MELA & ORS v. ASHAKA CEMENT PLC (2020)

MELA & ORS v. ASHAKA CEMENT PLC

(2020)LCN/14717(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, November 10, 2020

CA/G/94B/2019

RATIO

JURISDICTION: EFFECT OF A PROCEEDING CONDUCTED WITHOUT JURISDICTION OF COURT

Where a trial Court entertains a matter when it has no jurisdiction, such a trial, as well as its outcome, becomes a nullity. This is undoubtedly because a final pronouncement by a Court without jurisdiction is an exercise in futility; because you cannot put something on nothing and expect it to stand. It will certainly collapse – McFoy V UAC (1962) AC 152; Ishaq V Bello (2008) LPELR-4337(CA) 8, C-E, per Okoro, JCA (now JSC); Dakan V Asalu (2015) LPELR-24687(SC) 32, E-G, per Okoro, JSC. PER HANNATU SANKEY, J.C.A.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

KILANG MELA (KOJEN TANGALE) Village Head Of Komta, For Himself And As Representative Of Komta Community 2. J. GOMA YAKUBU 3. J. HEBREWS BIRKILA 4. J. DEMION SOKKA 5. HUSSANI INUWA 6. ADAMU FURANI 7. TSABTA GARBA 8. SOUL BELLO 9. MALLAM HAMIDU 10. MAIKUDI YA’U 11. POLYCARP HUSSAINI 12. JAURO MALLAM UMAR 13. YA’U ZUBAIRU 14. JULI SALEH 15. ADAMU ILU 16. DIJA MOHAMMED 17. AMINA KAKA MUSA 18. MUSA GUDO 19. HAUWAWU AHMADU 20. JAHA GOMA 21. MALAMA MAIKUDI 22. PESA SAIDU 23. SUBAJO ZUBAIRU 24. WULI YERIMA 25. BILKI BUBA 26. BIMBI ABDULLAHI 27. YAWI SALEH 28. HABU TUMBIDO 29. DUBBA TUKUR 30. HAJARATU IDI 31. HAUWA AHMADU 32. IBRAHIM HARUNA 33. GAMBO ZUBAIRU 34. MUSA MAIBAGAL 35. AMINA MOHAMMED 36. ANWA AHMADU 37. YERIMA MUSA 38. ALI TUKUR 39. AHMADU WETI 40. SHU’AIBU GOMA 41. ADO HARUNA 42. MOHAMMED ADAMU 43. UMAR HARUNA 44. AHMADU ZUBAIRU 45. Z. ADO ZUBAIRU 46. MAIMUNA ADAMU 47. AISHA UMAR 48. DADO AHMADU 49. FATU TUKUR 50. ADAMA ZUBAIRU 51. MUSA SAIDU 52. HAUWA’U AHMADU 53. AISHATU MAWU 54. HAUWA BAKA 55. MAIKUDI YA’U 56. HAUWA IBRAHIM 57. MUSA YA’U 58. IBRAHIM HARUNA 59. SULEI YAKUBU 60. MUSA MAIBAGAL 61. MALAM BABUGA 62. ADAMU ILU 63. MOHAMMED ADAMU 64. ADO HARUNA 65. BUBA HUSSAINI 66. TUKUR HUSSAINI 67. AUTA HUSSAINI 68. SALEH MUSA 69. UMAR ADAMU 70. ZUBAIRU ADAMU 71. IBRAHIM YUSUF 72. KWARYA TURMI 73. SOUL BELLO (The 2nd, 3rd And 4th Plaintiffs Sues For Themselves And As Representatives Of Alatai Community Of Billiri Local Government Area Of Gombe State) 74. J. ELMAS G. AIKI 75. J. BITRUS BORNO 76. HON. DANLADI AMOYO (KASAFIN TANGALE) 77. CHIROMA KWAMA 78. JOHN LABAN 79. MOHAMMED LAKOLTHOM 80. MAISAN IDI 81. BOYI KORI 82. SHETU TAFIDA 83. JOSEPH TAMBA 84. ZAKARIYA GAMA AIKI 85. DANLADI MEZA 86. KADIN TAFIDA 87. MONDAY SOKKA 88. DANJUMA BARAS 89. HASSAN YAHAYA 90. MAMUDA SARKA 91. JUNGUDO GIDADO 92. AFUDE PILAN 93. BABA CINIKI 94. BABA YAYIMFATARI 95. ADAMU KADUM 96. PETER SARKIN YAKI 97. J. DEMIAN SOKKA 98. EMMANUEL KOKKA 99. LAGOS KWAMA 100. BITRUS DANJAURO 101. HASKA MADI 102. J. YUSUF AMILA 103. MELA CIYAWA 104. HARUNA DANGADO 105. MAMUDA DAUDA 106. SAMUEL BOYI 107. AMOS LAKELTUM 108. BABA DANBORNO 109. PETER DUKKU 110. BABA DUKKU 111. BOYI MABUDI 112. KOFUR MESHAK 113. KARO AHMADU 114. ELMAS G. AIKI 115. ADAMU KAWULE 116. J. MESHAK MELA (The 72nd, 73rd And 74th Plaintiffs Sues For Themselves And As Representatives Of Kwibah Community Of Billiri Local Government Area Of Gombe State) 117. HON. DANIEL NAKEWA (CHAIRMAN TCDA KOMTA BRANCH) 118. MRS. RONA ZAKARIYA (WOMEN LEADER) 119. YOHANNA SOJA 120. DANJA ABORE 121. BUBA AMINU 122. DAVID AMINU 123. ZAKKARI AUDU 124. DANIEL MATHEW 125. DANLADI AMOYO 126. YAMI DANJA 127. KYASU BIRKILA (The 113th And 114th Plaintiffs Sues For Themselves And As Representatives And As Representatives Of Kwillapandi Community Of Billiri Local Government Area Of Gombe State) APPELANT(S)

And

ASHAKA CEMENT PLC (TRADING UNDER THE BUSINESS NAME OF LAFARGE AFRICA PLC) RESPONDENT(S)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Cross-Appeal is against the Judgment of the Federal High Court Gombe Judicial Division delivered in Suit number FHC/GM/CS/22/18 delivered on September 27, 2019, Coram: Afolabi, J.

Therein, the learned trial Judge granted some of the reliefs sought by the Respondents in their Originating Summons and awarded damages to the tune of N100, 000, 000.00 (One Hundred Million Naira) as well as cost of N1, 000, 000.00 (One Million Naira) to the Respondents against the Appellant.
Concisely, the facts leading to the appeal are as follows:
The Cross-Appellants commenced a representative action vide an Originating Summons against the Respondent in the lower Court claiming several reliefs. They prayed for the resolution of the following questions:
i. “Whether upon the construction of the right to life created in favour of the plaintiffs in Section 33(1) of the Constitution of the Federal Republic of Nigeria as amended in 2011 vis-a-vis the mining rights granted to the defendant under the Nigerian Minerals and Mining Act 2007 and Nigerian

Minerals Mining Regulations 2011, the Defendant has powers to deprive intentionally right to life of the plaintiffs or any other person in Komta, Alatai and Kwilapandi, and Kwibak communities in Billiri L.G.A. of Gombe State. If otherwise whether the plaintiffs are entitled to judgment against the Defendant.
ii. Whether upon the construction of the rights created in favour of the plaintiffs being victims of the mining activities of the defendant in Komta, Alatai, Kwilapandi and Kwibah communities in Billiri L.G.A. of Gombe State and by the construction of Section 125 of the Nigerian Minerals and Mining Act 2007 and Regulations II of Nigeria Minerals and Mining Regulations 2001 and alongside Exhibits placed before this Court the plaintiffs are entitled to judgment against the defendant as claimed hereunder.”
In the event of affirmative answers, the Respondents prayed thus:
“The plaintiffs hereby seek against the Defendant the following reliefs.
I. An order for award of the sum of Three Billion Naira (N3, 000, 000, 000.00) damages in favour of families of nine (9) deceased persons, families of twelve (12) women who suffered untimely

miscarriages of pregnancies and family of one (1) daughter who suffered permanent paralysis in consequence of Defendant’s negligent acts vide pollutions of their sources of drinking water contaminated with mineral toxics, waste effluent released into the communities; pursuant to mining activities.
II. An order for award of the sum of Five Hundred Million Naira (500, 000, 000.00) only in damages in favour of five (5) persons who suffered various kinds of surgeries and one Hundred (100) people who suffered various kinds of diseases and complications and who are still on medication pursuant to the Defendant’s negligent conduct in contaminating their drinking water with mineral toxics and forms of pollutions in connection with mining activities.
III. An order for award of the sum of Four Hundred Million Naira (4, 000, 000.00) only damages in favour of over fifty (50) people who loss their livestock’s to wit: cows, Sheep, Goats, Donkeys and fowls through the consumption of Defendant’s toxic water.
IV. An award of the sum of One Billion Naira (N1, 000, 000, 000.00) only damages in favour of sixty seven (67) farmers

whose farm produce were destroyed by flood released by Defendant, who suffered low yield/harvest of crops annually in consequence of land degradation pursuant to toxic minerals released form the mining that destroyed the fertility of the natural soil of over two hundred hectares of farmlands in the four affected communities that had been rendered unproductive.
V. An order for revocation of defendant’s mining lease and rights for non-compliance with the provisions of Section 125 of the Nigerian Minerals and Mining Act 2007 and Regulation 11 of the Nigerian Minerals and Mining Regulations 2011, Section 16(4) of the National Minerals and Metal Policy 2008 which led to colossal loss of both human lives and material resources from the four affected communities.
VI. An order for perpetual injunction restraining the Defendant, its agents, servants and legal representatives from further carrying out mining activities that would be prejudicial to the plaintiffs in particular and the entire communities of Alatai, Kwilapandi, Kwibah and Komta in Billiri L.G.A. of Gombe State.
VII. An order directing the Defendant to enter a bond of community

development of the four affected communities of Alatai, Kwilapandi, Kwibah and Komta of Billiri L.G.A. of Gombe State to wit: construction of health centres for treatment of victims of mining activities, construction of roads for easy access and evacuation of victims, sinking of motorized boreholes to replace the contaminated streams, ponds and hand dug wells, electrification of the communities, buildings/renovation of schools in the affected communities; in order to raise hopes to the demoralized victims.
VIII. An order for the award of the sum of Three Hundred Million Naira (300, 000, 000.00) only general damages in favour of the plaintiffs against the Defendant.”

The gist and essence of the claim in the suit is that the Cross-Respondent is alleged to have been negligent in the course of its mining activities which resulted in deaths and illnesses suffered by the Cross-Appellants and other persons represented in the suit. In the 42 paragraph affidavit in support of the Originating Summons, some other causes of action disclosed are the breach of statutory duty, nuisance and the unnatural use of land (the Rule in Rylands V Fletcher).

Upon being served the Originating Summons, the Cross-Respondent filed a Notice of preliminary objection wherein he challenged the jurisdiction of the trial Court to entertain the suit on the following three grounds:
1. “The action is incompetent on the ground that the Hon. Court lacks jurisdiction to hear and determine the action.
2. The action is not properly commenced and the filing fees not paid as required by law.
3. The counsel that filed the action on behalf of the plaintiffs under the Legal Aid Act lacks the authority and legal capacity to institute action on behalf of the plaintiffs, in that the claim is not covered under Sections 7 and 8 of the Legal Aid Act 2004.
GROUNDS UPON WHICH RELIEF IS SOUGHT
1) The action under Section 251(1) (a-s) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Order 55 Rule 1(1) (2) of the Rules of Court cannot be heard and determined.
2) The action ought to have been commenced by way of a writ of summons, in that the matter is such that there are serious contestable facts that only pleadings can settle the facts. Serious hostile issues are involved.

3) The necessary filing fees was not assessed and paid as required by the Rules of Court.
4) Under the Legal Aid Act, the counsel who filed the action being an employee is legally not entitled to institute and prosecute the action on behalf of plaintiffs who are not entitled to enjoy the privilege of an indigent party to an action.”

By a Ruling delivered on January 29, 2019, the lower Court overruled the Respondent’s objection. Its reasoning and findings in respect of each ground of objection are inter alia as follows:
“I will now consider the issue of the competence of the Preliminary objection itself. Counsel to the plaintiffs/Respondents had argued that the preliminary objection is incompetent as same was filed without the defendants first filing a memorandum of appearance and same was not accompanied by an affidavit. Section 115 of the Evidence Act… Also in the case of the Chief Judge of Abia State Hon. Justice K.O. Amah & ors v. Ndionyen (2007) LPELR-8225(CA), His lordship Rhodes-Vivour J.C.A. (as he then was) on pages 23-24 paragraph A had this to say –
“Preliminary objection strictly speaking deals

with law, consequently there is no need for supporting affidavit, but the grounds of the objections must be clearly stated. He went further to hold that “A preliminary objection may be supported by affidavit depending on what is objected to. If the preliminary objection is on law, an affidavit is unnecessary, but if on facts an affidavit is mandatory.”…
Grounds 2 upon which the defendant’s preliminary objection is grounded states … It is easy to see that this ground even though has its roots and origin in law, its resolution is firmly rooted in facts… These facts could only have been deduced by the Court if the defendants had bothered to file an affidavit of fact in support of this leg of the ground of objection, or at the very least put up a defence to the originating summons… the defendant ought to have filed an affidavit. It behoved on them to enlighten the path of the court as it led it to the serious, contestable hostile facts alluded to. In the light of this failure, I find that ground two of the preliminary objection is incompetent and it is hereby struck-out.
I will deal with grounds 3 and 4

together… Section 9(1) of the Legal Aid Act, 2011 states. “Legal Aid shall only be granted to a person whose income does not exceed the national minimum wage”… The plaintiffs have no burden to prove the regularity of the process used to decide their eligibility for Legal Aid. The onus to prove the irregularity or ineligibility of the plaintiffs for legal aid is that of the defendants as the law has become established on this point that he who alleges must prove… grounds 3 and 4 upon which their preliminary objection is predicated must fail and I so hold and the said grounds 3 and 4 are hereby dismissed.
Finally, on grounds 1, which deals with the jurisdiction of this court to hear and determine this matter. I will draw enlightenment from the case of Andee Iheme v. Chief of defence staff & ors (2018) LPELR-45354(CA), the Court of Appeal in that case held inter alia: – “Thus, fundamental rights arising from matters outside its jurisdiction cannot be enforced by the Federal High Court” it is not debatable that both the State and Federal High Courts have concurrent jurisdiction in the determination of Fundamental

Rights cases however this is subject to the original jurisdiction of the Court. In the instant case, the fundamental right to life which the plaintiffs now wants a determination on, steams (sic) from the mining activities of the defendants. Section 251(1) (N) of the 1999 Constitution clearly puts mining within the exclusive enclave of the Federal High Court…
In the light of the preceding, it is the holding of this Court that the Honourable Court has jurisdiction over this matter and grounds 1 of this preliminary objection is also dismissed. In totality, I find that the preliminary objection is completely lacking in merit and is misconceived both in law and in the facts and same is hereby dismissed…” (Emphasis supplied)

Dissatisfied by this Ruling, the Cross-Respondent filed an Appeal vide a Notice of Appeal on February 7, 2019. Thereafter on May 31, 2019, the Cross-Respondent proceeded to file a counter-affidavit in answer to the averments in the affidavit in support of the Originating Summons. In further response, the Cross-Appellants filed a Further and Better affidavit on June 6, 2019. Issues having been joined, the matter

proceeded to hearing on June 13, 2019.
Judgment was subsequently delivered on September 27, 2019. The issues which the learned trial Judge considered in basing its decision are as follows (page 635 of the Record):
1. “Whether or not upon construction and interpretation, there exist any right(s) under Sections 123 and 125 of the Nigerian Mineral and Mining Act 2007 Regulation 11(4) of the Mining Regulations (2011) and Section 33(1) of the Constitution (as amended) 1999 in favour of the plaintiffs, which the defendant has violated?
2. Whether, there is before this Court sufficient evidence or proof to grant the reliefs sought by the plaintiffs in the event the first issue is in the affirmative?”

In its Judgment, the lower Court found the Cross-Respondent liable to the Cross-Appellants in part. It therefore granted only some of the reliefs sought by the Cross-Appellants. The trial Court thus awarded damages against the Cross-Respondent in favour of the Cross-Appellants in the sum of N100, 000, 000.00 (One Hundred Million Naira) and cost of N1, 000, 000.00 (One Million Naira).

Aggrieved by the Judgment of the trial

Court, the Cross Respondent appealed to this Court vide her Notice of Appeal dated September 27, 2019 and filed on October 28, 2019.

Equally dissatisfied with the Judgment, the Cross Appellants filed a Cross-Appeal on February 6, 2020, which Cross-Appeal was deemed duly filed and served on 16-09-20. Therein, the Cross-Appellants complained on four (4) grounds. They also sought the following relief:
“a. AN ORDER allowing the cross appeal and variation of the judgment of the court below by granting all the special and general damages sought in the court below, in view of the unchallenged evidence.”

At the hearing of the appeal on September 16, 2020, learned counsel for the Cross-Appellants, T.U. Lektu, Esq. Director Legal Aid Council, adopted and relied on the submissions in the Cross-Appellants’ Brief of argument filed on 06-02-20 and settled by T.U Lektu, Esq. as well as the submissions in the Cross-Appellants’ Reply Brief of argument filed on 12-03-20 (both deemed duly filed on 16-09-20) and settled by P.K. Gayus, Esq. in urging the Court to allow the Cross-Appeal, set aside the Order of the trial Court dismissing the

claim for special damages; and instead to award the special damages claimed in the Originating Summons.
Counsel further submits that the sole issue raised in the Cross-Respondent’s Brief of argument was not distilled from the four (4) Grounds in the Cross-Appeal, thus it was not competent. Counsel therefore urged the Court to strike out the issue and all the arguments in the Cross-Respondent’s Brief of argument.

On his part, learned Counsel for the Cross-Respondent, A.M. Kayode, Esq. adopted his submissions in the Cross-Respondent’s Brief of argument dated and filed on 25-02-20 and settled by the same Counsel, in urging the Court to dismiss the Cross-Appeal.
In response to the application of the Cross-Appellant, Counsel submits that the sole issue raised by the Cross-Respondent in her Brief of argument arises from the Grounds of Appeal. He refers especially to Grounds 3 and 4 thereof. The Brief is therefore in line with the Grounds of Appeal in the Cross-Appeal. Counsel therefore urged the Court to find that the Cross-Respondent’s Brief of argument and the issue raised therein are competent before the Court. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In their Brief of argument, the Cross-Appellants distilled two issues for determination from its four Grounds of Appeal as follows:
a. Whether or not the learned trial Judge was right, having made favourable findings in the judgment in favour of the Cross Appellants then proceeded to dismiss all the reliefs sought before it for want of death certificate or postmortem report. (Grounds 1 and 2)
b. Whether or not the quantum of general damages awarded to the Cross-Appellants is not unreasonably too low in contrast to the colossal losses suffered most especially human lives which value cannot be quantified and recovered in monetary terms. (Grounds 3 and 4)”

On her part, the Cross-Respondent framed one sole issue for determination as follows:
“Whether the Cross-Appellants discharged the burden of proving that Cross-Respondent’s conduct caused their deaths and medical ailments as to entitle them to the award of special damages.”

This Cross-Appeal arises from Appeal No. CA/G/94A/2019 filed by the Cross-Respondent herein. It is also against the Judgment of the trial Court, being the Federal High Court Gombe Division,

in Suit number FHC/GM/22/2018, delivered on September 27, 2019 by Afolabi, J.

The Appeal and the Cross-Appeal were heard on the same date, that is on September 16, 2020 and Judgment was reserved to a date to be communicated to the parties. Judgment has since been delivered this morning in the Appeal No. CA/G/94A/2019.
Therein, at page 46 of the Judgment, this Court found and Ordered inter alia as follows:
“It is therefore for the above reasons that I hold the considered view that the trial Court lacked the jurisdiction to hear and determine the suit as constituted, and that the trial Court was wrong in holding otherwise. Therefore, all the proceedings of the trial Court, including the Judgment and Orders made therein, are hereby declared a nullity.
In the result, I find merit in the appeal. It succeeds and is allowed.
Accordingly, the claim of the Respondents before the Federal High Court Gombe Division in Suit No. FHC/GM/CS/22/2018, delivered on September 27, 2019 by Afolabi, J., is hereby struck out both for lack of jurisdiction and for the incompetence of the suit.”

As expressly stated at

pages 3 and 13 of the Cross-Appellants’ Brief of argument, the first issue in the Cross-Appellants’ Brief of argument deals with “the evaluation of evidence by the trial Court” while issue two deals with “the non-inclusion of special damages and other reliefs”. Thus, the Cross-Appeal seeks a review of the merits of the Judgment of the trial Court.
However, by the Judgment and Order of this Court delivered earlier today (reproduced above) in Appeal No. CA/G/94A/2019, which Appeal gave rise to this Cross-Appeal, the entire proceedings before the trial Court have been declared a nullity. As a result, this Court struck out the suit on the ground that the trial Court lacked jurisdiction to entertain it and on the ground that the suit itself was incompetent, having been wrongly commenced, heard and determined vide an Originating Summons.

In view of this therefore, there is nothing left for this Court to review or evaluate in this Cross-Appeal.
Therefore, the fate of the Cross-Appeal (which seeks a variation of the reliefs granted in the suit which gave rise to both the Appeal and the Cross-Appeal), must be the

same. It is sealed.
Where a trial Court entertains a matter when it has no jurisdiction, such a trial, as well as its outcome, becomes a nullity. This is undoubtedly because a final pronouncement by a Court without jurisdiction is an exercise in futility; because you cannot put something on nothing and expect it to stand. It will certainly collapse – McFoy V UAC (1962) AC 152; Ishaq V Bello (2008) LPELR-4337(CA) 8, C-E, per Okoro, JCA (now JSC); Dakan V Asalu (2015) LPELR-24687(SC) 32, E-G, per Okoro, JSC.

Consequently, since the entire proceedings before the trial Court are a nullity, there are no Orders to vary. The reliefs in the Cross-Appeal are therefore not grantable.

In the circumstances, the Cross-Appeal fails.
Accordingly, I hereby Order that this Cross-Appeal against Judgment of the Federal High Court Gombe Division in Suit No. FHC/GM/CS/22/2018, delivered on September 27, 2019 by Afolabi, J., is struck out.

UZO IFEYINWA NDUKWE-ANYANWU J.C.A.: I agree with my learned brother SANKEY JCA. That this Cross-Appeal must fail with reasoning so well-articulated in the lead judgment.

There is no merit in this cross-appeal.
It is struck out.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the Judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA.
This is a cross – appeal arising from the Judgment of the Federal High Court, Gombe Judicial Division in Suit No. FHC/GM/CS/22/18 delivered on 27th September, 2019 by Hon. Justice Afolabi. The cross – appeal was filed to Appeal No. CA/G/94B/2019 in which my learned brother in the lead Judgment held that the trial Court lacked the jurisdiction to entertain the matter. I concurred with him.
Now, I am also in agreement with him in the lead Judgment in this cross-appeal that since the entire proceedings before the trial Court is a nullity, there are no orders to vary, as canvassed by the cross-appellants.
Therefore, I adopt the conclusion reached by his Lordship that the cross-appeal fails, and is accordingly struck out.

Appearances:

U. Lektu Esq., Deputy Director Legal Aid Council, with him Y. P. Mallum Esq. For Appellant(s)

M. Kayode Esq., with him Rabiu Ayuba Esq For Respondent(s)