Texaco Panama Incorporation V. Shell Petroleum Development Corporation Of Nigeria Limited (2002)
LAWGLOBAL HUB Lead Judgment Report
A. KALGO, J.S.C.
On the 27th of January, 1994, the appellant as plaintiff, took out a writ of summons in the Federal High Court in Lagos, in which it claimed $5,780,442.88 (five million, seven hundred and eighty thousand, four hundred and forty two dollars eighty-eight cents) against the respondent for negligence sustained by its oil tanker M.V. Star Tulsa when berthing at the respondent’s inshore oil terminal at Bonny.
Pleadings were filed in court and settled between the parties. Thereafter the respondent orally raised the issue of the absence of pre-trial notice and limitation of time in relation to the whole action which were fully averred in paragraph 17 of the respondent’s amended statement of defence. The learned trial Chief Judge having observed that these are all issues of law touching on the jurisdiction of the court, quite correctly in my view, granted the application to argue the points before proceeding to trial. On the 23rd of September, 1996, counsel for both parties addressed the trial court on the point and ruling was reserved. In a considered ruling delivered on 3rd June 1997, the trial Chief Judge (Belgore C.J) found that the appellant’s action was statute barred and he dismissed it. The appellant appealed to the Court of Appeal and the appeal was also dismissed. He now appealed to this court on two grounds. In this court, both parties filed their respective briefs which they also exchanged.
The learned counsel for the appellant raised three issues for the determination of this court in his brief. They are:
- “Whether the provisions of the Oil Terminal Dues Act apply to oil terminals other than those established, described, delimited, named and contemplated in the Act.
- Whether the court was right to hold that the action was barred by limitation’ of time without evidence on any single element of that plea.
- Whether want of pre-action notice to the defendant was fatal to the action.
For the respondent, only two issues were formulated and they read thus:-
1 “Whether the learned Justices of Appeal were right in holding that Oil Terminal Dues Act Cap. 339 Laws of the Federation; 1990 ed. applies to the respondent.
- Whether the appellant’s claim could be sustained in view of the Oil Terminal Dues Act
I have examined the grounds of appeal filed by the appellant in this court and I am satisfied that the three issues for determination formulated by the appellant in this appeal were properly distilled from those grounds I shall consider them for the purpose of this appeal. It is significant to observe that this case did not go to trial but determined by the trial court after hearing arguments of the learned counsel for the parties on issues of law relating thereto. The learned counsel for the appellant did not in this court or the Court of Appeal challenge the procedure adopted by the learned trial Chief Judge in dealing with the case and I shall say nothing about it in this judgment.
I now proceed to consider the issues for determination set forth by the appellant in his brief.
The first issue asked the question whether the provisions of the Oil Terminal Dues Act apply to oil terminals other than those described in the Act itself. It is common ground that the respondent is popularly called Bonny Inshore terminal. It is no doubt a private oil terminal operated as a commercial venture by the respondent. Therefore in order to answer the question asked in this issue, it is absolutely necessary to examine the relevant provisions of the Oil Terminal Dues Act. Cap., 339 Laws of the Federation of Nigeria, 1990. If the answer to this question is in the affirmative, all reference to other relevant Acts or Laws e.g. the Ports Act or the Petroleum Resources Act, affecting oil terminals, is automatic.
I will start by looking at section 1(1) of the Oil Terminal Dues Act (hereinafter referred to as “OTDA”) which states:
“As from the date of commencement of this Act, terminal dues may be levied, subject to the provisions of this Act and the Ports Act, on any ship evacuating oil at any oil terminal and in respect of any services or facilities provided under this Act”. (italics mine) This section explains fully the purpose for which the Act was passed. It is for the purpose of levying and payment of terminal dues on any ship evacuating oil at any oil terminal in any port in Nigeria in respect of services provided at that port. The Act makes no distinction between a public or private terminal provided that the terminal is used for the evacuation of oil and the relevant services are provided there, but this is subject to the provisions of the OTDA and the Ports Act. (Cap. 361 of 1990 Laws of the Federation of Nigeria).
My next port of call here, is section 3 of OTDA, which is very important in my respectful view not only in respect of this issue but also in the outcome of the whole case. Section 3 provides:
“Subject to the provisions of this Act, the provisions of the Ports Act specified in column 1 of the First Schedule of this Act shall apply in relation to any oil terminal and to the extent mentioned in column 3 of the Schedule as they apply in relation to a port or any approaches thereto and as if reference in that Act to “a port or any approaches thereto” were reference to an ‘oil terminal or any area within which the terminal is situated’.” (italics mine)
This section makes it clear that certain provisions of the Port Act are applicable either in whole or in part to all oil terminals. These include certain immunities and limitations in that Act which ordinarily apply to the Nigerian Ports Authority.
Learned counsel for the appellant strongly submitted both orally and in his brief, that the provisions of section 3 of the OTDA set out above did not apply to the respondent which was a private “Inshore terminal” operating as a commercial venture. He submitted further that although the section speaks of “any oil terminal” it only applies to oil terminals created and operated by the Federal Government within the meaning of section 7 of the OTDA and that the expression “any terminal” cannot be extended to include any oil terminal in the world. Learned counsel also pointed out that the Bonny Inshore oil terminal not having been listed as such in the OTDA or any subsidiary legislation and published pursuant to section 7(2) of the OTDA, cannot take benefit of the immunities of the Nigeria Ports Authority since it was not established for the purposes and within the meaning of the OTDA, and the mere fact that the respondent operates as an oil terminal was insufficient to make it an oil terminal to which OTDA applies. Learned counsel finally submitted that both the trial court and the Court of Appeal were wrong in holding that the Bonny Inshore oil terminal was an oil terminal within the meaning of the OTDA, and that the construction or interpretation of section 3 of that Act which they made produced absurd results.
Professor Adesanya SAN, for the respondent submitted orally in court and in his brief that the construction of the provisions of section 3 of OTDA made by the lower courts was correct and that the Bonny Inshore oil terminal which carries out statutory duties like any other oil terminal in Nigeria comes within the provisions of section 3 of that Act. Learned SAN pointed out that the Bonny Inshore oil terminal was established with the approval of the Federal Government pursuant to sections 2 and 4 of the Petroleum Act (Cap.350 of the laws of Federation) 1990 and holds Oil Mining Lease 11. Learned counsel then submitted that since the respondent is an oil terminal within the meaning of section 3 of the OTDA and section 3 incorporates the relevant provisions of the Ports Act, the respondent is fully and clearly entitled to the immunities and limitations under section 110 of the Ports Act.
I now come to the interpretation of section 3 of the OTDA. It is now well settled that the cardinal principle of interpretation of statutes is that where the ordinary plain meaning of the words used in a statute are very clear and unambiguous, effect must be given to those words without resorting to any intrinsic or external aid. The duty of the court under those circumstances is to interpret the words strictly giving them their intended meaning and effect. See Awolowo v. Shagari (1979) 6 – 9 SC 51; Adejumo v. Mil. Governor of Lagos State (1972) 3 SC 45; Attorney-General of Bendel State v. Attorney-General of the Federation (1982) 1 NCLR 1; (1981) 10 SC 1; Owena Bank (Nig.) Plc v. NSE Ltd. (1997) 8 NWLR (pt. 515) 1 at 12. It is however true as submitted by learned counsel for the appellant, that where such literal interpretation, may result in any ambiguity or injustice, the court may seek internal aid from other parts of the statute itself or external aid from interpretation given to a provision which is in pari materia with the statute under construction. He referred to Mobil Oil Nigeria Limited v. Federal Board of Inland Revenue (1977) 3 SC 53 at 74.
I have earlier in this judgment set out the provisions of section 3 of OTDA, but for closer scrutiny, let me repeat it here. Section 3 says:
“Subject to the provisions of this Act the provisions of the Ports Act specified in column 1 of the First schedule of this Act, shall apply in relation to any oil terminal and to the extent mentioned in column 3 of the schedule as they apply in relation to a part or any approaches thereto and as if reference in the Act “to” a port or any approaches thereto” were reference to “oil terminal or any area within which the terminal is situated”. (italics mine)
The opening words of this section read thus:- “Subject to the provisions of this Act”. This phrase which appears in many statutes has been interpreted by this court in many cases to mean an expression of limitation which is “subject to”, and shall govern, control and prevail over what follows in the section or subsection of the enactment. It means simply that some succeeding or later provisions of the Act, supersedes or controls the provisions in the section or subsection concerned. See Tukur v. Governor of Gongola State (1989) 4 NWLR (Pt. 117) 517, Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139.
The most important provision in section 3 above is that “the provisions of Ports Act specified in column 1 of the First schedule to the Act (OTDA) shall apply in relation to any oil terminal”. This provision is obviously very clear, unequivocal and unambiguous and simple to understand. And giving it its ordinary meaning in this case, which is the duty of the court as earlier mentioned, gives effect to the intention of the law makers. I have also observed that neither section 3 nor other sections of the OTDA makes any provisions creating a distinction between a public or private oil terminal. They appear to be treated as one for the purpose of the OTDA. Learned counsel for the appellant submitted that it was absurd to interpret “any oil terminal” without any restriction as it may be applicable to any oil terminal in the world, and similarly it was wrong to treat the Bonny Inshore oil terminal with other offshore oil terminals in Nigeria because according to him, while the former was a private commercial concern run by the respondent, the latter were established and run by the Federal Government. He further submitted that the respondent’s oil terminal was not set up in compliance with section 7 (2) of the OTDA and should not therefore enjoy any benefits under the OTDA.
I shall start by saying straight away that no sovereign country like Nigeria can legislate for another sovereign country or any other sovereign country for that matter; so that any law made in Nigeria whether by the civilian or military government was made for Nigerians only and applies within the territory of Nigeria. This means that in this case, the use of the words “any oil terminal” in section 3 of the OTDA applies to oil terminals in Nigeria and not the whole world and there cannot be any absurdity in interpreting the word “any” as being without limitation as was done by the lower courts. Also there is nothing in the OTDA to indicate that only those oil terminals which are enumerated in the subsidiary legislation to the Act are oil terminals recognised by the Act. If this was the intention of the law makers, the Act would have made such a provision.
Section 7 (1) (a) of OTDA provides.
“As from the date of publication of this Act, an oil terminal-
(a) shall not be installed by any person, except-
(i) by or under the authority of a licence or lease granted under the Mineral Act, and
(ii) Subject to the express approval in writing of the Minister of Petroleum Resources, and any subsequent operation of such terminal by any person shall be in compliance with the requirements of this Act and such conditions as may be prescribed”.
The respondent has shown that the Bonny oil terminal was established with the approval of the Federal Government in pursuance of the provisions of sections 2 and 4 of the Petroleum Act and it holds Oil Mining Lease 11 (OML 11). This has not been disputed or challenged by the appellant. This means that the Bonny oil terminal was established in compliance with the provisions of section 7 (1)(i) of the OTDA.
Subsection (2) of section 7 talks about gazetting the oil terminal so established by an order of the Minister for Petroleum Resources. This requirement is not the specific duty of the oil terminal concerned but that of the Minister after subsection (1) (a) is complied with. Failure to do so does not in my respectful view, affect the constitution or establishment of the oil terminal. It is merely required in order to identify the actual oil terminal concerned once established. Here again, if the requirement of subsection (2) of section 7 was meant to affect the constitution of an oil terminal so established, the Act would have said so. It did not say so. I therefore find and hold that the Bonny Inshore oil terminal was established under the provisions of the OTDA. I now come to the use of the words “any oil terminal” in section 3 of the OTDA. The word “any” is not restrictive or limited in its application. It includes all things to which it relates or of the thing mentioned. In the case of Ibrahim v. J.S.C (1998) 14NWLR (Pt.548) 1 at page 36, Iguh JSC in construing the words “any person” in section 2 (a) of the Public Officers Protection Law said:
“The law makers, if they had intended the words “any person” in the Public Officers Protection Law to mean “any person” in a limited sense should have clearly so stated in the legislation. This it did not do, and I do not conceive that it is the duty of this court, or indeed any court of law to go in for judicial legislation by limitating the clear and plain meaning of the words employed in the law in issue”.
I agree entirely with what my learned brother Iguh, JSC stated above and I adopt it in the circumstances of this case. Section 3 of the OTDA clearly used the words “any oil terminal” and there is nothing in the section itself or in the whole Act intending to limit the clear meaning of the words in any sense. It is therefore the duty of this court to give the words their ordinary, clear and plain meaning without delving into judicial legislation. I therefore hold that the words “any oil terminal” in section 3 of the OTDA excludes any limitation and must apply to public or private, inshore or offshore oil terminal provided that the oil terminal was created or established under the provisions of the OTDA. There is therefore no need in this case to look for internal or external aid in the interpretation of the word “any” as there is no ambiguity, absurdity or injustice caused thereby. And although the words of section 3 are made subject to the provision of the OTDA, I find, no other provisions in that Act which seeks to limit, control or govern the provisions of the said section 3. I have earlier found that the Bonny Oil Terminal was established pursuant to the provisions of the OTDA. I have therefore no doubt in my mind that the provisions of section 3 of OTDA fully applied to it and I so find. Furthermore section 9 which provides that the OTDA “applies to all natural persons, whether Nigerian citizen or not, and whether resident in Nigeria or not, and to all corporation whether incorporated or carrying on business in Nigeria or not” appears to me to be in conformity with the contents and spirit of section 3 of that Act. On the whole therefore my answer to issue or question one as the appellant puts it, is in the affirmative.
I now come to consider question 2.
The implication of my finding that section 3 of the OTDA applied to Bonny Inshore oil terminal is that certain provisions of the Ports Act which apply to all oil terminals also “apply” to it. This is with a view to giving some protection to the oil terminals similar to those available to the Nigerian Ports Authority. This also means that section 3 of the OTDA has by reference clearly incorporated the Ports Act. The first schedule of the OTDA sets out the relevant provisions of the Ports Act which apply by virtue of section 3 of the OTDA. This clearly includes Part XIV of the Ports Act dealing with legal proceedings and the whole part applied to the respondent, its servants or agents. Subsection (1) of section 110 of the Ports Act Part XIV provides:
“( 1) When any suit is commenced against the Authority or any servant of the Authority for any act done in pursuance or execution, or intended execution of any Act or Law, or of any public duties or authority, or in respect of any alleged neglect or default in the execution of such Act, law or duty or authority, such suit shall not lie or be instituted in any court unless it is commenced within 12 months next after the act, neglect, or default complained of, or in any case of a continuance of injury or damage, within twelve months next after the ceasing thereof’”.
“(2) No suit shall be commenced against the Authority until one month at least after written notice of intention to commence the same shall have been served upon the authority by the intending plaintiff or his agent. Such notice shall state the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims.”
According to the provisions of section 3 of the OTDA, reference to the “Authority” in the Ports Act, shall be construed as being reference to an “oil terminal”. Therefore to have a valid and competent suit against the respondent, the appellant must have:
(a) Filed his action or suit within 12 months next after the act, neglect or default complained of i.e 12 months after the cause of action has arisen; and
(b) given notice to the respondent in writing of at least one month of his intention to commence or institute the action or suit.
The submission of the learned counsel for the appellant on these issues in his brief is that the provisions of section 110 of the Ports Act must be strictly complied with and supported by evidence, and there was no such evidence in this case. In respect of subsection (1) of section 110, I entirely agree with the learned counsel for the respondent when he said, in his brief that “once the provision of one statute is incorporated into another, the provision of the statute so incorporated must be applied mutatis mutandis” as a whole and not in part. It is common ground therefore that as an oil terminal is subject to various laws, rules and regulations touching on mineral oils, crude oils and petroleum generally in its day to day activities it must be acting in pursuance or execution or intended execution of those laws, rules and regulations in the public interest. It is also very clear from the combined effect of paragraphs 5 and 7 of the amended statement of claim, and paragraph 17 of the amended statement of defence that the damage or negligence complained of occurred on 27th January, 1991 and the action commenced on 27th January, 1994. This is clearly a period of three years. Section 110 (1) requires that an action such as in this case, must be filed within 12 months after the damage or negligence complained of if it is to be valid and competent. This is what is referred to as the period of limitation.
Learned counsel for the appellant contended very strongly that even though they own up what was contained in paragraphs 5, 7 and 8 of the amended statement of claim, they did not admit the contents of paragraph 17 of the amended statement of defence and in order to prove the contents thereof evidence must be called. He relied on many decided cases including the case of Odubeko v. Fowler (1993) 7 NWLR (pt. 308) 637 at 660. Before going into the discussion on this issue, I consider it pertinent to set out paragraphs 5, 7 and 8 of the appellant’s amended statement of claim, and paragraph 17 of the respondent’s amended statement of defence. In the said paragraphs 5, 7 and 8 the appellant pleads:
“5. At about 1440 hours on 27th January, 1991, the “STAR TULSA’ commenced mooring operations at berth ‘A’ of the terminal prior to loading a cargo of crude oil”
“7. At about 1535 hours on 27th January, 1991, after the vessel had been manouvered into the mooring area, a leakage from her stem outer tube seal was noticed”
“8. The propeller was stopped and was later found to have suffered damage due to wire having become entangled around it”.
In the amended statement of defence, the respondent in paragraph 17 averred as follows:
“The defendant avers and will contend that the claim action herein is statute barred and cannot be sustained in view or sections 3, 7 (3), 8 and 9 of the Oil Terminal Dues Act and column 1 of the First Schedule of the said Act, Cap. 339 Laws of the Federation (1990 ed) and Part XIV and in particular section 110 (1) and (2) of the Ports Act, Cap. 361 Laws of the Federation (1990 ed) because the alleged negligence occurred on the 27th January, 1991 and the originating processes were issued on the 27th January, 1994”. The appellant in his paragraph 1 of the reply to the amended statement of defence made a general denial in a standard and recognised form now acceptable as sufficient traverse of the alleged facts. (See Mandillas v. Karaberis Ltd. (1969) NMLR 199: Attah v. Nnacho (1965) NMLR 28. Paragraph 1 reads:
“The plaintiffs join issue with the defendants on the allegations in their statement of defence dated June 1996 as if each allegation therein was reproduced herein and traversed seriatim”.
I agree with Onu JSC in Odubeko v. Fowler (supra) that where as in this case a plaintiff specifically denies the issue of the period of limitation, the defendant (in this case the respondent) in order to succeed, must prove his averment by evidence. But where as in this case, contrary to the case of Odubeko v. Fowler case, the plaintiff (appellant) pleaded the actual date when the damage or negligence complained of first occurred, he is bound by his pleadings (Oduka v. Kasumu (1968) NMLR 28; Emegokwue v. Okadigo (1973) 4 SC 113; Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285. The effect of paragraphs 5, 7 and 8 of the Amended Statement of Claim set out above is to say that the appellant has admitted that the cause of action arose on the 27th of January, 1991. There is no need for further proof thereof. Also as regards the actual time when the action was commenced or instituted, this is clearly disclosed on the record of appeal which was certified (page 10 of the record) as the correct record in this appeal. The parties and the court are bound by the contents of that record as it is presumed correct unless the contrary is proved. See Sommer v. F. H. A. (1992) 1 NWLR (Pt. 219) 548. There is nothing to the contrary in this case. Furthermore an appeal court is fully and correctly entitled to look at or refer to the record of appeal before it in consideration of any matter before it. This is what this court held in the case of Funduk Engineering Ltd. v. McArthur (1995) 4 NWLR (Pt. 392) 640 at 652.
In this case pages 9 and 10 of the record of appeal are the appellant’s own documents and signed by them. It is the statement of claim headed “Particulars of Claim”. It was signed by the appellant’s counsel and dated 26th of January, 1994. On page 10 of the record, there is the assessment of the fees paid by the appellant for service of the writ of summons and the receipt number and the date when the writ of summons was filed. There is also the stamp of the Federal High Court, Lagos, where the writ was issued and the date. The date of the receipt and the date on the stamp all showed the 27th of January, 1994. This was clearly the date when the action was commenced or instituted. The appellant cannot deny this as it is very clear on the certified true record of the trial court. Therefore, under these circumstances there cannot be any prejudice or miscarriage of justice or any injustice caused to the appellant for accepting the date disclosed on the record of appeal in this case as proved, without calling any further evidence. I now do so and find that the appellant commenced this action on the 27th of January, 1994, as disclosed on pages 9 and 10 of the record of appeal. From the above, it is very clear that the action in this case was instituted three years after the damage or negligence complained of occurred. Section 110 (1) of the Ports Act requires that this type of action must be filed in court within 12 months of the occurrence of the damage or negligence to be valid or competent but since it was filed three years after the damage or negligence complained of, the action is incompetent and must be struck out. I accordingly so find, and answer issue 2 in the affirmative.
In view of my findings on issue 2 above, I do not consider it necessary to discuss issue 3 of the appellants. This is because if the action is incompetent and caught up by the limitation of time, it must be struck out as not being properly before the court, and whether or not pre-trial notice under s. 110 (2) of Ports Act was given by the appellant, the action cannot be revived.
Before completing this judgment, I would like to commend the learned counsel for the appellant for the extensive research he had apparently conducted in the preparation of his brief in this case. Finally, from all what I said above, I find no merit in this appeal. I dismiss it and affirm the decision of the Court of Appeal confirming that of the trial court. I award N10,000.00 costs to the respondents.