Orakul Resources Ltd & Anor V. Ncc & Ors (2022)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED LAWAL GARBA, J.S.C.
By a writ of summons dated 26th February, 2004 issued at the Federal High Court, Abuja (trial Court), the Appellants claimed declaratory and injunctive orders against the Respondents and one other, as follows:-
“a. A declaration that the purported exercise of the 1st defendant’s regulatory powers with respect to the purported interconnection rate determination issued on December 2, 2003 was in breach of Sections 57, 58, 60, 70, 71, 99, etc of the Nigerian Communications Act, 2003 and therefore invalid, null and void and of no effect whatsoever.
b. A declaration that the purported interconnection rate determination issued by the 1st defendant on December 2, 2003, was in breach of Section 97 of the Nigerian Communications Act, 2003 and therefore invalid, null and void and of no effect whatsoever.
c. A declaration that the purported interconnection rate determination issued by the 1st defendant on December 2, 2003, having been made in breach of the plaintiffs’ fundamental right to a fair hearing enshrined in Section 36 of the Constitution is invalid, null and void and of no effect whatsoever.
d. An order of perpetual injunction restraining the defendants, whether by themselves, their servants and/or agents howsoever called from implementing or taking any steps, or further steps to implement the said interconnection rate determination.”
e. An order compelling the 1st defendant to conduct the mandatory inquiry as a condition precedent to its regulation of the interconnectivity rates applicable in the Nigerian telecommunications market.
f. An order compelling the 1st Defendant to publish a public notice inviting all stakeholders including consumers/subscribers of telecommunications services including the plaintiffs to the inquiry on any proposed interconnection rate regulation.
g. An order of perpetual injunction restraining the 1st defendant from attempting and/or purporting to regulate interconnectivity rates until it complies with the stringent procedural requirements of the Nigerian Telecommunications Act, 2003, relating to notice and inquiry.
h. The cost of proceedings including attorney’s fees.”
In reaction to the action, the Respondents filed objections separately challenging the competence of the action on the ground of failure by the Appellants to comply with the provisions of Sections 86, 87 and 88 of the Nigerian Communications Act, 2003 (NCC Act) before initiating the action.
In a ruling delivered on the objections, the trial Court upheld same and struck out the Appellants’ action on the ground that it had earlier decided the same or similar objection in other cases raised by the Respondents, which the parties agreed to be bound by, and held that the action did not comply with a condition precedent for the invocation of its jurisdiction.
Aggrieved with the trial’s decision, the Appellants went on appeal against same at the Court of Appeal, Abuja Division (Court below) vide the Notice of Appeal dated 19th January, 2005 which contained Nine (9) grounds of dissatisfaction.
After hearing the parties, the Court below dismissed the appeal and affirmed the decision of the trial Court in the judgment delivered on the 24th January, 2007.
Again, for being dissatisfied with the decision of the Court below, the Appellants brought this further and final appeal in the case by the Notice of Appeal dated 7th March, 2007 on Six (6) groundswhich appears at pages 242 – 246 of the Record of Appeal.
As required by the Rules of practice in the Court, learned counsel for the parties filed briefs of argument for the prosecution of the appeal as follows:-
- 1st and 2nd Appellants’ Amended Joint Brief on the 3rd April, 2019,
- 1st and 5th Respondent’s Joint Brief on the 8th October, 2021,
- 2nd Respondent’s Brief on the 11th October, 2019,
- 3rd Respondent’s Brief on the 4th October, 2019,
- 4th Respondent’s on the 26th October, 2020.
The briefs were all deemed on the 11th October, 2021 at the oral hearing of the appeal and were adopted by learned counsel for the parties in support of their respective positions.
Four (4) issues are set out on pages 4 – 5 of the Appellant’s Brief for determination in the following terms:-
“3.1.0 Was the lower Court right to uphold the decision of the trial Court striking out the appellants’ suit vide mere reference to the trial Court’s earlier and separate decision in another matter wherein the appellants were not parries? (Grounds 4, 5 and 6)
3.2.0 Whether the lower Court was right in affirming the decision of the trial Court to the effect that the appellants were bound to exhaust the 1st respondent’s administrative remedies as a condition precedent to the ventilation of their fundamental right to fair hearing as guaranteed by a Constitution of the Federal Republic of Nigeria (GROUND 3)
3.3.0 Whether the lower Court was right in holding that the appellants have not complied with the condition precedent to invocation of the trial Court’s jurisdiction, notwithstanding the directory, as opposed to a mandatory, nature of Sections 86 – 88 of the Nigerian Communication Act. (GROUNDS 1 AND 2).
3.4.0 Assuming the provisions of Sections 86 – 88 of the Nigerian Communications Act (NCC) required mandatory compliance therefore was the lower Court right not to have invalidated then for being inconsistent with the provisions of Sections 6(6) (b) and 36 (1) of the Constitution of the Federal Republic of Nigeria. (Ground 7).”
In the 1st and 5th Respondents’ Briefs, two (2) issues are submitted for decision in the appeal as follows:-
“i. Whether the Court was right in upholding the decision of the trial Court to rely on its earlier decisions in different matters with similar facts and circumstances, in striking out the Appellants’ suit? (Grounds 4, 5, and 6).
ii. Whether the lower Court was right in affirming the decision of the trial Court striking out the Appellants’ suit for failure to comply with the condition precedent stipulated by the Nigerian Communications Act, 2003? (Grounds 1, 2 and 3).
Three (3) issues are said to arise for determination in the appeal in the 2nd Respondent’s brief thus:-
“3.1 whether having regards to the provisions of Sections 86, 87 and 88 of the Nigerian Communications Act (Cap. N97) Laws of the Federation of Nigeria, 2004, the Appellant suit was incompetent having not fulfilled the condition precedent to the commencement of the action. (Grounds 1 and 2).
3.2 Whether the ruling of the trial Court which was affirmed by the lower Court was in breach or violation of the Appellants’ right to fair hearing enshrined under Section 36 (1) of the 1999 Constitution as amended. (Grounds 3 and 5); and
3.3 Whether the Iower Court erred in law when it held that the trial Court’s reliance on its previous decisions in similar cases was in tandem with the doctrine of stare decisis which decision the Appellants acquiesced and/or waived their right to challenge. (Grounds 4 and 6).”
The two (2) issues raised in the 1st and 5th Respondents’ briefs were slightly re-couched and submitted for determination in the 3rd and 4th Respondents’ briefs respectively.
Before a look at the crucial issues that call for decision by the Court in the appeal from the above issues, I would observe that there is no “GROUND 7” from which the Appellants’ issue no. 3.4.0 is indicated to have been derived, on the Notice of Appeal, which as stated earlier, contains only Six (6) grounds numbered I, II, III, IV, V and VI.
However, a careful reading of the ground III along in the particulars will show that the real grievance therein is one from which issue 3.4.0 is drivable and so reference to non-existent “GROUND 7” in the Appellant brief may be regarded as inadvertence of counsel.
Now, the germane issues which arise from the complaints embedded in the grounds of the appeal and require decision by the Court are as set out in 2nd Respondent’s brief and I intend to usethem in the determination of the appeal.
In doing so, the issue no. 3.1 of whether the suit of the Appellants was incompetent having failed to fulfil the condition precedent prescribed in the provisions of Sections 86 – 88 of the Nigeria Communications Commission Act is to be accorded priority since it goes to challenge the jurisdiction of the trial Court to entertain the action. Although, the issue no. 3.2. raises the question of breach or violation of the Appellants’ right to fair guaranteed by the provisions of Section 36(1) of the Constitution in the proceedings by the trial Court, the question or issue can only properly arise in cases over which a Court possesses the requisite jurisdiction to adjudicate over the action and validly conduct proceedings therein. Where it is determined that a Court lacks the requisite jurisdiction to adjudicate in a case, there will be no valid proceedings in which the right to fair hearing could be breached or violated since in law all proceedings conducted by a Court of law in the absence of the requisite jurisdiction are automatically, null, void and of no effect, ab initio, since the defect is both intrinsicand extrinsic to adjudication. Hon. Justice 0.0. Adekeye, JSC, in the case of Oyegun v. Nzeribe (2010) 7 NWLR (pt. 1194) 577 stated law that:-
“The doctrine of fair hearing can only be invoked by Court after it has assumed jurisdiction – that is, it is competent to hear the matter.”
It is due to the crucial and fundamental nature of the issue of jurisdiction of a Court to entertain and adjudicate over a case by conducting valid proceedings that it has variously been described by this Court as “blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.” Per Bello, CJN in Utih v. Onoyivwe (1991) 1 SC (pt. I) 61, (1991) 1 SCNJ, 25, (1991) 1 NWLR (pt. 166) 166, “a threshold issue, in that a Court must have jurisdiction before it can enter into a cause or matter at all,” Per Nnaemeka-Agu, JSC, in Odofin v. Agu (1992) 1 NWLR (pt. 229) 350, “a term of comprehensive import embracing every kind of judicial action … aradical and fundamental question of competence,” per Adekeye, JSC in Egbarema v. Eribo (2010) 9 NWLR (pt. 1199) 411, “the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision” per Idigbe, JSC in Ndaeyo v. Ogunaya (1977) 1 SC 7 (1977) All NLR, 169 etc.
The above nature and fundamental character of the issue of jurisdiction of a Court, account for the law that it is never too early or too late in the course of judicial proceedings of all Courts in the judicial hierarchy in Nigeria, for it to be raised by any of the parties to a case/matter or the Court suo motu, even viva voce. See Chacharos v. Ekimpex Ltd (1988) 1 NWLR (pt. 68) 88, (1988) JSC 161, State v. Onagoruwa (1992) 2 SCNJ 1, Ejiofodomi v. Okonkwo (1982) 11 SC, 74, Ngere v. Okuruket xiv (2014) 11 NWLR (pt. 1417) 147, Mil. Gov., Ondo State v. Kolawole (2008) 5 SCNJ, Petrojessica Ent. Ltd. v. Leventis Tech. Con. Ltd. (1992) 1 NWLR (pt. 244) 675.
Now, the law is trite that a Court of law would be seized of requisite jurisdiction over the case when/if the following conditions are met or satisfied, as prescribed in the locus classicus judicial decision on the issue in the case of Madukolu v. Nkemdilim (1962) 1 All NLR, 587, (1962) 3 CNLR, 341:-
- It is properly constituted as regards number and qualification of members.
- The subject matter of the action is within its jurisdiction, and
- The matter is brought before it by due process of law, and upon the fulfilment of any condition precedent to the exercise of jurisdiction.
Sec also Sken-Consult Nig. Ltd. v. Ukey (1981) 1 SC, Ajao v. Alao (1986) 1 NWLR (pt. 45) 802, Anyaoke v. Adi (1985) 4 SC (pt. 1) 213, (1985) All NLR, 220, (1985) 1 NWLR (pt. 2) 342, Asore v. Lemomu (1994) 7 NWLR (pt. 356) 284.
In the above premises, I would consider the arguments in the parties briefs of argument on whether the trial and lower Courts are right that the trial Court lacks the requisite jurisdiction to entertain the Appellants’ suit.
APPELLANTS’ SUBMISSIONS:
The submissions are made under Appellant’s issues 3.2.0 and 3.3.0. and to the effect that the two (2) lower Courts are wrong in law to hold that the Appellants’ case was incompetent for failure to comply with the provisions of Sections 86 – 88 of the Nigeria Communications Commission Act since it was a constitutional claim for declaratory relief not administrative review provided for under the Nigeria Communications Commission Act. The case of UniLorin v. Oluwadare (2003) 4 NWLR (pt. 808) 557 at 580 and 583 was relied on. It is also argued that since the 1st Respondent did not comply with the provisions of Section 71 (1) of the Nigeria Communications Commission Act on issuing public notice to stakeholders to a public inquiry, the law assumes that no decision was made by it on the interconnection rate and so there was no basis of the request for statement of reasons by the Appellants. According to counsel, in the circumstance, the decision by the lower Courts is perverse.
It is the case of the Appellants that the provisions in Sections 86 – 88 of the Nigeria Communications Commission Act do not impose an obligation on the Appellants to first exhaust all administrative remedies under the Nigeria Communications Commission Act before instituting their action as the word “may” was used in Section 86 (1) deliberately to make administrative review optional soas to give the Appellants the choice to either apply for review or institute an action in a Court of law.
Learned counsel says the word “may” in the provisions is merely directory and not mandatory, relying on Ohanaka v. Achigwo (1998) 9 NWLR (pt. 564) 37 CA, Emokpae v. Univ. of Benin (2002) 17 NWLR (pt. 795) 139, A.G. Federation v. A.G. Abia state (2001) 11 NWLR (pt. 725) 689, Oko v. lgweshi (1997) 4 NWLR (pt. 497) 48 at 60 (CA) and Unilorin v. Oluwadare (supra). He maintains that the Appellants are not obligated to request for a statement of reasons before commencing an action in Court to challenge the decision of the 1st Respondent which violated the provisions of the Nigeria Communications Commission Act and that it was only when a party exercised the option of requesting for statement of reasons for its decision that the provisions of Section 86 (2) which employs the word “shall” become applicable and impose a mandatory obligation. According to counsel, the Appellants complied with the provisions of Sections 86 – 88 of the Nigeria Communications Commission Act when they chose not to request for a statement of reasons from the 1st Respondent and the case of Onyeanusi v. Misc. Offences Tribunal (2002) 12 NWLR (pt. 781) 227 at 250 on duty of a Court in the interpretation of clear and unambiguous words used in a statute, is cited. Emuze v. V.C. Univ. of Benin (1998) 6 NWLR (pt. 552) 142 and 688 at 723 are also referred to by counsel on the interpretation of ouster clause in statutes and he submits that the lower Courts “ought to have narrowly construed Sections 86, 87 and 88 of the NC (sic) Act” and to have found that they are not mandatory so as to deny the Appellants access to Court. Onwuchekwa v. N.D.I.C. (2002) 5 NWLR (pt. 760) 571 is relied on and the Court is urged to resolved the issue in Appellants’ favour.
1st and 5th RESPONDENTS’ SUBMISSIONS:
It is submitted on the issue that one of the fundamental elements for assumption of jurisdiction by a Court over an action is that any condition precedent to the exercise of the jurisdiction must be fulfilled before the Court can assume jurisdiction, on the authority or U.D.U.S. v. Kraus Thompson Org. Ltd. (2001) 15 NWLR (pt. 736) 305 and Owoseni v. Faloye (2005) 14 NWLR (pt. 946) 719 at 740. It is then argued that since theNigeria Communications Commission Act has provided and laid down the procedure for challenging the decision of the 1st Respondent by any party who is aggrieved thereby in Sections 86, 87 and 88, the Appellants were bound to comply with the provisions and follow the procedure before resorting to the Courts on grievance with any of the decisions of the 1st Respondent. In addition, Section 88(3) is referred to and it is contended that the Appellants filed a writ rather than an application for judicial review prescribed by the provisions. According to counsel, the right of access to Court, on the grievance against the decisions of the 1st Respondent is not created under “part iv” of the Constitution but prescribes the procedure for the enforcement of the right of an aggrieved party must follow in seeking redress for any grievance. It is his submission that the Appellants cannot seek to enjoy rights conferred by the Nigeria Communications Commission Act, but then refuse to comply with the procedure prescribed by the Act for the enforcement of the right, relying on Salako v. Alao (1994) 8 NWLR (pt. 360) 47 and Ajewole v. Adetimo (1994) 3 NWLR (pt. 335) 739.
In further submission, he said it is not the law that once an action seeks to enforce a fundamental right, a party will automatically be exempted from complying with any statutory condition precedent for the enforcement of the right, but that the law is that where a statutory condition precedent is prescribed before a remedy or relief is claimed in Court, it must be complied with before a legal action could be taken before the Courts, regardless of the nature of the action. A.G. Kwara State v. Adeyemo (2017) 1 NWLR (pt. 1546) 210 at 251 – 253 is cited for submission and it is argued that by the above position, Section 86 – 88 of the Nigeria Communications Commission Act did not extinguish or bar a party’s right of access to the Court or attempt to oust the jurisdiction of the Courts, but rather provided the procedure, as a condition precedent, to be followed and satisfied by the party for the access to Court which has been held, in Eze v. Okechukwu (2002) 18 NWLR (pt. 799) 348 at 368, to be constitutional.
2ND RESPONDENT’S ARGUMENTS:
The arguments on the issue are similar to those made above by the 1st and 5th Respondents on whether the provisions ofSections 86 – 88 of the Nigeria Communications Commission Act hinder or prohibit the right of the Appellants to Court by merely prescribing the procedure to be followed for the enforcement of any right provided for under the Act before resort to the Courts.
In addition, it is argued that the provision of the Act in line with those of Section 36(2) of the Constitution which say that a law such as the Nigeria Communications Commission Act is not invalidated by the reason only that it confers authority on any government or authority, power to determine questions arising in the administration of law that affects or may affect the civil rights and obligations of any person if such law contains no provision making the determination of the administering authority final and conclusive. The recent case of Centre for Oil Pollution Watch v. NNPC (2019) 5 NWLR (pt. 1666) 518 at 564 is cited in support of the argument and it is said that the ruling by the trial Court did not in any way breach or violate the Appellants right to fair hearing.
Also, that the law is that failure to follow procedure expressly provided for in a statute renders subsequentactions or acts a nullity as stated in CIL Risk & Asset Management Ltd. v. Ekiti State Govt. (2020) 12 NWLR (pt. 1738) 203 at 264 – 265, Okpalauzuegbu v. Ezemenari (2011) 14 NWLR (pt. 1268) 492, IGP v. Mobil Prod. Nig. Unlimited (2018) 14 NWLR (pt. 1639)329 at 393 and SPDC Nig. Ltd. v. Agbara (2019) 6 NWLR (pt, 1668) 310 at 326. In addition, even though the word “may” used in statutes ordinarily connotes discretion or mere direction, its use in the context of the provisions ofSections 86, 87 and 88 of the Nigeria Communications Commission Actshows that is mandatory as they prescribe the procedure to be followed by an aggrieved party in seeking redress against any decision by the 1st Respondent before resort to Court. Ogualaji v. A.G. Rivers State (1997) 6 NWLR (508) 209, Ifezue v. Mbadugha (1984) 1 SCNLR, 427 and Amasike v. Reg. Gen. C.A.C. (2010) 13 NWLR (pt. 121 1) 337 at 399 are cited and it is argued that the Appellants’ suit was clearly, incompetent for failure to follow the procedure, as a condition precedent.
The Court is urged to resolve the issue against the Appellants.
3RD AND 4TH RESPONDENTS’ SUBMISSIONS:
The same arguments are made on the issue as those by the 1st and 5th and 2nd Respondents above which do not need to be repeated here.
RESOLUTION:
The real complaint by the Appellants under the issue is on the interpretation of the provisions of Sections 86, 87 and 88 of the Nigeria Communications Commission Act in relation to the Appellants’ action before the trial Court. The provisions are in the following terms:-
“86… (1) A person who is aggrieved or whose interest is adversely affected by any decision of the Commission made pursuant to the exercise of the powers and function under this Act or its subsidiary legislation (“aggrieved person”) may request in writing to the Commission for a statement of the reasons for the decision.
(2) The Commission shall upon such written requests by an aggrieved person, provide a copy of a statement of reasons for the decision and any relevant information taken into account in making the decision.
(3) The Commission is not required to publish, or to disclose to the aggrieved person, a statement of reasons or a part of a statement of reasons if the publication or disclosure would …
(a) Disclose a matter that is, in the opinion of the Commission, of a confidential character;
(b) be likely to prejudice the fair trial of a person, or
(c) Involve the unreasonable disclosure of personal information about any individual (including a deceased persons).
(d) In this Chapter, “decision ” includes any action, order, report direction.
“87 …(1) An aggrieved person may at any time within but not later than 30 days after the date of the receipt of the Commission’s statement of reasons specified in Section 86(2) of this Act request the Commission in writing for a review of the Commission’s decision and specify therein the reasons and basis for his request.
(2) Subject to Subsection (1) of this Section;
Upon receipt of the aggrieved person’s written submissions consideration, the submissions of the aggrieved person under Subsection (1) of this Section.
(3) The Commission may, in carrying out the review of its decision under this part, use and exercise any of its powers under this Chapter.
(4) The Commission shall not later than 60 days from the date of receipt of the aggrieved person’s written submissions,conclude its review of the decision and inform the aggrieved person in writing of its final decision thereon and the reasons therefore.
“88 …. (1) Subject to Section 87 of this Act and Subsection (2) and (3) of this Section, an aggrieved person may appeal to the Court for a judicial review of the Commission’s decision or other action.
(2) The decision or direction of the Commission that is the subject matter of an application for judicial review shall subsist and remain binding and valid until it is expressly reversed in a final judgment or order of the Court.
(3) A person shall not apply to the Court for a judicial review unless that the person has first exhausted all other remedies provided under this Act.”
These provisions, prima facie, appear to be clear and unambiguous in their words and language and so require no interpretation Awolowo v. Shagari (1979) All NLR, 120, Dyktrade Ltd. v. Omnia Nig. Ltd (2000) 12 NWLR (pt. 680) 1, PDP v. CPC (2011) 17 NWLR (pt. 1277) 522, but are to be given their ordinary, natural and plain meanings since the precise words, in the circumstances, best declare the intention of the legislature,which all principles or rules of statutory interpretation are aimed at, unless it would lead to absurdity, repugnancy or inconsistency. See Ifezue v. Mbadugha (supra) also reported in (1984) 5 SC, 1, Kotoye v. Saraki (1994) 7 N WLR (pt. 351) 414, Adewumi v. A.G. Ekiti state (2002) 2 NWLR (pt. 751) 474, Uwazurike v. A.G. Federation (2007) 8 NWLR (pt. 1035) 1, (2007) 2 SC, 169.
The parties in this appeal are one, in particular the Appellants agree that the provisions in Sections 86 and 87 provide for the procedure a person who is aggrieved or whose interest is adversely affected by any decision of the 1st Respondent made in the exercise of the powers and functions vested in it under the Nigeria Communications Commission Act or its subsidiary legislation is to follow in challenging or questioning such decision and seeking redress or relief from and 1st Respondent. The steps provided for in these sections are completely administrative and internal to be followed and taken by both the aggrieved person in seeking remedy or relief to protect the interest adversely affected by the decision in question, and the 1st Respondent in the discharge of the duties and functions imposed on it by the provision after exercising its powers to take the decision.
The steps end and are concluded between the aggrieved person and the 1st Respondent as provided in Section 87 (4) when the 1st Respondent informs the aggrieved person, in writing of its final decision and reasons for the decision.
On its part, Section 88, which is subjected to the provisions in Section 87 (1) – (3), in Subsection (1) provides the right of access to the Courts, by way of an appeal to the Court for a review of the 1st Respondent’s decision dissatisfied therewith, unclear to an aggrieved person. Undoubtedly, by the provisions of Subsection (1) of Section 88, an aggrieved person, who after the conclusion of the steps set out in the provisions of Sections 86 and 87 with the final decision by the 1st Respondent after review of the earlier decision or other action made or taken by it complained about by an aggrieved person, is given and afforded an opportunity or the right of approaching or access to Court to seek for a judicial review of the final decision of the 1st Respondent. If still not satisfied with it, I should add and point out, that the aggrieved person, after following or going through the procedure or steps provided for in Sections 86 and 87, has the unfettered right of access to the Courts for a remedy or relief by way of an application for judicial review of the final decision by the 1st Respondent.
Then comes in the provision in Section 88 (3), which once again, says:-
“A person shall not apply to the Court for a judicial review unless that person has first exhausted all other remedies provided for under this Act.”
The “person” used in the simple provision is and means the and “an aggrieved person” used in Subsection (1) which provides for the right of appeal by way of judicial review of the 1st Respondent’s decision or other action.
Plainly, by the provision, a person aggrieved by any decision or other action made or taken by the 1st Respondent in the exercise of its powers and functions as provided for in the Nigeria Communications Commission Act, “shall not” or cannot exercise the right of appeal for judicial review of that decision or other action, as provided for in subsection (l), by going to the Court “unless” or until hehas first exhausted all the other remedies provided for under the Act.
Clearly, the exhaustion of all the other remedies provided for an aggrieved person under the Nigeria Communications Commission Act who is aggrieved by or whose interest is adversely affected by any decision or other action of the 1st Respondent is made a condition precedent to be fulfilled, satisfied or met before the resort in Court over the grievance or interest in question. Under the provision, an aggrieved person cannot go to Court first to challenge or question any such decision or other action made or taken by the 1st Respondent before exhausting all the remedies provided for grievances against the decision under the Nigeria Communications Commission Act.
This is beyond any legally viable dispute.
In the case of Atolagbe v. Awuni (1997) 9 NWLR (pt. 522) 536, Ogwuegbu, JSC referred to the Osborn’s Concise Law Dictionary, 8th Edition, with approval, wherein “condition precedent” was defined thus:-
“A condition precedent is one which delays the vesting of a right until the happening of an event.”
In the 6th Edition of Black’s Law Dictionary, “condition precedent” defined as:-
“One which must happen or to be performed before the estate to which it is annexed can vest or it is one which is to be performed before some right dependent thereon accrues or some act performed.”
Sec also IAL 361 INC. v. Mobil Nig. Plc. (1999) 5 NWLR (pt. 601) 9, Adeleke v. OSHA (2006) 16, NWLR (pt. 1006) 608, Niger-care Dev. Co. Ltd. v. Adamawa state Water Bel. (2008) 2 – 3 SC (pt. 11) 202, (2008) 9 N WLR (pt. 1093) 498, Drexel Energy & Nat. Res. Ltd. v. Trans. Int’l Bank Ltd. (2009) 18 NWLR (pt. II 19) 388, (2009) 15 WRN, 1.
In IAL 361 Inc. v. Mobil Nig. Plc (supra), the law was restated at page 2 that:-
“And the law is sacrosanct that where there is a non-compliance with a stipulated precondition for setting a legal process in motion, any suit instituted in contravention of the pre-condition provision of the relevant law, is incompetent and a Court of law, is for that reason, lacking in jurisdiction/power to entertain it.”
The cases of Western Steel Works Ltd. v. Iron & Steel Workers Union of Nigeria (1986) 3 NWLR (pt. 30) 617, Ajanaktl v. C.O.P. (1979) 3 & 4 SC, 28, and Gambari v. Gambari(1990) 5 NWLR (pt. 152) 572 are cited and relied on for that position of the law.
This Court, per Musdapher, JSC, (former CJN) in the case of Owoseni v. Faloye (2005) 14 N WLR (pt. 496) 719 at 740 had stated in the lead judgment, that:-
“Now, in my view, the Court of Appeal is perfectly right in the statement of the law to the effect that where a statute prescribes a legal line of action for the determination of an issue, be it an administrative matter, Chieftaincy matter, or a matter for taxation, before going to Court.”
Oguntade, JSC, in his concurrent decision emphasized at page 757, that:
“It is important to stress that laws which prescribed that some procedural steps to be taken to resolve a dispute before embarking on actual litigation are not and cannot be treated or categorized as ousting of the jurisdiction of the Court. Indeed, if such laws do so, they would be in conflict with the provisions of the Constitution. Such laws, only afford the body to which such disputes must be referred to in the first instance an opportunity to resolve the dispute if it can before recourse to the Court. In other words, they serve thepurpose of preventing actual litigation in Court where it is possible or desirable to resolve the dispute.”
Then in Ogologo v. Uche (2005) 14 NWLR (pt. 945) 226 at 245, Belgore JSC (former CJN) restated, emphatically, that:-
“Where a law has given exclusive power to a body to decide, the Court cannot come in before that body has exercised that power. Court can come in only where there is exhaustion of all remedies before that body and Court will then be able to decide whether that power had been exercised lawfully.”
See also Okomalu v. Akinbode (2006) 9 NWLR (pt. 985) 338 (SC).
From these authorities, it is clearly incontestable, legally, that where the provisions of a statute or law prescribe some internal mechanisms by which, remedies or reliefs for some grievance/s could be sought and to be followed or complied with by a party before instituting a legal action in a Court of law over the same grievance/s, the party has no discretion or option, but to exhaust all the remedies provided for by the statute or law first, before going to Court as the Court’s jurisdiction in such circumstance, will be put in abeyance pending the completion of the internal mechanisms for the remedies.
In these premises, the lower Court is on terrain of the law when it stated and held, in its judgment, at pages 22 – 23 (pages 216 – 217 of the Record of Appeal that:-
“Where a precondition for the doing of an act has not been complied with, no act subsequent thereto can be regarded as valid.
This is because the act to which it is subject has not been done. It is however a different consideration where the non-compliance relates to a condition not fundamental to the constitutive elements but is subsequent to the act sought to be done. This is because the act is not mentioned non-compliance is a mere irregularity. Concisely put, where the law prescribes the doing of a thing as a condition for the performance of another, the non-doing of such thing renders the subsequent act void. See Nwabueze v. Okoye (1988) 4 NWLR (pt. 91) 664.
Where a statute has prescribed a particular remedy, an aggrieved party should be left to exhaust the remedy. See Adesola v. Abidoye (1999) 14 NWLR (pt. 637) 28; Ariori v. (1983) 2 SCNLR 1.
Where the legislature clearly stipulates the procedure to be followed when an act or a decision of an authority is challenged, the party aggrieved can only challenge the decision successfully in the manner laid down in the enabling statute. See Eguamwense v. Amaghizemwen (1993) 9 NWLR (pt. 315) 1; Faloye v. Omoseni (2001) 9 NWLR (pt. 717) 190.
Where an aggrieved party has not resorted to the remedies statutorily available to him on the infringement of his alleged right by the prescribed authority, such a party has therefore not exhausted the remedies available to him and has in consequence not satisfied the preconditions for access to Court. See Faloye v. Omoseni (2001) 9 NWLR (pt. 717) 190 at 200 – 201, Adesola v. Abidoye (1999) 14 NWLR (pt. 637) 28.”
The complaint of the Appellants both at the lower Court and in this appeal is on the meaning given to the word “may” in the provisions of Section 86 and 87 by the lower Courts to the effect that in the context of the provisions of Nigeria Communications Commission Act as a whole, but particularly Sections 86, 87 and 88 together, the word is mandatory and imposes a duty and obligation on an aggrieved person, the Appellants here, to comply with the procedure and take the steps set out in the provisions of Sections 86 and 87 before resort to legal action to seek for remedies against the decision by the 1st Respondent with which they are aggrieved. The Appellants’ case is that, the word is only directory and the Appellants have a discretion to either follow and take the steps set out in Sections 86 and 87 to which the provisions of Section 88 (3) apply, or to institute an action in Court. However, the Appellants have not even attempted to deny or say that the decision of the 1st Respondent with which they are aggrieved, was made or taken in the exercise of the powers and function vested on it under the Act or its subsidiary legislation and that it is under the provisions of the Act that the right to challenge or question such a decision or other action by the 1st Respondent is vested on an aggrieved person, such as the Appellants. The Act then makes provisions for internal mechanism for dealing with and resolving any grievance that might arise against the decision or other action and then also provide for an opportunity to an aggrieved person to appeal to a Court of law for a judicial review of the final decision of the 1st Respondent at the conclusion of the internal procedure for the resolution of the grievance where he is not satisfied therewith.
I therefore agree with the learned counsel for the 1st and 5th Respondents where he said that the right to challenge or question any decision or other action by the 1st Respondent in exercise of the powers and functions under the Act, is not vested in an aggrieved person under or by virtue of the fundamental rights provisions of the Constitution, but by the provisions of the Act. That explains why the Appellants did not institute their action under the Enforcement of Fundamental Right Procedure Rules, but employed the general form of writ of summons to challenge the decision of the 1st Respondent on grounds of its failure to comply with some provisions of the Act.
In the case of Eguamwense v. Amaghizemwen (1993) 2 NWLR (pt. 315 1 at 23, Kabibi Whyte, JSC, speaking for this Court in the leading judgment had stated the law that:-
“It is accepted as correct principle of law that where a statute creates a special right to which a special remedy is attached, resort cannot be had to any remedy other than that provided for in the statute creating the right. As Lord Watson L., J., expressed it in Barraclough v. Brown (1987) AC at page 622.
“The right and the remedy are given uno flatu and the one cannot be dissociated from the other.”
See also Salako v. Alao (supra) Ajewole v. Adetimo (Supra).
Having chosen to exercise the right created by the Nigeria Communications Commission Act to challenge or question the decision of the 1st Respondent taken in exercise of the powers and functions under the Act on ground of alleged contravention of the provisions of the Act, the Appellants as aggrieved person/s, cannot dissociate and run away from the remedies provided for by the provisions of the Act or the procedure specifically set out for them. The Appellants cannot be seen to assert a right created by and under the Nigeria Communications Commission Act and at the same time, completely disregard the specific procedure prescribed by the Act for seeking remedy for the alleged breach or contravention of the right on ground of non-compliance with the requirements of the Act.
The law is now trite that where a person fails to adhere to the dictates of a statutory provision from which he seeks to benefit, non-compliance with the said statutory provisions will deprive him of the benefit he seeks to derive therefrom. See Afribank Nig. Plc. v. Akwara (2006) 1 SC (pl. II) 40, Khalil v. Yar’adua (2003) 16 NWLR (pt. 847) 446 at 488, Adesanoye v. Adewole (2006) 7 SC (pt. 111) 19 at 30-31.
In the interpretation of the word “may”, all the provisions of Sections 86 – 88 and the overall object they project in the context of the Act, would have to be considered and taken into account. In this regard, the law is settled, as stated by learned counsel for the Respondents that in the construction of the provisions of a statute, all the provisions dealing with the subject matter and the overall context, intendment or purport of the statute are to be considered together, holistically and not in isolation in order to identify the real intention of the legislature. Judicial authorities on this position of the law, galore and include the ones cited by learned counsel, supra.
Others are Lemboye v. Ogunsiji (1990) 6 NWLR (pt. 155) 210, Oyeyipo v. Oyinloye (1987) 2 SC, 148, Adisa v. Oyinwola (2000) 10NWLR (pt. 674) 116, Odutola Holdings v. Ladejobi (2006) 5 SC (pt. 1) 83, Ojukwu v. Obasanjo (2006) 2 EPR, 242, Enang v. Umoh (2012) LPELR-3386.
Madarikan, JSC, described the word “may” used in a statute in the case of Mokelu v. Fed. Comm. For Works & Housing (1976) 3 SC, 60, thus:-
”May” is an enabling or permissive word. In that sense, it imposes or gives a discretion any or enabling power. But where the object of the power is to effectuate a legal right, “may” has been construed as compulsory or as imposing an obligatory duty.”
In the provisions of Sections 86 (1) and 87 (1) by the Act, the word “may” is used by the legislature to effectuate or give effect to the right created and given to and for the benefit of an aggrieved person to challenge or question any decision or other action of the 1st Respondent in the exercise of the powers and functions under the Act.
An aggrieved person, by the provisions, who intends to exercise the right to challenge and question the decision or other action, has no other option or choice than to follow the procedure and take the steps prescribed in the provisions in seeking the remedy provided therein, of review of the decision with which he is aggrieved.
A calm reading of the provisions of Sections 86(1) and 87(1) of the Act would reveal that the only option open to an aggrieved person is to comply with the provisions if he decides to challenge or question the decision or other action of the 1st Respondent, at all. The only choice is to either challenge or question the decision or other action of the 1st Respondent or not, to let it be. If he chooses to not the challenge or question the decision even if aggrieved by it, that would be the end of the matter and the decision or other action remains unquestioned or unchallenged. On the other hand, as stated above, if he chooses the option of challenging or questioning the decision or other action, at all, then compliance with the provisions becomes obligatory, compulsory and unavoidable.
In these premises, the lower Court is right when it held, at page 31 of its judgment (page 225 of Record of Appeal) that:-
“In view of these provisions Section 86 – 88 of the Nigerian Commissions Act, I do not see how I can flow along the submissions of learned counsel for the Appellant that the word “may” used in Section 86 – 87 was deliberate on the part of the legislature so as to make administrative review optional. This is because all the three Sections 86 – 88 were intended to be read together and not isolated one front the other thereby choosing what Section to utilize solely to the exclusion of the others. I say this in the light of the fact that the Sections are intertwined and one cannot go without taking cognizance of the others. This is all the more so will the authoritative Section 88(3) which had stated in clear terms that an aggrieved person has no business approaching the Court without exhausting all the other remedies provided by the Act. It therefore becomes quite unsettling to understand front what angle the Appellant is posturing in interpreting “may” in this regard to be taken as optional whereas in the statute it was and is intended to be mandatory. See Edewor v. Uwegba (1987) 1 NWLR (pt. 50) 313; Adesola v. Abidoye (1999) 44 NWLR (pt. 637) 28 at 56.”
It may be remembered that it is not in dispute that the Appellants here did not comply with the procedure provided for in Sections 86 and 87 for the resolution of the grievance they have/had with the decision by the 1st Respondent taken in exercise of the powers and functions under the Nigerian Communication Commission Act to determine inter-connection rates, on fixed and mobile communications services offered by telecommunications operators licenced by the 1st Respondent. As seen, the provision of Section 88(3) of the Act, prescribes that compliance with the procedure and steps set out in Sections 86 and 87, is a condition precedent to be satisfied and fulfilled before resort can be had to a legal action by way of application for judicial review. As demonstrated in the judicial authorities cited earlier on the point, failure to satisfy or fulfil a statutory condition of or to an action in Court, renders any such action taken or initiated incompetent thereby depriving the Court of the requisite jurisdiction to entertain and adjudicate over the action since one of the essential requirements for the assumption of jurisdiction, has not been met.
The lower Court is right to have affirmed the decision by the trial Court that the Appellants’ action for failure to satisfy the statutory condition precedent provided in Section 88(3) of the Nigerian Communication Commission Act, before the institution of a legal action in Court to challenge or question the decision or other decision of the 1st Respondent is incompetent.
I resolve the issue against the Appellants for the aforenamed reasons.
The resolution of the above issue has effectively and completely subsumed the other issues raised in the appeal and the need to consider them abates in this Court. In the absence of the requisite jurisdiction to entertain the Appellant’s action on the part of the trial Court on ground of incompetence of the action, there are in law, no valid proceedings from which the other issues could be considered. In particular, the issues of breach of the right to fair hearing and denial of access to the Courts have become non sequitur.
In the final result, for being bereft of merit, the appeal deserves to be and is hereby dismissed.
There shall be costs assessed at N1,000,000.00 (One Million Naira) in favour of each set of the Respondents to be paid by the Appellants for the prosecution of the appeal.
SC.142/2007
