National Electric Power Authority (Nepa) V. Malam Muhammad Auwal (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court holden at Kaduna and presided over by Hon. Justice A.M Liman which said judgment was delivered on the 28th day of November, 2006 wherein the said court granted general damages in the sum of N10,000,000.00 (Ten Million Naira) only to the Respondent against the Appellant.

The Respondent (as plaintiff) at the court below had through a 31 paragraph statement of claim dated and filed on the 22nd day of March, 2004 claimed as next of kin of late Nazifi Muhammad Auwal three Declarative Reliefs and an order directing the Appellant to pay a total sum of N10,000,000.00 (Ten Million Naira) only as general damages ” for lost (sic), continuous pain, anguish, shock and continuous psychological trauma caused the plaintiff, by the defendant act(s) and omission(s).” The defendant rebutted the claim through a statement of defence dated and filed on the 16th day of April, 2004.

The gist of the Respondents’ claim is to the effect that the Appellant through the negligent conduct of some of their servants who disconnected electricity supply to some properties at Augwan mai Gwado Zaria, Kaduna negligently left electrical wires uncovered with current on the road near ECWA Church. That the said uncovered wires electrocuted and caused the death of the Respondent’s ten year old son, Nazifi Muhammad Auwal.

After hearing evidence from both parties, the learned trial Judge found the Appellant liable in negligence when he held as follows:-

I am of the view that the death was caused by the conduct of the defendant The evidence of disconnection, the proof of fault, and the fact that on three occasions, Pw, had reported to the Appellant on incidence of shock (a fact I believe) which they neglected to come to rectify, all point to one conclusion, of culpable negligence on their part.

Consequent upon these findings, the learned trial Judge proceeded to award general damages to the Respondent in the total sum of N10,000,000.00 (Ten Million Naira) only claimed by the Respondent. It is therefore against this judgment that the Appellant has filed this Appeal. In all, six grounds of appeal are contained in the Notice of appeal dated and filed on the 6th of December, 2006.

From the six grounds, the learned counsel for the Appellant, Charles Mafua Esq. formulated three issues for the determination of this appeal as follows:-

1. Whether or not the trial court had jurisdiction to hear and determine this case.
2. Whether the award of damages to the Respondent was in accordance with law.
3. Whether the Respondent discharged the burden of proof placed on him.

The learned counsel for the Respondent, M. K. Sanusi Esq. did not formulate any issue but adopts the three issues formulated by the Appellant. I shall in the circumstance determine this appeal on the three issues as formulated by the Appellant.

The learned counsel for the Appellant contends on the first issue that the commencement and conclusion of this suit was carried out in a wrong court i.e the Federal High Court. According to him, at common law, death extinguishes any existing cause of action in tort by one against the other citing Winfield and Jolowicz on Torts, 11th Edition by W.V.H Rogers, chapter 23 pg 230 – 231 that the cause of action usually extinguishes with the deceased and that it was because of this that the Respondent sued the Appellant as next of kin of the deceased.

Learned Counsel contends that the provisions of the Fatal Accident Law of Kaduna State covers an action relating to and flowing from the death of the Respondent’s son as a result of the wrongful act, neglect or default of the appellants’ servants. It is further contended that by sections 9 and 2 of the said law, the Respondent’s action ought to have been commenced at the Kaduna State High Court and not the Federal High Court. That the jurisdiction of the Federal High Court was cut down by the expresses provision of the Fatal Accident Law of Kaduna State citing the case of Stowe V. Stowe (2000) FWLR (pt 24) 1424 at 1433 – 1434 paras H – A.

Citing several authorities including NDIC V. CBN & Anor (2000) FWLR (pt 99) 1021, Elugbe V. Omokhafe (2004) 18 NWLR (pt 905)319 and Gaji V. Paye (2003) 8 NWLR (pt 823) 583, the learned counsel concluded on this issue that issue of jurisdiction, being a threshold issue can be raised at any stage of the case, be it at the trial, on appeal to the court of Appeal or Supreme Court or the Court can even raise it suo motu. He then urged this court to resolve this issue in favour of the Appellant.

In his response, the learned counsel for the Respondent submitted that to determine whether the subject matter of an action is within the jurisdiction of the court or not, one has to look only at the reliefs sought by the plaintiff in his statement of claim relying on the case of Dr. Taiwo Oloruntoba Oju & 5 Ors Vs Prof. P.A. Dopamu & 6 Ors (2003) FWLR (pt 158) 1268. That it is a misplacement of priorities to still abide by the common Law where there are locally specific statutes, decisions and authorities on the issue. Citing the case of NEPA V. Edegbero & 15 Ors (2003) FWLR (pt 139) 1556 and sections 1(1) (2) & (3) of 1999 constitution, also Section 251(i) (q) (r) & (s) and 252(1) thereof, learned counsel submitted that the provision of Sections 3 and 9 of the Fatal Accident Law of Kaduna State have been misconceived by the Appellant as those sections are subjected to other statutes and more particularly the provisions of the constitution of the Federal Republic of Nigeria. Furthermore, that the Appellant being an agency of the Federal Government, the Federal High Court had exclusive jurisdiction in the matter citing the case of Adebileje Vs NEPA (1998)12 NWLR (pt 577) 219 at 227.

Still on this issue, the Respondents counsel in paragraph 4.12 of his brief, submitted that the Appellant misdirected itself, by introducing issues, not canvassed by the parties at the lower court without the leave of this court. That issues bordering on the Fatal Accident Law was never raised or pronounced upon by the court below. That having raised this issue without the leave of court, the arguments herein should be discountenanced, citing the cases of Alh. Iliyasu Umar V. Bayero University, Kano (1988) 78 SC part 2 P.I at 7, Nrs Olufunmilayo Ibironke Kasumu V. Alh. Siriku A. Shitta Bey (2007) FWLR (pt 356) 741, Hon. Justice C.C Nwaogwugwu V. The President of FRN & 5 Ors (2007) All FWLR (pt 358) 1151 at 1174 para D-E.