CHIEF ZION NWADIKE & ORS v. AWKA SOUTH LOCAL GOVERNMENT (2008)

CHIEF ZION NWADIKE & ORS v. AWKA SOUTH LOCAL GOVERNMENT

(2008)LCN/2683(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of March, 2008

CA/E/29/2007

RATIO

ADMINISTRATIVE LAW -THE ISSUE OF WAIVER: THE MEANING AND EFFECT OF WAIVER

“In Odua Investment Company Ltd. v. Joseph Taiwo Talaba (1997) 10 NWLR (Pt.523) 1 S.C. the Supreme Court held on the issue of “waiver” as follows: “(6) Waiver – is the intentional and voluntary surrender or relinquishment of a know privilege and/or right. It is therefore, implies a dispensation or abandonment by the party waiving a right or privilege which at his option, he could have insisted upon. See Arior h. Elemo (1983)1 S.C.N.L.R.1 (referred to and adopted). (7) The guiding principle to determine whether the provisions of an enactment can be waived is to (8) determine whether such provisions are directory or mandatory. A breach of mandatory enactment renders what has been done null and void. But if the statute is merely directory, it is immaterial, so far as it relates to the validity of thing to be done, whether the provisions of the statute are accurately followed or not. An absolute in enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially (p.50 paras. F-G)” In consideration of this point of whether or not the respondent had waived her rights after beings served with the notice, the appellants must show that the pre-action notice was valid and the respondent did infact relinquished her known right/ privilege.” PER MOHAMMED L. TSAMIYA, J.C.A.ER

INTERPRETATION OF STATUTE – INTERPRETATION OF SECTION 158 LAWS OF ANAMBRA STATE: THE INTENT OF SECTION 158 LAWS OF ANAMBRA STATE

“Section 158. (1.) No suit shall be commenced against a Local Government until one month at least after a written notice of intention to commence the same has been served upon the Local Government by the intending plaintiff or his agent. (2) Such notice shall state the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims.” (Underline mine for emphasis). From the above provisions of the section, it will be seen that subsection (1) provides that one month notice of intention to sue must be given to a Local Government before an action is commenced, and sub-section(2) of the section provides particulars to be included in the notice. In the present appeal we are only concerned with the provisions of subsection(2) upon which the trial court relied upon in striking out the appellant’s suit before it. The word” shall” as under lined above appears two times in the section. It is settled that the word, “shall”, when used in an enactment is capable of bearing many meanings, that is, implying futurity or mandate, direction or giving permission. See Ifezue Vs. Mbadugha (1984) 1 SCNLR 427 at 456-7. In the present case has it been used in a mandatory sense or directory sense? If used in a mandatory sense then the action to be taken must obey or fulfill the mandate exactly, but if used in a directory sense then the action to be taken is to obey or fulfill the directory substantially. See Wood-Ward Vs. Saysons (1875) L.R.10 C.P. 733 at 746; and State Vs. Ilori (1983) 1 SCNLR 94 at 110. In Liver-Pool Borough Bank Vs. Tuyner (1861) 30 L.J. Ch.379 at 657, it was held: “No universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try and get at the real intention of the legislature by carefully attending to the whole scope of statute to be considered.” It appears to me that the first “shall” in subsection (1) imports obligation. No suit, therefore, could be commenced against the Local Government Until a period of one month expires after giving a prescribed notice. In other words, before suing the Local Government a notice of intention to commence the suit must be given to the Local Government. However, with regards to the second “shall”, I am of the view that it connotes direction in the sense in which it is used. It describes the particulars to be contained in the notice of intention to sue. See Amadi Vs. N.N.P.C. (supra) at p.98.” PER MOHAMMED L. TSAMIYA, J.C.A.ER

JUSTICE – MISCARRIAGE OF JUSTICE: DEFINITION OF MISCARRIAGE OF JUSTICE AND WHEN MISCARRIAGE OF JUSTICE CAN BE DECLARED

“However, I proceed to discuss the issue of miscarriage of justice in the interest of completeness. The issue is whether the appellants suffered a miscarriage of justice because their case was struck out by the trial Court. In Devi Vs. Roy (1946) A.C. 508, Lord Thankerton, in the privy Council decision defined the words a “miscarriage of justice” to be: “”.Such a departure from the rules which permeate all judicial Procedure as to make that which happened not in the proper sense of the word judicial Procedure at all.” Again in the United States decision of Alcoll Vs. Davies, 343 p, 2″‘. 621, at 625-6, Vandyue P.J. adopted the test applied in People Vs. Watson, 292 P.201. 243 where it was said: ” … A miscarriage of justice should be declared only when the Court after an examination of the entire case, including the evidence, is of the opinion that it is reasonable probable that a result more favourable to the appealing party would have been reached in the absence of error. ” There is miscarriage of justice only where there substantial errors in adjudication, with the resultant effect that the party relying on such errors may likely have a judgment in his favour.” PER MOHAMMED L. TSAMIYA, J.C.A.ER

JUSTICES

ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria

MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria

SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria

Between

1. CHIEF ZION NWADIKE
2. CHIEF EMMA OKENNA
3. CHIEF CLETUS AKABUEZE
4. MR. THOMAS ONWUKA
(For themselves and on behalf of Awka Building Materials Dealers Association Awka) Appellant(s)

AND

AWKA SOUTH LOCAL GOVERNMENT Respondent(s)

MOHAMMED L. TSAMIYA, J.C.A. (Delivered the Leading Judgment): This is an appeal against the final decision of the Anambra State High Court, delivered on 25/9/2006 in suit NO.A/169/2000.
The plaintiffs, as tenants, have their shops and stores for building materials situate at Arthur Eze Avenue Market, Awka. The defendants, as Land lord to the plaintiffs, initiated the process of re-locating the plaintiffs from the said market premises to another proposed building materials Market, at Umuokpu, Awka, by serving on the plaintiffs what was called public notice, dated 9/8/2000. The notice served on them gave the plaintiffs less than one week to move out the said Arthur Eze Avenue Market premises.
Dissatisfied with the less than one week time within which to move out, the plaintiffs instructed their counsel to write to the defendant a one Month statutory notice, which was dated 22/2/99. In the said notice, the plaintiffs inform the defendant of their intention to sue the defendant over the 8(eight) market buildings at Umuokpu, and allocated to them on rents and which the defendant intends to eject them from and re-allocate the same to people other than the plaintiffs. Also in the said notice plaintiffs stated their intention to pray to Court for injunction to restrain the defendant from re-locating the said 8 Market building to persons other than plaintiffs.
Pursuant to this one month statutory notice (pre-action notice), the plaintiffs filed their suit in the trial court claiming against the then four defendants jointly and severally as follows:
a) A declaration that the 1st Defendant’s less than one week notice to the plaintiffs for the movement of Building Materials Market, Awka from Arthur Eze Avenue to Building Materials Market Umuokpu still under construction by the plaintiffs themselves, without any prior consultation with the plaintiffs, is unreasonable, null, void and of no effect whatsoever.
b) N50m (Fifty Million Naira) being Exemplary and General damages for unlawful ejection, economic losses, economic sabotage and destruction. (See paragraph 18 on the statement of claim at page 20 of the record).
The writ was filed on 15/8/2000. Pursuant to the tiling of their writ, the plaintiffs also filed their Ex-parte motion before trial court, on 15/8/2000 praying for the following orders:
(a) An order of interim injunction restraining the Defendants/Respondents by themselves, their agents servants and privies from relocating and or enforcing the relocation of Building Materials Market Arthur Eze Avenue, Awka, to Umuokpu, Awka, still under construction by the plaintiffs/Applicants themselves, pending the determination of the substantive motion on notice.
(b) An order of interim injunction restraining the Defendants/Respondents by themselves, their agents, servants and privies from terrorizing, harassing, embarrassing, disorganizing haranguing the plaintiffs/Applications or doing anything whatever inconsistent with the Applicants right to remain and do business at the Building Materials Market at Arthur Eze Avenue Awka pending the determination of the substantive motion on notice.
(c) And any further order or orders as the Honourable court may deem fit to make in the circumstances.
The trial court subsequently after hearing the counsel to the plaintiffs/Applicants, granted the injunction orders as prayed. After serving the injunction orders, the defendant subsequently demolished all the plaintiffs’ shops/stores and destroyed goods belonging to them also.
The plaintiffs filed their statement of claim, which was served on the defendants. After the service the 1st defendant filed a motion on Notice on 23/3/2006 for extension of time within the 1st defendant/applicant may file her Memorandum of appearance and Statement of defence and same as properly filed and served. The motion was on 4/7/2006 struck out for lack of deligent prosecution. In the process hearing the suit the 2nd and yd defendants names were struck out on the application of the plaintiff, leaving the 1st and 4th defendants consequently the trial started without the 1st and 4th defendants’ statement of defence, and was absent and unrepresentative throughout the trial. At the conclusion of the trial the learned trial judge, struck out the plaintiffs’ action for non-compliance with the law but astonishingly gave judgment infavour of the plaintiffs in the sum of N20 million as exemplary damages.
Being aggrieved by the above decision, the plaintiffs (herein referred to as the appellants) appealed to this Court on 4 Grounds of Appeal. By the leave of this Court granted on 27/6/2007, Ground No.2 of the Original grounds of appeal was amended by substituting the word ‘special’ in line I with the word, ‘general’, and substituting the word ‘special’ in line 2 of the paragraph (e) of the particular of error thereof with the word ‘general’. Also leave to withdraw grounds 3 of the grounds of appeal thereof.
In accordance with the Rules of this Court, the appellant, through their learned counsel, filed and served their brief of arguments on the 1st Defendant. The Defendant (herein referred to as the respondent) on the other hand did not file her brief of argument In their brief of argument, learned counsel for the appellants formulated the following issues for determination:
1. Whether the pre-action notice served in this suit without any objection whatsoever by the respondent is a nullity and whether the order striking out the appellants’ case has not occasioned a miscarriage of justice.
2. Whether the award of (Twenty Million Naira) N20m damages is not tantamount to general damages in the circumstances instead of Exemplary damages.
During the hearing of this appeal on 17/1/2008 the appellants’ counsel adopted their brief of arguments and urges this court to allow the appeal and set aside the decision of the learned trial judge by granting the relief sought in the action. The respondent’s counsel, however informs this court that they have filed their respondent’s brief of argument and urges this court to dismiss the appeal.
I have seen the alleged respondent’s brief filed on 20/812007. The so called brief is headed as follows:
“RESPONDENT’S REPLY/CROSS-APPEAL BRIEF; ORDER 6, RULES 4, & 7 OF THE COURT OF APPEAL RULES 1981.”
In the body of the so called brief there is nothing, indicating it to be respondents brief of argument it looks like but the Notice and Grounds of Cross/Appeal. When the respondent’s counsel was asked whether a motion for leave to Cross-Appeal was sought and obtained, he conceded that no such motion to that effect filed or granted. Consequently, the said “Respondents Reply/Cross Appeal Brief, purportedly brought pursuant to Order 6 Rules 4 & 7 (supra) is hereby struck out for being incompetent.
Before dealing with the appeal on its merit, it is necessary to state briefly the facts of this case as follows:
The appellants were tenants of the respondent. They owned their stores and shops at Arthur Eze Avenue Market, Awka. They were ordered by the respondent, through a notice dated 9/8/2000, to vacate their stores and shops on or before 15/8/2000. They were infact given less than a week to vacate their shops as they were to be re-located at a proposed Market located at Umuokpu, Awka. The construction had barely taken off there. In response to this notice to vacate, the appellants sent to the respondent a pre-action notice dated 22/2/99 and pursuant thereto, this suit on 15/8/2000 was instituted against four defendants, namely:
1. Awka south Local Govt.,
2. Commissioner Of Police Anambra State.
3. State Security Service Anambra State, and
4. John Okwute (chairman, Awka Amalgamated Traders Association (A.A.T.A) for himself and on behalf of A.A.T.A.).
However, on 6/6/2006 the names of the 2nd and 3rd defendants were struck out from the suit on the application of the appellants, and leaving only the 1st and 4th defendants in the suit. In the process of reviewing the evidence for the appellants, the learned trial judge found that appellants have failed to make out any case against the 4th defendant, and consequently his name was struck out from the suit, leaving only the 1st defendant.
The appellants also filed an ex -parte application against the defendants for interim injunction which was granted on 23/8/2000 restraining the respondent, her agents, servants, workmen and privies from ejecting, relocating or doing anything contrary to the use of the said Building Materials Market Arthur Eze Avenue, Awka, pending the determination of the substantive motion on notice.
Soon after the order for interim injunction was served on the respondent on 24/8/2000, the respondent moved into the said Market with caterpillars, thugs and hoodlums and demolished the market buildings, destroyed the appellants’ goods worth more than forty-nine million Naira and took over the Market premises. The respondent’s reason for demolishing the market was that she wanted to decongest the Arthur Eze Avenue, (now called Odera Shopping Complex stands) menacing the Arthur Exe Avenue which she has now given out to her relations, friends, associates, surrogates and cronies excepting the appellants.
The trial court heard the matter in the absence of the respondent who refused to participate in the trial and even refused to file a memorandum of appearance or statement of defence. At the end of trial, the trial court after awarding the appellants the sum of N20m. (Twenty million Naira) only as exemplary damages, struck out the suit on ground that the pre-action notice dated 22/2/99 did not comply with section 158(2) of the Local Government Law, Cap. 85. The Revised Laws of the Anambra State of Nigeria 1991. Wherefore the appellants appealed to this Court.
Having stated the brief facts of the case, I shall now deal with the issues formulated by the appellants having the respondent refused to file her brief of argument.
I shall therefore proceed to determine this appeal on the issues for determination as formulated by the appellants.
FIRST ISSUE.
Under this issue, the learned counsel for the appellant submitted that the pre-action notice dated 22/2/99 substantially satisfied the requirements of section 158(2) of Law Cap.85 of Anambra State. He also stated that the mere fact that the said notice refers to another cause of action but between the same parties does not in any manner whatsoever make the notice null and void, because in paragraph 4 thereof, it is state:
“And all action and matters relating to and/or connected therewith.”
In support of this contention the case of Amadi Vs. N.N.P.C. (2000) 10 NWLR (Pt.674) 76 ratio 3 was relied on. It was also the submission of the appellants’ counsel that, even if the pre-action notice did not comply with requirements of the said law, the fact which he did not concede to, the conclusion reached by the trial Court that the said notice was null and void without any objection raised by the respondent, was wrong. He submitted that the effect of non-service of a pre-action notice is an irregularity which renders an action incompetent, and that irregularity can be waived if no objection raised by the defendant. A number of cases cited in support of this contention, including the case of Nonye Vs. Anyichie (2005) 2 NWLR (Pt.910) 623 01 647 (paras. C-E ratio 9 and N.N.P.C. Vs. Sele (2004) All FWLR (Pt.228) 1859 at 1904-1905 (paras G-A) ratio 16.
Having carefully examined the appellants’ arguments canvassed under issue no.1 I found that a convenient starting point for resolving this issue will be to reproduce the provisions of section 158(1) and (2) of the said Law. It says:-
“Section 158.
(1.) No suit shall be commenced against a Local Government until one month at least after a written notice of intention to commence the same has been served upon the Local Government by the intending plaintiff or his agent.
(2) Such notice shall state the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims.” (Underline mine for emphasis).
From the above provisions of the section, it will be seen that subsection (1) provides that one month notice of intention to sue must be given to a Local Government before an action is commenced, and sub-section(2) of the section provides particulars to be included in the notice.
In the present appeal we are only concerned with the provisions of subsection(2) upon which the trial court relied upon in striking out the appellant’s suit before it. The word” shall” as under lined above appears two times in the section.
It is settled that the word, “shall”, when used in an enactment is capable of bearing many meanings, that is, implying futurity or mandate, direction or giving permission. See Ifezue Vs. Mbadugha (1984) 1 SCNLR 427 at 456-7. In the present case has it been used in a mandatory sense or directory sense? If used in a mandatory sense then the action to be taken must obey or fulfill the mandate exactly, but if used in a directory sense then the action to be taken is to obey or
fulfill the directory substantially. See Wood-Ward Vs. Saysons (1875) L.R.10 C.P. 733 at 746; and State Vs. Ilori (1983) 1 SCNLR 94 at 110. In Liver-Pool Borough Bank Vs. Tuyner (1861) 30 L.J. Ch.379 at 657, it was held:
“No universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try and get at the real intention of the legislature by carefully attending to the whole scope of statute to be considered.”
It appears to me that the first “shall” in subsection (1) imports obligation.
No suit, therefore, could be commenced against the Local Government Until a period of one month expires after giving a prescribed notice. In other words, before suing the Local Government a notice of intention to commence the suit must be given to the Local Government. However, with regards to the second “shall”, I am of the view that it connotes direction in the sense in which it is used.
It describes the particulars to be contained in the notice of intention to sue. See Amadi Vs. N.N.P.C. (supra) at p.98.While the issuance of the notice by a prospective plaintiff is mandatory, the particulars to be included in the notice, which are:
(a) Cause of action,
(b) Claim.
(c) Place of abode of the intending plaintiff, and
(d) Relief to be claimed;
(e) appear to me to be directory. Under section 23 of the interpretation Act 1964 (now Cap.192 of the Laws of the Federation of Nigeria, 1990) provides:-
“Section 23.
Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purposes of the enactment by reason only of the difference if the difference is not in a material particular and is not calculated to mislead. ” (Underline mine for emphasis).
In his judgment, the learned trial judge held as follows:
“…. However, because of the decision reached in issue NO.1 and that is that the pre-action notice served on the 1st defendant by the plaintiffs is null and void, … ”
It is clear from the foregoing that the appellants’ action was struck out by the learned trial judge because the notice served on the respondent by the appellants did not, according to him, comply with the requirements of sub-section (2) of section 158 of the Law, particularly as it did not include the cause of action and the relief claimed) which are similar to the cause of action and relief upon which the appellants relied in commencing this action. The cause of action included in the notice was in respect of the 8 market buildings in Umuokpu Market which buildings belonged to the appellants and the respondent intends to eject them from, and at the same time, intends to re-allocate same to people other than the appellant. The appellants therefore, sought the court to restrain the respondent from doing so.
While on the other hand, the cause of the appellants’ actions in the present suit is in respect of the respondent’s action, destroying of the stores and goods of the appel1ants in Arthur Eze Avenue Market. So the cause of action and the reliefs are quite separate and distinct from each other.
Now could it rightly be held, as was done by the learned trial judge that, the fact that the particulars included in pre-action notice dated 22/2/99 had absolutely nothing to do with the particulars in the present suit, the notice is null and void? In other words, since the notice dated 22/2/99 gave different cause of action and different relief from the cause of action and the relief in the present suit, it is null and void?
It is significant that the requirements (i.e. the particulars) that have not been included in the notice, which I have decided to be directive, was partly met by the appellants as shown by the record. Could the missing particulars in the notice amount to “material particulars” and is “calculated to mislead” the defendant (respondent) as laid down by section 23 of the Interpretation Act?
I do consider the missing particulars namely, the cause of action and the relief to be claimed by the intending plaintiff, as “material particulars” to expressing the intention of the plaintiffs to sue the defendant. Perhaps the situation would have been different had the appellants failed to include their names and place of abode in the said notice.
It follows that, not all the requirement of section 158(2) of the Law Cap.85 have been met by the appellants. The notice of 22/2/99 therefore is bad and incompetent having failed to comply with section 158(2) of the law.
The proper pre-action notice is a letter usually given by the intending plaintiffs solicitor to the prospective defendant, giving him notice of intention to institute legal proceedings against him for the recovery of whatever money that was being owed to prospective plaintiffs, or to remedy whatever the cause of actions was, usually (as in this case after one month) failing which legal proceedings would be instituted. In the instant case, the said notice contained on page I of the record, cannot operate as a pre-action notice properly so called as it did not meet the requirements of section 158 (2) of the said Law.
Having reached this decision, perhaps, it is necessary that I should examined the appellants’ argument canvassed on waiver. In their brief of arguments, it was contended that non-service of a pre-action notice, where it is required by statute, is only an irregularity, which renders an action incompetent, and that irregularity can be waived by the defendant who fails to raise it, reliance was put on Nonye v. Anyichie (2005) (supra). Had the respondent (as defendant) waived his right in the circumstances of this case?
In Odua Investment Company Ltd. v. Joseph Taiwo Talaba (1997) 10 NWLR (Pt.523) 1 S.C. the Supreme Court held on the issue of “waiver” as follows:
“(6) Waiver – is the intentional and voluntary surrender or relinquishment of a know privilege and/or right. It is therefore, implies a dispensation or abandonment by the party waiving a right or
privilege which at his option, he could have insisted upon. See Arior h. Elemo (1983)1 S.C.N.L.R.1 (referred to and adopted).
(7) The guiding principle to determine whether the provisions of an enactment can be waived is to (8) determine whether such provisions are directory or mandatory. A breach of mandatory enactment renders what has been done null and void. But if the statute is merely directory, it is immaterial, so far as it relates to the validity of thing to be done, whether the provisions of the statute are accurately followed or not. An absolute in enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially (p.50 paras. F-G)”
In consideration of this point of whether or not the respondent had waived her rights after beings served with the notice, the appellants must show that the pre-action notice was valid and the respondent did infact relinquished her known right/ privilege.
In the present case there is no doubt that the appellants who initiated this civil process through the issuance of writ of summons as shown in the record of this appeal did not comply with the entire provisions of section 158 of the Law.
Therefore, the whole action at the trial was incompetent and the trial court lacks jurisdiction to entertain it. See A.G. Lagos State Vs. Dosunmu (1989) 3 NWLR (pt.111) 551. Therefore the question of the respondent waiving her right should not arise.
SECOND ISSUE
However, I proceed to discuss the issue of miscarriage of justice in the interest of completeness. The issue is whether the appellants suffered a miscarriage of justice because their case was struck out by the trial Court. In Devi Vs. Roy (1946) A.C. 508, Lord Thankerton, in the privy Council decision defined the words a “miscarriage of justice” to be:
“”.Such a departure from the rules which permeate all judicial Procedure as to make that which happened not in the proper sense of the word judicial Procedure at all.”
Again in the United States decision of Alcoll Vs. Davies, 343 p, 2″‘. 621, at 625-6, Vandyue P.J. adopted the test applied in People Vs. Watson, 292 P.201. 243 where it was said:
” … A miscarriage of justice should be declared only when the Court after an examination of the entire case, including the evidence, is of the opinion that it is reasonable probable that a result more favourable to the appealing party would have been reached in the absence of error. ”
There is miscarriage of justice only where there substantial errors in adjudication, with the resultant effect that the party relying on such errors may likely have a judgment in his favour.
Having determined the in validity of the notice, and struck out t he action without discussion of the merits of the action, it is my view that there was no miscarriage of justice occasioned on the appellants because of the striking out of their case.
SECOND ISSUE
I shall now proceed to deal with the second issue which deals with exemplary damages in which the appellants complained is small and were asking for the increase. It seems that the appellants in their brief of arguments are contending that the trial Court did not follow the guidelines for such award.
The short answer to this is that if exemplary damages are claimed, then such claim must be hinged on a competent action. In the instant case, the appellants action is declared incompetent, having been filed/ initiated not in accordance with statutory requirements prescribed by section 158 of the Law. This issue also resolves against the appellants.
In Conclusion therefore, I hold that there is totally no merit in the appeal, accordingly dismiss it with no costs.
Having dismissed the appeal and by virtue of section 16 of the Court of Appeal Act, 1976, this court has the power to exercise full jurisdiction over the proceedings in the trial court. In the instant case having decided that both the pre-action notice and action itself arc incompetent, and are struck out, by virtue of section 16 of this Court’s Act, it is my view, there is no basis for the award of exemplary damages to the tune of N20 million naira. Such award is hereby set aside.