant is in the nature of judicial function. Thus, proceeding to determine the complaint against the respondent will invariably make the 1st appellant a Judge in its own cause contrary to the rule of natural justice. Furthermore, the powers conferred on the National Assembly pursuant to

Section 4 of the Constitution does not extend to awarding damages or compensation as the powers of the 2nd appellant under Sections 5 and 6 of the National Human Rights Commission Act which seeks to empower any person to conduct investigation and award compensation are also ultra vires their legislative powers. In other words, the resolutions of issues Nos. 1 and 2 renders issues Nos. 3 and 4, an academic exercise. In the final analysis, the lower Court was right in invoking its supervisory powers of judicial review and granted the respondent’s reliefs.

The appeal is unmeritorious and it is accordingly dismissed. The judgment of the lower Court delivered on 17/5/2017 is hereby affirmed. Parties shall bear their respective costs. As agreed by both parties, this judgment binds the sister appeals NOS. CA/C/396/2017, CA/C/397/2017 and CA/C/399/2017.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother MUHAMMED LAWAL SHUAIBU, JCA.

I agree with the reasoning and conclusion reached on the judgment. I also agree that the appeal lacks merit and deserves to be dismissed.
Accordingly, I also dismiss this appeal.

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JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother, Muhammed L. Shuaibu, JCA and quite agree with him that the appeal has no merit and should be dismissed. It is also dismissed by me.

I affirm the judgment of the Court below in the matter.
I abide by all other orders in the judgment.

Appearances:

A. Gbehe, Esq. For Appellant(s)

C. Chibor, Esq. For Respondent(s)