Mr. Commy M. Mkpesit (Suing For Himself And Representing The Abajialabo Fishing Group (300 Members) Of Okposo 1 & 2 Communities In Ibeno Local Government Area Of Akwa Ibom State) Vs Mobil Producing Nigeria Unlimited (2024)

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 of Nigeria, sitting at Uyo, Akwa Ibom State (trial court) delivered on the 19th April, 2023 in respect of a motion on notice filed in suit No: FHC/UY/CS/222/ 2022 by the respondent challenging the competence of the suit on the ground that it is statute barred.

The main suit was filed by the appellants against the respondent by which they claimed eight (8) declaratory and injunctive reliefs, special and general damages for the destruction of their properties used in business by their members a fishing group, against the respondent.

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

The facts of the case are that the respondent by its negligence caused crude oil spill from its facility at Qua Iboe Oil field terminal in Ibeno Local Government Area of Akwa Ibom State on the 29th June, 2014, which negatively impacted on the economic activities of the appellants who are fishermen and women and the spill polluted the entire river and the adjoining creeks and swamps thereby totally paralysing their fishing operation, being their only means of livelihood.

The appellants further claimed that the crude oil spill which occurred on the 29th June, 2014 is still evident on the surface of the water because the respondent did not take steps to prevent the crude oil that had already spilled from spreading in the water which has left the spill unabated till the date of filing of the suit.

Consequently, the crude oil is left floating around continued to spread and cause damage to the waters and aquatic lives in the sea thereby endangering the appellants means of livelihoods.

The appellants alleged that the failure of the respondent to remedy their fishing and economic environment occasioned a continuity of damages and/or injury to the appellants economic activities thereby affecting their economic wellbeing till date.

The respondent denied the claims of the appellant vide its statement of defence and in addition, the respondent filed a motion on notice on the 11th January, 2023, by which it raised preliminary objection to the competence of the suit of the appellants and prayed that same be dismissed or struck out for want of jurisdiction on the following grounds:

1. The action is statute barred as the plaintiff/respondent did not commence same within the limitation period provided under section 16 of the Limitation Law of Akwa Ibom State.

Alternatively

2. The action was commenced on behalf of an alleged unknown and unidentifiable persons/entities who are neither natural persons nor corporation sole/aggregate.
3. The plaintiff/respondent purported to act for alleged unknown and unidentifiable persons who are non-juristic persons.

The application was supported by affidavit and written address of counsel. See pages 187 – 204 of the record of appeal. It made the case that the appellants having filed their suit outside the five years period prescribed by section 16 of the Limitation Law of Akwa Ibom State, the suit is statute-barred, thereby robbing the trial court of jurisdiction to hear and determine it.

The appellants opposed the application by their counter-affidavit and a written address filed on the 20th January, 2023 contained in pages 209 to 229. The appellants on their part argued that for every general law there are exceptions, and their suit fall within one of the exceptions to the application of the limitation law because of the continuity of damage and/or injury they still suffer from the action of the respondent. As such, their suit is not caught up by the limitation law relied on by the respondent.

After considering the affidavits evidence of the parties and the originating processes, the learned trial Judge delivered the court’s ruling and held that the appellants suit is statute barred, as such, the trial court lacks the jurisdiction to determine it. He therefore dismissed the suit in limine. Aggrieved by the dismissal of their suit, the appellants filed this appeal on the 5th July, 2023 vide notice of appeal containing seven grounds of appeal, on which they relied to pray this court to set aside the ruling of the trial court and for an order of hearing of the suit on the merits by another Judge of the Federal High Court. See pages 272 to 280 of the record of appeal. The appellants brief of argument was settled by K. O. Uzoukwu, Esq. and filed on the 13th September, 2023 wherein he submitted two issues for the determination of the appeal thus:

1. Whether the trial court was right to uphold the preliminary objection of the respondent on the basis that continuity of damages and/or injury coupled with equitable reliefs copiously pleaded and claimed are not an exception to statute bar in tortious liability of negligence? (Grounds 1 to 7).
2. Whether the trial court was right to award cost of N50,000.00 (fifty thousand naira) only against the appellant in view of the submissions in issue one above? (Ground 8).

In response to the appeal, the respondents brief settled by Chidozie Nga, Esq. was filed on the 20th October, 2023 and he proposed two issues for the determination of the appeal as follows: