JOS ELECTRICITY DISTRIBUTION PLC v. BARR. DASAT LENGNAN JOHN
(2018)LCN/12324(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of December, 2018
CA/J/290/2017
RATIO
INTERPRETATION: MEANING OF ‘MANDAMUS’
“By the Black’s Law Dictionary 9th Edition; ‘mandamus’ means ‘we command’. It is a ‘writ issued by a Court to compel performance of a particular act by a lower Court, or a governmental officer or body, usually to correct a prior action or failure to act.’ Mandamus can be ‘Alternative or Peremptory’. Alternative mandamus: ‘is a writ issued upon the first application for relief, commanding the defendant either to perform the act demanded or appear before the Court at a specific time to show cause for not performing it.’ Peremptory Mandamus is ‘An absolute and unqualified command to the defendant to do the act in question. It is issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandamus.’ Peremptory mandamus is the more prevalent in our legal jurisprudence and the command is usually directed to some person, corporation, government entity, government official, organization, or inferior Court within the jurisdiction of the superior Court ordering the performance of the act.” PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
JOS ELECTRICITY DISTRIBUTION PLC Appellant(s)
AND
BARR. DASAT LENGNAN JOHN Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment):
The decision of the High Court of Plateau State, holden at Jos, in SUIT NO: PLD/J309/2016, delivered by P.D. Damulak, J. wherein the trial Court granted the claims of the Respondent, and, inter alia, decreed mandamus against the Appellant, which decision is found at Pages 137 – 158 of the records; is the challenge of this appeal.
By an application filed 1st June, 2016, the trial Court made an order of mandamus Ex Parte on 7th June, 2016. Consequent upon the ex parte order, the Respondent at the trial Court, by an Originating Motion dated 8th June, 2016, sought the reliefs set out hereunder:
1. AN ORDER OF MANDAMUS compelling the Defendant/Respondent to reconnect the house of the Plaintiff with electricity light for being financially up to date in payment of his electricity prepayment credit.
2. AN ORDER declaring the failure on the part of the Defendant/Respondent to adhere to laid down procedures as provided under the regulations of the National Electricity Regulatory Commission (NERC) setting down the mode for disconnecting a defaulter in disconnecting the electricity light of the Plaintiff /Respondent as illegal.
3. AN ORDER directing the Defendant/Respondent to refund the cost incurred by the Plaintiff/Applicant in prosecuting this application which stands at the sum of One Hundred and Fifty Thousand Naira (N150, 000.00) only.
4. AN ORDER directing the Defendant/Respondent to foot damages of Ten Million Naira (N10, 000, 000.00) for unwarranted and unlawful disconnection of the Plaintiff/Applicant’s house from the service grid which was carried out despite the fact that the Plaintiff/Applicant’s subscription subsist thus not only limiting his person and standing in the society but constitute an infringement of his right to enjoy light and thus, endanger the life of the Plaintiff/Applicant’s and hi family which cannot be quantified by monitory (sic) value.
5. A MANDATORY ORDER commanding the Defendant/Respondent to deliver an apology in writing to the Plaintiff/Applicant for the unwarranted and continued disconnection without recourse to the laid down procedure.
Upon service of the Originating Summons on the Appellant who was the Defendant, the Appellant filed a preliminary objection which was taken along with the Originating Summons. On 4th October, 2016, the learned trial Judge dismissed the Preliminary Objection of the Appellant herein; whilst he entered judgment for the Respondent. The Ruling and Judgment is at Pages 137 – 158 of the Record. Dissatisfied with the judgment of the trial Court, the Appellant brought this appeal which was heard on 31st October, 2018; after counsel on both sides had duly exchanged their briefs.
Prof. A.S. Shaakaa Esq., with F. O Achadu Esq., for Appellant adopted and relied on the Appellant?s brief and reply brief in urging the Court to allow the appeal. On their own, M. N. Dongtoe with J. A. Amamma, H.H. Shanglong Esq., who appeared for the Respondent, adopted and relied on the Respondent?s brief in urging the Court to dismiss the appeal.
In the Appellant’s brief settled by Prof. A. S. Shaakaa, a lone issue was distilled for the determination of the appeal to wit:
“Whether the Learned Trial Judge was right, and had jurisdiction, to hear the case of the Appellant for an order of Mandamus and the ancillary reliefs thereto, notwithstanding that the Appellant, as revealed by the affidavit evidence, is a private enterprise; and NOTWITHSTANDING that the relationship between the Appellant and the Respondent is strictly contractual.”
For the Respondent, Mr. M. N. Dongtoe raised the underlisted following issues for determination.
1. ?Whether Mandamus can lie to effect a statutorily govern relationship such as spelt out by the Electric Power Sector Reform Act No. 6 2005 Connection and Disconnection Procedures for Electricity Services 2007 made pursuant to the Electric Power Sector Reform Act (EPSRA) No. 6 of 2005 in view of the extant provisions of the Evidence Act 2011 Cap. E.14 being gazettes of the Federal Government of Nigeria?
2. Whether judicial review is apt where disputations on a particular administrative conduct in a statutory relationship arose when one party with statutorily backing alleged a certain procedure after demand by him and refusal by the other party to perform same?
3. Whether the Defendant/Appellant had discharged the evidential burden of proof on it having not tendered any valid documents of incorporation and its purported contract document with the Plaintiff/Respondent given the vehement challenge by the Plaintiff/Respondent to substantiate same.
The learned counsel for the Respondent sought to argue issues one (1) and two (2) together while he shall argue issue number 3 on its own.
From the issues raised by the parties, issues 1 and 2 of the Respondent seeks to achieve what the sole prayer of the Appellant means to achieve. Therefore prayers 1 and 2 of the Respondent is technically the same with the lone issue raised by the Appellant in my opinion. It is my view that the combined referred issues, when rephrased in a more elegant way will settle the dispute between the parties in this appeal. Consequently, the sole issue that will be resolved in this appeal is:
Whether with the facts and circumstances of the case an order of mandamus could be made against the Appellant.
SUBMISSIONS ON ISSUE
The learned counsel for the Appellant submitted that the Appellant is a private enterprise that was operating in the electric power sector, sequel to the privatisation of electric power distribution by the Federal Government of Nigeria. He noted that it was a consensus of the parties, at the trial Court, as established by the Affidavit evidence placed thereat, that the Respondent was in a contractual relationship with the Appellant whereby the Respondent was a prepaid customer of the Appellant, with Account No. 62.0101.0011.4045; Meter No. 106008162620, and Prepaid Card No. 44294641210F4C48, for the supply and consumption of electricity. He referred to Paragraph 7 of the Affidavit in support of the Originating Motion at Page 29 of the records, for the Respondent’s testimony in this respect, which was not traversed by the Appellant and in its Counter-Affidavit, opposing the grant of the Originating Motion.
Prof. Shaakaa submitted on when an order of mandamus could be made and argued. That for a cause of action to exist, justifying the remedy of mandamus, the applicant, like the Respondent in this appeal, must evince that the respondent owes him a duty which is created by statutes, which duty must be PUBLIC in character. He cited: C.B.N. V. S.A.P. (NIG.) LTD. (2005) 3 NWLR (PT. 911) 152 @ 200 ? 201; AKILU V. FAWEHINMI (NO.2) (1989) 2 NWLR (PT. 102) 122 @ 174; FAWEHINMI V. IGP (2002) 5 SC (PT. 767) 63.
The learned counsel for the Appellant contended that, being a contract, all the rights and duties created under this relationship are contractual and private in character. Therefore, their enforcement cannot be vide mandamus. He submitted in effect, that, there was no cause of action in the instant suit against the Appellant, at the trial Court, enforceable through the mechanism of mandamus. He urged the Court to so hold.
The learned counsel referred to ATUNGWU V. OCHEKWU (SUPRA) and ADH LTD. V. MIN. FCT (SUPRA) relied on by the Respondent to submit that the duo are not applicable to the instant case.
He urged the Court to resolve the issue in favour of the Appellant and allow the appeal.
Mr. Dongtoe, learned counsel for the Respondent referred to: SECTIONS 8, 10, 15, 16, 19, 24, 26(1) (G) (2) (4), 27, 28, 62(1) (D), 63, 67(1) (A) (B) (C) (2), 71(11), 80, 81, 91 AND 94 (1) EPSRA NO. 6 OF 2005; to submit on the existence and functionality of the Appellant. He argued on the basis of the above sections of the Act, that since the functions of the Appellant was gazetted, it created a statutory public duty on not only the Appellant but on other categories of corporations created therein by the Act alongside to perform certain purely ministerial functions. He relied on:APAPA V. INEC (2012) 8 NWLR (PT. 1303) 409 CA.
The learned counsel argued that in this scenario where the trial Court was confronted with disconnection of a consumer it could only be done in line with paragraphs 9(a-d) and Section 6(c) (i) and (ii) of the Connection and Disconnection Procedures which lays the procedure to be followed in the interest of the public. He further submitted that since there was nothing placed before the trial Court by the Appellant suggestive of the fact that it has a different procedure for connecting or disconnecting a defaulter or any person for any reason other than the wordings of the EPSRA No. 6 of 2005 Connection and Disconnection Procedures for Electricity Services 2007; the application for judicial review in this particular instance, by way of mandamus to compel the Applicant to redress its steps was appropriate. He argued that the Respondent came properly by judicial review as provided for under Order 43 Rule 3 (1) & 2(a-b) of the Plateau State High Court (Civil Procedure) Rules 1987.
He cited: ATUNGWU V. OCHEKWU (2013) 14 NWLR (PT 1375) 605 AT PP. 632-633 SC; A.D.H LTD. V. MINISTER OF CAPITAL TERRITORY (2013) 8 NWLR (PT. 1357) 493 SC.
He urged the Court to resolve the issue in favour of the Respondent and to dismiss the appeal.
In his reply brief, I have observed it is a response to issues sparked off by the Respondent in the introductory part of his brief. There was no Notice of Preliminary objection neither was any raised in the Respondent?s brief. The issues did not arise from the grounds of appeal, I therefore deem whatever issue wrongly raised by the Respondent as mere remarks and observations which does not qualify for resolution by this Court. I accordingly discountenance the same and the reply of the Appellant on them.
RESOLUTION OF SOLE ISSUE
By the Black’s Law Dictionary 9th Edition; ‘mandamus’ means ‘we command’. It is a ‘writ issued by a Court to compel performance of a particular act by a lower Court, or a governmental officer or body, usually to correct a prior action or failure to act.’ Mandamus can be ‘Alternative or Peremptory’.
Alternative mandamus: ‘is a writ issued upon the first application for relief, commanding the defendant either to perform the act demanded or appear before the Court at a specific time to show cause for not performing it.’ Peremptory Mandamus is ‘An absolute and unqualified command to the defendant to do the act in question. It is issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandamus.’
Peremptory mandamus is the more prevalent in our legal jurisprudence and the command is usually directed to some person, corporation, government entity, government official, organization, or inferior Court within the jurisdiction of the superior Court ordering the performance of the act. Mandamus is not a writ of right, it is not consequentially granted of course, but only at the discretion of the Court to whom the application for it is made; and this discretion is not exercised in favour of the applicant, unless some just and useful purpose may be answered by the writ. The purpose of this writ is to prevent disorders from a failure of justice; therefore it is meant to be used on occasions where the law has established no specific remedy, and where in justice and government there ought to be one.
In an outline, the prerogative writ of Mandamus is issued or ordered by the Courts under the following conditions:
1. When there is no other effective and efficient legal remedy available.
2. Where an Applicant for the grant of the Order shows that he has sufficient legal right to protect as well as want of specific legal remedy.
3. Where the Applicant had first and foremost made a distinct demand of the public body to perform the duty in question and that body failed and or refused to do so.
4. Where there is undue delay in the performance of public duty.
5. Where the law enjoins a duty to be performed by an officer and that officer neglects to carry out such a duty.
6. Where the proposed recipient of the order is either an individual, body, Tribunal or inferior Court with a public duty to the applicant, it is not available where there is no duty but only a discretion
7. Where the duty sought to be performed is reasonably certain and of public nature.
8. Where the order is in the public interest.
See: AYIDA & ORS V. TOWN PLANNING AUTHORITY & ANOR (2013) LPELR 20410 (SC); FAWEHINMI V. AKILU (1987) 4 N.W.L.R. (PT.67) 797; R. V. WITTS & BERKS CANAL CO. (1835) 3 AD & EC477; R. V. STOKE-ON-TRENT TOWN CLERK (1912) 2 KB 518; HALSBURY’S LAWS OF ENGLAND 4TH EDITION VOLUME 1 PAGE 134 PARAGRAPH 124; FAWEHINMI V. INSPECTOR GENERAL OF POLICE (2002) 7 N.W.L.R. (PT. 767) 606; CHIEF OHAKIM V. CHIEF AGBASO (2010) 6 – 7 S.C. 85; SHITTA BEY V. FEDERAL PUBLIC SERVICE COMMISSION (1981) LPELR 3056 (SC); ODUNSI & ORS. V. ODUNSI (1979) LPELR 2246 (SC); R V. NORTHUMBERLAND QUARTER; SESSIONS EX P. WILLIAMSON (1965) 1 WLR. 700; RE FLETCHER APPLICATION (1970) 2 ALL ER.57; R. V. VESTRY OF ST. PANCRAS (1890) 24 QBD. 371; PADFIELD V. MINISTER OF AGRICULTURE, FISHERIES AND FOOD (1968) AC. 997 (1968) 1 ALL ER. 694 HL; R. V. BEACONTREE J.J. EX. P. MERCER (1970) CR. LR.103; OZOGULA 11 V. QUEEN (1962) LPELR 25148 (SC); AKILU V. FAWEHINMI (NO. 2) (1989) 2 NWLR (PT. 102) 122.
On the argument that the relationship between the Appellant and Respondent is contractual, outside the fact that the Respondent pays for his light there is no other ingredient of contract that is present.
The Jos Electricity Distribution Plc., is not a mere private enterprise but one of the successor companies incorporated under the Companies and Allied Matters Act pursuant to the steps taken by the National Council on Privatisation after the formation of the initial holding company under Section 1 of the Electric Power Sector Reform Act; for assuming the assets and liabilities of the initial holding company, with functions relating to distribution of electricity. See: Sections 8, 24, and 62 (1) (d) of the Electric Power Sector Reform Act. By Section 10 of the Electric Power Sector Reform Act (referred hereafter as EPSRA), assets, liabilities, rights, obligations etc of the initial holding company were transferred to the Appellant amongst other successor companies. Subject to Section 10 (7) (1), the referred transfer released the initial holding company from liabilities and obligations, which means the duties and rights of the initial holding company which it took over from National Electric Power Authority now rests on the Appellant and other Competitive Electricity Marketers. Before any Electricity Marketer can be issued with a license be it interim, it must have accomplished the transfer of assets, liabilities and obligations process. See: Section 23 EPSRA. This invariably means the Appellant had by the transfer order which preceded his license metamorphosed into the exercise as it were the duties of National Electric Power Authority (NEPA). The Appellant cannot therefore rightly contend that it is a mere private enterprise which does not exercise duty of public nature let alone owe any one public duty. This is so because all the duties, obligations, rights, liabilities of NEPA transferred to Power Holding Company of Nigeria ( PHCN) have now been transferred to the successor companies which the Appellant is one of; meaning the Appellant owes public duty to its consumers.
The holding out of the successor companies to step into the duties and obligations of NEPA in a competitive manner is the whole essence of EPSRA 2005. Indeed EPSRA is an Act to provide for the formation of companies to take over the functions, assets, liabilities and staff of NEPA, to develop competitive electricity markets, to establish the Nigerian Electricity Regulation Commission; to provide for the licensing and regulation of the generation, transmission, distribution and supply of electricity; to enforce such matters as performance standards, consumer rights and obligations; to provide for the determination of tariffs; and to provide for related matters. By Sections 63 and 67 EPSRA and for what I have said above, the Appellant herein is under statutory duty to connect customers for the purpose of receiving the supply of electricity subject to terms and conditions as the commission may fix in its license. Also by the same Act, the Nigerian Electricity Regulation Commission is empowered to develop, in consultation with the licensees, consumer protection standards. Such standards includes: procedures for disconnecting non-paying customers or for those in breach of other terms and conditions. The Act requires the Licensees of which the Appellant is one, to adhere to the standards and procedures so developed by the Commission. See: Sections 80 (1) (f) and (2); 81 EPSRA of 2005.
The Respondent’s action at the trial Court stemmed on the fact that the Appellant did not issue him with required statutory notices before disconnecting his light in line with the Commission’s procedure for connection and disconnection of electricity services as in the gazette. Paragraph 6 (c) (i) (ii) of the Federal Republic of Nigeria Official Gazette No. 103 Lagos- 2th December, 2007 Vol. 94 vide Government No. 72 Page B485 – 492 titled Nigerian Electricity Regulatory Commission’s Connection and Disconnection Procedures for Electricity Services 2007 S.I.NO. 41 OF 2007 published under the Electric Power Sector Reform Act No. 6 of 2005, provided thus:
(c) where, due to an act or omission of a customer, a meter located in his premises is inaccessible to be read for a period of three consecutive bills:
Provided that the Distribution Company
(i) Informs the Customer by written notice or telephone contact of the inaccessibility of the meter and requests him to provide access arrangement and he fails to do so.
(ii) Gives the Customer a written warning that unless he provides access by a given date (which shall not be less than 10 working days to enable the Customer provide reasonable access arrangement) electricity supply to the Customer shall be disconnected.
See also: Paragraph 9 (a-d) of the Connection and Disconnection Regulations Procedures (supra).
By the rule pursuant to EPSRA as stated above, it is a statutory duty placed on the Appellant to issue the Respondent with the relevant notices and in the prescribed manner before proceeding to disconnect his light. This the Appellant failed to do from the avalanche of evidence on the records. The only defence put forth for this by the Appellant is that its relationship with the Respondent being contractual and it being a private enterprise was not under any public duty, and as such an order of mandamus could not be made against it. I had earlier in this judgment x-rayed the legal status of the Appellant as to its existence and functionality. As a successor company and Licensee under EPSRA, the effect of which is that the Appellant is a creation of statute and has statutory duty of providing public utility services to the public to wit: electricity supply; I hold that the Appellant empowered by EPSRA to distribute electricity to the public including the Respondent has a duty of public nature and as such is under statutory obligation to abide its performance standards and codes; and maintain Consumer standards part of which is the service of necessary notices as mandated by the Connection and Disconnection Regulations Procedures developed by the Nigerian Electricity Regulatory Commission pursuant to EPSRA. In the instant case, the Appellant having failed to perform a public duty imposed on it by the Act, it can be compelled by a Court of competent jurisdiction to perform that demanded act to Wit: the reconnection of the electricity supply in the residence of the Respondent which was disconnected without due process.
Speaking of contractual relationship, it is the Appellant with the Federal Government of Nigeria through Nigerian Electricity Regulation Commission by virtue of EPSRA that are in contract relationship. Upon a passionate view of the Respondent’s claim at the trial Court, I do not agree with the Appellants’ counsel that the Respondent’s claim rests on contractual obligation. Where a body established and regulated by statute is empowered to provide public utilities for the citizens; the ensuing relationship is not contractual. What exists as in this case is an ‘Utility Service Provider’ and ‘Consumer’ relationship.
In other words, it is a Provider Consumer relationship. The Nigerian Electricity Regulatory Commission (NERC) has been empowered by the Electric Power Sector Reform (EPSR) Act, 2005 to ensure an efficiently managed electricity supply industry that meets the yearnings of Nigerians for stable, adequate and safe electricity supply. In a nut shell, the Act mandates the Commission to provide quality services to customers evidenced by providing electricity consumers’ rights. The Act placed a ministerial duty on the Appellant in that the requirement of issuance of notices before disconnection made by the Commission pursuant to the Act placed a non-discretionary duty on the Appellant in its performance. So a consumer can successfully maintain an action against any electricity distribution company where his right has been violated. Like any other consumer, an electricity consumer enjoys consumer protection. In the present case, the Appellant, Jos Electricity Distribution PLC which has been statutorily empowered to provide electricity within the Appellant’s environs owes a public duty to its consumers.
The Respondent’s relationship with the Appellant is such that must be accorded mutual respect being one that originated and is regulated by statute. From whichever way it is viewed, I will still come to the conclusion that the Appellant’s Respondent’s relationship is not contractual but one which the law enjoins a duty to be performed by the Appellant and which the Appellant neglected to carry out. Accordingly, the Respondent has a right to seek for an order of mandamus to compel the Applicant to carry out its duty to wit: to reconnect the electricity supply of the Respondent in his residence. In all, I hold that the trial Court had jurisdiction to entertain the suit and rightly made order of mandamus against the Appellant.
I therefore resolve the sole issue in favour of the Respondent.
Having thus resolved the issue, I find no merits in the appeal. Appeal No: CA/J/290/2017 hereby fails and is dismissed. I uphold the decision of the High Court of Plateau State in SUIT NO: PLD/ J309/16.
I award a cost of N100,000.00 in favour of the Respondent.
TANI YUSUF HASSAN, J.C.A.: I agree.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: The lead judgment prepared and delivered by my learned brother UCHECHUKWU ONYEMENAM, JCA. was made available to me before now.
Having carefully read through the judgment, it is my conclusion to agree with the reasoning and conclusion arrived at. I adopt them as mine and I also dismiss the appeal for lacking in merit. The appeal is dismissed.
I abide by the consequential orders in the lead judgment including that on cost.
Appearances:
Prof. A.S. Shaakaa, Esq. with him, F.O Achadu, Esq. For Appellant(s)
M.N. Dongtoe Dongtoe with him, J.A. Amamma and H.H. Shanglong, Esq.For Respondent(s)
