CHRISTIAN. C. NKWONTA V. NIGERIAN GAS COY LTD & ORS
(2010)LCN/3818(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of May, 2010
CA/PH/101/2008
RATIO
JURISDICTION: HOW IS JURISDICTION OF COURT DETERMINED
It is settled law, that, in determining whether a court has jurisdiction over the subject matter before it, the only materials to consider are the writ of summons and the particulars of the statement of claim where they are filed simultaneously. Thus, what is relevant in the Conferment of the jurisdiction of court is the originating process in any given case. See Oloba v. Akereja (1988)3 NWLR(PT.84)508; Opiti v. ogbeiwi 1992 4 NWLR (pt 234) 184, Skenconsult v. Ukey (1981) 1 SC 6 and D-E. PER ISTIFANUS THOMAS, J.C.A
APPEAL: ISSUES FOR DETERMINATION; WHERE SHOULD ISSUES FOR DETERMINATION ARISE FROM
It is settled principle of law that issues for determination should arise from the grounds(s) of appeal, where it failed to connect to the ground of appeal, the issue will be of no moment and will be discountenanced. PER ISTIFANUS THOMAS, J.C.A
COURT: JURISDICTION OF THE FEDERAL HIGH COURT ON MINERALS AND MINING MATTERS
It has been decided in a number of cases that the subject matter of the Plaintiff s claim will fall squarely within the jurisdiction of the Federal High court when such claim has arisen from or connected with or pertaining to mines and minerals (including oil fields, oil mining, geological surveys and natural gas.) See: ABEL ISAIAH V. THE SHELL PET. DEV.CO OF NIG. LTD (2001) 5 NSQR 542 at 550; EMEJURU V. ABRAHIM (2008) 3 NWLR (PT. 1075) 491 at 498-500; OMOSOWAN & ORS V. CHIDOZIE (1998) 9 NWLR (PT. s66) 477 at 484 and ADELEKAN V. ECU-LINE NV. (2006) 12 NWLR (Pt. 993) P. 33 at 58. PER SULEIMAN GALADIMA, J.C.A
PLEADINGS: WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS
It is trite that parties are bound by their pleadings. Address or submissions of counsel are not part of the pleadings or the reliefs ex facie the notice of motion or preliminary objection. The basic rules of fair hearing prohibits a party from taking his opponent by surprise or ambush. PER EJEMBI EKO, J.C.A
JUSTICES
SULEIMAN GALADIMA (OFR) Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
CHRISTIAN. C. NKWONTA Appellant(s)
AND
1. NIGERIAN GAS COY LTD
2. NIGERIA NATIONAL. PET. CORP.
3. SAIPEM CONTRACTING NIG. LTD. Respondent(s)
ISTIFANUS THOMAS, J.C.A (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of R.O. Nwodo (J) sitting at Federal High Court Port Harcourt delivered on 17th May, 2006, striking out the plaintiff now appellant’s suit on the basis that it had no jurisdiction. Dissatisfied with the ruling, the appellant filed on 2nd June, 2006 a Notice of Appeal containing a single ground of appeals that reads as follows.
“1.The learned trial judge erred in law by striking out the Appellant’s suit on the ground that the court had no jurisdiction to entertain the subject matter of the suit’ Particular of error
(i) The subject matter of the suit falls squarely within the jurisdiction of the court being a Federal High Court.
(ii) The Court being a Federal High Court has been invested by law viz Section 251 (1) (n) of the Constitution of the Federal Republic of Nigeria, 1999 and, Section 7 (1) (n) of the Federal High Court Act (chapter F. 12) with the exclusive jurisdiction to try any civil causes or matters relating to or connected with mines and mineral (including oil fields, oil mining, geological surveys and natural gas)”
(iii)The acts of trespass complained of by the appellant in the said suit were not acts of trespass simpliciter but were acts of trespass connected with or related to or arising from “mines and minerals (including oil fields, oil mining, geological surveys and natural gas)”
From the above ground of appeal, the appellant has raised a single issue that reads as follows:-
“Whether having regard to the law and the pleaded facts as contained in the plaintiff/appellant’s statement of claim, the lower court was right to have struck out the appellant’s suit for want of jurisdiction to entertain the subject matter of the suit.”
The 1st and 2nd respondents as well as the 3rd respondent raised similar issue for determination of this appeal. By the rules of this court, parties filed and exchanged their respective briefs, though 1st and 2nd respondent’s joint brief as well as the 3rd respondent’s brief were deemed filed after granting them extension of time to file their briefs.
To appreciate the parties’ arguments on the sole issue, being the jurisdiction of the lower court, it is necessary to look at the appellant’s writ of summons and the statement of claim from which the requisite jurisdictional power of the trial court can be formed. However, it is to be noted that the appellant as the plaintiff in the lower court, initially instituted the substantive suit in 2002, at the State High Court which declined the hearing of the suit on jurisdiction and sent the matter to the Federal High Court. At the Federal High Court also, as earlier stated above, the trial judge per Nwodo, J, also declined on the ground of lack of jurisdiction. In order words, the State and Federal High Courts, both in Port Harcourt have ruled that they have no jurisdiction. In the instant appeal, the lower Federal High Court struck out the said suit and ended as follows:-
“Either of the parties may wish to go to a Higher Court to determine the issue” hence, the appellant has appealed to this court.
The appellant’s statement of claim at pages 4-7 of the record in paragraphs 4, 7, 8 and 16 are necessary as they will show which court has jurisdiction to determine the suit.
These statement of claim red as follows:
“4. The list defendant is a subsidiary of the 2nd defendant and has its head office at Odin Road, Ekpan near Warri in Delta State of Nigeria and under-takes the production, transportation, storage and sale of gas.
7. In about or between the months of September 1995 and March, 1996, the defendant by themselves and their servants workmen and agents, without the and consent of the plaintiff, unlawfully broke and entered the plaintiff aforesaid parcels of land, cut survey trances thereon and with bulldozers and other earth moving equipments and machines bulldozed the plaintiffs said land and in the process destroyed numerous economic trees and cash crops growing thereon as well as the plaintiffs building materials deposited on part thereof.”
8. The defendant did not stop at that but went further to construct and place along and under the plaintiff’s said land pipes and mains to hold, keep and carry their gas without the previous knowledge and consent of the Plaintiff….”
16. The defendant by bringing to the plaintiff’s said Parcel of land, gas the plaintiff’s which is a dangerous thing, have not only greatly diminished, the value of the plaintiffs said land but have also rendered it useless for the plaintiff’s purposes”.
In his argument, learned senior counsel for the appellant, Chief Akparanta, SAN, relied on the statement of claim quoted above but including paragraph 21 (1). Learned Senior Counsel referred to the provisions of Section 251 (1) (n) and Section 7 (I) (n), of the Constitution of Nigeria, 1999 and Federal High Court Act Cap F. 12 of 2004 respectively and urged this court to hold that the subject matter of the appellant’s claim falls squarely within the jurisdiction of the Federal High Court, being a claim having arisen from or connected with or pertaining to mines and minerals (including oil fields, oil mining, geological surveys and natural gas). To support his argument, appellant referred to and relied on the Supreme Court and the Court of Appeal decisions in the cases of Abel Isaiah v. The Shell Pet. Dev. Co, of Nig. Led (2001) 6 NSCQR 542 at 50; and Emejuru v.Abraham (2008) 3 NWLR (Pt 1075) 491, Pt. 498-500.
The appellant further contended that the phrases “pertaining to” “concerning”, or “arising from” as stipulated in Section 251 (1) (n) in 1999 Constitution and Section 7 (I) (n) of the Federal High court Act, are the unseen terms at the root of the appellant’s suit in the instant appeal; and that the appellant’s claim, is pertaining to, and concerning or arising from the laying of gas pipeline and therefore, is to be heard and determined exclusively by the Federal High court and no other court. Learned silk urged the court to allow the appeal and set aside the ruling of the lower court and remit the appellant’s suit to another Federal High Court sitting at Port Harcourt for trial.
On the part of the 1st and 2nd respondents, the sole issue for determination is as; follows:-
“Whether the subject matter of the claim in paragraph 21 of the Appellant’s Statement of claim falls within the jurisdiction of the Federal High Court?’
On the part of the 3rd respondent, it raised an issue for determination that reads as follows:
“Whether on the facts and circumstances of this Case, the Hon. Court was right in holding that it had no jurisdiction to entertain this suit”
It is now apparent, that, the only issue distilled from the sole ground of appeal, are that of the appellant and the 3rd respondent. The issue distilled by the 1st and 2nd respondent is not from the sole ground filed by the appellant. The problem in 1st and 2nd respondent’s issue is that it is limited to the plaintiff/appellant’s reliefs contained in paragraph 21 of the statement of claim. It is settled law, that, in determining whether a court has jurisdiction over the subject matter before it, the only materials to consider are the writ of summons and the particulars of the statement of claim where they are filed simultaneously. Thus, what is relevant in the Conferment of the jurisdiction of court is the originating process in any given case. See Oloba v. Akereja (1988)3 NWLR(PT.84)508; Opiti v. ogbeiwi 1992 4 NWLR (pt 234) 184, Skenconsult v. Ukey (1981) 1 SC 6 and D-E.
In the instant appeal, 1st and 2nd respondent’s issue on the determination of the jurisdiction is not on the appellant’s writ of summons and the statement of claim as required by the decisions quoted above. In fact, what the 1st and 2nd respondent’s looked at, are the appellant’s reliefs in paragraph 21 of the statement of claim. To determine the court’s jurisdiction, it is not only the reliefs alone that is to be searched, but the entire relevant paragraphs in the writ of Summons and the relevant paragraphs in the statement of claim. It is the entire statement of claim that can point out the facts from which, the aggregate forms of action can confer jurisdiction of the trial court. It is not sufficient to Just point out the reliefs of the plaintiff as the 1st and 2nd respondents did in the instant appeal. I deliberately reproduced the appellants’ sole ground as it is related to the appellant’s and 3rd respondent’s issues for determination. It is settled principle of law that issues for determination should arise from the grounds(s) of appeal, where it failed to connect to the ground of appeal, the issue will be of no moment and will be discountenanced.
In the instant appeal, the 1st and 2nd respondents have not cross-appealed, and therefore, their own issue for determination being only in respect of reliefs in appellant’s para 21 of the statement of claim is hereby discountenanced because their issue is outside the appellant’s ground of appeal – see M.V. Med Queen v. Erintolami (2008)3 NWRL (Pt.1074)314.
At this stage, I deem it necessary to state the position or argument of the 3rd respondent. Learned counsel reproduced the trial judge’s reasoning for the decline of jurisdiction to hear the suit. Counsel for the 3rd respondent has contended that, the main claim of the appellant as found by the trial judge is, simply, damages for continuing trespass and nuisance and that the appellant has not appealed against that decision. That it is clear therefore, that the contention of the appellant to the effect that the lower court was in error in holding that it lacked jurisdiction to entertain the claim is not correct, and counsel urged this court to hold so. The 3rd respondent has also contended that, the appellant’s case at hand, is distinguishable from the decision in Emejuru v. Abraham (supra) because the facts are different in the instant appeal, the trial court found that the main claim was for damages for continuing trespass and nuisance, and that it reasoned that the appellant’s claim can not be said to be connected to and or related to mines and minerals to be heard and determined by the lower Federal High Court pursuant to Section 251 of the 1999 Constitution of Nigeria. That the lower court was justified in declining jurisdiction.
That the mere employment of the words “pipeline, “gas” etc, do not create a magic wand if the substance of the claim is not within the jurisdiction of the court. Counsel referred to and relied on the case of Adelekan v. Ecu-line NV (2006) 12 NWLR (Pt 993) 33 at 52 where the apex court held that a simple contract claim for damages for breach of contract and or negligence to carriage of goods by sea does not ipso facto make the claim an admiralty claim to file it in the Federal High court counsel urged that the appeal be dismissed and up hold the decision of the lower court as the findings of the trial court were justified.
By community reading in the plaintiff/appellant’s statement of claim in paragraphs 4, 7, 8 and 16, quoted above, it will show that they are vital and salient facts showing that the suit can only be heard by the Federal High Court in consonance with section 251 (1) (n) of the constitution of Nigeria 1999.
The salient point in paragraph 4 of the aforesaid statement of claim is that the 1st defendant, namely Nigeria Gas Company Ltd is a subsidiary of the 2nd defendant. The name speaks for itself. There is no doubt that it is not the name that matters, but the 1st and 2nd defendants/respondents are accused in paragraph ph 7 of the statement of claim, that the defendants by themselves and their servants, workmen and agents, without the knowledge and consent of the plaintiff, unlawfully broke and entered the plaintiffs land, cut Survey traces and with bulldozers and other earth moving equipments, bulldozed the plaintiffs land and in the process, destroyed economic trees and cash crops.
Still the plaintiff/appellant pleaded in paragraph B that, the respondents went further by construction work on appellant’s land by laying pipes and a main with clear intention to hold and keep appellant’s land and carrying out the laying of gas pipes. In paragraph 16 of the statement of claim, the issue of gas being a dangerous substance, being laid by the respondents is raised. The claim of the sum of N10,000.000, is for damages for continuing trespass and nuisance.
As argued by the learned Senior counsel for the appellant, I can not agree more that, the subject matter of the appellant’s claim falls squarely within the jurisdictional powers of the Federal High Court conferred by the constitution in Section 251 (1) (n). It is a claim having arisen from or connected with or pertaining to mines and minerals (including oil fields, oil mining, geological surveys and natural gas.) The appellant had alleged in his paragraph 16 of the statement of claim that the dangerous gas had not only diminished the value of the land but had also rendered it useless for his purposes. I entirely agree that if in the process of laying oil pipes and gas pipes on the appellant’s land, as well as bringing dangerous and highly inflammable substances as natural gas, the claims are not just based on trespass and nuisance simpliciter but are acts that are actionable arising from or pertaining to and connected with mines and minerals including oil fields, oil mining, geological surveys and natural gas as stipulated in Section 251 (1) (n) of the 1999 Constitution. This position is supported by the Supreme Court decision in the case of Abel Isaiah v. The Shell Pet Dev Coy Ltd (2006) 6 NSCQR 542 where at page 550 it is held that the construction, operation and maintenance of an oil pipeline by a holder of prospecting licence is an act pertaining to mining operations and that if an accident happens during the transmission of petroleum products to the storage tanks, it can be explained as having arisen from or connected with or pertaining to mine and minerals including oil fields and oil mining. In my considered opinion, this appeal is on all fouls with the facts and findings in Abel Isaiah, v. the Shell Pet Dev. Co. (supra), and Emejuru v. Abraham (2008) 3 NWLR Pt 1075) 491.
In the case of Emejuru v. Abraham (supra), being a decision of this court, the 3rd defendant at the lower court, was joined as a party by the directives of the trial judge.
That order was made because the 3rd defendant therein, had entered into the property, or the land in dispute and commenced laying gas pipelines and it caused a massive destruction to their cash crops, farmland, ancestral landmarks and building in the process.
In the instant appeal, the 1st respondent namely, Nigeria Gas Co. Ltd is a subsidiary of the 2nd and undertakes the production, transportation and storage and sale of gas. In my considered view, the act of production, transportation and storage of gas are clearly related to, or connected with the mining activities. The appellant’s complaint is that, the 1st respondent was laying gas pipelines by bulldozing machineries and destroyed numerous economic trees and cash crops on his land. It is therefore, very clear and beyond argument that the subject matter of the appellant at the lower court, is squarely within the jurisdiction of the Federal High Court, being a grounded claim having arisen from or connected with or pertaining to mines and minerals including oil fields, oil mining, geological surveys and natural gas.
In the appellant’s statements of claim, it is no more in doubt that the respondents were laying gas pipelines on the appellant’s land.Gas is in no doubt, a dangerous substance that is hazardous and capable of causing destruction to crops.
It is well settled that the construction, operation and maintenance of an oil pipeline or gas pipeline during the transmission of the products to their storage tanks can be explained as having arisen from or connected with or pertaining to miners and minerals including oil fields and oil mining see Abel Isaiah vs. S.P D.C. Ltd (supra) at page 550; and Emejuru v, Abraham (supra) at 498-500.
Having reached that the appellant’s claim is related to actions arisen from the respondents activities in connection with mines and minerals (including oil fields, oil mining, geological surveys and natural gas), it is necessary to ascertain which court has the exclusive jurisdiction to hear the suit. Under Section 251 (1) (n) of the 1999 Constitution, it is provided as follows:-
“251 (1) (n).
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).
From the above provisions of the Constitution, the trial judges did not critically, look at the appellant’s complaint in the statement of claim, but rather misdirected himself’ by looking only on the reliefs contained in paragraphs 21 of the statement of claim. At page 206 of the record, the trial judge said as follows:-
“I will look at the plaintiffs statement of claim filed on 13th October, 1999 and for purposes of emphasis I reproduce paragraphs 21 of the statement of claim as follows:-”
(Underlined is mined).
The trial judges purposes of emphasis is thus on relief. It was patently wrong as the trial judge did when he looked only at the reliefs sought to be granted. He should have gone further by looking ,at the grievances of the appellant as well as the specific connections of acts that caused the complain.
Relief claims must have roots and basis. At the trial court, learned Senior Counsel for the appellant had argued effectively that the acts of trespass raised were not trespass simpliciter but trespass connected to and relating to mines and minerals as stipulated in S.251 (1) (n) of the Constitution of Nigeria, 1999 at page 205 of the record, the trial judge found as follows:-
“He (Chief Akparanta SAN) contends that the acts of trespass are not trespass simplicities but trespass connected with and relating to Mines and Minerals.”
Despite that submission, the trial judge went into a different matter, namely that the plaintiff/appellant’s complain was that the defendants/respondents did not seek nor obtain permission before they entered the parcel of land and that they have continued to stay on that land. That in the course of respondents entry into the appellant’s land, they brought bulldozers and earth movers and destroyed numerous economic tress and cash crops. The trial courts findings stated above are contained on page 210 of the record. At that stage, the trial judge wrongly found that, the claim was relating to matters relating to land as regards customary land and under statutory rights of occupancy and then wrongly concluded that the incidental maintaining of gas pipe on appellants land could not by any stretch of imagination qualify the claim as arising from and pertaining to oil mining or minerals to bring the relief within the jurisdiction of the Federal High court. In my considered opinion, the trial judge’s findings and conclusion is completely wrong. If the learned trial judge had properly examined the appellant’s paragraphs 4, 6, 8 and 16 of the statement of claim critically, he would not have fallen into looking only on the reliefs in paragraphs 21 of the statement of claim. He would have arrived that the claim was not trespass simpliciter but related to and connected with mining of oil and minerals including gas pipe laying as ably argued by the plaintiff/appellant at the lower court.
Finally, I firmly believe that the appellant’s claim at the lower court was premised on damages caused by the laying of gas pipelines by bulldozing of the appellants massive destruction to economic trees and crop farmlands are undoubtedly, a claim arising from mining activities of’ the appellants. Moreover the act of transmission of gas by lying of pipelines has created the danger of exposition. The claim relief of N10, 000,000.00 as damages for the trespass and nuisance against the respondents had clearly divested the state High Court of jurisdiction and is vested squarely and exclusively at the door step of the Federal High court, namely the lower court. I entirely agree as argued by learned senior counsel for the appellant that, the terms “pertaining to, concerning or arising from” are the clear but unseen terms at the root of the appellant’s claim in the instant appeal.
The appeal is meritorious and is hereby allowed by me.
I reverse the decision of the lower court which was delivered on 17-05-06 striking out the suit on the ground of lack of jurisdiction. I declare that the suit is live as the Federal High Court has the exclusive jurisdiction conferred by the constitution of Nigeria in Section 251 (1) (n) and Section 7 (1) (n) of the Federal High Court Act Cap F12,2004.
The case is sent back to Federal High Court Port Harcourt to be heard and determine by another judge.
Costs of N50, 000.00 in favour of the appellant and against the entire respondents.
SULEIMAN GALADIMA, J.C.A (OFR): I have read before now the judgment of my learned Brother, THOMAS, JCA, just delivered. I entirely agree with his reasoning and the conclusions, reached therein. The provisions of Section 251 (l) (n) of the Constitution of the Federal Republic of Nigeria, 1999 are very clear and unambiguous. The Federal High court therefore derives its jurisdiction from this provisions and Section 7 (1) (n) of the Federal High court Act (Cap. F.12). The court has exclusive jurisdiction to try any civil causes or matters arising from or connected with or pertaining to mines and minerals (including oil fields, oil mining, geological surveys and natural gas).
To determine the Court’s jurisdiction it is not only the reliefs alone that is to be considered, but the entire relevant paragraphs in the writ of summons and the entire relevant paragraphs in the statement of claim. For it is the entire statement of claim that can aggregate forms of action and can confer jurisdiction on the trial court. It is not sufficient to just point out the reliefs of the Appellant as the 1st and 2nd Respondents did in this case.
Paragraphs 4, 7, 8 and 16 of the Appellant’s statement of claim at pages 4-7 of the records, reproduced in this lead judgment, and clearly determine which court has jurisdiction to determine; the matter.
It has been decided in a number of cases that the subject matter of the Plaintiff s claim will fall squarely within the jurisdiction of the Federal High court when such claim has arisen from or connected with or pertaining to mines and minerals (including oil fields, oil mining, geological surveys and natural gas.) See: ABEL ISAIAH V. THE SHELL PET. DEV.CO OF NIG. LTD (2001) 5 NSQR 542 at 550; EMEJURU V. ABRAHIM (2008) 3 NWLR (PT. 1075) 491 at 498-500; OMOSOWAN & ORS V. CHIDOZIE (1998) 9 NWLR (PT. s66) 477 at 484 and ADELEKAN V. ECU-LINE NV. (2006) 12 NWLR (Pt. 993) P. 33 at 58.
The “unseen terms” at the root of the Appellant’s claim in this suit pertains to, concerns and arises from the activities of the Respondents, namely, in laying gas pipelines and mains and across the Appellant’s parcel of land. The Appellant’s claim to my mind, falls under the said section 251 (1) (n) of the 1999 Constitution or section 7(I) (n) of the Federal High Court Act Cap. F.12 of 2004.
The suit can, therefore, only be heard by the Federal High Court.
The Appellant’s claim of N10, 000,000 (Ten Million Naira) is for damages for continuing trespass and nuisance.
The 1st Respondent is a subsidiary of, the 2nd. It undertakes the production, transportation and storage of gas. The Appellant’s complaint is that the 1st Respondent was laying gas pipelines with bulldozing machineries and in the process it destroyed numerous economic trees and cash crops on its land. At the trial, leaned Senior Counsel for the Appellant had argued mineral including natural gas. In the case of ABEL ISAIAH V. THE SHELL PET. DEV. COY LTD supra, it was held that construction, operation and maintenance of an oil pipeline by a holder of prospecting licence is an act pertaining to mining operations and that if an accident happens during the transmission of petroleum products to the storage tanks, it can be explained as having arisen from or connected with or pertaining to mines and minerals including oil fields and oil mining. It would appear to me that the instant appeal is on all fours with the facts and findings of the Court in ABEL’S case (supra).
Similarly EMEJURU V. ABRAHAM (supra) was the decision of this Court. At the High Court, the Appellant’s claimed against the Respondents jointly and severally a declaration of title to land called and known as “Ugbate Land,” perpetual injunction and damages for trespass Para. 39 of the statement of claim, the Appellants averred that the 3rd Respondent in or about the year 1997 entered into the Appellants’ property in dispute and commenced laying gas pipelines without the consent and authority of the Appellants and caused massive destruction to their cash crops farmland, ancestral landmarks and building in the process.
The 3rd Respondent raised a preliminary objection to the jurisdiction of the Rivers State High Court on the basis of Section 251 (1) (n) of the 1999 Constitution.
In a considered Ruling delivered on 6/5/2002 the trial court upheld the preliminary objection and struck out the Appellants’ suit. The Appellants were not satisfied with the Ruling and they appeal to this court. This court in a unanimous decision, dismissing the Appeal held at p. 500 of the Report thus:
“A claim premised as this one is on the “lying of Gas Pipelines, “which caused “massive destruction to cash crops, farmland, ancestral landmarks and building” is undoubtedly claimed arising from mining activities.”
In view of the foregoing authorities and the reasons preferred in details in the lead judgment and my little contribution. I am of the humble opinion that the Learned Senior Counsel for the appellant has made out a superior case, which I endorse in concluding that the Federal High Court has the exclusive jurisdiction under S 251 (1) (n) of the 1999 Constitution and Section 7 (1) (n) of the Federal High court Act Cap. F. 12, 2004 to hear and determine: the Appellants suit. I too, will remit this case to the Federal High court for expeditious determination by another Judge. I abide by order made as to costs.
EJEMBI EKO, J.C.A: I had the privilege of reading in draft the judgment just delivered by my learned brother, I. THOMAS, JCA. I agree that the appeal has substance and that the Ruling/order of the learned trial judge of the Federal High Court, Port Harcourt striking out the suit of the appellant was a non-starter.
I wish to observe, in addition to the reasons advanced in the lead judgment, that the issues for determination in the motion on notice filed on 28th January, 2005, the ruling on which is the subject of this appeal, are articulated by, and flow from paragraph 7 of the 3rd Defendant’s amended statement of defence. The said paragraph avers –
The Defendant shall at or during the trial of this suit contend whether by way of preliminary objection or otherwise that this suit be dismissed and or struck out as being incompetent in that the cause of action is statute barred by reason of absence of any cause of action and or the provisions of section 12 and/or 13 of the Nigeria
National Petroleum Corporation Act (CAP 320) Laws of the Federation (sic) 1990.
Clearly, the issue of section 251 (1) (n) of the Constitution 1999 on which the decision was founded is not an issue in the motion or the Amended Statement of Defence of the 3rd Defendant. It is trite that parties are bound by their pleadings. Address or submissions of counsel are not part of the pleadings or the reliefs ex facie the notice of motion or preliminary objection. The basic rules of fair hearing prohibits a party from taking his opponent by surprise or ambush.
As far as I am concerned, upon reading the motion on notice filed on 28th February, 2005 (at page 161 of the Record) and paragraph 7 of the Amended Statement of Defence of the 3rd Defendant (at page 159 of the Record) no issue arose for determination under section 251 (1) (n) of the Constitution. That issue, if at all was completely extraneous to the motion argued pursuant to the notice in paragraph 7 of the Amended Statement of Defence of the 3rd Defendant and in accordance with Order 25 of Federal High Court Rules, 2000. In nutshell, what I have been trying to say is that the decision anchored on section 251 (1) (n) of the Constitution, as the basis for the trial Federal High Court declining jurisdiction, is unwarranted and perverse.
The 3rd Defendant/Respondent simply did not prove his preliminary objection. The appropriate consequential order therefore should have been one dismissing the objection.
The objection raised by the 3rd Defendant came under Order 25 of the Federal High Court Rules 2000, which in Rule 1 thereof has abolished demurrer. By Rule 2 of Order 25 a party shall be entitled to raise by his pleadings any point of law, and the point so raised shall be disposed of by the trial Judge at or after the trial; and the point of law so raised may, on application of either party, be set down for hearing and disposed of at any time before the trial. That is the purport of paragraph 7 of the Amended Statement of Defence of the 3rd Defendant and the motion filed on 28th February, 2005.The parties and the Court, bound by the pleadings and the notice of motion, can not go beyond the two processes to raise issues quite extraneous to the processes.
I allow the appeal. Ruling/decision of the Federal High court, Port Harcourt given on 17th May, 2006 in suit no. FHC/PH/CS/3/99 being unwarranted and unreasonable is hereby set aside. The suit is hereby reinstated to be heard de novo. I abide by order as to costs in the lead judgment.
Appearances
Chief C.A. B. Akparanta, SAN with Miss Josephine NwakawaFor Appellant
AND
Chris M. EssioduFor Respondent
