MUJAID v. IBEDC & ORS (2020)

MUJAID v. IBEDC & ORS

(2020)LCN/13983(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Monday, March 02, 2020

CA/IL/160/2018

Before Our Lordships:

Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

MESSR BALOGUN OLOYEDE MUJAID APPELLANT(S)

And

1. IBADAN ELECTRICITY DISTRIBUTION COMPANY (IBEDC) 2. BUSINESS MANAGER (IBEDC) CHALLENGE BUSINESS HUB, ILORIN 3. BUSINESS MANAGER (IBEDC) ITA ALAMU BUSINESS HUB, ILORIN 4. MRS. VICTORIA A. AROJESU RESPONDENT(S)

RATIO

THE PURPOSE OF A PRELIMINARY OBJECTION

It is trite that, where a preliminary objection is upheld by the Court, the appeal, suit, (action) ought to be struck out by the Court. However, as aptly held by the Apex Court:
[I]If a preliminary objection leaves the exclusive domain of law and flirts with the facts of the case, then the burden rests on the applicant to justify the objection by adducing facts in an affidavit. The applicant, in that circumstance, stands the risk of his objection being thrown out or rejected, if he fails to satisfy the Court of the facts he has relied upon.
See AG FEDERATION VS. ANPP (2003) LPELR – 630 (SC); (2003) 18 NLWR (Pt. 851) 182; (2003) 12 SC (Pt. 11) 146; Niki Tobi, JSC @ 22 Paragraphs A – E.
In the case of CONTRACT RESOURCE NIGERIA LIMITED VS. UBA PLC (2011) LPELR – 8137 (SC), the Apex Court equally held:
The purpose of a preliminary objection is to contend that the appeal is defective or incompetent. If sustained, the appeal would no longer be heard. A successful preliminary objection terminates the hearing of an appeal. See NEPA V. ANGO 2001 15 NWLR (Pt. 737) Pg. 627; Ndigwe V. Nwudo 1999 11 NWLR (Pt. 626) Pg. 314.
Preliminary objections are usually on law. Consequently no affidavit is necessary but where the need to produce or rely on facts becomes necessary, an affidavit ought to be filed. In this case, the respondent filed a Notice of Preliminary Objection supported by 14 paragraph affidavit. In the circumstances an affidavit is necessary because there is reliance on facts, and facts have no views. They are sacred.
…The Notice of Appeal and the appellants’ brief of argument are incompetent having been signed by a lay man. The preliminary objection is again upheld and the appeal is hereby struck out with costs of N50,000.00 to the respondent. Per Rhodes-Vivour, JSC @ 16 – 17 paragraphs G – G. PER SAULAWA, J.C.A.

A NOTICE OF APPEAL

Fundamentally, the only process that ought to invoke the appellate jurisdictional competence of the Court of Appeal or Supreme Court, is the Notice of Appeal. Thus, where a notice turns or is adjudged to be incompetent, it presupposes the fact that the Court is devoid of jurisdiction to entertain the appeal before it. See MADUKOLU VS. NKEMDILIM (1962) ALL NLR 587 @ 593; SKEN CONSULT NIGERIA LIMITED VS. UKEY (1981) 1 SC 1; GE INTERNATIONAL OPERATIONS LIMITED VS. O. OIL AND GAS SERVICES (2015) NWLR (Pt. 1440) 244 per EKO, JCA (now JSC) @ 266 paragraphs F – F. PER SAULAWA, J.C.A.

DEFINITION OF THE TERM “LOCUS STANDI”

Instructively, the term “locus standi” denotes the fundamental legal capacity to initiate an action (proceeding) in a Court of law. Thus, for a person to institute a legal action he must show that he has sufficient interest in the subject of the action and that his civil rights and/or obligations have been or are in danger of being infringed upon. Fundamentally, it’s the originating process (the Writ of Summons, Originating Summons/motion or Statement of Claim, where same is filed) that ought to show whether the complainant has a locus standi to sue. See JITTE VS. OKPULOR (2016) ALL FWLR (Pt. 820) 1371 per Okoro, JSC @ 1395 paragraphs F – H; OKAFOR VS. OKAFOR (2002) FWLR (Pt. 120) 1712 @ 1731. PER SAULAWA, J.C.A.

WHETHER OR NOT ONLY A PARTY TO A VALID CONTRACT CAN SUE TO ENFORCE SAME

The law is well settled, that only a party to a valid contract can sue to enforce same. The fact that the contract was made for his benefit, notwithstanding. See REBOLD INDUSTRIES LIMITED VS. MAGREOLA (2015) 8 NWLR (Pt. 1461) 210; CHUBA IKPEAZU VS. ACB (1965) 1 NMLR 374 @ 379; OWODUNNI VS. REGISTERED TRUSTEES CCC (2000) 10 NWLR (Pt. 675) 315; MAKWE VS. NWUKOR (2001) FWLR (Pt. 63) 1 @ 14; (2001) 14 NWLR (Pt. 733) 356 paragraphs C – D; UNION BEVERAGES LIMITED VS. PEPSI COLA INTERNATIONAL LIMITED (1994) 3 NWLR (Pt. 330) 1 @ 16.
The foregoing formidable authorities have firmly attested to the trite doctrine, that a contract cannot be enforced by a person who is not a party thereto, even if made for the benefit thereof. PER SAULAWA, J.C.A.

THE DOCTRINE OF PRIVITY OF CONTRACT

Now the doctrine of privity of contract is to the effect that a person who intends to enforce a contract must show not only that he gave consideration but also that he is a party to that contract. In law, a contract exists only between the parties to it. A person who is not a party to the contract cannot sue upon it. See Twudale Vs. Atkinson (1861 – 73) All ER 369; Ikpeazu Vs. ACB Limited (1965) NMLR 374; Spelling Vs. John (1972) 2 All ER 79. Per Ariwola, JSC @ 1680.
PER SAULAWA, J.C.A.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.(Delivering the Leading Judgment): The present appeal is against the judgment of the Kwara State High Court delivered on July 26, 2018. By the judgment in question, the Court below Coram I. A. Yusuf J.; dismissed the Appellant’s Suit thereby seeking some fundamental right reliefs against the Respondents.

BACKGROUND FACTS
On April 2, 2018, the Appellant instituted in the Court below the said Suit vide originating Summons, thereby seeking some declaratory and injunctive reliefs against the Respondents:
1. A declaration that the disconnection of the electricity supply to the Applicant’s Building on 23rd day of February without notice as prescribed by Regulation 5 of Nigerian Electricity Regulatory Commission’s Connection and Disconnection Procedures for Electricity Service 2007 by the Respondents is illegal, unconstitutional, outrageous, malicious and abuse of statutory power.
2. A declaration that the Disconnection of the electricity supply to the building of the Applicant and confiscation of the Applicant’s property (service line) without any justification is illegal, unconstitutional, outrageous

and a gross abuse of the Applicant fundamental right.
3. An Order of the Court compelling the Respondents to return the Applicant’s service line and connect the electricity supply to the Applicant’s building forthwith without any cost.
4. An Order of perpetual injunction restraining the Respondents, either by themselves, their agents, staff, privies, servant or any person acting through them from disconnecting the electricity supply to the Applicant building without the necessary required statutory notice.
5. An Order of perpetual injunction restraining the Respondents, either by themselves, their agents, staff, privies, servant or any person acting through them from further seizure and/or confiscation of the Applicant’s property (Service Line).
6. An Order of Court invoking Regulation 11 of Nigerian Electricity Regulatory Commission’s Connection and Disconnection Procedures for Electricity Service 2007 in favour of the Applicant
7. An Order for payment of N75,700.00 (Seventy Five Thousand, Seven Hundred Naira) as Special Damages being the cost of damages suffered by the Applicant upon the illegal act of all the Respondents.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The reliefs sought by the Appellant were predicated upon four (4) Grounds:
1. That the Applicant is not in arrears of Bill of charge.
2. The electricity of the applicant was disconnected by the Respondents without required statutory notice.
3. The Respondents went beyond their statutory duty and confiscated the Applicant’s property (service line) without justification.
4. The Applicant was denied his fundamental right to the enjoyment (sic) his personal property by the Respondents and subjected him to ridicule within his community.

The application was supported by a-29 paragraphed Affidavit, deposed to personally by the Appellant. Attached to the Affidavit were four documents marked as Exhibits MB 01 – 4, respectively. The Appellant equally filed a Written Address along with the application in question. (Pages 15 – 26 of the Record).

Contrariwise, the 1st to 4th Respondents filed a counter affidavit in opposition to the Appellant’s application deposed thereto by one Alhaji Abdul Fatai Ajadi (Pages 56 – 58 of the Record), a joint Written Address ((59 – 69), and Additional Written Address (Pages 27 – 35), respectively.

On May 24, 2018, when the application came up for hearing, both counsel to the respective parties adopted their Written Addresses. However, the Court below in its wisdom deemed it expedient to rule:
Court: I have carefully considered the application of the applicant particularly the affidavit support and further affidavit which I found to be in conflict with the Respondents’ counter affidavit, I will call for oral evidence in the circumstance. The deponents of the affidavits before the Court are to appear in Court to be cross-examined on their depositions in the affidavits.
See Page 79 of the Record.

On the said 24/05/2018, the Appellant appeared in person and testified (as PW1). He was duly cross-examined by Ariyo Esq. for the Respondents.

On the other hand, the 4th Respondent and one Ajadi Abdul Fatai Olawale testified as DW1 and DW2. Only the DW1 was cross-examined by Abiola Esq. The learned counsel having adopted their respective Written Addresses, the matter was adjourned to 26/07/2018 for judgment.

On the said 26/07/2018, the Court below delivered the vexed judgment, to the conclusive effect:
I am satisfied that the applicant having illegally connected his premises to the network of the 1st Respondent, the respondents are empowered to disconnect him without notice under Regulation 6 (a)…
The applicant has not established that he is a customer of the 1st Respondent or that the Respondents owe him any duty to necessitate the filing of this Suit against them.
I hold in the circumstances of this action that the Respondents have not violated any of the fundamental rights of the applicant, he is therefore not entitled to the reliefs sought. This action fails and it is hereby dismissed.

Not unnaturally, the Appellant was utterly dissatisfied with the vexed judgment of the Court below.

The Appellant’s Notice of Appeal, dated and filed on 12/09/2018, is predicated upon five (5) Grounds, thereby urging the Court to nullify the vexed decision of the Court below and enter judgment for the Appellant. On December 3, 2019, when the Appeal ultimately came up for hearing, the learned counsel adopted their respective briefs of argument, thus resulting in reserving judgment.

The Appellant’s brief, deemed properly filed on 19/09/2019, spans a total of 25 pages. At page 4 thereof, three Issues have been couched for determination:
1. Whether the trial Court was right to have held that the Appellant does not have locus standi to institute this case and that appellant’s suit discloses no reasonable course of action. (Grounds 5).
2. Whether having regards to evidence placed before the trial Court, the learned trial judge was right to have held that the Respondents did not violate the Appellant’s Fundamental Rights and that the Appellant’s special damages are not proved as required by law to warrant Appellant entitled to the relief sought (Grounds 1 and 4).
3. Whether having regards to the Exhibits MOB1, MOB2, MOB3, MOB4, MOB5 and all the evidence led thereon, the learned trial judge was right to have held that the Appellant connected to the 1st Respondent Network illegally (Grounds 2 and 3).

The Issue No. 1 is argued at pages 5 – 9 of the said brief, to the effect that the Court below was wrong in holding that the Appellant did not have a locus standi to institute the instant suit and that the said suit does not disclose a reasonable cause of action.

The case of JITTE VS. OKPULOR (2016) ALL FWLR (Pt. 820) 1371 @ 1395 paragraphs F – H, was cited on what constitute a locus standi. It was submitted in the main, that all the facts and evidence before the Court below, it is evidenced (vide Affidavit) that the Appellant bought 6 coils of service line for the connection of the Appellant’s building which was (allegedly) confiscated by the Respondents without any justification. See also MOBIL PRODUCING NIGERIA UNLIMITED VS. LASEPA (2003) FWLR (Pt. 137) 1028 @ 1053 B – C, et al.

It was argued, that the Appellant needs not be a customer or have a contractual obligation with the Respondent before being entitled to enforce obligations under the fundamental rights proceedings, once the Appellant can establish that the Respondents trampled upon his legal right to which redress can be sought in a Court of law. See Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended; Order 2 Rule 6 of the Fundamental (Enforcement Procedure) Rules, 2009; ONIFADE VS. FATODU (2008) ALL FWLR (Pt. 401) 917 @ 928 A – B; MOBIL PRODUCING UNLIMITED VS. LASEPA

(Supra) @ 1056 G – H.
The Court is urged to resolve Issue 1 in favour of the Appellant.

The Issue No. 2 is canvassed at pages 9 – 16 of the brief, to the effect that the Court below was wrong to have held that the Respondents did not violate the Appellant’s fundamental right.

Copiously relying upon the provision of Section 44(1) of the Constitution (supra), the Appellant submitted that the Court below was wrong to have held that the Respondents did not violate the Appellant’s fundamental right and that the special damages sought were not proved as required by law. Allegedly, the vexed decision of the Court below was perverse. See ADEBIYI VS. THE STATE (2016) ALL FWLR (Pt. 827) 739 @ 749 F – G.

It was argued, that all the averments in paragraphs 4, 13, 15 and 17 of the Appellant’s affidavit in support of the application were not challenged and/or controverted by the Respondents. Therefore, the Court below was not only bound to admit unchallenged evidence but must also act on it. See OGUNTADE VS. OSUNKEYE (2007) ALL FWLR (Pt. 389) 1179 @ 1192 G – A.

Further argued, that the finding and decision of the Court below were based on speculation. DAKOUR VS. L.S.U.R.B (2015) ALL FWLR (Pt. 809) 917 @ 945 D – E, et al.

It was postulated that contrary to the speculative finding of the Court below, it was the Appellant (and Alhaji Abdul Fatai Ajadi) that acquired the service line for the connection of the Appellant’s building. That under the provision of Regulation 7(c) of the Electricity supply Regulations, 1994, and Sections 3 and 4 of the Electricity Act every person (including the Appellant) who acquires a service line for the connection of electricity supply, remains the owner of the said service line.

It was posited, that the confiscation of the Appellant’s property (service line) amounts to an infringement of his fundamental right as enshrined in Section 44(1) of the 1999 Constitution (supra). See AGRICULTURE DEVELOPMENT ASSOCIATION, OBITTI IMO STATE VS. OKEDI (2004) 11 NWLR (Pt. 884) 369; LADIPO VS. AJANI (1997) 8 NWLR (Pt. 517) 356; C.O.P. VS. ALHAJI ISSA IBRAHIM (2016) LPELR – 41319 (CA); OKONKWO VS. OGBOGU (1996) 3 – 9 MAG. 222 SC @ 234.

The Court is urged to resolve the Issue 2 in favour of the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Issue No. 3 is argued at pages 17 – 22 of the brief. In a nutshell, it is submitted that the Court below was wrong in holding that the Appellant connected to the 1st Respondent’s network illegally. It is argued that the Court below misdirected itself when it held that the Appellant and his landlord failed the conditions in Regulation 3 of the Nigerian Electricity Regulation Commission (NERC) Connection and Disconnection Procedures for Electricity Service, 2007.

Further argued, that the decision was based on the failure of the Court below to consider Exhibit MOB2 alongside with MOB5, before arriving at the decision. Thus, the decision cannot be supported by the evidence adduced by the parties. That the Court has the primary duty to evaluate the evidence as placed before it by the parties and has no discretion over this duty. See ODUSOTE VS. ODUSOTE (2013) ALL FWLR (Pt. 668) 867 @ 885 – 886 G – A.

The provisions of the Electricity Power Sector Reform Act, 2005 have been alluded, to the effect that the Respondents having failed to comply with Regulation 5 of the Nigerian Electricity Regulation Commission (NERC) Connection and Disconnection Procedures for Electricity Service, 2007,

as contained in EPS Reform Act, 2005, the disconnection of the Appellant’s building by the Respondents amounts to an abuse of their statutory power. See DANTANA VS. MUHAMMED (2013) ALL FWLR (Pt. 675) 279 @ 309 C – D; NAGOGO VS. CPC (2013) ALL FWLR (Pt. 685) 272 @ 307 C; et al.

The Court is urged to so hold and resolve the Issue 3 in favour of the Appellant.
Conclusively, the Court is urged upon to allow the Appeal and set aside the judgment of the Court below.

Contrariwise, the Respondents’ brief settled by Afolabi Ariyo Esq. on 19/09/2019, spans a total of 34 pages. Pages 4 – 10 of the said brief deal with preliminary objection. By the preliminary objection thereof, the Respondents have argued that the Notice of Appeal is fundamentally defective, in that the complaint in all the five (5) Grounds alleges both errors in law and misdirection in fact.

It is argued, that the defect in the Grounds of Appeal has effectively rendered the grounds incompetent and liable to be struck out. See OBIJURU VS. ANOKWURU ALL (2002) FWLR (Pt. 114) 567 @ 568; ACHONU VS. OKUWOBI (2017) 14 NWLR (Pt. 1584) 142 @ 170 E – G; et al.
On the whole, the Court is urged to sustain all the grounds of the preliminary objection.

The Appeal is argued on the merits at pages 11 – 31 of the Respondents’ brief. Most particularly, Issue No. 1 is argued at pages 11 – 18 of the Respondents’ brief, to the conclusive effect that it is abundantly clear from the facts and circumstances of the case, that the Appellant’s Suit was not predicated on any legal or enforceable right in law, and as such does not disclose a reasonable cause of action enforceable in any Court of law.
The Court is urged to so hold and resolve the Issue against the Appellant.

The Issue 2 is canvassed at pages 19 – 24 of the Respondents’ brief. In a nutshell, it was argued to the conclusive effect, that the Court below had dismissed the Appellant’s suit on the reasoning that it was improperly commenced as a fundamental rights action. The Court is urged to so hold, and resolve the Issue in favour of the Respondents.

The Issue 3 was canvassed at pages 24 – 30 of the brief. It was argued to the conclusive effect,

that the findings of the Court below were not perverse given that the findings do not run counter to the evidence proffered by the parties, that the Appellant has been unable to show that the Court took into account matters which it ought not to have taken, or that the findings have occasioned a miscarriage of justice. See EDILCON (NIGERIA) LIMITED VS. UBA PLC (2017) 18 NWLR (Pt. 1596) 74 @ 105 – 106 G – B.

The Court is urged upon to resolve all the three (3) Issues in favour of the Respondents, and dismiss the Appeal.

The Appellant filed a reply brief on 02/10/2019 in reaction to the Respondents’ brief in question. By pages 2 – 6 of the Reply brief, the Appellant has urged upon the court to discountenance all the Respondents’ submissions regarding the preliminary objection, and hold that the Notice of Appeal thereof is competent.

Pages 7 – 11 of the Reply brief deal with the three Issues canvassed by the Respondents. By the argument thereof, the Appellant has conclusively urged upon the Court to discountenance all the Respondents’ submissions, grant the Appeal, set aside the judgment of the Court, and enter judgment in favour of the Appellant.

DETERMINATION OF THE RESPONDENTS’ PRELIMINARY OBJECTION
By the Notice of Preliminary objection thereof filed on 19/09/2019, the Respondents have vehemently objected to the hearing of the instant appeal. The preliminary objection is predicated upon a total of six (6) Grounds, viz:
1) All the grounds of appeal allege both error in law and misdirection of fact contrary to the Rules of this Honourable Court thereby rendering all the grounds invalid and liable to be struck out.
2) Ground 3 of the Notice of Appeal is vague, nebulous and generic, disclosing no reasonable complaint.
3) Issue 2 in the Appellant’s Brief purportedly formulated from grounds 1 and 4 is incompetent given that the said issue is not related or linkable to the complaint ingrained in ground 1 of the Notice of Appeal.
4) Issue 3 in the Appellant’s Brief of Argument purportedly formulated from Grounds 2 and 3 is incompetent given that the said issue is not related or linkable to the complaint ingrained in ground 3 of the Notice of Appeal.
5) All arguments canvassed at paragraphs 4.1 to 4.10, 5.9 to 511 of the

Appellant’s Brief are incompetent not being related to any ground in the Notice of Appeal.
6) All arguments canvassed under issues 2 and 3 are incompetent having been canvassed in support of incompetent issues.

As alluded to above, pages 4 – 10 (paragraphs 3.1 – 3.16) of the Respondents’ Brief relate to the argument upon the preliminary objection in question. The Notice of Appeal complained about is contained at pages 97 – 101 of the Record of Appeal. For ease of reference, the five (5) Grounds of the Notice of Appeal, shorn of the particulars thereof are hereby reproduced:
GROUND 1:
The Honourable trial judge erred in law and misdirected himself in fact which it held thus: “From the evidence before the Court, the Applicant did not establish that he was having a service line which was confiscated by the Respondents”.
GROUND 2:
The learned trial judge erred and misdirected himself in both law and fact when he held thus “in the circumstance, I am satisfied that the Applicant illegally connected his premise to the network of the 1st Respondent, and having not being customer of the

Respondents he cannot institute this action or complain that the Respondent breached his right”.
GROUND 3:
The learned trial judge erred and misdirected itself in law and fact when it held that “failure of the applicant or his landlord to fulfil the conditions in Regulation 3 of the Nigeria Electricity Regulating Commission connection and disconnection procedures for Electricity Service 2007 will prevent Court to invoke the provisions of Regulation 11 as prayed by the Applicant”.
GROUND 4:
The learned trial judge erred and misdirected itself in both law and facts when it held that the Applicant’s special damages are not proved as required by law.
GROUND 5:
The learned trial judge erred in law and misdirected itself in fact when the trial judge held thus: “Learned counsel to the Respondents has raised the issue of the Applicant’s locus standi and jurisdiction of the Court. I am in agreement with him that there is no reasonable cause of action disclosed in this action. The Applicant has not established that he is a customer of the 1st Respondent or that the Respondents owe him any duty to

necessitate the filing of this suit against them”.

The argument of the Respondents, in the main, is to the effect that all the five (5) Grounds of the Notice complain both about error in law and misdirection of fact. Therefore, the said grounds have been rendered effectively incompetent, and liable to be struck out.

Instructively, the essence of preliminary objection is not far-fetched. By the very nature thereof, preliminary objection deals strictly with issue of law. Therefore, there is no need at all for the respondent to file an affidavit in support thereof. The Applicant raises the question of law on the ground that the Court process (Notice of Appeal, or Suit, as the case may be) has not complied with the enabling law or rules of Court and thus ought to be struck out. It could be an abuse of Court process.
It is trite that, where a preliminary objection is upheld by the Court, the appeal, suit, (action) ought to be struck out by the Court. However, as aptly held by the Apex Court:
[I]f a preliminary objection leaves the exclusive domain of law and flirts with the facts of the case, then the burden rests on the applicant to

justify the objection by adducing facts in an affidavit. The applicant, in that circumstance, stands the risk of his objection being thrown out or rejected, if he fails to satisfy the Court of the facts he has relied upon.
See AG FEDERATION VS. ANPP (2003) LPELR – 630 (SC); (2003) 18 NLWR (Pt. 851) 182; (2003) 12 SC (Pt. 11) 146; Niki Tobi, JSC @ 22 Paragraphs A – E.
In the case of CONTRACT RESOURCE NIGERIA LIMITED VS. UBA PLC (2011) LPELR – 8137 (SC), the Apex Court equally held:
The purpose of a preliminary objection is to contend that the appeal is defective or incompetent. If sustained, the appeal would no longer be heard. A successful preliminary objection terminates the hearing of an appeal. See NEPA V. ANGO 2001 15 NWLR (Pt. 737) Pg. 627; Ndigwe V. Nwudo 1999 11 NWLR (Pt. 626) Pg. 314.
Preliminary objections are usually on law. Consequently no affidavit is necessary but where the need to produce or rely on facts becomes necessary, an affidavit ought to be filed. In this case, the respondent filed a Notice of Preliminary Objection supported by 14 paragraph affidavit. In the circumstances an affidavit is necessary

because there is reliance on facts, and facts have no views. They are sacred.
…The Notice of Appeal and the appellants’ brief of argument are incompetent having been signed by a lay man. The preliminary objection is again upheld and the appeal is hereby struck out with costs of N50,000.00 to the respondent.
Per Rhodes-Vivour, JSC @ 16 – 17 paragraphs G – G.

By paragraphs 2.1 – 2.7 of the Reply Brief thereof, the Appellant has urged upon the Court to strike out the Respondents’ preliminary objection on the ground that same is incompetent. Reliance is squarely placed on ADEJUMO VS. OLAWAIYE (2014) 12 NWLR (Pt. 42) 252 wherein the Apex Court held:
A preliminary [objection] should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are capable of disturbing the hearing of the appeal. Per Rhodes-Vivour, JSC @ 279.
Regrettably, the Appellants apparently have misconstrued the extent of the wisdom inherent in the immutable dictum of Apex Court in ADEJUMO VS. OLAWAIYE (Supra) Per Rhodes-Vivour, JSC. In my considered view, the phrase–

“Not against one or more grounds of appeal which are capable of disturbing the hearing of the appeal”.
as couched in the Apex Court’s dictum Per Rhodes-Vivour, JSC @ 279 (Supra) simply connotes – where (there are) grounds of appeal [that] can sustain an appeal, a preliminary objection ought not to be filed. My view has been fortified by a plethora of authorities of the Apex Court regarding the issue. In the case of GN NWAOLISAH VS. PASCHAL NWABUFOH (2011) LPELR – 2115 (SC), the Apex Court aptly held:
A preliminary objection should only be filed against the hearing of the appeal and not against one or more grounds of appeal. Consequently if it succeeds that is the end of the appeal. See NEPA V. ANGO 2001 15 NWLR (Pt. 737) Pg. 627 .
Where other grounds of appeal can sustain an appeal a preliminary objection should not be filed rather a motion of Notice should be filed against the offending grounds of appeal.
The respondent was right to file a preliminary objection, because if it succeeds the appeal terminates. Per Rhodes-Vivour, JSC @ 52 paragraphs B – D.
Against the backdrop of the foregoing postulates, I

am unable to uphold the Appellant’s argument that the instant objection is incompetent.
And I so hold.

By virtue of Order 7 Rule 2(2) of the Court of Appeal Rules, 2016, only a complaint of either error or misdirection is allowed. Regrettably, in the instant case, the Appellant brazenly alleges in each of the 5 Grounds of the Notice of Appeal, both error in law and misdirection of fact, thereby rendering the said Grounds incompetent and liable to be struck out. See OBIJURU VS. ANOKWURU (2002) FWLR (Pt. 114) 567 @ 568; ACHONU VS. OKUWOBI (2017) 14 NWLR (Pt. 1584) 142 @ 170

paragraphs E – G; NWADIKE VS. IBEKWE (1987) 4 NWLR (Pt. 67) 718 @ 744 paragraphs F – G.
Thus, against the backdrop of the foregoing postulation, I would want to hold, that (even) on these grounds alone, the Notice of Appeal ordinarily ought to be struck out for being incompetent. And I so, hold.

However, in view of the intermediary nature of the Court of Appeal, the decision of this Court may be subject to further appeal to the Supreme Court. Therefore, there’s a need for the Court to proceed to determine the appeal on the merits.

DETERMINATION OF THE APPEAL ON THE MERITS
I have deemed it expedient to adopt the three Issues raised at page 4 of the Appellant’s Brief for determination.

ISSUE NO. 1
The first Issue raises the question of whether the Court below was right to have held that the Appellant did not have locus standi to institute this cause and that the Appellant’s Suit discloses no reasonable cause of action. (Ground 5).
The Appellant’s grouse under the instant issue relates to the finding of the Court below (page 96 lines 8 – 12):

Learned counsel to the respondent has raised the issue of the appellant’s locus standi and the jurisdiction of the Court. I am in agreement with him that there is no reasonable cause of action disclosed in this action. The appellant has not established that he is a customer of the 1st respondent or that the respondents owe him any duty to necessitate the filing of this suit against them.
Instructively, the term “locus standi” denotes the fundamental legal capacity to initiate an action (proceeding) in a Court of law. Thus, for a person to institute a legal action he must show that he has sufficient interest in the subject of the action and that his civil rights and/or obligations have been or are in danger of being infringed upon. Fundamentally, it’s the originating process (the Writ of Summons, Originating Summons/motion or Statement of Claim, where same is filed) that ought to show whether the complainant has a locus standi to sue. See JITTE VS. OKPULOR (2016) ALL FWLR (Pt. 820) 1371 per Okoro, JSC @ 1395 paragraphs F – H; OKAFOR VS. OKAFOR (2002) FWLR (Pt. 120) 1712 @ 1731.
In the instant case, it’s obvious on the face of the

record, that the Appellant’s landlord (Alhaji Abdul Fatai Ajadi) in apparent strict compliance with the law applied to the Respondents for the connection of the building thereof to the electricity network of the 1st Respondent. Curiously, however, prior to obtaining the 1st Respondent’s approval, the Appellant in contravention of due process went ahead to connect the said building to the electricity network.
The Appellant equally failed to notify the 1st Respondent of the illegal connection and continued to enjoy the energy without paying until the 4th Respondent discovered the illegal act.
As aptly argued by the Respondents’ learned counsel, there is absolutely no relationship or privity of contract between the Appellant and the Respondents. The law is well settled, that only a party to a valid contract can sue to enforce same. The fact that the contract was made for his benefit, notwithstanding. See REBOLD INDUSTRIES LIMITED VS. MAGREOLA (2015) 8 NWLR (Pt. 1461) 210; CHUBA IKPEAZU VS. ACB (1965) 1 NMLR 374 @ 379; OWODUNNI VS. REGISTERED TRUSTEES CCC (2000) 10 NWLR (Pt. 675) 315; MAKWE VS. NWUKOR (2001) FWLR (Pt. 63) 1 @ 14;

(2001) 14 NWLR (Pt. 733) 356 paragraphs C – D; UNION BEVERAGES LIMITED VS. PEPSI COLA INTERNATIONAL LIMITED (1994) 3 NWLR (Pt. 330) 1 @ 16.
The foregoing formidable authorities have firmly attested to the trite doctrine, that a contract cannot be enforced by a person who is not a party thereto, even if made for the benefit thereof. The application for electricity supply and the Agreement Form No. 342 (page 10 of the record) dated 22/05/2017 conspicuously bears the name of Alhaji Abdul Fatai Ajadi (and not the Appellant) as the actual applicant. There is no evidence on record, that the Appellant had at any point in time paid electricity bill to the Respondent to qualify him as a legitimate user and customer of the 1st Respondent. There is virtually nothing on the record conferring any right on the Appellant to question the legitimate disconnection of the building at No. 12, Jatto Phase One, Kilanko, Ilorin. Thus, as aptly posited by the Respondents’ counsel, the rightful person who could have instituted any claim in regard to the subject matter of the instant action was no other than the said Alhaji Abdulfatai Ajadi. In

REBOLD INDUSTRIES LIMITED VS. MAGREOLA (Supra), the Apex Court aptly held:
Even though it was the Respondent herein who was engaged by Mandilas Group Limited to draft this sublease agreement, he was not a party to the agreement. Not being a party to the agreement by the well-established principle of privity of contract the Respondent had no locus standi to sue under the said agreement.
Per Okoro, JSC @ 227 paragraphs F – G. See also REICHIE VS. NBC AND INDUSTRY (2016) ALL FWLR (Pt. 832) 1664, where in the Apex Court equally postulated:
Now the doctrine of privity of contract is to the effect that a person who intends to enforce a contract must show not only that he gave consideration but also that he is a party to that contract. In law, a contract exists only between the parties to it. A person who is not a party to the contract cannot sue upon it. See Twudale Vs. Atkinson (1861 – 73) All ER 369; Ikpeazu Vs. ACB Limited (1965) NMLR 374; Spelling Vs. John (1972) 2 All ER 79. Per Ariwola, JSC @ 1680.
Undoubtedly, by virtue of Exhibits MOB1, 2, 3 and 5 attached to the Appellant’s originating processes before the Court below,

the said Alhaji Abdul Fatai Ajadi has been shown to be the purported aggrieved customer of the 1st Respondent. The Appellant merely served as a solicitor to Alhaji Abdul Fatai Ajadi in exchanging correspondences with the Respondents. There has not been any documentary evidence whatsoever thereby authorizing the Appellant to institute the action on behalf of the said Alhaji Abdul Fatai Ajadi. See R. I. I. LIMITED VS. IHEBUZOR (2016) ALL FWLR (Pt. 852) 1453.
In the circumstance, the first Issue ought to be and same is hereby resolved against the Appellant.

ISSUE NO. 2
The second Issue raises the question of whether or not having regard to the evidence placed before it, the Court below was right to have held that the Respondents did not violate the Appellant’s fundamental rights, and that his special damages were not proved as required by law to entitle him to the relief thereby sought.
The second Issue is distilled from Grounds 1 and 4 of the Notice of Appeal.

Under Section 44(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, it is provided:
No movable property or any interest in an immovable property

shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for purpose prescribed by law that among other things.

In that regard, the Appellant raised a very fundamental question under paragraph 4.2 page 10 of the brief thereof, to the effect:
“Whether or not the property of the Appellant was forcefully and compulsorily confiscated by the Respondents.”

Instructively, consequent upon having painstakingly considered the pleadings and evidence adduced at the trial by the parties, the Court below came to the conclusion:
From the evidence before the Court, the applicant did not establish that he was having a service line which was confiscated by the Respondents…
I found as a fact that it was Alhaji AbdulFatai Ajadi and not the applicant that applied for electricity supply from the Respondents. Exhibits MOB1 relied.

The foregoing findings by the Court below are aptly cogent and unassailably consistent with the pleadings, evidence on record and trite fundamental principle of law.

Instructively, fundamental rights actions or matters are sui generis, duly governed by special practice and procedure. See EKEOCHA VS. EFCC (2009) ALL FWLR (Pt. 458) 310 @ 323.
In the instant case, the Court below has made far-reaching findings, to the effect that the Appellant’s action cannot be situated under any of the provisions of Chapter Four (4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. As aptly postulated by the Court below, the relief which may be claimed by the Appellant under the Fundamental Rights (Enforcement Procedure) Rules (supra) are limited to any of the provisions of Chapter IV of the 1999 Constitution, namely the rights to life, dignity of human person, personal liberty, fair hearing, private and family/life, freedom of thought/conscience and religion, expression and the press, peaceful assembly and association, freedom of movement, freedom from discriminate and acquisition of properties. See DONGTOE VS. CSC PLATEAU (2001) FWLR (Pt. 50) 1639; EGBONU VS. BORNO RADIO TELEVISION CORPORATION (1993) 4 NWLR (Pt. 285) 13; WAEC VS. AKINKUNMI (2008) ALL FWLR (Pt. 427) 28; WAEC VS. ADEYANJU (2008) ALL FWLR (Pt. 428) 206.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In all those authorities, the Apex Court minced no words in reiterating the fundamental principle, that the Fundamental Rights Enforcement Procedure is available only for complaints or (actions) cognizable under the fundamental rights provisions of the Constitution and no more.

With particular regard to the issue of damages, it is so obvious from the pleadings and evidence on record, that having woefully failed to establish the claim for breach of fundamental rights thereof on preponderance of evidence, the Appellant ought not to have been awarded the Two Hundred Thousand Naira (N200,000.00) special damages by the Court below. See UNITED CEMENT COMPANY NIGERIA LIMITED VS. ISIDOR (2016) ALL FWLR (Pt. 844) 2137; wherein this Court aptly reiterated the trite fundamental doctrine:
Indeed, it is fundamental principle, that in any claim for damages, a plaintiff must succeed in establishing the claim vis-a-vis the relief, thereof. Thus, where a plaintiff woefully fails to prove the claim thereof with some credible evidence, the relief for damages must naturally fail: IITA VS. ARMANI (1994) 3 NWLR (Pt. 332) 296 @ 325, paragraphs C – D.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Per Saulawa, JCA @ 2154.

In the circumstance, the second Issue equally ought to be, and same is hereby resolved against the Appellant.

ISSUE NO. 3
The third Issue raises the question of whether or not having regard to Exhibits MOB1, MOB2, MOB3, MOB4, MOB5 and all the evidence led thereon the Court below was right to have held that the Appellant connected to the 1st Respondent’s network illegally. The said third Issue is distilled from Grounds 2 and 3 of the Notice of Appeal.

Instructively, the Appellant has averred in paragraph 4 of the Statement of Claim thus:
“4. That upon the failure, neglect and refusal of the Respondents to provide service to connect the electricity supply to the building, I bought six (6) coils of service line for the connection sometimes in December 2017.

However, in a further affidavit in response to the 4th Respondent’s counter affidavit, the Appellant deposed inter alia:
24. That the Applicant’s landlord (Alhaji Abdulfatai Ajadi) later came with one man called Idowu who he claims is an official of the Respondents for the connection of the electricity.
25. That after the

connection of the electricity by the said Mr. Idowu, Mr Idowu demanded for the payment of his service from me (the Applicant).
26. That I informed the said Mr. Idowu that I did not contract him for the connection, that what I was made to aware was that he is an official of the Respondent.
30. That I am not the one that connected the electricity neither was I the one that contracted Mr. Idowu to the connection of the electricity.

As aptly postulated by the Respondents’ learned counsel, the Appellant preferred different (conflicting) accounts of the source of his connection of the premises in question. Yet, the law is trite that a party must not approbate and reprobate in the case thereof. See AJAYI VS. TOTAL NIGERIA PLC (2014) ALL FWLR (Pt. 719) 1069 per Peter-Odili, JSC @ 1088 – 1089 paragraphs H – A.
It is not at all in doubt, that the Appellant has woefully failed to proffer credible evidence showing that his connection to the 1st Respondent’s network was with tacit approval of the relevant authorities or supported under any statutory exception (exemption) whatsoever.
It is needless to reiterate, that the

Appellant ought to have been consistent in presenting the case thereof. See AMBODE VS. AGBAJE (2010) ALL FWLR (Pt. 814) 120 @ 133 paragraphs E – F.

In the circumstance, the third Issue is hereby resolved against the Appellant.
Hence, against the backdrop of the foregoing postulation resulting in resolving all the three Issues raised by the Appellant, against him, the appeal ought to fail, and it is hereby dismissed by me.

Consequently, the Judgment of the High Court of the Kwara State delivered by I. A. Yusuf, J.; on July 26, 2018 is hereby affirmed.
There shall be no order in regard to costs

IBRAHIM SHATA BDLIYA, J.C.A.: I agree

BALKISU BELLO ALIYU, J.C.A.: I agree

Appearances: