Dr. Tamunosa A.T. Allison & Ors V. The Shell Petroleum Development Company Of Nigeria Limited (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, JCA (Delivering the Leading Judgment)

Before the Federal High Court (Coram: R.M. Aikawa, J) sitting at Port Harcourt the appellants, as the Plaintiff, had the following claim in the statement of claim that accompanied their writ of summons taken out on 23rd August, 2007 in the suit no FHC/PHC/CS/1278/2007.

WHEREOF the Plaintiffs claim against the Defendant the sum of N50,000,000.00 (Fifty Million Naira) only as damages for trespass on the Plaintiffs’ said land by clearing, drilling, dredging and installation of oil well heads, gas pipelines as well as destruction/stoppage of plaintiffs’ economic life on the land.

The underlinings are provided by me for emphasis and purpose, which I shall come to in due course.

The parties exchanged pleadings. In paragraphs 2 and 5 of the statement of claim the Plaintiff now the Appellant, averred –

2. The Defendant is a limited liability company engaged in the business of oil exploration and exploitation in Nigeria with an office in port Harcourt within the jurisdiction of this Honourable Court.
3. Sometime between the years 2003 to 2004, the Defendant broke and entered upon of the defendant Kpa pasu land situate at Oloma- Town in Bonny Local Government Area of Rivers State without the consent of the Plaintiffs. The Defendant upon entry of the said land cleared same, caused part of it to be dredged, drilled and installed oil wells as well as gas pipelines. Defendant caused economic trees thereon to be burnt and also used part of the land as dumpsite. The area the Defendant trespassed to carry out its activities measures 13.788 Acres or 5.579 Hectares and it is verged red while the area dredged is verged brown in the survey plan filed along with this statement of claim. The plaintiffs caused the area to be photographed. Plaintiffs hereby plead the negatives and photographs.

The survey plan referred to above is at page 9 of the Record. The Respondent, as the Defendant, in the amended statement of Defence denied that it entered the portion of Kpakpasu land without the consent of the Plaintiffs’ Allison Family. In paragraphs 3, 4, 5, 10 and 14 of the said amended statement of Defence the Defendant/Respondent averred that in 1981 they sought and obtained the consent of the Plaintiffs’ Allison to enter upon the said portion of Kpakpasu land for its operations. It is further averred that the Defendant paid compensation to the Plaintiffs’ Allison Family in May 1981 and that in “furtherance of the aforesaid negotiations and compensation” the Defendant took possession of the said portion of land and had “remained in lawful possession at all times material to this action.” It is necessary that paragraphs 10 and 14 of the amended statement of defence be reproduced. That is –

10. The Defendant further avers that in furtherance of the said negotiations, the Plaintiffs’ community gave the Defendant a written authority to enter the land pursuant to which the Defendant entered thereupon. The said written authority is hereby pleaded and shall be relied upon at the hearing of this action.
11. The Defendant avers and shall at the trial contend that it did not trespass into the Plaintiffs’ land, having obtained the consent of the Plaintiffs to enter thereupon.

The parties filed depositions on oath of their witnesses. The Plaintiffs, now appellants called a total of four (4) witnesses, who were duly cross-examined. The Defendant/Respondent called a lone witness and he was duly cross-examined. Several documents were tendered. At the close of the evidence S. O. Wogu, Esq. of counsel for the Defendant and Chief F.F. Egete, of counsel to the plaintiffs filed and exchanged closing addresses. Mr. Wogu’s Reply on points of law is at pages 182 – 184 of the Record. The learned trial Judge in his reserved judgment delivered on 20th May, 2010 (pages 189 – 194 of the Record) upheld the preliminary objection of Mr. Wogu that the Federal High Court had no jurisdiction in the matter in view of the fact that paragraph 6 of the statement of claim and the various averments therein merely or simply made “allegations of interference with the Plaintiffs’ right of possession.” The learned trial Judge consequently struck out the suit holding that the Plaintiffs’ cause of action did not fall within the jurisdiction of the Federal High Court vested in it by section 25I (1) of the 1999 Constitution. He declined to exercise his discretion under section 22 (2) of the Federal High Court Act which empowers him to transfer to the State High Court any matter the Federal High Court finds it has no jurisdiction over and over which the State High Court has jurisdiction. This appeal is against the said decision.

The Appellants filed three (3) grounds of appeal, out of which they formulated three (3) issues for determination in the Appellants’ Brief filed on 11th October, 2010. In the Respondent’s Brief settled by S.O. Wogu, Esq. and filed on 26th October, 2010, the Respondent formulated 3 issues for determination in the appeal.

The Appellants formulated their three issues as follows –

1. whether the trial court was right in declining jurisdiction to entertain this suit on the grounds that the Plaintiffs’ case is on trespass without considering the defendants’ activities/operations on the land (the purport of the trespass)?
2. Assuming the Plaintiffs’ case was founded on trespass, was it right for the learned trial Judge to strike out the case instead of transferring the same to the Rivers State High Court?
3. was it legally right for the learned trial Judge not to consider the evidence of the parties and all the issues raised in the addresses of the parties, come to a conclusion (or enter a judgment on same) alongside with the issue of jurisdiction?

For the Respondent Mr. Wogu of counsel, after adopting the appellant’s three issues, re-phrased them as follow –

1. Whether the trial court was wrong in declining jurisdiction to entertain the appellant’s suit.
2. In the peculiar circumstance of the case before him, was the learned trial Judge wrong in striking out the case instead of transferring same to the Rivers State High Court.
3. Whether the learned trial Judge who had declined jurisdiction, was wrong in not considering the evidence of the parties and other issues raised in the addresses of the parties; coming to a conclusion (or entering judgment o same) alongside the issue of jurisdiction.

The Appellants, on issue 1, submit that from the facts pleaded in paragraph 5 of the statement of claim, together with the relief claimed therein the trespass of the defendant, they complain of, is one connected with, pertaining to, arising from or ancillary to oil mining. They further submit that the learned trial Judge could have determined the issue of its jurisdiction from either the statement of claim or the evidence available. It is trite that jurisdiction, being a threshold matter; the issue can be taken at any stage. It can be taken after the statement of claim had been filed: see IZENIKWE v. NNADOZIE (1952) 14 WACA 361 at 363; ADEYEMI v. OPEYORI (1976) 9 10 SC 31. It all depends on the materials available. The opinion of Uwaifo, JSC in NDIC v. CBN (2002) FWLR [pt.99] 1021 at 1037, cited by the Appellants, accommodates these views.

The pith of this issue is the question whether from the pleadings or evidence there are available materials to sustain the learned trial Judge’s decision that the Federal High Court had no jurisdiction to entertain the claim of the Appellants against the Respondent, as the defendant.

There are decisions of this Court and the Supreme Court from which to infer that the Federal High Court has jurisdiction to entertain or determine any case in which the claim in tort or trespass is connected with, or pertains to, mines and minerals, including oil field, oil mining and natural gas. C.G.G. (NIG) LTD v. ASAGBARA (2000) FWLR [pt.17 110 is a case in which the Plaintiff (the respondent), an employee of an oil company, was seriously injured by a sharp object left in the swamp along the company’s oil exploration line while maintaining the oil company’s said oil exploration lines. He sued for negligence at the Rivers State High Court, The State High Court assumed jurisdiction. On appeal to this Court, it was held by a split decision that the State High Court lacked jurisdiction. Pats-Acholonu JCA (as he then was) who read the lead judgment stated at page 122

The injury alleged to have given rise to the action in the court below – sprang from the performance of the Respondent’s duty as an employee of the Appellant in drilling operation in respect of oil. If the drilling exercise is in respect water prospecting, any alleged act of negligence will be dealt with in a State High Court. In interpretation of statutes, any word used must be so construed to vive proper meaning to the expression without in any way bringing confusion.