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  • Mobil Producing Nig. Unltd. v. LASEPA
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  • 2003-01-13
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Mobil Producing Nig. Unltd. v. LASEPA

MOBIL PRODUCING NIGERIA UNLIMITED

V

LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY

FEDERAL ENVIRONMENTAL PROTECTION AGENCY

MINISTRY OF ENVIRONMENT

( Department of Petroleum Resources )

VARIOUS RESPONDENTS

( Set out n the Schedule to the Notice of Appeal )

SUPREME COURT OF NIGERIA

IDRIS LEGBO KUTIGI, JSC ( Presided )

UTHMAN MOHAMMED, JSC

UMARU ATU KALGO, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC

EMMANUEL OLAYINKA AYOOLA, JSC ( Read the Lead Judgment )

SC. 136/2001

THURSDAY, 12TH DECEMBER, 2002

ACTION - Pre-action notice - Burden on plaintiff to prove - When arises

ACTION - Pre-action notice - Failure to serve - Effect

ACTION - Pre-action notice - Proper party to object to non-service of

ACTION - Pre-action notice - Purpose of

ACTION - Pre-action notice - Requirement of service of -  Whether procedural or issue of substantive law on which rights of plaintiff depend

ACTION - Pre-action notice - Right to be served with - Whether falls within categories of right which cannot be waived - Right of party required to be served to waive and submit to jurisdiction of the court

ACTION - Pre-action notice - Where raised - Duty of court to allow evidence to be called on the question

ACTION - Proper party to a suit - Who is

ACTION - Reasonable cause of action - When disclosed - Whether weakness of plaintiff’s case relevant

COURT - Competence of - Fact upon which competence of court is being challenged - Failure to put same in issue - Effect

COURT - Exercise of jurisdiction by the court - Right of defendant to object to - When defendant may be said to have waived same

COURT - Jurisdiction of court - Condition imposed by statute authorising legal proceedings - General rule that they are indispensable to giving court jurisdiction - Exception to

EVIDENCE - Presumption - Point presumed in favour of plaintiff - Whether plaintiff need to prove

EVIDENCE - Proof - Pre-action notice - Burden on plaintiff to prove When arises

JURISDICTION - Exercise of jurisdiction by the court - Right of defendant to object to - When defendant may be said to have waived such right

JURISDICTION - Federal Environmental Protection Agency Act, section 29(2) -  Breach of - Whether jurisdiction issue which affects not only FEPA but other parties to the action not protected by the Act arises in the instant case

JURISDICTION - Jurisdiction of court - Conditions imposed by statute authorising legal proceedings - General rule that they are indispensable to giving court jurisdiction - Exception thereto

JURISDICTION - Jurisdictional incompetence which is evidence on the face of the proceedings -  Jurisdictional incompetence which is dependent on ascertainment of facts - Distinction between

JURISDICTION - Meaning of

JURISDICTION - Procedure of invoking jurisdiction and authority of court to decide matters presented in the formal way for its decision - Need not to confuse

JURISPRUDENCE - Substantive and Procedural law - Distinction between

MAXIM - Quilibet postest renuntiare juri pro se introducto - Meaning of

PARTIES - Proper party to a suit - Who is

PLEADINGS - Function of

PLEADINGS - When said to disclose reasonable cause of action

PRACTICE AND PROCEDURE - Substantive and Procedural law Distinction between

PUBLIC OFFICER - Public Officers (Protection) Law (Cap. 111), section 2  - Sole aim of

STATUTE - Federal Environmental Protection Agency Act, section 29(2) Breach of - Whether jurisdiction issue which affects not only FEPA but other parties to the action not protected by the Act arises in the instant case

STATUTE - Jurisdiction of court - Conditions imposed by statute authorising legal proceedings - General rule that they are indispensable to giving court jurisdiction - Exception thereto

STATUTE - Public Officers (Protection) Law (Cap. 111), section 2 - Sole aim of

WORDS AND PHRASES - ‘Jurisdiction’ - Meaning of

Issues:

1.            Whether the various 4th respondents had the locus to raise and/or properly raised the issue of the appellant’s alleged noncompliance with the pre-action notice requirement under section 29(2) of the FEPA Act 1988 to support their application to strike out the originating summons and vacate the subsisting order of interim injunction.

2.            Whether the lower court was right in affirming the trial court’s decision striking out the originating summons and vacating the order of interim injunction on the ground that the appellant

failed to show in the affidavit in support of the originating summons (or otherwise) that it had complied with the provisions of the FEPA Act 1988 by giving the requsite onemonth’s pre-action notice to the 2nd respondent.

3.            Whether the originating summons did not disclose a reasonable cause of action even if the action against the 2nd respondent was incompetent on account of the appellant’s failure to show that it had served the 2nd respondent with the requisite onemonth pre-action notice (which is denied) having regard to the issues for determination in the originating summons with regard to the 1st, 2nd and 3rd respondents.

Facts:

Appellant herein, Mobil Producing Nigeria Unlimited, commenced proceedings at the Federal High Court as plaintiff against Lagos State Environmental Agency, Federal Environmental Protection Agency, Minister of Environment as 1st to 3rd plaintiffs respectively and various defendants whose names were set out in a schedule to the originating summons and described as 4th set of defendants.

Plaintiff’s relief, amongst other reliefs, was for:

“A declaration that the 2nd and/or 3rd defendants are by virtue of the Schedule 11, Part 1, 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.”

The plaintiff obtained an order of interim injunction, which prompted some of the 4th set of defendants to file a number of motions. One of such motions was the objection to the originating summons filed by Nos. 77 and 78  of the 4th set of defendants on the ground that the originating summons of the plaintiff disclosed no reasonable cause of action. In the course of hearing of the objection, counsel to the 4th set of defendants (applicants) submitted that plaintiff ought to plea the fact that pre-action notice was given in compliance with section 29(2) of the FEPA Act.

At the conclusion of hearing of the objection the trial court ruled that plaintiff has the burden to show that before the suit was commenced it had served the requisite notice on the 2nd defendant. The court then went on to strike out the entire suit on the ground that the real object of the declaratory action was directed at FEPA and if FEPA was struck out of the suit there would be nothing left in the suit, moreso, when 4th set of defendants were mere nominal parties.

Dissatisfied with this decision of the Federal High Court, the appellant appealed to the Court of Appeal. The Court of Appeal dismissed the appeal. Appellant further appealed to the Supreme Court.

The Supreme Court considered section 29(2) of FEPA Act which provides:

“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.”