LawCare Nigeria

Nigeria Legal Information & Law Reports

CHAIRMAN & MEMBERS OF THE SPECIAL INVESTIGATION PANEL OF THE NATIONAL HUMAN RIGHTS COMMISSION ON THE OIL SPILLS & ORS v. SPDC NIGERIA LIMITE (2019)

CHAIRMAN & MEMBERS OF THE SPECIAL INVESTIGATION PANEL OF THE NATIONAL HUMAN RIGHTS COMMISSION ON THE OIL SPILLS & ORS v. SPDC NIGERIA LIMITE

(2019)LCN/13122(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 17th day of April, 2019

CA/C/394/2017

JUSTICES:

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

1. CHAIRMAN AND MEMBERS OF THE SPECIAL INVESTIGATION PANEL OF THE NATIONAL HUMAN RIGHTS COMMISSION ON THE OIL SPILLS & ENVIRONMENTAL POLLUTION
2. THE NATIONAL HUMAN RIGHTS COMMISSION
3. ALL FARMERS ASSOCIATION, CROSS RIVER STATE – Appellant(s)

AND

THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED – Respondent(s)

RATIO

WHETHER OR NOT ISSUES FOR DETERMINATION MUST BE DERIVED FROM THE GROUNDS OF APPEAL

It is settled that issues for determination must derive from the grounds of appeal otherwise such an issue will be redundant and must be discountenanced. In the instant case, the appellants issue No 1 no doubt stemmed out of grounds 2 and 4 of the notice of appeal and therefore the said issue No 1 is properly rooted. PER SHUAIBU, J.C.A.

WHETHER OR NOT AN OBJECTION WHICH BORDERS ON JURISDICTION CAN BE BRUSHED ASIDE BY THE COURT

On whether the order striking out the name of the 2nd appellant is a consequential order is of no moment having regards to the fact that the trial Court no longer have jurisdiction to adjudicate on the suit. An objection which borders on jurisdiction cannot be brushed aside by the Court but must be considered by the Court regardless of the manner in which it is raised. An issue of jurisdiction can be raised for the first time in the Supreme Court with or without leave. See NNONYE V ANYICHIE (2005) 2 NWLR (pt 910) 623 and JEV V IYORTYOM (2014) 14 NWLR (pt 1428) 575 at 608. PER 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 delivered on the 26/4/2017. The Federal High Court had in its judgment quashed the proceedings of the 1st appellant in complaint No. C/2016/569865/HQ of 2016: All Farmers Association, Cross River State Vs SPDC wherein it prohibited the 1st appellant from further proceeding on the grounds that the said proceedings were ultra vires and contrary to the rules of natural justice and fair hearing.

The salient facts giving birth to this appeal as garnered from the record of appeal are that in an attempt to protect human rights, monitor, receive and investigate complaints concerning violations human rights, the 2nd appellant set up 1st appellant to investigate the human rights implication of Oil Spills and Environmental Pollution. In furtherance to its assignment, the 1st appellant received a claim by the 3rd appellant against the respondent for damages of Oil Spill and Pollution to which it set down a date for hearing along with other claims received by the 1st appellant.

1

The respondent was served with hearing notice of the proceeding for 24/6/2016 along with a format of presentation before the 1st appellant outlining the procedure to be adopted in determining the complaint which includes:
(i) The filing of memorandum with verifying affidavit by the complainant;
(ii) Filing of opposing affidavit by the respondent,
(iii) Adoption of the verifying affidavit by the complainants witness as examination in chief followed by cross-examination by the respondent which is limited to 10 minutes;
(iv) Adoption of the opposing affidavit by the respondents witness as examination in chief followed by cross-examination by the complaint limited to 10 minutes;
(v) Filing of final addresses and
(vi) Delivery of decision by the special panel

The respondent vide a motion exparte filed on 16/6/2016 applied for an order of judicial review of the 1st appellants proceedings in complaint No. C/2016/569865/HQ of 2016: All Farmers Association Cross River State v. The Shell Petroleum Development Company of Nigeria Limited. The motion was heard and reliefs therein granted on 21/6/2016.

2

Consequently, the respondent herein filed an originating motion on notice praying for an order of judicial review of the 1st appellants said proceedings as well as other declaratory reliefs. In response, the 1st and 2nd appellants filed a counter affidavit and written address as well as Notice of Preliminary objection challenging the competence of the originating motion on notice. The 3rd appellant on its part filed a Notice of Preliminary objection to the originating motion. Both the 1st and 2nd appellants Notice of Preliminary objection and the respondents originating motion on notice were contemporaneous heard by the trial Court as the 3rd appellant elected not to argue its notice of preliminary objection. In a reserved and considered judgment delivered on 26/4/2017, learned trial judge found the proceedings of the 1st appellant in complaint No C/2016/569865/HQ of 2016: All Farmers Association Cross River State vs The Shell Petroleum Development Company of Nigeria Limited was ultra vires and in complete disregard of the rules of natural justice and fair hearing and thereby granted all the reliefs of the

3

respondent. In the earlier ruling on the preliminary objection, the learned trial judge dismissed the first four prayers of the 1st and 2nd respondents but upheld the 5th prayer to the effect that the originating motion on notice was not served on the 2nd appellant and thus set aside the service of the originating process on the 2nd appellant before proceeding to determine the originating motion on notice.

Dissatisfied, the appellant filed an appeal on 20/7/2017.  The appellants joint notice of appeal contains nine grounds of appeal at pages 236 241 of the record of appeal.

On 4th March, 2019 when this appeal was argued, learned appellants counsel C. A. Gbehe, Esq. identified, adopted and relied on the appellants brief filed on 2nd January, 2018 but deemed properly filed on 28th March, 2018 wherein five issues are identified.
They are:-
1. Whether the lower Court was right to have proceeded to hear the originating motion after holding that the 2nd appellant was not properly served with the originating processes, and suo motu struck out its name from the originating motion. (Distilled from grounds 2 and 4).

4

2. Whether the 1st and 2nd appellants acted ultra vires their powers (Distilled from grounds 3, 5 and 6).
3. Whether the respondents right to fair hearing was violated by the 1st and 2nd appellants (Distilled from ground 7).
4. Whether the lower Court was right by entering judgment in favour of the applicant/respondent and granting all the reliefs claimed by it. (Distilled from grounds 1 and 9).
5. Whether a body set up pursuant to statutory provisions to carry out investigation can be regarded as usurping the judicial powers of the Court, particularly that of the Federal High Court. (Distilled from ground 8).

In the respondents brief of argument filed on 25th April, 2018 the five issues formulated by the appellants were adopted by the learned respondents counsel, Jerry Ehimeze, Esq.

I shall determine this appeal based on the sequence adopted by both counsels that is, issues 1, 2 and 5 shall be treated separately while issues 3 and 4 shall be taken together.

Issue 1
The main complaint of the appellants is that the lower Court having found as a fact that the 2nd appellant was not served

5

with the originating motion on notice, it ought not have struck out the name of 2nd appellant and proceeded to hear the said originating process.

Learned counsel for the appellants contended that instead of ordering for service of fresh hearing notice on the 2nd appellant, the lower Court suo motu struck out the name of the 2nd appellant and proceeded to deliver its judgment against the 1st appellant a non juristic person. He thus submitted that the moment the lower Court found that the 2nd appellant was not properly served, the entire originating motion collapsed because the 2nd appellant was the only necessary party without whom the action will not stand.

Still in argument, learned counsel submitted that the issue of striking out the name of the 2nd appellant having not been placed before the lower Court, it had no business whatsoever to deal with it.  He referred to OLUSANYA V OLUSANYA (1983) 3 SC 41 and ABBASS V MOGAJI (2001) 7 NSQR 44 at 64.

In further argument, learned counsel submitted that the issue of striking out the name of the 2nd appellant from the originating motion having not come by way of

6

application by either party, the lower Court ought to have given parties an opportunity of being heard before making a pronouncement that adversely affected the 2nd appellant.

In response to the above argument, learned counsel to the respondent submitted that issue No 1 is not a valid issue as it does not emanate from the appellants complaints. He referred to grounds 2 and 4 of the notice of appeal and the cases of FABIYI V ADENIYI (2000) 6 NWLR (pt 662) 532 and OGUN V ASEMAH (2002)4 NWLR (pt 756) 208 in urging this Court to strike it out.

He further submitted that the aggrieved party in the decision of the trial to set aside the service of the originating motion on the 2nd appellant is the respondent and not the appellants. It is therefore improper for the appellants to attack this part of the decision which is in their favour. In effect, the appellants cannot be heard to complain on this issue when they do not have any real grievance with the decision.

Learned counsel also drew a distinction between raising issue suo motu and making a consequential order and submitted that having set aside the service

7

of the originating motion on the 2nd appellant at the judgment stage, the proper consequential order was to strike out the name of the 2nd appellant from the suit.

Continuing, he submits that the 2nd appellant was a proper party in the proceeding, but not a necessary party whose presence was indispensable. Thus, striking out the name of the 2nd appellant in no way vitiated the proceeding of the trial Court. He referred to the cases of KWAGE & ORS V UPPER SHARIA COURT GWANDU & ORS (2017) LPELR 42508, CARLEN (NIG) LTD V UNIJOS (1994) 1 NWLR (pt 323) 63 and IBRAHIM V JUDICIAL SERVICE COMMISSION (1998) 12 SCNJ 255 in submitting that legal personality is implied in the activities of the 1st appellant.

By virtue of Order 6 Rule 13 (g) of the Federal High Court (Civil Procedure) Rules 2009, service out of jurisdiction may be allowed when any person out of jurisdiction is a necessary or proper party to an action properly brought against some other party within jurisdiction. And under Section 97 of the Sheriffs and Civil Process Act, if an originating process for service out of

8

jurisdiction does not have the requisite endorsement such an originating summons is invalid. Once the claimant fails to comply with the mandatory provision of Section 97 of the Sheriffs and Civil Process Act, the Court would no longer have jurisdiction to adjudicate on the suit. See OWNERS OF MARABELLA V N.A.I.C. (2008) 11 NWLR (pt 1097) 182 and IZEZE V INEC (2018) 11 NWLR (pt. 1629) 110 at 128. Also in B. B. APUGO & SONS LTD  ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD (OHMB) (2016) 13 NWLR (pt 1509) 206 at 219, the Supreme Court has reiterated the importance of proper issuance and service of Court process to the effect that they are basic and fundamental conditions precedent to the exercise of Courts jurisdiction. Since the purpose of the issuance and service of Court processes on a party is to bring the processes to the partys notice and give the party an opportunity to react to the processes, any defect would amount to a breach of the affected partys right to fair hearing and would render the proceedings a nullity.

9

See also  SKENCONSULT (NIG) LTD V UKEY (1981) 1 SC 6, EZOMO V OYAKHIRE (1985) 1 NWLR (pt 2) 195 and ADEGOKE MOTORS LTD V ADESANYA (1989) 3 NWLR (pt. 109) 250.

Learned counsel for the respondent attacks the appellants issue No 1 on many fronts; the first being that same does emanate, from the appellants complaints. I have stated that issue No. 1 is distilled from grounds 2, and 4 of the notice of appeal. The said grounds 2 and 4 (excluding the particulars) shall be recast hereunder as follows:-
2. The learned trial judge Justice F. O. Riman erred in law when he set aside the service of the Court processes in suit No FHC/UY/CS/59/2016 on the 2nd respondent for been in contravention of Section 97 of the Sheriffs and Civil Process Act but proceeded to enter judgment in favour of the applicant/respondent against the 1st appellant.
4. The learned trial judge of the lower Court erred in law when he held that this Honourable Court has jurisdiction to hear and determine this matter and proceeded to give judgment after the service of the processes on the 2nd appellant were set aside.

10

It is settled that issues for determination must derive from the grounds of appeal otherwise such an issue will be redundant and must be discountenanced. In the instant case, the appellants issue No 1 no doubt stemmed out of grounds 2 and 4 of the notice of appeal and therefore the said issue No 1 is properly rooted.

On whether the order striking out the name of the 2nd appellant is a consequential order is of no moment having regards to the fact that the trial Court no longer have jurisdiction to adjudicate on the suit. An objection which borders on jurisdiction cannot be brushed aside by the Court but must be considered by the Court regardless of the manner in which it is raised. An issue of jurisdiction can be raised for the first time in the Supreme Court with or without leave. See NNONYE V ANYICHIE (2005) 2 NWLR (pt 910) 623 and JEV V IYORTYOM (2014) 14 NWLR (pt 1428) 575 at 608.

Learned counsel for the respondent also made an allusion that the provision of Section 97 Act do not require leave to issue and serve originating motion on the 2nd appellant and that the 2nd appellant did

11

not complain that originating motion served on it was not properly endorsed but that leave was not obtained for its issuance and service.

The provision of Section 97 of the Sheriffs and Civil Process emphatically states that:-
“Every Writ of summons for service under this part out of the state or the Capital Territory which it was issued shall in addition to any other endorsement or notice required by the law of such state or the Capital Territory have endorsed thereon have notice to the following effect:-
This summons (or as the case may be) is to be served out of the…state (as the case may be)  and in the…state (as the case may be).”

Similarly, Order 6 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules 2009 reads thus:-
“No writ or notice which is to be served out of jurisdiction shall be issued without the leave of Court.”
On the face of the record, it is clear that the originating process is intended for Akwa Ibom State while service is to be made in Abuja which is out of Akwa Ibom State and so the requirements for endorsement and also for leave to serve

12

the process outside Akwa Ibom are imperative. Although, the learned trial judge set aside the service of the said originating process for failure to obtain leave of Court at pages 218-219 of the record of appeal but the fact remain that the originating process was neither endorsed in accordance with Section 97 of the Sheriffs and Civil Process Act nor prior leave was obtained pursuant to Order 6 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules 2009.
I have elsewhere in this judgment restated the fundamental nature of issuance and service of originating process of Court. Likewise, the absence of leave of the trial Court before signing or sealing the Writ for service out of the jurisdiction of Court is a breach which extinguishes the life out of the writ. See P.D.P. V INEC (2018) 12 NWLR (pt 1634) 533 at 553.
In the light of the above, I cannot but agree with the appellants that the moment the lower Court found that the 2nd appellant was not properly served, the entire originating motion on notice collapsed and the Court lacked the requisite jurisdiction to proceed any further. Issue No.1 is therefore resolved in

13

favour of the appellants and same invariably determined the appeal.
I do not have to consider the remaining issues as doing so will amount to an academic exercise.

The appeal is therefore allowed. The judgment of the Federal High Court is set aside and the respondents suit NO FHC/UY/CS/59/2016 is hereby struck out for lack of jurisdiction.
Parties shall bear their respective costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I had the privilege of reading in draft the judgment by my brother Muhammed L. Shuaibu, JCA. I agree with the reasoning and conclusion. In particular I join my learned brother to say that a writ which ought to issued but is not issued in accordance with the provision of Section 97 of the Sheriffs and Civil Process Act is fundamentally defective and cannot ignite the jurisdiction of a Court.

For this reason, I also allow the appeal and set aside the judgment of the Federal High Court in suit NO. FHC/UY/CS/59/2016. I abide with the order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in draft the judgment just delivered

14

by my learned brother, M. L. SHAUIBIJ, JCA and I agree with the reasoning and resolution of the issues formulated for determination in the appeal. I have nothing more to add. I also allow the appeal and set aside the judgment of the Court below.

15

Appearances:

C. A. Gbehe, Esq. For Appellant(s)

B. C. Ugwu, Esq. For Respondent(s)

 

Appearances

C. A. Gbehe, Esq. For Appellant

 

AND

B. C. Ugwu, Esq.For Respondent