ABIA STATE UNIVERSITY v. UWADIEGWU OTOSI (2010)

ABIA STATE UNIVERSITY v. UWADIEGWU OTOSI

(2010)LCN/3805(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 18th day of May, 2010

CA/PH/82/2008

RATIO

WORDS AND PHRASES: MEANING OF HOWEVER AS CONTAINED IN SECTION 36 OF THE ABIA STATE UNIVERSITY LAW
Blacks Law Dictionary 8th Edition page 757 defines “however” as “in whatever way”. In Oxford Advanced Learned Dictionary 6th Edition “however” was defined as an adjective or adverb to mean “to whatever degree”. It is defined therein as “used to introduce a statement that contrasts with something that has just been said.” After considering the various interpretations of the phrase “so however” I am of the humble view that the words “so however” in the context in which it was used in the law can only amount to “provided” – thus it has the effect of a proviso. The effect of a proviso is to cut down or qualify general provisions or create exceptions or relax limitations or throw more light on any ambiguous aspect on an enactment. See FORTUNE INTERNATIONAL BANK PLC v. PEGASUS TRADING OFFICE (GMBH) (2004) 6 NWLR Pt. 869 Pg. 226. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
WORDS AND PHRASES: MEANING OF PROCEEDINGS
What does the word “proceedings” mean? The Black’s Law Dictionary 8th Edition page 1241 defines a “proceeding” as
“1. The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment.
2. Any procedural means for seeking redress from a tribunal or agency.
3. An act or step that is part of a larger action.
4. The business conducted by a court or other official body….”(underling mine)
A suit is defined by the Black’s law Dictionary 8th Edition as “any proceeding by a party or parties against another in a court of law.” What I mean to say is that in essence, suit and proceedings mean the same thing.
Now, Section 38(2) of the Abia State University Law states as follows:
“In this and the preceding section, “suit” includes action or any civil proceeding commenced by Writ of Summons, or in such manner as may be prescribed by rules of court but does not include criminal proceedings.” (underlining mine)
Thus the meaning of suit is not limited to actions which are begun by writ of summons but includes them. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
ACTION: NATURE, PURPOSE AND IMPORT OF PRE-ACTION
I have also read MOBIL PRODUCING UNLIMITED v. LASEPA supra cited by Appellant’s counsel. In that case, the Supreme Court explained the nature, purpose and import of pre-action notice. At page 33 of the NWLR Pt. 798, the Supreme Court held as follows:
“Service of a pre-action notice on the party intended to be sued pursuant to a statute is at best, a procedural requirement and not an issue of substantive law on which the rights of the Plaintiff depend. It is not an integral part of the process of initiating proceedings. A party who had served a pre-action notice is not obliged to commence proceedings at all, or, barring any limitation period, to commence one within any time after the time prescribed for pre-action notices”
The above general statement of the law would be relevant but for the way the framers of the Abia State University Law decided to couch S.36(2) of the law. It does not make the pre-action notice one that merely makes the Respondent an “intended Plaintiff” but makes him willy nilly and perforce a Plaintiff as soon as he serves a pre-action notice. That is the implication of the second part of S.36(2). PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES:

ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

Between

ABIA STATE UNIVERSITY, UTURU – Appellant(s)

AND

UWADIEGWU OTOSI – Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice N. C. Otti of the High Court of Abia State, Isukwuanto Division sitting at Aba delivered on 18th day of May, 2005 wherein judgment was entered for the Plaintiff.
Dissatisfied, the Appellant filed an appeal in this court. Herein the Respondent at the lower court is the Appellant and the erstwhile Plaintiff the Respondent. The facts that led to this appeal are as follows:
The Respondent was a staff of the Appellant. By a letter Ref. No. PD/SS/PF/505 dated 16th December, 1998, the appointment of the Respondent with the Appellant was terminated. Consequently, the Respondent instituted an action at the High Court of Abia State, Isukwuato Division against the Appellant. The Respondent’s Writ of Summons was filed at the Registry of the High Court on 26th May, 1999. The Respondent claimed against the Appellant as follows:
“i. A declaration that the termination of the appointment of the Plaintiff by the Defendant by a letter dated the 16th day of December, 1998 ref. No.PD/SS/PF/505 headed “TERMINATION OF APPOINTMENT” was without lawful justification and null and void.
ii. An order setting aside the said letter of termination of the Plaintiff with (sic) the Defendant.
iii. An order reinstating the Plaintiff to his position as a staff of the Defendant’s Institution with effect from 16th December, 1998 and for payment to him of all his salaries and other basic entitlement till date OR IN THE ALTERNATIVE TO RELIEF (iii) payment to the Plaintiff, the sum of N=1,000,000.00 (One Million Naira) only being special and general damages for unlawful termination of Plaintiff’s appointment.” See pages 5-7 of the Records.”

Pleadings were exchanged and issues joined. The Respondent testified on his own behalf and called a witness. The Appellant called one witness. At the end of the trial, the learned trial judge gave judgment to the Respondent in terms of all the heads of claim including reinstatement of the Respondent.
Dissatisfied, the Appellant filed this appeal. The Appellant’s brief was dated 29/2/08 and was filed on 3/3/08. The Respondent’s brief was dated 2/10/08 filed on 6/10/08 and deemed filed on 5/3/09.
From the two grounds of appeal, the Appellant identified one sole issue for determination adopted in different words by the Respondent’s counsel which I will also consider to determine this appeal. It is set out below:
“Whether having regard to the provisions of Section 36(1) and (2) of Abia State University Law Cap. 24 Laws of Abia State which is similar to Section 37(2) of Abia State University Law 1995, the instant suit was not filed out of time thus rendering it incompetent, statute barred and not maintainable.”
To put it more lucidly, the issue is whether the computation of 3 (three) months under S.36(2) of the Abia State University Law Cap. 24 Laws of Abia State Vol. I within which a suit should be commenced shall start to run from the date the cause of action arose or from the date the pre-action notice was served.
In the Appellant’s brief of argument, counsel conceded the following facts which are not in dispute:
a) The Respondent’s appointment was terminated by a letter dated 16/12/98 and admitted in Evidence as Exhibit C.
b) The pre-action Notice dated 02/03/99 was served on the VC of the Appellant on 10/03/99 and was admitted in evidence as Exhibit E.
c) The Writ of Summons was issued on 26/05/99.

Appellant’s counsel submitted that the learned trial judge was erroneous in holding the view that the three months stipulated under S.36(2) within which to commence a suit against the Appellant will start to run from the date the pre-action notice was served and not the date the cause of action arose. Counsel argued that S.36(1) of the Abia State University Law makes it clear that there must be one month at least after the service of the Notice pursuant to S.36(1) of the Law before an action or suit against the university can commence or be commenced. Counsel further argued that it is not automatic that once the notice is served on the Vice-Chancellor, the action or suit is deemed to have commenced and that the word “shall” used in the said S.36(1) makes it mandatory that any suit against the university or against any of its bodies can only commence one month at least after service of the pre-action notice on the Vice Chancellor.
Counsel submitted that it is therefore erroneous as held by the learned trial judge that once the pre-action notice – Exh. E was served on the Vice-Chancellor, the suit is deemed to have commenced. Counsel submitted that the service of the pre-action notice on the Vice Chancellor under subsection (1) of S.36 of the Abia State University Law is not the commencement of such proceedings under subsection 2 of S.36 of the Law and this can only lead to the commencement of the suit. Appellant’s counsel emphasized that the learned trial judge construed the phrase “commencement of such proceedings” in S.36(2) as being synonymous with “commencement of such suit” and concluded that it was a wrong construction. He submitted that the use of the phrase “such proceedings” and not “such suit” is instructive and makes the difference.
Counsel cited S.38(2) of the Abia State University Law which provides as follows:
“action or any civil proceeding commenced by Writ of Summons, or in such a manner as may be prescribed by rules of court but does not include criminal proceedings.”
Counsel argued that a suit is commenced when the writ of summons or any originating process such as originating summons, motions or petition is filed in court and appropriate fees paid. He cited order 1 rule 1 (2) of the Abia State High Court (Civil Procedure) Rules 2001; Order 5 rule 14 of the Abia State High Court (Civil Procedure) Rules. He also relied on the following case law: AJIBOLA v. SOGEKE (2001) 23 WRN 68 at 69; ALAWODE v. M.A. SEMOH (1959) 1 NSCC 36; MOBIL PRODUCING UNLIMITED v. LASEPA (2002) 18 NWLR Pt.798 Pg. 1 at Pg. 36; KALU v. C.O.B. (1972) 12 ECSLR 738 at 740.
Counsel submitted that in the instant case, the Writ of Summons was filed on 26/5/99.Â Â The filing of the said Writ of Summons on 26/5/99 was the date the suit was commenced and not on 10/3/99 when Exhibit E was served. The termination of the Respondent’s appointment was on 16/12/98 vide Exh.C which was the act. S.36(2) of the Law provides that no suit shall be instituted against the university or any of its bodies etc unless it is commenced within three months from the occurrence of the act, neglect or default etc.
Counsel argued that the date of the occurrence of the act was 16/12/98 and three months from 16/12/98 would be 15/3/99, and from 16/12/98 to 26/05/99 was a period of five months and eleven days. Going by the provision of S.36(2) of the Law, the Writ of Summons ought to have been filed on or before 15/3/99 but was filed more than five months from the prescribed period. The suit having been filed or instituted outside the period of three months as required by S. 36(2) of the ABSU Law, is, counsel argued, rendered incompetent. Therefore being incompetent, the lower court lacked jurisdiction to entertain same. He cited the following cases:
ASUQUO HONG ITA & 4 ORS. v. CHIEF AKWA EDEM ARCHIBONG & 5 ORS. (1995) 4 NWLR Pt. 387 Pg. 84 at Pg. 97; JOHN EBOIGBE v. NNPC (1994) 4 SCNJ Pt. 1 Pg. 71 at Pg. 77; ELABANJO v. DAWODU (2006) 50 WRN 79; BAKARE v. NR (2007) 17 NWLR Pt.1064 Pg. 606; JUSTICE J. U. OBASSE v. NJC (2007) 39 WRN 114; ABIOLA v. OLAWOYE (2003) 39 WRN 177; ODUBEKO v. FOWLER (1993) 3 NWLR Pt.308 Pg. 637.
In answer, learned Respondent’s counsel argued that the crucial issue for resolution is the special provision in S.36(2) which ends with the following:
“so however that any notice served pursuant to subsection (1) of this section shall be deemed to be commencement of such proceedings”.
Respondent’s counsel argued that the trial court was in order in the interpretation of S.36(1) and (2) of the Abia State University Law when it held that in the computation of the three months within which the Respondent brought this action, it is the date the pre-action notice was issued that counts and not when the Writ of Summons was issued. Counsel then submitted that MOBIL PRODUCsING UNLIMITED v. LASEPA (2002) 18 NWLR Pt.798; JOHN EBOIGBE v. NNPC (1994) 4 SCNJ Pt. 1 Pg. 71Â Â are inapplicable in the instant case since those decisions were based purely on the interpretation of statutes that were clearly different from S.36(1) and (2) of the Abia State University Law 1995. Counsel submitted that the provision of S.36(1) and (2) are clear and unambiguous. Where the words of a statute accurately express the intention of the lawmaker effect must be given to them. He cited ABIOYE v. YAKUBU (1991) 3 LRCN 1037, 1118 ratio II. He argued that the intention of the lawmaker in enacting S.36(1) and (2) of the Abia State University Law 1995 is that the computation of the three month period within which an aggrieved person can bring an action must be calculated to include the date pre-action notice is issued and opined that interpretation as the plain, ordinary grammatical meaning of the law. He cited LAWAL v. G.B. OLLIVANT (1972) 3 SC 124, AYA v. HENSHAW (1972) 5 SC 87 cited with approval in ABIOYE v. YAKUBU (supra) at Pg. 1121. He submitted that the pre-action notice is the foundation and live-wire of this suit, without which the court cannot assume jurisdiction. It is an important condition precedent to the assumption of jurisdiction. He cited MADUKOLU v. NKEMDILIM (1962) ANLR 587.
Counsel submitted that the provisions of Order 1 rule 1(2) of the Abia State High Court (Civil Procedure) Rules 2001 is made subject to ‘any act or law’ such as the Abia State University Law with respect to the process of initiating actions in court. He argued that the word “may” allows for other steps or actions that are complementary to any step taken in court. He submitted that the provisions of Order 1 rule 1(2) of the Abia State High Court (Civil Procedure) Rules being made subject to Abia State University Law, therefore, the action commenced through the pre-action notice in accordance with S.36(1) & (2) of the Abia State University Law is valid. He argued that the suit was commenced on 02/03/99 when the Respondent issued the pre-action notice and not 26/05/99 when the Writ of Summons was issued. This is in keeping with the clear provisions of the Abia State University Law 1995 and Order 1 rule 1(2) of the Abia State High Court (Civil Procedure) Rules 2001. Following from the above therefore, counsel concluded that the instant suit was initiated by due process of law, and therefore competent.
It is my humble view that this sole issue clearly turns on the interpretation of S.36(1) & 36(2) of the Abia State University Law Cap. 24 Laws of Abia State Vol.1 (1991-1997).
Now, S.36(1) & 36(2) of the hitherto mentioned law state as follows:
“36(1) No suit shall be commenced against the university or any of its bodies until one month at least after written notice of intention to commence the same shall have been served on the Vice-Chancellor by the intending Plaintiff or his agent and such notice shall clearly state the cause of motion, the particulars of claim, the name and place of abode of the intending Plaintiff and the relief he claims.
S.36(2) No suit against the university or against any of its bodies or against any member, officer or employee thereof respecting any act, neglect or default done or omitted in his capacity as such, shall be instituted in any court unless it is commenced within three months from the occurrence or the act, neglect or default or in the case of continuance of damage or injury within 3 (three) months immediately after the cessation thereof, so however that any notice served pursuant to subsection (1) of this section shall be deemed to be commencement of such proceedings” (underlining mine for emphasis).
The interpretation of the portion underlined is the gravamen of this appeal.
On pages 90-91 of the record, the learned trial judge held thus:
“It is not in doubt what the provision is saying with regards to when time begins to run. The three months stipulated in subsection 2 of Section 37 will begin to run after Written Notice of Intention to commence the action shall have been served. Exhibit C which gave rise to this suit is dated 16/12/98. If there had been no pre-action notice, three months thereafter ends on the 15/03/99. The evidence before this court is that Exhibit E – the pre-action notice dated 02/03/99, which I have found to be valid, was served on the VC on the 10/03/99, well within the three months limitation period given by subsection (2) of Section 37. But Section 37(1) says a suit can only be commenced at least one month after written notice is served.”His Lordship thereafter concluded thus:
“Since the computation of the three months under subsection 2 of S.37 clearly includes the day the pre-action notice was served, it is my view that despite the fact that the originating processes in the form of Writ of Summons was issued on the 26/5/99, five months after the cause of action through Exhibit C arose, the pre-action notice Exhibit E gives the Writ of Summons its validity. In effect it is not on the day the Writ of Summons was issued that counts in the computation of the limitation period, but rather, the day pre-action notice was given and served. Therefore the action was commenced within the limitation period provided for in S.37 of the Abia State University Law and I so hold.”
Now, S.36(1) is quite clear and is to the effect that no suit shall be commenced against the university until a month after a notice of intention to commence same has been served on the Vice-Chancellor. That is to say no writ of summons can be filed by the complainant until a month after serving the Vice-Chancellor with the pre-action notice.
S.36(2) is the tricky one. The subsection can be broken into two parts. At the risk of being repetitive I will repeat the provision while emphasizing the two parts. S.36(2) – 1st part:
No suit against the university or against any of its bodies or against any member, officer or employee thereof respecting any act, neglect or default done or omitted in his capacity as such, shall or instituted in any court unless it is commenced within three months from the occurrence of the act, neglect or default or in the case of continuance of damages or injury within three months immediately after the cessation thereof,
2nd part:
So however that any notice served pursuant to subsection (1) of this section shall be deemed to be commencement of such proceedings.
My humble view is that the first part of S.36(2) is quite straight forward and is to the effect that no action can be commenced after three months from the occurrence of the event or act which is the subject of complaint.
Thereafter in the 2nd part, the law states that any notice served – that is the pre-action notice, shall be deemed to be commencement of such proceedings. The two important phrases are “so however” and “such proceedings.”
Blacks Law Dictionary 8th Edition page 757 defines “however” as “in whatever way”. In Oxford Advanced Learned Dictionary 6th Edition “however” was defined as an adjective or adverb to mean “to whatever degree”. It is defined therein as “used to introduce a statement that contrasts with something that has just been said.” After considering the various interpretations of the phrase “so however” I am of the humble view that the words “so however” in the context in which it was used in the law can only amount to “provided” – thus it has the effect of a proviso. The effect of a proviso is to cut down or qualify general provisions or create exceptions or relax limitations or throw more light on any ambiguous aspect on an enactment. See FORTUNE INTERNATIONAL BANK PLC v. PEGASUS TRADING OFFICE (GMBH) (2004) 6 NWLR Pt. 869 Pg. 226.

What does the word “proceedings” mean? The Black’s Law Dictionary 8th Edition page 1241 defines a “proceeding” as
“1. The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment.
2. Any procedural means for seeking redress from a tribunal or agency.
3. An act or step that is part of a larger action.
4. The business conducted by a court or other official body….”(underling mine)
A suit is defined by the Black’s law Dictionary 8th Edition as “any proceeding by a party or parties against another in a court of law.” What I mean to say is that in essence, suit and proceedings mean the same thing.
Now, Section 38(2) of the Abia State University Law states as follows:
“In this and the preceding section, “suit” includes action or any civil proceeding commenced by Writ of Summons, or in such manner as may be prescribed by rules of court but does not include criminal proceedings.” (underlining mine)
Thus the meaning of suit is not limited to actions which are begun by writ of summons but includes them.
I agree with the learned Respondent’s counsel that Order 1 rule 1(2) of the Abia State High Court (Civil Procedure) Rules 2001 is made subject to “any act or law” such as the Abia State University Law 1995. It is set out below:
“Subject to the provision of any act or law, civil proceeding may begun by Writ, originating summons, originating motions or summons as hereinafter provided” (underlining mine for emphasis)
The implication of the above conclusion is that the word “proceeding” in the 2nd part of the S.36(2) is synonymous with the word “suit” in the 1st part of the same section and thus the legislature clearly meant that the suit commences with the pre-action notice and if the pre-action notice is served within 3 months, the suit/proceedings would be within time.
The argument of learned Appellant’s counsel would have been unimpeachable if the provision were the normal limitation provision. That is, that limitation time starts to run from the time the cause of action arose. The pre-action notice must be served on the Respondent at least one month before a suit is filed in court. This is to give the Respondent time to know how to respond to the threat of litigation. Whether to settle or to go court. Also a suit must be filed within three months when the cause of action arose. There are a plethora of authorities on this point to the effect that no cause of action exists after the period of limitation provided by law. That would have been the interpretation if S.36(2) had stopped at the first portion of the subsection. But having gone further with the proviso, (which is what “so however” means) to say that service of pre-action notice shall be deemed to be the commencement of proceedings then it has changed the purport of the 1st part of S.36(2).
Contrary to the argument of learned Appellant’s counsel, the Abia State University Law itself has precipitated a situation whereby we have to read its provision to mean that time starts to run from the time pre-action notice is served which must be a month before a suit is commenced.
I beg to differ from the reasoning of the learned Appellant’s counsel that the purport of S.36(2) is that it is not automatic that once the pre-action notice is served, the action or suit is deemed to have commenced. As I said earlier, all the legal tomes consulted to give illumination all seem to agree that commencement of proceedings means commencement of suit. I have read all the case law cited by learned Appellant’s counsel, in particular ALAMODE v. SEMOH supra where the Supreme Court defined what constitutes commencement of a suit.
In that case, the Supreme Court was interpreting the rules of court and held that a suit is commenced on the date a Plaintiff files an application for summons and pays the prescribed fees and not the day the summons is signed by the judge or registrar of the court.
I have also read MOBIL PRODUCING UNLIMITED v. LASEPA supra cited by Appellant’s counsel. In that case, the Supreme Court explained the nature, purpose and import of pre-action notice. At page 33 of the NWLR Pt. 798, the Supreme Court held as follows:
“Service of a pre-action notice on the party intended to be sued pursuant to a statute is at best, a procedural requirement and not an issue of substantive law on which the rights of the Plaintiff depend. It is not an integral part of the process of initiating proceedings. A party who had served a pre-action notice is not obliged to commence proceedings at all, or, barring any limitation period, to commence one within any time after the time prescribed for pre-action notices”
The above general statement of the law would be relevant but for the way the framers of the Abia State University Law decided to couch S.36(2) of the law. It does not make the pre-action notice one that merely makes the Respondent an “intended Plaintiff” but makes him willy nilly and perforce a Plaintiff as soon as he serves a pre-action notice. That is the implication of the second part of S.36(2).
The problem in this case is the provision under consideration. As the Supreme Court held in OWNERS OF THE MV “ARABELLA” v. NAIC (2008) 11 NWLR Pt. 1097 Pg. 182 at Pg. 210, the question of period of limitation of action is not a matter of practice and procedure but rather one of law as contained in the relevant statutes. See also C.S.M.B.H. & CO. v. EMESPO J. CONT. LTD. (2002) 3 NWLR 753 Pg. 205. Therefore, no matter how inelegantly couched or unusual the clear provision of a statute is, one is bound to give effect to it as the statute must be interpreted as it is and not as it ought to be. See BEWAJI v. OBASANJO (2008) 9 NWLR Pt. 1093 Pg. 540.
We are bound to interpret the law as stated in the legislation. I agree with the learned Respondent’s counsel that where the words of a statute are clear and unambiguous, effect must be given to them.
One of the canons of interpretation is that there should be no interpretation that defeats the object of a statute. It is the duty of the court to give provisions their literal and ordinary interpretation. See DIOKPA FRANCIS ONOCHIE v. FERGUSON ODOGWU (2006) 2 SCNJ 96. Also there is the need not to consider a section alone but regard it as part of the whole statute. See RIVERS STATE GOVT. OF NIGERIA v. SPECIALIST KONSULT (SWEDISH GROUP) (2005) 7 NWLR Pt. 923 Pg. 145. On a total reading of the legislation in question particularly S.36(1) & 36(2) the literal meaning and interpretation given to S.36(2) being clear words in relation to the whole legislation would not lead to an absurdity.
I have also considered the reasoning of the learned trial judge. I agree with the learned trial judge that the 2nd part of S.36(2) is a special provision which followed the general one in the first part. Thus, where a subject matter is covered by both general and special provision, the special provision shall be given full effect. The Latin maxim is generalia specialibus non derogate. In other words a special provision is interpreted as taking away the effect of a general provision. See DADA v. OSHINKANLU (1995) 5 NWLR Pt. 398 Pg. 755 relied on by the learned trial judge. Also see A.G. OGUN STATE v. A.G. FEDERATION (2002) 18 NWLR Pt. 789 Pg. 232; NDDC v. PRECISION ASS. LTD. (2006) 16 NWLR Pt.1006 Pg. 527.
For reasons given above, I decide the sole issue for determination in favour of the Respondent. The suit was commenced when the Respondent served the pre-action notice which is well within the three months limitation period and not on the day the Writ of Summons was issued. I affirm the judgment of the trial court and dismiss the appeal. I award N30,000.00 as costs for the Respondent against the Appellant. Appeal Dismissed.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I agree.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment just delivered by my learned brother Ogunwumiju, JCA. I agree with the reasoning and conclusion. I also abide with the consequential orders.
The central question in this appeal is the interpretation of the provision of Section 36(1) and (2) of the Abia State University Law 1997 – 1999 which provides as follows:
“36(1) No. suit shall be commenced against the University or any of its bodies until one month at least after written notice of intention to commence the same shall have been served on the vice-chancellor by the intending plaintiff or his agent and such notice shall clearly state the cause of action, the particulars of claim, the name and place of abode of the intending plaintiff and the relief he claims
S. 36(2) No. suit against the University or against any of its bodies or against any member, officer or employee thereof respecting any act, neglect or default done or omitted in his capacity as such, shall be instituted in any court unless it is commenced within three months from the occurrence of the act, neglect or default or in the case of continuance of damage or injury within 3(three) months immediately after the cessation thereof. So however that any notice served pursuant to sub-section (1) of this section shall be deemed to be commencement of such proceedings”
(underlining emphasis supplied).
The respondent as plaintiff in the lower court served a pre-action notice on the defendant/appellant on 10/03/09 and then issued a Writ of Summons against the appellant on 26/05/99 in respect of his appointment that was terminated by a letter dated 16/12/98.
The learned trial Judge in interpreting Section 36(1) and (2) of the Abia State University Law was of the view that the three months stipulated under Section 36(2) within which to commence a suit against the appellant will start to run from the date the pre-action notice was served that is 10/03/09 and not from the date Writ of Summons was issued, that is 26/05/99.
The appellant on the other hand thinks that section 36 (1) of the Abia State University Law makes it clear that there must be one month at least after the service of the notice pursuant to Section 36(1) of the Law before an action or suit against the University can commence. And that, it is not automatic that once the notice is served on the Vice-Chancellor the action or suit is deemed to have commenced. The word “Snau” used in the said Section 36(1) makes it mandatory that any suit against the University or against any of its bodies can only commence one month at least after service of the pre-action notice on the vice-chancellor.
I agree with the lead Judgment as well as the court below that the provision of Section 36 of the University of Abia is clear and unambiguous. A holistic reading of sub-sections (1) and (2) of Section 36 would give us the following picture.
(a) A plaintiff intending to sue the University or any of its bodies, member, officer, employee etc. must commence such an action within three months of the “occurrence of the act, neglect or default or in the case of damage or injury within 3(three) months immediately after the cessation thereof.
(b) Such a suit must not be commenced until one month at least after a notice of intention to sue has been served.
(c) The date of the commencement of the suit or proceedings shall be, the date when the pre-action notice to sue is served on the University.
By the provision of Section 36 of the University of Abia Law, the legal draftsman has one hand provided for a three month limitation period within which an action could be brought against the University or any of its members. This is comparable to other Limitation Laws such as the Public Officer Protection Laws applicable in various states of Nigeria.In addition, as it is again the case with many of our corporations and government agencies, section 36(1) of the law enjoins the plaintiff to give a Notice of Intention to sue at least one month before the commencement of the action.
The peculiarity of the section is in the proviso to the provision of section 36 of the Abia State Law which regards the service of the pre-action notice as the commencement date of an action rather than the period when the plaintiff’s suit was instituted in court by a Writ.
To this, extent the provision of Section 36 of the Abia State University Law is peculiar and largely different from provisions which though have incorporated pre-action notices nevertheless fixed the commencement of the action at the date of the issuance of the Writ of Summons.
In the instant case, the lower court was right in the interpretation of S. 36(1) and (2) of the Abia State University Law when it held that the computation of the three months within which the respondent brought the action is the date the pre-action notice was issued and not when the Writ of Summons was issued.The intention of the lawmaker in enacting S. 36(1) and (2) of the Abia State University Law 1995 is that the computation of the three months period within which an aggrieved person can bring an action must be calculated to include the date pre-action notice is issued.
The respondent suit was commenced on 02/03/99 when the respondent issued the pre-action notice and not on 26/05/99 when the Writ of Summons was issued.
For these and the fuller reasons given in the lead judgment I also dismiss the appeal.