CHEVERON NIGERIA LIMITED v. HIGH CHIEF BABATUNDE VICTOR SEDARA & ORS
(2019)LCN/12758(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of February, 2019
CA/L/87/2015
RATIO
ACTION: WHERE A FRESH CAUSE OF ACTION ARISES
“Accordingly, the Court below was right by holding that the action as pleaded is not caught by limitation law because of the continuance of the damage or injury vide Dosumu v. NNPC (supra) Adepoju v. Oke (supra), Amachere v. SPDC (Nig.) Ltd. (supra) and Guld Oil Co. (Nig.) Ltd. v. Oluba (supra) at 112 cited by the respondents where Ibiyeye, J.C.A., reiterated in the last case that in the case of a continuing nuisance or trespass, successive actions can be instituted from time to time in its continuance thereby ousting any one particular date for the cause of action to accrue. Thus in Aremo II v. Adekanye (2004) 13 NWLR (pt. 891) 572 at 593 594, the Supreme Court held that where there has been continuance of damage or injury, a fresh cause of action arises from time to time, as often as damage or injury is caused. Reliance was placed in that case on the old English case of Battishill v. Reed (1856) 18 CB 696 at 714 with the example that if an owner of mines, works and causes damage to the surface more than the limitation period before action is filed and after the limitation period a fresh subsidence causing damage occurs without any fresh working by the owner, an action in respect of the fresh damage, not the previous damage, is not barred as the fresh subsidence resulting in injury gives a fresh cause of action. See also Adepoju v. Oke (1999) 3 NWLR (pt.594) 154 at 164, A.-G., Rivers State v. A.-G., Bayelsa State (2013) 3 NWLR (pt.1340) 123 at 148 149.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES:
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
CHEVERON NIGERIA LIMITED – Appellant(s)
AND
1. HIGH CHIEF BABATUNDE VICTOR SEDARA
2. HIGH CHIEF CLAUDIUS OMOMOWO
3. MR. ILORI OLOMOSEDARA
4. PRINCE EWATA SHEM IMOLE
(Representing Rewoye and Sedara Communities in Ilaje Local Government of Ondo State) – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The present appeal is from an interlocutory decision of the Federal High Court sitting in Lagos (the Court below) whereby it dismissed the application of the appellant that the action of the respondents for trespass and nuisance is not caught by the Limitation Law of Lagos State as the act complained of is a continuing act thus outside Section 9 of the Limitation Law of Lagos State.
In brief, the appellants case is that it was awarded OML 49 in 1967 and commenced the development of the Omuro Oil Well within the respondents communities in 1992. Oil production at the Omuro Oil Field commenced in late 1995 and ended in May, 1998 with the suspension of operations and shut in of the well by the appellant.
The respondents case, on the other hand, was that the appellant were at all material times operating the Omuro Oil Field within the respondents communities; that in the course of the exploration and exploitation of crude oil, the appellant installed infrastructure and other equipment for its activities, dredged the river within the communities, in the course of which dumpsites were created from which substances are released from the exploration/exploitation activities into the river among others which is causing continuing damage to the ecosystem, the livelihood and the environment of the respondents.
The appellant was aggrieved with the decision of the Court below and filed a notice of appeal with three (3) grounds of appeal contained in pages 88 90 of the record of appeal (the record).
The respondents raised a preliminary point in their brief filed on 27.09.16, but deemed as properly filed on 14.01.19, that the appeal is premature and against the current practice of the Court to allow cases to be tried on merit and discourage interlocutory appeals, therefore the respondents urged that the appeal be dismissed by referring the parties back to the Court below for the entire action to be heard on the merit.
The appellants amended brief of argument was filed on 22.04.16, but deemed as properly filed on 17.11.16. The appellant argued in the amended brief that the parties are ad idem that the exploration and exploitation activities for oil at the Omuro Oil Field and the dredging of the Ilaje river commenced in 1995, therefore from the documents put before the Court below especially the writ, statement of claim and statement of defence, the cause of action accrued in 1995 and time started running from 1995 when the alleged substance from the activities started entering the ecosystem and allegedly exposing it to destruction, while the action was filed on 16.12.13, when the act complained of is not a continuing act but the alleged continuation of the injury or wrong; and that the Court below should not have relied on the pictures which also established the abandonment of the site showing there was no continuing damage or injury; consequently, the appellant contended that the Court below was wrong by not dismissing the action for being statute-barred citing in support the cases of Nigeria Ports Plc. v. Beecham Pharmaceutical PTE Ltd. (2012) 18 NWLR (pt.1333) 454 at 480 481, Egbue v. Araka (1988) 3 NWLR (pt.84) 598 at 613, Gulf Oil Company (Nigeria) Ltd. v. Oluba (2002) 12 NWLR (pt.780) 92 at 108.
The appellant further argued in the amended brief that Limitation Laws of Lagos State CAP L67 and in particular Sections 8(4) and 9 thereof which is similar to Limitation Law of Bendel State with emphasis on Section 4(1)(2) thereof provide mandatorily that actions founded in tort shall not be brought after the expiration of six (6) years from the date the cause of action accrued for the purpose of protecting the defendant from stale claims; consequently, the appellant argued that the reliance on the Limitation Law of Lagos State instead of the Limitation Law of the State the cause of action arose is proper and that the Court below was wrong in holding otherwise citing in support the cases of Nduka v. Ogbonna (2011) 1 NWLR (pt.1227) 153 at 157, Olagunju v. P.H.C.N. Plc (2011) 10 NWLR (pt.1254) 113 at 116, S.P.D.C.N. Ltd. v. Amadi (2010) 13 NWLR (pt.1210) 82 at 83, Ajayi v. Adebiyi (2012) 11 NWLR (pt.1310) 137 at 146, Crutech v. Obeten (2011) 15 NWLR (pt.1271) 588 at 595.
The appellant contended that the Court below was wrong in treating the action under Environmental Impact Assessment Act CAP E12 LFN, 2004 which did not provide for any limitation period when the claim of the respondent in pages 4, 5, 9 and 10 was based on tort; therefore the appeal should be allowed and the action be dismissed on ground of time-bar.
The respondents amended brief of argument contended that the nuisance complained of in the action is unabated is thus an exception to the limitation of action in nuisance citing in support paragraphs 17, 19, 24, 31 of the statement of claim in pages 79 of the record and the cases of Dosumu v. NNPC (2013) LPELR 20655, Adepoju v. Oke (1999) 3 NWLR (pt. 594) 154 at 164, Amachere v. SPDC (Nig.) Ltd. (2011) LPELR 4474, Okito v. Obioru (2007) All FWLR (pt.365) 568.
The respondents distinguished the case of Gulf Oil Co. (Nig.) Ltd. v. Oluba (2002) 12 NWLR (pt.780) 92 from the present case, in that, in that case the claim was against the permanent damage to fishing swamps and ponds destroyed by the defendant during their oil prospecting and exploration activities, while the present case is in respect of recurring oil exploration activities as stated in paragraph 31 of the statement of claim contained in page 9 of the record; and that in Amachree v. SPDC (Nig.) Ltd. (supra) it was held that issues once not admitted on the pleadings should be resolved by evidence, not in limine.
The respondents argued that the cause of action arose in Ondo State and stems from operation and consequent violation of the Environmental Impact Assessment Act and Oil Pipelines Act which do not provide for any limitation period for actions emanating from the spillage of substances into the water from oil mining/exploration thereby affecting the ecosystem and the environment in general; therefore no state law can curtail the right created under a Federal enactment citing in support the cases of Nuhu v. Ogele (2004) FWLR (pt.193) 362 at 379, SPDC v. Farah (1995) 3 NWLR (pt.382) 148, Edebor v. Elf Petroleum Nig. Ltd. (2011) LPELR 487817, Benson v. Mobil Producing (Nig.) Unlimited (2014) All FWLR (pt.722) 1821 at 1823.
The respondents reiterated in the amended brief that their action as disclosed in the statement of claim stems from continuing nuisance and damage and the violation of Federal Laws regulating the Oil and Gas Industry, therefore the Court below was right in holding that the action was not statute-barred; and that based on the submissions (supra) the appeal should be dismissed as devoid of merit.
In determining whether an action is statute-barred, only the writ and statement of claim and in some cases affidavit evidence filed by the claimant are examined vis a vis the date the action was filed. The statement of defence or any response from the defendant forming part of the record of the Court is not resorted to in such a case vide Woherem v. Emeruwa (2004) 13 NWLR (pt.890) 398, Emiator v. Nigerian Army (1999) 12 NWLR (pt.631) 362, Aremo II v. Adekanye (2004) 12 NWLR (pt.891) 572, Adekoya v. F.H.A. (2008) 11 NWLR (pt.1099) 539.
The statement of claim which supersedes the writ of summons is contained in pages 6 10 of the record (though lengthy) is, for ease of reference, copied below
STATEMENT OF CLAIM
1. The Plaintiffs are Traditional Chiefs and Principal members/indigenes of Rewoye and Sedara Coastal Communities of Ilaje Local Government Area of Ondo State.
2. The Defendant is a Limited Liability Company carrying on the business of oil and gas exploration and related activities in the Plaintiffs’ communities, as well as other Delta communities in Nigeria.
3. The Defendant is also the operator of Omura Oil Field, which situates within the Plaintiffs’ communities, among many related Oil Fields, that are being operated by the Defendant.
4. Rewoye and Sedara Communities are the Host Communities of the Omura Oil Field being the most proximate to the installation of the Defendant. The Omuro Oil Well is a mere 212 meters and 718 meters from the communities of Rewoye and Sedara respectively.
5. The Defendant being an Oil and Gas exploration company was granted the licence to exploit and explore oil from the field.
6. The Defendant being operators of the Field started exploration and exploitation of Crude Oil sometime in 1995.
7. As operator of the Omuro Oil Field, the Defendant was reasonable for the design, construction and installation of infrastructure and necessary equipment for the exploration and exploitation of the crude oil.
8. The Defendant in carrying out its exploitation activities dredged the Ilaje River within these communities thereby constructing canals that are big enough for the passage of Light Ships and Ferries for the purpose of logistic support for its activities.
9. The Plaintiffs aver that the extensive dredging of the natural Ilaje river impacted negatively on the natural environmental ecology of these communities, as the river became linked up to the sea, thereby causing a pollution of the fresh water with salt water from the sea and ocean.
10. The Plaintiffs aver that this development severely affected the social and economic activities of the peaceful and largely fishing communities.
11. The Plaintiffs aver that the Defendant systematically and continually created a dumpsite within these communities wherein it threw dredged wastes from the dredged river and crude debris.
12. The Plaintiffs aver that this dump site created along with crude released into the river caused severe contamination of the soil, river and natural stream within the communities.
13. The Plaintiffs aver that the activities of the Defendant has caused severe degradation of their environment causing them to loose their fishing lines as well as the destruction of farm lands which have been overtaken by unnatural species of weeds making the planting of edible crops impossible.
14. The Plaintiffs aver that as a result of these severe environmental deterioration, the population has been severely affected in their health and life expectancy, by suffering the actions of the toxics, either by being in a direct contact with them, or through the water or the soil, or by drinking water or consuming animal related products which in turn had suffered the contamination effects as well.
15. The Plaintiffs aver that the native fauna and the domestic animals have experienced a total alteration of their eco system. The animals have ingested toxic products through the water or have died trapped under the crude released into the water.
16. The Plaintiffs aver that this turn of event caused a destruction of the mean of subsistence, their way of life and habit.
17. The Plaintiffs aver that the indigenes are facing a serious threat of their future an identity as a group notoriously known to be predominantly fishermen.
18. Plaintiffs further aver that the environmental degradation has resulted in a systematic reduction in the population of the people resident in the community. The indigenes have been forced to relocate thus desolating the once densely populated communities.
19. The Plaintiffs aver that the harmful effects of the activities of the defendant have remained and are still present, causing continuing damage to the Plaintiffs’ communities.
20. The Plaintiffs aver that the Defendant, in the carrying on at its activities, neglected to take steps to remediate the impact of its activities on the environment.
21. The Plaintiffs aver that the Defendant never took into consideration the environmental effect of its activities on the communities in accordance with extant laws.
22. The Plaintiffs aver that no Environmental Impact Assessment was carried out prior to the commencement of the Defendant’s activities in these communities. Notice is hereby given to the Defendant to produce any Report of Environmental Impact Assessment done.
23. The Plaintiffs aver that this omission is a violation of the Environmental Impact Assessment act and other relevant laws of the Federation of Nigeria.
24. The Defendant failed and has continually failed to alleviate the suffering it has caused on the people of these communities in accordance with the law, despite several efforts and plea by these indigenes to the Defendant
25. The Plaintiffs wrote several letters to the Defendant in respect of the above averment, wherein it invited the Defendant to come and look at the extent of damage caused to their communities. Notice is hereby given to the Defendant to produce the original letters dated 4th and 20th September, 2012 respectively.
26. The Plaintiffs thereafter instructed its solicitors to write to the Defendant with the hope that the Defendant will respond to the pleas of the indigenes. The Defendant never responded despite receipt of the Plaintiffs’ solicitor’s letter. Notice is hereby given to the Defendant to produce the original of the said letter dated 5th August 2013.
27. The Plaintiffs upon the advice of its solicitor, engaged the services of Environmental Scientists to conduct an Environmental Reconnaissance Study (ERS), a preliminary fact finding and first hand evaluation of the current Ecological and Socio-economic status of the communities.
28. The Environmental evaluation team of experts led by Dr. A.A.A. Sanyaolu undertook a reconnaissance visit to the communities pursuant to which a Report of their Preliminary evaluation was submitted. The Plaintiffs will rely on this Report at trial.
29. The Plaintiffs’ solicitor wrote a letter to the Ministry of Environment requesting for Report of Environment Impact Assessment carried out prior to commencement of activities in accordance with the law.
30. The Ministry of Environment replied via letter dated 12th November, 2013 wherein it stated that Omuro Oil Field was not registered for an EIA permit with the ministry. The Plaintiff will rely on the letter at trial.
WHEREOF the Plaintiffs claims, as follows:
a. A DECLARATION that the exploration and exploitation activities of the Defendant is causing unmitigated damage to the environment of the Rewoye and Sedara Communities in Ilaje Local Government Area of Ondo State.
b. PERPETUAL INJUNCTION against the Defendant from carrying on Oil and Gas exploration and exploitation activities within and around Rewoye and Sedara Communities in the Ilaje Local Government of Ondo State pending when a satisfactory Environment Evaluation Assessment is carried out, at the expense of the Defendant, by reputable and internationally recognized Environmental Specialists/Institutions (acceptable to the Plaintiffs) in the affected Plaintiffs’ Communities.
c. Commissioning of international reputable environmental specialists/institutions, at the Defendant’s expense, towards carrying out environmental impact assessments and remediation of the land, water, fauna and other environmental related natural habitat in the Plaintiffs’ communities so as to abate the environmental damage being wrought on the communities by the Defendants.
d. The repair, at the Defendant’s expense, of the resulting nuisance from the negligent or willful misconduct of the defendant in accordance with extant laws.
e. The removal and the adequate treatment of the contaminating materials that still threaten the environment and the health of the remaining inhabitants.
f. AN ORDER OF THIS HONOURABLE COURT directing the Defendant to refund to the communities a sum of N20,000,000 (Twenty Million Naira) being the cost of Environmental Reconnaissance – Study (ERS) carried out by the Plaintiffs’ communities for and on behalf of the Defendant.
g. AN ORDER OF THE HONOURABLE COURT directing the Defendant to compensate the indigenes/residents of the Plaintiffs’ communities in the sum of N5,000,000,000 (Five Billion Naira) for the continued degradation of the communities’ environment as a result of the unethical, oil and gas exploration activities of the Defendant in the Plaintiffs’ communities.
h. AN ORDER OF THIS HONOURABLE COURT directing the Defendant to bear the Legal/Solicitors’ cost of this action estimated in the sum of NI00,000,000 (One Hundred Million Naira).
(My emphasis).
The writ which is in page 3 of the record shows the action was filed on 16.12.13. The statement of claim (supra) indicates the events that led to the action started in 1995 in the present Ondo State. The paragraphs of the statement of claim (supra) read in harmony, aggregate to the averment or fact that the acts complained of remain and are still present, causing continuing damage to the plaintiffs communities (paragraph 19 of the statement of claim, in particular). In every respect, any continuing damage or injury as in this case removes an action from the adverse effect of limitation law.
Accordingly, the Court below was right by holding that the action as pleaded is not caught by limitation law because of the continuance of the damage or injury vide Dosumu v. NNPC (supra) Adepoju v. Oke (supra), Amachere v. SPDC (Nig.) Ltd. (supra) and Guld Oil Co. (Nig.) Ltd. v. Oluba (supra) at 112 cited by the respondents where Ibiyeye, J.C.A., reiterated in the last case that in the case of a continuing nuisance or trespass, successive actions can be instituted from time to time in its continuance thereby ousting any one particular date for the cause of action to accrue.
Thus in Aremo II v. Adekanye (2004) 13 NWLR (pt. 891) 572 at 593 594, the Supreme Court held that where there has been continuance of damage or injury, a fresh cause of action arises from time to time, as often as damage or injury is caused. Reliance was placed in that case on the old English case of Battishill v. Reed (1856) 18 CB 696 at 714 with the example that if an owner of mines, works and causes damage to the surface more than the limitation period before action is filed and after the limitation period a fresh subsidence causing damage occurs without any fresh working by the owner, an action in respect of the fresh damage, not the previous damage, is not barred as the fresh subsidence resulting in injury gives a fresh cause of action. See also Adepoju v. Oke (1999) 3 NWLR (pt.594) 154 at 164, A.-G., Rivers State v. A.-G., Bayelsa State (2013) 3 NWLR (pt.1340) 123 at 148 149.
The statement of claim (supra) objectively viewed is a combination of the tort of unabated nuisance and alleged environmental degradation which has allegedly altered and is still altering the ecosystem of the Rewoye and Sedara Communities of Ilaje in Ondo State. The motion on notice is in page 56 of the record. It was brought and canvassed under the Limitation Law of Lagos State. It has not been urged that the Limitation Law of Lagos State was wrong citation of the law which if conceded might have been saved by the principle that bringing an application under a wrong law where there is a remedy in law is pardonable and permissible vide Falobi v. Falobi (1976) 1 NMLR 169.
The motion was consciously and/or deliberately argued under the Limitation Law of Lagos State when the action emanated from Ondo State. It is the Limitation Law of Ondo State, if any, that should have been utilized in respect of the tort of nuisance, while the Limitation Act of the Federal Republic of Nigeria (the Federation), if any, should have been used for the environmental grievances under the Environmental Impact Assessment Act and the Oil Pipelines Act; (Federal Laws), in canvassing the issue whether the action was statute-barred.
The case of Ibegbu v. Lagos City Council Caretaker Committee and Anor. (1974) N.S.C.C. 124 at 127 emphasises that in cases involving limitation of actions, the correct statute or law must be deployed. In that case the Federal Law was used instead of the time-bar Law of Lagos State and the Supreme Court held that the application was bad and refused to countenance it.
Further, in Forestry Research Institute v. Gold (2007) 5 S.C.N.J. 302, the Supreme Court held that state law would not apply to the sphere of influence of Federal laws and bodies; while in Nuhu v. Ogele (supra), SPDC v. Farah (supra), Edebor v. ELF Petroleum of Nigeria Ltd. (supra), Benson v. Mobil Producing (Nig.) Unlimited (supra) cited by the respondents, it was held that it is unconstitutional for a state law to curtail the right of action created under a Federal enactment/law.
Accordingly, the Court below was right in dismissing the application and holding that the action was not statute-barred.
In conclusion, I find no substance in the appeal and hereby dismiss it and being an interlocutory appeal which was in large measure unnecessary at the stage the application was brought as it dissipated time, resources and energy when the matter could have been taken along with the substantive action, I order accelerated hearing of the main action at the Court below. The appellant shall pay N500,000 costs to the respondents.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I read before now the leading judgment of my learned brother, Joseph Shogboor Ikyegh JCA, which has just been delivered.
Having also read the Records of Appeal and the briefs of argument filed and exchanged by the parties, I find that the reasoning and conclusion in the leading judgment on the disceptation in the appeal accord with my views.
Accordingly, it is for the said reasons that I equally arrive at the conclusion that the appeal is devoid of merit. I therefore join in dismissing the appeal. I abide by the consequential orders made in the leading judgment.
TOBI EBIOWEI, J.C.A.: I have read in draft the judgment of my learned brother, Joseph Shagbor Ikyegh, JCA Just delivered. I agree and have nothing to add.
Appearances:
Mr. L. Soetan with him, Mr. J. Uche For Appellant(s)
Mr. K. G. Raji with him, Mr. T. Kareem For Respondent(s)
