Feed And Food Farms (Nigeria) Ltd V. Nigerian National Petroleum Corporation (2009)

LAWGLOBAL HUB Lead Judgment Report

NIKI TOBI, J.S.C

Oil pipelines were constructed by the respondent on or adjoining the appellant’s factory premises. The appellant regarded the act as illegal. Efforts by the appellant to make the respondent to remove the structures were rebuffed. The appellant sued the respondent without giving the statutory pre-action notice under section 12(2) of the NNPC Act, 1977, the appellant asked for three declaratory reliefs and a relief on compensation for the sum of N20,000,000.00.

The learned trial Judge gave appellant judgment as at page 138 of the record. On appeal to the Court of Appeal, that court held that the jurisdiction of the High Court was ousted by the failure of the appellant to give pre-action notice. The Court of Appeal also dismissed the award of damages by the learned trial Judge.

Dissatisfied, the appellant has come to this court. So too the respondent by way of cross appeal. Briefs were filed and duly exchanged. Appellant formulated the following four issues for determination:

“1. Whether the right to be served with a pre-action notice under the mandatory provisions of S.11(2) of NNPC Act could, as a matter of law, be waived by the respondent NNPC, and if so, whether in the circumstances of this case, the respondent NNPC could be said to have so waived that right.

2. Whether the failure of the Court of Appeal to rule on the constitutionality or otherwise of the application of s.11 (2) NNPC Act to the peculiar facts of this suit was justified, and if not, whether the Supreme Court can hold that the application of s.11 (2) NNPC Act, in the circumstances of this suit, would violate the provisions of ss.6 (6) and 36(1) of the 1999 Constitution and similar provisions of the 1979 Constitution of the Federal Republic of Nigeria.
3. Whether the Court of Appeal was justified in dismissing the award of damages made in favor of the appellant (plaintiff) in the trial court.
4. Whether, in the circumstances of this case, the Supreme Court can hold that the Court of Appeal would have been justified in deciding that the respondent’s Notice of Appeal, Additional Grounds of Appeal and Appellant’s Brief of Argument in the lower court were incompetent in law and, on that basis strike out the appeal in the lower court.”

The respondent also formulated four issues for determination as follows:

“i. Whether the Court of Appeal was not right in holding that the failure of the appellant to issue a pre-action notice is a jurisdictional issue which robbed a trial court of its jurisdiction to the respondent before instituting the suit.

ii. Whether there was a Ground of Appeal upon which an issue for determination on the issue of the constitutionality or otherwise of the application of section 11(2) of the NNPC Act, 1977 was submitted for consideration by the appellant.

iii. Whether the Court of Appeal was not right in setting aside the award of damages made in favor of the appellant in the absence of any legal justification.

iv. Whether the respondent’s Notice of Appeal, Additional Grounds of Appeal and the Amended Appellant’s Brief of Argument filed in the Court of Appeal were not competent.”

The respondent, as cross appellant, formulated the following two issues for determination of the cross appeal:

“i. Whether having held that the trial court had no jurisdiction and the entire trial and judgment a nullity, the Court of Appeal was right to have proceeded to consider other issues in the appeal.

ii. Whether the Court of Appeal was right in holding that the declarations made in favor of the appellant could not be faulted in the absence of any evidence to justify same by the trial court.”

Learned Senior Advocate for the appellant, Mr. Robert Clarke, submitted on Issue No.1 that the decision of this court in Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency (2002) 12 SCNJ 1 unequivocally establishes a principle that the right to be served with a pre-action notice given under any statute can be waived by the beneficiary. Learned counsel disagreed with the Court of Appeal which held that there was a conflict between Mobil producing Nigeria Unlimited v. Lagos State Environmental Protection Agency and the case of Captain Amadi v. NNPC (2000) 5 SCNJ 1 which the court followed. He pointed out that there was no question or issue of waiver in Captain Amadi. Counsel also relied on Katsina Local Authority v. Makudawa (1971) 7 NSCC 119 and Eze v. Okechukwu (2002) 12 SCNJ 258 at 272.