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NAOC LTD v. OKIAKPE & ORS (2022)

NAOC LTD v. OKIAKPE & ORS

(2022)LCN/17172(CA) 

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Thursday, June 30, 2022

CA/PH/349/2019

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

NIGERIAN AGIP OIL COMPANY LIMITED APPELANT(S)

And

1. CHIEF (ENGR.) DOKUBO MANKU OKIAKPE 2. MR. EGBASEIMOKUMO K. SARA 3. ELDER NICO KPURUWEI (For Themselves And Representing Members Of Kpuruwei Family/Asitubu (AMA) Community/Settlement, Gbanraun Kingdom) 4. MR. EBIKESEYE BIPELEDEI 5. MR. GADAFI OHIAKPE 6. TIMIEPRE LEYAI RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON THE ROLE OF A RESPONDENT IN AN APPEAL

I must quickly say that our law does not recognize a situation where, in the absence of a cross-appeal or respondent’s notice, a Respondent will depart from its traditional role of defending the decision being appealed against by the Appellant. Certainly, as the Supreme Court had held in the case of CAMEROON AIRLINES Vs. OTUTUIZU (2011) LPELR-827(SC), the role of the Respondent in an appeal is to defend the judgment of the trial Court, but where the Respondent is not comfortable with a finding (not the entire judgment) in the judgment which he considers fundamental, he can only do so by filing a cross-appeal. As noted earlier, the 4th to 6th Respondents’ counsel had, while canvassing argument in connection with the issue as to whether the instant suit constitutes an abuse of Court process, urged this Court to resolve the said issue in favour of the Appellant and set aside the learned trial Judge’s decision that the present suit does not amount to an abuse of Court process. In the event that the 4th to 6th Respondents do not agree with the reasoning of the learned Judge, they ought to file a cross-appeal and not argue against the decision of the trial Judge in their Respondents’ brief of argument. I need not say more on this point. Such a conduct borders on misconduct which made the position being argued by the said learned counsel as one involved in a subtle collusive suit in the circumstance. PER KOLAWOLE, J.CA.

THE DEFINITION OF ABUSE OF COURT PROCESS

The position of the law which has been handed down by the apex Court is that abuse of process is the improper use of the judicial process by a party in litigation. It may occur in various ways, predominantly demonstrated by the institution of multiplicity of actions on the same subject matter between the same parties. Another incidence is the institution of actions by same parties simultaneously in different Courts even though on different grounds, where the two similar processes are used in respect of the exercise of the same right in order to achieve the same goal. See the cases of IKINE & ORS Vs. EDJERODE & ORS (2001) LPELR-1479 (SC); ASHEY AGWASIM & ANOR Vs. DAVID OJICHIE & ANOR (2004) 18 NSCQR 359 at 36. Put simply, abuse of Court process entails the usage of the process of the Court mala fide and improperly, and in most cases, to the annoyance and irritation of another party. Therefore, where it is found that two or more actions have been commenced before a competent Court on the same subject matter and the parties in the two suits are the same, the only inference that will be drawn is that the intention, purpose and bringing the suit before the Court, which is later in time, is to harass, irritate and annoy the other party against whom the suit was commenced; and also interfere with the administration of justice. PER KOLAWOLE, J.CA.

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Yenagoa Judicial Division, delivered by Honourable Justice J. E. Iyang on 7th May, 2019 in Suit No. FHC/YNG/CS/7/2018, wherein the learned trial Judge dismissed the Appellant’s preliminary objection challenging the jurisdiction of the Court to entertain the 1st to 3rd Respondents’ suit. Aggrieved by the said decision, it appealed to this Honourable Court vide a notice of appeal filed on 21st May, 2019 in which it sets out three grounds of appeal.

In compliance with the rules of this Court, the parties filed and exchanged their respective briefs of argument. Appellant’s brief of argument is dated and filed 28th April, 2020, but deemed properly filed on 20th September, 2021. In the said brief of argument, three issues were formulated for the determination of this appeal, thus:
1. “Whether the lower Court has subject matter jurisdiction over the instant suit which is simply for the recovery of a sum of money allegedly agreed by the parties?
​2. Whether the lower Court was right when it held that the instant suit is not statute-barred?
3. Whether the lower Court was right when it held that the instant suit was not an abuse of Court process notwithstanding that the parties and the subject matter in the suit are the same with that of Suit No. FHC/YNG/CS/2016 – Chief Ebikeseye Bipeledei & Ors. (representing Gbanraun Kingdom in the Southern Ijaw LGA of Bayelsa State) v. NAOC?”

In the 1st to 3rd Respondents’ brief of argument dated 28th September, 2020 and filed on 30th September, 2020 but deemed properly filed on 20th September, 2021, two issues were formulated as follows:
1. “Whether upon careful consideration of the circumstances, the lower Court was right to have held that the Federal High Court has subject matter jurisdiction over claims of compensation duly paid for oil spill damage in consonance with the requirements of the Oil Pipeline Act.
2. Whether the lower Court was right when it held that the instant suit did not arise from a contractual transaction or claims of simple contract as same pertains to compensation for oil spill damage?”

​In the same vein, the 4th to 6th Respondents filed a brief of argument dated 3rd August, 2020 and filed 4th August, 2020 but deemed properly filed on 20th September, 2021. In the said brief, three similar issues to those formulated by the Appellant were distilled as follows:
1. “Whether the lower Court has subject matter jurisdiction over the instant case which is founded on claim for compensation for oil spillage in connection with the oil mining activities of the Appellant?
2. Whether the lower Court was right when it held that the instant suit is not statute-barred?
3. Whether the lower Court was right when it held that the instant suit was not an abuse of Court process notwithstanding that the parties and the subject matter in the suit are the same with that of Suit No. FHC/YNG/CS/2016 – Chief Ebikeseye Bipeledei & Ors. (representing Gbanraun Kingdom in the Southern Ijaw LGA of Bayelsa State) v. NAOC?”

​Two separate reply briefs of argument dated 23rd September, 2021 were filed on 24th September, 2021, in response to the respective briefs of arguments filed on behalf of the 1st to 3rd Respondents and 4th to 6th Respondents. I shall consider the relevant submissions made in the reply briefs as the need arises. Meanwhile, having had the benefit of considering the issues raised by the parties and the arguments canvassed thereon, I am of the opinion that the issues formulated by the Appellant are apt for the determination of the present appeal. I shall therefore consider the appeal on the backdrop of the issues formulated by the Appellant.

APPELLANT’S SUBMISSIONS
On the first issue formulated by the Appellant, it is the submission of counsel that the learned trial Judge did not properly review the reliefs and averments contained in the 1st to 3rd writ of summons and statement before arriving at the conclusion that the subject matter of the instant suit cannot be considered as a contract. Relying on paragraphs 9, 17, 20, 21, 24, 25, 27 and 28 of the statement of claim, counsel argued that the subject matter of this suit is purely contractual, particularly as the elements of a valid contract has been satisfied by the parties. He noted that paragraph 17 of the statement of claim shows that an offer of N420,000,000.00 (Four Hundred and Twenty Million Naira) was made to Late Chief M.E.A. Bipeledei on behalf of the 1st to 3rd Respondents; and paragraph 24 shows that the 1st to 3rd Respondents accepted the offer. According to counsel, the consideration can be gleaned from paragraphs 24 and 25 of the statement of claim, which is the forbearance by the 1st to 3rd Respondents to sue the Appellant; and the pleadings also disclosed the intention to enter into legal relations. The case of ABIODUN & ANOR Vs. AJISAFE & ANOR (2018) LPELR – CA/IB/55/2012.

​Counsel noted that from the reliefs sought by the 1st to 3rd Respondents, they are seeking to recover money agreed upon by the parties (by way of negotiation) and allegedly deposited in an interest-yielding account. Counsel further argued that the instant case is not an oil spill claim for which the jurisdiction of the Federal High Court can be invoked, but a claim for enforcement of an alleged contract. It is the further submission of Counsel that since the original cause of action (alleged oil spill from the Appellants’ facilities in Gbanraun Kingdom) has been superseded by the alleged agreement between the parties. The case of ABEY & ORS Vs. ALEX & ORS. [1999] 14 NWLR (Pt. 637) 148 was relied upon by the Appellant in support of the submission. Counsel also contended, relying on the decision in the cases of ONUORAH Vs. KRPC LIMITED [2005] 6 NWLR (Pt. 921) 393 at 405; paras A–D; ADELEKAN Vs. ECU-LINE NV [2006] 12 NWLR (Pt. 993) 33, that the Federal High Court lacks jurisdiction an action for the enforcement of simple contract even if such contract relates to causes or matters enumerated under Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the “Constitution”). The case of NKUMA Vs. ODILI [2006] 6 NWLR (Pt. 977) 587 was relied upon to submit that the mere mention of “oil”, “spillage”, “minerals” or “pipelines” in a suit does not automatically invoke the jurisdiction of the Federal High Court.

On the second issue, Appellants’ counsel submits that even if the lower Court was right that the present suit is founded on oil spill, the action is statute-barred as same was not commenced within the five (5) years limitation period prescribed by Section 16 of the Limitation Law of Bayelsa State (the “Limitation Law”). The cases of EGBE Vs. ADEFARASIN (No. 2) [1987] 1 NWLR (Pt. 47); JULIUS NDUKA Vs. EDWIN OGBONNA [2011] 1 NWLR (Pt. 1227) 153 at 168, paras C–E; GRAINS PROD. AGENCY Vs. EZEGBULEM [1999] 1 NWLR (Pt. 587) 399 on what the Court should rely on in determining when an action becomes statute barred. He submitted that from the averments in paragraphs 26 and 28 of the statement of claim, the 1st to 3rd Respondents’ right of action accrued in 2005 or 2009. This is because Suit No. OHC/C/17/2001 relating to the rightful claimants to the money was determined in 2005 and the 1st to 3rd Respondents have been aware since 2005 that the Appellant has refused to pay the compensation money to them despite repeated demands; or because the Appellant refused to honour the 1st to 3rd Respondents’ solicitor’s demand in 2009; for the payment of the negotiated compensation.

In addition, Counsel argued that even if the action is based on oil spill as held by the learned trial Judge, the limitation law of a state is applicable to actions founded on federal legislations, such as the Oil Pipelines Act, and it is immaterial that the action was filed at the Federal High Court, citing the ratio of the decisions in ETIM Vs. IGP [2001] 11 NWLR (Pt. 724) 266; SHELL DEVELOPMENT COMPANY NIGERIA LIMITED Vs. CHIEF ZEDIE WILLIAMS & 2 ORS. (unreported judgment of the Court of Appeal, Port Harcourt Judicial Division delivered on 6th December, 2017); SHELL PETROLEUM DEVELOPMENT COMPANY Vs. CHIEF GOODLUCK MEBURU (2013) LPELR–21889 (CA); SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Vs. DODOYE WEST (2018) LPELR–44290 (CA); ASABORO Vs. PAN OCEAN OIL CORP. (NIG) LIMITED [2017] 7 NWLR (Pt. 1563) 42. The Appellant’s learned Counsel submitted that the decision in BENSON Vs. MOBIL PRODUCING (NIGERIA) UNLIMITED [2014] ALL FWLR (Pt. 722) 1821–1822, which the learned Judge relied on to hold that the limitation law of Bayelsa State cannot apply to claims brought under Federal Legislation is no longer a good law in view of the Supreme Court decision in ASABORO Vs. PAN OCEAN OIL CORP. (NIG.) LIMITED (supra).

​Appellant’s counsel maintained that the instant suit is statute-barred having been commenced after five years from the date the cause of action arose and the 1st to 3rd Respondents cannot assert any claim in respect of the subject matter before the Court, relying on the decisions in ADEOSUN Vs. JIBESIN [2001] 11 NWLR (Pt. 724) 290 at 314, para F; SPDCN LIMITED Vs. AMADI [2010] 13 NWLR (Pt. 1210) 82 at 119.

It is the argument of the Appellant’s counsel that the instant suit constitutes an abuse of Court process, having been commenced during the pendency of Suit No. FHC/YNG/CS/10/2016 – Chief Ebikeseye Bipeledei & Ors. (representing Gbanraun Kingdom in the Southern Ijaw LGA of Bayelsa State v. NAOC) (the “Previous Suit”). The cases of UMEH & ANOR Vs. IWU & ORS (2008) LPELR – SC. 60/2007, 21 to 22, paras F – A; A.G., KWARA STATE & ANOR Vs. LAWAL & ORS. (2017) LPELR – SC. 321/2011, 16 – 17, paras C – A. It is the submission of Counsel that the ingredients of abuse of Court process exists in this case, that is, the parties in both actions are the same since the Plaintiffs in both suits are members of Gbanraun Kingdom, citing OTAPO Vs. SUNMONU [1987] 2 NWLR (Pt. 58) 587 at 623; the subject matter in both suits is the same/similar being the recovery of negotiated sum of money (compensation) arising from the oil spill of 1997 allegedly deposited by the Appellant in an interest yielding account and accrued interest thereon. The cases of UMEH Vs. IWU [2008] 8 NWLR (Pt. 1089) 225 at 260; ALI Vs. ALBISHIR [2008] 3 NWLR (Pt. 1073) 94 at 143 were also cited by Counsel before he submitted that the reliefs sought in the two suits are the same. Counsel urged the Court to strike out/dismiss the matter as the trial Court has no jurisdiction to proceed with same.

1st – 3rd RESPONDENTS’ SUBMISSION
On the first issue formulated by Counsel, it is submitted on behalf of the 1st to 3rd Respondents relying on the decisions ALAGOMA & ORS. Vs. SPDC LIMITED (2013) LPELR–21394 (CA); CHEVRON (NIG) LIMITED Vs. IMO STATE HOUSE OF ASSEMBLY & ORS. (2016) LPELR–41563 (CA), that the instant suit borders on compensation for oil spills as settled by the affected parties. Counsel further submitted that the fact that a negotiation is governed by the principles of contract does not ipso facto make it a contract simpliciter; that no contract has been executed by the parties in this case, relying on MRS. T.C. CHUKWUMA Vs. MR. BABAWALE IFELOYE (2008) LPELR–862 (SC). The cases of ONWUDIWE Vs. FRN [2006] 10 NWLR (Pt. 988) 428; AMADI Vs. SOKOTO L.G. [2012] 5 NWLR (Pt. 1292) 181 were relied upon in support of the submission that the nature of a claim determines the nature of a suit or cause of action and the competence of a Court to entertain the suit. Item 19 of the Second Schedule to the Constitution; Section 19 of the Oil Pipelines Act; the cases of BARRY & 2 ORS. Vs. OBI A. ERIC & 3 ORS. [1998] 8 NWLR (Pt. 562) 404 at 416; SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Vs. OTELAMABA MAXON & ORS. [2001] FWLR (Pt. 47) 1030; C.G.G. (NIG.) LIMITED Vs. ASAAGBARA [2001] 1 NWLR (Pt. 693) 155, were relied upon by counsel to submit that the instant suit arises from the Appellant’s crude oil mining activities and the lower Court was justified to assume jurisdiction.

It is the submission of counsel, relying on the decisions in MOBIL PRODUCING (NIG.) UNLIMITED Vs. DAVIDSON [2020] 1 NWLR (Pt. 1722) 1–11; DAIMLER CO. LIMITED Vs. CONTINENTAL TYRE & RUBBER CO. (GREAT BRITAIN) LIMITED (1916) 2 AC 307, that owing to the principle of continuous damage from the oil spill, the instant suit is not a proper case for the application of the Limitation Law of Bayelsa State.

On the second issue, it is the submission of the 1st to 3rd Respondents’ Counsel, relying on Section 11(5) of the Oil Pipeline Act, and the case of NIGERIAN NATIONAL PETROLEUM CORPORATION (NNPC) & ANOR Vs. CHIEF STEPHEN ORHIOWASELE & ORS (2013) LPELR–24710 (SC) that the 1st to 3rd Respondents’ claim borders on their entitlement to compensation for pollution and damage resulting from the Appellant’s mining operations and same is actionable at the Federal High Court since oil pipeline is an exclusive legislative issue. It was further argued that even if the 1st to 3rd Respondents’ action is not about entitlement to claim for compensation, but one which arose from a negotiation simpliciter without regard to subject matter and surrounding circumstances, it nevertheless would not constitute a simple contract, citing MRS. T.C. CHUKWUMA Vs. MR. BABAWALE IFELOYE (2008) LPELR – 862 (SC).

​Counsel further submits that the decision in ASABORO Vs. PAN OCEAN OIL CORP. NIG. LTD. (supra) relied upon by the Appellant is of limited application by reason of its ratio and the fact that it borders on land matters, while the instant suit borders on enforcement of right to compensation for oil spill. He maintained that the decision in the case of BENSON Vs. MOBIL PRODUCING (NIGERIA) LIMITED (supra) relied upon by the learned trial Judge is a better law and applicable to the instant suit. The case of PRINCE TOM EDEBOR Vs. ELF PETROLEUM NIGERIA LIMITED (2011) LPELR-4878 (CA) was also cited by counsel.

On the issue of abuse of Court process, Counsel noted that the parties in both suits are different, the subject matter is not the same and the two cases are materially and fundamentally different. He relied on the case of NDIC Vs. UBN PLC [2015] 12 NWLR (Pt. 1473) 246 in support of his contention that the present suit is not an abuse of Court process.

4TH–6TH RESPONDENTS’ SUBMISSION
The learned counsel to the 4th to 6th Respondents submits that it is the Plaintiff’s claim that is considered in determining whether or not a Court has jurisdiction, citing GOLDMARK (NIG.) LIMITED Vs. IBAFON CO. LIMITED ​[2012] 10 NWLR (Pt. 1308) 291; FBN PLC Vs. GOVT. OF ONDO STATE [2012] 11 NWLR (Pt. 1312). It is the submission of counsel that from the reliefs sought by the 1st to 3rd Respondents in this case, their claim is for compensation for an oil spillage which allegedly occurred sometime in 1997 in connection with the Appellant’s oil mining activities. Counsel argued that it was the Appellant that unilaterally resolved to pay the negotiated sum in full and final settlement of all claims arising from the 1997 oil spillage as against the sum of N3,500,000,000.00 (Three Billion, Five Hundred Million Naira) demanded by the 1st to 3rd Respondents; that there was no contractual relationship with the Appellant in anticipation of the payment of compensation. Section 251(1) (n) of the Constitution and the case of SPDC (NIG.) LIMITED Vs. LALIBO [2009] 14 NWLR (Pt. 1162) 564; FOLKSYNTHESIS LIMITED Vs. GAPUMA (UK) LIMITED [2017] 8 NWLR (Pt. 1566) 150 at 165, paras C–D, were relied upon to argue that the subject matter of the instant suit, which is the same as in Suit No. OHC/1/2015, falls within the exclusive jurisdiction of the lower Court and does not border on simple contract.

On the second issue, Counsel noted that the Appellant had by its letter dated 22nd May, 1998 addressed to the Late Chief M.E.A. Bipeledei confirmed the deposit of the compensation sum in an interest yielding account pending the determination of Suit No. OHC/9/98. He then submits that the mere fact that the Appellant refused to respond to the letters of the Respondents’ community through their community demanding for payment for compensation does not ipso facto mean that the Respondents community’s cause of action has accrued and elapsed as acknowledgment of debt is an exception to an action being statute barred. He further submits that it is only when the Appellant specifically denies its obligation or liability to pay any form of compensation due to the Respondents’ Gbanraun Community that their right of action can accrue.

​It is the further submission of counsel that even if the subject matter in this suit is a simple contract on a negotiated compensation agreement, continuance of damage or injury is an exception to a cause of action that is statute-barred and since the Respondents are still suffering from injuries sustained as a result of the 1997 oil spillage, the present suit is not statute-barred. Counsel also relied on the decision in SIFAX (NIG.) LTD & ORS Vs. MIGFO NIG. LTD & ANOR [2018] 9 NWLR (Pt. 1623) 138 on the position of law that where an action is filed in a Court that lacks jurisdiction but is subsequently filed in a Court vested with jurisdiction, time will be frozen and shall not run against the party during the period of litigation. The 4th to 6th Respondents’ Counsel noted that in the aftermath of the oil spill incident, the Respondents’ community commenced Suit No. OHC/9/1998 between HRH E. G. Ojogbo & Ors. Vs. NAOC in 1998 and an out of Court settlement was reached; thereafter, Suit No. OHC/1/2015 between Hight Chief Ebikeseye Bipeledei & Ors. Vs. NAOC was commenced but struck out on grounds of jurisdiction and later Suit No. FHC/YNG/CS/10/2016 was also initiated and same is still pending. It is the submission of counsel that the Limitation Law of Bayelsa State is inapplicable to this suit.

​On the third issue, Counsel curiously conceded that the present issue is an abuse of Court process and the issue be resolved in favour of the Appellant. It is the submission of Counsel that the previous suit constituted in Suit No. FHC/YNG/CS/10/2016 was commenced by the 4th to 6th Respondents in their representative capacity on behalf of Kpuruwei Family/Asitubu (Ama) Community in Gbanraun Kingdom on the same subject matter and their capacity has never been challenged by the 1st to 3rd Respondents. Counsel further argued that the parties in the present suit and the previous suit are related by blood and the reliefs being sought by the parties are the same.

RESOLUTION
I must quickly say that our law does not recognize a situation where, in the absence of a cross-appeal or respondent’s notice, a Respondent will depart from its traditional role of defending the decision being appealed against by the Appellant. Certainly, as the Supreme Court had held in the case of CAMEROON AIRLINES Vs. OTUTUIZU (2011) LPELR-827(SC), the role of the Respondent in an appeal is to defend the judgment of the trial Court, but where the Respondent is not comfortable with a finding (not the entire judgment) in the judgment which he considers fundamental, he can only do so by filing a cross-appeal. As noted earlier, the 4th to 6th Respondents’ counsel had, while canvassing argument in connection with the issue as to whether the instant suit constitutes an abuse of Court process, urged this Court to resolve the said issue in favour of the Appellant and set aside the learned trial Judge’s decision that the present suit does not amount to an abuse of Court process. In the event that the 4th to 6th Respondents do not agree with the reasoning of the learned Judge, they ought to file a cross-appeal and not argue against the decision of the trial Judge in their Respondents’ brief of argument. I need not say more on this point. Such a conduct borders on misconduct which made the position being argued by the said learned counsel as one involved in a subtle collusive suit in the circumstance.

​Meanwhile, in resolving the issues nominated by the Appellant and which has been adopted for determination of this appeal, I shall proceed to first consider and determine the third issue which borders on the question as to whether the present suit constitutes an abuse of Court process, having regard to the pendency of Suit No. FHC/YNG/CS/10/2016? The position of the law which has been handed down by the apex Court is that abuse of process is the improper use of the judicial process by a party in litigation. It may occur in various ways, predominantly demonstrated by the institution of multiplicity of actions on the same subject matter between the same parties. Another incidence is the institution of actions by same parties simultaneously in different Courts even though on different grounds, where the two similar processes are used in respect of the exercise of the same right in order to achieve the same goal. See the cases of IKINE & ORS Vs. EDJERODE & ORS (2001) LPELR-1479 (SC); ASHEY AGWASIM & ANOR Vs. DAVID OJICHIE & ANOR (2004) 18 NSCQR 359 at 36. Put simply, abuse of Court process entails the usage of the process of the Court mala fide and improperly, and in most cases, to the annoyance and irritation of another party. Therefore, where it is found that two or more actions have been commenced before a competent Court on the same subject matter and the parties in the two suits are the same, the only inference that will be drawn is that the intention, purpose and bringing the suit before the Court, which is later in time, is to harass, irritate and annoy the other party against whom the suit was commenced; and also interfere with the administration of justice.

​In connection with the issue before this Court now, I have carefully considered the relevant constituents of Suit No. FHC/YNG/CS/10/2016 and I found from the statement of claim filed in that suit contained in pages 85 to 88 of the record of appeal that the suit was commenced by the 4th to 6th Respondents in representative capacity as representing Gbanraun Kingdom in the Southern Ijaw LGA of Bayelsa State. In addition, the principal relief sought by the Plaintiffs in the said suit is for an order directing the Appellant herein, to pay to the Plaintiffs the sum of N1,916,200,000.00 (One Billion, Nine Hundred and Sixteen Million, Two Hundred Thousand Naira) representing the principal sum and accrued interest of the Plaintiffs’ money deposited in an interest yielding account by the Appellant since 1998. On the other hand, the suit leading to the present appeal commenced by the 1st to 3rd Respondents for themselves and as representing members of the Kpuruwei Family/Asitubu (Ama) Community/Settlement, Gbanraun Kingdom for declaratory and injunctive orders of Court to the effect that they are the rightful beneficiaries of the negotiated compensation money deposited by the Appellant in an interest yielding bank account plus accrued interest thereon arising from the Appellant’s oil spillage that precipitated the 1st to 3rd Respondents’ Suit No. OHC/9/98 between HRH Ojogbo & Ors. Vs. NAOC. See pages 7 to 13 of the record of appeal.

​Premised on the above, it is evident that the parties in the present suit and Suit No. FHC/YNG/CS/10/2016 are the same. It is however noteworthy that Suit No. FHC/YNG/CS/10/2016 was commenced by the 4th to 6th Respondents in representative capacity and representing the interest of the entire Gbanraun Kingdom, which the 1st to 3rd Respondents belongs. As the learned Counsel for the Appellant rightly submitted, it is of no moment that the 1st to 3rd Respondents are not named as parties in Suit No. FHC/YNG/CS/10/2016. In law, a representative action covers and binds person(s) who even though are not named specifically as a party, but belongs to the class represented. The 1st to 3rd Respondents in this case have expressed on the face of processes filed in the suit, that they are members of the Gbanraun Kingdom to which the 4th to 6th Respondents are representing in Suit No. FHC/YNG/CS/10/2016, even though in this case the 1st to 3rd Respondents are representing the Kpuruwei Family/Asitubu (Ama) Community. As a matter of fact, the evidence on the face of the relevant documents contained in the record of appeal before this Court, shows that the claim in the two suits is for the recovery of the negotiated sum of money purportedly due to the respective Plaintiffs from the Appellant in the aftermath of the 1997 oil spill. If the 1st to 3rd Respondents are not pleased with the purported representation of their interest in the suit commenced at the instance of the 4th to 6th Respondents or that the 4th to 6th Respondents do not have their authority to initiate Suit No. FHC/YNG/CS/10/2016 as they have alleged in their statement of claim in this case, the proper step to take will be to join the said suit which is pending and properly ventilate their grievances. It is not open for them to commence the present suit; that is an improper use of the judicial process.

It is my firm view, which I believe to be the correct one, that the present suit amounts to an abuse of Court process and once, as in the instant case, a Court is satisfied that processes before it, are an abuse of its processes, it should with all urgency exercise its inherent jurisdiction and dismiss the abusive action or process.

Nevertheless, and out of abundance of caution, I shall consider the issue as to whether the lower Court – a Federal High Court, is competent to entertain and determine the 1st to 3rd Respondents’ claim as constituted. The law is trite and quite elementary that provisions of the law are not to be considered in vacuo but in the context of the claim before the Court. See ITPP LTD Vs. UBN PLC [2006] 2 NWLR (Pt. 955) 483. My noble Lords, for ease of reference, the reliefs sought by the 1st to 3rd Respondents in the statement of claim filed at the lower Court are reproduced below:
1. “A Declaration that the Plaintiffs are the rightful beneficiaries of the negotiated compensation money deposited by the 1st Defendant in an interest yielding bank account plus accrued interest arising from the 1st Defendant’s oil spillage that precipitated Plaintiff’s Suit No. OHC/9/98 between HRH Ojogbo & Ors. Vs. NAOC.
2. A Declaration that the 2nd–4th Defendants who have no enforceable right and are not authorised by the people of Gbanraun Kingdom or the herein Plaintiffs cannot on their behalf demand, receive money or institute any suit against the 1st Defendant in respect of the money deposited by the 1st Defendant in an interest yielding bank account which is the subject matter of in this suit.
3. An Order directing the 1st Defendant to pay to the Plaintiffs through their Solicitor, Chief Ladi Rotimi-Williams, SAN a total sum of N13,483,325,824.00 (Thirteen Billion, Four Hundred and Eighty-Three Million, Three Hundred and Twenty-Five Thousand, Eight Hundred and Twenty-Four Naira Only) being…
4. An Order directing that interest at 21% per annum on the negotiated compensation sum shall be in force until the judgment is entered and thereafter 10% interest on outstanding judgment debt until it is fully paid to the Plaintiffs by the 1st Defendant.
5. An Order of perpetual injunction restraining the 2nd–4th Defendants, their agents, servants and/or privies from further acts of laying claim to or on behalf of the herein Plaintiffs or the entire Gbanraun Kingdom in respect of the said Plaintiffs money deposited.”

The view held by the trial Judge, having had the benefit of considering the relevant averments and reliefs sought in the statement of claim and reproduced above, is that the 1st to 3rd Respondents’ action borders on a claim for entitlement to compensation for pollution and damages resulting from the mining operations and related activities of the Appellant, who is the holder of an oil pipeline license and therefore actionable in the Federal High Court. With respect, it ought to be beyond disagreement that the case of the 1st to 3rd Respondents is predicated on two main limbs, that is, the fact that (a) the 1st to 3rd Respondents and the class they represent, are the persons entitled to be paid the negotiated compensation sum deposited into an interest yielding account by the Appellant; (b) that at the time of initiating the present suit, the Appellant has refused to release the negotiated compensation sum to the 1st to 3rd Respondents, who are the alleged beneficial owners of the said money. It is important to reproduce the relevant portion of the statement of claim filed at the lower Court and they read as follows:
“14. The Plaintiffs aver that upon failure of the 1st Defendant to comply with the Plaintiffs Solicitor’s pre-litigation letter, representatives of the Plaintiffs Kpuruwei Family instituted action at the Bayelsa State High Court in Suit No. OHC/9/98 against the 1st Defendant.
15. Plaintiffs further states that the later Chief M.E.A. Bipeledei who is the father of the 2nd Defendant was before his demise in 2009, the 1st Defendant’s contact person/link man regarding its affairs and operations in Gbanraun Kingdom.
16. The Plaintiffs aver that the late Chief M.E.A. Bipeledei, is from Agege Compound in Aquobiri in Gbanraun Kingdom and is not a member of Kpuruwei Family, the beneficial owners and occupiers or inhabitants of the 1st Defendant’s spillage impacted area known as Asitubu (Ama) settlement/community in Gbanraun Kingdom.
17. The Plaintiffs states that the late Chief M.E.A. Bipeledei informed them that the 1st Defendant resolved to pay only a total negotiated compensation sum of N420,000,000.00 (Four Hundred and Twenty Million Naira) in full and final settlement of all claims arising from the said spillage as against the sum of N3.5 Billion Naira demanded by the Plaintiffs, which formed part of the claims against the 1st Defendant in Suit No. OHC/9/98…
20. The Plaintiffs aver that the 1st Defendant at all materials times is aware that the Plaintiffs are the rightful beneficiaries to compensation arising from the said spillage but rather than pay them the negotiated sum, the 1st Defendant has refused to fulfil his obligations but instead claimed that it was waiting for the determination of Suit No. OHC/9/98 claiming that the rightful Claimants to compensation in respect of the massive oil spillage is in contention.
21. The Plaintiffs further aver that the 1st Defendant by a letter dated 2nd May, 1998 addressed to Late Chief M.E.A. Bipeledei confirmed deposit of the total negotiated compensation sum in an interest yielding account pending the determination of the suit and also, that it shall be compelled to pay the money to any person adjudged by the Court to be entitled to it even though the beneficial owners to the oil spillage impacted Asitubu settlement is not in dispute or subject to any claim…
30. Plaintiffs state that sometime in 2015, the 2nd–4th Defendant who have no enforceable right in the res and subject matter to this suit and who are not authorised by the people of Gbanraun Kingdom or the herein Plaintiffs surreptitiously instituted a suit at the Bayelsa State High Court in a representative capacity for themselves and on behalf of the Plaintiffs who are natives of Gbanraun Community…
32. The Plaintiffs aver that the 2nd–4th Defendants again trampling on the Plaintiffs’ right to the compensation money proceeded to the Federal High Court, Yenagoa, Bayelsa State, even though they possess no enforceable right in the res and were never authorised by the Gbanraun people commenced a fresh action in a representative capacity in Suit No. FHC/YNG/CS/10/2016 seeking for an order of Court for the money to be paid to them…
33. The Plaintiffs further state that as at the time of filing this suit, the 1st Defendant is yet to release the negotiated compensation sum to the Plaintiffs who are the beneficial owners of the said money….”

Reading the above reproduced paragraphs, can it be said that the 1st to 3rd Respondents’ suit falls within the matters or causes within the exclusive jurisdiction of the Federal High Court in terms of the provision of Section 251(1) of the Constitution. I think the mere fact that the negotiated compensation sum is in connection with the Appellant’s oil mining activities, (the 1997 oil spill), prompted the Court into deciding that the suit can be entertained by the Federal High Court. The learned trial Judge obviously became swayed by the fact that the 1st to 3rd Respondents are claiming for the negotiated sum purportedly agreed to be paid by the Appellant following the impact of the oil spill on the Gbanraun Community, without considering the peculiar aggregate of facts which, when combined, formed the basis of the action before the lower Court. From the averments contained in the statement of claim, it is clear that there is obviously no dispute or contention between the 1st to 3rd Respondents on one hand and the Appellant on the other as to the quantum of compensation or degree in monetary terms, due to the 1st to 3rd Respondents. The cause of action in the matter leading to the instant appeal stems from the alleged refusal of the Appellant to pay the negotiated compensation to the 1st to 3rd Respondents and I am inclined to say that it is immaterial that the agreement to pay the said compensation sum arose from a claim bordering on oil spillage. What is evident, and contrary to the decision of the learned trial Judge, is that the 1st to 3rd Respondents are seeking the intervention of the Court to hold the Appellant bound to pay the sum it had committed itself to pay to the persons affected by the oil spill and the basis upon which the claims in earlier suit OHC/9/98 was compromised. I am unable to agree with the Respondents that this suit is not for the enforcement of contract. Nothing can be further from the truth. The relevant question for the purpose of the jurisdictional test is: can the matter be decided without reference to the provisions of the Oil Pipelines Act, which contains the statutory basis upon which a claim for compensation in connection with oil and mining activities can be sustained. I am inclined to answer this in the affirmative, the matter can be effectively and effectually determined without recourse to the Oil Pipelines Act.

I am of the view, that the suit before the lower Court does not have the character of claim properly situated within the causes or matters enumerated under Section 251(1) of the Constitution. Indeed, the jurisdiction of a Court or Tribunal can never be the subject of negotiation between parties, nor can it be waived, jurisdiction cannot be conferred on a Court by consent or agreement of the parties. It is fundamental and indispensable, it is the foundation upon which decisions of Court are based, it is the footing upon which the decisions of Court are founded. See IJEBU-ODE L.G. Vs. ADEDEJI [1991] 1 NWLR (Pt. 166) 136; UTIH & ORS Vs. ONOYIVWE [1991] 1 NWLR (Pt. 166) 166.

​In the light of this analysis, it is my respectful conclusion on this issue that the Federal High Court lacks the jurisdiction to adjudicate upon the claim as constituted before it.

In the light of the decision that the present suit amounts to an abuse of Court process and that the lower Court is not competent to adjudicate upon the 1st to 3rd Respondents’ claim as constituted, I am of the opinion that any other issue in this appeal has become academic and this Court will not waste its precious and scarce judicial time on them. The curtain shall therefore be drawn on this appeal at this point.

In the circumstance, I find merit in the Appellant’s appeal and it is hereby allowed. The judgment of the Federal High Court, coram Honourable Justice J. E. Iyang delivered on 7th May, 2019 in Suit No. FHC/YNG/CS/7/2018 is hereby set aside. The suit in the lower Court is accordingly dismissed, particularly on the ground that it amounts to an abuse of Court process. See the Supreme Court’s decision in ARUBO V. AIYELERU (1993) 8 NWLR (Pt.280) 126 AT 142 per Nnaemeka Agu, JSC Rtd of blessed memory. Parties are for these reasons, ordered to bear their respective costs of prosecuting the instant appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Kolawole, J.C.A., with nothing extra to add.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: My noble brother, GABRIEL OMONIYI KOLAWOLE, JCA afforded me the opportunity of reading in advance, the lead judgment just delivered as one of the panelists.

I agree with my learned brother that the suit before the lower Court has not been properly constituted in accordance with the provision of Section 251 of the Constitution. The reasoning and conclusion contained in the leading judgment is agreed upon by me.

I also find merit in this appeal and allow it. The judgment of the lower Court delivered on the 7th of May, 2019 by Hon. Justice J. E. Iyang in Suit No. FHC/YNG/CS/7/2018 is hereby set aside.

I abide by the consequential orders in the leading judgment.

Appearances:

INNOCENT EKPEN, ESQ. For Appellant(s)

NERITON PREFA, ESQ. – for 1st – 3rd Respondents. For Respondent(s)