CORAM

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Uchechukwu Onyemenam Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Hadiza Rabiu Shagari Justice of the Court of Appeal

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PARTIES

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MR. COMMY M. MKPESIT

(SUING FOR HIMSELF AND REPRESENTING THE ABAJIALABO FISHING GROUP (300 MEMBERS) OF OKPOSO 1 & 2 COMMUNITIES IN IBENO LOCAL GOVERNMENT AREA OF AKWA IBOM STATE)

 

APPELLANTS 

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MOBIL PRODUCING NIGERIA UNLIMITED

RESPONDENTS 

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AREA(S) OF LAW

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ENVIRONMENTAL LAW, CIVIL PROCEDURE, LIMITATION OF ACTIONS, CONSTITUTIONAL LAW, TORT LAW, REMEDIAL LAW, EVIDENCE LAW, PRACTICE AND PROCEDURE, REPRESENTATIVE ACTIONS

 

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SUMMARY OF FACTS

The case arose from a crude oil spill that occurred on June 29, 2014, from the respondent’s facility at Qua Iboe Oil field terminal in Ibeno Local Government Area of Akwa Ibom State. The appellant, representing 300 fishermen and women from the Abajialabo Fishing Group, claimed the spill negatively impacted their fishing activities by polluting the river, adjoining creeks, and swamps. They alleged the spill remained unabated due to the respondent’s failure to prevent its spread, causing continuous damage to waters and aquatic life.

The respondent filed a preliminary objection arguing the suit was statute-barred under Section 16 of the Limitation Law of Akwa Ibom State. The trial court upheld the objection and dismissed the suit, leading to this appeal.

 

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HELD

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1. The appeal was allowed.

2. The Court held that the appellants had properly pleaded facts relating to continuity of damage and/or injury in their statement of claim.

3. The ruling of the Federal High Court dismissing the appellant’s suit was set aside.

4. The case was ordered to be returned to the Federal High Court Uyo for trial on merits before a different judge.

5. Parties were ordered to bear their respective costs.

 

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ISSUES

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1. Whether the trial Court was right to uphold the preliminary objection of the Respondent on the basis that continuity of damages and/or injury coupled with equitable reliefs copiously pleaded and claimed are not an exception to statute bar in tortious liability of negligence.?

2. Whether the trial Court was right to award cost of N50,000.00 against the Appellant.?

 

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RATIONES DECIDENDI

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CONTINUING DAMAGE – REQUIREMENT FOR FACTUAL DETERMINATION:

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“Indeed, in the determination of that issue, id est, continuing damage, would require that the continuing damage be specifically pleaded by the Plaintiff/Respondent and the matter proceed to trial for the  Plaintiff/Respondent to lead evidence to show that a fresh cause of action arose from time to time as often as damage was caused.”– Per BALKISU BELLO ALIYU, J.C.A.

 

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EXCEPTIONS TO LIMITATION LAW -CONTINUING DAMAGE:

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“The law on limitation of actions recognizes some exceptions one of which is that where there has been a continuance of damage, a fresh action arises from time to time, as often as the damage persists…” – Per BALKISU BELLO ALIYU, J.C.A.

 

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PRELIMINARY OBJECTIONS – SCOPE OF REVIEW:

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“This Court at this stage can only and has dealt with the issue of statute barred based on when the cause of action accrued as borne out in the statement of Claim and the date initialed on the Writ of Summons.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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ACCRUAL OF CAUSE OF ACTION – CONTINUING WRONG:

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“That the Respondent’s consistent position at the lower Court and in this appeal has been that, on the strength of the authorities cited, it is evident that a party alleging continuation of legal damage/wrong has to plead facts in its statement of claim showing that the legal wrong alleged continued.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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FOREIGN JUDGMENTS – PERSUASIVE VALUE:

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“Foreign judgments, including decisions of English Courts are only persuasive authority as they are not binding on the Nigerian Courts.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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CONTINUING EFFECT VS CONTINUING INJURY:

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“But the present case borders on the continuing effect of a legal injury as opposed to a continuing legal injury in the AG RIVERS STATE case.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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PRELIMINARY OBJECTION – SCOPE OF DETERMINATION:

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“All that the trial Court was required to do is to look at the writ of summons and the statement of claim in order to determine whether the suit is statute barred.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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PLEADINGS – BINDING EFFECT:

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“It was thus submitted that the Appellants have failed to show in its statement of claim or anywhere whatsoever that it pleaded the alleged oil spill of 2012 was continuing. He submitted that it is trite law that parties are bound by their pleadings.”– Per BALKISU BELLO ALIYU, J.C.A.

 

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DECLARATORY RELIEFS – NATURE AND REQUIREMENTS:

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“For the reliefs to be declaratory, they must invite the Court to declare a legal rights of the parties and nothing more.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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MIXED RELIEFS – CLASSIFICATION OF ACTION:

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“That the reliefs sought by the Appellants are at best, a mixture of executory and declaratory reliefs, but the action itself is executory action.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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FINDINGS OF FACT – HEARING REQUIREMENT:

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“The trial Court made a finding of fact at page 272 of the record regarding continuity of damage or injury without on the pleadings without hearing evidence, thus deciding the merits of the case without hearing evidence.”– Per BALKISU BELLO ALIYU, J.C.A.

 

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CAUSE OF ACTION – TIMING OF ACCRUAL:

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“A cause of action arises the moment a wrong is done to a claimant.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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EXCEPTION TO LIMITATION – DECLARATORY RELIEFS:

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:Moreover, by the decision in the case of A.G. RIVERS VS. A.G. FEDERATION (supra), the Apex Court held that statute of limitation does not apply to declaratory reliefs.” – Per BALKISU BELLO ALIYU, J.C.A.

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Limitation Law of Akwa Ibom State

3. Oil Pipeline Act, 2010

4. Federal High Court Rules

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