S.A. AMADI & ORS v. ENGINEER EFFIONG A. ESSIEN
(1993)LCN/0146(CA)
In The Court of Appeal of Nigeria
Monday, the 6th day of December, 1993
Case Number: CA/E/67/92
RATIO
APPEAL: REQUIRED NATURE OF ISSUES FOR DETERMINATION IN AN APPEAL
The Supreme Court and this Court, have said time without number that issues for determination should be concisely and precisely formulated. They should directly encompass the grounds of appeal. Issues which are unusually loaded give so much problem not only to the Court but also to the adverse party. And that is not helpful to the entire appellate process in its effort to decide the appeal one way or the other. PER NIKI TOBI, J.C.A.
APPEAL: NEED FOR ISSUES FOR DETERMINATION TO BE PRECISE
As opposed to the issues of the appellants, counsel for the respondent was precise in his formation of issues. They are three: “(1) Whether the learned trial Judge was right in entering judgment for the plaintiff notwithstanding the Provisions of Section 12 of the National Electric Power Authority Act Cap. 256, Laws of the Federal Republic of Nigeria. (2) Whether the plaintiff, the occupier of the premises could by himself and without joining his landlord, the registered consumer, maintain an action against the defendants for losses suffered by the plaintiff arising from the act or conduct of the defendants. (3) Whether on the totality of the evidence before the Court it was proper to enter judgment for the plaintiff.” That is my understanding of issues. That is the requirement of the law as decided by the cases. See Archbode Engineering Limited v. Water Resources Hydro Technique Wassertechinik & Ors (1985)3 NWLR (Pt. 12) 300; Amachree v. I.C.C Ltd (1989) 4 NWLR (Pt. 118) 686; Gaamstac Eng. Ltd v. F.C.D.A. (1988) 4 NWLR (Pt. 88) 296; Latunde v. Lajinjin (1989) 3 NWLR (Pt.108) 177; Fawehinmi v. N.B.A. (No.1) (1989) 2 NWLR (Pt. 105) 494. PER NIKI TOBI, J.C.A.
APPEAL: NATURE OF A BRIEF OF ARGUMENT
A brief is not a forum for telling the story of the parties. It is not a forum for narrating the facts of the case in great detail. The facts could be narrated with precision and only as they are germane to the case before the Court of Appeal and the arguments advanced in the brief. Facts which are remote from the issues formulated could be avoided for the good of both the parties and the Court. And what is more, it is not really necessary to itemise in the way learned counsel did, under items (3) and (4) “The plaintiffs case” and “The defendants Case” respectively. Another irregular arrangement in the brief is the itemization of each ground and arguing it specifically in the brief. While the point is conceded that a brief cannot avoid addressing the grounds of appeal at the end of the day, it is the practice for briefs to argue the issues. And since the issues are formulated directly from the grounds of appeal the brief finally addresses the grounds. After all, the main function of an issue is to identify, edify, reflect and substantiate the grounds of appeal. An issue can be formulated to cover or encompass one or more grounds; and as long as the brief argues the issues, it ultimately touches the grounds. As the grounds of appeal dominate the Notice of Appeal, as the reason or basis of the appeal, so also are the issues as they relate to the brief. Grounds of appeal have no special status in a brief in the way learned counsel for the appellants has bestowed on them. The best that can be used of grounds of appeal, if necessary, is to show which of them have been dealt with in the issue or issues already argued. The Supreme Court and this court have dealt with these matters in the past, so much so that counsel ought not to be in trouble. See Dibiamaka and Ors v. Prince Osakwe & Ors. (1989) 3 NWLR (Pt. 107) 101; Adamu v. Ikharo (1988) 4 NWLR (Pt. 89) 474; Eyutchae v. N.T.A. (1986) 5 NWLR (Pt. 41) 395. PER NIKI TOBI, J.C.A.
JUSTICES:
OKAY ACHIKE Justice of The Court of Appeal of Nigeria
NIKI TOBI Justice of The Court of Appeal of Nigeria
SUNDAY AKINOLA AKINTAN Justice of The Court of Appeal of Nigeria
Between
- MR. S.A. AMADI
2. MR. G. SOWOLE
3. MR. JOSEPH I. AHAMIOJE
4. MR. PATRICK UBAHA
S. MR. OKON NYONG
6. NATIONAL ELECTRIC POWER AUTHORITY Appellant(s)
AND
ENGINEER EFFIONG A. ESSIEN
(Trading and doing business under the name and style of Effassien International Enterprises) Respondent(s)
NIKI TOBI, J.C.A. (Delivering the Leading Judgment): The respondent, an Engineer by profession, as plaintiff claimed against the appellants as defendants in the court below, jointly and severally for:
“(A) Payment of One Million Naira by the defendants to the plaintiff for damages for the plaintiff’s generators, wires, metres, plates, as-
sorted drinks, tables, light accessories, and for the confusion, embarrassment, tumults and insults exhibited to the plaintiff’s customers, the entire public and the dispute caused to the plaintiffs restaurants/clubs at No. 13 Obia Oko Street, off NEPA line, Uyo by the defendants on or about February, 1985 to the plaintiff in the eyes of witnesses and Nigerian (sic) Police Officials.
(B) An order for the defendants to immediately install metre and supply electricity to the plaintiff’s restaurant/club at No. 13 Obia Oko Street, off NEPA line, Uyo in which the defendants disconnected unjustifiably and for which the plaintiff’s landlord paid for as and when due”.
The evidence of the respondent is fairly long and complex. I will try to summarise it in ‘scenes’, to present a flowing story. On 6th February, 1985, respondent returned from the hospital where he went to visit his new born baby. A coil of wire blocked his access road to the compound. It is No. 13 Calabar Street, Uyo where he does his business and also lives. He also sighted two technicians of the 6th appellant – one was on a ladder and the other on the main road. He asked a member of his staff, who incidentally is his brother, to remove the coil of wire and he drove into the compound. On getting out of his sports car, he heard his staff and one of the technicians of the 6th appellant exchanging words. The exchange resulted to a fight in which the respondent had a bite on his back from the NEPA technician. There is also a story of an attempt by one of the technicians to use a belt on the respondent’s brother, which was earlier seized by the respondent, but was returned to the owner on the intervention of one Chief Inyang who happened to be present at the material time. Respondent claimed in his evidence that the owner of the belt apologised to him, an apology which resulted in the return of the belt. The respondent identified the two technicians as the 4th and 5th appellants. The above took place on the 6th February, 1985 a date I had earlier mentioned. Let this be the end of scene one.
Now, to Scene two. That was on the 7th February, 1985; the following day.
Respondent, on his way to the Police Station to receive Form C for the bite he had the previous day, called at the office of the 6th appellant. He had a discussion with 5th appellant as to whether the incident of the previous day was reported to the boss. The 5th appellant said he did not. Respondent left for his home. On reaching home, he saw staff of the 6th appellant in three vehicles with the NEPA inscription, chanting NEPA, NEPA, NEPA. The electricity supply to the house was disconnected.
The men cut the overhead cables and the electric wires indiscriminately.
The meters were also not spared. They were carried away. Respondent took photographs of the scene of display. The films and negatives were admitted in evidence. That is the end of scene two.
There was a blackout in the compound. Respondent rushed to the Police Station and reported the incident. Following the report the 1st appellant and a Police Officer visited the premises. After some delay the electricity supply was restored to the premises. Respondent had earlier filed an action in court. After the reconnection of light, he withdrew the matter from the court. He thereafter travelled to Lagos. Let this be the end of scene three.
I now move to the fourth and final scene. On his return from Lagos, respondent experienced a low current and voltage. He decided to mount his generator and this he did with the assistance of a private electrician. Two days after the installation of the generator, respondent noticed naked wires quite close to the metres in the house. In a mistaken belief that the naked wires were the handwork of the appellants, respondent wrote a letter to the 1st appellant, who sent his men to inspect the place. It was later discovered that the private electrician of the respondent was responsible for that. Though it is not apparent from the Record that the fault was regularised, there is every reason to come to that conclusion from the totality of the evidence. Respondent thereafter experienced constant electricity supply until 6th March, 1985, when he returned from Lagos and saw that the premises was again disconnected. It was on the orders of the court below that it was re-connected in January, 1986.
The evidence of the appellants is that the premises of the respondent, a consumer, was disconnected twice for two different reasons. The first was for non-payment of arrears (D.N.P.) and the second for disconnection pending investigation (D.I.P.). The respondent’s line was reconnected on the first occasion in order that the new born baby of the respondent does not “come into the world to witness darkness”. There is also evidence that apart from reporting the matter to the Police, the respondent beat up the 2nd and 4th appellants: the latter admitted in the hospital because of injuries he sustained. The 2nd appellant was even locked up at the instance of the respondent. A private electrician who worked on the line at the instance of the respondent left naked wires. Respondent initially passed the buck to the appellants but later found out that his private electrician was responsible for it. The electrician admitted. Before the admission, the naked wires were one source of disagreement between the parties. As a matter of fact the second disconnection was as a result of what the appellants called the illegal tampering with the installations of the 6th appellant.
After hearing evidence and written submission of counsel for the parties, the learned trial Judge gave judgment in favour of the respondent. He was awarded N78, 000.00 special damages and costs of N800.00. The appellants did not like the judgment and so they appealed. As usual, briefs were filed and exchanged by the parties.
Learned counsel for the appellants formulated eight long issues for determination, issues which in very fine print covered two pages of foolscap sheet.
Because they are verbose and to a large extent prolix, I do not intend to reproduce them here. The Supreme Court and this Court, have said time without number that issues for determination should be concisely and precisely formulated. They should directly encompass the grounds of appeal. Issues which are unusually loaded give so much problem not only to the Court but also to the adverse party.
And that is not helpful to the entire appellate process in its effort to decide the appeal one way or the other.
Perhaps I can sound more relevant by picking one so-called issue formulated for determination. It is issue No.5. It reads:
“How many disconnections were effected to the Premises at No. 13 Obio Oko Street, off NEPA line Uyo. There were 2(two) disconnections (i) On or about 7/2/85 – 8/2/85 which was reconnected on or about 15/2/85. “It was reconnected the following day”. “I told the D.C.O. that he should regard the matter as CLOSED.” But the bill was not paid. 1st defendant advised him to pay up his arrears of the Bill and or (ii) the second disconnection given rise to by Exh. D of 19/2/85 accusing the defendants of leaving naked wire, which was investigated by 2nd defendant who reported to the District Manager, Joseph I. Ahamioje, who wrote Exh. “G” approving the disconnection and recommending the recovery of the Meters under D.I.P. i.e. Disconnection Investigation Pending between 19/2/85 and 5/3/85 and whether the outcome of this investigation has been obtained”.
And here we are: Can the above be really called an issue? What is the issue involved in the above so-called issue? Could it be the number of disconnections and if so what is the business of the story telling connected with the D.C.O. and all that stuff? An issue is never a forum to present evidence, and that is what counsel has done here. I thought his client did much of that in the court below.
As opposed to the issues of the appellants, counsel for the respondent was precise in his formation of issues. They are three:
“(1) Whether the learned trial Judge was right in entering judgment for the plaintiff notwithstanding the Provisions of Section 12 of the National Electric Power Authority Act Cap. 256, Laws of the Federal Republic of Nigeria.
(2) Whether the plaintiff, the occupier of the premises could by himself and without joining his landlord, the registered consumer, maintain an action against the defendants for losses suffered by the plaintiff arising from the act or conduct of the defendants.
(3) Whether on the totality of the evidence before the Court it was proper to enter judgment for the plaintiff.”
That is my understanding of issues. That is the requirement of the law as decided by the cases. See Archbode Engineering Limited v. Water Resources Hydro Technique Wassertechinik & Ors (1985)3 NWLR (Pt. 12) 300; Amachree v. I.C.C Ltd (1989) 4 NWLR (Pt. 118) 686; Gaamstac Eng. Ltd v. F.C.D.A. (1988) 4 NWLR (Pt. 88) 296; Latunde v. Lajinjin (1989) 3 NWLR (Pt.108) 177; Fawehinmi v. N.B.A. (No.1) (1989) 2 NWLR (Pt. 105) 494.
Having said that much on the issues formulated by counsel for the appellant, I now proceed to the body of the brief itself. Before I summarise the arguments, I should perhaps make one or two observations on the way the brief itself is arranged and written, and my observations will inevitably dovetail into the issues formulated. The brief is divided into nine parts, thus: (1) Introduction (2) Issues for determination (3) The plaintiff’s case (4) The defendant’s case. (5) Argument: Ground 1.(6) Ground 2. (7) Ground 3. (8) Ground 4. Misdirection. (9) Ground 5. The brief ends with “relief sought from the Court of Appeal” and “List of Authorities”. Under items (3) and (4) counsel took so much time and space to narrate the facts of the case.
A brief is not a forum for telling the story of the parties. It is not a forum for narrating the facts of the case in great detail. The facts could be narrated with precision and only as they are germane to the case before the Court of Appeal and the arguments advanced in the brief. Facts which are remote from the issues formulated could be avoided for the good of both the parties and the Court. And what is more, it is not really necessary to itemise in the way learned counsel did, under items (3) and (4) “The plaintiffs case” and “The defendants Case” respectively. Another irregular arrangement in the brief is the itemization of each ground and arguing it specifically in the brief. While the point is conceded that a brief cannot avoid addressing the grounds of appeal at the end of the day, it is the practice for briefs to argue the issues. And since the issues are formulated directly from the grounds of appeal the brief finally addresses the grounds. After all, the main function of an issue is to identify, edify, reflect and substantiate the grounds of appeal. An issue can be formulated to cover or encompass one or more grounds; and as long as the brief argues the issues, it ultimately touches the grounds. As the grounds of appeal dominate the Notice of Appeal, as the reason or basis of the appeal, so also are the issues as they relate to the brief.
Grounds of appeal have no special status in a brief in the way learned counsel for the appellants has bestowed on them. The best that can be used of grounds of appeal, if necessary, is to show which of them have been dealt with in the issue or issues already argued. The Supreme Court and this court have dealt with these matters in the past, so much so that counsel ought not to be in trouble. See Dibiamaka and Ors v. Prince Osakwe & Ors. (1989) 3 NWLR (Pt. 107) 101; Adamu v. Ikharo (1988) 4 NWLR (Pt. 89) 474; Eyutchae v. N.T.A. (1986) 5 NWLR (Pt. 41) 395.
There are quite a few other irregularities in the brief of the appellant. It is therefore not surprising that counsel for the respondent said at page 3 of the respondent’s brief:
“What the appellants have stated as issues arising for determination are contained at pages 2-3 of the appellants’ brief of argument. We humbly contend that the appellants have failed completely to articulate the issues arising for determination. Having regard to the grounds of appeal it is our humble submission that most of the issues stated to arise for determination are totally irrelevant; the issues are not well formulated; they lack consistency, lack precision and almost impossible to appreciate.”
While I do not entirely agree with the above superlative statement, there is so much to justify in it after going through the entire brief.
Brief writing is a very major aspect of appellate trial which requires utmost skill. It is an art which must be imbibed by any counsel interested or involved in appellate practice. It is a function which needs great expertise, an expertise which can only be acquired by a very serious application of a highly organised professional mind. Brief writing was introduced in this Court in 1984 and this is 1993. I expect counsel to be familiar by now with the rules governing the writing of briefs. Unfortunately, it is not so. And that is bad.
What should I do with the brief? Should I throw it away because it is badly arranged? Is it good law that a bad brief should be ignored because it is bad? I do not think so. A bad brief is no less a brief however bad it is, or however hopeless it is. And the brief I am dealing with here is not hopeless. I have not come across any of the rules in Order 6 of the Court of Appeal Rules, 1981 as amended by the Court of Appeal (Amendment) Rules, 1984, which forbids a bad brief to the extent that it must be thrown away into the dustbin and allowed to decay. Order 6 provides for consequences for non-filing of briefs but certainly not when a brief filed contains irregularities. While the arrangement and methodology adopted in a brief may be irregular, or even downright wrong the law in it may be good, and an appellate Court cannot ignore the legal arguments and throw out the brief just like that. I know of no debris or dustbin in the Courts or its precincts to throwaway an irregular brief. I shall therefore make use of the appellants’ brief.
I now proceed to summarise the arguments of learned counsel for the appellant’s, Mr. C.O. Nwankwo. Relying on Section 12(2) of what counsel calls Decree No. 24 of 1972, he submitted that the appellants are not under any obligation to pay damages or compensation to the respondent as a result of the disconnection. To counsel, failure therefore to supply electricity and the investigation into the cause of the “death trap” comprised in the naked/untaped wires and the refusal by the agent of the respondent to put right or correct the wire, exonerate the appellants from paying compensation or damages. Besides the learned trial Judge erred in law when he failed to appreciate the seriousness of the allegation leading to the disconnection which was the tampering with the 6th appellant’s installations, learned counsel submitted.
On the legal status of the respondent, counsel submitted that the respondent not being a registered consumer/customer of the 6th appellant could not bring the action against the appellants. The action based on contract, and not on tort could not have been brought by the respondent as there was no contractual relationship between the respondent and the 6th appellant, counsel contended. He further submitted that the learned trial Judge having held that the contract to supply electricity was between the 6th appellant and Michael Abraham misdirected himself when he held that the respondent could bring the action by relying wrongly on Exhibit F. To learned counsel there was no privity of contract between the respondent and the 6th appellant warranting the conclusion of the learned trial Judge.
Relying on NEPA FORM 74, (Exhibit F) he submitted that the neglect or refusal by the respondent to pay for the electricity supplied to the premises justifies the disconnection. To learned counsel, the respondent, having committed breach of the agreement the appellants became justified in terminating it by disconnecting the supply of electricity and the removal of the metres. Contending that the malpractice of the respondent constituted offences under the Special Tribunal (Miscellaneous Offences) Decree No. 20 of 1984, counsel submitted that the appellants had the right to suspend the supply of electricity for such periods as were necessary for carrying out inspection tests or repairs and for the making of new connections.
Dealing with the issue of damages, learned counsel submitted that the award of the two items of special damages of N3,000.00 and N75,000.00 were not reasonable and not supported by evidence. Learned counsel went through the available evidence in some considerable detail and urged the court to refuse the award of damages. He finally urged the court to allow the appeal.
Learned counsel for the respondent Mr. A. Ekong Bassey in his brief of argument submitted that Section 12 of what he called the NEPA Act of 1972 does not excuse the 6th appellant from liability if it proceeds to make reckless, wanton and malicious disconnection of electricity if by so doing the consumer thereof suffers damages or injuries. The 6th appellant, learned counsel contended is only protected from claims of damage if the suspension, failure, discontinuance or interruption of supply of electricity is occasioned bona fide. Relying on Nwabueze v. Obi Okoye (1988) 4 NWLR (Pt. 91) 66; Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41 and Bamgboye v. Olarewaju (1991) 4 NWLR (Pt. 184) 132.
Learned counsel referred the court to the specific findings of the learned trial Judge that the disconnection was carried out in bad faith and urged this court not to interfere with the findings.
For the 6th Appellant to take advantage of Section 12(2) of the Act, the suspension or interruption of electricity must be for the purpose of enabling the authority to carry out inspection, test, or repairs or for the making of new connections. Counsel said that the appellants neither pleaded nor led evidence to show that the second disconnection which alone constituted the cause of action was for the purpose of inspection, tests or repairs or new connections. Dealing with the reason given by the appellants in paragraph 29 of the Amended Statement of Defence learned counsel submitted that as at 1st March, 1985, the investigation of the 6th appellant having been completed and a report submitted to the Police there was no further justification for continuing the disconnection of the premises, even if the facts pleaded in paragraph 29 were accepted and relied upon.
Taking further the second disconnection, learned counsel submitted that it was bad faith on the part of the appellants to say that one other reason for the disconnection was “non-payment of the electric bill due from the premises at No. 16 Mbaba Street, Uyo” Counsel referred to the evidence of the 1st defendant at pages 147 and 148 of the record. Arguing that the issue complained about was a subject of an interlocutory ruling, counsel submitted that since the appellant did not appeal on it, they cannot raise the issue on appeal. He cited Tijani v. Akinwumi  (1990) 1 NWLR (Pt. 125) 237 and Regist. Trustees, L.S.T.D.A. v. Attorney General of Lagos State (1990) 3 NWLR (Pt. 141) 711 in support.
On the legal status of the respondent to bring the action learned counsel submitted that since the respondent was the person who suffered the injury or loss, he is entitled to bring the action. Counsel did not agree that the issue involved the principle of privity of contract, rather the act of the appellants is a tortious act. Arguing that a tort can arise even from contract, learned counsel cited Abusomwan v. Mercantile Bank Ltd (No.2) (1987) 3 NWLR (Pt. 60) 196.
Learned counsel submitted in the alternative that even on contract the respondent could properly maintain the action. He claimed that the appellants knew at all times that the respondent was the actual consumer. When the premises was first disconnected the 1st appellant undertook to reconnect only if the respondent would withdraw his complaint to the Police. The appellants served bills of outstanding payments on the respondent, demanded and obtained payments on such bills from the respondent, learned counsel claimed. It was also the alternative submission of learned counsel that the respondent was a disclosed principal to his landlord who being the registered consumer is the agent. He relied on Okoebor v. Eyobo Engineering Services Ltd (1991) 4 NWLR (Pt. 187) 553 and Shuwa v. Chad Basin Development Authority (1991) 7 NWLR (Pt. 205) 550.
On the issue of joinder, learned counsel submitted that it was open to the appellants to apply for the joinder of the landlord if they felt that he had any claim or relief against them. Any of the parties in an existing suit can apply to add some other party, counsel contended.
Learned counsel submitted that since there is no appeal on cost and damages, this court has no jurisdiction to consider them. He relied on Alake v. State (1991) 7 NWLR (Pt. 205) 567; Ezeani v. Njidike (1965) NMLR 95 and Attorney-General Oyo State v. Fair Lakes Hotels (1989) 5 NWLR (Pt. 121) 255. Counsel urged the court to dismiss the appeal.
The first issue I would like to take is whether the respondent has the locus standi to commence or bring the action. Although both counsel refrained from using the expression, the totality of their submissions zero on it, and so I use it. The main test or major determinant of locus standi is whether the plaintiff has sufficient interest in the subject matter of the suit. If he has, he is entitled to sue and a court of law cannot stop him from doing so. Sufficient interest, according to the case law, is an interest which is peculiar to the plaintiff, an interest which he does not necessarily share with the members of the public. The interest in the subject matter must be over and above what the ordinary members of society have. The interest must be unique and proprietary. While one is not quite happy with the above restrictive position of the law, as quite a number of wrongs will not be litigated up, it remains the current legal position to which I succumb. See Adedire v. I.D.C. (1963) 1 All NLR 39.
A plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury or loss arising directly from the conduct of the defendant. See Olawoyin v. Attorney-General of Northern Nigerian (1961) All NLR 269. In Adesanya v. The President of the Federal Republic of Nigeria (1981) 5 S.C. 112, Bello, J.S.C. (as he then was) said at pages 151 and 152.
“To entitle a person to invoke judicial power. …. he must show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury to himself”.
The question whether a plaintiff has sufficient interest in the subject matter of the suit cannot be determined in vacuo but in the context of the facts and circumstances of the case. And to that I now turn. The respondent lives at No. 13 Obio Oko Street, Uyo. He is a tenant. Mr. Michael Abraham is the landlord. The respondent is a consumer of electricity supply from the 6th appellant. He directly pays his bills to the 6th appellant. The appellants deal with him directly. In one of their business relationships, the appellants disconnected the electricity supply of the respondent.
He sustained some injury for which the trial Judge awarded some damages. The above are briefly the facts.
Can the respondent not bring an action in the above circumstances? Learned counsel for the appellants says he cannot. Learned counsel for the respondent says he can. It is clear from the above examination of the concept of locus standi that he can. This is because he suffered some injury. But since neither counsel examined the legal position from the angle of locus standi but rather from the angle of contract and tort, I shall now in the alternative, take that aspect of it. Both contract and tort are civil wrongs. That does not mean that they are the same. It is elementary knowledge that they are distinct and different subject areas. But there are certain instances when they run into each other.
While law, like all other disciplines, is broken down into subject areas for the purposes of tutoring and convenience, human conduct, particularly in today’s competitive world, cannot be so demarcated, or better still, so regimented. The instinctive behaviour and avalanche in the human being which results in a wrong knows no such demarcation between contract and tort. The automation in him acts and he is found liable by the law, whether it is a contractual wrong or a tortious wrong or a hybrid situation. That is not the concern of the goading force in him. Human automation does not wait for the niceties of the dichotomy between contract and tort. It acts just like that.
The point I am struggling to make is that because of the human nature in the human being, it is not in all cases that a conduct could be neatly departmentalised into contract or tort. There could be instances of hybrid situations foisted on the law by the divergencies of human conduct. The law has a duty to take care of such situations.
The above apart, even contemporary jurisprudence, on its own, in answer to the dynamics of human conduct in a highly competitive and diversified economy, has de-emphasised in certain areas, the difference between contract and tort. Why not the courts?
The Supreme Court has taken the lead in the matter. That was in the case of Abusomwan v. Merchantile Bank of Nigeria Ltd. (1987) 3 NWLR (Pt. 60) 196.
Plaintiff, a businessman entered into an agreement for the importation of cement from Lime International Co-Operation New York through Mr. Bassey and Mr E. R. Tucker. By the terms of the agreement, the plaintiff was to obtain a guarantee from his Bankers for the payment referred to in the agreement. He did so. A clause in the guarantee provided that all documents, drafts, bills of lading and invoices consequent upon the letter of credit should be drawn in favour of the plaintiff and should be endorsed to his Bank, the New Nigerian Bank Limited, Head Office, Benin City. However in opening the letter of credit the defendant Bank directed that the documents be drawn in favour of Heilit Nigeria Ltd and endorsed to the Bank. Heilit Nigeria Ltd. took delivery of the cement consignment and sold 45,200 bags out of the total consignment of 84,000 bags to the plaintiff. Delivering the lead judgment of the court, Karibi- Whyte, J.S.C. said at page 208 and 209:
“The question now is whether, if it is conceded that there is no contractual relationship between the appellant and the respondent that is the end of the matter, quaesitio cadit. The matter does not end there. Since the 1920s the trend has developed of discarding the 19th century view that a tort cannot arise from the breach of contract. It is now the law that an action in tort for negligence can arise de hors contract of the parties… The fog over remedies arising from breach of contractual obligations introduced into the law by what was conveniently regarded, as the ‘privity of contract fallacy’ was cleared by the brightness brought in the lucidity of the arguments of Lord Atkin in Donogue v. Stevenson (1932) A.C. 562. The effect of Donoghue v. Stevenson (supra) is that where a person is injured from a transaction arising from the contract of two persons, the third party is not precluded from bringing action on the grounds that he was not a party to the contract the mis-performance or non-performance of which has resulted in the damage. I think the doctrine of proximity as the foundation of duty of care in tort is now firmly established. It has replaced the erstwhile ‘privity of contract’ fallacy”.
In Ann v. Merton London Berough Council (1978) A.C. 728 Lord Wilberforce said:
… in order to establish that a duty of care arises in particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. First one has to ask as between the alleged wrong doer and the person who has suffered damage whether there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter in which case prima facie duty of care arises.”
It is not in every case where there is no direct contractual relationship between the plaintiff and the defendant that an action cannot be founded. The relationship may not be contractual in nature but the law will be correct to read into the relationship of the parties an implied undertaking on the part of the defendant not to injure the plaintiff. I do not think I will be wrong to read such an undertaking on the part of the appellants.
The above apart, learned counsel for the respondent raised the issue of agency. The position of the law is that a disclosed principal has the right to sue on a contract made on his behalf. See Niger Progress Ltd v. N.E.L Corporation (1989) 3 NWLR (Pt. 107) 68; Ekuma v. Silver Eagle Shipping Agencies (1987) 4 NWLR (Pt. 65) 472; Okoebor v. Eyobo Engineering Services Ltd. (1991) 4 NWLR (Pt. 187) 553; Shuwa v. Chad Basin Development Authority (1991) 7 NWLR (Pt.205) 550. I am in entire agreement with the submission of learned counsel for the respondent that “the plaintiff’s landlord for registering as a consumer did so as an agent and that the plaintiff was a disclosed principal and that the defendants knew and accepted the plaintiff as such”. There is overwhelming evidence, even from the witnesses of the appellants that the appellants had dealings with the respondent in respect of electricity supply to the house. Such evidence clearly show that the respondent is a disclosed principal.
I am not even quite sure whether there is no direct contractual relationship between the appellants and the respondent. The respondent is the actual consumer.
Whether he is not the registered consumer is neither here nor there. Under cross examination, D.W.1 said:
“The electrician was the hired agent of the consumer, so it was the consumer who tampered with it”.
The consumer in the above evidence is the respondent. Section 1 (1)(c) of the National Electric Power Authority Act, Cap. 256, Laws of the Federation of Nigeria, 1990 provides for one of the duties of the 6th appellant thus:
“to provide supply of electricity for consumers in Nigeria and as may, from time to time, be authorised by the Authority.”
Similarly, Section 4(b) of the Electricity Act, Cap. 106, Laws of the Federation of Nigeria, 1990 provides that:
“The Minister charged with responsibility for electricity may make regulations for all or any of the purposes following…..regulating the use and management of any works, apparatus, lines or installation erected after the carrying into operation of these Regulations and used for generating, transforming, converting, conveying, or supplying electrical energy, so as to secure the safety of consumers or employees and of the public from personal injury by reason of such use”.
Learned counsel for the appellants introduced the element of registered consumer. I have searched in vain for the expression in all the above enabling statutes. There is no such expression. And what is more, there is no definition of a consumer in the two Acts and so it is difficult to extend the word beyond its grammatical meaning. Is it the intention of the National Electric Power Authority Act, 1990 and the Electricity Act, of 1990, to exclude the respondent? To be more specific, is it the intention of Section 4(b), Electricity Act, 1990 not to secure the safety of the respondent merely because he did not register with the 6th appellant?
I think not.
And what is more, inspite of the so-called registered consumer expression, which has no statutory flavour in an area of law governed by statute, D.W.1. under cross-examination said:
“Prior to the issue of Exhibits B – 32 there were Bills sent to the plaintiff to notify him of what he was owing”.
I ask: if the respondent was not a registered consumer (whatever that means) and there was no contractual relationship between him and the 6th appellant, why were bills sent to him? What business had he with the 6th appellant to pay bills, if he was not a consumer within the provisions of the enabling Acts?
In my view, it is ridiculous to contend that a person who deals directly with NEPA, pays his bills and other charges arising from disconnection and all that, cannot commence an action against the Authority, on the pretext that he was not the registered consumer. It will be a very sad day in the relationship between the 6th appellant and its numerous customers in the country for the courts to hold that a person who is directly paying the bills which are subsequently accepted by NEPA cannot in turn sue for an injury sustained by him. Let that day not come. In the light of the above position of the law I am of the firm view that the respondent has the legal right to bring the action against the appellants.
That takes me to the question whether the appellants committed a wrong. It is in evidence that the electricity supply was disconnected twice and for two different reasons. The first disconnection was because of non-payment (D.N.P.) while the second disconnection was as a result of illegal tampering with the installations of the 6th appellant. The disconnection was carried out under D.I.P. which means disconnection investigation pending.
What were the findings of the learned trial Judge on the above two reasons for the disconnection? He did not find them proved in evidence. On the first reason for the first disconnection, the learned trail Judge said at pages 202 at 203, in apparent reaction to the submission of learned counsel for the appellants on the non-payment of N5.00 reconnection fee as basis for the first disconnection:
“This submission has no legs to rest on … These payments have to be made before reconnection. After reconnection it will be ridiculous for the defendants to use such non-payment of N5.00 as the basis for another disconnection since they are presumed to have waived such payment”.
On the second reason for the second disconnection, the learned trial Judge said at page 203:
“That was what the 1st defendant wanted to do when he told the electrician that he would have to repair the fault, before the 3rd defendant, Engineer Ahamioje negligently ordered the disconnection without any effort to remedy the defect complained of, that is, the naked wires found by the metres. In such circumstances, I am unable to say that the disconnection was justifiable or that he acted in good faith. The main reason for the disconnection was the alleged illegal detention of the 2nd defendant. Any other reason was just smoke screen. Even if there was such a detention, that is a matter for the Police to handle. Power disconnection was not the remedy. What the 3rd defendant, Engineer Ahamioje did, was more of a retaliation than anything else. There was therefore no justifiable reason for disconnecting power supply in the premises of the plaintiff in March, 1985. The exercise was carried out in utter bad faith and with malice.”.
The above are the findings of the learned trial Judge, findings that I am bound to follow unless they are perverse. And I have no reason to come to the conclusion that they are perverse. See Fashanu v. Adekoya (1974) 6 S.C. 83; Odogiyan I v. Hispanic (1986) 5 NWLR (Pt. 39) 127; Oyakhire v. Obaseki (1986) 1 NWLR (Pt.19) 735; Kate Enterprises Ltd v. Daewoo Nig. Ltd, (1985) 2 NWLR (Pt. 5) 116;
Emenimaya v. Okorji (1987) 3 NWLR (Pt. 59) 6. The two disconnections being unjustifiable, I am of the view that they were wrongful acts on the part of the appellants.
That takes me to the issue of damages. Learned counsel for the respondent argue that the appellants have not appealed on damages and so should not be heard. I do not think he is right. The first ground of appeal clearly, in my view, covers damages and so I will take it. The two disconnections being wrongful acts, are the appellants liable to damages? Both the learned trial Judge and learned counsel for the respondent say they are. Learned counsel for the appellants say they are not. Both the court and counsel of the parties relied on Section 12 of the National Electric Power Authority Act, 1990, though they called the Act different names.
Section 12 is in the following terms:
“12(1) The Authority shall maintain the continuity of supply of electricity as required by the Electricity Act, and any regulations made thereunder:
Provided that the Authority shall have the right to suspend the supply of electricity for such periods as may be necessary for carrying out inspection, tests, or repairs and for the making of new connections.
(2) The Authority shall in no case be under any obligation to pay damages or compensation for loss, damage or inconvenience caused to any consumer through any suspension, failure, discontinuance or whole or partial interruption of the supply of electricity howsoever caused.”
Both the learned trial Judge and learned counsel for the respondent gave different interpretations to the section but arriving at the same conclusion that the appellants are liable to pay damages. The learned trial Judge read Section 12(2) along with Section 12(1) and came to the conclusion that the term “howsoever caused” must be limited to only the four instances contained in the proviso to Section 12(1). On the other hand, learned counsel for the respondent took the view that Section 12(2) anticipates a conduct which is bona fide and not one which is mala fide.
It is a well established cannon of statutory interpretation that where the language of a section is clear and unambiguous, the court in the exercise of its interpretative jurisdiction, must give the language its ordinary grammatical meaning without more. In such a situation, a court cannot resort to his imaginative and intellectual powers to get at a supposed meaning or intention of the law maker. See Toriola v. Williams (1982) 7 S.C. 27; Mobil v. F.B.I.R. (1977) 3 S.C. 53; Savannah Bank v. Ajilo (1987) 2 NWLR (Pt. 57) 421. I.B.W.A. v. Imano (Nig) Ltd (1988) 3 NWLR (Pt. 85) 633. In my humble view, the language of Section 12 is so clear that it does not need any external interpretation. I shall therefore interpret the section without more. In the first place Section 12(1) has no relationship with section 12(2), in the sense that the immunity (if I may call it so for want of better expression) of the Authority under Section 12(2) is not subject to the duty of the Authority to maintain the continuity of supply of electricity under Section 12(1). As it is, the proviso to Section 12(1) has cut down or qualified the subsection. The qualification is that the supply of electricity can be suspended under four instances, and such instances will be regarded as legitimate; thus not offending the main subsection (1). These four instances are (1) inspection (2) tests (3) repairs and (4) making new connections.
I come to Section 12(2). As I indicated earlier, this subsection is independent of Section 12(1). It starts with the draftsman’s usual mandatory “shall” which generally conveys a peremptory meaning. See Mokelu v. Federal Commissioner of Works (1976) 3 S.C. 35; National Bank of Nigeria v. Alakija (1978) 9-10 S.C. 59; Achineku v. Ishagba (1988) 4 NWLR (Pt. 89) 411.
The word “obligation”, which is derived from its Latin variant of “obligatio” generically means that which a person is bound to do or forbear; any duty imposed by law, promise, contract or relations. The meaning will depend on the particular circumstance of usage. In Section 12(2), it means, amongst other things, duty. There is yet another operative word, and it is “howsoever”. The expression etymologically means in what way soever; although; however or in whatever manner or degree. It is my view that the expression under Section 12(2) is inclusive; not exclusive. It is all embracive; and therefore including any conduct of the authority whether bona fide or mala fide. Contextually therefore, the authority cannot pay damages or compensation to any consumer in respect of loss, damage or inconvenience, through any suspension, failure, discontinuance, whole or partial interruption of the supply of electricity. From the point of view of the consumer, Section 12(2) is a complete blockade or embargo as far as the payment of damages or compensation is concerned. There is however one subtle point and it is that the immunity relates only to the authority. Will it cover the employees, particularly when they perform unauthorised acts? None of the parties raised it.
This court cannot therefore raise it I merely thought aloud.
Should the position be so? It should not. The immunity clause should be expunged. That is not the work of the courts. It is for the legislature. Let the National Assembly take up the assignment. That will be good for all consumers. As it is, NEPA looks like a sacred cow. Nobody can touch it. And that is bad not only for the consumers but to the general public. I do not think I should go into Exhibit H, the Commercial Instructions Manual. Paragraph 9 thereof, in relation to the same issue. I have got enough in Section 12(2) and I have said enough too. Similarly, I do not see any necessity to deal with the Special Tribunal (Miscellaneous Offences) Decree, No. 20 of 1984 in a civil matter such as this. This is certainly not the forum to punish the respondent, assuming that he has committeed an offence. We in this court lack the jurisdiction to take that issue. It is a pity that learned counsel for the appellants referred to it. Beyond that, we cannot go. In the light of Section 12(2) of the NEPA Act, the appellants are not liable to the payment of the damages awarded by the learned trial Judge. In the event that I am wrong, I should briefly look at the damages awarded, and this is only in the alternative. The learned trial Judge awarded N3,000.00 as cost for repair of the generator and N75,000.00 for loss of profit suffered by the respondent arising from the power cut, making a total of N78,000.00. Although, the learned trial Judge said in his judgment that “these figures were not disturbed during cross-examination”, the position of the law is that a plaintiff must prove special damages he claims, unless admitted by the defendant. And so, the issue is whether the special damages claimed were proved and not that they were not disturbed during cross-examination. The respondent in his evidence in court said:
“I am now claiming N500,000.00 general damages, N3,000.00 for the damage done to my Generating Plant, N75,000.00 for the loss I have suffered by way of profit, between March, 1985 – January, 1986. Because of the extensive use of the Generating Plant during the period, it broke down. I have still today not repaired it. I need N3,000.00 to repair the Generator.”
P.W. 2, the Chartered Accountant, said in evidence:
From Exhibit I, for the period 12/12/82 to 6/3/85, 2 1/4 years net profit between 6/3/85 to December, 1985 is projected to around N75,000.00″.
What is the legal basis for awarding N3,000.00? It is not my understanding of the law that special damages is awarded in anticipation of incurement. Special damages are damages already incurred and payable by the adverse party on proof. The respondent said clearly in his evidence that he needs N3,000.00 to repair the generator and the learned trial Judge granted the amount. He cannot. Since a court of law is not competent to anticipate special damages, the award of N3,000.00 made by the trial Judge is refused.
That takes me to the sum of N75,000.00. In view of the fact that it became impossible to determine and know the exact profit for the period because of the breakdown of the generator there is a valid reason for a projection. In the light of the evidence of P.W. 2, who looks to me like an expert, and the findings of the trial Judge. I should not disturb that award.
For the avoidance of doubt, the judgment of this court is that the appellants, though committed wrongful acts against the respondent, are not liable to damages. In the event that I am wrong, I award N75,000.00 special damages to the respondent.
Let me say one last word on Section 12(2) of the National Electric Power Authority Act, 1990, a provision which has given rise to the judgment I have delivered. It is a most obnoxious and oppressive provision which is inimical to the advancement of the rule of law. No democracy worth its name should feel happy with such a provision. I am not happy, the Judge that I am in the enforcement of the rule of law in our cherished democracy. As I indicated above, I do hope the National Assembly will expunge the subsection from the Act. That will be good for persons who may feel aggrieved by the acts of the National Electric Power Authority: and therefore to the entire society. The appeal is allowed. I make no order as to costs.
OKAY ACHIKE, J.C.A.: The facts of this case which are not seriously in dispute, having been lucidly and fully stated in the leading judgment of my learned brother, Niki Tobi. J.C.A, it is not needful to reproduce them in my judgment. Accordingly, I respectfully adopt them as mine. Suffice it, therefore, for the purpose of my judgment to state very concisely that this action has been provoked consequent to the disconnection of supply of electricity by the 1st- 5th defendants/appellants who were employees of the 6th appellant at the premises occupied by the plaintiff/respondent. The said disconnection had arisen as a fall-out of violent misunderstanding between 1st to 5th appellants on the other hand, and the respondent and his staff, on the other. The respondent was an occupier of the premises in which the landlord of the building occupied by the former may be regarded as the registered customer or consumer of the 6th appellant, National Electric Power Authority (NEPA). Consequent to the disconnection of respondent’s power supply, respondent instituted action and claimed damages as per paragraph 11 of its amended statement of claim as follows:
“The plaintiff has suffered damage and claims from the defendants jointly and severally the sum of N557,000.00”
In a considered judgment, the learned trial Judge gave judgment in favour of the respondent jointly and severally against the respondents for N78.000 as special and general damages. Aggrieved by the judgment, appellants have appealed against it.
The first observation that must be made in respect of the appellants’ brief is its unorthodoxy in many respect. Thus, for example, a look at appellants’ Issue No. 5 makes it abundantly manifest that the so-called issue is irredeemably unacceptable. It is not an issue within the meaning of that word under Order 6 of the Court of Appeal Rules relating to preparation of briefs. It is manifestly unfathomable.
Again, appellants’ learned counsel proceeds rather strangely to set out the respective cases for the appellants and the respondent; this is unnecessary. Counsel thereafter goes ahead to identify his argument in terms of the grounds of appeal and without any further reference to the issues so formulated he wobbles through his argument. Order 6 provides for identification of issue(s) for determination which must be tied to the grounds of appeal otherwise such issues would be deemed incompetent. Having regard to the state of the brief as it relates to issues for determination, it is my view that the appeal would be unarguable.
Counsel should be reminded that under the Rules of this Court once the issues have been formulated, what the Court has to consider are not the grounds of appeal but issues for determination as framed. See Ogbuanyinya v. Okudo (No.2) (1990) 4 NWLR (Pt. 146) 551 and Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523. Blunders of counsel ordinarily should neither be allowed to becloud the matter in controversy, nor be visited on the client. The above caution is enough to put the brief into use for what it is worth coupled with the fact that the Rules of Court do not go to the extent as one would wish to invalidate a poorly written brief.
Since the issues as formulated by appellants’ counsel are grossly misconceived, respondent’s issues which are unquestionably satisfactory would be more apposite for the consideration of this appeal. They run as follows:
“(1) Whether the learned trial Judge was right in entering judgment for the plaintiff notwithstanding the Provisions of Section 12 of the National Electric Power Authority Act, Cap. 256, Laws of the Federal Republic of Nigeria.
(2) Whether the plaintiff, the occupier of the premises could by himself and without joining his landlord, the registered consumer, maintain an action against the defendants for losses suffered by the plaintiff arising from the act or conduct of the defendants.
(3) Whether on the totality of the evidence before the Court it was proper to enter judgment for the plaintiff.”
The first issue calls for the interpretation of section 12(2) of the National Electric Power Authority Act, which states as follows:
“(1) The Authority shall maintain the continuity of supply of electricity as required by the Electricity Act, and any regulations made thereunder;
Provided that the authority shall have the right to suspend the supply of electricity for such periods as may be necessary for carrying out inspection, tests, or repairs and for the making of new connections.
(2) The Authority shall in no case be under any obligation to pay damages or compensation for loss, damage or inconvenience caused to any consumer through any suspension, failure, discontinuance or whole or partial interruption of the supply of electricity howsoever caused.”
The question is, in the light of the findings of the trial court and the judgment entered in respondent’s favour, is that judgment sustainable having regard to the provisions of Section 12(2) of the above Act. It is manifest that the provisions of Section 12(2) are very expansive. They clearly erect an impregnable immunity in favour of the appellants for discontinuance of the supply of electricity howsoever caused. This is another way of saying that their immunity from liability in this regard embraces damage or loss which arises in whatsoever manner. The wordings of Section 12(2) are manifestly clear that the submission of learned respondent’s counsel that Section 12(2) envisages that appellants’ immunity can avail them if they acted bona fide and not for a conduct which is mala fide. This line of submission is an invitation to the Court to read into the provisions of Section 12(2) extraneous words when it is indisputable that these statutory provisions are unambiguous.
Surely, this will be doing violence to the well-known statutory rule or cannon of interpretation which enjoins the Court, in the absence of any ambiguity, to accord to every word its ordinary grammatical meaning. The Court cannot go on its own frolic and place an encrustment on statutory provisions in a bid to construe such provisions when it has not been established that they are demonstrably shrouded in ambiguity. See Savannah Bank v. Ajilo (1987) 2 NWLR (Pt. 57) 421.
Now, to the second issue, that is, whether the plaintiff occupier could alone, without being joined with the registered consumer, maintain action for losses suffered consequent to defendants’ misconduct. The respondent’s poser is predicated on the argument that there being no direct contractual relationship between the parties for the supply of electricity, (but rather one between the 6th appellant and respondent’s landlord, the registered consumer/customer) whether any action was maintainable inter se? This argument, ingenuous as it may be, had dominated legal thinking over the centuries. Nevertheless, since the far-reaching decision in Donoghue v. Stevenson (1932) A.C. 562, that view has been roundly rejected. While the contractual relationship between 6th appellant and respondent’s landlord or the registered consumer of the latter’s premises enables the parties to maintain an action inter se, the legal thinking ably enunciated by Lord Atkin in Donoghue v. Stevenson (Supra) has heralded a new legal era wherein even a third party who is reasonably proximate and suffers injury, damage or loss, consequent to the conduct of one of the contracting parties may successfully maintain an action if the said conduct arose from the negligence or carelessness of the party who has so conducted himself in breach of the duty of care he owes the third party. Such action is properly founded in tort of negligence. See Ann v. Merton London Borough Council (1978) A.C. 728.
I am of the opinion that ordinarily the respondent comes within the ambit of the decision of Donoghue v. Stevenson and 6th appellant owes him a duty of care, and a breach of that duty entitles him to maintain an action against the latter. On the other hand, respondent’s counsel had submitted with considerable force that respondent’s landlord as a registered’ customer of the 6th appellant supply of electricity could be explainable in terms of implied agency relationship between the parties and the landlord acted as the agent of the respondent. Evidence abounds in support of this proposition regarding direct dealings between 6th appellant and respondent for settlement of electricity bills for power enjoyed by the respondent. There is no evidence that the bills had ever been settled by the landlord. The law is clear that the contract made by the agent on behalf of his principal is indeed the contract of the principal; the principal alone remains liable thereto. He alone can sue and be sued in respect of the contract. In the circumstance, I hold that it was competent for the respondent, in his capacity as principal, to sue the 6th appellant under contract of agency without the necessity of being joined in the action by respondent.
Even if I am wrong in the reliance placed on the liability arising from duty of care as adumbrated above as well as the implied agency arrangement between the parties, it also seem clear to me that the combined effect of the provisions of Section 1(1)(c) and Section 4(b) of the National Electric Power Authority Act is that the respondent is a consumer of electricity provided by the 6th appellant, and has been dealing directly, as earlier observed, with regard to the settlement of electricity bills it consumes. This manifestly raises a contractual relationship between the two parties.
It follows that issue No.2 should be resolved in favour of the respondent. The third and final point that calls for consideration is whether there was proper proof of damages awarded by the lower court. The claim for loss of profit for a certain period, which strictly speaking, is a matter of special damages and is only projectionable. The evidence in this regard appeared satisfactory and was accepted by the learned trial Judge. It was in fact not challenged. See M.I.A. & Sons v. F.H.A. (1991) 8 NWLR (Pt. 209) 295. The second head of special damages relates to “Damages to plaintiff’s generating plant – N3,000.00”. The repairs are yet to be carried out. How then does the respondent arrive at this amount? This is speculative and sufficient foundation has not been laid to substantiate the claim. It should be reiterated that this is a claim in special damages.
Items of special damages must be particularised and strictly proved. See L.S.D.P.C. v. Foreign Finance Corp. (1987) 1 NWLR (Pt.50) 413. In my view, I am in full agreement with appellant’s learned counsel that this head of claim has not been satisfactorily proved and should be disallowed. It follows that if the Court were disposed to find in favour of the respondent, the sum of N75,000 awarded by way of special damages only would be allowed.
But in view of the opinion earlier expressed on the immunity of the appellants, I am of the opinion, regrettably, that appellants are not liable to the respondent. In other words, the appeal has merit and succeeds. Accordingly, the judgment of the lower court is hereby set aside.
I, also, for the unfortunate circumstances in this case arising from the anomalous provisions of Section 12(2) of the National Electric Power Authority Act, make no orders as to costs.
SUNDAY AKINOLA AKINTAN, J.C.A.: I had the privilege of reading the draft of the lead judgment written by my learned brother, Niki Tobi, J.C.A. The facts of the case and the issues raised in this appeal are well set out and discussed therein. I therefore need not repeat them here.
One of the issues raised in the appeal is the interpretation to be given to the provisions of Section 12(2) of the National Electric Power Authority Act (Cap. 256 Laws of the Federation of Nigeria (1990). That sub-section provides that:
“The Authority shall in no case be under any obligation to pay damages or compensation for loss, damage or inconvenience caused to any consumer through any suspension, failure, discontinuance or whole or partial interruption of the supply of electricity howsoever caused.” (Emphasis supplied).
Among the facts proved and accepted by the trial Judge in the instant case are that the respondent was a consumer of the power generated by the 6th appellant. There was misunderstanding between the respondent and the 1st to 5th appellants – who were employed by the 6th appellant. The power supply to the respondents residence/place of business was disconnected. The action was for claim for damages suffered by the respondent as a result of the alleged disconnection of power supply to the residence/place of business.
The learned trial Judge held that the respondent had proved his claim and entered judgment for him against the appellants jointly and severally for N78,000 as special damages and N800 as costs. The present appeal is against that verdict. I have no doubt in holding that the provisions of Section 12(2) of the National Electric Power Authority Act (reproduced above) exhonorate the appellants from any liability for damages for loss, damage or inconvenience caused to the respondent as a consumer as a result of the interruption of electric power supply to his residence/place of business. It is specifically provided in the sub-section that the immunity in this respect is absolute as this can be inferred from the inclusion of the term “however caused” in the sub-section. The immunity is however restricted to cases of discontinuance of power supply. It does not apply to instances of damages caused by very high voltage of power supply by the Authority:
N.E.P.A. v. Alli & Anor (1992) 8 NWLR (Pt. 259) 279 S.C.
Another issue raised in the appeal is whether from the pleadings and evidence led in support of the claim, the plaintiff (now respondent) proved his claim. The plaintiff pleaded, inter alia, in paragraphs 1 & 2 of the Amended Statement of Claim that he was at the material time “carrying on business with international character under the name and style of Effasien International Enterprises with restaurants, club at No. 13 Obio Oko Street, Uyo… and the division of Effassien Embassy in Los Angeles, California, U.S.A. And that he would tender and rely on the audit report of profit and loss account on the business for the years beginning from December, 1982 until March 1985. He also pleaded in paragraph 11 that:
“The plaintiff has suffered damage and claims from the defendants jointly and severally the sum of N578,000 being general and special damages for the wrongful act of the defendants.”
The particulars of the special damages are given in the same paragraph 11 as:
“Damages to plaintiff’s generating plant – N3,000
Loss of Profit for the period of March to
December, 1985 N75,000
General damages N500.000
Total N578.000”
The defendants, on the other hand, pleaded in paragraph 34 of the amended statement of defence, inter alia, that “the defendants jointly and severally deny in answer to paragraph 11 of the amended statement of claim that the plaintiff has suffered any damage or that he is entitled to recover from them jointly and severally the sum of N578,000 or any sum at all as special or general damages.”
The evidence led in support of the claim are from Okon James Udombang (P.W.2) and the plaintiff himself who testified as P.W. 3. P.W. 2 was the chartered accountant who audited the accounts of the plaintiff’s business. He tendered his audit report (as Exh. 1) and thereafter told the court, inter alia that “from Exh. 1, for the period 12/12/82 to 6/3/85, 2 1/4 years, net profit was N58,201. Because the business was moving fast, the net profit between 6/3/85 to December, 1985 is projected to around N75,000.” The witness told the court under cross-examination that, “power cut will affect sale of dresses as the lighting system will not be available.”
The plaintiff gave an insight into the nature of his business in the cause of his evidence. To that end, he told the court that he carried on engineering consultancy and had a bar and restaurant as well as lodging facilities. He also had a shopping centre for men, female and children’s clothes and electronics all at 13 Calabar Street Uyo address. He then went on to say that:
“As a result of my premises being disconnected I had to close down the business. It collapsed and we suffered a loss. We employed an auditor, Mr. Udombang, to audit our accounts. He produced a report of his audit as in Exh. 1. I am asking the court to order NEPA to pay me the money lost during the period I was compelled by them to discontinue my business. I also claim N3,000 being damage to my generator. The generator was damaged through the destruction of its major parts when it was extensively used.”
It is settled law that special damages must be strictly proved, and where a Judge believes that the plaintiff has exaggerated his loss, the Judge is not justified in estimating the loss sustained if he cannot point to particular items of special damages proved: See Jaber Basma (1952) 14 WACA 140. Similarly, a plaintiff who does not give particulars of special damages claimed in his pleading (and where there is no evidence) cannot be granted special damages: See Amos Brothers & Co. Ltd v. British West African Corporation Ltd (1952) 14 WACA 220.
The N3,000 claim for damages to generator ought to be for the use of the generator. But the period of use of the generator before it got damages was not stated. Similarly, nothing was said as to how the N3,000 was arrived at. The exact period of the closure was not pleaded and no evidence was given of it too. Also in view of the fact that the plaintiff carried on many businesses, no evidence was led as to which of the numerous businesses were actually affected by the disconnection of power by the 6th appellant. Nothing was also said about what happened to the branch of the business said to be in Los Angeles, California, U.S.A.
The court was not told if the failure to supply electric power to Uyo branch also led to the closure or reduction of the business carried on at the Los Angeles branch.
It is true that the term strict proof of damages means no more than that the evidence must show the same particularity as is necessary for its pleadings. It should consist of evidence of particular losses which are exactly known or accurately measured before the trial. It does not mean unusual proof. See Imana v. Robinson (1979) 3-4 S.C. 1 at 23; Oshinjinrin v. Elias (1970) 1 All NLR 153; Okoronkwo & Ors v. Chukweke & Anor (1992) 1 NWLR (Pt. 216) 175; Kurubo & Anor v. Zach-Motison (Nig) Ltd (1992) 5 NWLR (Pt. 239) 102; NEPA v. Alli (supra); and Odinaka v. Moghalu (1992)4 NWLR (Pt. 233) 1.
Applying the law as declared above to the facts in the instant case, I have no doubt in holding that the plaintiff failed to prove his claim before the lower court. He was therefore not entitled to the awards made in his favour by the trial court.
In the result, I agree with the conclusion in the lead judgment that this appeal should be allowed. I too allow the appeal, set aside the judgment of the lower court and substitute, in its place, a verdict of dismissal of the plaintiff’s claim. I too make no order on costs.
Appeal allowed
Appearances
- Onyegulli Nwankwo For Appellant
AND
- Ekong Bassey For Respondent
