National Inland Waterways Authority V. The Shell Petroleum Development Company Of Nigeria Limited (2006)

LawGlobal-Hub Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.C.A.

PURSUANT to section 25 (1), (2) and 4 of the Court of Appeal Act, Cap 75 Laws of the Federation 1990, Order 3 Rule (4) (1) of the Court of Appeal Rules 2002 and the inherent jurisdiction of the Court, the applicant seeks the following:

“1. An order extending time within which the applicant/respondent may seek leave to cross appeal against those parts of the decision of Hon. Justice Faji delivered 22nd April 2005 in suit No: FHC/PHC/CS/322/2003 in Federal High Court, Port Harcourt which are interlocutory.

2. An order for leave to cross-appeal in respect of the said decision.
3. An order extending time within which the respondent may cross-appeal against those parts of the decision of Hon. Justice Faji delivered on the 22nd day of April in suit No: FHC/PHC/CS/322/2003, which are interlocutory.
4. An order deeming the notice of cross appeal already filed, served and comprised in the record of appeal as being filed and served.
5. An order extending time within which to file respondent/cross appellant’s brief of argument.
6. An order deeming the already filed and served respondent/cross appellant’s brief of argument as properly filed and served.”

The application which is filed on 29th March 2006 is supported by a ten paragraph affidavit. Paragraphs 3, 4, 5, 6, 7, 8, and 9 have been particularly relied upon by the applicant. The paragraphs are hereunder supplied for ease of reference:

“3. At the time of filling the notice of cross-appeal before this Honourable Court. Counsel had the mistaken belief, that being a final decision, leave was not required. The said notice of cross appeal has been filed and is already included in the record of appeal. A copy of the said notice of cross appeal can be found at pages 272-275 of the record.

4. In the process of writing the brief of argument, it became apparent that there was the need to seek for leave to cross-appeal, as at least two of the grounds of appeal appear to be interlocutory even though the said decision are comprised in what is titled the judgment of the lower court.

(Underlining supplied for emphasis)

5. At this stage, the time provided by the Court of Appeal Act and the rules for making the application for leave to appeal had expired.
6. Further, the applicant/respondent/cross appellant’s brief of argument was not filed until now owing to immense pressure of work and vacation taken by counsel conducting the appeal Mr. Etigwe Uwa between December 2005 and January 2006. In addition the appellant’s brief is very voluminous running into 104 pages as a result of which writing the respondent’s brief and cross appellant’s brief has taken more time than expected. Our chambers have also within this period been occupied with the preparation of several other briefs of argument both in the court of Appeal and in the Supreme Court. Matters were worsened by the fact that our Mr. Etigwe Uwa leading counsel and his assistant Chinasa Unaegbunam took ill in the first and third weeks of February 2006 respectively.
7. It is entirely for this reason that the said brief of argument was not filed until now coupled with the National Census wherein there was no movement in Lagos State from 21st-27th of March 2006 sequel to the stay at home order of the government.
8. The said brief of argument is now ready and has been filed at the registry of this Honourable Court and now forms part of the Record of this Honourable Court to which I crave leave to refer.
9. That the respondent/appellant/cross respondent will not be prejudiced if this application is granted.”

The respondent herein has filed a twenty-paragraph counter-affidavit in opposition to the application. Paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 15, 16 and 17 of the counter-affidavit being important and relevant are hereunder reproduced:

“3 Judgment was delivered in this matter on April 22, 2005 against the defendant/appellant/respondent.

4. The defendant/appellant/respondent on May 3, 2005 filed an appeal against the whole judgment.
5. Defendant/appellant/respondent filed its appellant’s brief of arguments on November 15, 2005 and served the plaintiff/respondent/applicantion November 17, 2005.
6. The plaintiff/respondent/applicant, filed a notice of cross-appeal on June 3, 2005 against part of the judgment
7. From November 17, 2005 when the defendant/appellant/respondent’s brief of argument was served on the plaintiff/respondent/applicant, the plaintiff/respondent/applicant had 45 days to file its respondent’s brief of arguments. The 45 (forty-five) days expired on January 1, 2006.
8. On February 23, 2006, the defendant/appellant/respondent filed a motion on notice seeking orders of this honourable court for a date to hear the defendant/appellant/respondent’s appeal on the appellant’s brief of arguments.
9. The said defendant/appellant/respondent’s motion on notice was served on the plaintiff/respondent/applicant on March 3, 2006. This honourable court filed the said motion for hearing on March 29, 2005.
10. On March 29, 2006 the day the defendant/appellant/respondent’s motion came up for hearing before this honourable court the plaintiff/respondent/applicant filed its respondent cross-appellant’s brief of arguments, 85 days out of time from January 1, 2006.
11. On March 29, 2006, the plaintiff/respondent/applicant filed a motion on notice now seeking the orders of this honourable court for extension of time to seek leave to appeal and leave to file cross appeal. The defendant /appellant/respondent filed its notice of cross appeal on June 3, 2005 without leave of court.
12. The plaintiff/respondent/applicant did not obtain the leave either of this honourable court or the lower court before it filed the notice of cross appeal on June 3, 2005. That is over ten (10) months ago.
13. The plaintiff’s appeal and the defendant’s cross-appeal have been enter in the Court of Appeal.
14. On March 29, 2006 the plaintiff/respondent/applicant filed and served on the defendant/appellant/respondent its respondent cross appellant’s brief of argument without first obtaining leave to appeal.
15. Chief Richard Akinjide CON, SAN, FCI Arb (UK) informed me and I verily believe him that the plaintiff/respondent/applicant’s notice of cross appeal and the cross-appellant’s brief of argument already filed are incompetent and a nullity.”

It is helpful to refer to the record of appeal filed by the respondent to this application, here see paragraph 4 of the respondent’s counter-affidavit; for us to fully appreciate the issues the instant application raises from the said record.

Applicant herein as plaintiff at the lower court took out an originating summons dated 12th May 2003 against the respondent, as the defendant seeking the determination of the following two questions:

“1. Whether the plaintiff is entitled by virtue of Sections 9, 10, 11, 12, 13 and other sections of the National Inland Waterways Authority Act 1997. (The NIWA Act) to levy, impose and collect charges, dues, and rates for dredging, shoreline utilization along the right of way of declared waterways; use of land on the right of declared waterways for spoil dump, obstruction of waterways through pipeline and such other charges from the defendant and other companies carrying on dredging, oil and shoreline related activities along the right of way, or on declared waterways in spite of the provisions of Section 15 of Petroleum Drilling and Production Regulations and Section 11 (4) of the 2 Oil Pipelines Act.

2. Whether or not the regulation for Dues, Rates, and Charges (Tariffs) made by the plaintiff and approved by the Federal Ministry of Transport on the 16th March 1998 is valid and in accordance with the provisions of section 29 of the National Inland Waterways Authority Act 1997.”

On determining the foregoing questions in the affirmative, the applicant asked the court for the following reliefs: –

“1. A declaration that the plaintiff is entitled to the exclusion of all others to levy, impose and collect charges, dues, or rates for dredging, shoreline utilization and use of land for Spoil Dump along the right of way of declared waterways, and in respect of such similar activities enumerated in Section 9 of the NIWA ACT, from the defendant in accordance with Sections 13 and 29 of the said NIWA ACT.

2. A declaration that the Regulations of Dues, Rates and Charges (TARIFF) made by the National Inland Waterways Authority and approved by the Federal Ministry of Transport on the 16th of March 1998, is the valid and applicable tariff for all the various activities carried out on in or along the right of way of declared waterways, creeks and Lagoons and is binding on all persons or Companies carrying out such activities in or along the right of way of the said declared waterways, creeks and lagoons.
3. Judgment in favour of the plaintiff against the defendant in the sum of N 1,226,671,470.00) One Billion, Two Hundred and Twenty six Million, Six Hundred and Seventy One Thousand, Four Hundred and Seventy Naira) being the total unpaid accumulated dues, charges and dump and other similar charges due from t he defendant to the plaintiff for the years 1997-2003.”

In its judgment, the lower court resolved the two questions asked by the applicant affirmatively but ordered pleadings in respect of the third relief.