Rev. Isaac Walter Okoni V. Nigerian Agip Oil Co. (Nigeria) Ltd (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUSA DATTIJO MUHAMMAD, J.C.A. (Delivering the Leading Judgment)

By its ruling delivered on the 24th day of November 2008, the Federal High Court sitting at Port Harcourt dismissed suit No. FHC/PH/CS/1352/2006 commenced by the Appellant herein for being statute barred. Dissatisfied, the plaintiff at the lower court has appealed against the court’s decision by his Notice filed on 1st December 2008 containing three grounds.

Parties have filed and exchanged their briefs of argument including appellants reply brief.

The two issues the appellant identified in his brief as having arisen for the determination of the appeal read:

“4.1 Whether the appellants action as encapsulated at paragraphs 5, 6 and the relief in the amended statement of claim falls within the jurisdiction of the Federal High Court (Ground 3)

4.2 whether in law there is an action for continuing trespass and if so whether such action (as in the appellants case) could be statue barred by virtue of the limitation Law Cap 80 of the law as of Rivers State 1999. (Grounds 1 & 2)”

The respondent agrees that the consideration of the two issues distilled by the appellant as reproduced above shall determine the appeal.

Chief Egele settled the appellant’s brief and argued the appeal as well. He adopted the brief as their arguments for the appeal.

On the 1st issue learned counsel contends that the lower courts jurisdiction over appellant’s action is determinable from appellant’s amended statement of claim as well as the relief he seeks. He relies on AG Kwara v. Olawale (1993) 1 NWLR (Pt.272) 645 at 663 and Jowitts Dictionary of English Law 2nd Edition by John Burke, page 297. He submits that from the claim it is clear that respondent’s trespass in respect of which the appellant seeks damages arose from, pertained to, is connected with or ancillary to mines, minerals, and oil mining carried out by the appellant. S.251 (1) (n) of the 1999 Constitution S.7 (6) of Decree No. 60 of 1991, and Decree No. 107 of 1993, argues learned counsel, confer jurisdiction on the Federal High Court in respect of appellant’s cause of action. The respondent being a holder of a mining lease is, under these legislations, liable for any damages caused any person regarding that person’s interest in land following the operation of the former as a pipeline operator.

On their 2nd issue, learned counsel submits that the Rivers State Limitation Law CAP 80 of 1999, by virtue of S 4 (2) and item 68 and 69 of the 2nd schedule of the 1999 Constitution as amended does not apply to matters in respect of which the National Assembly has Exclusive legislative powers. Since in the instant case Federal Legislations have provided for the matter in controversy between the parties, a state legislation cannot be invoked to negate the operation of the Federal law. The plethora of decisions relied upon by learned counsel to buttress his point includes Nuhu v. Ogele 2004 FWLR (Pt.193) 362 AT 379, AG Ondo State v. AG Federation (2002) FWLR (Pt 111) 1972 at 2145 -2146. Osadebey v. AG Bendel State (1991) 1 NWLR (Pt.169) 525 at 5995; Ogbuniya v. Okudo 2001 FWLR (Pt.72) 1987 at 1999 and Shell Petroleum Dev. Co. v. Farah (1995) 3 NWLR (PT.382), 148 at 200 – 201 paras A – E.

Further arguing the appeal, learned appellant counsel contends that the facts in Etim v. IGP (2000) FWLR (Pt.21) 767 being dissimilar from those in the instant case, the lower court is wrong to have relied on that decision in declining jurisdiction.

Concluding, learned counsel submits that the lower court, given S22 (2) of the Federal High Court Act, rather than dismiss appellant’s case should have transferred same to the High Court of Rivers State. It is urged that the appeal be allowed.

Under the 1st issue for the determination of the appeal, learned respondent’s counsel concedes that in considering whether or not a court has jurisdiction, it is the plaintiffs claim as endorsed on the writ of summons or statement of claim that a court considers. In the instant case, learned counsel submits, by paragraphs 5 and 6 of appellant’s amended statement of claim and the relief being prayed the lower court, appellant’s action clearly arises from respondent’s alleged trespass on the former’s land. The lower court by S39 and 41 of the land use Act clearly lacks the jurisdiction to entertain such claim. Counsel supports his contention with Omotesho v. Abdullahi (2008) 2 NWLR (Pt.1072) 526 and Okoroma v Uba (1999) 1 NWLR (Pt.587) 359 at 363. Where a court lacks the jurisdiction to entertain the main claim, learned respondent counsel further argues, it cannot delve into such ancillary claims, the determination of which will inevitably lead to consideration of the main claim. Learned counsel cites Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 567. Relying on Omaliko v. Awacline (2002) 12 NWLR (Pt.780) 1 at 23. Learned respondents counsel contends that it does not avail the appellant to raise the issue of the lower court’s failure to transfer the case to the State High court as same had neither arisen from the decision appealed against nor from any of its grounds of appeal. The issue being a fresh one for which no leave had been obtained from this court, it is urged, should be discountenanced. The 1st issue, learned counsel submits, be resolved against the appellant.

On the 2nd issue, while conceding that there could be an action based on a defendant’s continuing trespass, learned respondent’s counsel submits that the lower court can only determine such action if it has the jurisdiction to. The decision in Adepoju v. Oke (supra) Aremo 11 v. Adekanye, (supra) Okotio v Obioru (supra) and Obueke v. Nnamchi (supra), submits learned counsel, do not help the appellant since in all the cases those trial courts had jurisdiction to hear and determine the claim for trespass simpliciter or of the continuing type. The lower court’s jurisdiction, learned counsel further emphasizes, is limited’ But even if it is conceded that the lower court has jurisdiction in respect of trespass, appellant’s cause of action that arise in 1994 had by 3-2-2006, by virtue of the Rivers state limitation law become statute barred and unenforceable. Learned counsel supports his contention with Odubeko v Fowler (1993) 7 NWLR (Pt.308) 637 Ekeogu v. Ahiri (1991) 3 NWLR (Pt.179) 258, FRN v. Gold (2007) 11 NWLR (Pt.1044) 1 at 18 and Elabanjo & Anor v. Dawodu (2006) 6 – 7 SC 24 at 56. In concluding, learned respondent counsel maintains that by appellant’s pleading, the action in respect of which the lower court declined jurisdiction is on simple trespass. None of the averred facts pertains oil spillage for which either S.251 (1) N of the 1999 constitution as amended or the Petroleum Act has provided. Whichever way one looks at the ruling of the lower court, respondent counsel argues, it remains unassailable. He prays that the issues as well as the appeal be resolved against the appellant.