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TRANSCO, PHCN v. ADAMAWA STATE BOARD OF INTERNAL REVENUE (2020)

TRANSCO, PHCN v. ADAMAWA STATE BOARD OF INTERNAL REVENUE

(2020)LCN/15603(CA)

In the Court of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, June 08, 2020

CA/YL/148/2018

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

TRANSMISSION COMPANY OF NIGERIA P.H.C.N APPELANT(S)

And

ADAMAWA STATE BOARD OF INTERNAL REVENUE RESPONDENT(S)

 

RATIO:

THE EXCLUSIVE JURIDICTION OF A COURT IDENTIFIED IN THE STATUTE OVER A PARTICULAR CAUSE OF ACTION

The law is trite that where a statute had identified a Court and donated to it exclusive jurisdiction over a particular cause of action, the Jurisdiction of other Courts not similarly mentioned appeared to have been ousted. In Nigerian Bank of Commerce and Industry v. Dauphin Nigeria Ltd. (2014) 16 NWLR (Pt. 1432) 90 at 106 Para. B this Court Held that:-
“Where a statute has identified a Court and donated to it an exclusive Jurisdiction over a particular cause of action, the jurisdiction of other Courts not similarly mentioned would appear to have been ousted – S.C.C (Nig.) Ltd. v. Sedi (2013) 1 NWLR (Pt. 1335) 230 at 244. Therefore the Federal High Court was not the right Court to try the case. ABDULLAHI MAHMUD BAYERO,J.C.A.

 

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the ruling of the Adamawa State High Court sitting in Yola delivered on 10th July, 2018 by A.A. Waziri J. By an amended Writ of Summons dated 2nd February, 2018 the Respondent as Plaintiff claims against the Appellants/Defendants as follows:-
i) The sum of N18,007,187.29, being the under deduction and unremitted pay as you earn PAYE of the defendant employees resident within the State for the period 2012-2013.
ii) The sum of N1,800,718.72 being 10% statutory penalty per annum on the above sum.
iii) The sum of N3,421,365.38, being statutory interest of 19% at the commercial lending rate on the amount claimed in clause 1 above.
iv) The sum of N23,229,271.59, being the grand total of the claim.
v) Cost of this suit.

​The Plaintiff’s application for summary judgment was moved on 26th day of March, 2016 but was overruled on 17th April, 2016. Leave was granted to the defendant to defend the suit on the merits. Trial commenced and in the course of the trial, the defendant filed a notice of preliminary objection challenging the competence of the suit and the jurisdiction of the Court. It was overruled. Dissatisfied, the Appellant filed the Notice of Appeal on 23rd July, 2018. The record of Appeal was compiled and transmitted on 8th November, 2018. The Appellant’s Brief was filed on 9th November, 2018. Respondent’s Brief was filed on 2nd January, 2019. Appellant’s Reply Brief was filed on 11th January, 2019. In the Appellant’s Brief two issues are nominated for determination:
1. Whether the Trial Court has jurisdiction to entertain the Respondent’s suit having regards to the weight of the Statutory provision of Section 39 of the Adamawa State Board of Internal Revenue Law 2007? (Distilled from grounds 3 and 4 of the Notice of Appeal).
2. Whether the Trial Court was right in deciding that the Respondent has a cause of action against the Appellant in the absence of the proper party against whom the purported claim subsists? (Distilled from grounds 1 and 2 of the Notice of Appeal).

It is submitted that the crux of the grounds of the objection upon which issue one was anchored was that Adamawa State Board of Internal Revenue Law 2007 vested the jurisdiction to entertain matters of recovery of tax by the Respondent on the revenue recovery Tribunal. That the grouse of the Respondent at the Trial Court was for the recovery of an alleged debt (withheld tax) due to the Adamawa State Board of internal revenue from the Power Holding Company of Nigeria PHCN for the years 2012 and 2013. According to Counsel, the Adamawa State Board of Internal Revenue Law 2007 being the applicable statute in the State had conferred exclusive jurisdiction to the Revenue Recovery Tribunal to entertain tax recovery matters. That Section 39 of the Adamawa State Board of Internal Revenue Law 2007 provides thus:
“(1) Without prejudice to any other provision of this Law or any other relevant Law, any amount due by way of tax shall constitute a debt due to the State and may be recovered by a civil action brought by the board before the State Revenue Recovery Tribunal.”

That where a statute had identified a Court and donated to it exclusive jurisdiction over a particular cause of action, the jurisdiction of other Courts not similarly mentioned would appear to have been ousted. Reference was made to the case of Nigerian Bank for Commerce and Industry v. Dauphin Nigeria Ltd. (2014) 16 NWLR (Pt. 1432, 90 at 106 Para. B.

That it is incumbent upon the Plaintiff/Respondent in such case of recovery of tax to first exhaust the remedy of approaching the Tax Revenue Tribunal, before thinking of exploring any other option. Reference was made to the case of Eguamwense v. Amaghizemwen(1993) 9 NWLR (pt. 315) 1 at 25, Paras D-E.

According to Counsel, the Lower Court imported an inapplicable statutory provision into the matter i.e. Section 78 of the Personal Income Tax Act to justify the assertion that the Magistrate Court was the appropriate Court to determine the matter. That the said Act being a Federal Legislation has been domesticated into a state law i.e. Adamawa State Board of internal Revenue Law, which excluded both the High Court and the Magistrate Court and conferred jurisdiction on the Tax Recovery Tribunal.

It is submitted that the trial Court judge erred when it held that he was fortified by the provision of Section 4 (5)of the 1999 Constitution (as amended) that:
“If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail and that other law shall to the extent of the inconsistency be void.”

That the trial judge was beclouded in his reasoning to have raised a Constitutional issue that Section 39 of the Board of Internal Revenue Law 2007 was inconsistent with the provision of Section 4 (5) of the 1999 Constitution. That the issue was raised suo moto, argued and decided by the trial Court judge without recourse to any of the submissions of parties, nor did the judge asked to be addressed on the issue.

According to Counsel there were no ambiguities or inconsistencies between the Personal Income Tax Act and the Adamawa State Board of Internal Revenue Law. That while the former governs Federal taxation, the later governs State taxation and which statute has validly prescribed the Revenue Recovery Tribunal as the lawful Court to entertain matters of Pay as You Earn Tax. It is further submitted that the Trial Court judge however in a bid to confer jurisdiction on the High Court by all means, out of nowhere decided that the amount in question exceeded the monetary jurisdiction of the Magistrate Courts in Yola to determine the matter and which monetary jurisdiction according to the Trial Court judge is One Million Naira. It did not even ask the parties to address it on the monetary jurisdiction or otherwise of the Magistrate Court but did so suo moto. That with the challenge to the Court’s jurisdiction, the Lower Court had a duty to ensure that it possessed the requisite jurisdiction before embarking on hearing the main matter. He referred to Usman v. State (2014) All FWLR (Pt. 746) 412 at 445 Paras. C – E.
He urged the Court to resolve issue one in favour of the Appellant and against the Respondent.

2) Whether the Trial Court was right in deciding that the Respondent has a cause of action against the Appellant in the absence of the proper party against whom the purported claim subsists?

It is submitted that it is not in doubt that the fulcrum of the Respondent’s case before the trial Court was for the recovery of an alleged tax (debt) from the defunct Power Holding Company of Nigeria PHCN for the years 2012-2013. That all the front loaded documents of the Respondent before the Trial Court bears credence to the fact that they are all against Power Holding Company of Nigeria (PHCN). He referred the Court to the reliefs of the Respondent contained at pages 17-26 of the record of appeal. That the Appellant at the Lower Court drew the attention of the Court to the fact that Power Holding Company of Nigeria has since ceased to be in existence. That when PHCN was disbanded, three major units were created comprising of 11 Distribution Companies, 6 Generation Companies and 1 Transmission Company. He referred to paragraph 10 of the preliminary objection found at page 104 of the record of appeal.

That it was contended before the trial Court that the Electricity Power Sector Reform Act of 2005 prior to the unbundling of the PHCN set up an interim public Company Nigeria Electricity Liability Management Company (NELMCO), a public company limited by guarantee, to assume all the assets and liabilities of the initial holding company (PHCN) to ensure that such assets and liabilities are properly settled before the new successor companies kick off. That reference was made to the Electric Power Sector Reform (Transfer of Assets, Liabilities, Rights and Obligations) Order No. 1 of 2006 (SC Order).

It is further submitted that with the creation of NELMCO, all the liabilities of PHCN including tax debts (if any) passed on to NELMCO. That clause 3 of the Memorandum of Association of Nigeria Electricity Liability Management Company (NELMCO) which provides for the objects of the company read thus:
“3. The objects for which the company is established are:-
a. To assume and administer the stranded debts and non-core assets of Power Holding Company of Nigeria (PHCN) Plc pursuant to the provisions of the Electricity Power Sector Reform Act 2005.
b. To assume and manage pension liabilities of the employees of PHCN
c. To hold the non-core assets of PHCN, sell or dispose off or deal in any manner for the purpose of financing the payment of debts or other related matters.
d. To take over the settlement of PHCN’s power purchase agreement (PPA) debts obligations, legacy debts and any other liabilities as may be determined by the National Council on Privatization within the Nigerian Electric Supply Industry from time to time.”

That since the suit of the Respondent before the Trial Court was in respect of an alleged debt of withholding tax for the year 2012-2013, such claims can only be made against the Nigeria Electricity Liability Management Company (NELMCO) and not against one of the 18 new successor companies that sprung from the unbundled PHCN.

According to Counsel, where a Trial Court failed to properly consider the issues placed before it, this Court pursuant to Section 15 of the Court of Appeal Act, would consider same. He urges this Court to so do. Placing reliance on the case of Agbaka v Ayilara (2012) All FWLR (Pt. 608) 899 at 934, Paras E-G.

That the Respondent does not have a cause of action against the Appellant who is a separate and distinct legal entity from PHCN and therefore, the Respondent cannot sue someone who has done her no wrong referring to the case of Rebold Ind. Ltd. v. Magreola (2015) All FWLR (Pt. 765) 94 at 104, para. E. According to Counsel, in the absence of cause of action against the appellant, the proper parties are not before the Court and as such trial Court lacked jurisdiction to entertain the matter. That the determination of this matter, as presently constituted without NELMCO would amount to travesty of justice.
He urges the Court to allow the Appeal and set aside the ruling of the Lower Court.

In the Respondent’s Brief filed on 2/01/2019, two issues are formulated for the determination of this Appeal thus:-
Issue 1 Whether the Lower Court has jurisdiction to entertain the Respondent’s suit within the contemplation of the Constitution of the Federal Republic of Nigeria as amended and the extant legislations conferring jurisdiction on Tax related matters?
Issue 2 Whether the Learned Trial Judge, from the evidence before him is right in holding that the Respondent has a reasonable cause of action against the Appellant?

On issue one, it is submitted that the question of jurisdiction is a radical one. It is a threshold issue upon which the entire power to adjudication rests. Where a Court is found not to have jurisdiction, the proceedings before it amounts to nullity. That it is the Plaintiff’s claim that determines jurisdiction placing reliance on the case of ONUORAH Vs. K.R.P.C Ltd (2005) 6 NWLR (Pt. 921) 393 at 397 Ratio 3. That the Plaintiff’s claim no doubt borders on revenue accruable to the Government of Adamawa State referred to as Pay as You Earn (PAYE).

According to Counsel, taxation of income falls within the Exclusive Legislative List vide item 59 of the 2nd Schedule Part 1 of the Constitution and also item 7 of the Concurrent Legislative List Part 11 of the 2nd Schedule of the Constitution. That all these confer powers on the National Assembly exclusively to make power to make law on income tax vide Section 4 (3) and 4 (7) (a) of the Constitution of the Federal Republic of Nigeria (as amended).

That the Personal Income Tax Act (PITA) Cap. P8 LFN, provides for uniform taxation of Personal Income, establishment of the various States Boards of Internal Revenue B.I.R., their structures, powers, receipt of returns assessment, collection and enforcement throughout the Country. According to Counsel, the Adamawa State Government domesticated the law by the Adamawa State Board of Internal Revenue law 2007 which he submitted, is subservient to the provisions of the Act.
That Section 1 of the Adamawa State Board of Internal Revenue Law 2007 provides thus:-
“This Law may be cited as the Adamawa State Board of Internal Revenue law 2007 and shall be read as one with the Personal Income Tax Act…”
That Section 78 of the Personal Income Tax Act provides:-
(1) Income tax may be sued for and recovered in a Court of competent jurisdiction by relevant tax authority in its official name with full cost of action from the person charged therewith as debt due to the Government of the Federation or to the relevant tax authority.
(2) For the purpose of this Section, a Court of competent jurisdiction shall include a Magistrate Court, which Court is thereby invested with necessary jurisdiction provided that the amount claimed in any action does not exceed the amount of the jurisdiction of the Magistrate concerned with respect to action for debt.”

That by the clear provisions above, the Court of competent jurisdiction include the Magistrate Court limited only to the amount within its civil jurisdiction on debts.
That the High Court has jurisdiction on tax claim in excess of the Magistrate’s jurisdiction as prescribed by Section 13 of the District Court Laws.

That Section 39 (1) of Adamawa State Board of Internal Revenue Law cannot supersede the provisions of the Personal Income Tax Act in the light of the provisions of Section 4(5) of the 1999 Constitution (as amended) and the case of A.G Ogun State v. The Federation (1982) NCLR 166 at 204.

That the jurisdiction of the High Court in respect of claim on revenue accruing to the State has been well settled in the case of WILBROS (NIG.) Ltd V. A.G AKWA IBOM (2008) 5 NWLR (Pt. 1081) 484 at 487 Ratio 1.

On issue two, it is submitted that from the pleadings, the Respondent has a reasonable cause of action against the Appellant with chances of success. That the Appellant’s reliance on a foreign and strange document Exhibit ‘A’ attached to the Affidavit in respect of preliminary objection deposed to by Tijjani Ahmadu which does not emanate from the documents pleaded is an aberration and violation of Order 25 Rules(1) (2) of the High Court Civil Procedures Rules 2013 which provides:
“A defendant shall, not later than 30 days after service on him of the Plaintiff’s Originating process and accompanying documents, file his statement of defence, set off or counter claim, if any, together with a written Statement on Oath of each witness to be called and a copy of every document to be relied on at the trial.”

That this suit is at the instance of the Respondent and the Respondent/Plaintiff perceived legally that it has a reasonable cause of action against the Appellant/Defendant and no other. That it is trite that a Respondent cannot be compelled to proceed against other persons whom he has no desire to sue.

That it is the responsibility of the Appellant/Defendant to join the 3rd party, National Electricity liability management Company (NELMCO) whom it assumed had shouldered its liability. He urged the Court to dismiss the Appeal and affirm the decision of the Lower Court. In the Reply Brief, the Appellant contended that the argument marshaled by the Respondent at page 3-6, paragraphs 3.06 – 3.10 of the Respondent’s brief of argument is a complete misconception of the law. The Respondent posited that the House of Assembly had no right to make any legislation on taxation since same is under the exclusive list. That at paragraph 3.07 they made bold to say that it was a no go area for states Assembly by virtue of Section 4 (3) and 4 (7) (a) of the 1999 Constitution (as amended). ​

According to Counsel, taxation is an item on both the exclusive and concurrent legislative lists.

That both the National Assembly and the States Houses of Assembly have the legislative power to legislate on the subject matter. That it is only where the legislations made by the two houses clash that the doctrine of covering the field would be applicable rendering the legislation made by the States Houses of Assembly inoperative. He referred to the case ofA.G. Federation v. A.G. Lagos State (2013) 16 NWLR (Pt. 1380) 249 at 330 – 331 Paras D-B.

According to Counsel, in the instant case, there is no clash between the provisions of the two laws. That while the Personal Income Tax Act covers federal taxation, the Adamawa State Board of internal Revenue Law 2007 covers State taxation which is the subject matter of the dispute at the trial Court. That the two statutes complement one another as evidenced by the  Section 1 of the State law where it boldly echoes that the State law should be read as one with the Personal Income Tax Act.
That the Personal Income tax Act under Section 78 (2) provides:
“(2) For the purpose of this section, a Court of competent jurisdiction shall include a Magistrate Court, which Court is thereby invested with necessary jurisdiction provided that the amount claimed in any action does not exceed the amount of the jurisdiction of the magistrate concerned with respect to action for debt.”

That both the Personal Income Tax Act and the State Law excluded the High Court with the jurisdiction to entertain such tax matters. That the Courts with jurisdiction to entertain such tax matters are the Magistrate Court or the Revenue Recovery Tribunal.

That the argument of the Respondent at paragraphs 3.13 to 3.22 of their brief of argument to the effect that Section 39 (1) of the Adamawa State Board of Internal Revenue Law is void for being inconsistent with Section 4(5) of the 1999 Constitution is not only erroneous but misconceived.

That the attempt by the Respondent at paragraph 3. 14 of their brief to hinge jurisdiction on the High Court under the guise that the amount in question exceeded the monetary jurisdiction of the Magistrate Court, is unfounded. That the Respondent has failed to cite any statute that limits the monetary jurisdiction of the Magistrate Courts in Adamawa State to One Million Naira.

According to Counsel, the Respondent attempted to suggest that Section 13 of the District Court Law provides monetary jurisdiction for the District Courts which provide thus:
“13 (1) Subject to the provisions of this law and of any other written law, a chief district judge of the first grade shall have and exercise jurisdiction in civil causes or matters: –
(a) in all personal suits whether arising from contract, or from tort, or from both, where the debt or damage claimed, whether as balance claimed or otherwise, is not more than ten thousand naira…”

That from the above, it is clear that the District Court contemplated by the above statute is distinct and completely separate from the Magistrate Courts, that there is no law in Adamawa State that says that the Chief District Court and the Magistrate Court are one and the same Courts.

On the issue raised by the Respondent that Exhibit A is an aberration to Order 25 Rules (1) & (2) of the Adamawa state High Court Civil Procedure Rules 2013, it is submitted that raising preliminary objection led to the filing of this appeal is distinct and separate from actions commenced by writ of summons which requires front loading of all pleaded documents. That when preliminary objection is raised, the affidavit in its support is akin to pleadings and that document attached to the affidavit ought to be relied upon by the trial judge. He urges the Court to discountenance the entire arguments of the Respondent and allow the appeal.

DETERMINATION OF THE APPEAL
I will determine this Appeal on the two issues formulated by the Appellant which are similar to those formulated by the Respondent.

Issue 1
“Whether the trial Court has jurisdiction to entertain the Respondent’s suit having regards to the weight of the statutory provision of Section 39 of the Adamawa State Board of Internal Revenue Law, 2007?”
From the Respondent’s reliefs as contained in the Writ and the statement of claim, the grouse of the Respondent before the Lower Court was for the recovery of debt (withheld tax) due to Adamawa State Board of Internal Revenue from the Power Holding Company of Nigeria (PHCN) for the years 2012 – 2013. The Adamawa State Board of Internal Revenue Law, 2007 Section 39 (1)provides:-
“Without prejudice to any other provision of this Law or any other relevant Law, any amount due by way of tax shall constitute a debt due to the State and may be recovered by a civil action brought by the board before the State Revenue Recovery Tribunal.”
The law is trite that where a statute had identified a Court and donated to it exclusive jurisdiction over a particular cause of action, the Jurisdiction of other Courts not similarly mentioned appeared to have been ousted. In Nigerian Bank of Commerce and Industry v. Dauphin Nigeria Ltd. (2014) 16 NWLR (Pt. 1432) 90 at 106 Para. B this Court Held that:-
“Where a statute has identified a Court and donated to it an exclusive Jurisdiction over a particular cause of action, the jurisdiction of other Courts not similarly mentioned would appear to have been ousted – S.C.C (Nig.) Ltd. v. Sedi (2013) 1 NWLR (Pt. 1335) 230 at 244. Therefore the Federal High Court was not the right Court to try the case. On this threshold alone, the claim is one that ought to have been struck out in the Court below.” From the decision of the Lower Court as shown at Page 188 of the printed record, it revealed that the Lower Court read Section 39 of the Adamawa State Board of Internal Revenue Law and Section 78 of the Personal Income Tax (Amendment) Act, 2011 in isolation. This is because it imported an inapplicable statutory provision (the Act) to justify its assertion that the Magistrate Court has jurisdiction to entertain the matter, while the said Act which has been domesticated into a State law (Adamawa State Board of Internal Revenue Law) and which excluded both the High Court as Court of first instance and the Magistrate Court conferred jurisdiction on the Tax Recovery Tribunal. It is important to note that while the Personal Income Tax (Amendment) Act, 2011 governs Federal Taxations; the Adamawa State Board of Internal Revenue Board Law governs Adamawa State Pay as You Earn Tax and prescribes the Revenue Recovery Tribunal as the lawful Court to entertain such State matters. InUsman v. State (2014) AFWLR (Pt. 746) 412 at 445 Paras. C-E the Supreme Court Held that:-
“There is no doubt that every Court is endowed with jurisdiction by Statute or the Constitution and where a Court exercise jurisdiction in a matter which it does not possess, the decision from such an exercise is a nullity. Therefore every Court must assure itself that it has the requisite jurisdiction before embarking on the hearing of the matter to avoid a waste of precious judicial time.”
In the instant case, the lower Court embarked on hearing the matter knowing very well that it had no jurisdiction to do so going by the provision of the Adamawa State Board of Internal Revenue Law, 2007. See further the case of Ogologo v. Uche (2005) 14 NWLR (Pt. 945) 245 Para. E Ratio 2 where it was Held that:-
“Where a law has given exclusive power to a body to decide a matter, the Court cannot come in before that body has exercised that power. It can come in only where there is exhaustion of all remedies before that body and the Court will then be able to decide whether that power had been exercised lawfully.”
It is the position of the Respondent as reflected at Pages 3-6 Paragraphs 3.06 – 3.10 of the Respondent’s Brief that the Adamawa State House of Assembly has no right to make any legislation on taxation since same is under the exclusive legislative list. In fact at Paragraph 3.07, the Respondent submitted that it was a no go area for State Assembly by virtue of Sections 4 (3) and 4 (7)(a) of the 1999 Constitution (as amended). It is important to note here that taxation is an item on both the exclusive and concurrent legislative lists. It therefore follows that both the National Assembly and the States Houses of Assembly have the legislative powers to legislate on taxation which they both did; while the Personal Income Tax Act, 2011 (as amended) covers Federal Taxations, the Adamawa State Board of Internal Revenue Board Law, and 2007 covers State taxation. Issue one (1) is therefore resolved in favour of the Appellant and against the Respondent.

Issue 2
“Whether the Trial Court was right in deciding that the Respondent has a cause of action against the Appellant in the absence of the proper party against whom the purported claim subsists?”

The fulcrum of the Respondent’s case as shown from its reliefs reflected at pages 17 – 26 of the printed record is for the recovery of tax (debt) from the defunct Power Holding Company of Nigeria for the years 2012 to 2013. The Appellant drew the attention of the Lower Court that the Power Holding Company of Nigeria (an initial holding Company that succeeded NEPA by virtue of Electricity Power Sector Reform Act of 2005) has ceased to exist (page 103 to 105 of the printed record), that PHCN has been disbanded and unbundled, that The Nigeria Electricity Liability Management Company (NELMCO) Public company limited by guarantee was floated to assume and take over all the assets and liabilities of PHCN and to ensure that all such assets and liabilities were properly settled before the new companies took off (page 106 to 111 of the printed record). It was further submitted before the Lower Court that with the creation of NELMCO all the liabilities of PHCN including tax debts passed on to NELMCO (as provided in clause 3 of the Memorandum of Association). For clarity purposes clause 3 provides:- “The objects for which the company is established are:-
a) To assume and administer the stranded debts and non-core assets of Power Holding Company of Nigeria (PHCN) Plc pursuant to the provisions of the Electricity Power Sector Reform Act, 2005.”

It therefore follows that since the suit of the Respondent before the Lower Court was in respect of withholding tax for the period 2012 to 2013, such claims can only be made against NELMCO and not one of the successive companies that sprung from the unbundled PHCN. The Lower Court however at pages 186 and 189 of the printed record glossed over this issue and did not even consider Exhibit A annexed to the affidavit in support of the preliminary objection which is the Memorandum and Articles of Association of NELMCO particularly Clause 3 reproduced earlier in this Judgment. The Court held at page 186 paragraph 3 held:-
“The contention that the proper party to be sued by the plaintiff is the Nigeria Electricity Liability Management Company (NELMCO) is of no moment.”

For a suit to succeed the proper parties against whom rights and obligations arising from the cause of action must be properly identified. In Ehidimhen v. Musa (2000) FWLR (Pt. 21) 930 at 962 Para E-H the Apex Court held:-
“It is imperative that for an action to succeed, the parties must be shown to be the proper parties to whom rights and obligations arising from the cause of action attach…”
As I earlier stated in this Judgment NELMCO was specifically created to assume the assets and liabilities of the defunct PHCN with a view to ensuring that all rights and claims against PHCN are settled by NELMCO. The case as constituted and determined by the lower Court without NELMCO was improperly constituted and thus incompetent. In the case of Alhaji Lawan Sarkin Tasha v. Union Bank of Nigeria Plc. (2002) FWLR (Pt. 97) 765 at 771 Para E-F, the Supreme Court Held that:-
“There can be no argument that the action was improperly constituted. The parties ought to have been the Respondent Bank and the Board. Not having been properly constituted, the suit was incompetent. I therefore allow this appeal on that issue alone and set aside the Judgment of the lower Court.”

Issue two is therefore resolved in favour of the Appellant and against the Respondent. Having resolved the two issues against the Respondent, this Appeal succeeds per force and is hereby allowed. The Ruling of the Lower Court delivered on 10/07/2018 is hereby set aside. No cost awarded. Parties to bear their respective costs.

CHIDI NWAOMA UWA, J.C.A.: I read before now, the judgment delivered by my learned brother, ABDULLAHI MAHMUD BAYERO, JCA. I agree with the decision allowing the appeal and setting aside the Ruling of the Trial Court, I also allow same for the reasons given in the leading judgment.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother Abdullahi Mahmud Bayero JCA.
For the reasons in the judgment, I too allow the appeal.
The ruling of the Court below is hereby dismissed.
I abide by the order as to costs.

Appearances:

F.D. Nzarga Esq., with him, S.N. Augustine Esq. For Appellant(s)

K. W. Sa’ad Esq. For Respondent(s)