SUIT NO: HAM/73/2022- MAZI OKECHUKWU UNEGBU VS. ENUGU ELECTRICITY DISTRIBUTION COMPANY- BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA -Delivered ON FRIDAY THE 3RD DAY OF FEBRUARY 2023- Commencement of legal action-requirements of a Writ of Summons-significance of the Statement of Claim-the concept of a condition precedent- the complaint handling procedure of Power Holding Company- National Electricity Regulation Commission (NERC)-the prematurity of the action- Plaintiff had not explored all the internal dispute resolution steps provided before filing the lawsuit- the absence of a properly defined Writ of Summons.

IN THE HIGH COURT OF IMO STATE OF NIGERIA

IN THE HIGH COURT OF MBAISE JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, AHIAZU MBAISE

ON FRIDAY THE 3RD DAY OF FEBRUARY 2023

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA

SUIT NO: HAM/73/2022

BETWEEN

MAZI OKECHUKWU UNEGBU        PLAINTIFF/RESPONDENT

AND

ENUGU ELECTRICITY DISTRIBUTION COMPANY

DEFENDANT/APPLICANT

RULING

By motion on notice brought pursuant to Order 39 Rule 1, Order 3 Rule 1 of High Court of Imo State (Civil Procedure) Rules 2017, Sections 3(5) & 3 (9) of National Electricity Regulation Commission (NERC) Customer Complaints Handling standards and procedures (2006) and under the inherent jurisdiction of this Honourable Court, the the Defendant/Applicant prays as follows:

  1. An Order of Court dismissing/striking out the suit for lack of jurisdiction plaintiff not having complied with conditions precedent before bringing the action.
  2. An Order of Court Striking out the suit for lacking in form having been commenced without Writ of Summons.
  3. And such further Order(s) that the honourable Court may deem fit to make in the circumstances.

The application is founded on the following ground.

  1. The plaintiff failed to comply with mandatory provisions of the law before bringing the action.
  2. Section 3(5) and 3(9) of the National Electricity Regulation Commission (NERC) Customer Complaints Handling Standards and Procedures (2006). Requires the plaintiff to first complain in writing to the Customer Complaints Unit of the Licencee and an appeal to the Forum if need be.
  3. The plaintiff failed to comply with Order 3 Rule 1 of the High Court of Imo State (Civil Procedure) Rules 2017.

Affidavit in support of motion challenging jurisdiction is deposed to by Ojiugo Onyenachiso Ukaonu, the litigation Secretary in Goodnews Law Chambers by virtue of which she said she is conversant with the facts of this case and she has the consent of her boss and that of the defendant/applicant to make this affidavit. she deposed: 1 was informed by C. C. Onyekanne (Esq.), my employer in his office on 8/01/21 around 3pm and I firmly believed him that plaintiff did not comply with the conditions precedent before instituting this action. I was informed by C. C. Onyekanne (Esq.); my employer the writ of summons and the statement of claim did not disclose that plaintiff at any time complained in writing to Customer Complaints Unit of the Distribution Licencee. Suit was commenced without writ of summons.

It is accompanied by a written address. according to te cunsel, this is a Motion challenging jurisdiction of this honourable court on the following grounds; 1.         The plaintiff failed to comply with mandatory provisions of the law before bringing the action. The motion is supported by a five (5) paragraphed affidavit sworn to by Ojiugo Ukonu, a litigation Secretary in the Law Firm of the applicants’ counsel, we shall rely on all the paragraphs of the affidavit in proof of our allegations.

It is contended that the plaintiff did not comply with the required provisions of the law before embarking on this litigation. We say so because plaintiff ought to have followed the due process as provided for in Section 3(5) and 3(9) of the National Electricity Regulation Commission (NERC) Customer Complaints Handling Standards and Procedures (2006). This regulation was made pursuant to Section 96(2) (c) & ( d) of the National Electric Power Sector Reform Act No.6 2005. It provides:

“3(5) All complaints must be lodged firstly, in writing, with the customer complaints Unit of the Distribution licencee.

3(9) Any customer dissatisfied with the outcome of the handling of his complaint(s) by the Customer complaints unit or encounters delay/failure in the handling of such complaint(s) may refer his complaint (s) to the Forum.”

It is submitted that from the above and looking at the originating processes in this wit, it is very copious that the plaintiff did nowhere plead that he ever made any complaint(s) in writing to the Customer Complaints Unit of the Distribution Licencee (the defendant). It will further observed that this suit was commenced without writ of summons as required by Order 3 Rule 1 of the High Court of Imo State (Civil Procedure) Rules 2017.

He formulated issue for determination as:

  1. Whether the plaintiff has satisfied all the requirements of the Law to enable him maintain this action against the defendant?
  2. Whether the entire suit is not incompetent having been commenced without any known form prescribed by the Rules?

Arguing the two issue together, is contended that by the pleadings of the plaintiff in his statement of claim, there is no cause of action against the defendant or rather the plaintiff failed to exhaust internal remedies before filing this action. In Madukolu v Nkemdilim (1962) LPELR-24023(SC) the Supreme Court outlined the conditions necessary before a court could be said to adjudicate over a matter as follows;

  • The Court is properly constituted as regards number and qualification of members of the bench and no member is disqualified for one reason or another;
  • The subject matter of the case is within jurisdiction and there is no feature in the case which prevents the court from exercising jurisdiction; and
  • The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. (Underlining for emphasis by me).

According to the counsel, the Supreme Court have said in the case of Samuel Osigwe v. PSPLS Management Consortium Ltd & Ors (2009) 3 NWLR Pt 1128 p.378 SC and Musaconi v. Aspinall 2014 ALL FWLR pt 710 SC. 1276 that it is the Writ of summons and claim of the plaintiff that determines whether there is a cause of action/jurisdiction. In view if the statement of claim we submit that the plaintiff failed to disclose any form of compliance with the requirements of the law. The various letters as mentioned in paragraph 3 of the statement of claim and as frontloaded, did not satisfy the requirements of Section 3(5) and 3(9) of the National Electricity Regulation Commission (NERC) Customer Complaints Handling Standards and Procedures (2006) which requires the plaintiff to firstly, complain in writing, to THE CUSTOMER COMPLAINTS UNIT OF THE DISTRIBUTION licencee. And secondly if “dissatisfied with the outcome of the handling of his complaint(s) by the Customer complaints unit or encounters delay/failure in the handling of such complaint(s) may refer his complaint (s) to the Forum.” The plaintiff did not address any letter to THE CUSTOMER COMPLAINTS UNIT OF THE DISTRIBUTIO LICENCEE nor to the FORUM, the court is therefore urged to strike out their names with costs. This is so because letters to “The Manager”, “The Station Manager”, are not letters to THE CUSTOMER COMPLAINTS UNIT OF THE DISTRIBUTION LICENCEE. Relied on the decision of Court of appeal in COMAG STEEL AND CONSTRUCTION LTD V ENUGU ELECTRICTY DISTRIBUTION COMPANY PLC (UNREPORTED) CA/E/100/2020 delivered by the Court of Appeal Enugu Division on 4th November 2020 on this same issue.

Counsel relied on Emenike v PDP & Ors (2011) LPELR 19752(CA) stated that “it is trite that where a statute or rules stipulates a specific procedure as condition precedent, it behooves on the person involved to follow the procedure so ascribed. The non compliance is fatal to his complaint.”

What is more the suit was not commenced by Writ of Summons, Originating Summons or Origination Motion. By express provisions of Order 3 Rules 1, 2, 4, 5, 6, 7, and 8 of The Imo State High Court (Civii Procedure) Rules 2017, any action must be commenced in any of the prescribed forms. The instant suit was commenced vide a form unknown to any law.  It is submitted that same is lacking in form and ought to be struck out with heavy cost as Court business is only for serious minded people. Based on the foregoing submissions the court is urged to strike out this suit with heavy and punitive cost.

Counter affidavit of the plaintiff to the defendant’s motion to strike out for lack of jurisdiction was deposed to by Miss Chikwe Splendour Chisom, Female, and Litigation Secretary of Madonna Law Office. She stated: By virtue of my position aforesaid, I am conversant with the facts of this suit which I depose to. I have the consent and authority of both my employer and the plaintiff to make this oath. I was informed by E.O Ndukwe Esq on 22nd day of November, 2021 at Madonna Law Office, Campo Villa House Ogbe Ahiara Ahiazu Mbaise Local Government Area Imo State at about 2:00pm of the following facts which I believed to be true. The plaintiff was served with the motion on notice of this honourable court dated 15th January 2021 wherein the Applicant is seeking the order of the court dismissing/striking out the suit for lack of jurisdiction, plaintiff not having complied with conditions precedent before bringing the action. The plaintiff complied with the conditions precedent before instituting this action. See reply letter from Anyigor Chinedu of NERC dated March 25th, 2020, acknowledging the plaintiffs complaint in line with the Commission’s Regulation on Complaints Handling Procedure. Despite the complaint by the Plaintiff/Respondent referred to above, the plaintiff/Respondent made several complaints to the Defendant/Applicant but none was adequately dealt with. The honourable court has jurisdiction to hear this case. Granting this application will lead to miscarriage of justice. It will be in the interest of justice that this application is refused.

  1. That I depose to this oath conscientiously a

It is accompanied by written address in opposition to the motion challenging jurisdiction. The Applicant/Respondent filed an application challenging jurisdiction of this honourable court on the ground that the plaintiff failed to comply with mandatory provisions of the law before bringing the action to court. In the Counter affidavit Plaintiff/Respondent vehemently opposed the Defendant/ Applicant’s motion for dismissal/striking out of the suit for lack of jurisdiction and has anchored his opposition on a counter affidavit of 10 paragraphs sworn to by the Litigation secretary of Madonna Law Office. We rely on all the paragraphs of the Counter-Affidavit.

The counsel agreed that jurisdiction is a threshold matter. It is very fundamental as it goes to the competence of the court to hear and determine a suit. Where a court does not have jurisdiction to hear the matter, the entire proceedings no matter how well conducted and decided will amount to nullity. See BRONIK MOTORS L TD AND ANOTHER v. WEMA BANK LTD. 19831 SCNLR P. 296.

It is submitted that the court has jurisdiction to hear this matter as the Plaintiff/Respondent complied with the provision of section 3(5) and 3(9) of the National Electricity Regulation Commission (NERC) customer complaints Handling Standards and Procedures (2006).

It is submitted that the Plaintiff/Respondent in his originating process in this suit pleaded the various complaint(s) in writing made to the defendant. He even attached as exhibits, copies of the complaint(s) to his originating processes.

Counsel adpted the sole issue for determination as: (a) Whether the plaintiff has satisfied all the requirements of the law to enable him maintain this action against the defendant.

It is submitted that the Plaintiff/Respondent has a cause of action against the defendant. He complained that they charge bills which they are deducing without meter. That he had exhausted internal remedies and seeing that the Defendant/Applicant were not ready to listen or even attempt to find a way to proffer solution to his complaints, or restore power supply to his house he decided to bring this action before the honourable court.

It is submitted that the Plaintiff/Respondent house has been without light from EEDC transmission centre for-quite a long time now despite the Plaintiff paying for a pre-paid meter and money for its installation. The staffs of the Defendant/Applicant after several letters of complaint from the Plaintiff/Respondent decided to install the pre-paid meter to a pole which is far from the Plaintiff/Respondent’s house and claimed that they have fulfilled their obligation of installing the meter in the Plaintiff/Respondent’s house. The Plaintiff/Respondent wrote’ a letter of complaint to the Defendant/Applicant on his stolen cable wire and the absence of light to his house on several occasions but when he saw that they were not ready to resolve his grievances, he had no option than to approach the court to settle the matter once and for all.

It is submitted that where there is a wrong, there is also a remedy. The Honourable Court cannot fold it arms in the face of a wrong because of unnecessary technicalities because justice delayed is justice denied. The court is urged to refuse this application with a heavy cost.

RESOLUTION OF MATTER

It is contended by the Defendant that is action/suit is not commenced with Writ of ˈSummons. Writ of Summons is a way of starting a legal action by someone who has a claim against a particular person, that orders that person to come to court unless they admit the claim

In VATSA & ORS V. FBN PLC. (2011) LPELR-4232(CA) the importance and function of Writ of Summons is discussed at length. Permit to reproduce same verbatim. It is stated:

“The issuance of a writ is covered by Order 5 Rule 10 of the Rules and it provides:”Before a writ is issued, it shall be endorsed:

(a) With a Statement of Claim, or if the Statement of Claim is not endorsed on the Writ, with a concise Statement of the nature of the Claim or the remedy required in the claim begun thereby;

(b) Where the claim made by the Plaintiff is for a debt or a liquidated demand only, with a statement of the amount claimed in respect of the debt or demand and for costs.”

The content of a writ as stated in Order 5 Rule 2 are:

(1) the names and places of abode of the parties;

(2) the subject matter of the claim;

(3) the Relief the Plaintiff is seeking;

(4) the date of the writ and the place of hearing.

A writ is also to contain the life span of the writ, the capacity in which the parties sue or are sued, and the name and address of the Solicitor taking out the writ. See Omnia Nigeria Ltd. v. Dyktrade Ltd (2007) All FWLR (Pt. 394) 201.

Order 25 of the High Court of Cross River State (Civil Procedure) Rules deals with pleadings generally and Rule 1 thereof which relates to filing of statement of Claim provides that:

“1. Unless the court gives leave to the contrary or the Statement of Claim is endorsed on the writ, the Plaintiff shall serve a Statement of Claim on the Defendant, or if there are two or more Defendants, each Defendant, and shall do so, either when the writ, or notice of the writ is served on that Defendant or at anytime after service of the writ or notice but before the expiration of 30 days after that Defendant enters an appearance”,

A Defendant served with a Statement of Claim is to file a Statement of Defence under Order 25 Rule 2 of the Rules.

By Order 25 Rule 4, a Plaintiff is to set out the facts he relies upon for the claim in the Statement of claim as summarily as it is possible.

Apart from the requirement of stating the facts in the Statement of Claim, the Plaintiff is also required by Order 25 Rule 12 (2) to state specifically in the Statement of Claim the relief which he claims on the Writ of Summons and may make general claim therein. The Statement of Claim thereby supersedes the Writ of Summons. See Enigbokan v. American International Finance Co. Ltd. (1994) 6 NWLR (Pt. 348) 1, Udechukwu v. Okwuka (1956) 1 FSC 7; Ajayi v. Military Administrator, Ondo state (1997) 5 NWLR (Pt. 504) 237.

It is the Statement of Claim that really triggers the action or the contest between the parties, while Writ of Summons introduces the suit. It is therefore the Statement of Claim that the Defendant reacts to by filing a Statement of Defence.

In Daniel Holdings Ltd. v. U.B.A plc (2005) All FWLR (Pt. 277) 895 at 906, Belgore JSC (as he then was) stated the position clearly thus:

“The Writ of Summons opens a case in court; it shows in summary what a plaintiff intends to claim, even though in some cases not all he wants to claim. The real document for contention between the parties is the pleadings. Once a Statement of Claim is filed, the writ of summons is no more of relevance… To the Defendant, Statement of claim setting out in numbered paragraphs the facts on which plaintiff rely for his claim is the case he must react to by Statement of Defence.” Per AKEJU, J.C.A (Pp. 15-18, paras. G-A)

There appears to be no Writ of Summons in this action.

Another major complaint of the Defendant is non fulfillment of condition precedent: A condition precedent is defined as one which delays the vesting of a right until the happening of an event. See IGERCARE DEVELOPMENT COMPANY LTD. V. ADAMAWA STATE WATER BOARD & ORS. (2008) LPELR-1997(SC), (2008) 9 NWLR (PT.1093) 498, (2008) 2-3 S.C. PT II 202 ” Per OGBUAGU, J.S.C. (P. 25, Para. A). When everything has happened which, prima facie, will vest in a party a certain right of action, such as the writ of summons in the instant case which contains materials of the complaint of the plaintiff/appellants and yet in this particular case there is something further to be done, or something more must happen before he is entitled to sue either by reason of provision of some statute or because the parties have expressly so agreed that something more is called “CONDITION PRECEDENT.” See DREXEL ENERGY AND NATURAL RESOURCES LTD. & ORS. V. TRANS INTERNATIONAL BANK LTD & ORS.(2008) LPELR-962(SC), (2008) 18 NWLR (PT. 1119) 388 S.C (2009) 15 W.R.N. 1 S.C. ‘Per ADEREMI, JSC. (P. 51, Paras. A-C)

There is a condition precedent as regards instituting of claim against the Defendant.

In Section 2(6) A Complaint is defined as any allegation in writing made by a complainant, which may include but not restricted to, the following:

  1. There exists a defect or deficiency in the electricity service provided by the Disco;
  2. An unfair trade practice or a restrictive trade practice undertaken by the Disco in providing electricity services;
  • The Disco has for the electricity services mentioned in the complaint, charged a price in excess of the price fixed by the NERC, for supply of electricity and allied services;
  1. The electricity service provided by the Disco may be unsafe or hazardous;
  2. Recovery of expenses incurred in excess of charges approved by NERC in providing an electric line or electric plant;
  3. Any other act that affects the fulfillment of the contractual relation between the customer and the Disco; or is in contravention of the provisions of any Order of NERC or law for the time being in force.

By section 3(1) of the NERC Customer Complaints Handling Standards & Procedures, every Disco is obliged to set up a Customer Complaints Unit (CCU) within its premises to which an aggrieved customer may submit a complaint. By section 3(5) All complaints must be lodged firstly in writing, with the Customer Complaints Unit of the Distribution Licensee and by section 3(6) The complaint can be submitted by email and the Disco’s CCU is obliged to resolve same within 15 days. It is only when the CCU is unable to satisfactorily resolve the complaint that same is submitted to the NERC Consumer Forum (“the Forum”), established under section 3 (8) (9) and (10) the Procedures in Discos’ operating/coverage areas. The jurisdiction of the Forum is purely civil, excluding offences specified in sections 93 and 94 of the EPSR Act. The Forum is required to resolve a complaint before it within 2 months of receiving the complaint.

Both the Disco and the customer have right of appeal to NERC where a complaint/dispute is unresolved by FORUM. The Appeal must be submitted within 10 working days of the Forum’s decision. It is pertinent to note that NERC will not entertain an appeal by an appellant who, in terms of a decision by a Forum, is required to pay an amount to a Disco unless that amount has been paid. See section 12.

From the provision as highlighted above, it appears that there are three steps or procedures internally provided to resolve dispute between the customers and the service provider.

In the document attached by the Plaintiff – email print out- it is stated:

“If your request is not satisfactorily addressed, you can forward your complaint to our Owrrri Forum Office located at No. 1 Prof CB Anyanwu Avenue, Opposite Achike Udenwa Estate, New Owerri, Imo State with telephone No 08146862230 and email address: owerriforum@nerc.gov.ng.”

It appear that the Plaintiff has not explored the next step which is to forward his complaint to the Forum.

In the circumstance, I am of the view that action is premature. Secondly there is no Writ of Summons properly defined. The Plaintiff did not avert her mind to this arm of the defendant’s complaints. This suit is accordingly struck out.

I so hold

I.M.Njaka

Judge

3-2-2023

Appearance: EO Ndukwe (Mrs.) for plaintiff/Respondent

CC Onyekanne Esq., for the Defendant/Applicant

 

 

Previous post SUIT NO: HAM/54D/2021 – DR CHINWE PATIENCE PEDRO AZUOGU VS. BARR AZUOGU, PEDRO REMY- BEFORE HIS LORDSHIP: – HON. JUSTICE I.M. NJAKA.- THURSDAY 1ST JUNE, 2023- Territorial Jurisdiction- For matrimonial causes proceedings, the main requirement for jurisdiction is domicile in Nigeria, and any High Court of any State of the Federation or the Federal Capital Territory has jurisdiction to determine a petition for dissolution of marriage- Domicile- a person domiciled in any state of the Federation is regarded as domiciled in Nigeria and can file a divorce petition in any state in the country, regardless of their current residence- Forum Convenience and Interest of Justice- the importance of forum convenience and the interest of justice in determining the appropriate jurisdiction for matrimonial cases- these factors could empower the court to transfer matrimonial cases to another state high court in the federation if it serves the interests of justice – Service of Process- a fundamental condition precedent to the exercise of jurisdiction by a court of law- the two main ways of serving originating processes- personal service and service other than personal, such as substituted service- Proof of Service- compelling prima facie proof of service -the responsibility of proving there was no service of the processes rests with the Defendant.
Next post SUIT NO: HAM/72/2020- 1. MR. GODSPOWER EMENOGU 2. ELDER SUNDAY CHUKWUOCHA 3. NZE CHIDI CHUKWUOCHA 4. MR. OBED ANYANWU (Suing for themselves and as representing the people of Umuoriehi (Oriehi) Village in Eziama in Oporanadim Autonomous Community, Ahiazu Mbaise except any person or group of persons dissenting) VS. 1. H.R.H EZE LOUIS M. NWOKEKE 2. KENNETH CHIKA AGADA 3. ALOYSIUS OGOKE 4. ONESMUS OGOKE 5. GODFREY IWUANYANWU 6. SIMEON IBEKWE ANYANWU 7. JAMES NWAGWU 8. ZEPHANIAH ALOZIE – BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA-delivered ON FRIDAY THE 3RD DAY OF FEBRUARY 2023- Competence of action- mode of commencement of suit by Originating Summons and whether it was appropriate given the nature of the case – Abuse of court process- what constitutes an abuse of the judicial process-Interpretation and construction of documents-Parties in a representative capacity- the concept of parties in a representative capacity- Multiplicity of actions-whether the filing of multiple suits on the same subject matter, involving the same parties, and addressing similar issues constituted an abuse of court process.