NIGERIA AGIP OIL COMPANY LIMITED v. MR. NELSON AHANWA (2018)

NIGERIA AGIP OIL COMPANY LIMITED v. MR. NELSON AHANWA

(2018)LCN/11276(CA)

In The Court of Appeal of Nigeria

On Thursday, the 19th day of April, 2018

CA/OW/251/2012

RATIO

CONTENTION OF A WRIT; THE REQUIREMENT OF THE SHERIFFS AND CIVIL PROCESSES ACT

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

NIGERIA AGIP OIL COMPANY LTD Appellant(s)

AND

NELSON AHANWA
(For himself and as representing Members of Umuahanwa family of Umueziadi Kindred of Umutoguma Village, Oguta LGA of Imo State) Suing through their attorney, Ikesco Contracting Co. Nig. Ltd Respondent(s)

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment)

This is the judgment in respect of the appeal filed by the Defendant (now Appellant) against the decision of the Federal High Court which sat at Owerri in suit No; FHC/OW/CS/155/2011, BETWEEN NELSON AHANWA & ORS v. NIGERIA AGIP OIL COMPANY LIMITED decided on 19/1/2012.

The claim of the Claimant can be captured from paragraphs 1, 2, 3, 5, 7 and 17 of their statement of claim thus:-
1. The Claimant is a member of Umuahanwa family of Umueziadi Kindred of Umutoguma village, Oguta, in Oguta Local Government Area of Imo State and have the authority and consent of other members of the family to bring this action. The Claimant also prosecutes this action through their attorney, IKESCO CONTRACTING COMPANY LIMITED.
2. The Defendant is a company incorporated in Nigeria with her District Office in Port Harcourt and engages in the prospecting, exploration and exploitation of oil in all her oil fields and location including her Akri/Oguta Oil Fields and location including her Akri/Oguta Oil Field within the jurisdiction of this Court.

The Claimant and other members of the family are owners in possession from time immemorial of the seasonal creek known as UTU MIRI ONYAGUGBO with its adjoining fish ponds lying and situated at Oguta farm land in Oguta Local Government Area of Imo State.
5. Claimant avers that they exercise their fishing rights on the said creek three (3) times yearly, viz-dry, rainy and flooding seasons. And the revenue accrued from the sale of fishes harvested in the said seasons are shared among the family members who in turn use same for their upkeeps and that of their families.
7. Claimant further avers that the effects of the said blockade and obstruction in the cross flow of water are not only over flooding of their fish ponds and farmlands, but also the deprivation of water and restriction of aquatic lives on one side of the creek.
17. WHEREFORE the Claimants claim against the Defendant as follows:-
a. the sum of Ten Million Naira (N10,000,000.00) being fair and adequate compensation for the continuous loss of fishing right on UTU MIRI ONYAGUGBO creek and adjoining ponds and creeks.
b. An order directing the Defendant to comply with Investigation Report No. JZ/6980/AKRI/MAIN/WW/BL K/12/06/PAF/ 743- 03, within 6 months of delivering of judgment.

On being served the Court processes, the Defendant challenged the competence of the suit praying the Court to strike it out.

After hearing the parties the learned trial Judge gave a ruling in the following terms:-
It is trite that issuing of civil process is the concern of the relevant High Court Law and Rules. While service of such process is referable to the law made for the service of process (see ADEGOKE MOTORS v. ADESANYA (1989) 3 NWLR (PT 109) 250 -270 PARAGRAPHS B TO C.) i.e. the Sheriffs and Civil Process Act Cap. Section 6 LFN 2004.
So, while under the Federal High Court (Civil Procedure) Rules 2009 leave is no longer required to issue and serve a writ outside the State where a particular division of the Federal High Court is situated, there is still a requirement by Section 97 of the Sheriffs and Civil Process Act (supra) that the writ be endorsed.
The Plaintiff erred on the side of surplusage when he prayed for an order granting leave to issue and serve the writ outside jurisdiction as used to be the practice under the old Rules of this Court. He also asked for an order that the writ be appropriately endorsed for service. The Court made orders in that regard. As such, it is presumed that what ought to have been done was done i.e. that the writ which was served on the Defendant/Applicant was indeed endorsed (since the Defendant/Applicant has not presented a Certified True Copy (C.T.C) of the writ served upon it for the Court to ascertain that such an endorsement was not made).

His lordship on the objection to the jurisdiction of the lower Court further held thus:-
It can be deduced from an examination of the Statement of claim that the alleged blockade and obstruction being complained of by the Plaintiffs/Respondents is due to the fact that the Defendant/Applicant dug a burrow pit and constructed an access road to its oil well(s) in the Plaintiffs/Respondents Community. In other words, it was in order to facilitate its oil exploration and exploration activities that the access road and burrow pit which allegedly caused blockade obstruction and damage to the Plaintiffs/Respondents fish ponds, creeks etc was constructed by the Defendant. It has been held that any unsavoury result actionable in consequence of the activities of companies engaged in operations relating to prosecutions in oil, mines, minerals, gas exploitation and related geophysical works or activities come within the jurisdictional competence of this Court. See
1. SPDC v. OTELEMABA MAXON & ORS (2001) FWLR (PT 47) P. 1030 (Court of Appeal).
2. C.G.G. (NIG.) LTD v. ASAAGBARA (2000) FWLR (PT. 17) P. 110 (Court of Appeal).
3. BARRY v. ERIC (1998) 8 NWLR (PT. 562) P. 404.
The burrow pit and access road constructed by the Defendant/Applicant is a consequence of its oil prospecting and exploration activities in the Plaintiff/Respondents Community.

Dissatisfied with the above decision the Defendant filed a Notice of Appeal containing four grounds of appeal which read thus:-
1. The learned trial Judge erred in law and wrongly assumed jurisdiction over the Plaintiffs case when:
PARTICULARS OF ERROR
a. The Plaintiffs claim relates to an alleged injury suffered or is being suffered as a result of an alleged blockade of the free flow of water and fishes into the Plaintiffs ponds and farmland said to have been caused by the reconstruction of an access road and burrow pit by the Defendant.
b. The subject matter of the Plaintiffs’ claim does not arise from relate to or connect with mines and minerals, oil mining, geological surveys and natural gas, and is outside the jurisdiction of the Federal High Court.
c. Merely to aver that Defendant is an oil producing company will not give this Court jurisdiction over the Plaintiffs’ claims.
d. The subject matter of the Plaintiffs’ claim is within the exclusive jurisdiction of the Imo State High Court.
2. The learned trial Judge erred in law in holding that the construction of the access road and burrow pit was embarked upon by the Defendant so as to facilitate easy access to its oil facilities when:
PARTICULARS OF ERROR
a. No pleading to that effect is contained in the Plaintiff’s statement of claim.
b. Constructing a road and digging a burrow pit to facilitate access to Defendant oil facilities, will not, on the state of the authorities, bring the subject matter of the claim to one arising from, related to or connected with mines, minerals etc.
c. None of the cases of CGG v. Asagbara and SPDC v. Otelemaba Maxon relied on by the learned trial Judge is applicable to the facts of the Plaintiffs’ case. Rather it is the case of Nigeria Agip Oil Co. Ltd. v. Williams Kammer (cited to the learned trial Judge) that is applicable.
3. The learned trial Judge erred in law in holding that as Defendant did not exhibit to its motion the writ served on it, she could not make a finding that it did not contain the mandatory endorsement required by Section 97 of the Sheriffs and Civil Process Act when:
PARTICULARS OF ERROR
a. In paragraph 4(c) of the affidavit in support of its motion, Defendant deposed that “no endorsement that the writ was to be served on the Defendant outside jurisdiction was made on the writ before service of it.”
b. Plaintiffs did not file a counter affidavit to challenge or rebut this deposition, and are therefore deemed in law to have admitted it.
c. Having admitted that the writ served on the Defendant did not contain an endorsement that it was to be served outside Owerri Judicial Division, no further issue arose from it which Defendant is required to prove by exhibiting the writ served on it. What has been admitted needs no proof.
d. Failure to exhibit the writ to the motion did not, on the admitted facts, prevent the Court from holding that it did not contain the mandatory endorsement required by Section 97 of the Sheriff and Civil Process Act.
4. The learned trial Judge erred in law in refusing to set aside the service of the writ on the Defendant in Port Harcourt, Rivers State, outside jurisdiction when Defendant has established by un-challenged evidence that the writ served on it did not contain the mandatory requirement of Section 97 of the Sheriffs and Civil Process Act.
PARTICULARS OF ERROR
a. Particulars of ground 3 above are hereby repeated.
b. Failure to endorse the writ as requires by Section 97 of the Sheriffs and Civil Process Act renders the writ liable to be set aside.

After transmission of record of appeal the Appellant filed its brief of argument on 23/9/13 which was deemed filed on 25/4/17.
The brief was settled by O. J. Irerhime Esq. Appellant’s counsel.

Learned counsel formulated two issues for determination as follows:-
1. Whether the Plaintiffs claim which is founded on an alleged injury caused by Defendant in the course of the construction of a road is within the jurisdiction of the Federal High Court
2. Whether the trial Judge was right in failing to hold that the endorsement required by Section 97 of the Sheriffs and Civil Process Act was not made

SUBMISSION OF COUNSEL ISSUE ONE
Learned Appellants counsel submitted that the subject-matter of the Plaintiffs claim had nothing to do with mines and minerals including oil mining geological surveys and natural gas nor indeed any of the subject matter, in Section 251 of the Constitution. He argued further that because the Defendant was engaged in oil mining activities, it was erroneous to contend that every activity of the Defendant must be a cause or matter arising from connected with or pertaining to mines and minerals. He cited NKUMA v. ODILI (2006) ALL FWLR (PART 313) 24 at 38 and some other cases. He contended that the alleged injury suffered by the Plaintiffs did not touch on issues of compensation for oil pollution or damages resolving from mining operation. He urged the Court to resolve this issue in Appellants favour.

ISSUE TWO
Irerhime Esq. on behalf of the Appellant submitted that the learned trial Judge was wrong to have held that the Defendant did not exhibit to its motion a copy of the writ it received and so because of this the Court could not ascertain that the writ was not endorsed as required by Section 97 of the Sheriff and Civil Processes Act 2007, in spite of the unchallenged affidavit evidence of the Defendant that the writ was not so endorsed. He submitted that facts which had been admitted needed not be proved. He cited IKONO LOCAL GOVERNMENT v. DE BEACON FINANCE & SECURITIES LTD (2002) 4 NWLR (PART 756) 128 at 142 and some other cases. He urged the Court to resolve the issue in favour of the Appellant.
He finally urged the Court to allow the appeal.

The Respondents did not file Respondents brief of argument. Hence this appeal is being determined based on the Appellants brief alone.
I have carefully considered the submissions of learned counsel.

RESOLUTION OF ISSUES
ISSUE ONE
In resolving this issue recourse has to be made to the pleadings of the Claimant at the lower Court. Paragraphs 2, 5 and 7 of the statement of claim had earlier been reproduced in this judgment.

However, Paragraph 6 of the statement of claim stated that the Defendant sometimes in 1970 or thereabout constructed and elevated its Akri Main Access Road leading to her Akri Flow Station which obstructed the cross flow within the seasonal swamp belt and along UTU MIRI ONYA AGUGBO Creek and other adjoining creeks and ponds of the family. The effects of the blockade and obstruction, according to paragraph 7 of the Statement of claim was not only the over flooding of the Claimants fish ponds and farmlands but also the deprivation of water and restriction of aquatic lives on one side of the creek.

What the Claimants must show to come within the jurisdiction of the lower Court is that the matter before the Court is either directly or indirectly connected to mines, minerals or gas as provided under Section 7(3) of the Federal High Court Act No 29 of 2005.
Section 7(1) (n) and 7(3) of the Act provides thus:-
The Court shall to the exclusion of any other Court have original jurisdiction to try civil cause and matters (n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas)
7(3) where jurisdiction is conferred upon the Court under Subsections (1) (2) and (3) of this Section such jurisdiction shall be construed to include jurisdiction to hear and determine all issues relating to, arising from or ancillary to such subject matter.
I have deeply pondered over the claim of the Claimant and I am convinced that it falls under the jurisdiction of the lower Court. Where such jurisdiction is conferred on the Federal High Court, by virtue of Section 7(5) of the said Act it shall not be exercised by any other Court. I am convinced that the lower Court had jurisdiction as rightly held by the learned trial Judge. See NIGERIA AGIP OIL LTD v. OGINI & ORS (2017) LPELR 42663. The access road concerned led to the Defendants Akri Flow Station. It is ancillary to oil mining and so by virtue of Section 7(3) of the Federal High Court Act it is within the jurisdiction of the lower Court.
I resolve this issue in favour of the Respondents.

ISSUE TWO
I have carefully gone through the submission of learned counsel on this issue.

The real grouse of the Appellant on this issue is that the writ of summons served on it was not endorsed as required by Section 97 of the Sheriffs and Civil Process Act.
The contention of the Defendant at the lower Court was that the writ of summons served on it was not endorsed in line with Sheriffs and Civil Process Act.

Paragraph 4(C) of the affidavit sworn to on its behalf by Israel Aseminaso reads thus:
The writ of summons initiating this issue was issued in Owerri, Imo State for service on the Defendant in Port Harcourt, Rivers State. No leave of this Court was obtained before the writ was issued and served and no endorsement that the writ to be served on the Defendant outside jurisdiction was made on the writ before service of it.

It is settled law that where a writ is being contended not to have been properly endorsed as required by Section 97 of the Sheriffs and Civil Process Act, such a writ should be properly tendered and made an exhibit in the case: See ADEGOKE MOTORS LD v. ADESANYA & ANOR (1989) 3 NWLR PART 109 P. 250.
In B.B.N LTD v. S. OLAYIWOLA & SONS LTD (2005) 3 NWLR (PT. 912) 434 at 453, the Supreme Court further held that the failure to make prescribed endorsement on a writ of summons for service out of a State and in another State is a procedural irregularity which was a matter of fact and not law. See also CHRISTABEN GROUP LTD & ANOR v. ONI (2008) 11 NWLR PART 1099 P. 84.
From the record of appeal it was not in doubt that the lower Court made necessary orders as required under Sheriffs and Civil Process Act for the writ to be served on the defendant outside Imo State. The finding of the lower Court on this has not been challenged in this appeal. Such a finding which has not been challenged is unassailable. See ABUBAKAR v. BEBEJI OIL AND ALLIED PRODUCTS LTD & ORS (2007) LPELR 55, ALAKIJA v. ABDULAI (1998) 6 NWLR (PT 552) 1, NWAOGU v. ATUMA (2013) 11 NWLR (PT. 1364) 117. Such finding is binding on the parties.
So what was served on the defendant An endorsed writ of summons or an unendorsed writ of summons It is a fact within the knowledge of the defendant. The burden of proving same was on it.
See Section 140 of the Evidence Act, 2011.

He should have proved same by producing the copy that was served upon it. Its averment in paragraph (4c) of the affidavit sworn to by Israel Azeminaso creates an impression of denial that no leave of Court was obtained and any requisite endorsement was made. It is clear that this is not true. Orders to the effect were made by the lower Court. If the orders were not complied with in the sense that the copies of the Court processes served on the Defendant were not so endorsed it was its duty to exhibit the unendorsed copies. See ADEGOKE MOTORS (supra).
To hold that the averment in paragraph (4c) of its affidavit was uncontroverted and therefore deemed admitted would be unfair since it was not shown to be within the knowledge of the plaintiff that the Court process was not so endorsed.

As for the applicability of Section 97 of Sheriffs and Civil Process Act to the Federal High Court. I am of the respectful view that the Supreme Court case of M.V ARABELLA v. N. A. I. C (2008) 11 NWLR (PT. 1097) 182 so far, it has not been overruled or upturned and the previous earliest decision of this Court applying and following ARABELLAs case (supra) are binding on this Court.

See ROSSEK & ORS v. ACB LTD (1993) 8 NWLR (PART 312) 382 YOUNG v. BRISTOL AEROPLANE CO. (1944) K.B., 718 WARI & ORS v. MOBIL INC. OF AMERICA & ANOR (2013) LPELR 21996. There is need to be reminded that the Federal High Court Rules 2009 remains a subsidiary or secondary legislation which cannot override a primary legislation – Sheriffs and Civil Process Act. The interpretation of the Supreme Court is that Section 97 of the Act applies to the Federal High Court. Until the Supreme Court departs from this interpretation it remains binding on all lower Courts.
I am of the respectful view that the provision of Section 97 of the Sheriff and Civil Process Act is applicable to the Federal High Court. The said provision was complied with by the lower Court. The service of the writ of summons on the Defendant was unimpeachable. I resolve this issue in the circumstance against the Appellant.

This appeal lacks merit it is hereby dismissed Suit No. FHC/OW/CS/155/2011 between Mr. Emmanuel Ojiako & Ors v. Nigerian Agip Oil Company Ltd is hereby remitted back to the lower Court for continuation of trial.
N100, 000.00 cost is awarded against the Appellant.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: This is a sister appeal to Appeal No. CA/OW/250/2012, between Nigeria Agip Oil Company Ltd. v. Mr. Emmanuel Ojiako & Anor. It is instructively important to observe herein, that when the instant appeal came up for hearing together with the said sister appeal, the learned counsel for the parties agreed between themselves and informed this Court, that this appeal will abide the outcome of the aforementioned sister appeal.

In the sister appeal, this Court agreed with the decision of the lower Court, that it has the requisite jurisdiction to entertain and determine the suit of the respondents. And that the appellants objection on the defects complained about with regard to the issuance and service of respondents writ of summons were misconceived and accordingly discountenanced the same.

Based on the fuller reasons given in the said sister appeal, I too also agree with the conclusion reached in the said lead judgment of my learned brother, Hon. Justice Tunde Oyebamiji Awotoye, JCA, that this appeal is utterly lacking in merit and it accordingly stands dismissed.

I abide by the consequential orders made in the lead judgment inclusive of the one made on costs.

ITA GEORGE MBABA, J.C.A.: I had the advantage of reading the draft of the lead judgment, just delivered by my learned brother, T. O. AWOTOYE JCA, and I agree with his reasoning and conclusion, that the Appeal lacks merit. I too dismiss it and abide by the consequential orders in the lead judgment.

Appearances