BROADBAND TECHNOLOGIES LIMITED v. AIRTEL NETWORKS LIMITED
(2018)LCN/12090(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of October, 2018
CA/L/866/2017
RATIO
ACTION: CAUSE OF ACTION
“What then is the cause of action in a case? The cause of action in a case is what the Claimant has brought before the Court as his claim which the Court will determine to settle the right he claims that he has. The cause of action is the main focus of the Court which it will decide on or make a pronouncement upon. The pronouncement of a Court on the cause of action forms part and indeed, the major aspect of the judgment of a Court. The reason or reasons advanced by a Court on the cause of action is what forms the ratio decided In a case. A decision of a Court that does not address the cause of action may go back for retrial as it is a journey into an endless pit. Just as jurisdiction is crucial to a Court so is the decision on a cause of action crucial to a case. After a Court has assumed jurisdiction, the next very crucial thing is deciding on the cause of action. In the instant case, the cause of action is based on the contract entered between the parties.” PER MOHAMMED LAWAL GARBA, J.C.A.
CONTRACT: WHERE THERE IS AN AGREEMENT BETWEEN TWO PARTIES
“Contracts or agreements entered into for the provision and use of all communication services and networks are ordinary transactions of business and commercial contracts and agreements which are governed and regulated by the general law and judicially established principles on contracts… In the famous case of Onuorah v. Kaduna Refining & Petrochemical Company Limited (2005) 2 SC (Pt. II) 1, (2005) 6 NWLR (921) 393, Akintan, JSC, had, unequivocally and poignantly, stated in the lead judgment of the apex Court that disputes founded on contracts are not among those included in the additional jurisdiction conferred on the Federal High Court citing seven-up Bottling Company Limited v. Abiola & Sons Bottling Company Limited (2001) 13 NWLR (730) 469 and Trade Bank, Plc v. Benilux Nigeria Limited (2003) 9 NWLR (825) 46 @ 430 & 431. Section 230 (1) of the 1979 Constitution, impari materia with Section 251(1) of the 1999 Constitution, was considered in the case and even though the facts were not on and did not involve the NCCA, the general principle laid down therein is applicable to cases of simple contracts in relation to the exclusive jurisdiction conferred on the Federal High Court by or pursuant to the provisions of the Constitution except where specifically provided for in an Act by the National Assembly. See also Ports & Cargo Handling Services Company Limited v. Migfo Nigeria Limited (2012) 18 NWLR (1333) 555, (2012) 6-7 MJSC, where the apex Court stated that the mere fact the agreement between the parties related to the management and operation of Terminal C Tin Can, Island Port, did not make it a maritime matter, within the exclusive jurisdiction of the Federal High Court. Very recently, the apex Court in the case of TSKJ Nigeria Limited v. Otochem Nigeria Limited (2018) 11 NWLR (1630) 330 @ 344, restated the principle that a case or claim for recovery of accrued but unpaid debt, as in the present appeal, is one of a simple contract within the jurisdiction of a State High Court (Rivers State High Court in the case).” PER MOHAMMED LAWAL GARBA, J.C.A.
JURISDICTION: THE POWER OF THE COURT
“In the case of Egharevba v. Eribo (2010) 9 NWLR (1199) 411, Adekeye, JSC, defined the term ‘jurisdiction’ in relation to a Court of law, thus: – ‘Jurisdiction is a term of comprehensive import embracing every kind of judicial action. It is the power of a Court to decide a matter in controversy and presupposes the existence of a duly constituted Court, with control over the subject matter and the parties. Jurisdiction also defines power of the Court to inquire into facts, apply the law, make decisions and declare judgement. It is the legal right by which judges exercise their authority. Jurisdiction is equally to Court, what a door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remains a nullity however well-conducted and brilliantly decided they might have been. A defect in competence is not only intrinsic but rather extrinsic to adjudication.'” PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
BROADBAND TECHNOLOGIES LIMITED Appellant(s)
AND
AIRTEL NETWORKS LIMITED Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Ruling by the High Court of Lagos State by which the preliminary objection of the Appellant to its jurisdiction to entertain and adjudicate on the Respondent’s Suit No.AD/247/CMW/2016, was dismissed.
The Ruling was delivered on the 10th April, 2017 and the Notice of Appeal filed on 24th April, 2017, containing a ground of appeal from which the issue for determination was formulated in the Appellant’s brief filed on the 20th October, 2017, deemed on 19th September, 2018, as follows: –
‘Whether the trial Judge was right to hold that the lower State High Court was imbued with jurisdiction to entertain the Suit considering the nature of the Agreement being one for Communication Services and over which the Nigerian Communication Act is vested the Federal High Court with exclusive jurisdiction.’
The issue for determination in the appeal, distilled from the lone ground of appeal, was couched in the Respondent’s brief filed on 28th March, 2018, also deemed on the 19th September, 2018 at the oral hearing of the appeal, in the following terms:-
‘Whether the lower Court was right in holding that the subject matter of the claim before it is for the payment of sums of monies outstanding on the breach of contract between the parties and therefore has jurisdiction to hear and determine the suit.’
An Appellant’s Reply brief was filed on 1st June, 2018, and deemed at the oral hearing.
Formulation apart, the issues above question whether the High Court is right to have dismissed the preliminary objection and assumed jurisdiction over the case before it.
Though different in form, they are one and the same in substance.
Appellants’ Submission:-
Learned Counsel submits that for the Court to determine whether or not the High Court has jurisdiction over the case before it, the nature of the contract between the parties and whether the Nigerian Communication Comm. Act, 2003 (NCCA) applies to it, have to be determined.
According to Counsel, the Respondent’s claims and Appellant’s Counter Claims show that the subject of the case relates to and borders on communication services which are within the exclusive purview of the NCCA as provided for in Section 2.
Reference was made to the recital clause of the agreement between the parties and some cases on the meaning and principles on jurisdiction of a Court, including Miscellaneous Offences Tribunal v. Okoroafor (2000) 18 NWLR, 326-327 (sic), ANPP v. R.O.A.S.S.D. (2005) 6 NWLR (920) 140 and Madukolu v. Nkemdilim (1962) 2 SCNLL, 34. It is also submitted that Section 251 of the Constitution does not contain an exhaustive list of items over which the Federal High Court has exclusive jurisdiction and does not foreclose the conferment of jurisdiction on that court by statutes, such as in Section 138 of the NCA, citing Jev. V. Iyortyom (2014) 5-6 SC (Pt. III) 82 @ 117-9. Learned Counsel then says the Respondent ought to have first exhausted the remedy for resolution of the dispute between the parties by the Nigerian Communication Commission (NCC) under the provisions of Section 73 and 74(1) of the NCCA, before resorting to litigation, relying on Adesanoye v. Adewole (2006) 14 NWLR (1000) 242, Unilorin v. Akinola (2007) 17 NWLR (1064) 547 @ 586-7 and University of Ilorin v. Oluwadare (2006) 14 NWLR (1000) 757 @ 781-2.
The Court is urged to set aside the Ruling by the High Court.
Respondent’s Submission:
It is submitted that in the determination of the issue of jurisdiction of a Court, the only relevant processes that are to be looked at and considered, are the writ of summons and statement of claim, on the authority of, inter alia, Tukur v. Governor of Gongola State (1989) 4 NWLR (117) 517 @ 557 and Trade Bank, PLc v. Benilux Limited (2003) 5 SC, 1. The Respondent’s claims as set out on the writ of summons and in the statement of claim were said to be for and arose from the Appellant’s breach of its contractual obligations under clause 6.5 contained in the agreement between the parties, which was the cause of action. Learned Counsel argues that the Respondent’s case as per the Writ of Summons and Statement of Claim is simply for recovery of debt owed by the Appellant on a lease agreement which is triable by the State High Court as was stated in the cases of Western Steel Works v. Iron & Steel Workers (1987) 1 NWLR (49) 284 and Izenkwe v. Nnadozie 14 WACA, 361.
Counsel maintains that the Respondent’s case has nothing to do with the misuse of information, anti-competition activities or alleged take-over of Appellants’ customers, but for the recovery of a debt admitted by the Appellant, triable by the State High Court under Section 272(1) of the Constitution.
According to Counsel, even though Section 272(1) is made subject to Section 251 on exclusive jurisdiction of the Federal High Court, breach of contract is not one (1) of the items listed under that Section and so the High Court is right to so find. Among other cases, Chevron Nigeria Limited v. Lonesar Drilling Nigeria Limited (2007) 7 SC (Pt. II) 27 on the cause of an action, was referred to and it is contended that the aggregate of facts giving rise to the Respondent’s action against the Appellant resulted from the breach of the agreement between the parties. Learned Counsel said Section 96 and 138 of the NCCA cited in the Appellant’s brief are irrelevant to the Respondent’s case and that the arguments on alleged failure by the Respondent to seek redress from the NCC before instituting the case are not based on the ground of appeal or leave of the Court. On the authority of inter alia, Odife v. Ariemeka (1992) 7 NWLR (257) 25 and Okelola v. Boyle (1998) 2 NWLR (539) 533 @ 546, the arguments are said to be incompetent, liable to be discountenanced and struck out by the Court.
The Court is urged to resolve the issue in favour of the Respondent and dismiss the appeal with substantial costs.
In the Appellant’s Reply brief, it is contended that it is not always that the plaintiff’s claim alone would be considered in the determination of a Court’s jurisdiction and reference was made to Egbe v. Alhaji (1990) 1 NWLR (128) 546 and Milad, Benue State v. Abaliyo (2001) 5 NWLR (705) 19 @ 32, among other cases.
It is also submitted that it is permissible to raise a jurisdictional matter at any stage of the proceedings even for the first time at the Supreme Court as stated in CGG Nigeria Limited v. Aminu (2015) LPELR-24463 (SC)- SC.61/2006 and that the issue can be raised at any time, irrespective of the provisions of a Court’s Rules.
In the alternative, it is argued that the arguments flow directly from the ground of appeal as one of the particulars which form part of the ground, citing Standard Manufacturing Company Limited v. Sterling Bank, Plc (2015) LPELR-CA/L/733/2011 and Order 7, Rules (2) and (5) of Court of Appeal, Rules, 2016.
In the case of Egharevba v. Eribo (2010) 9 NWLR (1199) 411, Adekeye, JSC, defined the term ‘jurisdiction’ in relation to a Court of law, thus: –
‘Jurisdiction is a term of comprehensive import embracing every kind of judicial action. It is the power of a Court to decide a matter in controversy and presupposes the existence of a duly constituted Court, with control over the subject matter and the parties. Jurisdiction also defines power of the Court to inquire into facts, apply the law, make decisions and declare judgement. It is the legal right by which judges exercise their authority. Jurisdiction is equally to Court, what a door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remains a nullity however well-conducted and brilliantly decided they might have been. A defect in competence is not only intrinsic but rather extrinsic to adjudication.’
The learned Law Lord then said:-
“Under the Nigerian Legal System, Courts are set up under the Constitution, Decrees, Acts, Laws and Edicts – they also cloak the Courts with the powers and jurisdiction of adjudication. If the Constitution, Decrees, Acts, Laws and Edicts do not grant jurisdiction to a Court or Tribunal, the Court and parties cannot by agreement endow it with jurisdiction. Moreover, since Courts are creatures of statutes, their jurisdiction is therefore confined, limited and circumscribed by the statutes creating them. A Court must not give itself jurisdiction by, misconstruing the statute creating it.”
See also Adetayo v. Ademola (2010) 15 NWLR (1215) 169, Ndaeyo v. Ogunaya (1977) 1 ALL NLR, 169, (1977) 1 SC, 7, Alade v. Alemuloke (1988) 2 SC, 1, (1988) NWLR (1969) 207, SPDCN v. Isaiah (2001) 5 SC (Pt. II) 1, (2001) 11 NWLR (723) 168, Shelim v. Gobang (2009) 12 NWLR (1156) 435.
Put simply, jurisdiction of a Court is the legal and judicial power and authority vested in Court to take cognizance of, entertain and adjudicate over a dispute brought before it by parties, by the statute establishing or creating the Court.
It is the statute that sets out and outlines the scope and extent of such powers and authority in respect of the parties, subject matter and territory over which the Court would have jurisdiction and beyond or outside of which it lacks the requisite competence to venture.
This is why the jurisdiction of a Court to entertain and adjudicate over a matter has been judicially described in various adjectives such as ‘lifeblood’ ‘threshold’ ‘crucial’ ‘fundamental’ ‘intrinsic’ ‘extrinsic’ ‘lifeline’ ‘radical’ ‘lifewire’ ‘pre-requisite’ ‘condition precedent’, ‘sacrosanct’, etc.
The law is settled, judicially, that a Court is said to have the requisite jurisdiction over a matter and so competent to entertain and adjudicate over it when the following conditions are met: –
(a) The case comes before the Court by due process of law and upon fulfillment of any condition precedent;
(b) When the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) When the Court is properly constituted as regards number and qualification of members, none of which is disqualified for any reason or on any ground. See the Locus Classicus on the issue of jurisdiction; Madukolu v. Nkemdilim (supra) which was and has been affirmed and re-affirmed by the apex Court since then, in countless decisions which include Skenconsult v. Ukey (1981) 1 SC, 6, Alao v. ACB Limited (2000) 6 SC (Pt. I) 196, Rivers State Government v. Specialist Konsult (Swedish Group) (2005) 2 SC (Pt. II) 121, F.H.A. v. Kalejaiye (2010) 19 NWLR (1226) 147, Lafia L. G. v. Governor, Nasarawa State (2012) 17 NWLR (1328) 94.
The law is also trite now, that in order to determine whether the Court has the requisite jurisdiction to entertain and adjudicate over a matter, the relevant processes to be looked at and considered are the claims made by the claimant/plaintiff in the writ of summons; the originating process used to initiate the action, and the statement of claim wherein the facts upon which the action is predicated, are succinctly set out.
See: Barclays Bank v. CBN (1976) 6 SC, 175, Yalaju Amaye v. A.R.E.C. Limited (1990) 4 NWLR (145) 422 @ 441, RTEAN v. NURTW (1996) 8 NWLR (469) 737, Abacha v. Fawehinmi (2000) 6 NWLR (660) 228, I.T.P.P. Limited v. UBN, Plc (2006) 12 NWLR (995) 483, Adetona v. I.G. Enterprise Limited (2011) 7 NWLR (1247) 535 (cited in the Appellants’ brief), Elelu-Habeeb v. Attorney General of the Federation (2012) 13 NWLR (1318) 423.
Now, the Respondent’s claim as per the Writ of Summons and Statement of Claim both dated and filed on the 7th October, 2016 are for: –
a) The sum of N287,395,134.00 (Two Hundred & Eighty-Seven Million, Three Hundred & Ninety-Five Thousand, One Hundred & Thirty-Four Naira only) being the total outstanding amount due to and owed by the Defendant to the Claimant under the Agreement for Leased Services executed by both parties;
a) 21% interest per annum on the total sum claimed from the year when the sum became due and 10% from the day judgement is given till the sum is fully liquidated;
b) Cost of this action as may assessed by the Court.
Put briefly, the facts upon which the claims are based, are to the effect that the sum claimed arose out of and from the breach of a commercial agreement between the parties for the provision of a wide range of transmission facilities by the Respondent to the Appellant which the Appellant admitted, but refused or failed to pay after demand by the Respondent.
The Appellant caused a conditional appearance to be entered and a Notice of Preliminary Objection (NPO) both dated and filed on 15th February, 2017, in reaction to the claims. The NPO prayed the High Court to strike out the suit for want of jurisdiction on the grounds that: –
A) This Suit is incompetent.
B) This Honourable Court not being the Federal High Court lacks the jurisdiction to adjudicate upon the Suit.
C) This Suit relates, borders on and or appertains to communication services between the parties.
D) The Federal High Court retains exclusive jurisdiction over all matters, Suits and cases bordering on communications services or any agreement thereto.
The arguments in support of the objection are that the claims arose out of the agreement for leased services to provide last mile internet connectivity services to the Appellant’s customers, which are triable by the Federal High Court by the combined effect of Sections 1, 2 and 138 of the NCCA. As may be observed, the same arguments have put forward in this appeal by the Appellant’s Counsel.
Similarly, the Respondent’s argument before the High Court are the same with those made above in opposition to the appeal.
In its Ruling, the High Court found and held, after a review of arguments by Counsel and relevant judicial authorities, that:-
It is evident on the face of the writ of summons and statement of claim that the subject matter of the claim is for breach of contract and for the payment of the ‘damages’ for the said breach and cost of the action.
The Court has carefully considered the afore-stated case law as well as the decision of Court of Appeal in the case of NJIKONYE ESQ. V. MTN NIG. COMMUNICATION (2008) 9 NWLR (PT. 1092) PG 339 and BARRISTER ORKER JEV & ANOR V. SEKAV DZUA IYORTYOM & ORS (2014) 5-6 SC (PT. 111) PG 82 vis-a vis the issue of jurisdiction raised and the Court finds that the subject matter of the claim before this Honourable Court is for the payment of sums of monies outstanding on the breach of a contract between parties.
As argued by the Claimant Counsel, the Honourable Court finds that the Federal High Court has not been conferred with jurisdiction to entertain claims founded on contract, and thus contracts or breaches thereof are not included on the exclusive jurisdiction conferred on the Federal High Court.
Since the objection was predicated primarily, on provisions of Sections 1, 2 and 138 of the NCCA, they should be invited to speak for themselves.
Here they are: –
1. The primary object of this Act is to create and provide a regulatory framework for the Nigerian communications industry and all matters related thereto and for that purpose and without detracting from the generality of the foregoing specifically to-
A
b
c to I?
2. This Act applies to the provision and use of all communication services and networks, in whole or in part within Nigeria or on a ship or aircraft registered in Nigeria.
138. The Federal High Court shall have exclusive jurisdiction over all matters, suits and cases howsoever arising out of or pursuant to or consequent upon this Act or its subsidiary legislation and all reference to ‘Court’ or ‘Judge’ in this Act shall be understood and deemed to refer to the Federal High Court or a Judge of the said Court.
As can easily be discerned, the provisions of Section 138 provide for and vest exclusive jurisdiction on the Federal High Court over all matters, suits and cases arising out of or pursuant to or consequent upon the provisions of the Act or subsidiary legislations. The provisions are clear and plain in words and straight forward and unambiguous in their tenor and purport. The Federal High Court therefore enjoys and possesses, to the exclusion of any other Court in Nigeria, the jurisdiction to entertain and adjudicate, as a Court of first instance, the suits, matters or cases arising out of the application of the NCCA or other relevant subsidiary legislations.
I should however point out that although the Federal High Court is a creature of the Constitution established by the provisions of Section 249(1) of the 1999 Constitution (as altered) and vested with exclusive jurisdiction over civil cases and matters in respect of the specific items listed and stipulated in Section 251(1) (a) and treason, treasonable felony and allied offences under Subsection (2), the National Assembly is conferred with the legislative authority and power to vest that Court with other civil or criminal jurisdiction; exclusive or general/shareable, by an Act thereof, under item(s) of Section 251(1). So, in addition to the exclusive jurisdiction vested in the Federal High Court in civil cases and matters in respect of the items listed under Section 251(1) (a) – (r), the National Assembly has the valid, constitutional and legal competence to vest the Federal High Court with exclusive or general jurisdiction in civil or criminal cases and matters to be specified in an Act to be enacted by it. In this regard, the learned Counsel for the Appellant is right when he said that the exclusive jurisdiction vested in the Federal High Court in civil cases and matters on the items listed under Section 251(1) (a) – (r) is not exhaustive since by item (s), additional jurisdiction can be vested on that Court by an act of the National Assembly, whether exclusive or not.
The NCCA is an Act enacted by the National Assembly in exercise of the powers and authority vested in it under Section 251(1) (s) of the Constitution, to confer additional jurisdiction on the Federal High Court in civil cases and matters to be specified in the Act.
As seen above, in Section 138, the NCCA confers on the Federal High Court, exclusive jurisdiction over matters, suits and cases arising out of and in the application of the provisions of the Act or its subsidiary legislations.
By Section 2 of the Act, as set out earlier, it ‘applies to the provision and use of all communication services and networks, in whole or in part within Nigeria or on a ship or aircraft registered in Nigeria.’
Clearly, the provisions of the Act apply to the actual provision and use of communication services and networks by service providers and users which must be in compliance and accordance with and as provided for in the Act. The provision as well as the use of all communication services and networks by the service providers and users are required by the provisions of Section 2, to be in compliance with and as stipulated or prescribed by the Act. The provisions do not say that the Act applies to agreements or contracts entered into between communication service providers or networks and other parties for the purpose of ‘provision and use of all communication services and networks’.
Contracts or agreements entered into for the provision and use of all communication services and networks are ordinary transactions of business and commercial contracts and agreements which are governed and regulated by the general law and judicially established principles on contracts.
The claims by the Respondent are undoubtedly based and founded on the breach of the simple commercial or business contract or agreement between the parties, by the Appellant who admitted the breach and liability for it.
In these premises, the High Court is right that the Federal High Court was not conferred jurisdiction, exclusive, or not over dispute arising from simple contracts/agreements resulting in civil cases and matters either by the provisions of Section 251 (1) (a) – (r) or under item(s) of that Section, by the provisions of Sections 2 and 138 of the NCCA.
In the famous case of Onuorah v. Kaduna Refining & Petrochemical Company Limited (2005) 2 SC (Pt. II) 1, (2005) 6 NWLR (921) 393, Akintan, JSC, had, unequivocally and poignantly, stated in the lead judgment of the apex Court that disputes founded on contracts are not among those included in the additional jurisdiction conferred on the Federal High Court citing seven-up Bottling Company Limited v. Abiola & Sons Bottling Company Limited (2001) 13 NWLR (730) 469 and Trade Bank, Plc v. Benilux Nigeria Limited (2003) 9 NWLR (825) 46 @ 430 & 431. Section 230 (1) of the 1979 Constitution, impari materia with Section 251(1) of the 1999 Constitution, was considered in the case and even though the facts were not on and did not involve the NCCA, the general principle laid down therein is applicable to cases of simple contracts in relation to the exclusive jurisdiction conferred on the Federal High Court by or pursuant to the provisions of the Constitution except where specifically provided for in an Act by the National Assembly.
See also Ports & Cargo Handling Services Company Limited v. Migfo Nigeria Limited (2012) 18 NWLR (1333) 555, (2012) 6-7 MJSC, where the apex Court stated that the mere fact the agreement between the parties related to the management and operation of Terminal C Tin Can, Island Port, did not make it a maritime matter, within the exclusive jurisdiction of the Federal High Court. Very recently, the apex Court in the case of TSKJ Nigeria Limited v. Otochem Nigeria Limited (2018) 11 NWLR (1630) 330 @ 344, restated the principle that a case or claim for recovery of accrued but unpaid debt, as in the present appeal, is one of a simple contract within the jurisdiction of a State High Court (Rivers State High Court in the case).
I.T. Mohammad, JSC, in the lead judgment, enunciated the principle thus: –
The fact that the Admiralty Jurisdiction Act, 1991, Cap A5 of the Laws of the Federation of Nigeria, 2004, defines a ship (Section 25 thereof) as a vessel of any kind used or constructed for use in navigation by water, however it is propelled or moved and includes a large, lighter or other floating vessel, cannot, in any view, convert an agreement for hire of houseboat into an admiralty agreement. The mere fact that a ship is involved in a simple contract does not automatically make that simple contract a subject for jurisdiction in admiralty matters. To hold to that supposition will be ridiculous. See: Texaco Overseas Nigeria Petroleum Company Unlimited v. Pedmar Nigeria Limited (2002) 7 SC (Pt. 11) 222; (2002) 13 NWLR (Pt. 785) 526; American International Insurance Company Limited v. Ceekay Traders Limited (1981) 5 SC 81. This case of a simple contract of debt recovery is, I hold, within the civil jurisdiction of the Rivers State High Court and it properly assumed jurisdiction on the matter.
See also Omosowan v. Chidozie (1998) 9 NWLR (566) 477, Integrated Timber and Plywood Products Limited v. UBN, Plc (2006) 12 NWLR (995) 483, N.C.I.C.E. (NPI) v. Mabol Asso. Limited (2010) 2 NWLR (1179) 612, Adelekan v. Ecu-Line NV (2006) ALLFWLR (2932) 1213.
In the result, merely because the claim by the Respondent for recovery of a debt arising out of the admitted breach by the Appellant of a contract or agreement entered into by the parties for or related to communication services or networks does not make the case automatically to fall within the exclusive jurisdiction of the Federal High Court under the NCCA. The High Court of Lagos State has the requisite jurisdiction and competence to entertain and adjudicate over the claims which arise from simple contract or agreement between the parties.
Consequently, there is no merit in the arguments by the learned Counsel for the Appellant on the sole issue and it is resolved against the Appellant.
The appeal therefore fails and is dismissed for lacking in merit. The Ruling by the High Court delivered on the 10th October, 2017 is hereby affirmed, accordingly.
There shall be Five Hundred Thousand Naira (N500, 000.00) costs in favour of the Respondent to be paid by the Appellant for the prosecution of the appeal.
TIJJANI ABUBAKAR, J.C.A.: Where determination of jurisdiction of a Court becomes an issue in controversy, the Court will examine the claims or reliefs sought by the Plaintiff, this is because the claim or relief sought donates jurisdiction to the Court, in other words jurisdiction of the Court is determined by Plaintiffs claim. See: ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD VS. GARBA (2002) 14 NWLR (Pt. 788) 538 at 563, IZENKWE vs. NNADOZIE (1953) 14 WACA 361 at 363.
The claim giving rise to the instant appeal is premised on breach of commercial agreement between the contending parties for provision of transmission facilities, it is beyond any doubt that the issue in controversy is wholly and exclusively founded on contract and disputes founded on contract are not included in the additional jurisdiction of the Federal High Court, the Federal High Court therefore lacks jurisdiction to entertain such claims. See: ONUORAH Vs. KADUNA REFINING & PETROCHEMICAL CO. LTD (2005) LPELR-2707 (SC).
The lower Court was therefore right as rightly found by my Lord and learned brother GARBA JCA, that the Federal High Court is not conferred with jurisdiction to entertain claims founded on contract. I therefore join my lord in holding that Appellants appeal is devoid of merit and deserves to be and is hereby dismissed by me. I also affirm the Ruling delivered by the High Court of Lagos State in suit No. AD/247/CMW/2016 on the 10th day of October 2017, and abide by all consequential orders including the order of costs.
TOBI EBIOWEI, J.C.A.: Having had the advantage of reading in draft the lead judgment of my learned brother, MOHAMMED LAWAL GARBA, just delivered, I agree entirely with the reasons and the conclusion reached therein.
I also dismiss this appeal and affirm the decision of the lower Court.
This appeal in my opinion is predicated on the assumption that any contract involving any matter dealing with telecommunication has to be taking to the Federal High Court, which has exclusive jurisdiction under Section 251 of the Constitution of The Federal Republic of Nigeria 1999 (as amended) and Section 38 of the Nigerian Commissions Act 2003. This assumption is not right and it is very far from the truth.
Section 38 of the Actprovides thus:
“The Federal High Court shall have exclusive jurisdiction over all matters, suits and cases however arising out of or pursuant to or consequent upon this Act or its subsidiary legislation and all reference to “Court” or “Judge” in this Act shall be understood and deemed to refer to the Federal High Court or a Judge of the said Court. ”
This section cannot be read in isolation to the other provisions of the same Act. The law is trite. It is this. When interpreting a Law or statute, a Court should not read a section in isolation. The Act has to be read together, taking cognizance of the other provisions of the Act. In BELLO & ORS VS. A.G. OYO STATE (1986) 5 NWLR (PT 45) 825; (1986) LPELR-764 (SC) 71, the Supreme Court held:
“It is a well settled principle of the interpretation of statutes that the statute is to be read as a whole. The sections therein are to be construed together, with reference to the con so far as possible to make a consistent enactment of the whole statute.”
In this respect, it will be wise to read Sections 1 and 2 of the Act so we can get an idea of the extent Section 38 can be stretched. Section 1stating the purpose of the Act, provides thus:
“The primary object of this Act is to create and provide a regulatory framework for the Nigerian communication industry and all matters related thereto and for that purpose and without detracting from the generality of the foregoing….”
Section 2 states the limit of the application of the Act. It provides:
“This Act applies to the provision and use of all communication services and networks, in whole or in part within Nigeria or on a ship or aircraft registered in Nigeria.”
The above provisions in my opinion does not cover simple contract entered into between a person and a telecommunication company. Interpreting Section 38 within that con will be taking it too far. To therefore determine whether a contractual relationship between the parties is covered by the Act, a Court will look at the con of the contract. If it is a pure simple contract for supply of goods and services, (as in the case in this appeal), the High Court of a State has jurisdiction to determine same. To determine, the exact parameter of the contract, we may need to look at the cause of action. The complain of the Claimant will be premised on the contract, hence, we will look at the contract which is the bases of the cause of action.
What then is the cause of action in a case? The cause of action in a case is what the Claimant has brought before the Court as his claim which the Court will determine to settle the right he claims that he has. The cause of action is the main focus of the Court which it will decide on or make a pronouncement upon. The pronouncement of a Court on the cause of action forms part and indeed, the major aspect of the judgment of a Court. The reason or reasons advanced by a Court on the cause of action is what forms the ratio decided In a case. A decision of a Court that does not address the cause of action may go back for retrial as it is a journey into an endless pit. Just as jurisdiction is crucial to a Court so is the decision on a cause of action crucial to a case. After a Court has assumed jurisdiction, the next very crucial thing is deciding on the cause of action. In the instant case, the cause of action is based on the contract entered between the parties.
In A.G. LAGOS STATE VS. EKO HOTEL LTD & ANOR (2006) 2 ANLR 141; (2006) LPELR-3161 (SC) 55, the Supreme Court held:
“The question as to what a cause of action is and when it is said to have accrued have long been settled by the Court and it has been held that a cause of action consists of every fact which it would be necessary to prove, if traversed in his claim for judgment and that the accrual of the cause of action is the event where a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. ”
The cause of action is indeed the basis of the complain which at the end of the day will make one party sad and the other happy. See A.G. ADAMAWA STATE & ORS VS. A.G. FEDERATION (2014) LPELR-23221 (SC). The cause of action is deduced from the claim of the claimant. In SCHEEP & ANOR VS. THE MV “S. ARAZ” & ANOR (2000) FWLR (Pt 34) 543, (2001) LPELR-1866 (SC) 34, it was held:
“What then is a claim, the word is defined in Black’s Law Dictionary as meaning:
‘demand as one’s own or as one’s right. A cause of action …
And the expression “cause of action” is defined in the said Dictionary as meaning
‘The fact or facts which give a person a right to judicial redress or relief against another. The legal effect of an occurrence in terms of redress to a party to the occurrence. A situation or state of facts which would entitle party to sustain action and give him right to seek judicial remedy in his behalf. See also BELLO & ORS V. ATTORNEY-GENERAL OYO STATE (1986) 5 NWLR (PT. 45) 828. From the above, it can be seen that a claim presupposes a cause of action.”
The claim as shown in the statement of claim covering pages 5-29 of the record relates to lease of the wide range digital transmission facilities to the Appellant for agreed locations. This is a simple contract for service. This is the main claim. The mere fact that those involved in this case are players in the telecommunication industry does not move an ordinary, simple and clear contract from been so to a complex issue which needs to go to the Federal High Court. This is a simple contract which is within the jurisdiction of the High Court. Forgive this analogy, a spectator in a football game does not make him a footballer as his limit is clear. The footballer participates fully in the game by running around following a round abject filled with air. The spectator on the other hand just looks and cheers. There is a limit. I am making this analogy to drive home the point that, the fact that the parties involved are players in the telecommunication industry and the product involved in the contact is a telecommunication product does not, and I emphasis, does not make the transaction one under the Nigerian Commissions Act.
Indeed, the cause of action in this appeal does not arise out of, pursuant to or consequent upon the Act.
I agree entire with the reasons, conclusion and order of my learned brother in dismissing this appeal for lacking in merit.
Appearances:
L. Imolode, with him, T. AdebowaleFor Appellant(s)
A. Olatunji, with him, Nas Ogunsakin and O. FaladeFor Respondent(s)
