SHELL (NIG) EXPLORATION AND PRODUCTION CO. LTD v. NOSDRA
(2021)LCN/15564(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, February 26, 2021
CA/L/873/2018
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Between
SHELL NIGERIA EXPLORATION AND PRODUCTION COMPANY LIMITED APPELANT(S)
And
NATIONAL OIL SPILL DETECTION AND RESPONSE AGENCY (NOSDRA) RESPONDENT(S)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, sitting in Lagos, Coram C. M. A. Olatoregun, J., delivered on 24th May, 2018 dismissing the appellant’s originating summons.
By an originating summons filed on 27/4/2016, the appellant as plaintiff raised the following questions for the determination of the lower Court:-
1. Having regard to the clear and unambiguous provisions of Section 1(3), 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (Constitution), whether the defendant can validly exercise the powers purportedly donated by Sections 5, 6, 7, 19 and 26 of the National Oil Spill Detection and Response Agency (Establishment) Act, 2006 (NOSDRA Act), in a manner that encroaches on the judicial powers exclusively vested in the Courts established under the Constitution and the legislative powers vested in the National Assembly?
2. Further to (1) above, and considering the express tenor of Sections 1(3), 4, 5 and 6 of the Constitution, when read together with Section 26 of the NOSDRA Act, whether the defendant’s promulgation of regulations 25, 26 and 27 of the Oil Spill Recovery, Clean-up, Remediation and Damage Assessment Regulations (OSDAR Regulations) is not ultra vires its subsidiary rule-making powers and an encroachment on the legislative powers of the National Assembly, as well as the judicial powers of the Courts established under the Constitution?
3. Having regard to the express provisions and dictates of Section 36 (1), (2) and (12) of the Constitution, whether the defendant can exercise any of the powers purportedly donated under Section 5, 6, 7, 19 and 26 of the NOSDRA Act to create and to determine any obligation and/or liability and to determine/impose any levy/fine/penalty/compensation or damages to be payable by the plaintiff without adequate provision for the rights to fair hearing and of appeal?
4. Whether the defendant can validly exercise any powers pursuant to its objectives and functions under Sections 5, 6, 7 and 19 of the NOSDRA Act in contravention or violation of the express tenor of Sections 36 (1), (2), (12), 43 and 44 of the Constitution?
5. Having regard to the express provisions of Sections 5, 6, 7 and 19 of the NOSDRA Act as well as regulations 25, 26 and 27 of the OSDAR Regulations, whether the defendant is vested with any powers to impose any fine/levy/penalty/compensation or other payments to be made payable by the plaintiff in respect of any oil spill incidence, particularly the Bonga Oil Spill of 20 December, 2011?
6. Further to (5) above, whether the contents and purport of the defendant’s letters of 19th December, 2014 and 25th March, 2015, are not ultra vires the duties and functions of the defendant and therefore unconstitutional, null, void and of no effect whatsoever?
7. Considering the express provisions of Sections 6, 36 (1) and 251 (1) (n) of the Constitution, whether any other Court or body can exercise jurisdiction to determine liability and to assess, determine, impose and direct the payment of any sum as penalty/levy/damages/compensation in respect of or in connection with an incidence of oil spillage, particularly the Bonga Oil Spill of 20th December, 2011, save for the Federal High Court?
8. Considering the decision embodied in and conveyed by the defendant’s letters of 19th December, 2014 and 25th March, 2015, particularly the determination of the plaintiff’s civil obligation thereby, whether the procedure leading to the decision of the defendant to impose a fine/levy/penalty/compensation of $3,600,191,206.00 (Three Billion, Six Hundred Million, One Hundred Ninety One Thousand, Two Hundred and Six US Dollars) or any amount on the plaintiff is not in breach of the plaintiff’s rights as enshrined in Section 36 (1), (2), (3), (12), 43 and 44 of the Constitution?
9. Further to (8) above, whether the defendant’s letters of 19th December, 2014 and 25th March, 2015, embodying and conveying the decision of the defendant imposing a fine/penalty/levy/compensation on the plaintiff, do not constitute a breach of Sections 4, 5, 6 and 36 of the Constitution and therefore null, void and of no effect whatsoever?
10. Considering the clear provisions of Section 318 (4) of the Constitution, when read together with Section 12(1) (c) of the Interpretation Act, whether the fine/levy/penalty/compensation of $3,600,191,206.00 (Three Billion, Six Hundred Million, One Hundred Ninety One Thousand, Two Hundred and Six US Dollars), imposed by the defendant vide its letters of 19th December, 2014 and 25th March, 2015, is not ultra vires its powers under Section 26 of the NOSDRA Act, as well as Regulations 25, 26 and 27 of the OSDAR Regulations and therefore unconstitutional, null, void and of no effect whatsoever?
11. Having regard to the provisions and purport of Sections 4, 5, 6 and 36 of the Constitution, whether the defendant can act as legislator, executor, accuser, prosecutor, judge and beneficiary in promulgating, applying and enforcing the provisions of regulations 25, 26 and 27 of the OSDAR Regulations?
12. Further to (11) above, and having regard to the clear tenor of Section 1(3) of the Constitution, whether the provisions of Section 19 (1) (b) (c) (d) (g), (3) (d) of the NOSDRA Act and regulations 25, 26 and 27 of the OSDAR Regulations are not inconsistent with the provisions of Sections 6, 36 (1) and 251 (1) (n) of the Constitution and therefore null, void and of no effect whatsoever?
13. Further to 1 – 12 above, whether the defendant’s letters of 19th December, 2014 and 25th March, 2015, do not constitute a breach of the provisions of Sections 4, 5, 6, 36, 43, 44 and 318 (4) of the Constitution and therefore null, void and of no effect whatsoever Upon the resolutions of the above questions, the appellant claims against the respondent herein as follows:-
(i) A DECLARATION that the defendant cannot, in the light of Sections 1 (3), 4, 5, and 6 of the Constitution, validly exercise any of the powers donated by Sections 5, 6, 7 and 19 of the NOSDRA Act in a manner that encroaches on the judicial powers vested exclusively in the Courts established under the Constitution and the legislative powers vested in the National Assembly.
(ii) A DECLARATION that the defendant’s promulgation of regulations 25, 26 and 27 of the OSDAR Regulations is ultra vires the subsidiary rule making powers of the defendant as donated by Section 26 of the NOSDRA Act.
(iii) A DECLARATION that by the express provisions and dictates of Sections 6, 36 (1), (2) and (12) of the Constitution, the defendant cannot exercise any of the powers purportedly donated under Section 5, 6, 7, 19 and 26 of the NOSDRA Act to create and to determine any obligation and/or liability and to determine/impose any levy/fine/penalty/compensation or damages to be payable by the plaintiff without adequate provision for the rights to fair hearing and of appeal.
(iv) A DECLARATION that the defendant cannot validly exercise or perform any of its powers or functions under Sections 5, 6, 7 and 19 of the NOSDRA Act in contravention or violation of the provisions of Sections 6, 36(1), (2), (12), (43) and (44) of the Constitution.
(v) A DECLARATION that the provisions of Section 5, 6, 7 and 19 of the NOSDRA Act, as well as regulations 25, 26 and 27 of the OSDAR Regulations, do not vest the defendant with any powers to impose any fine, levy, compensation or other payments to be made payable by the plaintiff in respect of any oil spill incidence, particularly the Bonga Oil Spill of 20th December, 2011.
(vi) A DECLARATION that the contents and purport of the defendant’s letters of 19th December, 2014 and 25th March, 2015 are ultra vires the duties, functions and powers of the defendant and therefore unconstitutional, null, void and of no effect whatsoever.
(vii) A DECLARATION that by the express provision of Sections 6, 36 (1) and 251 (n) of the Constitution, the jurisdiction to determine liability and to assess, impose and direct the payment of any sum as penalty/levy/damages/compensation in respect or in connection with an incidence of oil spillage, particularly the Bonga Oil Spill of 20th December, 2011, is vested exclusively in the Federal High Court.
(viii) A DECLARATION that the procedure leading to the decision of the defendant to impose a fine/levy/penalty/compensation of $3,600,191,206.00 (Three Billion, Six Hundred Million, One Hundred Ninety One Thousand, Two Hundred and Six US Dollars) or any amount on the plaintiff is in breach of the plaintiff’s right as enshrined in Sections 36 (1), (2), (3), (12), 43 and 44 of the Constitution.
(ix) A DECLARATION that the defendant’s letters of 19th December, 2014 and 25th March, 2015, imposing a fine/penalty/levy/compensation on the plaintiff, constitutes a breach/negation of Sections 4, 5, 6 and 36 of the Constitution and therefore null, void and of no effect whatsoever.
(x) A DECLARATION that the fine/levy/penalty/compensation imposed on the plaintiff by the defendant vide its letters of 19th December, 2014 and 25th March, 2015, negates the clear provisions of Section 318 (4) of the Constitution and Section 12 (1) (c) of the Interpretation Act, and is therefore ultra vires the defendant’s powers under Section 26 of the NOSDRA Act, as well as Regulations 25, 26, and 27 of the OSDAR Regulations.
(xi) A DECLARATION that in the light of the provisions of Section 4, 5, 6 and 36 of the Constitution, the defendant cannot act as legislator, executor, accuser, prosecutor, judge and beneficiary, in promulgating, applying and enforcing the provisions of regulations, 25, 26 and 27 of the OSDAR Regulations.
(xii) Further to (xi) above, A DECLARATION that the provisions of Section 19(1) (b) (c) (d) (g), (3) (d) of the NOSDRA Act and regulation 25, 26 and 27 of the OSDAR Regulations are null, void and of no effect whatsoever for being inconsistent with Sections 6, 36 (1) and 251 (n) of the Constitution.
(xiii) A DECLARATION that the defendant’s letters of 19th December, 2014 and 25th March, 2015, constitute a breach of the provisions of Sections 4, 5, 6, 36, 43 and 44 of the Constitution and therefore null, void and of no effect whatsoever.
(xiv) AN ORDER of this honourable Court setting aside the defendant’s letters of 19th December, 2014 and 25th March, 2015 in their entirety.
(xv) AN ORDER of this honourable Court setting aside and/or nullifying the defendant’s decision to impose a fine/penalty/levy/compensation of $3,600,191,206.00 (Three Billion, Six Hundred Million, One Hundred Ninety One Thousand, Two Hundred and Six US Dollars) on the plaintiff, as embodied in and conveyed by the defendant’s letters of 19th December, 2014 and 25th March, 2015.
(xvi) AN ORDER of this honourable Court striking down and/or nullifying the provisions of Sections 5, 6, 7, and 19 (1) (b) (c) (d) (g), (3) (d) of the NOSDRA Act, as well as regulations 25, 26 and 27 of the OSDAR Regulation.
(xvii) AN ORDER of perpetual injunction restraining the defendant, either by itself, members of the its governing board, agents, staff, privies or any other person howsoever described from enforcing or otherwise giving effect to or seeking compliance with the decision to impose a fine/levy/penalty/compensation of $3,600,191,206.00 (Three Billion, Six Hundred Million, One Hundred Ninety One Thousand, Two Hundred and Six US Dollars) on the plaintiff as embodied in and conveyed by the letters of 19th December, 2014 and 25th March, 2015.
At pages 252 – 257 and 258 of the record of appeal, learned trial judge found as follows:-
“Finally, I do not find the right of the plaintiff violated by the two letters dated 19th December, 2014 and 25th March, 2015, Exhibits 3 and 6 attached to the originating summons. From the affidavit attached to the originating summons as well as the Counter affidavit in response thereto both of which I have reproduced above; the plaintiff had notice in line with Section 6 of the NOSDRA Act.
Furthermore, the letter dated 19th December, 2014 is a notification of sanction and so plaintiff could have had recourse to the Court when served with the letter.
I have reproduced the two letters here for ease of articulation….
When the notifications were received, the plaintiff could have appealed to the agency or approach the Court. These letters cannot be taken to be in conflict with Section 44 of the 1999 Constitution or a violation of Section 36 of the 1999 Constitution. The plaintiff had notice and opportunity to fair hearing. The plaintiff ought to have had recourse to the Court for the determination of its civil rights and a proper adjudication on the issues, if it felt its rights were infringed or about to be infringed; inconsistent with Sections 36 and 44 of the 1999 Constitution. I do not find the two letters ultra vires the duties and functions of the defendant.
I have no reason to set both letters aside as well as the sums ordered as parties did not make evaluation of assessed damage an issue for consideration in the questions raised for determination. No evidence upon which an evaluation could be made was also proffered. In the final analysis, all the questions raised by the plaintiff are resolved in favour of the defendant. The only thing left to do is to make an order dismissing this suit. Same is dismissed.”
Dissatisfied, appellant appealed to this Court on 31/5/2018. Appellant’s initial notice of appeal contains two grounds of appeal. On 25/6/2018, appellant filed another notice of appeal at pages 264 -271 of the record of appeal being the extant notice of appeal and same contains seven grounds of appeal.
At the hearing of the appeal on 10/12/2020, Bode Olanipekun, SAN, leading Akintola Makinde Esq., adopted and relied on the appellant’s brief of argument filed on 2/7/2018 and appellant’s reply brief filed on 18/6/2020 but deemed as properly filed on 10/12/2020 in urging this Court to allow the appeal. Romeo Esq., Micheal Esq., adopted and relied on the respondent’s brief of argument filed on 10/9/2018 but deemed as properly filed on 10/12/2020 in urging this Court to dismiss the appeal.
In the appellant’s brief of argument, three issues are formulated for the determination of the appeal as follows:-
1. Whether the judgment of the lower Court is not liable to be set aside for failure of the learned trial judge to apply and be bound by the ancient doctrine of stare decision, particularly the judgment of this Court in Appeal No. CA/C/244/2017 – NATIONAL OIL SPILL DETECTION AND RESPONSE AGENCY (NOSDRA) V MOBIL PRODUCING NIGERIA UNLIMITED (EXONMOBIL) (unreported) delivered on 22nd March, 2018 in respect of the same subject, statute and similar provisions of the Constitution.
2. Having regard to the relevant provisions of the NOSDRA Act viz-a-viz the Salient provisions of the Constitution which the appellant called on the lower Court to interpret whether the lower Court did not wrongly dismiss the appellant’s case.
3. Whether in the light of the clear provisions of Rule 10 of the professional conduct of the Legal Practitioners, 2007 and binding decisions of the appellate Court in the interpretation and application of the said Rule, whether the lower Court did not fall into serious error by countenancing and making use of the respondent’s counter affidavit dated 27th April, 2016 as well as the material’s exhibits accompanying the counter affidavit.
On the part of the respondent, two issues are formulated for the determination of the appeal thus:-
1. Whether the trial Court was legally right having regard to the state of the law in refusing to grant the reliefs sought by the appellant against the respondent.
2. Whether the legal practitioner acting for the respondent did not insert or affix his Nigerian Bar Association Seal on the counter affidavit dated 27th April, 2016 as required under Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007. I have carefully examined the submissions of learned counsel on both sides on the above formulations alongside the record of appeal. The three issues formulated by the appellant are apt and quite apposite for the just determination of the appeal. I shall therefore determine this appeal on the bases of the appellant’s brief.
Arguing the first issue on behalf of the appellant, learned counsel contended that the 13 questions raised before the lower Court by the appellant relating to the respondent’s letters of 19th December, 2014 and 25th March, 2015, are similar to the ones sent by NOSDRA to EXONMOBIL in Appeal NO. CA/C/244/2017 and thus the imposition of fine are the bases of the letters in both cases. Thus, the facts and circumstances of this appeal and appeal No: CA/C/224/2017 decided by the Calabar Division of this Court are exactly the same. Despite bringing to the attention of the lower Court the content of the previous decision of this Court, it embarked on a wrong and faulty interpretation and application of the NOSDRA Act, against the clear provisions of the Constitution. He submitted that the lower Court’s decision is in direct conflict with that of the Calabar Division of this Court in Appeal No: CA/C/244/2017 aforesaid and therefore a sharp departure from the sacred doctrine of stare decisis. Counsel cited Section 122 of the Evidence Act to contend that the lower Court is enjoined to take judicial notice of all proceedings in all Courts in Nigeria as well as the entire Commonwealth of Nations, including judgment delivered by the Superior Courts, particularly binding judgments of the Court of Appeal and the Supreme Court.
He submitted further that by not taking judicial notice of Appeal NO. CA/C/244/2017 and abiding by it, the learned trial judge had committed an abominable act contrary to the ethics of his appointment. Counsel cited GAMBARI V GAMBARI (1990) 5 NWLR (prt 152) 572 ATOLAGBE V AWUNI (1997) 9 NWLR (prt 552) 536 at 55, DALHATU V TURAKI (2003) 15WLR (prt 843) 310 at 336, SULE V KABIR (2011)2 NWLR (prt 1201)1 at 36 and EZENWAJI V UNIVERSITY OF NIGERIA & 4 ORS (2017) 5 – 6 SC (prt 11) 87 to the effect that even where a lower Court disagrees with the judgment of an appellate Court or where a lower Court believes that it knows more than a higher Court, it still has a duty to be bound by the decision of the superior Court and apply it in similar circumstances.
The respondent’s contention on the above is that while deciding Appeal No: CA/C/244/2017, this Court never makes reference to the interpretation Act which by virtue of Section 318 (4) of the 1999 Constitution been elevated to the status of the Constitution. Had the decision in Appeal NO. CA/C/244/2017 NATIONAL OIL SPILL DETECTION AND RESPONSE AGENCY (NOSDRA) V MOBIL PRODUCING NIGERIA UNLIMITED took into consideration of the interpretation Act particularly Sections 13 (3) and 35, the decision would have been different. Counsel submitted that the decision of this Court in Appeal NO. CA/C/244/2017 which neglected the interpretation Act might have been arrived at by the Court per incuriam.
In its reply brief, the appellant submitted that having failed to address the issue of stare decisis, the respondent is deemed to have admitted all the arguments made by the appellant under this issue relying on ADESANYA V OTUEWU (1993)1 NWLR (prt 270) 414 at 456 and NWANKWO V YAR’ADUA (2010)12 NWLR (prt 1209) 518 at 556. The main contention on this issue is that the judgment of the lower Court; the subject matter of this appeal which refused to be bound by an earlier decision of this Court based on similar facts flagrantly violates the doctrine of stare decisis.
The law is well settled on the fundamental principle of stare decisis which literally means judicial precedent, that all Courts of law of subordinate hierarchical jurisdiction must follow and apply the decisions of superior Courts of record even where they believe that these decisions are wrong. The wisdom behind it is to guarantees consistency in judgments handed down by the Courts and also avoid judicial anarchy.
In plethora of superior decisions, it was held that where the issue determined in the earlier case is the same or similar to the one being subsequently decided, the latter Court is, as a rule bound by its earlier decision or those of the superior Courts on similar or same facts. The meaning and import of the doctrine is for a Court to abide by former precedents where same or similar points come again for litigation. Thus, judges are precluded from changing what has been previously authoritatively determined. See DINGYADI V INEC (2011) 10 NWLR (prt 1255) 347, OGWE V I.G.P (2015) 7 NWLR (prt 1459) 505 and ARDO V NYAKO (2014)10 NWLR (prt 1416) 591.
I have right from the onset, reproduced both the questions raised by the appellant as plaintiff before the lower Court as well as the reliefs thereby sought. In a nutshell, the appellant herein sought for the interpretation of some Sections of the National Oil Spill Detection & Response Agency (NOSDRA) Act, particularly Sections 5, 6, 7, 19, 26 and 27 against the provisions of Sections 1, 4, 5, 6, 36, 43, 44 and 251 (1) (n) of the Constitution of the Federal Republic of Nigeria 1999 as amended. Appellant also sought for the interpretation of Regulations 25, 26 and 27 of Oil spill Damage Assessment Regulation (OSDAR). Finally, the appellant prayed the lower Court to set aside the respondent’s letters to it dated 19th December, 2015 and 25th March, 2015 respectively.
In the course of the proceedings before the Court, the Calabar Division of this Court in Appeal NO. CA/C/244/2017 delivered a judgment in respect of the same matter on 22nd March, 2018 that is, interpretation of the NOSDRA Act sought by Mobil Producing Nigeria Unlimited (EXXONMOBIL) (unreported) against the respondent wherein the Court nullified similar letters written to EXXONMOBIL, by the respondent (NOSDRA) in similar circumstance. The copy of the judgment in Appeal NO. CA/C/244/2017 was duly brought to the attention of the lower Court vide a letter dated 23rd April, 2018 and served on the Court on the same date, together with a Certified True Copy of the judgment.
I have gone through the judgment of this Court in Appeal NO. CA/C/244/2017 aforesaid and in the lead judgment of my learned brother, Chioma Nwosu-Iheme, JCA summarized the respective case of the parties at pages 6 and 7 as follows:-
“The appellant’s argument in this appeal revolve essentially around the fact that the appellant’s action in levying fine and penalty on the respondent was done consequent upon its powers in Section 6(2) and (3) of the Act establishing the NOSDRA. It made heavy weather on provisions of its enabling Act provisions for penalties and fines for non-compliance. The respondent’s grouse on the other hand is whether the appellant is imbued with the power to impose fines and penalties in the light of the fact that the powers to make such impositions belonged to the judicial arm of the Government and the Courts specifically.”
My learned brother at page 10 of the said lead judgment concluded thus:-
“On the facts and circumstances of this case, I am of the firm and humble view that the imposition of penalties by the appellant was ultra vires its powers, especially where no platform was established to observe the principle of natural justice.”
Gleaning from the above, the facts and circumstances of the case that is now on appeal with the previous one in Appeal NO. CA/C/244/2017 are similar and even though the lower Court was availed with a certified True Copy of that judgment, no reference was made to it in the entire judgment.
By virtue of the provision of Section 102 (1) (a) of the Evidence Act, the lower Court is enjoined to take judicial notice of the course of proceedings before this Court in Appeal NO. CA/C/244/2017 and more so when the Certified True Copy of the judgment was served on it. A Court of law can only distinguish a judgment of a higher Court based on a set of facts which are different from those in a subsequent case. But where as in the present case, the facts are similar, the lower Court is bound to follow the decision in Appeal NO. CA/C/244/2017 no matter how it feels about the judgment. In the case of IGBANI & ANOR V- BAYELSA STATE INEC & ORS (2013) LPELR – 21239 (CA) per ADAH, JCA at pages 26 paras B said:
“It is the law that a decision of a Court of competent jurisdiction, no matter that it seems palpably null and void, unattractive or insupportable remains good law and uncompromisingly binding until set aside by a superior Court of competent jurisdiction.”
In the instant case, the action of the learned trial judge in not applying the doctrine of stare decisis was not only wrong but amounts to arrogance and judicial irresponsibility. Also the neglect and or failure of the respondent to counter the appellant’s argument on this issue means that same is deemed conceded. The first issue is therefore resolved in favour of the appellant.
On the second issue, appellant argued that Section 6 of the 1999 Constitution gives Courts power to adjudicate on matters between two or more competing parties and in doing so the Courts as well as other organizations and individuals must follow the process of the law. Assuming without conceding the findings of the lower Court to the effect that the assessment of damages by the respondent is not inconsistent with the constitutional duty imposed on it and which assessment only provide a guide to the Court; counsel submitted that the respondent is neither acting as an expert to assist the Court nor approached by the Court for the assessment. Thus, the lower Court did not apply any statutory yardstick procedure or precedent laid down by appellate Courts for the interpretation of the statutes before it. Had the lower Court properly considered the fact that Sections 5, 6, 7, 19 and 26 of NOSDRA negates the doctrine of separation of powers enshrined in Sections 4, 5, and 6 of the Constitution as well as Section 251 (1) (n) of the Constitution, it would not have come to the perverse decision it reached, concluded learned counsel. In aid, counsel relied on the cases of A.G., ABIA STATE V A.G., FEDERATION (2003) 4 NWLR (prt 809) 174 at 177 – 178 and NNPC & ANOR V FAMFA OIL LTD (2012) ALL FWLR (prt 635) 204 at 238 – 239.
Still in argument, Counsel also referred the provisions of Sections 5, 6, 7, 19 and 26 of NOSDRA Act, as well as Regulations 25, 26 and 27 of OSDAR Regulations together with the respondent’s letters of 19th December, 2014 and 25th March, 2015 (Exhibits 3 and 6) to contend that same did not empowered the respondent to impose and levy or penalize any person in respect of an oil spill. He submitted that a subsidiary legislation cannot be interpreted or applied in a way or manner that would make the subsidiary legislation exceed or become contradictory or unrelated to the scope of the principal enactment. Reliance was placed on the cases of OLANREWAJU V- OYEYEMI (2001)2 NWLR (prt 689) 220 – 225 and ISHOLA –V- AJIBOYE (1994)6 NWLR (prt 352) 506 at 621.
In further argument, Counsel submitted that Sections 5, 6, 7, 19 and 26 of the NOSDRA Act, as well as Regulations 25, 26 and 27 of OSDAR Regulations have resulted in the breach of the appellant’s right contained in Sections 36, 43 and 44 of the Constitution to the extent that the principles of natural justice have been violated in respondent’s assumption of multiple roles of legislator, accuser, prosecutor, judge, executor and beneficiary. He referred to STABILINI VISIONI LTD V EJIKE (2002) FWLR (prt 84) 44 at 52 – 53, SOFEKUN V AKINYEMI & 3 ORS (1980) NSCQR 452 at 472 – 473 and OBIAGELI V FEDERAL COLLEGE OF EDUCATION ZARIA & ORS (2014) LPELR – 24010 (CA).
On the part of the respondent, learned Counsel argued that the respondent is a creation of statute and empowered to oversee full compliance with all existing environmental laws and detection of oil spill in petroleum sector and also with power to assess damage and to ensure that appropriate remedial action is taken for payment of compensation by the oil spiller. He submitted that neither Section 19 of the NOSDRA Act nor Regulations 25 and 26 are ultra vires to the Constitution.
Counsel also submitted that the authority of the respondent to make subsidiary legislation is expressly conferred by Section 26 of NOSDRA and that by virtue of Section 12 (1) (a) of the Interpretation Act, the respondent is given the latitude to insert in a subsidiary instrument, a provision which was not provided for in the principal legislation in order to enable it carry into effect the primary function of the principal Act. Thus, the NOSDRA Act as well as the Regulation being Act of the parliament has nothing to do with Section 6 of the Constitution. Similarly, the issuance of Exhibits 3 and 6 on the appellant by the respondent did not violate any constitutional provision as the respondent has authority to pursue enforcement actions outside of any Court system.
The main contention in respect of the second issue as could be gathered from the above submission is whether Sections 5, 6, 7, 19 and 26 of the NOSDRA Act as well as Regulations 25, 26 and 27 along sides the respondent’s letters (Exhibits 3 and 6) are in conflict with Sections 4, 5 and 6 as well as 36, 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
It is imperative to state that the Constitution of the Federal Republic of Nigeria is the basic norm of the land. Its provisions are superior to all provisions made in other laws and therefore the validity of any other law is tested against the Constitution. The hierarchical positions as it stand in matters of precedence are; the Constitution, Act of the National Assembly, Laws made by State Houses of Assemblies and then other subsidiary legislations. In order words, the Constitution is the law from which all other laws in the land derives its legitimacy. The provision of Section 1 (3) of the 1999 Constitution as amended specifically states that if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other law shall to the extent of that inconsistency be void.
It is also settled that Courts of law, in interpreting the Constitution or a statute have no jurisdiction to read into the Constitution or statute what the legislators did not provide for, and a fortiori read out of the Constitution or statute what is provided for by the legislators. In either way, the Courts are abandoning their Constitutional functions and straying into those of the legislature by interfering or interloping with them, as that will make nonsense of the separation of powers provided for in Sections 4 and 6 of the Constitution. See BUHARI V INEC & ORS (2009) LRCN VOL. 167 page 1 at 83.
As stated earlier that the main contention by the parties under this issue revolves around the interpretation of the provisions of NOSDRA Act together with subsidiary regulations against the certain provisions of the Constitution. Before going into the interpretation of the said provisions of the said statute and the regulations thereby promulgated; it is desirable to acquaint myself with the basic principles of interpretations and these include:-
1. It is the intention of the legislature that should be sought, and same is to ascertain from the words of the statute and not from other sources.
2. Where the words used in the provisions are clear, simple or unambiguous, they should be given their simple, natural and ordinary meaning.
3. The Court is not concerned with the result of its interpretation as it is not the Court province to pronounce the wisdom or otherwise of the statute but only to determine its meaning.
4. The Court must not import into legislations words that were not used by the legislature and which will give a different meaning to the text of the statute as enacted by the legislature.
5. The Court must not amend the statute to achieve a particular objector result.
See FAWEHINMI V IGP (2000)7 NWLR (prt 665) 481, AWOLOWO V SHAGARI (1979) 6 – 9 SC 51 and SALAMI V CHAIRMAN L. E. D. B. (1989)5 NWLR (prt 123) 539.
I shall now examine the pertinent provisions of the extant statute using the above parameters. Section 5 of the Act sets out the objectives of the respondent while Section 6 delineates its function. Section 7 makes special functions of the respondent. Section 19 on the other hand set out specific functions for the Agency in the event of a major oil spill. Section 19 (2) of NOSDRA Act provides that:
“19(2) The Agency shall act as the lead Agency for all matters relating to oil spills response management and liaise with other Agencies for the implementation of the plan, as contained in the second schedule.”
Furthermore, Section 19 (3) comprehensively states the implementation plans to include:-
(a) Co-operate with an oil spiller in the determination of appropriate measures to prevent excessive damage to the environment and the communities;
(b) expediously consider any proposal made for response effort by the oil spiller;
(c) Mobilize internal responses and also assist to obtain any outside human and financial resources that may be required to combat any oil spill; and
(d) Conduct the assessment of damage caused by an oil spill.
Finally, in Section 26 (1) of the Act, the Agency may with the approval of the Governing Board make such regulations as in its opinion are necessary or expedient for giving effects to the provisions of the Act and for the due administration of its provisions.
It was in furtherance to this that Oil Spill Recovery, Clean Up Remediation and Damage Assessment Regulations 2011 (OSDAR) was promulgated. Regulations 25, 26 and 27 thereof formed the basis of the respondent’s letters of 19th December, 2014 and 25th March, 2015 (Exhibits 3 and 6) which evince the practical application of these provisions. The relevant Regulation 25 (3), 26 (1) (3) and 27 above provide as follows:-
“25 (3) – The assessment shall form the basis of the compensation to be paid for the loses.
26 (1) – An owner or operator of an oil facility shall pay compensation to oil spill victim for damage caused to the victims person, business or property.
(3) An owner or operator shall internalize the cost of compensation as part of polluter – pay – principle.
27. Compensation shall be paid for damages to buildings, economic trees or crops by any person who surveys, digs, lays pipes or such other activities for the supply and distribution of energy and fuel.
It is clear from the above that the respondent’s letters to the appellant (Exhibit 3 and 6) were made pursuant to the aforesaid regulations as no provision for levy, fine, compensation or damage was made under the principal Act that is, the NOSDRA Act. The question is, what is the effect of a subsidiary legislation which is inconsistent with substantive legislation? In the case of I.G.P. V MOBIL PRODUCING (NIG) UNLIMITED (2018) 14 NWLR (prt 1639) 379 at 393, the Supreme Court was emphatic that a subordinate legislation cannot take the pride of place in relation to substantive legislation. Thus, the Police Act which is the substantive law in the appointment of supernumerary Police officials, while the Force Administrative Order is the subordinate legislation. That being so, with the subordinate legislation being inconsistent with the subordinative provision, the subordinate will give way as being ultra – vires. In the present case, the NOSDRA Act is the substantive legislation for all matters relating to Oil Spill response management while the OSDAR Regulations is the subordinate legislation. Regulations 25, 26 and 27 being inconsistent with the substantive provisions are ultra vires.
The next germane issue is whether the provisions of Regulations 25, 26 and 27 of OSDAR Regulations amounts to usurpation of the judicial functions vested in Courts pursuant to Section 6 of the 1999 Constitution? Learned Counsel for the respondent has contended that the OSDAR Regulation derives its validity and authorities from NOSDRA Act and thus saddled with power and responsibility of arriving at the appropriate compensation payable by an oil spiller.
I have stated that the Constitution is the supreme norm and what it has stipulated remains sacrosanct and immutable and nothing can be done about it but to strictly comply with it. See INAKOJU V ADELEKE (2007) 4 NWLR (prt 1025) 423, AG. ONDO STATE -V- AG, FEDERATION (2002)9 NWLR (prt 772) 222 and UGBA V SUSWAM (2014) 14 NWLR (prt 1427) 264. By virtue of Section 6 (1) of the Constitution of the Federal Republic of Nigeria (1999) as amended, the judicial powers of the Federation are vested in the Courts to which the Section relates while the judicial powers of a state are vested in the Courts to which the Section relates being superior Courts of records and with powers of each given under the Section which establishes it. For instance, Section 251 (1) (n) of the Constitution confers exclusive jurisdiction on the Federal High Court on mines and minerals (including oil fields, oil mining, geological surveys and natural gas).
On the same token, Section 4 of the Constitution vested legislative powers on the National Assemblies and State Assemblies respectively. As a creation of the Constitution, with powers specifically conferred, the National or State Assemblies cannot exercise any power not specifically conferred on them. Consequently, the powers of the National Assembly for instance does not extend to awarding damages or compensation for oil spillages. The Constitution does not also permit the exercise of a jurisdiction which of its nature belongs to the judicial powers of the Courts. See S.P.D.C.N. LTD V AJUWA (2015) 14 NWLR (prt 1480) 403. In the unreported Appeal NO. CA/C/244/2017, this Court held that by imposition of the fine, the appellant acted in a judicial capacity which they are not imbued with under the Constitution. And that by so doing, the appellant became a judge in its own cause, the complainant as well as the judge, contrary to the maxim “nemo judex in causa sua”. It is thus my view by and large, that the respondent not being a Court of law cannot impose any fine and the regulations to that effect are not only unconstitutional but capable of eroding the fundamental rights of the appellant herein as enshrined in Sections 36 (1) and (2) of the Constitution of the Federal Republic of Nigeria as amended. I unhesitatingly resolved the second issue in favour of the appellant.
Appellant’s contention on the third issue relates to Rule 10 (1) of the Rules of Professional Conduct for Legal Practitioner which mandatorily requires all categories of legal practitioners in Nigeria to affix on any document which they signed a seal and stamp approved by the Nigerian Bar Association. Learned Counsel for the appellant contended that the respondent’s counter affidavit of one Josephine Ozoya (Mrs.) at pages 66 – 73 of the record of appeal has the seal of one Awosika Dada Adekunle and not that of Josephine Ozoya (Mrs.) and hence incompetent. He cited sub-rule 3 and the case of WAYO V NDUL (2017) LPELR – 4241 (SC) to the effect that the respondent’s counter affidavit has not been signed in the eyes of the law.
In response to the above, learned Counsel for the respondent contended that the requirement of the Rules is that every document that is to be signed and filed in Court must contain a seal of the Legal Practitioner acting for the litigant. He submitted that the requirement for fixing the NBA stamp and seal only becomes imperative when the lawyer is acting in his capacity as a legal Practitioner. Thus, there was strict compliance with the Rules when the stamp/seal of the lawyer acting as Legal Practitioner to the respondent, D.A. Awosika, Esq., was affixed to the counter affidavit deposed to, by Josephine Ozoya (Mrs.).
By virtue of Rule 10 (1) of the Rules of Professional Conduct 2007, a lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any governmental department or ministry or any corporation shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association.
For the purpose of Rule 10 of the Rules of Professional Conduct, 2007, “legal documents” includes pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents. Rule 10 (3) of the Rules is to the effect that if a lawyer signs or files any document as defines in Rule 10 (2) aforesaid, without affixing a seal and stamp approved by the Nigerian Bar Association, the document so signed and filed shall be deemed not to have been properly signed or filed. See WAYO V NDUUL also reported in (2019)4 NWLR (prt 1667) 60 at 69 and 73.
It is however settled based on chains of judicial authorities that the failure to affix the approved seal and stamp of the NBA on the process does not render the process null and void. It is an irregularity that can be cured by an application to regularize it. See YAKI V BAGUDU (2015)18 NWLR (prt 491) 288 and EMECHEBE V CETO INTERNATIONAL (NIG) LTD (2018)11 NWLR (prt 163) 580. What played out in the instant case is that there is indeed a stamp and seal of the NBA affixed to the respondent’s counter affidavit in the name of the lawyer appearing for the respondent, D. A. Awosika Esq., who also entered conditional appearance at the lower Court on behalf of the respondent. The contention therefore is whose stamp and seal is to be affixed to the respondent’s counter affidavit? Is it the lawyer acting in his capacity as a legal practitioner for the respondent or the deponent to the counter affidavit. In MAINA V E.F.C.C. (2020)2 NWLR (prt 1708) 230, this Court has held that where there is a seal on a Court process, it is otiose to tick the name of counsel whose name is in the seal as signatory on the document or process. The facts of this case are clearly distinguishable with the facts in WAYO V NDUUL (supra) where the appellant signed both the notice of appeal as well as the appellant’s brief of argument. In the instant case, the lawyer who appeared and represented the respondent signed the memorandum of appearance and also affixed his own NBA stamp and seal. It is thus my view based on the peculiar circumstances of this case that the respondent’s counter affidavit was neither a worthless document nor a document that could be discountenanced completely. This issue is therefore resolved against the appellant.
Now having resolved the first and second issues which are the bedrock of this appeal in favour of the appellant, the appeal ultimately succeeds in part and it is hereby allowed. The judgment of the lower Court delivered on 24th May, 2018 is hereby set aside. I accordingly granted all the reliefs, contained in the originating summons filed by the appellant at the lower Court.
Parties shall bear their respective costs.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now the lead judgment, just delivered by my brother, MOHAMMED L. SHUAIBU, JCA.
I agree with his reasoning and conclusions.
I also allow the appeal. The judgment of the Federal High Court sitting in Lagos delivered on the 24th of May, 2018 is hereby set aside.
No order as to costs.
JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in advance the lead judgment of my learned brother, M. L. Shuaibu, JCA, which has just been delivered. I agree with the reasoning and conclusion therein that the appeal has merit. I intend to add a few words of mine.
In Appeal No. CA/C/244/2107 – National Oil Spill Detection And Response Agency (NOSDRA) V Mobil Producing (Nig) Unlimited (unreported judgment of this Court delivered on 23/3/2018), the Calabar Division of this Court set aside a letter similar to the letters that the lower Court was confronted with in the same circumstances and with similar facts. At page 10 of the judgment, Nwosu-Iheme, JCA, stated that:
“On the facts and circumstances of this case, I am of the firm and humble view that the imposition of penalties by the appellant was ultra vires its powers, especially where no platform was established to observe the principle of natural justice.”
The facts and circumstances of the above case are similar to the facts and circumstances of the instant matter. The judgment was brought to the notice of the lower Court but the lower Court ignored the decision in its judgment and made no reference to it. By this act, the lower Court breached the doctrine or principle of stare decisis or judicial precedent. The phrase “stare decisis et non quela mouere” means “to stand by what has been decided and not to disturb and unsettle things Which are established.” The doctrine compels Courts to abide by former precedents where same points come again in litigation. See Clement v lwuanyanwu (1989) 3 NWLR (pt. 107) 39 and Adedayo V PDP (2013) 17 NWLR (Pt. 1382) 1. The principle holds inferior Courts bound by previous decisions of superior Courts on similar facts in the consideration and determination of matters before them. The way opened to Courts to avoid the principle is to distinguish the previous case from the facts and/or the circumstances of the case under consideration. See Ardo V Nyako (2014) 10 NWLR (pt. 1416) 591 and Attorney-General of Lagos State v Eko Hotels Ltd (2018) 7 NWLR (1619) 518.
The lower Court did not attempt to distinguish the decision of this Court from the matter before it. It simply ignored the decision and reached a decision different from it. What impudence!
Counsel for the respondent stood in support of the lower Court by arguing that this Court did not make reference to Sections 13(3) and 35 of the Interpretation Act, otherwise the decision would have been different. He insisted that the decision of this Court was reached per incuriam. The NOSDRA Act does not vest the agency with the power to impose penalties, fine, levies etc for oil spillage. The most that it does is to grant it the power to conduct the assessment of damages caused by a spill. See Section 19(3) of the Act. Assessment of damages is different from the power to impose penalties, fine, levies etc. Section 26(1) of the Act provides that the agency may with the approval of the Governing Board make such regulations as in its opinion are necessary or expedient for giving effect to the provisions of the Act and for due administration of its provisions. This cannot by any stretch of imagination be construed to include the power to make regulations to impose penalties, fines, levy etc.
A subsidiary legislation must be consistent with the principal legislation from which it derives its life otherwise such subsidiary legislation is a nullity to the extent of the inconsistency. See Din V Attorney-General of The Federation (1988) 4 NWLR (Pt. 87) 147 and Mobil Producing (Nig.) Unlimited v Johnson (2018) 14 NWLR (Pt. 1633) 329. Furthermore, the power to make regulations under any Act does not include the power to make regulations to extend the frontiers of the principal Act. See Securities and Exchange Commission V Kasunmu (2009) 10 NWLR (Pt. 1150) 509. Therefore the Oil Spill Recovery, Clean-up, Remediation and Damage Assessment Regulations cannot be used as an instrument to expand the boundaries of the powers given to NOSDRA to include the power to impose penalties, levies, fines etc.
Respondent’s counsel sought refuge under Sections 13(3) and 35 of the Interpretation Act, Section 13(3) reads:
“Where in any Act or Law, power is given to any authority to impose any fine or make any order or give any directions whatever and it is stated that such fine, order or direction shall be imposed, be recoverable or in manner have effect as if same were a fine, order or direction imposed, made or given by a Court or by a judicial or other officer having jurisdiction in the place where such fine, order or direction was imposed, made or given, or where the person who was ordered to pay the fine or who is required to obey the order or direction resides or may happen to be, may take the necessary steps to enforce the payment of the fine or the carrying out of the order or direction, as the case be, in all respects as if the fine, order or direction had in fact been imposed, made or given by such Court or judicial or other officer.”
The same provision is contained in Section 35 of the Interpretation Act.
Since the NOSDRA Act does not give power to the agency to impose fine, the said sections offer no help to respondent’s counsel.
It is on account of the foregoing and the more detailed reasons set out in the judgment of my learned brother that I also see merit in this appeal. I accordingly allow it and abide by the consequential orders made in the lead judgment of my learned brother.
Appearances:
Bola Olanipekun, SAN with him, Akintola Makinde For Appellant(s)
Romeo Ese Micheal For Respondent(s)
