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VIGEO POWER LTD & ORS v. BAMISILE (2022)

VIGEO POWER LTD & ORS v. BAMISILE

(2022)LCN/16605(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Wednesday, May 25, 2022

CA/AK/20/2017

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Yusuf Alhaji Bashir Justice of the Court of Appeal

Between

VIGEO POWER LIMITED (Distributing Electricity In The Business Name Of Benin Electricity Distribution Company) MRS. IYABO ADEFEMI MR. SEGUN ADEKUNLE APPELANT(S)

And

CHIEF MRS. OLUREMI BAMISILE (Trading In The Name Of Top Quality Hotel) RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON THE STARTING POINT FOR CONSIDERATION ON ACTIONS PREDICATED ON PLEADINGS 

​It is elementary that in an action predicated on pleadings, the starting point for the consideration of the case of the parties must be the pleadings. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them – Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt 1403) 377 at 418A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G. PER ABIRU, J.C.A

THE POSITION OF LAW WHERE FACT IN A STATEMENT OF CLAIM IN ADMITTED IN THE STATEMENT OF DEFENCE

​Dovetailing from this, is the principle that where a fact in the statement of claim is admitted in the statement of defence, either because it is expressly admitted or because it is impliedly admitted by the omission of the defendant to traverse it expressly, it ceases to be in controversy between the parties and no evidence is required or admitted to prove such fact; and accordingly, only those facts stated in the statement of claim which are expressly traversed in the defence will remain in issue between them. In other words, when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. When a fact pleaded by the claimant is admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted – Onobruchere & Anor Vs Esegine & Anor (1986) 2 SC 385 at 397, Bunge Vs Governor, Rivers State (2006) 12 NWLR (Pt 995) 573 at 599-600 B-A, and Akande Vs Adisa (2012) 15 NWLR (Pt 1324) 538. PER ABIRU, J.C.A

WHETHER OR NOT EVIDENCE NOT CONTESTED IN A CROSS-EXAMINATION IS DEEMED ACCEPTED

Similarly, it is settled law that where evidence led by a party in a trial on a fact in issue is not challenged, controverted, contested or disparaged under cross-examination and neither is it incredible or unbelievable, such evidence can be believed and relied upon by a trial Court in making findings – Nigeria Construction Ltd Vs Okugbeni (1987) 4 NWLR (Pt 67) 89, Ikuomola Vs Oniwaya (1990) 4 NWLR (Pt 146) 617, Lagos State Development & Property Corporation Vs Nigeria Land & Sea Foods Ltd (1992) 5 NWLR (Pt 244) 653, Eyo Vs Onuoha (2011) 3 SCNJ 302.  PER ABIRU, J.C.A

THE POSITION OF LAW ON THE INTERPRETATION OF STATUTORY PROVISIONS

Now, it is settled law that commonsense must be applied in construing statutory provisions and the construction agreeable to justice and reason must be adopted – Ibrahim Vs Sheriff (2004) 14 NWLR (Pt 892) 43, Elabanjo Vs Dawodu (2006) 15 NWLR (Pt 1001) 76, Sobamowo Vs Elemuren (2008) 11 NWLR (Pt 1097) 12, R.T.E.A.N. Vs Ajewole (2016) LPELR-41271(CA). The position of the law in this respect is well set out in Maxwell on the Interpretation of Statutes, 12 Edition by Langan, 1976 at page 199 thus:
“In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available.”
PER ABIRU, J.C.A

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ondo State, sitting in Akure Judicial Division, delivered in Suit No AK/74/2014 by Honorable Justice Akintan-Osadebey on the 19th of August, 2016.

The Respondent was the claimant in the lower Court and her claims were for:
i. A declaration that the unilateral removal of the 3phase meter of the Respondent by the Appellants from her hotel in her absence and the replacement of it with a Maximum Demand meter without her consent is illegal and unlawful.
ii. An order of this Honorable Court compelling the Appellants to remove the Maximum Demand meter illegally installed in the hotel of the Respondent and replace same with two pre-paid 3phase meter as earlier agreed by them.
iii. A declaration that the disconnection of electricity supply to the Respondent’s hotel at besides Ala Quarters, Akure Ondo State is unlawful, null and void.
​iv. A declaration that the disconnection is a breach of the Appellants’ duty of care to the Respondent and a breach of fundamental principle of justice.
v. An order of perpetual injunction restraining the Appellants, their agents, staff and privies from further disconnecting electricity supply to the Respondent’s hotel at besides Ala Quarters, Akure Ondo State.
vi. An order compelling the Appellants to reconnect the electricity supply to the hotel of the Respondent at besides Ala Quarters, Akure Ondo State which was illegally disconnected by the Appellants on the 8th November, 2013 without any disconnection notice pending the determination of the case.
vii. An order compelling the Appellants to reconcile the account of the Respondent from the year 2011 to determine the position of the account of the Respondent with the Appellants.
viii. An order compelling the Appellants to pay the sum of N113,400.00 to the Respondent being the sum of money illegally collected from the Respondent as fixed charge outside the sum actually consumed by the Respondent without justification for the months of July, August, September, October and December, 2012 at N22,680.00 per month.
ix. The sum of N5 Million as general damages for untold hardship and melancholy suffered by the Respondent as a result of illegal change of the 3phase meter of the Respondent to Maximum Demand meter in the Respondent’s hotel and the unlawful disconnection of electricity supply to the Hotel of the Respondent.
x. The sum of N9.9 Million being loss of earnings suffered by the Respondent for 138 days from 8th of November, 2013 till the 26th of March, 2014 at N50,000.00 per day as a result of illegal disconnection of electricity supply to hotel of the Respondent by the Appellants.
xi. In the alternative, the sum of N5 Million being general damages for the loss of income and patronage suffered by the Respondent as a result of the illegal disconnection of electricity supply to the hotel by the Appellants since 8th November, 2013.
xii. The sum of N50,000.00 as loss of earning per day from 27th of March, 2014 till when electricity supply would be restored to the Respondent’s hotel.

​The case of the Respondent on the pleadings in support of the claims was that she has been a customer of the Appellants, formerly known as Power Holding Company of Nigeria, since she built her Top Quality Hotel and that her hotel used a 3phase meter without any complaint and that she regularly paid her electricity bills. It was her case that sometime in 2011, the Appellants unilaterally replaced her 3phase meter with a Maximum Demand meter, without her knowledge and consent, and that thereafter there was an exponential increase in the electricity bills sent to the hotel and the bills carried a fixed and additional charge of N22,680.00 monthly over and above the bill for the electricity actually consumed. It was her case that she protested the astronomical increase in the bill and the unexplained fixed charge throughout 2012 to no avail and that in January, 2013 she stopped paying the bills, so as to ginger the Appellants into reacting to her complaints.

​It was the case of the Respondent that her enquiries showed that the appropriate meter for her hotel was a three phase pre-paid meter and not a Maximum Demand meter which was meant for sawmills and manufacturing industries and that she wrote several letters to the Appellants to come and remove the Maximum Demand meter illegally installed in her hotel and replace it with a pre-paid meter and to refund all the extra charges and moneys paid on the astronomical bills. It was her case that on the 25th of January, 2013 a team of the Appellants’ engineers came to carry out an inspection of the premises and they admitted that the bills were indeed abnormal for her type of business and the Appellants promised in a letter dated 30th of January, 2013 to give her a pre-paid meter when available. It was her case that after waiting for six months without the replacement meter or change in the bills, she wrote a letter dated 13th of June, 2013 demanding again for the removal of the Maximum Demand meter and a refund of the monthly fixed charge of N22,680.00 she paid for the months of July, August, September, October and December, 2012.

​It was the case of the Respondent that in response to the letter, the officers of the first Appellant, including the second and third Appellants, visited the hotel to find a permanent solution to her agitations and that they promised that two three phase pre-paid meters will be brought and installed. It was her case that the Appellants did not bring the pre-paid meters as promised and that in her bill for August 2013, the fixed charge fee was increased from N22,680.00 to N34,020.00 and that none of the members of staff of the Appellants could explain to her what the fixed charge fee was for and that the quality of the electricity she received was low and supply was erratic. It was her case that on the 7th of November, 2013, the first Appellant took over the business of supplying electricity and the fixed charge fee was removed from her bill for November 2013, but no effort was made to address her past complaints for replacement of the meter and refund of the past fixed charge fees she had had to pay.

​It was her case that the Appellants disconnected electricity from her premises on the 8th of November, 2013 without having first served her with a disconnection notice and they refused to redress the said illegal disconnection despite her protestations and that the disconnection adversely affected her hotel business and made it lose lodgers and the hotel suffered substantial loss of money and patronage. It was her case that the hotel made a minimum profit of N50,000.00 a day and she thus suffered a loss of N6.9 Million for the 138 days from 8th of November 2013 to 26th of March, 2014 and that she continued to lose N50,000.00 for every day thereafter that the electricity was still disconnected. It was her case that she and her hotel suffered untold hardship and melancholy by the illegal change of her 3phase meter to a Maximum Demand meter and the unlawful disconnection of electricity from her hotel.

​The Appellants filed joint pleadings in response and their case was that Top Quality Hotel was installed with meters which were commensurate with its electricity load as assessed by their engineers and that the type of meter that a customer is expected to obtain and install is determined by customer’s electricity load. It was their case that the consent of a customer need not be obtained before being required to install the type of meter he deserves and that this is determined by the professional competence of their engineers, being the service provider, and taking congnisance of the regulations of the Nigerian Electricity Regulatory Commission. They denied sending excessive bills to the Respondent and it was their case that the bills reflected the actual electricity consumption of the Respondent based on the applicable tariff and that tariffs and types of meters installed are regulated by the Nigerian Electricity Regulatory Commission, a statutory body created by an Act of the National Assembly.

​It was the case of the Appellants that before determining the type of meter to be installed in any premises such as the Respondent’s, a technical audit of electrical installations is carried out by their engineers to determine the suitability of and type of meter to be installed. It was their case that following the technical audit they carried out of the Respondent’s premises, it was found out that a three phase meter would be inadequate to accommodate her load and hence the installation of the Maximum Demand meter and that all these facts were communicated to the Respondent through her Counsel. It was their case that when the Respondent persisted on having the Maximum Demand meter changed, she was advised to contact the Nigerian Electricity Regulatory Commission, who regulated tariff and meter installations, but that the Respondent did not do so. It was their case that they could not flout the regulations of the Nigerian Electricity Regulatory Commission to satisfy the request of the Respondent as that would be detrimental to their continuing to be in business of distribution of electricity.

​It was the case of the Appellants that when an audit of the electricity load of the premises of the Respondent was carried out on the 15th of January 2013 and determined, this was used in fixing the applicable tariff, in accordance with the Nigerian Electricity Regulatory Commission regulations and that the Respondent was informed that there was no pre-paid Maximum Demand meter suitable for her premises then available in Nigeria and that once one was available, it would be installed. It was their case that they had no obligation to connect and supply to customers who refuse, fail or neglect to pay their bills as and when due with electricity and that the Respondent’s hotel was disconnected for habitual indebtedness and that the Respondent owed the sum of N642,144.27 as at 4th of December, 2013. It was their case that the Respondent only made part payment on various past bills sent to her and insisted on not paying the fixed charge fees which were part of the bills sent to her regularly and that this was what led to the accumulated outstanding sum of N642,144.27 as at the date she was disconnected. It was their case that the reliefs sought by the Respondent, if granted, would have effect of making the Appellants violate the rules, regulations and directives of the Nigerian Electricity Regulatory Commission and have the potential of sending them out of business.

​The Respondent filed a reply to the statement of defence wherein she asserted that it was the Appellants that installed both the initial three phase meter and the Maximum Demand meter in her hotel and not the Nigerian Electricity Regulatory Commission and that the three phase meter was working perfectly without any complaint before it was replaced without her consent. It was her case that the excessive billing and which included the fixed charge fee of N22,680.00 a month and later N34,020.00 started after the replacement of her three phase meter with the Maximum Demand meter without her consent. It was her case that she had no business or dealings with the Nigerian Electricity Regulatory Commission and that it was not the Nigerian Electricity Regulatory Commission that unilaterally changed her meter and started sending her excessive bills with a fixed charge fee. It was her case that Maximum Demand meter was unilaterally installed by the Appellants in 2010 without having first carried out any audit of her premises and that it was not until January, 2013, by reason of her persistent protests, that the audit was carried out and that the replacement of her three phase meter was not based on necessity or load in the hotel.

The matter proceeded to trial and in the course of which the Respondent testified as the sole claimant witness and she tendered several documents in proof of her claims while the second Appellant also testified as the sole defence witness and tendered documents in proof of the defence of the Appellants. At the conclusion of the trial, Counsel to the parties filed and adopted their respective final written addresses and the lower Court entered judgment wherein it granted the first, second, third, fourth, seventh and eighth claims of the Respondent and awarded the sum of N500,000.00 in favour of the Respondent as general damages on the ninth claim and it dismissed the fifth, sixth, tenth, eleventh and twelfth claims thereof.

​The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 18th of November, 2016 and containing seven grounds of appeal against it. In arguing the appeal, Counsel to the Appellants filed an amended brief of arguments dated the 12th of March, 2018 on the 15th of March, 2018 and the brief of arguments was deemed properly filed and served on the 11th of March 2021. Counsel to the Respondent filed an amended brief of arguments dated the 21st of March, 2018 on the same date and the brief of arguments was similarly deemed properly filed and served on the 11th of March 2021. Counsel to the Appellant filed an amended reply brief of arguments dated 29th of March, 2019 on the 3rd of April, 2019 and this process was also deemed properly filed and served on the 11th of March 2021. At the hearing of the appeal, Counsel to the Appellants was absent and his two briefs of arguments were deemed argued and adopted, while Counsel to the Respondent was present and he relied on and adopted the arguments contained his brief of arguments as his submissions in the appeal.

Counsel to the Appellants distilled five issues for determination in the appeal and these were:
i. Whether the learned trial Judge was right in granting the third and fourth claims of the Respondent.
ii. Whether the learned trial Judge was right in holding that by the Appellants not tendering in evidence any document empowering it to charge fixed fee on bills, the Respondent was entitled to the eighth relief sought.
iii. Whether in the circumstances of this case, the learned trial Judge was right in compelling the Appellants to refund the fixed charges of N113,400.00 “as money illegally collected without justification” in July, August, September, October and December, 2012.
iv. Whether the learned trial Judge was right in holding that the Appellants breached their duty to the Respondent in determining the suitability of and/or replacing the 3 phase meters with Maximum Demand meters at the hotel in the absence of and without the prior consent of the Respondent.
v. Whether in the circumstance of this case the learned trial Judge was right in awarding N500,000.00 damages against the Appellants.

​Counsel argued the first three issues for determination together and he reproduced the third, fourth and eight reliefs and the relevant paragraphs of the pleadings of the Respondents relating to the reliefs and the averments in the statement of defence by which the Appellants joined issues with the Respondent on the reliefs. Counsel stated that from the state of the pleadings, the burden of proof was on the Respondent, who asserted in the affirmative, to prove that the fixed charges were excessive, arbitrary and illegal and he referred to the provisions of Section 133 of the Evidence Act and the cases of Reptico S. A. Geneva Vs Afribank (Nig) Plc (2013) 14 NWLR (Pt 1373) 172, Mechanic Vs Onisesin (1998) 2 NWLR (Pt 538) 446 and Lakanmi Vs Adene (2003) FWLR (Pt 163) 24. Counsel thereafter traversed through the evidence in chief of the Respondent in proof of her case and stated that not only did the Respondent fail to lead credible oral evidence to discharge the onus of proving her entitlement to the claims, also she merely dumped her documentary evidence on the Court without relating them to her claims and that it was thus not opened to the lower Court to look at the documents as was done in the judgment and he referred to the cases of Lumatron Nig Ltd Vs FCMB (2016) LPELR-41409(CA), Terab Vs Lawan (1992) 3 NWLR (Pt 231) 569 and Doukplolagha Vs Alamieyesigha (1999) 6 NWLR (Pt 607) 502.

Counsel stated that the learned trial Judge did not find or identify specific evidence of illegality, excessiveness or arbitrariness in the charges on any of the bills and that the bills showed meter readings and that the tariff was calculated in accordance with the approved tariff structure and fixed charge stipulated by law was imposed. Counsel stated that, the Respondent having failed to lead evidence of the excessive or arbitrary bill, she was not entitled to judgment and that her claims ought to have been dismissed and that the finding of the lower Court otherwise was perverse as it was based on the speculative and self-serving evidence of the Respondent. Counsel stated that the lower Court was in error in determining that the N22,680.00 paid by the Respondent as fixed charges for July, August, September, October and December, 2012 were illegal, as the Respondent led no evidence to support the finding and that the placing of the burden of proof on the Appellants to prove the legality of the charge was incorrect.

​Counsel made reference to the National Electricity Regulatory Commission, mentioned by the Appellants in their pleadings, and stated that it was established by Section 31 of the Electric Power Sector Reform Act, Cap E7, Laws of the Federation of Nigeria (Volume 5), an Act of the National Assembly. Counsel stated that the National Electricity Regulatory Commission published a Tariff Order as a Statutory Instrument and that the lower Court was bound by Section 122(2) of the Evidence Act to take judicial notice of the Order and he referred to the cases of Lakanmi Vs Adene supra and C.A.C. Vs Seven-Up Bottling Co (2017) 5 NWR (Pt 1558) 241. Counsel stated that the Tariff Order empowered the Appellants to charge a fixed charge of N22,680.00 for 2012 and N34,020.00 for 2013 in respect of certain types of building and that in her evidence, the defence witness classified the Respondent’s hotel as one of such types of building and the basis for the classification, tendered as exhibits, were not challenged under cross-examination. Counsel stated that had the lower Court applied the applicable law, it would have seen that the fixed charges included in the bills of the Respondent was normal and he urged the Court to resolve the first three issues for determination in favour of the Appellants.

​On the fourth issue for determination, Counsel stated that there was no contest between the parties that the Appellants were the distributors of power within Ondo State and that the Respondent was a consumer of power within Ondo State and that there was also no contest that sometime in 2011, the Appellants unilaterally removed the three phase meters in the hotel premises of the Respondent and replaced them with a Maximum Demand meter. Counsel stated that the question was whether the Appellants could so act without the consent of the Respondent and he referred to the Metering Code which he said that the National Electricity Regulatory Commission issued as a subsidiary legislation. Counsel highlighted clauses in the Metering Code which he said gave the Appellants the unilateral power to change the meter of any consumer of electricity under their area of operations and coverage. Counsel stated that finding of the lower Court that the Appellants could not change the three phase meters on the Respondent’s premises, and to in their stead, install a Maximum Demand meter, without the Respondent’s consent was perverse and that the duty of the Court is to interpret the law as it is and not to import into it what it did not intend and he referred to the case of Amadi Vs INEC (2013) 4 NWLR (Pt 1345) 595. Counsel urged the Court to resolve the fourth issue for determination in favour of the Appellants.

With regards to the fifth issue for determination, Counsel stated that the award of general damages was done for illegal disconnection of electricity and he referred to the arguments canvassed on issues one to four and stated that it was obvious therefrom that there was no basis for the award of the damages. Counsel stated that, further, there was evidence that the Respondent was indebted to the Appellants on the electricity bills as at the date of the disconnection and that the Appellants were thus within their right to disconnect electricity from her premises by the provisions of the Connection and Disconnection Procedure issued by the National Electricity Regulatory Commission. Counsel stated that the Respondent did not also prove the nature of the injury she suffered to warrant the grant of the general damages and that word “melancholy” was vague and was not legally tenable as a basis for the award of damages in a matter based on contract. Counsel stated that this was a perfect case for this Court to interfere with the award of damages made by the lower Court and he referred to the cases of Yorkshire Electricity Board Vs Naylor (1968) AC 529, Kerry Vs Carter (1969) 3 All ER 723 and Obere Vs Board of Management, Eku Baptist Hospital (1978) 6-7 SC 15. Counsel urged the Court to also resolve the issue for determination in favour of the Appellants.

Counsel concluded his arguments by praying the Court to find merit in the appeal and to allow same, and to set aside the judgment of the lower Court.

In his response, Counsel to the Respondent distilled two issues for determination in the appeal and these were:
i. Whether the Appellants breached their duty to the Respondent in determining the suitability of and/or replacing the 3phase meters with Maximum Demand meters at the hotel or disconnecting the electricity supply.
ii. Whether the trial Court was in error to have granted the reliefs of the Respondent.

​In arguing the first issue for determination, Counsel to the Respondent noted that the case of the Respondent on the pleadings was that she was using a 3phase meter in her hotel premises until the year 2011 when the Appellants entered into the premises without her knowledge and unilaterally replaced it with a Maximum Demand meter and this led to a sudden upsurge in the bills charged, and it included an unexplained fixed charge of N22,680.00 for the months of July, August, September, October and December, 2012, totaling N113,400.00 which she paid. Counsel noted that despite the repeated protestations of the Respondent, the Appellants did nothing to rectify the situation and rather they disconnected electricity from the hotel on the 8th of November, 2013. Counsel stated that the complaints of the Appellant before the lower Court was not that the Appellants unilaterally replaced her meter without her consent, as emphasized by Counsel to the Appellants in his brief of arguments, but that the meter was replaced without her being first informed and without the condition precedent for effecting such replacement being fulfilled, and he reproduced a portion of the pleadings of the Respondent.

​Counsel then referred to the provisions of the Metering Code, relied upon by Counsel to the Appellants in his arguments, and stated that, by Clause 2.1.6. thereof, the Appellants were obligated to notify the Respondent in advance of any intended replacement of the meter, except the replacement is provided as part of urgent metering services. Counsel stated that it was the case of the Respondent that she was never informed or notified of the intention to replace her three phase meter with the Maximum Demand meter and that the Appellants admitted in their pleadings and in the evidence of their witness that they carried out the replacement unilaterally and it was not their case that they did so as part of urgent metering services. Counsel stated that the Appellants did not also contest the case of the Respondent that her three phase meter was working perfectly, without any complaints from her, with moderate and reasonable charges before it was unilaterally changed by them with the Maximum Demand meter, meant for sawmills and manufacturing industries and factories and not for hotels, and which led to sudden increase in her bills. Counsel stated that the witness of the Appellants admitted under cross-examination that hotels do not come within the type of businesses requiring Maximum Demand meters.

Counsel stated that it was also the case of the Respondent that the Appellants did not carry out an audit or assessment of the energy requirements of the hotel before replacing her three phase meter with the Maximum Demand meter and that the defence witness admitted in her evidence that the carrying out of such audit was a condition precedent to the determination by their engineers of the meter suitable for a premises. Counsel stated that it was an agreed fact between the parties that the audit of the hotel’s energy requirement was carried out on the 25th of January, 2013, following the persistent complaints of the Respondent, and this was long after the meter was changed in 2011. Counsel stated that the finding of the lower Court upholding the case of the Respondent that the Appellants breached their duty to her in changing her meter was supported by the pleading and evidence led and it is thus not perverse and he referred to the case of Echere Vs Ezike (2006) 5 SCNJ 170.

​Counsel stated that it was also not in contest between the parties that electricity supply was disconnected from the premises of the Respondent on the 8th of November, 2013, without the Respondent having been first served with a disconnection notice. Counsel stated that this fact was pleaded and led in evidence by the Respondent and it was not controverted by the Appellants and the fact of non-service of disconnection notice on the Respondent, before the disconnection was done, was admitted by the defence witness in her evidence. Counsel stated that by Regulation 5 of the Connection and Disconnection Procedure for Electricity Services published by the Nigerian Electricity Regulatory Commission, 2007, the Appellants were obligated to serve the Respondent with a disconnection notice before disconnecting her premises. Counsel stated that the failure of the Appellants to follow the procedure laid down by the statute governing their operations was fatal to their defence because such procedure, and no other, must be followed in carrying out their duties and he referred to the case of CCB Vs A.G., Anambra (1992) 10 SCNJ 137.

​Counsel stated that where a party owes a duty that is regulated by statute towards another party, there exists a contract and the party who owes the duty is expected to exercise reasonable care and skill in ensuring that such a duty is not breached and he referred to the cases of Diamond Bank Plc Vs Partnership Investment Co Ltd (2009) 12 SCNJ 322 and UBA Plc Vs Ogochukwu (2016) All FWLR (Pt 825) 256. Counsel urged the Court to resolve the first issue for determination in favour of the Respondent.

On the second issue for determination, Counsel reproduced the prayers granted by the lower Court and stated that the grant of the third and fourth reliefs was clearly supported by the pleadings of the parties and the evidence led in proof thereof and he recanted and adopted the arguments he proffered on the first issue for determination. Counsel stated that matters before a trial Court are decided on the basis of the pleadings and evidence led by the parties and that where the parties are agreed on some facts, the facts are deemed established without further proof and he referred to the cases of IBWA Vs Imano Ltd (2001) 3 SCNJ 160, A.G. Abia State Vs A.G. Federation (2002) 3 SCNJ 158 and Ezechukwu Vs Onwuka (2016) All FWLR (Pt 824) 148. Counsel stated that the duty before a trial Court in civil matters is to decide on the balance of probabilities and he referred to the cases of Adeyeye Vs Ajiboye (1987) 3 NWLR (Pt 61) 432 and Mogaji Vs Odofin (1978) 4 SC 65 on the laid down procedure to be used by the trial Court in evaluation of evidence led by the parties. Counsel urged the Court to uphold the granting of the third and fourth prayers of the Respondent by the lower Court.

With respect to the grant of the eighth relief sought by the Respondent for the sum of N113,400.00 being the fixed charge fee paid the Respondent for five months, Counsel referred to the averments in the pleadings of the Respondent in respect of the claim and conceded that the onus was on the Respondent to prove the averments, but noted that onus of proof was not static and he referred to the cases of Arum Vs Nwobodo (2004) 9 NWLR (Pt 878) 411, Imonikhe Vs Unity Bank Plc (2011) All FWLR (Pt 586) 423 and Sanusi Vs Ameyogun (1992) 4 SCNJ 177. Counsel stated that the Respondent led credible evidence to prove that she paid the sum claimed as fixed charges for the five months, and that it was outside the fee for the energy consumed in her premises and that the Appellant did not deny that the fixed charge fee was added to the bill of the Respondent by them and that the Respondent paid the fees for the five months. Counsel stated that the Respondent led evidence that the increase in the bill occurred after the wrongful replacement of her three phase meter with a Maximum Demand meter, and that this fact was not controverted by the Appellants.

​Counsel stated that the electricity bills tendered by the Respondent were her electricity bills before and after the replacement of meter, to prove the upsurge in the bill and to show the fixed charge fee included therein after the replacement of her meter and the fact that she paid the bills. Counsel stated that the defence witness admitted that the Respondent paid the bills, including the fixed charge, for the five months, and that the lower Court examined and drew the necessary inferences from the bills tendered in evidence, as it was entitled and empowered to do, in coming to the conclusion that the Respondent was entitled to a refund of the sum paid and he referred to the cases of Odum Vs Chibueze (2016) All FWLR (Pt 848) 714, Olaniyi Vs Olayioye (2014) All FWLR (Pt 745) 363. Counsel stated that the response of the Appellants was that by a Regulation made by the National Electricity Regulatory Commission they were empowered to charge the fixed charges as reflected in the bill of the Respondent, but that he had read the Regulation in question and nowhere therein were the Appellants authorized to charge the fixed charges fee over and above the actual electricity consumed by a customer. Counsel stated that words used in a statute should be given their plain and ordinary meaning and he referred to the case of Babatunde v. Pan Atlantic Shipping Ltd (2007) 30 NSCQR (Pt 11) 714. Counsel urged the Court to uphold the award of the refund of the sum of N113,400.00 to the Respondent.

​On the award of the sum of N500,000.00 as general damages, Counsel to the Respondent again traversed through the case of the Respondent on the pleadings and in the evidence and adopted the arguments proffered under the first issue for determination and stated that the Respondent made out a credible case that the disconnection of her premises to electricity was wrongful and a breach of duty. Counsel stated that the Respondent also made out a case on the nature of the injury that her business suffered by reason of the disconnection of electricity and she thus discharged the onus of proof on her and that this entitled her to the award of damages and that the sum of N500,000.00 was reasonable in the circumstances and he referred to the case of Jegede Vs Oleshin (2016) All FWLR (Pt 847) 555, UBA Plc Vs Ogochukwu supra. Counsel stated that award of general damages is discretionary, but it is a discretion that must be exercised judiciously and judicially and that where the discretion is properly exercised, as in the instant case, this Court has no business interfering with the award and he referred to the cases of Ogundipe Vs Nigeria Telecommunications Ltd (2016) All FWLR (Pt 817) 613 and Isezuo Vs Sanni (2014) All FWLR (Pt 756) 522. Counsel urged the Court to uphold the award of general damages and to resolve the second issue for determination in favour of the Respondent.

Counsel concluded his arguments by praying the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.

​The records of appeal shows that the lower Court considered the case of the parties on their respective pleadings and that it evaluated the evidence, both oral and documentary, led by the witnesses of the parties and it weighed the case of the Respondent against the case of the Appellants and found that the Respondent made out a case that preponderated over that of the Appellants and it entered judgment in favour of the Respondent. The lower Court made the following orders:
i. This Court hereby declares that the unilateral removal of the 3phase meter of the Respondent by the Appellants from her hotel in her absence and the replacement of it with a Maximum Demand meter without her consent is illegal and unlawful.
ii. This Court hereby compels the Appellants to remove the Maximum Demand meter illegally installed in the hotel of the Respondent and replace same with two pre-paid 3phase meters as earlier agreed by them.
iii. This Court hereby declares that the disconnection of electricity supply to the Respondent’s hotel at besides Ala Quarters, Akure Ondo State is unlawful, null and void.
iv. This Court hereby declares that the disconnection is a breach of the Appellants’ duty of care to the Respondent and a breach of fundamental principle of justice.
v. This Court hereby grants an order compelling the Appellants to reconcile the account of the Respondent from the year 2011 to determine the position of the account of the Respondent with the Appellants.
vi. This Court hereby grants an order compelling the Appellants to pay the sum of N113,400.00 to the Respondent being the sum of money illegally collected from the Respondent as fixed charge outside the sum actually consumed by the Respondent without justification for July, August, September, October and December, 2012 at N22,680.00 per month.
vii. This Court hereby grants the sum of N500,000.00 as general damages for untold hardship and melancholy suffered by the Respondent as a result of illegal change of the 3phase meter of the Respondent to Maximum Demand meter in the Respondent’s hotel and the unlawful disconnection of electricity supply to the Hotel of the Respondent.

​The gravamen of all the contentions of the Counsel to the Appellants in this appeal is that the lower Court was in total error when it found that the Respondent made out a credible case on the pleadings and in the evidence led to be entitled to judgment and to the grant of any of the above reliefs.

​It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. An appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Faleye Vs Dada (2016) LPELR-40297(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, TSKJ (Nig) Ltd Vs Otochem (Nig) Ltd (2018) 11 NWLR (Pt 1630) 330, Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Mohammed Vs State (2020) LPELR-52451(SC).

Thus, the question calling for resolution in this appeal is – whether the findings made and the conclusions reached by the lower Court in the judgment were perverse? Now, perverse simply means persistent in error, different from what is reasonable or required, against weight of evidence. A decision may be perverse where the trial Judge took into account, matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious – Atolagbe Vs Shorun (1985) LPELR592(SC). A perverse finding is a finding of facts which is merely speculative and not based on any evidence before the Court. A perverse finding is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial judge – Overseas Construction Company Nig. Ltd. Vs Creek Enterprises (Nig.) Ltd (1985) 3 NWLR (Pt. 13) 407, Iwuoha Vs NIPOST Ltd (2003) LPELR-1569(SC).

​It is elementary that in an action predicated on pleadings, the starting point for the consideration of the case of the parties must be the pleadings. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them – Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt 1403) 377 at 418A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G.

​Dovetailing from this, is the principle that where a fact in the statement of claim is admitted in the statement of defence, either because it is expressly admitted or because it is impliedly admitted by the omission of the defendant to traverse it expressly, it ceases to be in controversy between the parties and no evidence is required or admitted to prove such fact; and accordingly, only those facts stated in the statement of claim which are expressly traversed in the defence will remain in issue between them. In other words, when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. When a fact pleaded by the claimant is admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted – Onobruchere & Anor Vs Esegine & Anor (1986) 2 SC 385 at 397, Bunge Vs Governor, Rivers State (2006) 12 NWLR (Pt 995) 573 at 599-600 B-A, and Akande Vs Adisa (2012) 15 NWLR (Pt 1324) 538.

Similarly, it is settled law that where evidence led by a party in a trial on a fact in issue is not challenged, controverted, contested or disparaged under cross-examination and neither is it incredible or unbelievable, such evidence can be believed and relied upon by a trial Court in making findings – Nigeria Construction Ltd Vs Okugbeni (1987) 4 NWLR (Pt 67) 89, Ikuomola Vs Oniwaya (1990) 4 NWLR (Pt 146) 617, Lagos State Development & Property Corporation Vs Nigeria Land & Sea Foods Ltd (1992) 5 NWLR (Pt 244) 653, Eyo Vs Onuoha (2011) 3 SCNJ 302. 

Also where a fact in issue is expressly admitted by the witness of the other party either under cross-examination or otherwise, it is deemed established and such a fact can be used by a trial Court to make findings – Alao Vs Kure (2000) LPELR-10467(CA), Okemiri Vs Chukwueke (2016) LPELR-40983(CA).

​Applying these principles to the facts as pleaded and led in evidence by the parties, certain facts are not in dispute in this matter. It was not in dispute that the Appellants are the designated distributor of electricity in Ondo State and that the Respondent is one of the consumers of electricity in Ondo State through her premises, Top Quality Hotel. It was not in dispute that the Respondent had always had electricity supplied to her premises and that she used a three phase meter from inception without any complaints or protestations to the Appellants and she regularly paid her electricity bills. It was not in dispute that in the year 2011, the Appellants, without any notification to, knowledge and consent of the Respondent entered into her premises, removed her three phase meter and replaced it with a Maximum Demand Meter. It was not in dispute that the removal and replacement of the meter by the Appellants was not done by reason of an emergency and it was done without the Appellants first carrying out a technical audit of the electricity needs of the premises of the Respondent and ascertaining the inadequacy of the three phase meter and the need to upgrade same to a Maximum Demand meter and without holding any discussion with the Respondent to discuss the electricity needs and requirements of the premises.

The Appellants contended in the lower Court, and more elaborately in this appeal, that by the provisions of the Metering Code, a subsidiary legislation issued by the National Electricity Regulatory Commission, pursuant to its power under Section 96 of the Electric Power Reform Act, an Act of the National Assembly, it was empowered to install, verify, operate, maintain, inspect and replace meters in the premises of its consumers which do not meet the performance, functional and technical requirements and set out applicable standards and to carry out periodic, random and unannounced inspection and/or testing of meters for the purpose of ascertaining whether the meter complies with the set out requirements and standards. The Metering Code talks about the carrying out of a technical audit of the requirements of a premises and the Appellants admitted in paragraph 6 of their pleadings that “before determining the type of meter to be installed in any premises such as that of the claimant, a technical audit of electrical installations is carried out to enable the engineers and technicians of the 1st defendant determine the suitability of and type of meter to be installed.” The assertion was re-echoed by the defence witness in her evidence. Counsel to the Appellants contended that there was nothing in the Metering Code that suggests that the replacement of meters should be done with the knowledge and consent of the consumer.

Now, it is settled law that commonsense must be applied in construing statutory provisions and the construction agreeable to justice and reason must be adopted – Ibrahim Vs Sheriff (2004) 14 NWLR (Pt 892) 43, Elabanjo Vs Dawodu (2006) 15 NWLR (Pt 1001) 76, Sobamowo Vs Elemuren (2008) 11 NWLR (Pt 1097) 12, R.T.E.A.N. Vs Ajewole (2016) LPELR-41271(CA). The position of the law in this respect is well set out in Maxwell on the Interpretation of Statutes, 12 Edition by Langan, 1976 at page 199 thus:
“In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available.”
Thus, where words used in an enactment are open to two interpretations and one construction will lead to an absurdity while the other would give effect to what commonsense shows was obviously intended, the construction that accords with commonsense must be applied –Buhari Vs Obasanjo (2005) 13 NWLR (Pt 941) 1 at 281D, Onyedebelu Vs Nwaneri (2008) LPELR-4793(CA).

​Where a statute empowers a body to carry out a technical audit of the electricity needs of premises to determine the electricity needs and requirements of the premises, in coming to a decision of whether or not to replace meters in the premises of its consumers which do not meet the performance, functional and technical requirements, it cannot be interpreted as granting that body unlimited, uncontrolled and uninhibited access to the premises of each and every of its customers to carry out technical audits and replace meters without notification to and the knowledge and consent of the concerned consumer. This will amount to interpreting the statute as legislating and sanctioning unbridled acts of trespass on the part of the body in going to the premises of its customers as well as a right to breach the constitutionally guaranteed fundamental right to privacy of its customers, and this cannot have been the intention of the makers of the statutory provisions. In Attorney General, Nasarawa State Vs Attorney General, Plateau State (2012) 10 NWLR (Pt 1309) 419, the Supreme Court stated that no reasonable Court or Tribunal will impute any absurd or unjust consequences to a Statute or imply in a Statute consequence that will lead to absurdity or injustice.

​The logical and commonsensical interpretation, and which accords with reason and rules of decency in any decent society, is that the body is expected to liase with and seek the cooperation of the customers in carrying out the technical audit and to explain to the customer the outcome of the audit and the need to replace the meter, before proceeding to replace the meter. As stated earlier, the Appellants did not carry out a technical audit of the electrical needs and requirements of the premises of the Respondent before replacing the meter in 2011 and neither did they liase with and/or notify the Respondent before they entered into her premises to replace her three phase meter with a Maximum Demand meter. The exercise of the power to replace meters carried out in the premises of the Respondent by the Appellants was thus done arbitrarily and it is settled law that an arbitrary exercise of statutory power is wrongful and should be condemned by the Court – Elephant Group Plc Vs National Security Adviser & Anr (2018) LPELR-45528 CA, State Security Service Vs Incorporated Trustees of Peace Corps of Nigeria (2019) LPELR-47274(CA). 

The findings made by the lower Court and the grant of the first and second reliefs sought by the Respondent cannot be faulted.

​Going further, the Respondent pleaded and led evidence that prior to the replacement of the three phase meter of the Respondent by the Appellant, there was no charge described as fixed charge in the electricity bills of the Respondent and that the bills only presented the cost of the energy consumed on the premises during the billing period. The Respondent also pleaded and led evidence that subsequent to the replacement of her three phase meter with the Maximum Demand meter in 2011, an additional charge described as fixed charge in the sum of N22,680.00 was added to her bills throughout 2012 and that this was increased to N34,020.00 in the bills for 2013. The electricity bills were tendered as Exhibits P11 to P11(d) as P12 to P12(g). The case of the Respondent was not challenged, contested or disparaged under cross-examination and the Appellants led no contrary evidence.

​The Respondent contended that the addition of the fixed charge fee to her bills was arbitrary and wrongful. It is not in contest that the addition of the fixed charge to the bill of the Respondent occurred after and was a product of the replacement of her three phase meter with the Maximum Demand meter. In view of the finding of the lower Court, as affirmed by this Court, that the manner of the replacement of the meter was an arbitrary use of power by the Appellants and was thus wrongful, it follows that the inclusion of the fixed charge fee to the bill of the Respondent also qualifies as arbitrary and wrongful. The Respondent claimed for a refund of the fixed charge fees she paid for the months of July, August, September, October and December 2012 at the rate of N22,680.00 per month and totaling N113,400.00. The defence witness admitted under cross-examination that the Respondent indeed paid the fixed charge fees for those months. The Respondent is entitled to a refund of the sums paid. The order of the lower Court directing a refund of the sum in the sixth relief granted cannot be faulted.

​Again, it was agreed between the Counsel to the parties in this appeal that Regulation 5 of the Connection and Disconnection Procedure for Electricity Services 2007 issued by the National Electricity Regulation Commission governs disconnection of electricity for non-payment of electricity bill. The Regulation 5 reads thus:
“(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.”

By the Regulation, the Appellants were obligated to serve the Respondent with a written warning, which the Respondent called a disconnection notice, that the electricity supply shall be disconnected if payment is not made by the payment date before proceeding to disconnect her electricity supply. It was the case of the Respondent both on her pleadings and in her evidence that she was not served with any written warning or disconnection notice by the Appellants before the disconnection of electricity supply to her premises on the 8th of November, 2013, and her case was not challenged, contested or disparaged under cross-examination. The defence witness admitted under cross-examination that no disconnection notice was attached to the last letter they exchanged with the Respondents, Exhibit P10, before the disconnection was effected. The witness did not tender or refer to any such disconnection notice or written warning given to the Respondent.

​Counsel to the Appellants argued in his amended Reply brief of arguments that the bill for October, 2013, Exhibit P12(f), which contained the outstanding unpaid arrears of electricity bills by the Respondent together with the current charge and which stated on its face the due date for payment as the 15th of October, 2013 amounted to sufficient written warning or disconnection notice and that when the Respondent failed to pay the bill by the 8th of November, 2013, the Appellants were within their right to disconnect the electricity supply to her premises. With respect to Counsel to the Appellants, this contention is very bogus and is a far-fetched from the unambiguous provisions of the Regulation.

​It is very rudimentary that in interpreting the provisions of a statute, a Court must consider the words used in order to discover their ordinary meaning, and the intention of the legislature and where there is no ambiguity in the words used, then it behooves the Court to give them their ordinary meaning as they relate to the subject matter – Merill Guaranty Savings & Loans Ltd Vs Worldgate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Gbagbarigha vs Toruemi (2013) 6 NWLR (Pt 1350) 289, Commissioner for Education, Imo State Vs Amadi (2013) 13 NWLR (Pt 1370) 133. It is clear from the wordings of the Regulation that the written warning/disconnection notice is a separate document, in addition to the forwarding of the bill for payment stipulating the amount due and the payment date. Moreover, it was not stated on the face of Exhibit P12(f) that failure to settle the outstanding bills on the due date would attract a disconnection of electricity supply.

​It is obvious that the Appellants failed to serve the Respondent with a written warning and/or a disconnection notice before proceeding to disconnect electricity supply to her premises on the 8th of November, 2013. A further reading of the Regulation for the Connection and Disconnection Procedure for Electricity Services 2007 shows that in its Regulation 11, it criminalized the flouting of the Regulation by a Distribution Company in disconnecting electricity from the premises of a customer and it stipulated a penalty therefor, thus making such disconnection illegal, null and void. The declaration that the disconnection of electricity supply was unlawful and wrongful and was a breach of the Appellants’ duty of care to the Respondent in reliefs three and four granted by the lower Court cannot be impugned.

The lower Court awarded the Respondent the sum of N500,000.00 as general damages for untold hardship and melancholy suffered by the Respondent as a result of illegal change of the 3phase meter of the Respondent to Maximum Demand meter in the Respondent’s hotel and the unlawful disconnection of electricity supply to the Hotel of the Respondent. Counsel to the Appellant railed against and berated the lower Court for making the award. 

Now, it is settled, as a general principle, that an appellate Court will not interfere with an award of damages by a trial Court simply because if faced with a similar situation and circumstance, it would have awarded a different amount.
​An appellate Court will only interfere where it is shown that (i) the trial Court acted under a mistake of law or upon some wrong principle of law; or (ii) the award is arbitrary; or (iii) the amount awarded is so extremely high or low as to make it, in the judgment of the appellate Court, an entirely erroneous estimate of the damages to which the plaintiff is entitled; or (iv) there was a wrong exercise of discretion in the award; or (v) the trial Court acted in disregard of principles of law; or (vi) the trial Court acted under a misapprehension of fact; or (vii) the trial Court took into account irrelevant matters or did not take account of relevant matter; or (viii) injustice will result if the appellate Court does not interfere –Usong Vs Hanseatic International Ltd (2009) 11 NWLR (Pt 1153) 522, Oduwole Vs West (2010) 10 NWLR (Pt 1203) 598, Guardian Newspapers Ltd Vs Ajeh (2011) 10 NWLR (Pt 1256) 574, Union Bank of Nigeria Plc Vs Chimaeze (2014) 9 NWLR (Pt 1411) 166. The onus is on the appellant seeking the interference of the appellate Court in the award of damages to establish any one of these factors to justify such interference – Nigerian Bottling Co. Ltd Vs Ubani (2014) 4 NWLR (Pt 1398) 421, Borno State Urban Planning & Development Board Vs Bams Investment (Nig) Ltd (2017) LPELR-43290(CA).

​The complaint of the Appellants against the award of damages was predicated on the assertion that the Respondents failed to make out a credible case to sustain her claims for wrongful change of her meter and unlawful disconnection of electricity supply to her premises. With the finding that the decision of the lower Court holding that the Respondent made out such a credible case is unassailable, the “wind is taken out of the sail” of this complaint of the Appellants. 

Damages may be defined as the disadvantage which is suffered by a person as a result of the act or default of another. It may also be defined as a loss or deterioration caused by the negligence, design or accident of one person to another, in respect of the latter’s person or property. Damages are the pecuniary recompense given by the process of law to a person for the actionable wrong that another has done. It is compensation in money for loss or damage.
Thus, an injury produces a right in them who have suffered any damage by it to demand reparation of such damage from the authors of the injury. In other words, damages is a pecuniary compensation or indemnity which may be recovered in the Courts by any person who has suffered loss, detriment or injury, whether to his person, property, or right through the unlawful act or omission or negligence of another – see generally Ijebu Ode Local Government Area Vs Adedeji Balogun & Co Ltd (1991) 1 NWLR (Pt 166) 136, Gamboruma Vs Borno (1997) 3 NWLR (Pt 495) 530, Yakubu Vs Ministry of Works and Transport, Adamawa State (2006) 10 NWLR (Pt 989) 513, Tanko Vs Mai-Waka (2010) 1 NWLR (Pt 1176) 468, Kopek Construction Ltd Vs Ekisola (2010) 3 NWLR (Pt 1182) 61, Aluminium Manufacturing Co. Nigeria Ltd Vs Volkswagen of Nigeria Ltd (2010) 7 NWLR (Pt 1192) 97.

With the findings made by the lower Court, and which have been sanctioned by this Court, the Respondent was entitled to an award of damages. The Appellants did not complain about the damages awarded on any other ground other than that the Respondent did not make out a case to be entitled to damages. This Court thus has no business tampering with the award of damages made in favour of the Respondent by the lower Court in the circumstances.

​In his arguments, Counsel to the Appellants was focused on and appeared carried away by the specific words used by the Respondent in making his claims, such as illegal, excessive, without justification, without consent, etc, rather than having a general overview of the totality of the case of the Respondent as complaining against improper, arbitrary and inequitable conduct of the Appellants. Counsel thus dissipated energy looking for specific proof of illegality, excessiveness, lack of justification in the case of the Respondent and overlooked the clear and visible proof of impropriety, unfairness, arbitrariness and lack of equity on the part of the Appellants that were replete in the unchallenged facts in the case and in the evidence of the Respondent and of the defence witness.

It is trite law that in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party – Onyiorah Vs Onyiorah (2019) 15 NWLR (Pt 1695) 227, Adama Vs K.S.H.A (2019) 16 NWLR (Pt 1699) 501, Multichoice (Nig) Ltd Vs Musical Collecting Society of Nigeria Ltd. Gte (2020) 13 NWLR 1742) 415, Anyalewechi Vs Lufthansa German Airlines (2021) LPELR-55213(CA), Ostankino Shipping Co. Ltd Vs The Owners, The MT Bata (2022) 3 NWLR 9Pt 1817) 367. Perhaps, if Counsel to the Appellants had followed this advice, he would have appreciated and seen the wisdom in the findings made by the lower Court much better.

In conclusion, this Court sees no iota of merit in this appeal and same is hereby dismissed. The judgment of the High Court of Ondo State, sitting in Akure Judicial Division, delivered in Suit No AK/74/2014 by Honorable Justice Akintan-Osadebey on the 19th of August, 2016 is affirmed. The Respondents is awarded the costs of this appeal assessed at N200,000.00. These shall be the orders of this Court.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft, the leading judgment prepared by my learned brother, HABEEB ADEWALE O. ABIRU, JCA, in this appeal.

My learned brother has meticulously dealt with all the issues formulated by the parties for the determination of the instant appeal and I agree with the conclusions reached by his Lordship on the said issues.

I do not have anything to add by way of contribution or otherwise to the leading judgment in which the appeal has in my considered view been rightly found to be lacking in merit.

​Accordingly, I too find the appeal to be lacking in merit and I hereby dismiss the same. The judgment of the lower Court delivered on 19/8/2016, is affirmed. I abide by the order relating to costs made by his lordship in the leading judgment.

YUSUF ALHAJI BASHIR, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my noble Lord, HABEEB ADEWALE O. ABIRU, JCA.

I agree entirely with his resolution of the issues for determination in this appeal which invariably goes against the Appellant, thereby rendering the entire appeal unmeritorious. Same must be and it is hereby dismissed, The judgment of the lower Court in Suit No: AK/74/2014 delivered on 19th day of August, 2016 is hereby affirmed.

​I abide by all other orders made by his lordship Abiru including the cost of N200,000 awarded in favour of the Respondents.

Appearances:

…For Appellant(s)

Mr. L. K. Dare For Respondent(s)