NIGERIA LIQUIFIED NATURAL GAS LIMITED v. CHIEF BLESSING ONWUKWE
(2019)LCN/13118(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 16th day of April, 2019
CA/PH/351/2017
JUSTICES
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
NIGERIA LIQUIFIED NATURAL GAS LTD Appellant(s)
AND
1. CHIEF BLESSING ONWUKWE
2. MR. ONYE PETER
3. MR. GODDEY OGUBOCHI Respondent(s)
RATIO
DEFINITION OF A MISNOMER
In The Reg. Trustees of the Airline Operators of Nigeria vs. Nigerian Airspace Management Agency (2015) E.J.S.C. 88, ratio 7, the Supreme Court on the meaning of misnomer had this to say:
A misnomer can be said to be a mistake in name i.e. giving incorrect name to a person in the writ of summons. It occurs when a mistake is made as to name of a person who sued or was sued or when an action is brought by or against the wrong name of a person, per Okoro, JSC., (PP 106-107, para. H-C). In EMESPO J. CONTINENTAL LTD. vs. CORONA SHIFCHRTSGESELLSCHAFI (2006) 11 NWLR PT. 991 P. 365, this Court held that a misnomer occurs where the correct person is brought to Court in a wrong name. PER JOMBO-OFO, J.C.A.
WHETHER OR NOT ANY TRIAL OF THE COURT WITHOUT JURISDICTION GOES TO NOTHING
This is for the indubitable reason that any trial of the Court without jurisdiction goes to naught at the end of the day. The lower Court has unfortunately acted in vain. See UAC vs. MacFoy (1962) AC 152, 160; Madukolu vs. Nkemdilim (1962)2 NSCC 34; Okolo vs. Union Bank of Nigeria Plc. (2004) 3 NWLR Pt. 859, pg. 87, 108; Sken Consult (Nig.) Ltd. vs. Ukey (1981) 1 SC. 6; and Rossek vs. ACB Ltd. (1993) 8 NWLR Pt. 312, pg. 182. PER JOMBO-OFO, J.C.A.
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the High Court of Rivers State (hereinafter to be referred to as the lower/trial Court), presided over by coram G. O. Omereji, J., in suit No. AHC/37/2010 delivered 10th April, 2017.
Facts leading to the appeal are that the respondents herein who before the lower Court were joint claimants, vide a writ of summons issued 11th May, 2010 and their Amended Joint Statement of Claim which was further amended pursuant to the leave of the lower Court granted them on 17th July, 2013, sought the following reliefs against the defendant (herein the appellant):
a. A declaration that at all material times, the Umu-Uhulugbala family, Umu-Onwukwe family and Umu-Ejekwu family as joint customary owners are the landlords of the defendant in respect of all that 4.179 hectares of land (Ubeta-Node Junction) the subject matter of this suit.
?b. A declaration that at all material times, the Umu-Uhulugbala family, Umu-Onwukwe family and Umu-Ejekwu family through their heads and representatives merely granted to the defendant an easement, to wit:
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Gas Pipeline Right of Way in respect of the said 4.179 hectares of land at Ubeta Node-Junction, in Ubeta Community of Ahoada West Local Government Area of Rivers State.
c. A declaration that the said compensation receipt and indemnity document executed sometime in 1998 and signed by the representatives of the Umu-Uhulugbala, Umu-Onwukwe and Umu-Ejekwu families was a receipt for and acknowledgement in respect of N2,800,000.00 (Two Million and Eight Hundred Thousand Naira) being and representing payment to the three families for the acquisition of mere easement by the defendant to lay its Gas Pipeline on the said land.
d. A declaration that the acquisition of the said Gas Pipeline Right of Way does not and cannot convey or confer on the defendant any title or ownership of the said land to the exclusion of the Claimants, Umu-Uhulugbala, Umu-Onwukwe and Umu-Ejekwu families of Ubeta Community.
e. A declaration that that construction, installation and erection by the defendant, of concrete/barbed wire perimeter fence, security gate house and metering station on the said Gas Pipeline Right of Way amounts to trespass and/or unconstitutional and illegal
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means by the defendant to deprive the Claimants of their ownership of the said land without payment of any adequate compensation or damages thereto.
f. A declaration that the document(s) including the receipt dated 18/7/1987 purporting to transfer the Claimants? title to the defendant, is null, void and of no effect whatsoever.
g. An order directing the defendant to vacate the Claimants? said land with immediate effect, the defendant having asserted a right which is inconsistent with the right of the Claimants (ownership/landlords)
h. An order directing the defendant to pay to the three (3) families (landlord/owners) of Ubeta Community such compensation as shall be negotiated and agreed upon by the said families and the defendant or the Court which must be based on the full commercial (open market) value of the said 4.179 hectares of land.
i. And/or Claimants further claim against the defendant the sum of N900,000,000.00 (Nine Hundred Million Naira) only, being damages/compensation for the continuing trespass committed on the said 4.179 hectares of land (Ubeta Node ? Junction) by the defendant and N4,000,000 per annum as
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mesne profit with effect from 1998.
j. An order of perpetual injunction restraining the defendant by itself, agents, employees, contractors and whosoever claiming through it or holding in trust for it from doing or continuing any act which is contrary to the terms of the easement of the gas pipeline right of way which the Claimants, Umu-Uhulughala family, Umu-Onwukwe family, and Umu-Ejekwu family of Ubeta Community granted to the Defendant.
(See pages 1 ? 3 and 294 ? 301 respectively of the record of appeal).
?Consequent upon the claimants? amendment of their Statement of Claim, the defendant filed an Amended Statement of Defence on 9th November, 2011 which it also adopted as its response to the claimants? Further Joint Amended Statement of Claim. (See pages 186 ? 189 of the record of appeal). Claimants did not file any reply to the defendant?s Amended Statement of Defence.
In the course of the trial, the claimants called 3 (three) witnesses (CW1, CW2 and CW3) and tendered 16 (sixteen) documents which were admitted in evidence as Exhibits A ? A13, B1 and B2. On its part the defendant called 2 (two)
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witnesses (DW1 and DW2) and tendered a set of documents were admitted and marked Exhibit C. At the close of hearing both parties filed and exchanged Final Written Addresses.
In his considered judgment delivered 10th April, 2017, the learned trial Judge ruled in favour of the claimants and granted them their reliefs a, b, c, d, f, g and h while refusing them relief e. (See page 453 of the record of appeal).
Displeased with the judgment, the defendant/appellant filed its Notice of Appeal to this Court on 26th May, 2017. Pursuant to the leave of this Court an Amended Notice of Appeal filed 20th July, 2017 was deemed properly filed on 24th January, 2018.
Parties before us filed and exchanged their briefs of argument. The appellant?s brief of argument dated 29th September, 2017, filed 6th October, 2017 and was deemed properly before the Court on 31st January, 2019 and the appellant?s reply brief dated 12th February, 2018, filed 16th February, 2018 and equally deemed proper on 31st January, 2019, were each settled by C. E. Eze, Esq. The respondents? brief of argument dated 1st February, 2018, filed 2nd February, 2018 and deemed
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properly filed on 31st January, 2019 was settled by Hamilton Morrison, Esq.
From the 15 (fifteen) grounds of appeal raised in the Amended Notice of Appeal, the appellant distilled the following 6 (six) issues for determination of the appeal:
1. Did the lower Court have the jurisdiction to hear and determine the suit in the face of inhibiting factors such as the subject matter of the suit being within the exclusive jurisdiction of the Federal High Court; the suit having been instituted against a non-juristic person and the cause of action being statute barred? (Distilled from Grounds 1, 2, 3, 4, 5).
2. Did the respondents prove their case as required by law to be entitled to the declarations made in their favour? (Distilled from Grounds 8, 9, 13 and 15).
3. Was the lower Court right to award special damages of mesne profit which were neither pleaded nor proved? (Distilled from Ground 11).
4. Is the award of the sum of N150,000,000.00 (One Hundred and Fifty Million Naira) as damages in this suit not outrageous and unjustified in the face of the respondents? admission of receiving compensation for loss of use of the land in dispute? (Distilled from Ground 10).
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5. Did the lower Court place an unusual herculean burden on the appellant who had no counter claim to disprove the positive assertions of the respondents contrary to the laid down provisions of the law? (Distilled from Grounds 6, 7 and 14).
6. Having regard to the facts and circumstances of the case, were the several orders for amendment made by the lower Court justified? (Distilled from Ground 12).
The respondents on their part considered the following 5 (five) issues as apt for determining the appeal:
i. Whether there is a competent and valid Amended Notice of Appeal before this Court in view of the fact that the Proposed Amended Notice of Appeal, upon which the Amended Notice of Appeal was derived was not signed by anyone or filed at the Court Registry?
ii. Whether from the fact and circumstances of the respondents? case before the Court below, and the applicable laws the said Court was right in law when in its judgment delivered on the 10/04/2017 held that it had the requisite jurisdiction to hear and determine the suit?
iii. Whether the appellant has shown in any way how it has been adversely
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affected by the initial and further amendment of statement of claim at the Court below?
iv. Whether from the available evidence adduced by the parties before it, the Court below was right in law when in its judgment delivered 10/04/2017, held that the respondents had proved their case as to entitle the respondents to the reliefs as contained in their further Amended Joint Statement of Claims?
v. Whether the appellant has suffered any modicum of injustice by virtue of the monetary award made in favour of the respondents as contained in the judgment delivered on the 10/04/2017 by the Court below?
?Before I proceed, I need to observe that in formulating issues for determination in an appeal, the respondents would do well to indicate the specific grounds of appeal from which each of the said issues arise. Again the grounds of appeal must relate or be connected to the judgment appealed against. Be that as it may, I think that the issues as formulated by both parties are similar in all material respect. I am however under compulsion to adopt for determination, issues 1 (one) and 2 (two) as formulated by the respondents, for the obvious reason that they
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touch on the foundation of the appeal vis–vis the Amended Notice of Appeal and by extension the jurisdiction of the lower Court to hear and determine the suit. I shall further adopt the respondents? issues 4 (four) and 5 (five) which will then become issues 3 (three) and 4 (four) respectively for determination. Therefore the issues calling for determination in this appeal are as set out hereunder:
i. Whether there is a competent and valid Amended Notice of Appeal before this Court in view of the fact that the Proposed Amended Notice of Appeal, upon which the Amended Notice of Appeal was derived was not signed by anyone or filed at the Court Registry?
ii. Whether from the fact and circumstances of the respondents? case before the Court below, and the applicable laws the said Court was right in law when in its judgment delivered on the 10/04/2017 held that it had the requisite jurisdiction to hear and determine the suit?
iii. Whether from the available evidence adduced by the parties before it, the Court below was right in law when in its judgment delivered 10/04/2017, held that the respondents had proved their case as to
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entitle the respondents to the reliefs as contained in their further Amended Joint Statement of Claims?
iv. Whether the appellant has suffered any modicum of injustice by virtue of the monetary award made in favour of the respondents as contained in the judgment delivered on the 10/04/2017 by the Court below?
ISSUE (ONE)
Whether there is a competent and valid Amended Notice of Appeal before this Court in view of the fact that the Proposed Amended Notice of Appeal, upon which the Amended Notice of Appeal was derived was not signed by anyone or filed at the Court Registry?
It is the submission of the learned counsel for the respondents that the Proposed Amended Notice of Appeal upon which the Amended Notice of Appeal in this appeal was derived, having not been signed by the appellant or her counsel, is incompetent. Relying on the authorities of Ezenwa vs. K.S.H.M.B. (2011) 9 NWLR Pt. 1251, pg. 89 at 96-97; Aiki vs. Idowu (2006) 9 NWLR Pt. 984, pg 47;Chrisdon NID. Ltd. vs. A.I.B. Ltd. (2002) 8 NWLR Pt. 768, pg. 152; Maku vs. Al-Makura (2016) All FWLR Pt. 832, pg. 1606. R. 3. SC; and A.G. Abia State vs. Agharanya (1999) 6 NWLR Pt. 607, pg.,
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the learned counsel contended that an unsigned document and or pleading including the proposed amended notice of appeal as in the instant case, is as good as a mere piece of paper that must be consigned to the trash can. Counsel noted that there was no evidence of payment of filing fee in respect of the said unsigned Proposed Amended Notice of Appeal and thus is incompetent. In view of the incompetent Proposed Amended Notice of Appeal, the Amended Notice of Appeal filed on 20/7/2017 but deemed as properly filed and served ?34/1/2018? (sic) is also rendered legally defective. See the case of WAEC vs. Akinkunmi (2008) 35 NSCQR 222, 226. To this end learned counsel submitted that the order of this Honourable Court made 24/1/2018 whereby it granted leave to the appellant to amend its notice of appeal as well as the deeming order was made by mistake and the same should be set aside by this Court. He relied on U.A.C. vs. MacFoy (1961) 3 All ER.1169 PC. Counsel urged on us to hold that there is therefore no valid and competent Amended Notice of Appeal pending before this Court and for issue 1 (one) to be resolved in the negative.
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In reaction the learned counsel for the appellant submitted that the respondents did not file and or raise any preliminary objection to this appeal and so issue 1 (one) as formulated and argued by them is incompetent as same does not flow from any of the grounds of appeal. Learned counsel urged on us to discountenance the arguments of the respondents concerning the unsigned Proposed Amended Notice of Appeal as same is a mere exhibit.
RESOLUTION OF ISSUE (ONE)
To begin with and contrary to the submission of the learned counsel for the respondents, the filing fees for the Proposed Amended Notice of Appeal annexed as Exhibit B to the affidavit in support of the appellant?s motion on notice, filed at the lower Court on 20th July, 2018, was duly paid. Endorsement to that effect is contained on the 2nd page of the motion paper where the fee for the 3 (three) exhibits i.e. A, B and C was endorsed as N300.00 (Three Hundred Naira). This is therefore a prima facie evidence that the process was one of the processes duly paid for and filed at the Registry of this Court. However, the Proposed Amended Notice of Appeal which is being attacked by the respondents is admittedly
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un-signed by either the appellant or the legal practitioner on its behalf. Since the said Proposed Amended Notice of Appeal is before the Court as a mere exhibit, it is to my mind inconsequential and of no moment that it was not signed. It is enough that the separately filed Amended Notice of Appeal, being the copy for use by the Court, was duly signed. There is in effect, a competent and valid Amended Notice of Appeal before this Court irrespective of the fact that the Proposed Amended Notice of Appeal, upon which the Amended Notice of Appeal was derived was not signed by anyone. Accordingly issue 1 (one) is resolved against the respondents and in favour of the appellant.
ISSUE (TWO)
Whether from the fact and circumstances of the respondents? case before the Court below, and the applicable laws the said Court was right in law when in its judgment delivered on the 10/04/2017 held that it had the requisite jurisdiction to hear and determine the suit?
The appellant?s submission hereon is that the lower Court was wrong when it assumed jurisdiction to hear and entertain the suit which was filed against a non-juristic person, the subject
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matter was one within the exclusive jurisdiction of the Federal High Court and the cause of action is statute barred. Relying on the authorities of Lion of Africa Insurance Co. Ltd. vs. Mr. & Mrs. E. A. Esan (1998) 8 NWLR Pt. 614, pg. 197; Ataguba & Co. vs. Gura Nig, Ltd (2005) SCNJ 133; and Iyke Merchandise vs. Pfizer Inc. & Anor. (2001) 10 NWLR Pt. 722, pg. 540 at 555 ? 556 SC., the appellant contended that incorporated companies like the appellant can only sue or be sued in their corporate names. Thus, where a sole defendant is sued with a name other than its corporate name, there cannot be said to be a suit properly instituted in the Court as to ignite the jurisdiction of the Court to entertain same. Learned counsel for the appellant canvassed that in the instant case the appellant was sued as Nigeria Liquefied Natural Gas Ltd. (NLNG Ltd) instead of its corporate name which is ?Nigeria LNG Limited?. The appellant submitted that its name as ?Nigeria LNG Limited? is clearly manifest even in Exhibits A3 and A4 (letters from the appellant) tendered and relied upon by the respondents in proof of their case.
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Appellant further submitted that there is no entity in law known as Nigeria Liquefied Natural Gas Ltd. (NLNG Ltd) at the Corporate Affairs Commission and under the Companies and Allied Matters Act. It continued that the respondents? act of suing Nigeria Liquefied Natural Gas Ltd. (NLNG Ltd) which has no juristic personality is a fundamental defect and a feature in the case which prevents the Court from exercising its jurisdiction to entertain the suit.
?On whether the subject matter of the action is within the jurisdiction of a State High Court, the appellant submitted that same is a question of law as parties cannot by consent confer jurisdiction on a Court where same is lacking. See Shitta Bey vs. A.G., Federation (1998) 7 SCNJ 264, 274; and Section 251(1)(n) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Appellant went further to submit that matters relating to oil and gas pipelines are regulated by the Oil Pipelines Act, Cap 07 LFN, 2004 which falls under the exclusive legislative list and the matters therein listed are matters within the exclusive jurisdiction of the Federal High Court.
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See Item 39 of Part 1 of the Second ?Schedule of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Shell Petroleum Dev. Co. Ltd. vs. H.B. Fishermen (2002) 4 NWLR Pt. 758, pg. 505, 518; SPDC vs. Isaiah (2001) 11 NWLR Pt. 723, pg. 168, Section 11 (1), (3) and (5)(a) of the Oil Pipelines Act, Cap 07 LFN, 2004.
Referring to particularly reliefs b, c, d, e and h; 7, 9, 10 and 14 of the respondents? Further Amended Statement of Claim, appellant submitted that the subject matter of the suit is that which pertains to pipelines right of way, laying of oil and gas pipelines and compensation for the land used for laying of such pipelines and as such is within the exclusive jurisdiction of the Federal High Court pursuant to Section 251 (1)(n) of the Constitution supra.
Regarding the issue of the respondents? action being statute barred, the learned counsel for the appellant submitted that for purposes of determining that, recourse is to be had to the Statement of Claim and the Writ of Summons as well as when the suit was filed. See Onadeko vs. U.B.N. Plc. (2005) 4 NWLR Pt. 914, pg. 460; and Ajayi vs. Adebiyi (2012) All FWLR Pt. 634, pg. 21, paras. B-E.
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Counsel contended that where the date on which the action was initiated is beyond or outside the time or period prescribed by the limitation law, then the action is statute barred by the law and it cannot be maintained. SeeAchianga vs. A.G., Akwa Ibom State (2015) 6 NWLR Pt. 1454, pg. 1; and the Limitation Law, Cap 80, Laws of Rivers State, 1999.
The learned counsel for the appellant opined that going by the provisions of Section 1 of the Limitation Law of Rivers State, it is clear that the instant suit which was instituted 13 (thirteen) years after the accrual of the cause of action is statute barred. He therefore urged on us to resolve this issue in favour of the appellant and allow this appeal.
On the converse, the learned counsel for the respondents submitted that in the circumstances of this case the learned trial Court had the requisite jurisdiction to hear and determine the suit. The respondents placed reliance on the following cases: The Registered Trustees of The Airline Operators of Nig. vs. Nig. Airspace Management Agency (2015) EJSC. 88, ratio 7; Geneva vs. Afribank (Nig.) Plc. (2013) All FWLR Pt. 7020, pg. 1652; Adisa vs. Oyinwola (2000)
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10 NWLR Pt. 674, pg. 116 at 305 SC; Dosumu vs. NNPC (2014) 6 NWLR Pt. 1403, pg. 282; Aremo II vs. Adekanye (2004) 13 NWLR Pt. 891, pg. 572 at 580; A.C.N. vs. INEC (2013) NWLR Pt. 1370, pg. 161 at 168; and Administrator/Executors of the Estate of Gen. Abacha vs. Eke-Spiff (2003) 1 NWLR Pt. 800, pg. 114. The learned counsel for the respondents submitted that the appellant cannot rely on a mere letter written by it to show the incorporated or registered name of the appellant. Counsel also contended that a certificate of incorporation by its nature does not qualify as such evidence which could not have been provided at the trial Court without reasonable diligence. He expressed curiosity why the appellant did not at any material time contest the name on record at the lower Court. Learned counsel recalled that the appellant filed its Amended Statement of Defence and other processes, participated in all the proceedings and it is also in the same name on record at the lower Court that the appellant has also brought the instant appeal. See pages 413 ? 439 of the record of appeal. He urged on us to disregard the appellant?s submission that there was no proper or juristic party to the suit.
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See the case of GTB Plc. vs. Innocent (Nig.) Ltd. (2017) 16 NWLR Pt. 1595, pg. 187, ratio 4 SC. Respondents contended that the identity of the appellant who is presently and illegally occupying the respondents? parcel of land (Ubeta Node-Junction) is not in doubt. The identity of the appellant who defended the suit at the trial Court is not also in doubt. Respondents submitted that assuming, though not conceding that the name on record ?NIGERIAN LIQUEFIED NATURAL GAS LTD. (NLNG LTD)? is not the correct name of the appellant, that since the identity of the person (appellant), the respondents intended and actually sued at the trial Court is not in doubt, such mistake as incorrect name constitutes a mere misnomer, the appellant having failed to show how it has been affected by the use of the name on record both at the trial Court and the instant appeal.
Regarding the appellant?s contention that the subject matter is within the exclusive jurisdiction of the Federal High Court, the learned counsel for the respondents submitted that the appellant misconstrued the provisions
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of Section 251(1)(n) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The respondents submitted that the reliefs sought by them in the Court below have nothing to do with the issue of compensation for pollution or damages resulting from mining operations and related matters as contemplated by Section 251(1)(n) of the Constitution. Respondents further canvassed that their positive assertion that the appellant has at no material time whatsoever negotiated for and/or purchased the land in dispute from the said respondents, cannot by any stretch of imagination, be considered as a claim under Section 251 (1)(n) supra.
As to whether the suit is statute barred or not, the learned counsel for the respondents submitted that the suit was not statute barred as canvassed by the appellant. See Charles vs. Gov., Ondo State (2013) 2NWLR P. 244; and Akibu vs. Oduntan (2000) 13 NWLR Pt. 685, pg. 446. They submitted that the cause of action in the suit did not arise until the appellant through its letter of 10/2/2009 i.e. Exhibit ?A? challenged the respondents? title to the land in dispute. The respondents while assuming but not conceding that the cause of
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action arose 10 years before the commencement of the action, contended that the limitation law is inapplicable here, in the sense that the damages arising from the appellant?s illegal use and occupation of the respondents? parcel of land is continuous thereby bringing the action within the known exceptions to the limitation law. Counsel also argued that fraud constitutes an exception to the limitations law and so the appellant cannot avail itself of the limitation law. See Orugbani vs. Santa Sede (Nig) Ltd. (2013) 7 R.S.L.R. 96 at 98. The respondents urged on us to resolve issue 2 (two) in the affirmative.
I am mindful of the appellant?s reply on points of law. I shall however be drawing from it as and when necessary.
RESOLUTION OF ISSUE (TWO)
I deem it pertinent to state outright that the issue of jurisdiction though not raised at the trial Court, can be raised for the first time at the intermediate Court such as this Court and even at the apex Court without its leave. This is settled law which cannot be twisted.
The jurisdiction of the lower Court to try and determine the action that birthed this appeal is what is put
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on the line here. The first prong of attack launched in this regard is the appellant?s argument that it is a non-juristic entity or person not capable of suing or being sued. It thus relied on two of the letters (Exhibits A3 and A4) it wrote to the respondents, to suggest that its registered name is ?Nigeria LNG Limited? as opposed to ?Nigerian Liquefied Natural Gas Limited (NLNG LTD)?, the name the defendant/appellant was sued in.
Indeed the appellant cannot competently and legally challenge its appellation and true identity by placing reliance on mere letter headed papers i.e. Exhibits A3 and A4. The law is trite that the only document legally admissible in proof of an incorporated entity such as the appellant is by production of its Certificate of Incorporation. This is the Supreme Court?s position in the case of Geneva vs. Afribank (Nig.) Plc. (2013) All FWLR Pt. 7020, pg. 1652, wherein it stated clearly that:
No other document will satisfactorily establish the legal personality of an artificial person such as an incorporated liability company than its certificate of incorporation. ?
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The appellant therefore needs a copy of its Certificate of Incorporation as a prima facie proof of its name. As rightly pointed out by the respondents, the appellant fought and defended the action at the lower Court bearing the name ?Nigeria Liquefied Natural Gas Ltd. (NLNG Ltd), without contesting same. I really wonder what has changed between the lower Court and this Court that has brought about the sudden challenge of its name and identity. This turn around posture as is being exhibited by the appellant was deprecated in the authority of Asaboro vs. Aruwaji (1974) 4 SC., where the Supreme Court in its wisdom held as follows:
We are not unmindful of the fact that it would be a dangerous precedent to allow a party who did not call evidence in the lower Court or who for one reason or another had called insufficient evidence at the trial, with comparative case, to bring forward for the first time before this Court the evidence which could and should have been adduced before the trial Court Judge. Such an attitude would be disastrous to the principle of seeing an end to litigation.
?Let us even assume that the respondents sued the appellant in the
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wrong name, the fact remains that there was no mistaken identity of the person or entity they were out to sue. For as long as it was the right person that was sued, any error in the name or appellation of the person will only amount to a mere misnomer which has not touched on the substance of the action. Since the respondents were sure of the identity of the person or entity they were out to sue, it makes little or no meaning that it was sued in the wrong name if at all. In The Reg. Trustees of the Airline Operators of Nigeria vs. Nigerian Airspace Management Agency (2015) E.J.S.C. 88, ratio 7, the Supreme Court on the meaning of misnomer had this to say:
A misnomer can be said to be a mistake in name i.e. giving incorrect name to a person in the writ of summons. It occurs when a mistake is made as to name of a person who sued or was sued or when an action is brought by or against the wrong name of a person, per Okoro, JSC., (PP 106-107, para. H-C). In EMESPO J. CONTINENTAL LTD. vs. CORONA SHIFCHRTSGESELLSCHAFI (2006) 11 NWLR PT. 991 P. 365, this Court held that a misnomer occurs where the correct person is brought to Court in a wrong name. In the instant
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case, the appellant herein actually initiated the suit giving birth to this appeal at the High Court with the name he is now abandoning. All the processes he filed at the Court below bore that name even after the amendment was granted at the High Court. He did not contest that name at the Court below. He has not shown how he has been affected by the use of that name. Let me state emphatically here that when both parties are quite familiar with the entity envisaged in a writ of summons and could not have been misled or have any real doubt or misgiving as to the identity of the person suing or being sued, then there can be no problem of mistaken identity to justify a striking out of the action, A misnomer that will vitiate the proceedings is the such that will cause reasonable doubt as to the identity of the person intending to sue or be sued. The result of all that I have said is that this issue does not avail the appellant at all. (Emphasis supplied).
Having failed to show how it was affected adversely by the use of that name all through at the lower Court and up to this stage, the appellant cannot raise a smoke screen now with its submission that it is a
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non-juristic entity incapable of being sued. The appellant?s contention in that regard is thus over ruled.
As to whether the subject matter of the action was within the jurisdiction of the Rivers State High Court or not, recourse is in the first instance had to the provisions of Section 251 (1) (n) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) wherein it is stipulated that:
251 ?(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as maybe conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters?
(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas);
A careful reading of the writ of summons and the respondents? further amended statement of claim, clearly shows that the subject matter of the suit revolves on title to or ownership of the 4,179 hectares of land, situate at Ubeta-Node-Junction in Ubeta Community and whether the money paid as compensation thereon, yielded
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an outright purchase/sale or mere easement of the same. The claim further involves damages for trespass and perpetual injunction against the appellants for acts seemingly inimical to the ownership right asserted by the said respondents. Thus, what stared the lower Court in the face and upon which it rightly assumed jurisdiction was the issue of customary ownership and/or the entitlement to the land, as opposed to issues arising from mining operations and minerals. The respondents were obviously not seeking compensation for pollution or damages arising from mining operations and related matters as contemplated by the afore-stated provisions of Section 251 (1) (n) of the Constitution. On the contrary their complaint is in challenge of the activities of the appellant on the land which said activities and usage seemingly went beyond the terms of the grant of easement/Gas Pipeline Right of Way for which the land was purportedly let to the said appellant. It is indeed my firm view that the action being purely a land dispute relating to title and or ownership thereto as well as trespass and restrictive injunctive order, is thus within the original jurisdiction of the
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High Court of Rivers State. See the case of Dosumu vs. NNPC (2014) 6 NWLR Pt. 1403, pg. 282 wherein this Court held that:
The Federal High Court has no jurisdiction to entertain land matters or hear and determine any dispute on declaration of title to land. ? It is the State High Court that has original jurisdiction, to the exclusion of the Federal High Court, to entertain an action which is rooted in trespass to land coupled with a claim for perpetual injunction in respect of a disputed parcel of land.
I therefore in the light of the above and to that extent, hold that the learned trial Judge was right to hold in its judgment that he had the requisite jurisdiction to hear and determine the respondents? action which said action borders mainly on declaration of entitlement to the land, damages for trespass thereon and perpetual restraint from further trespass thereon.
Finally on this issue of jurisdiction is the question whether the suit is statute barred. In order to determine this, recourse is had again to the respondents? writ of summons and their further amended statement of claim. See Onadeko vs. U.B.N. Plc. (2005) 4 NWLR
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Pt. 914, pg. 460, paras. E-F; and Ajayi vs. Adebiyi (2012) All FWLR Pt. 634, pg. 21, paras. B-E. Where the date on which the action was initiated is beyond or outside the time prescribed and limited by the limitation law, then the action is statute barred and cannot be maintained. This is the purport of the decision in Achianga vs. Akwa Ibom State (2015) 6 NWLR Pt. 1454, pg. 1.
Whereas the instant case is founded on declaratory claim, the applicable law is the Limitation Law, Cap 80, Laws of Rivers State, 1999 wherein Section 1 thereof provides that an action by a person relating to land shall not be brought after the expiration of 10 years from the date on which the cause of action accrued to the person bringing it or if it first accrued to some person through which he claimed, to that person. This is to say that if an action with respect to land is instituted after 10 years of its accrual, the action will be said to be statute barred and legally unmaintainable. It is thus unavoidable for the Court to take a careful look at the writ of summons and the respondents? further amended joint statement of claim, particularly paragraphs 7, 14, 15, 16 and
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21(a) thereof which I consider instructive in this regard and they read:
7. Sometimes in 1997, the defendant had expressly offered or agreed with the principal heads and the representatives of the above named families to acquire an easement in respect of the said families? lands to wit ?Gas Pipeline Rights of way over 4,179 Hectares of the claimants? farm land (NLNG LTD. NODE-JUNCTION) at Ubeta Community.
14. The claimants aver that as soon as the defendants (sic) was permitted and/or granted easement to lay or install its pipeline, the defendant (appellant) engaged in various activities on the said land which were contrary to the terms of the said compensation receipt and indemnity document executed thereof, including but not limited to the erection of a metering station, security house/post, perimeter fence etc. which constitute acts of trespass on the said land. These unlawful and/or unauthorized activities of the defendant were not paid for.
15. The (sic) aver that they have, at no time, sold, transferred and/or assigned their customary or statutory right of occupancy in respect of the said land to the defendant or anyone else at all material.
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18. The claimants state that the erection and construction of the said perimeter block/barbed wire fence/wall around the said land by the defendant constitutes a poly (sic) by the defendant to assert ownership, exclusive possession and use of the said land. A ploy calculated to deprive the claimants of their legitimate right of ownership and peaceable enjoyment of the said land, as same activities were not authorized by the claimants. Copies of the photographs of the said wrongful activities of the defendant on the said land are hereby pleaded and same shall be relied upon at the trial of this suit.
21(a) The claimants further aver that the defendant, in her bid to confiscate and appropriate the claimants? title to the said land in dispute, has fraudulently procured instruments/receipts and/or documents purported to transfer the claimants? said title. Photostat copy of the receipt dated 18/7/97 purportedly executed on behalf of the claimants in favour of the claimants? lawyer/agent (as at 1997), is hereby pleaded and shall be relied upon at the trial. ?.. (Emphasis mine).
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[See pages 294 ? 301 of the record of appeal].
It is clear from the foregoing that the cause of action accrued in 1997 given regard to the fact that cause of action is the bundle of aggregate facts which the law recognizes as giving the plaintiff a substantive right to seek relief or remedy against the defendant. Cause of action is said to accrue from the date on which the incident giving rise to the claimant?s claim(s) occurred. Such facts or combination of facts which would metamorphose into a right to sue may consist of two elements:
a. The wrongful act of the defendant which gives the claimant the cause to take action; and
b. The consequential damages. See the cases of Charles vs. Gov., Ondo State (2013) 2 NWLR Pt. 244; Akibu vs. Oduntan (2000) 13 NWLR Pt. 685, pg. 446; Eboigbe vs. NNPC (1994) 5 NWLR Pt. 347, pg. 649, 659; and A.G., Lagos State vs. Eko Hotels Ltd. (2006) 18 NWLR Pt. 378, 591.
?It is the averment of the respondents that it was as soon as the appellant was permitted or granted easement to lay or install its gas pipeline, which grant was in 1997, that the said appellant engaged in various other activities on
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the said land which were contrary to the terms of the compensation receipt and indemnity document executed thereof. Such other activities included but not limited to the erection of a metering station, security house/post, perimeter fence etc. which constitute acts of trespass on the said land. These activities amongst others make up the aggregate facts which when proved by the respondents would entitle them to the reliefs sought by them against the appellant. See further the authorities of Archianga vs. A.G., Akwa Ibom State (2015) 6 NWLR Pt. 1454, pg. 1; Egbue vs. Araka (1988) 3 NWLR Pt. 84, pg. 598; Thomas vs. Olufosoye (1986) 1 NWLR Pt. 18, pg. 669; Akilu vs. Fawehinmi (No. 2) (1989) 2 NWLR Pt. 102, pg. 122; and Oshoboja vs. Amuda (1992) 6 NWLR Pt. 250, pg. 690.
?Since the cause of action is found to have accrued at about 1997, while the writ of summons herein was taken out on 11th May, 2010, it follows that the said respondents lost their right to judicial redress 3 years before it took action. This is to say that the said right to legal remedy elapsed in the year 2007 which was 10 years after the accrual of action in 1997. Limitation statutes are
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enacted for purposes of restricting the time within which an aggrieved person may institute or pursue his cause of action through judicial process. The purport of this is to ensure that there is an end to litigation. Having failed to seek redress between 1997 when the cause of action accrued and 2007 when their right of action lapsed, it follows that the instant suit as constituted had become statute barred and unmaintainable in the Court of law. This being the case, the learned trial Court was stripped of the requisite jurisdiction to entertain and determine the suit as it were before it. In that regard, the learned trial Judge ought to have struck out the action rather than determine same. This is for the indubitable reason that any trial of the Court without jurisdiction goes to naught at the end of the day. The lower Court has unfortunately acted in vain. See UAC vs. MacFoy (1962) AC 152, 160; Madukolu vs. Nkemdilim (1962)2 NSCC 34; Okolo vs. Union Bank of Nigeria Plc. (2004) 3 NWLR Pt. 859, pg. 87, 108; Sken Consult (Nig.) Ltd. vs. Ukey (1981) 1 SC. 6; and Rossek vs. ACB Ltd. (1993) 8 NWLR Pt. 312, pg. 182.
?It is in the light of this development,
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that the issue whether from the fact and circumstances of the respondents? case before the Court below, and the applicable laws the said lower Court was right in law when in its judgment delivered on the 10/04/2017 it held that it had the requisite jurisdiction to hear and determine the suit, is answered in the negative. I am saying that much as the subject matter of the action as constituted is found to be within the jurisdiction of the said lower Court, this same jurisdiction like a Greek gift is taken from it by the fact that the cause of action had become statute barred as at the time the action was instituted before it in the year 2010. Issue 2 (two) is consequently resolved in favour of the appellant and against the respondents.
With my finding that the lower Court acted without the requisite jurisdiction, and for which the trial is a nullity in its entirety, I am equally robbed of the jurisdiction to continue with the determination of the remaining issues that were distilled for determination. My stance is emboldened by the decision of the ultimate Court of the land in the case of Dr. Okey Ikechukwu vs. FRN (2015) 7 NWLR Pt. 1457, pg. 1,
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per Nweze, JSC. where at pg. 21, paras B-G and Pg. 22, para. C, he held thus in the leading judgment:
As a general rule, an intermediate Court, like the Court of Appeal has a duty to pronounce on all the issues before it. However, there are exceptions to the foregoing rule. Thus, for example, where the Court of Appeal decides that it lacks jurisdiction in an appeal before it, it becomes unnecessary for the Court of Appeal to consider other issues. In this case, the Court of Appeal upheld the 1st Respondent?s Preliminary Objection to the competence of the Appellant?s appeal. In the circumstance, it was unnecessary for the Court of Appeal to consider the arguments in support of the issues for determination distilled by the parties to the appeal..
In summation, this appeal is imbued with merit and is therefore allowed. Consequently, the judgment of the High Court of Rivers State, per Hon. Justice G.O. Omereji, J., delivered 10th April, 2017 in suit No. AHC/37/2010, is hereby set aside same having been determined without the requisite jurisdiction.
?BITRUS GYARAZAM SANGA, J.C.A.: I agree
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ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother CORDELIA IFEOMA JOMBO OFO, JCA, and I am in total agreement with the reasoning and conclusion reached therein. I have nothing useful to add.
The appeal is allowed by me and the Judgment of the trial Court is hereby set aside having been delivered without the requisite Jurisdiction. I abide by all other consequential orders.
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Appearances:
G. I. Abibo, SAN with him, C.E. Nwokorie, Esq., C. S. Maduba, Esq. F.G. David-Iga, Esq. and C.P. Ezagwu, Esq.For Appellant(s)
R.A. Anyawata, Esq. with him, Hamilton Morrison, Esq.For Respondent(s)
Appearances
G. I. Abibo, SAN with him, C.E. Nwokorie, Esq., C. S. Maduba, Esq. F.G. David-Iga, Esq. and C.P. Ezagwu, Esq.For Appellant
AND
R.A. Anyawata, Esq. with him, Hamilton Morrison, Esq.For Respondent
