Nigeria Liquefield Natural Gas Limited V. Opuada Dublin Green & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LAWAL GARBA, J.C.A.

The Respondents as Plaintiffs, had filed an action against the Appellant at the Rivers State High Court (to be called simply High Court hereafter) vide a writ of summons dated and filed on 1/3/2001. The claim endorsed on the writ and later pleaded in the statement of claim was for the sum of Thirty Eight Billion, Four Hundred Million Naira only N38,400,000,000.00) being and representing special and representing special and general damages suffered by the plaintiffs as a result of the chemical pollution by the defendant from 2000 to 2001 of BONNY rivers, creeks, swamps, fishing channels and adjoining seas in Rivers State, thereby paralysing the plaintiffs fishing activities.

After being served with the writ and statement of claim, the Appellant filed a notice of preliminary objection questioning the jurisdiction of the High Court to entertain the action of the Respondents. The ground of objection was that the subject matter of the Respondents’ action being damages for pollution caused by natural gas emission, the High Court lacks the jurisdiction to adjudicate over it. After hearing learned counsel on the objection, the High Court decided that it has jurisdiction to adjudicate in the suit and so dismissed the objection in a ruling delivered on the 16/3/04. The nine (9) lines ruling of the High Court which is at page 22 of the record of appeal is as follows:-

“RULING

This is a preliminary objection brought by the Defendant/Applicant for this suit to be dismissed and or struck out on the ground that the Court lacks jurisdiction to entertain it. It was agreed by both Counsels that the submissions and agreements in PHC/487/2001 would be adopted here and the ruling there adopted as the ruling in this case since there is similarity in the issues at stake. Therefore since I have held in PHC/487/2001 that the jurisdiction of this court is not ousted by the issues in contention. I hereby hold that this Court has jurisdiction to entertain this matter. Therefore I order the dismissal of the Preliminary Objection as lacking in merit.”

Not satisfied with the decision of the High Court, the Appellant brought this appeal by the Notice of Appeal dated and filed on 30/3/04. The appeal was premised on the following three (3) grounds which for their brevity, I can afford to set out without the particulars:-

“1. The learned Trial Judge erred in law when she ruled that the High Court below has jurisdiction over a matter within the exclusive jurisdiction of the Federal High Court.

2. The learned Trial Judge erred in law when she refused or failed to follow the decision of the Supreme Court in SHELL PETROLEUM DEVELOPMENT CO. LTD. V. ISAIAH (2001) 11 NWLR (part 72) 168.
3. The Learned Trial Judge erred in law when she failed to examine the plaintiffs’ claim and relief as endorsed on writ of summons and statement of claim before coming to the conclusion that she has jurisdiction over the matter.”

With the leave of the court, the Appellants’ brief of argument filed on the 8/6/06 was deemed filed on the 26/9/06 while the Respondents’ were granted enlargement of time to file the Respondents’ brief on the 3/7/07, Up to the date of hearing the appeal on 28/5/2009, there was no record that a Respondent’s brief was filed in the appeal.

From the three (3) grounds of appeal, the learned counsel for the Appellant had raised and submitted three (3) issues for determination in the appeal. They are:-

(1) Whether the trial court was right in assuming jurisdiction without considering the Plaintiffs’ claim and relief as endorsed on the Writ of Summons and Statement of Claim?

(2) Whether the trial judge was right in holding that the High Court of Rivers state had jurisdiction to entertain and determine the suit particularly having regard to the provisions of section 251 of the Constitution of the Federal Republic of Nigeria and Section 2 of the Federal High Court (Amendment Decree) 1991?

(3) Whether the trial court can disregard a binding authority of a superior court when same is relevant and cited?

Though the learned counsel did not indicate in the brief from which of the grounds of appeal these issues were distilled, as diligent practice called for, it can easily be said that issue 1 derived from ground of appeal 3, issue 2 from ground 1 and issue 3 from ground 2. At the hearing of the appeal, learned counsel for the Appellant had urged the court to hear the appeal on the Appellants brief alone since the Respondents had not filed their brief even after an enlargement of time to do so was granted to them by the court on the 3/7/07.

After a confirmation from the record of the court that the Respondents’ application filed on 26/6/07 for enlargement of time for them to file the Respondent’s brief in the appeal was granted on the 3/7/07 and that there was no record that the brief was filed within the time extended/or at all, the Court granted the request for the appeal to be hear on the Appellants’ brief alone. The court was strengthened in making the above order by the fact that even though the learned counsel for the Respondents was duly and properly served with the hearing notice of the appeal, he was absent from the court and there was no communication from him to excuse the absence at the hearing. In addition, none of the Respondents was in court on the date of the hearing. It was for above reasons that the court decided to hear the appeal on the Appellants’ brief alone since in the circumstances, the Respondents and their counsel can reasonably be assumed to have lost interest or are no longer interested in the diligent prosecution of the appeal. For judicial and practical purposes therefore, the appeal is uncontested by the Respondents because its determination would entirely be based on the Appellant’s brief alone and in law the Respondents deemed to have no answer to and have conceded the points canvassed by the Appellant. AKANBI V. ALATEDE (NIG.) LTD (2000) 1 NWLR (part 639) 1251 OLUWOLR V. ABUBAKARE (2004)10 NWLR (Part 882) 549, SHONA-JASON LTD. V. OMEGA AIR LTD (2006) 1 NWLR (part 960) 1.