REV. ISAAC WALTER OKONI v. NIGERIAN AGIP OIL CO. (NIGERIA) LTD
(2012)LCN/5252(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of March, 2012
CA/PH/131/2009
RATIO
JURISDICTION: WHETHER ANY CAUSE OF ACTION THAT ARISES IN THE COURSE OF AND ANCILLARY TO THE OIL PROSPECTING ACTIVITIES FALLS SQUARELY WITHIN THE JURISDICTION OF THE FEDERAL HIGH COURT
This court and indeed the Supreme Court have had occasions to expound on the jurisdiction of the lower court as it avails under S 230 of Decree 107 of 1993 and S.7 (1) (n) and 3 of Decree No 60 of 1991 applicable to the facts of the case at hand. See Barry v. Eric (1998) 8 NWLR (Pt.562) 404 Shell Petroleum Dev. Co. v. Isaiah (2001) 5 SC (Pt.11) 1 and SPDC (Nig.) Ltd Lalibo (2009) 14 NWLR (PT.1162) 564. The decision in all these cases is that any cause of action that arises in the course of and ancillary to the oil prospecting activities of the defendant falls squarely within the jurisdiction of the Federal High Court by virtue of the provisions in the two Decrees. In Shell Pet. Dev. Co. v. Isaiah (supra), the Supreme Court reasoned thus: “In establishing whether the construction and maintenance of an oil pipeline is part of mining operations, it is relevant to refer to the practice of the oil prospecting licence holders during mining operations. These have been described in the Petroleum Act 1960 and Oil Pipeline Act 1956. If petroleum is discovered through the approved mining operations, arrangement is made by the oil prospecting licene holder, which struck the oil, to evacuate the oil from the oil well to an oil terminal. This is done either through a pipeline or a tanker. The pipeline is constructed and maintained by the Oil Company which transport the oil from oil-well to the oil terminal. Thus the most important aspect of oil mining operation is the construction of oil pipeline for the evacuation of the crude oil to the oil terminal through an oil pipeline. The holder of an oil pipeline licence has been made responsible under the law to pay compensation to any person whose land or interest in land or who suffers any damage in connection with the operation of the pipeline For the foregoing reasons, the construction, operation and maintenance of an oil pipeline by a holder of oil prospecting licence is an act pertaining to mining operation. It is clear from the pleadings that the spillage and pollution occurred when the appellant was trying to repair the indented pipelining by cutting off the said section and installing a new section. Therefore if an incident happens during the transmission of petroleum to the storage tanks it can be explained as having arisen from or connected with or pertaining to mines, and minerals, including oil fields, and oil mining. I therefore agree that the subject matter of the respondent’s claim falls within the exclusive jurisdiction of the Federal High Court as it provided under section 230(1) (0) of constitution (Suspension and Modification) Decree No.107.” Concurring, Ogbuegbu JSC stated as follows:- “For the Federal High Court to have exclusive jurisdiction under section 7 (1) (p) or the Federal High Court (Amendment) Decree, 1991, the cause or matter should be connected with or pertain to mines and minerals, including oil field, oil mining, geological surveys and natural gas and the jurisdiction shall be construed to include jurisdiction to hear and determine alt issues relating to, arising from or ancillary to mines and minerals, oil field oil mining et cetera. Per. MUSA DATTIJO MUHAMMAD, J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
REV. ISAAC WALTER OKONI Appellant(s)
AND
NIGERIAN AGIP OIL CO. (NIGERIA) LTD Respondent(s)
MUSA DATTIJO MUHAMMAD, J.C.A. (Delivering the Leading Judgment): By its ruling delivered on the 24th day of November 2008, the Federal High Court sitting at Port Harcourt dismissed suit No. FHC/PH/CS/1352/2006 commenced by the Appellant herein for being statute barred. Dissatisfied, the plaintiff at the lower court has appealed against the court’s decision by his Notice filed on 1st December 2008 containing three grounds.
Parties have filed and exchanged their briefs of argument including appellants reply brief.
The two issues the appellant identified in his brief as having arisen for the determination of the appeal read:
“4.1 Whether the appellants action as encapsulated at paragraphs 5, 6 and the relief in the amended statement of claim falls within the jurisdiction of the Federal High Court (Ground 3)
4.2 whether in law there is an action for continuing trespass and if so whether such action (as in the appellants case) could be statue barred by virtue of the limitation Law Cap 80 of the law as of Rivers State 1999. (Grounds 1 & 2)”
The respondent agrees that the consideration of the two issues distilled by the appellant as reproduced above shall determine the appeal.
Chief Egele settled the appellant’s brief and argued the appeal as well. He adopted the brief as their arguments for the appeal.
On the 1st issue learned counsel contends that the lower courts jurisdiction over appellant’s action is determinable from appellant’s amended statement of claim as well as the relief he seeks. He relies on AG Kwara v. Olawale (1993) 1 NWLR (Pt.272) 645 at 663 and Jowitts Dictionary of English Law 2nd Edition by John Burke, page 297. He submits that from the claim it is clear that respondent’s trespass in respect of which the appellant seeks damages arose from, pertained to, is connected with or ancillary to mines, minerals, and oil mining carried out by the appellant. S.251 (1) (n) of the 1999 Constitution S.7 (6) of Decree No. 60 of 1991, and Decree No. 107 of 1993, argues learned counsel, confer jurisdiction on the Federal High Court in respect of appellant’s cause of action. The respondent being a holder of a mining lease is, under these legislations, liable for any damages caused any person regarding that person’s interest in land following the operation of the former as a pipeline operator.
On their 2nd issue, learned counsel submits that the Rivers State Limitation Law CAP 80 of 1999, by virtue of S 4 (2) and item 68 and 69 of the 2nd schedule of the 1999 Constitution as amended does not apply to matters in respect of which the National Assembly has Exclusive legislative powers. Since in the instant case Federal Legislations have provided for the matter in controversy between the parties, a state legislation cannot be invoked to negate the operation of the Federal law. The plethora of decisions relied upon by learned counsel to buttress his point includes Nuhu v. Ogele 2004 FWLR (Pt.193) 362 AT 379, AG Ondo State v. AG Federation (2002) FWLR (Pt 111) 1972 at 2145 -2146. Osadebey v. AG Bendel State (1991) 1 NWLR (Pt.169) 525 at 5995; Ogbuniya v. Okudo 2001 FWLR (Pt.72) 1987 at 1999 and Shell Petroleum Dev. Co. v. Farah (1995) 3 NWLR (PT.382), 148 at 200 – 201 paras A – E.
Further arguing the appeal, learned appellant counsel contends that the facts in Etim v. IGP (2000) FWLR (Pt.21) 767 being dissimilar from those in the instant case, the lower court is wrong to have relied on that decision in declining jurisdiction.
Concluding, learned counsel submits that the lower court, given S22 (2) of the Federal High Court Act, rather than dismiss appellant’s case should have transferred same to the High Court of Rivers State. It is urged that the appeal be allowed.
Under the 1st issue for the determination of the appeal, learned respondent’s counsel concedes that in considering whether or not a court has jurisdiction, it is the plaintiffs claim as endorsed on the writ of summons or statement of claim that a court considers. In the instant case, learned counsel submits, by paragraphs 5 and 6 of appellant’s amended statement of claim and the relief being prayed the lower court, appellant’s action clearly arises from respondent’s alleged trespass on the former’s land. The lower court by S39 and 41 of the land use Act clearly lacks the jurisdiction to entertain such claim. Counsel supports his contention with Omotesho v. Abdullahi (2008) 2 NWLR (Pt.1072) 526 and Okoroma v Uba (1999) 1 NWLR (Pt.587) 359 at 363. Where a court lacks the jurisdiction to entertain the main claim, learned respondent counsel further argues, it cannot delve into such ancillary claims, the determination of which will inevitably lead to consideration of the main claim. Learned counsel cites Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 567. Relying on Omaliko v. Awacline (2002) 12 NWLR (Pt.780) 1 at 23. Learned respondents counsel contends that it does not avail the appellant to raise the issue of the lower court’s failure to transfer the case to the State High court as same had neither arisen from the decision appealed against nor from any of its grounds of appeal. The issue being a fresh one for which no leave had been obtained from this court, it is urged, should be discountenanced. The 1st issue, learned counsel submits, be resolved against the appellant.
On the 2nd issue, while conceding that there could be an action based on a defendant’s continuing trespass, learned respondent’s counsel submits that the lower court can only determine such action if it has the jurisdiction to. The decision in Adepoju v. Oke (supra) Aremo 11 v. Adekanye, (supra) Okotio v Obioru (supra) and Obueke v. Nnamchi (supra), submits learned counsel, do not help the appellant since in all the cases those trial courts had jurisdiction to hear and determine the claim for trespass simpliciter or of the continuing type. The lower court’s jurisdiction, learned counsel further emphasizes, is limited’ But even if it is conceded that the lower court has jurisdiction in respect of trespass, appellant’s cause of action that arise in 1994 had by 3-2-2006, by virtue of the Rivers state limitation law become statute barred and unenforceable. Learned counsel supports his contention with Odubeko v Fowler (1993) 7 NWLR (Pt.308) 637 Ekeogu v. Ahiri (1991) 3 NWLR (Pt.179) 258, FRN v. Gold (2007) 11 NWLR (Pt.1044) 1 at 18 and Elabanjo & Anor v. Dawodu (2006) 6 – 7 SC 24 at 56. In concluding, learned respondent counsel maintains that by appellant’s pleading, the action in respect of which the lower court declined jurisdiction is on simple trespass. None of the averred facts pertains oil spillage for which either S.251 (1) N of the 1999 constitution as amended or the Petroleum Act has provided. Whichever way one looks at the ruling of the lower court, respondent counsel argues, it remains unassailable. He prays that the issues as well as the appeal be resolved against the appellant.
It seems to me that the question this appeal raises is whether the lower court has jurisdiction over appellant’s cause of action and, in the event of an affirmative, answer to the question, if the cause of action has, by the operation of the Rivers state limitation Law, become statute barred and unenforceable.
Both counsel are one, and rightly too, that the question of a court’s jurisdiction over an action is determinable by reference to the facts and relief sought in the plaintiff’s claim. Thus in considering whether a court has jurisdiction to entertain a matter the court is guided by the writ of summons, and statement of claim which it examines critically against the background of the jurisdiction statutorily conferred on the court in order to arrive at a decision other. In addition to the cases cited and relied by both one way or the counsel on this principle, see also Lufthansa Airlines v. Odiese (2006) 7 NWLR (Pt.978) 39, Nkuma v. Odili (2006) 6 NWLR (Pt.977) 587 SC; Gafar v. Government of Kwara state (2007) 4 NWLR (Pt.1024) 375 S and Onuorah v. K.R.P.C. (2005) 6 NWLR (Pt.921) 393.
The law applicable to appellant’s cause of action, See Adesina v. Kola (1993) 5 NWLR (Pt.298) 182 at 185 and Abel Isaiah & 2 Ors. v. Shell Petroleum Development Company of Nigeria Ltd (2001) 5 SC (Pt.11) 1 is the law in force in 1994 when Appellant’s cause of action arose. This is contained in section 230 of Decree No.107 of 1993 and the section 7 of the Federal High Court (Amendment) Decree No 60 of 1991. Whereas the former came into force on 26th November 1993, the latter into operation on the 26th August 1993. The provisions in the two decrees are ipsima verba (pari materia) with 5251 (n) of the 1999 Constitution and S.7 (1) (n) and (3) of the Federal High Court (Amendment) Act CAP F12 hereunder reproduced for ease of reference:
S251 (1) (n) of the 1999 Constitution provides as follows:
“(1) Notwithstanding anything to the contrary in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise to the exclusion of any other court in civil causes and matters-
(n) Mines and minerals (including oil fields, oil mining geological surveys and natural gas)
Section 7 (1) (n) (3) of the Federal High Court (Amendment) Act CAP F12 provide:
‘(1) The court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters-
(n) Mines and minerals including oil fields, oil mining, geological surveys and natural gas.
(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” (underlining supplies for emphasis)
The appellant has in paragraphs 5 and 6 of his amended statement of claim averred as follows:
“(5) On or about June, 1995, the defendants oil pipeline (Ogoda/brass Oil Pipe line at Emago – Kugbo near plaintiffs Rubber plantation) got ruptured which resultant effect was on oil spillage; the defendant investigated the oil spillage and found it to be as a result of sabotage. Plaintiff shall of the trial rely on defendants Safety and Environment Department Ebocha – Ogoda – Brass Pipeline spilt status Report 1990 March to 1995 and the defendant is hereby…/2 given a notice to produce.
(6) As a result of the said oil spillage (which was as a result of sabotage), the defendant in its bid to seal/cork the spill point as well as evacuate the said Crude oil without the consent of the plaintiff trespassed into part of plaintiff’s Rubber plantation and cleared 2.10 Hectares (5.19 Acres) of some and used the cleared portion as an air strip/landing pad or Helipad for its Helicopters, which transported its equipment for the clamping of the spill point. The area the defendant trespassed into is verged Red and marked CAUSE OF ACTION in the statement of claim.”
In AG, Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552 SC, the Supreme Court has defined jurisdiction as the limits imposed on the powers of a validly constituted court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues, or to the persons between whom the issues are joined or to the kind of relief sought. The same court has further emphasized in Okulate v. Awosanya (2000) 1 SC 107 and messrs N.V. Scheep v. MV ‘S Avaz’ (2000) 12 SC (PT.1) 164 that courts being creatures of statutes, the statutes which particularly bring them into being confer the courts with their jurisdiction and/or extent and restrict same.
This court and indeed the Supreme Court have had occasions to expound on the jurisdiction of the lower court as it avails under S 230 of Decree 107 of 1993 and S.7 (1) (n) and 3 of Decree No 60 of 1991 applicable to the facts of the case at hand. See Barry v. Eric (1998) 8 NWLR (Pt.562) 404 Shell Petroleum Dev. Co. v. Isaiah (2001) 5 SC (Pt.11) 1 and SPDC (Nig.) Ltd Lalibo (2009) 14 NWLR (PT.1162) 564. The decision in all these cases is that any cause of action that arises in the course of and ancillary to the oil prospecting activities of the defendant falls squarely within the jurisdiction of the Federal High Court by virtue of the provisions in the two Decrees.
In Shell Pet. Dev. Co. v. Isaiah (supra), the Supreme Court reasoned thus:
“In establishing whether the construction and maintenance of an oil pipeline is part of mining operations, it is relevant to refer to the practice of the oil prospecting licence holders during mining operations. These have been described in the Petroleum Act 1960 and Oil Pipeline Act 1956. If petroleum is discovered through the approved mining operations, arrangement is made by the oil prospecting licene holder, which struck the oil, to evacuate the oil from the oil well to an oil terminal. This is done either through a pipeline or a tanker. The pipeline is constructed and maintained by the Oil Company which transport the oil from oil-well to the oil terminal. Thus the most important aspect of oil mining operation is the construction of oil pipeline for the evacuation of the crude oil to the oil terminal through an oil pipeline. The holder of an oil pipeline licence has been made responsible under the law to pay compensation to any person whose land or interest in land or who suffers any damage in connection with the operation of the pipeline
For the foregoing reasons, the construction, operation and maintenance of an oil pipeline by a holder of oil prospecting licence is an act pertaining to mining operation.
It is clear from the pleadings that the spillage and pollution occurred when the appellant was trying to repair the indented pipelining by cutting off the said section and installing a new section. Therefore if an incident happens during the transmission of petroleum to the storage tanks it can be explained as having arisen from or connected with or pertaining to mines, and minerals, including oil fields, and oil mining. I therefore agree that the subject matter of the respondent’s claim falls within the exclusive jurisdiction of the Federal High Court as it provided under section 230(1) (0) of constitution (Suspension and Modification) Decree No.107.”
Concurring, Ogbuegbu JSC stated as follows:-
“For the Federal High Court to have exclusive jurisdiction under section 7 (1) (p) or the Federal High Court (Amendment) Decree, 1991, the cause or matter should be connected with or pertain to mines and minerals, including oil field, oil mining, geological surveys and natural gas and the jurisdiction shall be construed to include jurisdiction to hear and determine alt issues relating to, arising from or ancillary to mines and minerals, oil field oil mining et cetera.
The verb “connected” is defined in Black’s Law Dictionary, 6th ed. as
‘joined; united by junction, by an intervening substance or medium, by dependence or relation, or by order in a series.’
Whereas the verb “pertain” is defined in Longmen’s Dictionary of contemporary English to mean “to belong or have connection it with (something)…
From the facts established, there is close affinity between oil spillage which is the cause of action and section 7 (1) (p) of the 1991 Decree. The words of section 7(1) of the aforesaid Decree are plain and unambiguous and I have no hesitation in giving them their natural and ordinary meaning in Industries Ltd. (1967) 2 All E.R. 1137 at 1141.”
In C.G.G (Nig) Ltd v. Asaagbara (2001) 1 NWLR (pt 693) 155 this court per pats – Acholonu of blessed memory had earlier held:
“Any unsavoury result is actionable in consequence of the activities of the companies engaged in operation and relating to prospection in oil, mines, minerals, gas exploration and related geophysical works or activities comes within the exclusive jurisdiction of the Federal High Court.
In this regard pollution caused by oil spillage comes within the exclusive jurisdiction of the Federal High Court. This is because it is the pipelines that carry the oil. When the pipelines burst and spill all over the place, such an accident arises from the natural usage of the pipelines connected with and pertaining to mineral oil prospecting and pipelines carriage.”
In the instant case, therefore, the unauthorized entry into appellant’s land by the respondent in the course of the maintenance of the oil pipeline by the respondent who is a holder of oil prospecting licence sufficiently brings appellant’s cause of action under the clear and unambiguous words of 7 (1) (p) and 3 of Decree No 60 of 1991 resultantly clothing the lower court with the exclusive jurisdiction to hear and determine same.
Learned respondent counsel has relied on Tukur v. The Government of Gongola State supra and argued vociferously that appellant’s cause of action being an ancillary claim is outside the jurisdiction of the lower court. Learned counsel seem to have ignored subsection 3 of section 7 of Decree No 60 which provide:
‘(3) where jurisdiction is conferred upon the court under subsection (1) and 2 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.” (Underlining supplied for emphasis)
I have already held that appellant’s cause of action has arisen in relation to and consequent upon the operation of and maintenance of Oil pipeline by the respondent. I do not concede I am wrong in this wise. In case l am, it is inescapable a conclusion that the factual situation averred to in paragraphs 5 and 6 of appellant’s amended statement of claim are ancillary to the subject matter provided for under S 7 (1) (p) of Decree No 60 of 1991. We must succumb to the principle enunciated in NV Scheep v. MV ‘S Araz’ supra that where an enabling statute confers on the court the jurisdiction over ancillary matters the court’s competence in relation to such ancillary causes ceases to be an issue. I so state.
As to the 2nd limb of the issue in this appeal, with due deference, the learned trial judge is wrong to have held that the jurisdiction of the lower court over appellant’s cause of action as provided for by Decrees 60 of 1991 and 107 of 1993 has by the operation of the Rivers State limitation Law become unenforceable. Being an inferior legislation to these Decrees, the state law certainly lacks the potency of taking away the jurisdiction donated by the superior legislations which the two Decrees are. Being inconsistent with the two, the state law is void to the extent of that inconsistency. See Bronik Motors Ltd v. Wema Bank Ltd (1983) 14 NSCC 226 (1983) 5 SC 158.
In Okulate v. Awosanya (supra) at page 550 of the law report Ogundare JSC report has this to say on the principle:
“No doubt the proviso to section 10(1) ousts the original jurisdiction of the High Court of Ogun State from entertaining the matters therein mentioned including one relating to family status. Section 236(1) gave the High Court of a State, subject to the provisions of the Constitution, unlimited jurisdiction to hear and determine any civil proceedings what the proviso to section 10(1) of the High Court of Ogun State purports to do is to derogate from the jurisdiction conferred on the High Court of Ogun State by section 236(1) of the 1979 Constitution. Being a State Law, that it cannot do. The proviso is clearly inconsistent with the clear provisions of section 236 (1) and to the extent of the inconsistency, it is void – see section 1 (3) of the 1979 Constitution set out above. The High Court Law of Ogun State is, by virtue of section 274(1) of the 1979 Constitution an existing law deemed made by the House of Assembly of a State had no power to enact any Law that ousted or purported to oust the jurisdiction of a Court of law. The conclusion I reach, therefore, is that the proviso to section 10(1) of the High Court Low of Ogun State is null and void. Being void, therefore, the contention of the appellants that the trial High Court had no original jurisdiction in this matter is untenable and I reject it. That Court property exercised the jurisdiction vested in it by section 236(1) of the 1979 Constitution.”
Ejiwumi JSC of blessed memory appears more succinct on the point when at page 555 of the report he stated thus:
“It cannot be argued that the said provisions of Order 10(1) of the Ogun State High Court Law is anywhere a part of the Constitution of 1979. The fact that the Constitution created the High Courts of a State does not in my humble view empower any of the States of the Federation to make any law that conflicts with the provisions of the Constitution. The tail cannot be seen to be wagging the dog. It follows from what I have said above that the Court below was right to have held that the High Court is entitled to take, hear and determine any issue brought for determination by a litigant in exercise of his legal right.” Underlining for emphasis.
See also our unreported decision in Appeal No.CA/PH/84/2010 delivered on 30/1/2012, between Dadoru Banson v. Mobil Producing (Nig) Unlimited.
The ruling of the lower court for all the foregoing is perverse. It is accordingly set aside.
Finally, having held the ruling appealed against erroneous, the effect of the lower court’s failure to invoke its powers under S22(2) of Federal High Court Act CAP 12 of transferring the appellant’s matter to the Rivers state High court ceases to be relevant. It is thus discountenanced.
On the whole, I find merit in this appeal. Suit No.FHC/PH/CS/30/2006 is, resultantly, remitted back to the Chief Judge of the Federal High Court for same to be determined on the merits.
The appellant is entitled to N50,000 naira as costs of the appeal. Same is ordered in his favour against the respondent.
HON. JUSTICE P. A. GALINJE, J.C.A.: I have read before now the lead judgment of my learned brother, Muhammad OFR PJCA and I agree with the reasoning contained therein and the conclusion arrived thereat.
The appeal is meritorious and it is allowed by me
I endorse all the consequential orders made therein, including order as to cost.
T. O. AWOTOYE, J.C.A.: I entirely agree.
Appearances
Chief F. F. Egele with T. R. Warmate Esq.For Appellant
AND
T. J. Krukrubo Esq. with M. E. Ugbeta Esq.For Respondent
