MATTHEW OYE OLUWOLE V. POWER HOLDING COMPANY OF NIGERIA PLC

Published by Law Nigeria Admin at September 18, 2018

MATTHEW OYE OLUWOLE

V. POWER HOLDING COMPANY OF NIGERIA PLC

IN THE COURT OF APPEAL OF NIGERIA

ON THURSDAY, THE 26TH DAY OF APRIL, 2012

CA/IL/36/2010

3PLR/2012/61 (CA)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

IGNATIUS IGWE AGUBE, JCA

ITA GEORGE MBABA, JCA

OBANDE F. OGBUINYA, JCA

BETWEEN

MATTHEW OYE OLUWOLE (Trading under the name and style of BMT furniture) – Appellants

AND

POWER HOLDING COMPANY OF NIGERIA PLC – Respondents

REPRESENTATION

R.O. Balogun Esq.,

A. Ahmed,
S Akinola Esq., and
Y. Ajibade Esq. – For Appellant

AND

A. Dikko Esq.

Kayode Odedokun Esq. – For Respondent

ORIGINATING STATE

Kwara State: High Court (J.F. Gbadeyan J- Presiding)

CONNECTED AREAS OF PRACTICE

Tort and Personal Injury
Public Institution
Litigation

MAIN ISSUES

ACTION– CAUSE OF ACTION- when a cause of action is said to accrue to the appellant- how determined- determination of the period of limitation

PRACTICE AND PROCEDURE– test to determine whether an agency or an establishment is an agency of the Federal Government

PRACTICE AND PROCEDURE– when issue of jurisdiction can be raised- whether the Statute of Limitation is a matter of jurisdiction – dichotomy between the issue of jurisdiction and demurrer

PRACTICE AND PROCEDURE– INTERPRETATION OF STATUTES-Section 251(1) (p)(q) and (r) Constitution- Sections 2 and 9 of the Electric Power Sector Reforms Act, cap. P.41 LFN, 2004

PUBLIC OFFICER– application of Section 2(a) of the Public Officers (Protection) Act –whether action can be instituted against public officers on tort or breach of contract- when the Act will not apply

ACTION – CAUSE OF ACTION: When does time to institute an action begin to run, where time for instituting same is prescribed by law

“We shall be guided by the dictum of Tabai, J.S.C; who posited in Adekoya v. Federal Housing Authority (2008) 2 N.S.C.Q.R. (Vol.34) 952 at 965 – 966, that:- “…a cause of action cannot be said to accrue to the Appellant unless and until there emerges a factual situation which gives her a right of action, to give us the answer. The erudite Justice of the apex Court, in the same case had quoted with approval the dictum of Oputa, JSC in Adimora v Ajufo (1988) 6 SCNJ 18 at 30-31, on how to determine the period of limitation of action as provided for under the Public Officers Protection Act, thus: How does one determine the period of limitation? The answer is simple by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons was filed. This can be done without taking oral evidence from witnesses…” In the same case, Adimora v. Ajufo (supra), at 30 – 31; per Oputa, JSC had succinctly stated the position of the law that:- “Thus the accrual of action is the event whereby the cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action.” See also Mbonu v. Nigerian Minning Corporation (2006) 13 NWLR (pt.998) 659 at 685, where this Honourable Court per Nzeako, JCA held thus: The relevant issue is whether the action is statute barred and out of this arise the first question which is when does time to institute action begin to run, where time for instituting such an action is prescribed by law. The answer is that time begins to run from the accrual of the cause of action. Here is what the Supreme Court held in Fadare v. Ag. Oyo State (1982) NSCC at 60 also reported in (1982) 4 S.C 1 at pp, 24-25 referring to Board of Trade v. Cayzer Irvine Co. Ltd. (1927) AC 610: Time begins to run when the cause of action arises then the apex court continued.Time therefore begins to run when there is in existence a person who can sue and another who can be sued and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed. From the foregoing authorities and in line with the guidelines given us by Oputa, and Tabai J.J.S.C as well as Nzeako, JCA; we shall once more resort to the writ of summons and Statement of Claim filed by the Appellant in the lower Court.” Per AGUBE, J.C.A. (Pp. 78-80, paras. E-B)

ACTION – CAUSE OF ACTION: How cause of action is determined

“How then is cause of action determined? The answer has been provided in the recent case of Adekoya v Federal Housing Authority (2008) 2 N.S.C.Q.R. (vol.34) 952 at 965-966; per Tabai, J.S.C.; when he posited:- “Even if it is conceded that a valid contract for a lease was entered into on 25th July, 1977 a cause of action cannot be said to accrue to the appellant unless and until there emerges a factual situation which gives her a right of action.” In other words, each of the factual elements or situations which culminate in the accrual of cause of action should have come into existence before Proceedings can be commenced otherwise, the proceedings will be premature and therefore unsustainable, An action is said to relate back to the date it was initiated and speaks from the date of issuance of the writ. See Eshelby v. Federation of European Bank Ltd. (1932) 1 K.B. 254; Couhs & Co. v. Duntroon Investment Corporation Ltd. (1958) 1 WLR. 116. Most importantly and as far as this particular case is concerned, the Supreme Court had held per Obaseki, J.S.C; in Thomas v. Olufosoye (1986) 1 N.W.L.R. 669; that having regard to the provisions of Section 6(6)(b) of the Constitution, a cause of action is the question as to the civil rights and obligations of the Plaintiff founding the action to be determined by the court in favour of one party against the other party and that it is to the substantive law of the subject-matter of the litigation that one should look to find out what facts constitute the cause of action in the particular claim.” Per AGUBE, J.C.A. (Pp. 63-64, paras. G-G)

ACTION – CAUSE OF ACTION: What is cause of action

“Now, “CAUSE OF ACTION” is defined at page 214 of “Black’s Law Dictionary” 7th Edition by Bryan Garner et al as:- “A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” See Read v. Brown (1889) 22 Q.B. 128 per Pollock B. At 129; Alhaji Kusada v. Sokoto N.A. (1968) 1 ALL N.L.R. 379 at 381-382. Edwin E. Bryant in his text titled “The Law Of Pleadings Under The codes of Civil Procedure” 2nd Edition at page 170; which text is cited at the same page of Black’s Law Dictionary has the following to say about cause of action: “What is cause of action? Jurists have found it difficult to give a proper definition. It may be defined generally to be a situation or state of facts that entitles a party to maintain an action in a judicial tribunal. This state of facts may be” (a) a primary right of the plaintiff actually violated by the defendant or (b) the threatened violation of such right which violation the plaintiff is entitled to restrain or prevent, as in cases of actions or suits for injunctions or (c) it may be that there are doubts as to some duty or right, or that right is beclouded by some apparent adverse right or claim, which the plaintiff is entitled to have cleared up, that he may, safely perform his duty or enjoy his property”. See per Aniagolu J.S.C., in Lasisi Fadera v. A.G. Oyo State (1982) 4 S.C.I at pp.6-7. In the celebrated case of Fred Egbe v. Hon J.A. Adefarasin (1987) NWLR (pt.47) 1 at 20; the distinguished legal luminary and emeritus Justice of the Supreme Court, Oputa JSC., had this to say on the definition of “cause of action thus giving judicial flavour to the above definition thus:- “It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief. “A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words, a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right.” What emerges from all the definitions aforestated in sum is that a cause of action may be a violation or threatened violation of a right inherent in a person, the violation or threatened violation which will entitle him to sue for judicial remedy in a court of law. It may also be in the form of a right or duty, personal or public which has been obstructed by the act of an adverse party which act can only be cleared by the judicial process to enable the party suing to perform such a duty or obligation or to exercise such a right as in the realm of public interest litigation. By its very nature, cause of action is sine qua non to the vesting of locus standi and the two must co-exist simultaneously and be vested in a party to an action in order for the court to be seised of the requisite jurisdiction to entertain the party’s claim. See Afolayan v. Ogurinde (1990) 1 N.W.L.R. 369 at 382-3; Adimora v. Ajufo (1988) 3 N.W.L.R. I; Berger v. Omogui (2001) 6 N.S.C.Q.R. 1062 at 1075 and 1076 and Mrs. F.O. Labode v. Dr. Godfrey Otubu & 1 Anor (2001) 5 N.S.C.Q.R. 722 at 741-745.” Per AGUBE, J.C.A. (Pp. 61-63, paras. F-G)

GOVERNMENT – FEDERAL GOVERNMENT AGENCY: Test to determine whether an agency or an establishment is an agency of the Federal Government

“To further buttress the fact that the Power Holding Company is an agency of the Federal Government, I stumbled across in the Record of Proceedings, a CTC of volume 3 No. 0957 of The Nation Newspaper of Wednesday, March 4th, 2009; where President Umar Yar’dua removed the Executive Vice-Chairman and two Executive Directors of Power Holding Company of Nigeria (PHCN). Even of recent Prof. Barth Nnaji the Minister of Energy and Power fired some Executives of PHCN for non performance. From all indications the learned counsel for the Appellant cannot seriously contend that PHCN is not an agency of the Federal Government. On the other hand, the learned counsel for the Respondent has rightly submitted citing University of Abuja v. Ologe (1996) 4 NWLR (pt.445) 706; Odutola v. NITEL (2006) ALL FWLR (Pt.335) 73, that the test to determine whether an agency or an establishment is an agency of the Federal Government has been laid down in the above cases and as I had earlier held on the preliminary objection, the fact that PHCN (the Respondent) is a company registered under the Companies and Allied Matters Act (CAMA) does not preclude it from being an agency of the Federal Government once the Government acts through it in the provision of certain amenities to the Citizenry. I agree completely with the position taken by my Lord Augie, JCA, in Odutola v. NITEL (supra) at 88, when he intoned thus:- “I agree with the respondent that the lower Court was right to take it as proved that NITEL is a Federal Government agency. NITEL, created for the purpose of providing telecommunications services throughout Nigeria is in the same category as NNPC and NEPA; they are agencies of the Federal Government of Nigeria, since they are organs established by the law through which the Federal Government carried out its function. I also agree with the point canvassed by the learned counsel for the Respondent that based on the above dictum of Augie JCA, the law applicable in agency relationships will be applied in determining whether there is an agency relationship between the Federal Government and the Respondent. In M. E. Imade v. Ministry Administrator, Edo State (2001) F.W.L.R Pt 69 1385 at 1401; ably cited by learned counsel for the Respondent, this Honourable Court per Ibiyeye J.C.A; had cause to pronounce on the concept of interest when he posited thus: A person is said to have an interest in a thing when his rights, advantages, duties liabilities, losses or the like that are connected with it, whether present or future are ascertained or potential provided that the connection and, in the case of potential rights and duties, the possibility is not too remote. The question of remoteness depends upon the purpose which the interest is to serve. See also Adetona v. Zenith International Bank Ltd. (2008) ALL F.W.L.R (Pt.440) 796 at 806 and Daniyan v. Iyagim (2002) F.W.L.R (Pt.120) 1805 at 1826.” Per AGUBE, J.C.A. (Pp. 85-87, paras. F-F)

COURT – JURISDICTION: How and when an issue of jurisdcition of Court can be raised; whether Court can raise an issue of jurisdiction suo motu and without hearing the parties decide upon it

“An issue of jurisdiction, which can be, properly described as the linchpin, fulcrum, nucleus, spinal-cord or oxygen of any adjudication, can be raised anytime and in any manner before any court of law inclusive of the Supreme Court. As matter of fact, an issue of jurisdiction has inched to a point that it can be raised suo motu by a court without the necessity of inviting parties to address the court on it. On this novel status acquired by jurisdiction, I draw on the case of Effiom vs. C.R.S.I.E.C. (2010) 14 NWLR (PT. 1213) 106 at 133 wherein the apex court, Per Tabai JSC, held. “As indicated above this principle that the court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. In some special circumstances, the court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. Tukur vs. Government of Gongola State (1989) 4 NWLR (pt. 117) 517 is instructive on this point. In that case although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction was taken by the court.” See, also, Amale vs. Sokoto Local Govt (2012) 5 NWLR (Pt.1292) 181.” Per OGBUINYA, J.C.A. (Pp. 106-107, paras. F-E)

COURT – JURISDICTION: Whether the defence of Statute of Limitation is a matter of jurisdiction which can be raised at any stage of litigation

“With the greatest respect to the learned counsel for the Respondent and in due deference to the impregnable doctrine of stare decisis in respect of the dictum of my noble and most respected Lord Adekeye, JSC, the most recent Supreme Court decision which is in all fours and more on the point being canvassed in the appeal at hand, is that of Nasir v. CSC Kano State and 2 Ors. (2010) 6 NWLR (pt. 1190) 253; cited as an additional authority by the learned counsel for the Respondent. At page 270 of the Report, Mukhtar, JSC, delivering the lead Judgment of the apex Court and re-echoing what he said in F.R.I.N. v. Gold (2007) 11 NWLR (pt.1044) at 1 put it beyond conjecture that: – “As I have stated earlier in the Judgment in the treatment of Issue (1), the Statute of Limitation is a matter of jurisdiction which can be raised at any stage of litigation and I will add here, even in the Supreme Court. In my words, in the very recent case of F.R.I.N. v. Gold (2007) 11 NWLR (pt. 1044) at 1 which has been cited by learned counsel for the Respondents:- “There is no doubt this rule connote mandatory procedure, but it does not preclude a party from raising the defence of Statute of Limitation at an Appellate Court vide leave to do so even if he did not do so at the Court of first instance, because such issue borders on the fundamental issue of jurisdiction. The Appellant in this case realised its mistake in not thrashing out the issue and so raised it in the Court of Appeal after leave was obtained. Speaking in the same vein, Ogbuagu, JSC in his contributory Judgment at page 276 of the Report after citing the celebrated case of Olabanjo v. Dawodu (supra) as regards the procedure adopted as in this case where the Respondent filed a Notice of Preliminary Objection in the Court of Appeal with a view to raising the defence of Statute of Limitation of Section 2(a) of the Public Officers (Protection) Act; held the view that: This Court, dealt with the issue as to when an objection as to jurisdiction, can be raised…….I note that the crux of the objection of the Respondent in this suit leading to this appeal, was in respect of jurisdiction. In this regard, it is now firmly settled that issue of jurisdiction or competence of a Court to entertain or deal with a matter before it, is very fundamental. It is a point of law and therefore a rule of Court, cannot determine when and how, such point of law, can be raised. Being fundamental and a threshold issue of jurisdiction, it can be raised at any stage of the proceedings in any court including this court. An appellate court can even raise it suo motu. See the case of Anyah v. Iyayi (1993) 7 NWLR (pt.305) 290 and Kotoye v. Saraki (1994) 7 NWLR (pt. 357) 414 at 466. I need emphasize as it is also settled that mandatory rules of court, are not as sacrosanct as mandatory statutory provisions and therefore a rule of court cannot override the provisions of the law. See the case of Katto v. CBN (1991) 9 NWLR (pt.214) 126.I hold therefore that the objection of the Respondent was rightly and properly upheld by the two lower courts. From the decisions of the learned Justices of the apex Court as highlighted above, the submissions of the learned counsel to the Appellant which is akin to an objection to the preliminary objection of the Respondent is hereby overruled as the Respondent can raise the Issue of Jurisdiction -predicated on the Statute of Limitation id est Public Officers Protection Act by way of preliminary objection in this Court. I am reinforced by this stance since it has been established by a long line of judicial authorities too numerous to mention, that jurisdiction is the jugular vein, the live blood that enlivens the survival of an action without which same would be likened to an animal drained of its blood and therefore would cease to survive and any attempt to resuscitate it without infusing blood into it, would be tantamount to an exercise in futility; more so, since it occupies a fundamental position in the judicial process; it can be raised at any stage inside out, upside down in the course of proceeding. See per Bello; CJN in Uti v. Onoyivwe (1991) 1 SCNJ 25 at 49; per Tobi, JSC in Okoro v. Egbuoh (2006) 15 NWLR (pt.1001) 1 at 23-24; Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) 427; Governor of Kwara State v. Lawal (2007) 13 NWLR (pt.1051) 347 e.t.c.” Per AGUBE, J.C.A. (Pp. 68-71, paras. B-A)

COURT – JURISDICTION: What determines the jurisdiction of Court to entertain a matter

“…the point must be conceded that in the determination of whether the Court below had jurisdiction to entertain the claim of the Appellant, it is to the Statement of Claim that we must turn. This point was stressed by Tobi, JSC; in the celebrated case of Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 427 at 588-589 paras; H-C where, in a suit commenced by originating summons he held thus: In the determination of whether or not a court has jurisdiction, the court process to be used is the pleadings of the Plaintiff, which is the statement of claim, it is the case put forward by the Plaintiff that determines the jurisdiction of the court. In this cases as the action was commenced by Originating Summons, the court process to be used is the affidavit in support of the Summons, in other words, the court will not examine a counter-affidavit even if filed, See Nnonye v. Anichie (2005) 2 NWLR (pt.910) 623; NDCC v. CBN (2002) 7 NWLR (Pt.766) 272; Elabanjo v. Dawodu (2006) 15 NWLR (pt. 100) 76; Okulate v. Awosanya (2000) 2 NWLR (pt. 646) 530; Adeyemi v. Opeyori (1976) 9-10 S.C. 31; Tukur v. Governor Gongola State (1989) 4 NWLR (pt.117) 517 and Egbuonu v. B.R.T.C (1997) 12 NWLR (pt.531) 29,” See also Utih v. Onoivwe (1991) 1 NWLR (pt.186) 63; Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt.117) 517 at 549; Maigari v. Matori (2002) 8 NWLR (pt.670) at 735 and Paco Ltd. v. CBN (2001) 3 NWLR (pt. 900) 347 at 365;” Per AGUBE, J.C.A. (Pp. 89-90, paras. A-A)

COURT – JURISDICTION OF THE FEDERAL HIGH COURT: When the Federal High Court can have exclusive jurisdiction over any other Court

“Now, in order to resolve the issue as to which of the Courts between the High Court of the State and the Federal High Court is seised of jurisdiction to hear the claim of Appellant it is necessary to have resort to the provisions of Section 251 of the 1999-Constitution vesting the Federal High Court with its jurisdiction. Section 251(1) (p)(q) and (r) unequivocally stipulate in mandatory terms that “251(1) Not withstanding anything to the contrary contained in this Constitution and in addition to such jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in Civil causes and matters:- (p) The administration or the management and control of the Federal Government or any of its agencies. (q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies. (r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.” From the contentions of parties it is clear that the Respondent places reliance sub-paragraph (p) of the Section, which deals with administration or Management and control of the Federal Government or any of its agencies, in this case, PHCN Plc. It is gratifying that the respective learned counsel for the parties have cited NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) 79 at 97. In that celebrated yet controversial case Ogundarg J.S.C had laid down the guiding principles for the determination of the jurisdiction of the Federal High Court and the purport of paragraphs (p) (q) (r) (s) of section 251(1) of the Constitution having held that …”The aim of paragraphs (p) (q) (r) and (s) of subsection 1 of section 230 was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agents was party. A State High Court would no longer have Jurisdiction in such matters notwithstanding the nature of the claim in the action.” From the above decision, it would appear that the foundation for the controversy as to party and subject matter jurisdictions had been laid, which has necessitated the positions taken by the learned counsel for the Respondent. See the dicta of their Lordships of the apex Court in Oloruntoba – Oju v. Dopemu (2008) 7 NWLR (Pt. 1085) page 1 at 31-32 Para C-C, 34-35 Para B-D; Per Aderemi J.S.C., and Muhammad J.S.C. at page 36; A.G.F. v. Oshiomole (supra); Obi v. INEC (supra); Ladoja v. INEC (supra ); A.G.F. v. ANPP (2003) 15 NWLR (Pt. 844) 600 and Isuama v. Governor of Ebony State (supra), See also Omosowan v. Chiedozie (1998) 9 NWLR (Pt. 566) 477 and Okoroma v. UBA (1999) 1 NWLR (Pt. 587) 359; which cases were decided on the bases that the subject matter of the suit determines the appropriate court with the requisite jurisdiction to decide the case since the lawmaker never intended that state High courts are automatically divested of jurisdiction once a party before them is an agency of the Federal Government. It has to be emphasized that even in the case of NEPA v. Edegbero (supra) which seemed to have buttressed the stand of the Respondent herein and the Court below, Tobi, J.S.C, in his concurring judgment made it explicitly clear at pages 1573 – 1574 of (2003) FWLR (Pt. 139); that in the construction of the sections, two important factors are relevant which are the parties and the subject matter of the litigation. According to the erudite Justice, the court must consider both factors and that in construing the parties; there is no difficulty but that the difficulty may arise in the identification of an agency of the Federal Government in certain matters. On the subject matter, his Lordship was of the view that for the Federal High Court to have exclusive jurisdiction, the matter must be a civil matter arising from the administration, management and control of the Federal Government or any of its agencies. The matter must also arise from any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. See Adebileje v. NEPA (1998) 12 NWLR (Pt. 577) 219; Government of Kwara State v. Gafar (1997) 7 NWLR (Pt. 511) 51 at 63; Military Administrator Kwara State v. Lafiaji (1998) 7 NWLR (Pt. 557) 202 at 213; Onuorah v. KRPC Ltd. (2005) 6 NWLR (Pt. 921) page 393-405; Omotosho v. Abdullahi (2008) 2 NWLR (Pt. 1072) 526 at 546-547; Omosowan v. Chiedozie (1998) 9 NWLR (Pt. 566) 477, 484; FCE Oyo v. Akinyemi (2008) 15 NWLR (Pt. 1109) 21 at 50; Ministry of works & Housing v. Tomas Nigeria Ltd. (2002) 2 NWLR (Pt. 752) 740. The common denominator that runs through the gamut of all the cases cited above is that it is not enough for an institution or organ to be an agency of the Federal Government but such agency, its functions or activities giving rise to the cause of action, must be connected with the running of the affairs of the Federal Government. Also, by the dictum of Tobi J.S.C. in Edegbero’s case and the recent decisions in Dr. Taiwo Oloruntoba – Oju & 4 Ors. v. Professor Shuaib O. Abdul-Raheem (2009) 6 MJSC (Pt. 1) 1 at 34-35; per Adekeye J.S.C. and Oladipo v. Nigeria Customs Service Board (2009) All FWLR (Pt.498) 319 at 337 – 339 per Nweze, JCA, if there were any doubts created in the minds of the learned counsel to the Respondents as to the purposive construction of paragraph (p) of Section 251(1) of the 1999 Constitution, in view of the cases they have relied upon in their respective submissions, their Lordships have settled same beyond peradventure. For instance, my Lord Adekeye J.S.C. in his leading judgment aptly and succinctly stated the position of the law thus: “Section 251(1) creates a situation whereupon by party jurisdiction, one of the parties must be a Federal Government Agency and by subject-matter jurisdiction it must be an action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.” On his part, my Lord Nweze, J.C.A, in his lead judgment aforecited had taken the view that “the phrase “executive or administrative action” as employed in section 251(1) (r) must have a direct relationship with the management and administration of the agency concerned. Hence an executive action must be an action concerned with, or relating to the effectuation of the orders or plans or policies of the agency in question. Equally, an administrative action must be an action directed towards carrying out the policy of the agency. Put simply, therefore, paragraph (r) (supra) simply confers exclusive jurisdiction on the Federal High Court where an action or proceeding is for a declaration or injunction which is likely to affect the validity of an action concerned with, or relating to the effectuation of the order or plan or policies of a Federal agency or the validity of any action directed towards carrying out the policy of such an agency”. What their Lordships seem to be saying in the above quoted portions of their respective judgments is that the cause of action must relate to the validity of the act or decision of the Federal Government or any of its agencies in the course of the executive or administrative powers conferred on it by the Constitution in order to vest the Federal High Court with exclusive jurisdiction. Therefore, the mere fact that a party to a matter is the Federal Government or any of its agencies without the subject matter relating to a challenge to the validity of any of its executive or administrative action or decision is not enough to confer the Federal High Court with the requisite jurisdiction. By extrapolation and having settled by the above decided authorities that to vest the lower court with jurisdiction that:- 1. in respect of paragraph (r), the party/parties who must be a Federal Government agency or agencies must exist simultaneously with the subject matter which must be an action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; 2. under paragraph (p), the subject matter must pertain to the administration or the management and control of the Federal Government or any of its agencies and 3. under paragraph (q), the subject matter must relate to the operation and interpretations of the Constitution as it affects the Federal Government or any of its agencies; can we say with definitive certainty that the claim of the plaintiff/Appellant and reliefs sought in the Statement of Claim, fall within the purview of Section 251(1) (p) considering the averments in the pleadings of the Appellant? The answer to my mind is in the negative in that although, the Respondent is an agency of the Federal Government with the Responsibility of Supplying electricity to the citizenry, the claim has nothing to with the administration or management and control of the Federal Government or any of its agencies. The claim of the Respondent is clearly in the tort of negligence and I agree completely with the learned counsel for the Appellant that NEPA v. Edegbero cited with relish by the learned counsel for the Respondent even though it dealt with management and administration of NEPA in that the issue involved was termination of appointment of its staff; has no bearing with this case not on the ground as canvassed by Mr. Balogun that PHCN is not a creation of statute but a company incorporated under CAMA; but because there is no concomitance or simultaneous coexistence between the party jurisdiction and the subject matter jurisdiction. I adopt the dictum of Augie, JCA, in Oduntota v. NITEL (supra) that in this case, the negligent acts of the Respondent and/or its agents in failing to prevent the burning of the Appellants workshop (if at all), occurred in the course of their usual day-to-day, nitty-gritty technical duties of connection, disconnection, reconnection, reading of metres, repairs and replacements of obsolete poles and cables and prevention of danger to customers and generality of public, billings and distribution of bills and collection of payments therefore. The Claim of the Appellant has nothing to do with management or administration and control of the Federal Government or PHCN in this case and I so hold. All the cases cited by the learned counsel for the Appellant particularly Onuorah v. KRPC (2005) ALL FWLR (pt 256) 1356 at 1364 per Akintan, JSC; who at pages 1364 to 1365 para. G-B held as follows: “In other words, Section 230(1) provides a limitation to the general and all embracing jurisdiction of the High Court because the items listed under the said Section 230(1) can only be determined exclusively by the Federal High Court. All other items not included in the list would therefore still be within the jurisdiction of the State High Court, in the instant case, included in the additional jurisdiction conferred on the Federal High Court, that court therefore had no jurisdiction to entertain the Appellant’s claim. The lower court therefore acted rightly in its decision that the Federal High Court lacked jurisdiction to entertain the claim: See Seven Up Bottling Co. Ltd. v. Abiola & Sons Bottling Co. Ltd. (2001) FWLR (Pt. 70) 1611, (2001) 13 NWLR (Pt. 730) 469; and Trade Bank Plc. V. Benilux (Nig.) Ltd. (2003) FWLR (Pt. 162) 1871, (2003) 9 NWLR (Pt. 825) 416 at 430 & 431; are very instructive and apt in the circumstance of this case. Also the case of Kayode v. FCDA (2006) ALL FWLR (pt.298) 1200 per Rowland, JCA; at 1226, paras G-H where his Lordship held that: “The provisions of Section 251(1)(i)(p)(q) and (r), to apply, the suit must involve the administration or management or control of Federal agency. It must be an action for a declaration or injunction challenging the validity of executive decisions or action of the Federal agency. One of the conditions enumerated in Section 251(1) (p) must be present to vest jurisdiction on the Federal High Court. Other than that the Federal High Court cannot and does not have exclusive jurisdiction”; clearly supports the position of learned counsel for the Appellant. Further more, the cases of NIMR v. Akin Olugbade (2008) 5 NWLR (pt. 1079) 68 at 91-92 and 95, paras C-F especially the dictum of Denton-West, (JCA); the recent case of NNPC V. SLB Consortium Limited (2009) ALL FWLR (pt.452) 1036; where this Honourable Court conducted an x-ray into the two cases of the Apex Court on the Jlurisdiction of the Federal High Court i.e the case of NEPA v. Edegbero (supra) and Felix Onubrah v. KRPC (supra), see pages 1050 – 1053 of the Report, per Ganlinje, JCA and this Honurable Court in an unmistakable terms held that the case of Onuorah v, KRPC (supra) is a clear departure by the Supreme Court from the case of NEPA v. Edegbero (supra); and where the Court cited and relied on the case of Adelekan v. Ecu-line NV (2006) 12 NWLR (pt.993) 33 at 52, paras F-N; are all on the point. Finally, and on the whole, am also in full agreement with the contention of the learned counsel for the Respondent that the dictum of Onnoghen, JSC; in Adelekan v. Ecu-line NV (2006) 12 NWLR (pt.993) 33 at 52, paras F-N where he held that: “The provision of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999, herein after called the 1999 Constitution are very clear and unambiguous. It is the section that confers jurisdiction on the Federal High Court which jurisdiction clearly does not include any case of simple contract or damages for negligence as envisaged by the action before the trial court I therefore have no hesitation in agreeing with learned counsel of cross appellant that the trial court had no jurisdiction in the matter as formed before it and ought to have struck same out”; is sufficient and capable of setting aside the decision of the trial court, because it was clearly emphasized by the apex court that the Federal High Court’s jurisdiction as conferred by S.251 of the 1999 Constitution does not include damages for negligence which is the fulcrum of the Appellant’s case before the trial Court.” Per AGUBE, J.C.A. (Pp. 95-105, paras. G-D)

PRACTICE AND PROCEDURE – PROCEEDINGS IN LIEU OF DEMURRER: What is proceedings in lieu of demurrer

“…the situation we have found ourselves is akin to a demurrer which has been abolished by the provision of Order 26 Rules 1 & 2 of the Kwara State High Court Rules. By the provisions of the above Rules parties shall be entitled to raise by their pleadings any point of law and any points, so raised shall be disposed of by the Judge before or at the trial. This is what is now known as proceedings in lieu of demurrer. Commenting on the dichotomy between the issue of jurisdiction and demurrer Uwaifo JSC, in NDIC v. CBN (2002) 7 NWLR (pt.766) 272 at 296-297 intoned inter alia: “The tendency to equate demurrer to objection to jurisdiction could be misleading. It is a standing principle that in demurer the Plaintiff must plead and it is upon that pleading that the Defendant would contend that accepting all the facts pleaded to be true, the Plaintiff has no cause of action, or, where appropriate, no locus standi…..but as already shown, the issue of jurisdiction is not a matter for demurer proceeding. It is much more fundamental than that and does not, entirely depend as such on what a Plaintiff may plead as facts to proof the reliefs he seeks. What it involves is what will enable the Plaintiff to seek a hearing in Court over his grievance/and get it resolved because he is able to show that the Court is empowered to entertain the subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction.” In this case it would appear that the contention of the Appellant is that the Respondent cannot raise the defence of Statute of Limitation which to my mind is a threshold issue of jurisdiction at this stage of proceeding since he did not plead same. However, there are authorities galore to the effect that since demurrer proceeding has been banned almost across the country, the defendant is entitled to raise by preliminary objection an issue or point of law which may include jurisdiction as in this case. See Olabanjo v. Dawodu (2006) 15 NWLR (pt 1001) 76; Arjay Ltd. v. AMS Ltd. (2003) 7 NWLR (pt.820) 577; Oluwaniyi v. Adewumi (2008) 13 NWLR (pt.1104) 387 and FCE Oyo v. Akinyemi (2008) 15 NWLR (pt. 1109) 21.” Per AGUBE, J.C.A. (Pp. 66-67, paras. C-F)

PUBLIC OFFICERS – PROTECTION OF PUBLIC OFFICERS: Criteria for the application of Section 2(a) of the Public Officers (Protection) Act for the protection of Public Officers

“Turning to the substance of the preliminary objection, on the first criteria for the application of Section 2(a) of the Public Officers (Protection) Act which is that: “It must be established that the person against whom the action is commenced is a public officer or person acting in the execution of public duties within the meaning of that law; as decided by Iguh, JSC; in the above cited locus classicus of Ibrahim v. Judicial Service Committee Kaduna State (1998) 12 SCNJ 255;” Per AGUBE, J.C.A. (P. 71, paras. A-C)

PUBLIC OFFICERS – PROTECTION OF PUBLIC OFFICERS: When an action against a Public Officer acting in the exercise of his statutory powers or in due execution of his constitutional duty shall be instituted; conditions that must be satisfied for Section 2(a) of Public Officers (Protection) Law to avail any person

“However before delving into the Issues, let me first consider the preliminary Objection raised by the learned counsel for the Respondent which in the main is hinged on statute of limitation, in this case the Public Officers (Protection) Act (POPA) CAP.P41 which provides in Section 2(a) thereof as follows: – “Where any action, prosecution, or proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, law, duty or authority, the following provisions shall have effect- (a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof: provided that if the action, persecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.” The provisions of the Act above cited have been the subject of a plethora of decisions of the apex Court and indeed this Court, (see for instance LAUTECH v. Ogunwobi (2006) 4 NWLR (pt.971) 569 per Ibiyeye JCA at 589 paras, G-H; and CBN v. Ukpong (2006) 13 NWLR (pt.998) 555; Ibrahim v. Judicial Service Committee (1998) 12 SCNJ 255 and Mbonu v. Nigeria Mining Corporation (2006) 13 NWLR (1998) 659 at 685 per Nzeako, JCA); but the bottom line in all these decisions is that any action, prosecution, or other proceeding commenced against any person for any act done in pursuance or intended execution of any Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of continuance of damage or injury, within three months after the cessation thereof. Thus, in the locus classicus of Ibrahim v. Judicial Service Committee (supra), it was held that where, as rightly argued in this case, a party brings his action outside the a statutory period against a Public Officer acting in the exercise of his statutory powers or in due execution of his constitutional duty, the effect of limitation law (in this case Cap. P.41, Laws of the Federation of Nigeria, 2004), is to leave the Claimant with bare and empty cause of action; the right to the action, judicial relief and enforcement hitherto inherent in him, having abated uno flatu by virtue of the action being totally barred and such right extinguished in perpetuity. See Obiefuna v. Okoye (1961) ALL NLR 357; Fred Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) 549; Fadare v. A.G. Oyo State (1982) N.S.C.C 643. Indeed in the Ibrahim v. Judicial Service Committee Kaduna State (1998) 12 SCNJ 255 case per Iguh, JSC; in his illuminating judgment while interpreting Section 2(a) of the Public Officers (Protection) Law, Cap. 111, Vol. 3, Laws of Northern Nigeria 1963, (which is a replication of Cap. p.41 of the Laws of the Federation that has fallen for interpretation herein), had laid down the two conditions to be fulfilled before the defence under the Act can avail any defendant as in this case the Respondents. In the words of the erudite Judicial Icon:- “… For Section 2(a) of Public Officers (Protection) Law to avail any person, two conditions must be satisfied, namely:- i. It must be established that the person against whom the action is commenced is a public officer or person acting in the execution of public duties within the meaning of that law; ii. The act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority, see John Ekeogu v. Elizabeth Aliri (1990) NWLR (pt. 126) 345. It can therefore be said that Section 2(a) of the Public Officers (Protection) Law, 1963 gives full protection or cover to all public officers or persons engaged in execution of public duties who at all material times acted within the confines of their public authority and are acting outside the colour of their office or employment or outside their statutory or constitutional duty, they automatically lose protection of that law. In other words, a public officer can be sued outside the limitation period of three months if at all times material to the commission of the act complained of he was acting outside the colour of his office or outside his statutory or constitutional duty. See Nwakwere v. Adewunmi (1967) NMLR 45 at 49, Atiyaye v. Permanent Secretary, Ministry of Local Government, Borno State (1990) 1 NWLR (Pt.129) 728. John Ekeogu v. Elizabeth Aliri (supra). See page 272 paragraph 25-40 and 273 paragraph 5 of the report.” Per AGUBE, J.C.A. (Pp. 58-61, paras. A-C)

PUBLIC OFFICERS – PROTECTION OF PUBLIC OFFICERS: Whether action could be instituted against Public Officers on tort or breach of contract

“I am tandem with the submission of the learned counsel for the Respondent in paragraph 5.13 of the Respondent’s Brief partially that since this claim is in the nature of the tort of negligence against PHCN and its agents who were alleged to have defaulted in the due execution of their duties, the claim against them by the Appellant was caught by the Public Officers (Protection) Act Cap. P41 Laws of Federal of Nigeria, 2004; and therefore statute barred the action having not been commenced within the three months of the accrual of the cause of action as stipulated by the Act. I adopt the decision in Yakubu v. NITEL Ltd. (2006) 9 NWLR (pt.985) 367 at 392, where this Honourable- Court held thus: There is no double that action could be instituted against public officers on tort or breach of contract. In other words, public officers could be sued for damages in claim of tort or breach of contract committed by them where such act or omission was committed by them in the execution of their official duty or duties. However, by the corresponding provisions of section 2 (a) of the Act or Law, such action must be instituted within three months from the date the cause of action accrued. See Ibrahim v. JSC (1998) 14 NWLR (pt.584), Ekeogu v. Aliri (1990) 1 NWLR (pt.126) 345, Nwakwere v. Adewumi (supra), Atiyaye v. Permanent Secretary Ministry of Local Government, Borno State (supra).” Per AGUBE, J.C.A. (Pp. 80-81, paras. F-F)

PUBLIC OFFICERS – PROTECTION OF PUBLIC OFFICERS: When the provision of the Public Officers (Protection) Act will not avail a Pubilc Officer; duty of the Appellant to prove bad faith and lack of semblance of legal justification

“Furthermore, the acts would not apply where it has been established that the Defendant had abused his office and acted maliciously and as such he would not be acting within the terms of his statutory or other legal authority and therefore, he has not been bonafide. In such circumstance, he has abused his position for the purposes of doing wrong and the protection of the Act of course never could have applied to such a case. See Offoboche v. Ogoja L.G (2001) 7 SCNJ 468 and Hassan v. Aliu (2010) ALL FWLR (Pt. 539) 1007 at 103; which followed the dicta of Brett, JSC and Ademola CIN as above cited. There is no doubt, as it was rightly held by the Supreme Court that it is the duty of the Appellant as in this case to adduce evidence or facts to establish bad faith and lack of semblance of legal justification etc.” Per AGUBE, J.C.A. (Pp. 77-78, paras. E-A)

INTERPRETATION OF STATUTE – SECTIONS 2 AND 9: The interpretation of Sections 2 and 9 of the Electric Power Sector Reforms Act, cap. P.41 LFN, 2004 with respect to whether a private company owned and controlled by the Federal Government is part of the public service of the Federation; definition of Public Service

“For the avoidance of doubt, Section 2 of the Electric Power Sector Reforms Act, Cap. P.41 LFN, 2004 provides thus: The shares of the initial holding company on its incorporation shall be held by the Ministry in the name of and on behalf of the Federal Government of Nigeria. On the other hand, section 9 provides that: All the respective shares of each of the successor companies from the date of their incorporation shall be held jointly in the name of the Ministry of Finance incorporated and the Bureau of Public enterprises for and on behalf of the Federal Government of Nigeria. From the provisions of the Act above quoted, it is clear as crystal that notwithstanding the change in nomenclature from NEPA to PHCN and the appellation of PLC attached to the Power Holding Company by virtue of its registration under CAMA, the PHCN which is the holding company incorporated to take over the assets and liabilities of NEPA is still under the control of the Federal Government through the Ministry of Finance (Incorporated) and the Bureau of Public Enterprises. Furthermore, Section 9 makes it also explicitly clear that all the respective shares of each of the successor companies shall be jointly held in the name of the Ministry and the Bureau. If as we have seen above, that in spite of the incorporation of PHCN PLC the organs of the Federal Government are still in charge of the assets and liabilities and in fact hold- the controlling shares thereof, then the submission of learned counsel that a private company owned and controlled by the Federal Government is part of the public service of the Federation is unassailable as is amply demonstrated by the provision of Section 318 of the Constitution of Federal Republic of Nigeria, 1999 which is the definition section and provides in Sub-Section (1) (g) thereof as follows: Public service of the Federation means the service of the Federation in any capacity in respect of the Government of the Federation, and include service as: (g) in which the Government of the Enterprise in which the Government of the Federation or its agency owns controlling shares or interest; Going by foregoing definition of Public Service which includes staff of Companies or Enterprises in which the Government of Federal or its agencies owns controlling shares or interest, the submission of the learned counsel for the Respondent on the authority of J. A. Adekoye v. Nigerian Security Minting Company Ltd. (2009) 2 SCNJ 290 at 301; that the staff of the power Holding company of Nigeria (the Respondent) are employees of the Federal Government cannot be faulted. See also paragraph 19 of the Fifth Schedule to the Constitution of federal Republic of Nigeria which defines Public Officer for purposes of Code of Conduct for Public Officers and Code of Conduct Tribunal as meaning a person holding any of the offices specified in Part II of the Schedule. In the said part II paragraph 14 thereof such a person includes Chairman and members of the Boards or other Governing bodies and staff of statutory corporations and of companies in which the Federal or State Government has controlling interest. Apart from the above definitions this Honourable Court had held in Lautech v. Ogunwobi (2006) 4 NWLR (pt.971) 569, per Ibiyeye, JCA at page 569, Paras C-A that:- The public Officers (Protection) Act basically deals with a Situation where legal proceedings are instituted against a public officer or institution. It is now settled that public institution such as the appellant being a juristic person is within the contemplation of the public Officers (Protection) Act.” See also C.B.N v. Ukpong (2006) 13 NWLR (pt.998) 555; Ibrahim v. Judicial Service Committee (1998) 12 SCNJ 255 and Mbonu v. Nigeria Minning Corporation (2006) 13 NWLR (pt. 998) 659. From the above decisions and in particular the dictum of Ibiyeye, JCA; above cited, it is clear that the Power Holding Company of Nigeria Plc, being a registered public Company Limited by shares is a juristic person which ought to be protected by the Public Officers Protection Act assuming the criteria for application of the Act are met. I therefore agree into with the submissions of the learned counsel for the Respondent that the PHCN is an Agency of the Federal Government and its Staff are employees of the Federal Government and indeed public officers for purposes of the Code of Conduct and application of the Public Officers (Protection) Act.” Per AGUBE, J.C.A. (Pp. 72-75, paras. D-D)

MAIN JUDGMENT

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

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.
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:

Whether the Claimant/Appellant’s suit is not statute-barred?

In the alternative, learned counsel distilled two Issues for determination from the three Grounds of Appeal filed by the Appellants in their Notice of Appeal which are hereunder reproduced as follows:

Considering that facts and circumstance of this case, whether Power Holding Company of Nigeria Plc (the Respondent) is not an agency of the Federal Government
Whether the learned trial judge was right when he declined jurisdiction in this case.

ARGUMENT OF ISSUES

ISSUE NUMBER 1 OF THE APPELLANT.

In arguing the Issue, the learned counsel for the Appellant referred us to the writ of summon and statement of claim as found at pages 1-12 of the Records. Learned counsel conceded that the Respondent is a public company limited by shares, hence the name ending with Plc. “Public Limited Company”.
Section 29(2) & (5) of the Companies and Allied Matters Act was cited in this regard.

Learned counsel referred us to the Motion on Notice filed by the Respondent as contained in pages 36-38 particularly the prayers there for and the Grounds upon which the motion was predicated to seek for the decline of jurisdiction by the lower court and striking out of the Appellants suit submitting that the Power Holding Company cannot by any stretch of imagination be described as an Agency of the Federal Government. Reference was made to the Appellant’s Counter-Affidavit and emphasizing the fact that Power Holding Company of Nigeria (Plc) is a Public Company limited by shares which explains its nomenclature cited and reproduced the provisions of Section 29 of CAMA Cap. C, 20 LFN, 2004; from which provisions, according to learned counsel, it is clear that the Respondent is a company duly incorporated under CAMA indicating that it is not and cannot be referred to as an Agency of the Federal Government by virtue of incorporation; Mr. Balogun further in his argument urged us to take judicial notice of the privatization and Commercialization of NEPA embarked upon by the Federal Government a couple of years ago by reference to the Public Enterprises (Privatization and Commercialization) Act Cap, P38, LFN, 2004; the purport of its enacting formula which he reproduced and submitted that took care of the privatization of the defunct NEPA. He observed that the Federal Government used to be sole owner and the administration and management and control thereof PHCN is now vested on its share holders at the Annual General Meeting (AGM) and the Board of Directors of Power Holding Company Plc.

Learned counsel went on to cite Section 1(1) and (2) of the Public Enterprises (Privatization and Commercialization) Act which provide for the partial and full privatization of Specific Enterprises and the Enterprises set out in parts I & II of the 1st Schedule Part I which heading is that “Enterprises in which equity held shall be partially privatized and further referred us to pages 38-45 of the Law which deals with the Electricity Sector and Item 1 thereof which is National Electric Power Authority, the manner of distribution of its share holding which he set out.

He also referred us to Section 33 of the Act which defines strategic investors and submitted that from the schedule it is obvious that the Federal Government has ceased to be the owner of National Electric Power Authority (NEPA) as the Federal Government’s Parastatals are only entitled to hold 40% of the shares in the National Electric Power Authority while the strategic investors and individuals hold 60% in the Authority.

He then posed the question whether with the analysis above proffered, and the privatization of NEPA, we can still say that NEPA remains an Agency of the Federal Government or whether the Federal Government still controls NEPA, which he answered in the negative. Further references were made to Sections 2, 3 and 5 of the Privatization and Commercialization Act on the mode of privatization, and allotment of shares of the privatized companies as spelt out in those sections submitting that it is the recognition of the cessation of ownership of the NEPA by the Federal Government that engendered the change in status of NEPA as a statutory body to a company incorporated under the CAMA 2004 and hence the change in nomenclature from NEPA to PHCN Plc. It was contended finally on this issue that it would be curious for any person to still argue that the Federal Government is still the owner of PHCN plc; whereas the Federal Government like other Nigerians, Corporate bodies and foreigners is a share holder in PHCN Plc; which company therefore cannot be an Agency of the Federal Government.

Accordingly, he submitted, NEPA v. Edegbero (2003) ALL FWLR (pt.139) 1556 is not relevant to our case in that it was decided before the privatization of NEPA and incorporation of PHCN and the NEPA Act having been repealed pursuant to the repeal of the provisions of Section 99 of the Electric Power Sector Reform Act. Cap. E7, LFN 2004 ceased to have any effect and is rendered otiose.

ISSUE NUMBER 2

On the assumption though not conceded that Power Holding Company Plc is an Agency of the Federal Government, the learned counsel on this issue submitted that the State High Court would still have jurisdiction to entertain the claim of the Appellant for on the authorities of Utih v. Onoivwe (1991) 1 NWLR (Pt.186) 63; Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt.117) 517 at 549; Maigari v. Matori (2002) 8 NWLR (pt.670) at 735 and Paco Ltd. V. CBN (2001) 3 NWLR (pt.900) 347 at 365; the law is common place that it is Plaintiff’s claim that determines the jurisdiction of a Court.

On the same score, it was also submitted that the Court will not readily deny itself of jurisdiction unless such jurisdiction is expressly ousted by the Constitution. A.G Lagos State v. A.G of the Federation (2005) ALL FWLR (pt.294) 505; refers. Learned counsel then argued that from the Statement of Claim and the reliefs sought, the case of the Appellant is the tort of negligence said to have been committed by the Respondents which resulted in serious injury to the Claimant.

On the second ground of the motion for striking out filed by the Respondent which bordered on the contention that the Appellant’s case touches on the management, administration and control of the Agency of the Federal Government, the learned counsel submitted that by virtue of Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999; the Federal High Court can only have exclusive jurisdiction over any other Court if the case falls within any of the items mentioned in the section.

Citing section 251 (1) (P) of the Constitution which the Respondent placed reliance on in his argument that the court below lacked jurisdiction, he explained that having regard to the above quoted section, since the Appellant’s action is in tort, the forum convenience for the determination of the cause action of any matter which can be classified as tort is not the Federal High Court. The learned counsel further asserted that the case has nothing to do with management and control of Government Agency or Power Holding Company of Nigeria Plc.
Learned counsel alluded to section 272(1) of the same Constitution on the jurisdiction of the High Court of a state and cited NEPA v. Edegbero wherein it was held that NEPA was an Agency of the Federal Government and the subject matter related to the management and administration of NEPA in that the issue at stake then was termination of appointment of its staff whereas in our instant case PHCN is not a creation of statute but a company incorporated under CAMA.
On the act which can be described as falling within the Management or Administrative capacity of a Government Agency, learned counsel referred us to the dictum of Augie, JCA; in the case of Odutola v. Nitel (2006) FWLR (pt.385) 73 which case was whether the Appellant’s bill was wrongfully debited or his telephone line wrongfully tossed.

Learned counsel also drew our attention to Onuorah v. KRPC (2005) ALL FWLR (pt.256) 1356 at 1364 per Akintan JSC where 230(1) of Decree No. 107 of 1993 which is in pari materia with the provisions of Section 251(1) of the 1999 Constitution on the need for the simultaneous existence of party and subject matter even when the party is a Federal Agency, before the Federal High Court can have jurisdiction.

He further cited Kayode v. FCDA (2006) ALL FWLR (pt.298) 1200 per Rowland JCA at 1226 paras G-H; NIMR v. Akin Olugbade (2008) 5 NWLR (pt.1079) 68 at 91-92 and 95 paras C-F particularly the dictum of Denton-west JCA; the recent case of NNPC v. SLB Consortium LTD. (2009) ALL FWLR (pt.452) 1036 at 1049 – 1053; where this court x-rayed the Supreme Court cases in NEPA v. Edegbero (supra) and Felix Onuarah v. KRPC (supra) at pages 1050-1053 per Galinje, JCA; submitting that it was held that Onuorah v. KRPC (supra) is a clear departure by the Supreme Court from the case of NEPA v. Edegbero.
Furthermore, this Honourable Court was said to have cited with approval the case of Adelakun v. Ecu-Line NV (2006) 12 NWLR (pt.993) 33 at 52 paras, F-N per Onnoghen, JSC which singular decision is capable of setting aside the decision of the trial Court by reason of its ratio on the jurisdiction of the Federal High Court on damages for negligence which is the fulcrum of the Appellant’s case before the lower Court.

The learned counsel for the Appellant further alluded to the dictum of Galinje, JCA and his observation in NNPC v. SLB Consortium (supra) at 1053 paras, A-C on the current position of the law as regards Onuorah v. KRPC and Adelakun v. Eculine NV as having overruled NEPA v. Edegbero.

He in conclusion prayed us to set aside the decision of the learned trial Judge and order that the Court has jurisdiction to entertain the matter on the grounds earlier canvassed.

RESPONDENT’S ARGUMENTS

PRELIMINARY OBJECTION

Reacting to the above arguments of the learned counsel for the Appellant, Mr. Dikko in his argument of the sole Ground of his Preliminary Objection contended that the Claimant/Appellant in this case instituted this action on the 21st day of August, 2007 while the cause of action in the case accrued on 19th April, 2007. The claimant, he maintained, instituted the action four months after the cause of action had accrued and the action is caught by the Public Officers (Protection) Act and accordingly we were urged to dismiss the appeal.

Learned counsel for the Respondent urged us to take judicial notice of the budget passed by the National Assembly from 1999 till date and in particular section 74 of the Evidence Act; submitting that the power sector is one of the crucial and cardinal focus of each Administration. Moreover, he urged us to further take judicial notice of the fact that Electricity is one of the seven point Agenda of President Umar Yar’Adua and the focus of the present administration.
It is upon the above strength that learned counsel submitted that the PHCN, PLC is an Agency of the Federal Government for purposes of generating electricity and through which the Government carries out its functions for this country and its citizens. For this submission he referred us to the cases of Warri Refinery and Petro-Chemical Co. Ltd v. Agbuje (2005) ALL FWLR (pt.253) 659 at 677 – 678 paras. H-A; University of Abuja v. Ologe (1996) 4 NWLR (pt.445) 706 and Edison Automative Industries Ltd. NERFUND (2009) ALL FWLR (pt.477) 153.
Still on the status of PHCN, he argued that same is created by Law through the Federal Government’s Acts and referring us to section 318 of the Constitution, sections 2 and 9 of the Electricity Power Sector Reform Act and Section 1 of Public Enterprises (privatization and Commercialization) Act, pointed out that PHCN PLC is a public Liability Ltd. Company in the same category with Warri Refinery and Petrochemical Co. Ltd and NITEL PLC; yet the position of the law is that they are Agencies of the Federal Government, notwithstanding being registered with CAMA. Warri Refinery Petrochemical Co. Ltd. v. Agbuje (supra); Odutola v. NITEL PLC (supra) and Onuorah v. Kaduna Refinery and Petrochemical Co. Ltd. (2005) ALL FWLR (pt.256) 1356; were all cited in support of the argument above proffered that all the above Companies so enumerated are agencies of the Federal Government notwithstanding their registration under CAMA.

Learned counsel on another wicket argued that by virtue of Section 318 of the 1999 Constitution, PHCN is part of Public service of the Federation on two grounds:-

The Federal Government has a controlling shares in the company; and
The Federal Government has interest in the company; as evident in the budget passed by the National Assembly every year coupled with the fact that electricity is provided for in the 2nd schedule to the 1999 Constitution. Sections 2 & 9 of the Electric Power Reform Act and J.A. Adekoye v. NSMC Ltd. (2009) 2 SCNJ 290 at 307; refer.

From the foregoing the learned counsel for the Respondents asserted that being a company owned by the Federal Government pursuant to sections 2 and 9 of the Electric Power Reform Act and by virtue of Section 318 of the Constitution of the Federal Republic of Nigeria, 1999; PHCN PLC is part of the public Service of the Federation and therefore the provisions of the Public Officers Protection Act will be applicable. In support of the above submissions, the cases of LAUTECH v. Ogunwobi (2006) 4 NWLR (pt.971) 569 per Ibiyeye JCA at 589 paras, G-H; and CBN v. Ukpong (2006) 13 NWLR (pt.998) 555; Ibrahim v. Judicial Service Committee (1998) 12 SCNJ 255 and Mbonu v. Nigeria Mining Corporation (2006) 13 NWLR (1998) 659 at 685 per Nzeako, JCA were all cited to submit that the Appellant’s suit is caught by statute of limitation as time started to run when the cause of action accrued on the 19th of April, 2007 while the suit was commenced in August, 2007 four months after the cause of action arose.

Upon the above background, learned counsel then contended that by the provisions of Section 2 of the Public Officers Protection Act (POPA), the Appellant was expected to institute the action within three months but he instituted same after four months and two days after accrual of the cause of action. He maintained that considering the claim of the Claimant/Appellant whether it falls within the Administrative and Management of the PHCN or negligence as alleged by the Appellant; on the authority of Yakubu v. NITEL Ltd. (2006)(pt.985) 367 at 392; the case is caught by the Public Officers (Protection) Act and therefore should be dismissed for being statute barred.

ARGUMENT ON ISSUE NUMBER ONE OF THE RESPONDENT.

It is pertinent to note that the learned counsel for the Respondent in the alternative on Issue Number 1 of the Respondent’s Brief argued/posited that there is no doubt that the National Electric Power Authority (NEPA) has metamorphosed into Power Holding Company of Nigeria Plc. However, the crucial question which he posed in this appeal is whether Power Holding Company bf Nigeria is still an Agency of the Federal Government, which he answered in the positive despite the change in nomenclature.

He submitted that the PHCN was created pursuant to the Electric Power Sector Reform Act (Cap.E7) (Laws of the Federation of Nigeria, 2004); which provides for the formation of a company for the takeover of the functions, assets, liabilities and Staff of NEPA. Learned counsel posed the question as to who are the share holders of the Company (the Respondent). Citing again the Provisions of Sections 2 and 9 of the Electric Power Sector Reforms Act which provisions he reproduced he pointed out that the shares of PHCN are being held by the Ministry of Finance Incorporated and Bureau of Public Enterprises in the name of and on behalf of the Federal Government and accordingly based on the above provision of the Act, the Respondent is owned by the Federal Government and its Staff are employees of the Federal Government.

It was further asserted that by virtue of Section 318 of the 1999 Constitution of the Federal Republic of Nigeria, a private Company owned and controlled by the Federal Government is part of the public service of the Federation, the provision thereof which he also reproduced.

The learned counsel for the Respondent then contended that the Staff of Power Holding Company of Nigeria (the Respondent) herein are employees of the Federal Government on the authority of J. A. Adekoye v. Nigerian Security and Minting Company Ltd (2009) 2 SCNJ 290 at 301. He reiterated as he argued in the Preliminary Objection that we take judicial notice that electricity formed part of the Seven Point Agenda of the former President Umar Yar’Adua and crucial agenda of administration from 1999 till date. References were made to paragraph 2(vii)-(ix) of the Respondent’s Affidavit in support of the Notice of Preliminary Objection and the cases of University of Abuja v. Ologe (1996) 4 NWLR (pt. 445) 706 and Odutola v. NITEL (2006) ALL FWLR (pt. 335) 73 which laid down the test to determine whether an Agency or establishment is an Agency of the Federal Government, to further contend that fact that PHCN (Respondent) is a company registered under CAMA does not preclude it from being an Agency of the Federal Government once the Government acts through it in the provision of certain amenities to the citizenry. Odutota v. NITEL (supra) at 88; per Augie, JCA where a Public Limited Company was held to be an Agency of the Federal Government notwithstanding the affixation of the word PLC, was cited to buttress the above contention.

It was further submitted that the law of agency relationships will be applied in determining whether the company (Respondent) is an Agency of the Federal Government as there is no law which provides that only a Statutory Company or establishment is capable of being an Agency of the Federal Government and accordingly, we were urged to hold that PHCN, is an agency of the Federal Government.

On the reference made by the learned counsel for the Appellant to the Public Enterprises (Privatization and Commercialization) Act, Cap P.38, LFN, 2004; which provides for partial privatization of NEPA, learned counsel for the Respondent argued that with reference to Section 1 of the Act thereof, the question of shareholders and the percentage of such holdings are matters of evidence as it is incumbent on the Appellants to show that the Federal Government has complied with the provisions of the Act adding that assuming we hold that the Federal Government has complied, the 40% shares held by the Federal Government is still controlling shares not withstanding the 40% shares of core investors and the 20% of individuals.

Further to the above submission, the learned counsel asserted that the term ‘interest’ in Section 318 of the Constitution should not be given a narrow interpretation rather it should include any interest, connection, association or interrelation between the Respondent and the Federal Government. As to what amounts to having interest in a thing, he relied on the dictum of Ibiyeye, JCA in M.E. Imade v. Military Administrator, Edo State (2001) FWLR (pt. 69) 1385 at 1401; Adetona v. Zenith International Bank Ltd. (2008) ALL FWLR (pt.440) 706 at 806 and Daniyan v. Iyagim (2002) FWLR (pt. 120) 1805 at 1826; where the term was defined.

In the alternative, he urged us to hold that 40% of shares coupled with the amount earmarked for power in the budget of the Federal Government quality as an interest of the Federal Government which controls the Respondent (PHCN).
We were urged further to discountenance the arguments of the learned counsel on this issue.
ISSUE NUMBER 2:

WHETHER THE LEARNED TRIAL JUDGE WAS WRONG WHEN HE DECLINED JURISDICTION IN THIS CASE?

Arguing this issue, the learned counsel for the Respondent cited Section 3(7) of the Electric Power Sector Reform Act and submitted that despite the change in nomenclature of NEPA to PHCN, it does not affect any action against the company as the above provision had left the position of the Authority intact despite the change in structure. He referred us to the fulcrum of the Appellant’s case in the lower Court which is reflected in paragraph 6.12 of the Appellants Brief and submitted that the issues of replacement of poles and restoration of power supply are administrative routines of the Respondent and therefore section 251 of the 1999 Constitution will apply and we were urged to so hold.

Turning to the issue of negligence and damages thereof as claimed by the Appellant, learned counsel for the Respondent contended that negligence entails duty which duty must be breached and there must be damages as a result. As for the duty involved in the case at hand, the learned counsel for the Respondent took the view that it falls within the Managerial and Administrative duties of Respondent and therefore the provisions of Section 251 of the Constitution must be invoked in order to know whether there is any breach at all.

On the reliefs sought by the Appellant which border on damages, he placed reliance on the case of Edegbero v. NEPA (2002) 12 SCNJ 173 at 183-184; to submit that the Federal High Court has jurisdiction to entertain the case. Furthermore, he added, despite the metamorphosis of NEPA to PHCN, nothing has changed in terms of commencing action against the company by virtue of Section 3(7) of the Electric Power Sector Reform Act, 2004. He finally prayed us to dismiss the appeal as the trial Judge was right in striking out the suit for want of jurisdiction.

RESOLUTION OF ISSUES

PRELIMINARY OBJECTION

It would be recalled that in reaction to the Notice of Preliminary Objection and the arguments on the issues formulated and argued by the learned counsel for the Respondent, the Appellant’s Reply Brief dated 19th December, 2011 was filed by the learned counsel for Appellant on the 20th December, 2011. We shall allude to the arguments in the Brief in the course of our resolution of the Issues.
However before delving into the Issues, let me first consider the preliminary Objection raised by the learned counsel for the Respondent which in the main is hinged on statute of limitation, in this case the Public Officers (Protection) Act (POPA) CAP.P41 which provides in Section 2(a) thereof as follows: –
“Where any action, prosecution, or proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, law, duty or authority, the following provisions shall have effect-

(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof:

provided that if the action, persecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”

The provisions of the Act above cited have been the subject of a plethora of decisions of the apex Court and indeed this Court, (see for instance LAUTECH v. Ogunwobi (2006) 4 NWLR (pt.971) 569 per Ibiyeye JCA at 589 paras, G-H; and CBN v. Ukpong (2006) 13 NWLR (pt.998) 555; Ibrahim v. Judicial Service Committee (1998) 12 SCNJ 255 and Mbonu v. Nigeria Mining Corporation (2006) 13 NWLR (1998) 659 at 685 per Nzeako, JCA); but the bottom line in all these decisions is that any action, prosecution, or other proceeding commenced against any person for any act done in pursuance or intended execution of any Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of continuance of damage or injury, within three months after the cessation thereof.

Thus, in the locus classicus of Ibrahim v. Judicial Service Committee (supra), it was held that where, as rightly argued in this case, a party brings his action outside the a statutory period against a Public Officer acting in the exercise of his statutory powers or in due execution of his constitutional duty, the effect of limitation law (in this case Cap. P.41, Laws of the Federation of Nigeria, 2004), is to leave the Claimant with bare and empty cause of action; the right to the action, judicial relief and enforcement hitherto inherent in him, having abated uno flatu by virtue of the action being totally barred and such right extinguished in perpetuity. See Obiefuna v. Okoye (1961) ALL NLR 357; Fred Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) 549; Fadare v. A.G. Oyo State (1982) N.S.C.C 643.

Indeed in the Ibrahim v. Judicial Service Committee Kaduna State (1998) 12 SCNJ 255 case per Iguh, JSC; in his illuminating judgment while interpreting Section 2(a) of the Public Officers (Protection) Law, Cap. 111, Vol. 3, Laws of Northern Nigeria 1963, (which is a replication of Cap. p.41 of the Laws of the Federation that has fallen for interpretation herein), had laid down the two conditions to be fulfilled before the defence under the Act can avail any defendant as in this case the Respondents. In the words of the erudite Judicial Icon:-

“… For Section 2(a) of Public Officers (Protection) Law to avail any person, two conditions must be satisfied, namely:-

It must be established that the person against whom the action is commenced is a public officer or person acting in the execution of public duties within the meaning of that law;
The act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority, see John Ekeogu v. Elizabeth Aliri (1990) NWLR (pt. 126) 345. It can therefore be said that Section 2(a) of the Public Officers (Protection) Law, 1963 gives full protection or cover to all public officers or persons engaged in execution of public duties who at all material times acted within the confines of their public authority and are acting outside the colour of their office or employment or outside their statutory or constitutional duty, they automatically lose protection of that law. In other words, a public officer can be sued outside the limitation period of three months if at all times material to the commission of the act complained of he was acting outside the colour of his office or outside his statutory or constitutional duty. See Nwakwere v. Adewunmi (1967) NMLR 45 at 49, Atiyaye v. Permanent Secretary, Ministry of Local Government, Borno State (1990) 1 NWLR (Pt.129) 728. John Ekeogu v. Elizabeth Aliri (supra). See page 272 paragraph 25-40 and 273 paragraph 5 of the report.

Before determining whether the suit of the Appellant was statute-barred as contended by the Respondents, it is necessary to remind ourselves that in the determination of the question as to whether a Party/Claimant is caught up by the provisions of the Law so as to render his claim statute-barred as argued by the Respondents in this case, the nature of cause of action and when it accrued must be determined firstly before the determination of the question as to whether he/she instituted the action within the statutory period.

Now, “CAUSE OF ACTION” is defined at page 214 of “Black’s Law Dictionary” 7th Edition by Bryan Garner et al as:-

“A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” See Read v. Brown (1889) 22 Q.B. 128 per Pollock B. At 129; Alhaji Kusada v. Sokoto N.A. (1968) 1 ALL N.L.R. 379 at 381-382.

Edwin E. Bryant in his text titled “The Law Of Pleadings Under The codes of Civil Procedure” 2nd Edition at page 170; which text is cited at the same page of Black’s Law Dictionary has the following to say about cause of action:

“What is cause of action? Jurists have found it difficult to give a proper definition. It may be defined generally to be a situation or state of facts that entitles a party to maintain an action in a judicial tribunal. This state of facts may be” (a) a primary right of the plaintiff actually violated by the defendant or (b) the threatened violation of such right which violation the plaintiff is entitled to restrain or prevent, as in cases of actions or suits for injunctions or (c) it may be that there are doubts as to some duty or right, or that right is beclouded by some apparent adverse right or claim, which the plaintiff is entitled to have cleared up, that he may, safely perform his duty or enjoy his property”. See per Aniagolu J.S.C., in Lasisi Fadera v. A.G. Oyo State (1982) 4 S.C.I at pp.6-7.
In the celebrated case of Fred Egbe v. Hon J.A. Adefarasin (1987) NWLR (pt.47) 1 at 20; the distinguished legal luminary and emeritus Justice of the Supreme Court, Oputa JSC., had this to say on the definition of “cause of action thus giving judicial flavour to the above definition thus:-

“It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief.

“A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words, a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right.”

What emerges from all the definitions aforestated in sum is that a cause of action may be a violation or threatened violation of a right inherent in a person, the violation or threatened violation which will entitle him to sue for judicial remedy in a court of law. It may also be in the form of a right or duty, personal or public which has been obstructed by the act of an adverse party which act can only be cleared by the judicial process to enable the party suing to perform such a duty or obligation or to exercise such a right as in the realm of public interest litigation. By its very nature, cause of action is sine qua non to the vesting of locus standi and the two must co-exist simultaneously and be vested in a party to an action in order for the court to be seised of the requisite jurisdiction to entertain the party’s claim. See Afolayan v. Ogurinde (1990) 1 N.W.L.R. 369 at 382-3; Adimora v. Ajufo (1988) 3 N.W.L.R. I; Berger v. Omogui (2001) 6 N.S.C.Q.R. 1062 at 1075 and 1076 and Mrs. F.O. Labode v. Dr. Godfrey Otubu & 1 Anor (2001) 5 N.S.C.Q.R. 722 at 741-745.

How then is cause of action determined? The answer has been provided in the recent case of Adekoya v Federal Housing Authority (2008) 2 N.S.C.Q.R. (vol.34) 952 at 965-966; per Tabai, J.S.C.; when he posited:-

“Even if it is conceded that a valid contract for a lease was entered into on 25th July, 1977 a cause of action cannot be said to accrue to the appellant unless and until there emerges a factual situation which gives her a right of action.”

In other words, each of the factual elements or situations which culminate in the accrual of cause of action should have come into existence before Proceedings can be commenced otherwise, the proceedings will be premature and therefore unsustainable, An action is said to relate back to the date it was initiated and speaks from the date of issuance of the writ. See Eshelby v. Federation of European Bank Ltd. (1932) 1 K.B. 254; Couhs & Co. v. Duntroon Investment Corporation Ltd. (1958) 1 WLR. 116.

Most importantly and as far as this particular case is concerned, the Supreme Court had held per Obaseki, J.S.C; in Thomas v. Olufosoye (1986) 1 N.W.L.R. 669; that having regard to the provisions of Section 6(6)(b) of the Constitution, a cause of action is the question as to the civil rights and obligations of the Plaintiff founding the action to be determined by the court in favour of one party against the other party and that it is to the substantive law of the subject-matter of the litigation that one should look to find out what facts constitute the cause of action in the particular claim.

In the instant case, the contention of the Respondent is that the cause of action accrued or arose on the 19th day of April, 2007, whereas the Claimant/Appellant instituted his action on the 21st day of August, 2007, 4 months and two days beyond the statutory period of three months and the action was therefore unmaintainable in law; the Appellant having been left with a bare or empty cause of action since the alleged neglect, act or default of the Respondent which was challenged took place on the 19th day of April, 2007. On the other hand, the Appellant firstly relies on Order 27 Rule 4(1) of the Kwara State High Court Civil Procedure Rules, 2007 which provides thus:

“A party shall plead specifically any matter (for example performance, release, any relevant Statute of Limitation, fraud or any fact showing illegality) which, if not specifically pleaded might take the opposite party by surprise”; to submit that it is common place that any party who intends to place reliance on Statute of Limitation, fraud or any fact showing illegality among other special defences, must specifically plead them in his Statement of Defence in order to obviate the element of surprise on the other party.

There is also no doubt that the Supreme Court in the cases of Onwuchekwa v. NDIC (2002) 2 SCNJ 178 at 188 lines 5-10 and in the recent case of Oyebamiji v. Lawasson (2008) ALL FWLR (pt. 438) 236 at 256, paras A-C per Muntaka-Coomassie, JSC; has emphasised the need for the specific pleading of Statutory defence like Statute of Limitation in accordance with the Rules of Court. However, it would appear that some previous and most recent decisions have tended to overrule the position taken by the learned counsel for the Appellant nay the authorities cited that Respondent cannot raise the defence herein having neglected so to do in its Statement of Defence. Notwithstanding the fact that on my careful perusal of the Additional Record of Appeal there is nowhere in the Defendant/Appellant’s 19 paragraph Statement of Defence that the defence of Public Officers (Protection) Act was pleaded; the situation we have found ourselves is akin to a demurrer which has been abolished by the provision of Order 26 Rules 1 & 2 of the Kwara State High Court Rules.

By the provisions of the above Rules parties shall be entitled to raise by their pleadings any point of law and any points, so raised shall be disposed of by the Judge before or at the trial. This is what is now known as proceedings in lieu of demurrer. Commenting on the dichotomy between the issue of jurisdiction and demurrer Uwaifo JSC, in NDIC v. CBN (2002) 7 NWLR (pt.766) 272 at 296-297 intoned inter alia:

“The tendency to equate demurrer to objection to jurisdiction could be misleading. It is a standing principle that in demurer the Plaintiff must plead and it is upon that pleading that the Defendant would contend that accepting all the facts pleaded to be true, the Plaintiff has no cause of action, or, where appropriate, no locus standi…..but as already shown, the issue of jurisdiction is not a matter for demurer proceeding. It is much more fundamental than that and does not, entirely depend as such on what a Plaintiff may plead as facts to proof the reliefs he seeks. What it involves is what will enable the Plaintiff to seek a hearing in Court over his grievance/and get it resolved because he is able to show that the Court is empowered to entertain the subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction.”

In this case it would appear that the contention of the Appellant is that the Respondent cannot raise the defence of Statute of Limitation which to my mind is a threshold issue of jurisdiction at this stage of proceeding since he did not plead same. However, there are authorities galore to the effect that since demurrer proceeding has been banned almost across the country, the defendant is entitled to raise by preliminary objection an issue or point of law which may include jurisdiction as in this case. See Olabanjo v. Dawodu (2006) 15 NWLR (pt 1001) 76; Arjay Ltd. v. AMS Ltd. (2003) 7 NWLR (pt.820) 577; Oluwaniyi v. Adewumi (2008) 13 NWLR (pt.1104) 387 and FCE Oyo v. Akinyemi (2008) 15 NWLR (pt. 1109) 21.

Learned counsel for the Respondent further argued and cited Ajao w JMDB (2006) ALL FWLR (pt.302) 19 & 50 paras. B-C per Obadina and Nzeako JJCA; where their Lordships observed that even though the issue of jurisdiction is very fundamental and can be raised at any stage of proceeding, the fact remains that it must be raised in accordance with the Rules- a position which was recently reiterated by Adekeye, JSC in Hassan v. Aliyu (2010) ALL FWLR (pt.539) 1007 at 7063 paras. E-F; that albeit the defence of Statute of Limitation could be raised in limine and without any evidence in support but it must be pleaded. With the greatest respect to the learned counsel for the Respondent and in due deference to the impregnable doctrine of stare decisis in respect of the dictum of my noble and most respected Lord Adekeye, JSC, the most recent Supreme Court decision which is in all fours and more on the point being canvassed in the appeal at hand, is that of Nasir v. CSC Kano State and 2 Ors. (2010) 6 NWLR (pt. 1190) 253; cited as an additional authority by the learned counsel for the Respondent. At page 270 of the Report, Mukhtar, JSC, delivering the lead Judgment of the apex Court and re-echoing what he said in F.R.I.N. v. Gold (2007) 11 NWLR (pt.1044) at 1 put it beyond conjecture that: –

“As I have stated earlier in the Judgment in the treatment of Issue (1), the Statute of Limitation is a matter of jurisdiction which can be raised at any stage of litigation and I will add here, even in the Supreme Court. In my words, in the very recent case of F.R.I.N. v. Gold (2007) 11 NWLR (pt. 1044) at 1 which has been cited by learned counsel for the Respondents:-

“There is no doubt this rule connote mandatory procedure, but it does not preclude a party from raising the defence of Statute of Limitation at an Appellate Court vide leave to do so even if he did not do so at the Court of first instance, because such issue borders on the fundamental issue of jurisdiction. The Appellant in this case realised its mistake in not thrashing out the issue and so raised it in the Court of Appeal after leave was obtained.

Speaking in the same vein, Ogbuagu, JSC in his contributory Judgment at page 276 of the Report after citing the celebrated case of Olabanjo v. Dawodu (supra) as regards the procedure adopted as in this case where the Respondent filed a Notice of Preliminary Objection in the Court of Appeal with a view to raising the defence of Statute of Limitation of Section 2(a) of the Public Officers (Protection) Act; held the view that:

This Court, dealt with the issue as to when an objection as to jurisdiction, can be raised…….I note that the crux of the objection of the Respondent in this suit leading to this appeal, was in respect of jurisdiction. In this regard, it is now firmly settled that issue of jurisdiction or competence of a Court to entertain or deal with a matter before it, is very fundamental. It is a point of law and therefore a rule of Court, cannot determine when and how, such point of law, can be raised. Being fundamental and a threshold issue of jurisdiction, it can be raised at any stage of the proceedings in any court including this court. An appellate court can even raise it suo motu. See the case of Anyah v. Iyayi (1993) 7 NWLR (pt.305) 290 and Kotoye v. Saraki (1994) 7 NWLR (pt. 357) 414 at 466. I need emphasize as it is also settled that mandatory rules of court, are not as sacrosanct as mandatory statutory provisions and therefore a rule of court cannot override the provisions of the law. See the case of Katto v. CBN (1991) 9 NWLR (pt.214) 126.I hold therefore that the objection of the Respondent was rightly and properly upheld by the two lower courts.

From the decisions of the learned Justices of the apex Court as highlighted above, the submissions of the learned counsel to the Appellant which is akin to an objection to the preliminary objection of the Respondent is hereby overruled as the Respondent can raise the Issue of Jurisdiction -predicated on the Statute of Limitation id est Public Officers Protection Act by way of preliminary objection in this Court. I am reinforced by this stance since it has been established by a long line of judicial authorities too numerous to mention, that jurisdiction is the jugular vein, the live blood that enlivens the survival of an action without which same would be likened to an animal drained of its blood and therefore would cease to survive and any attempt to resuscitate it without infusing blood into it, would be tantamount to an exercise in futility; more so, since it occupies a fundamental position in the judicial process; it can be raised at any stage inside out, upside down in the course of proceeding.

See per Bello; CJN in Uti v. Onoyivwe (1991) 1 SCNJ 25 at 49; per Tobi, JSC in Okoro v. Egbuoh (2006) 15 NWLR (pt.1001) 1 at 23-24; Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) 427; Governor of Kwara State v. Lawal (2007) 13 NWLR (pt.1051) 347 e.t.c.

Turning to the substance of the preliminary objection, on the first criteria for the application of Section 2(a) of the Public Officers (Protection) Act which is that: “It must be established that the person against whom the action is commenced is a public officer or person acting in the execution of public duties within the meaning of that law; as decided by Iguh, JSC; in the above cited locus classicus of Ibrahim v. Judicial Service Committee Kaduna State (1998) 12 SCNJ 255; the contention of the learned counsel for the despondent is that the Respondent or its Staff are Agent(s) of the Federal Government because a chunk of the annual budget of the Federal Government as, passed by the National Assembly from 1999 till date goes to the power sector and that Electricity is one of the Seven Point Agenda of the late President Umar Yar’Adua and indeed a focus of this present administration.

In that wise PHCN he contended, is an Agency of Federal Government for the purpose of generating electricity for the country and its citizenry and accordingly it is an organ established by law through which the Federal Government carries out its function. He has also cited Warri Refinery Petrochemical Co. Ltd. v. Agbuje (supra); Odutola v. NITEL PLC (supra) and Onuorah v. Kaduna Refinery and Petrochemical Co. Ltd. (2005) ALL FWLR (pt. 256) 1356. There is no doubt that in all the cases above cited, the courts determined that Warri RPC Ltd, University of Abuja and NERFUND are all agencies of the Federal Government as ably decided by the court, since they are all organs created by law through which the Federal Government performs its function.

The learned counsel for the Respondent has also cited Section 318 of the 1999 Constitution, Sections 2 and 9 of the Electric Power sector Reform Act and section 1 of the public Enterprises (Privatisation and Commercialisation) Act to buttress his contention and to belie the submission by the learned counsel for the Appellant that the mere fact that PHCN has been registered as a public company limited by shares and with the appellation plc, it has ceased to become an agency of the Federal Government.

For the avoidance of doubt, Section 2 of the Electric Power Sector Reforms Act, Cap. P.41 LFN, 2004 provides thus:

The shares of the initial holding company on its incorporation shall be held by the Ministry in the name of and on behalf of the Federal Government of Nigeria.
On the other hand, section 9 provides that:

All the respective shares of each of the successor companies from the date of their incorporation shall be held jointly in the name of the Ministry of Finance incorporated and the Bureau of Public enterprises for and on behalf of the Federal Government of Nigeria.

From the provisions of the Act above quoted, it is clear as crystal that notwithstanding the change in nomenclature from NEPA to PHCN and the appellation of PLC attached to the Power Holding Company by virtue of its registration under CAMA, the PHCN which is the holding company incorporated to take over the assets and liabilities of NEPA is still under the control of the Federal Government through the Ministry of Finance (Incorporated) and the Bureau of Public Enterprises. Furthermore, Section 9 makes it also explicitly clear that all the respective shares of each of the successor companies shall be jointly held in the name of the Ministry and the Bureau.

If as we have seen above, that in spite of the incorporation of PHCN PLC the organs of the Federal Government are still in charge of the assets and liabilities and in fact hold the controlling shares thereof, then the submission of learned counsel that a private company owned and controlled by the Federal Government is part of the public service of the Federation is unassailable as is amply demonstrated by the provision of Section 318 of the Constitution of Federal Republic of Nigeria, 1999 which is the definition section and provides in Sub-Section (1) (g) thereof as follows:

Public service of the Federation means the service of the Federation in any capacity in respect of the Government of the Federation, and include service as:
(g) in which the Government of the Enterprise in which the Government of the Federation or its agency owns controlling shares or interest;
Going by foregoing definition of Public Service which includes staff of Companies or Enterprises in which the Government of Federal or its agencies owns controlling shares or interest, the submission of the learned counsel for the Respondent on the authority of J. A. Adekoye v. Nigerian Security Minting Company Ltd. (2009) 2 SCNJ 290 at 301; that the staff of the power Holding company of Nigeria (the Respondent) are employees of the Federal Government cannot be faulted. See also paragraph 19 of the Fifth Schedule to the Constitution of federal Republic of Nigeria which defines Public Officer for purposes of Code of Conduct for Public Officers and Code of Conduct Tribunal as meaning a person holding any of the offices specified in Part II of the Schedule.
In the said part II paragraph 14 thereof such a person includes Chairman and members of the Boards or other Governing bodies and staff of statutory corporations and of companies in which the Federal or State Government has controlling interest.

Apart from the above definitions this Honourable Court had held in Lautech v. Ogunwobi (2006) 4 NWLR (pt.971) 569, per Ibiyeye, JCA at page 569, Paras C-A that:-

The public Officers (Protection) Act basically deals with a Situation where legal proceedings are instituted against a public officer or institution. It is now settled that public institution such as the appellant being a juristic person is within the contemplation of the public Officers (Protection) Act.” See also C.B.N v. Ukpong (2006) 13 NWLR (pt.998) 555; Ibrahim v. Judicial Service Committee (1998) 12 SCNJ 255 and Mbonu v. Nigeria Minning Corporation (2006) 13 NWLR (pt. 998) 659. From the above decisions and in particular the dictum of Ibiyeye, JCA; above cited, it is clear that the Power Holding Company of Nigeria Plc, being a registered public Company Limited by shares is a juristic person which ought to be protected by the Public Officers Protection Act assuming the criteria for application of the Act are met.

I therefore agree into with the submissions of the learned counsel for the Respondent that the PHCN is an Agency of the Federal Government and its Staff are employees of the Federal Government and indeed public officers for purposes of the Code of Conduct and application of the Public Officers (Protection) Act.

On the second criterion for the application of the Act which is that:
“The act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority.”; there is no doubt that by paragraphs 4, 5, 7, 8, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21 (and the particulars thereof), of the Claimant’s/Appellant’s Statement of Claim; his cause of action is anchored on the negligent acts or defaults of the Respondent and its agents in failing to forestall the occurrence of the inferno in the Appellant’s workshop when in the first place they Could not replace the termite ‘infested Electric Pole which as a result of the rain storm fell with the Electric cables on the roof of the workshop.
Again, the Appellant is claiming that even when the Respondent’s agents were alerted of the likely danger of restoring light after the storm, the Respondent or its agents in a manner so reckless, rash and negligent restored light to the area which culminated in the ignition of wires and the pole leading to the fire which immediately gutted the entire workshop with all the items and equipments therein. The Appellant has specifically pleaded in paragraphs 19, 20 and 21 with particulars given that: “the (sic) Claimant (the Defendant?) Owed a duty of care not to him alone but to the general public regard to the risky and dangerous nature of the undertakings of the Defendant”, and a high degree of caution and prompt action were expected of the agents of the Defendant in order to avoid imminent danger that was associated with life wires at the roof of the Claimant’s workshop when electricity supply was restored.

The Appellant pleaded also that the duty of care owed him by the Respondent was breached with impunity and reckless abandon which culminated in the damage he suffered that cost him his means of livelihood and property worth Millions of naira. The particulars of special damages were stated in paragraphs 25, 26, 27 and 28 and in paragraph 33 a summary of the total sum of money and general damages claimed against the Respondent were itemized.
It is pertinent to note that the learned counsel for the Appellant had argued that Section 2(a) of the Public Officers (Protection) Act will not apply because the case of the Appellant falls within the exceptions which would warrant the applicability of the Act. He also referred to the acts of negligence exhibited by the Respondent’s agents as we had highlighted above in his pleadings, to submit that those agents acted in bad faith and abuse of their office. He had further cited Nwankwere v. Adewumi (1966) ALL NLR 129 at 133-134 per Brett, JSC; Lagos City Council v. Ogunbiyi (1966) ALL NLR 297 per Ademola, CJN at 299 who variously held that the law is designed to protect an officer who acts in good faith and does not apply to acts done in abuse of office and without semblance of legal justification.

Furthermore, the acts would not apply where it has been established that the Defendant had abused his office and acted maliciously and as such he would not be acting within the terms of his statutory or other legal authority and therefore, he has not been bonafide.

In such circumstance, he has abused his position for the purposes of doing wrong and the protection of the Act of course never could have applied to such a case. See Offoboche v. Ogoja L.G (2001) 7 SCNJ 468 and Hassan v. Aliu (2010) ALL FWLR (Pt. 539) 1007 at 103; which followed the dicta of Brett, JSC and Ademola CIN as above cited. There is no doubt, as it was rightly held by the Supreme Court that it is the duty of the Appellant as in this case to adduce evidence or facts to establish bad faith and lack of semblance of legal justification etc.

On the whole, and more particularly from the paragraphs of the pleadings earlier on enumerated, it is clear that the Respondent or his agents acted within the scope of their duty as suppliers of the Electricity to the public in the cause of which the Appellant alleged that they were negligent in the discharge of their public duty and/or allegedly defaulted in the execution of their duties.
Having said this, what is next to be determined is whether from the materials placed before the Court, the claim of Appellant is caught by the Public Officers (Protection) Act or put differently, how and from where do we find out whether the Appellant commenced the proceedings within three months as provided under the Act so as not to be caught by the provision of the Act. We shall be guided by the dictum of Tabai, J.S.C; who posited in Adekoya v. Federal Housing Authority (2008) 2 N.S.C.Q.R. (Vol.34) 952 at 965 – 966, that:-

“…a cause of action cannot be said to accrue to the Appellant unless and until there emerges a factual situation which gives her a right of action, to give us the answer. The erudite Justice of the apex Court, in the same case had quoted with approval the dictum of Oputa, JSC in Adimora v Ajufo (1988) 6 SCNJ 18 at 30-31, on how to determine the period of limitation of action as provided for under the Public Officers Protection Act, thus: How does one determine the period of limitation? The answer is simple by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons was filed. This can be done without taking oral evidence from witnesses…”

In the same case, Adimora v. Ajufo (supra), at 30 – 31; per Oputa, JSC had succinctly stated the position of the law that:-

“Thus the accrual of action is the event whereby the cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action.”

See also Mbonu v. Nigerian Minning Corporation (2006) 13 NWLR (pt.998) 659 at 685, where this Honourable Court per Nzeako, JCA held thus:
The relevant issue is whether the action is statute barred and out of this arise the first question which is when does time to institute action begin to run, where time for instituting such an action is prescribed by law. The answer is that time begins to run from the accrual of the cause of action.

Here is what the Supreme Court held in Fadare v. Ag. Oyo State (1982) NSCC at 60 also reported in (1982) 4 S.C 1 at pp, 24-25 referring to Board of Trade v. Cayzer Irvine Co. Ltd. (1927) AC 610:

Time begins to run when the cause of action arises then the apex court continued.Time therefore begins to run when there is in existence a person who can sue and another who can be sued and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed.

From the foregoing authorities and in line with the guidelines given us by Oputa, and Tabai J.J.S.C as well as Nzeako, JCA; we shall once more resort to the writ of summons and Statement of Claim filed by the Appellant in the lower Court. A careful perusal of paragraph 6 of the Statement of Claim would reveal that the Appellant averred thus:-

that on the 19h April, 2007 at about 8:30pm, there was a rainfall in Ilorin metropolis and concomitant storm resulted into the collapse of an electricity pole erected by the defendant few metres away from the claimant’s workshop and fell on top of the roof of the workshop or factory of the claimant See page 4 of the Records.

On the other hand, a careful perusal of page 1 of the Record of Appeal which contains the writ of summons would also show that the Claimant/Appellant commenced proceedings in the Court below as endorsed on the writ of summons on 21st day of August, 2007. Therefore, calculating from the date of accrual of the cause of action that is on the 19th of April, 2007 to 21st of August, 2007 when the action was commenced; four months and two days had lapsed. Accordingly, I am tandem with the submission of the learned counsel for the Respondent in paragraph 5.13 of the Respondent’s Brief partially that since this claim is in the nature of the tort of negligence against PHCN and its agents who were alleged to have defaulted in the due execution of their duties, the claim against them by the Appellant was caught by the Public Officers (Protection) Act Cap. P41 Laws of Federal of Nigeria, 2004; and therefore statute barred the action having not been commenced within the three months of the accrual of the cause of action as stipulated by the Act.

I adopt the decision in Yakubu v. NITEL Ltd. (2006) 9 NWLR (pt.985) 367 at 392, where this Honourable- Court held thus:

There is no double that action could be instituted against public officers on tort or breach of contract. In other words, public officers could be sued for damages in claim of tort or breach of contract committed by them where such act or omission was committed by them in the execution of their official duty or duties. However, by the corresponding provisions of section 2 (a) of the Act or Law, such action must be instituted within three months from the date the cause of action accrued. See Ibrahim v. JSC (1998) 14 NWLR (pt.584), Ekeogu v. Aliri (1990) 1 NWLR (pt.126) 345, Nwakwere v. Adewumi (supra), Atiyaye v. Permanent Secretary Ministry of Local Government, Borno State (supra). In the instant case as shown in paragraph 37 of Plaintiff/Appellant’s Amended statement of claim, the cause of action accrued in December, 1992. That was the time the telephone lines were allegedly recovered. The two public officers, that is the Defendants/Respondents were sued in June, 1993 as shown on the writ of summons, that is to say about seven months after the cause of action accrued.

I remarked above, section 2(a) of the Public officers (Protection) Law/Act precludes any action from being filed against any officer after three months from the date when the cause of action accrued. In the instant case, the cause of action, that is alleged recovery of telephone lines, occurred between 1987 to December 1992. The claim of the two defendants/appellants is statute barred as rightly held by lower court. See Ibrahim v. JSC (supra); as mine and accordingly, hold that this preliminary objection is meritorious and is hereby sustained.

From the foregoing decisions cited above, the claim of the Appellant in the lower Court and indeed this appeal ought to be struck out for being statute barred.
Assuming I am wrong, I shall proceed to consider the substantive appeal on the merit and in so doing, I prefer to adopt the two issues formulated by the learned R. O. Balogun Esq., since the issues formulated by the learned Counsel for the Respondent are basically the same.

On Issue Number 1 (One), which is whether the learned trial Judge was not wrong by holding that, Power holding Company of Nigeria, Plc is an agency of Federal Government, when it is evident that the 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; this issue has sufficiently been dealt with in our determination of the preliminary objection of the Respondent and I adopt the position earlier taken to reiterate that notwithstanding the fact of unbundling of NEPA and the incorporation of PHCN as a Public Company Limited by shares and the definitions highlighted at page 7 of Appellant’s Brief as couched from Section 29 of the Companies and Allied Matters Act, Cap. C20, LFN, 2004; the PHCN Plc is still an Agency of the Federal Government of Nigeria by virtue of Sections 2 and 9 of the Electric Power Sector Reform Act Cap. E7.

It is needless to re-emphasise that the shares of PHCN which is the initial Holding Company to which the assets and liabilities of NEPA had been transferred, upon its incorporation; shall and is being held by Ministry of Finance incorporated and Bureau of Public Enterprises in the name and on behalf of the Federal Government of Nigeria. Even by the provision of Section 9 thereof, all respective shares of Successor Companies from the date of their incorporation shall also be held jointly in the names of the Ministry and Bureau for and on behalf of the Federal Government of Nigeria. These Sections of the Electric Power Sector Reform Act should be read together with Section 1 of Public Enterprises (Privatization and Commercialization), CAP. P38, Laws of the Federal Republic of Nigeria which provides that the enterprises listed in Part 1 of the First Schedule to the Act shall be partially privatized in accordance with the provisions of the Act.

In Part 1 of the First Schedule at page 38-15 of the Act, the National Electric Power Authority has been listed as the one and only Enterprise in the Electricity sector to be privatized and a maximum of 40% shares shall be allotted to strategic investor participants after privatization. For the Federal Government a maximum of 40% shares has also been allotted to its parastatals after privatization whereas the Nigerian individuals are allotted 20%. There is no doubt as the learned counsel for the Appellant has rightly argued that the preamble to the Act states that it is for the privatization and commercialization of certain public enterprises and for the establishment of National Council on Privatization and Bureau of Public Enterprises; and matters related thereto.
Learned Council for the Appellant has also referred us to Section 2, 3 and 5 of the Act which provide for the mode of privatization which is by Public Issue and placement as the case may be either by sale of shares by Public Issue to Nigerians or at the Capital Market; the fact that the Government of the Federation may further divest of its hare holding in the privatized enterprises to interested foreign or local investors through their respective Capital Markets in accordance with policy guidelines of the National Council. Section 5 deals with allotment of shares and the modalities there for. All these provisions are mere platitudes or proposals which are yet to come on stream full scale and this is the basis, for instance for the incorporation of PHCN which shares are still being held by the organs of the Federal Government like the Ministry of Finance incorporated and Bureau of Public Enterprises until the Electricity Power Sector is completely privatized. Meanwhile the learned counsel has not furnished us with evidence that full privatization of the power sector has been attained or implemented.

In this wise, it is pertinent to note that there are Independent Power Companies which are springing up just like the Telecommunications Service providers that existed side by side with NITEL until the state the Telecommunication Industry has found itself today. It was a gradual process which is now demonstrated in the power sector by partial privatization of NEPA. Since the Federal Government still has interest or controlling shares in PHCN, nothing can be further from the truth that the Power Holding Company is, not an agency of the Federal Government. That the contrary is the case, apart from the provisions of the Sections 2 and 9 of the EPSM, by Section 18(1), (g) of the 1999 Constitution it is very clear that employees of a company like the PHCN of which the Federal Government has the controlling shares or interest in are Public Officers of Government Agency.

To further buttress the fact that the Power Holding Company is an agency of the Federal Government, I stumbled across in the Record of Proceedings, a CTC of volume 3 No. 0957 of The Nation Newspaper of Wednesday, March 4th, 2009; where President Umar Yar’dua removed the Executive Vice-Chairman and two Executive Directors of Power Holding Company of Nigeria (PHCN). Even of recent Prof. Barth Nnaji the Minister of Energy and Power fired some Executives of PHCN for non performance. From all indications the learned counsel for the Appellant cannot seriously contend that PHCN is not an agency of the Federal Government.

On the other hand, the learned counsel for the Respondent has rightly submitted citing University of Abuja v. Ologe (1996) 4 NWLR (pt.445) 706; Odutola v. NITEL (2006) ALL FWLR (Pt.335) 73, that the test to determine whether an agency or an establishment is an agency of the Federal Government has been laid down in the above cases and as I had earlier held on the preliminary objection, the fact that PHCN (the Respondent) is a company registered under the Companies and Allied Matters Act (CAMA) does not preclude it from being an agency of the Federal Government once the Government acts through it in the provision of certain amenities to the Citizenry. I agree completely with the position taken by my Lord Augie, JCA, in Odutola v. NITEL (supra) at 88, when he intoned thus:-

“I agree with the respondent that the lower Court was right to take it as proved that NITEL is a Federal Government agency. NITEL, created for the purpose of providing telecommunications services throughout Nigeria is in the same category as NNPC and NEPA; they are agencies of the Federal Government of Nigeria, since they are organs established by the law through which the Federal Government carried out its function.

I also agree with the point canvassed by the learned counsel for the Respondent that based on the above dictum of Augie JCA, the law applicable in agency relationships will be applied in determining whether there is an agency relationship between the Federal Government and the Respondent. In M. E. Imade v. Ministry Administrator, Edo State (2001) F.W.L.R Pt 69 1385 at 1401; ably cited by learned counsel for the Respondent, this Honourable Court per Ibiyeye J.C.A; had cause to pronounce on the concept of interest when he posited thus:

A person is said to have an interest in a thing when his rights, advantages, duties liabilities, losses or the like that are connected with it, whether present or future are ascertained or potential provided that the connection and, in the case of potential rights and duties, the possibility is not too remote. The question of remoteness depends upon the purpose which the interest is to serve. See also Adetona v. Zenith International Bank Ltd. (2008) ALL F.W.L.R (Pt.440) 796 at 806 and Daniyan v. Iyagim (2002) F.W.L.R (Pt.120) 1805 at 1826.

The learned counsel for the Appellant in spite of all his brilliant arguments has not been able to point out to any law and indeed there is no law which provides that only a statutory company or establishment is capable of being an agency of the Federal Government. Rather by the provisions of Sections 2 and 9 of the Electric Power Sector Reform Act, the Federal Government has incorporated PHCN Plc. as a public company limited by shares to take over from NEPA which shares as had earlier been held are controlled by the Ministry of Finance incorporated and Bureau of Public Enterprises both core organs of the Federal Government of Nigeria and therefore agencies of the Government.

In this case, the Respondent having shown that the Federal Government has controlling shares and interest in PHCN and its organs the Ministry of Finance and Bureau of Public Enterprises hold the shares of PHCN and shall also hold all the respective shares of Successor Companies upon incorporation in the name and on behalf of the Federal Government, coupled with the massive appropriation of huge budgetary allocations for the power sector which is even part of the seven point agenda of the past and present Administration; it is foolhardy to insist that Power Holding Company is not an agency of the Federal Government. Accordingly, this issue is resolved against the Appellant.
On Issue Number 2 (Two), Whether the learned trial Judge was right in declining jurisdiction and striking out the case of the Appellant on the premise that 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 of Onuorah v. KRPC (2005) ALL FWLR (pt.256) 1356. This issue is predicated on the terse ruling of the learned trial Judge that because Power Holding Company is an agency of the Federal Government for supplying light he had no jurisdiction to entertain the claim of the Appellant.

In the resolution of this issue the point must be conceded that in the determination of whether the Court below had jurisdiction to entertain the claim of the Appellant, it is to the Statement of Claim that we must turn. This point was stressed by Tobi, JSC; in the celebrated case of Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 427 at 588-589 paras; H-C where, in a suit commenced by originating summons he held thus: In the determination of whether or not a court has jurisdiction, the court process to be used is the pleadings of the Plaintiff, which is the statement of claim, it is the case put forward by the Plaintiff that determines the jurisdiction of the court. In this cases as the action was commenced by Originating Summons, the court process to be used is the affidavit in support of the Summons, in other words, the court will not examine a counter-affidavit even if filed, See Nnonye v. Anichie (2005) 2 NWLR (pt.910) 623; NDCC v. CBN (2002) 7 NWLR (Pt.766) 272; Elabanjo v. Dawodu (2006) 15 NWLR (pt. 100) 76; Okulate v. Awosanya (2000) 2 NWLR (pt. 646) 530; Adeyemi v. Opeyori (1976) 9-10 S.C. 31; Tukur v. Governor Gongola State (1989) 4 NWLR (pt.117) 517 and Egbuonu v. B.R.T.C (1997) 12 NWLR (pt.531) 29,” See also Utih v. Onoivwe (1991) 1 NWLR (pt.186) 63; Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt.117) 517 at 549; Maigari v. Matori (2002) 8 NWLR (pt.670) at 735 and Paco Ltd. v. CBN (2001) 3 NWLR (pt. 900) 347 at 365; ably cited by the learned counsel for the Respondent.

Going by the above authorities, it is clear that in order to determine whether the learned trial Judge was seised with the requisite vires or jurisdictional competence to entertain the claim of the Plaintiff/Appellant, it is as earlier stated the Statement of Claim and the reliefs sought viz-a-viz the provisions of Section 251(1) of the 1999 Constitution that we shall turn to, for thorough and discreet scrutiny. This is because the learned counsel for the Respondent both in the motion for striking out the suit at the lower Court for lack of jurisdiction and the arguments herein proffered are predicated on the grounds that the Respondent is an agency of the Federal Government and that the claim of Claimant/Appellant arose from administrative management and control of the Respondent (an agency of the Federal Government), which claim against it can only be entertained by the Federal High Court.

In fact the learned counsel for the Respondent had cited Section 3(7) of the Electric Power sector Reform Act which provides that:-

Any cause of action or proceeding which existed or was pending by or against the Authority immediately before the initial transfer date shall be enforced or continued, as the case may be, on and after that date by or against the initial holding company in the same way that it might have been enforced or continued by or against the authority had this Act not been passed; to submit that the provision quoted above had left the position of NEPA intact despite the changes in the structures of the Respondent. He had pointed out that the fulcrum of the case of the Appellant is the alleged destruction by termites and restoration of electricity supply when the electricity poles and wires were still lying on the Appellants shop (See paragraph 6:12 of the Appellant’s brief. Learned counsel then argued that the issues of replacement of poles and restoration of power supply are administrative duties of the Respondent. Therefore, the provisions of section 251 of the 1999 Constitution must be invoked and scrutinized to know whether there is any breach at all. He has also referred us further to the summary of the reliefs of the Appellant/Claimant which borders on damages; therefore, it is the Federal High Court that has jurisdiction to entertain the Appellant’s Claim.

Learned counsel finally cited the case of NEPA v. Edegboro (2002) 12 SCNJ 173 at 183-184, where the Supreme Court held thus:

I have myself read the provisions of paragraph (q), (r), and (s) of subsection (1) of section 230 all over again; I can find no such exception in it that would lead me to find to the contrary.

A careful reading of paragraphs (q), (r) and (s) reveals that the intention of the lawmakers was to take away from the jurisdiction of the State High Court and confer same exclusively on the Federal High Court in respect of actions in which the Federal Governments or any of its agencies is a party. While paragraph (s) talked of actions for declaration or injunction, the proviso extended this to actions for damages, injunction or specific performance. It did not say as the learned trial judge, with profound respect, appear to read into it that action for damages, injunction or specific performance against the Federal Government or any of its agencies could still more before a State High Court. I am of the view that the learned trial judge was in error in his interpretation of the purport of the proviso; to urge us to hold that based on the above case, the Claimant/Appellant’s claim being a claim for damages, it is the Federal High Court that has jurisdiction to entertain same.

The Appellant on the other hand, had from the Court below and herein argued per contra that the State High Court would still have jurisdiction to entertain the claim of the Appellant for on the authorities, the law is common place that it is Plaintiff’s claim that determines the jurisdiction of a Court because a Court will not readily deny itself of jurisdiction unless such jurisdiction is expressly ousted by the constitution. A.G Lagos State v. A.G of the Federal (2005) ALL FWLR (pt. 294) 505. He then argued that from the statement of claim and the reliefs sought, the case of the Appellant is the tort of negligence said to have been committed by the Respondents which resulted in serious injury to the Claimant.

On the second ground of the motion for striking out the Respondents case which bordered on the contention that the Appellant’s case touches on the management, administration and control of the Agency of the Federal Government, the learned counsel submitted that by virtue of Section 251(1) of the Contitution of the Federal Republic of Nigeria, 1999 the Federal High Court can only have exclusive jurisdiction over any other Court if the case falls within any of the items mentioned in the section.

He had cited Section 251 (1) (P) of the Constitution which the Respondent placed reliance on in his argument that the court below lacked jurisdiction emphasizing that having regard to the above quoted section, since the Appellant’s action is in tort, the forum convenience for the determination of the cause action of any matter which can be classified as tort is the High Court of a State. The learned counsel further asserted that the case has nothing to do with management and control of Government Agency or Power Holding Company Nigeria Plc.

Learned Counsel alluded to Section 272(1) of the same Constitution on the jurisdiction of the High Court of a State and cited NEPA v. Edegbero wherein it was held that NEPA was an Agency of the Federal Government and the subject matter related to the management administration of NEPA in that the issues was termination of appointment of its staff whereas in our instant case PHCN is not a creation of statutes but a company incorporated under CAMA.

On acts which can be described as falling with the Management or Administrative capacity of a Government Agency learned counsel referred us to the dictum of Augie, JCA in the case of Odutola v Nitel (2006) FWLR (pt. 385) 73 which case was whether the Appellant’s bill was wrongfully debited or his telephone line wrongfully tossed.

He maintained that the case of the Appellant here is the failure of the Respondents to maintain their electric pole when it was destroyed by termites and restoration of light, while the wires were still lying on the roof of the Claimant’s shop. It was therefore submitted that supplying of electricity, fixing of destroyed electricity poles among other similar acts usually carried out day by day would be described as technical rather than administrative or management acts of Respondent which will enable the High court to entertain the matter.
Learned counsel has also drawn our attention to Onuorah v. KRPC (2005) ALL FWLR (Pt.256) 1356 at 1364 per Akintan JSC where Section 230(1) of Decree No. 107 of 1993 which is in pari materia with the provisions of Section 251(1) of the 1999 Constitution on the need for the simultaneous existence of party and subject matter even when the party is a Federal Agency, before the Federal High Court can have jurisdiction.

He further cited Kayode v FCDA (2006) ALL FWLR (pt.298) 1200 per Rowland JCA at 1226 paras G-H; NIMR v. Akin Olugbade (2008) 5 NWLR (Pt.1079) 68 at 91-92 and 95 paras C-F particularly the dictum of Denton-West JCA; the recent case of NNPC v. SLB Consortium LTD. (2009) ALL FWLR (pt.452) 1036 at 1049-1053 where this Court x-rayed the Supreme Court cases in NEPA v. Edegbero (supra) and Felix Onuarah v. KRPC (supra) at pages 1050-1053 per Galinje, JCA; submitting that it was held that Onuorah v. KRPC (supra) is a clear departure by the Supreme Court from the case of NEPA v. Edegbero. Furthermore, this Honourable Court was said to have cited with approval the case of Adelakun v. Ecu-Line NV (2006) 12 NWLR (pt.993) 33 at 52 paras, F-N per Onnoghen, JSC which singular decision is capable of setting aside the decision of the trial Court by reason of its ratio on the jurisdiction of the Federal High Court on damages for negligence which is the fulcrum of the Appellant’s case before the lower Court.

He in conclusion prayed us to set aside the decision of the learned trial Judge and order that the Court has jurisdiction to entertain the matter on the grounds earlier canvassed.

Now, in order to resolve the issue as to which of the Courts between the High Court of the State and the Federal High Court is seised of jurisdiction to hear the claim of Appellant it is necessary to have resort to the provisions of Section 251 of the 1999-Constitution vesting the Federal High Court with its jurisdiction. Section 251(1) (p)(q) and (r) unequivocally stipulate in mandatory terms that “251(1) Not withstanding anything to the contrary contained in this Constitution and in addition to such jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in Civil causes and matters:-

(p) The administration or the management and control of the Federal Government or any of its agencies.

(q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies.

(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”

From the contentions of parties it is clear that the Respondent places reliance sub-paragraph (p) of the Section, which deals with administration or Management and control of the Federal Government or any of its agencies, in this case, PHCN Plc. It is gratifying that the respective learned counsel for the parties have cited NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) 79 at 97. In that celebrated yet controversial case Ogundarg J.S.C had laid down the guiding principles for the determination of the jurisdiction of the Federal High Court and the purport of paragraphs (p) (q) (r) (s) of section 251(1) of the Constitution having held that …”The aim of paragraphs (p) (q) (r) and (s) of subsection 1 of section 230 was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agents was party. A State High Court would no longer have Jurisdiction in such matters notwithstanding the nature of the claim in the action.”

From the above decision, it would appear that the foundation for the controversy as to party and subject matter jurisdictions had been laid, which has necessitated the positions taken by the learned counsel for the Respondent. See the dicta of their Lordships of the apex Court in Oloruntoba – Oju v. Dopemu (2008) 7 NWLR (Pt. 1085) page 1 at 31-32 Para C-C, 34-35 Para B-D; Per Aderemi J.S.C., and Muhammad J.S.C. at page 36; A.G.F. v. Oshiomole (supra); Obi v. INEC (supra); Ladoja v. INEC (supra ); A.G.F. v. ANPP (2003) 15 NWLR (Pt. 844) 600 and Isuama v. Governor of Ebony State (supra), See also Omosowan v. Chiedozie (1998) 9 NWLR (Pt. 566) 477 and Okoroma v. UBA (1999) 1 NWLR (Pt. 587) 359; which cases were decided on the bases that the subject matter of the suit determines the appropriate court with the requisite jurisdiction to decide the case since the lawmaker never intended that state High courts are automatically divested of jurisdiction once a party before them is an agency of the Federal Government.

It has to be emphasized that even in the case of NEPA v. Edegbero (supra) which seemed to have buttressed the stand of the Respondent herein and the Court below, Tobi, J.S.C, in his concurring judgment made it explicitly clear at pages 1573 – 1574 of (2003) FWLR (Pt. 139); that in the construction of the sections, two important factors are relevant which are the parties and the subject matter of the litigation. According to the erudite Justice, the court must consider both factors and that in construing the parties; there is no difficulty but that the difficulty may arise in the identification of an agency of the Federal Government in certain matters. On the subject matter, his Lordship was of the view that for the Federal High Court to have exclusive jurisdiction, the matter must be a civil matter arising from the administration, management and control of the Federal Government or any of its agencies. The matter must also arise from any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. See Adebileje v. NEPA (1998) 12 NWLR (Pt. 577) 219; Government of Kwara State v. Gafar (1997) 7 NWLR (Pt. 511) 51 at 63; Military Administrator Kwara State v. Lafiaji (1998) 7 NWLR (Pt. 557) 202 at 213; Onuorah v. KRPC Ltd. (2005) 6 NWLR (Pt. 921) page 393-405; Omotosho v. Abdullahi (2008) 2 NWLR (Pt. 1072) 526 at 546-547; Omosowan v. Chiedozie (1998) 9 NWLR (Pt. 566) 477, 484; FCE Oyo v. Akinyemi (2008) 15 NWLR (Pt. 1109) 21 at 50; Ministry of works & Housing v. Tomas Nigeria Ltd. (2002) 2 NWLR (Pt. 752) 740.

The common denominator that runs through the gamut of all the cases cited above is that it is not enough for an institution or organ to be an agency of the Federal Government but such agency, its functions or activities giving rise to the cause of action, must be connected with the running of the affairs of the Federal Government. Also, by the dictum of Tobi J.S.C. in Edegbero’s case and the recent decisions in Dr. Taiwo Oloruntoba – Oju & 4 Ors. v. Professor Shuaib O. Abdul-Raheem (2009) 6 MJSC (Pt. 1) 1 at 34-35; per Adekeye J.S.C. and Oladipo v. Nigeria Customs Service Board (2009) All FWLR (Pt.498) 319 at 337 – 339 per Nweze, JCA, if there were any doubts created in the minds of the learned counsel to the Respondents as to the purposive construction of paragraph (p) of Section 251(1) of the 1999 Constitution, in view of the cases they have relied upon in their respective submissions, their Lordships have settled same beyond peradventure.

For instance, my Lord Adekeye J.S.C. in his leading judgment aptly and succinctly stated the position of the law thus: “Section 251(1) creates a situation whereupon by party jurisdiction, one of the parties must be a Federal Government Agency and by subject-matter jurisdiction it must be an action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.” On his part, my Lord Nweze, J.C.A, in his lead judgment aforecited had taken the view that “the phrase “executive or administrative action” as employed in section 251(1) (r) must have a direct relationship with the management and administration of the agency concerned. Hence an executive action must be an action concerned with, or relating to the effectuation of the orders or plans or policies of the agency in question. Equally, an administrative action must be an action directed towards carrying out the policy of the agency.
Put simply, therefore, paragraph (r) (supra) simply confers exclusive jurisdiction on the Federal High Court where an action or proceeding is for a declaration or injunction which is likely to affect the validity of an action concerned with, or relating to the effectuation of the order or plan or policies of a Federal agency or the validity of any action directed towards carrying out the policy of such an agency”.

What their Lordships seem to be saying in the above quoted portions of their respective judgments is that the cause of action must relate to the validity of the act or decision of the Federal Government or any of its agencies in the course of the executive or administrative powers conferred on it by the Constitution in order to vest the Federal High Court with exclusive jurisdiction. Therefore, the mere fact that a party to a matter is the Federal Government or any of its agencies without the subject matter relating to a challenge to the validity of any of its executive or administrative action or decision is not enough to confer the Federal High Court with the requisite jurisdiction.

By extrapolation and having settled by the above decided authorities that to vest the lower court with jurisdiction that:-

in respect of paragraph (r), the party/parties who must be a Federal Government agency or agencies must exist simultaneously with the subject matter which must be an action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies;

under paragraph (p), the subject matter must pertain to the administration or the management and control of the Federal Government or any of its agencies and
under paragraph (q), the subject matter must relate to the operation and interpretations of the Constitution as it affects the Federal Government or any of its agencies; can we say with definitive certainty that the claim of the plaintiff/Appellant and reliefs sought in the Statement of Claim, fall within the purview of Section 251(1) (p) considering the averments in the pleadings of the Appellant? The answer to my mind is in the negative in that although, the Respondent is an agency of the Federal Government with the Responsibility of Supplying electricity to the citizenry, the claim has nothing to with the administration or management and control of the Federal Government or any of its agencies. The claim of the Respondent is clearly in the tort of negligence and I agree completely with the learned counsel for the Appellant that NEPA v. Edegbero cited with relish by the learned counsel for the Respondent even though it dealt with management and administration of NEPA in that the issue involved was termination of appointment of its staff; has no bearing with this case not on the ground as canvassed by Mr. Balogun that PHCN is not a creation of statute but a company incorporated under CAMA; but because there is no concomitance or simultaneous coexistence between the party jurisdiction and the subject matter jurisdiction.

I adopt the dictum of Augie, JCA, in Oduntota v. NITEL (supra) that in this case, the negligent acts of the Respondent and/or its agents in failing to prevent the burning of the Appellants workshop (if at all), occurred in the course of their usual day-to-day, nitty-gritty technical duties of connection, disconnection, reconnection, reading of metres, repairs and replacements of obsolete poles and cables and prevention of danger to customers and generality of public, billings and distribution of bills and collection of payments therefore.
The Claim of the Appellant has nothing to do with management or administration and control of the Federal Government or PHCN in this case and I so hold. All the cases cited by the learned counsel for the Appellant particularly Onuorah v. KRPC (2005) ALL FWLR (pt 256) 1356 at 1364 per Akintan, JSC; who at pages 1364 to 1365 para. G-B held as follows:

“In other words, Section 230(1) provides a limitation to the general and all embracing jurisdiction of the High Court because the items listed under the said Section 230(1) can only be determined exclusively by the Federal High Court. All other items not included in the list would therefore still be within the jurisdiction of the State High Court, in the instant case, included in the additional jurisdiction conferred on the Federal High Court, that court therefore had no jurisdiction to entertain the Appellant’s claim. The lower court therefore acted rightly in its decision that the Federal High Court lacked jurisdiction to entertain the claim: See Seven Up Bottling Co. Ltd. v. Abiola & Sons Bottling Co. Ltd. (2001) FWLR (Pt. 70) 1611, (2001) 13 NWLR (Pt. 730) 469; and Trade Bank Plc. V. Benilux (Nig.) Ltd. (2003) FWLR (Pt. 162) 1871, (2003) 9 NWLR (Pt. 825) 416 at 430 & 431; are very instructive and apt in the circumstance of this case.
Also the case of Kayode v. FCDA (2006) ALL FWLR (pt.298) 1200 per Rowland, JCA; at 1226, paras G-H where his Lordship held that:

“The provisions of Section 251(1)(i)(p)(q) and (r), to apply, the suit must involve the administration or management or control of Federal agency. It must be an action for a declaration or injunction challenging the validity of executive decisions or action of the Federal agency. One of the conditions enumerated in Section 251(1) (p) must be present to vest jurisdiction on the Federal High Court. Other than that the Federal High Court cannot and does not have exclusive jurisdiction”; clearly supports the position of learned counsel for the Appellant.

Further more, the cases of NIMR v. Akin Olugbade (2008) 5 NWLR (pt. 1079) 68 at 91-92 and 95, paras C-F especially the dictum of Denton-West, (JCA); the recent case of NNPC V. SLB Consortium Limited (2009) ALL FWLR (pt.452) 1036; where this Honourable Court conducted an x-ray into the two cases of the Apex Court on the Jlurisdiction of the Federal High Court i.e the case of NEPA v. Edegbero (supra) and Felix Onubrah v. KRPC (supra), see pages 1050 – 1053 of the Report, per Ganlinje, JCA and this Honurable Court in an unmistakable terms held that the case of Onuorah v, KRPC (supra) is a clear departure by the Supreme Court from the case of NEPA v. Edegbero (supra); and where the Court cited and relied on the case of Adelekan v. Ecu-line NV (2006) 12 NWLR (pt.993) 33 at 52, paras F-N; are all on the point.

Finally, and on the whole, am also in full agreement with the contention of the learned counsel for the Respondent that the dictum of Onnoghen, JSC; in Adelekan v. Ecu-line NV (2006) 12 NWLR (pt.993) 33 at 52, paras F-N where he held that:

“The provision of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999, herein after called the 1999 Constitution are very clear and unambiguous. It is the section that confers jurisdiction on the Federal High Court which jurisdiction clearly does not include any case of simple contract or damages for negligence as envisaged by the action before the trial court I therefore have no hesitation in agreeing with learned counsel of cross appellant that the trial court had no jurisdiction in the matter as formed before it and ought to have struck same out”; is sufficient and capable of setting aside the decision of the trial court, because it was clearly emphasized by the apex court that the Federal High Court’s jurisdiction as conferred by S.251 of the 1999 Constitution does not include damages for negligence which is the fulcrum of the Appellant’s case before the trial Court.

With the above authority and others ably cited by the learned counsel for the Appellant this appeal ought to have succeeded as it is meritorious.
The learned trial Judge clearly erred in law in striking out the Appellant claim for want of jurisdiction on the lone ground that the Respondent is an agency of the Federal Government and as such, he lacked jurisdiction to entertain same. However, notwithstanding the fact that the Appellant has completely lost the means of his livelihood and has suffered untold hardship and psychological trauma, equity does not aid the indolent. The Appellant slept over his rights and as such was caught by the Public Officers (Protection) Act and accordingly, his suit including this Appeal is statute-barred. Same is hereby struck out.
Parties shall bear their respective costs.

ITA MBABA, J.C.A.:

I agree with the reasoning and conclusion of my Lord I.I. Agube JCA in the lead judgment just delivered, having had the advantage of reading the draft of it. I have nothing to add, except to say that the entire situation is unfortunate, as the indolence of the Appellant has allowed the Respondent to escape responsibility, cashing in on the Public Officers’ (Protection) Act, which, unfortunately, tends to shield the servants of the Respondent in the circumstances.

I abide by the consequential orders in the lead judgment.

OBANDE OGBUINYA, J.C.A.:

I have had the privilege of reading, in draft, the leading judgment delivered by my learned brother, Ignatius Igwe Agube, JCA, and I, totally, fall in with his reasons and conclusions therein. I will chip in a few words to solidify the well-honed judgment.

The appellant’s chastisement or castigation of the respondent’s notice of preliminary objection, filed in this court on the ground that the appellant’s suit was time -barred, stands on quicksand. The reason is not far-fetched.
An issue of jurisdiction, which can be, properly described as the linchpin, fulcrum, nucleus, spinal-cord or oxygen of any adjudication, can be raised anytime and in any manner before any court of law inclusive of the Supreme Court. As matter of fact, an issue of jurisdiction has inched to a point that it can be raised suo motu by a court without the necessity of inviting parties to address the court on it. On this novel status acquired by jurisdiction, I draw on the case of Effiom vs. C.R.S.I.E.C. (2010) 14 NWLR (PT. 1213) 106 at 133 wherein the apex court, Per Tabai JSC, held. “As indicated above this principle that the court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. In some special circumstances, the court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. Tukur vs. Government of Gongola State (1989) 4 NWLR (pt. 117) 517 is instructive on this point. In that case although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction was taken by the court.”

See, also, Amale vs. Sokoto Local Govt (2012) 5 NWLR (Pt.1292) 181.
I entertain no doubt that the above highlights and ex cathedra pronouncement on jurisdiction put to rest the strictures the appellant passed on the respondent’s preliminary objection as being belated. In a word, I am on the same wavelength with my learned brother that the preliminary objection is proper and valid before this court.

Regarding the main preliminary objection, the appellant and the respondents were/are, seriously, at odds as to the need or otherwise of the respondent pleading statute-bar in its statement of defence for the defence to avail it. This has been a nagging issue in the domain of limitation law. My learned brother has tackled it frontally, and correctly too, in the leading judgment. To this end, I will attend to it from a different angle entirely.

It seems clear to me that the appellants contention that the respondent must plead the provision of the Public Officers (Protection) Act in its statement of defence has no place in law. Such pleading, to all intents and purposes, has no judicial utility for both the court and the parties in the determination of any limitation law. The reasons are obvious. The ancient doctrine of statute-bar is an issue of jurisdiction, see Owners of the MV “Arabella” vs. NAIC (2008) 10 NWLR (Pt.1097) 182; Nasir vs. C.S.C. Kano State (2007) 5 NWLR (Pt.1190) 253. In determining an issue of statute-bar, like all other jurisdictional issue, it is the plaintiff’s statement of claim, inter alia, that is a necessary material, see Ikine vs. Edjerode (2001) 18 NWLR (Pt.745) 446, Lado vs. CPC (2012) All FWLR (Pt.607) 598.

A statement of defence is neither here nor there in a court’s spirited bid to ascertain its jurisdiction over a matter. A court of law is eschewed from looking at it in determining its jurisdiction. Thus, in the case of Izenkwe vs. Nnadozie (1953) 14 WACA 361 at 363, Coussey J.A. stated:

“In the first place it is fundamental principle that jurisdiction is determined by the plaintiff’s demand and not by a defendant’s answer which, as in this case, only disputes the existence of the claim, but does not alter or affect its nature. In other words ordinarily it is claim and not the defence which is to be looked at to determine the jurisdiction of court.

See, also Balogun vs. Ode (2004) 1 NWLR (Pt.1023) 1; Inakoju vs. Adeleke (2007) 4 NWLR (Pt. 1025) 427. In the light of the foregoing, want of judicial value, I hold the view that pleading of limitation statute is otiose vis-a-vis the determination of whether or not the appellant’s action is marooned in the intractable web of statute-bar.

For these reasons, in addition to detailed reasons advanced in the leading judgment, I hold the view that the appellant’s action, filed beyond the time frame allowed by the Public Officers (Protection) Act, is statute-barred. On this score, the court is disrobed of the jurisdiction to entertain it. Accordingly, I, too, strike it out for want of jurisdiction. I abide by the orders made in the leading judgment.