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Home » Nigerian Cases » Court of Appeal » Chevron Nigeria Limited V. Imo State House of Assembly & Ors (2016) LLJR-CA

Chevron Nigeria Limited V. Imo State House of Assembly & Ors (2016) LLJR-CA

Chevron Nigeria Limited V. Imo State House of Assembly & Ors (2016)

LawGlobal-Hub Lead Judgment Report

IGNATIUS IGWE AGUBE, J.C.A. 

In the Owerri Judicial Division of the Federal High Court, holden at Owerri, the Plaintiff (now Appellant) by an Originating Summons dated the 20th day of June, 2006 but filed on the 29th day of June, 2006; sought for the determination of the following questions:
“1. Whether upon a proper construction and interpretation of the provisions of the Constitution of the Federal Republic of Nigeria 1999, the 1st Defendant or its Committee on Petroleum, Energy, Environment and Agriculture has the power, legal right and authority to enquire into and or investigate the subject matter of the claims of the Oguta Farmers Association seeking reparations for alleged damages and injuries as conveyed to the Plaintiff by the 1st Defendant’s letter dated 18th May, 2005?
2. Whether upon a proper construction and interpretation of the provisions of the Constitution of the Federal Republic of Nigeria, 1999 the acts of the 1st Defendant in the course of allegedly investigating the said claims of the Oguta Farmers Association such as the issuance of summons are done in exercise of its

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Constitutional and legal powers?
3. Whether upon a proper interpretation of the Constitution of the Federal Republic of Nigeria, 1999, the 1st Defendant has judicial powers, jurisdiction or legislative competence to entertain a petition seeking compensation for alleged damages and alleged injuries arising from the oil mining and oil exploration activities of the Plaintiff?
4. Whether upon a proper interpretation of the Constitution of the Federal Republic of Nigeria, 1999 the 1st Defendant’s Investigative powers extends to investigations for the purposes determining and or apportioning compensation payable for alleged damages and or injuries?
5. Whether the 1st Defendant has the right to summon the Managing Director of the Plaintiff pursuant to the said petition.”

Against the foregoing questions the Plaintiff (now Appellant) sought for the following Reliefs:
“1. A declaration that by the provisions of the Constitution of the Federal Republic of Nigeria, 1999, the 1st Defendant, its House Committee on Petroleum, Energy and Environment and or other joint Committees are not empowered by law to investigate and conduct enquiries into

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any matter pertaining to the claims by the Oguta Farmer’s association, as conveyed to the Plaintiff by the 1st Defendant’s letter dated 18th May, 2005, which said claims seek reparations from the Plaintiff for alleged damages to food, economic crops and damaged buildings from 1986 – 2003 as a result of the oil mining and exploration activities of the Plaintiff.
2. A declaration that the 1st Defendant’s investigative powers under Section 128 of the Constitution of the Federation Republic of Nigeria, 1999, do not extend to the issuance of a summons against the Managing Director of the Plaintiff or any other member of staff of the Plaintiff for the purposes of adjudicating on the claims of the said Oguta Farmers Association.
3. A declaration that the 1st Defendant and its said House Committee has no legal right whatsoever to adjudicate upon, determine and apportion any amount as compensation payable for any alleged damages or injuries, occurring in the course of the oil mining activities of the Plaintiff as stated in the 1st Defendant’s letter dated 5th June, 2006 and all steps taken by the 1st Defendant in that regard are unconstitutional, illegal,

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null and void.
4. A declaration that the issues raised in the Petition of the said Oguta Farmers relate to Civil Rights and obligations affecting the Plaintiff and the said Oguta Farmers Association which arose in the course of the oil mining activities of the Plaintiff and jurisdiction to entertain and determine same are vested in the Courts pursuant to Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999.
5. A declaration that the invitations and summons issued to and served on the Plaintiff and its Managing Director by the 1st Defendant for purposes of ensuring payments/compensation to the Oguta Farmers Association in respect of their alleged claims against the Plaintiff which allegedly arose as a result of the oil mining activities of the Plaintiff as conveyed to the Plaintiff by the 1st Defendant’s letter dated 18th May, 2005 to the 1st Defendant is unlawful, null and void of no effect whatsoever.
6. An order of perpetual injunction restraining the 1st and 2nd Defendants from further summoning and or from issuing warrants of arrest against the Plaintiff and its Managing Director or the members of staff on the basis of the

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said claims of the Oguta Farmers Association.
7. An order of perpetual injunction restraining the 1st and 2nd Defendants and any of their committees from further inquiring and or investigating the said claims of the Oguta Farmers Association for purposes of apportioning any such alleged liability to the plaintiff.”

In support of the originating summons the plaintiff (now appellant) through her community Engagement Representative (Lands) OBIORA IRO-EGBU deposed to a 26 (Twenty Six) paragraphed Affidavit to which documentary Exhibits marked “A”, “B”, “C1” and “C2”, “D”, “E” and “F” were annexed. The Plaintiff also filed a Written Address in support of the Originating Summons. That Written Address dated the 24th day of April, 2007, was filed on the 30th of April, 2007. Upon being served with the Originating Processes, the 3rd Defendant (now 3rd Respondent) entered conditional appearance by a Memorandum of Appearance dated 10th day of September, 2006 but filed on the 14th day of September, 2006. The 3rd Defendant through Anthony Mbadinuju a Principal Litigation Officer Ministry of Justice, Imo State on the 19th day of January, 2007 filed this

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Counter-Affidavit in opposition to the Affidavit of the Plaintiff in support of the Originating Summons and followed same up with his Written Address dated 16th May, 2007 but filed on 17th day of May, 2007.

A further And Better Affidavit dated 11/6/2007 was filed same date in response to the 3rd Defendant’s Counter-Affidavit. It would appear from the Records that the Court made orders for Written Addresses to be refilled as the Plaintiff filed another Address captioned “WRITTEN ADDRESS OF THE PLAINTIFF FILED PURSUANT TO ORDER OF COURT MADE THE 15TH OF JUNE 2007” on the 3rd day of July, 2007 but dated 18th day of June, 2007. In response, the 3rd Defendant also filed his “WRITTEN ADDRESS BY 3RD DEFENDANT FILED PURSUANT TO ORDER OF THE HON. COURT MADE ON THE 15TH DAY OF JUNE, 2007,” on the 19th of September, 2007 but dated 12th day of September, 2007 along with a Further And Better Counter-Affidavit in opposition to the Affidavit of the Plaintiff in support of the Originating Summons.

???On the 26th day of October, 2007, the Plaintiff filed her Reply on Points of Law dated 24th day of October, 2007. See pages 64 to 102 of the Record of

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Appeal.

On the 6th day of June, 2008; the respective Learned Counsel adopted their Written Addresses after the learned Counsel for the Plaintiff had applied to withdraw the Written Address filed on 19/7/2007 and to adopt the one dated the 18th of June, 2007 and filed on July 3, 2007 along with the Reply on Points of Law filed on 26/10/2007. The 3rd Defendant’s Written Address filed on the 19th September, 2007 was also adopted by the Learned State Counsel and the case was adjourned to the 14th day of July, 2008 for Judgment but it was not until the 31st day of July, 2008 that the Judgment was delivered by the Honourable Justice C.C. Nwokorie who held after a consideration of the Arguments in the Addresses on the Issues raised as follows at pages 12-13, 116 and 117 of the Judgment/Records thus:
“The inherent power of the Governor to revoke Rights of Occupancy, whether Statutory, or Customary is preserved by Section 38 of the Land Use Act.
It is my finding and I further hold that the Imo State House of Assembly and its committee have the power to issue summons and order for the arrest of any person on corporate bodies who fail to answer to

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its summons and invitations.
Therefore, the persistent refusal of the Plaintiff and its staff/Agents to honour the invitation of Defendants and or summons duly issued by the 1st Defendant both in pursuance of its oversight functions and at the instance of the 3rd (who is the Chief Law Officer of the 1st Defendant) is wrong.
In the final result, I declare that:
(1) The Summons issued by the 1st Defendant was done in exercise of its constitutional powers and duties.
(2) The Imo House of Assembly in consultation with the Governor of Imo State has the legal right to award compensation for damages caused by the Plaintiff arising from its oil mining/exploration activities because the lands upon which those activities are being carried out were vested in the Governor by the Rights of Occupancy or the previous owners were deemed revoked and the Land Use Act for overriding public purpose.
In the final analysis, I refuse to make the declaration and order prayed for in this O.R. and would order the Imo House of Assembly and its relevant committees to proceed with its investigations. Parties to bear their Costs.”

Piqued by the

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Judgment of the Trial Court, the Plaintiff by her Notice of Appeal with a whopping 10 (TEN GROUNDS) dated 27th day of August, 2008 and filed on the 2nd day of September, 2008, has now appealed to this Honourable Court. By way of recapitulation, I shall reproduce the Prolix Grounds of Appeal without their particulars thus:
GROUNDS OF APPEAL
“1. The lower Court erred in law when he held that the 1st and 2nd Respondents possess the statutory authority and jurisdiction to investigate petitions and to determine claims by Oguta Farmers Association.
2. The Learned Trial Judge erred in law when he held thus:
“The Oguta Farmers Association do not have to be parties in this or any other judicial or quasi-judicial proceedings in order to have their claims determined.”
3. The Learned trial Judge erred in law when he held that the most fundamental issue to be determined is whether the Land Use Act applies to the transaction that led to these proceedings.
4. The Learned Trial Judge erred in law and thereby misdirected himself on the facts when he held:
“Under the Land Use Act and under the Constitution the territories or areas

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granted to the Plaintiff and all other oil companies operating in Imo State come within the purview of lands granted to the Federal Government of Nigeria by the Governor of the previous Rights of occupancy for overriding purposes.”
5. The Learned Trial Judge misdirected himself on the facts when he held that the Appellant failed to honour invitations of the 1st and 2nd Respondents.
6. The Learned Trial judge erred in law and also misdirected himself when he held thus:
“The Imo State House of Assembly in consultation with the Governor of Imo State has the legal right to award compensation for damaged (sic) caused by the Plaintiff arising from its oil mining/exploration activities because the lands upon which those activities are being carried out were vested in the Governor by the rights of occupancy or the previous owners were deemed revoked under the Land Use Act for overriding public purpose.”
7. The Learned Trial Judge erred in law when he held that the Summons issued by the 1st Respondent was done in exercise of its Constitutional powers and duties.
8. The Learned Trial Judge erred in law when he failed to resolve any of the issues

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raised by the appellant or the 3rd Respondent.
9. The Learned Trial Judge erred in law when he formulated issues which did not emanate from the Claims before the Court and subsequently dismissed the appellant’s claims; and
10. The Learned trial Judge erred in law when he deemed the Memorandum of Appearance filed by the 3rd Respondent as having been properly filed and regularized the representation of the 1st and 2nd Respondent.”

AS FOR THE RELIEFS SOUGHT FROM THE COURT OF APPEAL, the Appellants urged us:
“i. To allow the Appeal.
ii. To set aside the entire Judgment of the Lower Court and its orders and to grant the Reliefs sought in the Originating Summons filed by the Appellant.”

Upon the transmission of the Record of Appeal to this Court and the exchange of Briefs by Learned Counsel for the parties the Appeal was set down for hearing on the 23rd day of March, 2016 but due to exigencies of National Assignment, the Judgment is being delivered today. It would be recalled that in the Appellant’s Brief settled by Mrs. Miannaya A. Essien, SAN of Principles Law Partnerships, Four (4) Issues were distilled for determination

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from the Ten Grounds of Appeal as reproduced hereunder.
ISSUES FOR DETERMINATION
“1. Whether under and by virtue of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 1st Respondent has the legal right and power to act in a judicial capacity by finding the Appellant liable for alleged damages, determining and awarding compensation to the Oguta Farmers Association for alleged damages and or alleged injuries arising from the oil mining and oil exploration activities of the Appellant?
2. Whether the 1st Respondent’s Constitutional duties and powers to investigate and to issue summons extends to investigations for the purpose of determining and or apportioning compensation for alleged damages or injuries done by the Appellant?
3. Whether the Learned Trial Judge was right when he deemed the 3rd Respondent as having appeared for himself and the other Respondents?”
4. Whether the Learned Trial Judge was right when he went outside the Issues for determination and raised and determined Issues that did not arise from the case made out by the parties? (GROUNDS 3, 4, 5, 8 AND 9) of the NOTICE OF

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APPEAL).”

As for the Respondents’ Brief of Argument, which was settled by N.N. Ekedebe (Mrs.) the Learned State Counsel gave Notice of Preliminary Objection on two Grounds to wit:
“(1) That Grounds 2 and 7 of the Grounds of Appeal filed on 27/8/08 are vague and incompetent.
(2) That the Appellant’s Brief of Argument filed on the 19th of December, 2008 or a part of it, is inconsistent in the following respects:
(a) The Appellant’s Issue (1) is not based on any Ground of Appeal filed.
(b) The Appellant’s Issue (1) incorporates the incompetent Ground 2.
(c) The Appellant’s Issue (1) is vague and incompetent.
(d) The Appellant’s Issue (2) incorporates incompetent Ground 7.
(e) The Appellant’s Issue (2) is vague and incompetent.”

Incidentally on the 23rd day of March, 2016 when the Appeal was heard, the Preliminary Objection was abandoned by the Learned State Counsel for the Respondent. Accordingly, the Notice of Preliminary Objection and the arguments in support thereof, are hereby struck out.

Subject to the above abandoned Preliminary Objection, the Learned State Counsel in the alternative nominated

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Three Issues as arising from the Ten(10) Grounds of Appeal which are hereunder reproduced as couched:
ISSUES FOR DETERMINATION
“(a) Whether the 1st and 2nd Respondents posses the statutory authority and jurisdiction to investigate petition and determine claims by the Oguta Farmers Association and invite the Appellant and award compensation for damage caused by the Appellant? Grounds 1, 2, 5, 6 and 7.
(b) Whether the Trial Court left the issues raised by the parties and raised and decided issues not raised by the parties and thereby failed to resolve the main issues under contention? Grounds 3, 4, 8 and 9.
(c) Whether the Learned Trial Judge was right when he deemed the 3rd Respondent as having appeared for himself and the other Respondents? Ground 10.”

ARGUMENTS OF LEARNED COUNSEL FOR THE APPELLANT ON THE FOUR ISSUES DISTILLED FOR DETERMINATION
ISSUE NUMBER ONE:
“WHETHER UNDER AND BY VIRTUE OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED) THE 1ST RESPONDENT HAS THE LEGAL RIGHT AND POWER TO ACT IN A JUDICIAL CAPACITY BY FINDING THE APPELLANT LIABLE FOR ALLEGED DAMAGES,

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DETERMINING AND AWARDING COMPENSATION TO THE OGUTA FARMERS ASSOCIATION FOR ALLEGED DAMAGES AND OR ALLEGED INJURIES ARISING FROM THE OIL MINING AND OIL EXPLORATION ACTIVITIES OF THE APPELLANT?”

Arguing this first Issue, the Learned SAN submitted that the Learned Trial Judge erred in law to have held that the 1st Respondent had the legal right to award compensation for damages allegedly caused by the Appellant in the course of its Oil Mining and Oil Exploration Activities because the 1st Respondent cannot act in judicial capacity by determining and awarding compensation for alleged injuries caused by the Appellant in the course of its oil mining activities as it is neither a Court nor a Tribunal and we were urged to so hold.

In support of his submission, we were referred to paragraphs 7 – 18 (pages 5 – 7 of the Records) and Exhibits A, B, C1, C2 and F at pages 9 – 16 of the Records and 20 – 22 thereof.

The Learned Senior Counsel also referred us specifically to page 16 of the Records where in Exhibit C2, the 1st, Respondent stated that Appellant has to pay the sum of N115,795,982.10 as compensation to Oguta Farmers Association having

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been found responsible for damages and therefore liable to pay reparations; the table of liability for compensation to be paid to the Oguta Farmers Association by the various Companies including the Appellant, and submitted that from pages 5 – 22 of the Records, the 1st and 2nd Respondents determined the Civil rights of the Oguta Farmers Association and the liability of the Appellant to the said Association by awarding compensation to them for alleged damages.

Furthermore, the Learned Counsel contended amongst other reasons why this issue should be resolved against the Respondent but in favour of the Appellant that:
1. The actions of the 1st Respondent were unlawful, unconstitutional and ultra vires its power.
2. That by the lower Court’s holding at page 121 that the 1st Respondent had the legal right to determine liability, it failed to consider the doctrine of separation of powers and the numerous decisions in this respect as entrenched in Section 1(1) of the 1999 Constitution which is the ground norm and fundamental law of the land on the cases: A – G Abia State V. A-G Federation (2002) 6 NWLR (Pt.763) 264 at p. 479 paras. C – G, A-G

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Federation V. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt.618) P. 187 at 308 – 309 per Karibi-Whyte, JSC who reviewed the purport of the doctrine of separation of powers in the latter case.
3. That under the Constitution, the Courts perform judicial functions and the House of Assembly of a State performs legislative and political functions and that judicial functions are created and exercisable by the Courts by Sections 6 and 36 of the 1999 Constitution (Olafisoye V. F.R.N. (2004) 4 NWLR (Pt. 854) 850 at 597 refers). On the mandatory nature of Section 6(1) of the Constitution, he cited Ogunmokun V. Military Administrator, Osun State (1999) 5 NWLR (pt. 594) 261 and P.P.M.C. Ltd V. Delphi Petroleum (2005) 8 NWLR (pt. 928) 458; where Section 6(6)(b) have been interpreted. He also alluded to Section 36(1) of the same 1999 Constitution which provides for fair hearing in the determination of the Civil rights by a Court or Tribunal and by virtue of which the 1st Respondent has no right to determine the Civil rights or obligations of the Appellant.
4. That Section 11(5) of the Oil Pipelines Act, CAP 07 LFN, 2004 provides for payment of compensation by a

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holder of an Oil Mining Licence to those who have been injured by such a holder in the course of its Oil Mining activities and the Appellant has an Oil Mining Licence (paragraph 3 of their Affidavit in Support of the Originating Summons referred). He also referred to Section 19 of the Oil Pipelines Act which deals with any dispute as to the quantum of compensation payable as well as Section 251(1)(n) of the Constitution of the Federal Republic of Nigeria 1999 and Sections 7(1) (p) 7(3) and 7(5) of the Federal High Court Act, CAP F 12 LFN which confer exclusive jurisdiction of the subject matter on the Federal High Court. In support of the above submission he placed reliance onSPDC V. Isaiah (2001) 11 NWLR (pt 723) P. 179 – 180 paras. H-A, page 179 (para. E), 183 paras. G – H, 184 – 185 (paras. E – G); CGG (Nig.) Ltd. v. Chief Lawrence Ogu (2005) 8 NWLR (Pt.927) P. 36? At 381, paras. C – F; and Mpidi Barry V. Eric (1998) 8 NWLR (pt. 562) at P.404, to further buttress his submission on the exclusive jurisdiction to hear and determine causes connected or pertaining to oil mining being within the purview of the Federal High Court.
5. That since the

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damages/compensation directed by the 1st Respondent to be paid by the Appellant can also be considered to be compensation payable under the Oil Pipelines Act and Petroleum Act, the combined effect of the 1999 Constitution and Section 19 of the Oil Pipelines Act, as well as case law is that only Courts established by the Constitution have the right to entertain matters of such nature and that the 1st Respondent has no such powers to determine the Appellant’s liability to the Association in question.

For the above submission we were referred further to the 3rd Respondent’s Affidavit and page 20 to contend that contrary to the averment, in paragraph 13 thereof; the compensation sought is damages as a result of oil mining activities of the Appellant. Page 13 of the Records where further evidence on this issue of compensation can be gleaned from the statement of the 1st and 2nd Respondents was also further cited.

On the unjustifiable interference of the 1st Respondent with the exercise of judicial function by the Courts we were referred to the following cases:
(i) Adetona v. Att. Gen. Ogun State (1983) 4 NCLR 583; (ii) A.G. Oyo State V.

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Adeyemi & Ors. (1952) 3 NCLR 846; (iii) Oil Palm Company Ltd, V. AG & Commissioner for Justice, Bendel State & Ors. (1983) 4 NCLR 746 at 754-755 and (iv) A-G Bendel State V. A-G Federation (supra) at PP 117 – 118; to further contend that the 3rd Respondent’s admission at pages 32-33 of the Records, that the claim is just for economic crops lacks substance as only Courts of the land have a right to adjudicate upon same as they allegedly arose from oil mining activities of the Appellant.

Arguing also on the powers of the House of Assembly of a State to make laws, the Learned Senior Counsel cited Section 4(7) of the 1999 Constitution and the A-G. Abia State V. A-G Federation (supra) at page 386 paras. A – C., and Olafisoye v. F.R.N. (supra) P. 659 paras, A – D; as well as Item 39 of the Exclusive List of the 1999 Constitution; Item 68 of the said List which only the National Assembly has power to legislate on any of the items or any matter mentioned elsewhere in the said List, to contend that by the above constitutional provisions, the State House of Assembly can only exercise its power over matters either on the concurrent List or

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Residual matters and therefore the 1st Respondent cannot legislate on or entertain any matter pertaining or incidental to or connected to oil mining.

The Learned Senior Counsel rehashed his argument on the lack by the 1st and 2nd Respondents of the power to award compensation as such compensation is not within the purview of Imo State Government the compensation having arisen from injuries caused the Oguta Farmers Association by the mining activities of the Appellant as was decided in a similar situation in SPDC V. Isaiah (supra) and CGG (Nig.) Ltd. V. Chief Lawrence Ogu (supra).

In conclusion on this first issue, the Learned Senior counsel referred to Section 128(1) of the 1999 Constitution which limits the 1st Respondent’s powers with regard to matters the House of Assembly can legislate upon which power is also limited by Section 4(7) of the 1999 Constitution that defines the manner in which the power of the 1st Respondent are to be exercised. According to him the 1st Respondent acted in excess of its powers and the 3rd respondent did not say that the alleged acts were done in the course of oil mining and exploration.

Furthermore,

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he submitted, apart from the lack of legal capacity of the Imo State House of Assembly to find the Appellant liable in damages and to award compensation in respect of the subject matter; the Learned Trial Judge failed to consider the evidence before him at pages 5, 6 (paragraph 11) and page 11 of the records, which showed that the Appellant did not cause any damage to the Oguta Farmers Association’s property as there was no evidence before the Court to so show or prove.

In his view, the alleged damage or injuries caused the Farmers Association’s property were in the form of special damages which ought to be specifically pleaded and proved. SPDC (Nig.) Ltd V. Tiebo VII (2005) 9 NWLR (Pt.931) 439; was cited to submit that this was not done (in the case now on Appeal) by the Respondents who also would not have done so as they were not the Oguta Farmers Association and that, that being so, the Court below was in error to have held that the Oguta Farmers Association, which was not a party to the suit, did not have to be a party in order to determine their (Association’s) claim (page 120 paragraph 3 of the Records refers). The reasons in so submitting were

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that only Courts have jurisdiction to determine all actions and proceedings relating thereto for determination of civil rights and obligations of a person (Section 6(6)(b) of the 1999 Constitution of Federal Republic of Nigeria refers); and that there was no evidence before the Court to determine their alleged damages or compensation for same, they being no parties.

The Learned Senior Counsel finally referred to House of Reps. v. S.P.D.C.N. (2010) 11 NWLR (pt. 1205) 213 (CA); where this Court had cause to pronounce on an Appeal relating to the activities of the National Assembly when they sought to investigate the allegations of Ogbako Etche Socio Cultural Organization in a petition against the Respondent which had sought to site its Integrated Hazardous Radioactive Waste Management Facility in Etche Rivers State and upheld the decision of the Lower Court that the acts of the National Assembly were unlawful and ultra vires particularly at page 296 of the Record.

Commenting on the holding of the Learned Trial Judge at page 121 of the Records in respect of the revocation of Rights of Occupancy by the Governor for overriding public

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interest/purpose, or that the Appellant caused anybody damage, it was submitted that there was no evidence whatsoever before the trial Court to so show. Expressing his sense of loss as to where the Learned Trial Judge got the facts to have so held as above, he posited that the findings and judgment of the Learned Trial judge were based on extraneous and irrelevant matters while he totally ignored the case of the Appellant and failed to determine the issues that were before him.

In the light of the above he insisted that the Respondents’ actions were illegal, unconstitutional and ultra vires their powers in law and therefore we were urged to resolve the Issue in favour of the Appellant.

ISSUE NUMBER TWO:
Whether the 1st respondent’s constitutional duties and powers to investigate and to summons, extends to investigations for the purpose of determining and or apportioning compensation for alleged damages or injuries done by the appellant? Ground 7 of the notice of appeal

Arguing this Issue, the Learned Senior Counsel pointed to pages 5, 6, 17 – 19 of the Records (pages 13 and 15 of the Affidavit in Support) which

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show that the 1st and 2nd Respondents invited and subsequently issued summons to Appellant and its Managing Director to appear before the 1st Respondent outside the exercise of 1st Respondent’s Constitutional Powers. The Learned Senior Counsel then referred us to Sections 128 and 129 of the 1999 Constitution which provide for the House of Assembly Oversight functious and the scope of the exercise of the powers. He rehashed his submission on the limitations of the powers of the PW1 by Section 4(7) of the same Constitution and citing the dictum of Tobi, JSC in A-G, Abia State V. A-G Federation (2006) 16 NWLR (Pt.1005) 265 at 379 – 38A paras. H – A; posited that from the state of the law and the dictum of Tobi, JSC; the 1st Respondent’s actions in investigating the complaints of the Oguta Farmers Association is ultra vires their powers for the reasons stated in paragraph 3.6(i)-(iv) of page 14 of the Appellant’s Brief as the actions were outside their legislative competence and were therefore void as we were urged to so hold.

Placing reliance on the case of EL-Rufai V. House of Representative (2003) FWLR (Pt.173) 163 at 188 para. H; where this Court per

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Oguntade, JCA (as then was) considered Sections 88 and 89 of the 1979 Constitution (which were in pari materia with Sections 128 and 129 of the extant Constitution along with Sections of the Legislative House (Privileges) Act; Innocent Adikwu & Ors v. Federal House of Representatives of the National Assembly & Ors (1982) 3 NCLR 394 at 407 – 408; Tony Momoh V. The Senate of the National Assembly (1981) 1 NCLR 105 at 113 paras. 8 – 9 and House of Representatives V. SPDCN (supra) at page 269 para. F; he contended that the 1st Respondent clearly acted in excess of its Constitutional Powers when it issued the Summons (Exhibit E) to the Appellant and its Managing Director not for legislative purposes but for purposes of adjudicating on the Claims of the Oguta Farmers Association.

Furthermore, the Learned SAN alluded to the plain wordings of the Summons at page 21 of the Records [Exhibit F] which according to him were threats to the Appellant and its Managing Director which were calculated to intimidate the Appellant if they did not comply with the demand for payment of compensation to the Association. He also alluded to the wordings of Exhibit E at

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page 19 of the Records which by the use of the word “mandatory” therein connotes obligation as defined in Black’s Law Dictionary at page 1074 and at page 692 of the New Webster’s New English Dictionary as “which must be done….”, thereby infringing the Appellant’s right.

He reiterated on the authority of U.B.A. Plc. V. Okeke (2004) 7 NWLR (Pt.872) 393 at P.412 paras. G – H; that the 1st Respondent’s investigative powers do not extend to investigations for purposes of determining and apportioning compensation to alleged damages or injuries arising from oil mining or exploration and therefore the summons issued by the 1st and 2nd Respondents was in excess of the Constitutional authority and we ought to set same aside.
We were therefore from the foregoing submissions urged to resolve issue 2 in favour of the Appellant.

ISSUE NUMBER FOUR: WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE WENT OUTSIDE FOR DETERMINATION AND RAISED AND DETERMINED ISSUES THAT DID NOT ARISE FROM THE CASE MADE BY THE PARTIES GROUNDS 3, 4, 5, 8 AND 9 OF THE NOTICE OF APPEAL)

On this issue, the Learned Senior Counsel noted that the Learned

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Trial Judge erred in law when he raised issues suo motu (which did not arise from the case) and proceeded to resolve them without hearing from the parties.

He reproduced the Four Issues for determination as formulated by the Appellant at pages 68 and 69 of the Records and the 3rd Respondent’s Three Issues as appear at pages 84 – 85 as well as the singular issue formulated by the Court at page 117 of the Records along with His Lordship’s purport of that sole issue as reflected in page 120 of the Records. According to the Learned SAN; the statements of the Learned Trial judge did not arise from the Originating Summons before the Court as there were:
i. Nothing before the Court to show that the 1st Respondent had an Executive Bill or Memorandum referred to it by the Governor.
ii. Nothing before the Court to show that the House of Assembly was investigating a matter referred to it by the Governor under an Executive Bill or Memorandum by the Governor.
iii. Nothing before the Court relating to the issue of compulsory acquisition of property for overriding public purpose.
iv. Nothing before the Court to show that the subject matter of

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the suit related to the Land Use Act.
v. There was no allegation against the Land Use and Allocation committee; and
vi. Nothing before the Court to show the territories or areas granted to the Appellant or other oil Companies.
vii. Nothing before the Court to show that the territories or areas granted the Appellant and other Oil Companies came within the purview of lands granted the Federal Government of Nigeria by the Governor of the State.
viii. Nothing before the Court to show that the Governor of Imo State granted the Federal Government land for overriding public purpose.

The Learned Senior Counsel also alluded to the extensive analysis by the Learned Trial Judge of Section 44 of the 1999 Constitution, which deals with compulsory acquisition and Section 1 of the Land Use Act and submitted that the Learned Trial Judge erroneously proceeded to find as a fact that the Governor in exercise of his powers under the Land Use Act can consult with his Executive Council, Speaker of the House of Assembly and the Chief Judge of the State at page 120 of the Records; which findings according to the Learned SAN were not borne out of the

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Records.

Citing finally X.S.C (Nig.) Ltd. V. Taisei (WA) Ltd (2006) 15 NWLR (Pt.1003) 533 at 558 paras. C – D; he maintained that the Learned Trial Judge did not resolve the Issues for resolution as raised by the parties and therefore failed in his duty as an independent arbiter as the Records show that neither the Appellant nor the Respondent was asked to address the Court on the Issue raised suo motu which did not arise from the law or evidence before the Court.

It was the view of the Learned Senior Counsel that the Learned Trial Judge considered Issues not before him and which were irrelevant without hearing the parties when he said that inherent power of the Governor to revoke Rights of Occupancy, whether statutory or customary is preserved by Section 38 of the Land Use Act. She further referred to page 120 of the Records where the Court held that the persistent refusal of the Plaintiff and its Staff/Agents to answer to the Summons of the 1st Respondent was wrong whereas page 6 paras. 10 and 15 of Records show that Appellant had honoured the 1st and 2nd Respondents invitations a fact which the 3rd Respondent admitted at page 32

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paragraph 9 of his Counter-Affidavit and wondered where the Court get that piece of evidence and in his view those findings as all highlighted in paragraphs 4.8 – 4.15 of the Appellant’s Brief were perverse and unsubstantiated by evidence.

Relying again on Dalek (Nig.) Ltd. v. OMPADEC (2007) 7 NWLR (pt.1033) 407 at 439 paras. A – D, Cookey v. Famba (2005) 15 NWLR (Pt.947) at 182; 200 paras. D – E. Dairo V. UBN Plc (2007) 16 NWLR (pt 1059) 99 at 138 para. G; Uzoho V. N.C.P. (2007) 10 NWLR (Pt. 1042) 320 at 342 paras. B F; on the principles of law that the Court cannot go outside the pleadings and the case presented before it by parties; that a Court of law should deal with all the issues placed before it except there are exceptions to the rule; the need for parties to be heard on an issue raised suo motu the failure of which amounts to denial of fair hearing; and the effect of raising such an issue not covered by the pleadings; it was submitted that the issues raised by the Learned Trial Judge in this case occasioned the Appellant grave miscarriage of justice and having affected the perverse decision of the Court below, it is appropriate for

See also  Alhaji A.F. Alawiye V. Mrs E.A. Ogunsanya (2003) LLJR-CA

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this Honourable Court to set same aside as the failure to hear the parties on the issues raised and the basis on which the lower Court’s Judgment was predicated, renders the entire proceedings a nullity.

Still on his contention that the findings of the Court below were perverse as it ran counter to the evidence and pleadings and the allegation of consideration of irrelevant and extraneous matter which findings were not supported by legal and credible evidence as the Court shut its eyes to the obvious, the learned Senior Counsel referred us to Yero V. Arewa Construction Co. Ltd. (2007) 17 NWLR (pt. 1063) 333 at 373 paras. C – D; Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1 at 740. 141 paras. H – C; and Lagga V. Sarhuna (2008) 16 NWLR (Pt.114) 427 at 474 paras. D F.

The Learned silk also contended that the Court below did not evaluate the evidence and the law and to prove the extent of such failure as decided in Akinfe V. UBA Plc. (2007) 10 NWLR (Pt. 1041) 185 at 200 201 paras. H B and Suleiman V. COP, Plateau State (2008) 8 NWLR (Pt.1089) 298 at 330 paras. D – F, he alleged that the Learned Trial Judge failed

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to:
i) Consider the respective Affidavits and counter-Affidavits of the parties; (ii) consider the admissions made by the Respondents.
(iii) consider that the 1st and 3rd Respondents did not challenge the Originating Summons; (iv) evaluate law and case law on Constitutional issues arising from the case and (v) failed to consider the several decisions of the Appellate Courts on the Constitutional issue which it is bound by but proceed on its voyage of discovery of what had nothing to do with the case before it.

Finally, the Learned Senior Advocate urged us to hold on the authorities of Akinfe V. UBA PLC (supra) at page 200 – 201 paras. H – B, Garuba V. Yahaya (2007) NWLR (pt 1021) 390 at 407 – 409 paras. H – C. and A G. Federation V. Abubakar (supra) at 141 paras. A – B; to that the Appellant discharged the onus placed on it to show the extent of misdirection in law that has resulted in a miscarriage of justice in the matter and the fact that the Trial Court drew wrong inferences from primary facts or that it failed to consider the evidence before it which led to wrong conclusions and as such we shall be justified in re-evaluating and

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reconsidering the evidence in order to arrive at a just decision particularly as the entire pleadings and evidence were by undisputed Affidavits.

We were then in the light of the foregoing urged to resolve this Issue also in favour of the Appellant.

ISSUE NUMBER THREE: WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE DEEMED THE 3RD RESPONDENT AS HAVING APPEARED FOR HIMSELF AND THE OTHER RESPONDENTS? (DISTILLED FROM GROUND 10).”

On this Issue the learned SAN prefaced her argument by answering the question posed by the Issue in the negative reason being that the Records show that only the 3rd Respondent appeared in Court and filed process on his behalf and it is also clear from the Counter-Affidavit and Further Counter-Affidavit of the 3rd Respondent at pages 31 and 98 of the Records that he appeared only for himself having also filed the written Address for himself alone. (page 48 of the Records refers). Furthermore, he noted, on the adoption of the written Address, the 3rd Respondent also appeared for himself (page 105 of the Records refers).

Citing the cases of Nigeria Engineering Works Ltd. V. Denap Ltd. (2001) 18

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NWLR (Pt. 746) 626 at 753 paras, C – D and Erokoro V. Govt. of Cross River State (1991) 4 NWLR (pt. 185) 522 at 336 paras. E – C; the Learned Senior Advocate conceded that the Office of the Attorney-General of a State can represent the Governor or other public Officer but the Attorney-General must from his pleadings and processes, clearly be acting for that person as the authority to represent Government figures is not at large but must be in accordance with Laws of the Federal Republic for according to the Learned Senior Counsel, the Attorney-General is a nominal party.

The Learned SAN argued that the above submission is important because the 1st and 2nd Respondents were proper parties to the suit and the law expects a party who intends to defend a suit to file the appropriate processes either himself or by his Counsel. For this submission he referred us to Order 14 of the Federal High Court (Civil Procedure) Rules, 2000 as well as Order 15 Rule 7 thereof on the effect of failure of the 1st and 2nd Respondents to enter appearance and file their Counter-Affidavit which could only mean that they had conceded to the Claim of the Appellant.

On the

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significance of entry of appearance by a party to a Suit, he referred us to Civil Procedure in Nigeria by Fidelis Nwadialo, SAN at page 289 and submitted that having failed to enter appearance, it cannot be presumed that the 1st and 2nd Respondents intended to defend the suit and that there is nothing that in the Rules allowed the Learned Trial Judge to deem the process filed by one party as having been filed for and on behalf of the other parties.

Against the above premises, he asserted that the Learned Trial Judge without any application by the 1st and 2nd Respondents or the 3rd Respondent, proceeded at page 115 of the Records to suo motu deem the Memorandum of Appearance and other processes as having been filed on behalf of the 1st and 2nd Respondents. The Learned Senior Advocate then posited that the Learned Trial Judge was wrong in the circumstances of the case to have deemed the 3rd Respondent as appearing for the 1st and 2nd Respondents and regularizing the appearance of the 3rd Respondent for the 1st and 2nd Respondents when the 3rd Respondent filed no Counter-Affidavits and Written Addresses on their behalf.

It was finally

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submitted in the light of the above that the Learned Trial Judge ought to have granted the Appellant’s Reliefs as sought against the 1st and 2nd Respondents in accordance with Order 40 Rule 6 of the Federal High Court (Civil Procedure) Rules, 2000 and in conclusion we were urged to resolve the issue in favour of the Appellant and for the reasons stated in pages 27 and 28 of the Records to allow the Appeal and grant the Reliefs as sought.

ARGUMENTS OF LEARNED COUNSEL FOR THE RESPONDENTS.
ISSUE NUMBER 1 OR (A): WHETHER THE 1ST AND 2ND RESPONDENTS POSSESS THE STATUTORY AUTHORITY AND JURISDICTION TO INVESTIGATE PETITION AND DETERMINE CLAIMS BY THE OGUTA FARMERS ASSOCIATION AND INVITE APPELLANT AND AWARD COMPENSATION FOR DAMAGE CAUSED BY THE APPELLANT (DISTILLED FROM GROUNDS 1, 2, 5, 6 AND 7 OF THE NOTICE OF APPEAL).

In his argument on this Issue, the Learned State Counsel noted that Appellant questions the power of the Imo State House of Assembly to investigate any damage done to farmland and economic crops and trees of Oguta people of Imo State under the aegis of Oguta Farmers Association and conveyance of the assessed cause of

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the damage to the Appellant.

According to him nobody questioned the right of the Appellant to mine and prospect for oil on any land in Imo but that the Oguta Farmers Association are only trying to claim compensation from the Appellant for the damage done by the latter to their farmland and economic crop and trees and as such ran to the 1st and 2nd Respondents to complain about the said damage.

???He cited Section 128(1) of the Constitution the provisions which he reproduced to submit that under that Section the Imo State House of Assembly has the power to direct or cause to be directed an inquiry into any matter or thing with respect to which it has power to make law. He further alluded to Item 18 of the 2nd Schedule Part 2 of the 1999 Constitution which empowers the House of Assembly also to make Laws for Agricultural development of the State and it is therefore part of the oversight functions of the 1st Respondent to make inquires related to damages to food and economic crops in Oguta Local Government Area of Imo State as well as the Welfare of Oguta Farmers Association and investigate the matter to ensure the development of Agriculture in Oguta

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farmland.

He further alluded to Sections 129(1) and (2) under which in exercise of the powers conferred upon the 1st Respondent for purposes of such investigation to examine all persons as witnesses whose evidence may be material or relevant to the subject-matter, including the Appellant. For the above submission he placed reliance on A-G, Abia State V. The A – G, Federation (2006) 28 NSCQR 161 at 217 – 218 per Niki Tobi, JSC. Referring us to the Exclusive List of the 1999 Constitution he noted and conceded that the National Assembly can make laws in respect of mines and minerals including oil fields, and oil mining but that nothing in the letter of invitation by the 1st Respondent to the Appellant, touches on mines and minerals or for the Appellant to pay for oil field and oil mining as there is a difference between what the 1st Respondent is doing (investigating damage to crops) and investigating mines and minerals which the Imo State House of Assembly has never done.

Thus, in his view, the Court cannot question or remove the Constitutional powers of the Imo State House of Assembly nor can the National Assembly usurp the powers of Imo

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State House of Assembly to carry out the said investigation of the issue of Agricultural Farmland in any of its territory including Oguta Local Government Area. A.G. Abia V. The A-G. Federation (supra) at page 237, 238 – 239 refer. He explained that the purport of the claim of N705,302,800 (Seven Hundred and Five Million, Three Hundred and Two Thousand and Eight Hundred Naira) only as presented to the 1st Respondent by the Oguta Farmers as in Exhibit “A” cannot be said to be an award of damages to anybody as the putting up of a claim does not amount to adjudication and the 1st Respondent did not constitute itself into a Court nor did adjudicate over any matter; for if 1st Respondent did not intervene there would have been break down of law and order.

According to the Learned State counsel and the rationale in so submitting above, the Plaintiff did not exhibit any Record to show that there was a Court proceeding to which the 1st Respondent was a judge and that under Section 43 of the 1999 Constitution, every citizen of Nigeria is entitled to acquire and own immovable property which include building food and economic crops and consequently entitled to

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bring any action for damage done to his property. Furthermore, he urged, under Sections 128 and 129 of the 1999 Constitution the citizen is also entitled to lodge a complaint of damage to his property, food and economic crops to the State House of Assembly which has the oversight powers in this regard if he so wishes.

On the right of the Oguta Farmers’ Association to complain to the Imo State House of Assembly, the Learned State Counsel referred us also to Section 4(7) of the 1999 Constitution which gives the Imo State House of Assembly power to legislate on any matter within the Concurrent Legislative and Residual Lists, he referred us again to A-G. Abia V. The A G. Federation (supra) at 386 paras. A – C; and Olafisoye V. F.R.N (2004) 4 NWLR (pt.864) 580 at 659 paras. B – D. He further referred to Section 11(5) of the Oil Pipelines Act CAP. 07, Laws of the Federation of Nigeria, 2004 and Section 19 thereof which provide for payment of compensation by holders of oil mining licenses to those who have suffered injuries/damage in the course of their mining activities and the venue or appropriate organ of Government for settlement of such dispute

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as may arise from settlement of such compensation. EL-Rufai v. House of Reps (2005) FWLR (Pt 173) 162 at 188 para. H and Innocent Adikwu V. House of Reps. (2008) 3 NCLR 393 at 407 – 409; where the Court held that the investigating powers of such a body is subject to the provisions of the Constitution having regard to the language of the Constitution.

The learned State Counsel also further argued that there is no evidence on Record that 1st and 2nd Respondents awarded damages as the letter written to the Appellant (page 16 of the Records refers); was merely a letter of claim to the Appellant as compensation for the Oguta Farmers Association. Moreover, he added, the 1st Respondent never found the Appellant liable in damages but claimed compensation for the destruction of the building, food and economic crops to the farmland of the people of Oguta in Imo State more so when the said document written to the Appellant (Exh. “2”), was captioned “Submission of Claim by Oguta Local Government Area Farmers Association.”

After relishing his earlier arguments on the Issue he subsequently urged us to resolve the Issue in favour of the Respondent.

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ISSUE NUMBER TWO OF THE RESPONDENT: WHETHER THE TRIAL COURT LEFT THE ISSUE RAISED BY THE PARTIES AND RAISED AND DECIDED ISSUES NOT RAISED BY THE PARTIES AND THEREBY FAILED TO RESOLVE THE MAIN ISSUES UNDER CONTENTION (DISTILLED FROM GROUNDS 3, 4, 8 AND 9 OF THE NOTICE OF APPEAL).

By way of prefatory remarks, the Learned State Counsel noted that the purport of this Issue is in the main, the use of such terms like the LAND USE ACT and that by the answer to the question posed above by the Issue is in the negative as the Learned Trial Judge did not go outside the Issues for determination but that his Judgment answered the questions raised in the Originating Summons. Citing Lasis ALU v. Sule Dakan (2006) 26 NSCQR (Pt.2) 950 at 958 – 959; he submitted that the Court is entitled to raise an issue for determination in a case to properly address the issue arising in the matter and consequently the Court below was not bound to use the issue raised by both parties. For this submission he further relied on the cases of Oloriode V. Oyebi (1984) 1 SCLR 390; (1984) 1 SC 1 and Olaba V. Akereja (1988) 3 NWLR (pt.84) 508; in pointing out that the words of the

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Learned Trial Judge in the formulation of the issue are at pages 116 – 117 of the Records and not 117 as noted by the Learned Counsel for the Appellant. He reproduced the finding of the Learned Trial Judge in that respect and his conclusion that the persistent refusal by the Appellant and its Staff/Agents to honour the invitation of the 1st Respondent or the summons duly issued by the 1st Respondent both in pursuance of their oversight functions and at the instance of the 3rd Respondent who is the Chief Law Officer of the 1st Respondent, was wrong. The Learned Counsel for the State urged us to resolve the Issue against the Appellant and in favour of the Respondents.

ARGUMENT OF ISSUE NUMBER 3 OF THE RESPONDENTS: WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE DEEMED THE 3RD RESPONDENT AS HAVING APPEARED FOR HIMSELF AND OTHER RESPONDENTS (DISTILLED FROM GROUND 10 OF THE GROUND 10 OF THE GROUNDS OF APPEAL).

On this Issue, the Learned Counsel for the Respondents also answered the question above posed in the affirmative as according to him the Learned Trial Judge was right when he held that the 3rd Respondent properly represented

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the 1st and 2nd Respondents.

He argued that as was rightly conceded by the Learned Counsel for the Appellant on his Issue Number 5 at page 24 of the Appellant’s Brief, the Attorney-General as the Chief Law Officer of the State can represent the Governor or any arm of Government in the State. For this submission he referred to Section 195(1) of the 1999 Constitution and further pointed out that the House of Assembly of Imo State is the 3rd Arm of the State Government while the Speaker of the House is by protocol the number three citizen. Consequently, the competence of the State Counsel representing both the State House of Assembly and Speaker can never be in dispute.

???He maintained that under the law, no party is a nominal party because any judgment given against any arm of Government is deemed given against the Government itself. Thus, he added, any submission made on behalf of an arm of Government is deemed to have been given on behalf of every arm of Government in action. Accordingly, he submitted that appearance made by the State Counsel on behalf of the 3rd Respondent is an appearance made to all the Government agencies who are part and

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parcel of the Government of Imo State. Thus, the Learned Trial Judge rightly held that appearance filed by the 3rd Respondent was deemed to have been properly regularized by the representation of the 1st and 2nd Respondents.

We were finally urged to resolve the Issue against the Appellant and in favour of the Respondents and in conclusion dismiss the Appeal for being devoid of merit.

RESOLUTION OF ISSUES
In the resolution of the issues formulated by the respective Learned Senior Counsel and State Counsel for the parties, I shall consider/merge Issues 1 and 2 of the Appellant with Issue (A) of the Respondents and consider Issues 3 and 4 of the Appellant and (B) and (C) of the Respondents separately.

Before then, let me by way of recapitulation state the facts leading to the case in the Federal High Court now on Appeal herein as can be gleaned from the Affidavit in Support and Counter-Affidavit against the Originating Summons which are as follows:
The Plaintiff (now Appellant) is a Limited Liability Company incorporated under the Laws of the Federal Republic of Nigeria engaged in the business of Oil mining and exploration

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in Nigeria with Head Office at No. 2 Chevron Drive, Lekki Peninsula, Lagos and other Offices in other parts of Nigeria.

The Plaintiff is also a Joint Venture Operator with the Nigerian National Petroleum Corporation and is the holder of Oil Mining Lease No. 53 and carries oil mining activities at JISIKE FIELD in OGUTA LOCAL GOVERNMENT AREA OF IMO STATE within the Jurisdiction of the Court of first instance pursuant to the said Oil Mining Lease.

The 1st Defendant (now Respondent) is the Imo State House of Assembly with Legislative Powers to enact laws for the peace, order and good governance of the State and any part thereof while the 2nd Defendant (now Respondent) is the Principal Member of the 1st Respondent who has the duty of presiding and guiding the affairs of the 1st Respondent. The 3rd Defendant (now respondent) on the other hand is the Chief Law Officer of the State.

Sometime in 2005, the 1st Respondent received complaints from the Oguta Farmers Association in which they complained of alleged acts of several oil companies, including the Appellant, in the course of their (Companies) oil and mining activities and exploration which

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adversely affected their food, economic crops and buildings. By a letter dated the 18th day of May, 2005, addressed to the Plaintiff/Appellant, the 1st Respondent informed the Appellant of the Oguta Farmers Associations’ complaints. A copy of the letter was pleaded as Exhibit ‘A’. By the said letter, the 1st Respondent demanded for a meeting to be held at which the 1st Respondent would apportion liability totaling N705,302,800.00 (Seven hundred and Five million Three hundred and Two thousand, Eight hundred Naira) only to the Plaintiff/Appellant and other Oil Companies like Shell Petroleum Development (Nig.), Addax Petroleum Development Nigeria Ltd. and Nigeria Agip Oil Company Ltd; for alleged damages arising from oil spillages, injuries etc, as result of their oil mining activities.

???On the 23rd day of June, 2005, Learned Counsel and Partner in the Law Firm of Miannaya Aja Essien & Associates, Mr. Aham Ejelam and one of the Plaintiff’s/Appellant’s Staff Mr. Eseosa Oriakhi, attended a meeting to which the Appellant was invited and which meeting was adjourned to the 14th of July, 2005 and subsequently to 5th of August, 2005. It is the further case of

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the Plaintiff/Appellant that by a letter dated 2nd August, 2005, the Plaintiff/Appellant through its Counsel wrote to the 1st Respondent intimating them that the Appellant was not responsible for any of the allegations made against it by the said Oguta Farmers Association which letter was annexed and marked Exhibit “B” to the Affidavit in Support.

By two other letters dated 30th of August, 2005 and 3rd November, 2005, the 1st Respondent wrote to the Appellant in reaction to the letter of Appellant’s Counsel disclaiming liability. The two letters from the 1st Respondent were also tendered and marked Exhibits “C1” and “C2” respectively. By another letter dated 30th January, 2006, the 1st Respondent again invited the Appellant to attend a Joint Committee Meeting at the 1st Respondent’s office to discuss the issue which said letter of invitation was again pleaded and marked Exhibit “D” and thereafter the 1st Respondent was said to have issued several summonses to the Appellant and its Managing Director, including those dated 18th and 24th May, 2006 respectively; threatening to arrest the Managing Director of the Appellant if he did not attend. The copies of the

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Summonses were also tendered and marked Exhibit “E”

On the 6th day of June, 2006, the Plaintiffs/Appellant’s Acting Managing Director, out of respect for the 1st and 2nd Respondents responded to the Summons and went to the Offices of the 1st and 2nd Respondents and attended the meeting with other members of his Management Staff and its extended Counsel and reiterated that the 1st Respondent was not the appropriate forum to resolve the issues raised in the Oguta Farmers Association’s Petition as it was for the Courts to determine. At the end of the meeting, the 1st Respondent addressed a letter dated the 5th of June, 2006 to the Appellant in which they demanded for the Appellant to pay compensation to the said Association for alleged damage and/or injuries arising from the Appellant’s Oil mining activities and other Oil companies. A copy of the said letter was also tendered and marked Exhibit “F”.

The Appellant was asked to return to the 1st Respondent on the 30th of June, 2006 in order to discuss the contents of the Petition/Claims of the Oguta Farmers Association and the 1st Respondent’s Letter of 5th June, 2006. The Appellant claimed in its

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Affidavit that it knew as a fact that the subject matter of the Petition is for compensation allegedly claimed for damage and injuries allegedly arising from its oil mining and oil exploration activities and that at all material times the 1st and 2nd Respondents have only sought to extract the alleged compensation for the activities of the Plaintiff in the course of its oil mining activities.

It (the Appellant) averred that it has always had good relationship with its host communities of Igbele, Umuamaka, Okwudor, Eziama and Amakpu and has carried out several Community projects within the said communities and that its Counsel Mainnaya A. Essien, informed it which information it believed that;
(i) The 1st Respondent is not a Court and lacks the jurisdiction/competence to determine matters raised in the Petition.
(ii) All matters raised in the Petition are connected with and pertaining to oil mining and outside the Legislative competence and jurisdiction of the 1st Defendant/Appellant as established by the Constitution of the Federal Republic of Nigeria, 1999; and that the subject matter of the said petition can only be entertained by a Court

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of law and not the 1st Respondent.

The Plaintiff/Appellant finally averred in paragraph 24 of the Affidavit in Support that she believed that if the 1st and 2nd Respondents were not restrained, they would issue a Warrant of Arrest for the arrest of the Managing Director and other members of the Plaintiff/Appellant’s Staff, if they did not attend other meetings to discuss and negotiate the claims contained in the Petition, as the 1st and 2nd Respondents have threatened to so act in the past.

CASE FOR THE RESPONDENTS
The case for the Respondents as deposed to by Anthony Mbadinuju, Esq.; the Principal Litigation Officer in the Office of the 3rd Respondent in the Counter-Affidavit in opposition to the Originating Summons admitted some of the averments of the Plaintiff’s Affidavit in Support and denied some. In particular, he admitted paragraphs 4, 5, 6, 7 and 8, denied paragraph 9 as false stating that the letter (Exhibit A) is expressly clear that the meeting would enable all the parties to the said meeting apportion bills and facilitate payment to the Claimants but had nothing to do with apportioning of liability.

In paragraph 6 of

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the Counter-Affidavit he admitted that paragraph 11 of the Affidavit in support of the Originating Summons is true to the extent that such a letter was written while in paragraphs 7 and 8 of the Counter-Affidavit the Respondents admitted the truth of the averments in paragraph 14 of the Affidavit in Support but denied that there was threat in Exhibit E which speaks for itself and which was the only letter written on 24th May, 2006 to the Managing Director of the Appellant under reference No: IHA/CL/S./4/44.

The Respondents also admitted paragraph 15 of the Affidavit in Support while paragraph 15 thereof was denied as false as the 1st Respondent was not resolving any issue but was rather asking the Plaintiff to pay compensation for damages caused to the crops and other things in their farmland. (See paragraphs 9 and 10 of the Counter-Affidavit).

In paragraphs 11 and 12 as well as 13 of the Counter-Affidavit the Respondents also admitted paragraph 19 of the Affidavit in Support as true having insisted that it is part of the oversight function of the 1st Defendant/Appellant to demand for such compensation. As for paragraph 20 of the Affidavit in

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Support, it was dismissed as false as the 1st and 2nd Respondents were only demanding compensation and not extracting same from the Appellant as a result of the damage caused by them to the economic crops and other damages done to the farm land of Oguta Farmers Association and not activities of the Appellant in the cause of its oil mining and oil exploration activities.

The Respondents further denied the averments in paragraphs 21, 22 and 23 of the Affidavit in Support by their (Respondent’s) paragraphs 14 and 15 of the Counter-Affidavit and averred rather that Appellants had caused immense damages to the host Communities without compensation in spite of several demands adding that the 1st Defendant/Respondent was not demanding compensation for Oil Mining activities of the Appellants, but compensation for damages caused to the economic crops on the land. The Respondents therefore deposed in their paragraph 16 of the Counter-Affidavit that they were informed by Mrs. N. N. Ekedebe, State Counsel handling the matter and they believed her that:
(a) The 1st Respondent has the competence in it’s oversight function to demand for compensation from the

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Plaintiff/Appellant in respect of damages caused by it to any parcel of land in Imo State including the land of Oguta Farmers Association.
(b) That the 1st Respondent’s claim and demand had nothing to do with matters connected with and pertaining to Oil Mining.

Furthermore, the Respondents in paragraphs 17, 18 and 19 of their Counter-Affidavit also denied paragraphs 23, 24 and 26 of the Affidavit in Support and stated on the contrary that the 1st Respondent had the competence to look into the subject-matter of the said Petition and that they were informed by the said Mrs. N. N. Ekedebe of Counsel for the 3rd Defendant/Respondent which information they verily believed that the Court below cannot restrain the 1st and 2nd Respondents since their demand is within their Constitutional duty.

Finally, the Respondents averred that at the hearing of the Suit, they shall urge the Court to dismiss same and the Reliefs sought for lacking in merit.

RESOLUTION OF ISSUES 1 AND 2 OF THE APPELLANT AND (A) OF THE RESPONDENTS
The resolution of these Issues will turn on the interpretation of the Constitutional provisions donating Legislatives

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powers to the Imo State House of Assembly taking into consideration the doctrine of separation of powers as entrenched in the Constitution and the scope of such powers. Good enough the respective Learned Counsel have referred us to certain salient Sections of the Constitution and decided authorities on the subject-matter.

There is no doubt as the Learned Senior Counsel for the Appellant has submitted that the Constitution of the Federal Republic is the grund norm and fundamental law of the Land. By Section 1(1) of the Constitution, the Supremacy of the Constitution has been made sacrosanct and binding on all authorities and persons throughout Nigeria and more particularly Section 1(3) provides in absolute and express terms that if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail, and that other law shall to the extent of its inconsistency, be void.

It is also a truism as submitted by the Learned Senior Counsel for Appellant and on the authorities of A-G, of Abia State v. A-G, Federation (2006) 16 NWLR (Pt. 1005) 265 at 353-354 paras. F-H. and A-G. Federation v. Guardian Newspaper Ltd. (1999)

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9 NWLR (Pt. 618) 187 at 308-309 per Karibi-Whyte, JSC, that Nigeria runs a Federal system where (as I had said earlier) there is separation of powers between the three arms of Government namely: the Executive; the Legislature and the Judiciary with each arm having exclusive control over its sphere of influence. Thus, Karibi-Whyte, JSC reviewing the purport of the doctrine while interpreting the provision of the 1979 Constitution which is in pari materia with our current 1999 Constitution on the subject, rightly posited that: “implicit in the power so vested, the one was not to interfere with the exercise of the powers of the other, except to the extent to which the Constitution confers such powers of interference. This is that hallowed principle of separation of powers first formulated by Montesquieu and now nearly perfected in the Constitution. …. As a general rule therefore, except otherwise expressly provided or incidental to the powers conferred, the Legislature cannot exercise either executive or judicial powers.”

Specifically speaking about this case which bothers on the exercise of the Legislative powers of State House of Assembly and the grouse of

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the Appellant that the Imo State House of Assembly acted ultra vires by usurping the powers of the Courts as donated in Section 6(1) and exercisable by them pursuant to Section 36(1) of the Constitution, when it summoned the Appellant and made in terrorem orders imposing payment of compensation to the tune N115,795,982.10 million Naira as a result of the Appellant’s Oil Mining and Oil exploration activities which caused damage to the Oguta Farmers Association’s economic and food crops as well as buildings when the 1st Respondent has no such Constitutional powers and despite protest by the Appellant’s Exhibit C2.

Now, Section 4(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) states thus:
“(6) The Legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.”
As for the scope of the powers so conferred on the House of Assembly above, Subsection (7) of Section 4 thereof stipulates in very clear terms that:
“(7) The House of Assembly shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters,

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that is to say-
(a) Any matter not included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution.
(b) Any matter included in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule this Constitution to the extent prescribed in the second column opposite thereto; and
(c) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.”

See Tobi, JSC in A-G, Abia State v. A-G. Federation (2006) 16 NWLR (Pt. 1005) 265 at 352 paras. F-G and 353-354 paras. H-H; where he explained on the above provisions that: “There are two Legislative lists in the 1999 Constitution. These are the Exclusive Legislative List and Concurrent Legislative List. The Exclusive Legislative List of Part 1 Schedule 2 to the Constitution contains 68 items. By Section 4(2) only the National Assembly can exercise legislative powers on the 68 items. The Concurrent Legislative List contains 30 items the Concurrent Legislative List clearly sets those items that the National Assembly can freely legislate upon. So to

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the House of Assembly of a State as it relates to Section 4(7) (b) of the Constitution. While the House of Assembly of a State is prohibited from exercising legislative functions on matters in the Exclusive Legislative List, the House of Assembly can exercise legislative powers on matters contained in Section 4(7) of the Constitution. This in respect of matters not included in the Exclusive List set out in Part 1 of the Second Schedule to the Constitution and any matter included in the Concurrent Legislative List, set out in the First Column of Part II of the Second Schedule to the Constitution to the extent prescribed in the Second Column opposite thereto.”
A careful perusal of the Second Schedule Part 1 which deals with Legislative Powers and in particular contains the items in the Exclusive List, list “Mines and minerals including oil fields, oil mining, geological surveys and natural gas.” as Item 39 of the Exclusive Legislative List. Again, as rightly submitted by the Learned Counsel for the Appellant, Item 68 of the Exclusive Legislative List also empowers the National Assembly only to make laws on any matter incidental or supplementary to any

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matter mentioned elsewhere in the List. From the above provisions, it is clear that only the National Assembly has power to legislate on mines and minerals, oil fields and oil mining and any matter incidental or supplementary to any matter or item mentioned in the Exclusive List. Therefore any fallout from the activities of the Appellant in the course of mining or exploring oil should be within the exclusive preserve of the National Assembly to wade into it.
In the instant case, the bone of contention is the investigation conducted by the State House of Assembly by its purported Joint Committee of the House on Petroleum, Energy and Environment and Agriculture and it is necessary at this juncture to allude to the provisions of Sections 128 and 129 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended). Those Sections which have been cited by each of the Learned Senior as well as State Counsel to buttress their respective stance on the powers of the 1st and 2nd Respondents provide inter alia that:
“128(1) subject to the provisions of the Constitution, a House of Assembly shall have power by resolution published in its journal or in

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See also  Sadiq Ozovehe Umar V. Salihu Adinoyi Onikata & Ors (1999) LLJR-CA

the Official Gazette of the Government of a State to direct or cause to be directed an inquiry or investigations -into-
(a) Any matter or thing with respect to which it has power to make laws; and
(b) The conduct of affairs of any person, authority, Ministry or government department charged, or intended to be charged with the duty of or responsibility for-
(i) Executing or administering laws enacted by that House of Assembly, and
(ii) Disbursing or administering moneys appropriated or to be appropriated by such House.
(2) The powers conferred on a House of Assembly under the provisions of this Section are exercisable only for the purpose of enabling the house to –
(a) make laws with respect to any matter within its legislative competence and to correct any defects in existing laws; and
(b) expose corruption inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement of funds appropriated by it.” UNDERLINING MINE FOR EMPHASIS.

Under Section 129 which deals with powers as to matters of evidence, Subsection (1) thereof provides that: “for purposes of

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exercise of the powers of investigation under Section 128 aforesaid of the Constitution; and subject to the said provisions, a House Committee appointed in accordance with Section 103 of the Constitution shall have power to: (a) procure evidence, written or oral, direct or circumstantial as it may think necessary or desirable, and examine all persons as witnesses whose evidence may be material or relevant to the subject-matter; (b) require such evidence to be given on oath; (c) summon any person in Nigeria to give evidence at any place or produce any document or other thing in his possession or under his control, and examine him as a witness and require him to produce any document or other thing in his control or under his control, subject to just exceptions; and (d) issue warrant to compel to attendance of any person who, after having been summoned to attend, fails, refuses or neglects to do so and does not excuse such failure, refusal or neglect to the satisfaction of the House of Assembly or the committee, and or order him to pay all costs which may have been occasioned in compelling his attendance or by reason of his failure, refusal or neglect to obey the

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summons and also to impose such fine as may be prescribed for any such failure, refusal or neglect; and any fine so imposed shall be recoverable in the same manner as a fine imposed by a Court of Law.
(2) A summons or warrant issued under this Section may be served or executed by a member of the Nigeria Police Force or by any person authorized in that behalf by the Speaker of the House of assembly.”

Here again, from the provisions of Sections 128 and 129 of the Constitution of the Federal Republic of Nigeria as copiously reproduced above, the Imo State House of Assembly can only exercise the power to institute an inquiry first of all subject to the provisions of the Constitution.
Therefore the provision is subordinated to other provisions of the Constitution and in particular Section 4(7) of the same Constitution which provides for the scope of the Legislative competence of the House of Assembly. See Ndaba (Nig.) Ltd. & Anor. V. UBN Plc & Ors. (2009) LPELR 8844 (CA).
To make the provisions even clearer Sub-section (1) (a) & (b) of Section 128 circumscribe the power of inquiry or investigation of the House of Assembly only

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to:
“(1) Any matter or thing in respect of which it has power to make law and;
(2) The conduct of affairs of any person, authority, Ministry or Government department charged, or intended to be charged, with the duty of or responsibility for the execution or administration of laws enacted by that House of Assembly and execution or administration of moneys appropriated or to be appropriated by such house.”
Here again, the Legislative competence of the Imo State House of Assembly does not extend to oil mining and oil exploration or oil activities which are within the Exclusive Legislative List/competence of the National Assembly.
This apart, the investigation or inquiry that the Joint Committee purportedly conducted for which it summoned the Appellant and threatened her with sanctions as provided in Section 129 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) did not pretend to deal with the conduct of affairs of any person, authority, Ministry or Government department charged with or intended to be charged with the duty or responsibility of executing or administering laws enacted by the Imo State House of Assembly and

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the Appellant is neither such a person, authority, Ministry nor Governmental department so charged with the duty or responsibility of administering such laws, it (Appellant) being a Limited Liability Company engaged in the business of oil exploration and mining which activities have purportedly adversely affected the Oguta Local Government Farmers Association that originated Petition which has culminated in this Appeal.
The Respondents have also not furnished the Lower Court nor this Court with any evidence that the Appellant had the duty of disbursing or administering moneys so appropriated or to be appropriated by such House of Assembly of Imo State so as to be summoned to attend an inquiry or give evidence in that respect. I am afraid that the position of the Respondents has been worsened by Subsection 2(a) and (b) of Section 168 of the 1999 Constitution earlier reproduced as the powers of the 1st Respondent to conduct inquiries or investigations have again been whittled down as they are only exercisable for the purpose of enabling the House to make laws with respect to any matter within its legislative competence and correct any defects in existing

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laws and to expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.
As we have seen and pronounced earlier on, oil mining and exploration are listed as Item 39 of the Exclusive Legislative List and by virtue of Item 68 thereof, damages caused farmers either by way of the destruction of their economic or food crops and/or their buildings in the course of the oil mining and exploration activities are incidental or supplementary to the matters mentioned in Item 39 of the List and accordingly, it is only the National Assembly that has the legislative competence by virtue of Sections 4(2), (3), (4) and (5) of the said Constitution of the Federal Republic of Nigeria, 1999 (As Amended) as well as Sections 88 and 89 thereof to make laws touching on the subject-matter and indeed to direct an inquiry or investigation into the alleged damage done to the Oguta Local Government Farmers Association assuming the National Assembly initiated a Bill to that effect.???
Even then, the Respondent did not pretend to state in their

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Counter-Affidavits that the House of Assembly was at the verge of making laws with respect to any matter within its legislative competence and/or to correct any defects in existing laws that would necessitate the Appellant who is not employed by the Government of Imo State so as to be involved in corruption inefficiency or waste in the execution or administration of any of the laws within the 1st Respondent’s Legislative competence and in the disbursement or administration of funds appropriated by the 1st Respondent.
In the course of his submissions, the Learned State Counsel has referred us to the dictum of Niki-Tobi, JSC (of blessed memory) in A-G., Abia State v. The A-G., Federation (supra) at 217 – 218; whereof, according to Learned Counsel, the erudite Judicial Icon purportedly held that the House of Assembly of a State can exercise Legislative powers on matters contained in Section 129 of the Constitution. With the greatest respect, Section 129 of the Constitution deals with the power of the 1st Respondent (House of Assembly) to summon witnesses, issue warrants against recalcitrant witnesses so summoned and/or impose costs or fines on such

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persons.
However, the learned Counsel has aptly cited Items 18, 19 and 20 of the Concurrent Legislative List which provide that:
“18. Subject to the provisions of this Constitution, a House of Assembly may make Laws for that State with respect to industrial, commercial or agricultural development of the State.
“19. Nothing in the foregoing paragraphs of this items shall be construed as precluding a House of Assembly from making Laws with respect to any of the matters referred to in the foregoing paragraphs.
“20. For the purposes of the foregoing paragraphs of this item, the word “agriculture includes fishery;”

to submit that nothing in the letters of invitation to the Appellant touches on mines and powers but the 1st Respondent was merely investigating damage to agricultural products like food and economic crops on a parcel of land within Imo State and mines and minerals which the House of Assembly has not done.
There is no doubt that the 1st and 2nd Respondents purported to invite the Appellant in the course of their oversight functions to Investigate damage to food and economic crops as well as buildings belonging to Oguta

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Local Government Farmers Association. The Learned Law Lord Niki Tobi no doubt at page 237 of A-G. Abia v. A-G. Federation (supra) cited by the Learned State Counsel in paragraph 6.12, page 11 of the Respondents’ Brief, had decided that the National Assembly cannot usurp the Legislative powers of the Imo State House of assembly to make law for Agricultural Development. But the Learned Judicial icon did not say that the National Assembly cannot usurp the functions of the State House of Assembly from investigating the issue of Agricultural Farm land in any part of Imo State including Oguta particularly as such issue relates to mining and oil exploration.
According to the Learned State Counsel, citing again A-G. Abia v. A-G, Federation (supra) at 238 – 239, the purport of Exhibit “A” was merely to present a claim of Seven Hundred and Five Million Three Hundred and Two Thousand Eight Hundred as presented by the Farmers Association and same cannot be interpreted as award of damages.
In the said A-G. Abia State v. A-G, Federation (supra) which is also reported in Chapter 24 pages 129 – 215 of the Text “A COLOSSUS at the APEX COURT. HON. JUSTICE Niki Tobi,

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CON, Justice of the Supreme Court of Nigeria and Professor of Law” published by Babajide Babatunde and Raphael Oladele Adeoye 2010 Edition, the late sage had this to say at pages 156-157 of the book while he reasoned on this vexed issue of oversight functions of the Legislature and the fact that the National Assembly cannot invoke its oversight functions in respect of the law making powers of the House of Assembly thus:
“The term oversight has two meanings: The more regular usage of the expression is an unintended error. The other meaning which is of less regular usage is intentional and watchful supervision. That is the context in which the provisions of the Constitution is conveyed.
There are three types of oversight functions. These are the power of the Legislature to conduct investigations, control and surveillance over the financial affairs of the Executive, and control and supervision of Government’s general business. Oversight functions can only be exercised within the law making powers of the National Assembly. The functions are not at large and must be exercised within the provisions of the Constitution.”

Going by the above authority

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and as I had held earlier on, the purported oversight function carried out in respect of the Petition from the Oguta Local Government Farmers Association was not for purposes of making any law on Agriculture nor was it for purposes of surveillance, and control of the financial affairs of the Executive or general Governmental business. Rather, it purported to invite the Appellants to award damages or compensation against them for the damage caused the economic and food crops as well as the buildings of members of the Association by imposing a whopping sum of N705,302,800 on the Appellant as claim. In this respect therefore, the House of assembly apart from clearly encroaching into the sphere of the Exclusive Legislative List which is reserved for the National Assembly thereby acting ultra vires its Legislative powers, the 1st and 2nd respondents usurped the adjudicatory powers of Courts as entrenched not only in Section 6(1) (2) and (6)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See the cases of Olafisoye V. F.R.N. (2004) NWLR (Pt. 854) 580 at 597, Per Tobi JSC.

???It is also trite as was decided in the authorities

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Ogunmakun v. Mil. Admin Ogun State (1999) 5 NWLR (594) 251 and P.P.M.C. Ltd V. Delphi Pet (2005) 8 NWLR (Pt 928) at 458; that by virtue of Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, the Judicial Powers vested in Courts shall extend to all matters between persons in Nigeria, and to all actions and proceedings between government or authority and to any person in Nigeria for the determination of any question as to the civil rights and obligations of that person.
Accordingly, as was held per Karibi-Whyte JSC in the Attorney-General of the Federation and the Guardian Newspapers Ltd. & 5 Ors. (1999) 9 NWLR (Pt.618) at 187 particularly at 237 para. H; the Legislature had no business to veer into the sphere of influence exclusive to the Court as Constitutionally guaranteed without breaching the concept of separation of powers as equally guaranteed by the Constitution. By usurping the powers of the Courts when the 1st Respondent in this case proceeded to adjudicate on the petition and awarded compensation/damages against the Appellant the 1st Respondent breached the Constitution and accordingly whatever action it look was a nullity

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and ought to be set aside as such a body was not a Court constituted in a manner that would ensure its independence and impartiality notwithstanding the fact that it (the Legislature) by Section 129 of the Constitution has been conferred with judicial powers assuming it acted in accordance with the dictates of Section 168 of the Constitution, which is not the case herein.
To further worsen the 1st and 2nd Respondent’s case, Section 11(5) (a) (c) of the Oil Pipelines Act, CAP. 07 LFN, 2004 stipulates that:
“5. The holder of a licence shall pay compensation-
(a) To any person whose land or interest in land whether or not it is land in respect of which license has been granted, is injuriously affected by the exercise of the right conferred by the licence, for any such injurious affection not otherwise made good; and
(b) To any person suffering damage by reason of any neglect on the part of the holder or his agents, servants or workmen to protect maintain or repair any work structure or thing executed under the licence, for any such damage not otherwise made good, and
(c) To any person suffering damage (other than on account of

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his own default or on account of the malicious act of a third person) as a consequence of any breakage of or leakage from pipeline or an ancillary installation, for any such damage not otherwise made good, and if the amount of such compensation is not agreed between any such person and holder, it shall be fixed by a Court in accordance with Part IV of this Act. (Underlining mine).
Part IV of the Act provides specifically under Section 19 there of that:
“If there be any dispute as to whether any compensation is payable under any provision of this Act or if so as to the amount thereof, or as the persons to whom such compensation should be paid, such a dispute shall be determined by a Magistrate exercising Civil Jurisdiction in the area concerned if such Magistrate has in respect of any other civil matter the monetary jurisdiction of at least as much as the amount of compensation claimed, and if there be no such Magistrate, by the High Court exercising jurisdiction in the area concerned and, notwithstanding the provisions of any other Act or Law, in respect of the decision of a Magistrate in accordance with this Section there shall be an appeal to the

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High Court of a State and in respect of a decision of the High Court of the State under this Section whether original or appellate, there shall be appeal to the Court of Appeal.” Underlining mine for emphasis.
The provisions the Statute above reproduced are clear and unambiguous and we shall give/accord the wordings their ordinary and simple, grammatical and ordinary interpretation just like the Constitutional provisions we had earlier cited, in order to discover the manifest intention of the Legislature. See Ugwu V. Ararume (2007) 12 NWLR (Pt. 1043) 367 at 437 – 438, Buhari V. INEC (2005) 18 NWLR (Pt. 1120) 246 at 344 paras. F – H, Adesanoye v. Adewole (2006) 14 NWLR (pt. 1000) 242 at 272 para. D. From the simple grammatical interpretations of Sections 11(5) and 19 of the Oil Pipelines Act, since the Appellant is a holder of Oil Pipeline Licence whose activities have allegedly caused damage to the economic and food crops of the Oguta Local Government Farmers Association as well as their buildings, the Appellant (if it accept liability), ought to pay compensation to the Farmers and if there is a dispute as to the quantum of compensation or the degree in

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monetary terms as in this case, it was not the duty of the State House of Assembly to constitute itself into a Court of Law and then impose the sum of money as contained in Exhibits C1 and C2 dated 3rd November, 2005, but to proceed to the Federal High Court since the sum of N115, 795.10 as claimed was beyond the monetary jurisdiction of the Magistrate’s Court and the subject matter related to oil mining and Oil Exploration.
The rationale in so holding is that as earlier stated, the State House of Assembly can only exercise oversight function of investigating or inquiring into any matter within its legislative competence and can only exercise such powers for purposes of making a law correcting some mistakes in an existing law or exposing corruption inefficiency or waste in the execution or administration of laws enacted within the 1st Respondent’s Legislative competence and in the disbursement of funds appropriated or to be appropriated by the 1st Respondent.
Furthermore, since as I had said earlier on, by the Pipelines Oil Act and Section 6(1)(2) and (6)(a) and (b) of the Constitution of the Federal Republic of Nigeria, the Courts are the Organs

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of the State vested with the power to adjudicate on disputes emanating from the activities of Oil Miners and Explorers as well as Oil Pipeline Licensees and victims of damage incidental to such activities (as in this case where the Oguta Local Government Farmers Association are claiming compensation for damage caused their food and economic crops and their building in the Appellant’s Area of Operation); the Petitioner/Farmers Association ought to have approached the High Court as the Appellant had done rather than run to the 1st and 2nd Respondents who have/had no such powers of adjudication and with due deference to the 1st and 2nd Respondents, they ought to have directed the petitioners to the appropriate organ of State to handle their dispute; rather than hide under the cloak of their Legislative Power over Agricultural and Industrial development, to usurp the Constitutional powers of the Judiciary. See Olafisoye V. Federal Republic of Nigeria (2004) 4 NWLR (Pt. 864) 580 at 597; Ogunmokun V. Mil. Admin Osun State (supra), P.P.M.C. Ltd V. Delphi Pet. (supra); SEDC V. Isaiah (2001) 11 NWLR (Pt.723) 179 paras, E- H and 180 – 181 paras, A- E Per Mohammed,

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Belgore and Wali, JSC (as they were); who held on the authorities of Banya & 2 Ors. v. Obi A. Eric & 3 Ors. (1998) 8 NWLR (Pt. 562) 404 at 416; The SPDCN Ltd. V. Otelemaba Maxon & Ors. (2001) 9 NWLR (Pt. 719) 541, Uwaifo v. A-G. Bendel State (1982) 7 S.C. 124; (1983) NCLR 1; Din V. A-G. Federation (1986) 4 NWLR (pt. 87) 147 and A-G. Lagos State V. Desunwa (1989) ALL NLR 504 (1989) 3 NWLR (Pt. 111) 352; that from the moment Decree No. 107 which provided for exclusive jurisdiction of the Federal High Court in respect of matters relating to mining and minerals, including oil fields, oil mining, geological surveys and natural gas was enacted; the jurisdiction of even the State High Courts had been ousted not to talk of the Legislature assuming the functions of a Court as in this case.
See further House of Representatives v. S.P.D.C.N. (2016) 11 NWLR (pt. 1205) 213 at 268 paras, D – G and 269 paras. E-G, per Aboki, JCA citing A-G Lagos State v. A-G Federation (2003) 12 NWLR (Pt. 833) 1 as well as Sections 251 (1)(n) of the Constitution and Sections 7(1)(p), 7(3) and 7(5) of the Federal High Court Act, CAP. F12 LFN, 2004 as well as CGG (Nig.) Ltd.)

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v. Chief Lawrence Ogu (2005) 8 NWLR (pt.927) 36 at 381 para. C – F.

In the light of the provisions of the Constitution, the Statutes and case Laws cited in support of the Learned Senior Counsel on this aspect of the issue, there is considerable force in the contention of the Learned SAN that there is nothing in the 1999 Constitution or any statute authorizing the 1st and 2nd Respondents to apportion damages or determine the liability of the Appellant to the Petitioners/Oguta Local Government Area Farmers Association.

Accordingly, the Learned State Counsel for the Respondents cannot deny that the 1st and 2nd Respondents summoned the Appellant for the purpose of/and indeed awarded damages against the Appellant for its alleged damage to the economic/food crops of the Oguta Local Government Farmers as the 1st Respondent through their letter dated 5th June, 2005 had complained in paragraph 1 (one) thereof that:
“The Imo State House of Assembly Committee on Petroleum, Energy and Environment has received several delegations from Oguta Local Government Area Farmers Association. The delegates complained bitterly against some of the activities of the Oil

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and gas exploration Companies operating in Oguta Local Government Area of Imo State; which have adversely affected their foods and economic crops, including buildings.”

The Committee alluded to the Environmental Impact Assessment Report (EIA) and Evaluation Report/Table on the loss of food and economic crops including damaged buildings from 1986 – 2003 which indicate the huge loss incurred by the farmers as a result of some of the activities of the gas and oil Companies operating in Oguta Local Government Area of Imo State and that having perused the documents (Reports) over times they decided to forward same to the Appellant. In the fifth paragraph of the letter, the Committee ruled thus:
“Considering the rationality of this claim, the committee therefore calls for a final resolution and payment of those claims.” And warned/threatened that: “Imo people are peaceful but this should not be taken for cowardice.” See page 21 of the Records.

Earlier at page 13 of the Records in a Letter from the Chairman of the said Joint Committee of the 1st Respondent to the Appellant’s Superintendent (Eastern operations) found that: “As a matter of fact,

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Chevron’s operations in Oguta is obvious, it owes her Landlord Association a duty; which is to make reparations commensurate to the damages incurred as a result of Oil explorations in the area.”

With the above facts, the Learned State Counsel for Respondents cannot seriously contend as he had done in paragraphs 6.13 – 6.15 of his Brief that the letter at page 1.5 of the Records was a mere invitation and that the committee did not find the Appellant liable but merely presented a Claim of N705,302,800 Million (Exhibit ‘A’) to the Appellant as part of its oversight functions.

Moreover, according to the Learned Counsel, to investigate the subject matter of this case which is one of damage to the economic and food crops and the building which is a threat to Agricultural development of Oguta Farmers Association in Oguta Local Government does not translate to the 1st Respondent constituting itself into a Court adjudicating or the matter thus usurping the powers of the Court.

We had earlier decided and we shall reiterate that whether the Respondents merely put forward the claim of the Petitioners/Oguta Local Government Farmers Association or

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otherwise, the purported oversight function was illegal, unconstitutional and thereby usurped the powers of the Court which by the provisions of the Constitution and the Oil Pipelines Act had vested the power to wade into and determine the question of the actual compensation or damages accruable to the Farmers/Petitioners as a result of the Oil mining and exploration activities of the Licensees like the Appellant.

On the whole, the Learned Senior Counsel was on very strong wicket when he submitted that the 1st Respondent’s actions in writing letters of invitation and threats for the settlement of the alleged claims of the Oguta Farmers by the Appellants to the Appellant were unjustifiable interference with the exercise of judicial functions of the Court. Adetona V. A-G Ogun State (1983) NCLR 583; A-G Oyo State V. Adeyemi & Ors. (1982) 3 NCLR 846; Oil Palm Company Ltd. V. A-G & Commissioner for Justice, Bendel State & Ors. (1983) 4 NCLR 746 at 754 – 755 and A-G. Bendel State & Ors V. A-G. Federation (supra).

In Innocent Adikwu v. Fed. House of Representatives (1982) NCLR 394 at 407 paras. 7

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and 8; the Court held that the substance of the resolution setting up a Legislative investigative body under Sections 82, 83, 120 and 121 (now Sections 88 and 89 as well as 128 and 129 of the 1999 Constitution as amended) must be construed strictly in order to determine the scope of the powers of such a body and whether or not it has been constituted for a permissible purpose. In that case it was clear that the resolution, like the charges that prompted its adoption, related to exposure of corruption allegedly committed by some members of the National Assembly and was therefore within the scope of the investigating powers of the National Assembly under the then Sections 82 and 83 of the 1979 Constitution of the Federal Republic of Nigeria.
Later at page 413 paras. 1 – 9 of the Report, His Lordship rightly posited in line with the dictum of Tobi, JSC in the Attorney-General of Abia State V. A-G. Federation (supra) that:
“Admittedly powers are expressly granted under the provisions in Section 82, 83, 120 and 121 of the Constitution for Legislative Investigations to be directed or caused to be directed by each House of National Assembly (Sections

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82 and 83) and by a House of Assembly of a State (Sections 120 and 121). It is however, necessary to stress that the powers so conferred are in the language of those provisions, exercisable only for the purposes of enabling each legislative body or its committees to make law with respect to any matter within its Legislative competence and to enable it correct any defects in existing laws, expose corruption, inefficiency or waste in the execution or administration of those laws, and in the disbursements or administration of funds appropriated by it,” as we had earlier held.
The Learned Judge continued and rightly in para. 3, that:
It seems clear therefore that a Legislative Investigation is part of law making. It is an adjunct of the legislative process. Accordingly, any Legislative Investigation carried out in exercise of those powers is subject to the Constitutional requirements of Chapter IV of the Constitution which guarantees to every person fundamental rights to life, to dignity of the human person??? Each Legislative body, in common with all branches of government, is obliged under the Constitution to exercise its Legislative

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powers (including its investigating powers in aid of Legislation) subject to the Limitations placed by the Constitution on government action.”

In this case, the Imo State House of Assembly in the exercise of its purported oversight functions was not acting for purposes of law making and it was obviously oblivious of the circumscriptive provisions of the Constitution that the power of resolution of any dispute between the Appellant as holders of Oil Pipeline License and the Oguta Local Government Farmers Association as a result of the Appellant’s oil prospecting activities causing damage to the Association’s crops, and buildings lay not only in the Courts listed in the Oil Pipeline Act by Section 19 thereof but above all by the Courts established under Section 6(1) – (3) and the exercise of such powers as vested in the Courts under Section 6(6)(a) and (b) as well as the rights vested on the Appellants under Chapter IV Section 35(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Indeed the Federal Court of Appeal Per M.M.A. Akanbi, JCA (as he then was), Uche Omo, and L.J. Dosunmu, JJCA (as they were then) had

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cause to pronounce on the doctrine of separation of powers as encrusted in our Constitution in the case of A-G. Oyo State & Ors. V. L.O. Adeyemi (Alafin of Oyo) & 5 Ors. (1982) 3 NCLR 846 at pages 847 – 848. In the words of Akanbi, JCA;-
“There is no doubting the fact that the doctrine implies that ideally subject to what other checks and balances the Constitution may provide for; the doctrine of separation of powers presupposes that the operative Constitution ensures that:
(a) Each of the three organs of government is in the hands of different persons.
(b) That no one organ has control of the other.
(c) No one organ performs the function of another.
If these postulates are correct, it would be safe to say that it is the function of the Legislature to make laws and the Judiciary to interpret the law.”

As for Uche Omo, JCA; whose dictum was succinct and apt on the scenario created in this case by the Legislature:
“Basically, what the doctrine provides is that the Legislature, the Executive and Judiciary are independent arms of Government with their respective functions. Each arm must not encroach on the functions of

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the others, and any such invasion of the others turf must be regarded as a breach of this doctrine and consequently unconstitutional,” as I had earlier held; citing House of Reps V. S.P.D.C.N. (supra) at page 269 paras. E – H per Aboki, JCA.

In the instant case instead of directing the Respondents accordingly to hands off the subject matter of the Petition which was clearly not within its legislative competence and the fact that the investigation or Enquiry was not set up for the purposes enacted in Section 128 of the Constitution of the Federation, the Lower Court veered off the turf and embarked on analysis of the Land Use Act, and revocation of certificate of occupancy as if the parties were engaged in a land dispute.

Apart from the above, the Learned trial Judge also went into the analysis of Section 44 of the Constitution which deals with compulsory acquisition and then came up with the perverse findings that the summons issued by the 1st Defendant was done in the exercise of its Constitutional powers and duties and that the Imo State House of Assembly in consultation with the Governor of Imo State has the legal right to award

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compensation for damages(sic) caused by the Plaintiff arising from its Oil Mining/Exploration activities because the lands upon which those activities are being carried out were vested in the Governor by the Rights of Occupancy or the previous owners were deemed revoked under the Land Use Act for overriding purposes.

Accordingly, those findings cannot stand as I totally agree with the Learned Senior Counsel for the Appellant that the above findings of the Court below were not borne out from the facts before it and the case fought before the learned trial Judge which was whether the 1st Respondent can usurp the powers of the Court to constitute itself into an adjudicatory body in a matter outside its legislative competence and while not engaged in the enactment of any law or the correction of any defects in any existing law and/or for the purposes of exposing corruption, inefficiency or waste in the execution or administration of those laws and in the disbursements of or administration of funds appropriated by it.

In the light of the above I shall answer the questions posed by issues 1 and 2 of the Appellant and issue Number 1 of the Respondents in

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the negative as the Imo State House of Assembly possesses neither Constitutional nor statutory powers to investigate the Petition and determine the claims by the Oguta Formers Association by inviting Appellant against whom compensation was awarded for the damage caused to the economic and food crops of the Association as well as their buildings which powers to so adjudicate on the subject-matter are vested in the Courts both constitutionally and statutorily as earlier held. The 1st and 2nd Respondents acted ultra vires their powers and unconstitutional and therefore their actions were null and void, and of no effect. The above issues are therefore resolved in favour of the Appellant.

ISSUE NUMBER 3 OF THE APPELLANT AND (8) OF THE RESPONDENT:- “WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE WENT OUTSIDE THE ISSUE FOR DETERMINATION AND RAISED AND DETERMINED ISSUES THAT DID NOT ARISE FROM THE CASE MADE OUT BY THE PARTIES.”

AND

“WHETHER THE TRIAL COURT LEFT THE ISSUES RAISED BY THE PARTIES AND RAISED AND DECIDED ISSUES NOT RAISED BY THE PARTIES AND THEREBY FAILED TO RESOLVE THE MAIN ISSUES UNDER CONTENTION?”

Having resolved the main

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issues in this Appeal, the above issues are merely academic. However, suffice it to say that at the Trial Court, Mrs. M.A. Essien, SAN raised four issues for determination which were as follows:
“1. Whether the 1st Defendant has the legal right and power under the Constitution to award compensation for alleged damages and injuries arising from oil mining and oil exploration activities of the plaintiff?
2. Whether the 1st Defendant has the right to determine compensation for any cause or matter connected with or pertaining to oil mining and oil exploration activities under the Oil Pipelines Act?
3. Whether the 1st Defendants investigation powers extend to investigations for the purpose of determining and/or apportioning compensation for alleged damages or injuries?
4. Whether the summons issued by the 1st Defendant was done in the exercise of its constitutional duties?”

On the other hand, the 3rd Respondent’s Counsel formulated the following three issues:
1. Whether it is part of the oversight functions of the 1st Defendant (IMHA) to inquire into the Claim of Oguta Farmers Association and economic crops, inclusive of

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their buildings?
2. Whether claiming compensation by the 1st Defendant to the Plaintiff amounts to apportioning damages. In other words, whether making such claim to the Plaintiff amounts to the 1st Defendant constituting itself into a Court? And
3. Whether Oguta Farmers Association are entitled to claim from the Plaintiff company (CHEVRON) monetary compensation for damage done to their land, food and economic crops inclusive of their buildings?” 

The Learned Trial Judge also held that under Section 129(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria, the Imo State House of Assembly for purposes of such investigation of complaint by the Oguta Farmers Association with respect to their damaged economic and food crops as well as their buildings could summon and examine material witnesses relevant to the subject matter including the Plaintiff. The rationale in so holding was that if the House of Assembly did not come into the matter in question, there would have been more problems and breach of peace in the area. From the foregoing, the Learned Trial Judge had more or less resolved all the questions posed, in the affirmative

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and against the Plaintiff/Appellant.

However, his Lordship was yet undone as he went on to distill what according to him was “the most fundamental issue to be determined in this suit upon which I think all other issues are formulated by the Learned Counsel in their addresses is whether under the Land Use Act which by virtue of S.315 of the Constitution of the Federal Republic of Nigeria is a Constitutional Enactment so to say, applies to the transaction that led to these proceedings.”

As was posed by the Learned Senior Counsel in his Brief, one wonders how the Land Use Act applies to transaction that led to the proceedings. I cannot but agree more with the Learned Senior Advocate that the Learned Trial Judge imported irrelevant matters to the proceedings in the determination of the case against the Appellant and indeed made a case completely different from the one fought by the parties before him.

See also  Aderemi Adedamola Ajidahun V. Mrs. Daphine Oteri Ajidahun (2000) LLJR-CA

With the greatest respect, I am also at sea with the holding of the Court that flowing from his purported fundamental question as to the applicability of the Land Use Act to the transaction between the Appellant and the Farmers whether in addition to

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the legislative powers, any judicial or quasi-judicial powers inheres on the 1st Respondent to investigate any matter referred to it by the Governor under an Executive Bill or Memorandum and whether the 1st Respondent can in the process of the said inquiry summon any person whatsoever, to appear before it or any of its communities to testify on the subject-matter of the summons.

In the first place none of the parties or their counsel raised the issue of the applicability of the Land Use Act throughout the proceedings. Even then the Learned Trial Judge who introduced Section 44 of the Constitution was oblivious of Subsection (3) of the Section which provides that notwithstanding the provisions in Section 44(1) and (2), the entire property and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria, or, in under or upon the territorial Waters and Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation, and shall be managed in such a manner as shall be prescribed by the National Assembly.

Again, the Learned Trial Judge did not take cognizance of the provisions of Subsection 1(b) of Section 44

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which states that upon compulsory acquisition of such movable property or interest in an immovable property, any person so affected and such claimant of compensation for such acquisition has a right of access for the determination of his interest in the property and the amount of compensation to a Court of law or tribunal or body having jurisdiction in that part of Nigeria.

The Learned Trial Judge was contented to cite Section 1 of the Land Use Act which in his view, is not just an Act but by Section 315 of the Constitution is part of the Constitution and the fact that the said Section stipulates that:
“Subject to the provisions of the Act, all land comprised in the territory of each State in the Federation is hereby vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.”

He further went on to cite Section 2 and 3 of the Act that make provisions for the Control and Management of land in Urban and those in Rural Areas which are vested or controllable by the Governor and Local Government Chairmen respectively; and

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for the establishment of the Land Use and Allocation Committee which shall advise the Governor on any matter connected with the management of land to which Paragraph (a) of Sub-section 1 of Section 2 relates; advise the Governor on any matter connected with resettlement of persons affected by revocation of rights of occupancy on overriding public interest ground and to determine disputes as to the amount of compensation payable under this Act for improvements on the land.

With the greatest respect again, the learned trial Judge misdirected himself in both law and the facts of this case when he introduced the Land Use Act and the provisions relating to compulsory acquisition and revocation of Right of occupancy, when the crux of this matter is the setting up of the House of Assembly Committee for purposes of inquiry or investigation on matters connected with enactment of a law or correction of any discrepancies in existing laws within its legislative competence pursuant to Section 128 and the scope of the exercise of its legislative powers in the course of such enactments as opposed to the complaint touching on the effect of mining of oil and exploration

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on the property of the Oguta Local Government Farmers Association nay their economic crops by the said mining and oil exploration activities of the Appellant in this case which has been vested by virtue of Items 39 and 68 of the Exclusive Legislative List, Sections 11(5) and 19 of the Oil Pipelines Act and Sections 6(1) (2) (3) and 6(6)(a) and (b) as well as Section 36 (1) of the Constitution of the Federal Republic of Nigeria as amended, in the Courts.

Even then, and assuming that Section 44 of the Constitution applies together with Sections 1 and 2 of the Land Use Act, the law is settled that the Constitution which the Land Use Act is part of should be interpreted as an organic whole and ought not be interpreted in order to wrought manifest absurdity. Obaseki, JSC had laid down 12 (Twelve Canons of construction of the Constitution apart from the Golden or Literal Rule, Amongst the twelve canons of interpretation as laid down by Obaseki, JSC are the following:
1. The Constitution is an organic scheme of Government to be dealt with in its entirety; and a particular provision cannot be dissevered from the rest of the Constitution.
2. The

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principle upon which the Constitution was established rather then the direct operation or literal meaning of the words used, measure the purpose, and not the scope of its provisions and
3. Words of the Constitution are not to be read with stultifying narrowness.
4. Constitutional language is to be given reasonable construction and absurd consequences are to be avoided.
5. Constitutional provisions dealing with the same subject-matter are to be construed together. Etc. see Nafiu Rabi v. The State (1980) 8 – 11 S.C. 130 at 148-149.
See furtherOloyede Ishola V. Ajibaye (1994) LPELR – 1546 (SC), A-G. Ondo State V. A-G. Federation (2002) LPELR – 623 (SC); Kalu v. Odili (1992)5 NWLR (Pt. 240) 130 at 156, Okotie Eboh V. Manager (2004) 18 NWLR (pt. 905) 242 and Adesanoye V. Adewole (2006) 14 NWLR (Pt. 1000) 242 at 272 para. D per Tobi, JSC; who held that where the intention of the Legislature is clear and unambiguous, Courts of Law must so interpret the provisions of the Legislation and that we cannot go outside in search of greener pastures for one of the parties as the Learned Trial Judge in this Appeal had done.

Upon the foregoing scores,

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Section 44(3) of the Constitution is clear and unambiguous and giving it this plain, literal meaning and construing that Sub-Section along with its Subsections (1) and (2) and also with Sections 1 and 2 of the Land Use Act, it is clear that all property bearing minerals oils and natural gas in, under, or upon any land in Nigeria (which includes Oguta land in Imo State where the Appellant carry out the exploitation of oil); or upon or under the territorial waters and Exclusive Economic Zones of Nigeria Shall Vest in the Federal Government and shall be managed in such a manner as shall be prescribed by the National Assembly.
This provision of Section 44 Sub-Section (1) (a) and (b) of the Constitution on payment of compensation and any dispute arising there from is subject to the adjudication by a Court of law or tribunal having jurisdiction in that part of Nigeria. By virtue of Section 251(1)(n) of the same 1999 Constitution together with Section 11(5) and 19 of the Oil Pipelines Act; the only Court having jurisdiction to deal with dispute as to land from which oil is mined or anything incidental thereto is the Federal High Court and not even the National

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Assembly which is only charged with prescription (Legislation) on how to manage such land not to talk of the Imo State House of Assembly.
Again, to buttress the fact that the findings of the Learned Trial Judge were most fallacious, Sections 1 and 2 of the Land Use Act are sub-ordinate to Section 44 (3) of the Constitution of the Federation; such that the State Governor or the Land Use/Allocation Committee have nothing to do with land governed by Sub-Section (3) of Section 44 of the Constitution. See Per. Karibi-Whyte, JSC in Kaycee (Nig.) Ltd. V. Prompt Shipping Corporation & Anor (1986) 1 SC 378 at 394 following Re-Walkins Settlements Wills V. Spence (1911) 1 Ch 1.

Accordingly, all the holdings of the Court below at page 116 of the Records on the Governor of Imo State exercising his powers under the Land Use Act and relevant provisions of the Constitution in consultation with the State House of Assembly, Speaker and the Chief Judge of the State are only relevant to land that are not mineral bearing but definitely not the Oguta Oil Fields which are the subjects of this case. With the greatest respect, the Honourable Speaker of the House and or

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relevant Committees possess no statutory or Constitutional powers to investigate on behalf of Imo State Government the Petition of Oguta Farmers Association and the House cannot demand for payment of compensation or order for such compensation on land vested exclusively in the Federal Government and the National Assembly to prescribe the way and means of managing same.

With the greatest respect again, the Oguta Farmers Association ought to have brought their claim before a Court of Law in order for those claims to be determined.

It is also the height of misdirection and perversity for the Trial Court/Judge to have held that both under the Land Use Act and the Constitution, the territories or areas granted the Plaintiff and all other Oil Companies operating in Imo State come within the purview of lands granted to the Federal Government of Nigeria by the Governor of the State under the deemed revocation of the previous rights of occupancy for overriding public interest for as we had seen earlier, such land is vested in the Federal Government and within the Legislative competence of the National Assembly.

The persistent refusal of the Appellant to

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succumb to the threats and machinations of the illegal and ultra vires invitations and summons by the 1st and 2nd Respondents even though at a point in time the Appellant had appeared through its Counsel and senior staff, out of due deference, was most justifiable as the Respondents had no power to carry out any oversight functions over the subject-matter of the petition. Thus, even on the merits of the issue so arbitrarily formulated by the Learned Trial Judge, his judgment for was totally bereft of any substance but a caricature of justice and therefore cannot stand.

I am therefore, on the crux of these issues minded to hold, notwithstanding the settled position of the law as decided on the authorities of Lasisi AALU v. Sule Dakan (2006) 25 NSCQR (Pt. 2) 950 at 958 – 959 (S.C.) and Oloriode v. Oyebi (1984) SCNLR 390 (1984) SC 1 and Oloba V. Akereja (1988) 3 NWLR (Pt.84) 508; that a Court is entitled to raise for determination in a case an issue arising from the matter and that in consequence a Court is not bound to use the issue raised by the parties. In the same way an Appellate Court may formulate new issue(s) for determination in an Appeal before

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it, under certain conditions.

I have carefully in line with the submissions of Learned Counsel perused the issue as formulated by the Learned Trial Judge at pages 116 – 117 of the Records and I am in complete agreement with the Learned Senior Counsel for the Appellant as submitted in her paragraphs 4 – 8 of the Appellant’s Brief that there was nothing before the Court below to show:-
1. That the 1st Respondent received an Executive Bill or Memorandum from the Governor;
2. That the House of Assembly/1st Respondent was investigating a matter referred to it by the Governor under an Executive Bill by or memorandum;
3. That the subject matter of the Suit related to Land Use Act;
4. There was an issue before the Court relating to compulsory acquisition for overriding public interest.
5. That there was an allegation against the Land Use and Allocation Committee;
6. That in the Court below the territories or areas granted the Appellant or other oil companies etc. Etc were under question/contest.

There is no doubt that a Court of Law (be it of first instance or appellate), can formulate issues suo motu but such issues must

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emanate from the Grounds of Appeal or totality of the facts of the case before it and where for instance this case was fought on pleadings. Dalek (Nig.) Ltd. v. OMPADEC (2007) 7 NWLR (Pt. 1033) 402 at 439 paras. A – D; Dairo V. UBN Plc (2007) 16 NWLR (Pt.1059) 99 at 138 para; Cookey V. Fambo (supra) at 201; Usoho V. N.C.P. (2007) 10 NWLR (Pt. 1042) 320 at 346 paras. B – F; Yaro V. Arewa Construction Ltd, (2007) 17 NWLR (Pt. 1063) 333 at 373 paras. C; were all rightly cited by the Learned Senior Counsel where the Court variously held that where a Court raises an issue(s) suo motu, the parties ought to be allowed to address on the issue otherwise this amounts to breach of fair hearing; the failure to consider the main issues raised by Counsel also occasioned the Appellants miscarriage of justice.
I had earlier on held that the findings of the Court were not supported in law and in fact as they were most perverse. A-G. Federation v. Abubakar (2007) 10 NWLR Pt. (1041) 1 at 140 141 refers. See Oguegbo v. P.D.P. (2016) 4 NWLR (pt.1503) 446 at 482 – 483 paras. F – A and 484 paras. C – F. The Court also failed to take into consideration the issues of facts

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contested by the parties in their respective Affidavits and Counter-Affidavits neither did he consider the admission by the Respondents in their Counter-Affidavits. Above all the Learned Trial Judge simply parried away all the Leading authorities cited on the Constitutional questions that fell for determination but was contented to suo motu formulate an issue outside the purview of those emanating from the pleadings of the parties contrary to the decision in Suleiman V. COP. Plateau State ably cited and relied upon by the Learned Senior Counsel and the Learned Trial Judge never bothered to distinguish them from the facts of the case when he held that the 1st Respondent had the legal right to award compensation.
In the recent case of Oguebego V. PDP (2016) 4 NWLR (Pt. 1503) 446 at 482 ??? 483 paras. F – A and 484 paras, C – F, Okoro, JSC revisited the position of the law as decided in a plethora of cases on the appropriate thing to do where a Court raises an issue sou motu and the consequence of proceeding to resolve the issue(s) without calling on the parties and their Counsel to react or address him on the issue when he reasoned:
“It is trite

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that when a Court raises a point suo motu, then the parties must be given opportunity to be heard on the point; particularly the party that may suffer punishment as a result of the point raised suo motu. See Adegoke v. Alabi (1992) 6 SCNJ 136; (1992) 5 NWLR (Pt. 242) 410, Odiase V. Agbo (1972) 1 ALL WLR (Pt. 1) 170; Ajao V. Ashiru (1973) 11 SC 23.
In the instant case, by raising the issue suo motu and basing its decision on it without hearing arguments from the parties, the Appellants were denied the opportunity of being heard. It was not open to the Court of Appeal to raise an issue which parties did not raise themselves during the hearing of the Appeal. When the Court of Appeal felt inclined to raise such a point for any reason, it should have given the parties an opportunity of making their comments upon it before it took the decision on the issue.
See also Ndiwe V. Okocha (1992) 7 SCNJ 355, (1992) 7 NWLR (Pt. 252) 129; Iriri v. Erhurhobara (1991) 2 NWLR (Pt. 173) 252 at 264, Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).”

With the above dictum of my Lord Okoro, JSC, which I adopt as mine, the Learned

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Trial Judge was wrong to have formulated an issue suo motu and without hearing the parties decided to base his decision dismissing the case of the Appellant on that issue thereby depriving the Appellant of her right to be heard as entrenched in Section 35 of the Constitution. The breach of fair hearing rendered the entire Judgment a nullity. In any case, even upon my consideration earlier of the decision on the arbitrarily formulated issue, the entire Judgment of the Learned Trial Judge was devoid of any substance and a clear travesty of justice. Accordingly, these issues are resolved in favour of the Appellant.

ISSUES NUMBER 4 (FOUR) OF THE APPELLANT “WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE DEEMED THE 3RD RESPONDENT AS HAVING APPEARED FOR HIMSELF AND OTHER RESPONDENTS?”
AND RESPONDENTS’ ISSUE(C): “WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE DEEMED THE 3RD RESPONDENT AS HAVING APPEARED FOR HIMSELF AND OTHER RESPONDENTS? (DISTILLED FROM GROUND 10 OF THE NOTICE OF APPEAL).”

In the resolution of this issue it is pertinent to note that when the Defendants were served with the Originating Summons and the accompanying processes,

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the Ministry of Justice Owerri through Mrs. N.N. Ekedebe entered conditional Appearance by her memorandum of Appearance dated the 10th day of September, 2005 and filed the next day being the 11th day of September, 2006.
See page 27 at the Record of Appeal. It would appear that the said Mrs. Ekedebe still on behalf the 3rd Respondent filed another Memorandum of Appearance on the 30th of May, 2007 which memorandum of Conditional Appearance is dated 18th day of May, 2007. See page 62 of the Records. Even the Counter-Affidavit filed on 19/1/2007 against the Originating Summons, the Written Address in support of the Counter-Affidavit and the one filed on the 19/9/2007 which was eventually adopted on the 6th of June, 2008 did not pretend that it was filed on behalf of the 3rd Respondent only and not for the 1st and 2nd Defendants/Respondents, so was the Further and Better Counter-Affidavit opposition to the Affidavit of the Plaintiff in the Originating Summons (now Appellant). See pages 81 – 97 of the Records.

On the 6th day of June, 2008 when the case was heard and the respective Written Address of the Learned Counsel were adopted (see page 103 of the

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Records); the following was recorded:
“Parties absent
C.D. Nwankwa, Esq. for W.N. Ekedebe (Mrs.) Senior State Counsel for the 3rd Defendant
“, which also shows that the 1st and 2nd Respondents did not enter any appearance nor did they file any Counter-Affidavits or Written Addresses in defence of the Suit brought against them who were the principal parties in that it was their actions that warranted the Plaintiff to institute the suit.

However, at page 105 of the Records in the proceeding of 25th day of July, 2008, Mrs. N.N. Ekedebe appeared for the 1st – 3rd Defendants when Judgment was further adjourned to Monday, July 28th, 2008, so it was on the 28th of July, 2008 when Judgment was further reserved for the 31st of July, 2008.

At page 77 of the Records in paragraph 6.1 to 6.5 of the Learned Counsel to the plaintiff’s Address filed on 3/7/2007 under the caption “DEFENDANTS COUNTER-AFFIDAVIT”, the Learned Senior Counsel submitted that the 1st and 2nd Defendants failed to defend the matter and were deemed to have conceded to all the claims of the Appellant) (then Plaintiff).

In respect of the 3rd Defendant’s Counter-Affidavit, the

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Learned SAN sought for the striking out of paragraphs 5, 8, 10, 13, 15 17, as they offended the provisions of Section 87 of the Evidence Act for being argumentative and called for conclusions Baiminyi V. The State (2001) 8 NWLR (Pt. 715) 270 at 289 paras. C – G).
With regards to other paragraphs of the Counter-Affidavit, the Learned Senior Counsel contended that they did not deny that the 1st and 2nd Defendants took actions as claimed by the Plaintiffs and as such 3rd Defendant’s Counter-Affidavit was insufficient to challenge the Plaintiff’s Affidavit as same was deemed to amount to admission.

According to Learned Senior Counsel to the Plaintiff/Appellant, the 3rd Defendant’s defence was strictly that the 1st and 2nd Defendants acted in accordance with the law; but that it must be noted that the 1st and 2nd Defendants did not deny the plaintiff’s claims and so it was clear from the totality of the affidavit evidence that the plaintiff’s case remained uncontroverted. Earlier on the Learned Senior Advocate at page 67 paras. 1.6 and 1.7 of the Records/Plaintiff’s Written Address relied on the cases of Nwosu v. Environmental Sanitation Authority (1990)

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2 NWLR (Pt. 135) 688, Oteju V. Magma Maritime Services Ltd. (2000) 1 NWLR (pt. 640) 270 at 344 and Egbanin V. Aghoghovhia (2003) 16 NWLR (Pt.846) at 380 at p. 395 – 396 to buttress his submission that since the 1st and 2nd Defendants did not file any Counter-Affidavit, all the facts pertaining to the Respondents aforesaid remained uncontroverted and only the Plaintiffs Affidavits would be looked at in determining the case.

The Learned State Counsel however, at page 82 of the Records/Written Address countered the above submission by submitting that the facts averred to in the 3rd Respondents Counter-Affidavit related to the action of the Imo State House of Assembly that gave rise to the suit and had therefore sufficiently challenged the averments in the Appellants Affidavit more so as the 3rd Defendant is the Chief Law Officer of Imo State which includes the 1st and 2nd Defendants.

He therefore submitted that the authorities cited and relied upon by the Learned Counsel for the Plaintiff (now appellant) were irrelevant and inapplicable.

Ruling on this issue, the Learned Trial Judge held thus:
“I want to firstly deal with the issue of

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the competence of the H.O.A & C.J. to represent the IMHA & the Hon. Speaker of the House of Assembly and State that it is unarguable that the Chief Law Officer of a State cannot represent the House of Assembly (which is a third arm of a State Government) or His Excellency the Hon. Speaker of the House of Assembly who is by protocol, the No. 3 Citizen of the State) in a judicial proceedings. Memorandum of Appearance filed by the 3rd Defendant is hereby deemed to have been properly filed by the 3rd Defendant in these proceedings for purpose of considering the submissions of Learned Counsel in this Suit.”

If we go by the underlined portion of the Judgment then I cannot see the need for Ground 10 of the Notice of Appeal as the Learned Trial Judge had conceded that the appearance of the Learned Counsel did not cover the 1st and 2nd Respondents.

However, I shall take it as a typographical error that the Court below meant that the 3rd Respondent being the Chief Law officer has indirectly appeared for the 1st and 2nd Respondents which position is indubitably the law as settled by Judicial pronouncements of the Apex Court and indeed the

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Constitution.
For the avoidance of doubt Section 195(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides for the Office of Attorney-General of the State in the following terms:
“195.(1) There shall be an Attorney-General for each State who shall be the Chief Law Officer of the State and Commissioner for Justice of the Government of that State.”
As for the powers conferred on the Attorney-General by virtue of such appointment, Section 211(1) of the same Constitution stipulates that:
“The Attorney-General of a State shall have power-
(a) To institute and undertake criminal proceedings against any person before any Court of Law in Nigeria other than a Court Martial in respect of any offence created by or under any law of the House of Assembly;
(b) To take over and continue any such criminal proceedings that may have been instituted by any other authority or person;
(c) To discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

(2) The powers conferred upon the Attorney General of a State under

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Sub-Section (1) of this Section may be exercised by him in person or through officers of his Department.
(3) In exercising his power under this Section, the Attorney-General of a State shall have regard to public interest, the interest of justice and the need to prevent abuse of the legal process.”

Although these provisions of the Constitution relate only to criminal proceedings the Supreme Court nevertheless in the case of M.U.O. Ezomo (substituted by Daniel Osahon Uhimwem V. Attorney-General (1985) LPELR – 1215 per Karibi-Whyte and Aniagolu, J.J.S.C. had put the position and powers of the Attorney-General in respect of Civil proceedings (as in this case) beyond conjecture when at pages 38 – 39 paras. G- A it was held that it is well settled that the Attorney-General as the Chief Law Officer of the State is vested with the Constitutional responsibility for initiating and defending actions on behalf of the State. In that wise therefore, no other functionary or institution of State, can exercise such prerogative of institution and defence of a suit on behalf of the State. It was also held that in the discharge of these responsibilities, he is not

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subject to any control but as Sub-Section (3) of Section 211 of the Constitution has provided, he shall only be guided by public interest and interest of justice.
Aniagolu, JSC in the above cited case at pages 18 – 19 paras. E – E was even more elaborate in his lead Judgment when he posited inter alia:
In criminal matters, the Attorney – General has the Power under Section 191 of the 1979 (now 1999) Constitution to discontinue criminal prosecutions. But even apart from the 1979 (1999) Constitution, the Attorney-General has power under the Common Law to discontinue criminal prosecutions. This Court found it necessary to make that clear in The State V. Ilori (1983) 2 S.C. 155; where it construed the provisions of Sections 160 and 191 of the 1979 Constitution. At pages 178 – 9 the Court held: “The pre-eminent and incontestable position of the Attorney General, under the Common Law, as the Chief Law Officer of the State, either generally as a Legal Adviser or specially in all Court proceedings to which the State is a party, has long been recognized by the Courts. In regard to these powers, and subject only to the ultimate control of public

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opinion and that of parliament or the Legislature. The Attorney-General has, at Common Law, been a master unto himself, law unto himself, and under no control whatsoever, judicial or otherwise vis-a-vis his powers of instituting criminal proceedings. These powers of the Attorney-General are not confined to cases where the State is a party….
This is a power vested in the Attorney-General by the Common Law and it is not subject to review by any Court of Law. It is, no doubt, a great ministerial prerogative coupled with grave responsibilities.”

The Learned Judicial icon speaking specifically about Civil proceedings like the one herein, recalled that: “In civil claims, the Attorney-General, under the Petitions of Right Act, CAP 14, Volume 5, Laws of the Federation and Lagos 1958, was the one sued where an individual had a claim against Government and was the one who instituted action on behalf of Government where Government had a claim against an individual. (See Sections 2 and 3 of the Petitions of Right Act, CAP. 149 and the amending Law, L.N. 122 of 1964). With the coming into force of the 1979 Constitution (now 1999 Constitution) by Section 6

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thereof, the Government of the Federation or State is liable to be sued, like any other individual, by any person aggrieved by its act without reference to the Petitions of Right Act. In civil cases in which the Government is sued, the Attorney-General is the Defendant, or at least the nominal Defendant.” See pages 19 – 20 of the Report. See also per Eso, JSC in Attorney – General Ondo State V. Attorney-General of the Federation (1933) LPELR – 607 (SC) at 10 – 11 paras. E – C.
See also Governor of Imo State & Anor V. Uche Ogoh & Ors. See also the recent case of Attorney-General, Rivers State V. Attorney-General, Akwa-Ibom State (2001) 8 NWLR (Pt. 1248) 31, Attorney-General, Adamawa State V. Attorney-General of the Federation (2006) 1 MJSC 1; Attorney-General, Anambra State V. Attorney-General, Federation (2007) 12 NWLR (pt. 1047).
From the above authorities and not withstanding that the Attorney-General who was represented by the Learned State Counsel did not state in any of the processes filed and even in his announcement of appearance in Court during hearing, the suit as rightly submitted, was defended by the Learned Counsel on behalf of the 1st and 2nd Respondents. If the Suit were to be decided against the

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Attorney-General, the decision would have bound the 1st and 2nd Respondents. The Appellant knew why he dragged the Attorney-General who filed Counter-Affidavits in defence of the acts of the 1st and 2nd Respondents into the fray.
Accordingly, the Appellant cannot complain about non-appearance or filing of Counter-Affidavit since the Attorney-General as the Chief Law Officer of the State and Legal Adviser of Government had done that on their behalf.

Although Rules of Court ought to be obeyed, Learned Trial Judge/the Court below regularized the Memorandum of Appearance in exercise of his discretion. After all Order 51 of the Federal High Court (Civil Procedure) Rules gives the Court the discretion to waive certain irregularities and make such order (if any) dealing with the proceedings generally as it thinks fit. See Alhaji Mohammed Waziri v. Ibrahim Gumel (2014) 1 FCLR (pt. 1) 327 (2012) ALL FWLR (Pt. 632) 1660 at 1980 paras. B – C; Ntiero V. N.P.A. (2008) 10 NWLR (Pt. 1094) 129 S.C; Nnonye v. Anyichie (2005) 2 NWLR (Pt.910) 623 S.C; Emezie V. Osuaswu (2005) 12 NWLR (Pt.939) 340 S.C. P.D.P. v. Abubakar (2007) 3 NWLR (pt. 1022) 515 CA and Order 3 Rule 7 (2)

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of the Rules.

I am not oblivious of the various decisions in Nigeria Works Ltd. v. DENAP Ltd. (2001) 18 NWLR (Pt. 746) at 753 paras. C-D and Erokoro V. Govt. of Cross-River State (1991) 4 NWLR (Pt. 185) 327 at 336. Paras. C – E, that the Attorney-General’s “powers to represent government figures is not at large and that he must still act in accordance with the laws of the land by reflecting in his Memorandum of Appearance and processes filed as in this case where the Counter-Affidavit serves as pleadings that his processes afore said covered the 1st and 2nd Respondents.” This is ordinarily true because the 1st and 2nd Respondents were the proper parties in this case and that the law is that a person who intends to defend a suit, shall or ought to enter appearance and file the appropriate processes either himself or by his Counsel (see Order 14 of the Federal High Court (Civil Procedure) Rules 2000 and Order 15 Rule 2 of the Rules) and that the 1st and 2nd Respondents’ neglect, failure and/or refusal to file the Memorandum of Appearance and their respective Counter-Affidavits, ordinarily tantamount to the Defendants/Respondents’ abandonment or concession

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to the Plaintiff/Appellant’s claim in its entirety.
The Learned Senior Counsel for the Appellant had in support of his arguments in this regard cited and relied on the text CIVIL-PROCEDURE IN NIGERIA SECOND EDITION BY FIDELIS NWADALO, SAN at page 289 and submitted that the 1st and 2nd Respondents having failed to enter appearance it cannot be presumed that the 1st and 2nd Respondents intended to defend the Suit.
Again, he had argued that the Learned Trial Judge was wrong to have suo motu regularized the Memorandum of Appearance filed by the Learned Senior State Counsel as deemed filed on behalf of the 1st and 2nd Respondents and for the foregoing reasons the Court below ought to have granted the Appellant’s Relief in accordance with Order 40 Rule 6 of the Federal High Court (Civil Procedure) Rules, 2000.
There is no doubt that the Learned Author of the Text earlier cited (Civil PROCEDURE IN NIGERIA) 2nd Edition at page 289 had in his commentary on the Uniform and Lagos State High Court (Civil Procedure), Rules analyzed the provisions on entry of Appearance Default of pleadings and Admission as provided in Orders 7, 14 and 15 of the Rules.

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At page 29 of the text under the caption ‘Purposes Served by Entry of Appearance’ the Learned Author posited that by entering appearance a Defendant indicates that he intends to defend the action and he also submits to the jurisdiction of the Court.
Furthermore, as decided in Dike v. UBN (1987) 4 NWLR 958 at 963; the purpose of filling Memorandum of Appearance is to let the other side know that the writ of summons had been received but the action may be defended and the address for service of other documents be known to the other side or the address of the solicitor who is appearing for the defendant. Furthermore, according to the Learned Author of blessed memory, the filing of an appearance is the strongest evidence that service has been effected the Defendant. See Guinness Nigeria Nig. Plc v. Ufot (2008) 2 NWLR (Pt. 2070) 51 (CA), Ebe v. COP (2008) 4 NWLR (pt. 1076) 189 at 211-212 paras. G-C. per Onnoghen, JSC.
I am also not in doubt that where as in this case the 1st and 2nd Respondents ab initio did not enter appearance and defaulted in pleading by not filing their counter-affidavits in the Court below, the plaintiff had the option

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to apply to the Learned Trial Judge for judgment which judgment shall be given upon the statement of claim as the Judge may determine in favour the plaintiff. See Nwadike v. Ibekwe (1987) NWLR (pt. 67) 718 (SC) and Ogunleye v. Arewa (1960) W.N.L.R. 9.

However, in the peculiar circumstances of this case where the Learned Attorney General was sued and he has filed processes in defence of the 1st and 2nd Respondents who are the second Arm of Government and her Principal Officer, the regularization was in tandem with public interest and overall interest of justice.

In this case the Court below exercised its discretion judicially and judiciously in regularizing the processes filed by the 3rd Respondent’s Counsel to cover the 1st and 2nd Respondents who were the Imo State House of Assembly and the Speaker of Imo State House of Assembly in order for the case to be heard on the merits.

This issue is hereby resolved against the Appellant even though its resolution in favour of the Respondent has not changed the position on the crux of the matter on which the previous issues that had been determined were based. Having resolved all other issues except the

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last one in favour of the Appellant, this Appeal is meritorious and hereby succeeds. The judgment of the Federal High Court per C. V. Nwokorie, J. of the Owerri Judicial Division delivered on 31st day of July, 2008 is hereby set aside. Parties shall bear their respective Costs.


Other Citations: (2016)LCN/8940(CA)

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