Jeph C. Njikonye, Esq V. Mtn Nig. Communications Ltd. (2007)

LawGlobal-Hub Lead Judgment Report

OYEBISI F. OMOLEYE, J.C.A.

This is an appeal against the ruling of the High Court of the Federal capital Territory, Abuja Division coram Hon. Justice H.B. Yusuf delivered on the 15th day of June 2004.

The Appellant as plaintiff in the trial Court commenced an action by Writ of Summons on 20/5/2003 against the Respondent claiming the following reliefs:

“(a) N515, 000. 00 as loss of income:

(b) N2, 000.000.00 for inconveniences and distress,.

(c) Interest at the rate of 10% per annum on the above sums from the date of judgment until judgment sum is fully paid

(d) N800.00 as cost of instituting this action.

(e) N100, 000. 00 as cost of prosecuting this action.”

The Writ of Summons was supported by a 14 Paragraph Amended Statement of Claim. For ease of reference, the Amended Statement of Claim is hereunder reproduced verbatim as follows:

“1. The Plaintiff is a private Legal Practitioner and the Principal Counsel of Jeph C. Njikonye & Company, Suit 49, Banex Plaza, Wuse II Abuja.

2. The Defendant is a Mobile Telecommunications Company Limited by shares and incorporated under the laws of Federal Republic of Nigeria. The Defendant carries on business in many towns and cities of the Federal Republic of Nigeria including Abuja. The Defendant’s Abuja business office is at Plot 2784, Shehu Shagari Way, Maitama, within the jurisdiction of this court.
3. The Plaintiff acquired the Defendants cell line (Sim Card) No. 08033186095. This cell line (Sim Card) is installed in Plaintiffs Motorola Talk about Mobile Handset and is used by the Plaintiff for communications.
4. The Plaintiffs private legal practice cuts across several jurisdictions of the Federation including Aba, Umuahia, and Lagos. Most of the Plaintiffs briefs from within and outside Abuja judicial division are communicated to the Plaintiff through telephone via Plaintiffs cell line No. 08033186095. This is especially corporate briefs like Bank and Land Searches.
5. So far as the Plaintiff continues to load his cell line No. 08033186095 with credit at least N1, 500.00 credits every two months, the Defendant has a contractual obligation to leave extant, and not to disconnect Plaintiff’s cell line No. 08033186095 from its Net Work. More especially, within 15days from any date the Plaintiff refills his cell line No. 08033186095 with credit, the Defendant has a contractual duty to provide the Plaintiff with consecutive uninterrupted access to its network. The implication is that within such period, the Plaintiff’s communication through cell line No. 08033186095 must not suffer any hitch because of network problem. The Plaintiff at trial shall found on specimen of Defendant’s credit card which terms are applicable to all Defendants’ customers, including the Plaintiff
6. The Plaintiff constantly refills his cell line No, 08033186095 with credit. On 30/4/03, the Plaintiff loaded the said line with N1,500.00 worth of credit, and as at 7/5/03, the Plaintiff had a credit balance of N911. 00 with Defendant.
7. On the said 7/5/03, despite the Plaintiff having call credit of N911.00 in respect of cell line No.

08033186095, the Defendant, between the hours of 7am, and 5p.m. wrongfully hindered/interrupted Plaintiff’s access to its Network thereby making it impossible for Plaintiff to receive or make calls using cell line No. 08033186095.

8. Plaintiff’s cell line No. 08033186095 doubles both as his only direct line as well as the only telephone line of Plaintiffs Law Firm, Jeph C. Njikonye & Co.
9. Defendant’s wrongful interruption with Plaintiff’s access to its network on 7/5/03 caused Plaintiff and his firm great damage. The Plaintiff as a result lost briefs that his learned colleagues from Aba attempted to no avail to communicate the Plaintiff of via cell line No. 08033186095. The Plaintiff amongst other inconveniences lost a brief of 206 Bank Searches that A. O. Okpala, Esq. of the firm of Chief U. N. Udechukwu, SAN & Associates, No. 122 Marketing Road, Aba tried to avail to communicate the Plaintiff Since A.O. Okpala, Esq. could not succeed in reaching the Plaintiff on telephone No. 08033186095 within the said hours on 7/5/03, he briefed another lawyer in Abuja. This fact was brought to the knowledge of the Plaintiff by A.O. Okpala, Esq. on 9/5/03.
10. The Plaintiff avers that within the said hours of 7am, to 5p.m. on 7/5/03 he was at Banex Plaza, Wuse II, and Abuja which ordinarily is a Defendants Network service area. The loss suffered by the Plaintiff and his firm was as result of Defendants wrongful interruption of Plaintiffs access to its Network which made it impossible for Plaintiff to receive calls within the affected hours.
11. The wrongful conduct of the Defendant herein above complained of caused the Plaintiff loss of income of N515, 000.00. Each of the Searches would have yielded the Plaintiff N2, 500.00
12. The Plaintiffs business as a legal Practitioner hovers around communication. Defendant’s wrongful conduct caused the Plaintiff tremendous inconveniences and restlessness for being cut-off the communication world
13. On 9/5/03, the Plaintiff caused a letter to be written the Defendant complaining about the wrongful conduct of the Defendant but the Defendant ignored the letter. The Defendant is hereby given notice to produce the said letter.
14. WHEREOF the Plaintiff claims against the Defendant as follows:

(a) N515, 000. 00 as loss of income;

(b) N2, 000,000.00 for inconveniences and distress;

(e) Interest at the rate of 10% per annum on the above sums from the date of judgment until judgment sum is fully paid

(d) N800.00 as cost of instituting this action.

(e) N100, 000. 00 as cost of prosecuting this action.”

The Respondent filed a Notice of Preliminary Objection on 25/7/03 against the Appellant’s suit. The objection was predicated on the ground that the Writ of Summons is incurably defective. The trial Court was prayed to strike out the Appellant’s suit for being incompetent and with cost.

Contemporaneously, the Respondent filed a Motion on Notice on 30/7/03 praying for the similar order of the trial court striking out the Appellant’s suit with cost. The application was predicated on the following grounds:

“1. The High Court of the Federal Capital Territory lacks jurisdiction to entertain this suit as jurisdiction in matters of the nature disclosed in the Writ of Summons and Statement of Claim vests only in the Federal High Court.

2. The Plaintiff is not the proper party enjoined by law to institute this action.
3. The Writ of Summons is incurably defective.
4. The condition precedent to the invocation of this Honourable Court’s jurisdiction has not been fulfilled.”

The application was supported by a 6 paragraph Affidavit. The relevant paragraphs of the Affidavit are paragraphs 4 (a) – (f) and 5, they are reproduced verbatim as follows:

“4a) That the relationship between his employers, i.e. the Defendant and the plaintiff is one governed by the MTN Terms and Conditions contained in the SIM pack which the Defendant gives to all of its customers upon purchase of the Defendant’s Mobile Telecommunication Line;

b) That Clause 23 of the said Terms and Conditions enjoins the purchaser to refer, any dispute relating to any Defendant’s Network Services to any telecommunications Representative who may be appointed as such by the Nigerian Communications Commission:

A copy of the relevant page of the said Terms and Conditions is annexed herewith and marked Exhibit ”MTN 1″

c) That the Decree establishing the Nigerian Communications Commission i.e Decree No. 75 of 1992, empowers the Commission to entertain complaints from, inter-alia, consumers of Mobile Telecommunications services such as is rendered by the Defendant;

d) That further to sub-paragraph (c) above, the said Decree provides for the procedure by which such complaints are processed and the procedure for instituting legal action against any licensee or carrier:

e) That Clause 23 of the Defendants Terms and Conditions derives its origin from the provisions of the Decree;

f) That the Global System of Mobile Communication (otherwise known as (G.S.M) is a government policy and in order to ensure its continued existence, the provisions of the Decree are put in place to insulate or protect carders and/or licensees such as the Defendant against spurious claims like those of the Plaintiff

5. That it will be in the interest of justice and the preservation of government/public policy if this application is granted”

The Appellant on 16/9/2003 filed a Counter-Affidavit in opposition to the Respondent’s application challenging the jurisdiction of the trial Court to adjudicate upon the suit. The relevant paragraphs of the Counter-Affidavit are paragraphs 3, 4, 5, & 6 they are reproduced verbatim as follows:

“3. I know as a fact that the relationship between the Plaintiff and the Defendant is entirely contractual and strictly governed by the law of contract including the doctrine of privity of contract.

4. The Defendants SIM pack mentioned in paragraph 4(a) of Defendants affidavit is usually sealed at the time of purchase. That was the case at the time the Plaintiff purchased the SIM pack containing the SIM card The SIM pack could not be purchased except it was perfectly sealed Herein verified and marked EXHIBIT J1 is a photocopy of the instructions contained on the surface of the SIM pack at the time of purchase.
5. I know as a fact that since Defendant’s Exhibit MTN 1 was not on the surface of the SIM pack at the time of purchase and the purchase forbade opening the SIM pack at the time of purchase so as to see the conditions, they do not form part of the terms of the contract between the Plaintiff and the Defendant.
6. I know as a fact that Decree No. 75 of 1992 referred to in paragraph 4(c) of Defendant’s affidavit is not applicable and is not relevant for the purposes of Plaintiff’s suit.”

At the conclusion of submissions of counsel for both parties on the motion on 11/3/2004, the learned trial Judge delivered his considered ruling on 15/6/2004 declining jurisdiction to adjudicate upon the Appellant’s suit.

The Appellant aggrieved by the ruling of the trial Court filed this appeal to this Court vide a Notice of Appeal dated 12/7/04 containing two grounds. The Appellant’s Brief of Argument was deemed filed on 11/5/06. One issue was posed for determination in the appeal this is as follows:

“Was the Court below right when it relied on the provisions of Section 24 of the Nigerian Communications Commission Act, No. 75 1992 to declined (sic) jurisdiction to hear the Appellants claim as constituted?”

The Appellant also filed a Reply-Brief on 9/11/06.

The Respondent on its part filed a Respondent’s Brief which was deemed filed on 19/10/2006. In it, a sale issue was raised for determination in the appeal. This is as follows:

“Whether having regard to the Appellant’s Statement of Claim Ned in the Court below and the provisions of the Nigerian Communications Commission Act, No. 75 of 1992 (Now Cap. 97, Laws of the Federal Republic of Nigeria 2004) it is not the Federal High Court that is vested with the Jurisdiction to entertain the Appellant’s suit.”

At the hearing of the appeal on 15/2/07, learned counsel for the Appellant, Mr. Hilary Ugwu adopted both the Appellant’s Brief and Reply Brief of Argument and urged the Court to allow the appeal.

The learned counsel for the Respondent, Mr. A. I. Aderogba adopted the Respondent’s Brief of Argument and urged the Court to dismiss the appeal and affirm the decision of the trial court appropriately.

The law and practice permit me to adopt any of the issues formulated by either party. Hence, I shall use the sole issue posed by the Appellant in determining this appeal as I consider it appropriate for the resolution of the complaint therein.

SOLE ISSUE

Learned counsel for the Appellant argued that in determining whether or not a court has jurisdiction to try a claim, the Court must examine the cause of action as shown in the Writ of Summons and Statement of Claim of the plaintiff. An examination of the Appellant’s Writ of Summons and Statement of claim shows that there is a breach by the Respondent of its personal contractual obligation to the Appellant. The operation of the business of the Respondent and the breach of contract complained of occurred both in the Federal capital Territory, Abuja. It is therefore the High Court of the FCT that has jurisdiction to hear the suit pursuant to the provisions of Order 10 rule 3 of the High Court of FCT, Abuja (Civil Procedure) Rules, 1989. There is a contract in “personam” between the Appellant and the Respondent arising from the rights of the Appellant which are not stipulated by the Nigerian Communications Commission Act (herein after referred to as the Act).The right of the Appellant is not contemplated under the provisions of Section 24 of the Act. For a correct interpretation of the Act, its entire provisions must be read together. On this point of law, reference was made to the cases of:

(1) Ibrahim V. Mohammed (2003) 17 WRN p. 1 at p. 38;

(2) Matari V. Dangaladima (1993) 3 NWLR (Pt. 281) p. 226:

(3) Mobil Nig. Ltd V. F.B.I.R. (1977) 3 SC p. 97 and

(4) University of Ibadan V. Adamolekun (1967) 1 All NLR p.213.

By the provisions of Section 1 (1) of the Act, liabilities and duties that are created relate to the Commission on the one part and licensees or authorized carriers or other providers of telecommunications services and infrastructures on the other part. It is the Federal High Court that is vested with the jurisdiction to hear all suits for the enforcement of these duties and liabilities by virtue of the provisions of Section 24 of the Act. Consequently the Commission must be the party suing or being sued in actions arising there from.

The learned trial Judge therefore erred when he held that there is no enforceable contractual relationship between the parties whereby terms which are expected to bind them were subscribed to. The trial Judge also erred gravely when it held that although by virtue of the provisions of Section 25 of the Act, the Commission after receiving complaints from the public can institute actions to bring violators to book in cases bordering on public interest. A consumer’s private right to maintain an action for breach of contract where appropriate is not reserved. Learned counsel for the Appellant contended further that the learned trial Judge rightly held that although the Commission regulates and controls carriers or licenses, a carrier or licensee is personally liable for its actions and omissions and an aggrieved consumer need not route his action through the Commission as a necessary party. Despite this, the learned trial Judge wrongly declined jurisdiction to adjudicate upon the suit.

In his reply brief, learned counsel for the Appellant submitted that the cardinal principle of law is that a statute operates prospectively and not retrospectively as touching the substantive rights of parties except it relates to matters of procedure and where there are clear and express terms regarding retrospective application of such statute. On this point reference was made to the cases of:

(1) KLM Royal Dutch Airlines V. Kumzhi (2004) 46 WRN p. 59 at p. 84 and

(2) Croxford V. Universal Ins. Co. & Anor (1936) 2KB p, 253 at p. 281.

In the instant case, the applicable law when the cause of action arose is the Nigerian Communications Commission Act No. 75 of 1992. Reliance was placed on the case of:

Falobi V. Adesina (2003) 38 WRN p. 119 at p. 135

Furthermore, Appellant’s counsel argued that the exclusive jurisdiction of the Federal High Court under the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 does not extend to the claim being sought by the Appellant. Matters in which the Federal High Court has exclusive jurisdiction were considered appropriately in the case of:

Adelekan V. ECU-Line NV. (2006) 31 WRN p. 1 At 25

The Appellant’s suit as articulated in his Statement of Claim does not fall into the realm of actions provided to be within the exclusive jurisdiction of the Federal High Court pursuant to the provisions of Section 24 of the Act.

Replying, learned counsel for the Respondent conceded that it is the Plaintiff’s claim that a court must examine in determining whether it has jurisdiction. According to him, the Nigerian Communications Commission Act Supra relating to telecommunications is an Act of the National Assembly pursuant to the enabling provisions of Section 4(2), Items 46 & 68 of Part I and Paragraph 2(b) of Part III, Second Schedule to the 1999 Constitution. Although the Act has been repealed by the Nigerian Communications Act, 2003, the 1992 Act is the applicable law to the suit instituted by the Appellant in the trial Court. Continuing, learned counsel for the Respondent stated that the jurisdiction of the Federal High Court as spelt out in Section 251(1) of the 1999 Constitution includes such other jurisdiction civil or criminal, whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly. By virtue of the provisions of Section 24 of the 1992 Act, an Act of the National Assembly, the Federal High Court is vested with jurisdiction to entertain actions relating to trial of offences and violations arising under the Act, Rules and Regulations made under the Act and all suits brought to enforce any liability or duty created by the provisions of the Act.

It was argued by learned counsel for the Respondent that it is a settled principle of law that in construing a statute, the provisions of the statute must be interpreted as a whole. On this point he referred to the cases of:

(1) Egolum V. Obasanjo (1999) 7 NWLR (Pt. 611)p. 355 at pgs. 393, 404 – 405 & 410 and

(2) Canada Sugar Refining Co. V.R. (1898) A.C p. 735 at p. 741.

In order to correctly interpret Section 24 of the Act, learned counsel referred to Section 2(c) – (f) which provide for the objectives of the Commission. While Section 4(a), (b), (l) & (n) provide for its functions. Particular reference was made to the provisions of Section 4(a), (p) and (q) which enjoin the Commission to protect consumers from unfair practices of licensees and other persons in the supply of telecommunications services and facilities. To develop performance standards and indices relating to the quality of telephone and other telecommunications services and facilities supplied to consumers and to monitor charges paid by consumers and the performance of the licensees. The above referred provisions impose a duty on licensees, authorized carriers and other providers of telecommunications services and infrastructure to meet their commercial obligations.

It was the view of the Respondent’s counsel that the claims, especially reliefs 5 & 7 constitute an alleged breach of the duty by the Respondent who is a licensee to meet its commercial obligations, a breach of an obligation created by the Act. The use of the words “commercial obligations” in Section 2(c) of the Act relates to obligations owed by licensees/authorized carriers/providers of telecommunications services and infrastructure to their customers/consumers of the services provided. The Appellant’s suit therefore is a suit to enforce a liability and duty created by the Act in respect of which Section 24 vests jurisdiction in the Federal High Court. Reference was further made to Section 12(1) which empowers the Commission to issue licenses, while Section 15(g) empowers it to regulate and monitor the conduct of the licensee. The result is that although the Act provides an enabling environment for telecommunications contracts, the terms and conditions have already been predetermined by the Commission and the Licensees before a consumer purchases the line. There are therefore no terms, rights and obligations which are stipulated to bind the licensee and the customer. The alleged breach by the Respondent is tantamount to a breach of the provisions of the Act. The Federal High Court is the constitutionally recognised forum for the ventilation of the Appellant’s grievances whether or not the Commission is made a party.

On the jurisdiction of the FCT High Court, Respondent’s counsel argued that Section 109 of the FCT High Court Act merely empowers the Chief Judge of the Court to make rules of Court. While Order 10 rule 3 of the FCT High Court Civil Procedure Rules gives directions regarding where suits are to be instituted within the various divisions of the FCT High Court. These provisions do not confer jurisdiction on the FCT High Court. Reference was made on this point to the case of:

Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) p. 310.

It is trite that Courts have no power to prescribe jurisdiction for themselves. Rules of Court direct exercise of judicial powers and do not confer jurisdiction on the court. There is a difference between jurisdiction and judicial powers. Reliance was placed on the case of:

Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) p. 517 at pgs. 545 & 562.

The Respondent’s counsel pointed out the similarity in the provisions of Section 24 of the 1992 Act and Section 138 of the 2003 Act. Both provisions confer exclusive jurisdiction on the Federal High Court in telecommunications matters. By implication, Section 138 of the 2003 Act ought to be regarded as retrospective thereby applying to the Appellant’s case. He referred on this point to the cases of:

(1) Exparte Todd (1887) 18 QBD p. 186 at p. 195 and

(2) Sofekun V. Akinremi (1980) NSCC p. 175 at p. 178.

I have considered the submissions of and the legal authorities cited by counsel for both parties vis-a -vis the contention of the Appellant. The germane questions arising therefrom are: Firstly, what is the real relationship between the Appellant and the Respondent? Secondly, having regard to the nature of the relationship between the Appellant and the Respondent, is it the Federal High Court or the High Court of the FCT that has jurisdiction to entertain the dispute between the parties?

The Appellant’s complaint is that, having acquired the Respondent’s line No. 08033186095 and loaded same regularly with calling credit, he is entitled to uninterrupted access to network within the period of the payments made. It is also the contention of the Appellant that there is a simple contractual relationship between him and the Respondent.

It is settled law that for a contract to exist there must be an offer, unqualified acceptance of that offer and a legal consideration. There must be a mutuality of purpose and an intention; the two contracting parties must agree. See the cases of:

(1) Ajayi-Obe V. Executive Secretary (1975) 3SC p. 1;

(2) Dahiru V. Kamale (2005) 9 NWLR (Pt. 929) p. 8 and

(3) Odutola V. Papersack (Nig.) Ltd (2006)18 NWLR (pt. 1012) p. 470.

One of the fundamental principles of the law of contract is that the parties must reach a “consensus ad idem” in respect of the terms thereof for the contract to be regarded as legally binding and enforceable. There are two types of conditions that can be attached to a contract. They are:

(a) a condition precedent, that is the “sine qua non” to getting the thing; or

(b) a condition subsequent, which keeps and continues the thing.

The burden of establishing the existence of a term of an agreement rests squarely on the party asserting such a term. See the cases of:

(1) Olanlege V. Afro Continental (Nig.) Ltd (1996) 7 NWLR (pt. 458) p. 29:

(2) Nigerian Bank for Commerce and Industry V. Integrated Gas (Nig.) Ltd. (1998) 8 NWLR (Pt. 613) p.119 and

(3) Tsokwa Oil Marketing Co. V. B.O.N. Ltd. (2002) 11 NWLR (pt. 777) p. 163.

For a plaintiff to succeed in an action for breach of contract, he must establish not only that there was a breach but fundamentally that there was in existence an enforceable contract which was breached.

See the cases of:

(1) Haldo V. Usman (2004) 3 NWLR (Pt. 859) P. 65 and

(2) Tsokwa Oil Marketing Co. V. B.O.N. Ltd. supra.

In the instant case, the negotiation between the Appellant and the Respondent connotes a simple contract made subject to certain conditions. Page 21 of the record of proceedings contains the MNT Terms and Conditions which govern the relationship of the Appellant and the Respondent. These Terms and Conditions are contained in the SIM pack given to the Appellant a purchaser of the Respondent’s Mobile Telecommunication line.

Without attempting to delve into or pre-judge the case between the parties in this matter, it is clear from the printed record especially the Statement of Claim of the Appellant that after acquiring the mobile telecommunication line, he purchased calling credit from the Respondent. He was however allegedly denied full enjoyment of access to the Respondent’s network services of making and receiving calls within the period covered by the consideration given him that is, by the Appellant. The Appellant also alleged that as a result of the interruption, he suffered loss of income and inconveniences. From the circumstances of the instant case, there is a condition subsequent which keeps, continues and sustains the relationship of the Appellant and the Respondent qua the purchase of calling credits at regular intervals. It would appear that both parties are “ad idem” regarding the status of the relationship between them. One of the points of deviation however is that while the Appellant is of the belief that the relationship between him and the Respondent being that of a simple contract, he is entitled to enforce the alleged breach of that contract against the Respondent directly. Contrariwise, the Respondent is of the opinion that the Appellant must channel his grievance through the Nigerian Communications Commission in compliance with the requirement contained in clause 23 of the said Terms and Conditions.

In my humble view, the answer to the above first poser is that indeed there is a contractual relationship between the Appellant and the Respondent. The Appellant has alleged and instituted an action to challenge the breach of that contract. The Respondent’s counsel agreed that the Act provides an enabling environment for telecommunication contracts. He also conceded that the Appellant’s claim is for breach of an obligation and that the suit is for the enforcement of a liability and duty against the Respondent.

The next issue for consideration is the determination of the court, the forum for the ventilation of the Appellant’s grievance against the Respondent. Put differently, does the trial Court have jurisdiction to adjudicate upon the suit of the Appellant?

It is established that jurisdiction is a radical and crucial question of competence. A defect in competence is offensive, fatal to adjudication and renders an entire proceedings, trial and findings invalid, null and void “ab inito” however brilliantly they must have been conducted and concluded.

See the cases of:

(1) Madukolu V. Nkemdilim (1962) 2 SCNLR p. 34

(2) Ezenwosu V. Ngonadi (1988) 3 NWLR (Pt. 81) p.168

(3) Mobil Prod (Nig) Ltd. V. LASEPA (2002) 18 NWLR (Pt. 798) p. 1;

(4) Offia V. Ejem (2006) 11 NWLR (Pt. 992) p. 652:

(5) Saleh V. Monguno (2006) 15 NWLR (Pt. 1001) p. 26 and

(6) Oke V. Oke (2006) 17 NWLR (Pt. 1008) P. 224.

In determining the jurisdiction of a court, the enabling law vesting jurisdiction on it has to be examined in the light of the reliefs sought.

This is so for Courts are creations of statutes and their jurisdiction is confined, limited and circumscribed by the statute creating them. A court can not in essence give themselves or expand their jurisdictional horizon by misappropriating or misconstruing statutes.

See the cases of:

(i) African Newspapers of Nigeria V. Federal Republic of Nigeria (1985) 2 NWLR (pt. 6) p.137;

(2) Onwudiwe V. F.R.N (2006) 10 NWLR (pt. 988) p. 382 and

(3) A.P.C. Ltd. V. NDIC (NUB Ltd.) (2006)15 NWLR (pt. 1002) p. 404.

The Constitution of the Federal Republic of Nigeria, 1999 is the organic law from which all other laws flow and derive their validity. It prescribes the rights, duties, powers and responsibilities of all the organs derivable from it. Courts are organs created by the Constitution and it is the Constitution which defines their jurisdiction majorly and principally. It is the substantive and basic law which makes provisions for the procedural laws or other statutes applicable in the various courts established by it. See the case of: Rosseck V. A.C.B. (1993) 8 NWLR (Pt. 312) p. 382 at p. 439.

In considering whether or not a court has jurisdiction to entertain an action, one major element to be ascertained is the nature of the plaintiff’s claim as disclosed in his Writ of Summons and Statement of Claim. This is to say that in determining the jurisdiction of a court, the law vesting jurisdiction in the court has to be examined in the light of the reliefs sought by a Plaintiff. If the reliefs sought come within the jurisdiction of the Court as portrayed by the facts of the reliefs sought, the court shall assume jurisdiction as it then has jurisdiction in the matter. On the contrary, if the reliefs sought do not come within the jurisdiction of the court as portrayed by the facts thereof, the court must reject adjudication as it has no jurisdiction in the matter. See the cases of:

(1) Babale V. Abdulkadir (1993) 3 NWLR (pt. 281) p. 253;

(2) O.H.M.B. V. Sarba (2002) 14 NWLR (Pt. 788) p. 538;

(3) Trade Bank Plc. V. Beni Inx Nig. Ltd. (2003) 9NWLR (Pt. 825) p. 416;

(4) A.P.C. Ltd. V. NDIC (NUB Ltd) Supra at p. 404 and

(5) Onwudiwe V. F.R.N Supra at p. 382.

A court is therefore competent of taking cognizance of matters presented to it for the purpose of determining such matters if:

(a) it is properly constituted as regards qualification of 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 the fulfillment of any condition precedent to the exercise of jurisdiction.

All the three conditions stated above must co-exist for the court to be vested and clothed with proper competence and jurisdiction. See the cases of:

(1) Madukolu V. Nkemdilim Supra at p. 587 and

(2) A.-G., Anambra State V. A.-G., of the Federation (1993) 6 NWLR (Pt. 302) p. 692.

Without prejudice to the fulfillment of conditions (a) and (b) above, the real question that calls for determination in the instant case is: whether the subject matter of the Appellant’s case is within the jurisdiction of the Federal High Court as ruled by the trial Court against the assertion of the Appellant that his suit has been properly commenced and within the competence of the trial Court.

Section 257(1) of the 1999 Constitution provides that the High Court of the Federal Capital Territory, Abuja shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person, subject to the provisions of Section 251 and other provisions of the Constitution.

By virtue of the provisions of Section 251(1) of the 1999 Constitution, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters specified in paragraphs (a) – (s) which matters are within the Exclusive Legislative List of Part 1 of the 2nd Schedule to the Constitution save for the provisos to paragraphs (d), (p), (q) and (r) of the said Section 251(1). See the cases of:

(1) University of Abuja V. Ologe (1996) 4 NWLR (pt. 445) p. 707;

(2) Adebileje V. NEPA (1998) 12 NWLR (Pt. 577) p. 219;

(3) University of Agric. Makurdi V. Jack (2000) 11 NWLR (Pt. 679) p. 658;

(4) NEPA V. Edegbero & 15ors. (2002) 18 NWLR (Pt. 798) p.79;

(5) FHA V. John Shoy Int. Ltd. (2005)1 NWLR (Pt.908) p.637 and

(6) P.P.M.C Ltd. V. Delphi Pet. Inc. (2005) 8 NWLR (Pt. 928) p.458.

In addition to the matters specified in paragraphs (a) – (s), the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court such other jurisdiction as may be conferred upon it by an Act of National Assembly. In furtherance of this provision, Section 252(2) provides that the National Assembly may by law make provisions conferring upon the Federal High Court powers as may appear necessary or desirable for enabling the Court more effectively to exercise its jurisdiction. It is not in doubt that the Nigerian Communications Commission Decree No. 75 of 1992 is an Act of National Assembly for it had been assimilated into the category of Acts or Laws passed by the National Assembly-see Section 315(1) of the 1999 Constitution. Being an Act, it is of course inferior to the Constitution. See the cases of:

(1) Labiyi V. Anretiola (1992) 8 NWLR (Pt. 258) p. 139 and

(2) A.-G., Ondo State V. A.-G., Federation (2002) 9 NWLR (Pt. 772) p. 222.

It is crystal clear from the foregoing that any matter within the exclusive jurisdiction of the Federal High Court Shall be outside the jurisdiction of either the High Court of a State or the High Court of the Federal Capital Territory, Abuja. See the cases of:

(1) Tukur V. Govt. of Gongola State Supra

(2) Labiyi V. Anretiola Supra and

(3) Yusuf V. Obasanjo (2003) 16 NWLR (Pt. 847) p. 554.

It is very pertinent now to consider to the proviso to Section 251(1) (p), (q) and (r) of the Constitution regarding the extent of the exclusive jurisdiction of the Federal High Court relating to the matters therein. The proviso states 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 in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”

A close examination of the entire jurisdiction conferred on the Federal High Court by the 1999 Constitution clearly shows that the Court, that is, the Federal High Court has not been conferred with jurisdiction to entertain claims founded/on contract. In order words, Section 251(1) provides a limitation to the general and all embracing jurisdiction of the State and the FCT High Courts because the items listed under the said Section 251(1) can only be determined exclusively by the Federal High Court. Consequently, all the other items not included in the List would still be within the jurisdiction of the State and the FCT High Courts.

In the instant case, it is of no moment that the Nigerian Communications Commission is an Agency of the Federal Government whose responsibility amongst others is liaising between licensees/carriers of telecommunications services and the latter’s customers/consumers. It will indeed make no difference as rightly remarked by the learned trial Judge if the Commission is made a party to the suit in any capacity. This is because, the dispute in this case is one premised on contract as already founded. One major factor for determining which court possesses jurisdiction is the subject matter of the suit. Contracts of whatever colour or shape are not among those included in the original and additional exclusive jurisdiction conferred on the Federal High Court. See the cases of:

(1) Seven-Up Bottling Co. Ltd. V. Abiola & Sons Bottling Co. Ltd. (2001) 13 NWLR (Pt. 730) p. 469;

(2) Trade Bank Plc. V. Beni Inx (Nig.) Ltd. Supra and

(3) Onuorah V. K.R.P.C. Ltd. (2005) 6 NWLR (Pt. 921) p.393.

Furthermore, the courts would disregard any statute that seeks to regulate and obliterate their judicial powers conferred on them by the express provisions of the Constitution, the supreme and ground norm of Nigeria. By virtue of the provisions of section 6 of the 1999 Constitution, the judicial powers vested in the various Courts created by the Constitution are constantly unassailable. An enactment will therefore be considered opposed to the Constitutional provisions vesting judicial powers in a court if it has provided for sharing the judicial powers with any other body other than the courts in which it is vested by the Constitution, purported to remove judicial powers vested in the court or redefined it in a way as to whittle it or limit the extent of the power vested or conferred on the court by the Constitution. See the case of N.N.P.C. V. Fawehinmi (1998) 7 NWLR (Pt. 559) p. 598.

Put in other words, no provision of any enactment save the express provisions of the Constitution itself can confer powers and rights limiting the supreme judicial powers conferred on the Courts by Section 6 of the Constitution. Therefore the provisions of any other law which improperly restrict impede or curtail a complainant from commencing an action as laid down by Constitutional provisions will be disregarded and declared void.

In view of my line of reasoning and deductions and in answer to my second poser above, I hold that the dispute between the parties in the instant case is founded on contract. Therefore, it is the trial Court, the High Court of the FCT where the cause of action arose and NOT the Federal High Court that possesses the competence and jurisdiction to entertain the Appellant’s suit not withstanding the provisions of section 24 of the Nigerian Telecommunications Act, 1992. In essence, this appeal is meritorious; it succeeds and is accordingly upheld. The ruling of the learned trial Judge is hereby set aside.

I make no order as to costs.

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Other Citations: (2007)LCN/2361(CA)