Bot v. Jos Electricity Distribution Pls (2021)

1.MR. JERRY CHUNG BOT

(Suing for and on Behalf of and Benefit

of the 2 nd , 3 rd and 4 th Plaintiffs)

2.TSOK MUSA BOT

3.LAWRENCE MUSA BOT

4.DAFOM MUSA BOT

V.

JOS ELECTRICITY DISTRIBUTION PLC

SUPREME COURT OF NIGERIA

SC.255/2010

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Presided)

JOHN INYANG OKORO, J.S.C.

EJEMBI EKO, J.S.C.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Read the Leading Judgment)

ADAMU JAURO, J.S.C.

FRIDAY, 7TH MAY 2021

ACTION – Fatal accident – Action under Fatal Accidents Law -Which court has jurisdiction to entertain – Federal High Courtor State High Court.

ACTION – Fatal accident – Compensation therefor – Nature of –Court with jurisdiction to decide.

APPEAL – Court of Appeal – Where holds that it has no jurisdictionover appeal – Need to pronounce on the merits – Rationaletherefor.

APPEAL – Judgment of appeal court – Leading judgment -Concurring judgment – Relationship between.

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CASELAW-NEPAv.Edegbero(2002)18NWLR(Pt.798)79–Ratiodecidendithereof.

COURT-CourtofAppeal-Whereholdsthatithasnojurisdictionoverappeal-Needtopronounceonmeritsofappeal-Rationaletherefor.

COURT-Dutiesofcourt-Primaryresponsibilityofcourt.

COURT-FederalHighCourt-Exclusivejurisdictionof-Extentandscopeof-Matterswithinitsexclusivejurisdiction-Whetherincludestortofnegligence.

COURT-FederalHighCourt-Exclusivejurisdictionof-Scopeof-Tort,contractandtitletoland-Whetherwithinexclusivejurisdictionthereof.

COURT-FederalHighCourt-Jurisdictionof-Determinationof-Factorscourtconsiders.

COURT–FederalHighCourt-Jurisdictionof-Provisotosection251(1)(p),(q)and(r),ConstitutionoftheFederalRepublicofNigeria,1999-WhetheroustsjurisdictionofStateHighCourt.

COURT-Judgmentofappealcourt-Leadingjudgment-Concurringjudgment-Relationshipbetween.

COURT-Jurisdictionofcourt–ActionunderFatalAccidentsLaw-Whichcourthasjurisdictiontoentertain-FederalHighCourtorStateHighCourt

COURT-Jurisdictionofcourt-Determinationof-Materialsandfactorscourtwillconsider.

COURT-Jurisdictionofcourt-Fundamentalnatureof-Ingredientsof-Defecttherein-Effectonproceedings.

COURT-Jurisdictionofcourt-Issueof-Fundamentalnatureof.

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COURT – Jurisdiction of court – Matter involving agency of theFederal Government – Court with jurisdiction to entertain -Determination of – Factors court will consider.

COURT – Jurisdiction of court – Source of.

COURT – State High Court – Unlimited jurisdiction of – Nature of -Jurisdiction of over matters relating to fatal accidents.

COURT – State High Court – Unlimited jurisdiction thereof – Howcan be limited.

INTERPRETATION OF STATUTES – Constitution of the FederalRepublic of Nigeria, 1999, as amended – Proviso to Section251(1) (p), and thereof – Whether ousts jurisdiction ofState High Court.

JUDGMENT AND ORDER – Judgment of appeal court – Leadingjudgment – Concurring judgment – Relationship between.

.

JURISDICTION – Fatal accident – Action for compensation therefor- Where involves Federal Government Agency – Whether withinexclusive jurisdiction of Federal High Court.

JURISDICTION – Federal High Court – Exclusive jurisdiction of- Scope of – Tort, contract and title to land – Whether withinexclusive jurisdiction thereof.

JURISDICTION – Federal High Court – Jurisdiction of -Determination of – Factors court considers.

JURISDICTION – Federal High Court – Jurisdiction of – Provisoto section 251(1) (p), and (r), Constitution of the FederalRepublic of Nigeria, 1999 – Whether ousts jurisdiction of StateHigh Court.

JURISDICTION – Jurisdiction of court – Determination of -Materials and factors court will consider.

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JURISDICTION – Jurisdiction of court – Issue of – Fundamentalnature of.

JURISDICTION – Jurisdiction of court – Matter involving agency ofthe Federal Government – Court with jurisdiction to entertain- Determination of – Factors court will consider.

JURISDICTION – Jurisdiction of court – Proceedings conductedwithout jurisdiction – Effect and treatment of.

JURISDICTION – Jurisdiction of court – Source of.

JURISDICTION – Jurisdiction of court – State High Court -Unlimited jurisdiction of – Nature of -Jurisdiction of overmatters relating to fatal accidents

JURISDICTION – Jurisdiction of court – State High Court -Unlimited jurisdiction thereof – How can be limited.

JURISDICTION – State High Court – Unlimited jurisdictionof – Nature of -Jurisdiction of over matters relating to fatalaccidents.

JURISDICTION – State High Court – Unlimited jurisdiction thereof- How can be limited.

NEGLIGENCE – Fatal accident – Action under Fatal AccidentsLaw – Which court has jurisdiction to entertain – Federal HighCourt or State High Court.

NEGLIGENCE – Fatal accident – Compensation therefor – Actionin the tort of negligence – Whether subject matter of FatalAccidents Law.

PRACTICE AND PROCEDURE – Appeal – Court of Appeal -Where holds that it has no jurisdiction over an appeal – Needto proceed to give judgment on the merits – Rationale therefor.

PRACTICE AND PROCEDURE – Duties of court – Primaryresponsibility of court.

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PRACTICE AND PROCEDURE – Federal High Court – Exclusivejurisdiction of – Extent and scope of – Matters within itsexclusive jurisdiction – Whether includes tort of negligence.

PRACTICE AND PROCEDURE – Federal High Court – Exclusivejurisdiction of – Scope of – Tort, contract and title to land -Whether within exclusive jurisdiction thereof.

PRACTICE AND PROCEDURE – Federal High Court – Jurisdictionof – Determination of – Factors court considers.

PRACTICE AND PROCEDURE – Federal High Court – Jurisdictionof – Proviso to section 251(1) (p), and (r), Constitutionof the Federal Republic of Nigeria, 1999 – Whether oustsjurisdiction of State High Court.

PRACTICE AND PROCEDURE – Judgment of appeal court -Leading judgment – Concurring judgment – Relationshipbetween.

PRACTICE AND PROCEDURE – Jurisdiction of court – Actionunder Fatal Accidents Law – Which court has jurisdiction toentertain – Federal High Court or State High Court.

PRACTICE AND PROCEDURE – Jurisdiction of court -Determination of – Materials and factors court will consider.

PRACTICE AND PROCEDURE – Jurisdiction of court -Fundamental n ature of – Ingredients of – Defect therein – Effecton proceedings.

PRACTICE AND PRO CEDURE – Jurisdiction of court – Issue of -Fundamental nature of.

PRACTICE AND PROCEDURE – Jurisdiction of court – Matterinvolving agency of the Federal Government – Court withjurisdiction to entertain – Determination of – Factors courtwill consider.

PRACTICE AND PROCEDURE – Jurisdiction of court – Source of.

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PRACTICE AND PROCEDURE – Jurisdiction of court – State HighCourt – Unlimited jurisdiction of – Nature of – Jurisdiction ofover matters relating to fatal accidents.

PRACTICE AND PROCEDURE – Jurisdiction of court – State HighCourt – Unlimited jurisdiction thereof – How can be limited.

PRACTICE AND PROCEDURE – State High Court – Unlimitedjurisdiction of – Nature of -Jurisdiction of over matters relatingto fatal accidents.

PRACTICE AND PROCEDURE – State High Court – Unlimitedjurisdiction thereof – How can be limited.

PRINCIPLES OF INTERPRETATION – Interpretation of statutes -Clear and unambiguous words in a statute – How construed.

PRINCIPLES OF INTERPRETATION – Statutory provision -Interpretation of – Duty of court in respect of – Principlesguiding.

STATUTE – Clear and unambiguous words used in a statute – Howconstrued.

STATUTE – Constitution of the Federal Republic of Nigeria, 1999,as amended – Proviso to Section 251(1) (p), and thereof- Whether ousts jurisdiction of State High Court.

TORT – Fatal accident – Action under Fatal Accidents Law – Whichcourt has jurisdiction to entertain – Fe deral High Court orState High Court.

TORT – Fatal accident – Action for compensation therefor – Whereinvolves Federal Government Agency – Whether withinexclusive jurisdiction of Federal High Court.

TORT – Fatal accident – Compensation therefor – Action in the tortof negligence – Whether subject matter of Fatal Accidents Law.

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Issue:

Whether the Court of Appeal was right when it heldthat the High Court of Plateau State lacked jurisdictionto adjudicate on the appellants’ claim under the FatalAccidents Law, Cap. 43, Laws of Northern Nigeria, 1963on the premise that the National Electric Power Authority(NEPA), now Jos Electricity Distribution Plc is a FederalGovernment Agency, having regard to section 230(q), 230(1)(r) and 230(1)(s) of the Constitution of theFederal Republic of Nigeria, 1979, as amended, whichis the same as section 251(1)(p), 251(1)(q) and 251(1)(r)of the Constitution of the Federal Republic of Nigeria,1999, as amended.

Facts:

The respondent, the successor to National Electric PowerAuthority (NEPA), is an electricity supply and distribution company.On 24th October 1992, Mr. Musa Bot, the father of the 2nd, 3rd and4th appellants, had a cause to report an incident of electric powerfailure to the respondent’s services centre at Nasarawa/Gwong, Jos.The report was acknowledged, and duly recorded as No. 155405.Two officers of the respondent – Messrs Hammidu Mohammedand Sunday Tsok – were detailed to visit the locus and rectify theelectric fault. The two officers visited the spot and worked on theelectric pole supplying power to the residence of Mr. Musa Bot andhis family.

Soon after the departure of the officers, Mrs. Esther Musa-Bot, the wife of Mr. Musa Bot (the 2nd, 3rd and 4th appellants’mother) went to spread her laundered clothes on a wire line fordrying. Unfortunately, she had an electric shock and was instantlyelectrocuted. Her husband, Musa Bot, who rushed to rescue his wife,was equally electrocuted on the spot. Curiously, it was discoveredthat there was a naked electric wire from the electric pole restingon the roof of the deceased couple’s house, and one end of the wireused for spreading the clothes was tied to a nail that held the roofingzinc in place. The naked (un-cellotaped) wire touching the zinc wasextended from the same electric pole on which the respondent’sofficers had worked earlier on.

Upon a report of the incident, the respondent’s officers cameand disconnected the offending naked wire from the electric pole.

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The deceased couple died intestate, leaving behind the 2nd, 3rd and4th appellants, all of whom were minors as at 24th October 1992,when the cruel fate befell the family.

When every concerted effort to get the respondent tocompensate the bereaved family failed, the appellants whowere the dependant relatives of the deceased, Mrs. Musa Bot,instituted an action under the Plateau State Fatal Accidents Lawclaiming damages for negligence against NEPA (succeeded bythe respondent) in consequence of the latter’s alleged negligenceresulting in the death of Mrs. Musa-Bot.

The suit proceeded to trial and on conclusion the High Courtfound the respondent liable for the death of Mrs. Musa-Bot and, byway of compensation for negligence under the Fatal Accidents Law,awarded the sum of N230,000.00 as special and general damagesin favour of the appellants against the respondent. The trial courthowever dismissed the claim against the respondent for the deathof late Musa Bot.

The respondent was dissastified by the judgment and it appealedto the Court of Appeal. At the hearing of the appeal, the Court ofAppeal suo motu raised the issue of the constitutionality of sections12(2) and 27(1) of NEPA Act, Cap. 256, Laws of the Federationof Nigeria, 1990, and invited counsel to the parties to address thecourt on the issue. Thereafter, in its judgment, the Court of Appealheld that the High Court lacked jurisdiction to hear and determinethe appellants’ action and struck it out. The appellants were nothappy with the judgment of the Court of Appeal and they appealedto the Supreme Court.

Held (Unanimously allowing the appeal):

1.On Source of jurisdiction of court –

Jurisdiction of court does not exist in vacuum asall courts of law derive their jurisdictions fromeither the Constitution or an Act of the NationalAssembly. Therefore, no court can assumejurisdiction without having been constitutionallyor statutorily empowered to do so. [Boko v. Nungwa(2019) 1 NWLR (Pt. 1654) 395; Adetayo v. Ademola(2010) 15 NWLR (Pt. 1215) 169; Lekwot v. JudicialTribunal (1997) 8 NWLR (Pt. 515) 22 referred to. ](Pp. 85-86, paras. H-A)

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2.On Fundamental nature and ingredients of jurisdiction –

The issue of jurisdiction is a fundamental thresholdissue and thus indispensable in the administrationof justice. A court of law is only competent toadjudicate upon an action or appeal before itwhere:

it is properly constituted in regard to both(a)quorum and qualifications of its members;

the subject matter (res) is within the ambitof its jurisdictional competence, and thereis no disqualifying feature inherent in the(b)case; and

the action (or appeal as the case may be) isinitiated by due process of law, and uponfulfillment of any condition precedent to the(c)exercise of jurisdiction.

[Madukolu v. Nkemdilim (1962) 2 SCNLR 341; A.-G.,Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111)552; Sken Consult v. Ukey (1981) 1 SC 6 referred to.](P. 77, paras. E-G)

3.On Fundamental nature of issue of jurisdictionand treatment of proceedings conducted withoutjurisdiction –

The question of whether or not a court of law ortribunal is imbued with jurisdiction to entertainand determine a matter or appeal before it isnot merely important but fundamental to theadjudication process. It is a threshold issue thatcannot be compromised or sacrificed at the altarof caprice. This is so because any proceeding ortrial conducted by a court devoid of jurisdictiontantamounts to a nullity, ab initio. It is futile to setdown issues, deliberate on the evidence led, andresolve points of law raised if the court seized of thematter is devoid of jurisdiction. The substratumof a court is no doubt jurisdiction. Without it bothlitigants and counsel on the one hand and the Judgeon the other hand labour in vain. In the instantcase, the Court of Appeal deemed it expedient in its

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wisdom to suo motu raise the i ssue of jurisdiction.And consequent upon the addresses of both learnedcounsel, it proceeded to strike out the appeal on thebasis of absence of jurisdiction. (Pp. 77-78, paras.H-D)

4.On Fundamental nature of issue of jurisdictionand treatment of proceedings conducted withoutjurisdiction –

Jurisdiction is a threshold issue which is mostfundamental to the adjudicatory powers of thecourt. Where the court lacks jurisdiction to entertaina cause or matter, the entire proceedings are anullity, no matter how well conducted. [Madukoluv. Nkemdilim (1962) 2 SCNLR 341; Afribank v. BonikInd. Ltd. (2006) 5 NWLR (Pt. 973) 300; Oloriodev. Oyebi (1984) 1 SCNLR 390 referred to.] (P. 84,paras. A-B)

.

5.On Processes court considers in determining issue ofjurisdiction –

In determining the court’s jurisdiction to entertaina cause or matter, it is only the writ of summons andthe statement of claim that would be considered.[Adeyemi v. Opeyori (1976) 9 – 10 SC 31; Onuorahv. K.R.P.C. Co. Ltd. (2005) 6 NWLR (Pt. 921) 393;Oloruntoba-Oju v. Abdulkareem (2009) 13 NWLR(Pt. 1157) 83 referred to.] (P. 84, para. C)

6.On Factors court considers in determining jurisdictionof Federal High Court –

The jurisdiction of the Federal High Court iscircumscribed by the provision of section 251(1)(p),(q), and of the Constitution of the FederalRepublic of Nigeria, 1999, as amended, (which is inpari materia with the provision of section 230 (q),and of the Constitution of the Federal Republicof Nigeria, 1979, as amended.) In construing theprovision, there are important matters to be takeninto account. These are the parties in the matterand the subject matter (res) of the litigation itself.

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The court must consider both. [N.E.P.A. v. Edegbero(2002) 18 NWLR (Pt. 798) 79 referred to.] (P. 86,paras. F-G)

7.On Matters within exclusive jurisdiction of FederalHigh Court –

.For the Federal High Court to have exclusivejurisdiction over a matter, the matter –

must be a civil matter arising from theadministration, management and controlof the Federal Government or any of itsagencies;

must arise from the operation andinterpretation of the Constitution; and

must arise from any action or proceedingsfor a declaration or injunction affecting thevalidity of any executive or administrativedecision by the Federal Government orany of its agencies.

[N.E.P.A. v. Edegbero (2002) 18 NWLR (Pt. 798) 79referred to.] (P. 81, paras. B-D)

8.On Matters within exclusive jurisdiction of FederalHigh Court –

Matters within the exclusive jurisdiction of theFederal High Court are clearly spelt out in section251(1) of the Constitution of the Federal Republicof Nigeria, 1999 (as amended). Section 251(1)(r)grants the Federal High Court exclusive jurisdictionover matters affecting the validity of any executiveor administrative action or decision by the FederalGovernment or any of its agencies, which provisioncovers the respondent herein. (P. 86, paras. B-C)

9.On Scope of exclusive jurisdiction of Federal HighCourt –

.The exclusive jurisdiction vested in the Federal HighCourt by section 230(1)(q), and of D ecree No.107 and section 7(1) of the Federal High Court Actis only in respect of matters listed therein. Section230(1)(q), and specifically provid ed that the

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exclusive jurisdiction vested in the Federal HighCourt is only “in respect of the matters specified” inthe said section 230(1). Tort, or the tort of negligence,was not so listed. The subject matter of the instantsuit was negligence allegedly committed by NEPA,a Federal Government Agency. Thus, the decisionof the Supreme Court in N.E.P.A. v. Edegbero (2002)18 NWLR (Pt. 798) 79 was misapplied. (P. 88, paras.F-G)

10.On Whether Federal High Court has jurisdiction overmatters relating to tort, contract and title to land –

Since tort, like contract and title to land, are notmatters listed in section 230(1) of Decree No. 107(section 251(1) of the 1999 Constitution) over whichthe Federal High Court is vested with exclusivejurisdiction, it was rather presumptive of and ultravires the Court of Appeal to extend the jurisdictionof the Federal High Court to the matter of tort, intotal denial of the jurisdiction of the Plateau StateHigh Court over the same. [Ademola v. Adetayo(2005) All FWLR (Pt. 259) 1961 referred to.] (P. 89,paras. E-G)

11.On Whether claim for compensation for fatal accidentwithin exclusive jurisdiction of Federal High Court –

An action in negligence is rooted firmly in tort.Compensation for a fatal accident, which is anaction in the tort of negligence, is the subject matterof the Fatal Accidents Law of Plateau State. It doesnot fall within the scope of the exclusive jurisdictionof the Federal High Court as vested in it by section7(1) of the Federal High Court Act or section 251(1)of the 1999 Constitution (section 230(1) of the 1979Constitution as amended by Decree No. 107). (Pp.87-88, paras. H-A)

12.On Factors to consider in determining court withjurisdiction where agency of Federal Government is aparty –

In determining whether a court has jurisdiction

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where an agency of the Federal Government is aparty, regard would be had not only to the partiesto the action but also to the subject matter of thedispute. The parties in the litigation as well as thesubject matter of the litigation must fall withinsection 251(1) of the Constitution of the FederalRepublic of Nigeria, 1999, as amended. [Ohakimv. Agbaso (2010) 19 NWLR (Pt.1226) 172; Ucha v.Onwe (2011) 4 NWLR (Pt. 1237) 386; A.-G., LagosState v. Eko Hotels Ltd. (2018) 7 NWLR (Pt. 1619)518; N.E.P.A. v. Edegbero (2002) 18 NWLR (Pt. 798)79 referred to.] (P. 84, paras. D-E)

13.On What the Supreme Court decided in NEPA v.Edegbero (2002) 18 NWLR (Pt. 798) 79 –

The decision of the Supreme Court in NEPA v.Edegbero (2002) 18 NWLR (Pt. 798) 79 is not anauthority for the proposition that once a party in asuit is a Federal Government Agency, even when thesubject matter is not one of the matters specificallymentioned or listed in section 230(1) of Decree No.107 in respect of which the Federal High Court hasbeen vested with exclusive jurisdiction, the StateHigh Court lacks jurisdiction to entertain it. Thecorrect test or factor is not whether the party orthe status of the party is a Federal GovernmentAgency, but whether the subject matter of thesuit falls within the crucible of matters exclusivelyreserved to, or for, the Federal High Court toexercise its statutory jurisdiction over. The subjectmatter of the suit must be one of those matters listedor specified in section 230(1) of Decree No.107 (inpari materia with 7(1) of the Federal High CourtAct and section 251(1) of the 1999 Constitution).[Onuorah v. K.R.P.C. Ltd. (2005) 6 NWLR (Pt. 921)393; Adelekan v. Ecu-Line NV (2006) 12 NWLR (Pt.993) 33; Oloruntoba-Oju v. Abdulraheem (2009) 13NWLR (Pt. 1157) 83; Adetayo v. Ademola (2010)15 NWLR (Pt. 1215) 169 referred to.] (Pp. 88-89,paras. G-C)

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14.On Whether proviso to section 251(1) (p), andof 1999 Constitution ousts jurisdiction of State HighCourt –

The proviso to sub-sections (p), and ofsection 251(1) of the Constitution of the FederalRepublic of Nigeria, 1999, as amended, does notoust the general jurisdiction of the State High Courtprovided in section 272 of the Constitution ofthe Federal Republic of Nigeria, 1999, as amended(section 230(1) of the 1979 Constitution as amendedby Decree No. 107) (P. 85, para. E)

15.On How unlimited jurisdiction of State High Court canbe limited –

Only the Constitution, and no other statute, canfurther limit the unlimited jurisdiction of the StateHigh Court vested in it by section 272 of the 1999Constitution, as amended. [Ademola v. Adetayo(2005) All FWLR (Pt. 259) 1961 referred to.] (P. 89,para. D)

16.On Court with jurisdiction over action under FatalAccidents Law –

A critical scrutiny of section 230(1) of theConstitution of the Federal Republic of Nigeria,1979 (section 251(1) of the 1999 Constitution, asamended) would clearly reveal that the FederalHigh Court is not vested with jurisdiction withregard to actions brought under the Fatal AccidentsLaw, Cap. 43, Laws of Northern Nigeria, 1963,applicable to Plateau State. Rather, it is the StateHigh Court that is vested with the jurisdictionalcompetence to so entertain and determine suchactions or matters by virtue of section 9 of the FatalAccidents Law, Cap. 43, Laws of Northern Nigeria,1963, applicable to Plateau State. (P. 82, paras. C-E)

17.On Court with jurisdiction over action under FatalAccidents Law –

.By virtue of section 9 of the Fatal Accidents

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Law, Cap. 43, Laws of Northern Nigeria, 1963,applicable in Plateau State, actions or proceedingsarising under the provisions of the Law should becommenced in the High Court or District Court.Thus, section 230(1) of the 1979 Constitution whichwas subsequently re-enacted as section 251(1) ofthe 1999 Constitution, as amended, did not conferexclusive jurisdiction on the Federal High Court inrespect of matters relating to the Fatal AccidentsLaw. Contrary to the finding of the High Court andthe Court of Appeal, the claim before the trial courtwas for neither declaratory nor injunctive reliefs.(P. 85, paras. B-D)

18.On Court with jurisdiction over matters relating tofatal accidents –

The Fatal Accident Law, Cap. 43, Laws of NorthernNigeria, 1963 grants jurisdiction specifically to theHigh Courts of the States on matters relating to fatalaccidents. It is not in dispute that the respondent isan agency of the Federal Government. However, inview of the facts and circumstances of the instantcase, the action bordering on negligence whichoccasioned fatal consequences was actionable in theState High Court. Thus, the High Court of PlateauState had jurisdiction to entertain the instantmatter. (P. 86, paras. C-E)

19.On Primary responsibility of court –

The primary responsibility of the court is toadminister justice to the parties before it withfairness and devoid of fear or favour, affection orill-will. (P. 82, para. E)

20.On Construction of clear and unambiguous words in astatute –

It is the onerous duty of the court to interpretthe words used by the legislature in a statute (theConstitution inclusive). And, where the provisionof the Constitution (or a statute) is clear and

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unambiguous, the court is devoid of discretionarypower to read therein an implied term. This isabsolutely so because by the clear and unambiguousprovision, an implied term is impliedly forbiddento be part of the Constitution. This is more so asa Constitution is not a transient agreement like acontract where implied terms could be read intoit in the interest of the commercial transactions ofthe parties. Thus, where a constitutional provisionis clear and unambiguous and the courts read into them so-called implied terms the courts wouldbe going outside their interpretative jurisdictionand will be branded as making the law in a badway. [Olafisoye v. F.R.N. (2004) 4 NWLR (Pt. 864)580; Egbue v. Araka (1996) 2 NWLR (Pt. 433) 688;I.B.W.A. v. Imano (Nig.) Ltd. (1988) 3 NWLR (Pt. 85)633 referred to.] (Pp. 82-83, paras. F-A)

21.On Principles guiding interpretation of statutes andduty on court in respect thereof –

The duty of the court is to interpret the words thatthe legislature has used in a statute. Those wordsmay be ambiguous, but even if they are, the powerand duty of the court to travel outside them on avoyage of discovery is strictly limited. For anyattempt by the court to fill any gap in a statute isa naked usurpation of the legislative function andis the less justifiable when it is guess work withrespect to what material the legislature would, ifit had discovered the gap, have filled it. If a gapis disclosed, the remedy lies in an amending Act.[Nyame v. F.R.N. (2009) LPELR – CA/A/96C/08referred to.] (P. 83, paras. B-D)

22.On Relationship between leading judgment andconcurring judgment –

A concurring judgment forms part of the leadingjudgment and it is meant to complement it by wayof addition or improvement on the issues resolvedin the leading judgment. It is the concurring

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judgment and the leading judgment alike thatcrystallize into the entirety of the decision of acourt seised of a matter or an appeal. [Oloruntoba-Oju v. Abdulraheem (2009) 13 NWLR (Pt. 1157) 83referred to.] (P. 81, paras. G-H)

23.On Need for Court of Appeal to pronounce on meritsof case where it finds it had no jurisdiction over appealand rationale therefor –

Where the Court of Appeal holds that it lacksrequisite jurisdiction to entertain an appeal, itshould consider the merits of the suit, it beingan intermediate court. This is because until theintermediate court pronounces on the merits of thecase, even after denying jurisdiction, the SupremeCourt will lack jurisdiction to comment on it orreview its decision on it. In the instant case, relyingon NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) 79and section 230(1)(q), and of Decree No. 107,the Court of Appeal held that because NEPA wasa Federal Government Agency, the High Courtof Plateau State lacked requisite jurisdiction toentertain the suit. It then struck out the suit anddeclined to consider the merits of the suit, as itshould have done in the alternative, it being anintermediate court. [Angadi v. P.D.P. (2018) 15NWLR (Pt. 1641) 1 referred to.] (P. 88, paras. B-D)

Nigerian Cases Referred to in the Judgment:

A.-G., Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552

A.-G., Lagos State v. Eko Hotels Ltd. (2018) 7 NWLR (Pt.1619) 518

Adebilije v. NEPA (1998) 12 NWLR (Pt. 577) 219

Adelekan v. Ecu-Line NV (2006) 12 NWLR (Pt. 993) 33

Ademola v. Adetayo (2005) All FWLR (Pt. 259) 1961

Adetayo v. Ademola (2010) 15 NWLR (Pt. 1215) 169

Adeyemi v. Opeyori (1976) 9 – 10 SC 31

Afribank v. Bonik Ind. Ltd. (2006) 5 NWLR (Pt. 973) 300

Angadi v. P.D.P. (2018) 15 NWLR (Pt. 1641) 1

Boko v. Nungwa (2019) 1 NWLR (Pt. 1654) 395

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Egbue v. Araka (1996) 2 NWLR (Pt. 433) 688

I.B.W.A. v. Imano (Nig.) Ltd. (1988) 3 NWLR (Pt. 85) 633

Lekwot v. Judicial Tribunal (1997) 8 NWLR (Pt. 515) 22

Madukolu v. Nkemdilim (1962) 2 SCNLR 341

N.E.P.A. v. Edegbero (2002) 18 NWLR (Pt. 798) 79

Nyame v. F.R.N. (2009) LPELR – CA/A/96c/08

Ohakim v. Agbaso (2010) 19 NWLR (Pt.1226) 172

Olafisoye v. F.R.N. (2004) 4 NWLR (Pt. 864) 580

Oloriode v. Oyebi (1984) 1 SCNLR 390

Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt.1157) 83

Onuorah v. K.R.P.C. Co. Ltd. (2005) 6 NWLR (Pt. 921) 393

Sken Consult v. Ukey (1981) 1 SC 6

Ucha v. Onwe (2011) 4 NWLR (Pt. 1237) 386

Nigerian Statutes Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria, 1979, S.230(1)(r)(s)(q)

Constitution of the Federal Republic of Nigeria, 1999 (asamended), Ss. 251(1) (1)(p) and and 272

Fatal Accident Law, Cap. 43, Laws of Northern Nigeria, 1963,applicable to Plateau State, S. 9

NEPA Act, Cap. 256, Laws of the Federation of Nigeria, 1990,Ss. 12(2) and 27(1)

Decree No. 107, S. 230(1)

Appeal:

This was an appeal against the judgment of Court of Appealwhich allowed the respondent’s appeal and struck out the appellants’suit on the ground that the High Court lacked jurisdiction to entertainand determine same. The Supreme Court, in a unanimous decision,allowed the appeal.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal: KudiratMotonmori Olatokunbo Kekere-Ekun, J.S.C. (Presided);John Inyang Okoro, J.S.C.; Ejembi Eko, J.S.C.; IbrahimMohammed Musa Saulawa, J.S.C. (Read the LeadingJudgment); Adamu Jauro, J.S.C.

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A ppeal No.: SC.255/2010

Date of Judgment: Friday, 7th May 2021

Names of Counsel: Zakari A. Sogfa, Esq. – for theAppellants

Adedayo Adedeji, Esq – for the Respondent

Court of Appeal:

Division of the Court of Appeal from which the appealwas brought: Court of Appeal, Jos

Names of Justices that sat on the appeal: Kumai BayangAkaahs, J.C.A. (Presided); Ahmad Olanrewaju Belgore,J.C.A. (Read the Leading Judgment); Uzo I. Ndukwe-Anyanwu, J.C.A.

Appeal No.: CA/J/94/2003

Date of Judgment: Wednesday, 18th April 2007

Names of Counsel: Charles Obishai, Esq – for theAppellant

A.A. Ibrahim – for the Respondents

High Court:

Name of the High Court: High Court of Plateau State, Jos

Name of the Judge: Dakyen, J.

Suit No.: PLD/J637/95

Date of Judgment: Tuesday, 31st July 2001

Counsel:

Zakari A. Sogfa, Esq. – for the Appellants

Adedayo Adedeji, Esq – for the Respondent

SAULAWA, J.S.C. (Delivering the Leading Judgment): Theinstant appeal is a direct fall-out of the judgment of the Court ofAppeal, Jos Judicial Division, delivered on April 18, 2007 in appealNo. CA/J/94/2003. By the judgment in question, the court below,allowed the respondent’s appeal and struck out the appellant’s suit(No. PLD/1/63/1995) on the ground that the trial High Court lackedjurisdiction to entertain and determine same.

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Background Facts

The genesis of the instant case could be traced, to October24, 1992 virtually 29 years ago. On the date in question, Mr. MusaBot, the father of the 2nd, 3rd and 4th appellants herein, had a causeto report electric power failure to the respondent’s services centreat, Nasarawa/Gwong, Jos. The report was acknowledged, and dulyrecorded as No. 155405.

Whereupon, two staff members of the respondent – MessrsHammidu Mohammed and Sunday Tsok, were detailed to visit thelocus and rectify the electric fault. The two staffers visited the spotand worked on the electric pole supplying power to the residence ofMr. Musa Bot and his family.

However, soon after the departure of the duo staffers, thewife of Mr. Musa Bot (2nd, 3rd and 4th appellants’ mother) went tospread her laundered clothes on a wire line with a view to dryingsame. Unfortunately, she had electric shock and was instantlyelectrocuted. Her husband Musa Bot, who rushed to rescue hisdear wife, was equally electrocuted on the spot. Curiously, it wasdiscovered that there was a naked electric wire from the electricpole resting on the roofing of the deceased couple’s house. Andone end of the wire used for spreading the clothes was tied to a nailthat held the roofing zinc in place. The naked (uncellotaped) wiretouching the zinc was extended from the same electric pole, uponwhich the respondent’s staffers had worked earlier on.

Upon the incident being reported thereto, the respondent’sstaffers came and disconnected the offending naked wire from theelectric pole. The deceased couple died intestate, leaving behind the2nd, 3rd and 4th appellants, all of whom were minors as at 24/10/1992,when the cruel fate befell the family.

When every concerted effort to get the respondent compensatethe bereaved family failed, the 1st appellant deemed it compellinglyexpedient to institute the instant suit at the trial State High Courtvide a writ of summons.

By the 23 paragraphed statement thereof dated 29/09/1995,filed along with the writ, the appellants claimed against therespondent the following reliefs:

The plaintiffs claim a total of N60,000.00 (SixtyThousand Naira) for funeral expenses.

And the plaintiffs as persons entitle to claim underthe Fatal Accident Law and other enabling laws as

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beneficiaries as deceased tender children aforesaid callin against the defendants N6,000,000.00 (Six MillionNaira) and as damages under the Fatal AccidentLaws for their benefit as the deceased children tobe apportioned amongst them in such shares andassessment as to the said damages, and the awardof N6,000,000.00 (Six Million Naira) together withcost, a total of N6,060,000.00 (Six Million and SixtyThousand Naira only).

The suit proceeded to trial, upon the exchange of pleadings bythe respective parties. At the close of the said trial, the trial HighCourt delivered the vexed judgment, to the conclusive effect:

In the whole I assess general damages in the sumof N2 million only which is to be divided into threeamongst the children being her direct beneficiariesand defendants so as to allow them equal educationalopportunity in life. The allocation is as follows:

Tsok Musa Bot – N666,666.66

Lawrence Musa Bot – N666,666.66

Dafom Musa Bot – N666,666.66

On the whole I therefore, hold that the defendant isliable and a total award of N230,000.00 as special andgeneral damages is awarded in favour of the plaintiffsagainst the defendant for the death of late father MusaBot.

Secondly, I dismiss the entire claim against thedefendant for the death of late Musa Bot.

The respondent was utterly distraught by the vexed judgment,thus, appealed to the court below. And on the 18/04/2007 inquestion, the court below delivered the vexed judgment to thefollowing conclusive effect:

I hold that the Plateau State High Court lackedjurisdiction to hear and determine this action in suitNo. PLD/J/637/95.

Only the Federal High Court has the exclusivejurisdiction on the matter. This is so because althoughthe cause of action arose on the 24th day of March,1992, the action was not commenced until 1995 aftercoming into force, the Decree No. 107 of 1993.

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In the light of the foregoing, there will be no needto proceed to the consideration of the issues in thisappeal.

The appeal succeeds and the proceedings before thePlateau State High Court as stated herein to fore beinga nullity are hereby struck out.

I award no cost in this case.

Not unnaturally, the appellants have deemed it expedient toappeal to this court, thereby praying for the following reliefs.

4.Relief sought from the Supreme Court of Nigeria:

The decision of the Court of Appeal strikingout the appeal in that the proceeding was anullity at the trial High Court in that it had nojurisdiction to entertain the matter under FatalAccidents Law by virtue of sections 230(1) ofDecree 107 1993, (now section 251 of 1999Constitution) be set aside, and the matter beremitted for hearing and determination before(i)the Court of Appeal on its merit.

(And or)

Any other appropriate order or determinationbe made in the circumstances.

On February 15, when the appeal came up for hearing, thelearned counsel were accorded every opportunity to address thecourt and adopt their articulated argument in the respective briefsthereof, thus resulting in reserving judgment to today.

Most particularly, the appellants’ amended brief of argument,settled by Zakari A. Sogfa Esq, was deemed properly filed andserved on 04/03/2020. That brief though unpaginated, actuallyspans a total of 9 pages. At page 4 thereof, a sole issue has beencouched for determination:

Whether the Court of Appeal was right when itheld that the Plateau State High Court lacked thejurisdiction to adjudicate on a claim under the FatalAccident Law, Cap. 43, Laws of Northern Nigeria,1963, on the premise that the National Electric PowerAuthority (NEPA), now Jos Electricity DistributionPlc is a Federal Government Agency, having regardto section 230(q)(r) and of the 1999 Constitution

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of the Federal Republic of Nigeria, as amended, whichis the same as section 251(1)(p)(q) and of the 1999Constitution of the Federal Republic of Nigeria.

In a nutshell, the submission of the appellants’ counsel is tothe effect, that by virtue of section 251(1) of the Constitution of theFederal Republic of Nigeria, 1999 (as amended) (in pari materiawith section 230(1) of the defunct 1979 Constitution), the FederalHigh Court was not conferred with jurisdiction to entertain actionsbrought under the Fatal Accident Law (Cap. 43) Laws of NorthernNigeria, 1963, applicable to Plateau State. See N.E.P.A. v. Edegbero(2003) FWLR (Pt. 139) 1556 per Niki Tobi, JSC @ 1573 paragraphsE – H; and Per Uwais, CJN @ 1571; (2002) 18 NWLR (Pt. 798) 79.

It was argued, most vehemently, that though the judgmentsof Uwais, CJN and Niki Tobi, JSC were contributory (concurring)judgments, same form part of the lead judgment (Ogundare,JSC). According to the learned counsel, it is the concurring andlead judgments that crystallize into the judgment of the court. SeeOloruntoba-Oju v. Abdul-Raheem (2009) 6 MJSC (Pt.1) @ 56paragraphs E-F; (2009) 13 NWLR (Pt. 1157) 83.

It was postulated, that the appellants’ claim did not seek anydeclaratory or injunctive relief. Thus, it does not come within thepurview of items engaged by section 230(1) of the defunct 1979Constitution (supra). And that by section 9 of the Fatal AccidentLaw (Cap. 43), Laws of Northern Nigeria, 1963, applicable toPlateau State, actions or proceedings arising under the law, shall becommenced in the High Court or District Court.

Conclusively, the court is urged to allow the appeal, set asidethe judgment of the court below, and hold that the trial High Courthad jurisdiction to entertain the appellants’ claims.

Contrariwise, the respondent’s brief, settled by AdedayoAdedeji, Esq on 12/02/2020 spans a total of 9 pages. At page, 4 ofthe said brief, a sole issue has been raised.

Whether the court of appeal was right when it heldthat the Plateau State High Court has no jurisdictionto entertain this suit having regard to section 230(1)- and of the 1999 Constitution of the FederalRepublic of Nigeria which is in pari materia withsection 251(1)(p) and of the 1999 Constitution(q)of the Federal Republic of Nigeria.

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It is submitted, in the main, that a sole reading of sections251(1)(p) and which is in pari materia with section 230(1)(q)(r) and of the 1979 Constitution (supra), would reveal thatthe present suit falls within the exclusive jurisdiction of the FederalHigh Court. See Oloruntoba v. Abdulraheem (2009) All FWLR (Pt.497) 1 @ 34 paragraph B; (2009) 13 NWLR (Pt. 1157) 83; NEPAv. Edegbero (2003) 1 MJSC 69 @ 79 paragraphs A – D; (2002) 18NWLR (Pt. 798) 79; et al.

Further argued, that in the instant case, there is no dispute thatthe respondent is an agency of the Federal Government. Thus, theappellants should have filed their case at the Federal High Court.

Conclusively, the court is urged to discountenance theappellants’ argument, and accordingly dismiss the appeal.

Having amply considered the nature and circumstancessurrounding the instant appeal, the argument of the learnedcounsel contained in the respective briefs thereof vis-à-vis therecords of appeal, as a whole, I am of the paramount view thatthe sole issue raised in the respective briefs of the parties are notmutually exclusive. Thus, I have deemed it appropriate to adopt theappellants’ sole issue for the ultimate determination of the appeal,anon.

Determination of the Sole Issue

Instructively, the sole issue raises the very crucial questionof whether or not the court below was right when it held in thevexed judgment, that the trial High Court lacked jurisdiction toadjudicate on a claim under the Fatal Accident, Cap. 43, Laws ofNorthern Nigeria, 1963, on the premise that the respondent is aFederal Agency, regard being had to section 230(r) and of the1979 Constitution (supra) which is in pari materia with section251(1)(p) and of the, 1999 Constitution (supra).

It is obvious on the face of the record, as copiously alludedto by the appellants’ learned counsel (Page 3, paragraph 1.06) ofthe brief thereof, that on 22/01/2007 when the appeal came up forhearing, the court below suo motu raised some fundamental pointsto the following effect:

Court:

It is observed that no issues have been raised in respectof ground 1 of the grounds (sic) of appeal. Also the courtwould like counsel to address it on the constitutionality

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of sections 12(2) and 27(1) of the NEPA Act, Cap.256, Laws of the Federation of Nigeria, 1990.

On the basis of that observation suo motu by the court below,the learned counsel to the respective parties addressed the court,resulting in adjourning the appeal for judgment.

On 18/04/2007, the court delivered the vexed judgment to theconclusive effect:

Only the Federal High Court has the exclusivejurisdiction on the matter. This is so because althoughthe cause of action arose on the 24th day of March,1992, the action was not commenced until 1995 aftercoming into force the Decree No. 107 of 1993.

In the light of the foregoing, there will be no needto proceed to the consideration of the issues in thisappeal.

The appeal succeeds and proceedings before thePlateau State High Court as stated here into fore beinga nullity are hereby struck out.

I award no cost in this case.

The fact that jurisdiction is a fundamental threshold issueand thus indispensable in administration of justice, is no longercontroversial. A court of law is only competent to adjudicate uponan action or appeal before it, where –

It is properly constituted in regard to both quorum andqualifications of the members thereof;

The subject matter (res) is aptly within the ambit of itsjurisdictional competence, and there is no any featureinherent therein; and

The action (or appeal as the case may be) is initiated bydue process of Law, upon fulfilment of any conditionprecedent.

See the very locus classicus – Madukolu v. Nkemdilim (1962) 1 AllNLR 587; (1962) 2 SCNLR 341; A.-G., Lagos State v. Dosunmu(1989) 3 NWLR (Pt. 111) 552; Sken Consult v. Ukey (1981) 1 SC6, et al.

Indeed, the question of whether or not a court of law ortribunal is imbued with jurisdiction to entertain and determine amatter or appeal before it, is not merely important but fundamentalto adjudication process. It is a threshold issue that cannot, by anystretch of imagination, be compromised or sacrificed at the altar

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of caprice. This is absolutely so, because any proceeding or trialconducted by a court devoid of jurisdiction tantamounts to a nullity,ab initio.

My noble Lords would recall that this court had had a causeto reiterate the trite fundamental doctrine in quite a plethora offormidable authorities. Most particularly, in the case of Lagos Statev. Dosunmu (supra), this court eminently postulated:

It is futile to set down issues, deliberate on the evidenceled, resolve point of law raised, if the court seized ofthe matter is devoid of jurisdiction. The substratum ofa court is no doubt jurisdiction. Without it the labourerstherein, that is both litigants and counsel on the onehand and the Judge on the other hand labour in vain.

Per Eso, JSC.

As copiously alluded to above, the court below deemed itexpedient in its wisdom to suo motu raise the issue of jurisdiction.And consequent upon the addresses of both learned counsel, thecourt proceeded to strike out the appeal (CA/J/94/2003) on thebasis of lack of jurisdiction.

Parties are ad idem, and it is not controversial at all, that thejurisdiction of the Federal High Court is circumscribed by theprovisions of section 251(1)(p), (q), and of the Constitutionof the Federal Republic of Nigeria, 1999, supra, (which incidentallyis in pari materia with the provisions of section 230 (q), andof the defunct 1979 Constitution):

“251(1)Notwithstanding anything to the contrary containedin this Constitution and in addition to such otherjurisdiction as may be conferred upon it by an Act ofthe National Assembly, the Federal High Court shallhave and exercise jurisdiction to the exclusion of anyother court in civil cases and matters.

(p) the administration or the management andcontrol of the Federal Government or any of itsagencies;

subject to the provisions of this constitution, theoperation and interpretation of this Constitutionin so far as it affects the Federal Government(q)or any of its agencies;

any action or proceeding for a declarationor injunction affecting the validity of any

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executive or administrative action or decisionby the Federal Government or any of itsagencies; and

such other jurisdiction civil or criminal andwhether to the exclusion of any other court ornot as may be conferred upon it by an Act of(s)the National Assembly.

Provided that nothing in the provisions ofparagraphs (p), and of this subsectionshall prevent a person from seeking redressagainst the Federal Government or any of itsagencies, injunction or specific performancewhere the action is based on any enactment lawor equity.

The interpretation of the provisions of section 251(1)(p), (q),& of the 1999 Constitution (as mended), has not been at large.This court has had the unique privilege of reiterating its articulatedand far-reaching reasonings of the grundnorm in question in aplethora of veritable authorities. Particularly, the case of N.E.P.A.v. Edegbero (2002) 18 NWLR (Pt. 798) 79, is the most instructive!Indeed, the ratio decidendi of the vexed judgment of the courtbelow is extensively predicated thereupon at pages 344 to 346 ofthe record of appeal. Belgore, JCA (delivering the lead judgment ofthe court below) took the liberty of copiously alluding to Ogundare,(r)JSC’s lead judgment at page 95, viz:

It is not in dispute that the defendant – NEPA – is aFederal Government Agency … it is also not disputedthat the cause of action in this matter arose out of theadministrative action or decision of the defendant.The action is for a declaration and an injunction andthe principal purpose of it is to nullify the decisionof the defendant terminating the appointments of theplaintiffs and others. In the light of all these, therefore,the action on hand came squarely within the provisionof section 230(1)(s) of the 1979 Constitution. Itwould appear on the surface, therefore, that the actionwould be one within the exclusive jurisdiction of theFederal High Court. I have myself read the proviso toparagraphs (s), and of subsection of section230 all over again: I can find no such exception in it

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that would lead me to find to the contrary. A carefulreading of paragraphs (q), and reveals that theintention of the Lawmakers was to take away from thejurisdiction of the State High Court Government or anyof its agencies is a party. While paragraph talkedof actions for declaration or injunction, the provisoextended this to actions for damages, injunction, orspecific performance. It did not say as the learned trialJudge with profound respect, appear to read into it thataction for damages, injunction or specific performancesagainst the Federal Government or any of its agenciescould still come before a State High Court.”

Thus, having copiously alluded to Ogundare, JSC’s foregoingpostulates, the learned Belgore, JCA came to the followingconclusive findings (at page 346 lines 11 – 14 of the record):

As at today, that is the position of the law in Nigeriaand all courts are bound to follow it without exception.

Coming to the instant case, the proviso does, notprovide succor to the respondents as can be seen fromthe dictum of Ogundare, JSC quoted here above. Itherefore, need not belabor the issue. I hold that thePlateau State High Court lacked jurisdiction to hearand determine, this case in Suit No. PLD/J/637/95 …

Only the Federal High Court has the exclusivejurisdiction on the matter …

With possible deference to the learned justices of the courtbelow, I am unable to appreciate, let alone uphold, the findingsand conclusion arrived at in the vexed judgment. Most regrettably,the court below has lost sight of the fundamental doctrine that inconstruing the provisions of section 230(1) of the defunct 1999Constitution vis-à-vis section 251(1)(p)(q) & of the 1999Constitution, as amended (supra), there are very important mattersto be taken into account. They are the parties in the matter, and ofcourse, the subject matter (res) of the litigation itself.

As aptly posited by Niki Tobi, JSC in NEPA v. Edegbero(supra) @ 1573 paragraphs E – H:

The court must consider both in construing the parties,the court will have no difficulty in identifying anyagency of the Federal Government in certain matters.The case law and the law of agency will certainly be

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of help in relevant cases in this appeal, both counselsagree that the appellant the National Electric PowerAuthority is an agency of the Federal Government.They are correct. It cannot be otherwise. See Adebilijev. NEPA (1998) 12 NWLR (Pt. 577) 219.

With particular regard to the subject matter of litigation, thelearned Niki Tobi, JSC posits thus:

In my view, for the Federal High Court to haveexclusive jurisdiction, the matter must be a civilmatters arising from the administration, managementand control of the Federal Government on any of itsagencies. The matter must arise from the operationand interpretation of the constitution. And finally, thematter must arise from any action or proceedings for adeclaration or injunction affecting the validity of anyexecutive or administrative or decision by the FederalGovernment or any of its agencies. It is for purpose, ofemphasis.

I entirely agree with the submission of learnedcounsel for the respondent, Mr. R.A. Lawal Rabanathat the plaintiffs’ claim should be looked at alongsidewith section 230(1) of the 1979 Constitution …”

Not unexpectedly, Niki Tobi, JSC was far from being a loneranger in regard to the far-reaching postulates thereof. Uwais, theerstwhile CJN equally postulated (at page 157 of the record):

The clear intendment of the modification. to section230 of the 1979 Constitution by the Constitution(suspension and modification) Degree 107 of 1993was to confer on the Federal High Court exclusivejurisdiction in respect of the matters specified undersubsection (1)(a) to thereof.

Jurisprudentially, the postulates of brother, Justice Uwais,CJN and Niki Tobi, JSC, copiously alluded to above, albeitconcurring contributory judgments, same formidably form partof the lead judgment authored and delivered by Ogundare, JSC.That view is formidably anchored on the trite doctrine, that it is theconcurring judgment and the lead judgment alike that crystalliseinto the entirety of the decision of the court seised of the matter orappeal. See Oloruntoba-Oju v. Abdulraheem (2009) 6 MJSC (Pt. 1)1 @ 56 paragraphs E – F; (2009) 13 NWLR (Pt. 1157) 83:

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“I agree with the submission of the learned counselto the appellants quoting from the decision of Nwanav. F.C.D.A. (2004) All FWLR (Pt. 220) 1243 at 1254paragraphs B-C; (2004) 13 NWLR (Pt. 889) 128particularly that a concurring judgment forms part ofthe leading judgment and it is meant to complementsame by want of addition or improvement on theissues resolved in the leading judgment. Both leadingand concurrent crystallize in to the judgment of anappellate court.

In the instant case, a critical albeit dispassionate scrutiny ofsection 230(1) of the erstwhile Constitution of the Federal Republicof Nigeria, 1979 which was assimilated into section 251(1) of the1999 Constitution, as amended, would clearly reveal, that theFederal High Court was not vested with jurisdiction in regard toactions brought under the Fatal Accident Law, Cap. 43, Laws ofNorthern Nigeria, 1963, applicable to Plateau State. Rather, theState High Court (the trial court as in the instant case) is vested withthe jurisdictional competence to so entertain and determine suchactions or matters by virtue of section 9 of the Fatal Accident Law,Cap. 43, Laws of Northern Nigeria, 1963, applicable to PlateauState. And I so hold.

The primary responsibility of the court is to administerjustice to the parties before it with fairness and devoid of fear orfavour, affection or ill-will. It is equally the onerous duty of thecourt to interpret the words used by the legislature in a statute (theconstitution inclusive). And where the provision of the constitution(or Statute) is clear and unambiguous, the court if devoid ofdiscretionary power to read therein to an implied term. This isabsolutely so, because –

By the clear and unambiguous provisions animplied term is impliedly forbidden to be part of theconstitution. This is more so as a Constitution is nota transient agreement like a contract implied termscould be read in to the working in the interest of thecommercial transactions of the parties. Thus, wherea constitutional provision is clear and unambiguousand the courts read in to them so-called implied termsthe courts will be going outside their interpretative

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jurisdiction and will be branded as making the, law ina bad way.

See Olafisoye v. F.R.N. (2004) 4 NWLR (Pt. 864) 580 Per Niki

Tobi, JSC @ 670. See also Egbue v. Araka (1996) 2 NWLR (Pt.433) 688 @ 706; I.B.W.A. v. Imano (Nig.) Ltd. (1988) 3 NWLR (Pt.85) 633; Nyame v. F.R.N. (2009) LPELR – CA/A/96c/08:

The duty of the court is to interpret the words that thelegislature has used in a statute. Those words may beambiguous, but even if they are, the power and dutyof the court to travel outside them on a voyage ofdiscovery is strictly limited. For any attempt by thecourt to fill any gap in a statute is a naked usurpationof the legislative function and is the less justifiablewhen it is guess work with respect to what material thelegislature would, if it had discovered the gap, havefilled it. If a gap is disclosed, the remedy lies in anamending Act.

Per Peter-Odili, JCA (as the learned Lord then was).

In the circumstances, the sole issue ought to be, and same ishereby, resolved in favour of the appellants.

Hence, having effectively resolved the sole issue in favourof the appellants, the appeal resultantly succeeds, and it is herebyallowed by me.

Consequently, the judgment of the Court of Appeal Jos JudicialDivision holden at Jos, delivered on April 18, 2007 in appeal No.CA/J/94/2003, is hereby set aside. In place thereof, the judgment ofthe trial High Court of Plateau State, holden at Jos delivered by I.C.Dakyen, J., on July 31, 2001 in Suit No. PLH/3637/95, is herebyrestored.

The appellants are entitled to costs hereby assessed atN1,000,000.00 (One Million Naira) only against the respondent.

KEKERE-EKUN, J.S.C.: I have had a preview of the judgmentof my learned brother Ibrahim Mohammed Musa Saulawa, JSC justdelivered. I agree entirely that the appeal is meritorious and shouldbe allowed.

This appeal, like so many others determined by this court,raises the vexed issue of jurisdiction as between the State HighCourt and/or the High Court of the Federal Capital Territory on the

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one hand, and the Federal High Court on the other, having regardto the provisions of section 251(1)(a) – of the Constitution of theFederal Republic of Nigeria, 1999 (as amended).

There is no doubt that jurisdiction is a threshold issue whichis most fundamental to the adjudicatory powers of the court.Where the court lacks jurisdiction to entertain a cause or matter,the entire proceedings are a nullity, no matter how well conducted.See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Afribank v.Bonik Ind. Ltd. (2006) 5 NWLR (Pt. 973) 300; Oloriode v. Oyebi(1984) 1 SCNLR 390. It is also trite that in determining the court’sjurisdiction to entertain a cause or matter, it is only the writ ofsummons and statement of claim that would be considered. See:Adeyemi v. Opeyori (1976) 9 – 10 SC 31; Onuorah v. K.R.P.C. Co.Ltd. (2005) All FWLR (Pt. 256) 1356 @ 1364; (2005) 6 NWLR(Pt. 921) 393; Oloruntoba-Oju v. Abdulkareem (2009) 13 NWLR(Pt. 1157) 83.

This court has also held severally, that in determining whethera court has jurisdiction where an agency of the Federal Governmentis a party, regard would be had, not only to the parties to the action.But also, to the subject matter of the dispute. See: Ohakim v. Agbaso(2010) 19 NWLR (Pt.1226) 172 @ 236 -237; Ucha v. Onwe (2011)4 NWLR (Pt. 1237) 386; A.-G., Lagos State v. Eko Hotels Ltd &Anor. (2017) 12 SC (Pt.1) 107; (2018) 7 NWLR (Pt. 1619) 518.

Section 251(1) (p), and of the 1999 Constitution, asamended, provides:

“251(1) …. The Federal High Court shall have and exercisejurisdiction to the exclusion of any other court in civilcauses and matters [relating to] –

(p) the administration or the management andcontrol of the Federal Government or any of itsagencies;

subject to the provisions of this Constitution,the operation and interpretation of thisConstitution in so far as it affects the FederalGovernment or any of its agencies;

any action or proceeding for a declarationor injunction affecting the validity of anyexecutive or administrative action or decisionby the Federal Government or any of its(r)agencies.”

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By their amended statement of claim, the plaintiffs/appellantsclaimed the following reliefs:

N60,000 for the funeral expenses of the parents of the(a)2nd, 3rd and 4th plaintiffs (now appellants).

Under the Fatal Accidents Law, as beneficiaries andas the tender-aged children of the deceased, the sumof N12 million as damages (for the negligence of the(b)respondent).

Section 9 of the Fatal Accidents Law, Cap. 43, Laws ofNorthern Nigeria, 1963, applicable to Plateau State provides thatactions or proceedings arising under the provisions of the lawshould be commenced in the High Court or District Court.

I am in complete agreement with my learned brother, IbrahimMohammed Musa Saulawa, JSC, that section 230(1) of the 1979Constitution, which was subsequently re-enacted as Section 251(1)of the 1999 Constitution, as amended, did not confer exclusivejurisdiction on the Federal High Court in respect of matters relatingto the Fatal Accidents Law. Contrary to the finding of the two lowercourts, the claim before the trial court was for neither declaratorynor injunctive reliefs.

The proviso to sub-sections (p), and does not in any wayoust the general jurisdiction of the State High Court as provided forin section 236(1) of the 1979 Constitution (now section 272(1) ofthe 1999 Constitution, as amended).

The appeal is accordingly allowed. The judgment of he lowercourt is set aside while the judgment of the trial court is restored.

I abide by the order on costs.

Appeal allowed.

OKORO, J.S.C.: I had a preview of the lead judgment deliveredby my learned brother, Ibrahim Mohammed Musa Saulawa, JSC,and I wholly agree with the judgment.

In the main, the issue in this appeal borders on which of eitherthe Federal High Court or the High Court of Plateau State, that hasjurisdiction to adjudicate on a claim under the Fatal Accident Law,Cap. 43, Law of Northern Nigeria, 1963.

My Lords, it is a settled position of law that the jurisdictionof courts does not exist in vacuum as all courts of law derive theirjurisdiction from either the Constitution or an Act of the National

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Assembly. Therefore, no court can assume jurisdiction withouthaving been constitutionally or statutorily empowered to do so.

See Boko v. Nungwa (2019) 1 NWLR (Pt. 1654) 395 at 329;Adetayo & ors v. Ademola & ors (2010) 15 NWLR (Pt. 1215) 169;Lekwot v. Judicial Tribunal (1997) 8 NWLR (Pt. 515) 22.

Matters within the exclusive jurisdiction of the Federal HighCourt are clearly spelt out in section 251(1) of the Constitution ofthe Federal Republic of Nigeria, 1999 (as amended). Subsectionthereof grants the Federal High Court exclusive jurisdiction overmatters affecting the validity of any executive or administrativeaction or decision by the Federal Government or any of its agencies;which provision covers the respondent herein.

On the other hand, the Fatal Accident Law, Cap. 43, Lawsof Northern Nigeria, 1963, grants jurisdiction specifically to theHigh Courts of the state on matters relating to fatal accidents. Thisexplains why the High Court of Plateau state assumed jurisdictionover the matter.

It is not in dispute that the respondent herein is an agencyof the Federal Government. However, in view of the facts andcircumstances of this case, would we also say that on actionbordering on negligence which has occasioned fatal consequencesis within the administrative realm of the respondent to bring itwithin the exclusive jurisdiction of the Federal High Court. I verymuch doubt that it is rather under negligence which is actionable inthe state High Court.

In NEPA v. Edegbero (2003) 9 WRN 1; (2003) FWLR (Pt.139) 1556; (2002) 18 NWLR (Pt. 798) 79 heavily relied on by therespondent, this court stated emphatically that the parties in thelitigation as well as the subject matter of the litigation must fallwithin section 230(1), of the 1979 Constitution which is in parimateria with section 251(1) of the 1999 Constitution. That is notthe case in this appeal.

All I am grappling to say is that the High Court of Plateaustate had jurisdiction to entertain the matter. This appeal is, fromthe foregoing and the erudite lead judgment of my learned brother,meritorious. It is also allowed by me. I abide by the consequentialorders made in the judgment.

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EKO, J.S.C.: The respondent, the successor of National ElectricPower Authority (NEPA), is an electricity supply and distributionorganisation. Soon after NEPA staff had worked on the polesupplying electricity to the residence of Musa Bot, Mrs. EstherMusa-Bot (his wife), was electrocuted as she was spreading wetclothes on a line made of wire. The line was tied to a roofing nailpinning down the metal roofing sheets to the rafters. The staff ofNEPA, while working on the distribution pole, left an uninsulatednaked wire, that was live, on the corrugated metal roofing sheets.The entire roof was thereby electrified, so also the metal line Mrs.Musa Bot had spread her wet clothes on to dry. Mrs. Musa Bot,electrocuted, died on the spot.

The appellants, the defendant relatives of the deceased, Mrs.Musa Bot, had in consequence brought their action, under thePlateau State Fatal Accidents Law, claiming damages for negligenceagainst NEPA (succeeded by the respondent) in consequence of thelatter’s alleged negligence resulting in the death of Mrs. Musa Bot.The trial High Court of Plateau State acceded to their claims andawarded damages, by way compensation, for negligence under theFatal Accidents Law.

The respondent’s predecessor, National Electric PowerAuthority (NEPA), was the original defendant. The respondent,as the defendant, was undoubtedly an agency of the FederalGovernment of Nigeria. Aggrieved by the decision of the PlateauState high Court, the respondent appealed to the Court of Appeal(hereinafter called the lower court). Ground 1 of the notice of appealraised an issue challenging the jurisdiction of the Plateau StateHigh Court on the ground that NEPA, being a Federal Agency,the Plateau State High Court lacked jurisdiction to entertain thesuit. They failed to raise any issue for the determination of theappeal by the lower court from ground 1 which apparently had beenabandoned.

However, at the hearing of the appeal the lower court raisedthe issue and invited the parties to address them on the question:whether the suit, by virtue of section 12(2) and 27(1) of the NEPAAct, 1990 and in view of section 230(1)(q), & of Decree No.107 of 1993 (in pari materia with section 251(1)(q), & of the1999 Constitution) was properly constituted.

An action in negligence is rooted firmly in tort. Compensationfor fatal accident, which is an action in the tort of negligence, is

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the subject matter of the Fatal Accidents Law of Plateau State. Itdoes not come within the scope of the exclusive jurisdiction ofthe Federal High Court vested by section 7(1) of the Federal HighCourt Act or section 251(1) of the Constitution (formerly section230(1) of the 1979) Constitution as amended by Decree No. 107).

Relying on NEPA v. Edegbero (2002) 18 NWLR (Pt. 798)79 and section 230(1)(q), & of Decree No.107, the lowercourt held that, because NEPA was a Federal Agency, the HighCourt of Plateau State lacked requisite jurisdiction to entertain thesuit. It struck out the suit and declined to consider the merits of thesuit, as it should have done in alternative it being an intermediatecourt. Angadi v. P.D.P. (2018) LPELR-44375 (SC); (2018) 15NWLR (Pt. 1641) 1.This is because until the intermediate courtdid the needful, by commenting on the merits of the case, even afterdenying jurisdiction, this court will lack jurisdiction to comment onit or review its decision on it.

The central issue in this appeal is – whether the lower courtwas right in their interpretation of section 230(1) of Decree No.107 to the effect that NEPA, being a Federal Agency, the PlateauState High Court lacked jurisdiction to entertain the action againstit, under Plateau State Fatal Accidents Law, seeking compensationfor the loss of life of Mrs. Musa Bot in consequence of NEPA’snegligence? The lower court, agreeing with the respondent, heldthat NEPA being a Federal Agency, a State High Court had nojurisdiction over it.

The subject matter of the suit was negligence allegedlycommitted by NEPA, a Federal Agency. I think NEPA v. Edegbero(supra) was misapplied. The exclusive jurisdiction vested in theFederal High Court by section 230(1) in the Federal High Court, bysection 230(1)(q), & of Decree No. 107 and section 7(1) ofthe Federal High Court is only in respect of matters listed therein.Section 230(1)(q), & specifically provided that the exclusivejurisdiction vested in the Federal High Court is, expressly, only “inrespect of the matters specified” therein in the said section 230(1).Tort or the tort of negligence was, or is, not so listed. Accordingly,NEPA v. Edegbero (supra) is not an authority for the propositionthat once a party in the suit is a Federal Agency, even when thesubject matter is not one of the matters specifically mentioned orlisted in section 230(1) of Decree No. 107, in respect of which theFederal High Court has been vested exclusive jurisdiction over, the

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State High Court lacked jurisdiction to entertain it.

The correct test or factor is not whether the party or the statusof the party (whether or not it is a Federal Agency); but whetherthe subject matter of the suit falls within the cubicle of mattersexclusively reserved to, or for, the Federal High Court to exercise itsstatutory jurisdiction over. Onuorah v. K.R.P.C. (2005) All FWLR(Pt. 256) 1364 (SC); (2005) 6 NWLR (Pt. 921) 393; Adelekan v.Ecu-Line NV (2006) LPELR-113 (SC); (2006) 12 NWLR (Pt. 993)33; Oloruntoba-Oju v. Abulraheem (2009) 6 MJSC (Pt. 1) 1 (SC)34 – 35; (2009) 13 NWLR (Pt. 1157) 83.In these cases as wellas Ademola v. Adetayo (2005) All FWLR (Pt. 259) 1961 (CA) at1991-1992; Adetayo v. Ademola (2010) 15 NWLR (Pt. 1215) 169(SC) the decision in NEPA v. Edegbero (supra) was explained. Inall these cases it was held that the subject matter of the suit mustbe one of those matters listed or specified in section 230(1) ofDecree No.107 (in pari materia with 7(1) of the Federal High CourtAct and section 251(1) of the 1999 Constitution). Ogbuagu, JSC,in Adetayo v. Ademola (supra) was quite emphatic that only theConstitution, and no other statute, can further limit the unlimitedjurisdiction of the State High Court vested in it by section 272 ofthe same Constitution. The suit in Adetayo v. Ademola (supra)was filed at the Federal High Court wherein the plaintiffs soughta declaration of title to a piece of land and perpetual injunctionrestraining the defendants from further trespass, over which theFederal High Court is not vested with jurisdiction.

Since tort, like contract and title to land, are not matters listedin section 230(1) of Decree No. 107 (in pari materia with section251(1) of the extant Constitution) over which the Federal HighCourt was vested exclusive jurisdiction; it was rather presumptiveand ultra vires of the lower court to extend the jurisdiction ofthe Federal High Court to the matter of tort, in total denial ofthe jurisdiction of the Plateau State High Court over the same.Accordingly, because of this manifest error of the lower court Iwill, in agreement with my learned brother, Ibrahim MohammedMusa Saulawa, JSC, in the judgment delivered, allow the appeal.All the consequential orders made by my learned brother are herebyendorsed and adopted by me.

Appeal allowed.

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JAURO, J.S.C.: I had the privilege of reading in draft, a copy ofthe lead judgment just delivered by my learned brother, IbrahimMohammed Musa Saulawa, JSC. I am in complete agreement withthe reasoning and conclusion contained therein, to the effect thatthe appeal is meritorious and same ought to be allowed.

The appeal is hereby allowed, the judgment of the lower courtis set aside and that of the trial High Court is hereby restored. I abideby the consequential orders made in the lead judgment, includingthat on costs.

Appeal allowed.

Appeal allowed.

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