Mrs Edna Chukwu & Ors V. Mtn Nigeria Communications Limited & Anor (2016)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal by the plaintiffs (hereinafter referred to as the Appellants) against the ruling of the High Court of Enugu State delivered by Hon. Justice A. R. OZOEMENA, in Suit No. E/3/2012 which was delivered on 13/02/2013. The 1st defendant/ hereinafter referred to as the 1st RESPONDENT had raised a preliminary objection challenging the jurisdiction of the trial Court to try the suit. The trial Court upheld the objection and struck out the suit
The appellants had approached the trial Court seeking the following reliefs:
a) A declaration that the 1st defendant has wilfully and persistently polluted the three well water of the plaintiffs, the only source of their water need.
b) The sum of twelve million, seven hundred and forty thousand naira (N12,740,000) being the amount spent by the plaintiffs for water needs of each of them, at the rate of five thousand naira (N5000) each of the 28 families per week from the month of April 2010 to December 2011.
c) An order that the 2nd defendant terminate the contract entered into with the 1st defendant and that the 1st
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defendant shall mitigate the damage done on the three well water of the plaintiffs.
d) That the sum of five hundred and sixty thousand naira only (N560, 000) be paid to the plaintiffs per month at the rate of twenty thousand naira (N20, 000) for each family, from the month of January 2012 till judgment is given as a special damage for their water needs.
e) The sum of ten million naira only (N10, 000, 000) to the 1st plaintiff as damage to her health by the act of the 1st defendant.
f) The sum of Ninety Million naira (N90, 000, 000) as compensation to the plaintiffs for the damage to their only source of water by the 1st defendant.
g) A perpetual injunction restraining the 1st defendant from further pollution to the plaintiffs well water.
The 1st respondent filed the notice of preliminary objection dated 30/3/2012. The summary of the 1st respondents objection is that is a Limited Liability Company duly licensed to carry on the business of Telecommunication in Nigeria and cannot be sued in a State High Court but in the Federal High Court only.
The Court on the strength of parties addresses delivered a ruling on
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the 13th day of February, 2013 upholding the objection of the 1st respondent and declining jurisdiction in the case. Consequent upon that, the appellants being dissatisfied filed this appeal against the said ruling.
Notice of appeal was filed in this Court on 20/2/13, records transmitted on 9/4/13 and the Appellants brief was filed on 23/5/13. The reply brief filed on 12/11/13. The 1st respondents brief was filed on 3/9/13 and it was deemed filed on that day. The 2nd respondent did not defend the appeal inspite of the fact that Hearing Notices were served on him personally and all the processes were served on him personally. It was apparent that the 2nd respondent was unable or unwilling to defend the appeal.
In the appellants brief settled by F. N. Okoeze Esq. The appellant advanced the following sole issue for determination:
Whether MTN Nigeria Communication Limited is a creation of National Assembly and as such robs the High Court of a State or any other Court Jurisdiction except the Federal High Court and whether this suit is not the type that borders on nuisance, and as such gives the High Court where it is committed
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the requisite jurisdiction to entertain hear and determine.
In the respondents brief settled by O. G. Eze (Miss) the following sole issue was also presented for determination:
Whether the use of the 2nd respondents land by the 1st respondent for the sole purpose of its licensed telecommunications business and the alleged interference by the said operations with the appellants respective plots of land can be said to come within the wide ambit of Sections 136 (3) (c) (iv) and 138 of the Nigerian Telecommunications Act, 2003 and consequently divests the State High Court of the jurisdiction to entertain hear and/ or determine the case.
The respondents raised a preliminary objection to the hearing of the appeal. The preliminary objection and arguments therein was incorporated in the respondents brief.
The grounds of objection to the appeal are set out below:
I. The grounds of appeal which do not flow from the judgment of the Court below and the issue distilled therefrom are incompetent and liable to be struck out by the Court.
II. The particulars in support of the grounds of appeal do not flow from the
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judgment of the Court and no leave was sought and obtained before the particulars were included in the grounds of appeal.
III. The sole issue formulated in the appellants brief which does not flow from the grounds of appeal is incompetent and liable to be struck out by the Court and the grounds of appeal deemed abandoned.
IV. The sole issue formulated from both the competent and incompetent grounds of appeal is incompetent and liable to be struck out by the Court.
Let me deal with the preliminary objection first. The 1st respondent in the brief settled by O. G Eze (Miss) argued that the issue in contention at the lower Court was whether from the appellants cause of action as contained in their pleadings, the State High Court has the jurisdiction to entertain the suit as it is constituted. The controversy was not woven around whether or not; the State High Court has the jurisdiction to entertain a case bothering on the tort of nuisance. There was also no controversy as to whether the 1st respondent is a Private Limited Liability Company or not. That the 1st, 2nd and 3rd grounds of appeal and their particulars cannot be reconciled
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with the issues canvassed before the Court below and the ruling of the said Court. The resultant effect of the inconsistency between the issues canvassed before the Court below, the ruling of the said Court, the grounds of appeal and their particulars is that the affected grounds of appeal and the sole issue distilled therefrom are incompetent.
In respect of the 4th ground of appeal, learned counsel submitted that where at the trial Court, the defendant called no evidence, the plaintiff cannot appeal on the ground that the judgment was against the weight of evidence. Counsel cited Nwoga v. Regd. Trustees Recreation Club (2004) FWLR Pt. 190 Pg. 1360.
Learned 1st respondents counsel further contended that the appellants did not apply for leave of this Court to canvass fresh issues on appeal and the basis of the appellants found their 1st and 2nd grounds of appeal are issues upon which the Court below did not pronounce. Counsel argued that an appellate Court has no jurisdiction or power to entertain an issue or a ground of appeal that had not been earlier canvassed before and ruled upon by the trial Court without leave of Court. Counsel cited
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Ajuwon v. Adeoti (1990) 2 NWLR Pt. 132 Pg. 271, Alade v. Alemuloke (1988) 1 NWLR Pt. 69 Pg. 207 at 218.
In the reply brief, learned appellants counsel argued that the grounds of appeal flow from the ratio decidendi of the Court. Counsel referred us to the judgment of the trial Court. Counsel cited D.T.T Ent. (Nig) Co. Ltd v. Buhari (2011) ALL FWLR Pt. 563 Pg. 1818 at 1820. Learned appellants counsel argued that the word Ratio Decidendi has been clearly defined by the Blacks Law Dictionary 7th Edition at pg. 1269 to mean:
1. The principles of rules of law on which a Court decision is founded
2. The rules of law on which a later Court thinks that a previous Court founded its decision
3. The general rules without which a case might have been decided otherwise.
RESOLUTION OF THE PRELIMINARY OBJECTION
The settled principle of law is that an appellant in an appeal should challenge the ratio decidendi of a judgment of the Court, but not the remarks/ comments contained therein. See Davies v. Guild Pine Ltd (2004) 5 NWLR Pt. 865 Pg. 131 ratio 6 see also the cases of F.M.B.N v. N.D.I.C (1999) 2 NWLR Pt.591 Pg.
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333; Danuwa v. Adeniran (1986) 4 NWLR Pt. 34 Pg. 264.
The last paragraph of the judgment of the trial Court at pg. 148 of the record states thus: In summary, the main fact that (MTN) Nigeria Communication Limited (2nd defendant) is a creation of the National Assembly and it gives it exclusive jurisdiction robs any other Court than Federal High Court, the jurisdiction in the instant case. The above suit is instituted in a State High Court and therefore it lacks jurisdiction. For these reasons I do not have jurisdiction and the action is incompetent and is hereby struck out.
The grounds of appeal shorn of their particulars are as follows:
I. GROUND ONE
The Learned trial judge erred in law when he held that High Court lacks the jurisdiction to hear and determine the matter of nuisance.
II. GROUND TWO
The Learned trial judge erred in law when he ruled that MTN Nigeria is not a private company in Nigeria.
III. GROUND THREE
The Learned trial judge erred in law when he held that the matter can only be entertained by a Federal High Court.
IV. GROUND FOUR
The judgment of the trial Court is against
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the weight of evidence.
I have read the whole ruling of the trial Court. My own understanding of grounds 1- 3 of the grounds of appeal is that they are without doubt captured from the ratio of the trial Court. The whole dialectics or juxtaposition of words done by the 1st respondents counsel to say the contrary is merely brewing a storm in a teapot. The learned trial judge found that the 1st respondent is a creation of the national assembly. The consequence of that finding according to the learned trial judge is that only the Federal High Court is vested with jurisdiction to try the cause of action and that every other Court including the State High Court is excluded from exercising jurisdiction. That is the ratio of the learned trial judge appealed against. I find nothing wrong with grounds 1- 3 of the grounds of appeal and the sole issue derived therefrom. However, I have to agree with the learned 1st respondents counsel that the 4th ground of appeal is misconceived being a ground that anticipated that evidence had been led. Hence the complaint that judgment was given against the weight of evidence. In the circumstances, that ground of
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appeal is struck out. In respect of the argument of learned 1st respondents counsel that the sole issue cannot stand, being formulated by a coalition of competent and incompetent grounds of appeal, I am of the humble view that each separate ground of appeal is different. The sole issue could not have been formulated in part from ground 4 which anticipates a review of the facts before the learned trial judge based on vivo voce evidence of the parties on oath. There are no issues of facts brought before this Court as it relates to the appeal before us. Ground 4 can be struck out while other grounds can sustain the appeal.
In the circumstances, I hold the view that the sole issue for determination as set out by the appellants is competent and the preliminary objection on the whole is incompetent and is hereby dismissed. I will adopt the said issue as distilled for determination by the appellants for the determination of this appeal.
SOLE ISSUE
Whether MTN Nigeria Communication Limited is a creation of National Assembly and as such robs the High Court of a State or any other Court Jurisdiction except the Federal High Court and whether this
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suit is not the type that borders on nuisance, and as such gives the High Court where it is committed the requisite jurisdiction to entertain, hear and determine.
The sole issue as set out for determination by the appellant has been stated above. The argument of learned counsel Mr F.N Okoeze Esq who settled the brief is that when the jurisdiction of the Court is challenged, the relevant processes to consider are the affidavits if any; the writ of summons and the statement of claim. Counsel cited Usman v. Bada (2005) 5 NWLR Pt. 917 Pg. 113; Governor Kwara State v. Lafiagi (2005) 5 NWLR Pt. 917 Pg. 139 at 141. Counsel argued that the Court is not allowed to enlarge, expand or downsize their jurisdiction but can only expound them. Counsel argued that from the processes filed at the trial Court, it is clear that there is no action against the Nigerian Communications Commission (NCC) but against MTN Nigeria Communications Ltd to warrant the implied importation of the exclusive jurisdiction of the Federal High Court. Counsel argued that the trial Court did not seem to understand the dispute between the parties. Learned appellants counsel Mr. Okoeze
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insisted that there was no dispute regarding or over land in this case but a dispute about the tort of nuisance perpetrated by the 1st respondent on the lands of the various appellants.
Counsel argued that what is in issue is the escape of hazardous substances that has polluted the well water of the appellants in their respective compounds. Counsel drew our attention to the fact that there is no third respondent in this suit. The suit was only against MTN Nigeria Communications Ltd as 1st defendant (now 1st respondent) and Chief Elias C. Obodo as 2nd defendant (now 2nd respondent).
Counsel argued that the subject matter or the dispute is within the jurisdiction of the State High Court. Counsel cited Adetona v. Igele General (2011) ALL FWLR Pt. 569 Pg. 1025.
Counsel also argued that there is a difference between matters affecting the management and administration of the company and the routine business or operation of a company. Counsel cited Tanarewa Nig. Ltd v. Platform Ltd 9 (2003) 14 NWLR Pt. 840 Pg. 355 at 375- 376. Counsel argued that in this case where the company has refused to accept liability for the tort of nuisance caused by its equipment,
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it is the State High Court that has jurisdiction to try the case. Counsel cited Shell Petroleum v. Isaiah (1997) 6 NWLR Pt. 508 Pg. 236.
The learned counsel for the 1st respondent Miss O. G Eze argued that the 1st respondent carries on the business of telecommunications in Nigeria and has developed an infrastructural telecommunications facility at Ugbene, Abakpa Nike Enugu, on the 2nd respondents land, subject matter of the suit.
Counsel argued that a community reading of the particular paragraphs of the appellants pleading specifically mentioned and the definitions of the terms trespass to land and damages for trespass shows that the appellants are complaining of the interference by the 1st respondent, in the course of the operation of its telecommunications business, with the enjoyment and use of the appellants respective portions of land. The appellants consequently asked for some compensation for such interference, by way of damages.
Counsel further argued that the 1st respondent is a licensee of the Nigeria Communications Commission, enjoying the legal authority to carry on and engage in the
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business of telecommunications.
Counsel submitted that the provisions of Sections 135 and 136 of the Nigerian Communications Act 2003 clearly and in very unambiguous words envisage that licensees such as the 1st respondent would have to interfere with the use of other peoples land and/ or make use of other persons land in the course of their operations.
The said sections enjoin the 1st respondent to seek necessary approvals and ensure that its interference with the use of land would cause as little detriment, inconvenience and damage to others, as is practicable. Counsel submitted that the actions and activities of the 1st respondent and its landlord- the 2nd respondent, which the appellants complained against at the trial Court, are all accommodated within the provisions of Sections 135 and 136 of the Nigerian Communications Act 2003.
The 1st respondents counsel compellingly further argued that in the instant appeal, it would not have been possible for the trial Court to determine any of the issues raised by the appellants in their pleadings without considering or determining the use, occupation of the land and installation
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of the 1st respondents telecommunications network facilities and equipment thereon, for the sole purpose of its telecommunications business. In other words, the appellants cause of action against the respondents, are inextricably tied to the 1st respondents use of the land in dispute, which is accommodated by Sections 135 and 136 of the Nigerian Communications Act 2003. It is borne out from the processes before the Court that the appellants claim against the 1st respondent is for trespass.
Counsel submitted that the National Communications Act is an Act of the National Assembly coming within the ambit of Section 251 (1) (5) of the 1999 Constitution (as amended). Counsel urged the Court to dismiss the appeal.
In reply to the above contentions, learned appellants counsel argued that the issue distilled by the 1st respondent and as argued should be struck out since it did not emanate from the grounds of appeal or from the sole issue as identified by the appellant. Since the 1st respondent did not cross appeal, it has no right to argue any other issue than that proposed by the appellants for the determination of the
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appeal.
Counsel submitted that it is also the law that jurisdiction of any Court is derived from the statute creating the Court or from any other statute specifically conferring such jurisdiction on the Court. Counsel cited Adetayo v. Ademola (supra). Counsel submitted that the constitution of the Federal Republic of Nigeria 1999 created the State High Court including the High Court of Enugu State, while the Torts law Cap. 150 Vol. Vi of Revised Laws of Enugu State 2004 created the tort of nuisance and trespass and specifically confers the jurisdiction to hear, entertain and/ or determine any civil wrong arising therefrom on the High Court of Enugu State and this is in line with the authority in Adetayo v. Ademola (supra).
Counsel submitted that it is the duty of the State High Court to determine the quantum of damages to which the plaintiffs are entitled in the case.
RESOLUTION
There is no doubt that the cause of action determines the jurisdiction of the trial Court. The claim as set out explains the cause of action. In this case, Paragraphs 6- 8 of the Statement of Claim states as follows on pg. 4- 5 of the record:
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6. The plaintiffs state that, the subject matter of this suit, are their respective three hand dug wells which is the only source of their water needs that has been polluted by the emission of hazardous substances by MTN Mast Site No. T4967 Station at Okpalaugo Lane by its generating set.
7. The plaintiffs aver that the said well water is used by them as well as their neighbours for bath, cooking, washing of cloths as well as drinking and has been solving their water needs ever since it was dug.
8. The plaintiffs aver that on or about March 2010, they reported to the office of the 1st defendant through its Regional or Area office located in Enugu, including the 2nd defendant, who is their landlord all to no avail.
Pg. 8 of the record sums up the appellants claim as follows in Paragraph 26 of the Statement of Claim:
WHEREFORE, the plaintiffs claim against the defendants jointly and severally as follows:
a) A declaration that the 1st defendant has wilfully and persistently polluted the three well water of the plaintiffs the only source of their water need.
b) The sum of twelve million, seven hundred and forty thousand naira (N12,
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740, 000) being an amount spent by the plaintiffs for water needs of each of them, at the rate of five thousand naira (N5, 000) each of the 28 families per week from the month of April 2010 to December 2011.
c) An order that the 2nd defendant terminate the contract entered into with the 1st defendant and that the 1st defendant shall mitigate the damage done on the three well water of the plaintiffs.
d) That the sum of five hundred and sixty thousand naira only (N560, 000) be paid to the plaintiffs per month at the rate of twenty thousand naira (N20, 000) for each family, from the month of January 2012 till judgment is given as a special damage for their water needs.
e) The sum of ten million naira only (N10, 000, 000) to the 1st plaintiff as damage to her health by the act of the 1st defendant.
f) The sum of Ninety Million naira (N90, 000, 000) as compensation to the plaintiffs for the damage to their only source of water by the 1st defendant.
g) A perpetual injunction restraining the 1st defendant from further pollution to the plaintiffs well water.
It is clear to me from the statement of claim and the reliefs sought that
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the claim is for the tort of nuisance. This claim is ordinarily within the jurisdiction of the State High Court. Learned 1st respondents counsel conceded that the claim of the appellants for damages for trespass perpetrated by the 1st respondent in the course of the operation of its telecommunications business, with the enjoyment and use of the appellants respective portions of land. In that instance also, trespass to land would ordinarily be a tort triable within the jurisdiction of the State High Court. However, the learned 1st respondents counsel wants us to construe S. 135 and 136 of the Nigerian Communications Act 2003 to mean that the phrase however arising is to the effect that whatever the cause of action, when it relates to the Nigeria Communications Act, it must be heard at the Federal High Court. S. 138 of the Act provides as follows under Part II- Jurisdiction, Offences, Powers of Entry etc.
The Federal High Court shall have exclusive jurisdiction over all matters, suits and cases howsoever arising out of or pursuant to or consequent upon this Act or its subsidiary
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legislation and all references to Court or Judge shall be understood and deemed to refer to the Federal High Court or a Judge of the said Court.
In Chapter 1 of the Act, the legislators took the time to set out what is described therein as Objectives, Applications and Scope of the Act. It is set out below:
CHAPTER 1- OBJECTIVES, APPLICATIONS AND SCOPE
1. The primary object of this Act is to create and provide a regulatory framework for the Nigerian Communications industry and all matter related thereto and for that purpose and without detracting from the generality of the foregoing, specifically to-
a) promote the implementation of the national communications or telecommunications policy as may from time to time be modified and amended;
b) establish a regulatory framework for the Nigerian communications industry and for this purpose to create an effective, impartial and independent regulatory authority;
c) promote the provision of modern, universal, efficient, reliable, affordable and easily accessible communications services and the widest range thereof throughout Nigeria;
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d) encourage local and foreign investments in the Nigerian communications industry and the introduction of innovative services and practices in the industry in accordance with international best practices and trends;
e) ensure fair competition in all sectors of the Nigerian communications industry and also encourage participation of Nigerians in the ownership, control and management of communications companies and organisations;
f) encourage the development of a communications manufacturing and supply sector within the Nigerian economy and also encourage effective research and development efforts by all communications industry practitioners;
g) protect the rights and interest of service providers and consumers within Nigeria;
h) ensure that the needs of the disabled and elderly persons are taken into consideration in the provision of communications services; and
i) ensure an efficient management including planning, coordination, allocation, assignment, registration, monitoring and use of scarce national resources in the communications sub- sector, including but not limited to frequency spectrum, numbers and electronic addresses, and
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also promote and safeguard national interest and safety and security in the use of the said scarce national resources.
2. This Act applies to the provision and use of all communications services and network, in whole or in part within Nigeria or on a ship or aircraft registered in Nigeria.
There is no doubt that the fundamental rule of interpretation of statutes is that every statute is to be expounded to its manifest and expressed intention. Where the words of a statute are clearly expressed, the Court is duty bound to give the words their literal meaning. See Cotecna International Ltd v. Churchgate Nigeria Ltd & Anor (2010) 12 SCNJ 418.Statutes are to be read as a whole rather than a section in isolation of other provisions. See Chief Chukwuemeka Odumegwu Ojukwu v. Chief Olusegun Obasanjo& Ors (2004) 7 SCNJ 33. The golden rule of interpretation of statutes is to determine and reflect the intention of the lawmaker. See INEC v. Alh. Abdulkadir Balarabe Musa & Ors (2003) 1 SCNJ 1. I have hitherto in this judgment set out the avowed objectives of the Act. The primary objective of the Act is to create and provide a regulatory
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framework for the Nigerian Communications Industry and all matters related thereto…
Clearly in this case, inspite of the word howsoever which I agree with learned 1st respondents counsel has the ordinary grammatical meaning of in whatever way, I cannot see my way through to interpreting that word to cover the present cause of action between private persons (Appellants) and a Communications Services provider- 1st Respondent. There is no doubt that Chapter IX of the Act particularly S. 135 talks of the service provider ensuring that approval for the network installations are sought and obtained, S. 136 sets out at length the specific duty of care a licensee such as the 1st respondent must take while engaging in the activities under the act. All licensees are to protect the safety of persons and property, the use of land and protect the environment. A challenge that a licensee has violated the duty of care can be done in two ways. Either by the complainant directly to the Commission to engage the Commission to intervene by utilising its supervisory and executive role to direct the licensee to fulfil its
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duty of care. Where the Commission fails to use its executive powers to intervene between the complainant and the licensee, S. 251 (1) (d) of the Constitution is activated along with S. 138 of the Act, the complainant would have to challenge the Commission at the Federal High Court to force it to perform its statutorily mandatory duties. However, where a licensee as in this case is alleged to have caused nuisance or trespassed on land by its activities, it has nothing to do with the executive regulatory powers of the Commission to regulate the practice of the communications industry in Nigeria. A good analogy are the decisions in Banking cases. The point made by the full panel of the Supreme Court in Jammal Steel Structures Ltd v. ACB Ltd (1973) 1 ALL NLR (Pt. 2) 208 also re-affirmed in NDIC v. Okem Ent. Ltd (2004) 10 NWLR Pt. 880 Pg. 107 is that the Federal High Court only had exclusive jurisdiction in banking measures bringing same within the fiscal policies and regulations of the Federal Government, but that the extant law did not cover the purely simple contractual relationship between banker and customer.
It is a fundamental principle that
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jurisdiction is determined by the reliefs as endorsed in the statement of claim. In other words, it is the claim before the Court that determines whether the claim comes within the jurisdiction conferred on the Court. See Tukur v. Gov. of Gongola State (1989) 9 SCNJ 1.
I do not see in my humble opinion how the word howsoever can be interpreted to mean that litigation of all shades against a licensee in whatever form or whatever the cause of action must be brought before the Federal High Court. At Pg. 147- 148 of the Record, the learned trial judge held as follows:
The two parties concede to the facts that the subject matter in the case bothers on issue of jurisdiction from the way and the manner the whole thing is drafted. The 1st defendant, it would appear is a corporate personality which is a legal personality that sues and can be sued. The law and statutes of various sections specify in very clear terms the various duties, and the dos and donts of all the sections of the Constitution of Nigeria 1999. While Section 272(1) of the 1999 Nigerian Constitution gives jurisdiction to the State High Court, Section 251(1)
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gives jurisdiction to the Federal High Court. The provisions of Section 272(1) of the Constitution are subject to the provisions of Section 251(1) of the Constitution. It should be borne in mind that the National Assembly enacted the Nigerian Communications Act 2003 and granted exclusive jurisdiction to the Federal High Court.
Also to be noted is the fact that for a Court to have jurisdiction to hear and determine a case, it must have jurisdiction on all the facts relevant to the reliefs claimed by the plaintiffs as well as the issues arising from the pleadings. The portions of land in dispute which do not have anything to do with the second and third respondents cannot be served for the purpose of conferring jurisdiction on the State High Court. In that case we cannot give judgment half way. See Tukur v. Gov. of Gongola State (1989) 9 SCNJ 1.
In summary, the main fact (MTN) Nigeria Communications Ltd (2nd defendant) is a creation of the National Assembly, and it gives it exclusive jurisdiction robs any other Court other than the Federal High Court, the jurisdiction in the instant case. The above suit is instituted in a State High Court, and therefore
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it lacks jurisdiction. For these reasons I do not have the jurisdiction and the action is incompetent, and is hereby struck out.
From the above reasoning of the learned trial judge, it is apparent that His Lordship had lost track of the facts of the case. The subject matter of the case was not the jurisdiction, because the cause of action had nothing to do with jurisdiction but the tort of nuisance or if you will, trespass to land. The subject matter of the preliminary objection before the trial judge however had to do with the jurisdiction of the Federal High Court. The ruling talks about some portion of the land in dispute not having anything to do with the 2nd and 3rd respondents. There is unfortunately no 3rd respondent in this case and the issue of giving part judgment would not arise. I think the mistake arose here from the misconception of the learned trial judge that MTN Nigeria Communications Ltd is a creation of the National Assembly. That is a factually erroneous assumption. It was with the wrongful mindset that the 1st respondent is a creation of the National Assembly rather than a licensee of the Nigeria Communications Commission
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(which is not a party to the case at trial) that led to the erroneous conclusion of the learned trial judge.
I am of the humble view that the said conclusion has led to a gross miscarriage of justice which must be reversed here. I am of the view that in the circumstances of this case, the State High Court is vested with unlimited jurisdiction subject to constitutional provisions to try this case. The ruling of Hon. Justice A. R. Ozoemena in Suit No. E/3/2012 is hereby set aside. Cost of N50,000 to the appellants against the 1st respondent. The case is remitted back to the Chief Judge of Enugu State for trial on the merits. Appeal Allowed.
Other Citations: (2016)LCN/8887(CA)
