The Shell Petroleum Development Company Of Nigeria Limited & Ors V. Chief Isaac Osaro Agbara & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C.

This is an interlocutory appeal against the Ruling of Port-Harcourt division of the Court of Appeal (court below) of 23rd October, 2013, wherein the court below struck out appellants’ appeal against the judgment of the Federal High Court (trial court) holden at Asaba, delivered on the 14th of June, 2010. Facts relevant to this appeal as contained in the records of appeal are that the respondents, herein, as plaintiffs, instituted an action against the appellants, herein, as defendants. The plaintiffs claimed damages in excess of N17 Billion Naira against the defendants arising from alleged oil spills in the course of defendants operations. The trial court entered judgment in favour of the plaintiffs and awarded a sum in excess of N17 Billion Naira as damages against the defendants. Dissatisfied with the decision of the trial court the defendants filed an appeal to the court below. Two Notices of Appeal, according to the appellants were filed by them: first Notice of Appeal was dated and filed on 14/06/2010 (it is copied at pages 1607 – 1614 of Vol 4 of the Records of Appeal). The second

1Notice of Appeal was dated and filed on 8/9/2010 (copied at pages 1905 – 1912 of Vol. 5 of the Records of Appeal). The two Notices of Appeal, according to the appellants, were both filed within the three months period for appealing against the ruling of the court below as of right.

After assessment by the Registry of the trial court, the appellants paid a total sum of N800 00 in respect of the Notice of Appeal filed on 08/09/2010. On the 26th day of November, 2012, the appellants as applicants at the court below, filed a Motion on Notice for leave to amend their Notice of Appeal dated 8th day of September 2010 (see page 2735 of Vol. 7 of the Records of Appeal). A ruling was delivered or 3/12/2012 by the court below, granting leave to the appellants/applicants to amend their Notice of Appeal dated 8/9/2010 and that the amended Notice of Appeal was to be filed within 7 days. The appellants, pursuant to the ruling of the court below reflected above, filed their amended Notice of Appeal on the 5th day of December 2012. The appellant claimed to have paid N1000 for filing of an Amended Notice of Appeal as stipulated under the 3rd schedule of the Court of Appeal Rules (pages

22761 -2768. Vol. 7 of the Records of Appeal). Further, the appellants paid an additional amount of N4,500.00 in respect of the original Notice of Appeal although amended with leave of court. An official receipt for the said additional sum was exhibited before the lower court (page 2861, Vol. 7 of the Records of Appeal.

Learned Counsel for the respondents Mr Nwosu, SAN, filed a Preliminary Objection on 11/04/2013 (page 2849 – 2851 Vol. 7 of the Records of Appeal) challenging the competence of the appellants, appeal on the sole ground that the filing fee paid by the appellants was less than the sum of N5, 000.00

On the 23rd day of October 2013, the court below heard arguments on the Preliminary Objection and gave a bench ruling. It sustained the Preliminary Objection and struck out, accordingly the appellants appeal before it as being incompetent due to the alleged inadequate filing fees paid in respect of the appellants’ Notice of Appeal (pages 2915 – 2917, Vol. 7 of the Records of Appeal).

Dissatisfied with the ruling of the court below, the appellants filed their Notice of Appeal to this court.

After settlement of briefs of argument, including a reply

3 brief filed by the appellants, the learned senior counsel to the respondents embedded a Notice of Preliminary Objection with its argument in paragraphs 2.0 and 2.01 of the respondents brief of argument. He also filed what he termed ‘respondents’ reply on points of law to appellants reply.

On the hearing date of this appeal, 13th day of October, 2015 each of the learned senior counsel for the respective parties adopted his brief of argument. Learned senior counsel for the appellants urged this court to overrule the respondents Preliminary objection and allow his appeal. Learned senior counsel for the respondents urged the court to uphold his Preliminary Objection and dismiss the appeal, or, dismiss the appeal still, where the court alternatively determines the appeal on its merits.

My Lords should be reminded that, where for the sake of convenience the court deems it fit to hear a Preliminary Objection to an appeal along with the appeal, the usual practice, always is to determine the preliminary objection first so as to know what line of action next, the court shall adopt. See: Onyekwulaje v. Animashaun & Anor (1996) 3 SCNJ; Godwin v. The

4 Apostolic Church (1998) 12 SCNJ 213. I will thus, treat the respondents Preliminary Objection hereunder.

As stated earlier, the respondents embedded their Notice of Preliminary Objection and its arguments in their brief of arguments dated and filed on 13/4/2015. They also filed on the same date a separate Notice of preliminary Objection. The grounds upon which the Preliminary Objection was raised are as follows: