Mobil Producing Nigeria Unlimited V. Lagos State Environmental Protection Agency & Ors (2002)

LAWGLOBAL HUB Lead Judgment Report

O. AYOOLA, J.S.C.

By an originating summons issued in the Federal High Court on 22nd December, 1999 Mobil Producing Nigeria Unlimited, the appellant, commenced their proceedings from which this appeal arose against

(i) Lagos State Environmental Agency;

(2) Federal Environmental Protection Agency;

(3) Minister of Environment;

(4) Various defendants whose names were set out in a schedule to the originating summons and are here described as the 4th set of defendants. The reliefs sought by the originating summons were as follows:

“1. A declaration that the 2nd and/or 3rd defendant are by virtue of the schedule II, Part I, Item 29 of the constitution of the Federal Republic of Nigeria, 1999 and Ss. 20,21,23 and 24 of the FEPA Act of 1988, the authorities with exclusive power to determine the liability of the plaintiff with regard to any and all alleged damage arising out of the spill into interstate and/or territorial waters of Nigeria” including the costs of any government body, agency or third parties in the form of reparation, restoration, restitution, compensation and/or damages.

2. A declaration that the findings and conclusions contained in the reports approved and/or endorsed by the 2nd and 3rd defendants are conclusive as to the nature and/or of the environmental and/or other impact of the spill.
3. A declaration that the findings and conclusions of the reports to the effect that the spill had no negative/adverse environmental and/or other impact on the ecosystem and/or human resources of Lagos state or any of the states represented by the relevant state governmental bodies or agencies, listed in 1st schedule; and/ or any of the 4th defendants are binding on the 1st defendant and the 4th respondents listed in 2nd Schedule to this summons.
4. An order that the 1st defendant/respondent and the 4th defendants, their agents, attorneys, servants, privies and/or any persons whosoever acting for, or claiming through them be refrained from:

(a) taking or procuring any other person or persons to take steps in any action, proceedings or further steps in any action commenced by any of the defendants in various divisions of the Federal and State High Courts of Nigeria; and/or

(b) commencing or continuing, or procuring any other person to commence or continue any action or further or other proceedings before any court or tribunal in Nigeria or elsewhere against the plaintiff for reparation, restoration, restitution, compensation and/or damages arising out of the plaintiffs January 12, 1998 Idoho-QIT 24 Pipeline Oil Spill other than as may be determined by the 2nd defendant, or at all.”

On 3rd December, 1999 the appellant obtained an order of interim injunction the terms of which are not material to this appeal. Thereafter a number of motions were severally filed by some of the 4th set of defendants to discharge the order. One of the motions heard by the trial court, the ruling from which this appeal arose, was by Nos. 77 and 78 of the 4th set of defendants represented in the High Court by Mr. Agbakoba, SAN, who on 25th January, 2000 took an objection to the originating summons on the ground that it disclosed no reasonable cause of action. In the affidavit sworn by a counsel in the firm of Olisa Agbakoba & Associates, Solicitors to the applicants, it was stated that-

“The dispute between the applicant and the plaintiff in the present suit is not about the statutory powers or any government agency or the liability of the plaintiff to any of the defendant (sic) but a claim for compensation for damage arising from negligence and violation of right to safe environment under Article 24 of the African Charter on Human and Peoples Right.”

It was in the course of arguing the motion that Mr. Agbakoba, SAN, stated as recorded by the trial Judge:

“I now refer to section 29(2) of the FEPA Act which refers to the one month pre-action notice. A material plea of the plaintiff ought to be that one month pre-action notice was given.”

Mr. Ajumogobia, counsel for the appellant, responded that no question of absence of pre-action notice was raised in the affidavit in support of the application to discharge the interim order of injunction. He further argued that it did not lie in the mouth of the defendants to say that notice was not given to the Federal Environmental Protection Agency (“FEPA”) when there was no evidence whatsoever before the court to that effect. Notwithstanding this stout response, Odunowo, J., before whom the matter came held the view that: