Orakul Resources Limited & Anr. V. Nigerian Communications Commission & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER.ODILI, J.C.A.

This is an appeal by the plaintiffs/Appellants (hereinafter called the Appellants) against a ruling delivered by Justice B.F.M. Nyako of the Federal High Court, Abuja on the 27th December 2004 whereby she struck out the Appellants’ action on the ground that the appellants failed to seek and obtain the 1st Defendant/Respondent’s reasons for issuing a purported interconnection rate determination that purportedly approved interconnection rates between mobile and fixed networks.

FACTS BRIEFLY STATED

The Appellants commenced the substantive action seeking declaratory and injunctive reliefs against the Defendant/Respondents for failing to comply with the stringent requirements applicable to the 1st Appellant’s exercise of her regulatory powers on interconnection rates. Such requirements mandate the 1st Respondent to issue a public notice inviting all stake holders to a public inquiry as a pre-condition to the enactment of a regulation. Because the Appellants did not request a statement of reasons from the 1st Respondent before commencing the substantive suit, the Respondents filed their respective preliminary objections urging the lower court to strike out the suit.

The objection was argued and on 17th December, 2004 the lower court delivered a ruling wherein it struck out the action as being premature and incompetent. Dissatisfied with the ruling/Order striking out the suit, the Appellants appealed to this court seeking a reversal of the lower court’s Ruling/Order.

On the 28/11/05, Mr. Uchendu learned counsel for the Appellants moved their motion of that 28/11/05 in which Appellants sought to withdraw the appeal against the 6th Respondent and for the name of the 6th Respondent to be struck out from the appeal. There not being any objection from the other parties the application was granted and the name of the 6th Respondent, M-TEL limited was struck out of the appeal.

ISSUE FOR DETERMINATION

The Appellant through counsel, Mr. Uchendu referred to Appellant’s Brief filed on 2/6/05. In it, Appellant posed five questions for determination which are:-

1. Even though it heard the Respondent’s Preliminary Objection and without determining the same, whether the lower court was right to strike out the Appellant’s suit on the basis of its earlier decision in a different case not involving the Appellants (Grounds V & VI) .
2. Whether the lower court was right to have considered legal and factual issues raised suo motu by the court in striking out the suit without affording the Appellant the opportunity of being heard. (Ground VII)
3. Whether the lower court was right in holding that the Appellants have not complied with the condition precedent to the invocation of the court’s jurisdiction and if so, whether such conditions are not invalid by virtue of their inconsistency with the constitution (Grounds I & II).
4. Whether the Appellant was bound to exhaust the Respondent’s administrative remedies as a condition to the ventilation of their fundamental right to fair hearing as guaranteed by the constitution (Ground III).
5. Whether the lower court was right in holding that It was agreed that a decision In another case would bind this case. (Ground IV).

The 1st and 5th Respondents Brief was filed on 6/10/05 and they formulated two issues for determination:-

1. Whether or not the learned trial Judge was right to have relied on ruling in an earlier objection in another matter in deciding the objection in this case. (Grounds 4, 5, 6 and 7).
2. Whether or not the Appellants are constitutionally obligated to comply with the conditions precedent to filing the action as stipulated by the Nigerian Communications Act 2003.

The 2nd Respondent in their Brief of Argument filed on 27/9/05 and deemed filed on 26/10/05 posed three questions for determination and they are:-

1. Whether the learned trial Judge was correct when she declined jurisdiction on the ground that the conditions precedent to the invocation of the court’s jurisdiction stipulated in Section 87 of the Nigeria Communications Act 2003 have not been complied with.
2. Are the provisions of Sections 86; 87 and 88 of the Nigerian Communications Act valid or are they in any way in conflict or inconsistent with Section (6) (b) of the 1999 Constitution or any other part thereof.
3. Whether the learned trial Judge was right when in reaching her decision relied on her previous ruling in other decisions.

The 3rd Respondent’s Brief of Argument was filed on 18/7/05 and in it the 3rd Respondent through counsel framed two issues for determination and these are:-

1. Whether the learned trial Judge is right to have relied on the decision in another matter which is on all fours with the instant case as the judgment of the court
2. Whether the Appellant’s case is incompetent for failure to comply with the condition for the institution of this suit

The 5th Respondent’s Brief filed on 19/8/05 was deemed, filed on 26/10/05 and in it the 5th Respondent through their counsel formulated three issues which are as follows:-

1. Whether the lower court was right in holding that the Appellants did not comply with the conditions precedent to the invocation of the jurisdiction of the court before coming before it
2. Whether the Appellants were bound to exhaust the disputes resolution remedies provided in the Nigerian communications Act 2003 before approaching the court for adjudication on a matter bordering on alleged breaches of obligations imposed on the respondents under the Act.
3. Whether the court was right in relying on its decision(s) in cases with similar applications arriving at its ruling.

Having restated the issues for determination as formulated by the respective counsel I believe I can safely utilise two of the issues framed by the 4th Respondent in their Brief to settle the various issues that have arisen and these are:-

1. Whether the lower court was right in holding that the Appellants did not comply with the conditions precedent to the invocation of the jurisdiction of the court before coming before it
2. Whether the court was right in relying on its decision or decisions in cases with similar applications earlier decided by it in arriving at its ruling.

ISSUE NO 1

Learned counsel for the Appellant argued that the lower court was wrong in holding that Sections 86,87 and 88 (4) of the Nigerian Communication Act 2003, impose an obligation upon the appellant to request a statement of reasons and/or review from the respondent before instituting the substantive suit. That the Sections grant an aggrieved person, such as the appellant, with the option and not the obligation to request a statement of reasons and/or review from the respondents.

Learned counsel said the word “may” especially in Sections 86, 87 and 88 of the Nigerian Communications Act 2003 is optional, leaving the Appellants with a choice to either apply for administrative review or to institute an action against the Respondents in a court by law. That the word is merely directory and not compulsory which confer a discretionary power or duty. He cited Ohanaka v. Achugwo (1998) 9 NWLR (PT 564) 37; Emokpae v. University of Benin (2002) 17 NWLR (Pt 795) 139; UNILORIN V. Oluwadare (2003) 4 NWLR (pt 808) 557.

Learned counsel for the Appellants stated that the Appellants are not obligated to request a statement of reasons from the respondent before commencing the substantive action to determine whether the respondent had jurisdiction for refusing to process the appellant’s application for mobile licence. Also that the Appellants were not required to seek a review of the 1st Respondent’s refusal before proceeding to court and so the Appellants were justified to overlook, as they did and as the Supreme Court has sanctioned, the need to request a Statement of reasons before commencing the substantive action.

Mr. Uchendu of counsel stated that it is only after an aggrieved party has exercised the option of requesting a Statement of the Commission’s reasons for its decision that Section 86 of the Nigerian Communications Act in subsection (2) making use of the word “SHALL” to mandate the commission to provide a copy or a statement of reasons for the word “MAY” in subsection (1) of Section 86 and the use of the word “SHALL” in subsection (2) of the same Section is not fortuitous but a deliberate and calculated act by the legislature to indicate that the provisions of sub-section (1) of Section 86 NC Act 2003 is optional while sub-section (2) of the same Act is mandatory. He stated that the implication is that even though an aggrieved person has the option of requesting a statement of reasons and may indeed overlook that option, nevertheless once he has requested the same the commission has a responsibility to provide him with a statement of reasons, although the NC Act is silent on the period of time within which the Commission must provide the statement. Learned counsel for the Appellant contended further that Section 87(1) of the NC Act employing the word “may” is indicating that it is optional for an aggrieved person to request a review of the Commission’s decision once, such a request was made within the stipulated period. That once the aggrieved person has so elected to make the request prescribed in Section 87(1) of the NC Act, Section 87(2) of the same Act employed the word “shall” to indicate the mandatory nature of it’s provisions vis-a-vis the commission.

Learned counsel said that the legislature intended the provisions of Section 87(1) NC Act to be optional while that of Section 87(2) was intended to be mandatory hence the use of “may” in Section 87(1) and “shall” in Section 87(2). That the lower court was wrong to have interpreted those Sections as imposing a mandatory duty on an aggrieved person when in fact, the unambiguous connotation of those words convey a discretion. That where the words used in a statute are clear and unambiguous, the court is bound to give such words their ordinary and natural meaning. He cited Onyeanusi v. Miscellaneous Officers Tribunal (2002) 12 NWLR (pt 781) 227 at 250. Mr. Uchendu stated on that the literary interpretation of the statutory provisions is not inconsistent with Section 88 because the review will only lie after Sections 86 and 87 of the NC Act have been exhausted. That with respect to the optional remedies as envisaged under Sections 86 and 87 of the NC Act- such remedies are indeed exhausted once an aggrieved person has exercised his option of foregoing them. That indeed the appellant exhausted the remedies provided under Sections 86 and 87 of the NC Act, when it exercised the option of not requesting a statement of reasons and/or review from the respondent. That where there are two plausible interpretations in one aiding access to court and the other infringing on access to court, the court should adopt the interpretation that aids judicial access. He referred to Emuze v. V.C. University of Benin (1998) 6 NWLR (Pt 552) 142.

He stated that the lower court ought to have narrowly construed Sections 86, 87 and 88 of the NC Act having held wrongly that they regulate an aggrieved person’s access to court. That if the lower court had done that, it would have come to the conclusion that the lower court erred by failing to construe Sections 86, 87 and 88 of the NC Act so as not to deny the appellant the access to court. He cited Onwuchekwa v. N.D.I.C. (2002) 5 NWLR (pt. 60) 371.

Learned counsel for the Appellant further stated that even if the lower court was right in holding that Sections 86,87 and 88 (4) of the Nigerian Communications Act 2003 imposed an obligation upon the appellant, such requirement nonetheless, is invalid by virtue of its inconsistency with Sections 6(6) (b) and 36( 1) of the 1999 Constitution which guarantee the appellant a right to fair hearing in invoking the judicial powers of the lower court. That for the reason above the court should readily strike out such an enactment which is an infringement of Section 6 of the Constitution. He cited NNPC v. Fawehinmi (1997) 7 NWLR (Pt. 559) 598; Akulega v. B.C.S.C. (2001) 12 NWLR (pt. 728) 524; Amadi v. NNPC (2000) 10 NWLR (pt. 674) 76.

Learned counsel said that under Sections 86 -88 of the NC Act, an aggrieved person, such as the appellant must receive a statement of reasonsbefore he can proceed to court, even though there is no time limit within which the respondent is under an obligation to provide the aggrieved person with a statement of reasons and this impediment is not envisaged under Sections 6 (6) (b) and 36(1) of the 1999 Constitution.

Chief Chike Ofodile SAN for the 1st and 5th Respondent contended that the interpretation of Section 58(3) of the Nigerian Communications Act is that access to the court is by way of application for judicial review and this is hinged on certain procedures to be followed by way of some other remedies. That the Section is not to bar access to court or oust the jurisdiction of court, that it is actually meant to ease the burden of the courts by specifying certain steps that should make litigation a last option and save the judiciary’s valuable time. That these conditions precedent are purely procedural. That it is trite law that a law regulating access to court or specifying how to approach court is not unconstitutional. He cited Eze v. Okechukwu (2002) 18 NWLR (Pt. 799) 348.

The Learned SAN said that the Appellants did not exhaust any of the remedies that were specified, as the conditions precedent to filing as action to challenge the decision of the Nigerian Communications Commission. He referred to Sections 86, 87 and 88 of the Act; Madukolu v. Nkemdilim (1962) 1 All NLR 587; Aderola v. Abidoye (1999) 14 NWLR (pt. 637) 28 at 37; Vandervell Trustees Ltd v. White (1971) AC 912 at 916.

Learned counsel said the Appellants did not request reasons for the determination as specified by the statute and that the Appellants had not asked for a review as specified by the statute. That the stipulation qnd requirement of coming by way of an application for Judicial Review was deliberate and very special as it includes an application for leave to file for Judicial Review and so it was wrong for Appellant to have come by way of writ of summons and Statement of claim. That the requirement for leave is so fundamental that where that leave is not sought, all proceedings including judgment are null and void. He cited Nwabueze v. Okoye (1988) 4 NWLR (pt 91) 664.

The learned Senior Advocate stated that it is now settled law that the construction of “may” should depend on the examination of the whole Act. That there is no universal rule which can be applied but there are guidelines. He referred to Howard v. Baddington (1876-78) 1 – 3 Probate Division 203 at 211; Agaka v. Oladeji (2000) 13 NWLR (pt 683) 135 at 137.

Learned counsel for the 1st and 5th Respondent said what those Sections of the NC Act viz 86, 87 and 88 mean is that a person aggrieved cannot come to court without first asking the Appellant to review its determination. That having not so complied the Appellants action is incompetent and the court lacks jurisdiction to entertain the same. He cited Atolagbe v. Awuni (1997) 9 NWLR (pt. 522) 536.

Learned counsel for the 2nd Respondent stated that in interpreting a statute, regard must be had to the entire provisions of the statute. That it is not permissible to interpret a statute disjointly as it is a settled rule of construction that all the parts of a statute must be construed together in order to promote the general purpose of the lawmaker. He cited Egolum v. Obasanjo (1999) 7 NWLR (pt. 611) 355 at 404 – 405; Ayundo v. Gbenbo (1999) 9 NWLR (pt. 617) 71 at 96.

Learned counsel further stated that reading Sections 86, 87 and 88

of the Nigerian Communications Act together and the general intendment of the Nigerian Communications Act, it is obvious that the word ‘may’ has been used in a mandatory sense. That the guidelines stipulated in Sections 86, 87 and 88 of the Act for an aggrieved person to follow are not cosmetic. They are meant to be observed. That it cannot be disputed that the Appellants are aggrieved by the interconnection rates stipulated or fixed by the 1st Respondent. That it is also an accepted fact that the fixing of interconnection rate by the 1st Respondent is a decision within the definition of Section 86(4) of the Nigerian Communication Act. That reading the provisions as a whole, the word “may” as used in the statute imports a word of command and is not discretionary. That this is very apparent, if regard is had to Section 88(3) which imposes a penalty or sanction where the conditions stipulated in Sections 86 & 87 of the Act are not followed. That it bars the aggrieved person from going to court unless the aggrieved person had exhausted the remedies listed under Sections 86 & 87 of the Act. That the use of the word ‘may’ is mandatory and the provisions of Sections 86, 87 and 88 are policy legislation. Therefore that the learned trial Judge was correct when she held that the Appellants did not comply with the condition precedent to the invocation of the court’s jurisdiction and consequently struck out the suit.

Learned counsel for the 3rd Respondent said it is trite law that competence of court to adjudicate over a matter before it is, if it has jurisdiction to do so and a court is said to have jurisdiction if it met the conditions stated in Madukolu v. Nkemdilim (1962) 2 SCNRL 341; NEC v. Agboh (1992) 4 NWLR (pt. 236) 438.

Mr. Ajunwa of counsel said where a statute has provided for a way of initiating a proceeding the procedure must be adopted to confer jurisdiction on the court. He cited Obasanya v. Babafemi (2000) 15 NWLR (pt. 689) 1 at 18.

Learned counsel for 3rd Respondent said in the construction of a statute the simple, plain, ordinary, natural and grammatical meaning must be ascribed to the words used in the Act. He referred to R v. Bonbury (1834) 1 A & E 136 at 142; Re A Debtor (1997) All ER5332 at 536.

Mr. Ajunwa said that a statute is not read and construed in isolation but to be read in conjunction with other provisions so as to give the actual meaning intended by the legislature. He cited Aromolo v. Akapo (2003) 8 NWLR (pt. 823) 514; Nigeria Engineering Works Ltd v. Dunlop Ltd (1997) 10 NWLR (pt. 525) 481; Adesola v. Abidoye (1999) 14 NWLR (pt. 637) 28; Obioha v. Dafe (1994) 2 NWLR (pt. 325) 157.

Learned counsel further submitted that the condition imposed by Sections 86, 87 and 88 are mandatory procedural regulations for the validity of an action under the Nigerian Communications Commission Act 2003 and not a condition precedent which has the capacity to delay the vesting of right to sue on an aggrieved person. He cited Amadi v. NNPC (2000) 10 NWLR (pt. 674) 110 at 113.

Mr. Adetola learned counsel for the 4th Respondent submitted that the Appellants’ position does not accord with the true intendment of the legislature as can be gleaned from a wholistic consideration of the provisions of the Act. He cited Agundo v. Gbenbo (1999) 9 NWLR (pt. 61) 71 at 96; Okoro v. Delta State Steel Company Limited (1990) 2 NWLR (pt. 130) 87.

Learned counsel for the 4th Respondent said the Commission has numerous functions which functions are provided for in Section 4(1) (a) – (w) of the Act and from those provisions, the Commission is enjoined to examine and resolve complaints and obligations filed before it, it also empowers the Commission to examine and resolve disputes between licensed operators, subscribers etc. Also that elaborate provisions are made in Section 104 – 105 and 106 of the Act governing consumer protection and quality of service and the commission is empowered thereunder to resolve complaints from consumers. That it is on the provision of Sections 4(1) (p) of the Act that the provisions of Sections 86 – 88 of the Act are predicated. That a combined reading of Section 2 and 73 of the Act leads to the irresistible conclusion that “persons who are subject to the Act” as used in Section 73 refer to providers and users of telecommunications Services and therefore the parties within the meaning of Section 73 of the Act. Therefore on the strength of all the foregoing and upon a careful and proper construction of Section 4(1) (p) of the Act, the Appellant was bound to comply with the provisions in Sections 73 – 78 and Sections 86 – 88 of the Act.

Learned counsel for the 4h Respondent went on to say that in the court below, the 1st and 5th Respondent’s challenge to the jurisdiction of the court was made by a motion on Notice dated 2nd June 2004 and filed on 6th April 2004 and 1st Respondent in supporting affidavit had averred that the Appellants did not fulfill the requisite statutory conditions precedent to the invocation of that court’s jurisdiction that is requesting for reasons for any determination nor approach the 1st Respondent for administrative review of any determination of the interconnect rates. That the Appellants did not file any counter affidavit to challenge or contradict the depositions and so they are to be deemed established. He cited the cases of Agbaje v. Ibru Sea Food Limited (1972) NSCC338 at 341; Ajomale v. Yaduat (1991) 5 NWLR (pt. 191) 266.

Learned counsel for the 4th Respondent went along the arguments proffered by the other Respondents as regard Sections 86 – 88. He cited Miscellaneous Offences Tribunal v. Okorafor (2001) 18 NWLR (pt. 745) 295 at 327; Porbeni v. Parbod Finance & Investment Co. (2002) 3 NWLR (pt 754) 452 at 466 – 467.

Mr. Adetola further stated that the Appellant’s alleged failure on the part of the lower court to strike down the relevant provisions of the Act for its inconsistency with Sections 6(6) and 36(1) of the constitution which guarantees the right of fair hearing and access to court. That there was no time the Appellants invited the court below to examine the constitutionality or otherwise of those Sections nor was it considered in the court below. That no ground of appeal or any issue can be competently formulated to give rise to a determination of the constitutionality or otherwise of those Sections of the Act. He cited Oredoyin v. Arowolo (1989) 4 NWLR (pt. 114) 174 at 211; Babalola v. The State (1989) 4 NWLR (pt. 115) 264 at 294; Igbinovia v. UBTH (2000) 8 NWLR (pt. 667) 53 at 65 -66.

That this court should strike out aspects of grounds 1, 2, 3, & 6 touching on the constitutionality or otherwise of those Sections. Having considered those submissions above I would state that the competence or not of a court has been brought into question in answering the issue posed in this Section. I would therefore refer to some judicial authorities in relation to this matter of competence of the court to adjudicate. See Porbeni v. P.F. & Investment Co. (2002) 3 NWLR (pt. 754) 452 where it was held:-

“A court is competent when:-

(a) it is properly constituted as regards numbers and qualification of its members on the bench, and no member is disqualified for one reason or another;

(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

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

Any defect in competence is fatal for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to adjudication see Madukolu v. Nkemdilim (1962) 2 SCNLR 341”.

Where a precondition for the doing of an act has not been complied with no act subsequent thereto can be regarded as valid. This is because the act to which it is subject has not been done. It is however a different consideration where the non-compliance relates to a condition not fundamental to the constitutive elements but is subsequent to the act sought to be done. This is because the act is not conditional to the performance of the act not complied with. The last mentioned non-compliance is a mere irregularity. Concisely put, where the law prescribes the doing of a thing as a condition for the performance of another, the non- doing of such thing renders the subsequent act void. See Nwabueze v. Okoye (1988) 4 NWLR (pt. 91) 664.

Where a statute has prescribed a particular remedy, an aggrieved party should be left to exhaust the remedy; see Adesola v. Abidoye (1999) 14 NWLR (pt. 637) 28; Ariori v. Elema (1983) 2 SCNLR 1.

Where the legislature clearly stipulates the procedure to be followed when an act or a decision of an authority is challenged, the party aggrieved can only challenge the decision successfully in the manner laid down in the enabling statute. See Eguamwense v. Amaghizenwen 91993) 9 NWLR (pt 315) 1; Faloye v. Omoseni (2001) 9 NWLR (pt. 717) 190.

Where an aggrieved party has not resorted to the remedies statutorily available to him on the infringement of his alleged right by the prescribed authority, such a party has therefore not exhausted the remedies available to him and has in consequence not satisfied the preconditions for access to court see Faloye v. Omoseni (2001) 9 NWLR (pt. 717) 190 at 200 – 201; Adesola v. Abidoye (1999) 14 NWLR (pt. 637) 28.

The superior courts are not expected to and do not abdicate the exercise of their constitutional supervisory judicial jurisdiction merely because of a statutory provision suggesting the exclusion or restriction of the exercise of such jurisdiction. An ouster clause merely does not put the superior court to flight. See Miscellaneous Offences Tribunal v. Okoroafor (2001) 18 NWLR (Pt.745) 295; Barclays Bank of Nigeria Ltd v. Central Bank of Nigeria (1976) 6 SC 175; Guardian Newspapers Ltd v. Attorney General Federation (1999) 9 NWLR (pt. 618) 187; Doherty v. Balewa (1961) 2 NSCC 248.

If a law or a rule of practice prescribes that proceedings in respect of a particular cause of action shall be commenced by one method, a litigant would be wrong to commence the proceedings in respect of that particular cause of action by any other method. See Kankara v. COP (2002) 13 NWLR (pt. 785) 596; Obajinmi v. Attorney General Western Nigeria (1968) NWLR 96.

The rules of court must, prima facie be obeyed and the courts have inherent jurisdiction to ensure compliance with rules by litigants. The court can strike out any process not filed in accordance or in compliance with the relevant rules. See Kankara v. COP (2002) 13 NWLR (pt. 785) 596.

It is the law that where a statute creates a right and in plain language gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce that right must resort to that remedy or that Tribunal and not to others. Thus, where a specific remedy is given by a statute, it thereby deprives a person of the right to insist upon a remedy of any other form than that given by the statute. See Salako v. Ajao (1994) 8 NWLR (pt. 360) 47; Ajewole v. Adetimo (1994) 3 NWLR (pt. 335) 739.

In another form it is safe to say that once the law has prescribed a particular mode of exercising a statutory power, any other mode of exercise of it is excluded. See Obioha v. Dafe (1994) 2 NWLR (pt. 325).

What is stated above is not to depart from the fact that courts now emphasise the doing of substantial justice rather than reliance on technicalities. See Egolum v. Obasanjo (1999) 7 NWLR (pt. 611) 355 at 387; Obakpolor v. State (1991) 1 NWLR (pt 165) 113; Eme v. State (1964) 1 All NLR 416; Anya v. State (1965) NWLR 62; Akpan v. State (1986) 3 NWLR (pt 27) 225.

The word “may” is an auxiliary verb which qualifies ability, competence, probability or contingency. Regardless of the instrument in which it appears whether Constitution, statute, deed or contract, the courts sometimes construe “may” as “shall” or “must” so that justice may not be slave to grammar. However, as a general rule, the word ‘may’ will not be treated as a word of command unless there is something in the con or subject – matter of the Act to indicate that it was used in such sense. In the construction of statutes and rules the word ‘may’ as opposed to ‘shall’ is indicative of discretion or choice between two or more alternatives, but the con in which the word appears must be the controlling factor. In other words, in interpreting the word ‘may’ the con in which the word appears is the controlling factor whether it has a mandatory or directory effect. See I.C.A.N v. Attorney General Federation (2004) 3 NWLR (pt 859) 186; Obioha v. Dafe (1994) 2 NWLR (pt 325) 157; Atayi Farms Ltd v. N.A.C.S. Ltd (2003) 4 NWLR (pt .810) 427.

Although the etymological meaning of “may” is permissive and facultative, and seldom can mean “must” and imperative, it assumes this last mentioned character, when there is anything in the provision that makes it the duty on the person on whom the power is conferred to exercise that power, when the exercise of the power is coupled with a duty on the person to whom it is given to exercise it, then it is imperative per Karibi-Whyte JSC in Adesola v. Abidoye (1999) 14 NWLR (pt 637) 28 at 56; Bakare v. Attorney General Federation (1990) 5 NWLR (pt 152) 516.

The word “shall”, when used in an enactment is capable of bearing many meanings. It may be implying futurity or implying a mandate or direction or giving permission. If it is used in a mandatory sense then the action to be taken must be to obey or fulfill the mandate exactly, but if it is used in a directory sense then the action to be taken is to obey or fulfill the directive substantially see Amadi v. NNPC (2000) 10 NWLR (pt 674) 76; Ifezue v. Mbadugha (1984) 1 SCNLR 427; State v. Ilori (1983) 1 SCNLR 94.

The word “may” is merely directory and not compulsory. It confers a discretionary power. See Emokpae v. University of Benin (2002) 17 NWLR (pt. 795) 139; Amaefule v. State (1988) 2 NWLR (pt 75) 156. In some instances though the word “may” would be interpreted as being mandatory. See Edewor v. Uwegba (1987) 1 NWLR (pt 50) 313.

The aim of interpretation of statutes is to discover the intention of the legislator through the actual words used in the law. In the consideration to have a comprehensive intention of the legislator the provisions of all Sections must be considered and not a particular Section in isolation of other Sections or out of con of the other Sections. See Arowolo v. Akapo (2003) 8 NWLR (pt 822) 451.

It is necessary to set out the provisions of Sections 86 to 88 of the Nigeria Communications Act:-

86…(1) A person who is aggrieved or whose interest is adversely affected by any decision of the Commission made pursuant to the exercise of the powers and functions under this Act or Its subsidiary legislation (”aggrieved person’) may request in writing to the Commission for a statement of the reasons for the decision.

(2) The Commission shall, upon such written requests by a aggrieved person, provide a copy of a statement of reason for the decision and any relevant information taken into account in making the decision.

(3) The Commission is not required to publish, or to disclose to the aggrieved person a statement of reasons or part of a statement of reasons if the publication or disclosire would:-

(a) disclose a matter that is, in the opinion of the Commission of a confidential character,

(b) be likely to prejudice the fair trial of a person or

(c) involve the measurable disclosure of personal information about any individual (including a deceased person).

(4) In this Chapter “decision” includes any action, order, report; direction.

87….(1) An aggrieved person may at any time within but not later than 30 clays after the date of receipt of the Commissions Statement of reasons specified in Section 86(2) of this Act request the Commission in writing for a review of the Commission s decision and specify therein the reasons and basis for his request.

(2) Subject to subsection (4) of this Section/ upon receipt of the aggrieved persons written submissions of the Commission shall meet to review its decision taking into consideration the submissions of the aggrieved person under subsection (1) of this Section.

(3) The Commission may in carrying out the review of its function under this part, use and exercise any of its powers under this Chapter.

(4) The Commission shall not later than 60 days from the date of receipt of the aggrieved persons written submissions. Conclude Its review of the decision and inform the aggrieved person in writing of its final decision thereon and the reason therefore.

88.(1) Subject to Section 87 of this Act and subsections (2) and (3) Of this Section, an aggrieved person may appeal to the Court for a judicial review of the Commissions decision or other action.

(2) The decision or direction of the Commission that is the subject matter of an application for judicial review shall subsist and remain’ binding and valid until it is expressly reversed in a final judgment or order of the court.

(3) A person shall not apply to the court for a judicial review unless that person has first exhausted all other remedies provided under this Act.

In view of these provisions Section 86 – 88 of the Nigerian Commissions Act I do not see how I can flow along the submissions of learned counsel for the Appellant that the word “may” used in Sections 86 and 87 was deliberate on the part of the legislature so as to make administrative review optional, This is because all the three Sections 86 – 88 were intended to be read together and not isolated one from the other thereby choosing what Section to utilize solely to the exclusion of the others. I say this in the light of the fact that the Sections are intertwined and one cannot go without taking cognizance of the others. This is all the more so with the authoritative Section 88(3) which had stated in clear terms that an aggrieved person has no business approaching the court without exhausting all the other remedies provided by the Act, It therefore becomes quite unsettling to understand from what angle the Appellant is posturing in interpreting “may” in this regard to be taken as optional whereas in the statute it was and is intended to be mandatory see Edewor v. Uwegba (1989) 1 NWLR (pt. 50) 313; Adesola v, Abidoye (1999) 14 NWLR (pt 637) 28 at 56.

Furthermore it is clear from the statute in this case the Nigeria Communication Act Sections 86 – 88 that exhausting those remedies in Sections 86, 87 are the condition precedent to the exercise of the court’s jurisdiction. Stated different a party has no leg with which to come near the court without first digesting those remedies in the Act. In instituting actions in court, conditions are imposed either by the common law or legislation. Such conditions include giving of notice as in the case of bringing action against government or government agency. See Atolagbe v. Awuni (19970 9 NWLR (pt 522) 536. Cases constantly occur in which, although everything has happened which would at common law prima facie entitle a man to a certain sum of money, or vest in him a certain right of action, there is yet something more which must happen, in the particular case before he is entitled to sue, either by reason of the provision of some statute or because the parties have expressly so agreed. This is something called a condition precedent. It is not of essence of such a cause of action, but it has been essential. It is an additional formality superimposed on the law. See Atolagbe v. Awuni (1997) 9 NWLR (pt. 522) 536 at 566 paras G – H.

“Condition” is a provision which makes the existence of a right dependent on the happening of an event; the right is then conditional as opposed to an absolute right. A true condition is where the event on which the existence of the right depends is in the future and uncertain.

A “condition precedent” is one which delays the vesting of a right until the happening of an event. See Atolagbe v. Awuni (supra) 562 para F.

The Learned counsel for the Appellant had sought to blackmail the court into the guilt of the infringement of the principle of fair hearing.

The right to fair hearing being a constitutional right, the breach of it in any trial, investigation or inquiry nullifies the trial, investigation or inquiry and any action taken on them is also a nullity. See Akulaga v. B.S.C.S (supra) at 580; Adigun v. Attorney General Oyo State (1987) 1 NWLR (pt 53) 678.

The right to be heard is such an important, radical and protective right that the courts strain every nerve to uphold, and even imply it, where a statutory form of protection would be less effective if it does not carry with it the right to be heard. See Akulega v. B.S.C.S.C. (supra) 578; Olatunbosun v. NISER (1988) 3 NWLR (pt 80) 25; Aiyetan v. NIFOR (1987) 3 NWLR (pt 59) 48.

If the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decisions would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.

Natural justice is an elementary and fundamental principle of the administration of justice in Nigeria. See Akulega v. B.S.C.S.C. (supra) 581, 595; Adeyemi v. Y.R.S. Ike-Oluwa & Sons Ltd (1993) 8 NWLR (pt 309) 27; State v. Onagoruwa (1992) 2 NWLR (pt 221) 33.

Having restated the principles of natural justice and in particular that of fair hearing I cannot be sucked into this captivating style of the Appellant since those principles of fair hearing cannot be taken in vacuo without due regard to the relevant statute in issue as in this case.

Where a provision ousting the jurisdiction of the court is clear and unambiguous, the court is bound to apply it as it is. The court, however still has the jurisdiction to decide whether it is not precluded from hearing the subject matter of the action. See Onyeanusi v. Miscellaneous Offences Tribunal (2002) 12 NWLR (pt 781) 227.

Where a statute seeks to deprive the court of the exercise of its jurisdiction on a matter, such a statute must be strictly and scrupulously construed. See Ekpo v. Calabar Local Government Council (1993) 3 NWLR (pt 281) 324.

Ouster clauses are interpreted more liberally on the side of retaining and preserving the court’s jurisdiction. See Emuze v. University of Benin (2002) 8 NWLR (pt 828) 378; Peenok Investment Ltd v. Hotel Presidential 91983) 4 NCLR 122; Barclays banks of Nigeria v. Central Bank of Nigeria (1976) 1 All NLR (pt. 1) 401; Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt 135) 688.

From the foregoing therefore I have no difficulty in answering this Issue NO. 1 in the positive and swing along with the contentions of the Respondents that the Appellant not complying with the conditions precedent have deprived themselves of the exercise of the court’s jurisdiction. Infact the court’s jurisdiction was ousted on account of the non-compliance with the conditions precedent. See Madukolu v. Nkemdiiim (supra).

ISSUE NO 2

Learned counsel for the Appellant submitted that the lower court was wrong in finding and/or holding that the parties agreed that a decision in another case would bind the substantive suit. That the parties never agreed that a decision in an earlier case would bind the substantive suit and in the absence of such an explicit agreement it was wrong for the lower court to make such a finding which finding is perverse and should be set aside as the same had occasioned a grave miscarriage of justice.

Furthermore learned counsel said the trial court erred when it relied on legal and factual issues raised suo motu in reference to issues in another case in striking out the substantive suit since that Court had not given the parties an opportunity to be heard on such points particularly the party that may suffer some disadvantage or disability as a result of the point or points. This is to ensure that parties are given a fair hearing in accordance with the audi alteram parter rule. He cited Kankara v. COP (2002) 13 NWLR (pt 785) 596 at 601; Ajao v. Ashiru (1973) 11 SC 23; Kuti v. Balogun (1978) 1 SC 53; Ejouhomu v. Edor-Eter Mandilas Ltd (1986) 5 NWLR (pt 38) 1; Adegoke v. Adibi (1992) 5 NWLR

Costs of N10,000.00 to the 1st Respondent to be paid by the Appellant.

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Other Citations: (2007)LCN/2185(CA)