Exxon Mobil Corporation 5959 Las Conilas Boulevard Irving Texas United States Of America V. Hrh Obong (Dr.) Effiong B. Archianga (Jp) & Ors(2018)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

The 1st to 10th Respondents herein by a writ of summons filed at the Federal High Court, Abuja on the 3rd of February, 2012, claimed against the 11th and 12th Respondents as well as the Appellant jointly the following reliefs: –

a. A declaration that the corporate structure of the 2nd defendant is such that it did not and cannot accept or discharge its corporate responsibilities in torts and contractual obligations to the magnitude of the volume of business exposures it engages in, should the plaintiff claim succeed.

b. A declaration that in view of the 3rd defendant’s declaration at the Securities and Exchange Commission of the United States of America afore pleaded, the 3rd defendant is estopped from denying its 100% ownership, and a fortiori, responsibility for all the torts and contractual obligations no matter howsoever described and arising from the 2nd defendant’s dealings in Nigeria.

c. An order compelling the 3rd defendant to file a rectification in the Corporate Affairs Commission of

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Nigeria clearly accepting full responsibility for the ownership and activities of the 2nd defendant in the plaintiffs’ territories and Nigeria.

d. An order declaring a nullity all transactions, rights and obligations entered in Nigeria by the 2nd defendant beyond the corporate liability of its shareholders as a corporate body whose shareholders liability is declared unlimited, these include all oil concessions, production facilities and accruable revenue derived therefrom.

e. A consequential order declaring the 1st defendant as the sole owner of the oil concessions, oil blocks, assets and finances arising from the purported joint venture operations or production sharing contracts entered into by or through the 2nd defendant over above its share capital or the liability of its shareholders afore pleaded, and a fortiori, that the 1st defendant shall assume full responsibility to pay the damages claimed in this suit which is more than five hundred times in excess of the share capital of the 2nd defendant or ultimate liability of its two shareholders.

f. A declaration that the 3rd defendant is bound to accept 100% responsibilities for its joint venture

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related torts and contractual liabilities given the structure and under capitalization of its subsidiary, the 2nd defendant.

g. An order setting aside all previous denials on oath or pleadings of the 3rd defendant, regarding its vicarious liability for the activities of the 2nd defendant in Nigeria.

h. SPECIAL DAMAGES as annotated in items i, ii, and iii under the head summary of values in the Plaintiffs Chartered Valuer’s Report N29,112,157,500.00.

i. DAMAGES FOR INTANGIBLE LOSSES as itemized under items (iv), (v) and (vi) under the head SUMMARY OF VALUES in the Plaintiffs’ Chartered Valuer’s Report N42,813,000,000.00.

j. GENERAL DAMAGES – N28,074,842,500.00 TOTAL – N100,000,000.00 (USD$ equivalent $66,666,666.6 @ N150 to USD1.0).

k. INJUNCTION restraining the defendants, by themselves, their agents or contractors from continuing or repeating the Oil Spills or Gas Flaring giving rise to these nuisances.

l. An order of mandamus directing the 1st defendant to discharge its duties by ensuring that their joint venture operators do clean up, detoxify and rehabilitate the plaintiffs’ lands ecosystem, underground waters and air quality.

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The Appellant, who was the 3rd defendant at the trial Court filed its statement of defence on the 19th July, 2012 and subsequently filed a motion on notice on the 25th of September, 2012 in which it sought for the following orders: –

“1. Setting down for hearing and determination the threshold points of law raised by the Appellant in its statement of defence dated 18 July, 2012 and fully set out hereunder.

2. Striking out the name of the Applicant from this suit on the ground that the plaintiffs’ originating processes in this suit disclose no reasonable cause of action whatsoever and howsoever against the Appellant.
3. Dismissing and/or striking out this suit as against the Applicant on the ground that this Honourable Court lacks the requisite jurisdiction to entertain the claims against the Applicant, domiciled outside the territorial jurisdiction of this Honouroble Court and not having any presence whatsoever in Nigeria.
4. Dismissing and/or striking out this suit as against the Applicant on the ground that the averments in the plaintiffs’ statement of claim particularly as they relate to the Applicant, are entirely speculative,

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wholly conjectural, without foundation or basis whatsoever and totally academic in nature.”

Under the grounds for the application, MR. PAUL USORO SAN, who filed the application on behalf of the Applicant set out some threshold points of law which he prayed the trial Court to hear and determine. This application was heard and in a reserved and considered ruling, Abdu-Kafarati J (as he then was) made reference to Order 29 Rules 4(a) and 5 of the Federal High Court (Civil Procedure) Rules 2009 and concluded as follows: –

“It is more than five months between the service of the plaintiffs’ claim on the 3rd defendant and the date the said 3rd defendant filed its statement of defence.

In situation like this the rules of Court provide that the point of law should be taken at the conclusion of trial. This provisions (sic) of the law couple with my earlier observation/finding makes it imperative to take the 3rd defendant’s points of law on jurisdiction at the conclusion of the trial in this matter. Accordingly hearing on prayers 2, 3 and 4 is suspended/deferred till the conclusion of trial in this matter. Prayer one on the motion paper having been

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conceded by the plaintiffs’ counsel is granted as prayed. I now call on the plaintiffs’ counsel to call his first witness.”

The Appellant herein was unhappy with that ruling. Being aggrieved, it appealed to the Court of Appeal without success. It has now brought this appeal. Its notice of appeal dated and filed on the 16th September, 2014 contains nine grounds of appeal.

Mr. Paul Usoro, learned senior counsel for the Appellant, at page 7 of the Appellant’s brief of argument dated and filed on the 11th December, 2014 formulated four issues for determination of this appeal. These issues read as follows: –

i. Was the lower Court right in holding, as it relates to this Appeal, that “the provision of Order 16 Rule 2 of the Federal High Court (Civil Procedure) Rules… has given the lower Court or learned trial judge a discretion to set down a point of law raised by a defendant and dispose of same ‘at any time before the trial’ or ‘after the trial’. In this case, the learned trial judge decided to exercise the second option open to him by ‘suspending’ or ‘deferring’ his opinion or views on the 2nd, 3rd and 4th points of law raised

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by the appellant and I think it was within his discretion to so decide” (Grounds 1 and 2).

ii. Was the lower Court right in importing the provisions of Order 29 of the Federal High Court (Civil Procedure) Rules, 2009 (“FHC Rules”) into an Applicant that was brought by the Appellant pursuant to Order 16 of the FHC Rules and ruling that (i) “the appellant in substance was disputing the jurisdiction of the trial Court to try the claim of the 1st set of respondents and Order 29 of the Rules was applicable to the appellant’s application”; and (ii) that ‘it makes no difference that the appellant failed or omitted to specify that the application was also brought pursuant to the provisions of Order 29 of the said Rules” (Grounds 3 and 4).

iii. Contrary to the lower Court’s holding, was the Appellant’s Points of Law Application resolvable and determinable despite the disputed issues and facts in the plaintiffs and Appellant’s pleadings before the Trial Court Framed differently, were there sufficient undisputed fact and legal principles that would have resolved and determined the issues in the Appellants Point of Law Motion without the need for a recourse

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to the contentious and disputed facts between the parties (Grounds 5 and 6).

iv. Upon a consideration inter alia of all the preceding issues, was the lower Court justified howsoever in failing and/or refusing to invoke the powers of the Court pursuant to Section 15 Court of Appeal Act, Cap C36, Law of the Federation of Nigeria, 2004 (“Court of Appeal Act”) to determine the Appellant’s Points of Law Motion and, in particular, dismiss and/or strike out the suit against the appellant on the grounds that (a) the Suit disclose no reasonable cause of action whatsoever and howsoever against the Appellant; and (b) the Court lacks the requisite jurisdiction to entertain the claims against the Appellant, domiciled outside the territorial jurisdiction of this Honourable Court and not having any presence whatsoever in Nigeria; and (c) the averments in the Plaintiffs’ Statement of Claim particularly as they relate to the Appellant, are entirely speculative, wholly conjectural, without foundation or basis, whatsoever and totally academic in nature

(Ground 7, 8 and 9).

The issues formulated by learned senior counsel for the Appellant are too prolix and seem to have obscured

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their proper understanding. Be that as it may, they are part of the appellant’s brief of argument which I must make use of, no matter how these issues are drafted.

Mr. Lucius E. Nwosu, learned senior counsel for the 1st -10th Respondents submitted one issue only for determination of this appeal, and it reads as follows: –

“Whether the Court below was right in affirming the decision of the learned trial judge in granting 3rd defendant/Appellant prayer 1 and thus deferring prayers 2, 3 and 4 till after he had taken evidence on the issues joined by the parties in their pleadings and if so, whether a party can appeal against an order he sought and consented to.”

Learned senior counsel for the Appellant filed a reply brief in which he set out argument in respect of the propriety of the issues distilled by the Appellant and went on to repeat arguments that were already canvassed in the Appellant’s brief of argument. This is not proper, since a reply brief is not meant to reargue the Appellant’s case.

The core issue that calls for determination in this appeal is whether the trial Court was right when it deferred

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determination of prayers 2, 3 and 4 of the Appellant’s application till the conclusion of trial The Court of Appeal is of the opinion that the trial Court was right in reaching that decision.

In relation to the core issue for determination of this appeal, I am of the firm view that the sole issue formulated on behalf of the Respondents has adequately covered the field. This appeal will therefore be determined on that sole issue.

In arguing this appeal, learned senior counsel for the Appellant, submitted that the trial Court having exercised its discretion to hear and determine the Appellant’s points of law by granting prayer 1 on the motion aforesaid on the 1st of November, 2012, pursuant to Order 16 Rule 2(2) of the Federal High Court Rules, was legally precluded from reversing its decision in its ruling of 6th March, 2013. In support of this argument, learned senior counsel relied on Order 16 Rules 2(1), 2(2) of the FHC Rules and the authorities in Lawal vs. Dawodu & anor (1972) ALL NLR 707 at 718 – 719; Obioha vs. Ibero & 1 other (1994) 1 NWLR (PT. 322) 503 and Fadare & ors vs A-G Oyo State (1982) ALL NLR 26.

Mr. Lucius E. Nwosu, learned senior counsel for the

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Respondents in his argument, submitted that the issues raised by the Appellant in its prayers 2, 3 and 4 of the motion paper that gave rise to this appeal can only be established by evidence, since such matters went to the root of the 1st – 10th Respondents’ case. In a further argument, learned senior counsel submitted that the applicant having applied for an order to set down for hearing and determination of the threshold points of law, cannot appeal against an order that was made in his favour. In aid, learned counsel cited J.C Ltd vs. Ezenwa (1996) 4 NWLR (PT. 443) 391 at 408 – 409 Paras H – C.

In resolving the contentions by respective parties, the lower Court in its judgment at page 1811, vol. 3 of the Printed record of this appeal, held: –

“The provision of Order 16 Rule 2 of the Federal High Court (Civil Procedure) Rules has given the lower Court or learned trial judge a discretion to set down a point of law raised by a defendant and dispose of same “at any time before the trial” or “after the trial”. In this case, the learned trial judge decided to exercise the second option open to him by ‘suspending’ or ‘deferring’ his opinion or views on

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the 2nd, 3rd and 4th points of law raised by the appellant and I think it was within his discretion to so decide.”

The Appellant’s motion, subject matter of this appeal, filed on the 26th September, 2012, is at pages 809 – 812 of the printed record of this appeal. The heading of the motion shows clearly that it was filed pursuant to Order 16 Rules 2, 3, 4 and 5 of the Federal High Court (Civil Procedure) Rules 2009. Order 16 Rule 2(1) and (2) of the Federal High Court Rules is relevant to the determination of this appeal, and I reproduce same as follows: –

“16 (2)(1) Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.

(2) A point of law so raised may, by consent of the parties, or by Order of the Court or a judge in chambers on the application of either party, be set down for hearing and disposed of at any time before the trial.”

A careful perusal of the Appellant’s application at the trial Court will show that the first relief prayed the trial Court to set down for hearing and determination of those points

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that are reflected in reliefs 2, 3 and 4 of the same application. In his ruling, as reflected elsewhere in this judgment, the learned trial judge having suspended and/or deferred hearing in respect of prayers 2, 3 and 4 nonetheless granted prayer 1.

Prayer 1 cannot be granted in isolation of prayers 2, 3 and 4, as the three prayers are those alleged points of law that are sought to be heard and determined by the trial Court.

However, can the Prayers of the appellant be considered in the light of the provisions of Order 16 Rule 2(1) and (2) of the Federal High Court (Civil Procedure) Rules 2009 In order to answer this question, I wish to set out those points of law which learned counsel wanted the trial Court to consider as follows: –

1. Striking out the name of the Applicant from this suit on the ground that the plaintiffs originating processes in this suit disclose no reasonable cause of action whatsoever and howsoever against the Appellant.
2. Dismiss and/or striking out this suit as against the Applicant on the ground that Court lacks the requisite jurisdiction to entertain the claims against

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the Applicant domiciled outside the territorial jurisdiction of this Honourable Court and not having any presence whatsoever in Nigeria.

3. Dismissing and/or striking out this suit as against the Applicant on the ground that the averments in the Plaintiffs’ statement of claim particularly as they relate to the Applicant, are entirely speculative, wholly conjectural, without foundation or basis whatsoever and totally academic in nature.

The grounds for the Application as reflected in the Appellant’s motion paper are as follows: –

“1. The Applicant has pleaded in its statement of defence dated 18th July, 2012 that:

(i) It is entirely a separate entity from the 2nd defendant;

(ii) It does not have a subsidiary company or agency relationship howsoever or whatsoever with the 2nd defendant;

(iii) It is not domiciled in Nigeria and was not at any time material to this suit involved in oil exploration and/or exploitation in the locations mentioned in the plaintiffs’ statement of claim or at all;

(iv) Was not involved in and is not liable howsoever for the alleged environmental disasters and degradation alleged by the Plaintiffs; and

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(v) Not being domiciled in Nigeria cannot howsoever be subjected to the jurisdiction of this Honourable Court based on the subject matter of this suit.

11. The threshold and preliminary issues that are raised in the Applicant’s statement of defence are wholly determinable based on the state of the parties’ pleadings and without any more. In particular, the question of: –

(a) subsidiary company or agency relationship or vicarious liability relationship between the Applicant and the 2nd defendant, involve issues of law which can only be determined with reference inter alia to the Companies and Allied Matters Act LFN 2004 (“CAMA”) and the Common Law Principles on master-servant and/or agency relationship;

(b) disclosure of cause of action against the Applicant by the plaintiffs’ suit is determinable by reference to the Plaintiffs’ originating processes, notably, their statement of claim, guided by the principles of law contained in decided authorities: and

(c) jurisdiction of this Honourable Court on a foreign party, in this case the Applicant, is determinable only on principles of law governing territorial jurisdiction.

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Order 16 Rules 2(1) and (2) of the Federal High Court (Civil Procedure) Rules, 2009 (“FHC Rules”) allows the Applicant to table before this Honourable Court for determination, as threshold points – of – law issues and at the earliest opportunity, the issues of law specified in paragraphs 1 and 11 above which are pleaded in the Applicant’s statement of defence.”

As can be seen from the grounds of the application, the issues which the appellant raised for hearing and determination in its application are contained in the parties’ pleadings. Pleading simply means the plaintiffs statement of complaint and the defendant’s answer to such a statement. Pleading usually takes place in civil cases. Black’s Law Dictionary, 8th Edition, by Bryan A. Garnei defines pleading as a formal document in which a party to a legal proceeding especially in civil suit sets forth or responds to allegations, claims, denial or defences. This Court has held in a number of cases that parties to a civil suit only plead facts and not evidence or law resulting from the facts; and that parties must give evidence in support of their pleadings. See U.A.C vs. Owoade 13 WACA 207: Peenok Investments Ltd vs. Hotel Presidential

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Ltd (1982) 12 SC 1: Thanni vs. Saibu (1977) 2 SC 89.

In Ojoh vs. Kamalu (2005) 24 NSCQR 256; (2005) 18 NWLR (Pt. 958) 523. this Court, per Tobi, JSC said: –

“Pleadings not being human beings have no mouth to speak in Court, and so they speak through witnesses. If witnesses do not narrate them in Court, they remain monbund, if not dead at all times and for all times to the procedural disadvantage of the owner, in this con the appellant.” See Owners. M/V Gongola Hope vs. SC (Nig) Ltd (2007) 15 NWLR (Pt. 1056) 189 at 207 Paras A – C: Yusuf vs. Adegoke (2007) 11 NWLR (Pt. 1045) 332.”

The only prayer that has some element of any point of law in the appellant’s application is the 3rd prayer which attacked the territorial jurisdiction of the trial Court on the ground that the appellant has no presence in Nigeria, whatsoever. The jurisdictional issue raised by the Appellant is procedural as it constitutes a challenge to the locus standi of the 1st set of Respondents to sue in the circumstances of this case. The Appellant’s objection to the jurisdiction of the trial Court is based on allegation that the appellant has no presence in Nigeria.

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This is the core issue to be determined in the substantive case before the trial Court. Apart from the fact that such allegation can only be established by evidence, the Courts are enjoined not to determine substantive issues at interlocutory stage.

Learned senior counsel for the Appellant argued forcefully that the trial Court was wrong in reversing its decision of 1st November, 2012 where it exercised its discretion to hear and determine the Appellant’s points of law by granting prayer 1. I do not think the trial Court was wrong. Indeed as a general rule, every Court of record has inherent jurisdiction on application and in appropriate cases and circumstances to set aside its judgment or decision. This jurisdiction may be exercised where for instance, the judgment or decision sought to be set aside is null and void ab – initio or there was a fundamental defect in the proceedings which vitiates and renders the same incompetent and invalid. See Alhaji Taofeek Alao vs. ACB Ltd (2000) 2 SCNQR 1067; Salami Omokewu & Ors vs. Abraham Olabanji & anor. (1996) 3 NWLR (pt. 435) 126; Sken Consult (Nig) Ltd vs. Ukey (1981) 1 SC 6. In such a

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case the Court may ex-debito justitiae set aside its decision and may make necessary consequential orders that the justice of each individual case demands. See Jatau vs. Ahmed (2003) 4 NWLR (pt. 811) 498. In the instant case, it is plain that the points of law that were raised for hearing and determination are neither points of law, nor are they matters that could be determined at that stage without encroaching into the substantive issues as set out in the 1st – 10th Respondents’ statement of claim. This is a classical case where interlocutory appeal should be discouraged.

The issues germane to this appeal in my view have been adequately considered in this lone issue for determination of this appeal, which I resolve against the appellant. The lower Court was right in upholding the decision of the trial Court. The argument on issues 2, 3 and 4 by learned counsel for the Appellant is a mere academic exercise which I am not interested in getting involved. This appeal is devoid of any merit. Accordingly same shall be and it is hereby dismissed. The cost of prosecuting this appeal is assessed at N1,200,000 in favour of the 1st to 10th Respondents collectively, and against the Appellant.

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SC.631/2014