Orakul Resources Limited & Anr. V. Nigerian Communications Commission & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER.ODILI, J.C.A.

This is an appeal by the plaintiffs/Appellants (hereinafter called the Appellants) against a ruling delivered by Justice B.F.M. Nyako of the Federal High Court, Abuja on the 27th December 2004 whereby she struck out the Appellants’ action on the ground that the appellants failed to seek and obtain the 1st Defendant/Respondent’s reasons for issuing a purported interconnection rate determination that purportedly approved interconnection rates between mobile and fixed networks.

FACTS BRIEFLY STATED

The Appellants commenced the substantive action seeking declaratory and injunctive reliefs against the Defendant/Respondents for failing to comply with the stringent requirements applicable to the 1st Appellant’s exercise of her regulatory powers on interconnection rates. Such requirements mandate the 1st Respondent to issue a public notice inviting all stake holders to a public inquiry as a pre-condition to the enactment of a regulation. Because the Appellants did not request a statement of reasons from the 1st Respondent before commencing the substantive suit, the Respondents filed their respective preliminary objections urging the lower court to strike out the suit.

The objection was argued and on 17th December, 2004 the lower court delivered a ruling wherein it struck out the action as being premature and incompetent. Dissatisfied with the ruling/Order striking out the suit, the Appellants appealed to this court seeking a reversal of the lower court’s Ruling/Order.

On the 28/11/05, Mr. Uchendu learned counsel for the Appellants moved their motion of that 28/11/05 in which Appellants sought to withdraw the appeal against the 6th Respondent and for the name of the 6th Respondent to be struck out from the appeal. There not being any objection from the other parties the application was granted and the name of the 6th Respondent, M-TEL limited was struck out of the appeal.

ISSUE FOR DETERMINATION

The Appellant through counsel, Mr. Uchendu referred to Appellant’s Brief filed on 2/6/05. In it, Appellant posed five questions for determination which are:-

1. Even though it heard the Respondent’s Preliminary Objection and without determining the same, whether the lower court was right to strike out the Appellant’s suit on the basis of its earlier decision in a different case not involving the Appellants (Grounds V & VI) .
2. Whether the lower court was right to have considered legal and factual issues raised suo motu by the court in striking out the suit without affording the Appellant the opportunity of being heard. (Ground VII)
3. Whether the lower court was right in holding that the Appellants have not complied with the condition precedent to the invocation of the court’s jurisdiction and if so, whether such conditions are not invalid by virtue of their inconsistency with the constitution (Grounds I & II).
4. Whether the Appellant was bound to exhaust the Respondent’s administrative remedies as a condition to the ventilation of their fundamental right to fair hearing as guaranteed by the constitution (Ground III).
5. Whether the lower court was right in holding that It was agreed that a decision In another case would bind this case. (Ground IV).

The 1st and 5th Respondents Brief was filed on 6/10/05 and they formulated two issues for determination:-

1. Whether or not the learned trial Judge was right to have relied on ruling in an earlier objection in another matter in deciding the objection in this case. (Grounds 4, 5, 6 and 7).
2. Whether or not the Appellants are constitutionally obligated to comply with the conditions precedent to filing the action as stipulated by the Nigerian Communications Act 2003.

The 2nd Respondent in their Brief of Argument filed on 27/9/05 and deemed filed on 26/10/05 posed three questions for determination and they are:-

1. Whether the learned trial Judge was correct when she declined jurisdiction on the ground that the conditions precedent to the invocation of the court’s jurisdiction stipulated in Section 87 of the Nigeria Communications Act 2003 have not been complied with.
2. Are the provisions of Sections 86; 87 and 88 of the Nigerian Communications Act valid or are they in any way in conflict or inconsistent with Section (6) (b) of the 1999 Constitution or any other part thereof.
3. Whether the learned trial Judge was right when in reaching her decision relied on her previous ruling in other decisions.

The 3rd Respondent’s Brief of Argument was filed on 18/7/05 and in it the 3rd Respondent through counsel framed two issues for determination and these are:-

1. Whether the learned trial Judge is right to have relied on the decision in another matter which is on all fours with the instant case as the judgment of the court
2. Whether the Appellant’s case is incompetent for failure to comply with the condition for the institution of this suit

The 5th Respondent’s Brief filed on 19/8/05 was deemed, filed on 26/10/05 and in it the 5th Respondent through their counsel formulated three issues which are as follows:-

1. Whether the lower court was right in holding that the Appellants did not comply with the conditions precedent to the invocation of the jurisdiction of the court before coming before it
2. Whether the Appellants were bound to exhaust the disputes resolution remedies provided in the Nigerian communications Act 2003 before approaching the court for adjudication on a matter bordering on alleged breaches of obligations imposed on the respondents under the Act.
3. Whether the court was right in relying on its decision(s) in cases with similar applications arriving at its ruling.

Having restated the issues for determination as formulated by the respective counsel I believe I can safely utilise two of the issues framed by the 4th Respondent in their Brief to settle the various issues that have arisen and these are:-

1. Whether the lower court was right in holding that the Appellants did not comply with the conditions precedent to the invocation of the jurisdiction of the court before coming before it
2. Whether the court was right in relying on its decision or decisions in cases with similar applications earlier decided by it in arriving at its ruling.

ISSUE NO 1