Nigerian National Petroleum Corporation & Anor V. H.R.H Eze Marcel Onyeemukwuru & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the Judgment of the Federal High Court Owerri per C.V. Nwokorie, J. delivered on 1st day of December, 2008.

The facts leading to this appeal as follows:

The Respondents are the riparian owners of the vast area of land which situate and lying at the bank of Imo River at Umuoma in Ihitte/Uboma Local Government Area of Imo State and as riparian owners, they have, from time immemorial been exercising riparian rights over same with several economic crops; and trees and also established thereat several snail and cassava farms, fish ponds, etc from where they derive income while the stream, creeks and tributaries form their only source of portable water.

The Respondents’ case is that sometime in the month of October, 2003, they discovered substance like petroleum products floating on their vast area of land as well as several streams, creeks and tributaries which run through their land. When they sipped the water from the river, it tasted like petroleum product namely kerosene, petrol and diesel and their water became undrinkable which caused the destruction of their fish ponds, snail and cassava farms, economic trees etc. The facts of the spillage and pollution of the Respondents vast area of land economic crops and trees, etc. was promptly brought to the attention of the Appellants but the Appellants refused, failed and/or neglected to stop the pollution of the Respondents’ vast land and source of portable water despite repeated, demands. The pollution of Respondents’ vast area of land, stream, creeks and tributaries (their only source of portable water) continued unabated for several months from October 2003 to March 2004 inflicting in the process several damages, loses etc. on the Respondents.

To prove their case, the Respondents called five witnesses and tendered survey plan showing the total area heavily impacted by the said spillage and pollution valuation reports prepared by a Registered Estate Valuer, photographs clearly showing the spillage and pollution as well as dead fishes, etc. The Respondents also tendered medical reports issued to some of them affected by the pollution of their source of portable water. The Appellants did not cross examine any of the five witnesses called by the Respondents. The Appellants also did not lead any evidence in support of their pleadings despite several hearing notices issued and served on the Appellants.

Hearing in the Suit started first on the 4tn day of December 2006 before Hon. Justice S. Yahaya and the Appellants were duly represented by their solicitor. When the matter started denovo before Hon. Justice C.V. Nwokorie, the Appellants and their counsel were absent in court and the Hon. court ordered hearing notice to be issued and served on the Appellants which hearing notice was duly served on the Appellants. Thereafter, the case was adjourned to 12th day of June 2008. On 12th June, 2008, Appellants and Counsel were absent in Court and their matter was further adjourned to 2nd July 2008 for hearing with hearing notice to be served on the defendant which hearing notice was duly served. On 2nd July, 2008, Appellants and Counsel were absent and the matter was adjourned to 22nd and 23rd September, 2008 for hearing. On 22nd September, 2008, the Appellants and Counsel were absent in Court and the matter was adjourned to 21st October 2008 for hearing.

On 21st day of October 2008, hearing in the Suit commenced with Plaintiffs witness No. 1, the Appellants and Counsel were absent. Thereafter, the matter was adjourned to 4th November for continuation. The Court ordered hearing notice to be served on the Appellants and same was duly served. On the said 21st day of October 2008, the deposition on oath of the Plaintiffs witness No. 1 was duly served on the Defendants. On 4th day of November 2008, Appellants and Counsel were absent. The Plaintiffs’ witness No. 1 continued his evidence in Chief by tendering several exhibits. The Honourable Court duly observed that hearing notices have been duly issued and served on the Appellants and the Appellants refused to respond. Accordingly the Court foreclosed all the Appellants from cross examining the Plaintiffs’ witnessed No. I and the matter was adjourned to 24th November, 2008 for continuation.

On 24th November 2008, the Appellants and Counsel were absent in Court. The Plaintiffs’ witness No. 2, 3, 4 and 5 testified before the Hon. Court, at the end of which the Respondents closed their case and the matter was adjourned to 27th November and 2nd December 2008 for defence and the Court ordered a hearing notice to be issued and served on the Appellants. The said hearing notice was duly served on the Appellants.

On the 27th of November 2008, the Appellants and Counsel refused to come to Court to tender their defence in their suit. The Court thereafter received closing address from the Respondent’s Counsel and on 17th day of December 2008, the learned trial Judge delivered Judgment in the suit and granted the Respondents Claim.

Being dissatisfied with the Judgment of the trial Court, the Appellants appealed against same to this Honourable Court.

The appeal was heard on the 8th November 2010 and in line with the Rules and Practice of this Court, the Parties’ duly filed their respective briefs of argument. The Appellants’ brief of Argument is dated and filed on 24/3/10, also the Appellants filed a reply Brief dated and filed on 24/5/10.

Learned counsel to the Appellants Mr. L. C. Ofoegbu adopted the two brief’s of argument. Counsel to the Appellant urged the Court to strike out the appeal since they have made fundamental mistake to enable the Appellants file proper appeal.

Learned counsel to the Respondents Mr. L.C. Ugorji informed the court that the Respondents’ brief of argument is dated 23/4/10 and filed on 23/4/10. Counsel further informed the Court that they filed a Notice of Preliminary Objection pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2007, the Notice of Preliminary objection is dated 22/4/2010 and filed on 23/4/2010. Counsel informed the court that submissions on the preliminary objection are incorporated in the brief of argument. Counsel adopt the brief of argument and the submissions on the preliminary objection and urged the court to strike out the appeal as being grossly incompetent.