BALAMI PETER N. & ORS. v. NIGERIAN NATIONAL PETROLEUM CORPORATION & ORS. (2010)

BALAMI PETER N. & ORS. v. NIGERIAN NATIONAL PETROLEUM CORPORATION & ORS.

(2010)LCN/3577(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of February, 2010

CA/A/264/07

RATIO

APPEAL: AT WHAT POINT IN A PROCEEDING SHOULD A PRELIMINARY OBJECTION BE DETERMINED

The law is settled that once a Preliminary Objection is properly raised and moved by the Respondent, it should be determined first by the Court before proceeding to consider the Appeal. See Williams v. Ibejiako (2008) 15 NWLR (Pt.1110) page 367 at 380; Bamisle v. Osasuyi (2007) 9 NWLR (Pt.1042) page 225 at 256; U.B.N Plc v. Umeoduagu (2004) 13 NWLR (Pt.890) page 362. PER ABDU ABOKI, J.C.A.

INTERPRETATION: MEANING OF SHALL

The opinion of mine is supported by the Supreme Court decision in the case of Amadi v. NNPC (supra) at 97, which is on all fours with the present case. In that case, Uwais JSC (as he then was) held thus:

“It is settled that the word “shall” when used in an enactment is capable of bearing many meanings, ft may be implying futurity or implying a mandate or a direction or giving permission-see Ifezue v. Mbadugha, (1981) 1 SCNLR 427 at Pp. 456-7…

It appears to me that the first “shall” in subsection (2) imports obligation. No Suit could be commenced against the Corporation until a period of one month expires after giving a prescribed notice. The second “shall” seems to me to import obligation also. Before suing the -Corporation a notice of intention to commence the suit must be given to the Corporation. However, I am of the opinion that the third “shall” connote direction in the sense in which it is used. It describes the particulars to be contained in the notice of intention to sue. PER ABDU ABOKI, J.C.A.

ACTION: ESSENCE OF GIVING NOTICE OF CLAIM

’23. Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purpose of the enactment by reason only of the difference if the difference is not in a material particular and is not calculated to mislead’.” PER ABDU ABOKI, J.C.A.

JUSTICE

JIMI OLUKAYODE BADAJustice of The Court of Appeal of Nigeria

ABDU ABOKIJustice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria

Between

1. BALAMI PETER N.
2. OKEREGBE M. E.
3. ALHAJI ABBAM.
4. EKPENKHIO MARIA OKA
5. NWABUOKEI J. O.
6. USIOBAIFO PIUS E.
7. AZEEZ PETER I.
8. NWANKWO STELLA A.
9. OGUNKOYA COLLETTE N.
10. NZERIBE NONYE JUSTEVAAppellant(s)

AND

1. NIGERIAN NATIONAL PETROLEUM CORPORATION
2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY
3. HON. MINISTER FEDERAL CAPITAL DEVELOPMENT TERRITORYRespondent(s)

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the Federal High Court, Abuja delivered on 11th July 2007 by-Hon. Justice A.J. Chikere.
The brief fact of the case is that the Appellants/Plaintiffs are retirees/occupants of flats in the NNPC Housing Estate, Arthur Unegbe Street, Area II Garki, Abuja, FCT; which was to be sold pursuant to the Federal Government’s policy of sale its houses.
The Defendants/Respondents on the 15th day of June 2006, published to the plaintiffs/Appellants a notice of conditions to be met by the Plaintiff/Appellants to qualify then to purchase their respective flats at the reserved rates, which conditions the Plaintiff/Appellants alleged they met.
At the commencement of issuance of offer letters to occupants of the flats in the estate, the Plaintiff/Appellants alleged that they were sidelined by the Respondent in a bid to punish and victimize them for actively involving in petitioning the President of the Federal Republic of Nigeria and for participating in an earlier suit no. FCH/ABJ/CS/04/2006, which consequently forced the Defendants/Respondents to sell the Estate. The Plaintiff/Appellants instituted this suit at the Federal High Court. The 1st Respondent by a Motion on Notice dated 16th May, 2007 sought the following Orders:
“1. An Order dismissing or striking out the Plaintiffs’ claims in this suit, it being an abuse of the process of this Honourable Court, as well as incompetent.
2. An Order striking out the names of the 1st, 3rd, 5th, 6th, 7th, 8th, 9th and 10th Plaintiffs as parties to this suit before this Honourable Court.”
On 11th July, 2007, the trial Court upheld the submission of the 1st Respondent and struck out the Plaintiff/Appellants suit in its entirety for failure to comply with the provisions of Section 12 of the NNPC Act Cap 123, LFN 2004. Being dissatisfied with the Judgment the Plaintiff/Appellants filed an Appeal dated 11th July, 2007.
The Appellants’ Brief of Argument was dated 30th October, on 2nd November, 2007 whilst the 1st Respondent’s Brief of Argument dated 9th April, 2009 was filed same day. The 2nd and 3rd Respondents’ Brief dated 30th May, 2008 was deemed filed on 26th March, 2008. The Appellants filed on 20th April 2009 . Reply dated ,6th April, 2009 to the 1st Respondent’s Brief of Argument.
Parties have exchanged their various briefs.
Kemi Pinheiro SAN raised a Preliminary Objection in the 1st Respondent Brief of Argument challenging the competence of Ground 3 contained in the Notice and Grounds of Appeal filed and dated 11th July, 2007.

Kemi Pinheiro SAN referred the Court to the Notice of Appeal at pages 242- 245 of the Record and maintained that issue 3 is distilled from Ground 3. The Appellant argued that the trial Court considered the issues of “adequacy and sufficiency” of the pre-action notice.
Learned Senior Counsel submitted that for a Ground of Appeal to be competent, it must constitute on attack on the specific finding contained in the decision appealed against. He stated that the particulars of error or misdirection alleged in relation to a Ground of Appeal should be the specific finding, reasoning and observations in the judgment or ruling.
He asserted that there should be an enumeration of the error in the judgment or ruling. He reared the Court to the case of:
Globe Fishing Industries v. Coker (1990) 7 NWLR Pt.162 page 265.
Learned Senior Counsel further submitted that it is a settled principle of Law that Grounds of Appeal must flow from the decision appealed against, and that it is not permissible for an Appellant to attack a judgment on a Ground that does not arise from that decision and that any issue distilled from such an incompetent Ground fails and will be discountenanced. He referred the Court to the cases of:
Okoli y. Odeh (2008) 1 NWLR Pt. 1099 page 213-
Okpala v. Ibeme (1989) 2 NWLR Pt. 102 page 208:
Egbe v. Alhaji (1990) 1 NWLR Pt. 128 page 546.
Learned Senior Counsel referred the Court to the findings of fee trial Court at page 241 of the Record.
He also referred the Court to the Appellant’s Ground 3 and submitted that the purported particulars 1 to 3 are indeed very unhelpful and of no assistance, in that they allege that the issue of “sufficiency” of the Plaintiffs/Appellants’ letter of 18/9/06 was raised suo motu.
He further argued that the trial Court never raised or decided any issue of sufficiency or that the plaintiff letter aforesaid fell short of S.12, and that what the Court held was that:
“…this letter of 18/9/06 can at least be described as an appeal letter to Managing Director to NNPC to allow Retirees living in the named NNPC Estate to purchase their flats at reserved prices.
…the letter of 18/9/06 is not a pre-action notice” simplicitor (sic).
Learned Senior Counsel finally submitted that Ground three (3) is not an attack on any specific reasoning or observation in the decision appealed against and that it is incompetent and constitutes an abuse of Court process.
He maintained that Order 6 Rule 13 of the Rules of this Court which allows the Court to strike out such Ground in limine.
In his response on the Preliminary Objection, Counsel for the Appellants Jeph Njikonye submitted that the objection was misconceived. He maintained that a Ground of Appeal must be read with its particulars if the complaint of the Appellants must be appreciated. He referred to the case of:
Ibrahim v. Mohammed (2003) 17 WRN 1 at 33
Learned Counsel stated that the complaint of the Appellants in ground 3 is that the trial Court in its decision went outside the issue joined by the parties.
He argued that a thorough examination of the claim of the Plaintiffs/Appellants reveals that the issue for the determination of the trial Court was whether or not pre-action notice was served on the 1st Respondent.
Jeph Njikonye stressed that the Appellants joined issues with the 1st Respondent in paragraphs 14 and 15 of their Counter Affidavit at page 161 of the Record of Appeal and contended that they served pre-action notice on the 1st Respondent, exhibited and marked Exhibit P1 on page 162 of the Record of Appeal.
Learned Counsel maintained that it was never contended by the 1st Respondent either in its Motion Paper or in its written address that Exhibit P1 did not meet the requirements of Section 2 of the Nigerian National Petroleum Corporation Act Cap N23 LFN 2004; but that the contest was whether or not Exhibit P1 was issued and served.
He submitted that a Court must resolve issues as joined by the parties and not decide outside the issues joined and referred the Court to the cases of:
Alwa’u v. yakubu (2004) 4 WNR 86 at 108 – 9;
Dada v. Bankole (2008) 8 WRN 1 at 17 lines 45 -50.
Learned Counsel further submitted that where a Court ignores this strict Principle of law, the injured party has a right of appeal on this ground, therefore Ground 3 with issue 3 raised there from is competent.
He maintained that the 1st Respondent’s act of recourse to semantics is unnecessary as what was imports was whether the 1st Respondent understood the complaint of the Appellants and that once the Appellants’ complaint is understandable, the grounds and issues distilled there from ought to be held as competent. Learned Counsel referred the Court to the case of:
Abdul Positive v. Ugbane (2004) 17 WRN 142 at 156 lines 5-45.
Jeph Njikonye submitted that Ground 3 clearly conveys the complaint of the Appellants, which complaint arose from the judgment of the trial Court and urged the Court to dismiss the Preliminary Objection of the 1st Respondent.

It is trite that the complaint of an Appellant is best appreciated when the Grounds of Appeal as contained in its Notice of Appeal are read with its particulars. See Ibrahim v. Mohammed (2003) 17 WRN 1 at page 33.
The said Ground 3 is pertinent and is reproduced with its particulars as follows:

“GROUNDS OF THREE
The Court below erred in law when it held that the Plaintiffs letter of 18th day of September, 2006 fell short of the requirements of Section 12 of the NNPC Act and accordingly struck out Plaintiffs’ suit when no such issue was raised by the 1st Defendant.
PARTICULARS
(i) The issue raised by the 1st Defendant was that no pre-action notice was served on it.
(ii) After the Plaintiffs exhibited their pre-action notice of 18th day of September, 2006 the 1st Defendant only re-joined that it never received it,
(iii) Whether or not Plaintiffs notice of if day of September, 2006 complied with the provisions of the statute was never raised before the Court. The Court below having issue sue motu never called upon the parties to address it on the sufficiency of Plaintiff letter of 1st September, 2006.”
The findings of the trial Court at page 241 of the Record is also pertinent and is reproduced as follows:
“This letter of 18/9/06 can at best, be described as an appeal letter to Managing Director to NNPC to allow Retirees living in the named NNPC Estate to purchase their flats at least at reserved prices.

It does not comply with provisions of Section 12 of NNPC Act Where a statute, like NNPC Act lays down, a certain procedure which ought to be followed before an action can be taken or for setting a legal process in motion, it is incumbent and mandatory that such procedure be complied with in order to authenticate the act sought, to be done or the legal process in motion.Section 12 of the NNPC Act states that the notice shall clearly aid explicitly state the cause of action, particulars of claim the name and place of abode of the intending Plaintiff and relief which he claims.

The main Defendant in this suit is the 1st defendant that is NNPC which is emitted to the statutory notice as stipulated by Section 12 of its Act.
The use of the “shall” in the Act gives no room for an alternative procedure. The pre-action notice is a mandatory pre-requisite without which no action can lie against the 1st defendant.
As earlier on stated, the letter of 18/9/06 is not a pre-action.
Accordingly, Suit is struck out for lack of jurisdiction of Court”
I have carefully perused the findings of the trial Court as well as Ground 3 of the Appellant’s Ground of Appeal and I am of the view that the said Ground 3 arose from the findings of the trial Court. Accordingly, I hereby hold that the said Ground 3 and issue 3 distilled there from are competent.
This preliminary Objection is unmeritorious and is hereby dismissed.
From the Appellant’s three Grounds of Appeal, three issues were distilled for determination of this Appeal, and they are as follows:
“1. Was the Court below right when it held the Exhibit P1 did not comply with the provisions of Section 12(2) of NNPC Act, and consequently not a pre-action notice?
2. Was the Court below right when it struck out Plaintiffs Suit in its entirety against all the Defendant even when the 2nd and 3rd defendant never claimed a right to pre-action notice?
3. Was the Court below right to have proceeded suo motu to raise and decide the issue of adequacy of Plaintiff pre-action notice without calling for Counsel’s address on the issue? If the answer is positive, did not the conduct of the Court below occasion a miscarriage of justice against the Plaintiff?”
On behalf of the 1st Respondent, the following issues were distilled for determination thus:
“1. Whether Exhibit P1 dated 18th September, 2006 constitutes the pre-action notice envisaged under and by virtue of the provisions of S.12 of the NNPC Act?
2. If the answer to the foregoing is in the negative, whether the claims and reliefs before the Honourable Court are maintain-able against the remaining 2nd and 3rd Defendants in the absence of the 1st Defendant?”
No issue was formulated for the determination of this Appeal on behalf of the 2nd and 3rd Respondents.
I have carefully studied the issues formulated for the determination of this Appeal on behalf of the parties and I am of the view that issue one as distilled on behalf of the Appellants is the fulcrum upon which this Appeal rotates and is capable of determination of this Appeal. Hence, I adopt it as the lone issue for the determination of this Appeal. It reads thus:
“Was the Court below right when it held that Exhibit P1 did not comply with the provisions of Section 12(2) of NNPC Act, and consequently not a pre-action notice?
Counsel for the Appellants. Jeph C. Njikonye submitted that issue calls for the construction of Section 12(2) of NNPC Act LFN 2004 (which is in pari material with Section (11)2 NNPC Act Cap. 192 LFN (1990), provides:
“(2) No suit shall be commenced against the Corporation before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the Corporation by the intending plaintiff or his agent; and the notice 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.”
He maintained that a just determination as to whether the pre-action notice served on the 1st Respondent substantially complied with the provisions of the above law, depends on the interpretation the Court might place on the word ‘shall’ as used in the above quoted law.
Learned Counsel stressed that the position of the law is that the word ‘shall’ when used in an enactment is capable of many meanings; it may be mandatory and it may likewise be directory. He referred the Court to the case of:
Ifeazue v. Mbadugha (1984) 1 SCNLR 427 at 456 – 457
He submitted that where the word ‘shall’ is used in mandatory sense then commandments contained in the enactment under consideration must be obeyed to the letter and that if the word ‘shall’ is used in a directory sense it is sufficient ,if there is substantial compliance with the provisions of the enactment. He referred the Court to the case of
Amadi v. NNPC (2000) 10 NWLR Pt.674 76 at 97 H.
Counsel to the Appellants further submitted that with respect to the retain of the word ‘shall’ as used in Section 2 (2) of the NNPC Act the Supreme Court in Amadi v NNPC (supra) at page 98 gave the correct definition of the word ‘shall’.  Jeph Njikonye maintained that these facts need not be explicitly pleaded in pre-action notice as they are technically drawn in the Statement of Claim and that to insist on such explicitly is recourse to undue technicality.
He contended that the judgment of the trial Court was that the pre-action notice served by the Plaintiffs did not comply with the provisions of Section 12 (2) of the NNPC Act and consequently was not a pre-action notice Learned Counsel submitted that the trial Court erred for at least two reasons Jeph  Njikonye maintained that first, the pre-action contains the names of the plaintiffs, their places of abode, the complaints/cause of action of the Plaintiff and that it also clearly communicated to the 1st Defendant/1st Respondents a clear intention to sue. He referred the Court to Exhibit P1 at page 240 of the Record which reads inter alia thus:
“However should the NNPC insist on preventing us (Plaintiffs) from purchasing our flats at the reserved prices, we shall have no further option than to proceed to court to enforce our rights without further reference to the NNPC….”
Learned Counsel pointed out that the purpose of giving a pre-action notice to the 1st Respondent, as was held by the Supreme Court, is that: “It is not taken by surprise but to have adequate time to prepare to deal with the claim in its defence” but not “to hazards in the way of bringing litigation” against it.
He submitted that the pre-action notice issued by the Plaintiffs is in substantial compliance with the law and that the trial Court was wrong to have held otherwise.
Learned Counsel further maintained that secondly the Plaintiffs were not strangers to the 1st Defendant/1st Respondent, as has been averred by the 1st Respondent in paragraph 6 (i) – (v) of its supporting affidavit and that they were already aware of the complaints of the Plaintiffs/Appellants.
He submitted that this undisputed facts taken into consideration leads to the irresistible conclusion that the Plaintiffs/Appellants’ pre-action notice substantially complies with the provisions of the law and referred to the case of:
Amadi v. NNPC (Supra) page 98 E to page 100 B.
Jeph  Njikonye urged the Court to so hold and resolve this issue in favour of the Appellants.
In his response, Counsel for the 1st Respondent Kemi Pinheiro SAN submitted that significant^ and interestingly, the Appellant  appreciate and concede the purpose of a pre-action notice and referred the Court to the case of:
Amadi v. NNPC (Supra) page 76.
He stressed that it has been argued that the pr-action notice in this case constitutes the notice envisaged by the provisions of S.12 (2) of the NNPC Act because to contain, in the view of the Appellants, the names of the plaintiffs and their places of abode in addition to the complaints of the cause of action.
Learned Senior Counsel queried whether the letter dated 18/9/06 can truly be called a pre-action notice. He referred the Court to the findings of the learned trial judge on Exhibit P1 where it stated thus:
“…….this letter of 18/9/06 can at best be described as an appeal letter to Managing Director to NNPC to allow Retirees living in the named NNPC Estate to purchase their flats at reserved price”
He submitted that this decision and/or finding is not challenged in this Appeal and invited the Court’s attention to Grounds 1, 2 and 3 of the Notice of Appeal and particulars contained therein.
Learned Counsel maintained that it is notoriously settled that where such a finding and/or decision of a trial Court stands unchallenged, such decision and/or finding rightly or wrongly stands and must not be disturbed. He referred the Court to the cases of:
Nwabueze v. Okoye (1988) 4 NWLR Pt.91 page 664;
Oshodi v. Eyiwunmi (2000) 13 NWLR Pt. 684 page 332;
Udo v. C.R.S. Newspaper Corp. (2001) 14 NWLR Pt.732 page 116 at 167.
Counsel for the Respondent maintained that the trial Court’s decision is further strengthened in that the writer of Exhibit P1 is one Mike Okeregbe “for NNPC Estate Arthur Unegbe Street, Area 11 Garki, Abuja” and that none of the other Plaintiffs other than the 2nd Plaintiffs/Appellant is mentioned as to identify in advance and in accordance with S. 12 (2) of the NNPC Act, who the proposed Plaintiffs to the action might be.
He referred the Court to the 4th paragraph of Exhibit P1, the alleged notice and then wondered if such letter of appear confutes the faction notice envisaged and prayed the Court to hold that it was not a pre-action notice.
Counsel for the  Respondent submitted that Courts can only invoke their judicial powers under Section 6 of the Constitution where a matter is justiciable and conversely they cannot so do if the matter is to the contrary.
He contended that where a Statute provides for a condition precedent to be met before filing an action in a Court of law and same is not met, then such action is not justiciable; thus, the Court has no jurisdiction to invoke its Judicial power as embedded in Section 6 of the Constitution. He referred the Court to the case of:
Nigercare Dev. Co. Ltd v. A.S.W.R. (2008) 9 NWLR Pt. 1093 pages 498 at 527.
In his response on behalf of the 2nd and 3rd Respondents, C. J. Oliobi submitted that the use of the word “explicit” in the provision means that there is no room for short-cuts in company with the provisions of Section 12 (2) of the NNPC Act.
He submitted that the trial Court was right when it held that Exhibit P1, having failed to comply with the provision of Section 12 (2) of NNPC Act was a mere letter of appeal to the management of NNPC and not a pre-action Notice.
Counsel for the 2nd and 3rd Respondent contended that what were contained in the purported pre-action notice was “Resident NNPC Retirees, Arthur Unegbe Street Area 11, Garki, Abuja,” and not the individual names of the Plaintiffs.
He argued that the Appellants instituted this suit at the trial Court in their individual names and for themselves only, and not as representatives of “Resident NNPC Retirees, Arthur Unegbe Street, Area 11, Garki – Abuja.”
Learned Counsel drew the attention of the Court to the case of:
Umukoro v. NPA (1997) 4 NWLR Pt.502 at 656 and submitted that this court held that any action commenced without issuing a pre-action notice where it is statutorily provided for, is incompetent as same is every final to the action. He also referred the court to the case of:
Savannah Bank v. Pan Atlantic (1987) 1 NWLR Pt.49 page 212
In his reply on points of law, Counsel for the Appellants Jeph C. Njikonye submitted that the Appellant’s Notice of Appeal on pages 242-245 of the Record challenges the entire decision of the court below including the opinion of the court below on Exhibit 1 of 18/9/06 and he urged the court to discountenance the 1st Respondent’s submission in paragraph 3.11 of its Brief that the Appellant did not challenge the finding of the court below in the effect that Appellant’s letter of 18/9/06 can best be described as an appeal letter.
Learned Counsel also pointed out the 1st Respondent in paragraph 3.11 of its Brief highlighted the word ‘appeal’ as it appears on exhibit P1 and sought to make a heavy weather out of it.
He submitted that this approach is most unfair and that the hallowed principle of construction of document is that the entire document must be constructed as a whole; that individual words ought not be lifted and over blown Learned Counsel referred the Court to the case of:
Agbareh v. Mimra (2008) 12 WRN 1 at 40.
Jeph Njikonye urged the Court to interpret Exhibit P1 as a whole and to take cognizance of the penultimate paragraph therein wherein the Appellants specifically informed the 1st Respondent as follows:
“However, should the NNPC insist on preventing us from purchasing our flats at the reserved prices, we shall have no other option than to proceed to Court without further reference to the NNPC”
Learned Counsel submitted that the era of technicality is gone; that Exhibit P1 was written by Appellants themselves, laymen who are not tutored in law and that it will derogate from justice to accord Exhibit P, a technical construction that may be accorded documents prepared by lawyers.
He urged the Court to hold that Exhibit P1 substantially complied with Section 12 (2) NNPC Act and referred the Court to the case of Amadi v. NNPC (supra) at 97 and 98.
Counsel for the Appellants prayed the Court to discountenance the submissions of the Respondents and allow the Appeal.
The Appellants’ Grounds of Appeal and their particulars as contained in their Notice of Appeal on pages 242 – 245 of the Record are pertinent and adumbrated as follows:
GROUND OF APPPAL:
GROUND ONE:       ERROR IN LAW
The Court below erred in law when it held that plaintiffs letter dated 18th day of September, 2006 was not pre-action notice to the Nigerian National Petroleum Commission pursuant to Section 12 of the NNPC Act and accordingly struck out Plaintiffs Suit
PARTICULARS
i. Plaintiffs letter of 18th September, 2006 contains sufficient notice to the Nigerian National Petroleum Commission (NNPC) of Plaintiffs intention to sue the NNPC without further reference to it if it fails to remedy the injustice complained of by the Plaintiffs.
ii Plaintiffs letter of 18th September, 2006 substantially complied the provisions of Section 12 of the NNPC Act stipulating for pre-action notice.
GROUND TWO           ERROR IN LAW
The Court below erred in law when it struck out Plaintiffs’ Suit against all the Defendant.
PARTICULARS
i The statute did not provide for service of pre-action notice on toe 2nd and 3rd Defendants and they did not complain of want of service of pre-action notice on them.
ii. Plaintiffs Suit could stand against the 2nd and 3rd Defendants without the 1st Defendant.

GROUND THREE ERROR IN LAW
The Court below erred in law when it held that the Plaintiffs letter of 18th day of September, 2006fell short of the requirements of Section 12 of the NNPC Act and accordingly struck out Plaintiffs’ Suit when no issue was raised by the 1st Defendant.
PARTICULARS
i. The issue raised by the 1st Defendant was that no pre-action notice was served on it.
ii. After the Plaintiffs exhibited their pre-action notice of 18th day of September, 2006 the 1st Defendant only re-joined that it received.
iii. Whether or not the Plaintiffs notice of 18th day of September, 2006 complied with the provisions of the statute was never raised before the Court. The Court below having raised that issue suo motu never called upon the parties to address it on the sufficiency of Plaintiffs’ letter of 18th September, 2006.”
I have carefully studied the above produced Ground of Appeal and I am of the opinion that they changes the entire decision of the trial Court including its opinion on Exhibit P1 which is in fact the main issue in this Appeal. Hence, Court discountenances the submission of Counsel for the 1st Respondent to the effect that the Appellants did not challenge the trial Court’s description of Appellants’ letter as an appeal letter.
It is entrenched in our laws that where the statutory prerequisite is provided same must be satisfied. In the instant case, Section 12 (2) of the NNPC Act prescribed pre-action notice to the Corporation before a suit can be instituted against it and failure to so do is fatal and renders the suit incompetent See Kastina Local Govt. v. Makudawa (1971) 1 NMLR 100: Anambra State Government v. Nwakwo (1995) 9 NWLR Pt. 418 page 245. In the instant case, the Appellants claim Exhibit P1 to be the pre-action notice required by Section 12 (2) of the NNPC Act. Both Exhibit P1 and Section 12(2) of the NNPC Act are reproduced hereunder for ease of reference as follow:-
Exhibit P1:-
“18th September 2006
The managing Director,
Nigerian National Petroleum Corporation
NNPC Towers,
Abuja.
Dear Sir,
IN THE MATTER OF THE NNPC RETIREES LIVING IN THE NNPC ASTATE ARTHUR UNEGBE STREET AREA II GARKI ABUJA – DENIAL OF RIGHT TO PURCHASE FLAT AT THE RESERVED PRICES
The Above subject matter refers.
As per the NNPC Notice to Staff Residents of the 15th day of June, 2006 the NNPC outlined conditions which its staff aid Retirees resident in the estate must fulfill to qualify to purchase their flats at the reserved prices in line with the Federal Government Guidelines for the sale of its Residential Houses in the FCT.
We the NNPC Retirees living in the Estate have fulfilled all the conditions including payment of rent for the year 2006.
However to our shock the NNPC has started a campaign to deny us the opportunity to purchase our flats at the reserved prices. This is unfair considering the fact that we are men and women who have served the organization meritoriously. We deserve a better treatment.
We appeal to you sir to use your good offices in ensuring that this injustice is remedied. Having met with the stipulated conditions, we appeal to you to assist in ensuring that we are not denied our right to purchase our respective flats at the reserve prices.
However, should the NNPC insist on preventing us from purchasing our flats at the reserved prices, we shall have no other option than to proceed to court to enforce our right without further reference to the NNPC.
We remain,
SIGNED
Yours faithfully,
FOR: NNPC RETIREES LIVING IN THE NNPC ESTATE
ARTUHUR UNEGBE STREET AREA II GARKI ABUJA.
SIGNED
Mike Okeregbe.”
Section 12 (2) NNPC Act:-
“(2) No suit shall be commenced against the Corporation before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the Corporation by the intending plaintiff or his agent; and the notice 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.”
I have carefully examined Exhibit P1 against the provisions of Section 12 (2) of the NNPC Act and I am of the opinion that the said Exhibit P1 substantially complied with the requirement of a pre-action notice as provided under Section 12 (2) of the NNPC Act.
The opinion of mine is supported by the Supreme Court decision in the case of Amadi v. NNPC (supra) at 97, which is on all fours with the present case. In that case, Uwais JSC (as he then was) held thus:
“It is settled that the word “shall” when used in an enactment is capable of bearing many meanings, ft may be implying futurity or implying a mandate or a direction or giving permission-see Ifezue v. Mbadugha, (1981) 1 SCNLR 427 at Pp. 456-7…

While the issuance of the notice by a prospective Plaintiff is mandatory, the particulars to be included in the notice, which are cause of action, particulars of claim, name and place of abode of the intending plaintiff and the relief to be claimed appear to me to be director. As was held by this court per Coker, J.S.C. in the case of Kastina local Government v. Makudawa (1971) 1 NMLR 100 at 107, the purpose of giving notice of Claim to the Local Government of the claim against it is that it is not token by surprise but to have adequate time to prepare to deal with the claim in its defence. The purpose of the notice “is not to put hazards in the way of bringing litigation against it…. The purpose of the notice ‘is not to put hazards in the way of bringing litigation against if. Furthermore, section 23 of the Interpretation Act 1964 (now Cap. 192 of the Laws of the Federation of Nigeria, 1990) provides:
’23. Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purpose of the enactment by reason only of the difference if the difference is not in a material particular and is not calculated to mislead’.”
This issue is resolved in favour of the Appellants. I order that the case be remitted to the Federal High Court to be heard on its merit by another Judge other than the learned trial Judge. The cost of N20,000.00 (Twenty Thousand Naira) is awarded in favour of the Appellants.

JIMI OLUKAYODE BADA, J.C.A: I had a preview of the Lead Judgment of my Learned brother ABDU ABOKI, JCA, just delivered and I agree with my Lord’s reasoning and conclusion.
There is merit in the appeal and it is also allowed by me.
I endorse the consequential orders made in the said lead Judgment.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A: I agree.
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Appearances

Jeph C. Njikonye with Isaac ItaFor Appellant

AND

C J. Oliobi for 2nd and 3rd RespondentsFor Respondent