Blue Chip Communications Ltd V. Intercellular Nigeria Plc & Anr. (2007)
LawGlobal-Hub Lead Judgment Report
MARY U, PETER-ODILI, J.C.A.
This is an appeal by the Appellant against the ruling delivered by Honourable Justice B.F.M. NYAKO of the Federal High Court 3, Abuja on 11th June 2004 striking out the Appellants suit on the ground that the Appellant who was plaintiff in the court below failed to obtain the consent in writing of the Nigeria Communications Commission before commencing the action against the Respondents.
In the court below the plaintiff/Appellant had the follow claims;-
(1) A declaration that the Defendants violated the provisions of Section 91 of the Nigerian Communications Act, 2003
(2) A declaration that the Defendants were in breach of their fixed wireless licence as granted by the Nigerian Communications Commission
(3) The Defendants be adjudged to pay damages in an amount to be determined at trial together with additional damages that may occur by reason of any continuing conspiracy in the future.
(4) The Defendants and the agents and officers of each of them and all persons combining with or acting in concert with them or under their direction be perpetually and during the pendency of this action, restrained and enjoined from conspiring and combining to interfere with the Plaintiff’s ability to subscribe to the Defendants fixed wireless telecommunications services using a compatible CPE supplied by independent third party telecommunications equipment supplies.
(5) The Defendants be restrained and enjoined perpetually and during the pendency of this action, from in any way urging, advising, including, coercing or by any act, device or method persuading any manufacturer or distributor of fixed wireless CPE not to deal with or contract with Plaintiff or to cease dealing or contracting with Plaintiff.
(6) The Defendants be restrained and enjoined from acting in any way, shape or manner in restraint of trade, and that the combination, confederation, conspiracy, contract, agreement and arrangement between the Defendants to prevent the Plaintiff’s ability to subscribe to the Defendant’s fixed wireless telecommunications service using a compatible CPE supplied by independent third – party telecommunications equipment suppliers be declared void as against policy.
(7) The Defendants be restrained and enjoined from acting in anyway, shape or manner to fix unlawfully the retail prices of CPE’s or any other telecommunications equipment.
(8) The Defendants be restrained and enjoined from creating and continuing their respective fixed wireless monopolies.
(9) An Order of this Honourable Court for payment of a substantial sum as punitive damages against the Defendants.
(10) An Order of this Honourable Court compelling the Defendants to divest themselves of the retail business of fixed wireless telephone thermals by spinning -off such operations into legally separate business entity with separate management and organizational structure.
(11) The Plaintiff prays for such further relief as to this court may seem just, together with the costs and disbursement of this action, including reasonable counsel’s fees.
Before filing this action the Plaintiff had earlier written an application dated 9th October, 2003 to the Nigerian Communications Commission (NCC) to be hereinafter referred to as “The Commission” appealing for a certificate from the Commission for leave to proceed to court against the Respondent. Before Appellant got a response from the Commission this suit was instituted. The 1st Respondent by a motion on Notice challenged the competence of the action filed by the Appellant and sought an order striking out dismissing the said action for want of jurisdiction. In a considered ruling the presiding Judge struck out the action filed by the Appellant. Dissatisfied with the ruling, the Appellant appealed to this court. The writ of summons had been filed in the court bellow on 14th October, 2003.
The Appellant by a brief filed on 26/7/04 formulated two issues for determination which are as follows:-
- Whether the Lower Court was right in not invalidating Section 94(2) of the Nigerian Communications Act, 2003 which requires the Appellant prior to commencing the Action to obtain a certificate from the Nigerian Communications Commission for Leave to proceed to court, because 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 (Grounds 1, 3 & 4).
- Whether the lower court was right in striking out reliefs 4 – 8 and 10 which are injunctive reliefs even though Section 94(2) of the Nigerian Communications Act, 2003 does not require a person to obtain a certificate from the Nigerian Communications Commission as a condition precedent to seeking an injunction (Grounds 2 & 5).
The 1st Respondent by their Brief of Argument filed on 12/7/05 distilled two issues which are:-
- Whether the lower court was right in reaching the decisions contained in its ruling of 11th June 2004 having regard to the materials or processes before it?
- Whether the case before the lower court was that of constitutionality or otherwise of Section 94(2) of the Nigerian Communications Act 2003?
The 2nd Respondent by their Brief of Argument filed on 15/5/06 and deemed filed on the same day framed two Issues which are:-
- Whether the lower court was right in striking out reliefs 4 – 8 and 10 which are injunctive reliefs even though Section 94(2) of the Nigerian Communications Act 2003does not requires a person to obtain a certificate from the Nigerian Communications Commission as a condition precedent to seeking an injunction.
- Whether the lower court was right in striking out the whole suit of the Plaintiff/Appellant for failing to obtain the certificate provided for in Section 94(2) of the Nigerian Communications Act 2003.
I shall make use of the issues as drafted by Appellant for convenience.
ISSUE NO 1
Learned counsel for the Appellants stated that the lower court was wrong in not invalidating Section 94(2) of the Nigeria Communications Act 2003 which requires the appellant prior to commencing the action to obtain a certificate from the Nigerian Communications Commission for leave to proceed to court. That the Section is inconsistent 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 further stated that the words used in Section 94(2) are clear and unambiguous and the court is bound to give such words their ordinary and natural meaning. He referred to Onyeanusi v. Miscellaneous Offences Tribunal (2002) 12 NWLR (Pt. 781) 227 at 250.
That the literal interpretation shows that before a person can commence action against anybody – including the commission he must first obtain the commission’s certificate.
That the Commission must give its appeal for such actions to be competent. He stated further that Section 94(2) of the Nigerian communications Act, 2003 is invalid by virtue of its inconsistency with Sections 6(6) (b) and 36(1) of the Constitution which guarantee the appellant right to fair hearing in invoking the judicial powers of the lower court. That the provision infringes on the appellant’s right of access to court by interposing the respondent’s discretion as an obstacle to the appellant’s right of access to the court. That where an enactment interposes the discretion of another person or organ between the desire of the individual to appeal to 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. He referred to NNPC v. Fawehinmi (1997) 7 NWLR (Pt. 559) 598.
Learned counsel for the Appellant further stated that Section 94(2) of the Nigerian Communications Act, 2003 constitutes an undue restriction on the right of action of the Appellant and this violates the constitution which granted the appellant an open and unrestricted access to the court. He cited Akulega v. B.C.S.C. (2001) 12 NWLR (pt. 728) 524; Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76.
Mr. Anyanwu of counsel stated on that Section 94(2) of the Nigerian communications Act 2003, constitutes a precondition that inhibits the Plaintiff/Appellant from taking direct action in court and such is inconsistent with Section 6(6) (b) of the 1999 Constitution. He cited Atolagbe v. Awuni (1997) 9 NWLR (pt. 522) 536.
Learned counsel said even the provision of Section 94(2) of the NC Act has a legitimate aim, it is still disproportionate to that aim since there is no time limit within which the Commission is bound to provide the certificate. That since there is no time limit, the commission is not obligated to provide the certificate within a time frame, thus leading to uncertainty as to the time within which an aggrieved person may seek judicial intervention. Learned counsel for the Appellant went on to say that the Respondent can delay or even refuse to provide an aggrieved person with a certificate even though Section 94(2) purports to impose an obligation upon such a person – like the Appellant – to obtain a certificate from the Commission as a condition to commencing action. That in both cases, the respondent has taken a decision subject to judicial review, triggering another administrative process under Sections 86 – 88 of the NC Act – an obligation to seek a statement (and/or review) for failing to provide a certificate. That in the interim the aggrieved person is denied the opportunity of commencing action against an unrelated third – party. That this is a circuitous process and an impediment to an aggrieved person’s access to the court.
Mr. Anyanwu, learned counsel for the Appellant stated that while Section 36(1) of the Constitution guarantees the Appellant a fair hearing within a reasonable time Section 94(2) of the Nigerian Communications Act undermines that right. That the trial court had a responsibility to pronounce on the constitutionality of Section 94(2) and it cannot be said that, that was not the case of the Appellant and needed to be specifically pleaded. He referred to Section 1(3) of the Constitution.
For the 1st Respondent, learned counsel, Mr. Ibrahim said that from the writ of summons and the statement of claim no where was the constitutionality of Section 94(2) of the Communications Act in issue. That Section 94(2) only deals with regulations or conditions of access to court as the various Rules of all courts. That Section 94(2) does not partially or totally usurp the judicial powers vested in the courts by the Constitution of the Federal Republic 1999. That the Section has not infringed on Sections 6 (6) (b) and 36(1) of the Constitution. That all the Appellant need do is to obtain the certificate and when the Commission refuses to issue the certificate to him there are Constitutional avenues for him to explore and obtain the certificate. That the certificate so mentioned merely qualifies as a pre-action notice, the Constitutionality of which has been positively stamped by our courts. He referred to NNPC v. Fawehinmi (1998) 7 NWLR (pt. 5590 598.
That in fact looking at the claim of the Appellant in the lower court and the reasons advanced the Appellant’s case is an abuse of process of court and should be dismissed and not struck out. He cited Order 1 rule 19 (3) & (4) Rules of this court and Arubo v. Aiyeleru (1993) 3 NWLR (pt. 280) 126.
Learned counsel for the 2nd Respondent, Mr. Ogbulafor said the matter of validity of Section 94(2) of the NC Act did not arise and to raise it at this appellate stage there was need for leave of this court first had. That the NC Act 2003 is a law validly made by the National Assembly and the job of the lower court is to interpret the law as it is and not to make law. That Section 94(2) NC Act is not in conflict with the 1999 Constitution. That the injunctive reliefs cannot stand on their own unless the court declared that the action of the Defendants/Respondents are unlawful. That the ruling in the court below should be upheld.
That is a summary of the controversies existing between the parties as to the validity of Section 94(2) of the Nigerian Communications Act in relation to the right to access to court guaranteed by Sections 6(6) (b) and 36 of the 1999 Constitution. The Appellants contend that Section 94(2) of the NC Act ought to have been invalidated by the court as inconsistent with Sections 6(6) (b) and 36 of the Constitution as Section 94(2) restricted the Appellants access to court. The learned trial Judge had held that Section 94(2) was a condition precedent which Appellant as Plaintiff had to have carried out before approaching the court.
Where a provision ousting the jurisdiction of the court is clear and unambiguous, the court is bound to apply it as it is. The court has still the jurisdiction to decide whether it is not precluded from hearing the subject matter of the action. See Onyeanusi v. Miscellaneous Officers Tribunal (2002) 12 NWLR (pt. 781) 227 at 254,255; Attorney-General Federation v. Sode (1989) 1 NWLR (Pt. 128) 50.
In Emuze v. V.C. University of Benin (1998) 6 NWLR (Pt. 552) 142, it was held:
“Whether a person’s right of access to the Courts is taken away or restricted by a statute, the language of any such statute will be strictly construed and will not be extended beyond its least onerous meaning unless clear words are used to justify such extension. His stand of the court is borne out of the practice of the courts in guarding their jurisdiction jealously”.
Barclays Bank Ltd v. CBN (1976) 1 All NLR 409; Agwuna v. Attorney -General Federation (1995) 5 NWLR {pt. 3960 418 at 433 and 438; Attorney – General Lagos v. Dosunmu (1989) 3 NWLR (pI.305) 290; FCDA v. Sule (1994) 3 NWLR (Pt. 332) 237;
Where the jurisdiction of the court is expressly ousted by a statute, there must be compliance with such ouster clause once the court is satisfied that there is a satisfactory evidence to support that the ouster clause provision is applicable to the particular case under consideration. See Emuze v. V. C. University of Benin (1998) 6 NWLR (pt. 552) 142 at 151, 152; Osadebey v. Attorney -General Bendel State (1991) 1 NWLR (Pt. 169) 525; NEC. V. Nzeribe (1999) 5 NWLR (Pt. 1920458 at 472; Agwuna v. Attorney-General of Federation (1995) 5 NWLR (Pt. 396) 418 at 433.
Access to the court means approach or means of approach to the court without restraint.
The provision of Section 33(1) of the 1979 Constitution is couched in wide absolute terms and is not qualified. The purport of the provision is to enable right of access to the court removing legal obstacles in the path of a citizen neutralising exercise of the right. Although the constitutional right of access to the court does not preclude statutory regulations of the exercise of the right, it is not consistent with the exercise of the right of access to court to make regulations which subvert the exercise of the right or render the right nugatory. Amadi v. N.N.P.C. (2000) 10 NWLR (pt. 674) 76 at 109 – 110; Bature v. Attorney-General Federation (1990) 5 NWLR (Pt. 152) 516.
The Nigeria Communications Act Section 94(2) thereof provides as follows:-
“A person shall obtain a certificate from the Commission for leave to proceed to the court for enforcement of the provisions of this part except in the case of an injunction”.
Where a statute as Section 94(2) of the Nigerian Communications Act above stated has provided for the doing of an act in a particular manner, that manner and none other shall become lawful if employed. In the same way, where a statute provides for the commencement of an action in a particular manner or form counsel must ensure that the action is commenced or instituted strictly in the manner and form provided by the statute: See Ojong v. Duke (2003) 14 NWLR (pt. 841) 581 at 618.
In Amadi v. N.N.P.C (2000) 10 NWLR (Pt. 6740 76.
- The word “shall”, when used in an enactment is capable of bearing many meanings. It may be implying futurity or implying a mandate or direction or giving permission. If it is used in a mandatory sense then the action to be taken must obey or fulfill the mandate exactly, but if it is used in a directory sense then the action to be taken is to obey or fulfill the directive substantially. See Ifezue v. Mbadugha (1984) 1 SCNLR 427; State v. Ilorin (1983) 1 SCNLR 94.
Clearly Section 94(2) of the NC Act is mandatory the con of the use of the ‘Shall’ leaving no other option. That command or order cannot be witled by the seductive argument of an infringement on the basic right of a party to access to court. It is indeed at times like this, that one appreciates why it is necessary to consider every case on its merit before one can come to the conclusion that it falls within one category or the other for which what would naturally be an automatic consequence of an act fails to be so taken or acted upon as such.
I would here refer to N.N.P.C. v. Fawehinmi (1997) 7 NWLR (pt. 559) 598 where the Court of Appeal held:- “Although Section 33(1) of the 1979 Constitution seems couched in absolute terms, the right of access to court cannot be regarded as unqualified. By virtue of Section 33(1) an individual has the right to access to a court in the sense that he must be able to have the matter in dispute brought before a court for determination without any improper legal or practical obstacles being placed in his way. The Right so stated does not however, ipso facto mean that regulation of access to a court is precluded. Such regulations abound in the rules of procedure and in the procedural legislation. The only and not unimportant requirement is that any regulation of the right of access to a court must have a legitimate aim and the extent and nature of such regulation must be reasonably proportionate to that aim”.
The above interpretation of Section 33(1) of the 1979 Constitution is valid for Sections 6(6) (b) and 36(1) of the 1999 Constitution since the same provisions exist and the current situation are adaptable to what the Court of Appeal said above in the N.N.P.C. v. Fawehinmi supra.
Cases constantly occur in which, although everything has happened which would at common law prime facie entitle a man to a certain sum of money, or vest in him a certain right of action, there is yet something more which must happen, in the particular case, before he is entitled to sue, either by reason of the provision of some statute or because the parties have expressly so agreed. This is something called a condition precedent. It is not of essence of such a cause of action, but it has been essential. It is an additional formality superimposed on the law. See Atolagbe v. Awuni (1997) 9 NWLR (pt. 522) 536.
An Act which provides that certain acts should not be called in question in a court of law does not protect any such determination from the jurisdiction of the courts. The effect of this is that a provision of an Act of parliament which directly or indirectly protects a particular act or thing from the jurisdiction of courts or manifests an insulation of that act or thing from the interference by the courts will not be countenanced by the courts in respect of a remedy that the courts feel they are in a position to give. Thus, the courts have been consistent in their disapproval of attempts by the legislature to oust or curtail their jurisdiction. Accordingly, the words of the statute ousting the jurisdiction of courts must be clear and encompassing enough to be able to limit the jurisdiction of the court. See Onyeanusi v. Miscellaneous Offences Tribunal (2002) 12 NWLR (pt. 781) 227 at 252 paras A-C; D – E.
Where a statute seeks to deprive the court of the exercise of its jurisdiction on a matter, such statute must be strictly and scrupulously construed. See Ekpo v. Calabar Local Government Council (1993) 3 NWLR (Pt. 281) 324.
Court should interpret law as they are and not as they ought to be. Where the language of a statute is plain, precise and unambiguous, it is necessary to examine the intention of the law, the plain and natural meaning of the word used should be expounded. See Onyeanusi v. Miscellaneous Offences Tribunal supra at P. 250.
Having stated the principles applying to the case in hand and considering them within the circumstances of the matter before this court I see nothing conflicting between Section 94(2) of the NC Act and Sections 6(6) (b) and 36 (1) of the 1999 Constitution. For effect Section 94(2) had provided for the route for a party to approach the court. That route ought to be followed without question before the party aggrieved can claim his right of access to court guaranteed by Sections 6(6) (b) and 36{1) of the 1999 Constitution. My understanding is that Appellant was ordered by Section 94(2) NC Act to obey first before complaint to the court. He attempted but did not complete that condition. Appellant applied for the certificate as provided by the Act on 9th October 2003 and five days later on 14th October 2003 took out a writ of summons for the court’s intervention. In my view what he had sought for from the NCC (Nigerian Communications Commission) as provided, that is the certificate cannot be reasonably obtained within 5 days. My interpretation of what he did was to throwing(Sic) the application at the Commission and rushing to court. He ought to have accorded the Commission a reasonable time within which to process his application and grant the certificate. It is then when a reasonable time would have elapsed without the Commission carrying out their function that the necessary remedies available to Appellant would be called into operation. These remedies include Sections 86 – 88 of the NC Act.
It is therefore in the strict and scrupulous construction of Section 94(2) of the Nigerian Communications Act that I hold that that the Section is not in conflict with Sections 6(6) (b) and 36(1) of the 1999 Constitution. That Section 94(2) is rather a condition precedent to the acquisition of jurisdiction by the court to adjudicate on the complaint of the Appellant as plaintiff. See Ekpo v. Calabar Local Governor Council (1993) 3 NWLR (pt. 281) 324 Madukolu v. Nkemdilim (1962) All NLR 581.
It is on the note of the foregoing that I agree with the learned trial Judge that there was no basis for invalidating Section 94{2) of the Nigerian Communication Act, 2003. That is to say that issue No 1 has been resolved in favour of the Respondents.
ISSUE NO 2
Learned counsel for the Appellant stated that the lower court erred in striking out reliefs 4 – 6 and 10 which are injunctive reliefs even though Section 94(2) of the Nigerian Communications Act, 2003 does not require a person to obtain a certificate from the Nigerian Communications Commission as a condition precedent to seeking an injunction. That by applying the plain and natural meaning of Section 94(2) of the NC Act, this court would come to the inevitable conclusion that the Commission’s certificate is not required before injunctive reliefs are sought.
That where there are two plausible interpretations one aiding access to court and the other infringing on access to court, the court should adopt the interpretation that aids judicial access. He cited Emuze v. V,C, University of Benin (1989) 6 NWLR (Pt. 552) 142.
Learned counsel stated that the court should narrowly and strictly interpret Section 94(2) of the NC Act to ensure that they do not infringe on an aggrieved person’s right of access to court on injunctive reliefs. He referred to Onwuchekwa v. NDIC (2002) 5 NWLR (pt. 760) 371; Onyeanusi v. Miscellaneous Offences (supra) 253.
Learned counsel further stated that there is no legal requirement that an injunctive relief must stand on its own to be competent. Also that the Appellant’s injunctive reliefs do not stand on their own as they have a distinct impact on the Respondents. He referred to NC Act and the Federal High Court (Civil Procedure) Rules 2000, Order 25 rule 5. In response learned counsel for the 1st Respondent stated that jurisdiction is the threshold of judicial power, and determines the exercise of the court’s adjudicative power. That it is settled that where the jurisdiction of the court is challenged as in the instant case, the issue as a matter of priority should be determined as soon as possible. He cited Madukolu v. Nkemdilim (1962) All NLR 581 and Chiakpa v. Nduka (2001) 9 MJSC 137.
Learned counsel further said that jurisdiction being of utmost importance, if a court has no jurisdiction in a suit the entire proceeding is a nullity. He cited Timitimi v. Amabebe 14 WACA 374; Lanleyin v. Rutai 4 FSC 184. That once a nullity always a nullity, and so a decision given without jurisdiction can be attacked at any time and does not in fact create a necessity for an appeal. He referred to Udenta v. Chukwunta 3 ENLR 45; Obikoya v. Ray of Companies (1975) 4 SC 31. He stated that jurisdiction may be attacked on the receipt of summons, or on the receipt of the Statement of Claim, or at the conclusion of hearing evidence or on appeal or in another suit in which the former suit is relied upon. That in the case at hand there being a feature which prevented the lower court from exercising its jurisdiction and that feature being the failure of the Appellant to obtain a certificate before commencing the action. He cited Madukolu v. Nkemdi\m (1962) All NLR 581 at 589.
Learned counsel for the 1st Respondent said the injunction being sought or prayed for at the lower court by the Appellant is not the sort of injunction being contemplated by Section 94(1) of the Act. That the injunction being sought by the Appellant at the lower court were of perpetual nature while Section 94(1) provided for injunction of an interim or interlocutory nature. He cited Okumagba v. Egbe (1965) All NLR 64. That Section 94(1) of the Act being of the penal Section should be construed strictly.
The learned counsel for the 2nd Respondent, Mr. Ogbulafor said where a statute provides for the manner of doing a particular act, the act would be adjudged duly performed only if done in the manner specified by the law. He cited Ahamefule v. Imperial Medical Centre (2005) 5 NWLR (pt. 917) 51 at 63; Ojang v. Duke (200314 NWLR (Pt. 841) 581 at 61.
That by the authority of the above cases the failure of the Appellant to obtain the certificate required by Section 94(2) makes Appellant’s suit incompetent.
In respect to this issue learned counsel for the Appellant said since Section 94(1) does not infringe on a litigant’s right to injunctive reliefs the learned trial court ought not to have struck out the suit for incompetence the condition precedent not having been obtained. I see no reason not to be swayed rather to the position of learned counsel for the 1st Respondent who opined that the injunction sought or prayed for at the lower court by the Appellant is not the sort of injunction contemplated by Section 94(1) Act as Appellant had asked for perpetual injunction which cannot stand alone. That the injunction envisaged is interim or interlocutory. I agree with Mr. Ibrahim and on that score and there is no need really to go into an academic discourse here since the matter is glaring and easy to understand that indeed there is no basis to upset the finding and decision on the incompetence of the process before the learned trial court. See Madukolu v. Nkemdilim (supra); Okumagba v. Egbe (1965) All NLR 64.
This appeal as can be seen lacks merit and I dismiss it. I affirm the decision and order of the court below.
I order N10,000 to be paid to the Respondents.
Other Citations: (2007)LCN/2391(CA)
