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ALI DANBURAM UMARU AHMADU & 2 Ors -VS- NIGERIAN

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THEABUJA JUDICIAL DIVISION

HOLDENATABUJA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE N. E. AGBAKOBA

 

DATE:  17TH JUNE, 2019                                                       SUIT NO: NICN/ABJ/84/2018

 

BETWEEN:

  1. ALI DANBURAM

UMARU AHMADU

(Suing as Administrators of the Estate of

MALLAM ISA DANBURAM (Deceased)                                          PLAINTIFS/CLAIMANTS

  1. OLUFUNMILOLA LAMUYE ESQR
  2. MRS. CHARITY UMBWE SHEKARI

 

AND:

  1. NIGERIAN COMMUNICATIONS COMMISSION (NCC)
  2. UNIVERSAL SERVICE PROVISION FUND (USPF)   DEFENDANTS
  3. THE HON. MINISTER OF COMMUNICATION TECHNOLOGY

 

RPRESENTATION

  1. B. DAUDU SAN for the Claimant

AUDU ANUGA for the 1st Defendant

  1. A. DHACKO for the 2ndDefendant

 

JUDGEMENT

  1.             Claimant instituted this action via a Writ of Summons with the accompanying frontloaded documents filed on 28th March, 2018 against the defendants for the following reliefs:
  2. A DECLARATION that the Plaintiffs being either representatives of      erstwhile Board Member who is deceased of the Universal Service Provision           Fund or Board Members themselves of the said Universal Service Provision   Fund — a creature of the Nigerian Communications Act 2003, are entitled to     remunerations, allowances including exit or severance payments equivalent           or identical to what is or was paid or payable to Commissioners of the Board     of the 1st Defendant during the period of their service (2011 — 2015) and in        this instance the 1st — 3rd Defendants are in breach of the provisions of       Section 114— (3) of the Nigerian Communications Act 2003 and Paragraph 8           of the Universal Service Provision Fund Regulations made pursuant to the         said     Nigerian Communications Act when they failed to pay or effect payment    to the Plaintiffs, who as Board Members of the Universal Service Provision Fund     were entitled to identical remuneration, allowances and exit or severance         packages as paid to the NCC Board Commissioners.

 

  1. A DECLARATION that  the Defendants  acting by  themselves or through       their    agents       or servants were in breach of both the Nigerian Communications        Act 2003 and the Universal Service Provision Fund Regulations when they     failed to pay the Plaintiffs, whilst being Board Members of the Universal           Service Provision Fund, their endowments, allowances and exit or severance         benefits from the period of 2011 — 2015 when they occupied the said office.

 

  1. A DECLARATION AND ORDER that the Plaintiffs as described above are         entitled to the balance or differential of what they were paid as allowance            and      endowments, not in parity with allowances and endowments paid to       NCC Board Commissioners.

 

  1. A DECLARATION that the Plaintiffs are entitled to their exit or severance       payments upon completion of their service to the Board of the 2nd Defendant      and with same computation as that paid to the Board Commissioners of       the      1st Defendant.

 

SEVERAL OR INDIVIDUAL CLAIMS

 

  1. The 1st Plaintiffs are claiming on behalf of the deceased Mallam isa    Danburam who died intestate on the 14th of April 2017 as Administrators of     his estate, claims jointly and severally against the Defendants as follows:

 

1.Damages arising from breach of service contract and failure to apply the    provisions of Section 114 — (3) of the Nigerian Communications Act 2003         and Paragraph 8 of the Universal Service Provision Fund Regulations 2007.

 

1ST & 2ND DEFENDANTS’ JOINT STATEMENT OF DEFENCE filed on 15th May, 2018.

 

  1.             1st & 2nd Defendants denying Paragraph 11 of the Statement of Claim averred that the provisions of Section 114 (3) of the Nigerian Communications Act 2003 and Paragraph 8 of the USP Regulations 2007 do not provide for severance/exit packages which are terminal and periodic in nature.

 

  1.             Responding to Paragraph 13 of the Statement of Claim, the 1st & 2nd Defendants averred that the Board of the 2nd Defendant never determined and approved that allowances and remunerations payable to its Members, which were duly paid to the Plaintiffs throughout their tenure as Board Members, be equivalent to the 1st Defendant’s Commissioners.

 

  1.             Denying Paragraphs 18 and 19 of the Statement of Claim, 1st & 2nd Defendants stated that the course, in respect of which the 3rd claimant seeks refund of the money spent, was a private undertaking by her as it was never approved as it registered for by the 3rd Plaintiff despite the Federal Government’s suspension of foreign trainings for civil and public servants and she did not obtain waiver or approval from the Federal Government before registering for and/or attending the course.

 

  1.             1st & 2nd Defendants reacting to Paragraph 29 of the Statement of Claim stated that there was no determination either by the 1st Defendant or the 2nd Defendant’s Board that the sum of  N,600,000,00 (One Million, Six Hundred Thousand Naira) per annum for three and half years, paid to the Board Members of the 1st Defendant as medical allowance, be paid to the Plaintiffs as medical allowance.

 

  1.             The 1st & 2nd Defendants denying Paragraph 36 of the Plaintiffs’ Statement of Claim and state that the claimants have no rights to any exit/severance allowances, there being no determination that same be paid to them, as the allowances they were entitled to had been duly paid to them.

 

  1.             The 1st & 2nd Defendants denying the entirety of Paragraph 42 of the Statement of Claim stated that the claimants are not entitled to any of the heads of claims contained therein for the following reasons:

 

  1. The Plaintiffs are not entitled to the Declarations being sought in Paragraphs           42 (1), (2), (3) and (4) of their Statement of Claim.

 

  1. The & 2nd Defendants are not liable to the Plaintiffs for any Damages, and   are not in breach of any service contract, neither has it breached any of the provisions of Paragraph 8 of the USP Regulations 2007 and Section 114 (3) of         the Nigerian Communications Act 2003.

 

iii.  There was no determination that the remunerations and allowances payable           to the Plaintiffs while serving as Board Members of the 2nd Defendant, be         equivalent to those payable to the Board Members of the 1st Defendant as       required under Section 114 (3) of the Nigerian Communications Act 2003 and         Paragraph 8 of the USP Regulations 2007.

 

  1. The courses undertaken by the 1st and 3rd Plaintiffs for which they incurred            the expenses they are seeking to be reimbursed on, were private         undertakings or courses undertaken after the Federal Government of Nigeria            suspended foreign framings and courses for public and civil servants.

 

  1. There was no determination that exit/severance allowances be paid to the   Plaintiffs.

 

  1. Contrary to Paragraph 42 (5) of the Statement of Claim, the 1st Plaintiff is not         entitled to the sum of N217,692,160.00 (Two Hundred and Seventeen            Million, Six Hundred and Ninety-Two Thousand, One Hundred and Sixty          Naira) and $27,100.00 (Twenty-Seven Thousand, One Hundred Dollars) or     any other sum whatsoever.

 

vii. Contrary to Paragraph 42 (6) of the Statement of Claim, the 2nd Plaintiff is   not entitled to the sum of N138,230,000.00 (One Hundred and Thirty-Eight          Million, Two Hundred and Thirty Thousand Naira)or any other sum        whatsoever.

 

viii.Contrary to Paragraph 42 (7) of the Statement of Claim, the 3rd Plaintiff is not         to the sum of N21 6,913,818.00 (Two Hundred and Sixteen Million, Nine            Hundred and Thirteen Thousand, Eight Hundred and Eighteen Naira) and    $44,650.00 (Forty-Four Thousand, Six Hundred and Fifty Dollars) or any        other sum whatsoever.

 

  1. The Plaintiffs are not entitled to the cost of this action.

 

  1. The Plaintiffs are not entitled to any consequential orders as a result of this             action.

 

  1.             WHEREOF the 1st & 2nd Defendants humbly urge this Honourable Court to dismiss the Plaintiffs’ suit with substantial cost for being baseless, frivolous and vexatious.

 

 

 

  1.             NOTICE OF PRELIMINARY OBJECTION filed on 21st June, 2018 supported by a 6 paragraph affidavit deposed to by Reuben Harbooson, praying for the following reliefs:

 

  1. AN ORDER of this Honourable Court, granting leave to the 1st Defendant/Applicant to raise preliminary objection to the competence of the instant suit, in limine.

 

  1. AN ORDER of this Honourable Court striking out the suit of the Plaintiffs/Respondents for want of Jurisdiction.

 

WRITTEN ADDRESS IN SUPPORT OF NOTICE OF PRELIMINARY OBJECTION

 

ISSUES

 

  1.             Whether this Honourable Court ought to grant leave to take this preliminary objection in limine?
  2.             Whether in view of the provisions of Section 142 (3) & (4) of the Nigerian Communications Act 2004, the suit of the Plaintiffs/Respondents is incompetent and ought to be struck out for failure to issue and serve the 1st Defendant/Applicant with a Pre-Action Notice?

 

ON ISSUE 1

Whether this Honourable Court ought to grant leave to take this preliminary objection in limine?

 

  1.  It is counsel’s submission that this Honourable Court ought to grant leave to take this Notice of Preliminary Objection in limine, as the objection touches on the jurisdiction of Court to entertain the suit of the claimants. Nasir v. C.S.C., Kano State [2007] 5 NWLR (Pt. 1190) Pg. 253 SC @ Pg. 276 Para B-F.

 

ON ISSUE 2

Whether in view of the provisions of Section 142 (3) & (4) of the Nigerian Communications Act 2004, the suit of the Plaintiffs/Respondents is incompetent and ought to be struck out for failure to issue and serve the 1st Defendant/Applicant with a Pre-Action Notice?

 

  1.  Learned Counsel submitted that Section 142 (2) & (3) of the Nigerian Communications Act 2004 provides a condition-precedent to the commencement of any suit against the 1st Defendant.

 

  1.  He submitted that where a preaction notice is required to be served before an action is instituted in Courts, there must be compliance before a Court of law can assume jurisdiction over same. OKAFOR V. UKADIKE [2009] 1 NWLR (PART 1122) PAGE 259 CA @ PAGE 272 PARAGRAPH E; GOV. EBONYI STATE V. ISUAMA L20041 6 NWLR (PART 870) PAGE 511 CA @ PAGE 538 PARAGRAPH D-G.

 

  1.  Counsel posited that it is a trite principle of law that the requirement of a preaction notice does not admit of any exception or modification except as done by the party that will benefit from it. JOKOLO V. GOV., KEBBI STATE [20091 11 NWLR (PART 1152) PAGE 394 CA @ PAGE 429 PARAGRAPH B.

 

  1.  Furthermore, that failure to comply with a pre-condition for the doing of an act renders the act invalid. ORAKUL RESOURCES LTD. V. N.C.C. [2007] 16 NWLR (PART 1060) PAGE 270 CA @ PAGE 302 PARAGRAPH B.

 

  1.  It is counsel’s submission that the importance of jurisdiction of a Court of law to hear and determine a matter cannot be over-emphasized as it is the life wire of the proceeding through which the matter will be heard and determined. OBIUWEUBI V. C.B.N. [2011]7 NWLR (PART 1247) PAGE 465 SC @ PAGE 494 PARAGRAPHS C-D.

 

  1.  He contended that having failed to comply with the condition precedent to the competence of their suit by serving a Pre-Action Notice on the Defendant before commencing the action, that the suit of the claimants is a nullity ab initio and deprives this Honourable Court of jurisdiction to hear and determine it. He urged the Court to strike the suit out for being incompetent. NIGERCARE DEV. CO. LTD V. A.S.W.B. 120081 9 NWLR (PART 1093) PAGE 498 SC @ PAGES 526-527 PARAGRAPHS H-C; BLUE-CHIP COMMUNICATIONS COMPANY V. NIGERIAN COMMUNICATIONS COMMISSION 2008 (LPEIR)-3882 (CA).

 

3RD DEFENDANT’S STATEMENT OF DEFENCE filed on 25th June, 2018.

 

  1.  3rd Defendant denying paragraph 11 of the Statement of Claim averred that the claimants are not entitled to exit/severance payments same not provided for by the Nigerian Communications Act, 2003 or the Universal Access and Universal Service Regulations, 2007.

 

  1.  3rd Defendant reacting to paragraphs 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 and 35 of the statement of claim averred that they were not privy to all the necessary computation of emoluments and allowances due to the Claimants and therefore not in the position to comment on same.

 

  1.  The 3rd Defendant admitted paragraph 36 of the Statement of Claim only to the extent that a letter dated 9th January, 2017 was written to him by the claimants and in response further averred that the claimants are not entitled to exit/severance allowance.

 

  1.  In answer to all the reliefs sought under paragraph 42 of the statement of claim, the 3rd Defendant averred that the claimants have not established any liability against him and that the claims and the reliefs sought against the 3rd Defendant should be dismissed for being frivolous, vexatious and abuse of court process with substantial costs as no reasonable cause of action have been established against the 3rd Defendant.

 

  1.  Claimants filed a 12 paragraph COUNTER-AFFIDAVIT TO 1ST DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION on 18th July, 2018 and deposed to by Augusta Aver Yaakugh.

 

 

CLAIMANTS’ WRITEN ADDRESS IN RESPONSE TO THE 1ST DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION

 

ISSUES

  1.             Whether this Honourable Court ought to grant leave to the 1st Defendant to take its application in limine?

 

  1.             Whether having regard to the provisions of Section 142 of the Nigerian Communications Act 2003 the service of a Pre-action Notice is a condition precedent in commencing suits against the Nigerian Communications Commission?

 

ON ISSUE 1

Whether this Honourable Court ought to grant leave to the 1st Defendant to take its application in limine?

 

  1.  Counsel citing Order 18 Rule 2 (2) & (3) of the National Industrial Court Rules 2017 submitted that the Rules of this Honourable Court are clear as to the manner in which objections brought before the Court are to be taken.

 

  1.  He posited that taking Order 18-(1) & (2) of the National Industrial Court Rules 2017 together, the inescapable interpretation is that objections of this nature must be taken together with the substantive proceedings; as this will eliminate the double usage of precious judicial time for the resolution of the same matter.

 

ON ISSUE 2

Whether having regard to the provisions of Section 142 of the Nigerian Communications Act 2003 the service of a Pre-action Notice is a condition precedent in commencing suits against the Nigerian Communications Commission?

 

  1.  Counsel argued that the 1st Defendant has utterly and completely misconstrued the interpretation of Section 142 of the Nigerians Communications Act 2003. Furthermore, that the Claimants’ suit was instituted against the Commission itself and that the Nigerian Communications Commission as can be clearly seen on the face of the Claimants’ Originating process, is the 1st Defendant in this suit and not it’s Commissioner, the Secretary, or any official or employee of the Commission. Skye Bank Plc. v. Victor Anaemem Iwu (2017) LPELR-42595(SC) pg. 118, Para. B-C.

 

  1.  He submitted that it is trite that when interpreting the provisions of a statute, the Court must not ascribe extraneous meanings to clear, plain and unambiguous provisions in order to make such provisions confirm to the expectations and interpretations of other parties’ view of their meaning or what ought to be. Saraki v. Federal Republic of Nigeria (2016) LPELR400013 (SC); Per Rhodes-Vivour, JSC in N.N.P.C. v. Famfa Oil Ltd (2012) 17 NWLR (Pt. 1328) Pg. 194 Para C.

 

  1.  Furthermore, that in the interpretation of statutes, the words used must be given their ordinary meaning and interpretations must be done to bring out the intention of the legislature. Duru v FRN (2013) 6 NWLR Part 1351 441 at 446.

 

  1.  Counsel noted that the 1st Defendant has relied on the side note/marginal note to Section 142 in its application in an attempt to support its misconceived position as above stated. That the law however, is trite with regards the use of side/marginal notes in the interpretation of statutes, as marginal notes are merely for convenience or reference and they do not form part of the statute. Rotimi Williams Akintokun v. Legal Practitioners Disciplinary Committee (2014) P. 129, Para D.

 

  1.  He argued that failure to adhere to the words of a statute that… conveys the intention of the legislature will do violence to its purport. N. 0. Amadi & Ors v. The State (1993) 8 NWLR (Pt. 314) Pg. 644.

 

 

REPLY ON POINTS OF LAW TO THE PLAINTIFFS/RESPONDENTS’ WRITTEN ADDRESS IN RESPONSE TO 1ST DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION filed on 19th July, 2018.

 

  1.  Citing Section 157 of the Nigerian Communications Act 2003, counsel submitted that since the 1st Defendant in this suit is being sued for the acts of its Board of Commissioners, this distinction for Commissioners being proposed by the Claimants/Respondents amounts to a distinction without a difference because by operation of statute, a Commissioner of the Defendant and the 1st Defendant are statutorily one and the same.

 

  1.  He submitted that the only way this Honourable Court can give effect to the reference to ‘a Commissioner’ in the provisions of Section 142 (3) within the context of an action challenging the decision of the Board of the 1st Defendant is to read the use of the term ‘a Commissioner’ to read, the Defendant by operation of Section 5 (5).

 

  1.  In response to the Claimants’ submissions under Paragraphs 15 & 16 of their Written Address to the effect that the marginal note of Section 142 of the Act does not form part of the Act and cannot be used to include the 1st Defendant as a party to be served Pre-Action Notice, counsel submitted that this Honourable Court is entitled to utilize the marginal notes to ascertain the purpose of the provision and the mischief it seeks to cure. YABUGBE V. C.0.P. (1992) LPELR — 3505 (SC) @ PAGES 17 — 18 PARAGRAPHS C — A; OSUN STATE IN DEPENDENT ELECTORAL COMMISSION & ANOR. V. AC. & CR5 (2010) LPELR —2818 (SC) @ PAGE 55 PARAGRAPHS B- C.

 

  1.  Counsel maintained that a careful reading of the provision of Section 5 (5) of Nigerian Communications Act 2003, will unequivocally reveal that that the acts of the Commissioners of 1st Defendant are its acts as the Defendant acts through these human agents.

 

  1.  He contended that construing the marginal notes of Section 142 alongside other relevant provisions will therefore reveal that the intention of the law makers is to ensure that 1st Defendant is given a notice, by way of a Pre-Action Notice, of prospective lawsuits for its acts or omissions as carried out by its Commissioners, Secretary, Officers or Employees which the claimants fails to do in this suit, urging the Court to so hold.

 

  1.  Parties duly adopted their processes and the matter was adjourned for this Judgement.

 

  1.  The issue for determination are where there is any merit to the application to the 1st and 2nd defendants’ applications in respect to Section 157 of the Nigerian Communications Act 2000.

 

The Court’s Decision

 

  1.  Having carefully reviewed and considered all the authorities cited by the parties, read through all the relevant processes and digested the contention of the parties, their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue before the court is whether there is any merit to the defendants’ application.

 

  1.  The defendants have asked the court to consider the following issues.

 

  1. Whether this Honourable Court ought to grant leave to take this preliminary objection in limine?
  2. Whether in view of the provisions of Section 142 (3) & (4) of the Nigerian Communications Act 2004, the suit of the Plaintiffs/Respondents is incompetent and ought to be struck out for failure to issue and serve the 1st Defendant/Applicant with a Pre-Action Notice?

 

  1.  The Claimant on their part formulated their issues thus; –

 

  1. Whether this Honourable Court ought to grant leave to the 1st Defendant to           take its application in limine?

 

  1. Whether having regard to the provisions of Section 142 of the Nigerian         Communications Act 2003 the service of a Pre-action Notice is a condition    precedent in commencing suits against the Nigerian Communications             Commission?

 

  1.  These issues are more or less the same, the issue one deals the is propriety of raising the issue of non-service of a pre action notice in limine while the second issue is to determine whether the provisions of Section 142 of the Nigerian Communications Act 2004 constitute a pre action notice.

 

  1.  With respect to the issue of raising a question in limine, the term in limine has been defined by the US.COM Legal Definitions online Legal dictionary and Thesaurus as follows; – “In limine is a Latin term meaning Latin “at the threshold,” referring to a motion made before a trial begins. Also the free online legal dictionary by Farex https://legal-dictionary.thefreedictionary.com/Limine defined the term in limine as the Latin for ‘on the threshold’ or ‘in or at the beginning’. And both dictionaries go one to describe the types of motions or applications commonly   brought before the commencement of trial proper.

 

  1.  The court of Appeal in this country has held in the cases of CHEVRON NIGERIA LTD v. NWUCHE & ORS Suit No: CA/PH/420/2005 delivered on Friday, the 21st day of November, 2014 that ”It is trite Law that a Defendant who conceives that ex-facie he has a good point or points of Law or jurisdiction that can in limine dispose or terminate a Claimant’s Suit or action is entitled to bring an application before the trial court or appellate court where it concerns or touches the jurisdiction of the court trying the matter or the Appellate Court hearing an appeal.” Per Ige, J.C.A. (Pp. 31-32, paras. F-A). And in SHARON PROPERTIES LTD v. PAUL B. NIGERIA PLC (2014) LPELR-23728(CA) the Court of Appeal held that “This position of the law is in accord with prudence since the object or primary purpose of a Preliminary Objection is to determine or terminate the proceedings in limine at the point it                                                                                                                                                                                                                                                                                                                                                                                          raised because it challenges the competence of the court to entertain the appeal on the ground it was premised. Where it succeeds and is upheld by the court that would bring the proceedings in which it was raised to an end as there could no longer be any other competent live issues in the case. See these cases: ONYEMEH VS. EGBUCHULAM (1996) 5 NWLR (PT.448) 255; NEPA VS. ANGO (2001) 15 NWLR (PT.737) 627; JAIYEOLA VS. ABIOYE (2003) 4 NWLR (PT.810) 397; A.N.P.P. VS. R.O.A.S.S.D. (2005) 6 NWLR (PT.920) 140; ADELAKAN VS. ECU-LINE NV (2006) ALL FWLR (PT.321) 1213 AT 1231: (2006) 12 NWLR (PT.993) 33.” Per Abdulkadir, J.C.A. (P. 17, paras. C-G

 

  1.  What all that means is that this court when presented with an application to determine a situation before trial commences and that situation can be resolved on the processes before the court and if successful the matter is dismissed in limine thus saving the time and energy of a trial. If the defendants raise a jurisdictional question which can be adequately determine on the pleading the fact that they sought leave to so raise the question is an addition decorum in this court. As the rules of this Court only require that the defendants file a Statement of defence before they raise a preliminary objection See Order 15(1) (A) NICN Civil Procedure Rule 2017,

 

  1.  Now considering that the position of the law as regard pre action notice is as was stated in the cases of ZAMFARA STATE GOVERNMENT & ANOR v. UNITY BANK PLC & ANOR – (2016) LPELR-41813(CA) where the Court of Appeal held that: – “The pre-trial notice in Nigeria is therefore a condition precedent to the proper institution of legal actions where they are required to be given between parties shortly before actions are commenced. Failure to therefore comply where it is required to be complied with robs the Court of its jurisdiction to entertain the matter in question and the matter will be liable to be struck out. See the case of MADUKOLU v. NKEMDILIM (1962) 2 ALL NLR 581 on the issue.But in the case of MOBIL PRODUCING v. LASEPA (Supra) it was held that; 1. Where a suit is commenced in default of service of the requisite pre-action notice, the suit is incompetent against the party who ought to have been served therewith, provided such party challenges the competence of the suit on that basis, and 2. It is a point that can be waived and thus does not necessarily go to jurisdiction.” Per OHO, J.C.A. (P. 24, Paras. B-F)

 

  1.  The Court continued that “Although the service of pre-action notice is mandatory where a statute provides for it, the decision of the Supreme Court in AMADI vs. NNPC (2000) 10 NWLR (PT. 674) 76 has since made it rather doubtful whether such a notice should be in a particular format or should contain specific information beyond apprising the potential defendant of the imminent Court action and for which he has to get prepared.

 

  1.  And in NAFDAC v. ONWUKA (2014) 4 NWLR (PT. 1398) 593 @ 596 – The Apex Court held that :-Non-service of a pre-action notice is a fundamental vice that strikes at the root of the case. The requirement must be complied with before an action can be said to be properly instituted. Failure to comply with the same will invariably lead to the action being declared incompetent. UGWUANYI v. NICON INSURANCE PLC (2013) 11 NWLR (PT. 1366) 546 referred to.] P. 618, PARAS. C-D.

 

  1.  I find, from the position of case law and legal terms, that a complain of non-issuance of a pre action notice is a sufficient ingredient to ground a preliminary action necessitating a determination in limine. I resolve issue 1 for the defendants.

 

  1.  Now issue 2 relates to the propriety of Section 142 of the Nigerian Communication Act 2004.

The section in question provides as follows: –

Subject to the provisions of this Act, the provisions of the Public Officers Protection Act shall apply in relation to any suit instituted against an official or employee of the Commission.

 

  1.  Notwithstanding anything contained in any other law or enactment, no suit shall lie against a Commissioner, the Secretary or any other official or employee of the Commission for any act done in pursuance or execution of this Act or any other law or enactment, or of any public duty or authority in respect of any alleged neglect or default in the execution of this Act or any other law or enactment, duty or authority, or be instituted in any court unless it is commenced- within 3 months next after the act, neglect or default complained of; or in the case of a continuation of damage or injury, within 6 months next after the ceasing thereof.

 

  1.  No Suit shall be commenced against a Commissioner, the Secretary or any official or employee of the Commission before the expiration of a period of 1 month after written notice of the intention to commence the Suit shall have been served on the Commission by the intending plaintiff or his agent.

 

  1.  The notice referred to in subsection (3) of this section shall clearly and explicitly state the cause of action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief which he claims.

 

  1.  Looking at the language of the above enactment and considering that in the case of ORAKUL RESOURCES LIMITED & ANR. V. NIGERIAN COMMUNICATIONS COMMISSION & ORS. (2007) LPELR-8913(CA) the court considered the legal interpretation of the word shall and held that “ The word “shall”, when used in an enactment is capable of bearing many meanings. It may be implying futurity or implying a mandate or direction or giving permission. If it is used in a mandatory sense then the action to be taken must be to obey or fulfill the mandate exactly, but if it is used in a directory sense then the action to be taken is to obey or fulfill the directive substantially see AMADI V. NNPC (2000) 10 NWLR (PT 674) 76; IFEZUE V. MBADUGHA (1984) 1 SCNLR 427; STATE V. ILORI (1983) 1 SCNLR 94.

 

  1.  And also considering the position of the law is that the purpose of pre-hearing notice is to inform the parties of the impending hearing and to ensure attendance at the hearing. See GTB PLC v. FADCO INDUSTRIES NIG. LTD (UNREPORTED) APPEAL NO. CA/K/333/2007 of 10/5/2013 referred to.] Pp. 615, PARAS D-G; 616, PARA. A. And in AZUBUIKE v. GOVT., ENUGU STATE (2014) 5 NWLR (PT. 1400) 364 @ 376-377 C.A., per Abdul-Kadir, JCA @ 405, PARAS. A-CIt was held that a Pre-action notice is a special kind of procedural requirement, different from that for hearing of a pending suit. Therefore, it should not be treated like procedure in pending proceedings. A pre-action notice is not to be equated with processes that are an integral part of the pending proceedings. A pre-action notice cannot be viewed merely or simply as a procedural requirement, because it creates a mandatory statutory duty of an intending claimant and a statutory right of the public body to official to be sued, to such notice. ETI OSA LOCAL GOVT. v. JEGEDE (2007) 10 NWLR (PT. 1043) 537.

 

  1.  I am satisfied that section 142 of the Nigerian Communication operates as a pre action notice, in this regard I resolve issue 2 in favour of the defendants.  The claimants I find and hold are before this court prematurely. This suit is therefore pre mature and this suit accordingly struck out.

 

  1.  I make no order as to cost.

 

  1.  That is the judgement of this court and it is hereby struck out accordingly.

 

 

 

…………………………..

Hon. Justice E. N. Agbakoba

Presiding Judge

Abuja

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