CORAM
Kudirat Motonmori Olatokunbo Kekere-Ekun, Justice of the Supreme Court of Nigeria
Ejembi Eko, Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba, Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa, Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim, Justice of the Supreme Court of Nigeria
PARTIES
1. ORAKUL RESOURCES LTD
2. EDANO NIG. LTD.
APPELLANTS
1. NIGERIAN COMMUNICATIONS COMMISSION
2. MTN NIGERIA COMMUNICATIONS LTD
3. ECONET WIRELESS NIG. LTD (AIR TEL)
4. GLOBACOM NIGERIA LTD
5. NITEL LTD. (N-TEL)
RESPONDENTS
AREA(S) OF LAW
ACTION, ADMINISTRATIVE LAW, APPEAL, CONSTITUTIONAL LAW, COURT, ESTOPPEL, FAIR HEARING, INTERPRETATION OF STATUTE, JUDGMENT AND ORDER, JURISDICTION, PRACTICE AND PROCEDURE, STATUTE, WORDS AND PHRASES
SUMMARY OF FACTS
The Appellants, limited liability companies under the laws of the Federal Republic of Nigeria, are subscribers/consumers of fixed and mobile telecommunications services offered by the telecommunication operators licensed in that behalf by the 1st Respondent. The Appellants commenced this action before the Federal High Court, Abuja wherein by a Writ of Summons; they claimed declaratory and injunctive orders against the Respondents and one other. In reaction to the action, the Respondents filed objections separately challenging the competence of the action on the ground of failure by the Appellants to comply with the provisions of Sections 86, 87 and 88 of the Nigerian Communications Act, 2003 (NCC Act) before initiating the action. In a ruling delivered on the objections, the trial Court upheld same and struck out the Appellants’ action on the ground that it had earlier decided the same or similar objection in other cases raised by the Respondents, which the parties agreed to be bound by, and held that the action did not comply with a condition precedent for the invocation of its jurisdiction. Aggrieved with the trial’s Court decision, the Appellants went on appeal against same at the Court of Appeal, Abuja Division, vide the Notice of Appeal, containing Nine (9) Grounds of dissatisfaction. The Court below dismissed the appeal and affirmed the decision of the trial Court. Still aggrieved with the decision of the Court below, the Appellants brought this further and final appeal by a Notice of Appeal on Six (6) Grounds of Appeal.
HELD
Appeal Dismissed
Appeal Allowed
ISSUES
Whether the suit of the Appellants was incompetent having failed to fulfil the condition precedent prescribed in the provisions of Sections 86 – 88 of the Nigeria Communications Commission Act is to be accorded priority since it goes to challenge the jurisdiction of the trial Court to entertain the action.
Whether the onerous requirements under Sections 86, 87 and 88 of the NCC Act that the prospective Plaintiff, desiring to ventilate his grievance against the NCC in the law Court, must satisfy before commencing his suit do not in substance negate or obviate their right of easy accessibility to the law Court guaranteed and assured to the citizens and litigants under the Constitution?
RATIONES DECIDENDI
FUNDAMENTAL NATURE AND EFFECT OF LACK OF JURISDICTION – STAGE IN A PROCEEDING IN WHICH IT CAN BE RAISED
“Where it is determined that a Court lacks the requisite jurisdiction to adjudicate in a case, there will be no valid proceedings in which the right to fair hearing could be breached or violated since in law all proceedings conducted by a Court of law in the absence of the requisite jurisdiction are automatically, null, void and of no effect, ab initio, since the defect is both intrinsic and extrinsic to adjudication. Hon. Justice O.O. Adekeye, JSC, in the case of Oyegun v. Nzeribe (2010) 7 NWLR (pt. 1194) 577 stated law that:-
“The doctrine of fair hearing can only be invoked by Court after it has assumed jurisdiction – that is, it is competent to hear the matter.”
It is due to the crucial and fundamental nature of the issue of jurisdiction of a Court to entertain and adjudicate over a case by conducting valid proceedings that it has variously been described by this Court as “blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.” Per Bello, CJN in Utih v. Onoyivwe (1991) 1 SC (pt. I) 61, (1991) 1 SCNJ, 25, (1991) 1 NWLR (pt. 166) 166, “a threshold issue, in that a Court must have jurisdiction before it can enter into a cause or matter at all,” Per Nnaemeka-Agu, JSC, in Odofin v. Agu (1992) 1 NWLR (pt. 229) 350, “a term of comprehensive import embracing every kind of judicial action … a radical and fundamental question of competence,” per Adekeye, JSC in Egbarema v. Eribo (2010) 9 NWLR (pt. 1199) 411, “the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision” per Idigbe, JSC in Ndaeyo v. Ogunaya (1977) 1 SC 7 (1977) All NLR, 169 etc.
The above nature and fundamental character of the issue of jurisdiction of a Court, account for the law that it is never too early or too late in the course of judicial proceedings of all Courts in the judicial hierarchy in Nigeria, for it to be raised by any of the parties to a case/matter or the Court suo motu, even viva voce. See Chacharos v. Ekimpex Ltd (1988) 1 NWLR (pt. 68) 88, (1988) JSC 161, State v. Onagoruwa (1992) 2 SCNJ 1, Ejiofodomi v. Okonkwo (1982) 11 SC, 74, Ngere v. Okuruket xiv (2014) 11 NWLR (pt. 1417) 147, Mil. Gov., Ondo State v. Kolawole (2008) 5 SCNJ, Petrojessica Ent. Ltd. v. Leventis Tech. Con. Ltd. (1992) 1 NWLR (pt. 244) 675. -PER M. L. GARBA, J.S.C.
CONDITION PRECEDENT FOR A COURT TO BE CLOTHED WITH JURISDICTION
“Now, the law is trite that a Court of law would be seized of requisite jurisdiction over the case when/if the following conditions are met or satisfied, as prescribed in the locus classicus judicial decision on the issue in the case of Madukolu v. Nkemdilim (1962) 1 All NLR, 587, (1962) 3 CNLR, 341:-
1. It is properly constituted as regards number and qualification of members.
2. The subject matter of the action is within its jurisdiction, and
3. The matter is brought before it by due process of law, and upon the fulfilment of any condition precedent to the exercise of jurisdiction.
See also Sken-Consult Nig. Ltd. v. Ukey (1981) 1 SC, Ajao v. Alao (1986) 1 NWLR (pt. 45) 802, Anyaoke v. Adi (1985) 4 SC (pt. 1) 213, (1985) All NLR, 220, (1985) 1 NWLR (pt. 2) 342, Asore v. Lemomu (1994) 7 NWLR (pt. 356) 284. -PER M. L. GARBA, J.S.C.
ADMINISTRATIVE REMEDIES UNDER SECTIONS 86, 87 AND 88 OF THE NIGERIAN COMMUNICATIONS COMMISSION ACT THAT MUST BE EXHAUSTED BEFORE A PARTY HAS ACCESS TO COURT
“The provisions are in the following terms:-
“86… (1) A person who is aggrieved or whose interest is adversely affected by any decision of the Commission made pursuant to the exercise of the powers and function under this Act or its subsidiary legislation (“aggrieved person”) may request in writing to the Commission for a statement of the reasons for the decision.
(2) The Commission shall upon such written requests by an aggrieved person, provide a copy of a statement of reasons for the decision and any relevant information taken into account in making the decision.
(3) The Commission is not required to publish, or to disclose to the aggrieved person, a statement of reasons or a part of a statement of reasons if the publication or disclosure would …
(a) Disclose a matter that is, in the opinion of the Commission, of a confidential character;
(b) be likely to prejudice the fair trial of a person, or
(c) Involve the unreasonable disclosure of personal information about any individual (including a deceased persons).
(d) In this Chapter, “decision ” includes any action, order, report direction.
“87 …(1) An aggrieved person may at any time within but not later than 30 days after the date of the receipt of the Commission’s statement of reasons specified in Section 86(2) of this Act request the Commission in writing for a review of the Commission’s decision and specify therein the reasons and basis for his request.
(2) Subject to Subsection (1) of this Section;
Upon receipt of the aggrieved person’s written submissions consideration, the submissions of the aggrieved person under Subsection (1) of this Section.
(3) The Commission may, in carrying out the review of its decision under this part, use and exercise any of its powers under this Chapter.
(4) The Commission shall not later than 60 days from the date of receipt of the aggrieved person’s written submissions, conclude its review of the decision and inform the aggrieved person in writing of its final decision thereon and the reasons therefore.
“88 …. (1) Subject to Section 87 of this Act and Subsection (2) and (3) of this Section, an aggrieved person may appeal to the Court for a judicial review of the Commission’s decision or other action.
(2) The decision or direction of the Commission that is the subject matter of an application for judicial review shall subsist and remain binding and valid until it is expressly reversed in a final judgment or order of the Court.
(3) A person shall not apply to the Court for a judicial review unless that the person has first exhausted all other remedies provided under this Act.”
These provisions, prima facie, appear to be clear and unambiguous in their words and language and so require no interpretation Awolowo v. Shagari (1979) All NLR, 120, Dyktrade Ltd. v. Omnia Nig. Ltd (2000) 12 NWLR (pt. 680) 1, PDP v. CPC (2011) 17 NWLR (pt. 1277) 522, but are to be given their ordinary, natural and plain meanings since the precise words, in the circumstances, best declare the intention of the legislature, which all principles or rules of statutory interpretation are aimed at, unless it would lead to absurdity, repugnancy or inconsistency. See Ifezue v. Mbadugha (supra) also reported in (1984) 5 SC, 1, Kotoye v. Saraki (1994) 7 N WLR (pt. 351) 414, Adewumi v. A.G. Ekiti state (2002) 2 NWLR (pt. 751) 474, Uwazurike v. A.G. Federation (2007) 8 NWLR (pt. 1035) 1, (2007) 2 SC, 169. -PER M. L. GARBA, J.S.C.
CONDITION PRECEDENT FOR AN AGGRIEVED PARTY TO EXERCISE ITS RIGHT OF ACCESS TO COURT FOR JUDICIAL REVIEW OF A FINAL DECISION BY THE NIGERIAN COMMUNICATIONS COMMISSION
“On its part, Section 88, which is subjected to the provisions in Section 87 (1) – (3), in Subsection (1) provides the right of access to the Courts, by way of an appeal to the Court for a review of the 1st Respondent’s decision dissatisfied therewith, unclear to an aggrieved person. Undoubtedly, by the provisions of Subsection (1) of Section 88, an aggrieved person, who after the conclusion of the steps set out in the provisions of Sections 86 and 87 with the final decision by the 1st Respondent after review of the earlier decision or other action made or taken by it complained about by an aggrieved person, is given and afforded an opportunity or the right of approaching or access to Court to seek for a judicial review of the final decision of the 1st Respondent. If still not satisfied with it, I should add and point out, that the aggrieved person, after following or going through the procedure or steps provided for in Sections 86 and 87, has the unfettered right of access to the Courts for a remedy or relief by way of an application for judicial review of the final decision by the 1st Respondent.
Then comes in the provision in Section 88 (3), which once again, says:-
“A person shall not apply to the Court for a judicial review unless that person has first exhausted all other remedies provided for under this Act.”
The “person” used in the simple provision is and means the and “an aggrieved person” used in Subsection (1) which provides for the right of appeal by way of judicial review of the 1st Respondent’s decision or other action.
Plainly, by the provision, a person aggrieved by any decision or other action made or taken by the 1st Respondent in the exercise of its powers and functions as provided for in the Nigeria Communications Commission Act, “shall not” or cannot exercise the right of appeal for judicial review of that decision or other action, as provided for in subsection (l), by going to the Court “unless” or until he has first exhausted all the other remedies provided for under the Act.
Clearly, the exhaustion of all the other remedies provided for an aggrieved person under the Nigeria Communications Commission Act who is aggrieved by or whose interest is adversely affected by any decision or other action of the 1st Respondent is made a condition precedent to be fulfilled, satisfied or met before the resort in Court over the grievance or interest in question. Under the provision, an aggrieved person cannot go to Court first to challenge or question any such decision or other action made or taken by the 1st Respondent before exhausting all the remedies provided for grievances against the decision under the Nigeria Communications Commission Act. This is beyond any legally viable dispute. PER M. L. GARBA, J.S.C.
DEFINITION OF “CONDITION PRECEDENT”
“In the case of Atolagbe v. Awuni (1997) 9 NWLR (pt. 522) 536, Ogwuegbu, JSC referred to the Osborn’s Concise Law Dictionary, 8th Edition, with approval, wherein “condition precedent” was defined thus:-
“A condition precedent is one which delays the vesting of a right until the happening of an event.”
In the 6th Edition of Black’s Law Dictionary, “condition precedent” defined as:-
“One which must happen or to be performed before the estate to which it is annexed can vest or it is one which is to be performed before some right dependent thereon accrues or some act performed.”
Sec also IAL 361 INC. v. Mobil Nig. Plc. (1999) 5 NWLR (pt. 601) 9, Adeleke v. OSHA (2006) 16, NWLR (pt. 1006) 608, Niger-care Dev. Co. Ltd. v. Adamawa state Water Bel. (2008) 2 – 3 SC (pt. 11) 202, (2008) 9 N WLR (pt. 1093) 498, Drexel Energy & Nat. Res. Ltd. v. Trans. Int’l Bank Ltd. (2009) 18 NWLR (pt. II 19) 388, (2009) 15 WRN, 1”. PER M. L. GARBA, J.S.C.
POSITION OF THE LAW WHERE THERE EXIST STIPULATED PRECONDITIONS FOR SETTING A LEGAL PROCESS IN MOTION
“In IAL 361 Inc. v. Mobil Nig. Plc (supra), the law was restated at page 2 that:-
“And the law is sacrosanct that where there is a non-compliance with a stipulated precondition for setting a legal process in motion, any suit instituted in contravention of the pre-condition provision of the relevant law, is incompetent and a Court of law, is for that reason, lacking in jurisdiction/power to entertain it.”
The cases of Western Steel Works Ltd. v. Iron & Steel Workers Union of Nigeria (1986) 3 NWLR (pt. 30) 617, Ajanaktl v. C.O.P. (1979) 3 & 4 SC, 28, and Gambari v. Gambari (1990) 5 NWLR (pt. 152) 572 are cited and relied on for that position of the law.
This Court, per Musdapher, JSC, (former CJN) in the case of Owoseni v. Faloye (2005) 14 N WLR (pt. 496) 719 at 740 had stated in the lead judgment, that:-
“Now, in my view, the Court of Appeal is perfectly right in the statement of the law to the effect that where a statute prescribes a legal line of action for the determination of an issue, be it an administrative matter, Chieftaincy matter, or a matter for taxation, before going to Court.”
Oguntade, JSC, in his concurrent decision emphasized at page 757, that:
“It is important to stress that laws which prescribed that some procedural steps to be taken to resolve a dispute before embarking on actual litigation are not and cannot be treated or categorized as ousting of the jurisdiction of the Court. Indeed, if such laws do so, they would be in conflict with the provisions of the Constitution. Such laws, only afford the body to which such disputes must be referred to in the first instance an opportunity to resolve the dispute if it can before recourse to the Court. In other words, they serve the purpose of preventing actual litigation in Court where it is possible or desirable to resolve the dispute.”
Then in Ogologo v. Uche (2005) 14 NWLR (pt. 945) 226 at 245, Belgore JSC (former CJN) restated, emphatically, that:-
“Where a law has given exclusive power to a body to decide, the Court cannot come in before that body has exercised that power. Court can come in only where there is exhaustion of all remedies before that body and Court will then be able to decide whether that power had been exercised lawfully.”
See also Okomalu v. Akinbode (2006) 9 NWLR (pt. 985) 338 (SC).
From these authorities, it is clearly incontestable, legally, that where the provisions of a statute or law prescribe some internal mechanisms by which, remedies or reliefs for some grievance/s could be sought and to be followed or complied with by a party before instituting a legal action in a Court of law over the same grievance/s, the party has no discretion or option, but to exhaust all the remedies provided for by the statute or law first, before going to Court as the Court’s jurisdiction in such circumstance, will be put in abeyance pending the completion of the internal mechanisms for the remedies. -PER M. L. GARBA, J.S.C.
EFFECT OF NON-COMPLIANCE WITH STATUTORY PROVISIONS
“In the case of Eguamwense v. Amaghizemwen (1993) 2 NWLR (pt. 315 1 at 23, Kabibi Whyte, JSC, speaking for this Court in the leading judgment had stated the law that:-
“It is accepted as correct principle of law that where a statute creates a special right to which a special remedy is attached, resort cannot be had to any remedy other than that provided for in the statute creating the right. As Lord Watson L., J., expressed it in Barraclough v. Brown (1987) AC at page 622.
“The right and the remedy are given uno flatu and the one cannot be dissociated from the other.”
See also Salako v. Alao (supra) Ajewole v. Adetimo (Supra).
Having chosen to exercise the right created by the Nigeria Communications Commission Act to challenge or question the decision of the 1st Respondent taken in exercise of the powers and functions under the Act on ground of alleged contravention of the provisions of the Act, the Appellants as aggrieved person/s, cannot dissociate and run away from the remedies provided for by the provisions of the Act or the procedure specifically set out for them. The Appellants cannot be seen to assert a right created by and under the Nigeria Communications Commission Act and at the same time, completely disregard the specific procedure prescribed by the Act for seeking remedy for the alleged breach or contravention of the right on ground of non-compliance with the requirements of the Act.
The law is now trite that where a person fails to adhere to the dictates of a statutory provision from which he seeks to benefit, non-compliance with the said statutory provisions will deprive him of the benefit he seeks to derive therefrom. See Afribank Nig. Plc. v. Akwara (2006) 1 SC (pl. II) 40, Khalil v. Yar’adua (2003) 16 NWLR (pt. 847) 446 at 488, Adesanoye v. Adewole (2006) 7 SC (pt. 111) 19 at 30-31. -PER M. L. GARBA, J.S.C.
DUTY OF COURT IN THE CONSTRUCTION OF THE PROVISIONS OF A STATUTE
“In the interpretation of the word “may”, all the provisions of Sections 86 – 88 and the overall object they project in the context of the Act, would have to be considered and taken into account. In this regard, the law is settled, as stated by learned counsel for the Respondents that in the construction of the provisions of a statute, all the provisions dealing with the subject matter and the overall context, intendment or purport of the statute are to be considered together, holistically and not in isolation in order to identify the real intention of the legislature. Judicial authorities on this position of the law, galore and include the ones cited by learned counsel, supra.
Others are Lemboye v. Ogunsiji (1990) 6 NWLR (pt. 155) 210, Oyeyipo v. Oyinloye (1987) 2 SC, 148, Adisa v. Oyinwola (2000) 10 NWLR (pt. 674) 116, Odutola Holdings v. Ladejobi (2006) 5 SC (pt. 1) 83, Ojukwu v. Obasanjo (2006) 2 EPR, 242, Enang v. Umoh (2012) LPELR-3386. -PER M. L. GARBA, J.S.C.
INTERPRETATION OF “MAY” WHEN USED IN A STATUTE
“Madarikan, JSC, described the word “may” used in a statute in the case of Mokelu v. Fed. Comm. For Works & Housing (1976) 3 SC, 60, thus:-
”May” is an enabling or permissive word. In that sense, it imposes or gives a discretion any or enabling power. But where the object of the power is to effectuate a legal right, “may” has been construed as compulsory or as imposing an obligatory duty.”
In the provisions of Sections 86 (1) and 87 (1) by the Act, the word “may” is used by the legislature to effectuate or give effect to the right created and given to and for the benefit of an aggrieved person to challenge or question any decision or other action of the 1st Respondent in the exercise of the powers and functions under the Act.
An aggrieved person, by the provisions, who intends to exercise the right to challenge and question the decision or other action, has no other option or choice than to follow the procedure and take the steps prescribed in the provisions in seeking the remedy provided therein, of review of the decision with which he is aggrieved. -PER M. L. GARBA, J.S.C.
DUTY OF COURT WHEN INTERPRETING STATUTES
“I agree with him that every statute must be construed according to its intendment and tenor. The duty of the Court when interpreting a statute is to seek out the intention of the lawmaker and give effect to it. See Buhari vs INEC (2008) 18 NWLR (Pt.1120)246, Ojokolobo vs Alamu (1987) 3 NWLR (Pt61) 377 @ 402. Where the words are clear and explicit, the Court must give effect to them. -PER K. M. O. KEKERE-EKUN, J.S.C
WHETHER STATUTORY PRE-CONDITIONS FOR COMMENCEMENT OF SUIT OUST THE JURISDICTION OF COURT
“In the case of Kayili vs Yilbuk (2015) 7 NWLR (Pt.1457) 26, this Court had cause to construe Section 3(2) of the Chiefs (Appointment and Deposition) Law of Northern Nigeria, 1963, which provides that in the event of any dispute, it must be referred to and resolved by the prescribed authority, i.e. the Governor, who would be the sole judge as to whether the appointment of a chief has been made in accordance with native law and custom. It was argued that the provision was unconstitutional for ousting the Court’s jurisdiction. In that case, on the issue of compliance with conditions precedent, it was held at pages 82-83 F- B:
“The position of the law is that where a statute provides a legal line of action for the determination of an issue, the aggrieved party must exhaust all the remedies in the law before going to Court. See Eguamwense Vs Amaghizemwen (1993) 9 NWLR (Pt.315) 1, Aribisala vs Ogunyemi (2005) 6 NWLR (Pt.921) 212 @ 231-232 G – B, Owoseni vs Faloye (2005) 14 NWLR (Pt.946) 719 @ 740 G – H … However, unless the statute specifically so provides in clear and unambiguous language, the jurisdiction of the Court is not ousted in the case of Owoseni Vs Faloye (supra) at page 757 para-B, this Court held thus:
“Laws which prescribe that some procedural steps be taken to resolve a dispute before embarking on actual litigation are not and cannot be treated or categorized as ousting the jurisdiction of the Court.”
The invocation of the Court’s jurisdiction is merely delayed until the steps prescribed by the statute have been complied with….
By making provision for the resolution of disputes by the prescribed authority, a condition precedent to approaching the Court for redress, the intention of the lawmaker is to reduce the number of such disputes, which eventually find their way into Court.
It is a means of alternative dispute resolution to reduce congestion of cases before the Court. Such provisions cannot however oust the jurisdiction of the Court and confer judicial powers on the Governor or prescribed authority.”
(Emphasis mine). It is to be noted that while the Court endorsed the principle behind the inclusion in statutes of provisions prescribing conditions to be fulfilled before the invocation of the Court’s jurisdiction, on the facts of that particular case, the provision making the Governor the sole judge as to whether a person has been validly appointed as a Chief or not, was held to be unconstitutional, having specifically ousted the Court’s jurisdiction.
In A.G. Kwara State Vs Adeyemo (2017) 1 NWLR (Pt.1457) 210 @ 246 B – F, Ngwuta, JSC (of recent blessed memory), set out the provisions of Section 15(1) and (2) of the Chiefs (Appointment and Deposition) Law Cap C9 Laws of Kwara State, 2006 and held thus:
“Above are “pre-action” requirements in the same class as pre-action notices which have been declared not unconstitutional. See Anambra State Government & Ors Vs Nwankwo & Ors (1995) 9 NWLR (Pt.418) 275. The aim of statutory pre-conditions for commencement of suit is to provide opportunity for settlement out of Court…
The intendment is to give a person contemplating Court action the opportunity to give the matter a second thought before embarking on avoidable litigation. Unless the conditions precedent to the institution of an action are complied with, the party initiating the suit cannot ignite the jurisdiction of the Court to hear and determine the dispute. In such a case, the matter ought to be struck out. (Underlining mine) -PER K. M. O. KEKERE-EKUN, J.S.C
DUTY OF COURTS IN THE CONSTRUCTION OF THE PROVISIONS OF A STATUTE
“There is a huge body of settled case law that the provisions of a statute, particularly those relating to the same subject matter, must be read as a whole and not in isolated patches, for such a reading best brings out the intention of the legislature. -PER E. A. AGIM, J.S.C
WHETHER A PARTY HAVING WAIVED A LEGAL RIGHT CAN COMPLAIN OF A DENIAL OF THE RIGHT TO FAIR HEARING
“It does not lie in their mouths to raise any question of denial to them of fair hearing in the procedure they had expressly consented to. All parties, including the Appellants had agreed to be bound by the decisions in the similar previous objections. As held in Ariori v. Elemo (1983) LPELR- 552 (SC), a party entitled to the benefit of a legal right enuring to him can waive it and allow the transaction to proceed as though the legal right did not exist. The Appellants having consented to the particular procedure are estopped from complaining that the procedure they had acquiesced to was wrong and or tantamount to denial of their right to fair hearing. Their conduct amounts to estoppel by conduct under Section 169 Evidence Act, 2011”. – PER E. EKO, J.S.C
WHETHER CONSTITUTIONAL RIGHTS CAN BE WHITTLED DOWN BY A MUNICIPAL STATUTE
“Sections 6(6)(a) & (b), 17(2)(a) & (e) and 36(1) of the extant Constitution provide –
6.(6) The judicial powers vested in accordance with the foregoing provisions of this section –
(a) shall extend notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a Court of law;
(b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.
17(1) The state social order is founded on ideals of freedom, equality and justice
(2) In furtherance of the order –
(a) every citizen shall have equality of rights, obligations and opportunities before the law;
(e) the independence, impartiality and integrity of Courts of law, and easy accessibility thereto shall be secured and maintained.
36.(1) In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such matter as to secure its independence and impartiality.
Section 17 of the Constitution is in Chapter II -Fundamental Objectives and Directive Principles of State Policy of the Constitution. It is an integral part of the Constitution. Courts in India enforce similar Directive Principles, being integral part of the Constitution: Pandev v. State Of Bingal (1988) LRC (const.) 241. Accordingly, by dint of Section 1(3) of the Nigerian Constitution, any Act of the National Assembly, as the NCC Act, 2003, that is inconsistent with any provisions of the Constitution, including Sections 6(6), 17(2) & 36(1) of the Constitution, is to the extent of the inconsistency void.
Easy accessibility to the Court of law, as guaranteed by Section 17(2)(e) of the Constitution like equality between the litigants – the Plaintiff qua the defendant, before the law are all constitutional rights. Such rights created by the Constitution itself can only be taken away or derogated by the Constitution.
In other words, a right vested or created by the Constitution cannot be taken away or whittled down by a municipal statute (like Sections 86, 87 and 88 of the NCC Act, 2003), That principle was re-affirmed by this Court in Global Excellence v. Duke (2007) 16 NWLR (pt. 1059) 22 at 48. PER E. EKO, J.S.C
IMPLICATION OF STATUTORY PROVISION TENDING TO REGULATE OR RESTRICT THE CONSTITUTIONAL RIGHT OF EASY ACCESS TO THE COURT OF LAW BY CITIZENS
“Uninhibited or unhindered access to Court of law, that is: the direct and ‘”easy accessibility thereto” guaranteed by Section 17(2)(e) of the Constitution is a major aspect of the Rule of Law. Any provision of a municipal law or statute purporting to restrict ‘”easy accessibility” to the law Courts for citizens to ventilate their grievances must be subjected to strict interrogation or interpretation: Nigercare Dev. Co. Ltd v, Adamawa State Water Board (2008) ALL FWLR (pt. 422) 1052 (SC) at 1075. In Cotecna Int, Co, Ltd. v. Churchgate Nig. Ltd (2010) 18 NWLR (pt. 1225) 346, this Court further reiterates the point that unhindered accessibility to the Court of law by the citizens of this country, like any other, that operates under the rule of law for the citizens to vent their grievances is a hallmark of civilization. Hence, any statutory provision tending to regulate or restrict the constitutional right of easy access to the Court of law by citizens must be viewed very seriously and strictly too. As Karibi-Whyte, JSC stated in Capt. Amadi v. NNPC (2000) 10 NWLR (pt. 874) 72 at 76, the right to easy access to the law Court for the citizen to vent grievances i.e. in pursuit of the determination of his civil rights or obligations against the other including individuals, government, or authorities, means the approach (or access) to the Court of law without constraint. Such constraints include unnecessary and cumbersome statutory roadblocks as Sections 86, 87 and 88 of the NCC Act have actually sought to or do mount on the way of the litigants like the instant Plaintiffs. The unnecessary statutory roadblocks on the way of the Plaintiffs, as mounted by Sections 86, 87 and 88 of the NCC Act, when viewed against the background of equality of rights and obligations of litigants before the law and the law Court are manifestly designed to deny the Plaintiffs their rights to be equally treated in law and before the law Court qua their rights to approach the Court of law without restraint to seek reliefs against the NCC, a statutory corporation.
Once before the Court of law the Plaintiffs are entitled to be fairly and equally treated like the defendants they had sued. In Nnajiofor v. Ukonu (1985) v, NWLR (pt. 9) 686), this Court re-stating the elements or scope of fair hearing as including easy access to Court, right to opportunity to be heard on any issue raised by the adversary (audi alteram partem) and impartiality of the adjudicatory process especially of the forum. Equality before the law in the constitutional social order under Section 17 of the Constitution also means that both the Plaintiffs and the defendants shall have equality of rights, obligations and opportunities before the law and the law Court. The decision in Nnajiofor V. Ukonu (supra) is a clear espousal of the social order guaranteed under Section 17(2)(a) & (e) of the Constitution.
When Sections 6(6), 17(2)(a) & (e) and 36(1) of the Constitution are read together purposively( (Nafiu Rabiu v. Kano State (1980) LPELR – 2936 (SC)), it becomes very clear that the Constitution uncompromisingly guarantees to every person with a grievance unrestricted access to the law Court, under its rule of law guarantee, to ventilate such grievances there. Sections 36(1), for instance, also confers on every citizen with a grievance the right to access to the Courts. It leaves the door open to any person desiring to ventilate his grievance there. It also makes it obligatory on the Court or tribunal established by law to determine the rights and obligations of the plaintiff qua the defendant in accordance with the dictates of fair hearing. See Kenon & Ors. v. Tekam & Ors. (2001) 7 NSCQR 147 at 159. – PER E. EKO, J.S.C
WHETHER SECTIONS 86, 87 & 88 OF THE NIGERIAN COMMUNICATIONS COMMISSION ACT ARE ENACTED WITH THE VIEW OF INHIBITING OR HINDERING THE CITIZENS FROM HAVING DIRECT AND EASY ACCESS TO THE COURT OF LAW
“Sections 86, 87 & 88 of the NCC Act, which are additional formalities imposed on the plaintiff to satisfy before approaching the Court of law to ventilate his grievance that the NCC, in purportedly approving new interconnectivity rates for fixed and mobile networks, had acted in contravention of the mandatory and stringent provisions of the NCC Act, are inhibitory statutory impediments or roadblocks. The said provisions of the Act are designed to derogate, and indeed derogate, from the constitutional purpose of guaranteeing direct and easy access of the Plaintiffs to the Court of law to ventilate their grievance(s) against the defendants. In Atolagbe v. Awuni (1997) 9 NWLR (pt. 522) 536; (1997) 1 SCNJ 1, this Court acknowledged that if any statutory provision prescribing mandatory pre-action notice is proved to have been enacted with the view of inhibiting or hindering the citizens from having direct and easy access to the Court of law, such statutory provisions will be ultra vires and a nullity for being unconstitutional. – PER E. EKO, J.S.C
WHETHER THE RIGHT OF EASY ACCESS TO THE COURT OF LAW CAN BE TAKEN AWAY BY A MUNICIPAL STATUTE
“No provision of the Constitution empowers the Legislature to enact anti-people provisions into any statute. Nothing also exists in the Constitution that empowers the legislature to enact laws that promote impunity or abuse of powers by public officers, authorities and statutory corporations. On the contrary, the promotion of good government and the welfare of all persons in the country, on the principles of freedom, equality and justice is the basic purpose of the Constitution. On this basic purpose of the Constitution, the provisions of Sections 86, 87 and 88 of the NCC Act designed to frustrate aggrieved persons by its cumbersome procedure are unconstitutional. Section 86(3) thereof, for instance that empowers the Commission to refuse “to publish, or to disclose to the aggrieved person, a statement or reasons” for its decisions or action encourages opaque administration, highhandedness and impunity on the part of the NCC. This certainly runs against the basic purpose of our Constitution.
I had earlier posited that the right of easy access to the Court of law, being a constitutional right, can only be taken away by a provision in the Constitution, and not by any other municipal statute (as Sections 86, 87 & 88 of the NCC Act): Global Excellence v. Duke (supra) at 48. The example of this is Section 44(2)(i) of the Constitution that provides that nothing in Sub-section (1) thereof, guaranteeing the right to own movable property or any interest in immovable property, “shall be construed as affecting any general law relating to limitations of actions”. That is the only provision in the Constitution authorizing the enactment of municipal statutes on limitations of actions. – PER E. EKO, J.S.C
CASES CITED
NONE
STATUTES REFERRED TO
Chiefs (Appointment and Deposition) Law Cap C9 Laws of Kwara State, 2006
Constitution of the Federal Republic of Nigeria, 1999
Evidence Act, 2011
Nigerian Communications Act, 2003