COMPAGNIE GENRRALEDE GEOPHYSIQUE (NIG.) LTD v. LUKE ASAAGBARA & ANOR(2000)

COMPAGNIE GENRRALEDE GEOPHYSIQUE (NIG.) LTD v. LUKE ASAAGBARA & ANOR

(2000)LCN/0841(CA)

In The Court of Appeal of Nigeria

On Thursday, the 22nd day of June, 2000

CA/PH/365/98

JUSTICES:

JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria

IGNATIUS CHUKWUDI PATS-ACHOLONU Justice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEH Justice of The Court of Appeal of Nigeria

Between

COMPAGNIE GENRRALEDE GEOPHYSIQUE (NIG.) LTD – Appellant(s)

AND

LUKE ASAAGBARA
2. CLETUS UGUSIMBA – Respondent(s)

RATIO

THE JURISDICTION OF THE FEDERAL HIGH COURT IN RESPECT OF MATTERS CONNECTED TO THE REVENUE OF THE GOVERNMENT OF THE FEDERATION

In the African Newspapers case, Supreme Court, per Obaseki, J.S.C affirmatively held at p.153 that-
“The gravamen of the jurisdiction of the Federal High Court concerns matters connected with or pertaining to the revenue of the Government of the Federation as may be spelt out by the National Assembly. The essence is Revenue. Additional to revenue are:
(a) such other jurisdiction which may be given to it by the national Assembly and
(b) such other matter which may he prescribed for it by the National Assembly
It would then be seen that in the 1979 Constitution the jurisdiction of the Federal High Court was not left to be implied (unlike the State High Courts) but was specifically made ‘to be conferred’ or ‘to be prescribed’. The prescribed or conferred jurisdiction of the court is contained in the Federal Revenue Court Act, 1973, section 7 subsections (1) and (2) which became ‘existing Law’ under s.274 of the 1979 Constitution”. PER IKONGBEH, J.C.A.

PATS-ACHOLONU, J.C.A. (Delivering the Leading Judgment): In this case, the plaintiff who worked for the defendant as a casing clerk had filed an action against the defendant now Appellant which is a company that is engaged in oil exploration activities of drilling nature and which involves carrying of heavy pipes in the fields. In the course of the plaintiff’s work he has to put on some overall. The overall garment was said to have been torn by a sharp stick on the swampy terrain the parties were working. The stick tore through his penis and pierced his scrotum and the stomach. He was hospitalized in Port Harcourt Teaching Hospital where he was treated after which he was given a paper that he is now impotent.
He brought this action against the Appellant for negligence. The Appellant then as defendant filed a motion praying the court to strike out the suit for want of jurisdiction. The motion was supported by an affidavit of 6 paragraphs. Paragraph 4 of that affidavit states that:
“In determining the case of negligence, the Court below will determine the issue of weight of casing pipes used in the Oil field and procedure of exploratory activities…”
A further averment following that states that, if that is the case, then the High Court of Rivers State has no business with assuming jurisdiction as such jurisdiction is vested in the Federal High Court.
The counter-affidavit filed debunked the issue of the Court below embarking into issue of casing or procedures of exploration activities pointing out the case against the defendants is that of simple tort of negligence of which the State High Court has the exclusive jurisdiction.
In his ruling, the Court below held inter alia:
“I have had a look at the relevant enactments from Cap. 134 Laws of the Federation of Nigeria, 1990, through Decrees No. 60 of 1991, No. 66 of 1992 and 107 of 1993. I am of the view that there is nothing in their provision to exclude a claim for personal injury suffered by a person who claims to be an employee of the defendants based on negligence from being laid in a State High Court having regard to the circumstances of the case. I find that most of the decided cases referred to by counsel deal mainly with the peripheral issue of principles governing the application of ouster clauses”.
He thereupon dismissed the application.
The Defendant/Appellant then appealed to this Court and formulated 3 issues while the Respondent also framed 3 issues for consideration.
In my view, the real issue is “whether the State High Court has jurisdiction to try cases of such negligent matter arising out of the operation of mines and minerals and oil explorations including geological surveys and exploitation of”.
To determine whether the State High Court has the jurisdiction to adjudicate on the matter, it is necessary to refer to the provision of the Act which confers jurisdiction on the Federal High Court oil exploration and survey related matter and find out how the claim comes within the purview of a particular judicial hierarchy. In his argument, the learned Counsel for the Appellant first referred to section 15(1) of the Petroleum Act, Cap, 350, Laws of the Federation 1990 in relation to Petroleum and its exploits and what is involved. There, the law describes ‘explore’ to include ‘To make a preliminary search by surface geological and geophysical methods including aerial surveys but excluding drilling below 91.44 metres’. Equally too, the section defines the word ‘prospect’ to mean search for by all geological and geophysical methods including drilling and seismic operations. The Appellant Counsel submits that this involves geological survey activities in an oil field.
It was argued that since the 1st Respondent sustained injuries when he was involved in the company’s operation when the injury was sustained, the whole matter was related and connected with and pertaining to and/or arising from subject-matter of mines and mineral including oil field, oil mining and geological surveys. On the other hand, it is the Respondents argument that the injury caused by the negligence of the Appellants did not arise from mines and minerals. He contended that the law that applied was the law in existence as at the time the injury was caused and not any law passed subsequently thereafter.
From the record, the writ of summons was taken out on 25/5/93. What was the state of the law then as affecting the jurisdiction of the Federal High Court?. This is contained in section 2 of the Federal High Court Amendment (Decree) now Act No. 60 of 1991 which state as follows:
“2. For section 7 of the Principal Act, there shall be substituted the following new section that is:
7(1) The court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters connected with and pertaining to (P) mines and minerals, including oil fields, oil mining and geological surveys and natural gas.”
What is the meaning of “matters connected with and pertaining to…? ” Careful examination of the phrase seems to imply that the Federal High Court will have jurisdiction on all issues or causes of action – relating to and arising out of the operation of any matter relating in particular to mines and minerals, geological surveys and natural gas. I must quickly add that section 7(1) of No. 60 of 1991 has been reproduced in section 230(1) of Constitution (Suspension and Modification) Decree No. 107 of 1993. It states as follows:
“Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction to the exclusion to any other court in civil cases and matters arising from (1) arms, ammunition and explosives: mines minerals (including oil, fields mining, geological surveys and natural gas.”
It is considered germane to find out the state of the case law in earlier case. In the case of Barry & Ors v. Obi A. Eric & Ors (1998) 8 NWLR (Pt.562) 404. The Respondent had taken out summons against the plaintiff in the State High Court for damages caused to them by causing migration of bees in the Respondent’s farm during seismic operation. The Appellant in the case applied that the suit be struck out on the ground of lack of jurisdiction. The Court dismissed the application. On appeal, in the leading judgment Katsina-Alu, J.C.A. (as he then was) said:
“I am persuaded by these amendments that there has been a shift from the old position… It is not in controversy that the cause of action in the present case arose in the course of oil prospecting activities by the Defendant/Appellant. It can be seen clearly therefore that the action falls squarely within the jurisdiction conferred on the Federal High Court by Decrees 60 of 1991 and 107 of 1993. That being so, I am of the opinion that the learned trial Judge of the Omoku High Court was in error when he assumed jurisdiction over the matter. Clearly, a state High Court lacks jurisdiction.”
Uwaifo, J.C.A. (as he then was) in that same judgment declared too as follows:
“In the present case, the damage complained of arose from an allegation that during the geological surveys in the oil field some explosives were detonated. It was an oil exploration device and procedure”.
If in the course of that seismic operation in that earlier case the bees in the respondent’s farm were caused to migrate as they claim and they suffered loss for which they claim damages, the Court with jurisdiction is the Federal High. See now section 25(1)(n) of 1999 Constitution. It states:
“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 exclusion of any other court in civil causes and matter:- mines and minerals (including oil fields, oil mining, geological surveys and natural gas.”
I must hasten to add here that in the present case, we are concerned with the state of the law when the suit was instituted and filed. As at that time the operative law was instituted and filed. As at that time the operative law was Decree No. 16 of 1991.1t is in that Decree that the Federal Government made a shift and expanded the ambit of the jurisdiction of the Federal Revenue Court from that of mainly concerning itself with the Revenue Court to exercising other jurisdictions.
The summary of the claim in this case is that the Appellants should be found liable in damage arising out of injury caused by the Appellants during drilling operation in which the 1st Respondent was involved. In his ruling, the Court below said inter alia:
“I am of the view that there is nothing in their provisions to exclude a claim for personal injury suffered by a person who claims to be an employee of the defendants based on negligence from being laid in a State High Court having regard to the circumstances of the case”.
He was emboldened by the case of Shell Petroleum Development Company (Nig.) Ltd. v. Abel Isaiah & ors (1997) 6 NWLR (Pt.508) 236. In that case, which arose from a claim for damages caused by oil spillage during oil drilling operation, the Court of Appeal per Katsina – Alu stated thus:
“Decree No.107 of 1991 – Although the defendant did not rely on this Decree, it was submitted rightly in my view that it does affect the jurisdiction of the State High Court to adjudicate on this matter. The Decree is inapplicable because the subject matter of the claim in this case did not arise from Mines and Minerals oil fields geological surveys and natural gas”
“The subject matter arose from oil spillage from the defendant’s oil pipelines onto the plaintiff’s swamp land and farm lands.”
Although, this statement appears to be obiter whatever is the case, it would seem that the court shifted ground and gave a more introspective analysis and synthesis in the case of Barry v. Eric supra which is the most recent case any way.
The Respondents had referred to the case having arisen before 1993 that is before the enactment of Decree 107 aforementioned. With greatest respect to that view, I do not know how that is helpful seeing that section 7 of Decree No.60 of 1991 and section 230 of the Decree No.107 of 1993 are also procedural laws. In Rossek v. A.C.B. Ltd (1993) 8 NWLR (Pt.312) 475, the Supreme Court had stated thus:
“On the other hand, procedural law existing at the time of the hearing of a case whether at the trial or on appeal applies to the prosecution and defence of the case. It does not matter whether the procedural law comes into force before or after the cause of action arises or has arisen and whether before or after an appeal is filed or has been filed.”
The injury alleged to have given rise to the action in the court below and subsequently in this court sprang from the performance of the Respondent’s duty as an employee of the Appellant in drilling operation in respect of oil. If the drilling exercise is in respect of water prospecting, any alleged act of negligence will be dealt with in a State High Court. In interpretation of statutes, any word used must be so construed to give proper meaning to the expression without in any way bringing confusion. The expression as appearing in section 7 of Decree No. 60 of 1991 or section 230 of Decree No.107 of 1993 shall be construed in such a way as to understand the purport of that provision. It would in such interpretation show that what is being complained about is connected with and pertaining or relating to activities which have direct bearing to the operation of oil prospecting, seismic survey, and such like activities as equally applying to gas. In a matter arising out of the drilling operations or activities to effectuate an end causes of actions arising from them, would have to be determined in a Federal High Court not in the State High Court. In J. Cooke & Sons Ltd v. Binding (1961) 2 Q.B.200, Section 5(2) of the Debt Act 1869 states:
“For the purposes of this section, any court may direct any debt due from any person in pursuance of any order or judgment of that or as other competent court to be paid by instalments and may from time to time rescind or vary such order.”
It was held that there was ample jurisdiction under the above words of the section to enable a county court judge to increase or reduce the amount of the statement payable according to circumstances existing from time to time. See also Re. Wholesome Confectioners Alliance’s Agreement No. 2 (1961) L.R. 2 RP 231. The courts may expound the powers conferred by the state to give life and true reflection of the intention of the statute without attempting to increase or expand these powers in order to assume wide jurisdiction they are not given.
In my view, the court below erred in assuming jurisdiction in a matter which falls squarely within the province of the Federal High Court. Accordingly, I allow the appeal and set aside the order of the lower court assuming jurisdiction and I hereby strike out the claim of the Respondent.
I shall make no Order as to costs.

OGEBE, J.C.A: I had a preview of the lead judgment of my learned brother Pats Acholonu, J.C.A and I agree entirely with his reasoning and conclusion.
On the surface, it may appear that the case has to do with a simple action in tort for negligence between a servant and a master in the course of the servant’s employment. A deeper look shows that the negligence arose from oil mining and exploration which is caught by section 7(1) of the Federal High Court Act as amended by Decree No.60 of l991 and section 230(1) of Decree 107 of 1993. By the provisions of these enactments only the Federal High Court has jurisdiction in such matters.
I allow the appeal and abide by consequential orders made in the lead judgment.

IKONGBEH, J.C.A (Dissenting): I had the privilege of reading in the draft the judgment just delivered by my learned brother, Pats-Acholonu, J.C.A. Much as I had desired to avoid having to express a dissenting opinion, I have been constrained to do so for the reasons appearing hereunder and considering that the issue of jurisdiction, which is the issue here, is fundamental in the adjudicatory process in our court system.
I say nothing new when I say that it has been one of the set objectives of successive governments in this country to take justice to the doorstep of everybody as far as is practicable. That is why state governments have spared no endeavours in establishing divisions of their courts in as many places within the state as resources have allowed. It is an incontestable fact that states have established more divisions of their High Courts within the area of their territories that the Federal Government has, or can, establish divisions of its court in each state. It is, without argument, impracticable, considering the vast resources that would be involved, for the Federal Government to establish more than one division of its court in every state in the country. I find it hard to imagine how it can manage even only two in every state, not to talk of three or four or five. Yet, every state needs far more than five High Courts. As at today, some twenty-seven years since the establishment of the Federal High Court, only a few states have a division of it within their territories. A number of states share one, with the result that litigants and their lawyers have to travel long distances on not-so-friendly roads to other states to reach it. From Maiduguri to Yola is no mean distance. Yet litigants have to cover it if they must reach the Federal High Court! And the Federal High Court in Yola is the nearest that the people in Maiduguri and other towns in Borno State, some even more distant than Maiduguri, can go to.
Considering everything, I think that vesting in the Federal High Court exclusive jurisdiction over ordinary cases, like negligence and trespass, to mention only few, that have nothing to do with the revenue of the Federal Government or any of the other matters within its legislative competence, is clearly the surest way of putting the people to unnecessary hardship. That state of affairs clearly negates the laudable idea of bringing justice closer to the people. That is why the knowledge that the Constitution expressly vested unlimited jurisdiction to try all and every civil and criminal cause or matter arising from all matters within the legislative competence of the State House of Assembly in the more easily accessible State High Court has been a great source of comfort. It has been comforting to know that the legislative competence of the State House of Assembly, and, therefore, the jurisdiction of the State High Court, is quite enormous, encompassing the omnibus or residual matters not included in any of the Legislative Lists.
Not everybody is concerned with the federal causes and matters enumerated in section 7 of the Federal High Court Act, Cap. 134, Laws of the Federation, 1990. In the course of his daily personal and other relationships with others, the ordinary citizen is more likely to have to take up or repel causes or matters connected with or arising from state matters than causes and matters touching on any item within the legislative competence of the Federal Government. This class of citizens, more often than not, is not as well-to-do as the business people and corporate persons who dabble in federal matters. There are many who, since the establishment of the Federal High Court in 1973, have never had any business before it because they have never been involved in federal causes or matters. That, unfortunately, was until Decree 60 of 1991 and 107 of 1993 were promulgated. Since then there appears to have been a rekindling of the controversy over the jurisdiction of the Federal High Court which had been firmly laid to rest in African Newspapers of Nigeria Ltd & Ors v. The Federal Republic of Nigeria, confirming Bronik Motors Ltd. v. Wema Bank (1993) 1 SCNLR 358, and Mandara v. A-G, Fed. (1984) 1 SC., – SCNLR 311. In the African Newspapers case, Supreme Court, per Obaseki, J.S.C affirmatively held at p.153 that-
“The gravamen of the jurisdiction of the Federal High Court concerns matters connected with or pertaining to the revenue of the Government of the Federation as may be spelt out by the National Assembly. The essence is Revenue. Additional to revenue are:
(a) such other jurisdiction which may be given to it by the national Assembly and
(b) such other matter which may he prescribed for it by the National Assembly
It would then be seen that in the 1979 Constitution the jurisdiction of the Federal High Court was not left to be implied (unlike the State High Courts) but was specifically made ‘to be conferred’ or ‘to be prescribed’. The prescribed or conferred jurisdiction of the court is contained in the Federal Revenue Court Act, 1973, section 7 subsections (1) and (2) which became ‘existing Law’ under s.274 of the 1979 Constitution”.
It then observed that –
“This court has already held in Alhaji Zanna Mandara v. the Attorney- General of the Federation (1984) 1 SCNLR 311 (1984) 4 SC 8 that sub-section (3) of the said section 7 has not created additional jurisdiction, or another head of jurisdiction different from those in subsections (1) and (2). The Supreme Court was, in that case, dealing with the jurisdiction of the Federal High Court with emphasis on criminal jurisdiction.
Earlier, in Bronik Motors Ltd. & Anor v. Wema Bank Ltd (1983) 6 SC 158, in a fairly detailed judgment, this Court examined the jurisdiction of that court with emphasis on its civil jurisdiction and came to the conclusion that as against the High Courts of States, it was the Federal High Court that had limited jurisdiction in the sense that-
(i) it had only so much of the jurisdiction as conferred expressly by ‘existing laws’ as defined in S. 274(1) of the 1979 Constitution,
(ii) as contained in specific sections of the same Constitution, expressly prescribed (sections 42 and 237 (2)(a) and
(iii) such other jurisdiction as may be conferred on it by future legislation of the National Assembly under section 230 of the said Constitution
Whatever doubts may have existed before, as to the limits of the jurisdiction of the Federal High Court – civil and criminal have been removed by Bronik and Mandara (Omni supra)”
Since the promulgation of the two decrees, there appears to have been a thinking in many quarters that the jurisdiction of the Federal High Court has been expanded to cover causes and matters arising from the omnibus or residual matters that ought properly to belong to the State High Courts. Even such causes and matters as the enforcement of fundamental rights, with respect to which the Constitution had authorised the provision of a special procedure to facilitate its easy achievement, is hanging in the balance. Because of some provisions particularly in the Decree 107, making certain reliefs federal causes, there have been divergent views on whether or not fundamental rights proceedings must also go only to the Federal High Court once any of those reliefs is sought in those proceedings. To avoid the uncertainty and any consequent delays, many litigants have, on the advice of their lawyers, decided to err on the side of caution. They have chosen to put themselves to the extra and totally unnecessary inconvenience of spending money and making the long and hazardous journeys to the venue of the Federal High Court. It clearly serves the interests of the litigant better if he can take up this cause in the more easily accessible court: the State High Court. The relevant question now is whether these decrees have effected the far-reaching changes attributed to them.
Now, extensive as the jurisdiction of the Federal High Court may appear to have grown in recent times, it is still my view that matters, as far as the civil and criminal jurisdiction of the court is concerned, have not materially changed from what they were immediately before the promulgation of Decrees. As its maiden name suggested, it is still a court established essentially to take care of only civil and criminal causes and matters relating to the revenue of the Federal Government. The only difference now is that more causes and matters have been added to those enumerated in section 7(1) of the Federal High Court nee Federal Revenue Court Decree. It is noteworthy, however, that the Decrees added causes and matters connected with or pertaining to or arising from some only and not all of the matters enumerated in the Exclusive Legislative List. Thus, the expanded jurisdiction still does not cover the full range of federal causes and matters, not to talk of causes and matters outside them. This is why I said earlier that the jurisdiction only appears to have grown.
True, this Court in Barry & Ors v. Eric & Ors (1988) 8 NWLR (Pt.562) 404, @ 416 Per Katsina-Alu, J.C.A., as he then was, did observe that there had been a shift in the former role of the Court and that the combined effect of Decrees 60 of 1991 and 107 of 1993 was to expand jurisdiction. The learned Justice did not, however, say, or even suggest, that the expanded jurisdiction extended to such ordinary causes and matters as trespass and negligence. Indeed, he was careful to point out that the jurisdiction extended only to causes and matters listed in the Decrees.
In one important respect the Federal High court, though one of the courts declared in section 6(3) of the 1979 (and 1999) Constitution to be superior courts of record, shares one feature in common with inferior courts that sets it lower, albeit only a little, in the hierarchy of courts than a State High Court. The latter Court is a superior Court to the fullest amplitude of the meaning of that expression. The same cannot, however, be said of the former Court. As Obaseki, J.S.C., pointed out in the portion of his judgment set out, the Federal High Court is a court of limited jurisdiction. Black’s Law Dictionary defines a court of general or unlimited jurisdiction, which a state high court is, and one of limited jurisdiction, which the Federal High Court is, pointing out this distinction between the two:
“Court of general jurisdiction: A court having unlimited trial jurisdiction, both civil and criminal, though its judgments and decrees are subject to appellate review. A superior Court; a court having full jurisdiction within its own jurisdictional area.
Court of limited jurisdiction: court with jurisdiction over only certain types of matters. When a court of general jurisdiction proceeds under a special statute, it is a ‘court of limited jurisdiction’ for the purpose of that proceeding, and its jurisdiction must affirmatively appear”.
It can be seen from the first definition that in a loose sense such court can be equated with a superior court. A corollary would be that a limited court cannot. Now, it has been observed that-
“Nothing shall be intended to be out of the jurisdiction of a Superior Court but that which specifically appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is expressly alleged”. (Stroud’s Judicial Dictionary, 4th ed., Vol. 3 citing Peacock v. Bell 1 Saund. 74, which cited London v. Cox L.R.2 H.L.259.
Being a court of limited jurisdiction, and in that limited sense, an inferior court, going by the definition just seen, the Federal High Court, in my view comes under the rule enunciated in this observation. Nothing could possibly be intended to be within its jurisdiction but that which is expressly stated to be within it by the enabling statute. As such a court the Federal High Court has no power to handle any cause or matter that is not connected with or does not pertain to or has not arisen from any of the subjects enumerated in the Decrees or the Constitution. It does not in the least matter that the jurisdiction alleged to be conferred by them is expressed to be exclusive to it. It must first be established that the matter in question is within the jurisdiction allegedly conferred. So, when the question arises whether or not the court can entertain a given matter, the extent of the jurisdiction conferred on it must be examined to see whether it covers the matter in question. This must be so especially if it is appreciated that-
“The jurisdiction of any court is granted aliunde – from without and not from within. Courts are creatures of statute and it is the statute or law creating the court that determines and defines its jurisdiction”. Oloba v Akeraja ( 1988) 3 NWLR (Pt.84) 508, @ 527.
Now, we have seen that even fundamental rights enforcement is in danger of being construed to be within the exclusive jurisdiction of the Federal High Court. In constructing the provisions of the Decrees, we owe a duty to the ordinary citizen to see that except in the face of the clearest provision we should not concede exclusive jurisdiction over ordinary causes and matters of the Federal High Court. Providing the ordinary citizen with easy means of protecting his fundamental rights is, after all, the very raison detre of the fundamental rights enforcement procedure. These means should not be taken from him just because of some obscure and badly drafted provisions of decree dished out by a self seeking tyrant. Considering that a State High Court, as I have shown, impacts upon the lives of more ordinary citizens than does the more restricted Federal High Court, it cannot at all be a light matter to allege that its jurisdiction has been extinguished in favour of the latter.
It is for these reasons that I think the bench and the bar should be slower in conceding jurisdiction in favour of the less easily accessible Federal High Court over its more easily accessible State counterpart. It is also for those reasons that I think we should hearken unto the admonition by Oputa, J.S.C., echoing Kekewich, J., In re Montagu (1897) LR 1C.D 693, that-
“Judges have a duty to expound the jurisdiction conferred on a court but it is not part of their duty to expand the jurisdiction beyond the line of demarcation drawn by the statute creating the court.”
It is ultimately for these reasons that I intend, and have vowed, to keep the living blood strongly flowing in, and the living flesh protectively covering, such interpretative principles as inure to the common good! I shall continue to insist on the clearest of proofs that there has been a transfer of jurisdiction from the one to the other. Consequently, whoever expects me to rule against the unlimited jurisdiction of a State High Court in favour of the restricted Federal High Court must convince me of the clearest of intent ions on the part of the legislature to place the extra and unnecessary burden on the ordinary people of this country.
Now, has the Appellant’s Counsel succeeded in his task of convincing me that jurisdiction to entertain the 1st Respondent’s action has been removed from the unlimited power of the River State High Court and added to the limited powers of the Federal High Court?
Having myself read the constitutional and statutory provisions relied on by Mr. D.O. Ezaga, for the Appellant company, to contend that such transfer of jurisdiction has in fact occurred, I have no hesitation in answering the poser in the negative. I prefer the common sense interpretation of those provisions by Mr. Wome’s approach assorts more harmoniously with the principles of interpretation.
It is for these reasons that I find myself unable to agree with my learned brethren who have ruled in favour of the curtailment of the State High Court’s jurisdiction. I shall now give the detailed resons for my preference. Before doing so, however, I think it is necessary to take a look at the facts and circumstances that have given rise to this appeal.
The 1st Respondent was the plaintiff before the Rivers State High Court, sitting at Isiokpo. As at 30/3/92 he was in the service of the Appellant, a company engaged in oil exploration, as casing clerk. His duty as such involved the carrying of heavy pipes, also called casings. He pleaded in paragraph 7 of his statement of claim, served along with the writ of summons commencing the proceedings, that it was the duty of the company to clear the bushes along the lines where the workers did their work in order to keep it safe. This duty, he alleged, the company failed in, with the result that it negligently left a piece of sharp stick standing dangerously in the ground. As the 1st Respondent went about his duty of carrying the heavy pipes he fell on the piece of stick, which pierced through his scrotum, rendering him totally impotent. He consequently took out the writ of summons that commenced these proceedings in the court below, claiming against the company and one of its officers-
“N10,000,000.00 (Ten Million Naira) representing and being special and general damages for injuries sustained by the plaintiff pursuant to the services and execution of the defendants drilling works which renders the plaintiff impotent in that on or about 30th day of March, 1992, the plaintiff as an employee of the defendants was executing some drilling works in one of the defendants oil exploration lines whereon the plaintiff fell on a sharp stick out of the negligence of the defendants which almost severed the penis and testis of the plaintiff into his stomach and the plaintiff is rendered impotent”. (Italics mine)
Soon after the service on it of the writ and the statement of claim, the appellant, on behalf of whom a conditional appearance had been entered, caused a notice of motion to be filed seeking an order of court striking out the suit on the ground of want of jurisdiction. It was argued on his behalf that although the 1st respondent’s claim was based on the tort of negligence, since the injuries complained of had arisen connected with oil exploration, only the Federal High Court had jurisdiction to entertain any action arising therefrom.
The learned trial Judge, M. D.Goodhead, J.,in his ruling delivered on 24/7/97, rejected this argument, holding that he had jurisdiction to entertain the action, which, in his view, had not arisen from any matter connected with or arising from oil prospecting or mining. To him, it was a simple case of negligence on the part of the company in not providing a safe working environment for the plaintiff. He concluded his ruling thus at pp 22-23:
“I have had a look at the relevant enactments from Cap. 134 Laws of the Federation of Nigeria, 1990, through Decree No. 60 of 1991, No. 16 of 1992 and 107 of 1993. I am of the view that there is nothing in their provisions to exclude a claim for personal injury suffered by a person who claims to be an employee of the defendant based on negligence from being heard in a State High Court having regard to the circumstance of the case.
I find that most of the decided cases referred to by counsel deal mainly with the peripheral issue of principles governing the application of ouster clauses.
In this regard, I find the unreported case of Ihenkor (supra) more relevant but distinguishable from the case in hand being based on trespass.
More importantly, however, the Court of Appeal has in a recent decision in the unreported case of Shell Petroleum Development Co. (Nig) Ltd v. Abel Isaiah & Ors. In its Port Harcourt Division on the 22nd April, 1997, in which Decrees 59 of 1991, 60 of 1991, 16 of 1992 and 107 of 1993, were considered, decided that even oil spillage from the defendant/appellant’s oil pipe, polluting the swamps and farmlands of the plaintiff/respondents does not arise from ‘mines and minerals, oil fields, geological survey and natural gas and therefore justifiable in a State High Court.
A fortiori I hold therefore that the court has jurisdiction to entertain the plaintiff’s suit based on negligence as a result of personal injury which he claims he sustained in the course of working for the defendants by reason of their failure to provide a safe environment. Accordingly, this application fails and is hereby struck out”.
Aggrieved, the company has come before this Court on a number of grounds of appeal. The second defendant did not appeal. His name has just remained on the record as a dormant Respondent. He took no part in the proceedings.
On behalf of the Appellant, the following three issues have been submitted for determination by us:
“1. Whether by the circumstances of 1st respondent’s claim for personal injury based on negligence, the said claim is not within the confines of the Decree No. 60 of 1991 and Decree 107 of 1993 (hereafter called ‘the Decrees’) which consequently excludes the jurisdiction of the Isiokpo High Court (being a State High Court)?.
2. Whether this suit could be considered to be on an A fortiori parlance the decision in Shell Petroleum Development Company (Nigeria) Limited v. Abel Isaiah & Ors (1997) 6 NWLR (Pt.508) 236?.
3. Whether the case of George Ihenkor & Ors v. Shell Petroleum Development Company (Nigeria) Limited & Anr. (unreported decision of the Abia State High Court, Aba delivered on 31st July, 1995) in distinguishable from this suit?.
The following two were submitted on behalf of the Respondent:
D.2 Whether personal injury that arose out negligence is a matter connected with or pertaining to or arising from mines and minerals including oil field, geological surveys and natural gas as to oust the jurisdiction of State High Court?.
D.3 Whether in refusing the application sought, the learned trial Judge was guided by the relevant principles of law necessary thereto the refusal?”.
I prefer the issues for determination submitted on behalf of the 1st Respondent. They are more concise. Yet they cover every aspect of the arguments put forward on behalf of the appellant arising from his grounds of appeal. The Appellant’s Counsel argued all the issues together and the Respondent’s Counsel replied in kind, taking the former up point by point.
Mr. Ezaga commenced his arguments in the appellant’s brief by putting the 1st Respondent’s case before the trial Court in correct perspective when he pointed out that-
“On this particular occasion, the aspect 1st Respondent was involved in was the carrying of casings (a seismic oil exploration device), Respondent then put to dispute the safety of the field. Appellant would therefore submit that going by the nature of its work, the field referred to by 1st respondent was an oil field.”
Learned Counsel then went into the definition of the word, ‘explore’ as given in section 15(1) of the Petroleum Act, Cap. 30, Laws of the Federation, 1990. To him the word is synonymous with the term ‘oil prospecting’. From this preliminary exercise, learned Counsel made the following observation and conclusion:
“By these definitions, Appellant could in other words be said to be involved in geological survey activities in an oil field which led to cutting of lines which 1st respondent considered unsafe. In the circumstances, since 1st Respondent sustained injuries in course of such activities in all oil field, the cause of action herein, it is submitted, is connected with, pertaining to and/or arising from the subject-matter of mines and minerals, including oil field, oil mining and geological surveys.” (Italics mine)
Counsel then came to the further conclusion that the respondent’s action therefore came within the ambit of section 7 of the Federal High Court Act, as amended, which confers exclusive jurisdiction on the Federal High Court to try civil causes and matters connected with or pertaining to mines and minerals, including oil fields, oil mining, geological surveys and natural gas. It was his view also that the action was affected by section 230 of the 1979 Constitution, as amended which conferred like jurisdiction on that court to hear causes and matters arising from the activities earlier listed. The former provisions have been reenacted as section 251 of the 1999 Constitution. Learned Counsel arrived at this conclusion by the following process of reasoning.
“5.08 From the foregoing, the imperative consideration is the connection of a claim or cause of action to the subject – matter of geological surveys or exploration. Thus, at p.423 of the judgment in the Mpidi Barry’s case (cited supra) the Court of Appeal, Per Nsofor, J.C.A. posed amongst others the following relevant question:
…Q(2) in the course of the seismic activities/operations, would those activities/operations be disconnected from or, unconnected with or not pertain to mines and minerals including geological surveys if they do operate at all.
…I am disposed (Italics mine) to answer each of the above question in the negative. Thus answered, assume,’argumento’, I will be right, then the question of damages, whether the claim, is out of the consideration of whether or not the High Court of a State has jurisdiction in the matter.”
5.09 Furthermore, by the new section 7(3) of Decree 60 of 1991, the exclusive jurisdiction vested in the Federal High Court by virtue of the Decree shall be construed to include jurisdiction to hear and determine all issues relating to, arising from or ancillary to such subject-matter. Thus, under the Decrees, the Federal High Court can assume jurisdiction even if the suit is merely ancillary to the subject-matter of oil exploration. Viz: geological surveys and oil field.
5.10 Appellant would therefore submit that even if the injuries complained of are considered in isolation (but not conceding that it should be so done), the claim of negligence which resulted in the 1st respondents injury cannot be properly and effectually determined without the High Court delving into where it lacks jurisdiction, such as oil exploration procedures cum activities and what ought to be the state of an oil field to be considered as safe. In such a situation, the court is enjoined to decline jurisdiction since, as in the herein case, there could not have been an injury to 1st respondent if there was no exploration activity in an oil filed. Thus the injury could at the very worse be said to be ancillary or dependent on oil exploration. See Tukur v. Governor of Gongola State (1989) ALL NLR 9 (reprint) 575 @ 619-620 and 629, (No.2) (1989) 4 NWLR (Pt. 117) 517.
5.11 Furthermore, by the new section 7(1)(i) of Decree 60 of 1991, the exclusive jurisdiction of the Federal High Court shall relate to any matter with respect of which the Federal Military Government has power to make laws. This provision is also envisaged by the spirit and letters of Decree 107 of 1993. Appellant would therefore submit that 1st respondent’s cause of action having been hinged on personal injury sustained in course of work for failure of appellant to provide a safe environment as was also held by the High Court, the issue or question of safety and welfare of labour has been raised.”
It was learned Counsel’s ultimate conclusion that, in the circumstances, the lower court lacked the jurisdiction to entertain the Respondent’s action.
For the respondent Mr. Wame countered by first pointing out that it was the Appellant’s negligence that caused the injuries that the 1st Respondent sustained.
Learned Counsel then contended that negligence, which is a tort that is complete once the person who owes another a duty of care is in breach of that duty, is not subsumed in oil exploration or mining operations, nor can it be said to be ancillary or incidental to such operations. It cannot, in counsel’s view, therefore, be said to be connected with or pertaining to arising from such operations within the meaning of the constitutional and statutory provisions considered. The 1st Respondent’s action is not, therefore, among the matters over which the Federal High Court has been conferred with exclusive jurisdiction.
I have already expressed my preference for his line of reasoning and the conclusion reached. I shall now justify my preference. I shall start by reading the relevant provisions. Section 7(1)(p) reads:
“7.(1) The court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters connected with or pertaining to-…
(p) mines and minerals, including oil fields, oil mining, geological surveys and natural gas.”
Section 230(1)(0) reads:
“230 (1) Notwithstanding anything to the contrary, contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from-…
(o) mines and minerals; (including oil field, mining geological surveys and natural gas)”
The key expressions, of course, are “civil causes and matters connected with or pertaining to” as used in the High Court Act and “civil causes and matters arising from” as used in the Constitution. The first task is to determine what is meant when it is said that a thing or an event is connected with or pertains to or has arisen from another.
It is a cardinal principle of statutory interpretation that words in a statute are viewed within the context of the statute as a whole. The first rule is to give them their natural and ordinary meaning if there are no associated words or circumstances in the statute that may colour or even alter the natural and ordinary meaning. If there are none, then that meaning must be ascribed.
I shall now endeavour to ascertain the ordinary and natural meaning that these words are intended to bear and whether or not there are any influencing words and circumstances. The first place to look at is, I believe, the English Dictionary.
The term to ‘connect with’ in relation to something or somebody is defined in the Oxford Advanced Learner’s Dictionary, inter alia, as follows:
“2.- sb (with sh/sth) associate or link somebody with somebody/something. We ‘re connected by marriage. A man connected with known criminals. She is connected with a noble family.
(b) – sb/sth (with sb/sth) think of different things or people as having a relationship to each other. I was surprised to hear them mentioned together; I have never connected them before. People connect Vienna with waltzes and coffee-houses.
4 – sb (with sb) to put somebody into contact by telephone. Hold on, I ‘ll just connect (with Miss Jones)
“Pertain” is defined thus in the same dictionary:
“- (to sth) 1. to be connected with or relevant to something. Evidence pertaining to the case. The same rules no longer pertain. 2. (esp. law) to belong to something as part of it. The manor and the land pertaining to it.”
The italicised words are the examples given in the dictionary to illustrate the usage of the words in some of the various senses possible. The first noteworthy point is that the two sets of words, “connect with” and “pertain to” mean the same thing. One of the senses in which “pertain to” can be used is, “to be connected with” The second point is that by these definitions it is clear that “to be connected with” or “to pertain to” involves or import more than a mere causal association between the two things that are said to be connected with or to pertain to each other. From the example usage, given in definition 2 of “connect”, it is clear that in this sense the word is used to imply that the presence or mention of the one naturally conjures up the idea of the other. The mention of Vienna conjures up the romantic picture of happy couples waltzing away the night and people just lazing over light meals and drinks in the coffee-shops. This is because coffee-houses are so many and have been so well patronised, and waltzing has become so popular, that it is almost a crime to visit the town and not check them out.
What about “arising from”?
“To arise out of or from something” is defined as “to occur or follow as a result of something”. See Oxford Advanced Learner’s Dictionary. This appears to me to be the converse of “to be connected with”. The thing said to arise from is born out of or originates from within or as a consequence of the thing it is said to arise from. When two things are connected with each other, however, they come from their independent origins and get connected by the connecting agent. In both cases, however, the intimate, rather than a casual association is still the dominant factor.
Are there any words or circumstances in the Act or the Constitution to suggest that a meaning other than this natural and ordinary dictionary meaning is to be ascribed to these terms?
I have not found any. I shall, therefore, take it that that is the meaning intended for them. From the arguments of counsel, I think it is the phrase “arising from” that we are here concerned with. While for the Appellant, it was contended that the 1st Respondent’s injuries and, therefore, his action, had arisen from oil prospecting and mining operations for the 1st Respondent the contention was that they had not.
Now, what kind of association existed between the injuries that the 1st Respondent suffered and mining operations? Could the 1st Respondent’s injuries be said to have arisen from those operations in the sense that they, in the words of the dictionary had occurred or followed as a direct result of those operations?
I see no such relationship. It was not suggested before the lower Court, nor has it been suggested before us, that the stick negligently left standing in the 1st Respondent’s path was essential, or even remotely relevant, to the Appellant’s mining operations or that it had anything to do with those operations other than just being present at the scene at the material time.
But then Mr. Ezaga seems to be of the view that it is not necessary to look for any particular relationship or link between the 1st Respondent’s injuries and the mining operation beyond the fact that the injuries had been sustained in the course of the operations. This, in his view, was sufficient to warrant tagging the 1st Respondent’s action a matter arising from mining operations, thus bringing it within the exclusive jurisdiction of tile Federal High Court. The following excerpts from his arguments in the Appellant’s brief make his stand on this point clear:
“… Since 1st Respondent sustained injuries in course of such activities in an oil field, the cause of action herein, it is submitted, is connected with, pertaining to and/or arising from the subject matter of mines and minerals, including oil field, oil mining and geological surveys”.
“… the exclusive jurisdiction vested in the Federal High Court by virtue of the Decree shall be construed to include jurisdiction to hear and determine all issues relating to, arising from or ancillary to such subject-matter. Thus, under the Decrees, the Federal High Court can assume jurisdiction even if the suit is merely ancillary to the subject matter of oil exploration, viz: geological surveys and oil field.”
“…1st Respondent’s cause of action having been hinged on personal injury sustained in course of work for failure of appellant to provide a safe environment as was also held by the High Court, the issue or question of safety and welfare of labour has been raised.
With the profoundest respect to the learned Counsel, nothing, in my view, could be farther from the true position of the law than the view expressed herein. Nor did Counsel’s contention in this regard show any respect for common sense and the plain and ordinary meaning of the words of the statutes.
The facts and circumstances of Strong & Co. Ltd v. Woodfield (1905) 2 KB. 350 were not unlike those now before us. The Appellant company in that case owned and ran a hotel. Owing to negligence on its part the chimney of the hotel went into disrepair. During a gale, the chimney collapsed and injured a guest who slept in the hotel. The guest successfully sued the company and recovered damages and costs. The relevant income tax legislation allowed anybody liable to taxation, in calculating his net chargeable profits, to deduct only such expenditure as was connected with or arising out of his trade, adventure or concern.” In calculating its net taxable profits for taxation for that year the company tried to deduct the damages and costs recovered from it by the injured guest as legitimate expenditure connected with and arising from its hotel venture. For the company it was argued, as it is being done before us now that-
“Payments made in consequence of the negligence of servants whose employment is necessary for the carrying on of the business are properly deducted, for the liability of the employer is a legal consequence of the relation of master and servant”.
It was further argued that the loss incurred by paying the damages to the guest could not properly be said not to be connected with or to have arisen from the company’s hotel business because –
“the loss arose in the course of running the company’s business, and was a payment incidental to that business and expended for the purpose of the trade. Such losses must be taken into account in every business, for instance, in the case of a railway company it is a necessary incident that their may be negligence of servants causing accidents to passengers, and consequent liability to the company to pay compensation.”
Neither the Court of Appeal (England) nor the House of Lords ([1906] A.C.448) was impressed. In the Court of Appeal, Collins, M.R., observed at p. 356 ([1905] 2 K.B.) that-
“It seems to me, therefore, that unless it can be shown that the expenses in respect of damages and costs paid as the result of the negligence of the owners of the inn were expenses necessarily incident to the earning of profit in carrying on their trade, they cannot be deducted. The cardinal distinction seems to me to be that those expenses were not a sum that had to be paid as a condition of earning the profits, but, in point of fact, a sum which the company were compelled to payout of the profits after they were earned…
I think the learned judge recognised the distinction between an expense necessarily incurred as an incident of the business and an expense payable out of the profits after they are earned…” (Italics mine).
Mathew, L.J., had this contribution to make on the point at p.357:
“If the question were put, what was the cause of the expenses incurred in this case? The answer should be, because the brewers chose to carry on business in a house which was defective and dangerous. Is such an expense a matter in respect of which a deduction in a house which was defective and dangerous. Is such an expense a matter in respect of which a deduction is permissible under the Income Tax Acts? Let me endeavour to illustrate the position by reference to a claim made by a passer-by, who is under no contract with the owner of the premises, and is injured by the fall of a chimney. He would have a claim arising out of the negligence of the occupier of the house. Could it be said that the expense to which the innkeeper might be put in consequence of that claim was a loss connected with or arising out of his trade as innkeeper? That could not be said, and in principle it can make no difference that the innkeeper has entered into a contract to take care of a man who comes to his house as a guest and is injured in a similar manner. The phrase that occurs in the rules relating to deductions is not “incurred in the course of carrying on the business”. But is “connected with or arising out of such trade”. The loss in this case was flat connected with or incidental to the business of an innkeeper, and the numerous illustrations that have been offered are disposed of at once by pointing that out. The loss here was due to the neglect of the company to keep the premises in repair, and I cannot see on what principle they can claim this deduction. They have earned their profits of the business, and out of that fund, they were compelled to pay the expenses in question. A deduction for expenses incurred in such a way does not seem to me to come within the language or the spirit of the Act…” (Italics mine).
Cozens-Hardy, L.J., also was of the view that-
“It seems to me that the expense to which the company have been put is not a loss connected with or arising out of their trade within the meaning of the Act. It is not a loss reasonably incident to the earning of profits. It may not, and I am disposed to think it does not, follow necessarily that every expense incurred in earning profits is to be allowed as a deduction; but I think it is true to say that no loss ought to be allowed unless it has been incurred in earning profits…”
(Italics mine).
In the House of Lords, Lord Loreburn, L. C., expressed the opinion that-
“…It does not follow that if a loss is in any sense connected with the trade, it must always be allowed as a deduction: for it may be only remotely connected with the trade, or it may be connected with something else quite as much as or even more than the trade. I think only such losses can be deducted as are connected with in the sense that they are really incidental to the trade. They cannot be deducted if they are mainly incidental to some other vocation or fall under the trader in some character other than that of trader. The nature of the trade must be considered. To give an illustration, losses incurred by a railway company in compensating passengers for accidents in travelling may be deducted. On the other hand, if a man kept a grocer’s shop, for keeping which a house is necessary, and one of the window shutters fell upon and injured a man walking in the street, the loss arising thereby to the grocer ought not to be deducted…”
(Italics mine).
It is clear from this case that the test to apply in determining whether or not the injury to the 1st Respondent arose from the Appellant’s mining operations is to see whether or not the source of the injury is a matter that was essentially part of those operations or were merely incidental thereto. I have held that it is the latter. The injuries arose from the negligence of the appellant that had nothing to do with oil prospecting or mining. As Mathew, L.J., pointed out, the question is not whether the injuries merely arose in the course of those operations but whether they were connected with or pertained to or arose from them in the sense just discussed. The injuries did not come about as a direct result of oil prospecting or mining operation. They arose from the Appellant company’s own alleged negligence in leaving the sharp stick standing dangerously in the Respondent’s part. It was a case of alleged negligence, pure and simple. The duty of care that the appellant owed the 1st Respondent to see that the latter was not injured by a dangerously sharp stick negligently left standing in his path was totally independent of the Appellant’s mining operations. The lower Court could quite easily have investigated 1st Respondent’s complaint against the company without any reference whatsoever to any aspect of a mining operation. Indeed, any such reference would have been totally out of place. For this reason, I cannot accept Mr. Ezaga’s contention that –
“the claim of negligence which resulted in the 1st Respondent injury cannot be properly and effectually determined without the High Court delving into where it lacks jurisdiction, such as oil exploration procedures cum activities”.
It was still negligence irrespective of the fact that the tortfeasor was at the material time engaged in oil prospecting and mining and that the he committed the tort on his mining site. The tort of negligence is, as has been seen, a complete package of its own and is complete once there has been a breach of duty of care. It is not necessarily dependent on the nature of the activity engaged in by the tortfeasor at the time or where the tortfeasor was at the time of the breach of duty of care.
It is for these reasons that I prefer to follow the decision of this Court in Shell Petroleum Development Company (Nigeria) Limited v. Abel Isaiah & Ors (1997) 6 NWLR (Pt.508) 236 rather than the one in Barry & Ors., supra. In the earlier case, this Court rightly held that the injury suffered by the plaintiffs did not arise from mining operations but from oil spillage from the company’s pipelines, which passed on the plaintiff’s land, polluting the land.
Trespass, like negligence, is an independent actionable tort on its own. Trespass is the unjustified interference with one’s possession and enjoyment of property.It is completely immaterial to me by what means you interfered with my possession and enjoyment. When I complain before a court about your interference. I raise no issue whatsoever concerning the nature of the means you used in causing the interference. I raise the issue of pure trespass and the court before which to ventilate my complain is the State High Court, not the Federal High Court, which has no jurisdiction to hear such cases. Of course, once in court I will have to plead and prove, if that was what really happened, that the trespasser, in the course of his oil prospecting and milting operations, set off a huge explosion which incidentally destroyed the bee hives in my bee farm letting the bees migrate in consequence. If I do this, I cannot, if we are not to do violence to language, be said to have raised any question connected with or pertaining to or arising from oil prospecting and mining operations under the Federal High Court Act or the Constitution so as to remove my complaint from the jurisdiction of the State High Court in favour of the Federal Court. I will have brought up the fact that the explosion that chased my bees hives had been let off in the course of mining operations only because I have to state some facts as to how my bee hives got damaged. In the circumstance, my reference to the mining operation was only incidental to the stating of my complaint before the court. Such incidental reference cannot, as the law stands today, give rise to the issue of jurisdiction. What should determine jurisdiction is the primary or principal question that I have brought before the court not the incidental or peripheral one.
This was the principle that guided the Federal Supreme Court in Akwule & Ors v. Queen (1963) 1scnlr 385 (1963) NNLR 105. The 1st Appellant was convicted of criminal breach of trust by a banker and sentenced under section 315 of the Penal Code. This section prescribed a heavier punishment if the property in respect of which the convict had committed breach of trust had been entrusted to him in his capacity as banker. For the 1st Appellant, it was contended, as is being done before us now, that by enacting section 315 the Legislature of Northern Region had made a law with respect to banking and the banking, which, being an item in the Exclusive Legislative List, was outside the legislative competence of the regional legislature. The Court rejected the argument, holding that since banking had been referred to only incidentally in the section the Region could not be said to have legislated with respect to banking. Ademola, C.J.F, treated the matter thus at pp. 109-110:
“For the Crown, a number of cases have been cited on the validity of legislation by a legislature with limited powers. It will be enough if reference is made to Gallagher v. Lyon (1937) A.C. 863. The legislature of Northern Ireland had passed an Act on Milk and Milk Products, which was attacked as being ultra vires section 4 of the Government of Ireland Act, 1920, on the ground that it interfered with the trade in milk between fanners outside Northern Ireland and customers within it, contrary to the limitation not to legislate on “trade with any place out of the part of Ireland within their jurisdiction”.
Lord Atkin said at page 869-
“The short answer to this is that this Milk Act is not a law “in respect of” trade; but is a law for the peace, order and good government of Northern Ireland ‘in respect of precautions taken to secure the health of the inhabitants of Northern Ireland by protecting them from the dangers of an unregulated supply of milk. These questions affecting limitation on the legislative powers of subordinate parliaments or the distribution of powers between parliaments in a federal system are nor familiar, …It is well established that you are to look at the ‘true nature and character of the legislation’ . Russell v. The Queen (LR 7 App. Cas. 839) ‘the pith and character of the legislation.’ If, all the view of the statute as a whole, you find that the substance of the Legislation is within the express powers, then it is not invalidated if incidentally it affects matters outside the authorized field…’
Adopting those views for out guidance, it is clear that the Legislature of Northern Nigeria has power ‘to make laws for the peace, order and good government of the Region’. Section 4 of the Constitution of Northern Nigeria. There is no suggestion that ill including bankers in section 315 of its Code, that legislature was using its power to legislate on an offence such as criminal breach of trust as a cloak for encroaching on the field of banks and banking…
“…We are of the view that this is not legislation in respect of banks and banking but merely an incidental provision in penal legislation enacted for the peace and good government of Northern Nigeria. We therefore reject the submission of counsel that this legislation is invalid in respect of bankers and that it is null and void.”
Professor Nwabueze shares the same view. After referring to his case the learned Author added his own comments thus at p.95 of his book, Federalism in Nigeria under the Presidential Constitution, 1983,. P 95:
“As with fraudulent misappropriation by a banker of money or other property entrusted to him by his customer, the stealing by A of currency which the convict had committed breach of trust had been entrusted to him in his capacity as banker. For the 1st Appellant it was contended, as is being done before us now, that by enacting section 315 the legislature of Northern Region had made a law with respect to banking and the banking, which, being an item in the Exclusive Legislative List, was outside the legislative competence of the regional legislature. The Court rejected the argument, holding that since banking had been referred to only incidentally in the section the Region could not be said to have legislated with respect to banking. Ademola, C.J.F, treated the matter thus at pp.109-110:
“For the Crown, a number of cases have been cited on the validity of legislation by a legislature with limited powers. It will be enough if reference is made to Gallagher v. Lyon (1937) A.C. 863. The legislature of Northern Ireland had passed an Act on Milk and Milk Products, which was attacked as being ultra vires section 4 of the Government of Ireland Act, 1920, on the ground that it interfered with the trade in milk between farmers outside Northern Ireland and customers within it, contrary to the limitation not to legislate on “trade with any place out of the part of Ireland within their jurisdiction.”
Lord Atkin said at page 869-
“The short answer to this is that this Milk Act is not a law “in respect of” trade; but is a law for the peace, order and good government of Northern Ireland “in respect or precautions taken to secure the health of the inhabitants of Northern Ireland by protecting them from the dangers of an unregulated supply of milk. These questions affecting limitation on the legislative powers of subordinate parliaments or the distribution of powers between parliaments in a federal system are nor familiar… It is well established that you are to look at the”true nature and character of the legislation”. Russell v The Queen (LR 7 App. Cas. 839) “the pith and character of the legislation”. If on the view of the statute as a whole, you find that the substance of the Legislation is within the express powers, then it is not invalidated if incidentally it affects matters outside the authorized field…”
Adopting those views for out guidance, it is clear that the legislature of Northern Nigeria has power “to make laws for the peace, order and good government of the Region”. Section 4 of the Constitution of Northern Nigeria. There is no suggestion that in including bankers in section 315 of its Penal Code, that legislature was using its power to legislate on an office such as criminal breach of trust as a cloak for encroaching on the field of banks and banking…
“…We are of the view that this is not legislation in respect of banks and banking but merely an incidental provision in penal legislation enacted for the peace and good government of Northern Nigeria. We therefore reject the submission of counsel that this legislation is invalid in respect of bankers and that it is null and void.”
Professor Nwabueze shares the same view. After referring to his case the learned Author added his own comments thus at p.95 of his book, Federalism in Nigeria under the Presidential Constitution, 1983,. P 95:
“As with fraudulent misappropriation by a banker of money or other property entrusted to him by his customer, the stealing by A of currency notes, coins, petroleum, mineral, money or postal orders, aircraft, arms ammunition, explosives, or a bill of exchange belonging, not to the federal government, but to some other person, can validly be punished as an offence by the law of a state government, notwithstanding that the various matters to which the offence relates are matters on the exclusive legislative list. Clearly, the fact that steals or fraudulently takes mineral or currency notes from in the latter’s house cannot be the sort of steal or fraudulently takes mineral or currency note from B in the latter’s house cannot be the sort of thing contemplated by the power given to the federal government to regulate mines and mineral (item 37) or currency (item 14). A law prohibiting the stealing or fraudulent taking of mineral or currency notes by one person from another outside a mine or mint and its immediate vicinity, though it relates to mineral or currency, is not a law “with respect to” and mineral or currency in the sense of the Constitution. Such a law is not therefore within the competence of the federal legislature”.
Applying the principles thus derived to the case now before us, my short answer to the appellant is that since the 1st Respondent’s complaint before the lower Court sounded mainly and essentially in negligence, which a State High Court and not the Federal High Court has jurisdiction to try, and since the reference to oil protection and mining was made only incidentally, the action is triable only by a State High Court and not the Federal High Court. The action not being a cause or matter connected with or pertaining to or arising from any of the subjects enumerated in section 7(1) (p) of the Federal High Court Act or any section of the 1979 Constitution, is not within the jurisdiction of the Federal High Court, exclusive or otherwise. I must, therefore agree with the learned Judge in the Court below and the 1st Respondent’s Counsel that the Rivers State High Court, and not the Federal High Court, has jurisdiction to entertain it.
Having come to this conclusion, I must, as a follow-up, hold that this appeal lacks merit. I accordingly dismiss it. I affirm the decision of the lower court that it has jurisdiction. That Court shall proceed with the hearing of the case.
The Appellant shall pay costs of N5,000.00 to the 1st Respondent.