CLEMENT CHIJOKE v. UCHE IFEANYI CHUKWU & ANOR
(2017)LCN/9532(CA)
In The Court of Appeal of Nigeria
On Monday, the 20th day of February, 2017
CA/E/342/2009
JUSTICES:
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
CLEMENT CHIJOKE – Appellant(s)
AND
1. UCHE IFEANYI CHUKWU
2. ATTORNEY-GENERAL, ENUGU STATE – Respondent(s)
RATIO
WHETHER OR NOT A SUIT COMMENCED IN DEFAULT OF SERVICE OF PRE-ACTION NOTICE IS INCOMPETENT
All the authorities cited by the two Respondents are not quite apposite, in view of the authority of the Supreme Court in MOBIL PRODUCING NIG. LTD V. LASEPA (2002) 12 SC (PT. 1) 45 where it was held that:-
A suit commenced in default of service of Pre-action notice is incompetent as against the party who ought to have been served with a Pre-action notice, provided such party challenges the competence of the suit (Underlining by me for emphasis).PER BELGORE, J.C.A.
WHETHER OR NOT EACH PARTY IS RESPONSIBLE JOINTLY FOR THE AMOUNT OF DAMAGE CAUSED
It therefore means that each party is responsible jointly with each other, and also severally for the amount of damage caused. Counsel therefore submitted on this issue that the suit could be proceeded with against the 1st respondent citing the following cases:-
OSONDU V. BONEH (2000) 3 S. C. 42; U.B.N PLC V. UMEODUAGU (2004) 13 NWLR (PT. 890) 352; CHEVRON NIG. LTD V. LONESTAR DRILLING NIG. LTD (2007) 7 SCNJ 247; ALHAJI MADIN ABUBAKAR V. BEBEJI OIL & ALLIED PRODUCT LTD & ORS (2007) 2 SCNJ 170; 7-UP BOTTLING CO. LTD & ORS V. ABIOLA & SONS LTD (2001) 6 S. C. 73; and RINCO CONSTRUCTION COMPANY LTD V. VEEPEE INDUSTRIES LTD & ORS (2005) 5 NWLR (PT. 929) 85. PER BELGORE, J.C.A.
AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the Leading Judgment): The Appellant (as the Plaintiff) before the Enugu State High Court (Now Court belo) claimed against the Respondents (as defendants) jointly and severally as follows:
(a) A declaration of plaintiffs right of occupancy in respect of the parcel of land known as plot 140A independent layout Enugu.
(b) An injunction restraining the defendants, their attorneys, agents or servants from interfering with or obstruction of the Plaintiffs right of possession and enjoyment of the said parcel of land.
(c) An injunction restraining the defendants and their agents, attorneys or servants from trespassing into the said parcel of land.
The Appellant later filed his statement of claim on 21st day of March, 2000. The 1st respondent filed a statement of Defence and Counter-Claim. The Appellant then filed a reply to the 1st Respondents statement of defence and counter-claim. The 2nd Respondent did not file any defence, but on 27th February, 2004, filed a notice of preliminary objection. Contending that the suit was incompetent on the ground that
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the 2nd defendant was not served with pre-action notice.
Counsel for the Appellant herein had argued in the Court below that pre-action notice was not applicable in every case, including the instant case.
The learned trial Judge in his Ruling upheld the preliminary objection of the 2nd Respondent that non-service of pre-action notice on the 2nd Respondent rendered the suit incompetent and deprived the Court of jurisdiction, and proceeded to strike out the entire suit.
It was against this decision that appeal has been brought vide a notice of appeal by the Appellant on the 23rd of April, 2007, containing a single ground of appeal, which is:
GROUND ONE
1. The trial Court erred in law in striking out the entire suit (instead of just striking off 2nd defendant from the suit) on the ground of non-issuance/service of pre-action notice on the 2nd defendant.
PARTICULARS OF ERROR
i) There were two defendants in the suit viz; 1st defendant Uche Ifeanyi Chukwu (by his Attorney, Chukwuemeka Nwenyi), 2nd defendant Attorney General Enugu State.
ii) The 1st defendant is a Private citizen and was sued as such.
iii) The 2nd
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defendant/Respondent is Attorney General of Enugu State, and was sued as such.
iv) The Preliminary objection that gave rise to the ruling appealed against was raised by the 2nd defendant, and the complaint was that the 2nd defendant was not served with pre-action notice in respect of the suit, as it is prescribed by state proceeding law, in force in Enugu State.
v) There is no law that requires that a private citizen such as the 1st defendant should be served with pre-action notice.
vi) That non-service of pre-action notice on the State or Attorney General can render such suit incompetent only as against the State/Attorney General but not as against other person (s) sued alongside, but for whom pre-action notice is not required.
vii) Upon holding the indispensability of pre-action notice on the State/Attorney General before a suit could competently be maintained against the State/Attorney General, to the trial Court output to have just struck out the 2nd defendants name i.e Attorney General from the suit.
Briefs of Argument have been filed and exchanged by the parties. The Appellant also filed a Reply Brief in response to the
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1st and 2nd Respondents briefs respectively.
In the Appellants brief, settled by Chief P. M. B. Oniyia Esq. a sole issue for determination was submitted and which is:
Whether the trial Court was right in striking out the entire suit for non-service of pre-action notice on the 2nd defendant/Respondent instead of just striking out the name of the 2nd defendant from the suit.
On this sole issue, learned counsel submitted that the learned trial Judge erred by striking out the entire suit instead of just the 2nd defendant. He referred us to Section 11 (2) of the State Proceedings Law (Cap. 131) Laws of Anambra State (Applicable to Enugu State) on which the Preliminary objection was predicated which provides that:-
No action shall be instituted
(a) Against the State or
(b) Against a Public officer in respect of any act done in pursuance of …
He submitted that 2nd defendant was entitled to the pre-action notice, which the 1st defendant was not that the lower Court had unwittingly extended the protection and benefit to a non-public officer that is not
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covered by the aforesaid provision. He submitted further that it is not the law that where there are multiple defendants in a suit in which only one of them is entitled to pre-action notice, that the failure to serve the one entitled to such notice, would vitiate the entire suit. He therefore submitted that only a person entitled to the notice can benefit from the legal consequences of failure to serve same on him and that the learned trial Judge was wrong to have thrown the baby out along with the bath water.
Learned counsel placed reliance on the Supreme Court decision in MOBIL PRODUCING NIG. ULTD V. LASEPA (2002) 12 SC (PT. 1) PAGE 45 where the Court held that:-
The trial Judge was in error in holding that the suit was incompetent as against the 2nd respondent. Even if he had been right, I am of the view that he had been hasty in striking out the entire suit instead of striking out the 2nd respondent.
He urged this Court to set aside the order of striking out the suit and substitute it with an order striking out the name of the 2nd Respondent from the suit and direct that the suit be proceeded with in the trial Court against the
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1st respondent and before another Judge of the High Court of Enugu State.
In response to this appeal, 1st respondent submitted a sole issue arising from the ground of appeal for determination and that is:-
Whether the learned trial judge was right in striking out the suit for non-service of pre-action notice on the 2nd respondent.
In addressing this issue, the learned counsel submitted that the effect of non-service of pre-action notice bears on the action filed that is, the entire suit and not on selective elimination as vigorously but erroneously argued by the learned counsel for the Appellant in his brief.
Counsel therefore submitted that the lower Court has made it clear that action commenced in breach of the requirement for pre-action notice is incompetent; and that there is no jurisdiction for a Court to entertain an incompetent matter. He relied on the case of Ministry of Education, ANAMBRA STATE V. ASIKPO (2014) 14 NWLR (Pt. 1427) 351 @ 361 where the Court held that:-
A pre-action notice is a mandatory notice that has to be given by a plaintiff in required cases before his action can be competent. It is a
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pre-action that must be complied with. Any action commenced in breach of this requirement would be incompetent.
He also referred us to Nigercare Dev. Co. Ltd V. A. S. W. B. (2008) NWLR (Pt. 1093) 498.
He submitted finally that the Court is not a father Christmas that goes about awarding the unsolicited. He submitted that the Court below acted Judiciously and judicially in striking out the entire suit for lack of jurisdiction. He referred us to the case of Azubuike V. Govt., Enugu State (2004) 5 NWLR (PT. 1400) 364.
Submitted that the decision of the Court below did not conduct a final burial of the action brought by the Appellant (Plaintiff at the lower Court). It merely struck it out to afford the appellant a clean bill of health to do the needful and properly activate the jurisdiction of the Court to entertain his action. He urged this Court to discountenance this voyage by learned counsel for the appellant as a waste of judicial time and dismiss the appeal.
2nd Respondent in their Respondent Brief also submitted a sole issue for determination distilled from the ground of appeal filed in this appeal and it is:
Whether
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the lower Court was right when it struck out the suit for non-service of pre-action notice on the 2nd Respondent.
Arguing this lone issue, learned counsel for the 2nd Respondent respectfully invited this Court to take judicial notice of the particular facts and circumstances of this case which forward the basis for the decision of the lower Court (which is now subject of this appeal) these are as follows:-
i) Plot 140A Independent layout Enugu, the subject matter of dispute, is a State land.
ii) Both the appellant and 1st Respondent claim to have been allocated the same plot 140A independent layout, Enugu by the Government of Enugu State.
iii) Both the Appellant and 1st respondent parade certificate of occupancy purportedly issued to them in respect of same plot 140A Independent Layout, Enugu by the Government of Enugu State.
iv) The government of Enugu State was sued by the Appellant through the 2nd respondent counsel therefore submitted that in this circumstance that the government of Enugu State must be a party to the suit and must also be heard. That it is only by so doing that the 2nd respondent may admit or deny the
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weighty allegation of allocating one plot of land to two different citizens and issuing two different certificates of occupancy to two different citizens in respect of one plot of land. It is also by participating in the suit that the 2nd respondent may determine the gaminess of the certificates of occupancy being paraded by this appellant and the 1st respondent. He therefore submitted that the suit is such that it cannot be properly effectively and effectually determined in the absence of the 2nd respondent in that the 2nd respondent is central to the issues that gave rise to the dispute between the appellant and the 1st respondent.
Counsel also posited that the case of Mobil Producing Nig. Unlimited V. LASEPA (Supra) cited by appellant is not applicable to the present case in that the facts of both cases are not similar.
Learned counsel invited us to paragraph 14 of the appellant statement of claim as contained in page 5 of the records of appeal. He submitted on this that the appellant having sued the 2nd respondent as a party, it no longer lies in the appellants mouth to contend that 2nd respondent could feature only as a witness. Appellant
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is not allowed to approbate and reprobate at the same time.
He respectfully urged this Court to uphold their issue for determination and dismiss the appeal.
In the Appellants Reply Brief to the 1st Respondents Brief, learned counsel for the appellant submitted that the case of Ministry of Education, Anambra State V. Asikpo (Supra) cited by counsel for the 1st respondent is not applicable in the instant case. That the cause of action in the case cited was directly ascribable to the government of Anambra State, which was the only defendant entitled to pre-action notice. And that the other defendant, the Ministry of Education and Commissioner for Education were sued in a nominal capacity. He humbly submitted that pre-action notice is for the benefit of the body it is prescribed in its favour, (in this case, the 2nd respondent) a failure to issue the notice would render the suit incompetent only as against that party. And only the party who is to be served with the Pre-action notice can benefit from its non-service. He submitted that 1st respondent is obviously not the appropriate defendant to take advantages on benefit from the
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non-service of the pre-action notice. He submitted that the lower Court has the jurisdiction to entertain the appellants claim against the 1st respondent. He referred us to the case of MR. AJAO VS. METROPOLITAN DEV. BOARD (2006) ALL FWLR (PT. 303) 19.
Learned counsel further submitted that cases of AZUBIKE V. GOVERNMENT OF ENUGU STATE (2014) 5 NWLR (PT. 1400) 364; and MBANEFO V. MOLOKWU (2014) 6 NWLR (PT. 1403) 377 cited by the learned counsel for 1st Respondent are not applicable to the instant case.
He submitted that the appellant made no allegation against the 2nd respondent and that the 2nd respondent is not even a necessary party to the suit. He submitted that 2nd defendant non-joinder will not cripple the proceedings. He relied on the case of ODUWOLE & ORS V. L. S. D. P. C. (2004) 9 NWLR (PT. 878) 382 where it was held per ONALAJA J.C.A. that:-
Failure to join necessary party to a proceeding is not fatal to the proceedings, and the Court may determine the issues or questions in dispute so far as regards the rights and interest of the parties actually before it.
Also, reference is made to the case of JIDDAH
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V. KACHALLAH & ORS (1999) 4 NWLR (PT. 599) 426. He submitted that the joinder of the 2nd respondent was abundant cautela, as his non-joinder would not affect the effective determination of the suit. He urged the Court to allow the appeal.
In the Appellants Reply Brief to the 2nd Respondents Brief, Counsel submitted that it has never been their contention that the 2nd respondent is not entitled to be heard. That what they are saying is that his presence is not indispensable to the effective determination of this suit. He submitted that the reliefs demand in the statement of claim against the respondents are jointly and severally. It therefore means that each party is responsible jointly with each other, and also severally for the amount of damage caused. Counsel therefore submitted on this issue that the suit could be proceeded with against the 1st respondent citing the following cases:-
OSONDU V. BONEH (2000) 3 S. C. 42; U.B.N PLC V. UMEODUAGU (2004) 13 NWLR (PT. 890) 352; CHEVRON NIG. LTD V. LONESTAR DRILLING NIG. LTD (2007) 7 SCNJ 247; ALHAJI MADIN ABUBAKAR V. BEBEJI OIL & ALLIED PRODUCT LTD & ORS (2007) 2 SCNJ 170; 7-UP
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BOTTLING CO. LTD & ORS V. ABIOLA & SONS LTD (2001) 6 S. C. 73; and RINCO CONSTRUCTION COMPANY LTD V. VEEPEE INDUSTRIES LTD & ORS (2005) 5 NWLR (PT. 929) 85.
He finally submitted that the learned counsel for the 1st Respondent raised the issue of non-service of pre-action notice when in fact, he is not the beneficiary of the right the violation of which he is complaining. He respectfully urged this Court on the above raised points, to discountenance the arguments of the Respondents and allow this appeal.
It is apparent that the Appellant herein is not contesting the right of the 2nd Respondent to be served with a Pre-Action Notice as prescribed by the law. What he is contesting is the striking out of the entire suit instead of striking out the name of the 2nd Respondent.
The issue formulated by each of the three parties are similar, but I prefer that of the Appellant in the determination of this appeal. The issue for determination is very argued and need not be over-stretched.
I have gone through the respective submissions of the learned counsel for the three parties. While the 1st Respondent argues that the effect of non-service
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of Pre-Action Notice bears on the entire suit and not on selective parts thereof; the 2nd Respondent arguing in the same vein submits that he (2nd Respondent) being a necessary party, the non-compliance effects the entire case.
All the authorities cited by the two Respondents are not quite apposite, in view of the authority of the Supreme Court in MOBIL PRODUCING NIG. LTD V. LASEPA (2002) 12 SC (PT. 1) 45 where it was held that:-
A suit commenced in default of service of Pre-action notice is incompetent as against the party who ought to have been served with a Pre-action notice, provided such party challenges the competence of the suit (Underlining by me for emphasis).
By this authority, the suit of the Appellant herein is only incompetent as against the 2nd Respondent who ought to have been served with a Pre-action notice and who has challenged the competence of the suit. The competence of the suit as against the 1st Respondent who is not a government official or agent does not arise. The learned trial Judge would be right to strike out the suit as against the 2nd Respondent by striking out his name from the suit. But, he is
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patently wrong to have struck out the entire suit. The 1st Respondent is a private individual and he has not shown before this Court or before the lower Court that he is a government official or agent.
The sole issue in this appeal is resolved in favour of the Appellant.
This appeal succeeds and it is hereby allowed. The decision of the High Court, Enugu State, striking out Suit No. E/366/1999 is hereby set aside.
The name of the 2nd Respondent, ATTORNEY-GENERAL, ENUGU STATE is hereby struck out from the suit.
Proceeding in this suit shall be continued forthwith before a Judge of the High Court of Enugu, other than Honourable Justice P. C. Akubuilo.
No cost is awarded.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
PAUL OBI ELECHI, J.C.A.: I agree.
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Appearances:
Ogonna Odumodu, Esq. For Appellant(s)
Forster A. Ugwuoke, Esq. for the 1st Respondent.
I. I. Eze, Esq. for the 2nd Respondent. For Respondent(s)
Appearances
Ogonna Odumodu, Esq. For Appellant
AND
Forster A. Ugwuoke, Esq. for the 1st Respondent.
I. I. Eze, Esq. for the 2nd Respondent. For Respondent
