A Review of Chairman and Members of the Special Investigation Panel of the NHRC on Oil Spills & Environmental Pollution & Ors vs Total E & P (NIG) Ltd. Court of Appeal judgment Suit no: CA/C/400/2017 of 5th March, 2021.
The Issues and Decision
On 4th March 2016 the National Human Rights Commission announced in Vanguard Newspaper that a Panel had been constituted 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.
The 3rd and 4th Appellants in this matter submitted a memorandum claiming the sum of One Trillion Four Hundred and Five Billion Naira only against the Respondent, Total E & P Nigeria Ltd.
The Respondent, Total E & P (Nig) Ltd aggrieved by the 3rd and 4th Appellants claims, instituted an action at the Federal High Court for Judicial review pursuant to Order 34 Rule 5 of the Federal High Court Rules 2009. On service of the Originating processes, the Appellants filed a preliminary objection contesting procedural jurisdiction. The preliminary objection was dismissed and the court granted all the prayers of the Respondent in the substantive suit.Dissatisfied with the judgment of the lower court, the Appellants appealed. The Court of Appeal determined the appeal on two issues which is:
- Whether the lower court was right to have proceeded to hear and determine the originating motion, when it was not clothed with jurisdiction
- Whether the 1st and 2nd Appellant acted ultra vires their powers
The Court resolved the first issue in favour of the Respondent. The focus of our analysis will be on issue 2. The Court of Appeal posited that the Constitution is the grundnorm and must be strictly complied with. The Court went ahead to pose the question whether the 2nd Appellant, i.e. the National Human Rights Commission can exercise the power of awarding damages or compensation on oil spillages. It held that section 251 (1) (n) of the Constitution specifically vests exclusive jurisdiction on the Federal High Court to hear matters relating to mines and minerals (including oil fields, oil mining, geological surveys and natural gas), in other words, that the investigatory proceedings vide exhibit TPENGNI which arises from section 251 (1) (n) is reserved for the exclusive preserve of the Federal High Court. The Court held that the 1st Appellant acted ultra vires by considering and determining complaints on oil spillage and similar activities of oil. It also considered that in making determination as to the damages or compensation payable in relation to any violations, the Appellants would be acting in a judicial capacity – powers which they lacked under the Constitution. The court further held that the Appellants not being a court of law cannot impose any fine and that any law or regulations empowering the Appellants to do so is unconstitutional.
The Court of Appeal decision in affirming the judgment of the lower court that the Appellants, i.e. the National Human Rights Commission acted ultra vires by constituting a panel with an aim to award compensation and damages to victims of oil spillage and environment was in order. The Courts have the power of judicial review to examine the acts of the other branches of government, lower courts, public or administrative authorities and uphold them or invalidate them as may be necessary.
See the case of Adikwu V House of Representatives (1982) 3 NCLR 394 and Governor of Lagos State V ojukwu (1986) 1 NWLR pt. 18
Supervisory Jurisdiction of the High court over Administrative Tribunals
In addition, section 252 (1) of the Constitution provides that:
For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the National Assembly, the Federal High Court shall have all the powers of the High Court of a State.
Section 272 (2) of the Constitution further states that:
The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction.
By the combined provisions of section 252 (1) and 272 (2) the Federal High Court has appellate and supervisory jurisdiction over the Appellants. Although there was no specific mention of appellate and supervisory jurisdiction for Federal High Court, section 252 (2) provides that the Federal High Court shall have powers of the High Court of a State. One of such powers conferred on the State High Court as contained in the provisions of section 272 (2) is that the court can exercise appellate and supervisory jurisdiction.
This is buttressed by the provisions of section 254 (3) CFRN which stipulates that:
The National Industrial Court may establish an Alternative Dispute Resolutions Centre within the court premises on matters which jurisdiction is conferred on the court by this Constitution or any Act or Law: Provided that nothing in this subsection shall preclude the National Industrial Court from entertaining and exercising appellate and supervisory jurisdiction over an arbitral tribunal or commission, administrative body, or board of inquiry in respect of any matter that the National Industrial Court has jurisdiction to entertain or any other matter as may be prescribed by an Act of the National Assembly or any Law in force in any part of the Federation.
With reference to the underlined words, the provision of the constitution is clear that the above mentioned courts can exercise appellate and supervisory jurisdiction over the Appellants.
In support of the above argument, section 7 (9) of the Federal High Court Act 2004 and section 28 of the same Act provides respectively:
Federal High Court being a superior court of record may exercise supervisory jurisdiction by way of judicial review, over inferior courts or tribunals in relation to acts and omissions of persons, bodies and institutions on subjects within the jurisdiction of the Federal High Court
Federal High Court is vested with appellate jurisdiction to hear and determine appeals from;
- the decisions of Appeal Commissioners established under the Companies Income Tax Act and the Personal Income Tax Act in so far as applicable as Federal law;
- the decisions of the Customs, Immigration and Prison Services Board established under the Customs, Immigration and Prison Services Act; (c)
- the decisions of magistrates' courts in respect of civil or criminal causes or matters transferred to such courts pursuant to this Act, and
- the decisions of any other body established by or under any other Federal enactment or law in respect of matters concerning which jurisdiction is conferred by this Act.
This provisions mentioned have clearly stated that the Federal High Court has supervisory jurisdiction over the Appellants and can by way of judicial review examine their acts to ensure that it is in compliance with their laid down Acts.
Jurisdiction to Award Compensation or Damages
On the issue of whether the Appellants have the right to award compensation and damages, the answer is in the negative. Clearly, the NHRC Act has given it the power to award compensation and damages but the question still remains whether that power is constitutional or not. Although section 6 (e) of the National Human Rights Act 1995 as amended provides that:
The Commission shall have power to make determinations as to damages or compensation payable in relation to any violation of human rights where it deems this necessary in the circumstances of the case.
A quasi-judicial activity is limited to the issues that concern the particular administrative agency. The Appellants acted ultra vires when it made a publication in Vanguard Newspaper setting up a panel to hear and determine claims for compensation and other deleterious effects arising from the oil exploration activities of the respondent which has been reserved exclusively for the Federal High Court. See the case of SPDCN Ltd V Ajuwa (2015) 4 NWLR (Pt. 1580) 423
This brings us to the question on whether the Appellants can legally constitute a panel without the authorisation of the President/Governor as the case may be. Moreover, section 1 (1) of the Tribunal of Inquiry Act provides that:
The President /Governor is the proper authority to constitute a tribunal to inquire into any matter or thing or conduct of affairs of any person in respect of which in his opinion an inquiry would be for public welfare
This provision clearly shows that the Appellants themselves cannot set up a panel by itself without the authorisation of the President or Governor as the case may be because doing that will amount to acting outside their powers. Again, nothing in the NHRC Act gives it the power to set up panels, the only thing the Act mentioned in section 6 is that they have the power to conduct investigations and inquiries which does not transcend to setting up panels and making determinations therefrom. In my opinion, the Appellants do not reserve the right to set up a panel neither does it has the power to award compensation and damages.
Section 14 of the Tribunal of Inquiry Act provides that “a tribunal shall make and furnish to the proper authority full report in writing of its proceedings, findings and recommendations and records on opinion, and reasons leading to its conclusion; and any member dissenting from the conclusion or any part thereof shall note his reason of such dissent.” Therefore, the Appellants should restrict themselves to only making recommendations when the proper authorities have constituted a panel for them to oversee.
A careful examination of the Public Complaints Commission Act of 1975 which is a direct creation of the Constitution by virtue of section 315 and which is similarly established to receive and investigate complaints of wrongs reveals that; the Public Complaints Commission can by the provisions of section5 which outlines its powers and duties conduct investigations on complaints lodged before it and etc. The PCC also went further in S. 7 to provide that a Commissioner can make recommendations to the appropriate body or administrative agency after due investigation of his/her complaint. This section does not presuppose that the PCC can award compensation or damages.
This brings us to the provisions of section 22 of the NHRC Act that provides that:
An award or recommendation, made by the Commission shall be recognized as binding and subject to this section and this Act, shall, upon application in writing to the court, be enforced by the court
We submit that the word “award” should not have been included into the NHRC Act because the Commission can only make recommendations just like the Public Complaints Commission. An award is the determination on the merits or the final and binding decision by an arbitration tribunal unlike “terms of settlement” which results from out-of-court negotiations which cannot, and do not operate as final and conclusive judgment, until the courts adopts and makes the executed Terms Of Settlement a judgment of the court.
An arbitral award must be enforced exactly as issued by the arbitrator. The court has no jurisdiction to add element of interest or costs to the award. See the case of Pal Gazi Construction Company Limited V Federal Capital Development Authority (2001) 10 NWLR (Pt. 722) 539; where the court was asked to resolve the question of whether the court has jurisdiction to convert an arbitral award into its own judgment. The court dismissed the appeal and held that a court has no jurisdiction to convert an arbitral tribunal award into the judgment of the court or to make an additional award of interest where the arbitral tribunal has not made such provision.
Award vs Terms of Settlement
The distinction here is that, if an award is brought to court for enforcement, the court does not have jurisdiction to add interest or cost elements unlike terms of settlement which we would require to be converted into a court judgment before it becomes binding. This goes to show that an award is entirely different from terms of settlement and shouldn’t be contained in the NHRC Act. It is also important to note that section 22 (1) of the NHRC Act which contemplates that “an award or recommendation” made by the Commission shall be recognized as binding and upon application to the court be enforced, is erroneous because it is only an arbitration tribunal that has such powers. The Appellants who are engaged in mediation and makes terms of settlement cannot be given awards. The Commission is an administrative body and not a tribunal in any sense and as such cannot be performing the functions of an arbitration tribunal.
In conclusion, it is clear that from the above arguments, the NHRC acted ultra vires by constituting a panel to hear and determine claims arising from oil and environmental issues which is exclusively reserved for the Federal High Court by the Constitution