CAN AN INVESTIGATION PANEL SET UP BY THE NATIONAL HUMAN RIGHTS COMMISSION EXERCISE JUDICIAL POWERS AS REGARDS ALLEGATIONS OF ENVIRONMENTAL POLLUTION AND AWARD DAMAGES IN SUCH RESPECT?

CHAIRMAN AND MEMBERS OF THE SPECIAL INVESTIGATION PANEL OF THE NHRC ON OIL SPILLS & ENVIRONMENTAL POLLUTION & ORS v. TOTAL E & P (NIG) LTD

CITATION: (2021) LPELR-53151(CA)

In the Court of Appeal

In the Calabar Judicial Division

Holden at Calabar

ON FRIDAY, 5TH MARCH, 2021

Suit No: CA/C/400/2017

Before Their Lordships:

MOJEED ADEKUNLE OWOADE                                       Justice, Court of Appeal

JAMES SHEHU ABIRIYI                                                     Justice, Court of Appeal

MUHAMMED LAWAL SHUAIBU                                      Justice, Court of Appeal

Between

1. CHAIRMAN AND MEMBERS OF THE SPECIAL INVESTIGATION PANEL OF THE NATIONAL HUMAN RIGHTS COMMISSION ON OIL SPILLS & ENVIRONMENTAL POLLUTION

2. THE NATIONAL HUMAN RIGHTS COMMISSION

3. ALL FARMERS ASSOCIATION OF NIGERIA (AFAN) AKWA IBOM STATE

4. ALL FARMERS ASSOCIATION OF NIGERIA (AFAN) CROSS RIVER STATE –  Appellant(s)                                   

And

TOTAL E & P NIGERIA LIMITED                                                                   –            Respondent(s)

LEADING JUDGMENT DELIVERED BY MUHAMMED LAWAL SHUAIBU, J.C.A.

FACTS

On March 4, 2016, The National Human Rights Commission (2nd Appellant) made a publication in the Vanguard Newspaper setting up a panel (the 1st Appellant) to hear and determine claims for compensation arising from alleged Oil Spill environmental pollution and other deleterious effects arising from the oil exploration activities of Total E & P Nigeria Limited (Respondent) which allegedly impacted negatively on the members of the 3rd and 4th Appellants. Thus, the 3rd Appellant submitted a memorandum cataloguing its claims in the sum of N1,405,000,000,000.00 (One Trillion Four Hundred and Five Billion Naira only).

Miffed by this, the Respondent as Applicant filed an action before the Federal High Court for judicial review pursuant to Order 34, Rule 5 of the Federal High Court (Civil Procedure) Rules 2009 against the 1st Appellant’s proceedings as well as certain declaratory reliefs. On service of the originating processes on the Appellants, the 2nd and 3rd Appellants (as 2nd and 3rd Respondents) raised preliminary objection challenging the jurisdiction of the lower Court to entertain the suit. The 3rd Appellant later withdrew its preliminary objection. While the 2nd Appellant predicated its objection on lack of procedural jurisdiction of the lower Court to try the matter among other grounds.

After hearing the parties on the preliminary objection, same was dismissed and thereafter the lower Court heard the substantive originating motion and granted all the reliefs sought by the Respondent. ​

Dissatisfied, the Appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on the following issues:

1. Whether the lower Court was right to have proceeded to hear and determine the originating motion, when it was not clothed with jurisdiction.

2. Whether the 1st and 2nd Appellants acted ultra vires their powers.

APPELLANTS’ SUBMISSIONS

On issue No.1, learned counsel for the Appellant submitted that by the combined effect of Sections 96 and 97 of the Sheriffs and Civil Process Act, the Respondent as Applicant at the lower Court needed to first of all seek and obtain the leave of Court to issue and serve the originating motion and accompanying Court processes in Abuja outside the jurisdiction of the Court on the 1st and 2nd Appellants. Counsel cited the case of OWNERS OF M.V. “ARABELLA” V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 4-5 SC 189; (2008) LPELR-2848(SC) to contend that before a Court can be clothed with the jurisdiction to hear and determine a suit, the condition precedent for the commencement of the suit must be fulfilled.

On issue two, Appellants’ counsel referred to the provisions of Sections 5 and 6 of the National Human Rights Commission Act and submitted that the Respondent did not place any evidence before the lower Court showing that the 1st and 2nd Appellants acted ultra vires. Counsel also submitted that the Respondent failed to file a copy of the proceedings it sought to be quashed as required by Order 34 Rule 9 (2) of the Federal High Court (Civil Procedure) Rules, 2009.

Counsel submitted further that the fact that the pipelines Act, vest powers of adjudication in relation to claims for pipeline explosions or oil spillage to Courts exercising civil jurisdiction in the area of occurrence such as High Courts and Magistrate Courts, that it is erroneous to assume that Section 251(1) (n) of the 1999 Constitution vest exclusive jurisdiction to the Federal High Court on all matters relating to mines, geological survey, oil field, oil and gas. ​

RESPONDENT’S SUBMISSIONS

In response to the Appellants’ argument on issue 1, learned counsel for the Respondent referred to Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules, 2009 to contend that the requirement for prior leave to serve outside jurisdiction is not the requirement of the applicable rules of Court. He contended that the Respondent’s exparte application for leave to mark the originating processes as having been issued in Uyo, Akwa Ibom State and for service at the Federal Capital Territory, Abuja suffices and qualified as leave to serve the processes within the contemplation of the law.

Furthermore, counsel submitted that the principle of obtaining leave to issue and serve outside the jurisdiction of the Federal High Court as decided in M. V. “ARABELLA” V. N.A.I.C. (Supra) is no longer the law. He cited BOKO V. NUNGWA (2019)1 NWLR (prt 1654) 395 at 444 – 445 to the effect that serving an originating process outside the division of the Federal High Court which issued same, does not amount to service outside jurisdiction.

On issue two, Respondent’s counsel submitted that the Respondent had through exhibits TPENG (i) and (v) placed sufficient material before the trial Court which rightly held that any exercise of power by the 1st and 2nd Appellants to award damages or compensation whether predicated on a complaint or at all is ultra vires. He referred to SPDCN LTD V. AJUWA (2015)14 NWLR (prt.1580) 433.

Counsel further submitted that the Constitution is the grund norm from which all other laws including rectified conventions and treaties, derives their validity, that any other law that is inconsistent with the Constitution is void to the extent of its inconsistency. The trial Court according to the learned counsel was not concerned about the powers of the 1st and 2nd Appellants but that such investigative powers that entails adjudication over disputes relating to oil exploration activities, determining rights of parties and awarding damages or compensation are ultra vires their powers.

Respondent’s Counsel submitted that the trial Court is empowered to exercise its supervisory powers of judicial review by way of an order of certiorari over the 1st and 2nd Appellants regardless of the fact that the 2nd Appellant is a statutory body.

RESOLUTION OF THE ISSUES

On issue 1, the Court submitted that ​the issuance and service of the writ of summons on a Defendant are conditions precedent to the exercise of jurisdiction which a trial Court may have over the subject matter of the action against the Defendant. That where there is evidence that service was not effected on the Defendant, then any judgment emanating from such proceedings is a nullity. The Court relying on FIDELITY BANK PLC. V. M.T. “TABORA” (2018)2 NWLR (prt.1632) 135 at 162 – 163; (2018) LPELR-44504(SC) furthermore emphasized that failure to serve a process where service is required is so fundamental that the party not served and against whom any order is made in his absence is entitled to have the order set aside on the ground that a condition precedent to the exercise of the jurisdiction by the Court has not been fulfilled.

The Court stated that by virtue of Section 97 of the Sheriffs and Civil Process Act, every writ of summons or originating process for service out of the state in which it was issued must in addition to any required endorsement of notice, have endorsed on it a notice indicating that the summons is to be served out of the state and in which state it is to be served. That failure to endorse the required notice on an originating process for service is not a mere irregularity but a fundamental defect that renders the originating process incompetent. Citing the case of NWADIARO V. UNIPORT (2019)11 NWLR (prt.1684) 490.

The Court cited BOKO V. NUNGWA (supra) and stated that the apex Court held that Federal High Court was not contemplated by the lawmakers when the Sheriffs and Civil Process Act was enacted. That the Court reasoned that in Section 94 of the Act, the power to make rules is conferred specifically on the Chief Judge of the Federal Capital Territory and Chief Judges of the States. The Court stated that the specificity with which the provisions in the Sheriffs and Civil Process Act, Section 96 has been framed, since the Federal High Court was not mentioned by name, that the Federal High Court cannot be roped in or smuggled into being a part of those Courts for which the statute was enacted.

The Court submitted that as far as service and execution matters are involved, the Federal High Court does not come within the ambit of Sections 94 and 96(2) of the Sheriffs and Civil Process Act.

The Court stated that the Supreme Court in the latter case of BIEM V. S.D.P (supra) considered the import of Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules to interpret the phrase “outside jurisdiction” to mean outside the Federal Republic of Nigeria and also arrived at the conclusion that the originating summons issued by the Federal High Court, Makurdi which was to be served in Abuja could not be considered to be service outside the jurisdiction and therefore did not require to be endorsed as a concurrent writ. Thus, the Court held that the writ of summon in the instant case issued by the Federal High Court Uyo, Akwa Ibom State which was to be served on the 2nd Appellant in Abuja is not service outside jurisdiction, requiring endorsement, as a concurrent writ.

On issue 2, the Court citing UGBA V. SUSWAM (2014)14 NWLR (prt.1427) 264 submitted that the Constitution is the grundnorm, that what it has stipulated remains sacrosanct and immutable and nothing can be done about it but to strictly comply with it.

The Court posed the question; whether the 1st Appellant through the 2^nd Appellant can exercise powers of awarding damages or compensation for oil spillages? The Court submitted that the provision of Section 251(1) (n) of the Constitution specifically vests exclusive jurisdiction on the Federal High Court as regards to matters and civil causes relating to mines and minerals (including oil fields, oil mining geological surveys and natural gas).

The Court stated that the subject matter of the 1st Appellant’s investigatory proceedings vide Exhibit TEPNGNI, which arises from mines and minerals (including oil fields, oil mining geological surveys and natural gas) is exclusively vested in the Federal High Court pursuant to Section 251(1) (n) of the 1999 Constitution, as amended. That therefore, considering and determining complaints on oil spillage and similar activities of oil pollution was ultra vires the 1st Appellant. The Court opined that making determination as to the damages or compensation payable in relation to any violation, the Appellants would be acting in a judicial capacity which they are not imbued with under the Constitution.

The Court held that the Appellants not being a Court of law cannot therefore impose any fine and any law or regulations empowering the Appellants to do so are not only unconstitutional but capable of violating the fundamental rights of the Respondent as enshrined in Section 36(1) and (2) of the Constitution.

The Court stated that as part of its supervisory control over an inferior Court, tribunal or a body entrusted with the performance of administrative, judicial or quasi-judicial function, the lower Court has the inherent duty and obligation to ensure such inferior bodies does not exceed their jurisdiction or commit irregularities.

HELD

The Court resolved the issues against the Appellants and dismissed the appeal.

Appearances:

C. A. Gbehe, Esq.                                                                         For Appellant(s)

H. C. Chibor, Esq.                                                                        For Respondent(s)

Compiled by LawPavilion.