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In The Supreme Court of
On Friday, the 7th day of March
2008
Before Their Lordships
S.C.
377/2002
Between
And
Judgement of the Court
Delivered by
Ikechi
Francis Ogbuagu. JSC
This is an appeal against the
judgment of the Court of Appeal, Jos Division
(hereinafter called "the court below") delivered on 10th July,
2002 dismissing the appeal by the Appellants to it and affirming the
judgment of the High Court Yola Judicial
Division of Adamawa State Holden at Yola.
Dissatisfied with the said decision, the Appellants have appealed to this
Court on five (5) Grounds of Appeal.
The facts briefly stated, are
that the Appellant, has won the contract from the 1st and 2nd
Respondents for the rehabilitation of water treatment plants in
Yola, Numan and
Mubi in
'(i)
A declaration that the 1st defendant's letter No.
ASWB/AD/S/206/111/529 dated 4/7/1997 signed by
the Sole Administrator, Adamawa State Water Board on the subject of Water
Rehabilitation Project No. AAD/-01-ICB
between the Plaintiff and 1st Defendant is against the provision
of the law establishing the 1st defendant,
ultra vires,
and illegal, null and void.
(ii)
A declaration that 1st, 2nd and 3rd
defendants' failure or neglect to pay the 15% of the Contract sum to
Plaintiff even after submission of Advance Security Guarantees is a breach
of the Agreement between the parties.
(iii)
A declaration that in the circumstances of this case, the National
Water Rehabilitation Project Contract No. AAD
01 ICB is still valid (sic) (meaning valid) and
subsisting.
(iv)
An order
of compensation in favour of the plaintiff against the 1st and 2nd
defendants jointly and severally in the total sum of
(v)
The sum of $404.381.66 being 15% of the contract sum in foreign
components due to the plaintiff as advance from 1st defendant.
(vi)
The sum
of
(vii)
Payment for Job already executed: L.C.
(viii)
Any further and better orders".
The 1st and 2nd
Defendants/Respondents, counter-claimed. Pleadings were filed and exchanged.
The case proceeded to trial with both parties calling witnesses and learned
counsel for the parties addressing the court and the case, was adjourned for
judgment. It was while the parties, were awaiting the judgment, that the
learned trial Judge Banu, J. in the course of
writing the Judgment, suo
motu, invited the learned counsel for the
parties, to address him on the legal effect of the provisions of
Sections 51 (1) and (2) of Adamawa
State Water Board Edict No 4 of 1996 (hereinafter called "the
Edict/Law") and the non-compliance with its provisions.
Said he at page 168
of the Records inter alia, as follows:
"In the course of writing the Judgment,
my attention was caught
by the provisions of Section 51 of Adamawa State Water Board Edict No
4 of 1996 which states:
............
"It
is my view that this provision is
crucial as it affects the 1st defendant and I would like counsel
to address me on whether or not the provision has been complied with, and if
not, its consequence".
I note that there was no
objection from any of the learned counsel for the parties who in fact,
addressed the court in respect of the said issue. Thereafter, His Lordship,
stated at page 170 thereof, thus;
“As I have already gone far in writing the judgment, these submissions by
learned counsel will form part of the judgment to be at a date to be
..........”
In his Judgment delivered on
22nd May, 1998, the learned trial Judge, struck out the
Appellant's said suit as well as the counter-claim. He found as a fact and
held that there was non-compliance with the said provision of the Edict/Law
and therefore, that the Appellant's said suit, was
incompetent.
Aggrieved by the said
decision, the Appellant, appealed to the court below which dismissed the
appeal hence the instant appeal.
The Appellant has formulated
three (3) issues for determination, namely:
"2.01
Whether the
provisions of Section
51(1) and (2) of Adamawa State Edict (sic) No. 4 of 1996 is
not inconsistent with the provisions of Section 236(1) and Section 33 of
1979 Constitution as amended and therefore unconstitutional and void
(see Ground 1 and 2) sic
2.02
Whether the learned
Justices of Court of Appeal were right to have held that defendant need not
plead defence of pre-action notice in their Statement of Defence and that
parties cannot waive this special defence Ground 3 and 4 (sic).
2.03
Whether plaintiff is not
entitled to judgment on evidence led (Grounds)".
On their own part, the
Respondents, have formulated two (2) issues for determination, namely:
''i.
Whether the provision of Section 51(1) and (2) of the Adamawa State
Water Board Edict No. 4 of 1996, is in conflict with Sections 33(1)
and 236 of the 1979 Constitution (as amended), and therefore void to the
extent of the inconsistency".
ii.
Whether the court below was right to have concluded that the trial
court was justified to have suo
motu raised the issue of non-compliance
vel non with Section 51 (1) and
(2) of Edict No. 4, 1996, requiring service of pre-action notice on
the 1st defendant/respondent, despite the fact that, the issue
was not pleaded in the joint statement of defence of the respondents".
It could be seen that issue
2.01 of the Appellant, is the same as issue I of the Respondents. In my
respectful view, the real or crucial issue as rightly stated by the court
below, is whether the action of the Appellant, was/is competent or not
having regard to the said provision of the Edict/Law. I note that the said
issue 2.01 of the Appellant and issue I of the Respondent are similar to
issue 1 of the parties at the court below. However, since the reason of the
trial court for its said decision, is/was based on the said provision of the
Edict/Law, I will reproduce its provision. It provides as follows:
"51
(1)
No Suit
shall be commenced
against the Board until one month has elapsed since a written notice to
commence the suit shall have
been served on the Board by the complainant or his agent.
(2)
A notice under sub-section
(1) shall state:
(a)
The cause of action
(b)
the
relief sought, and
(c)
the name and place of abode of
complainant'.
As can be seen, Section 51(1)
is a statutory provision and it is mandatory while Section 51(2) is
directory. My perusal of the Records, makes it abundantly clear to me, that
the learned counsel for the Appellant either in the two lower courts or in
their Brief in this Court, never at any stage, contend that the Appellant,
complied with the said provision before instituting its said suit. Rather,
the arguments all along, (i.e. in the two lower courts), have been that the
Appellant, is/was not bound to comply with the provision because, according
to it, it is the provision of an Edict and that it cannot in any way,
postpone or suspend the right of the Appellant to be heard or restrict the
jurisdiction of the trial court. I note however, that at page 199 of the
Records, the learned counsel for the Appellant, inter alia, submitted that,
"the purport of Section 51 of the Edict is to
oust this court's
jurisdiction in respect of the 1st
defendant for the first 30 days by creating an impediment on the
right of the Plaintiff to come to court.-,...'''.
See also pages 361 and 362 of
the Records and paragraphs 4.06 and 4.07 of the Appellant's Brief.
In my respectful view, the
said provision is a condition
precedent as far as suits against the 1st
Defendant/Respondent are concerned. Therefore, the failure of the Appellant
to comply with it clearly makes the suit incompetent. Contrary to the
submission of the learned counsel for the Appellant, the provision, does not
seek to oust forever, the jurisdiction of the court but only temporarily. It
just provides that unless the condition precedent is complied with, a
complainant or Plaintiff, cannot, sue or initiate any action against the 1st
Defendant. Period!
In the
case of Prince Atolagbe &
anor v. Alhaji A.
Awuni & 8 ors.
(1997)9NWLR (Pt 522) 536: (1997)1SCNJ
where there was a
split decision of 5 - 2 and also cited and relied on in the Respondent's
Brief, Mohammed, JSC, in his contribution,
stated at pages 22-23 of the SCNJ inter alia, as
follows:
"........
Conditions precedent
ordered to be done before a litigant is entitled to sue by reason of the
provisions of some statute is not an ouster clause and not a device adopted
by the Government to prohibit a judicial review. It is an additional
formality and unless proved to be enacted with a view to inhibiting citizens
from having access to the Courts, is not contrary to Section 6(6) (b) of
1979 Constitution. See
Madukolu v. Nkemdilim
(1962) All NLR (Pt.2)
589".
I will respectfully add, that
it is not contrary to Sections 33(1) and 236 (1) of the 1979 Constitution.
In the case of Captain
Amadi v. NNPC (2000)
10 NWLR (Pt.674) 76
(not 72
as appears in the Respondents' Brief at page 8): (it is
also reported in (2000) 6SCNJ.1; (2000) 6
S.C. (Pt1) 66: (2000) FWLR
(Pt.9) 1527 and (2000) 5
WRN 47) also
cited and relied on in the Respondent's Brief, again, in his contribution,
His Lordship Mohammed, JSC at page 133 of
NWLR in the same vein as in
Atolagbe’s case (supra), stated inter alia, as follows:
“....... It
is instructive therefore that,
compliance with the provisions of Section 11(2) of
N.N.P.C. Act 1977 is a condition precedent to instituting a suit
against the Respondent. Cases constantly occur in which, although everything
has happened which would at common law prima facie entitle a man to a
certain sum of money, or vest in him certain right of action, there is yet
something more which must happen, in the particular case, before he is
entitled to sue, either by reason of the provision of some statute or
because the parties have expressly agreed. This is something called a
condition precedent. It is not of the essence of such a cause of action, but
it is essential. It is an additional formality super-imposed on the Law ……”
His Lordship, referred to
Prince Atolagbe's case (supra) and the
English Supreme Court Practice (White Book) 1991) Edition Order 18/7/10.
Since I note that in respect
of Issue No. 1 of the Appellant, the arguments are substantially and
materially the same or similar to/as those proffered in the two lower courts
and in this Court, I will deal with the same together with Issue I of the
Respondents. The issue or question of
pre-action Notice has
been firmly settled in a number of decided authorities by this Court.
In the case of
Katsina Local Authority
v. Alhaji
B. Makudawa (1971) (1)
NMLR 100 @ 105 also cited and relied on in
the Respondent's Brief, this Court - per Coker,
JSC, stated inter alia, as follows:
"We are clearly of the view that Section 116(2) of the Local Authority Law
prescribes a condition precedent to the competence of any action commenced
against a Local Authority and that compliance with the sub-section is a
pre-condition of such competence.
The sub-section requires such notice as it therein prescribed to be served
on the Local Authority and stipulates that at least one month shall expire
before the suit can be legally commenced. It follows therefore, in our view,
that where it is established that no such notice was served or that the
sub-section is not otherwise complied with, any suit commenced in
contravention of the provisions of the sub-section is wrongly commenced and
should not be entertained by any court".
Uwais.
JSC, (as he then was), held at page 107 of the
above case, that the purpose
of giving Notice of Claim
to the Local Government is that
it is not taken by surprise,
but to have adequate time, to prepare to deal with the claim in its
defence. That the purpose of the notice,
"is not to put hazards in the way
of bringing litigation against it." See also the cases
of His Highness
Umukoro & Ors v. NPA
& anor (1997) 4
NWLR
(Pt 502.) 656®, 667; (1997) 5 SCNJ. 113 -
per Kutigi, JSC,
(as he then was).
It should be noted that the
said provision of "No suit shall be commenced", prohibits the commencement
of all suits whatsoever.
That it may be argued or contended that this opening phrase, may be
very wide, is of no moment. In the case of Fawehinmi
Construction Co. Ltd, v. Obafemi
Awolowo University (1998) 6
NWLR
(Pt.553) 171@ 190, 194; (1998)
5 SCNJ
44, Section 46(1) of
the University of Ife Edict, 1970
which is in
pari
materia with
Section 11 (2) of the
NNPC Act, 1 977, (hereinafter called "the
Act"), provides that service of the Notice shall be made upon the
Corporation by the Plaintiff or his
agent, was construed. It was held that the Section speaks of
"no suit" and not
"any suit".
That its provision, is not
inconsistent with the
provisions of Sections 6(6) (b),
33(1) and 236(1) of the 1979 Constitution because, it does not
restrict
access to the court.
The case of
Chief Osagie
II & anor.
v. Chief Offor & anor.
1 (1998) 3
NWLR (Pt541) (a), 205
was followed. It is also reported in (1998)
SCNJ.J22 Section 11(2) of the said Act,
relates to all or any type of
action. It is wider and all embracing and different in application,
from Section 97 of the
Ports Authority Act. See also the
case of NPA v. Construction
Generali (1962) 12 S.C. 81@ 95. In Other
Words, it covers all suits and whatever causes of action and it is not
limited to anything done pursuant to any Act or Statute.
In
Captain_Amadi v. NNPC case
(supra), Uwais, CJN,(Rtd.)
at page 8 of the NWLR, reiterated his said views
in Katsina_Local_Authority case
(supra). It was also held - per Karibi-Whyte,
JSC that the said purpose or purposes, of
pre-action Notice, are legitimate and are
recognized procedural provisions to give the defendant
"breathing time so as
to enable him or it, determine whether he or it, should make reparation to
the Plaintiff. See also the case of Ngelela
v. Tribal Auihority,
Nongowg Chiefdom (1953)14
WACA 325 @ 327 , - where Sutton,
PJ. Stated inter alia, as follows:
"The language is imperative
and would appear to debar a
court from entertaining a suit instituted without compliance
with is provision. The object of the notice is to give the defendant a
breathing time to
enable it determine whether he would make reparations to the Plaintiff"
It was also held in Captain
Amadi v.NNPC
case (supra), that while the issuance of the Notice by a prospective
Plaintiff, is
mandatory, the particulars to be included in the Notice
- i.e. the cause of action, particulars of claim, name and place of abode of
the intending Plaintiff and the relief to be claimed, are
directory.
In the case of Chief
Nnonye v. Anyiahie &
2 ors, (2005) 1 SCNJ.
306 (a), 317; (2005) 1 S.C. (Pt II) 96
it was held - per
Akintan, JSC, that the failure to serve a
pre-action Notice on the defendant, gives such defendant, a right to
insist on such Notice,
before the plaintiff may approach the court. In other words, that
non-service of a pre-action Notice
merely puts the jurisdiction of a court on hold pending compliance with the
pre-condition. A number of cases were referred to therein. In fact,
failure to serve the said Notice amounts to an
irregularity that renders the suit
incompetent.
In the recent case of
Bakare v. Nigerian Railway Corporation
(2007)17 (Pt 1064) NWLR (Pt1064)606
@ 656;, (2007) 7 S.C.N.J.
131;
(2007) 7 S.C. 1 -
per Chukwumah-Eneh, JSC,
where by virtue of Section 83 (2)
of the Nigerian Railway
Corporation Act, no suit shall be
commenced against the Corporation, until three (3) months at least after
written Notice of the intention to commence the same, shall have been served
upon the Corporation by the intending plaintiff or his agent. Section 83(2)
of the said Act, is also in
pari materia
with Section 51(1) and (2) of the Act in the instant case. It was
held that the said Section,
provides a form of limitation period within which an action against
the Corporation must be commenced while Section 83(2) provides for a
pre-action Notice
which must be given to the Corporation, That the two requirements, must be
met before any action against the Corporation is instituted otherwise,
failure to comply with either of the provisions, will lead to such an
action, being declared incompetent. The case of
Madukolum v. Nkemdilim
(1962) 2 SCNLR 341 was referred to.
The case of Eboigbe
v. The NNPC (1994) 5
NWLR (Pt.347) 649
also reported in (1994) 6, SCNJ. 71
was also referred to where
Section
12(1) & (2) of the
NNPC
Act Cap. 320 Laws of the Federation, 1990, provides for the giving of
pre-action Notice within Twelve (12) months. The said Section also provides
that no action shall be taken against the Corporation or its employees and
no action shall be taken against these persons for any act done in pursuance
of or execution of any Act or Law or any public duty or authority unless
commenced within twelve (12) months after the act complained of.
Significantly and
interestingly, the Appellant and its learned counsel appreciate and concede
the purpose of a pre-action Notice. At paragraph 4.06 page 5 of their Brief,
the following submissions appear inter alia;
"If is therefore Plaintiffs (sic) humble submission that the purpose of
Section 51(1) and (2)
of Edict No 4 of 1996 is to now protect 1st
Defendant and put an
obstacle on the path of the prospective
claimants which
they have to scale before
commencing a suit.
The purpose is also to out
rightly suspend the Plaintiffs
right of action ...”
[The underlining mine]
Great! This is what this Court
has stated and restated in the authorities reproduced by me in this
Judgment. On this concession, all the fuss by the Appellant in its Brief and
under this issue, become with respect, a complete exercise in futility and a
sheer waste of the Court's time.
In paragraph 4.07 of the said
Brief, the following appear:
"The above provisions therefore, it is submitted in as much as it
now delays the
complainant from coming to
court or having his complaint adjudicated by the court
immediately clearly derogates from the provisions of Section 33(1) of
1979 Constitution that entitled complainant to a fair hearing,
within a reasonable time. The provisions of Section 51(1) have the
effect to temporarily doors of the court against a complaint
albeit for 30 days, in all circumstances where a notice is given and
for ever where no such notice is given by the
complaints ".
[The underlining in bold mine]
I note that this is another
concession. I will now deal even briefly with fair hearing especially where
it is also submitted in paragraph 4.08 of the Appellant's Brief, that the
said provision, is
“an
attempt to circumscribe the
clear provisions of Section 33 and Section 236 (1) of the 1979 Constitution
as amended. The same Section
delays postpone and
obstruct the immediate, access of a claimant to the court.
The right to access or immediate access to court is a constitutional
right. See the case of
Eyesan v.
Sanusi (1980) 1
SCNLR 353 at 354 ratio 6
........”
[The
underlining mine]
Access to the court, it is
said, means approach or means of approach to the court without constraint -
per Karibi-Whyte, JSC,
in Captain
Amadi
v.
NNPC
(supra) @ page 111 of the NWLR. A
condition precedent is defined as one
which delays the vesting of a right
until the happening of an event. See Prince
Atolagbe and Captain
Amadi's cases. It has to be borne in mind always and this is
settled, that the constitutional right of access to the court, does not
however, preclude statutory
regulations of the exercise of the right.
I have in this Judgment, shown
that it is now firmly settled that at the pre-action Notice in the suit
leading to this appeal, is not
inconsistent with Section 33(1) of the 1979 Constitution and
this puts to rest, in my respectful view, any argument, submission or
contention to the contrary. It is therefore, not
unconstitutional and void
as submitted in the Appellant's Brief. This is also because,
the said provision does not,
oust the jurisdiction of the court or derogate from the rights of the
citizen. It only postpones
the time for instituting a suit. In my view, (30) thirty days or one
month, cannot be said to be an
inordinate time or period.
Issue 2.02 and
2.03 of the Appellant
and Issue ii of the
Respondents.
I have stated and held the
view that the crucial issue in this appeal to be determined is the
competency of the suit of the Appellant. I have held and concluded that the
said action of the Appellant is incompetent. This takes complete care of
answer to the controversy in this suit. In other words, a statute such as
Section 51(1) and (2) of the Edict/Law requiring a pre-action Notice to be
given to the defendant, not only goes to the competence of the suit, but it
also touches on the jurisdiction of the court to entertain such suit. Where
there is non-compliance of the Statute that is shown to be mandatory, the
suit and/or proceedings is/are a
nullity however well conducted. See
Madukolu v. Nkemdilim,
Prince Atolagbe
Alhaji Awuni (supra) and Chief
Obaka & ors. v. Military Governor of
In the case of
Eimskip Ltd, v Exquisite Industries
(Nig.) Ltd. (2003) 4 NWLR (Pt.809)
88 (a).
118: (2003) 1 SCNJ.
317, Mohammed,
JSC, stated inter alia, as follows:
"........
Where there is fundamental failure
to comply with the requirement of a statute the issue is not of
irregularity, but a nullity".
From all these firmly
established authorities, with profound humility, it is idle therefore to
argue or submit as has been done in paragraphs 5.02 of the Appellant's brief
that-
"the
law prescribing pre-action notice is a privilege, conferring a special
advantage in favour of the first defendant in this case and it is left for
the 1st defendant to take advantage of the special provision at
the trial or waive same by proceeding with the case without insisting on its
legal rights ".
In the first place, where an
issue of competence or jurisdiction of a court, is fundamental and crucial,
the issue of waiver, cannot be of any consequence. See the case of
Onyema & ors. v.
Oputa & ors. (1987) 3 NWLR
(Pt.60) 259; (1987) 7
SCNJ.176. Secondly, if at the defendant, has a legal right
conferred on him/it by a statute, it is again with respect, idle to submit
as has been done in the Appellant's Brief, that the defendant, should waive
same and proceed with the hearing of the case. However and significantly,
the learned counsel to the Appellant, concede that such a defendant, can
take advantage of the said provision. In the circumstances, there will be no
need (which will not even arise or be necessary), to start pleading such
pre-action Notice as a defence. Being a question of jurisdiction, the issue
can be raised by a defendant or even by the court
suo rnotu and thereafter hear
from the parties as was done in this case See the cases of
Alhaji K .Abubakar
& 10 ors v. Jos
Metropolitan Development Board & anr. (1997) 10
NWLR (Pt.524) 242 @
250-251
C. A., - per
Edozie, JCA, (as he
then was) and Katto v.
CBN (1991) 9 NWLR (Pt.214)
126 @149;(1991)12 SCNJ. 1 -
per Akpata.,
JSC, also cited and reproduced in the
Respondent's Brief. This issue, again with respect, is a non-issue in the
circumstances of this case. It is again, an academic exercise albeit, in
futility. I so hold.
In respect of Issue 3, how can
the Appellant be entitled to Judgment, when it has not started "to walk how
much more to run" so to say, I or one may ask? When once an action is a
nullity, I repeat, it is of no moment how well the case or proceeding, is
conducted. With respect, this issue, in the circumstances again, does not
arise. At best, it is hypothetical and all arguments in respect thereof by
the Appellant, is again an exercise in futility. I repeat, service of
pre-action Notice, is a condition precedent to the exercise of jurisdiction
by a court of trial. In the case of
Odofin
& anor.
v. Chief Agu &
anor. (1992) 2 NWLR
(Pt.229) 350 @ 375:
(1992) 3 SCNJ.161 also cited and
relied on in the Respondents' Brief, this Court - per
Akpata, JSC, stated inter alia, as
follows:
“....,...,..
The question
of jurisdiction is not a matter to
be taken for granted. A court cannot casually assume
jurisdiction over a matter when
conditions precedent are not satisfied or do not appear to have been
satisfied ....”
In the case of Attorney-General of the Federation & ors v. Sode & 2_ors.
(1990) 1 NWLR (Pt.128)
500 (a), 538; (1990) SCNJ.
1 -
Karibi-Whyte,
JSC, (Rtd.) in his
concurring judgment, stated inter alia, as follows:
(2)
A notice under sub-section (1) shall state:
(c)
the name and place of
abode of complainant.
Sections 33(1) and 236 of the 1979 Constitution
(as amended), on the other hand provide: |