Bot & Ors V. Jos Electricity Distribution Plc (2021)
LAWGLOBAL HUB Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
The instant appeal is a direct fall-out of the judgment of the Court of Appeal, Jos Judicial Division, delivered on April 18, 2007 in appeal no. CA/J/94/2003. By the judgment in question, the Court below allowed the Respondent’s appeal and struck out the Appellant’s suit (No PLD/I/63/1995) on the ground that the trial High Court lacked jurisdiction to entertain and determine same.
BACKGROUND FACTS
The genesis of the instant case could be traced to October 24, 1992 – virtually 29 years ago. On the date in question, Mr. Musa Bot, the father of the 2nd, 3rd and 4th Appellants herein, had a cause to report electric power failure to the Respondent’s services centre at Nasarawa/Gwong, Jos. The report was acknowledged, and duly recorded as No. 155405.
Whereupon, two staff members of the Respondent – Messrs Hammidu Mohammed and Sunday Tsok, were detailed to visit the locus and rectify the electric fault. The two staffers visited the spot and worked on the electric pole supplying power to the residence of Mr. Musa Bot and his family.
However, soon after the departure of the duo staffers, the wife of Mr. Musa Bot (2nd, 3rd and 4th Appellants’ mother) went to spread her laundered clothes on a wire line with a view to drying same. Unfortunately, she had electric shock and was instantly electrocuted. Her husband Musa Bot, who rushed to rescue his dear wife, was equally electrocuted on the spot. Curiously, it was discovered that there was a naked electric wire from the electric pole resting on the roofing of the deceased couple’s house. And one end of the wire used for spreading the clothes was tied to a nail that held the roofing zinc in place. The naked (uncellotaped) wire touching the zinc was extended from the same electric pole, upon which the Respondent’s staffers had worked earlier on.
Upon the incident being reported thereto, the Respondent’s staffers came and disconnected the offending naked wire from the electric pole. The deceased couple died intestate, leaving behind the 2nd, 3rd and 4th Appellants, all of whom minors as at 24/10/1992, when the cruel fate befell the family.
When every concerted effort to get the Respondent to compensate the bereaved family failed, the 1st Appellant deemed it compellingly expedient to institute the instant suit at the trial State High Court vide a writ of Summons.
By the 23 paragraphed statement thereof dated 29/09/1995, filed along with the writ, the Appellants claimed against the Respondent the following reliefs:
The Plaintiffs claim a total of N60,000.00 (Sixty Thousand Naira) for funeral expenses.
And the Plaintiffs as persons entitle to claim under the fatal accident law and other enabling laws as beneficiaries as deceased tender children aforesaid call in against the defendants N6,000,000.00 (Six million Naira) and as damages under the fatal accident laws for their benefit as the deceased children to be apportioned amongst them in such shares and assessment as to the said damages, and the award of N6,000,000.00 (Six Million Naira) together with cost, a total of N6,060,000.00 (Six million and sixty thousand Naira only).
The suit proceeded to trial, upon the exchange of pleadings by the respective parties. At the close of the said trial, the trial High Court delivered the vexed judgment, to the conclusive effect:
In the whole, I assess general damages in the sum of N2 million only which is to be divided into three amongst the children being her direct beneficiaries and defendants so as to allow them equal educational opportunity in life. The allocation is as follows:
- Tsok Musa Bot – N666,666.66
- Lawrence Musa Bot – N666,666.66
- Dafom Musa Bot – N666,666.66
On the whole I therefore hold that the defendant is liable and a total award of N2,030,000.00 as special and general damages is awarded in favour of the plaintiffs against the defendant for the death of late father Musa Bot.
Secondly, I dismiss the entire claim against the defendant for the death of late Musa Bot.
The respondent was utterly distraught by the vexed judgment, thus, appealed to the Court below. And on the 18/04/2007 in question, the Court below delivered the vexed judgment to the following conclusive effect:
“I hold that the Plateau State High Court lacked jurisdiction to hear and determine this action in suit no. PLD/J/637/95
…
Only the Federal High Court has the exclusive jurisdiction on the matter. This is so because although the cause of action arose on the 24th day of March, 1992, action was not commenced until 1995 after coming into force, the Decree No. 107 of 1993.
In the light of the foregoing, there will be no need to proceed to the consideration of the issues in this appeal.
The appeal succeeds and the proceedings before the Plateau State High Court as stated herein to fore being a nullity are hereby struck out.
I award no cost in this case.
Not unnaturally, the Appellants have deemed it expedient to appeal to this Court, thereby praying for the following reliefs
- Relief sought from the Supreme Court of Nigeria:
(i) The decision of the Court of Appeal striking out the appeal in that the proceeding was a nullity at the trial High Court in that it had no jurisdiction to entertain the matter under Fatal Accidents Law by virtue of Sections 230(1) of Decree 107 1993 (now Section 251 of 1999 Constitution) be set-aside and the matter be remitted for hearing and determination before the Court of Appeal on its merit.
(And or)
(ii) Any other appropriate order or determination be made in the circumstances.
On February 15, when the appeal came up for hearing, the learned Counsel were accorded every opportunity to address the Court and adopt their articulated argument in the respective briefs thereof, thus resulting in reserving judgment to today.
Most particularly, the Appellants’ amended brief of argument, settled by Zakari A. Sogfa Esq., was deemed properly filed and served on 04/03/2020. That brief though un-paginated, actually spans a total of 9 pages. At page 4 thereof, a sole issue has been couched for determination:
Whether the Court of Appeal was right when it held that the Plateau State High Court lacked the jurisdiction to adjudicate on a claim under the Fatal Accident Law Cap 43, Laws of Northern Nigeria, 1963, on the premise that the National Electric Power Authority (NEPA), now Jos Electricity Distribution Plc is a Federal Government Agency, having regard go Section 230 Q R and S of the 1979 Constitution of the Federal Republic of Nigeria, as amended, which is the same as Section 251 (1) P, Q and R of the 1999 Constitution of the Federal Republic of Nigeria.
In a nutshell, the submission of the Appellants’ counsel is to the effect, that by virtue of Section 251 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended (in pari materia with Section 230(1) of the defunct 1979 Constitution), the Federal High Court was not conferred with jurisdiction to entertain actions brought under the Fatal Accident Law (CAP 43) Laws of Northern Nigeria, 1963, applicable to Plateau State. See NEPA VS. EDEGBERO (2003) FWLR (Pt. 139) 1556 per NIKI TOBI, JSC @ 1573 paragraphs E – H; and Per Uwais, CJN @ 1571.
It was argued, most vehemently, that though the judgments of Uwais, CJN and Niki Tobi, JSC were contributory (Concurring) judgments, same form part of the lead judgment (Ogundare, JSC). According to the learned counsel, it is the concurring and lead judgments that crystallize into the judgment of the Court. See OLORUNTOBA-OJU VS. ABDUL-RAHEEM (2009) 6 MJSC (Pt. 1) @ 56 paragraphs E-F.
It was postulated that the Appellants’ claim did not seek any declaratory or injunctive relief. Thus, it does not come within the purview of items engaged by Section 230(1) of the defunct 1979 Constitution (supra). And that by Section 9 of the Fatal Accident Law (CAP. 43), Laws of Northern Nigeria 1963, applicable to Plateau State, actions or proceedings arising under the law, shall be commenced in the High Court or District Court.
Conclusively, the Court is urged to allow the appeal, set aside the judgment of the Court below, and hold that the trial High Court had jurisdiction to entertain the Appellants’ claims.
Contrariwise, the Respondent’s brief, settled by Adedayo Adedeji Esq., on 12/02/2020 spans a total of 9 pages. At paged of the said brief, a sole issue has been raised”
“Whether the Court of Appeal was right when it held that the Plateau State High Court has no jurisdiction to entertain this suit having regard to Section 230 (1) (q) (r) and (s) of the 1979 Constitution of the Federal Republic Of Nigeria which is in pari materia with Section 251 (1) (p) (q) and (r) of the 1999 Constitution of the Federal Republic of Nigeria.”
It is submitted, in the main, that a sole reading of Sections 251(1) (p) (q) and (r) which is in pari material with Section 230 (1) (q) (r) and (s) of the 1979 Constitution (supra), would reveal that the present suit falls within the exclusive jurisdiction of the Federal High Court. See OLORUNTOBA VS. ABDUL-RAHEEM (2009) ALL FWLR (Pt. 497) 1 @ 34 paragraph B, NEPA VS. EDEGBERO (2003), I. M JSC 69 @ 79 paragraphs A – D; et al. Further argued, that in the instant case, there is no dispute that the Respondent is an agency of the Federal Government. Thus, the Appellants should have filed their case at the Federal High Court.
Conclusively, the Court is urged to discountenance the Appellants argument, and accordingly dismiss the appeal.
Having amply considered the nature and circumstances surrounding the instant appeal, the argument of the learned counsel contained in the respective briefs thereof vis-a-vis the records of appeal, as a whole, I am of the paramount view that the sole issue raised in the respective briefs of the parties are not mutually exclusive. Thus, I have deemed it appropriate to adopt the Appellants’ sole issue for the ultimate determination of the appeal, anon.
DETERMINATION OF THE SOLE ISSUE
Instructively, the sole issue raises the very crucial question of whether or not the Court below was right when it held in the vexed judgment, that the trial High Court lacked jurisdiction to adjudicate on a claim under the Fatal Accident CAP 43 Laws of Northern Nigeria, 1963, on the premise that the Respondent is a Federal Agency, regard being had to Section 230 (r) and (s) of the 1979 Constitution (supra) which is in pari materia with Section 251 (1) (p) (q) and (r) of the 1999 Constitution (supra).
It is obvious on the face of the record, as copiously alluded to by the Appellants’ learned counsel (Page 3, paragraph 1.06) of the brief thereof, that on 22/01/2007 when the appeal came up for hearing, the Court below suo motu raised some fundamental points to the following effect:
Court:
It is observed that no issues have been raised in respect of Ground 1 of the Grounds (sic) of Appeal. Also the Court would like counsel to address it on the constitutionality of Sections 12 (2) and 27 (1) of the NEPA Act Cap 256 Laws of the Federation of Nigeria, 1990.
On the basis of that observation suo motu by the Court below, the learned counsel to the respective parties addressed the Court, resulting in adjourning the appeal for judgment.
On 18/04/2007, the Court delivered the vexed judgment to the conclusive effect:
Only the Federal High Court has the exclusive jurisdiction on the matter. This is so because although the cause of action arose on the 24th day of March, 1992, the action was not commenced until 1995 after coming into force the Decree No. 107 of 1993.
In the light of the foregoing, there will be no need to proceed to the consideration of the issues in this appeal.
The appeal succeeds and proceedings before the Plateau State High Court as stated here into fore being a nullity are hereby struck out.
I award no cost in this case.
The fact that jurisdiction is a fundamental threshold issue and thus indispensable in administration of justice, is no longer controversial. A Court of law is only competent to adjudicate upon an action or appeal before it, where –
(a) It is properly constituted in regard to both quorum and qualifications of the members thereof;
(b) The subject matter (Res) is aptly within the ambit of its jurisdictional competence, and there is no any feature inherent therein; and
(c) The action (or appeal as the case may be) is initiated by due process of law, upon fulfilment of any condition precedent.
See the very locus classicus- MADUKOLU VS NKEMDILIM, (1962) 1 All NLR 587; AG LAGOS STATE VS. DOSUNMU (1989) 3 NWLR (Pt. 111) 552; SKEN CONSULT VS. UKEY (1981) 1 SC 6, et al. Indeed, the question of whether or not a Court of law or Tribunal is imbued with jurisdiction to entertain and determine a matter or appeal before it, is not merely important but fundamental to adjudication process. It is a threshold issue that cannot, by any stretch of imagination, be compromised or sacrificed at the altar of caprice. This is absolutely so, because any proceeding or trial conducted by a Court devoid of jurisdiction tantamounts to a nullity, ab initio.
My noble Lords would recall that this Court had had a cause to reiterate the trite fundamental doctrine in quite a plethora of formidable authorities. Most particularly, in the case of LAGOS STATE VS DOSUNMU (Supra), this Court eminently postulated:
It is futile to set down issues, deliberate on the evidence led, resolve point of law raised, if the Court seized of the matter is devoid of jurisdiction. The substratum of a Court is no doubt jurisdiction. Without it the labourers therein, that is both litigants and counsel on the one hand and the Judge on the other hand labour in vain.
Per Eso, JSC. As copiously alluded to above, the Court below deemed it expedient in its wisdom to suo motu raise the issue of jurisdiction. And consequent upon the addresses of both learned counsel, the Court proceeded to strike out the appeal (CA/J/94/2003) on the basis of lack of jurisdiction.
Parties are ad idem, and it is not controversial at all, that the jurisdiction of the Federal High Court is circumscribed by the provisions of Section 251 (1) (p), (q), (r) and (s) of the Constitution of the Federal Republic of Nigeria, 1999, Supra, (which incidentally is in pari materia with the provisions of Section 230 (q), (r) and (s) of the defunct 1979 Constitution):
251 (1) – Notwithstanding anything to the contrary contained in this Constitution and addition to such other jurisdiction as may be conferred upon it by an act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters.
(p) the administration or the management and control of the Federal Government or any of its agencies;
(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by (he Federal Government or any of its agencies; and
(s) such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly.
Provided that nothing in the provisions of Paragraphs (p), (q) and (r) of this Subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies, injunction or specific performance where the action is based on any enactment law or equity.
The interpretation of the provisions of Section 251 (1) (p), (q), (r) & (s) of the 1999 Constitution (as amended), has not been at large. This Court has had the unique privilege of reiterating its articulated and far reaching reasonings of the Grund Norm in question in a plethora of veritable authorities. Particularly, the case of NEPA VS. EDEGBERO (2002) 18 NWLR (Pt. 798) 79, is the most instructive! Indeed, the ratio decidendi of the vexed judgment of the Court below is extensively predicated thereupon at pages 344 to 346 of the Record of Appeal. Belgore, JCA (delivering the lead judgment of the Court below) took the liberty of copiously alluding to Ogundare, JSC’s lead judgment at page 95, viz:
It is not in dispute that the defendant – NEPA – is a Federal Government Agency… it is also not disputed that the cause of action in this matter arose out of the administrative action or decision of the defendant. The action is for a declaration and an injunction and the principal purpose of it is to nullify the decision of the defendant terminating the appointments of the plaintiffs and others. In the light of all these, therefore, the action on hand came squarely within the provision of Section 230(1)(s) of the 1979 Constitution. It would appear on the surface, therefore, that the action would be one within the exclusive jurisdiction of the Federal High Court. I have myself read the proviso to Paragraphs (s), (r) and (s) of Subsection (1) of Section 230 all over the again, I can find no such exception in it that would lead me to find the contrary. A careful reading of paragraphs (q), (r) and (s) reveals that the intention of the Lawmakers was to take away from the jurisdiction of the State High Court Government or any of its agencies is a party. While paragraph (s) talked of actions for declaration or injunction, the proviso extended this to actions for damages, injunction, or specific performance. It did not say as the learned trial Judge, with profound respect, appear to read into it that action for damages, injunction or specific performances against the Federal Government or any of its agencies could still come before a State High Court.
Thus, having copiously alluded to Ogundare, JSC’s foregoing postulates, the learned Belgore, JCA came to the following conclusive findings (at page 346 lines 11 – 14 of the Record):
As at today, that is the position of the law in Nigeria and all Courts are bound to follow it without exception.
Coming to the instant case, the proviso does not provide succor to the Respondents as can be seen from the dictum of OGUNDARE, JSC quoted here above. I therefore, need not belabor the issue. I hold that the Plateau State High Court lacked jurisdiction to hear and determine this case in Suit No. PLD/J/637/95 … Only the Federal High Court has the jurisdiction on the matter …
With possible deference to the learned justices of the Court below, I am unable to appreciate, let alone uphold, the findings and conclusion arrived at in the vexed judgment. Most regrettably, the Court below has lost sight of the fundamental doctrine that in construing the provisions of Section 230 (1) of the defunct 1999 Constitution vis-a-vis Section 251 (1)(p) (q) (r) & (s) of the 1999 Constitution, as amended (supra), there are very important matters to be taken into account. They are the parties in the matter, and of course, the subject matter (Res) of the litigation itself.
As aptly posited by Niki Tobi, JSC in NEPA VS EDEGBERO (Supra) @ 1573 paragraphs E – H:
The Court must consider both in construing the parties, the Court will have no difficulty in identifying any agency of the Federal Government in certain matters. The case law and the law of agency will certainly be of help in relevant cases in this appeal, both counsels agree that the Appellant, the National Electric Power Authority is an agency of the Federal Government. They are correct. It cannot be otherwise. See Adebilije Vs. NEPA (1998) 12 NWLR (Pt. 577) 219.
With particular regard to the subject matter of litigation, the learned Niki Tobi, JSC posits thus:
“In my view, for the Federal High Court to have exclusive jurisdiction, the matter must be a civil matters arising from the administration, management and control of the Federal Government on any of its agencies. The matter must arise from the operation and interpretation of the- Constitution. And finally, the matter must arise from any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative or decision by the Federal Government or any of its agencies. It is for purpose, of emphasis.
I entirely agree with the submission of learned counsel for the Respondent, Mr. RA Lawal Rabana that the Plaintiffs’ claim should be looked at alongside with Section 230 (1) of the 1979 Constitution …”
Not unexpectedly, Niki Tobi, JSC was far from being a lone ranger in regard to the far-reaching postulates thereof. Uwais, the erstwhile CJN equally postulated (at page 157 of the Record):
The clear intendment of the modification to Section 230 of the 1979 Constitution by the Constitution (Suspension and modification) Degree 107 of 1993 was to confer on the Federal High Court exclusive jurisdiction in respect of the matters specified under Subsection (1) (a) to (s) thereof.
Jurisprudentially, the postulates of brother Justice Uwais, CJN and Niki Tobi, JSC, copiously alluded to above, albeit concurring contributory judgments, same formidably form part of the lead judgment authored and delivered by Ogundare, JSC. That view is formidably anchored on the trite doctrine, that it is the concurring judgment and the lead judgment alike that crystallise into the entirety of the decision of the Court seised of the matter or appeal. See OLORUNTOBA-OJU VS. ABDUL-RAHEEM (2009) 6 MJSC (Pt. 1) 1 @ 56 paragraphs E – F:
I agree with the submission of the learned counsel to the Appellants quoting from the decision of Nwana Vs. FCDA (2004) All FWLR (Pt. 220) 1243 at 1254 paragraphs B – C particularly that a concurring judgment forms part of the leading judgment and it is meant to complement same by want of addition or improvement on the issues resolved in the leading judgment. Both leading and concurrent crystallize in to the judgment of an Appellate Court.
In the instant case, a critical albeit dispassionate scrutiny of Section 230 (1) of the erstwhile Constitution of the Federal Republic of Nigeria, 1979 which was assimilated into Section 251 (1) of the 1999 Constitution, as amended, would clearly reveal, that the Federal High Court was not vested with jurisdiction in regard to actions brought under the Fatal Accident Law CAP 43 Laws of Northern Nigeria 1963, applicable to Plateau State. Rather, the State High (the trial Court as in the instant case) is vested with the jurisdictional competence to so entertain and determine such actions or matters by virtue of Section 9 of the Fatal Accident Law CAP 43 Laws of Northern Nigeria 1963, applicable to Plateau State. And I so hold.
The primary responsibility of the Court is to administer justice to the parties before it with fairness and devoid of fear or favour, affection or ill-will. It is equally the onerous duty of the Court to interpret the words used by the legislature in a statute (the Constitution inclusive). And where the provision of the Constitution (or Statute) is clear unambiguous, the Court if devoid of discretionary power to read thereinto an implied term. This is absolutely so, because-
[B]y the clear and unambiguous provisions, an implied term is impliedly forbidden to be part of the Constitution. This is more so as a constitution; is not a transient agreement like a contract implied terms could be read in to the working in the interest of the commercial transactions of the parties. Thus, where a constitutional provision is clear and unambiguous and the Courts read in to them so-called implied terms the Courts will be going outside their interpretative jurisdiction and will be branded as making the law in a bad way.
See OLAFISOYE VS FRN (2004) 4 NWLR (Pt. 864) 580 PER Niki Tobi, JSC @ 670. See also EGBUE VS ARAKA (1996) 2 NWLR (Pt. 433) 688 @706; IBWA VS. IMANO (NIG) LTD (1988) 3 NWLR (Pt. 85) 633; NYAME VS. FRN (2009) LPELR – CA/A/96C/08:
The duty of the Court is to interpret the words that the legislature has used in a statute. Those words may be ambiguous, but even if they are, the power and duty of the Court to travel outside them on a voyage of discovery is strictly limited. For any attempt by the Court to fill any gap in a statute is a naked usurpation of the legislative function and is the less justifiable when it is guess work with respect to what material the legislature would, if it had discovered the gap, have filled it. If a gap is disclosed, the remedy lies in an amending Act.
Per Peter-Odili, JCA (as the learned Lord then was).
In the circumstances, the sole issue ought to be, and same is hereby resolved in favour of the Appellants.
Hence, having effectively resolved the sole issue in favour of the Appellants, the appeal resultantly succeeds, and it is hereby allowed by me.
Consequently, the judgment of the Court of Appeal Jos Judicial Division holden at Jos, delivered on April 18, 2007 in appeal no. CA/J/94/2003, is hereby set aside. In place thereof, the judgment of the trial High Court of Plateau State, holden at Jos delivered by l. C. Dakyen, J. on July 31, 2001 in suit no. PLH/3637/95, is hereby restored.
The Appellants are entitled to costs hereby assessed at N1,000,000.00 (One million Naira) only against the Respondent.
SC.255/2010
