National Electric Power Authority V. Mr. Jerry Chun Bot & Ors (2007)
LawGlobal-Hub Lead Judgment Report
BELGORE, J.C.A.
On the 24th day of October, 1992, Mr. Musa Bot (now deceased) had reported fault of power failure to the defendant’s Services Centre Nassarawa/Gwong Jos. (The report was recorded on sheet No. 156405). Two staff members of the defendant, namely, Messrs Hammidu Muhammed and Sunday Tsok, were detailed to go and rectify the fault. The duo went to the premises and worked on the electric pole supplying power to the residence of Mr. Musa Bot and his family. After ensuring that there was power supply to the house in question, the two officers left the premises. It was soon thereafter that Mrs. Esther Musa Bot, the wife of Mr. Musa Bot, went to spread her laundered clothes on a wire line in order to dry the clothes. She had electric shock and was electrocuted. Her husband, Mr. Musa Bot who went to her rescue was equally electrocuted. It was discovered that there was a naked/uncellotaped wire from the electric pole resting on the roofing zinc of the deceased persons’ house and one end of the wire used for spreading the clothes was tied to a nail that held the zinc in place. The uncellotaped wire touching the zinc was the one coming from the same electric pole on which the agents of the defendant had worked earlier on. The incident was reported to NEPA (the defendant) who came and disconnected the offending wire from the pole. The deceased couple left behind three children, namely (1) Tsok Musa Bot; (2) Lawrence Musa Bot; and (3) Dafom Musa Bot. Each of them was a minor as at 24th October, 1992 when their parents were electrocuted. The three children are the 2nd, 3rd and 4th respondents herein respectively. A line of correspondence opened between Mr. Jerry Chun Bot, the 1st respondent herein and younger brother to the late Mr. Musa Bot, who was claiming compensation on behalf of the 2nd, 3rd and 4th respondents respectively, and the National Electric Power Authority, the appellant herein. When the 1st respondent discovered that the correspondence was taking too much time, he headed to the High Court of Justice Plateau State and took out a writ of summons in representative capacity. In the action, the 1st respondent was claiming for compensation under Fatal Accident Law, Laws of Northern Nigeria, 1963 applicable in Plateau State. The claim against the appellant is for vicarious liability for the negligence and/or failure of statutory duty of care of its servants.
Pleading were filed and exchanged. Parties later amended their respective pleadings. Altogether, the respondents were claiming funeral expenses at N30, 000.00 in respect of each of the deceased couple, they also claimed N12, 000,000.00 (Twelve Million Naira) under the Fatal Accident Law. The appellant, while admitting that its servants worked on the electric pole supplying power to the residence of the deceased couple, denied any liability. Apart from the general denial, it also placed reliance on sections 12(2) and 27(1) of the National Electric Power Authority Act, Cap. 256, Laws of the Federation of Nigeria, 1990 in claiming immunity from court actions. Eight witnesses testified for the respondents who were the plaintiffs at the court below while two witnesses testified for the appellant who was the defendant. The parties thereafter filed and exchanged written addresses.
In a considered judgment delivered on the 25th day of October, 2001, the learned trial Judge Hon. L.C. Dakyen, J., (as he then was), found for the respondents in respect of the electrocution of Mrs. Esther Musa Bot and awarded the sum of N30,000.00 on funeral expenses and the sum of N12 Million under the Fatal Accident Law.
The court below did not pronounce on the defence of immunity, based on sections 12(2) and 27(1) of the National Electric Power Authority Act, Cap. 256, Law of the Federation of Nigeria, 1990, as pleaded by the appellant. He dismissed the claim in respect of Mr. Musa Bot, holding that the deceased had committed suicide.
Being dissatisfied by the decision of the court below, the appellant filed a notice of appeal with eight (8) grounds of appeal on the 19th day of November, 2001. The grounds of appeal shorn of their particulars are reproduced hereunder: –
Grounds of Appeal:
(1) The trial court lacked the jurisdiction to entertain this case against the appellant, a Federal Government Agency having regard to the provisions of section 230 of Decree No. 107 of 1993.
(2) The learned trial Judge erred on the facts when he held:
“Now before going into the analysis of the issues I wish to point out here at the onset that the contradictions in the evidence of PW 1 and PW4 enumerated above by the defence counsel are in my view not substantial that will discredit their evidence. It must be noted that this is a 1992 event/incidence and that alleged contradictions relate to trial matters such as to the time the witnesses where in the premises and the name of the village whether Fudawa or Bauchi Ring Road and the number of NEPA staff that came to carry on the repairs that day etc. I therefore hold that the evidence of PW 1 and PW4 are not affected by the said contradictions. I have observed them in the witness box and found them to be witnesses of truth and give probative values to their testimonies.”
And this error occasioned a miscarriage of justice.
(2) The learned trial Judge erred on the facts when he held:
“The only issue in dispute is whether the servants were right in the performance of the duties left out naked wires which in turn led to the contact leakage between the zinc and or roof of the house and the wire which the deceased wife went to spread her clothes. I have examined the evidence of the plaintiffs witnesses most especially that of PW’s (1) and (4) who were the eye witnesses and couple with the evidence of DW2 Hamidu Mohammed who stated thus’ … when we went back, we found a joint under the roof of the house. The joint caused the incident”. Also exhibit 15 from the defendant’s staff and office corroborated this piece of evidence … I hold that they have proved their case on the preponderance of evidence by the testimonies of PW4, PW1 and DW2 and exhibit 15. It is crystal clear to me that the NEPA officials did come and worked at the deceased’s house and negligently as I would describe it left an uncellotaped naked wire which resulted to the death of Esther Musa Bot. PW1 who was an eyewitness testified that the deceased died after NEPA officials had come and gone, thus complimenting the evidence of PW1, PW4 and DW1. The defendant by their agents were negligent and are in breach of their statutory duties to take care as held in the case of Iyere v. B.F.F.M. Ltd. (2001) 7 NWLR (Pt. 711) 76: (2001) FWLR (Pt. 37) 1166 at 1168 where it was held that negligence in civil matters occurs in the form of a breach of duty to take care. I therefore hold that the defendants are negligent in the way they carried out their duties and are thereby in breach of their statutory duty.”
And this error occasioned a miscarriage of justice.
(3) The learned trial Judge erred in law when he held:
“I have it on evidence adduced before me that the relations of the deceased expended money in the burial of late Esther Musa Bot and her husband Musa respectively. Having examined the provisions of section 7(3) of the Fatal Accident Laws which gives the court the discretion to award damages to cover funeral expenses, I hold that the plaintiffs are so entitled to it in respect of Esther Bot. I therefore award the sum of N30, 000.00 only being cost of funeral expenses as special damages.”
And this error occasioned a miscarriage of justice.
(4) The learned trial Judge erred in law when he held:
“On the sum of N12 million being general damages pursuant to the provisions of the Fatal Accident Law i.e. section 7(1)(a) in respect of the deceased persons, I will use my discretion to take it that the general damages as a result of the death of Esther Musa Bot is N6 million having already held that the defendant is not liable for the death of Musa Bot … In the whole 1 assess general damages in the sum of N2 million only.”
And this error occasioned a miscarriage of justice.
(5) The learned trial Judge erred in law when he held:
“On the whole I therefore hold that the defendant is liable and a total award of N2,030,000.00 as special and general damages is awarded in favour of the plaintiffs against the defendant for the death of late Esther Musa Bot.”
And this error occasioned a miscarriage of justice.
(6) The learned trial Judge erred in law when he failed to determine the third issue raised by the defendant as regards is immunity from liability.
(7) The learned trial Judge erred in law in entering judgment against NEPA which is immuned from liability from the damages alleged by the respondents by the provisions of section (12)(2) and section 27(1) of the National Electric Power Authority Act, Cap 256, Laws of the Federation of Nigeria, 1990.
(8) The judgment is against the weight of evidence.
The respondents were also dissatisfied by dismissal of their claim in respect of Mr. Musa Bot. They have filed a cross-appeal with a notice of appeal containing four (4) grounds of appeal which, also shorn of their particulars, are reproduced hereunder: Grounds of Appeal: –
Ground One
The decision of the lower court dismissing the plaintiffs’ claims/damages against the defendant in respect of (Mr. Musa Bot) is unreasonable and unwarranted having regards to the weight of evidence before it.
Ground Two
The learned trial Judge erred in law by dismissing the plaintiffs’ claims on the electrocution to death of (Mr. Musa Bot) when there is ample evidence of proof of the plaintiffs’ claims and negligence of the defendant’s agents and servants which occasioned a miscarriage of justice.
Ground Three
The learned trial Judge erred in law and misdirected himself on the finding of fact which occasioned a miscarriage of justice when he erroneously held that: –
“It is the case of the defendant that the late Musa Bot committed suicide by grabbing his wife when he saw that she has been electrocuted” and “that the deceased Musa Bot out of emotion and without any restrained or taking precaution grabbed his wife who has already been electrocuted and in the process died along with her. The defendant cannot in anyway be held liable for his death which is due to his negligence and lack of caution.”
Ground Four
The learned trial Judge erred in law by dismissing the claims, and reliefs of damages of the plaintiffs under the Fatal Accident Law on the electrocution to death of (Mr. Musa Bot) which occasioned a miscarriage of justice.
Appellant’s brief and later appellant’s reply brief and cross-respondents’ brief were filed for the appellant. For the respondents, respondents/cross-appellants’ brief of argument and later, respondents/cross-appellants’ reply brief of argument were filed.
In his brief of argument, learned counsel for the appellant formulated 5 issues for determination, namely: –
(1) Whether the learned trial Judge was right when he held that the contradictions in the evidence of PW1 and PW4 are not substantial to discredit their evidence? (ground two)
(2) Whether the learned trial Judge was right to have found the appellant negligent and liable for the electrocution of late Mrs. Esther Musa Bot? (ground three)
(3) Whether the respondents made out a case to be entitled to N2, 030,000.00? (ground four, five, six and nine).
(4) Whether the learned trial Judge failed in his duty when he omitted to decide the issue of the appellant’s immunity? (ground seven).
(5) Whether the appellant is immuned from liability regarding the damages alleged by the respondents? (ground eight).
Learned counsel for the respondents, on the other hand, identified 5 issues for determination, and they are: –
(1) Whether the learned trial Judge was right when he held that the contradictions in the evidence of PW1 and PW 4 are not substantial to discredit their evidence? (ground two)
(2) Whether the learned trial Judge was right to have found the appellant negligent and liable for the electrocution of late Mrs. Esther Musa Bot? (ground three)
(3) Whether the respondents made out a case to be entitled to N2, 030,000.00? (ground 4,5,6 and 9).
(4) Whether the learned trial Judge failed in his duty when he omitted to decide the issue of the appellant’s immunity? (ground 7).
(5) Whether the appellant is immuned from liability regarding the damages alleged by the respondents? (ground 8).
When the appeal came up for hearing, the court observed that the issue of the jurisdiction of the lower court as raised in ground 1 of the appellant’s notice of appeal has not been made an issue in the briefs and not argued by either of the parties. The court then invited learned counsel on both sides to address it on the issue of jurisdiction and as to the constitutionality of sections 12(2) and 27(1) of the National Electric Power Authority Act, Cap. 256, Laws of the Federation of Nigeria, 1990.
On the issue of jurisdiction, Charles Obishai, Esq., learned counsel for the appellant, submitted that the Plateau State High Court lacked jurisdiction to entertain this suit. He submitted that the cause of action arose on the 23rd day of March, 1992 and that the action was not instituted until the 29th day of September, 1995 while the Federal Government promulgated the Constitution (Suspension and Modification) Decree No. 107 in 1993. Learned counsel submitted that by the provisions of section 230(1) of the Decree, this action ought to have been instituted before the Federal High Court, because the appellant is a Federal Government Agency. He submitted that the law applicable to a cause of action is the law in force at the time the cause of action arose and that the law on jurisdiction of the court is the law at the time of the institution of the action. He relied on Olutola v. University of Ilorin (2004) 18 NWLR (Pt. 905) 416, 464, 465; Adah v. NYSC (2004) 13 NWLR (Pt. 891) 639, 650-651. He urged the court to hold that the Plateau State High Court lacks jurisdiction to entertain this action.
In response, A. A. Ibrahim, Esq., learned counsel for the respondents, submitted that the action was commenced under Fatal Accident Law, Cap. 43. Vol. II, Law of Northern Nigeria, 1963 which is a specific law relating to compensation of persons or families of persons killed in accidents. He submitted further that by paragraph 3 of the amended statement of claim, the claim was for negligent act of the appellant’s servants or agents as a result of the electrocution of Mr. and Mrs. Musa Bot on the 24th day of October, 1992. He submitted that section 9 of the Fatal Accidents Law confers jurisdiction on State High Courts. He finally submitted that the proviso to section 230(1) of Decree No. 107, 1993 saves this action and it can be invoked where there is a relevant enactment, law or equity authorizing an action for damages, injunction or specific performance.
Section 230(1)(q), (r) and (s) Decree No. 107, 1993 provides as follows:-
“Section 230(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters arising from –
(q) the administration or the management and control of the Federal Government or any of its agencies;
(r) Subject to the provisions of the Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies; and
(s) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies: Provided that nothing in the provisions of paragraphs (q), (r) and (s) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages injunction or specific performance where the action is based on any enactment, law or equity.”
From the various submissions of learned counsel on both sides, it is apparent that learned counsel for the respondent is seeking refuge under the proviso to section 230(1) of the Decree. This proviso has been interpreted in a number of cases. See Adebileje v. NEPA (1998) 12 NWLR (Pt. 577) 219: N.D.I.C. v. F.M.B.N. (1997) 2 NWLR (Pt. 490) 735: F.M.B.N. v. N.D.I.C. (1999) 2 NWLR (P. 591) 333: University of Abuja v. Prof. Ologe (1996) 4 NWLR (Pt. 445) 706: Ayeni v. University of Ilorin (2000) 2 NWLR (Pt. 644) 290: and NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) 79, and a lot more.
The decision of the Supreme Court in NEPA in Edegbero (supra) has put PAID to the interpretation to be placed on paragraphs (q), (r), (s) and the proviso to those paragraphs of section 230 (1) of the Decree No. 107, 1993. The Supreme Court, per Ogundare, JSC, unequivocally stated the intention of the lawmakers in providing paragraphs (q), (r) and (s) of subsection (1) of section no of the Constitution (Suspension and Modification) Decree No. 107. 1993 and the proviso thereto. The intention was to take away from the jurisdiction of the State High Court and confer same exclusively on the Federal High Court actions in which the Federal Government or any of its agencies is a party. Let’s hear His Lordship at page 95 –
It is not in dispute that the defendant – NEPA- is a Federal Government Agency … It is also not disputed that the cause of action in this matter arose out of the administrative action or decision of the defendant. The action is for a declaration and an injunction and the principal purpose of it is to nullify the decision of the defendant terminating the appointments of the plaintiffs and others. In the light of all these, therefore, the action on hand came squarely within the provision of section 230(1)(s) of the 1979 Constitution. It would appear on the surface, therefore, that the action would be one within the exclusive jurisdiction of the Federal High Court. I have myself read the proviso to paragraphs (q), (r) and (s) of sub-section (1) of section 230 all over again, I can find no such exception in it that would lead me to find to the contrary. A careful reading of paragraphs (q), (r) and (s) reveals that the intention of the lawmakers was to take away from the jurisdiction of the State High Court and confer same exclusively on the Federal High Court actions in which the Federal Government or any of its agencies is a party. While paragraph (s) talked of actions for declaration or injunction, the proviso extended this to actions for damages, injunction or specific performance. It did not say as the learned trial Judge with profound respect, appear to read into it that action for damages, injunction or specific performance against the Federal Government or any of its agencies could still come before a State High Court.”
As at today, that is the position of the law in Nigeria and all courts are bound to follow it without exception.Coming to the instant case, the proviso does not provide succour to the respondents as can be seen from the dictum of Ogundare. JSC, quoted hereabove. I, therefore, need not belabour the issue. I hold that the Plateau State High Court lacked jurisdiction to hear and determine this action in suit No. PLD/J/637/95 between –
- MR. JERRY CHUN BOT
(Suing for and on behalf and benefit of the 2nd, 3rd and 4th plaintiffs)
- TSOK MUSA BOT
- LAWRENCE MUSA BOT
- DAFOM MUSA BOT AND
NATIONAL ELECTRIC POWER AUTHORITY… Defendants
Only the Federal High Court has the exclusive jurisdiction on the matter. This is so because although the cause of action arose on the 24th day of March, 1992, the action was not commenced until 1995 after coming into force the Decree No. 107 of 1993.
In the light of the foregoing, there will be no need to proceed to the consideration of the issues in this appeal.
The appeal succeeds and the proceedings before the Plateau State High Court as stated hereinto fore being a nullity are hereby struck out.
I award no cost in this case.
Other Citations: (2007)LCN/2322(CA)
