NATIONAL ELECTRIC POWER AUTHORITY v. BARRISTER DAN URUAKPA (2010)

NATIONAL ELECTRIC POWER AUTHORITY v. BARRISTER DAN URUAKPA

(2010)LCN/3666(CA)

In The Court of Appeal of Nigeria

On Monday, the 29th day of March, 2010

CA/PH/282/2006

RATIO

PROCEDURE: WHETHER THE SERVICE OF THE WRITS OF SUMMONS IS A CONDITION PRECEDENT TO THE EXERCISE OF JURISDICTION BY THE COURT AND EFFECT OF ITS FAILURE

PROCEDURE: WHETHER A WRIT THAT WHILE ITS SERVICE IS DEFECTIVE CAN RENDER AN ACTION VOID

This is because irregularity which is fundamental in exercise of jurisdiction is different from total lack of jurisdiction. See MOBIL PRODUCING v. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY (2002) 12 SCNJ 1; EZE v. OKECHKUKWU (2002) 12 SCNJ 258. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A

APPEAL: DUTY OF THE COURT OF APPEAL TO PRONOUNCR ON ALL ISSUES FOR DETERMINATION AND ITS EXCEPTIONS

JUSTICES

ABUBAKAR A. JEGA Justice of The Court of Appeal of Nigeria

HELEN M. OGUNWUMIJU Justice of The Court of Appeal of Nigeria

MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria

Between

NATIONAL ELECTRIC POWER AUTHORITY Appellant(s)

AND

BARRISTER DAN URUAKPA Respondent(s)

MOJEED A. OWOADE, J.C.A (Delivering the Leading Judgment): This is an appeal against the Ruling of H. T. Saba, J., sitting at the Umuahia Judicial Division of the Federal High Court delivered on 6th day of April, 2006.
The respondent as plaintiff before the lower court issued a Writ of Summons dated 24/6/2004 and filed on 25/6/04 followed by the filing of statement of claim against the defendant/appellant claiming as follows:
“1. A declaration that the disconnection of the electricity supply to the plaintiffs premises at No. 64 Hospital Road, Aba, Abia State on Thursday the 25th day of March, 2004 when the plaintiff did not owe the defendant any Electricity Bill on his Account No.56/13/07/0657-01, Metre No, 840007889 based on the indebtedness of the defendant’s other 2 customers at No.64 Hospital Road, Aba, namely; Ekenna R. with Account No. 56/13/07/0059 and Onuagha S. C. Account No. 56/13/07/0068 (Metre Numbers not stated) is wrongful, illegal, null, void and of no effect.
2. Five Million, Three hundred and three thousand, three hundred Naira (N5,303,300.00) being Special, Exemplary and/or Aggravated damages against the defendant for wrongful and illegal disconnection of the plaintiffs electricity supply at No. 64 Hospital Road, Aba, from 25th March, 2004 to 5th May, 2004, on the ground that other two tenants of the building were indebted to her when it was obvious that the plaintiff was not indebted to the defendant.
Particulars of Special Damages
(a) i. Cost of hiring Deutz Generator for 35 days from
26th March, 2004 to 5th May,2004 at N5,000.00 daily =  N175,000
ii. Cost of buying Diesel Four(4) Drums at N10,500
per drum at N50 per litre, a drum contains 210 litres 42,000
iii. Refund of payment made on protest                   52,000
iv. Transport for carrying Diesel                             15,000
v. Cost of servicing of Generator                            10,000
vi. Labour for carrying and mounting Generator         4,000
vii. Cost of posting letter to defendant                   2,300
viii. Transportation of 4 drums of diesel                  3,000

Total                                                             N303,300.00
(b) Exemplary and/or Aggravated Damages =        N5,000,000.00
Grand Total =                                                  N5,303,300.00”
By a motion on notice dated 16/8/04 and filed on 3/9/04, the defendant/appellant prayed court for extension of time within which to enter appearance and to file statement of defence to the suit of the plaintiff/respondent. These orders were granted on 17/1/05, whereof the defendant/appelliant entered appearance to the suit and on 24/1/05 brought a motion to strike out the plaintiff’s suit on grounds of jurisdiction consequent on incompetent and ineffective service and non-compliance with the rules of court.
In arguing the motion on Notice for an order to strike out the plaintiff/respondent’s suit for lack of jurisdiction, two issues were raised. The first is that the service of originating processes on the Branch office of the defendant/appellant was improper and ineffective and the second is that the Federal High Court lacked jurisdiction on claims based on contract.
In a considered Ruling delivered on 6th day of April, 2006, the learned trial Judge ruled in favour of the plaintiff/respondent and held that he has jurisdiction to entertain the case.  Dissatisfied with this Ruling, the defendant/appellant filed a Notice containing three (3) grounds of appeal before this court on 20/4/06.
Appellant’s brief of argument was dated and filed on 8/11/06. Respondent’s brief of argument filed on 3/4/07 was deemed properly filed on 21/5/07.
The appellant formulated two (2) issues for determination as follows:
“1. Whether service on a branch office of a company or corporation instead of the corporate headquarters of the company or corporation is an irregularity which can be vitiated by the defendant entering an appearance though on PROTEST.
2. Whether the alleged disconnection of the plaintiff/respondent’s electricity supply irrespective of plaintiff/respondent’s payment of his bills as alleged by the plaintiff/respondent, which occasioned damages on the plaintiff/respondent is an administrative action or breach of contract, and if a breach of contract has the Federal High Court jurisdiction to entertain the suit?”
Learned counsel for the respondent formulated three (3) issues for determination:
“1. Whether the appellant (the defendant at the lower court) was properly served the processes of court at her branch office through her Branch Manager instead of her Registered office regard had to the provision of the Companies and Allied Matters Act Cap. 59 Laws of the Federation of Nigeria, 1990 and Rules of Federal High Court relating to service on a company.
2. Whether the Federal High Court has jurisdiction to entertain the action regard had to the constitutional provision of her supervisory powers over Federal Government Agencies and the claims of the respondent at the lower court.
3. Whether the disconnection of the respondent’s electricity supply by the appellant when he had paid his bill but for the purpose of enforcing and ensuring payment of bill by two (2) other erring tenants which occasioned damages to the respondent is an administrative action or a contract or tort whether the Federal High Court has jurisdiction to entertain the suit, regard had to the fact that the appellant is a Federal Government Agency and claims are based on Declaration and Damages respectively.”
The issues formulated by the learned counsel to the appellant shall be used in determining this appeal.
On Issue No.1, learned counsel for the appellant submitted that the learned trial Judge erred in law when he held that the service of the writ on the appellant at its branch office was proper/was an irregularity which was vitiated in spite of the fact that the appellant entered an appearance on protest and duly filed a motion challenging the competence of the service and or action. Learned counsel for the appellant relied on the decision of the Supreme Court in Mark vs. Eke (2004) 5 NWLR (Pt. 865) page 54, where it was held that service of originating processes must be at the registered office of a company and that it is bad and ineffective if done at a branch office. Appellant’s counsel admitted that service at a branch office might be an irregularity which might be waived in certain circumstances, particularly by an act or indolence of the defendant. But that, in this case, the appellant entered an appearance on protest and promptly filed a motion challenging the competence of the suit.

These acts, said appellant’s counsel cannot by any stretch of imagination be considered as a waiver that could amount to vitiating or condoning the bad service of the originating processes. Relying on the case of Kraus Thompson Org. Ltd. vs. UNICAL (2004) 9 NWLR (Pt.879) 631 at 656 and the provision of section 78 of the Companies and Allied Matters Act, 1990, appellant’s counsel submitted that a corporate body, in this case, the appellant can only be served with originating processes by giving the writ of summons to any director, trustee, secretary or other Principal Officer of the body or by leaving it at its registered office or head office. It is bad or ineffective to serve this document at any branch office.
Since the service of the originating processes in this case, said counsel, was at the branch office and consequently did not comply with the provisions of the Companies and Allied Matters Act, the said service was improper and consequently deprived the trial court of the competence to entertain the suit.

The respondent on the other hand, contended that the appellant was properly served the writ of summons and statement of claim by serving same at the Aba Branch office of the appellant through her Manager and that such service is proper by section 78 of CAMA Cap. 59 LFN 1990 and also by the provision of Order 13 Rule 8 of the Federal High Court Civil Procedure Rules, 2000. Respondent relies on the averments in paragraphs 3, 4, 5, 6 and 7 of the Appellant’s affidavit in motion for extension of time within which to enter appearance and file Statement of Defence on page 39 of the record. The said averments are as follows:
“3. That I have the consent of the defendant/applicant to depose to this affidavit.
4. That the Chambers of F. O. Okonkwo & Co. are Solicitors to National Electric Power Authority.
5. That I was informed by the defendant and I verily believe her that due to bureaucratic nature of the Defendant’s company, the external solicitors of the Defendant were not contacted on time to enable the said solicitor enter appearance and file a statement of defence on behalf of the defendant.
6. That I was now informed by the said external solicitors to the defendant, F. O. Okonkwo Esq. and I verily believed him that the time limit within which the defendant is authorized by the rules of court to file a memorandum of appearance and statement of defence had expired.
7. That I was informed by the said F.O. Okonkwo and I verily believed him that the defendant needs an enlargement of time in order to file a memorandum of appearance and statement of defence to the plaintiff’s suit.”
The respondent then relied on the cases of Savannah Bank of Nig. Plc. vs. Jatau Kyentu (1998) 2 NWLR (Pt 536) 41 at 54 and FBN Plc. vs. Onukwugha (2005) 16 NWLR (Pt 950) 120 at 150 – 151 to say that service on a Principal Officer or Branch Manager of a Company or Corporation has been held to be proper service. Respondent sought to distinguish the facts and circumstances of the case of Mark vs. Eke (supra) relied upon by the appellant from the present case and submitted that the defendant/appellant in the instant case entered appearance albeit conditional appearance after the matter had been fixed for mention.
On this, the respondent referred first to the case of Duke vs. Akpabuyo (2005) 12 SCNJ 280 at 293 to 294, where the Supreme Court held that from the conduct of the respondent, it waived the irregularity in the service of the writ of summons and secondly to the case of Kirsari Investment Ltd. & Anor. vs. J. A. Terinal Co. Ltd. (2001) 16 NWLR (Pt 739) 381 at 411 – 412, where it was held that a defendant who entered appearance on the strength of an irregular service of an otherwise valid writ of summons constitutes not only a waiver of the irregularity but also a submission to the jurisdiction of the court.
There are two related sub-issues to be determined under Issue No.1. The first is whether the service of the originating processes on the defendant/appellant was proper and the second is whether by its conduct the appellant had waived the irregularity if any, in the mode of service.
It seems to me that the argument of the respondent on the question of proper service seems to be confusing or mistaking the “hood” for the “monk”. This is because, the respondent’s reference to paragraphs 3 – 7 of the appellant’s affidavit in support of the motion for extension of time at best exhibits the fact that the defendant/appellant eventually received court processes or became aware of the plaintiff’s/respondent’s suit against her. Unfortunately, the fact of knowledge of a pending suit or even receipt of processes by some means is not synonymous with proper service.
In the con of this case, the relevant facts or depositions as regards service would be found in paragraphs 1 to 4 of the counter-affidavit of Barrister Dan Uruakpa, Plaintiff/Respondent dated 31st day of May, 2005 in reaction to the motion of the defendant/appellant to strike out the plaintiff’s suit for incompetence and lack of jurisdiction. They are as follows:
“1. That I am the plaintiff/respondent in this motion for striking out.
2. That I know the facts of this case very well.
3. That I filed this action on the 25th day of June, 2004 and served same accordingly on the defendant, through her Branch Office at Ikot Ekpene Road, Aba.
4. That the defendant after service of this action on her, passed the writ of summons, statement of claim and other processes of Court in the matter to her solicitor F. O. Okonkwo Esq. of No. 83 Azikiwe Road, Aba.
Now, the position of the law as pointed out by both counsel is as stated in Section 78 of the Companies and Allied Matters Act Cap. 59, Laws of the Federation of Nigeria, 1990 and also in Order 13 Rule 8 of the Federal High Court Civil Procedure Rules. Section 78 of CAMA LFN 1990 says:
“A court process shall be served on a company in the manner provided by the Rules of Court and any other document may be served on a company by leaving it at, or sending it by post to the registered office or head office of the company.”
Order 13 Rule 8 of the Federal High Court Rules, 2000 reads thus:
“When the suit is against a corporation or company authorized to be sued in its name or in the name of an officer or trustees, the writ or other document may be served, subject to the enactment establishing that Corporation or Company or under which the company is registered, as the case may be, by giving the writ or document to any Director, Secretary, or other Principal Officer or by leaving it at the office of the Corporation or Company.”
Whether the provision of Order 13 Rule 8 of the Federal High Court Rules, 2000, is read in isolation or read together in conjunction with the provision of section 78 of CAMA Cap. 59 LFN 1990, the operative clauses or words in relation to service on a corporation are as follows:
“(a) by giving the writ or document to any Director, Secretary or other Principal Officer;
or
(b) by leaving it at the office of the Corporation or Company.”

In the instant case, paragraph 3 of the plaintiffs/respondent’s counter-affidavit merely says that he “served same accordingly on the defendant through her Branch Office at Ikot Ekpene Road, Aba.” Paragraph 3 of the plaintiffs/respondent’s counter-affidavit is neither evidence of giving to a branch manager nor of leaving in the registered or Head Office of the corporation. The learned trial Judge himself recognized this lapse when he held at page 64 of the record that:
“The plaintiff/respondent in the above affidavit admitted to serve the defendant company court processes at its Branch office along Ikot Ekpene Road, Aba. There is no doubt this is an irregularity. The Supreme Court in Mark vs. Eke (2004) 5 NWLR (Pt.865) 14 held that service on a company must be at the registered office at the company and it is bad and ineffective if it is done at a branch office of the company.”
In these circumstances, the suggestion in the respondent’s brief of argument that service was effected on the Branch Manager of the defendant/appellant is at best an after thought not backed up by affidavit evidence before the lower court.
In Kraus Thompson Organisation Ltd. vs. University of Calabar (2004) 4 SCNJ 121 at 138, (2004) 9 NWLR (Pt.879) 631, the Supreme Court specifically held that it is bad or ineffective to serve processes or documents on a corporate body at any branch office. See also Nigeria Bottling Co. Plc. & Anor. vs. Chief Uzoma Ubani (2009) 3 NWLR (Pt.1129) 512 at 534.
I, therefore, hold in agreement with the learned trial Judge in the instant case that there was no proper service.

The second leg of Issue No. 1 is whether the defendant/appellant by her conduct had waived the irregularity of improper service. In this respect, the respondent has argued that the defendant/appellant having brought a motion for extension of time within which to enter appearance, and file statement of claim, which motion was granted, the defendant/appellant had taken steps in the proceedings and had waived the issue of irregularity in service even when he entered a conditional appearance.
This proposition, coming from the respondent is difficult to accept. The defendant/appellant in this case would not have been able under the Rules of court to enter appearance in her circumstances because she was out of time. The moment she was granted extension of time, she entered conditional appearance (page 41 of the record) and proceeded to move her motion to strike out the suit for incompetence based on improper service. In those circumstances, it would be preposterous to argue that he had participated or actively participated in the proceedings before the court to warrant a waiver of the improper service on her. For this reason, the cases of Duke vs. Akpabuyo (supra) and Kirsari Investment Ltd. & Anor. vs. Terinal Co. Ltd. (supra) relied on by respondent on waiver of irregularity of service are not applicable to the facts and circumstances of this case.

Indeed, a careful perusal of the Ruling at the lower court would reveal that the learned trial Judge did not see that the Notice of Appearance entered by the defendant/appellant on page 41 of the record was in protest. And that explains the reference by the learned trial Judge at page 64 of the record that:
“I found that the defendant/applicant entered unconditional appearance having identified the irregularity of the service of the writ of summons and other court processes.”
Contrary to the above finding by the learned trial Judge, a mistake which would have influenced the decision itself the Notice of Appearance at page 41 of the record is boldly titled “NOTICE OF ENTRY OF APPEARANCE ON PROTEST AFTER LEAVE HAD BEEN GRANTED.”
I think therefore that the learned trial Judge was mistaken and was in error first to have found that the appearance of the defendant/appellant was ‘unconditional’ without any reasons outside of page 41 of the record and also to have for the same reason held that the defendant/appellant had waived his right on the irregularity created by the improper service of the originating processes on her. I hold that the defendant/appellant has not waived her right to proper service by her conduct in this case.

Now, it is trite that service of the writ of summons is a condition precedent to the exercise of jurisdiction by the court. National Bank (Nig.) Ltd. vs. Guthrie (Nig.) Ltd. (1993) 3 NWLR (Pt. 284) 643 and Adeighe & Anor. vs. Salami Kusimo (1965) NMLR p. 284. Failure to effect proper service of the originating process as dictated by the rules of court as in the instant case is fundamental and far reaching as it is a defect that goes to the roots of the trial and thus renders the entire proceedings of the court a nullity.
For these reasons, I do not find it any longer necessary to treat the other issue in this appeal.
The appeal is meritorious and it is allowed. The Ruling of H. T. Saba, J. delivered on 6/4/06 in the Umuahia Judicial Division of the Federal High Court is accordingly set aside. Suit No.FHC/UM/CS/73/2004 is hereby struck out.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A: I have had the privilege of reading in draft the lead Judgment of my learned brother, Owoade, JCA just delivered. I agree with his reasoning and conclusion.
For emphasis and support, I add a few words. The substance of this appeal was that there was no proper service on the Defendant/appellant of the writ of summons. The trial Court made a categorical finding on that at page 64 of the record of proceedings. It states thus:-
“The Plaintiff/Respondent in the above affidavit admitted to serve the defendant company processes at its Branch Office along Ikot Ekpene Road, Aba. There is no doubt that this is an irregularity. The Supreme Court in Mark vs. Eke (2004) 5 NWLR (pt. 865) 54 held that service on a Company must be at the registered office of the Company and it is bad and ineffective if it is done at a branch office of the Company.”
In the instant appeal, it is clear that there was improper service of the writ of summons on the Appellant and the effect of this is stated by the Supreme Court in case of National Bank. (Nig.) Ltd. Vs. Gothrie (Nig.) Ltd: (1993) 3 NWLR (pt.284) 643, it states thus:-
“Service of writ of summons on the opposing party upon the institution of any proceeding other than an application brought exparte is a condition precedent to the exercise of Jurisdiction by the court out of whose registry the writ of Summons was issued. Any failure to effect such service on a defendant is a fundamental defect in the competence of the Court to try the proceedings and it is fatal.
In the appeal at hand, it is beyond dispute that the writ of summons has not been served on the Defendant/Appellant as required by the relevant provisions of the law relating to service on such a defendant, accordingly any proceedings taken on the writ of summons that has not been served on a defendant is fatal.
In fact and in law there is a world of difference between no service at all and defective service. In the instant appeal, there is no service of the writ of summons on the Appellant/Defendant and this is a fundamental defect in the competence of the Court to try the proceedings and it is fatal.
This appeal is therefore meritorious and is allowed. The Ruling of H.T. Soba J. delivered on 6/4/06 in the Umuhia Judicial Division of the Federal High Court is accordingly set aside. I abide by the consequential order made in the lead judgment.

HELEN MORONKEJI OGUNWUMIJU, J.C.A: I have read before now the judgment just delivered by my learned brother MOJEED A. OWOADE JCA. I agree with his reasoning and conclusion that the Appellant was not properly served with the writ of summons in the circumstances of this case. I however do not agree with the consequential order made.

Generally, where process was not effected on the adverse party, it is a fundamental vice which robes the court of its jurisdiction over the party not served. See HABIB BANK v. OPOMULERO (2000) 15 NWLR Pt.690 Pg.315; MOHAMMED MARI KIDA v. A.D. OGUNMOLA (2006) 6 SCNJ 165; KALU MARK v. GABRIEL EKE (2004) 1 SCNJ 245.
The lead judgment has given exhaustive reasons why the service of the writ was not properly effected which amounted to no service at all.
The ruling of the lower court to the effect that there was proper service is hereby set aside. The improper service by the Respondent is also hereby set aside. At this point, I would not go so far as to strike out the case at the lower court. The issuance of a writ of summons or any civil process and the service of it are distinct though inter-related steps in litigation.

Consequently, a writ may be valid while its service may be defective. See DIKE v. AKPABUYO L.G. (2005) 19 NWLR Pt.959 Pg.130 at Pg.150. Thus, where the writ was valid and only the service was defective, the cause of action cannot be rendered void. Only the defective writ is liable to be set aside. In UNION BEVERAGES v. ADAMITE CO. LTD. (1990) 7 NWLR Pt.162 Pt.348 at Pg.357, Uche-Omo JCA (as he then was) after holding that the writ of summons was defectively served on the Appellant, allowed the appeal, and set aside the orders made by the trial judge. This court in that case then remitted the case back to the High Court for proper service of the writ and statement of claim.
This is because irregularity which is fundamental in exercise of jurisdiction is different from total lack of jurisdiction. See MOBIL PRODUCING v. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY (2002) 12 SCNJ 1; EZE v. OKECHKUKWU (2002) 12 SCNJ 258.
It must be remembered that this case is yet at its initial stage. On this issue, we are yet to determine whether there was total lack of jurisdiction.
There were 2 issues for determination before this court. The 2nd issue was whether the Federal High Court was right in its contention that the suit was based on an administrative action by NEPA and in assuming jurisdiction to try same under S.251(1) (p)(q)(r) of the 1999 Constitution. I am of the strong but humble view that when an issue of jurisdiction is raised, it is the duty of the court to consider it at whatever stage in the proceedings. The determination of whether the lower court had intrinsic jurisdiction or not would influence the order to be made. If the court totally lacked jurisdiction by virtue of any enactment, then the case would be struck out for lack of competence to entertain the suit. If it had jurisdiction conferred on it by law but there is irregularity in the exercise of that jurisdiction, then the orders made in the exercise of irregular jurisdiction would be set aside.
As the penultimate court we are obliged to consider and determine all issues placed before us. It is only the Supreme Court that has the luxury of determining an appeal on a sole issue where that issue can determine the rights of the parties.

It is the duty of the intermediate court which the Court of Appeal, is to pronounce on all the issues for determination. Exception to this is when the court has decided to remit the case back to the lower court for rehearing. See DIOKPA FRANCIS ONOCHIE v. FEGUSON ODOGWU (2006) 2 SCNJ 96; EAGLE SUPER PACK NIG. LTD. V. OCEANIC BANK INTERNATIONAL NIG. LTD. (2006) 12 SCNJ 159.
Appellant’s counsel argued that the Respondent’s claim at the lower court is based on alleged breach of contract, that is, the disconnection of electricity supply to his premises when he was not indebted to the Appellant. The Appellant is a corporation whose main duty is the supply of electricity. In carrying out its functions it enters into contracts with various persons for the supply of electricity upon payment of consideration (money). It was in the course of this function (contract of supply) that the Respondent alleged that the Appellant disconnected electricity supply to the Plaintiffs premises.
Counsel for the Appellant also argued that the suit is predicated on a contract of service and therefore the lower court had no jurisdiction. He cited INTEGRATED TIMBER & PLYWOOD PRODUCTS v. UNION BANK (2006) 26 NSC QR Pt.11 Pg.734 at 752.
The Respondent’s counsel contends that since the claim is based on declaratory action and damages the Federal High Court has jurisdiction to entertain it by virtue of Section 251(1) (r) and (s) respectively. Simply put, section 251 (r) provides for any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by Federal Government or any of its Agencies. He cited NEPA v. EDEGBERO (2003) 18 NWLR Pt.798 Pg.79.
At the lower court the Respondent’s claim is as follows:
(a) A declaration that the disconnection of the electricity supply to the Plaintiff’s premises at No. 64 Hospital Road, Aba, Abia State, on Thursday the 25th day of March, 2004 when the Plaintiff did not owe the defendant any electricity bill on his account No.56/13/07/065797-01, Metre No. 840007889 based on the indebtedness of the defendant’s other two customers at No.64 Hospital Road, Aba namely, Ekenna R. with Account No. 56/13/07/0059 and Onuagha S. C. Account No. 56/13/07/0068 is wrongful, illegal, null, void and of no effect.
(b) Five million, Three hundred and Three Thousand, Three hundred Naira (N5,303,300.00) being special, exemplary and/or aggravated damages against the defendant for wrongful and illegal disconnection of Plaintiff’s electricity supply at No.64 Hospital Road, Aba from 25th March, 2004 to 5th May, 2004 on grounds, that other two tenants of the building were indebted to her when it was obvious that the plaintiff was not indebted to the defendant.
Clearly this is a case against an agency of the Federal Government NEPA was such an agency when the cause of action arose in March, 2004.
Section 251(1) of the 1999 Constitution provides as follows:
(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters
(p) The administration or the management and control of the Federal Government or any of its agencies.
(q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution is so far as it affects the Federal Government or any of its agencies.
(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies and
(s) Such other jurisdiction civil or criminal and whether to the exclusion of any other court or not as may be conferred upon it by an Act of the National Assembly:
Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.
In NEPA v. EDEGBERO (2002) 18 NWLR Pt.798 Pg.95 and 97 respectively Ogundare JSC held as follows:-
A careful reading of paragraphs (q), (r), and (s) reveals that the intention of the lawmakers was to take away from the jurisdiction of the State High Court and confer same exclusively on the Federal High Court actions in which the Federal Government or any of its agencies is a party.
While paragraph (s) talked of actions for declaration or injunction, the proviso extended this to actions for damages, injunction or specific performance. It did not say as the learned trial Judge, with profound respect, appear to read into it that action for damages, injunction or specific performance against the Federal Government or any of its agencies could still come before a State High Court. I am of the view that the learned trial Judge was in error in his interpretation of the purport of the proviso………………………..
From what I have said earlier in this judgment the aim of paragraphs (q), (r) and (s) of subsection (1) of section 230 (the same as S.251 (1) 1999 Constitution) was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agents was a party. A State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action.(underlining mine)
Uwais CJN, also concurred to the effect that the proviso does not whittle down the exclusive jurisdiction of the Federal High Court. In that judgment, Ogundare JSC who wrote the lead judgment held that no matter the claim, in so far as an agent of the Federal Government is made a party, then the Federal High Court had jurisdiction. Even though Niki Tobi JSC agreed with the conclusion, his Lordship did not agree that the claim is irrelevant to our consideration of the venue of the trial. He was of the view that both the parties and subject matter of litigation is relevant in our determination of the issue of who has jurisdiction. His Lordship however, agreed that the proviso rather expands rather than delimits the jurisdiction of the Federal High Court.
Niki Tobi JSC on page 100 of the same report held that-
In my view, for the Federal High Court to have exclusive jurisdiction, the matter must be a civil matter arising from the administration, management and control of the Federal Government or any of its agencies. The matter must arise from the operation and interpretation of the Constitution. And finally, the matter must arise from any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative actions or decisions by the Federal Government, or any of its agencies.
At page 101, my Lord Niki Tobi JSC defined administration and management as follows:
Administration is a large term in business and commerce. So too management. Etymologically, the words are synonymous in our con. Administration is the management or direction of the affairs and Business Management is the art or practice of managing especially a business. Both words have business as a common denominator.”
Niki Tobi JSC went on to state categorically that a contract of employment falls within the administrative and executive powers of the Federal Government Agency.
In recent times ONUORA v. KRPC LTD. (2005) 6 NWLR Pt.921 Pg.393 has been cited as authority for that view that the Federal High Court has no jurisdiction to try cases of simple contract involving the Federal Government or any of its agencies. The Supreme Court in my humble view seemed to have departed from the position in NEPA v. EDEGBERO (supra). Akintan JSC at page 404 held that the jurisdiction of the court is determined by the Plaintiff’s claim as endorsed on the writ and contained in the statement of claim. His Lordship held that the proviso to S.251 (1), (q), (r) and (s) is that Nothing in the provisions of paragraphs (q), (r) and (s) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity. He then held that any action founded on breach of simple contract would fall under the jurisdiction of the State High Court. His Lordship held that S.230(1) (now S.251 (1) of the 1999 Constitution) provides a limitation to the general and all embracing jurisdiction of the State High Court because the items listed under S.230(1) now S.251 (1) can only be determined exclusively by the Federal High Court. All other items not in the list would therefore still be within the jurisdiction of the State High Court. Akintan JSC took a directly opposite position from the position of the Supreme Court on the interpretation to be placed on the proviso to S.251 (1). See His Lordship opinion on page 404 ’97 405 paragraphs H-B.
A close examination of the additional jurisdiction conferred on the Federal High Court in the section and by the 1979 Constitution clearly shows that the court was not conferred with jurisdiction to entertain claims founded on contract as in the instant case…
…The question whether the Respondent is subsidiary or agent of the NNPC or not has no role when a consideration of the jurisdiction of the court is being made. This is because as already stated above, the determining factor the court, which in this case, is one founded on breach of contract.
Both Akintan JSC at page 405 paragraphs E-F and Niki Tobi JSC on page 407 held that the question of whether the Respondent is an agent of the Federal Government or not was not the primary consideration but the jurisdiction donated to the court by the claim of the Appellant. Both learned Justices held that in cases of simple contract the Federal High Court had no jurisdiction. In spite of the fact that there was a finding that neither of the parties was a Federal Government agency in ONUORAH v. KRPC (SUPRA), the Supreme Court unequivocally stated that the jurisdiction of the court where a Federal Government agency is involved would be determined by the claim of the Plaintiff. Onuorah has narrowed down the scope of Edegbero without a doubt.

I agree with the learned trial judge that this is not a case of simple contract like a purchase contract. NEPA was an agent of the Federal Government under S.251 (1) (p) of the Constitution responsible for generation, distribution and marketing of electricity in Nigeria. It took the decision to cut off the Respondent’s electricity in the course of distribution and marketing of electricity in Nigeria. That was the nature of the Respondent’s claim. The claim is seeking for a declaratory order nullifying the administrative decision taken by NEPA an agent of the Federal Government disconnecting the electricity supply to the Respondent based on the indebtedness of the Respondent’s tenants. It was also for damages for the discomfort, inconvenience and money incurred by the Respondent as a result of this administrative decision. If found liable the Federal Government will pay the damages.
Given the definition of management and administration given by Niki Tobi JSC in NEPA v. EDEGBERO (supra) can we say the cause of action in this case was in the course of executing a management or administration policy by the Appellant? I would answer the question in the affirmative. We have at this stage to consider the statement of claim alone.
The decision to disconnect and refuse to reconnect the electricity supply to the Respondent after the Appellant purportedly found that he was not owing any money, and the decision purportedly asking him to pay the electricity bill of his co-tenants before reconnecting him was a management decision or a business decision on the part of the Appellant. This case must be distinguished from ONUORAH v. KRPC (supra) which was a simple contract for the supply of certain goods and neither of the parties was found to be an agency of the Federal Government at the lower court. The decision at hand involves the question of the validity of certain policy decisions taken by the management of NEPA in respect of their business of supply and distribution of electricity.
In the circumstances, I hold the view and agree with the learned trial judge that the Federal High Court has jurisdiction in this matter. The service of the writ of summons is hereby set aside. The ruling of the trial court on the issue of proper service is hereby set aside. The case is remitted back to the trial court for trial before another Judge for determination on the merit after proper service of the writ of summons and statement of claim. Appeal succeeds in part. No order as to costs.

Appearances

F. O. Okonkwo Esq.For Appellant

AND

M. N. Eleri Esq.
holding brief for D. O. Urokpa Esq.For Respondent