Blue-chip Communications Company V. Nigerian Communications Commission (2008)

LawGlobal-Hub Lead Judgment Report

OYEBISI F. OMOLEYE, J.C.A.

This is an appeal against the ruling of S. J. Adah J. of the Federal High Court sitting in Abuja. The said ruling was delivered on 31/3/04 striking out the Appellant’s originating summons for incompetence.

The brief background facts of this case are that on 16/10/03 the Appellant through its solicitors applied to the Respondent amongst others, for a third generation spectrum mobile telecommunications license. The Respondent refused to grant the said license on the grounds that there were some prevailing regulatory and legal limitations being encountered by the Respondent at that time. This was communicated to the Appellant in the reply of the Respondent dated 28/10/03. Aggrieved by the reply the Appellant instituted an action as plaintiff at the Federation High Court, Abuja seeking declaratory and injunctive reliefs against the Respondent as defendant.

In the Appellant’s originating summons, it sought for the direction of and determination by the trial Court of some questions and the grant of some declaratory reliefs. For ease of reference and convenience, I hereunder verbatim reproduce these as follows:

”1.Whether having regard to the NCC Act, 2003 the defendant was justified to refuse the plaintiff’s application for a third Generation (3 – G) Spectrum Mobile License solely on the ground that the defendant has previously granted the GSM operators a 5-year exclusivity on mobile services in Nigeria.

2. Whether having regard to the NCC Act 2003, the defendant can not issue any other mobile license in Nigeria for available spectrum until the expiration of the alleged 5-year exclusivity on mobile service purportedly granted the GSM operators by the defendant.
3. Whether having regard to the digital mobile licenses of the GSM operators, the defendant actually granted the GSM operators a 5-year exclusivity in mobile service in Nigeria and if the answer is in the affirmative, whether the defendant is indeed authorized by the NCC Act, 2003 to issue mobile spectrum licenses with conditions and/or terms capable of undermining technological innovation and substantially lessening competition in the telecommunications market.
4. Whether having regard to the NCC Act, 2003, the defendant has the statutory power to undermine competition in the telecommunications sector by granting to GSM operators a 5-year exclusivity on mobile service in Nigeria.
5. Whether having regard to the provisions of the NCC Act 2003 particularly Section 4(1)(a) (b) (d) & (e), 4(2) and Sections 90 – 95, the defendant can grant licenses exclusively to a particular group of licensees capable of foreclosing entry by other operators into the Nigerian Telecommunications Market and whether such conduct/act is anti-competitive in the telecommunications market.
6. Whether taking the NCC Act holistically, the defendant can by its regulations make rules, regulations, guidelines and/or enter into agreements with third-parties which undermine the policy thrust of the NCC Act 2003 as envisioned by Section 1(a-i) to wit: the provision of telecommunication services everywhere in Nigeria at a cheap, easily affordable and competitive price. If the answer is in the negative, whether the defendants grant of a five (5) year exclusivity to GSM operators is not in conflict with this policy.
7. Whether having regard to Section 12 of the NCC Act 1992 which is preserved by virtue of Section 151(1) of the NCC Act 2003, the defendant has the power to confer such right of exclusivity on the GSM operators.

The Plaintiff seeks the following reliefs:

(i) A declaration that having regard to the NCC Act, 2003, the defendant was not justified to refuse the plaintiff’s application for a third Generation (3-G) Spectrum Mobile License solely on the ground that the defendant has previously granted to the GSM operators a 5- year exclusivity on mobile service in Nigeria.

(ii) A declaration that having regard to the NCC Act, 2003, the defendant can issue additional mobile license in Nigeria for available spectrum during the currency of the alleged 5-year exclusivity on mobile service purportedly granted to the GSM operators by the defendant.

(iii) A declaration that having regard to the digital mobile licenses of the GSM operators, the defendant did not actually grant the GSM operators a 5-year exclusivity in mobile service in Nigeria. In the alternative, a declaration that contrary to the defendant’s erroneous assertion, it never in fact granted to the’ GSM operators a 5-year exclusivity that would bar entry into the 3-G mobile telecommunications market.

(iv) A declaration that the defendant is not empowered by the NCC Act, 2003 to include conditions and/or terms in mobile spectrum licenses capable of undermining technological innovation and substantially lessening competition in the telecommunications market.

(v) A declaration that having regard to the NCC Act, 2003, the defendant has no statutory power to undermine competition in the telecommunications sector by granting to GSM operators a 5-year exclusivity on mobile service in Nigeria.

(vi) A declaration that having regard to the provisions of NCC Act, 2003, particularly Section 4(1) (a), (b), (d) & (e), 4(2) and Sections 90 – 95, the defendant cannot grant licenses exclusively to a particular group of licensees capable of foreclosing entry by other operators into other aspects of the Nigerian Telecommunications Market.

(vii) A declaration that taking the NCC Act holistically the defendant cannot by its regulations make rules, regulations, guidelines and for enter into agreements which undermine the policy thrust of the NCC act 2003 as envisioned by Section 1(a-1) to wit: the provisions of telecommunication services everywhere in Nigeria at a cheap, easily affordable and competitive price and a further declaration the defendant’s purported grant of a five (5) year exclusivity license to GSM operators is in conflict with the policy thrust of the NCC Act 2003.

(viii) A further declaration that having regard to Section 12 of the NCC Act 1992 as preserved by Section 151(1) of the NCC Act, 2003, the defendant has no power to confer such right of exclusivity on the GSM operators.

(ix) A declaration that the defendant was wrong in refusing the plaintiff’s request for the application form relating to 3-G Spectrum License based on the purported grant of a five (5) year exclusivity license to GSM mobile service operators.

(x) An order of this Honourable Court quashing the purported 5 year exclusivity term/condition of the license, if any, granted to the GSM operators by the defendant.

(xi) An order of this Honourable Court for a perpetual injunction restraining the defendant from further refusing the plaintiff’s application for a 3-G Spectrum License based on whimsical and capricious considerations that are not premised on the NCC Act, 2003.

(xii) An order of this Honourable Court mandating the defendant to comply with its published license procedures by delivering to the plaintiff all relevant application forms for a 3-G telecommunications license.

(xiii) An order of this Honourable Court granting the reliefs as the Court deems fit in the circumstance including counsel fees and court costs.”

The Respondent after being served with the originating processes, filed a preliminary objection challenging the competence of the action and consequently the jurisdiction of the lower court to adjudicate thereupon. The ground of the objection is that the Appellant Failed to comply with the mandatory pre-action conditions specified in Sections 86, 87 and 88 of the Nigerian Communications Act, 2003. After hearing the arguments of both parties, the lower Court in its ruling delivered on 31/3/04 upheld the Respondent’s objection and struck out the Appellant’s originating summons as being premature and incompetent.

Dissatisfied with the ruling, the Appellant filed this appeal to this Court vide its notice of appeal dated 15/4/04 and filed the same date.

The notice of appeal contains nine grounds of appeal. For ease of reference, the nine grounds of appeal with their particulars are reproduced verbatim hereunder thus:

“GROUND I- ERROR IN LAW.

The learned trial Judge erred in law when in relation to Sections 86, 87 and 88 the Nigerian Communications Act, 2003, he held “These provisions under reference with all respect are not ouster clauses, aimed at shutting an aggrieved party from Court. Rather they are meant to regulate the access of an aggrieved party to Court. In essence they cannot be seen or said to block the access of an aggrieved party to the Court.”

PARTICULARS

i. The requirements of Section 86, 87 and 88 of the Nigerian Communications Act, 2003, constitute an unreasonable infringement on the exercise of judicial power by the court.

ii. The requirements of Sections 86, 87 and 88 of the Nigerian Communications Act, 2003, amount to an abridgment of the citizens’ right of access to the courts.

GROUND II – ERROR IN LAW

The learned trial Judge erred in law when in relation to Sections 86, 87 and 88 of the Nigerian Communications Act, 2003, he held that “These provisions have been made Pre-action conditions and they must be exhausted before a party aggrieved can come to Court as dictated by Section 88(4) of the Act”.

PARTICULARS

i. Section 88(4) of the Nigerian Communications Act, 2003, is not a functional equivalent of pre-action notice(s) and is therefore unconstitutional because it has the capacity to deny a citizen access to court.

ii. Sections 86, 87 and 88 of the Nigerian Communications Act, 2003, constitute an infringement on the inherent Jurisdiction of the superior courts as preserved by Section 6(6)(a) of the 1999 Constitution.

GROUND III – ERROR IN LAW

The learned trial Judge misdirected himself in law when he held that “In the instant case the three Sections (86, 87 and 88) are not with the aim of halting the aggrieved person in his desire to pursue his constitutional right of access to Court. The regulation embedded in Section 86, 87 and 88 of the Nigerian Communications Act 2003 are from my understanding of the law not meant to subvert the right of access to Court. They are constitutional and they must be complied with before a person can come to Court to review the decision of the Commission.”

PARTICULARS

i. Any statutory provision that is inconsistent with the provisions of the 1999 Constitution of Nigeria is unconstitutional.

ii. Sections 86, 87, and 88 of the Nigerian Communications Act, 2003, as construed by the learned trial Judge are inconsistent with Section 6(6)(b) of the 1999 Constitution of Nigeria.

GROUND IV – MISDIRECTION IN LAW

The learned trial Judge erred in law by prejudging the substantive action at the interlocutory stage of the proceedings when he interpreted Sections 86, 87 and 88 of the Nigerian Communications Act, 2003, even though the Plaintiff’s substantive suit had presented the entire Nigerian Communications Act, 2003 for interpretation.

PARTICULARS

i. By virtue of questions 1-6 of the Plaintiff/Respondent’s Originating Summons and reliefs i, ii, iv, v, vii and xi thereof, the Plaintiff/Respondent had presented the entire Nigerian Communications Act, 2003 for determination by the Court.

ii. A substantive action ought not to be Judged at the interlocutory stage of a proceeding.

GROUND V – MISDIRECTION IN LAW

The learned trial Judge misdirected himself in law when he held “it is therefore very clear as Mr. Usoro, SAN, pointed out that the construction of these Sections are not part of the substantive case so the issue of the Court dabbling into the substantive case by considering those provisions would not arise.”

PARTICULARS

i. By virtue of questions 1-6 of the Plaintiff/Respondent’s Originating Summons and reliefs i, ii; iv, v, vii and xi thereof, the Plaintiff/Respondent had presented the entire Nigerian Communications Act, 2003 for determination by the Court.

ii. ii. A substantive action ought not to be Judged at the interlocutory stage of a proceeding.

GROUND VI- MISDIRECTION IN LAW

The learned trial Judge erred in law when he faded to hold that the procedure provided under Sections 86, 87 and 88 of the Nigerian Communication Act, 2003 are not mandatory as they merely provide an aggrieved person with the option and not he obligation of seeking prior administrative review.

PARTICULARS

The consistent use of “may” in Sections 86, 87 and 88 of the Nigerian Communications Act, 2003, makes compliance with the Sections optional and not obligatory.

ii. By not exploring the review process under Sections 86, 87 and 88 of the Nigerian Communications Act, 2003, the Plaintiff has indeed exercised its option of not seeking administrative review pursuant to Sections 86, 87 and 88 of the Nigerian Communications Act, 2003, and has therefore exhausted the relevant remedies under Section 88(4) of the Nigerian Communications Act, 2003.

GROUND VII – MISDIRECTION IN LAW

The learned trial Judge erred in law by falling to hold that Section 88 of the Nigerian Communications Act, 2003 is limited to judicial applications for Judicial Review and not an Originating Summons proceeding.

PARTICULARS

i. The legislative intent as gleaned from the clear and unambiguous provisions of Section 88 of the Nigerian Communications Act, 2003, has limited the provision to applications for judicial review.

ii. An Originating Summons is a special procedure that is not envisaged under Section 88 of the Nigerian Communications Act, 2003.

GROUND VIII – MISDIRECTION IN LAW

The learned trial Judge erred in law when he failed to narrowly construe the provisions of Section 86, 87 and 88 of the Nigerian Communications Act, 2003, which affect a person’s right of access to court.

PARTICULARS

i. Because the aforesaid statutory provisions employ ”may” the learned trial Judge ought to have construed ”may” as optional.

GROUND IX – MISDIRECTION IN LAW

The learned trial Judge erred in law by holding that the Respondent’s decision on the Appellant’s application for a third-generation mobile license as contained in the Respondent’s letter dated Thursday, October 28, 2003, contained the reasons for its decisions thus rendering an administrative review process futile and indeed, unnecessary under the circumstances.”

The Appellant’s counsel in the Appellant’s brief of argument dated and fried on 26/7/04 distilled four issues from the said nine grounds of appeal for the determination of the appeal. The four issues read thus:

”1. Whether The Lower Court was right in holding that Sections 86, 87 and 88 of the Nigerian Communications Act 2003, impose an Obligation upon the Appellant to request a Statement of Reasons and / or Review from the Respondent before instituting the substantive Suit and if so, whether this requirement is not invalid by virtue of its inconsistency with Sections 6(6)(b) and 36(1) of the Constitution which guarantee the Appellant a Right to fair hearing in invoking the judicial powers of the lower Court.

2. Whether the learned trial Judge was right in prejudging the substantive suit by isolating and interpreting at the interlocutory stage, Sections 86, 87, and 88 of the Nigerian Communications Act 2003, even though the Appellant presented the entire Nigerian Communications Act, 2003, for the lower Court’s interpretation with respect to the validity of the Respondent’s refusal, to process the Appellant’s Application for a 3-G Mobile Telecommunications License.
3. Whether the learned trial Judge was right in not holding that Section 88 of the Nigerian Communications Act, 2003, does not apply to the Appellant’s Originating Summons as it is limited to Applications for judicial review,
4. Whether the learned trial Judge was right in not holding that the Respondent’s decision on the Appellant’s Application for a Third Generation Mobile License, contained the reasons for the sold decision thereby rendering administrative review futile and unnecessary.”

It is important to state at this juncture that the Appellant upon being served with the Respondent’s brief of argument, filed the Appellant’s Reply brief dated 5/3/07 and deemed filed on 20/11/07.

The Respondent’s brief of argument dated 10/2/05 was deemed filed on 14/2/05. In it, the learned senior counsel for Respondent formulated five issues for the determination of the appeal. The five issues are as follows:

“1. Was the Appellant, as an “aggrieved person” pursuant to Sections 86, 87 and 88 Nigerian Communications Act, mandatory required to comply with the administrative processes stipulated in the sold Sections of the Act as a pre-action condition for the institution of this Suit?

And as a corollary thereto, are the provisions of the said Sections 86, 87 and 88 in conflict howsoever with the provisions of Sections 6(6) and 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (“1999 Constitution”).

2. In deciding upon Respondent’s Preliminary Objection, did the lower court howsoever determine the substantive matter at the interlocutory stage? By extension or framed differently, were Sections 86, 87 and 88 of the Act howsoever in issue in the Appellant’s substantive action?
3. Does the Appellant’s substantive action in the Court below qualify as or amount to an “appeal to the Court for a judicial review of the Commission’s decision or other action” pursuant to and in the con of Section 88 of the Nigerian Communications Act?
4. Can the issue of whether or not, in the con of the Commission’s letter of October 28, 2003 to the Appellant, it was pointless or superfluous the Appellant having to comply with the provisions of Sections 86, 87 and 88 of the Act, not having been raised at the lower Court, be raised for the first time JUSTICES at the Court of Appeal?
5. In the alternative to Issue IV, did the Commission’s letter of October 28, 2003 to the Appellant remove the mandatory and statutory obligation on the Appellant to comply with the pre-action conditions specified in Sections 86, 87 and 88 of the Nigerian Communications Act?

This appeal was heard on 28/11/07. On that date, Hon. Tony Anyanwu learned counsel for the Appellant adopted and relied on the Appellant’s brief of argument filed on 26/7/04 and the Appellant’s Reply brief of argument deemed filed on 20/11/07. He urged this Court to allow the appeal and reverse the ruling of the lower Court.

Mr. E. Inegedu is from the chambers of the lead learned senior counsel, Mr. Paul Usoro SAN who prepared the brief of argument for the Respondent. He adopted and relied on the Respondent’s brief of argument deemed filed on 14/2/05. He urged this Court to dismiss the appeal and affirm the ruling of the lower Court.

Whether The Lower Court was right in holding that Sections 86, 87 and 88 of the Nigerian Communications Act 2003, impose an obligation upon the Appellant to request a Statement of Reasons and / or Review from the Respondent before instituting the substantive Suit and if so, whether this requirement is not invalid by virtue of its inconsistency, with Sections 6(6)(b) and 36(1) of the Constitution which guarantee the Appellant a Right to fair hearing in invoking the judicial powers of the lower Court.”

Learned counsel for the Appellant submitted that the lower Court was wrong in holding that Sections 86 through 88 of the Nigerian Communications Act, 2003 (hereinafter referred to as the Act) imposed an obligation on the Appellant to first exhaust all administrative remedies under the Act before instituting Its action. Accordingly, the lower Court’s ruling declaring the Appellant’s action incompetent for the simply reason that the Appellant exercised its option of not requesting a statement of reasons from the Respondent who emphatically had refused to process the Appellant’s application for a 3- G mobile license on the ground that it had granted exclusive rights to the GSM operators was wrong.

The substance of the Appellant’s action was to invalidate the Respondent’s action on the ground that it lacked validity under the Act as the Respondent had a statutory responsibility to process license applications.

He submitted further that the word ”may” especially as employed in Sections 86, 87 and 88 of the Act is optional, leaving the Appellant with a choice to either apply for administrative review or to institute an action against the Respondent in a court of law. The word ”may” is merely directory and not compulsory. At best, it confers a discretionary power or duty. On the meaning of the word “may” reference was made to the cases of:

(1) Ohanaka Vs. Achgwo (1998) 9 NWLR (Pt. 564) p. 37:

(2) Emokpae Vs. University of Benin (2002) 17 NWLR (Pt 795) p.139 and

(3) A. – G., Fed. Vs. A. -G., Abia (2001) 11 NWLR (Pt. 725) p. 689.

Therefore the Appellant is not obligated to request a statement of reasons from the Respondent before commencing the substantive action to determine whether the Respondent had justification for refusing to process the Appellant’s application for a mobile license.

Similarly the Appellant was not required to seek a review of the Respondent’s refusal before proceeding to court; on the contrary, the Appellant was justified to overlook this, as it did.

It is after an aggrieved party has exercised the option of requesting a statement of the Commission’s reasons for its decision that the Commission is mandated to provide a copy of a statement of reasons for the decision pursuant to Section 86(2) of the Act which made use of the word ”SHALL”. However, the use of the word “may” in Section 86(1) and the word “SHALL” in Section 86(2) is not fortuitous but a deliberate and calculated act by the legislature to indicate that the provisions of Section 86(1) is optional while Section,” 86(2) is mandatory. The implication is that even though an aggrieved person has the option of requesting a statement of reasons and may indeed overlook that option, nevertheless, once he has requested the same, the Commission, has a responsibility to provide him with a statement of reasons, although the Act is silent on the period of time within which the Commission must provide the statement.

It was contended for the Appellant that Section 87(1) of the Act employed the word “may” to indicate that it is optional for an aggrieved person to request a review of the Commission’s decision once such a request was made within the stipulated period. An aggrieved person having elected to make the request prescribed in Section 87(1), section 87(2) employed the word “shall” to indicate the mandatory nature of its provisions vis-a-vis the Commission. The implication is that even though an aggrieved person has the option of requesting a review of the Commission’s decision and may indeed overlook that option, once he has requested the same, the Commission has a responsibility to review, the decision. Although the learned trial Judge held that Sections 86, 87 and 88 must be complied with before an aggrieved person, such as the Appellant, can come to court to review the decision of the Commission, his Lordship nevertheless erred when he struck out the originating summons because of the Appellant’s decision to exercise its option of not requesting statements of reasons and review from the Respondent. An aggrieved person’s request for statements of reasons and review is not synonymous with compliance with Sections 86, 87 and 88 of the Act. On the contrary, the Appellant indeed complied with Sections 86, 87 and 88, when it chose the option of not requesting statements of reasons and review. Consequently, having made the choice guaranteed under the aforesaid sections of the Act, the lower Court was wrong to have misconstrued the Appellant’s exercise of its statutory options to mean non-compliance with the discretionary import of Sections 86, 87 and 88 of the Act.

The Appellant’s learned counsel canvassed that while Section 88(3) provides that, a person shall not apply to the Court for a judicial review unless the person has first exhausted all other remedies provided under this Act, the provisions of Section 88 can only come into effect after an aggrieved person has exercised his option within the confines of Sections 86 and 87. Consequently, the lower Court was wrong to have interpreted those sections as imposing mandatory duty on an aggrieved person, when in fact, the unambiguous connotation of those words conveys a discretion.

Learned counsel for the Appellant opined that where the words used in a statute are clear and unambiguous, the court is bound to give such words their ordinary and natural meaning. The application of the plain and natural meaning would validate the objective of Sections 86, 87 and 88. The legislative intent was to grant options to persons aggrieved by the Commission’s decision while imposing a duty upon the Commission to respond to an aggrieved person’s request for statements of reasons and review and not the other way round as held by the lower Court. The legislature was particularly mindful of creating the statutory framework to ensure that aggrieved persons have access to information from the Commission. The interpretation of Sections 86, 87 & 88 as directory on an aggrieved person does not aggravate any mischief targeted by the legislature through these provisions. On the contrary, an interpretation of the provisions as directional is consistent with the legislative intent which is to grant an option to aggrieved persons and to impose a burden on the Commission.

Where there are two plausible interpretations, one aiding access to court and the other undermining access to court, the court should adopt the interpretation that aids judicial access. On the aforestated positions, reliance was placed on the cases of:

(1) Onyeanusi Vs. Misc. Offences Tribunal, (2002) 12 NWLR (Pt. 781) p. 227 at p. 250 paras- D – E;

(2) Emuze Vs. VC University of Benin (1998) 6 NWLR (Pt. 552) 142, and

(3) Nwosu Vs. Imo State Environmental Authority (1990) 2 NWLR (Pt. 135) p. 688 at p. 723.

It was further submitted for the Appellant that the lower Court ought to have narrowly construed Sections 86, 87 and 88 having held, albeit wrongly, that they regulate an aggrieved person’s access to Court. Had the lower court narrowly construed the aforesaid statutory provisions, it would have come to the conclusion that they are not mandatory. It is therefore submitted that the lower court erred by failing to construe Sections 86, 87 and 88 so as not to deny the Appellant access to court. Reference on this opinion was made to the case of: Onwuchekwa Vs. N.D.I.C. (2002) 5 NWLR (pt. 760) p. 371

The Appellant’s learned counsel submitted alternatively that even if the lower Court was right in holding that Sections 86, 87 and 88 (3) impose an obligation upon the Appellant, such requirement, nonetheless, is invalid by virtue of its inconsistency with Sections 6(6) (b) and 36(1) of the 1999 Constitution which guarantee the Appellant a right to fair hearing in invoking the judicial powers of the lower Court. It is true that an infringement of Sections 6(6) (b) and 36(1) of the Constitution is not constituted merely because an enactment regulates access to the courts by prescribing steps to be fulfilled before the jurisdiction of the court can be invoked. Hence pre-action notices are valid and constitutional. However, where an enactment interposes the discretion of another person or organ between the desire of the individual to approach the court for redress and the commencement of the proceedings, the court will readily strike down such enactment as an infringement of Section 6 of the Constitution. On this position, learned counsel referred to the cases of:

(1) N.N.P.C Vs. Fawehinmi (1997) 7 NWLR (pt. 559) p. 598;

(2) Akulega Vs. V.B.C.S.C (2001) 12 NWLR (pt. 728) p. 524 and

(3) Amadi Vs. N.N.P.C. (2000) 10 NWLR (Pt. 674) p. 76.

Consequently, the provisions of sections 86, 87 and 88(3) constitute an undue restriction on the right of action of the Appellant and thus violate the Constitution which granted the Appellant an open and unrestricted access to the court. Sections 86, 87 and 88(3) constitute preconditions that inhibit the Appellant from taking direct action in court and as such inconsistent with Section 6(6) (b) of the 1999 Constitution. In this regard reference was made to the case of: Afolagbe Vs. Awuni (1997) 9 NWLR (pt. 522) p. 536. Therefore the Respondent can refuse to provide an aggrieved person with a statement of reasons, even though Section 86(2) imposes an obligation upon it to provide an aggrieved person with such a statement. Similarly, the Respondent may not act timely in providing an aggrieved person with a statement of reasons.

It was the view of learned counsel for the Appellant that pre-action notices are distinguishable from the obligation envisaged under Sections 86 to 88. Where pre-action notices are required, an aggrieved person is deemed to have discharged his obligation once he gives notice and no more. Thereafter, he has to wait for the expiration of the stipulated time before commencing an action. There is no responsibility on his part to revert to the relevant agency. However, under Sections 86 to 88 of the Act, an aggrieved person, such as the Appellant, must receive a statement of reasons before he can proceed to court, even though there is no time limit within which the Respondent is bound to provide the aggrieved person with a statement of reasons. Certainly, this impediment is not envisaged under Sections 6(6) (b) and 36(1) of the 1999 Constitution.

Replying on issue one, the Respondent’s learned senior counsel submitted that the parties are indisputably on common grounds that the legal basis for the Appellant’s action is the Nigerian Communications Act, in consequence whereof, Sections 86, 87 and 88 thereof are applicable. It is also not in dispute that the Appellant is an ”aggrieved person” in the con of and pursuant to Sections 86, 87 and 88 of the Act. These are evidenced by the depositions in paragraphs 4(c), (d), (e), (f) and (j) of the Appellant’s Affidavit in support of the Originating Summons. The lower Court rightly held that the Respondent’s act as deposed to in paragraph 4(j) of the Appellant’s Affidavit in Support qualified as and was a “decision” in the con of the Sections, 86, 87 & 88 of the Act. Both the Appellant and the Respondent are in agreement with this proper and legitimate finding of the lower Court.

The Appellant’s action, hinged as lit is wholly on the Nigerian Communications Act, is totally incompetent consequent upon the Appellant’s failure to comply with the pre-action conditions stipulated in Sections 86, 87 and 88 of the Act. The Respondent’s learned senior counsel on the position taken by him relied on the case of: Adesola Vs. Abidoye (1999) 14 NWLR (Pt. 637) p, 28 at pgs. 55-59.

It was contended for the Respondent that the provisions of Sections 86 and 87 must be read and interpreted within the con of Section 88(1) thereof which acknowledges that not all aggrieved persons may wish to appeal to the Court for a judicial review of the Commission’s decision. Hence, it clearly would be pointless for them to mandatory comply with the provisions of Sections 86 and 87. This is the essence of the option embedded in the said sections, with the use of the word ”may”.

However, where the aggrieved person exercises his option under Section 88(1) of the Act and decides to appeal to the Court for a judicial review of the Commission’s decision, the mandatory provisions of Section 88(3) that is, exhausting all other remedies provided under this Act is a pre-action condition. In that con, Section 87 constitutes one of the administrative remedies provided under this Act. Section 87(2), (3) and (4) provide for an administrative review of the Respondent’s decision at the instance of the aggrieved person, pursuant to Section 87(1) thereof. Section 87(1) provides that the aggrieved person upon receipt or the Commission’s statement of reasons specified in Section 86(2) may request in writing for a review of the Commission’s decision and specify therein the reasons and basis for his requests. This is in fact the ‘entire essence of pre-action condition, to allow for the exploration of administrative remedies as a prelude to any contemplated judicial action. Therefore the lower Court’s decision is totally in tandem with the holdings of this Court as reflected “inter alia” in the cases of:

(1) Shaibu Vs NAICOM (2002) 18 NWLR (pt.780) p. 11 at p.134;

(2) Atolagbe Vs. Awuni supra;

(3) Amadi Vs NNPC supra;

(4) Aro Vs Lagos Island Local Government Council (2002) 4 NWLR (Pt. 757) p. 385 at pgs. 420- 421;

(5) NNPC Vs. Fawehinmi (1990) 5NWLR (Pt. 152) p. 516

(6) Bakare Vs. Attorney-General of the Federation (1990) 5 NWLR (Pt. 152) p. 516;

(7) Edewor Vs. Uwegba (1987) 1 NWLR (Pt. 50) p. 313 at p. 338-339 and

(8) Adigun Vs. Osaka (2003) 5 NWLR (Pt. 812) p.95at p.125.

The Respondent’s learned senior counsel submitted that the word ”may” always means may. ”May” is a permissive or enabling expression, but there are cases in which for various reasons, as soon, as the person who is within the statute is entrusted with the power, it becomes his duty to exercise it. Section 6 of the 1999 Constitution generally vests judicial powers of the Federation and the States in the law courts. Section 36(1) of the 1999 Constitution, on the other hand, confers on a person the fundamental right to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to; secure independence and impartiality. In his opinion, the pre-action administrative steps mandatorily prescribed by Sections 86, 87 and 88 do not conflict with the judicial powers of the courts under Section 6(6) (b) or the exercise of the Appellant’s constitutional rights pursuant to Section 36(1) both of the 1999 Constitution. The said provisions of the Act do not at all or howsoever oust the jurisdiction or competence of the courts to exercise their judicial functions after the exhaustion of the pre-action administrative remedies and steps stipulated in and pursuant to Section 88(3) of the Act. The provisions only lay down the pre-action processes and conditions for an aggrieved person who wishes to exercise his judicial options pursuant to Sections 36(1) of the 1999 Constitution and Section 88(3) of the Act.

The Appellant has failed to show how the provisions of Sections 86, 87 and 88 of the Act subvert or injure howsoever, the substance of an aggrieved person’s constitutional right in the con of the decision. He relied on this stance on the cases of:

(1) NNPC Vs. Fawehinmi supra and

(2) Amadi Vs. NNPC supra.

Moreover, Section 36(2) (a) of the Constitution recognizes fair hearing where a law provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting the person. The essence of the provision of Section 88(3) is to afford the person aggrieved by the decision of the Commission to make further request to the Commission for the reasons for and a review of the decision. He relied on the cases of:

(1) Shaibu Vs. NAICOM supra and

(2) Aro Vs. Lagos Island LGC supra.

The learned senior counsel for the Respondent contended that the submissions for the Appellant to the effect that Section 86 sets no time limit within which the Respondent is obligated to provide the statement and that consequentially there may be an uncertainty with respect to the period within which an aggrieved person may seek judicial review are entirely speculative, hypothetical and academic and therefore cannot form the basis for any judicial consideration. He referred on this position of the law to the cases of:

(1) Ezeanya Vs. Okeke (1995) 4 NWLR (pt. 388) p. 142 at p. 165:

(2) Nkwocha Vs. Governor of Anambra State (1984) 1 SCNLR p. 634; (1984) 6 SC p. 302;

(3) Governor of Kaduna State Vs. Dada (1986) 4 NWLR (pt.38) p.68;

(4) Texaco Panama Inc. Vs. Shell Petroleum Development Corporation of Nigeria (2004) 4 NWLR (pt. 653) p. 480 at 491;

(5) UBA Vs. Ekpo (2003) 12 NWLR (pt. 834) p. 332 at pgs. 342 – 343;

(6) Atolagbe Vs Awuni supra at p. 566;

(7) Egwamwense Vs. Amaghizemwen (1993) 9 NWLR (Pt. 315) p. 1 at pgs. 25- 30 and

(8) Faloye Vs. Omoseni (2001) 9 NWLR (Pt. 717) p. 190 at pgs. 200 – 201.

I have given careful consideration to the extensive submissions of counsel for both parties under this issue and indeed the rest issues; as well as all the legal authorities and references relied on by them. In my opinion this issue can be classified under two heads. The first head is whether Sections 86, 87 and 88 of the Nigerian Communications Act, 2003 impose an obligation upon the Appellant to first request both the statements of reasons for the Respondent’s refusal and its review of an appeal made in respect thereof by the Appellant before the commencement of the suit at the lower Court. The second head is whether such a requirement is inconsistent with the provisions of Sections 6(6) (b) and 36(1) of the 1999 Constitution.

Before proceeding to consider the two heads of this issue, I will reproduce for the sake of convenience and ease of reference, the provisions of Sections 86, 87 and 88 of the Act. They provide thus:

“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 functions under this Act or its subsidiary legislation 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 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 person).

(4) 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 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 (4) of this section, upon receipt of the aggrieved person’s written submissions the Commission shall meet to review its decision taking into consideration the submission of the aggrieved person under subsection (1) of this section.

(3) The Commission shall not later that 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 subsections (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 appellant 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 person has first exhausted all other remedies provided under this Act.”

Furthermore, Sections 6(6) (b) and 36(1) of the 1999 Constitution provide as follows:

“(6) The judicial powers vested in accordance with the foregoing provisions of this section-

(a) …….

(b) Shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.

36-(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

It is settled that the jurisdiction of a court to entertain an action is determined by the state of the law conferring jurisdiction on it at the point in time the action is instituted. So also where a pre-action condition is stipulated for in a statute and it was not satisfied or met before the commencement of a suit, the suit is incompetent thereby divesting the Court of the jurisdiction otherwise vested on it to adjudicate upon the suit. Above all, a court is competent to entertain a suit only if the suit is commenced by due process of law and upon the fulfillment of any condition precedent to the exercise of its jurisdiction.

Any defect in the competence of the Court is fatal to the proceedings no matter how well conducted and concluded. See the cases of:

(1) Effiong Vs. Ikpeme & Ors. (1999) 6 NWLR (Pt. 606) p. 260;

(2) Saude Vs.Abdullahi0984) 4 NWLR (pt. 116) p. 387 and

(3) Odoemelam Vs. Amadiume (2008) 2 NWLR (pt. 1070) p. 179.

A defective suit is extrinsic to the adjudication of the Court. In the “locus classicus case of: Madukolu Vs. Nkemdilim (1962) 2 SCNLR p.341, the legal principle was laid down that a court of law is said to be competent to entertain and determine a matter placed before it if;

(a) It is properly constituted as regards the qualifications of the members of the bench, and no member is disqualified for one reason or another; and

(b) The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(c) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

All the three conditions listed above must co-exist for the exercise of jurisdiction and competency of the court. See also the cases of:

(1) Western Steel Workers Ltd Vs. Iron & Steel Workers Union (1986) 3 NWLR (pt. 30) p. 617 and

(2) A.P.C Ltd. Vs. NDIC (NUB Ltd.) (2006) 15 NWLR (Pt.1002) p.404.

I will now proceed to consider the first head of this issue. To my mind, parties in the instant case are not quarreling about whether or not the lower Court has the jurisdiction to adjudicate upon this case ordinarily. However, the grouse is about the time of the commencement of the suit by the Appellant. The provisions of Sections 86, 87 and 88 of the Act are very clear. Sections 86 and 87 clearly set out the steps to be taken by anyone who gets aggrieved by any decision of the Commission before approaching the courts in respect thereof. By Section 88(3), an aggrieved person must have exhausted these in-house remedies before he can have recourse to the law court.

Although, the word ”may” is used in some parts of the referred provisions, it is worthy of note that the employment of the word “may” is in relation to the in-house remedies that are available to aggrieved persons and the Commission. This is the reason I agree with the learned counsel for the Appellant and only in this regard that by the use of the word ”may’; It becomes optional for an aggrieved person to avail himself of the various administrative remedies. Moreover, when an aggrieved person decides to go to Court, it becomes mandatory and no longer optional or discretionary for him to exhaust all the stated administrative remedies set out in Sections 86, 87 and 88 of the Act. This is the purport of section 88(3) where the non-discretionary, mandatory and directory word “shall” is employed.

It is trite that in interpreting the provisions of a statute, the provisions will be read and given their ordinary and simple meanings in a manner that will not cause absurdity and inconsistency; this is the principle of literal interpretation. See the cases of:

(1) Awuse Vs. Odili (2003) 18 NWLR (pt. 851) p. 116 and

(2) Niger Progress Ltd Vs. North-East Line Corporation (1989) 4 SC (Pt.11) p. 64.

In the case of: Martins Vs. C.O.P. (2005) 7 NWLR (Pt. 925) p. 614; Kekere-Ekun JCA at p. 638 referred with approval to the well established canon of statutory interpretation in our jurisprudence succinctly enunciated by Nikki Tabi, JSC in the case of Araka Vs. Egbue (2003) 17 NWLR (Pt. 848) p 1, (2003) 7 SC p 75 at p. 85 lines 15 – 25 as follows:

The duty of the Court is to interpret the words contained in the statute and not go outside the words in search of an interpretation which is convenient to the court or to the parties or one of the parties. Even where the provisions of a statute are hard in the sense that they will do some inconvenience to the parties, the court is bound to interpret the provisions once they are clear and unambiguous. It is not the duty of the court to remove the chaff from the grain in the process of interpretation of a statute to arrive at favourable terms for the parties outside the contemplation of the lawmaker. That will be tantamount to traveling outside the statute on a voyage of discovery. This court can not embark on such a journey. The primary function of the court is to search for the intention of the lawmaker in the interpretation of a statute. Where this is clear and unambiguous, as it is in this case, the court in the exercise of its interpretative jurisdiction must stop where the statute stops.” “(Italic is mine)”

In my view, the learned Judge of the lower Court rightly interpreted the provisions of Sections 86, 87 & 88 of the Act by ascribing to them their ordinary meaning. The answer to the question under the first head is therefore in the affirmative. Yes, the Appellant in the instant case has an obligation to exhaust the administrative remedies available to it under the provisions of Sections 86, 87 and 88 of the Act before it can institute its action at the lower Court. This is the condition precedent to the commencement of the suit of the Appellant. The condition must be fulfilled for the suit itself to be competent and for the lower Court to be clothed with jurisdiction to adjudicate upon the suit.

The second head under this issue is whether the obligation placed on the shoulders of the Appellant by Section 88(3) of the Act is inconsistent with the rights of the Appellant to fair hearing and the invocation of the judicial powers of or access to the lower Court, which rights are guaranteed by the provisions of Sections 6(6) (b) and 36(1) of the 1999 Constitution.

In resolving this sub-issue, the decision of the Supreme Court in the case of: Adesola Vs. Abidoye supra relied upon by the Respondent’s learned senior counsel is very relevant, apt and indeed instructive. For ease of reference, I hereunder reproduce the provisions of Section 36(2) (a) & (b) of the 1999 Constitution as follows:

“36-(2) Without prejudice to the foregoing provisions of this Section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law:

(a) provides for, an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person’ and

(b) contains no provision making the determination of the administering authority final and conclusive.”

In my view, the essence of Section 88(3) is to afford the person aggrieved, by the decision of the Commission / the Respondent, in the instant case, the Appellant to make representations to the Commission/the Respondent in the manners laid down under Sections 86 & 87 of the Act. The provisions of Section 88(3) of the Act do not take precedence over the provisions of Section 6(6) (b) of the Constitution, the constitutional right of access to court which is a fundamental right. It is also not in violation and has not interfered with the provisions of section 36(1) of the Constitution, the constitutional right to fair hearing. What is more, by the provisions of Section 88(1) & (2) of the Act, an aggrieved person in the place of the Appellant after exhausting the administrative remedies under Sections 86 & 87 is free to appeal the Commissions decision to a law court for the court’s review; and the court can reverse such decision of the Commission after due process of adjudication.

This now takes me to the provisions of Section 36(2) (a) & (b) of the 1999 Constitution. I have earlier on in this judgment reproduced same. Sections 86, 87 & 88 of the Act do not become invalid by the reason that these provisions confer on the Commission / Respondent the power to determine questions arising in the administration of the Act which necessarily affect the civil right’s and obligations of persons including the Appellant in the instant case; Moreover, Sections 86 & 87 of the Act provide for an opportunity for persons whose rights and obligations are affected to make representations to the Commission as touching the decisions of the Commission in respect thereof. There is no provision of the Act making the determination of the Commission final or conclusive. Indeed by Section 88(1) & (2), an aggrieved person may appeal the decision of the Commission’s to the Court and the Court may reverse such decision of the Commission.

There is no doubt on the face of the originating summons of the Appellant before the lower Court that, the Appellant is aggrieved by the refusal of the Respondent to grant its application for a third generation spectrum mobile license. The Appellant should avail itself of the set of remedies provided under Sections 86 and 87 of the Act precept by precept. These are the procedural steps provided by the Act for the redress of grievances in respect of disputes arising from the decisions of the Commission. It is very obvious from the provisions of Section 88 of the Act that the Commission is subject to the jurisdiction of the court. The Appellant who was aggrieved must however first take advantage of the said procedural steps if it must subject the decision of the Respondent to judicial review. Herein lies the difference in the use of the word ”shall” as earlier on in this judgment adverted to. The steps laid out in Sections 86 & 87 of the Act are the precondition for access to Court in respect of the disputes arising from the decisions of the Commission.

The answer therefore to the question posed by the second head of this issue is also in the negative. No! The obligation placed on the Appellant by Sections 86, 87 & 88 of the Act is not inconsistent with Sections 6(6) (b) and 36(1) of the 1999 Constitution. The said Sections of the Act have not shackled or fettered the rights of the Appellant to fair hearing and access to court. Consequently, this issue fails and it is resolved in favour of the Respondent.

ISSUE TWO

Whether the learned trial Judge was right in prejudging the substantive suit by isolating and interpreting at the interlocutory stage, Sections 86, 87, and 88 of the Nigerian Communications Act 2003, even though the Appellant presented the entire Nigerian Communications Act, 2003, for the lower Court’s interpretation with respect to the validity of the Respondent’s refusal, to process the Appellant’s Application for a 3-G Mobile Telecommunications License.”

The Appellant’s learned counsel submitted that the lower Court erred on prejudging the substantive suit by isolating and interpreting at the interlocutory stage, Sections 86, 87 and 88 of the Nigerian Communications Act, 2003, even though the Appellant presented the entire Nigerian Communications Act, 2003, for the lower Court’s interpretation with respect to the validity of the Respondent’s refusal to process the Appellant’s application for a 3 – G mobile telecommunications license. He relied on this legal position on the cases of:

(1) Mobil Oil Nigeria Plc, Vs. Kena (2001) 1 NWLR (Pt. 695) p.555 at p. 564 paras. D – G;

(2) A. – G., Fed VS. A. – G., Abia Supra;

(3) Commercial Bank Credit Lyannais Vs. Unibix (Nig) Ltd (2000) 9 NWLR (Pt. 673) p. 491at 497 – 498 and

(4) Abacha Vs. State (2002) 11 NWLR (Pt. 779) p. 437 at pgs. 501-606

It was contended for the Appellant that the pertinent question in this appeal is whether the lower Court decided a substantive issue at the interlocutory stage. To answer this question, recourse must be had to the relevant pleadings and the ruling of the lower Court. In the instant case, if the lower Court’s ruling is looked at in the perspective of the pleadings of the Appellant, it is obvious that the lower Court indeed prejudged the questions presented for determination in the substantive case at the interlocutory stage. Appellant’s counsel referred in extenso to the questions that the Appellant presented for determination and the reliefs sought therefrom vis-a-vis the holding of the lower Court that:

“In the instant case the three sections (86, 87 & 88) are not with the aim of halting the aggrieved person in his desire to pursue his constitutional right of access to court. The regulation embedded in sections 86, 87 and 88 of the Communications Act 2003 are from my understanding of the law not meant to subvert the right of access to court. They are constitutional and they must be complied with before a person can come to court ‘to review the decision of the commission”

It was urged upon this Court that the lower Court should be reversed for prejudging the Appellant’s claim at the interlocutory stage. In response to issue two, the Respondent’s learned senior counsel canvassed that the question for determination is, whether the very same question which was to be determined in the substantive case was determined by the lower Court at the interlocutory stage. In resolving this issue, it is not sufficient to assert as the Appellant did that its originating processes challenged the entire Nigerian Communications Act. Such a generic and generalized pleading, in the first place, would be defective and offensive to the accepted rules and principles of pleadings which require specificity. He relied in this regard on the cases of:

(1) Oshodi Vs. Eyifunmi (2000) 13 NWLR (Pt- 684) p. 298 at pgs. 326 and 348 and

(2) Aro Vs. Aro (2000) 3 NWLR (pt. 649) p. 443 at p. 455.

The determination of this issue requires this Court to situate the prayers in the Appellant’s Originating Summons in the con of the factual circumstances of the case as presented by the Appellant. It is only in that con that the Court can determine the applicable provisions of the Act vis-a-vis the prayers in the Appellant’s Originating Summons.

Clearly, the running theme and entirety of Appellant’s case centre around the refusal of the Respondent to issue it with a third generation mobile telephony operating license and it is only in that con that the challenge in the substantive action, can be placed and determined. In other words, it is only those sections of the Act that relate to the subject-matter of the action, that is, the refusal by Respondent to grant a mobile telephony license to the Appellant, that would fall for consideration and determination by the court in the substantive action. All other sections of the Act that have no relevance whatsoever can not be considered howsoever in the substantive matter.

The provisions of Sections 86, 87 and 88 have nothing whatsoever to do with the subject-matter of the substantive suit. They go to absolutely no issue in determining whether or not the Respondent was right or wrong in refusing to grant the mobile telephony license which the Appellant ‘applied for. Moreover, the Appellant made references in its originating processes to the specific sections of the Act that it considered relevant for the determination of the substantive action and no reference was made therein to sections 86, 87 and 88. The relevant paragraphs “of the Originating Summons where specific sections of the Act were referred to include paragraphs 5 and 7 and Reliefs (vi) and (viii). References were also made to the relevant sections of the Act in the Appellant’s Affidavit in Support, in paragraphs 4(d), (r) and (v) (ii). On the requirement for pleadings to be specific, he relied on the cases of:

(1) Aro Vs. Aro supra and

(2) Oshodi Vs. Ewfunmi supra

The legal maxim “expressio unius est exclusio alterius” which means the express inclusion of one thing amounts to or is the exclusion of another, is applicable in the instant case.

I have deliberately earlier on in this judgment extensively reproduced the claims and reliefs sought by the Appellant at the lower Court. I have also read thoroughly the very sound ruling of the learned trial Judge, S. J. Adah J. being appealed. It is very patent from the originating summons of the Appellant and the supporting affidavit thereof, that the Appellant in respect of the refusal of its application called on the lower Court to give direction to and determine the questions sought therein with particular reference to Sections 1 (a-i), 4(1) (a), (b), (d) & (e), (2), 90 to 95 and 151(1) of the Act; these are contained in paragraphs 6, 5, 7, and reliefs (vii), (vi) & (viii) of the originating summons all at pages 3 to 5 of the record. Reference was also made to Sections 33, 4 and 41 of the Act; these are contained in paragraphs 4(d), (r) & (v) (ii) of the supporting affidavit at pages 6 to 10 of the record. It is therefore obvious that the Appellant did not put in issue the provisions of Sections 86, 87 & 88 of the Act in his originating processes before the lower Court. Although, it is true that the Appellant broadly referred to the Act in its originating process, this can only be taken to mean not a wild but wholesome reference to the provisions of the Act; that is, those provisions that are relevant to its claim.

In the preliminary objection filed by the Respondent against the suit of the Appellant, the Respondent prayed the lower Court to strike out the Respondent’s originating summons on the ground that the lower Court lacked jurisdiction to adjudicate upon the suit which suit in its opinion was premature, incompetent and an abuse of court process.

The objection was in details predicated on the grounds that:

(a) The Respondent’s originating summons dated 19/11/03 was incompetent for failure of the Respondent to comply with the provisions of Sections 86, 87 & 88 “inter alia” of the Nigerian Communications Act, 2003;

(b) The Respondent’s originating summons dated 19/11/03 was premature and an abuse of court process consequent upon the failure of the Respondent to comply with the provisions of Sections 86, 87 & 88 “inter alia” of the Nigerian Communication Act, 2003; and

(c) The Respondent did not have the right of action in the suit instituted by it.

The preliminary objection raised by the Respondent at the Court below to the competence of the Appellant’s suit and the jurisdiction of that Court to entertain and determine the suit was rightly raised. See the cases of:

(1) Pan Asian African Co. Ltd Vs. N.I.C.O.N (1982) 9 SC p. 1 and

(2) Tukur Vs. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) p.517

It is trite that the issue of jurisdiction is so fundamental that as soon as it is raised, it behoves and is imperative for the court to determine it first before proceeding further with the trial of the suit. See the cases of:

(1) Adisa Vs. Oyinnola (2000) 10 NWLR (pt. 674) p.116:

(2) Abdulsalam Vs. Salawu (2002) 13 NWLR (Pt. 785) p. 505 and

(3) Oke V. Oke (2006) 17 NWLR (Pt.1008) p.224.

The definition of abuse of court process is quite trite and age-hallowed.

It simply means a process lacking in ”bona fides’; frivolous, vexations or oppressive. It is also said to mean misuse of legal process. An example of such is re-litigation of issues previously settled, compromised or decided in a matter, litigating prematurely, to mention a few. The issue of abuse of court process is also an issue of jurisdiction. see the cases of:

(1) APC Ltd Vs. NDIC (NUB Ltd) supra;

(2) Madukolu Vs. Nkemdilim supra;

(3) Ofia V. Ejem (2006) 11 NWLR (Pf. 992) p.652 and

(4) Usman v. Baba (2005) 2 NWLR (pt.917) p.113.

In the instant case, the learned trial Judge was right to have considered the issue of the competence of the Appellant’s suit and consequently his own jurisdiction to entertain the suit. In the words of the learned trial Judge, His Lordship commented at page 3 of the ruling thus:

“The Court must be sure of its jurisdiction before it begins to make the tedious and arduous journey of adjudication.

There is no doubt a limitless opportunity afforded every citizen to have access to come to Court but that access must be utilized legitimately in accordance with the dictates of the law. The dictates of the law is that the Court, the citizen is approaching must be the right court to entertain the case or that the case he wants the Court to take cognizance of is competent or within the court’s jurisdiction.”

This is contained in lines 11 to 16 at page 27 of the record. All that the learned trial Judge did was to avail the Respondent an opportunity to argue its preliminary objection. The Appellant was equally given an opportunity to oppose the preliminary objection as it did. Thereafter, His Lordship went on to consider the submissions of counsel for both parties on the import of Sections 86, 87 and 89 of the Act and ruled thereon accordingly. He did no more than this. He did nothing other than to interpret those Sections. He did not in the slightest way delve into the substantive suit of the Appellant. He did not consider the merits of the case because he was not called upon by either party to do so in any event. The concluding portion of his ruling summed it up in these words:

“In the instant case the three Sections (86, 87 & 88) are not with the aim of halting the aggrieved person in his desire to pursue his constitutional right of access to court.

The regulation embedded in Sections 86, 87 and 88 of the Communications Act 2003 are from my understanding of the law not meant to subvert the right of access to court. They are constitutional and they must be complied with before a person can come to court to review the decision of the commission. There is no evidence of the fact of compliance in this case. The plaintiff in his affidavit never alleged that he has followed the process of review of the decision he has brought to court in this case under the Communications Act, 2003 before accessing this court. In this situation therefore the action is incompetent. I hold that the Defendant’s objection is meritorious it is upheld and I accordingly strike out this case.”

The above conclusion is contained in lines 41 to 43 at page 30 and lines 1 to 7 at page 31 of the record.

The preconditions for access to court under Sections 86, 87 & 88 of the Act were clearly enumerated in the ruling of the lower Court.

See lines 15 to 35 at page 29 of the record. It was rightly held in the ruling in the circumstances of this case that the Appellant did not comply with all the preconditions to enable him bring its action. The action of the Appellant was accordingly premature and did not give rise to a cognizable cause of action.

I am in complete agreement with the submissions of the Respondent’s learned senior counsel that the provisions of Sections 86, 87 & 88 have nothing whatsoever to do with the subject-matter of the substantive suit. As earlier on in this judgment adverted to by me, the Appellant in its originating processes made reference to specific and particular sections of the Act that it considered relevant for the determination of the substantive action. There is nowhere in the entirety of the processes filed by the Appellant that reference was made to Sections 86, 87 & 88. In essence, issue two must as well fail.

It is hereby resolved in favour of the Respondent.

ISSUE THREE

Whether the learned trial Judge was right in not holding that Section 88 of the Nigerian Communications Act, 2003, does not apply to the Appellant’s Originating Summons as it is limited to Applications for judicial review.”

It was submitted for the Appellant under this issue that the learned trial Judge was wrong in not holding that Section 88 of the Act, does not apply to the Appellant’s originating summons, which sought a preponderance of declaratory reliefs. Section 88 should be construed strictly because it impinges on the Appellant’s access to court. Upon a strict construction, Section 88 is unarguably limited to actions for judicial review and no more. Therefore the express mention of judicial review in Section 88 of the Act shows that the intention of the legislature is explicit, that is, “expressio unius est exclusio alterius”.

The Appellant’s learned counsel opined that the lower Court had jurisdiction to grant the declaratory reliefs, notwithstanding the provisions of Sections 86, 87 and 88 since the substantive suit sought to declare as “ultra vires’; the Respondent’s refusal to process the

(1) INEC Vs. PDP (1999) 11 NWLR (Pt. 626) p. 174 at p. 182 and

(2) Emuze Vs. V.C Uniben supra p.142 at 144.

However, in the present scenario, judicial review is merely subjected to the prescriptions of Section 88 of the Act, because the Federal High Court has been granted’ exclusive jurisdiction by the Act. It is therefore implied that the lower Court was aware of the several procedural remedies provided under the Federal High Court Act and the Rules made thereunder.

Under the Federal High Court Rules, judicial review is different from originating summons with significant procedural constraints. For example, while leave is required before an application for judicial review can be made, originating summons requires no leave; rather it is primarily used for the determination of statutory disputes with minimal factual disputes. Even though judicial review is available under Section 88 of the Act, it is not the exclusive judicial remedy. By contrast it is an alternative remedy. The substantive action challenged the ultra vires action of the Respondent in refusing to discharge its licensing functions as envisaged under Section 41 of the Act within the con of the Appellant’s application for a 3 – G mobile license. The substance of the Appellant’s originating summons alleged that the Respondent had acted outside its enabling statute and not pursuant to it. Consequently, the Appellant invited the lower Court to declare the rights of the parties in the con of the Act. The originating summons invited the lower Court to declare invalid the acts of the Respondent and not to review a decision made pursuant to the Act. Reliance on these propositions was placed on the cases of:

(1) Dyson Vs. Attorney-General, (1911)1 KB. p. 410; (1912)1 Ch. p. 158 and

(2) Wade on Administrative Law, 4th Edition, at pgs. 499 – 500.

The nature of the Appellant’s contention vis-a-vis the constitutionality of the procedure prescribed by Sections 86 to 88 of the Act requires a declaratory relief and not administrative review.

In reply, the Respondent’s learned senior counsel submitted that the there is nothing in the literal meaning of the words “judicial review” to suggest that the legislature intended Section 88 of the Act to be so restrictively interpreted. The submissions for the Appellant run contrary to the acknowledged principles of statutory interpretation which require that words in statutes be given their plain and ordinary meanings except in instances where such constructions would create absurdity. In the instant case, “Judicial review” in its plain and ordinary meaning and in the con of Section 88, simply means the review by a judicial authority or tribunal of the decision taken by the Respondent.

This in fact is in consonance with the definition of ‘Judicial review” in Black’s Law Dictionary, 6th Edition, p. 1990, as:

“power of courts to review decisions of another department or level of government … Form of appeal from an administrative body to the courts for review of either the findings of fact or of law or both. May also refer to appellate court review of decisions of trial court or of an intermediate appellate court.”

The administrative body in this instance and in the con of Section 88 of the Act is the Respondent and it is obvious that the Appellant is, in the present action, praying the Court to review the decision of the Respondent in refusing it a mobile telephony license.

This is the pith, substance and entirety of the Appellant’s action. It was contended for the Respondent that Order 47 of the Federal High Court Rules and indeed the provisions of the Nigerian Communications Act have not laid down any obligatory route. The processes under Order 47 are only obligatory if and to the extent that an aggrieved plaintiff chooses to employ that route for the purposes of a judicial review of an administrative action.

The practical applications of these legal principles, which are of universal application, make the originating processes or form of action in this matter rather inconsequential as long as the substantive reliefs and prayers are urging the court to exercise its supervisory jurisdiction in regard to the administrative actions of the Respondent. Such an action, would qualify as a judicial review action pursuant to Section 88 of the Act.

For the avoidance of doubt, Order 47 Rule 2 stipulates that the declaratory reliefs, amongst others, may be claimed as an alternative or in addition to any other relief so mentioned if it arises out of or relates to or is connected with the same subject-matter. It is not correct as the Appellant asserted that declaratory reliefs are unknown to and absent from judicial review actions. It is also not correct that the present action is totally lacking in the prerogative orders usually associated with judicial review actions. Reliefs (x), (xi), (xii) and (xiii) claimed by the Appellant are examples in this regard. With these express consequential prerogative reliefs contained in the Appellant’s Originating Summons, the Appellant can not be heard to disclaim its originating processes as an application for judicial review. To all intents and purposes, the aforementioned reliefs amount to mandamus application.

The definition of mandamus in Black’s Law Dictionary is given as:

“We command This is the name of writ … which issues from a court of superior jurisdiction and is directed to a private or municipal corporation or any of its officers, or to an execution, administrative or judicial officer, or to an inferior court, commanding the performance of a particular act therein specified, and belonging to his or their public, official or ministerial duty- or directing the restoration of the complainant to rights or privileges of which he has been illegally deprived A writ issuing from a court of competent jurisdiction commanding an inferior tribunal, board, corporation, or person to perform a purely ministerial duty imposed by law.”

Hence, the Appellant’s action, will still be incompetent given the requirement of Order 47 to the effect that the action thereunder must be commenced after obtaining the leave of the court which leave, in this instance, was not obtained.

After a meticulous consideration of the submissions of the learned counsel for both parties along with the precedents and statutes cited by them under this issue; it is clear that the contention for the Appellant is that Section 88 is limited to actions for judicial review alone. Consequently the Appellant’s learned senior counsel was of the view that the Appellant’s access to court has been limited in that there is no way it could approach the court vide his originating summons, for the nature of its claim requires declaratory reliefs.

Accordingly the procedure prescribed by Sections 86, 87 & 88 of the Act is restricted to administrative review and therefore unconstitutional.

At the risk of repetition, I wish to restate that the provisions of section 88 are very dear. They are not in anyway restrictive. The phrase “judicial review” as used under Section 88 is not sacrosanct.

The simple meaning thereunder is nothing other than further consideration by the law court. To put it differently, a party who is aggrieved and dissatisfied with the final decision of the Commission can take the subject-matter of the decision to the court for the court’s further consideration and final determination of same, following all the due process of law in respect thereof.

On the interpretation of a statute, it is an established principle of law that when the provisions of a statute are clear and unambiguous as in the instant case, the court need not travel on a voyage of discovery, looking elsewhere that is, outside the statute itself for interpretation rather, the court must give the dear provisions their ordinary, plain and literal meaning. See the case of: Araka Vs. Egbue supra.

The simple purport of Section 88 of the Act is that an aggrieved person shall not apply to court for a judicial review unless that person has first exhausted all the administrative processes of remedies set out under the Act. This is the interpretation that the learned trial Judge gave to the Section and rightly too. The provisions of Sections 86, 87 & 88 are not ouster clauses aimed at shutting an aggrieved party out of the court. Rather, they are meant to regulate the access of an aggrieved party to the court – see lines 30 to 38 at page 29 of the record.

From the above, it is clear that the trial Court properly construed Section 88 of the Act and also arrived at the proper conclusion that on the face of the Appellant’s originating process there was no evidence of the fact of compliance with the pre-action conditions spelt out under Sections 86, 87 & 88 of the Act by the Appellant. Its action filed at the trial Court was rightly declared premature and incompetent in that regard. Issue three is consequently hereby resolved in favour of the Respondent.

ISSUE FOUR

“Whether the learned trial Judge was right in not holding that the Respondent’s decision on the Appellant’s Application for a Third Generation Mobile License contained the reasons for the said decision thereby rendering administrative review futile and unnecessary.”

It was submitted for the Appellant that the learned trial Judge was wrong in not holding that the Respondent’s decision on the Appellant’s application for a third generation mobile license contained the reasons for the said decision thereby rendering any further administrative review futile and unnecessary.

It is apparent from the records that the Appellant through its counsel and in pursuance of step one of the Respondent’s license procedures applied for application forms for 3-G mobile license vide a letter dated 16th October 2003. In response thereto, the Respondent on the 28th day of October 2003, violated its enabling statute and its licensing procedures made thereunder by refusing to provide the Appellant with the relevant application forms. Consequently, under the foregoing circumstances, it would be futile for the Appellant to explore administrative review with the Respondent. The nature of the reasons embodied in the Respondent’s decision is such that further exhaustion is essentially futile, since the Respondent will not and can not alter its determination that it will not issue further mobile licenses until the expiration of the purported five years exclusivity license.

The learned counsel for the Appellant contended that an administrative remedy is inadequate where the administrative body is shown to be biased or has otherwise pre-determined the issue before it. In which case, the Respondent had definitively committed itself to a position that renders administrative remedy unavailable. Moreover, the Respondent has an independent statutory obligation pursuant to Section 41 of the Act to provide the Appellant with the reasons for the refusal. Having provided the reasons, it will be anomalous for the Appellant to request another statement of reasons.

Replying, the Respondent’s learned senior counsel submitted that the Appellant not having raised at the lower Court the issue of whether or not, in the con of the Commission’s letter of October 28, 2003 to the Appellant, it was pointless or superfluous for the Appellant to comply with the provisions of Sections 86, 87 and 88 of the Act, is precluded from doing so now in this appeal. So also the issue that the Commission’s letter of October 28, 2003 to the Appellant removed the mandatory, and statutory obligation on the Appellant to comply with the pre-action conditions specified in Sections 86, 87 and 88 of the Act can not avail the Appellant. The argument that the Respondent’s letter of October 28, 2003 contained the reasons for its decision, thus rendering unnecessary a request for a statement of reasons in the terms of Section 86 of the Act can not hold water as well. This issue was never canvassed by the Appellant at the lower Court and cannot, without the prior leave of this Court, sought and obtained by the Appellant, be raised for the first time in this Court. On this position of the law reference was made to the cases of:

(1) System Metal Ind Ltd Vs. Ehizo (2003) 7 NWLR (Pt. 820) p. 460 at p. 470 and

(2) Brifina Limited Vs Inter-Continental Bank Limited (2003) 5 NWLR (Pt. 814) p. 540 at p. 560

It was canvassed for the Respondent that if this Court is favourably disposed to entertain and determine this issue, the Respondent’s letter of October 28, 2003 should be construed as not removing the mandatory responsibilities placed on the Appellant by Sections 86, 87 and 88 of the Act. The Appellant’s argument anchored on the presumption that the Respondent’s letter of October 28, 2003 contained all the reasons for the non-issuance of the mobile telephony license by the Appellant to the Respondent is a speculative line of reasoning. The argument is in fact punctured by Section 86(2) of the Act which obligates the Respondent, at the instance of an aggrieved person, to provide a copy of the statement of reasons for its decision.

There is nothing on the face of the Respondent’s letter of October 28, 2003 to suggest that the Respondent had exhausted all the relevant information taken into account in making the decision.

What is more, the Appellant admitted in its Affidavit in Support, that there were indeed other relevant information that were taken into account in making the decision which were not contained in the Respondent’s letter of October 28, 2003; and which would have been contained in the statement of reasons provided for by Section 86(2) of the Act. There is also the second leg of the conjoined Sections 86, 87 and 88 of the Act which requires the Appellant, pursuant to Section 87(1) to request the Commission in writing for a review of the Commission’s decision and specify therein the reasons and basis for his request. This particular provision which places an obligation on the Appellant solely was never complied with. The Appellant indeed needed to prove that it had done all that were mandatory required of it pursuant to the said Sections 86, 87 and 88 of the Act. The Appellant had not made any such case in this Appeal and its argument under this issue must therefore be rejected.

The Appellant’s learned counsel in his reply brief submitted for the Appellant that the Respondent violated the rules of court by incorporating its purported preliminary objection as issue four in its brief. This Court was urged to strike out this issue, as it never arose from any of the grounds of appeal. The Respondent’s entire brief is consequently defective and should be struck out as well. On this legal principle, he relied on the cases of:

(1) Hussaini Vs. Ogbuokiri (2004) 7 NWLR (pt. 873) p. 524 at p: 541;

(2) U.B.A. Plc. Vs. Ogunsanva (2003) 8 NWLR (pt. 821) p. 118;

(3) Onifade Vs Alhaji Olayiwola & Ors. (1990) 7 NWLR (Pt. 161) p.147;

(4) Weide and Co.(Nig.) limited Vs. Weide & Co. Hamburg (1992) 6 NWLR (Pt. 249) p. 627 and

(5) Bioku Investment & Property Co. Limited & Anar. Vs. Light Machine Industry Nig. Limited and Anor. (1986) 5 NWLR (Pt. 39) p. 42.

It was further contended for the Appellant that the Respondent’s learned senior counsel was wrong to have interpreted specific statutory provisions within the con of another provision, especially, where the subject provisions, as herein, deal with distinct issues.

Sections 86 and 87 of the Act clothe an aggrieved person with the option of requesting the Respondent’s reasons for a given decision. By contrast, Section 88 enables an aggrieved person to seek judicial review after exhausting all remedies under the Act. Clearly, Section 88 envisages remedies beyond the confines of optional administrative mechanism embodied within Sections 86 and 87. Therefore, to simply equate remedies under the Act with Sections 86 and 87 missed the point. Also, the authorities cited by the Respondent are distinguishable from the case presented by the Appellant. In the case of: Adesola Vs. Abidoye Supra, the Supreme Court, indeed, acknowledged that ”may” ordinarily imposes no obligation but that on other occasions, it could be interpreted differently. Even so, the Supreme Court went further and held that in such instances, “may” should be interpreted in the con of the intendment of the statutory provision. Clearly, the presumption is that ”may’ ‘is optional and not mandatory.

The case of: Bakare Vs. A.-G., of the Fed supra, had to do with a claimant’s desire to utilize an ordinary writ to sue the State instead of proceeding under the Petitions of Rights Act which would have required him to obtain the Attorney-General’s fiat.

Similarly, the case of: Shuaibu V. Naicom Supra, is weak to support the Respondent’s proposition, for unlike the Appellant’s case, the Shaibu case dealt with a thirty day pre-action notice which generally withstands constitutional scrutiny for a number of reasons.

Thereunder, a claimant is merely required to serve the notice and proceed to court upon the expiration of the specified period. They therefore pose no risk to a claimant’s access to court. By contrast, the Respondent’s proposition presupposes that an aggrieved person must obtain a minimum of three decisions from the Respondent before proceeding to court to exercise his constitutionally guaranteed right of access to court. This circuitous process is absurd and serves no compelling reason. Undoubtedly, the Respondent had failed to discharge this burden. On this stance, reference was made of the case of: Uni-ilorin Vs. Oluwadare (2003) 4 NWLR (pt. 808) p. 557. Based on this authority, the Appellant was not obligated to request a statement of reasons from the Respondent before commencing the substantive action to determine whether the Respondent had the power to ignore the mandatory provisions of its enabling statute that compelled it to process license applications. The Appellant could then not be required to seek a review of the Respondent’s ultra vires act before proceeding to court. On the contrary, the Appellant was justified to overlook the need to make request for a statement of reasons before commencing the substantive action.

I have carefully perused the submissions of learned counsel for both parties along with all the legal authorities relied on by them in respect of this issue.

Before proceeding with my opinion on and the resolution of this issue, I wish to first and foremost advert to the Reply brief of the Appellant. With due respect to the learned counsel for the Appellant, he completely misconstrued issue four as formulated by the Respondent’s learned senior counsel when he concluded that the Respondent’s issue four is a preliminary objection. Whereas, it is my view and I hold that the said issue four is a response and reply to the Appellant’s issue four. Apart from the fact that the submissions of the learned counsel for the Appellant in the said Reply brief were a re-argument of the issues in his main brief, they do not in any way advance his arguments in his said main brief of argument submitted for the Appellant.

The contention of the Appellant under issue four is that the learned trial Judge ought to have held that the Respondent had already taken a firm decision by its letter dated 28/10/03 which impliedly was irreversible. In the opinion of the Appellant’s counsel, the contents of the letter amounted to the decision of the Commission.

The letter therefore forestalled any other form of administrative review by the Commission. My swift response under this issue is that having found in agreement with the learned trial Judge that the purported suit filed by the Appellant at the lower Court was incompetent thereby divesting the lower Court of jurisdiction to adjudicate upon the suit, the learned trial Judge was precluded from looking beyond that point. He therefore properly refrained from considering any point raised within the body of the Appellant’s originating processes. To have done otherwise would have amounted to an exercise in futility. For the trite law is that where a Court lacks jurisdiction to hear a matter and it comes to that decision, the court has nothing to do with the merits of the matter because delving into the merits will be futile. The effect of any proceedings conducted without jurisdiction is that such proceedings amount to a nullity. Seethe cases of:

(1) Oke Vs. Oke supra and

(2) Mobil Prod (Nig.) Ltd Vs. LASEPA (2002) 18 NWLR (P.798) p.1.

It follows therefore that the submissions of both counsel under this issue actually go to nought. In consequence, this issue fails altogether.

In summation, I wish to restate that in determining the jurisdiction of a court, the enabling law vesting jurisdiction on the court has to be examined in the light of the relief or reliefs sought. The moment the relief(s) sought comes/come within the jurisdiction of the court as portrayed by the facts of the relief(s) sought the court must assume jurisdiction as it then has jurisdiction to do so. Conversely, the moment the relief(s) sought does/do not come within the jurisdiction of the court as portrayed by the facts of the relief(s) sought as in the instance case, the court, must reject jurisdiction as it has no jurisdiction in the matter. See the cases of:

(1) A.P.C Ltd. Vs. NDIC(NUB Ltd) Supra and

(2) Onwudiwe Vs. FRN (2006) 10 NWLR (Pt. 988) p. 382.

This is a hard and-fast rule and an immutable principle of law. The determination of court’s competence however depends on the circumstances of each case as no two cases are really the same.

There are however guidelines for dealing with issues of incompetence of court. One of such is that where on the face of the proceedings, the court is incompetent, the court should of itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties. The rationale behind this is that if the court fails to do this, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain an indelible blemish and stain in the garment of the proceedings. Put differently the proceedings of an incompetent court become terminally and incurably deceased. See the case of:

Mobil Prod (Nig.) Limited Vs. LASEPA supra at p. 31- 32.

Hence, the earlier it is raised, the better, in order to prevent a waste of precious judicial time, resources and undue physical and mental exertion.

The effect of an unfulfilled pre-action condition before the commencement of a suit is that there is lacking a condition precedent which prevents the court from assumption of jurisdiction. The suit is incompetent and-liable to be struck out. See the cases of:

(1) NNPC Vs. Fawehinmi supra;

(2) Odoemelam Vs. Amadiume supra and

(3) Asogwa Vs. Chukwu (2003) 4 NWLR (Pt. 811)p. 540.

It is my opinion and I hold that the trial Court properly upheld the preliminary objection of the Respondent and rightly rejected jurisdiction as it has no jurisdiction to adjudicate upon the suit of the Appellant.

In the final analysis, having regard to the circumstances of this case, I completely agree with the Court below in striking out the Appellant’s suit before it on the grounds that it has no jurisdiction to entertain and determine the incompetent suit. Consequently, the Appellant’s present appeal against the order of the Federal High Court striking out its suit is hereby dismissed.

I make no order as to costs.

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Other Citations: (2008)LCN/2664(CA)