SPDC (NIG) LTD & ORS v. AGBARA & ORS
(2021)LCN/15568(CA)
In The Court of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Thursday, March 04, 2021
CA/PH/461/2019(R)
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Tani Yusuf Hassan Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Between
1. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED 2. SHELL INTERNATIONAL PETROLEUM COMPANY LIMITED 3. SHELL INTERNATIONAL EXPLORATION AND PRODUCTION BV. APPELANT(S)
And
1. CHIEF ISAAC OSARO AGBARA 2. CHIEF VICTOR OBARI 3. CHIEF JOHN N. OGURU 4. CHIEF GEORGE O. OSARO 5. HON. JOSEPH OGOSU 6. CHIEF ADANTA OBELLE (For Themselves and on Behalf of the Ancient “Onneh Eh Ejama” Stool in Council, Chiefs, Elders, Men, Women and Children of Ejama-Ebubu in Tai Eleme, Local Government Area of Rivers State.) RESPONDENT(S)
RATIO:
INGREDIENTS OF JURISDICTION
The fact that these motions were headed in the High Court of Rivers State, they are not properly commenced before this Court to hear and determine which in effect deprived this Court of jurisdiction to entertain same. No Court, be it at trial Court or appellate Court can entertain a matter except and until it is validly placed before it according to due process of law – Boko Vs Nungwa (2019)1 NWLR (Pt.1654) 395.
Jurisdiction is the authority of a Court to entertain a matter presented before it. A competent action infuse jurisdiction into a Court and make it amenable to adjudication. An incompetent suit dispossesses a Court of the jurisdiction to entertain it. Madukolu Vs Nkemdilim (1962) 2 SCNLR 34 is the locus classicus on jurisdiction. The ingredients of jurisdiction that a Court would consider are:
(a) It is properly constituted as regards numbers and qualification of the members of the bench such that no member is for any reason disqualified.
(b) The subject matter of the case is within its jurisdiction and there is no feature of the case which prevents the Court from exercise of its jurisdiction; and
(c) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See Yardua Vs Yandoma (2015) 4 NWLR (Pt.1448) 123. PER TANI YUSUF HASSAN, J.C.A.
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgement): This is an affidavit of urgency dated and filed on the 12th day of January, 2021 attached with two exhibits marked as Exhibit “1, 2a and 2b”. The relevant paragraph for determination is paragraph 4 which reads:
4(i) The High Court of Rivers State Coram A. Enebeli J, on 1st November, 2019 made an order transmitting Appellants’ motions dated 9th August, 2019, 15th October, 2019 and 18th October, 2019 to this Honourable Court for hearing and determination. Now shown to the attached hereto and marked as Exhibit 1 is a certified true copy of the said order made by A. Enebeli J, of the High Court of Rivers State.
(ii) The above stated applications are still pending before this Honourable Court.
(iii) The motions stated in (i) supra, seek the following reliefs especially as they relate to the issuance of Writs of Execution, alleged sale and auction of Appellants joint venture assets (Kidney Island and OML11)-(a) motion dated 9th August, 2019 is for setting aside of Writs of execution issued on 24th July, 2019.
(b) Motion dated 15th October, 2019 is for setting aside of the alleged sale of the Appellants’ joint venture assets (including Kidney Island).
(c) Motion dated 18th October, 2019 is for setting aside the ex-parte orders made by the High Court of Rivers State, granting a certificate of title of the Appellants’ Joint Venture assets to Rivers State Government.
(iv) The Rivers State Government is a Respondent to the motion dated 18th October, 2019 in view of the fact that it was the entity that sought for and obtained the ex-parte order sought to be set aside in the application.
(v) Despite the pendency of the motions stated in (iii) supra, official of Rivers State Government along with coercive agencies of the State at the instance of the said Government went to Kidney Island within the early hours of Wednesday 23rd December, 2020 in a bid to take over same.
(vi) Further to (v) supra, the Rivers State Government made several public statements in various newspaper publications to indicate and notify the general public of its alleged takeover of the Appellants Joint venture assets now shown to me of the said newspaper publications.
On the 18th day of January, 2021 when the matter came up for hearing, learned Senior counsel for the Appellants, Chief Wole Olanipekun (SAN) referred to the motion filed on 9th August, 2019 with the attached Exhibits 8, 9 and 10 at pages 31 – 212 of the Supplementary Record, and the Writ at pages 196 – 200 of the Supplementary Record. Motion filed on 15th October, 2019 is at pages 213 – 481 of the Supplementary Record while motion filed on the 18th of October, 2019 is reflected at pages 482 – 773 of the Supplementary Record and the certificate of transfer at pages 725 – 727 of the Supplementary Record.
Learned Senior Counsel submitted that, the learned trial Judge, after hearing all the parties including the Attorney General of Rivers State transmitted all these motions to the Court of Appeal for hearing and determination by an order made on the 7th of November, 2019 reflected at pages 774 – 778 of the Supplementary Record. He argued that this Court has the power and duty to hear and determine the applications. Senior Counsel relied on the following cases: Ogunremi Vs Dada (1962) 2 NSCC 419 at 421; Vab Petroleum Vs Momah (2013) 4 NWLR (Pt.1374) 284 at 323; Ezeokafor Vs Ezeilo (1999) 9 NWLR (Pt. 619) 513 at 524 and Order 4 Rule 11 of the Court of Appeal Rules; Ezomo Vs AG Bendel (1986) 4 NWLR (Pt.36) 448 at 461; Adeleke Vs Oyo State House of Assembly (2006) 10 NWLR (Pt. 987)50 at 52; Ikpeazu & Ors Vs Ogah (2016) LPELR 40845 (CA) and FCDC Ltd Vs Ahmadu (2011) 14 NWLR (Pt.1266) 157 at 193, and urged the Court to hear and determine the said motions for their urgency and in the interest of justice.1
Learned Counsel for the Respondent in opposing the affidavit of urgency filed a Counter Affidavit of 11 paragraphs on the 15th of January, 2021. He submitted that this Honourable Court lacks jurisdiction to hear the applications filed at the trial Court. He submitted that when an appeal has been entered before the appellate Court, the trial Court becomes seised of the matter. Counsel argued that applications can be filed at the lower Court, headed before the lower Court. That such Applications headed before the lower Court cannot be heard in this Court. It is also his submission that two of the applications were filed at the lower Court, after appeal has been entered before this Court. He urged the Court to refuse the application for want of jurisdiction.
The contention of the learned Senior Counsel for the Appellants is that this Court has the power and duty to hear and determine the motions filed at the High Court of Justice, Rivers State. The Respondent’s counsel on the other hand contends that it is a matter of jurisdiction which the Court lacks in this case, the application being headed in the High Court of Justice, Rivers State.
For clear appreciation of this issue the provision of the 1999 Constitution of Nigeria, Section 239 (1) which confers original jurisdiction on the Court of Appeal reads:
“Subject to the provisions of this Constitution, the Court of Appeal shall, to the exclusion of any other Court of law in Nigeria, have original jurisdiction to hear and determine any question as to whether-
(a) Any person has been validly elected to the office of President or Vice President under this Constitution;
(b) The term of office of the president or vice president has ceased; or
(c) The office of president or vice president has become vacant.
A careful perusal of the facts expressly stated in paragraph 4 (i – vi) of the Affidavit of urgency filed on the 12th of January, 2021 shows there is no provision for the Court of Appeal to hear and determine motions filed at the High Court, headed in THE HIGH COURT OF JUSTICE, RIVERS STATE, PORT HARCOURT. In the interpretation of such provisions of the Constitution, what is not said is not intended. Words used in the provisions of the Constitution or statute must be given their natural and ordinary meaning. In other words, this Court is not conferred with jurisdiction to determine motions filed at the High Court, there is no original jurisdiction in the Constitution conferring on the Court of Appeal, to hear and determine motions filed at the High Court.
Learned counsel for the Respondent in paragraphs 3, 4, 5 and 6 of the Counter Affidavit filed on the 15th of January, 2021 averred that on the 27th of January, 2020 this matter came up before this Court when the Learned Senior Counsel Bode Olanipekun (SAN) introduced these same motions of 9th August, 2019. This Court observed that the motions were transmitted to this Court after the appeal had been entered and they were headed in the High Court of Rivers State.
That this Court said the motions headed in the High Court cannot be heard by this Court (Court of Appeal). There is no further affidavit filed to dispute these facts.
Where there are averments in the Counter Affidavit deposing to a particular state of affairs, which are not challenged by a further affidavit, such averment will be deemed admitted. See Owuru Vs Adigwu (2018) 1 NWLR (Pt. 1599) 1 at 7 and Ola Vs Unilorin (2014) 15 NWLR (Pt. 1431).
The fact that these motions were headed in the High Court of Rivers State, they are not properly commenced before this Court to hear and determine which in effect deprived this Court of jurisdiction to entertain same. No Court, be it at trial Court or appellate Court can entertain a matter except and until it is validly placed before it according to due process of law – Boko Vs Nungwa (2019)1 NWLR (Pt.1654) 395.
Jurisdiction is the authority of a Court to entertain a matter presented before it. A competent action infuse jurisdiction into a Court and make it amenable to adjudication. An incompetent suit dispossesses a Court of the jurisdiction to entertain it. Madukolu Vs Nkemdilim (1962) 2 SCNLR 34 is the locus classicus on jurisdiction. The ingredients of jurisdiction that a Court would consider are:
(a) It is properly constituted as regards numbers and qualification of the members of the bench such that no member is for any reason disqualified.
(b) The subject matter of the case is within its jurisdiction and there is no feature of the case which prevents the Court from exercise of its jurisdiction; and
(c) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See Yardua Vs Yandoma (2015) 4 NWLR (Pt.1448) 123.
In the instant case, there is no due process of law followed for this Court to assume jurisdiction and determine the motions. Order 4 Rule 11 of the Court of Appeal Rules, 2016 relied upon by the learned Senior Counsel provides:
“After an appeal has been entered and until it has been finally disposed of, the Court shall be siesed of the whole proceedings as between the parties thereto. Except as may be otherwise provided in these Rules, every application therein shall be made in the Court and not to the Court below.”
There is nothing in Order 4 Rule 11 to suggest that the lower Court being seised of the matter should transmit the motions to the Court of Appeal for hearing and determination. Rather the applications shall be made to the Court of Appeal. However, there are no such applications filed before this Court for determination. Words used in the provisions of a statute must be given their natural and ordinary meaning. Where the words are free from any ambiguity, they should be read and understood as they are, without any embellishments. See E.A. Utomudo Vs Mil.Gov. of Bendel State & 4 Ors (2014) 11 NWLR (pt.1417)97; Toriola Vs Williams (1982) 7 SC 27 and Mobil Oil (Nig.) Ltd Vs F.B.I.R (1977)3 SC 53.
A defect in the competence of the Court is extrinsic rather than intrinsic to the entire process of adjudication. Jurisdiction of the Court is therefore of overriding importance. See A-G. Lagos State Vs Dosunmu (1989) 3 NWLR (Pt. 111) 552; Ukwu Vs Bunge (1997) 8 NWLR (Pt.518) 527 and Dapianlong Vs Dariye (No.2) (2007) 8 NWLR (Pt.1036) 332.
It is trite that the applicable law in respect of a cause or matter is the law in force at the time the cause of action arose. See Sun Ins (Nig.) Plc Vs U.E.C.C. Ltd. (2015) 11 NWLR (pt.1471) 576. The case of Ogunremi Vs Dada (1962) 2 NSCC 419 at 421 relied upon by the Appellant’s Senior Counsel is inapplicable to this case. This is because in 1962 when that case was decided, there was no Court of Appeal Act and there was no 1979 Constitution. Therefore, the Court of Appeal Rules 2016 and the Constitution of the Federal Republic of Nigeria, 1999 (as amended) are the applicable law in this case.
Also in the case of Vab Petroleum Inc. Vs Momah (supra) relied upon by the Senior Counsel, the Supreme Court held that the rule governing the control of proceedings during pendency of an appeal is that after an appeal has been filed and until it has finally been disposed of, the Court of Appeal shall be seised of the whole proceedings as between the parties thereto, except as may be otherwise provided in the Rules, every application therein shall be made to the Court and not the trial Court.
It went further to say that any application in relation to the subject matter of appeal, from the time appeal was entered ought to have been filed in the Court of Appeal. It is not stated in that case that transmitted motions from a High Court to the Court of Appeal headed in the High Court should be heard and determined by the Court of Appeal.
From all I have said, this Court lacks jurisdiction to hear and determine these motions which were not filed before the Court of Appeal. The Application is refused and it is struck out for want of jurisdiction.
HARUNA SIMON TSAMANNI, J.C.A.: I read in advance the ruling delivered by my learned brother, Tani Yusuf Hassan, J.C.A.
My learned brother has comprehensively resolved the issues that came up for determination before us. Learned Senior Counsel for the Appellants had urged us to hear and determine certain motions filed in the High Court of Justice, Rivers State. The position of learned Senior Counsel is informed by the Order of the learned trial Judge of the Court below, transferring those motions to this Court for hearing. The learned trial Judge purported to act pursuant to Order 4 Rule 11 of the Court of Appeal Rules, 2016. The said Order 4 Rule 11 of the Court of Appeal Rules, 2016 stipulates that:
“After an appeal has been entered and until it has been finally disposed of, the Court shall be seised of the whole of the proceedings as between the parties thereto. Except as may be otherwise provided in these Rules, every application therein shall be made to the Court and not to the Court below.”
It would be seen that Order 4 Rule 11 of the Rules of this Court does not give power to the Court below, to transfer Motions filed before it, to this Court. This is because, the Rule stipulates clearly, that once an appeal has been entered, this Court will be seised of the whole proceedings, and all applications in the appeal shall be made to this Court, safe where the Rules point otherwise. Learned Senior Counsel did not direct us to any provision in our Rules which empowers us to entertain any application filed in the Court below. The authorities cited by learned Senior Counsel are not helpful either.
Considering the entire circumstances, I will endeavor to suggest that, the proper thing the Appellant/Applicant would have done was to abandon those motions filed before the Court below, and file same before this Court. This is because the learned trial Judge of the Court below, in my view had no jurisdiction to make the Order of the 1st day of November, 2019. This Court also, has no jurisdiction to entertain the said motions filed in the Court below and “transferred” to this Court.
It is for the above reasons and the other reasons ably adumbrated in the lead ruling, that I agree that this application has no merit and is according struck out for want of jurisdiction.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead ruling just delivered by my learned brother, TANI YUSUF HASSAN, J.C.A.
The reasoning and conclusion reached by my noble lord is agreed by me with nothing useful to add thereto.
This Court lacks jurisdiction to hear and determine the motions which were not filed before it. For this reason and much more stated in the lead ruling, the application is refused and therefore struck out for want of jurisdiction.
Appearances:
Chief Wole Olanipekun (SAN) with him, Shole Bojuwoye Esq. and Precious A. Johnmark Esq. For Appellant(s)
E. E. Asido Esq. with him, I. G. Nwosu Esq. and Sixtus N. Ajoku Esq. For Respondent(s)
