EVANGELIST ALFRED AMBE BASSEY v. POWER HOLDING COMPANY OF NIGERIA (PHCN) & Anor
(2010)LCN/3894(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of June, 2010
CA/C/02/2009
RATIO
CONSEQUENCE OF THE FAILURE OF THE DEFENDANTS TO ESTABLISH THAT THE PLAINTIFF WAS OWING ON ELECTRICITY BILLS
The burden placed on the defendants to establish that the plaintiff was owing on the bills was not discharged. It is difficult to know how a reconciliation of account can be made from such evidence. It is the duty of the trial Judge to arrive at a definite finding as to the plaintiff’s indebtedness and where this is not possible, the claim by the defendants ought to be dismissed. If the plaintiff had admitted his indebtedness but the actual amount could not be ascertained due to paucity of the evidence, an order of non-suit could be entered so as to give the defendants an opportunity to have another bite at the cherry. See YESUFU v A.C.B. (1976) 1 NMLR 83. As rightly pointed out by the learned trial judge, there is no evidence from the defendants to show that they reconciled their estimated bills with actual consumption for any of the plaintiff’s meters. The justification the PHCN can have to demand payment on the bills sent is when there is proper service delivery or actual reading of the electricity consumed. It will amount to extortion for PHCN to prepare bills based on estimated consumption and expect such bills to be settled by the consumers when they have not enjoyed their services by providing uninterrupted power supply. The time has come for the National Assembly to enact a law making it mandatory for PHCN to install pre-paid meters so that consumers can pay for the actual units of the electricity they use instead of the present unsatisfactory arrangement of billing by estimate. PER KUMAI B. AKAAHS, J.C.A
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
NWAL1 SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
Between
EVANGELIST ALFRED AMBE BASSEY Appellant(s)
AND
1. POWER HOLDING COMPANY OF NIGERIA (PHCN)
2. MR. FRIDAY UDOH (SERVICE ENGINEER) PHCN STATION ORON Respondent(s)
NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Uyo Akwa Ibom State presided over by Olotu J. The judgment was delivered on 19th June 2008. Endorsed on the writ of summons issued on 19th June 2001 is the plaintiff’s claim against the Respondents, hereunder reproduced:
1. “The sum of N100,000.000.00 (One Hundred Million Naira) as Special and General Damages for the damage done to the Plaintiff’s property, when the 1st Defendant’s Technician maliciously bridged the Electric lines when reconnecting the 1st Defendant’s Power to the Plaintiff’s building.
2. An order directing Defendants to restore power supply to the Plaintiff’s residence at No 26 Eyotong Street, Oron, Akwa Ibom State of Nigeria.
3. An order directing Defendants to remove live wire disconnected and left hanging in front of Plaintiff’s Residence gate at No 26 Eyotong Street, Oron, Akwa Ibom State of Nigeria.
4. Perpetual injunction restraining the Defendants, their agents and/or servants from further destruction of the plaintiff’s property by unnecessary and unprovoked tempering with the Plaintiff’s Power supply by disconnecting and reconnecting of the Plaintiff’s residence to the 1st Defendant’s Power source to spite, harass, intimidate and injure the reputation of the Plaintiff.”
Pleadings were filed and exchanged by the parties. The Plaintiff called three witnesses while the defence called only one witness. At the close of the defence’s case on 6/3/07 the Learned Trial Judge ordered written addresses to be filed within given time frames by Learned Counsel for the parties. The written addresses were formally adopted on 26/7/07 and the Court below read its judgment on 18/6/08. In its judgment the Lower Court held, inter alia:
In the peculiar circumstances of this case, I believe that the 1st Defendant should restore light to the Plaintiff’s residence as prayed in paragraph 41 of his statement of claim. Prayer 3 as it relates to the disconnection of the Plaintiff by the Defendant its servant’s privies etc is also granted subject to the following:
1) That the Plaintiff will pay his bills for the light supplied to and consumed by him as at when due from the date he is reconnected.
2) That the injunction is not perpetual or eternal in the sense that its lifespan is limited to the period during which the Defendants can properly reconcile all the Plaintiff’s accounts with them and gives (Sic) him the outstanding bills to settle.
3) The injunction will not apply to the new services rendered to him from the date he is reconnected”. See pages 234-235 of the records.
The Plaintiff disagreed with the aspect of the judgment relating to reconciliation of accounts and appealed on a lone ground reproduced below shorn of its particulars:
“The Learned trial Judge erred in Law by issuing an order of reconciliation of the Appellant’s accounts with the 1st Respondent after holding in her judgment.” In the peculiar circumstances of this case I believe that the 1st Defendant should restore light to the Plaintiff’s residence as prayed in paragraph 41 of his statement of claim.”
From the ground of appeal Learned Counsel for the Appellant framed the following issue for determination in his brief of argument:
“Whether the order of the Lower Court for the reconciliation of the Appellant’s accounts with the 1st Respondent after it had made an order on the 1st Respondent to restore light to the Appellant’s residences occasioned a miscarriage of justice.”
In his own brief of argument Learned Counsel for the Respondents presented the following issue for determination:
“Whether having regards to the pleadings in the matter, the evidence adduced and the findings made the Learned Trial Judge was justified in ordering the reconnection of the Plaintiff’s electric supply subject to a reconciliation of account.
Arguing the lone issue in his brief Learned Counsel for the Appellant referred to the Pleadings and evidence before the trial Court. He referred to pages 203-204 of the records for the Respondents’ admission that they sent bills to the Appellant even when he was disconnected from power supply. He relied on Udengwu V. Uzuegbu & Ors (2003) 7 NSCR Vol .2 page 180, Atolagbe V. Shorun (1985) 1 NWLR (Pt 2) 360, Adimora V. Ajufo (1988) 3 NWLR (Pt 80) 1 and contended that the order for reconciliation of account should not have been made. He urged the Court to hold that on the basis of the evidence before it the Lower Court’s order for reconciliation of account was perverse, and ought to be set aside.
In his own argument Learned Counsel for the respondents contended that despite the finding by the trial court that most of the bills based on estimates were not sustainable the Appellant did not establish that he was indebted to the Respondents. He said that the trial court considered the pleading and evidence led by the parties and concluded that in the interest of justice the reconnection sought by the appellant should be made subject to reconciliation of accounts. Learned Counsel described the order for reconnection subject to reconciliation of account as:
“a show of compassion in a situation that an order of dismissal was most appropriate.”
He relied on order 54(1) of the Federal High Court (Civil Procedure) Rules 2000. He said that the order was made to avert a situation where Public revenue is lost or compromised in favour of a debtor. He said that the reconciliation was to be supervised by an officer of the court to endure that the Appellant is not cheated and public revenue not lost. He urged court to resolve the issue against the Appellant and to dismiss the Appeal.
The real issue in this appeal is the propriety vel non of the order for reconciliation of the appellant’s account with the Respondent, an order upon which the appellant’s prayer for reconciliation was granted.
In his brief of argument Learned counsel for the Respondents sought to justify the order on the ground that:
“The learned trial Judge was unable to come to the finding that the Plaintiff was not owing.”
The reverse is the case. Based on the evidence and documents tendered the Learned trial Judge could not find that the Appellant was indebted to the respondents. In order words the defence raised in paragraph 13 of the statement of defence that the plaintiff was disconnected having persisted in his indebtedness was not established.
The order for reconciliation of account cannot be justified on the alleged indebtedness of the appellant when the respondent could not prove the alleged indebtedness.
Learned counsel for the respondent resorted to appeal to sentiment in his submission that the order for reconnection subject to reconciliation of account:
“Was a show of compassion in a situation that an order of dismissal was most appropriate.”
With respect to Learned Counsel emotions passions or sentiments impact negatively in judicial deliberations. The Greek Philosopher Aristotle said that the Law is reason free of passion.
Any order or judgment not based on the evidence before the Court but made as a show of compassion is a traversity of justice. Though Learned Counsel is of the view that an order of dismissal was most appropriate, he did no Cross appeal.
An order made under 54 (1) of the Federal High Court (Civil Procedure Rules) 2000 relied on by Learned Counsel for the Respondents is consequential to the main relief and meant to give effect to the relief granted. It is an offshoot of the main relief sought to which it owes its existence See Adedoyin V. Doyin Sonuga & Ors (1999) 13 NWLR (Pt 635) 355 at 363. The order for reconciliation of account cannot be said to be an offshoot of the claim for reconnection, especially in view of the failure of the Respondent to establish the defence of alleged indebtedness to it. In any case the basis for reconciliation of account is not stated in the order. The trial Court found as a fact that the Respondents violated the billing principle by sending bills for what was not supplied to the Appellant.
Nor can the Court make an order to save Public revenue when the matter is not agitated before it. The court dispenses justice and has no business making orders as if it was a revenue collector. I agree with Learned Counsel for the Appellant that the order occasioned a miscarriage of justice. The order was made suo motu without affording Counsel for the parties’ opportunity to address the issue and it cannot stand as consequential relief.
The lone issue is resolved in favour of the Appellant and consequently the appeal is allowed. The order for the reconciliation of the Appellant’s account with the Respondents is hereby set aside. Respondents to pay costs assessed at N25,000.000 to the Appellants.
The Appeal is allowed.
KUMAI B. AKAAHS, J.C.A: I read the draft of the judgment of my learned brother, Ngwuta, JCA, and I agree with his reasoning and conclusion.
The Power Holding Company of Nigeria (PHCN) successor of the former National Electric Power Authority (NEPA) is one of the public utilities that is supposed to perform optimally if this country is to develop economically. Its action or inaction has crippled many a business and has added to the level of unemployment being experienced throughout the country.
The appellant as plaintiff had pleaded in paragraph 9, 10, 11 and 12 of the Statement of Claim the following facts:
“9. On or about 10th march, 1995 the 1st meter (i.e. Meter No 86/00029418) got burnt and the plaintiff promptly reported the incident to the 1st Defendant’s office in Oron, but the Defendants did nothing about the report. By this time plaintiff had lost his father about 27th February, 1995 and the bill as at March 1995 was N1,164.69 as shown in April, 1995 bill.
10. However, after plaintiff father’s burial on 2nd December, 1995 plaintiff met with the 2nd defendant to remind him of his earlier report about the burnt meter. In his reaction, the 2nd defendant advised the plaintiff to inform 1st defendant’s office in Uyo which the plaintiff did the same day.
11. Furthermore, 2nd defendant advised plaintiff to ignore the outrageous bills of the 1st defendant concerning the burnt meter, but that plaintiff should make additional payment of money into his account with the 1st defendant to enable the replacement of the burnt meter which the plaintiff did. Similarly, 2nd defendant advised plaintiff to surrender the burnt meter to his station in Oron for safe keeping and the plaintiff handed over the meter to 2nd defendant.
The burnt meter has however, remained in the possession of the defendants till date.
12. Notwithstanding the matters stated in paragraph 11 hereof 1st defendant was still sending bills to the plaintiff in respect of the burnt meter As at August, 1999, 1st defendant claims the plaintiff was owing it the sum of N44,609.03. And most surprisingly the said bills indicate dates of reading and amount due without any reflection of payments made. Plaintiff pleads 1st defendant bill in respect of meter No. 86/00029418 attached hereto and marked Exhs. A1 – A12”.
“4. The defendants deny paragraph 9 and 10 of the Statement of Claim.
The 2nd defendant avers further in answer that no such complaint was made and there is no written record of such in the office it is further denied that plaintiff was advised to forward such report to Uyo Office as no report was made to the 2nd Defendant. In further answer to that paragraph defendants aver that as at March, 1995 the meters were still functioning.
5. The 2nd defendant denies paragraph 11 in its entirety. The defendants aver that payment for the replacement of meter by the practice of the 1st defendant is usually done by bank draft and by then a meter cost N6,500.00 (Six Thousand, five hundred naira) The plaintiff is challenged to produce of such payment which is never done by payment into customer electricity account. Such bank draft is usually made payable to the General manager (D & M) Zonal office Enugu.
6. In answer to paragraph 12, the defendants admit sending bills to the residence in question and that as at March, 1995 the meter was still functioning. Bills issued for a particular month as reflected on the bill are usually for the consumption previous month. Besides the 1st defendant in their billing practice do issue bills on estimate bills which is usually reconciled subsequently with actual consumption.
13. Paragraphs 24, 25 and 26 are denied. The truth being that the Plaintiff was disconnected having persisted in his indebtedness. The amount the plaintiff paid to reduce the debt into his account did not satisfy the 80% payment requirement set by government for possible reconnection supported by strong undertaking to liquidate the balance. Hence the Presidential Task Force on NEPA debts affected the disconnection of all such customers nation wide to compel recovery of the debt. The Defendants received no such letter as averred in paragraph 26”.
The burden of proving that the appellant was owing on the bills sent to him shifted to the Respondents since the appellant had maintained in his pleadings in paragraph 12 and the evidence he adduced in court that despite the fact that the meter was burnt which he returned to the defendants on their instructions, they were still billing him on that meter and as at August, 1999 he was said to be owing the sum of N44,609.03k. He went ahead to tender Exhs. A1 – A2. The traverse by the defendants in paragraph 6 of the Statement of Defence is that the meter in question was still functioning as at march, 1995. Mr. Friday William Udoh who testified for the defendants could not ascertain the actual amount the plaintiff was owing. He attempted to explain why they were still sending bills on the burnt meter to the plaintiff when he stated under cross-examination:-
“…………….. I remember the period between May 1998 to May 1998 (sic) when we disconnected the plaintiff from NEPA supply. During that period, we were still sending bills in respect of the faulty meter. The bill is called fix charge and it is chargeable as long as you have fixed meter in your house. It is true that we send bill on estimate and this is subsequently reconnected (sic) actual consumption. I cannot remember the details of the reading of plaintiff’s bills because I am not a computer. It is not possible to give actual consumption bill in respect of a burnt meter. We can only give an estimate bill.” (See page 203 II 24 – 27 and page 204 II 1-5 of the records).
The burden placed on the defendants to establish that the plaintiff was owing on the bills was not discharged. It is difficult to know how a reconciliation of account can be made from such evidence. It is the duty of the trial Judge to arrive at a definite finding as to the plaintiff’s indebtedness and where this is not possible, the claim by the defendants ought to be dismissed. If the plaintiff had admitted his indebtedness but the actual amount could not be ascertained due to paucity of the evidence, an order of non-suit could be entered so as to give the defendants an opportunity to have another bite at the cherry. See YESUFU v A.C.B. (1976) 1 NMLR 83. As rightly pointed out by the learned trial judge, there is no evidence from the defendants to show that they reconciled their estimated bills with actual consumption for any of the plaintiff’s meters. The justification the PHCN can have to demand payment on the bills sent is when there is proper service delivery or actual reading of the electricity consumed. It will amount to extortion for PHCN to prepare bills based on estimated consumption and expect such bills to be settled by the consumers when they have not enjoyed their services by providing uninterrupted power supply. The time has come for the National Assembly to enact a law making it mandatory for PHCN to install pre-paid meters so that consumers can pay for the actual units of the electricity they use instead of the present unsatisfactory arrangement of billing by estimate.
I find merit in the appeal and it is hereby allowed. The order made by the learned trial Judge for reconciliation of account is a gratuitous donation which cannot stand. It is hereby set aside. I abide by the order made on costs in the leading judgment.
JA’AFARU MIKA’ILU, J.C.A: I have read in draft the lead Judgment written by my learned brother Nwali Sylvester Ngwuta, J.C.A. I allow the appeal. The order of the trial court set aside ad I also give the same order as to costs as in the lead judgment.
Appearances
E. Ekpeyoung Esq.For Appellant
AND
Imo Inyang Esq.For Respondent
