CHIEF (HON) OBONG SMITH UDOEKA & ORS V. ISIKOBO JOHN ISIKOBOO & ORS (2012)

CHIEF (HON) OBONG SMITH UDOEKA & ORS V. ISIKOBO JOHN ISIKOBOO & ORS

(2012)LCN/5512(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of June, 2012

CA/C/155/2010

RATIO

APPEAL: ATTITUDE OF COURT TOWARDS PROLIFERATION OF ISSUES FOR DETERMINATION

A party is not permitted to formulate more issues than the grounds of appeal filed. See Ishie v. Mowanso (2000) 13 NWLR (pt. 684) 279; Compt. NPS vs. Adekanye (No.2) (2000) 15 NWLR (pt.790)318. PER ISAIAH OLUFEMI AKEJU, J.C.A.

JURISDICTION: FUNDAMENTAL NATURE OF JURISDICTION

It is well known in law that jurisdiction of a court is threshold, and fundamental. Where therefore there is a challenge to the jurisdiction of court even where that challenge is palpably frivolous, the court has a bounden duty to treat it as a preliminary issue and settle it one way or the other before going into any other matter. The reason obviously is that any proceedings conducted without jurisdiction is a nullity no matter how well it might seem to have been complex conducted. See Attorney General of Lagos State vs. Dosumu (1989) 3 NWLR (Pt.766) 272.

It is for the reason of this its fundamental nature that a challenge to jurisdiction must be decided expeditiously. See Nwankwuo vs. Yar’adua (2010) vol. 3 (Pt. IV) MJSC 1. PER ISAIAH OLUFEMI AKEJU, J.C.A.

PROCEDURE: PURPOSE OF A PRELIMINARY OBJECTION

The purpose of a preliminary objection is to move the court to put an end to the suit without going into trial, and the court has a duty to consider the objection at the earliest possible time before considering the substantive action. See Onyemeh & Ors vs. Egbuchulam & Ors (1996) 4 SCNJ 235; Yaro vs. Arewa construction Ltd. & ors (2007) 6 SCNJ 418. PER ISAIAH OLUFEMI AKEJU, J.C.A.

EVIDENCE: BURDEN OF PROOF IN CIVIL PROCEEDINGS

In any civil proceeding by virtue of section 132 of the Evidence Act, 2011 (amended) the burden of proof is on the person who would fail if no evidence at all were given on either side. The appellants owed a duty to save their suit from being terminated at the preliminary stage by showing evidence of service of the process, rather than relying of paragraph 24 of the Statement of Claim. It is noted that at no stage of the proceeding including this appeal has any copy of the notice allegedly issued by the appellants been shown to the court. PER ISAIAH OLUFEMI AKEJU, J.C.A.

EVIDENCE: ON WHOM LIES THE BURDEN TO ESTABLISH BREACH OF FAIR HEARING

The law is that it is the party, alleging breach or denial of fair hearing that has the burden to establish the denial. See Maikyo v. Itolo (2007) 7 NWLR (Pt. 1034). PER ISAIAH OLUFEMI AKEJU, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

1. CHIEF (HON) OBONG SMITH UDOEKA

2. CHIEF JAMES UKO EKOP

3. CHIEF IMO BASSEY ABRAHAM

4. CHIEF OKON HUTTON AKPAN

(For themselves and on behalf of Traditional Kingmakers and Ruling Family of Okoroutip village, Ibeno Ibeno L.G.A.) – Appellant(s)

AND

1. ISIKOBO JOHN ISIKOBOO

2. IBENO TRADITIONAL RULERS COUNCIL

3. COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS, AKS

4. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, AKS – Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): The appellants as plaintiffs commenced suit No. HEK/51/2008 at the High Court of Akwa Ibom State by filing their writ of summons at the Eket Division on 12th May, 2008 with a statement of claim of 28 paragraphs. As endorsed on the writ and averred in paragraph 28 of the statement of Claim, the plaintiffs claim against the defendants as follows:

(a) A declaration that the 1st plaintiff being a descendant of the ruling family in Okoroutip village is entitled to ascend the royal stool of the village headship of Okoroutip, Ibeno Local Government Area, having been duly selected and presented by the royal kingmakers of Okoroutip village, Ibeno Local Government Area.

(b) A declaration that by the selection and presentation of the 1st plaintiff by the royal and ruling family in Okoroutip village to the entire Okoroutip village and the subsequent presentation of him to the 2nd Defendant as the village head elect, no vacancy existed for the declaration of dispute by the 2nd Defendant.

(c) An order that since there was no dispute in the selection and presentation of the 1st plaintiff and since no person from the royal and ruling family in Okoroutip village had challenged the selection of the 1st plaintiff as the village head, the 2nd Defendant had no powers to have declared a dispute as she did and so the proceedings of the 2nd Defendant’s council was a nullity and void.

(d) An order that only a member of Essien Owong Afaha, Okoroutip village has the right to ascend the headship of Okoroutip village in Ibene LGA and so official recognition be given to the 1st plaintiff, a duly selected and presented village head elect of Okoroutip village.

(e) An order that the 2nd Defendant has no iota of right to have declared the selection of the 1st Plaintiff as the village head elect disputed but to have forwarded the name of the 1st plaintiff to the 3rd Defendant for accordance of official recognition as the village head by the Executive Governor of Akwa Ibom State.

(f) An order of injunction restraining the 3rd defendant from according official recognition to the 1st Defendant as the village head of Okoroutip village, he not being a member of the royal and ruling family of Okoroutip village and being a serving civil servant when the 2nd Defendant purportedly declared the selection of the 1st plaintiff disputed the dispute said to be between the 1st plaintiff and 1st Defendant.

On 30th June, 2009, a Notice of Preliminary Objection was filed by the 3rd and 4th respondents challenging the jurisdiction of the trial court on the ground that:

“This case is not brought in compliance with the mandatory condition precedent as contained in Section 32 (1) & (2) of the Traditional Rulers Low Cap 134 vol. 6 Laws of Akwa Ibom State 2000.”

After taking arguments on the preliminary objection, the learned trial judge in a considered ruling delivered on 22nd July 2010 upheld the objection and consequently struck out the suit. Aggrieved by the ruling, the plaintiffs (now appellants) filed Notice and Grounds of Appeal on 10th August, 2010 with 3 grounds of appeal. The Appellants’ Brief of Argument prepared by A. A. Asuquo Esq. was filed on 21/10/2010 while 3rd – 4th defendants (now called the respondents) filed the 3rd and 4th Respondents Brief of Argument on 27th January, 2011. The appellants’ Reply Brief was filed on 7th February, 2011.

The appellants formulated the following issues for determination:

1. Whether having pleaded pre-action notice in their statement of claim, the Plaintiffs/Appellants were bound to proof the issuance and service of the said Notice at a preliminary stage as reasoned by the learned trial judge in his ruling.

2. Whether the striking out of the suit by the trial judge when the Plaintiffs/Appellants actually pleaded pre-hearing notice in paragraph 24 of their statement of claim without affording them opportunity to lead evidence in proof of service of the said pre-hearing notice does not amount to denial of fair hearing to them (Plaintiffs/Appellants).

For the respondents, the following issues were distilled:

1. Whether merely pleading in the statement of claim that the appellants counsel wrote to the Governor giving notice of intention to sue, satisfied the requirement of Section 32 (1) (b).

2. Whether the 3rd and 4th respondents were entitled to raise objection as they did when it became obvious to them that the pre-action notice was not indeed served on the Governor as required by law, and whether service of that notice became and issue by that preliminary objection.

3. Whether the 3rd and 4th respondents were right to raise their preliminary objection without first filing their statement of defence.

4. Whether the lower court was right to consider the 3rd and 4th respondents objection, which challenged the jurisdiction to hear the suit.

5. Whether the appellants who alleged the existence and service of pre-action notice on the Governor, were duly bound to prove same, and in the absence of such proof, whether the lower court was right to hold that pre-action notice was not served as required by law.

Before going into arguments and consideration of the issues formulated, it is pertinent to state that although the appellants filed three grounds of appeal and distilled two issues therefrom, the respondents who did not file a cross appeal, have formulated five issues for determination, a case of the sympathizer crying more than the bereaved.

A party is not permitted to formulate more issues than the grounds of appeal filed. See Ishie v. Mowanso (2000) 13 NWLR (pt. 684) 279; Compt. NPS vs. Adekanye (No.2) (2000) 15 NWLR (pt.790)318.

The consideration and determination of this appeal will be based on the two issues formulated by the appellants which I find to be quite simple, direct and still cover the grounds of appeal.

The grievance of the appellants is the striking out of their suit by the lower court on the finding or conclusion that they failed to satisfy the court that they served pre-action notice on the respondents before commencing their action.

The learned counsel for appellants contended on issue 1 that the appellants pleaded the pre-action notice in paragraph 24 of the Statement of Claim and issued notice to produce on the respondents but the respondents denied service of any such pre-action notice.

The appellants have contended that since they pleaded the letter to the Governor, the learned trial judge was wrong to have struck out the suit on the basis of non-service of pre-action notice when the case did not proceed to trial, the respondents were expected to file their defence and plead that fact and thereby make it an issue at the trial. He cited Nlewedim vs. Uduma (1995) 30 LRCN 113 on the principles applicable to raising issues on documents that are contentious.

It was submitted that the learned trial judge erroneously applied the decision in Katsina Local Authority v. Makudawa (1971) NMLR 100 to strike out the appellants’ case when the only effect the case ought to have is to take evidence to establish the service of the pre-action notice.

On the second issue it was submitted that the striking out of the suit at a preliminary stage was a denial of fair hearing as the court should not shut out a litigant, citing chime vs. Inyia (2009) 2 NWLR (pt. 1124) 1; Olufeagba v. Abdul Raheem (2009) 18 NWLR (pt. 1173) 385.

The respondents based their argument on section 32 (1) of the Traditional Rulers Law cap 134 vol. 6, Laws of Akwa Ibom State, 2000 which makes service of pre-action notice a mandatory step before commencing an action in matters thereunder. It was submitted that where pre-action notice has not been served the Akwa Ibom State High court lacks jurisdiction by virtue of order 5 Rule 1 of Akwa Ibom state High court (Civil Procedure) Rules and the decisions in INC. v. Mobil Oil (Nig) Plc (1999) 5 NWLR (pt.601) 9; Mobil vs. LASEPA (2003) 104 LRCN 240. The respondents further contended that the learned trial judge was right to have struck out the suit for non-compliance with a condition precedent since the appellants failed to satisfy the court that any notice was served; citing Shugaba v. UBN plc (1999) 11 NWLR (pt. 627) 465; Ozobia vs. Anah (1999) 5 NWLR (pt.601) 1; INC vs. Mobil Oil Nig. Plc (1999) 5 NWLR (Pt. 601) 1314. It was submitted also that an objection to jurisdiction can be raised without any statement of defence on the authority of NDIC vs. Central Bank of Nigeria (2007) 7 NWLR (Pt.766) 272; Arjay Ltd. vs. Airline Management Support Ltd. (2003) 7 NWLR (Pt. 820) 570.

In the Appellants Reply Brief, the appellants’ counsel agreed with the principle of law advanced by the respondents but contended that the authorities cited in support thereof cannot assist them. The learned counsel dwelt extensively on the case of Mobil vs. LASPA (2003) 104 LRCN 240 which according to counsel, supports the appellants’ case. He submitted that the trial judge made pronouncement on the issue of jurisdiction that would have been settled by oral evidence.

I had set out the claim of the appellants before the lower court. The claim concerns the recognition or withdrawal of recognition of the Headship or Rulership of Okoroutip village in Ibeno Local Government Area of Akwa Ibom State. It is not in dispute that being such an action the provisions of Traditional Rulers Law of Akwa Ibom State (now called Cap. 134) are relevant and applicable thereto and Ipso facto section 32 (1 & 2) of the TRL applies with full force.

Section 32 (1) of Cap. 134 is to the effect that a person bringing any action against the Governor or any functionary charged with selection, installation, recognition or withdrawal of recognition of a Paramount Ruler, Clan or village head can only commence such an action after the expiration of at least one month after written notice of intention to sue has been served upon the Governor, while sub-section (2) provides the particulars to be supplied in the notice of intention to sue.

For all purposes and intention, section 32 of cap, 134 has provided for the service of a pre-action notice as a condition precedent to the commencement of action in matters stated therein. The procedure of a pre-action notice is designed to give a defendant a fore knowledge of the impending suit by a plaintiff so as to allow the defendant an opportunity of reviewing his position as far as the action is concerned and to possibly explore amicable settlement without recourse to the rigours of the litigation process. See NDC Ltd. vs. A.S.W.B. (2008) All FWLR (pt. 422) 1052; Feed & Food Farms (Nig) Ltd. vs. NNPC (2009) All FWLR (pt. 484) 1436.

A pre-action notice, as described by Oguntade JSC in Ntiero vs. N.P.A. (2008) All FWLR (pt. 430) 689 “connotes some form of a legal notification or information required by law or imparted by operation of law contained in an enactment agreement or contract which requires compliance by the person who is under legal duty to put on notice the person to be notified before the commencement of any legal action against such a person”.

Where the law provides for pre-action notice, the person conferred with the right to receive such a notice may waive the right and refuse to raise any failure to serve the notice, in which case it is an irregularity that does not vitiate the action, but where such a party decides not to waive the right and insists on being served, then it is an issue of failure to comply with condition precedent which goes to the jurisdiction of the court. See Mobil Producing Nig. Unltd. V. LASEPA (2002) 12 SCNJ; Nnonye v. Anyiriche (2005) 124 LRCN 357.

In the instant case the respondents did not waive the right to be served the pre-action notice under Section 32 of Cap.134. They sought the order striking out the appellants’ suit for non-compliance therewith as a condition precedent. It therefore became an issue of the competence of the suit, and ipso facto the jurisdiction of the trial court to entertain the suit. It is a basic principle of law that for a court to be competent to exercise its judicial powers over any matter before it, such an action must inter alia, have been commenced by due process and in full compliance with any condition precedent to the filing of such an action. See Madukolu v. Nkemdilim (1962) 1 All NLR 357; N.E.P.A. v. Eze (2001) 3 NWLR (Pt. 701) 606; Atolagbe v. Awuni (1999) 1 SCNJ, A.G. Anambra v. A.G. Fed. (1993) 6 NWLR (Pt. 302) 692.

The preliminary objection of the respondents constituted a challenge to the jurisdiction of the lower court.

It is for the reason of this its fundamental nature that a challenge to jurisdiction must be decided expeditiously. See Nwankwuo vs. Yar’adua (2010) vol. 3 (Pt. IV) MJSC 1.

The appellants, counsel has made a heavy weather of the fact that the appellants had filed a statement of claim in which the matter of pre-action notice was pleaded in paragraph 24 and it was incumbent on the defendants (respondents) to file a statement of Defence and join issues to be tried upon oral evidence.

It is a fundamental principle that the issue of jurisdiction can be raised at any stage of the proceedings and may be raised by any means or in any manner, it may even be raised by the court suo motu. See Military Governor, Ondo State v. Kolawole (2008) All FWLR (Pt.445) 1805.

In the instant case where the respondents’ alleged non-issuance of the pre-action notice was raised as a preliminary issue, the answer of the appellants ought to be the production of at least a copy of the notice allegedly served and not in somehow compelling the respondents to file a defence. The appellants certainly had the burden of satisfying the court that the notice was served on the respondents. In any civil proceeding by virtue of section 132 of the Evidence Act, 2011 (amended) the burden of proof is on the person who would fail if no evidence at all were given on either side. The appellants owed a duty to save their suit from being terminated at the preliminary stage by showing evidence of service of the process, rather than relying of paragraph 24 of the Statement of Claim. It is noted that at no stage of the proceeding including this appeal has any copy of the notice allegedly issued by the appellants been shown to the court.

I resolve issue 1 against the appellants.

The appellants have raised the denial of fair hearing as their second issue. The law is that it is the party, alleging breach or denial of fair hearing that has the burden to establish the denial. See Maikyo v. Itolo (2007) 7 NWLR (Pt. 1034).In the instant case the appellants who were given ample opportunity to establish to the satisfaction of court that they served pre-action notice as required by section 32 of cap. 134 but failed to do so, and the lower copy of the notice allegedly issued by the appellants been shown to the court terminated the suit upon the respondents’ well founded objection cannot be heard to complain of lack of fair hearing. It is every party to an action that is entitled to fair hearing, and it does not amount to fair hearing for a court to retain an incompetent action in the name of fair hearing.

I resolve the second issue also against the appellants.

On the whole this appeal is grossly unmeritorious and it is accordingly dismissed.

No order as to costs.

MOHAMMED LAWAL GARBA, J.C.A.: A draft of the lead judgment delivered by my learned brother I. O. Akeju, JCA, in this appeal, was read by me before today. His Lordship has lucidly considered the two (2) issues submitted by the Appellants for determination and all the views expressed thereon are the same with mine.

For the reasons set out in the lead judgment which I adopt, I join in dismissing the appeal for wanting in merit.

Parties are to bear their respective costs of prosecuting the appeal.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. I am in agreement with the requirements of a pre-action notice as set out in his judgment.

The idea behind a pre-action notice is to allow the proposed defendant time to consider whether to make reparation to the intending plaintiff or not. Gbadamosi V. Nig Railway Corporation (2007) All FWLR pt 367 page 855. The purpose of serving pre-action notice on a party is that, such a party is not taken by surprise and to allow the party to have adequate time to prepare to deal with the claim against it. Amadi V. NNPC (2000) 12 NWLR pt 780 page 116.

The courts have however held that non-compliance with the requirement of a pre-action notice does not take away the right of access to the court from the litigants; neither does it defeat his cause of action.

Non-service of pre-action notice merely puts the jurisdiction of a court on hold pending compliance with the pre-condition. Aro vs. Lagos Island LGC (2002) 4 NWLR pt 757 page 385, Nnonye vs. Anyichie (2005) 2 NWLR pt 910 page 623. In Eti-Osa Local Government v. Jegede (2007) 10 NWLR pt 1043 page 537- 623. The court held as follows:

“Thus the effect of non-service of a pre-action notice where it is statutorily required is only an irregularity which however renders an action incompetent. It follows therefore that the irregularity can be waived by a defendant who fails to raise it either by motion or plead it in the statement of defence. If, therefore a defendant refuses to waive it and raises it, then the issue becomes a condition precedent which must be met before the court could exercise its jurisdiction. However, where a defendant failed to plead the issue of pre-action notice and did not raise same timeously, the presumption of the law is that he has waived his right to rely on same.”

For this and the fuller reasons of my learned brother in the lead judgment, I too dismiss the appeal it being unmeritorious. I also abide with the order as to costs contained therein.

Appearances

A. A. Asuquo Esq.For Appellant

AND

F. J. Etim Esq.For Respondent