Matthew Oye Oluwole V. Power Holding Company Of Nigeria Plc (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment)

This appeal emanated from the Ruling of the High Court of Justice, Kwara State delivered by Hon. Justice J.F. Gbadeyan on 26th March, 2009 at the Ilorin Judicial Division; wherein he declined jurisdiction and struck out the Appellant’s case. Dissatisfied with the decision of the learned trial Judge, the learned counsel for the Appellant R.O. Balogun Esq. filed a Notice of Appeal with three grounds on the 20th of April, 2009.

The facts of the case as stated by the Appellants are that in the lower court they claimed by their Writ of Summons and Statement of Claim various sums of money on various heads comprising special damages for items burnt by inferno; sum required for reconstruction of workshop razed down by the fire incident; loss of use and earnings from the burnt workshop, monthly payment from the Defendants from 20th August, 2007 until Judgment was delivered; Solicitors professional fees or cost of the suit, General damages for the traumatic experience and agony occasioned by the fire incident and 10% interest until final liquidation.

The gamut of the case of the Appellant before the Court below is that electricity pole constructed by the Respondent collapsed and fell on the roof of his workshop out of the negligence of the agents of the Respondents in the performance of their duties in that when the incident occurred the agents of the Respondent were immediately contacted on phone and were duly notified of the incident with specific instruction and/or warning that the electricity supply must not be restored to the area in order to avoid fire outbreak.

The Respondent was specifically informed as a matter of emergency/urgency to come to the area and remove the fallen pole but to the utter dismay of the Appellant and his neighbours, the Respondent neglected to remove the electricity pole and as if that was not enough the Respondent rashly restored electricity supply to the area which culminated into fire outbreak.

The Appellant had alleged that the electricity pole had been eaten up by termites which the Respondent failed and/or neglected to replace in spite of the fact that the Respondent’s attention was drawn earlier on to the termites infested pole.

The Appellant also pleaded and relied on the doctrine of res ipsa loquitor and claimed several reliefs as highlighted earlier and when the matter was about to proceed to hearing the learned counsel to the Respondent filed a motion on Notice wherein it prayed for an order striking out the suit for lack of jurisdiction (page 36 to 42 of the Records refers) while the Counter Affidavit against the Motion on Notice spans pages 45 to 59 of the Records.

Upon taking the arguments of the respective parties on the motion, the learned trial Judge ruled on the 26th of March, 2009 declining jurisdiction on the matter for according to his Lordship:-

“It is beyond per adventure that NEPA has been split into some units for effective commercialization but there is no evidence of privatization yet. The defendant is an agency of the Federal Government for supplying light to the public. This Court therefore lacks jurisdiction to entertain this suit against a Federal Agency”.

As for the Respondent their case is that the Appellant instituted this action against them alleging negligence in the performance of its duties, which led to the alleged destruction of the (Appellant’s) workshop. The Respondent in defence of the Claim against them not only denied the allegations of the Appellant but went further to deny its being negligent in the maintenance of the electric pole adding that neither of its Agent nor the Respondent was notified of any damages or imminent damage. In addition to the above denial of liability, the Respondent pleaded the defence of force majeure to the alleged collapse of the electric pole by the purported heavy storm that accompanied the rainfall.

The Respondent in the course of the proceedings filed a Motion of Notice praying for an order striking out the Appellant’s suit for want of jurisdiction on the grounds that the Respondent is an Agency of the Federal Government and that the claim would not be entertained by the Federal High Court. The Appellant, as has been stated earlier opposed the motion and after the learned trial Judge had heard the respective parties on their respective addresses, delivered the Ruling which is the subject of this Appeal.

In line with the Rules of this Honourable Court and following the transmission of the Record of Appeal hereto, Briefs were exchanged by the respective learned counsel to the parties and in the Brief settled by Mr. Balogun on behalf of the Appellant; two issues were formulated for determination as follows:

ISSUES

1. Whether the learned trial Judge was not wrong by holding that, Power Holding Company of Nigeria Plc is an Agency of the Federal Government, when it is evident that hitherto NEPA has been privatized and commercialized which culminated into the change in nomenclature from NEPA to PHCN, PLC; a company incorporated under the Companies And Allied Matters Act.
2. Whether the learned trial Judge was right by declining jurisdiction and struck out the case of the Appellant on the premise that the PHCN PLC is an Agency of the Federal Government when the subject matter of the Appellant’s case was premised on the tort of negligence and the attention of his Lordship was drawn to the Supreme Court decision of Onuarah v. KRPC (2005) ALL FWLR (Pt.256) 1356.

On behalf of the Respondent Y.A. Dikko Esq. of J.O. Baiyeshea & Co. gave Notice of preliminary Objection dated 22nd day of December, 2011 on a sole ground couched thus: