Mobil Producing Nig. Unlimited v. Ketan Oyorokoto Fishing Co-operative Investment And Credit Society Limited (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BALKISU BELLO ALIYU, JCA (Delivering the leading judgment)

This appeal is against the ruling of the Federal High Court sitting at Uyo, Akwa Ibom State (trial Court), delivered on the 16th June, 2023 by Hon. Justice M. A. Onyetenu in respect of a motion on notice filed by the appellant in suit No: FHC/UY/CS/177/2023 initiated by the respondent against the appellant.

The suit was filed by the respondent as the plaintiff against the appellant being the defendant vide a writ of summons by which the respondent claimed eight (8) declaratory and injunctive reliefs, special and general damages for the destruction of its properties used in business by its members being a registered fishing co-operative society against the appellant.

The respondent claimed that the action of the appellant caused oil spillage that destroyed its fishing business and failed to remedy and clean up the respondents business environment that was destroyed/affected by the oil spillage pursuant to the Oil Spillage Act, 2010.

The appellant entered appearance in the suit and filed its statement of defence against the claims of the respondent. In addition, the appellant filed a motion on notice on 22nd November, 2022, contained in pages 155 – 169 of the record of appeal by which it sought the striking out of the respondents suit for lack of jurisdiction of the trial court to determine it on the grounds that:

1. The action is statute barred for failure of the plaintiff to commence same within the limitation period provided under section 16 of the Limitation Law of Akwa Ibom State.

Alternatively:

2. There is no authorization for the suit to be commenced in the plaintiff/respondents name.
3. The plaintiff/respondents suit is incompetent for failure to comply with the condition precedent for instituting the action.

The application was supported by an affidavit and counsel written address. The appellant stated the facts relied upon for seeking the above reliefs in the affidavit in support, mainly that the respondent commenced the suit by its writ of summons on the 26th August, 2022, by which it alleged damages to its businesses from oil spillage from the appellants oil facilities at Usari Idoho pipeline in Qua Iboe Oil Fields of Akwa Ibom State which oil spill occurred on the 9th November, 2012.

It was the appellants case that the cause of action accrued on that 9th November, 2022, and this suit commenced on the 26th August, 2022 is statute barred by virtue of section 16 of the Limitation Law of Akwa Ibom State. The appellant further contended before at the trial court that the respondent did not commence this suit by due process, because being a body corporate registered under the Nigerian Co-operative Societies Act, there was no authorization to commence the suit in the co-operatives name of the respondent.

The respondent filed a counter-affidavit against the appellants application and a written address contending that limitation law has exceptions and its case falls within one of the exceptions, namely, being a claim predicated on declaratory and/or injunctive reliefs, which are equitable reliefs is not regulated by limitation law. Further, that the continuity of damage and injury are in sync with the tortious liability of negligence which is predicated on the facts pleaded to be heard by the trial court before it can determine the continuity of damages and/or injury. The respondent also insisted that the Nigerian Co-operative Societies Act does not provide for any authorization before it can sue any person in its name.

After considering the respective affidavits of the parties and the argument of their counsel, the learned trial Judge delivered the courts ruling and found no merit in the application and dismissed it. The appellant felt aggrieved with the ruling and filed notice of appeal against it 3rd July, 2023, but it was amended and filed on the 23rd April, 2024 containing three grounds upon which the appellant relied to pray this court for orders allowing the appeal, setting aside the ruling of the trial court and in its place, striking out the suit of the respondent for lack of jurisdiction.

The appellants brief of argument settled by Augustine Okafor, Esq., was filed on the 12th September, 2023 but deemed properly filed and served by the order of this court made on the 23rd April, 2024. He raised two issues from the three grounds of appeal for our determination thus:

1. Whether the lower court was right when it held that the suit as initiated by the respondent was exempted from the application of statute of limitation on the ground that most of the reliefs sought by the respondent were declaratory action. (Distilled from grounds 1 and 2 of the amended notice of appeal).
2. Whether the lower court was right when it relied on the Supreme Court’s decision in A.G. River State v. A.G. Federation & Anor. (2022) LPELR-57708 (SC) in holding that the suit as initiated by the respondent was not statute barred. (Distilled from ground 3 of the amended notice of appeal).

The respondent first filed a notice of preliminary objection separately on 22/9/2023. Then the respondents brief of argument settled by K. O. Uzoukwu, Esq., was also filed on the 22nd September, 2023 but deemed properly filed by the order of this Court made on the 23rd April, 2024. At pages 3 to 10 of the brief, the respondent again raised the preliminary objection asserting that this appeal is incompetent and ought to be struck out on the following grounds:

1. The ruling leading to the appeal was interlocutory and the appellant failed to secure the leave of the trial court before filing the notice of appeal, which contains grounds of mixed law and facts.
2. Ground 1 of the notice of appeal offends the Civil Procedure Rules of the Federal High Court of Nigeria.
3. That the appellants appeal is incompetent by reasons of sections 241(1) and 242(1) of the 1999 Constitution as amended.
4. That section 14(1) of the Court of Appeal Act, 2010 makes it mandatory to seek leave to appeal an interlocutory ruling.

However, in the event that this court overrules the preliminary objection, the respondent proposed two issues for the determination of the appeal as follows:

1. Whether the trial court was right to hold that the reliefs sought by the respondent being mostly declaratory were exempted from the application of statute of limitation? (Grounds 1 and 2 of the purported amended notice of appeal)
2. Whether the trial court was right to hold that under judicial precedent the suit of the respondent aligned with the decision in A-G. Rivers State v. A-G. Federation (2022) 15 NWLR (Pt. 1852) 99. (Ground 3 of the purported amended notice of appeal)

The appellants reply brief to the preliminary objection and the argument on the appeal of the respondent was filed on the 20th October, 2023 and deemed properly filed by order of this court made on the 23rd April, 2024.