Shell Petroleum Development Company Limited V. Eteidung Emmanuel Alfred Akpan & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment)

The respondents in this appeal [as plaintiffs] took out a Writ of Summons against the appellant herein [as defendant] at the Federal High Court, Uyo Judicial Division, Uyo, Akwa Ibom State (hereinafter, simply, referred to as “the lower court’).

In the said Writ, filed along with the Statement of Claim, the respondents claimed, inter alia, damages and injunctive reliefs for an alleged oil spill which emanated from the appellant’s oil well at Ikot Ada Udo village, Ikot Abasi Local Government Area of Akwa Ibom State.

Upon service on them, the appellant’s former counsel greeted the respondents’ processes with a preliminary objection. The two grounds of the objection were that (a) the Writ of Summons was, incurably, defective due to its non-compliance with sections 97 and 99 of the Sheriffs and Civil Process Act [which prescribe the endorsement for service outside jurisdiction] and (b) that the subject matter was statute-barred.

In its ruling of January 30, 2007, the lower court (Coram Olotu J) dismissed the said preliminary objection. Ultimately, Abubakar J inherited the matter. His Lordship commenced hearing de novo. The appellant’s new counsel filed another notice of preliminary objection challenging the court’s jurisdiction. This latter objection was anchored on three grounds.

Like ground one of the earlier preliminary objection, the first ground of this latter objection was woven around the complaint that the Writ of Summons was defective as it was not endorsed for service outside jurisdiction, section 97 of the Sheriffs and Civil Process Act; Owners of MV Arabella v NAIC [2008] 11 NWLR (Pt.1097) 182.

As a preliminary issue, the appellant’s counsel canvassed the applicability of the de novo principle. It entreated the lower court [Coram Abubakar J) to entertain the objection on that basis [the de novo principle]. In its ruling of March 18, 2013, the lower court [coram Abubakar J] dismissed the said latter objection. This appeal was prompted by the appellant’s grievance against that ruling which, in the appellant’s view, did not consider the applicability of the said de novo principle.

ISSUE FOR DETERMINATION

Only one issue was set out for the determination of the appeal. It was framed thus:

Whether the refusal of the trial Judge to consider the legal principle of de novo trial, particularly, as it relates to ground one in the [latter objection] in his Ruling delivered on March 18, 2013, did not, grievously, affect the fairness of the hearing and thereby occasioned a miscarriage of justice to the appellant?

On their part, the respondents formulated the following lone issue for determination:

Whether in view of the ruling of 30th January, 2007 the trial court was not right when it held as it did on the objection bordering on Section 97 of the Sheriff and Civil Process Act, Cap. S.6 laws of the federation of Nigeria, 2004?

ARGUMENT ON THE ISSUE

APPELLANT’S ARGUMENT