Shell Petroleum Development Company Nigeria Limited V. Chief Jonas Oruwari & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE J.C.A, (Delivering the Leading Judgment)

In their final amended statement of claim dated 1/12/2008 and deemed filed on the 31/3/2009 the Respondents were herein who were plaintiffs at the Federal High court sitting at Yenagoa, Bayelsa State, claimed for themselves and as representing 82 fishing communities the following reliefs:

1. A declaration that the 28, 324 claimants represented by the’ plaintiffs on record are entitled to compensation arising from the Shell Petroleum Development Company Nigeria Limited Trunkline Nembe Creek Spillage of 22nd and 23rd December, 2003.
2. An order that the 28, 324 claimants be paid a sum equal to the sum paid to each claimant in the Defendant’s list or alternatively the sum of N500,000.00 which is N14,162,000.00 to each of the 28,324 claimants in the plaintiff’s list.

The Appellant filed a 14 paragraph statement of defence.

Pleadings having been filed and exchanged the case was set down for trial. The respondents called two witnesses while the Appellant called three witnesses in their determination to prove their respective cases. At the end of the trial and after addresses by learned counsel for the respective parties, the learned trial judge in a reserved and considered judgment delivered on the 31/3/2009 found for the respondents and awarded the sum of N1,250,000,000,00 as general damages in favour of the respondents and against the appellant.

The Appellant is dissatisfied with the judgment and has therefore brought this appeal. The initial notice of appeal is dated 1/4/2009 and filed on the 2/4/2009. This notice of app.al is at pages 475 – 477 of the Record of this appeal. However by a motion dated 5th March 2010, chief J.K. Gadzama, Learned Senior Counsel for the appellant applied for and was granted leave on the 28th June 2010 to amend the original notice of appeal. The amended notice of appeal upon which this appeal was argued is dated 4th March 2010 and filed on the 1st of July 2010. It contains nine grounds of appeal.

Parties filed and exchanged briefs of argument. At page 9 of the Appellant’s brief of argument, dated 30th June 2010 and filed on the 1st of July 2010, four issues have been formulated for determination of this appeal. They read thus:-

1. Whether the issuance and the service of the writ of summons were not void thus robbing the trial court of its jurisdiction to entertain the suit.
2. Whether the award of general damages by the trial court was legally justifiable in the circumstance of the case before it.
3. Whether having regard to the pleadings and the evidence before the trial court, the respondents proved their case to entitle them to judgment.
4. Whether the Respondents, suit was not improperly constituted as a representative action.

For the Respondents, a notice of preliminary objection to the hearing of the appeal is issued at page 6 of the Respondents’ brief of argument dated 3rd November, 2010 and filed on the 4th November 2010.

The grounds of objection as set out in the brief of argument are as follows:-

“1. The Original notice of appeal dated 1/4/2009 and filed on 2/4/2009 does not contain any valid or competent ground of appeal and is therefore a nullity.

2. The original notice of appeal having not initiated a valid appeal this honourable court lacks jurisdiction to entertain the appeal including to [sic] grant [sic] any interlocutory application predicated on the invalid appeal such as the notice of motion dated 5/3/2010 and filed on 10/3/2010 by the appellant which sought for leave to amend the said notice of appeal.
3. The orders made by this Honourable court on 28/6/2010 granting the appellant’s notice of motion dated 5/3/2010 and filed 10/3/2010 were made without jurisdiction and are nullities, there being no valid or competent notice of appeal or appeal upon which the application was predicated. The Orders should be set aside being null and void.
4. None of the nine grounds of appeal contained in the amended notice and grounds of appeal filed on 1/7/2010 is valid or competent. There is therefore no valid appeal before the court.”

This preliminary objection is argued at pages 7-49. Thereafter, three issues for determination of the appeal were formulated on behalf of the Respondents. These issues are reproduced hereunder as follows:-

1. Whether the lower court had jurisdiction to entertain and determine this suit.
2. Whether this suit was properly constituted.
3. Whether the decision of the learned trial judge that the respondents were adversely affected by the crude oil spill from the defendant’s oil installation and were therefore entitled to general damages assessed at N1,250,000.000.00 is right.”

Now, it is the position of the law that where a notice of preliminary objection to the competence of an appeal is issued, the court seized with the hearing of the appeal shall first consider and determine such objection. This is because if the objection is upheld, the appeal is terminated thereby. See Odu v. Agbor-Henseon [2003] 1 NWLR (Pt 802) 624 at 637 paragraph B-C, Osun State Government v. Delami [Nig] Ltd (2003) 7 NWLR (Pt.818) 72 Amoo v. Alabi (2003) 12 NWLR (Pt.835) 537. On the basis of the authorities I have cited herein above, I will proceed to consider the preliminary objection first in this appeal.

However before doing that, I wish to take exception to the manner in which the respondents’ brief of argument is crafted. By Order 3 rule 3[6][a] of the Court of Appeal Rules 2011, every brief to be filed in court shall not exceed 30 pages, except where the court directs otherwise. The Respondents’ brief is far in excess of 30 pages. Indeed the brief of argument runs into 128 pages. Even though the brief was filed on the 4th of November 2010 before the coming into force of the Rules of court under contemplation, the Respondents were required to amend the brief to conform with the new rules, since the appeal was heard after the 2011 Rules came into force.

Court rules as opposed to substantive law operate retrospectively, Any documents pending before the court which were made under repealed rules of court, must be amended to conform with the new rules – See:- Chigbu v. Tonimas Nigeria Ltd (2006) 9 NWLR (Pt 984) 189 at 208 – 209 paragraph H – D. Be that as it may, since the courts are enjoined to do substantial justice where strict adherence to the rules of court will result in injustice. I will in this appeal give consideration to the respondents’ brief of argument as their attention was not drawn to the anomalies at the hearing of the appeal.

In his argument on ground 1 of the grounds of objection, Mr. Nwofor, Learned Senior counsel for the Respondents submitted that the 1st ground of appeal in the notice of appeal filed on 2/4/2009 is false as there is no where in the judgment of the lower court, the respondents were awarded the sum of N12,500,000 as general damages. Learned Senior Counsel found fault with the particulars of the said ground one on the notice of appeal which he said were false and contended that a ground of appeal is incompetent when the factual basis is false or non-existent. In aid learned senior counsel cited Merchantile Bank of Nigeria Plc & Anor v. Linus Nwobodo [2005] 14 NWLR [Pt 945] 379, M.U. Ikam & 3 Ors v. Victor Ezianya (2002) 2 NWLR (Pt. 757) 245 at 261 paragraph G-H, Alakija v. Abdullai (1998) 6 NWLR (Pt.552).