BARR. DASAT LENGNAN JOHN v. MR. IORTILE TERNA & ANOR (2018)

BARR. DASAT LENGNAN JOHN v. MR. IORTILE TERNA & ANOR

(2018)LCN/12319(CA)

In The Court of Appeal of Nigeria

On Thursday, the 20th day of December, 2018

CA/J/292/2018

RATIO

COURT AND PROCEDURE: WHETHER A PARTY CAN CHANGE POSITION IN AN APPEAL

“Where in an appeal the parties who fought the case at the lower Court differs from the parties on appeal without the leave of Court, the appeal will be rendered incompetent and which will consequently rob the appellate Court of the jurisdiction to hear the same. See: PPA V. INEC (2012) 13 NWLR (PT. 1317) 21. Also it is an abuse of the Court process and therefore renders an appeal incompetent where a party on appeal changes its nomenclature from what it was at the lower Court. A party who fought as co-plaintiff at the lower Court cannot change his position and interest on appeal to fight as it were as a defendant for the simple reason that the law does not allow a party on appeal to maintain a case different from that which he presented at the lower Court. This rests on the general rule that a person cannot be both a plaintiff and defendant at the same time except for where the exceptions to the general rule applies. SHINNING STARS NIG. LTD. V. AKS STEEL NIG. LTD. (2011) 4 NWLR (PT. 1238) 596; LADOJA V. AJIMOBI & ORS (SUPRA); ARUBO V. AIYELERU (1993) 224 NSCC (PT. 1) 255 AT 264; ONYEABUCHI V. INEC (2002) 97 LRCN 959 AT 972 973; OZOMGBACHI V. AMADI & ORS. (2018) LPELR 45152 (SC).” PER UCHECHUKWU ONYEMENAM, J.C.A.

FUNDAMENTAL RIGHT: WHETHER EVERY CITIZEN IS ENTITLED TO FUNDAMENTAL RIGHT

“A fundamental human right as guaranteed in the Nigerian Constitution is a right which every citizen is entitled to by reason of being a human being unless when disqualified by legal disabilities set out in the Constitution. IHEME V. CHIEF OF DEFENCE STAFF & ORS (2018) 45534 (CA); ODOGU V. A.G. FEDERATION (2000) 2 HRLRA 82 AT 102; FAJEMIROKUN V. COMM. BANK (NIG.) LTD. (2009) 21 WRN 1. Fundamental rights are exalted rights which stand above the ordinary laws of the land. RANSOME KUTI V. A.G. FEDERATION (1985) 2 NWLR (PT. 6) 211. Owing to its place in the eyes of the law, there are special constitutional provisions and rules of procedures contrived for the enforcement of fundamental human rights as entrenched in the Constitution. These rights are so jealously guarded that it is only when a party’s right that has been so breached is such that is well clearly protected by the Constitution that the Constitutional provision can be invoked to remedy whatever wrong the party would have suffered. TUKUR V. GONGOLA STATE GOVERNMENT (1989) 4 NWLR (PT. 117) 517; NWOKORIE V. OPARA (1999) 1 NWLR (PT. 587) 389; EJEFOR V. OKEKE (2000) 7 NWLR (PT. 665) 363; IHEME V. CHIEF OF DEFENCE STAFF & ORS (2018) 45534 (CA).” 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

BARR. DASAT LENGNAN JOHN Appellant(s)

AND

1. MR. IORTILE TERNA

2. JOS ELECTRICITY DISTRIBUTION PLC Respondent(s)

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment):

This appeal stems on the Judgment of D. V. Agishi, J. of the Federal High Court, Jos delivered on 7th July, 2017 wherein the learned trial Judge upheld the Notice of Preliminary Objection by the Respondents that the application for the enforcement of Appellant’s Fundamental Right, purportedly breached by the Respondents, is not one cognizable under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the same being more of a breach of contractual right and cannot, therefore, be commenced and entertained under the Fundamental Rights Enforcement Procedure.

For the facts, I will briefly state that the Appellant herein, as Applicant at the trial Court, had by an Originating Summons of 5th August, 2016 claimed against the Respondents as follows:

1. AN ORDER OF DECLARATION stating that the failure on the part of the Respondents to issue statutory notices laid down in connection and disconnection procedures as provided under the Disconnecting Regulations of the Nigerian Electricity Regulatory Commission (NERC) captured under the Electric Sector Power Reform Act, which sets down the mode for disconnecting a defaulter in disconnecting the electricity light of the Appellant constitutes a breach of the extant provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) thereby; (sic) a breach of the Applicant’s fundamental rights and thus illegal (sic).

2. AN ORDER compelling the Respondents to reconnect the house of the Applicant with electricity light to its service grid base on the disconnection having not satisfied the constitutional provisions and laid statutory requirements is illegal (sic).

3. AN ORDER directing the Respondents to refund the cost incurred by the Applicant in prosecuting application for the enforcement of his fundamental rights which stands at the sum of One Hundred Thousand Naira (N100, 000.00) only.

4. AN ORDER directing the Respondents to make payment of Fifteen Million Naira (N15,000,000.00) compensatory damages for unlawful infringement of Applicant’s fundamental rights as a result of the unconstitutional and unwarranted disconnection of his house from the service grid which was carried out not in line with the existing legislation despite the fact that the Applicant’s subscription subsist (sic) thus limiting his person and standing in the society and endangering the life of the Applicant and his family which cannot be quantified by monetary value.

5. AN ORDER commanding the Respondents to deliver written apology to the Applicant for the continued infringement of his Fundamental Rights vide the subsisting disconnection without recourse to the constitutional provisions and laid down procedures.

6. AND FOR SUCH FURTHER ORDER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances of the case.

On being served, the Respondents filed a Notice of Preliminary Objection challenging the competence of the trial Court that the reliefs sought by the Applicant, now Appellant, are not directly cognisable under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as amended, and the African Charter on Human and Peoples’ Rights.

He thus prayed the trial Court to decline jurisdiction to entertain the suit. The trial Court on 7th July, 2017 upheld the objection of the Respondents. Dissatisfied with the Judgment of the trial Court, the Appellant filed a Notice of Appeal dated 30th April, 2018 with the leave of this Court. The Notice of Appeal is at Pages 181 – 184 of the records.

On 31st October, 2018 when the appeal was heard, after Mr. M.N. Dongtoe introduced the appeal for hearing, Prof. A.S. Shaakaa argued his Preliminary Objection which was filed on 21st September, 2018. He urged the Court to strike out the appeal. Mr. Dongtoe said that though they did not file a process titled reply to Respondents? brief but they filed a counter affidavit on 12th October, 2018. They relied on the same to urge the Court to discountenance the objection. Thereafter the Appellant argued his appeal. Mr. Dongtoe referred to their brief of argument filed 20th August 2018; he adopted and relied on same in urging the Court to allow the appeal. Prof. Shaakaa also referred to and adopted the Respondents? brief filed 21st September, 2018, while relying on the same in urging the Court to dismiss the appeal.

The learned counsel for the Appellant, Mr. Dongtoe raised the under listed four issues for the determination of this appeal. The issues are:

1. Can the lower trial Court without considering the import of the Applicant?s reliefs sought together with the grounds for such reliefs and the facts he relied upon decline jurisdiction on the grounds that the principal relief is not a Fundamental Right Enforcement relief even where it is expressly stated in the relief that it is a fundamental right enforcement action?

2. Whether the Lower Court is right that it does not have subject jurisdiction to entertain the matter?

3. Whether having regard to the facts relied upon with the exhibits, the grounds for the reliefs claimed and address of the Appellant, the trial Court was right that there was no disclosure of the breached fundamental rights of the Appellant?

4. Whether the lower trial Court was right that the Appellant did not addressed it on whether the claim fell within Chapter IV of the constitution of the Federal Republic of Nigeria (as amended)?

The learned counsel sought to argue issues one and two separately while he argues issues three and four together.

On their own, the learned counsel for the Respondents submitted a lone issue as determinative of the instant appeal. The issue is:

“Whether the Learned Trial Court was right when it held that the claims/reliefs sought by the Appellant is not one that falls within the fundamental rights provisions as enshrined in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as amended, being more of a prayer for the redress of a breach of contractual obligations and rights, and cannot therefore, be commenced or entertained under the fundamental rights enforcement procedure.”

In line with the rules of this Court, I shall first settle the complaint of the Respondents in their preliminary objection filed on 21st September, 2018. The objection has two Grounds. I shall reproduce the two Grounds without their particulars.

GROUND 1

The Appellant’s Appeal is incompetent by reason of the Appellant’s unilateral alteration of the parties, to wit: the 1st and 2nd Respondents as they appear on the face of the Record of Appeal and the Appellant’s Brief of Argument.

GROUND 2

Issues 1, 3 and 4, as contained in Page 8 of the Appellant’s Brief of Argument, and Grounds 3 and 5 of the Grounds of Appeal, as contained in Pages 182 – 183 of the Record of Appeal, are incompetent due to the proliferation of the latter from the former.?

The learned counsel for the Respondents contended that before an Appellant or a party to a suit can alter the parties as they appear on the face of a Court process or amend same, such a party or Appellant must of necessity have sought for and obtained the leave of Court. He referred to: Order 4 Rule 1 of the Rules of this Court. Prof. Shaakaa, learned counsel for the Respondents submitted on the position of the law, that once leave is required for anything to be done by a party, failure to obtain such leave vitiates and annuls any such act unilaterally done or carried out by such a defaulting party.

He cited: NWANDINOBI V. MCC (NIG) LTD. (2016) 427; OGUEJIOFOR V. OGUEJIOFOR & ANOR (2016) LPELR – 41567 (CA) @ 9 – 11; NGIGE V. OBI (2006) 14 NWLR (PT. 999) 1 @ 222 PARA B; VERALAM HOLDINGS V. GALBA (2014) LPELR – 22671 (CA). He urged the Court to uphold the objection on this ground.

The Appellants relied on a counter affidavit to Respondents’ Preliminary Objection he filed as his response. Therein in the counter affidavit, the Appellants deposed that the wrong numbering of the Respondents on the records of appeal and in the Appellants? brief is an irregularity which the Respondents’ by their conduct have waived. He urged the Court to discountenance the objection on this ground.

There is a prohibitive injunction of the law on an Appellant or a party not to alter or amend without leave, a Court process and or the parties in a matter. Appellants are judicially mandated to be consistent with parties in their appeal as they appeared in the Court of first instance. They are forbidden by the law, not to unilaterally alter parties on appeal without the leave of Court as parties are confined to their cases as pleaded in the Court of first instance, being that an appeal is a continuation of the original suit rather than the initiation of a new action. Accordingly, an Appellant is not at liberty to alter the names of parties as he deems fit without the leave of Court. In the instant case, the quarrel of the Respondent is an alleged unilateral alteration of parties by the Appellant, to wit: ‘altering the designation of the Jos Electricity Distribution Plc., from being the 2nd Respondent, as it appeared at the trial Court, to being the 1st Respondent’. For clarity let me reproduce the parties at the trial Court and the parties in this appeal.

At the trial Court, the parties were:

BETWEEN:

BARR. DASAT LENGNAN JOHN —– APPLICANT

AND

1. MR. HORTILE TERNA & ANOR. —-RESPONDENTS

2. JOS ELECTRICITY DISTRIBUTION PLC

In this appeal, by the Notice of appeal dated 20th April, 2018 filed in this Court, the parties are:

BETWEEN:

BARR. DASAT LENGNAN JOHN——- APPLICANT

AND

1. MR. HORTILE TERNA & ANOR —–RESPONDENTS

2. JOS ELECTRICITY DISTRIBUTION PLC

However, in the records transmitted to this Court on 9th July, 2018; and the Appellant?s brief, the parties are:

BETWEEN:

BARR. DASAT LENGNAN JOHN —- APPELLANT

AND

1. JOS ELECTRICITY DISTRIBUTION PLC

2. MR. HORTILE TERNA —— RESPONDENTS

The Respondents relying on the authorities stated above, has urged this Court to strike out the appeal for incompetence on the ground that the Appellant amended the parties on the face of his processes without leave of the Court. From the parties as shown above, the parties: at the trial Court, on the notice of appeal; and the records transmitted, and the Appellant’s brief are substantially the same. The only difference is in the numbering of the Respondents as they appear on the records transmitted, and the Appellant’s brief. In the referred processes, the 1st Respondent at the trial Court and in the Notice of Appeal was placed as the 2nd Respondent while the 2nd Respondent in turn was placed as the 1st Respondent. The names of the parties, the number of parties, their interests in the matter; all remain the same except for the numbering. I have looked at the authorities relied on by the Respondents’ counsel particularly the cases of: NWANDINOBI V. MCC (NIG) LTD. (2016) 427; OGUEJIOFOR V. OGUEJIOFOR & ANOR (2016) LPELR – 41567 (CA) @ 9 -11; VERALAM HOLDINGS V. GALBA (2014) LPELR – 22671 (CA).

In all the above referred authorities, I find the Courts firm the principle of the law that a party cannot unilaterally alter the parties who fought a case at the lower Court on appeal. For there to be any such alteration or amendment of parties, the leave of Court must first be sought and obtained. Howbeit, the facts and issues in the referred cases are not the same with the present case. In all those cases the facts centered on the addition and or subtraction of parties on appeal as against the parties that fought the case at the lower Court. The central issue in all the authorities cited by the Respondents’ counsel was whether an Appellant can unilaterally alter the parties on appeal to wit: either by adding a party who was not a party at the lower Court or by removing the name of a party who was a party at the lower Court on appeal, without first seeking and obtaining leave of the Court.

I do agree with the learned counsel for the Respondents that, an Appellant is bound to maintain and sustain an appeal between the same parties and on the same subject. See: AGBAJE V. INEC & ORS . (2015) 10 SC 42; LADOJA V. AJIMOBI & ORS (2016) LPELR 40658 (SC); RE: APEH & ORS. (2017) LPELR 42035 (SC). There is no place in our legal jurisprudence for a stranger to displace a party on appeal by usurping his place; nor for a party in proceedings at the lower Court to be excluded on appeal without the Court’s leave.

Where in an appeal the parties who fought the case at the lower Court differs from the parties on appeal without the leave of Court, the appeal will be rendered incompetent and which will consequently rob the appellate Court of the jurisdiction to hear the same. See: PPA V. INEC (2012) 13 NWLR (PT. 1317) 21. Also it is an abuse of the Court process and therefore renders an appeal incompetent where a party on appeal changes its nomenclature from what it was at the lower Court.

A party who fought as co-plaintiff at the lower Court cannot change his position and interest on appeal to fight as it were as a defendant for the simple reason that the law does not allow a party on appeal to maintain a case different from that which he presented at the lower Court. This rests on the general rule that a person cannot be both a plaintiff and defendant at the same time except for where the exceptions to the general rule applies. SHINNING STARS NIG. LTD. V. AKS STEEL NIG. LTD. (2011) 4 NWLR (PT. 1238) 596; LADOJA V. AJIMOBI & ORS (SUPRA); ARUBO V. AIYELERU (1993) 224 NSCC (PT. 1) 255 AT 264; ONYEABUCHI V. INEC (2002) 97 LRCN 959 AT 972 973; OZOMGBACHI V. AMADI & ORS. (2018) LPELR 45152 (SC).

In the case at hand like I noted above, I do not find any alteration of parties. Accordingly, I hold that there is no change of parties in the appeal contrary to the parties at the lower Court. There is no doubt that the Appellant was careless in numbering the Respondents in the Records and in his brief but the Respondents remain the same as in the lower Court. I view it will amount to an undue or extreme technicality to find that because the 1st Respondent at the lower Court is now placed as the 2nd Respondent in this appeal without more, that the Appellant had altered the parties on appeal as it relates to the Respondents. No, I do not agree with the learned counsel for the Respondents on this. My position notwithstanding though, I wish to admonish counsel who are prosecuting matters to be diligent and thorough in rightly stating the parties in their processes so as not to attract unwarranted objections that waste the Courts time and tend to distract it from promptly determining the matters on their merits. Where as in this case, the alleged alteration of parties in the records transmitted and the Appellant?s brief is solely the difference in numbering the Respondents, I hold that all the cases relied on by the learned counsel for the Respondents are not relevant to this appeal and therefore not applicable. Also I maintain the view that there is no change in nomenclature of the parties in the instant appeal as against what it was at the lower Court. The Respondents? objection cannot therefore be sustained on this ground.

On the second ground of the objection, Prof. Shaakaa of counsel for the Respondents contended that from the combined appraisal of the Appellant’s Brief of argument, the 4 issues distilled for determination and the Notice and Grounds of Appeal, as contained at Pages 181-185 of the records; the Appellant’s issues for determination, have no definite tie to any of the grounds from which they might have arisen. He also argued that Issues 1, 3 and 4 of the Appellant, as contained at Page 8 of the Appellant’s Brief of Argument, manifestly seem to have been proliferated from either only Ground 3, as contained at Page 182 of the Record of Appeal, or Ground 5, as contained at Page 183 of the Record of Appeal, or both, therefore, making Issues 1, 3, and 4; and either or both of the two grounds, from which they manifestly seem to have been proliferated, incompetent and therefore liable to be struck out, alongside the grounds from which they have arisen. He cited plethora of authorities on proliferation of issues and urged the Court to so hold and to uphold the objection on this ground.

The learned counsel for the Respondents correctly raised the fact that the Appellant did not tie his issues to the grounds of appeal.

He also stated correctly the principle of law on proliferation of issues. The undiluted attitude of the Courts, over a length of time, including the apex Court of the land, has been to declare proliferated issues and the ground(s) wherefrom they are so couched incompetent, and, as a result, strike them out. HUSSEINI V. MOHAMMED (2015) 3 NWLR (PT. 1445) 100; NWANKWO V. YAR’ADUA (2010) 12 NWLR (PT. 1209) 518; SPDCN LTD V. REG. BUS. PREMISES ABIA STATE (2016) 2 NWLR (PT. 1496) 326 @ 332; IBRAHIM V. OJOMO (2004) 4 NWLR (PT. 862) 89 @ 104; IWUOHA V. NIPOST LTD (2003) 8 NWLR (PT. 822) 308 @ 332; SHITTU V. FASHAWE (2005) 14 NWLR (PT. 946) 671 @ 687; MARK V. EKE (2004) 5 NWLR (PT. 865) 54.

What eventuates from the above authorities is that not more than one issue can be formulated from a ground of appeal. An issue can be raised from one or more grounds of appeal, but a multiplicity of issues cannot derive from the same ground. Thus, where issues are prolix by an appellant or respondent, such issues are liable to be struck out. The Supreme Court further fortified this position in the case of ADEJUMO V. OLAWAIYE (2014) 12 NWLR (PT. 1421) 252 @ 264, particularly at PAGE 272, PARAS G – H, where it held that:

“The rule against proliferation of issues is that no more than one issue can be formulated from a ground of appeal. That is to say, an issue may arise from one or more grounds of appeal, but not a multiplicity of issues deriving from the same ground of appeal.”

I have examined the issues raised by the Appellant and the grounds of appeal, and I frown at the fact that the Appellant did not tie the issues he raised to his grounds of appeal. I have painstakingly further considered the issues and the grounds and I find that issues 1, 3 and 4 as raised by the Appellant are not prolix of grounds 3 and 5 of the grounds of appeal. The referred Appellant’s issues properly arose from grounds 3, 5 and 4 respectively. I therefore hold that the authorities rightly cited on proliferation of issues are not applicable to this appeal. The objection on this ground therefore fails.

Consequently, I find no merit in the preliminary objection raised by the Respondents. I therefore do hereby discountenance the said preliminary objection. I shall proceed to determine the appeal on its merit.

I had earlier reproduced the issues raised by the respective parties for the determination of this appeal. Upon careful examination of the said respective issues, I view the sole issue raised by the Respondents as appropriate for the settlement of the dispute arising from the appeal.

SUBMISSION ON SOLE ISSUE

The learned counsel for the Appellant argued that the trial Court cannot without considering the import of the Applicant’s reliefs sought, together with the grounds for such reliefs and the facts laid before it with accompanying Exhibits A to L and A1, decline jurisdiction on the ground that the principal relief is not a Fundamental Right Enforcement Relief even where it was expressly stated in the reliefs that it is a fundamental right enforcement action. He submitted that the Appellant’s first relief sought shows that there was no fair hearing by non-issuance of statutory notices to him before an administrative decision was taken against him which resulted to the breach of Sections 36 (1), 42(1), 44(1), 34, 35(1) of the CFRN 1999 (as amended) and as such the breach of his fundamental right. For when an action can come under the Fundamental Right Enforcement Proceedings, the learned counsel relied on: COP V. IBRAHIM (2016) LPELR – 41319 (CA); ALHAJI ABDULHAMID V. TABAL AKAR & ANOR (2006) 13 NWLR (PT. 996) 127 SC; FBN PLC V. A.G FEDERATION (2014)12 NWLR (PT. 422) 470 AT 500-501; SEA TRUCKS (NIG.) LTD V. ANIGBORO (2001) 2 NWLR (PT. 696) 159 SC AT (175); AIG-IMOUKHUEDE V. UBAH & ORS (2014) LPELR-23965 (CA) 57.

Mr. Dongtoe, learned counsel for the Appellant submitted on the essence of a notice relying on the definition of ‘Notice’ in Blacks’ Law Dictionary to contend that ‘Notice’ constitutes fair hearing. He stated that the purpose of such notice is to give adequate time, stating the discussion venue, state the nature of the discussion and the day the discussion would take place. All of these he noted afford the opponent an opportunity to adequately prepare and without which, the other side, in this case the Appellant, would wrongfully be deprived of the opportunity to respond. When this is the case he added, there will be the breach of the provisions of the Constitution and as in this case the Appellant’s Fundamental Rights.

The learned counsel submitted that, it has long been settled in a line of cases that administrative bodies or Tribunals, acting judicially in the determination or imposition of a decision that is likely to affect the civil rights and obligations of a person, are bound and enjoined to strictly observe the principles of fair hearing. He added that this right to fair hearing which must be observed before a detrimental action can be taken against any person was denied the Appellant by the 1st and 2nd Respondents hence, the fundamental right enforcement action. He cited: HARUNA GYANG & ANOR V. COP LAGOS STATE & 5 ORS (2014) 3 NWLR (PT. 1395) 547 SC; NWOKOCHA V. A.G OF IMO STATE (2016) LPELR – 40077 (SC) P. 91; AMAMCHUKWII V. F.R.N. (2009) 8 NWLR (PT. 1144) 475 AT 486; OGUNSANYA V. THE STATE (2011) 12 NWLR (PT. 1261) 401; UGURU V. STATE (2002) 4 SC (P 11) 13.

The learned counsel submitted that the affidavit of the Appellant shows a litter of injustices mated on him to the bewilderment of even his neighbours who stood by. The Appellant invited the Court in the resolution of this issue to answer the question whether the decision of the 1st and 2nd Respondents was in accordance with the relevant rules and law in order to ensure justice and fairness. He urged the Court to answer the question in the negative and resolve the issue in favour of the Appellant.

In response, the learned counsel for the Respondents referred to the Appellant?s case at the trial Court and submitted that the same is a statutory cum contractual obligation, not a right decipherable, or cognisable by Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as amended, and consequently unenforceable by proceedings commenced under the Fundamental Rights (Enforcement Procedure) Rules, 2009. He referred to and reproduced the principal relief sought by the Appellant at the trial Court to submit that the Constitution of the Federal Republic of Nigeria, 1999 as amended and especially Chapter IV thereof, does not guarantee the right to light, and a right to be served a connection or disconnection notices, as envisaged by the Appellant’s claim at the trial Court. He rather referred to the provisions of Section 46(1), and (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, which stipulates that only the infraction of rights contained in Chapter IV thereof is worthy of enforcement under the Fundamental Rights Enforcement Procedure Rules.

The learned counsel relied on legion of authorities for his submission which decisions include: BRIGGS V. HARRY (2016) 9 NWLR (PT. 1516) 45; AIG – IMOUKHUEDE V. UBAH & ORS (2014) LPELR – 23965 (CA) 57; DONGTOE V. C.S.C. PLATEAU STATE (2001) 9 NWLR (PT. 717) 132 SC; SOKOTO L.G.A V. AMALE (2001) 8 NWLR (PT. 714) 224; ENUKEME V. MAZI (2015) 17 NWLR (PT. 1488) 411; GOVERNOR BORNO STATE V. BADANGARI (2015) 1 NWLR (PT. 1493) 396.

Prof. Shaakaa, the learned counsel for the Respondents thereafter urged the Court to resolve the issue in favour of the Respondents and to dismiss the appeal.

RESOLUTION OF ISSUE

A fundamental human right as guaranteed in the Nigerian Constitution is a right which every citizen is entitled to by reason of being a human being unless when disqualified by legal disabilities set out in the Constitution. IHEME V. CHIEF OF DEFENCE STAFF & ORS (2018) 45534 (CA); ODOGU V. A.G. FEDERATION (2000) 2 HRLRA 82 AT 102; FAJEMIROKUN V. COMM. BANK (NIG.) LTD. (2009) 21 WRN 1. Fundamental rights are exalted rights which stand above the ordinary laws of the land. RANSOME KUTI V. A.G. FEDERATION (1985) 2 NWLR (PT. 6) 211. Owing to its place in the eyes of the law, there are special constitutional provisions and rules of procedures contrived for the enforcement of fundamental human rights as entrenched in the Constitution. These rights are so jealously guarded that it is only when a party’s right that has been so breached is such that is well clearly protected by the Constitution that the Constitutional provision can be invoked to remedy whatever wrong the party would have suffered. TUKUR V. GONGOLA STATE GOVERNMENT (1989) 4 NWLR (PT. 117) 517; NWOKORIE V. OPARA (1999) 1 NWLR (PT. 587) 389; EJEFOR V. OKEKE (2000) 7 NWLR (PT. 665) 363; IHEME V. CHIEF OF DEFENCE STAFF & ORS (2018) 45534 (CA).

Accordingly, the relief which may be claimed by means of the Fundamental Rights (Enforcement Procedure) Rules, is limited and confined to the provisions of Chapter iv of the Constitution; any exercise of jurisdiction in respect of subject matters outside chapter iv is without jurisdiction, unconstitutional and void. DONGTOE V. C.S.C. PLATEAU STATE (2001) 9 NWLR (PT. 717) 132 SC; KUTI V. A.G. FEDERATION (1985) 2 NWLR (PT. 61) 22; OSUAGWU V. A.G. ANAMBRA STATE (1993) 4 NWLR 13; AIG – IMOUKHUEDE V. UBAH & ORS (2014) LPELR – 23965 (CA) 57. The law is thus now settled that once a claim, or the principal relief in an action for the enforcement of fundamental rights merely seeks the redress of a grievance that is not a claim for the enforcement of fundamental rights, such a claim would not qualify to be initiated and litigated under the Fundamental Rights (Enforcement Procedure) Rules, 2009.

What it therefore means is that, when the main or principal relief or redress cannot be raised or enforced under the Fundamental Rights (Enforcement Procedure) Rules (FREPR), it is immaterial that in the course of committing the cause of action for the main complaint some ancillary or peripheral breaches of fundamental rights were committed. See:EMEKA V. OKOROAFOR & ORS (2017) LPELR 41738 (SC); TUKUR V. GOVT. OF TARABA STATE (1997) 6 NWLR (PT. 510) 549; UNIVERSITY OF ILORIN & ANOR. V. OLUWADARE (2006) 6 – 7 SC. 154; JACK V. UNIVERSITY OF AGRICULTURE, MAKURDI (2004) 1 SC (PT. 2) 100.

The pivot upon which the Appellant hoisted his claim before the trial Court, and upon which he has grounded his appeal before this Court, is the alleged failure of the Respondents to guarantee the enforcement of his fundamental rights in relation to the disconnection of Respondents’ energy supply to his residence. In this behalf, Appellant’s grouse, as captured in his claim before the trial Court, is the failure of the Respondents to issue him with statutory notices before the disconnection of his light from the service grid as required by the regulations made by the Nigerian Electricity Regulatory Commission (NERC), pursuant to the Electric Sector Power Reform Act. Notwithstanding repetition, let me reproduce the principal claim of the Appellant at the trial Court which is for:

“AN ORDER OF DECLARATION stating that the failure on the part of the Respondents to issue statutory notices laid down in connection and disconnection procedures as provided under the Disconnecting Regulations of the Nigerian Electricity Regulatory Commission (NERC) captured under the Electric Sector Power Reform Act, which sets down the mode for disconnecting a defaulter in disconnecting the electricity light of the Appellant constitutes a breach of the extant provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) thereby; (sic) a breach of the Applicant’s fundamental rights and thus illegal (sic).

Generally, it is not the wording of a claim nor the use of the phrase ‘breach of Fundamental Rights’ guaranteed by the Constitution that is the magic wand that makes an action come under the Fundamental Rights (Enforcement Procedure) Rules.

The straight fact is that through the length and breadth of the Constitution of the Federal Republic of Nigeria, 1999 as amended and in particular Chapter IV thereof, there is no provision therein which guarantees the right to light, and a right to be served a disconnection notice, as envisaged by the Appellant’s claim before the trial Court. The unimpeachable provisions of Section 46 (1), and (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, stipulates that only the infraction of rights contained in Chapter IV thereof can be enforced under the Fundamental Rights (Enforcement Procedure) Rules. At this point, a rehash of the provisions of Section 46(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, is important. The said section has poignantly proclaimed that:

1. Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress.

2. Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provision of this section and may make such order… As it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any right to which the person who makes the application may be entitled “under this chapter”.

Also, the same Constitution, by virtue of Sections 33 – 43, provided for the rights, which the breach, threatened breach, and or anticipatory breach thereof, are guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as amended. For the avoidance of doubt, they are reproduced viz:

1. Right to life;

2. Right to dignity of human person;

3. Right to personal liberty;

4. Right to fair hearing;

5. Right to private and family life;

6. Right to freedom of thought, conscience and religion;

7. Right to freedom of expression and the press;

8. Right to peaceful assembly and association;

9. Right to freedom of movement;

10. Right to freedom from discrimination; and

11. Right to acquire and own immovable property anywhere in Nigeria.

I fail to see the right to light, or a right to be served disconnection notice, which claim the Appellant wants to enforce under those sections of the Constitution. Howbeit, upon a passionate view of the Appellant’s claim at the trial Court, I do not agree with the Respondents’ counsel that the Appellant’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 the relationship between an ‘Utility Service Provider’ and a ‘Consumer’. 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 nutshell, the Act mandates the Commission to provide quality services to customers. To ensure quality service delivery, the Act provided electricity consumers’ rights. So a consumer can successfully maintain an action against any electricity distributor where his right has been violated. Like any other consumer, an electricity consumer enjoys consumer protection. Any violation of an electricity consumer’s right is maintainable as violation of any other consumer’s right and not under the Fundamental Rights Enforcement Rules.

In the present case, the 2nd Respondent, Jos Electricity Distribution Provider PLC which has been statutorily empowered to provide electricity within the Appellant’s environs owes public duty to her consumers. The Respondents’ relationship with the Appellant is such that must be accorded mutual respect being one that originated and is regulated by statute. The Appellant’s herein fight is that the Respondents did not abide the provisions of paragraph 6 of the 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.

The Appellant is correct as the Respondents are bound to abide the provisions of paragraph 6 NERC. However, flowing from what I earlier said, the alleged violated Appellant’s right is not a right decipherable, or cognizable by Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as amended. I do therefore agree with the Respondents that the right to light, or a right to be served connection and disconnection notices are not cognizable by the Fundamental Rights Provisions in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as amended, and therefore cannot come under the Fundamental Rights (Enforcement) Procedure Rules, 2009.

Despite what I have said above, the dispute is not yet fully settled owing to the contention of the Appellant that failure to serve ‘Notice’ when service of notice was required before an administrative decision was taken to his detriment is a breach of his right to fair hearing which right is a Fundamental Right, under Section 36 (1) of the Constitution and as such enforceable under the Fundamental Rights (Enforcement Procedure) Rules. Firstly, I will want to state that failure to issue notice before the disconnection of the Appellant’s light from the service grid was not the principal claim at the trial Court.

From the reliefs sought and in my view the main claim of the Appellant was for a declaration that the mode of disconnection of his light was not in conformity with the procedures as provided under the Disconnecting Regulations of the Nigerian Electricity Regulatory Commission (NERC) captured under the Electric Sector Power Reform Act. That the Respondents failed to issue the Appellant notice before the said disconnection was ancillary to the Appellant’s main claim and as such not enforceable under the Fundamental Rights (Enforcement Procedure) Rules. Also, the principal relief of the Appellant at the trial Court being such that cannot be enforced under the Fundamental Rights (Enforcement Procedure) Rules; its ancillary relief, to wit; failure to give notice to the Appellant before the disconnection of his light; cannot as well be enforced under the said Rules.

It does not matter that failure to give notice could firm as a breach of Section 36 of the Constitution, but since it ensued in the course of the illegal disconnection, I mean to say, since failure to give notice (an ancillary claim and a violation of fundamental right) was committed in the course of committing the cause of action for the main claim (disconnection of light) it cannot be enforced under the Fundamental Rights Enforcement Rules. EMEKA V. OKOROAFOR & ORS (2017) LPELR 41738 (SC); TUKUR V. GOVT. OF TARABA STATE (1997) 6 NWLR (PT. 510) 549; UNIVERSITY OF ILORIN & ANOR. V. OLUWADARE(2006) 6 – 7 SC. 154; JACK V. UNIVERSITY OF AGRICULTURE, MAKURDI (2004) 1 SC (PT. 2) 100.

Thirdly, the referred ancillary relief to wit: failure to give notice was by Jos Electricity Distribution PLC. The charge therefore is against the Distribution company and not against a Court or Tribunal established by law. By Section 36 (1) of the 1999 Constitution, it is only when there has been an alleged violation of the right to fair hearing by a Court or Tribunal established by law that such right to fair hearing can be enforced under the Fundamental Rights (Enforcement Procedure) Rules. See: EMEKA V. OKOROAFOR & ORS (2017) LPELR 41738 (SC); EKUNOLA V. CBN (2013) 15 NWLR (PT. 1377) 234 AT 262. Accordingly, since the charge is against Jos Electricity Distribution company which is by no means a Court or Tribunal established by law, its violation of the Appellant’s right to fair hearing cannot be enforced under the Fundamental Rights (Enforcement Procedure) Rules.

In all therefore, I hold that the trial Court was right when it found that the Appellant’s action at the trial Court could not be maintained under the Fundamental Rights (Enforcement Procedure) Rules. The sole issue is consequently resolved in favour of the Respondents.

As a result, this appeal is unmeritorious. It fails and is accordingly dismissed. I uphold the judgment of the Federal High Court, sitting in Jos in SUIT NO: FHC/J/CS/67/2016 delivered on 7th July, 2017.

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.: I have had the privilege of reading in draft the judgment delivered by my learned brother UCHECHUKWU ONYEMENAM, JCA.

I agree with the reasoning and conclusion reached therein and have nothing extra to add. The appeal is unmeritorious and hence, I also dismiss it.

I abide by the consequential orders in the lead judgment.

Appearances:

M.N. Dongtoe, Esq. with him, J.A. Amamma and H.H. Shanglong, Esq.For Appellant(s)

Prof. A.S. Shaakaa with him, F.O. Achadu, Esq.For Respondent(s)