NERC & ORS v. TEBITE & ORS
(2022)LCN/17200(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Thursday, March 17, 2022
CA/AS/143/2018
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
1. NATIONAL ELECTRICITY REGULATORY COMMISSION 2. BENIN ELECTRICITY DISTRIBUTION COMPANY (BEDC) 3. MR. ERNEST EDGAR APPELANT(S)
And
1. HON. TALEB AVWEROSUO OKPAKO TEBITE (Doing Business In The Name And Style Of Teris Table Water) 2. HON. DANIEL MAYUKU 3. BELL WOOD HOTELS LIMITED 4. HON. TUOYO OMATSULI (Doing Business In The Name And Style Of De Park Apartments) 5. HON. CHIEF ROSS UREDI 6. MISS AMAKA NWABUE 7. MRS EGUONO TEBITE ESE (Doing Business In The Name And Style Of Tickles Kiddies Shop) RESPONDENT(S)
RATIO
WHETHER OR NOT THE WRIT OF SUMMONS AND STATEMENT OF CLAIM DETERMINES THE JURISDICTION OF A COURT
It is a settled principle of law that to determine the jurisdiction of a Court to entertain a matter, it is pertinent to examine the writ of summons and the statement of claim only. The Apex Court in NPA v AMINU IBRAHIM & ANOR (2018) LPELR–44464 (SC) per PETER–ODILI, JSC reiterated this principle thus:
“It is to be restated at the risk of unlimited repetition that when the jurisdiction of a Court is called to question, the guide is a close look at the plaintiffs claim which is the originating process inclusive of the totality of all that constitute that claim.”(Emphasis Mine)
Further see the cases of ISAH v INEC (2016) 18 NWLR (PT. 1544) 175; EGBUONU v BRTC (1997) 12 NWLR (PT. 531) 29; ECOBANK v ANCHORAGE LEISURE LTD & ORS (2018) LPELR–45125 (SC).
Jurisdiction is determined from the writ of summons, it is therefore imperative that we examine the Respondents’ statement of claim and I now add the reliefs, see paragraph 36 of the statement of claim. PER OBASEKI-ADEJUMO, J.C.A.
THE EXCLUSIVE JURISDICTION OF THE FEDERAL HIGH COURT
The Federal High Court has exclusive jurisdiction over matters as provided under Section 251 (1) a-t of the 1999 Constitution (as amended) thus:
251. (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 in 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. PER OBASEKI-ADEJUMO, J.C.A
THE POSITION OF LAW ON THE REGULATION OF THE ELECTRICITY DISTRIBUTION COMPANIES IN NIGERIA
Electricity distribution companies in Nigeria are regulated by the NERC (Nigerian Electricity Regulatory Commission).
Section 32 of the Electric Power Sector Reform Act provides that:
(1) Subject to this Act, the Commission shall have the following principal objects:
(a) to create, promote, and preserve efficient industry and market structures, and to ensure the optimal utilisation of resources for the provision of electricity services;
(b) to maximise access to electricity services, by promoting and facilitating consumer connections to distribution systems in both rural and urban areas;
(c) to ensure that an adequate supply of electricity is available to consumers;
(d) to ensure that the prices charged by licensees are fair to consumers and are sufficient to allow the licensees to finance their activities and to allow for reasonable earnings for efficient operation;
(e) to ensure the safety, security, reliability, and quality of service in the production and delivery of electricity to consumers;
(f) to ensure that regulation is fair and balanced for licensees, consumers, investors, and other stakeholders; and
(g) to present quarterly reports to the President and National Assembly on its activities.
(2) For the furtherance of the objects referred to in subsection (1)of this section, the Commission shall perform the following functions:
(a) promote competition and private sector participation, when and where feasible;
(b) establish or, as the case may be, approve appropriate operating codes and safety, security, reliability, and quality standards ;
(c) establish appropriate consumer rights and obligations regarding the provision and use of electricity services;
(d) license and regulate persons engaged in the generation, transmission, system operation, distribution, and trading of electricity ;
(e) approve amendments to the market rules;
(f) monitor the operation of the electricity market; and
(g) undertake such other activities which are necessary or convenient for the better carrying out of or giving effect to the objects of the Commission.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court, coram HON. JUSTICE ADEGOKE delivered on 5th March, 2018, wherein the lower Court overruled the Appellants’ preliminary objection challenging the jurisdiction of the Federal High Court to entertain the claim over transactions outside Section 251 (1) of the 1999 Constitution (as amended) at the end of which the lower Court renewed orders mandating the Appellants to maintain status quo until the determination of the suit without affording Appellants the opportunity to be heard.
The background fact is that; the 1st–7th Respondents are customers of the 2nd Appellant, the distributor of electricity within the core area of Asaba.
The 3rd Appellant (who is a servant of the 2nd Appellant) disconnected electricity supply from 2nd Appellant’s substation to all the Respondents. The Respondents were later reconnected to allow for some form of settlement, which meeting held on 3rd November, 2017. The Respondents’ claim is that the 2nd Appellant issued outrageous and unjustifiable electricity bill of over N2,500,000 to the Respondents and on the same date, 3rd Appellant invaded the premises of the Respondents with a view to compelling the Respondents to pay the bill and threatened disconnection.
The Respondents at the lower Court claimed the following reliefs;
1. A DECLARATION that the outrageous and unjustifiable electricity bill of over N2,500,000.00 (Two Million, Five Hundred Naira) issued by the Defendants vide the Defendants letters dated November 30th, 2017 for the Claimants to pay in addition to the monthly electricity bills which the Claimants have been paying regularly to the Defendants is unlawful, illegal and amounts to extortion of money from the Claimants by the Defendants by way of double billing on the part of the Defendants.
2. A DECLARATION that the Defendants’ act of arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection is unconstitutional, unlawful and constitutes a wanton violation of the Claimant’s contractual right to quiet and peaceable enjoyment of electricity power supply by the Defendants to the Claimants.
3. A DECLARATION that the claimants have respectively suffered untold business setbacks, loss of clientele and monumental loss of earnings as a result of the Defendants’ act of unlawful, arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection and thereby deprived the Claimants of their contractual right to quiet and peaceable employment of electricity power supply by the Defendants to the Claimants.
4. THE MODEST SUM OF N500,000 (Five Hundred Million Naira only) being general damages for the untold business setbacks, loss of clientele and monumental loss of earnings suffered by the Claimants as a result of the Defendants’ act of unlawful, arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection and thereby deprived the Claimants of their contractual right to quiet and peaceable employment of electricity power supply by the Defendants to the Claimants.
5. 21% monthly arrears on the said sum of N500,000.00 (Five Hundred Million Naira only) from Monday 23rd October, 2017 when Defendant arbitrarily and indiscriminately disconnected the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection until the date judgment is delivered in this case.
6. 10% monthly interest on the said sum of N500,000.00 (Five Hundred Million Naira only) from the date judgment is delivered in this case until the judgment debt and other incidental costs are fully paid by the Defendants as provided for either by the Rules of this Honourable Court or the judgment of the Court.
7. PERPETUAL INJUNCTION restraining the Defendants either by themselves, their agents, servants, staff, workers, privies, surrogates or any other person(s) from disconnecting the Claimants from the 200VA. 33/0.415KV Substation or any other substation or otherwise tinkering or tampering with the 200VA, 33/0.415KV Substation except for the purpose of repairs and maintenance to ensure constant electricity power supply by the Defendants to the Claimants.
The Respondents by a Motion ex parte dated 5th December, 2017 and filed 6th December, 2017, an order of Interim injunction restraining the Appellants or any of their agents from disconnecting the Respondents from the 200VA, 33/0.415kv substation or tampering with same pending the hearing and determination of the Motion on Notice for interlocutory Injunction. The said motion ex parte was moved and granted on 8th December, 2017.
The 2nd & 3rd Appellants upon being served filed a Motion on Notice praying the lower Court for; (a) an order striking out the suit for lack of jurisdiction; b) an order vacating/discharging the interim orders granted in favour of the Respondents on 8th December, 2017 or in the alternative, varying the said interim order.
The Respondents opposed the said motion on Notice and filed an eleven– paragraphs counter affidavit. The lower Court after hearing the parties, overruled prayer 1 of the Appellants and granted prayer 2. It further ordered that the parties however;
1. maintain the status quo existing prior to the institution of the case, which is that the Defendants shall not disconnect the electricity power to the Claimants’ transformer at Teris Table Water Factory, plots 151, phase 1, Block 11, Core Area, G.R.A. Okpanam road, Asaba, Delta State pending the final determination of this suit;
2. The Defendants are hereby ordered to file their statement of defence not later than seven (7) working days from the date of this ruling.
3. This matter shall be given accelerated hearing.”
Dissatisfied, the Appellants filed a Notice of appeal on 6th March, 2018 containing three grounds of appeal.
Sequel to the rules of this Court, the parties filed and exchanged their brief of arguments.
The Appellants’ brief was filed 4th June, 2020 but deemed properly filed on 22nd June, 2020 and their reply brief was filed 8th March, 2021 both were settled by C. A. Ajuyah, SAN FCIArb, C. O. Ugwor, Esq., A. E. Kode (Mrs), Betty Otoboh (Miss) and A. C. Ojukonsin, Esq., of THOMPSON OKPOKO & PARTNERS, ADANE CHAMBERS. The following issues were distilled by Counsel to the Appellants:
1. Whether by the claim of the Respondents, the Federal High Court has jurisdiction to entertain the suit?
2. Whether the learned trial Judge was right in making the order that the status quo be maintained pending the determination of the suit when?
The Respondents on the other hand filed their brief of argument on the 22nd October, 2020 and it was prepared by Chief E. L. Akpofure, SAN, FCIArb and John Okoriko, Esq., of JOHN OKORIKO & CO wherein the following issues were distilled for determination:
1. Whether from the totality of the averments as contained in the Statement of Claim, the Federal High Court has the jurisdiction to entertain the suit.
2. Whether the learned Trial Judge was right in making the Order that the status quo be maintained pending the determination of the suit.
The Respondents incorporated a preliminary objection in their brief of argument.
It is a principle of law that the essence and effect of a preliminary objection is to lead quickly to the termination or dismissal of a matter in limine, to avoid the dissipation of energy and also waste of valuable time on matters which are not worthy of the Court’s resources, thus it is taken before delving into the appeal. See; NWOSU v PDP & ORS (2018) LPELR–44386 (SC); EZEWUNWA & ORS v IHEAGWAM (2015) LPELR–25624 (CA).
Therefore, I shall consider the preliminary objection first.
PRELIMINARY OBJECTION
The Respondents object to the appeal on the ground that the two (2) issues formulated by the Appellants for determination are not referable or tied to any of the three (3) grounds of appeal-
Whether the entire argument canvassed by the Appellants in their Brief of Argument is irrelevant and ought to be discountenanced by this Honourable Court; having regard to the fact that the two (2) issues formulated by the Appellants for determination are not referable or tied to any of the three (3) grounds of appeal.
Respondents submitted that it is trite law that a ground of appeal from which no issue is formulated by an Appellant for the determination of the Court is deemed abandoned. Counsel further submitted that the issues formulated for determination by the Appellants in their Brief of Arguments are not related to any ground of appeal; therefore, they are irrelevant and ought to be discountenanced. The case of OLAWEPO v SECURITIES AND EXCHANGE COMMISSION (2011) LPELR – 27654 (CA) was cited in aid
The case of DR. UMAR ARDO v ADMIRAL MURTALA NYANKO (2013) LPELR–20659 (CA) RATIO 5 was cited to submit that there is no competent appeal for this honourable Court to determine.
The Appellants in response to the preliminary objection, countered that the two issues raised by the Appellants in their brief of argument are tied to the grounds of appeal contained in the Notice of Appeal filed 6th March, 2018.
Counsel further countered that issue one is distilled from grounds 1 & 2 and the Appellants are entitled to distill one issue from one or more grounds of appeal as in the cases of A.I.B LTD v I.D.S LTD (2012) 17 NWLR (PT. 1328) 1 AT PAGES 27–28, PARAS H–A and OKEKE v NNOLIM (2015) 5 NWLR (PT. 1453) 444 AT 464 PARAS. A–C.
In addition, Counsel contended that issue two was distilled from ground 3 of the appeal. He further contended that having established the nexus between the issues for determination as contained in the Appellants’ brief and the grounds of appeal contained in the Notice of Appeal, therefore, the appeal is competent; OKOLO v UBN LTD (1998) 2 NWLR (PT. 539) 618 AT 640 PARA B.
In conclusion, the Appellants argued that failure to specifically state the relevant grounds against each issue raised does not render a valid issue incompetent.
RESOLUTION OF PRELIMINARY OBJECTION
I have taken a cursory look at the Notice of appeal filed on 6th March, 2018 at 437 – 438 of the record. The appeal was filed on the following grounds:
1. The learned trial Judge erred in law in holding that Section 251 sub (1) (p), (q) and (r) of the 1999 Constitution conferred on the Federal High Court jurisdiction to hear and determine Plaintiffs’ case when…
2. The learned trial Judge erred in law when she held that the approval granted 1st Plaintiff/Respondent by the defendants to install 33 (thirty-three) KVA transformer for its water works and the subsequent disconnection constitutes matters affecting the validity of executive or administrative actions or decision of the Federal Government or its Agency in that…
3. The learned trial Judge erred in law in ordering that the status quo be maintained in her ruling on defendants” application when …
See pages 437–439 of the Record.
From the above and the earlier reproduced Appellants issues for determination, it can clearly be seen that issue 1 was formulated from grounds 1 & 2 and issue 3 was formulated from ground 3 of the appeal.
Although the Appellant failed to indicate in his brief the grounds from issue(s) was formulated, this does not in any way make the issues incompetent, however, it is preferable and advisable to do so. See ALIMI AKANBI DADA v CHIEF JONATHAN DOSUNMU (2006) LPELR–909 (SC)
MOHAMMED & ANOR v DANLADI & ORS (2019) 49138 (CA).
The issues formulated by the Appellants arise from the grounds of appeal. Therefore, the preliminary objection is frivolous and devoid of any merit and is accordingly dismissed.
APPELLANTS SUBMISSIONS
Appellants’ counsel opined in issue 1 that the lower Court wrongly applied the decision of the apex Court in OBIUWEUBI v CBN (2011) 7 NWLR PT 1247 465 and submitted that the case was correctly decided by the Supreme Court on its own facts wherein the Appellant sued Central Bank of Nigeria, a Federal Government Agency as Respondent for unlawful termination of employment.
He further submitted that in this instant case, the 2nd & 3rd Appellants against whom this case is targeted are not Federal Government Agencies. 2nd Appellant is a private company with whom the Respondents had a contract in distribution of power and 3rd Appellant is an individual and servant of the 2nd Appellant.
In addition, Counsel submitted that from paragraphs 9–11 of the Respondents’ statement of claim, there were no indication that the 2nd & 3rd Appellants were Agencies of the Federal government and from paragraphs 12 to 35, the Respondents did not allude to any fact that the 1st Appellant was involved in the disconnection or issuance of any bill complained about in the suit.
The case of DARU & ORS v UMAR (2013) LPELR–21905 (CA) was cited to submit that the writ and statement of claim is to be examined in determining the issue of jurisdiction and the case of ADEGOKE MOTORS v ADESANYA (1989) 3 (PART 109) 265–266 PARAGRAPHS H–A was cited to opine that application of pronouncement made by Justices of the Supreme Court is unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made was wrong.
Counsel argued that the claim in this suit has its foundation purely on the law of obligations in its contractual and tortuous breaches with no footing in the provisions of Section 251 (1) of the 1999 Constitution (as amended). He opined that the trial Judge was wrong to have considered Section 32 of the Electric Power Reform Act (EPSRA) 2004 because it was not the subject matter of the claim.
Counsel further opined that the presence of the 1st Appellant as a party does not ipso facto confer jurisdiction on the Federal High Court to entertain the suit. He relied on the cases of OMOTESHO & ORS v ABDULLAHI 2007 LPELR–8412; ONUORAH v KRPC LTD (2005) 6 NWLR (PT. 921) 393; OIL & GAS EXPORT FREE ZONE AUTHORITY v OSANAKPO (2019) 6 NWLR (PT. 1668) 224; WEMA SECURITIES & FINANCE PLC v NIGERIA AGRICULTURAL INSURANCE CORPORATION (2015) LPELR 24833; PENAWOU v ZENITH BANK & ORS (2017) LPELR 42732 in aid of the submission.
On issue 2, Counsel adopting his submissions in issue 1 further submitted that where a Court lacks jurisdiction to entertain a claim, it lacks the power to make any binding order including the order that parties maintain status quo until the determination of the suit. He cited the cases TSOKWA MOTORS LTD v UBA PLC (2008) 1 SC (PT 1); ADIGUN v A.G. OYO STATE (1987) 3 SC; OKAFOR v A. G ANAMBRA STATE (1991) 7 SC (PT 1) 38; LEADERS & CO LTD v BAMAIYI (2010) 12 SC (PT IV) 55; OMINIYI v ALABI (2015) 2 SC (PT 11) 92 AT 100
It was further submitted that none of the parties prayed for an order that status quo be maintained pending the determination He stated that the Court and parties are bound by the prayer in the motion paper that was set down for hearing, COMMISSIONER FOR WORK BENUE v DEVCOM (1988) 3 NWLR (PT. 83) 407 was cited.
Counsel contended that the lower Court’s order to renewing status quo was wrong and perverse because it amounted to the lower Court compensating an indolent party who took no step to extend the life span of the interim order which lapsed on 1st January, 2018, it was not an order sought by the Appellants and it was one of the reliefs sought by the Respondents in their motion for interlocutory injunction.
He further contended that the parties were yet to be heard by the learned trial Judge on the motion for interlocutory injunction; the lower Court consequently violated the right of the Appellants to fair hearing making the decision a nullity. He cited; UDOGU v EGWUATU (1994) 3 NWLR (PT. 330) 120; MFA & ANOR v INONGHA (2005) 7 NWLR (PT. 923) 1; Section 36 (6) of the 1999 Constitution (as amended).
In conclusion, Counsel urged this Court to allow the appeal.
RESPONDENTS’ SUBMISSIONS
In Issue 1, the Respondents opined that the question of whether or not the lower Court has the jurisdiction to entertain the suit with regard to the principles stated in the cases cited by the Appellants do not represent the true position of the law.
Citing Section 251 (p), (q) & (r) of the 1999 constitution (as amended), Counsel submitted that the 1st Appellant, National Electricity Regulatory Commission is an agency of the Federal Government of Nigeria.
The cases of INEGBEDION v SELO–OJEMEN (2013) 8 NWLR (PT. 1356) SC PAGE 211 AT PG 226, PARAS. F–G; 227, PARAS C–D, RATIO 1; NEPA v EDEGBERO (2002) 18 NWLR (PT. 798) 79; ABIA STATE INDEPENDENT ELECTORAL COMMISSION (ABIEC) v KANU (2013) 13 NWLR (PT. 1379) SC PAGE 69 AT PAGE 83, PARAS D–H; RATIO 2 were relied to further submit that the Federal High Court has exclusive jurisdiction in all civil causes and matters in which the Federal Government or any of its agencies is a party.
Counsel argued that a Court on jurisdiction must consider the totality of the contents of the entire statement of claim. He further argued that from the entire statement of claim and the reliefs sought by the Respondents clearly shows that the acts complained about by the Respondents were jointly done by the Appellants, while the reliefs (particularly Reliefs 1, 3, 4 & 5) sought are against all the Appellants. ADEOGUN v DR. ADETUNJI OLUKAYODE AKINYEMI (2013) LPELR–20659 (CA); OBIUWEUBI v CBN (2011) 7 NWLR (PT. 1247) S.C PAGE 465.were cited.
It is the contention of the Respondents that the lower Court’s reference to Section 23 of the Electric Power Sector Reform Act, 2004 was not out of context because the gravamen of this case border on the administrative and management of the Appellants geared towards achieving the objectives and functions of the 1st Appellant. AJANAKU v WILLIAMS (2009) 3 NWLR (1129) 617 was cited to submit that the lower Court was at liberty to apply any relevant law in dispensing justice and fairness according to law.
Counsel urged this Court to discountenance the legion of authorities cited by the Appellants for being inapplicable and resolve this issue in favour of the Appellants.
On issue 2, Counsel contended that the Respondents did not misrepresent facts in the affidavit in support of the Motion Ex Parte for Interim Injunction because the enabling law governing and guiding the 1st Appellant enjoins the Appellants (particularly the 1st Appellant) to give seven (7) days Statutory Notice of Disconnection to a customer.
Counsel further contended that the Respondents showed to the lower Court vide paragraphs 37, 38, 39, 40, 41, 43 and 44 of the affidavit in support of the Motion Ex parte for interim Injunction that there was real urgency necessary for the grant of the said application. He stated that the lower Court was therefore right to have preserved the res and making the order that the status quo be maintained pending the determination of the suit. Relying on the case of AJANAKU v WILLIAMS (2009) 3 NWLR (PT. 1129) 6217.
In conclusion, Counsel urged this Court to dismiss the appeal for lacking in merit and affirm the ruling of the lower Court.
APPELLANTS’ REPLY
In response, the Appellants referred to the case of ABIA STATE INDEPENDENT ELECTORAL COMMISSION v KANU (SUPRA) ROE LTD v UNIVERSITY OF NIGERIA (2018) ALL FWLR (PT. 938) 1924; C.B.N v RAHAMANIYYA GR LTD (2020) 8 NWLR (PT 1726) 314 to submit that the mere inclusion of the 1st Appellant where the claim is founded on alleged disconnection or threatened disconnection of electricity by 2nd and 3rd Appellants is a claim outside the Federal High Court jurisdiction, and that the claim before the lower Court had nothing to do with the administration or management and control of the Federal Government agency.
Appellants contended finally that the regulation of electricity does not fall within the exclusive list of the 1999 Constitution or within Section 251 of the said constitution but within the Concurrent Legislative List – Part II of the Second Schedule and a matter for the State High Court.
After the close of arguments and judgment reserved, Appellants sent two additional authorities in support of their submissions; MOHAMMED v ABDULKADIR (2008) 4 NWLR (PT 1076) 111 @ 141 CA and OFORKIRE v MADUIKE (2003) 5 NWLR (PT 812) 166 (SC) on the point that Respondents did not comply with Order 10 of the Court of Appeal Rules, 2021 by filing Notice in form 11 and the legal effect of non-compliance.
RESOLUTION
The issues formulated by the parties are similar on all fours. I would resolve the two issues together.
The gravamen of this appeal is “whether or not the lower Court – Federal High Court lacks the requisite jurisdiction to adjudicate on the matter”.
Jurisdiction is the life wire of a suit and where a Court does not have jurisdiction to entertain a suit before it, the proceeding however well conducted will be a nullity. See the cases of OLOBA v AKEREJA (1988) 3 NWLR (PT 84) 508 AT 520; FEDERAL AIRPORTS AUTHORITY OF NIGERIA v OGBONNA ANI (2010) LPELR–4147 (CA).
It is a settled principle of law that to determine the jurisdiction of a Court to entertain a matter, it is pertinent to examine the writ of summons and the statement of claim only. The Apex Court in NPA v AMINU IBRAHIM & ANOR (2018) LPELR–44464 (SC) per PETER–ODILI, JSC reiterated this principle thus:
“It is to be restated at the risk of unlimited repetition that when the jurisdiction of a Court is called to question, the guide is a close look at the plaintiffs claim which is the originating process inclusive of the totality of all that constitute that claim.”(Emphasis Mine)
Further see the cases of ISAH v INEC (2016) 18 NWLR (PT. 1544) 175; EGBUONU v BRTC (1997) 12 NWLR (PT. 531) 29; ECOBANK v ANCHORAGE LEISURE LTD & ORS (2018) LPELR–45125 (SC).
Jurisdiction is determined from the writ of summons, it is therefore imperative that we examine the Respondents’ statement of claim and I now add the reliefs, see paragraph 36 of the statement of claim. I shall reproduce the necessary paragraphs hereunder:
9. The 1st Defendant is the Commission or body responsible for the supply and regulation of electricity power supply to consumers in Nigeria. The 1st Defendant has its corporate headquarters located at Adamawa plaza, plot 1099, first Avenue, off Shehu Shagari way, central business District, F.C.T.- Abuja, a place outside the territorial jurisdiction of this Honourable Court.
13. By a letter dated 12th September, 2013, the 1st Claimant applied to the then Power Holding Company of Nigeria Plc (PHCN), through his contractor, ENZBLOCK Global Resources Ltd seeking the permission of PHCN for the 1st Claimant to procure and install a 200VA, 33/0.415kv Substation for Teris Table Water situate at Okpanam Road, Asaba, Delta state. The said application was approved by PHCN, whereupon the said 200VA, 33/0.415 KV Substation was installed for Teris Table Water. A copy of the letter dated 12th September, 2013, by which the 1st Claimant applied to the then Power Holding Company of Nigeria Plc (PHCN), through his contractor, ENZBLOCK Global Resources Ltd seeking the permission of PHCN for the 1st Claimant to procure and install a 200VA 33/0.415KV Substation for Teris Table Water is hereby pleaded as the Claimants shall rely on it in proof of their case at the hearing of this suit.
14. Upon the installation of the substation, it was later discovered by Power Holding Company of Nigeria (PHCN) that the electricity power being generated from the substation was dangerously too much for the personal consumption of Teris Table water Factory alone. Thus, in order to share and distribute the excessive power energy being generated from the substation, PHCN approved and authorized the sharing of the power energy to the 2nd–7th Claimants who live within the vicinity of the 1st Claimant’s substation.
16. In furthermore of the approval and authorization given by PHCN to the Claimants as customers and consumers of electricity power, PHCN also supplied and installed Electricity Meters in the premises of the Claimants for the purposes of assessing the bills consumed by the Claimants to enable them pay such bills to PHCN. At the end of every month, PHCN would come and take the meter’s readings, assess them and forward the monthly bills of the electricity consumed by the Claimants to them to the enable them pay. In keeping with their contractual obligation towards PHCN, the Claimants have been regularly paying their electricity bills consumed by them to PHCN.
17. This has been the cordial relationship existing when the Claimants and PHCN until the 2nd Defendant recently took over the going – concern of PHCN, including but not limited to, the patronage of the Claimants with the consent and authorization of the 1st Defendant.
18. All the Claimants connected to the said sub–station are prime customers of PHCN duly inherited and taken over by the Defendants with their separate and respective Electricity Meters. Also, the Claimants have been religiously paying their electricity bills up to date. Photocopies of the last electricity bills evidencing the payment of the Electricity bills consumed by the Claimants are hereby pleaded as the Claimants shall rely on them in proof of their case at the hearing of this suit
19. Surprisingly, on Monday, 23rd October, 2017 or thereabout, the 1st Claimant and his workers were in the Teris Table Water Factory when the 3rd Defendant – Mr Ernest Edgar suddenly and unlawfully invaded the premises of Teris Table Water Factory and disconnected the electricity supply from the said sub–station of all the Claimants.
20. The Defendants do not have the legal right to disconnect a customer who has paid his electricity bills up–to–date. Even if a customer has to be disconnected at all, before the Defendants can disconnect such a prime customer, like the Claimants, the law enjoins the Defendants to give seven (7) days’ statutory Notice of Disconnection to such a customer before carrying out said disconnection. The law also enjoins the Defendants to state, in clear terms, the reason(s) for the disconnection in the Notice of Disconnection.
21. In the instant case, the Defendants did not serve the Claimants with any Notice of Disconnection as required by law to that effect. The Defendants did not give any reason for the sudden disconnection of electricity supply to the premises of the Claimants.
22. The Defendants cannot claim that the connection of the Claimants to the said sub–section is an illegal connection to justify their action. If it were to be an illegal connection, the Defendants could not have installed Electricity Meters in the premises of all the Claimants for the purpose of assessing the quantum of electricity consumed by the Claimants; regularly issuing monthly electricity bills to Claimants and constantly collecting electricity bills from the Claimants.
34. Aggrieved by the Defendants’ initial act of indiscriminate and arbitrary disconnection of the Claimants’ respective premises/apartment from electricity supply as well as the subsequent and repeated attempts being made by the Defendants to disconnect the Claimants from electricity supply (despite the fact that the Claimants have been paying their electricity bills to the Defendants regularly, without giving their electricity bills to the Defendants regularly; and without giving the Claimants the statutory seven (7) days’ Notice of Disconnection to that effect), the Claimants have instituted the instant action in asserting their legal rights to the quiet and peaceful enjoyment of electricity supply to them by the Defendants.
36. WHEREUPON the Claimants claim against the Defendants, jointly and/or severally follows:
1. A DECLARATION that the outrageous and unjustifiable electricity bill of over N2,500,000.00 (Two Million, Five Hundred Thousand Naira) issued by the Defendants vide the Defendants letters dated November 30th, 2017 for the Claimants to pay in addition to the monthly electricity bills which the Claimants have been paying regularly to the Defendants is unlawful, illegal and amounts to extortion of money from the Claimants by the Defendants by way of double billing on the part of the Defendants.
2. A DECLARATION that the Defendants’ act of arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection is unconstitutional, unlawful and constitutes a wanton violation of the Claimant’s contractual right to quiet and peaceable enjoyment of electricity power supply by the Defendants to the Claimants.
3. A DECLARATION that the Claimants have respectively suffered untold business setbacks, loss of clientele and monumental loss of earnings as a result of the Defendants’ act of unlawful, arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection and thereby deprived the Claimants of their contractual right to quiet and peaceable employment of electricity power supply by the Defendants to the Claimants.
4. THE MODEST SUM OF N500,000,000.00 (Five Hundred Million Naira only) being general damages for the untold business setbacks, loss of clientele and monumental loss of earnings suffered by the Claimants as a result of the Defendants’ act of unlawful, arbitrary and indiscriminate disconnection of the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection and thereby deprived the Claimants of their contractual right to quiet and peaceable employment of electricity power supply by the Defendants to the Claimants.
5. 21% monthly arrears on the said sum of N500,000,000.00 (Five Hundred Million Naira only) from Monday 23rd October, 2017 when Defendant arbitrarily and indiscriminately disconnected the Claimants from the 200VA, 33/0.415KV Substation on Monday, 23rd October, 2017 without any Notice of Disconnection issued by the Defendants and served on the Claimants stating the reason(s) for the said disconnection until the date judgment is delivered in this case.
6. 10% monthly interest on the said sum of N500,000,000.00 (Five Hundred Million Naira only) from the date judgment is delivered in this case until the judgment debt and other incidental costs are fully paid by the Defendants as provided for either by the Rules of this Honourable Court or the judgment of the Court.
7. PERPETUAL INJUNCTION restraining the Defendants either by themselves, their agents, servants, staff, workers, privies, surrogates or any other person(s) from disconnecting the Claimants from the 200VA. 33/0.415KV. Substation or any other substation or otherwise tinkering or tampering with the 200VA, 33/0.415KV Substation except for the purpose of repairs and maintenance to ensure constant electricity power supply by the Defendants to the Claimants.
See pages 4–11 of the record.
A perusal of the reproduced averments reveals a contractual relationship for supply of service by the 2nd Appellant to the Respondents. These services were inherited by the 2nd Appellant being one of the discos distribution company by virtue of the duties and powers under the 1st Appellant (NERC). The NERC is an agency under the Federal ministry of power in Nigeria and it took over the NATIONAL ELECTRICITY POWER AUTHORITY.
Now, what are the duties of the 1st Appellant? Its responsibility is to regulate standards of performance for all electricity licenses and monitor performances to ensure that those standards are met and maintained or even exceeded; also it ensures a peaceful, enjoyment of energy to commercial concerns.
The 2nd Appellant is one of the distribution companies (discos) who sells and supplies electrical energy to Nigerians and took over that aspect from NEPA which was holistically in charge of all aspects of generation and supply of light energy to the country. There are 11 (eleven) discos in Nigeria which are in charge of the distribution of light and the 2nd Appellant is in charge of the zone where these Respondents carry on their commercial concerns and utilize the energy supplies.
They had a previous arrangement with the former agency and from the averment therefore having now taken over, the 2nd Appellant committed acts complained of by the Respondents from disconnecting them from the substation and invading the commercial premises in large numbers under the pretext of issuing a higher bill which the Respondents termed outrageous and unjustifiable thereby disrupting normal flow of business and throwing them into financial set back.
The Appellants averred that the Respondents disconnected, without any notice, the electrical supply to the substation which resulted in huge losses and then served an outrageous bill of N2,500,000 (Two million and five hundred thousand naira), which in their view is a breach of the contractual relationship between the Respondents and the Appellants. See paragraphs 23, 24 & 25 of the claim thereof, also paragraphs 27, 28, 30, 31, 32, 33 and 34 which sums up the grievances of the Respondents.
In all the above paragraphs, there is no allegation against the 1st Appellant; its duty to the Respondents, omission or commission. I have re-examined the reliefs, there is nothing alleged against it.
It is trite that the action against a Federal government or its agency in its administration, management acts or omission lies in the Federal High Court but it is curious that the application in the lower Court was by the 2nd and 3rd Appellants but the appearance was for all the Appellants. I find this an anomaly except to insinuate that they did not get the consent of the 1st Appellant.
Be that as it is the long and short of the resolution is that there is nothing to urge against the 1st Appellant, therefore its presence makes no impact, it is solely decorative and cannot cloth the action as one against the Federal government and its agencies. I must say there is no cause of action against it at this stage.
Does its presence cloth the cause with the garment of an action qualified for the lower Court’s jurisdiction?
The Federal High Court has exclusive jurisdiction over matters as provided under Section 251 (1) a-t of the 1999 Constitution (as amended) thus:
251. (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 in 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.
The 2nd Appellant is a private electricity distribution company who bought the going concern and operations of PHCN (Power Holding Company). Electricity distribution companies in Nigeria are regulated by the NERC (Nigerian Electricity Regulatory Commission).
Section 32 of the Electric Power Sector Reform Act provides that:
(1) Subject to this Act, the Commission shall have the following principal objects:
(a) to create, promote, and preserve efficient industry and market structures, and to ensure the optimal utilisation of resources for the provision of electricity services;
(b) to maximise access to electricity services, by promoting and facilitating consumer connections to distribution systems in both rural and urban areas;
(c) to ensure that an adequate supply of electricity is available to consumers;
(d) to ensure that the prices charged by licensees are fair to consumers and are sufficient to allow the licensees to finance their activities and to allow for reasonable earnings for efficient operation;
(e) to ensure the safety, security, reliability, and quality of service in the production and delivery of electricity to consumers;
(f) to ensure that regulation is fair and balanced for licensees, consumers, investors, and other stakeholders; and
(g) to present quarterly reports to the President and National Assembly on its activities.
(2) For the furtherance of the objects referred to in subsection (1)of this section, the Commission shall perform the following functions:
(a) promote competition and private sector participation, when and where feasible;
(b) establish or, as the case may be, approve appropriate operating codes and safety, security, reliability, and quality standards ;
(c) establish appropriate consumer rights and obligations regarding the provision and use of electricity services;
(d) license and regulate persons engaged in the generation, transmission, system operation, distribution, and trading of electricity ;
(e) approve amendments to the market rules;
(f) monitor the operation of the electricity market; and
(g) undertake such other activities which are necessary or convenient for the better carrying out of or giving effect to the objects of the Commission.
Also by Section 31 (1) of the Electric Power Sector Reform Act, 2005 the role in its preamble is to promote and ensure an investor – friendly industry and efficient market structure to meet the needs of Nigerians for safe, adequate, reliable and affordable electricity.
The Nigerian Electricity Regulatory Commission (NERC) in exercise of the power conferred on it by Section 96 of the Electric Power Sector Reform Act enacted the Nigeria Electricity Regulation Commission Connection and Disconnection Procedures for Electricity Services, 2007.
Regulation 5 provides that;
5 (1) A Distribution Company may only disconnect supply to a Customer’s address when the Customer has not paid the amount correctly billed for that supply address by the relevant payment date;
PROVIDED that –
(a) Payment date is clearly shown on the bill;
(b) Payment date is at least 10 working days from the date of delivery of the bill to the supply address or a delivery address provided by the Customer, which is acceptable to the Distribution Company.
(c) Payment date has not been superseded by a subsequent payment date issued to the same Customer for the same supply address;
(d) Period between the payment date and the date of disconnection is not less than 3 months;
(e) Distribution Company has verified from its records that the bill has not been paid; and
(f) Distribution Company has given the Customer a written warning that the electricity supply shall be disconnected if payment is not made by the payment date and the warning contains;
(i) The date of its delivery to the supply address or any other address provided by the customer “and”
(ii) A telephone number and/or address acceptable to the Distribution Company where the customer request assistance for paying the outstanding bill.
The issuance of electricity bill to consumers therefore is the normal administration and management of the 2nd Appellant. The acts of alleged disconnection of the Claimants electricity supply on the 23rd October, 2017 is one of the acts that is regulated by a Federal government agency which falls under the management and control of the Appellants as agency of government which is geared towards achieving the objective and functions of the 1st Appellant as provided in Section 32 of the Electric Power Sector Reform Act, LFN 2004. Alas!! As stated above, there is no attribution of failure of the duties of NERC to the 2nd and 3rd Respondents/Plaintiffs and therefore failure to make any averment along this line is fatal to the Respondents/Plaintiffs’ choice of Court.
I am in agreement with the Appellants that the presence or inclusion of a Federal Government Agency as a party does not ipso facto confer jurisdiction on the Federal High Court. See OMOTESHO & ORS v ABDULLAHI SUPRA; ONUORAH v KRPC LTD SUPRA; CBN v RAHAMANIYYA G.R LTD SUPRA.
In C.B.N v RAHAMANIYYA GR LTD SUPRA, the apex Court clearly spelt out that there is no provision that confers automatic and exclusive jurisdiction on the Federal High Court in every action by or against the federal government irrespective of the subject matter of litigation for the Federal High Court to have jurisdiction the matter must be a civil mater arising from the administration, management and control of the Federal Government or its agencies. The matter must arise from any action or proceeding or injunction affecting the validity of any executive or administrative action or decision by Federal Government or its agencies.
This issue/allegation/act(s) committed by the 2nd and 3rd Appellants and their servants is based on contractual obligations under the contract for service. This is an action rooted in a case of simple contract, more importantly the Respondents in paragraphs 14, 15, 16, 17, 18 & 19 and 36 (3) of the claim, where the Respondents referred to “deprive the claimants of their contractual rights to quiet and peaceable enjoyment of electricity power supply by the defendants to the claimants”.
These are averments of the contractual relationship between them. The breach is against the contract of supply of services of energy by the 2nd & 3rd Appellants.
Therefore, in practical facts, this appeal does not in any way deal with the 1st Appellant’s management and administration of the discos especially the 2nd Appellant in its acts complained about and resultant losses to the commercial concerns, viz a viz the oversight management administration by the 1st Appellant.
It deals with the 2nd Appellant and 3rd Appellant who disconnected the light of the Respondents who are mostly commercial consumers without notice and issued outrageous.
Section 251(1) of the Constitution has made the lower Court one of enumerated jurisdiction where exclusive jurisdiction is conferred on the Federal High Court See; ANAO v SUN PULISHING LTD (2013) 3 NWLR (PT 1341) 399; AHMED v AHMED 2013 15 NWLR (PT 1377) 274.
In C.B.N v RAHAMANIYYA G.R. LTD (2020) 8 NWLR per PETER – ODILI, JSC held on whether Section 251 (1) (a) (s) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) confers automatic jurisdiction on the Federal High Court:
“It follows that in determining the exclusivity of the Federal High Court in an action or proceedings the subject matter as well as the parties must be considered together.
…Where the Federal Government or any of its agencies such as the appellant is a party to a suit, unless the subject matter of the suit relates to one of the specified matters upon which the exclusive jurisdiction is conferred in the Federal High Court by Section 251 (1) (a) (s) CFRN, the Federal High Court will lack jurisdiction to entertain the matter and it is the State High Court that will have jurisdiction in such matters.”
See also: KOKO v NDIC (2015) LPLER–40401 (CA) ONUORAH v KADUNA REFINING & PETROLCHEMICAL CO LTD (2005) 6 NWLR (PT 1115) 149; AGBULE v WARRI REFINERY (2013) 6 NWLR (PT. 1350) 318 and ADETAYO v FASHOGBON (2008) 17 NWLR (PT. 1215) 169.
It is clear from the statement of claim that neither the Federal Government of Nigeria, nor any of its agencies is a party to the Respondents’ suit pending at the Court below as to come within the range of Section 251(1) p, q & r of 1999 Constitution. See; W.R.P.C LTD v AGBUJE (2005) NWLR (PT 917) 63 AT 90. In SLYVA v PDP (2012) 13 NWLR (PT 1316) 85, the Court classified two factors that determine when that the Federal Government is a party to a suit: a) The party must be the Federal Government or an Agency, b) the subject matter.
In this end, the statement of claim must be carefully examined to determine whether the facts and circumstances to such claims are within the jurisdiction of the Federal High Court.
See: NEPA v EDEGBERO (2002) 18 NWLR (PT.798) 79, CHIEF KENNETH GBAGI & ORS v CHIEF ONOMIGHO OKPOKO (2013) LPELR-20167 (CA) where BAGE, JCA (as he then was) held thus:
“…Where the Court held that where the administration, control and management deals with the ordinary routine business of a company the claim is within the jurisdiction of the state high Court.”
Both the parties herein and the subject matter which is a simple contract for services are not within the jurisdiction of the Federal High Court and the Court lacks jurisdiction to entertain contractual maters. See; ADELEKAN V ECU –LINE NV (2006) LPELR – 113 (SC).
On whole, this claim falls under the exclusive jurisdiction of the State High Court.
I resolve this issue in favour of the Appellants.
Issue 2 borders on the renewed order that status quo be maintained pending the determination of the suit by the lower Court.
An order to maintain status quo simply means that the situation of things or the state of affairs (res) is to be maintained/preserved until the determination of the substantive suit. This is mainly to prevent further loss and damages and security issues bearing on social issues for both parties before the conclusion of the matter.
The Court had earlier made interim orders and after deciding that the Federal High Court had jurisdiction, further extended after noting that it had lapsed. Interim orders are not permanent, they are made to last for a while usually pending the determination of the suit or motion, see KUBOR & ANOR v DICKSON & ORS (2012) LPELR–9817 (SC) and OKECHUKWU v OKECHUKWU (1989) 3 NWLR (PT 108) 234.
The power of a Court to make restrictive orders is also vested in that Court depending on the situation surrounding the case.
The Appellants had filed an application:
– “For striking out the suit in that the honourable Court lacks jurisdiction.
– An order or this Court vacating/discharging the interim orders granted in favour of the plaintiff in this suit on 7th December 2017 or the alternative.
– An order varying the interim orders of injunction by permitting the defendants to have access to the installed transformer and distribution/service network lines and disconnect unauthorized connections and indebted customers from the 200 KVA 33/0.414kv substation sites at Terris water factory, plot 1511, phase 1, block 11 core area GRA…”
I have perused the parties’ arguments on the motion at pages 395-398 of the record and I find that the Appellants asked for reliefs to be granted or varied while the Respondents replied that the Court could go ahead based on Order 26 Rule 27 of the Federal High Court Rules or may vary to meet the merit of the action. The Appellants had no reply to this application.
The lower Court in its ruling overruled relief 1 and granted relief 2 in part, while stating that the interim order by effluxion of time had lapsed and ordered that the status quo be maintained and that the Appellants shall not disconnect the electricity power to the Claimants’ transformer.
Now, was this suo moto? The parties had sought orders including varying the orders of the Court, which the Court varied in her own terms in part. I do not find that the order was made suo moto. When parties had argued and made concessions even the Appellants did not make heavy weather about relief 2 of his application in his submission at page 435 of the record and had asked the Court to vary order. Respondents had asked the Court to invoke Order 26 Rule 17 of the Federal High Court Rules, 2009 which states:
“The Court may either discharge the order or make the same absolute, or adjourn the consideration thereof, or permit further evidence to be produced in support of or against the order and may modify the terms so as to meet the merits of the case”
The Court then proceeded to make specific orders against disconnecting the Respondents from the electric power supply.
In the light of the scenario, I disagree that the orders were made suo moto.
The lower Court in its wisdom and discretion in Order 27 Rule 17 of the Federal High Court Rules considered the circumstances of the Respondents as stated that; they had to shut down their commercial activities, employees and public/commercial services, for the 1st Respondent who runs a table water company; the 4th Respondent, a hospitality establishment and the 7th Respondent, a clothes store for kids. Furthermore, the Respondents showed the lower Court in paragraphs 37, 38, 39, 40, 41, 42, 43 and 44 of their statement of claim that threats of disconnection have been made and there has been a prior disconnection of the Respondents’ electric power.
See paragraph 34 of the statement of claim on allegations that there were threats of re-entry into the premises and social break down of law and order, snowballing into serious breaches.
In the case of YAKUBU O. OLAMOYEGUN & ORS v MR. SALIU EBUN & ORS (2008) LPELR 46108 (CA) this Court held on the meaning and nature of the Latin Maxim Status quo ante bellum per UWA, JCA;
“On the grant of the orders prayed until the final determination of the substantive suit, it is a harmless order to ensure that peace reigns and for the safety of lives and property during the pendency of the substantive suit. Even where such application has not been formerly brought, the Court would be at liberty to make such order where harassment, threats or intimidation from either or both parties is envisaged. The meaning and/or essence of the latin maxim status quo ante bellum is the state of affairs before the beginning of hostilities. Therefore, the status quo that ought to be maintained in this case is the state of affairs that existed before the hostilities between the parties, which should be maintained until the determination of the substantive matter. …On the other hand, the Appellants have nothing to lose by the order granted that the status quo be maintained, whether there was harassment and intimidation of the witnesses or not.”
See; CHIEF T. A. L. AKAPO (OJORA OF LAGOS) v ALHAJI H.A. HAKEEM-HABEEB & ORS (1992) LPELR–325, P. 58, PARAS. E – G.
A Court has the inherent power to make any necessary orders in the preservation of the subject matter and most important to prevent anarchy and preserve the peace. See MARDANI NIGERIA LIMITED v GABRIEL BAGUDU GALADIMA & ORS (2015) LPELR – 25762 (CA) per ABIRU, JCA held thus:
“Now, it is settled law that a Court of law possesses inherent powers which are indeed very wide to make orders with the primary purpose of preserving the subject matter of litigation between parties. The Court can make appropriate orders to prevent acts which will destroy the subject matter of the proceedings or foist upon the Court a situation of complete helplessness or render nugatory any judgment of order..”
See also; DEDUWA & ORS v OKORODUDU (1974) 6 SC 21; KIGO (NIG) LTD v HOLMAN BROTHERS (1980) 5-7 SC 60; UNITED CEMENT COMPANY OF NIGERIA v DANGOTE INDUSTRIES LTD (2006) 6 NWLR (PT 980) 616; AKINGBOLA v CHAIRMAN, ECONOMIC AND FINANCIAL CRIMES COMMISSION (2012) 9 NWLR (PT 1306) 475.
The lower Court was therefore perfectly right to have made the order of status quo to prevent disruption of peace and violence that would have ensued between the 3rd Appellant and the Respondents. See paragraphs 20-30 of statement of claim, the parties who had already involved the armed forces, when the 3rd Appellant tried to gain entrance into the 1st Respondent’s premises and was being resisted by the employees of the 1st Respondent. There is no telling the level of damages to persons and properties if there is a re-occurrence.
I disagree that the lower Court even if unsure of the jurisdiction ought to have thrown security caution to the winds, a Court though not a father Christmas should know when to hold the aces and balance it.
However, having held that the Federal High Court lacked jurisdiction, certainly the order is extinguished.
Having resolved the main issue in this appeal in favour of the Appellants, the appeal has merits and is allowed
In the result, the judgment of the Federal High Court, Asaba Judicial Division, per T. B. ADEGOKE, J. delivered on 5th March 2018 is hereby set aside. The suit is to be transferred to the Chief Judge of Delta State High Court for reassignment and speedy conclusion thereon.
I make no award as to cost.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the judgment of my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA. I agree with his reasoning and conclusion that this appeal has merit. I too allow the appeal. I abide by the consequential orders made therein.
JOSEPH EYO EKANEM, J.C.A.: The jurisdiction of a Court is determined by the claim of the claimant and the provisions of the statute which donates jurisdiction to the Court. Where the claim of the claimant falls within the jurisdiction of the Court as granted by the enabling law, the Court must assume jurisdiction; where the claim falls outside its jurisdiction, the Court must decline jurisdiction. See Abdulhamid v. Akar (2006) 13 NWLR (Pt. 996) 127, 144. Ufomba v. INEC (2017) 13 NWLR (Pt. 1582) 175, 197, Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 1175) 517, 549 and Zakirai v. Muhammad (2017) 17 NWLR (Pt. 1594) 181, 233-234.
It is clear from the claim of the Respondents in the instant matter that the complaint of the Respondents revolves around alleged breach of contract of supply of electricity by the 2nd and 3rd Appellants to the Respondents. The Federal High Court is a Court of enumerated jurisdiction. In the case of Wema Bank Securities and Finance Plc v. NAIC (2015) 16 NWLR (Pt. 1484) 93, 131 the Supreme Court held that its exclusive jurisdiction is expressly tied to items enumerated in Section 251 (1) of the Constitution of Nigeria, 1999 amended). It was further held that in the exercise of its exclusive jurisdiction, it can only orbit within the universe of the enumerated issues and to others as may be conferred upon it by an Act of the National Assembly.
The jurisdiction of the Federal High Court under Section 251 (1) of the Constitution does not include disputes relating to simple contracts as in this instance. See Onuorah v. Kaduna Refining and Petrochemical Co. Ltd (2005) 6 NWLR (Pt. 1115) 49. Ports and Cargo Holdings Service Co. Ltd v. Migfo Nig. Ltd (2013) 18 NWLR (Pt. 1333) 555, 593–600, Wema Bank Securities and Finance Plc v. NAIC supra 131, DEC Oil and Gas Ltd v. Shell Nigeria Gas Ltd (2019) 14 NWLR (Pt. 1692) 273 and Statoil (Nig.) Ltd v. Inducon (Nig.) Ltd (2021) 7 NWLR (Pt. 1774) 1, 50, 52 and 54.
The mere presence of the 1st Appellant as a party in this suit does not change the position that I have taken above. It is not enough to have an agency of the Federal Government as a party in the suit, the subject matter of the suit and the reliefs must also be considered. See Rahman Brothers Ltd v. NPA (2019) 6 NWLR (Pt. 1667) 126, 138 and PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85, 138.
There is no claim in this matter relating to affecting the validity of any executive or administrative decision or action of the 1st Appellant and so the Federal High Court has no jurisdiction over the matter. See CBN v. Rahaminiyya Global Resources Ltd (2020) 8 NWLR (Pt. 1726) 314, 339.
On account of the foregoing, I agree with the lead judgment of my learned brother, OBASEKI-ADEJUMO, JCA, that the appeal has merit. I set aside the ruling of the lower Court and abide by the consequential order of transfer of the suit to the Chief Judge of the Delta State High Court.
Appearances:
C. A. Ajuyam, SAN, with him, O. J. Enewovwa, Esq. For Appellant(s)
John Okoriko. For Respondent(s)
