➥ CASE SUMMARY OF:
Mobil Producing Nigeria Unltd. V. Lasepa & Ors. (SC.136/2001, 12 Dec 2002)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Preaction notice;
Non-compliance.
➥ CASE FACT/HISTORY
By an originating summons issued in the Federal High Court on 22nd December, 1999 Mobil Producing Nigeria Unlimited, the appellant, commenced their proceedings from which this appeal arose against: (i) Lagos State Environmental Agency; (2) Federal Environmental Protection Agency; (3) Minister of Environment; (4) Various defendants whose names were set out in a schedule to the originating summons and are here described as the 4th set of defendants.
The reliefs sought by the originating summons were as follows: “1. A declaration that the 2nd and/or 3rd defendant are by virtue of the schedule II, Part I, Item 29 of the Constitution of the Federal Republic of Nigeria, 1999 and Sections 20, 21, 23 and 24 of the FEPA Act of 1988, the authorities with exclusive power to determine the liability of the plaintiff with regard to any and all alleged damage arising out of the spill into interstate and/or territorial waters of Nigeria” including the costs of any government body, agency or third parties in the form of reparation, restoration, restitution, compensation and/or damages. 2. A declaration that the findings and conclusions contained in the reports approved and/or endorsed by the 2nd and 3rd defendants are conclusive as to the nature and/or of the environmental and/or other impact of the spill. 3. A declaration that the findings and conclusions of the reports to the effect that the spill had no negative/adverse environmental and/or other impact on the ecosystem and/or human resources of Lagos state or any of the states represented by the relevant state governmental bodies or agencies, listed in 1st schedule; and/ or any of the 4th defendants are binding on the 1st defendant and the 4th respondents listed in 2nd Schedule to this summons. 4. An order that the 1st defendant/respondent and the 4th defendants, their agents, attorneys, servants, privies and/or any persons whosoever acting for, or claiming through them be refrained from: (a) taking or procuring any other person or persons to take steps in any action, proceedings or further steps in any action commenced by any of the defendants in various divisions of the Federal and State High Courts of Nigeria; and/or (b) commencing or continuing, or procuring any other person to commence or continue any action or further or other proceedings before any court or tribunal in Nigeria or elsewhere against the plaintiff for reparation, restoration, restitution, compensation and/or damages arising out of the plaintiffs January 12, 1998 Idoho-QIT 24 Pipeline Oil Spill other than as may be determined by the 2nd defendant, or at all.”
➥ ISSUE(S)
I. Whether the Federal High Court lacked jurisdiction to entertain the suit merely because the appellant did not in the affidavit filed with the originating summons state that it had served on FEPA a pre-action notice pursuant to section 29(2) of the Act?
II. Did the other respondents other than FEPA have a standing to raise the question of non competence with section 29(2) of the Act?
III. Whether even if the action had been incompetent against FEPA on the ground of non compliance with section 29(2) of the Act, the consequence that should follow was the striking out of the entire suit as disclosing no reasonable cause of action?
➥ RESOLUTION(S) OF ISSUES
[APPEAL SUCCEEDS]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE RESPONDENT DID NOT RAISE THE ISSUE OF NONCOMPLIANCE IN PRE-ACTION NOTICE IN THE PROPER WAY
‘In my judgment, Odunowo, J., fell into error when he held that the plaintiff’s supporting affidavit should have contained a statement that pre-action notice had been given. The court below also was in error in its conception of the issue when it said: “…the main issue that clearly arises for…consideration is whether the lower court could have exercised jurisdiction to hear the matter when the appellant has failed to satisfy the condition precedent to the institution of the action.”
It was in error in determining the appeal on the footing that the appellant had failed to satisfy the condition precedent when the stage of proof had not been reached. Although the appellant had the burden of proof of service of a pre-action notice, that burden does not arise unless and until the fact of non compliance is alleged in the proper way and put in issue by the opponent. I resolve the second issue formulated by the appellant against the respondents and hold that the originating summons should not have been struck out on the ground that the appellant failed to show in the affidavit filed in support of the originating summons that it had complied with the Act.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[ONLY FEPA COULD RAISE THE QUESTION OF NONCOMPLIANCE
‘I come to the conclusion that FEPA could waive the right to be served with a pre-action notice. I also hold without hesitation that it was FEPA for whose benefit section 29(2) of the Act is made and which could decide in relation to the purpose of the subsection whether it was expedient or not to submit to the jurisdiction of the court in the particular instance that could have raised the issue of non compliance with section 29(2). It will hardly be a satisfactory state of affairs were a person on whom pre-action notice should be served to have waived the protection of the Act and submit to the jurisdiction of the court, another party on whom service was not required is allowed to raise the issue of non compliance. I hold that the first issue must be resolved in favour of the appellant.’]
.
.
↪️ ISSUE 3: IN APPELLANT’S FAVOUR.
[THE ACTION COULD PROCEED EVEN IF FEPA IS NOT A PARTY TO THE SUIT
‘In this case the whole suit is about the status of a report made by the 2nd respondent FEPA and the effect it may have as between the appellant on the one hand and the 1st respondent and the 4th set of respondents on the other in their several claims against the appellant. If the report, as claimed by the appellant, is conclusive as to what it decided and the findings and conclusions in the report are binding on those respondents there is no doubt that their claims against the appellant will be materially affected. In these circumstances it is hard to see how those respondents can rightly be described as “nominal defendants.” If anything, there does not seem to be any controversy disclosed in the affidavit in support of the originating summons between the 2nd respondent (FEPA) and the appellant as to FEPA’s powers and the status claimed by the appellant for its report. The consequential and injunctive relief claimed by the appellant, predicated as they were on the first three declaratory reliefs being made in its favour, was directed at the 1st respondent and the 4th set of respondents. In my opinion the suit could well have proceeded against the other defendants even if FEPA, against which declaration was sought conjunctively and alternatively to the 3rd respondent, had been struck out as a party to the suit. FEPA needed not have been a party to the action for the matter in controversy between the appellant and the other parties to be determined, particularly when the questions that arose were purely of law and of interpretation of the relevant statutes. The trial Judge was in error in holding that the suit was incompetent as against the 2nd respondent. Even if he had been right, I am of the view that he had been hasty in striking out the entire suit instead of striking out the 2nd respondent. The court below was in error in holding that in the absence of FEPA no reasonable cause of action was disclosed.’]
.
.
.
✓ DECISION:
‘For the reasons I have stated this appeal succeeds. I allow the appeal and set aside the decision of the Federal High Court striking out the originating summons. I order that the matter be remitted to the Federal High Court for it to be dealt with as may be appropriate. The appellant is entitled to costs of the appeal in the Court of Appeal and of the appeal in this court. I award ₦5,000 to the appellant against the set of 4th respondents for whom there was appearance in the court below and ₦10,000 to the appellant against each set of 4th respondents who filed briefs of argument in this court.’
➥ FURTHER DICTA:
⦿ PRE-ACTION BEING A BENEFIT TO ONE PARTY CAN BE WAIVED
A pre-action notice which is for the benefit of the person or agency on whom or on which it should be served is not to be equated with processes that are an integral part of the proceedings initiating process. As have been said in a number of authorities its purpose is to enable that person or agency to decide what to do in the matter, to negotiate or reach a compromise or have another hard look at the matter in relation to the issues and decide whether it is more expedient to submit to jurisdiction and have a pronouncement on the point in controversy. The law is clear that conditions imposed for the benefit only of a particular person or class of persons can be dispensed with. In Graham v. Ingleby (1848) 1 Exch. 651, 657 Alderson, said: “It is evident, that a party who has the benefit given him by statute may waive it if he thinks fit.” The view was expressed in a passage in Craies on Statute Law, 7th edition, at page 269 thus: “If the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered indispensable. This rule is expressed by the maxim of law, quilibet potest renuntiare juri pro se introducto. As a general rule, the conditions imposed by statutes which authorize legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered indispensable, and either party may waive them without affecting the jurisdiction of the court.” — Ayoola JSC.
⦿ THE RESPONDENT WISHING TO RELY ON NONCOMPLIANCE SHOULD PLEAD SAME
I now would revert to the case. Bearing the above principles profoundly enunciated by Coker, JSC, in the Katsina Local Authority case (supra), it is manifest that the learned Justice of the Court of Appeal, Galadima, JCA, cannot be right in stating that the issue of pre-action need not be pleaded by the respondents. He cannot also in my respectful view be wholly right to have stated that the question can be raised orally at any stage of the proceedings. With due regard, it is my view that the decision of this court in the Katsina Local Authority requires the respondent who wishes to rely upon the defence of non compliance to raise the defence in his pleadings. This is in accordance with the general principles with regard to the filing of pleadings. In this regard, it must be borne in mind that the main function of pleadings is for the ascertainment and with as much certainty as possible the various matters actually in dispute among the parties and those in which there is agreement between them. See Morinatu Oduka and Ors. v. Kasumu and Anor. (1968) NMLR 28, 31; Adesoji Aderemi v. Joshua Adedire (1966) NMLR 398. — Ejiwunmi JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
E. O. Ayoola, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. Ajumogobia.
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Subsection 2 of section 29 of the Act provides as follows: “No suit shall be commenced against the agency before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the agency by the intending plaintiff or his agent and the notice shall clearly and explicitly state – (a) the cause of action; (b) the particulars of the claim; (c) the name and place of abode of the intending plaintiff; and (d) the relief which he claims.”
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
