EBONYI STATE UNIVERSITY & ORS V. DR. (MRS.) MARY J. ETENG
(2012)LCN/5365(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of May, 2012
CA/E/314/2009
RATIO
JURISDICTION: DISTINCTION BETWEEN JURISDICTIONAL INCOMPETENCE WHICH IS EVIDENT ON THE FACE OF THE PROCEEDINGS AND ONE WHICH IS DEPENDENT ON THE ASCERTAINMENT OF FACTS
See MOBIL PRODUCING NIGERIA UNLIMITED V. LSEPA (2003) FWLR (PT. 137) 1029, in the case the Supreme Court per Ayoola, JSC; who delivered the lead judgment dwelling on “Jurisdiction” stated to the effect that the tendency to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on the ascertainment of facts leads to error. His lordship then fashioned out the following guidelines: –
“(i) Where on the face of the proceedings a superior Court is competent, incompetence should not be presumed;
(ii) Where on the face of the proceedings, the Court is incompetent, the Court should of itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties. If it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings;
(iii) Where the competence of the Court is affected by evident procedural defect in the commencement of the proceedings and such defect is not dependent on ascertainment of fact, the Court should regard such incompetence as arising ex facie;
(iv) When the competence of the Court is to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on the ascertainment of facts the incompetence cannot be said to arise on the face of the proceedings. The issue of fact if properly raised by the party challenging the competence of the Court should be tried first before the Court makes a pronouncement on its own competence;
(v) Where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the Court, it is for the party who alleges the Court’s incompetence to raise the issue in his statement of defence in proceedings commenced by Writ of Summons or by affidavit in cases commenced by Originating Summons;
(vi) A Judgment given in proceeedings which appear ex facie regular is valid.
(Underlining supplied by me for emphasis). PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
EVIDENCE: WHETHER A REJECTED DOCUMENT CAN BE USED IN THE EVALUATION OF EVIDENCE
the position of law is that a document once rejected in evidence and so marked, is not an exhibit for use in the evaluation of evidence in the case. Such a document is no longer relevant and the content cannot be used for the determination of any issue in the case. In other words a rejected document has no probative value and therefore cannot be used for any purpose in the case. See ADDISON UNITED NIGERIA LTD. V. LION OF AFRICA INSURANCE LTD. (2011) ALL FWLR (PT. 594) 130. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
LABOUR LAW: WHETHER CASES OF BREACH OF CONTRACT ARE SUITED FOR THE SPECIAL PROCEDURE
It is however settled law that cases of breach of contract (particularly of contract of employment) like any other normal civil matter are not suited for the special procedure for enforcement of fundamental rights under the Constitution. I know of no authority that has decided that cases of breach of contract are not normal or ordinary civil matters or causes. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
COURT: WHETHER THE COURT IS ENJOINED TO CONSIDER AND PRONOUNCE ON ALL ISSUES BEFORE IT
This Court as an intermediate Court of Appeal is enjoined to consider and pronounce on all the issues put before it by the parties. However there are circumstances in which this Court can dispense with doing this. The circumstances are (i) when an order of retrial is considered desirable or necessary; and (ii) where the judgment appealed against is considered a nullity. See SHASI v. SMITH (2010) 6 WRN 39 at 68; and UZUDA V. EBIGAH (2009) 48 WRN 1, (2009) ALL FWLR (PT. 493) 1224. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. EBONYI STATE UNIVERSITY
2. THE VICE-CHANCELLOR, EBSU
3. THE PRO-CHANCELLOR, EBSU
4. THE AG. REGISTRAR, EBSU Appellant(s)
AND
DR. (MRS.) MARY J. ETENG Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment delivered on 19/3/2009 by the High Court of Ebonyi State (hereafter simply referred to as “the lower Court”) presided over by Hon. Justice A.N. Nwankwo, Chief Judge (hereafter simply referred to as “the learned trial C.J.”). In the Judgment, the learned trial C.J. inter alia, ordered the re-instatement of the Respondent as a senior academic staff and that she should be paid all arrears of salaries and allowances due to her.
The Respondent herein as Plaintiff instituted the instant case on Appeal against the Appellants before the lower Court. The case of the Respondent as set up in the Statement of Claim dated 7/4/2008 filed on the same date before the lower Court, briefly stated are that on 10/3/2005 the Respondent applied for an appointment with the 1st Appellant as a Lecturer 1, in the Department of Sociology/Anthropology and for her to transfer her services from the University of Port-Harcourt (hereafter simply referred to as UNIPORT”) to the 1st Appellant, on salary grade level HATISS 13/4 which was made personal to her. The Respondent prior to applying for the said appointment with the 1st Appellant was a confirmed staff of UNIPORT. The Respondent not only averred to the effect that her services were transferred from UNIPORT to the 1st Appellant, but also that her appointment was duly regularized. Despite these, and to her surprise, by a letter dated 5/12/2007, her appointment was withdrawn with immediate effect by the Appellants. That in withdrawing her appointment, the Appellants did not comply with the 1st Appellant’s Regulations in relation to the conditions of service for Senior Staff. The Respondent claimed to have written two letters to the 2nd Appellant asking for the reason her appointment was withdrawn and that as she received no response to the letters, she later retained a lawyer to write the 1st Appellant to ask for the reason the Respondent’s appointment was withdrawn with immediate effect and her salaries and allowances stopped since December, 2007. The Respondent pleaded her reliance on the letter dated 12/2/2008 in this regard. The Respondent said to the effect that she instituted the instant action after waiting for a reasonable time and to avoid the matter lingering on without any resolution. Having regard to the averments in paragraphs 2 – 5 of the Statement of Claim, the Respondent disclosed that the 1st Appellant is a body corporate established by law; the 2nd Appellant is responsible for the day- to-day running of the 1st Appellant and heads the 1st Appellant’s administration; the 3rd Appellant is the Pro-
Chancellor and Chairman of the Governing council of the 1st Appellant; while the 4th Appellant is the Acting Registrar of the 1st Appellant, and Secretary to the Governing Council of the 1st Appellant. The reliefs which the Respondent claimed against the Appellants jointly and severally as set out in paragraph 28 of the Statement of Claim read thus: –
“1. A declaration of Court that the Plaintiff’s appointment was wrongly terminated or “withdrawn” without following the due process and the rules guiding the regulation of senior staff discipline and therefore is null and void and of no effect.
2. Court declaration that the Plaintiff was not given a fair hearing before her appointment was withdrawn as she was not issued any queries or even oral warning for any offence against the university, contrary to the Constitution of the Federal Republic of Nigeria and the Regulations guiding EBSU Senior Staff appointment and discipline.
3. Court declaration that the plaintiff is still at all times a Bona fide staff of EBSU in the Department of Sociology/Anthropology.
4. An order directing EBSU to re-instate the Plaintiff to her former position as a lecturer on grade level UASS 5, step 2 in Dept. of Sociology/Anthropology of EBSU.
5. An order of court for EBSU to pay the Plaintiff all her outstanding salaries and allowances, promotions and advancement and other entitlements accruing to the Plaintiff from December, 2007 to the date of her recall or re-instatement.
6. Perpetual injunction restraining the university, her servants, agents and privies from further harassing the Plaintiff in the course of her duty/employment without due process.
7. The Plaintiff claims damages.”
The Appellants responded to the case set up by the Respondent as reviewed above, in their Statement of Defence dated 7/5/2008 and filed on the same date. The case set up by the Appellants, put briefly, is that the Respondent used to be a temporary and unconfirmed Lecturer II with the 1st Appellant until her services were no longer desired and same withdrawn by the authorities of the 1st Appellant in accordance with relevant regulations. It is the case of the Appellants that the Respondent’s salary was adjusted not because she had formally transferred from UNIPORT to the 1st Appellant but because her former salary at UNIPORT where she was an Assistant Registrar (a non-academic position) was higher than she could have been earning as a Lecturer II in the employ or service of the 1st Appellant. The Appellants not only averred that the Respondent never transferred her services from UNIPORT to the 1st Appellant at any time and thereby remained on temporary appointment, but also that before the Respondent could have her appointment confirmed, they (Appellants) realised that the Respondent’s services were no longer required or acceptable, hence the same was withdrawn/terminated in accordance with the 1st Appellant’s regulations on conditions of service for Senior Staff. The Appellants also challenged the competence of the Respondent’s suit on the grounds: (i) that it was instituted without a pre-action notice to them as required by Section 31(1) of the Ebonyi State University Law, No. 7 of 1999 (hereafter simply referred to as “EBSU Law”) and (ii) that the suit was not commenced within 3 months of the act complained of, i.e. issuance of the letter of withdrawal of service, by the Appellants, as required by section 31(2) of EBSU Law.
At the hearing of the case, only the Respondent testified in her own behalf and tendered many Exhibits in the proof of her case; while the Appellants too called only a witness in the proof of their case. The learned trial C.J. against the backdrop of the pleadings of the parties; oral and documentary evidence adduced by the parties; and addresses of the respective learned Counsel to the parties, formulated the following issues for determination in the case: –
“1. Whether the action is statute barred.
2. Whether there is a binding contract of service between the Plaintiff and Defendants.
3. Whether the Plaintiff was given fair hearing/whether rule of natural justice was observed.
4. Whether the Plaintiff is a confirmed officer or a probationer.
5. Whether the Defendants were served Pre-Action Notice and whether the Defendants are deemed to have waived Pre-Action Notice.
6. Whether the Plaintiff proved her case.
The learned trial C.J. in his Judgment found that the Respondent’s appointment was wrongly terminated by the 4th Appellant and proceeded to make the following orders: –
“1. The termination/withdrawal of the Plaintiff’s appointment as Lecturer II in Ebonyi State University – Department of Sociology/Anthropology by letter dated 5th December, 2007 is ultra vires of the powers of the Registrar of Ebonyi State University, and void and ineffective.
2. That the purported withdrawal/termination of the appointment of the Plaintiff aforesaid is a complete violation of the Plaintiff’s fundamental rights of fair hearing before as contained in Section 36 of the 1999 Constitution and also a fundamental breach of EBSU regulations guiding the discipline of Senior Officers of EBSU and is therefore void.
3. That the Plaintiff is entitled to receive all her salaries, other entitlements and benefits including promotions accruable to her under the terms of her employment.
4. That the said letter of termination/withdrawal of appointment of the Plaintiff dated 5th December, 2007 is hereby set aside.
5. That the 2nd and 4th Defendants are ordered to re-instate the Plaintiff to her office and duty forthwith as Lecturer II.
6. That the Defendants are ordered to pay to the Plaintiff all accrued salaries and emoluments from 5th December, 2007 to date.”
Being aggrieved with the Judgment of the lower Court, the Appellants lodged an Appeal against the same by their undated Notice of Appeal filed on 14/4/2009. The Notice of Appeal contains five Grounds of Appeal. The Notice of Appeal was amended pursuant to the order of this Court made on 13/7/2010. The amended Notice of Appeal contains six Grounds of Appeal.
The relief which the Appellants seek as set out in the amended Notice of Appeal reads:-
“An order setting aside the judgment/orders of the lower Court, and striking out the suit of the Respondent for being incompetent or dismissing the suit for lacking in merit.”
In accordance with the Rules of this Court, parties duly filed and exchanged Briefs of Argument. Appellants’ Brief of Argument dated 16/7/2010 and filed on 19/7/2010 pursuant to the order of Court made on 13/7/2010 was settled by Dr. J.O. Ibik SAN; while the Amended Brief of Argument of the Respondent dated 18/3/2011 and filed on 21/3/2011 pursuant to the Order of Court made on 16/3/2011 was settled by Chief F.N. Mgbada (M.O.N.). The Appeal was entertained on 27/2/2012 and C.C. Echetebu (Miss) of Counsel and Hon. Felix Mgbada (MON) learned lead Counsel adopted and relied upon the Briefs of Argument filed on behalf of their respective clients as hereinbefore identified, in support of their positions in the Appeal.
Appellants formulated four issues for the determination of the Appeal in their Brief of Argument. They read thus: –
“(a) ISSUE ONE – whether the lower Court was not perverse in holding the Respondent exempt from confirmation of her appointment on the footing of lateral transfer of service (amended ground 2).
(b) ISSUE TWO – whether the lower Court was not perverse in holding Respondent’s action competent and compliant with Pre-Action Notice (amended ground 3).
(c) ISSUE THREE – whether the lower Court was not perverse in declaring ultra vires, null and void Exhibit L and awarding consequential reliefs (amended ground 4, additional ground 6 and original ground 1).
(d) ISSUE FOUR – whether the lower Court was not perverse in adjudging 2nd to 4th Appellants liable (additional ground 5).
The Respondent likewise formulated four issues for the determination of the Appeal in her amended Brief of Argument. They are:-
“2(a). ISSUE ONE
Whether the trial Court was not right in holding that the Respondent will not serve another period of probation and her appointment will not be re-confirmed again by Ebonyi State University; the Respondent having been confirmed and had served 2-year probation in University of Port Harcourt, in accordance with Ebonyi State University Regulation Guiding the Conditions of Service for Senior Staff, July 2004 – rules 2.4(4)(a) page 7 and 2.9 (7) page 11 of the said Regulation. (Distilled from ground 2).
2(b). ISSUE TWO
Whether the Respondent did not issue a Pre-Action Notice dated 12/2/2008 to the Appellants, tendered and wrongly rejected by the trial Court pages 23-25 of the records, which Notice was eventually upheld by the same Court in its judgment; if not, of what effect has it in the suit/judgment. (Distilled from amended ground 3)
2(c). ISSUE THREE
Whether the lower Court was not right in declaring that the respondent was not given a fair hearing by the Appellants in accordance with the laws of natural justice and Section 36 of the Constitution of the Federal Republic of Nigeria 1999. (Distilled (sic) from additional ground 6 and original ground 1)
2(d) ISSUE FOUR
Whether the lower Court was not right in declaring that the Appellant’s action was null and void for not following the University Rules and Regulations Governing the Conditions of Service for Senior Staff (Exhibit ‘H’) chapter 14 (14. 1-14.4 pp 116-122) of the Regulation before terminating the appointment of the Respondent (Additional ground 5).”
The issues formulated by the parties though differently worded or couched are shown to have been distilled from the same Grounds of Appeal. This being the case, I consider it expedient to determine the Appeal upon the issues as formulated by the Appellants and in so doing, I will deal first with Appellants’ issue Two, as the Appellants by the issue are challenging the competence of the Respondent’s suit/case in which the lower Court entered Judgment in favour of the Respondent and against them.
APPELLANTS’ ISSUE TWO:
Dwelling on this issue, the Appellants said to the effect that the import of Pre-Action Notice on the competency of the Respondent’s suit was not lost on the learned trial C.J. This is in the light of the statement the learned C.J. made in the judgment to wit:
“The Plaintiff claimed in paragraph 25 of her Statement of Claim that she served the Defendants Pre-Action Notice and pleaded same”. The Appellants however submitted to the effect that the Respondent did not plead that Pre-Action Notice was served in the said paragraph 25. That the averment in the paragraph, is only to the effect, that a solicitor wrote a letter, seeking to know why the Respondent’s service with the 1st Appellant was withdrawn with immediate effect, and her salaries and allowances unpaid since December 2007, The Appellants submitted to the effect that though it is not incumbent on the Respondent to plead compliance with Pre-Action Notice, in the Statement of Claim, it becomes necessary for her to plead compliance, in reply to averment in paragraph 9 of their Statement of Defence that specifically raised the issue of non-service of Pre-Action Notice, if a Pre-Action Notice was actually given them (Appellants).
The Appellants referred to Order 25 Rules 6(2) and 9 of the Imo State High Court (Civil Procedure) Rules 1988 (which was in force at the time of trial) and submitted that failure of the Respondent to plead compliance with Pre-Action Notice ought to have been taken as admission against interest. The Appellants not only accused the lower Court of not adhering to the rules of pleadings, but also that the said Court failed woefully to take into cognizance the Respondent’s aborted attempt to put in evidence the letter pleaded in paragraph 25 of the Statement of Claim, as the letter was rejected in evidence and so marked in the ruling of the lower Court relating to the letter.
The Appellants further said that the Respondent not only closed her case without further attempt to prove compliance with Pre-Action Notice, but also that no subpoena was served on the 2nd Appellant to testify for the Respondent, nor was any notice served on the 1st Appellant to produce the alleged Pre-Action Notice. Again, the Appellants not only said that the evidence of DW1 on the issue of Pre-Action Notice was consistent with their pleading, but also that the evidence adduced in that regard, was not challenged at all under cross-examination. That the implication and/or inference to be drawn from this, is that the defence of non-compliance with Pre-Action Notice, therefore stood unchallenged and admitted by the Respondent. In the circumstances, the Appellants contended that the provision of Section 149 (d) of the Evidence Act had no role whatsoever to play in the evaluation of the evidence adduced at the trial. That the learned trial C.J. was therefore palpably wrong in his decision on compliance with Pre-Action Notice and the cases of Nigerian Ports Authority v. Construzioni General E.C.S. & Anor (1974) 12 S.C. 81; and Kwaa v. Kwakwa (1937) 3 WACA 176, amongst others, were cited in aid.
The Appellants submitted to the effect that on the authority of such cases as Katsina Local Authority v. Makudawa (1971) 7 N.S.C.C. 119, it is not in doubt that their specific pleading and unchallenged evidence of non-compliance with Pre-Action Notice by the Respondent, and non-commencement of action within the period therein stipulated entitled them (Appellants) to a verdict of dismissal of the Respondent’s case commenced in violation of statutory pre-condition requirement. This is because the proceedings of the lower Court being inconsistent with the statutory pre-condition requirement on commencement of action against a protected beneficiary, is a nullity and the cases of Ngelegala v. Tribunal Authority Nongowa Chiefdom (1953) 14 WACA 325; Anambra State Government v. Nwankwo, (1995) 9 NWLR (pt. 418) 245 at 257; and Mobil Producing Nig Ltd (sic) v. Lagos State Environmental Protection Agency (2003) Vol. 5 WRN 1; amongst others, were cited in aid. It is the further submission of the Appellants that the 2nd to 4th Appellants constitute bodies and/or embodiments of the 1st Appellant and are, accordingly, among the intended beneficiaries of the statutory pre-action protection contained in Section 31 of EBSU Law. In conclusion, the Appellants urged the Court to set aside the perverse decision of the trial Court, and reverse same by dismissing the Respondent’s claim in its entirety.
The Respondent responded to Appellants’ issue two by her issue two which is equally distilled from ground 3 of the amended Grounds of Appeal from which the Appellants distilled their issue Two.
Dwelling on the issue, the Respondent said to the effect that she wrote two letters to the 2nd Appellant dated 13/12/2007 and 11/2/2008 and which were admitted as Exhibits M1 and M2 respectively. That by the two letters she asked the 2nd Appellant for the reasons her service was withdrawn, but that there was no response to the letters at anytime. The Respondent said that after she had waited for a reasonable time without response to the letters, she instructed her solicitor, Barr. Ndubuisi Obiukwu to write the 2nd Appellant, a letter dated 12/02/08. That it was categorically stated in a part of the letter that “this letter represents pre-action notice to the university”. The Respondent stated that the lower Court wrongly rejected the letter in evidence on the erroneous ground that the Respondent is not the author, but the lower Court eventually used it in its judgment. The Respondent said to the effect that the 2nd and 4tn Appellants were duly served the Pre-Action Notice through IFEX COURIER, receipt Nos. 1542808 and 1542809 respectively, while the receipt number in respect of the Notice served on the 3rd Appellant is 1542810. It is the further submission of the Respondent that the postage of the documents (i.e.) pre-action notices through IFEX COURIER to the 2nd and 3rd Appellants is enough evidence of service of the documents on the Appellants. The Respondent said that in NNPC V. Fawehinmi (1998) 7 NWLR (pt. 559) at 598, a case similar to the instant one, the Supreme Court held that pre-action notice does not interfere with a person’s right of access to determine his constitutional right when that right is infringed on. Also cited is the case of Gbadamosi V. Nigerian Railway Corporation (2007) All FWLR (Pt. 367) 855 at 857 – 859 in which this Court is said to have applied the position of the law as declared by the Supreme Court in NNPC V. Fawehinmi (supra) and reiterated the purpose of pre-action notice to be to allow the proposed defendant consider whether to make reparation to the intending plaintiff or not.
It is the stance of the Respondent that pre-action notice will not and should not defeat her right of access to court or to sue when her constitutional rights are infringed upon, or fair hearing not given to her. That no reasonable tribunal will hide under the cloak of pre-action notice when the rights of its citizen are violated as in this instant case. The Respondent submitted that the 1st Appellant was duly served with pre-action notice which its office, hid during trial and that the lower Court was right in holding in its judgment that the 1st Appellant was served.
The first and fifth of the six issues formulated for the determination of the case by the learned trial C.J. in his judgment, indeed took cognizance of the Appellants’ challenge to the competence of the Respondent’s case on the grounds that no pre-notice was given them, and that the case was not commenced within 3 months of the act complained of, and consequently the lack of jurisdiction on the part of the lower Court to entertain the case. The two issues in question read thus: –
“1. Whether the action is statute barred.
5. Whether the defendants were served Pre-Action Notice and whether the Defendants are deemed to have waived Pre-Action Notice.”
Dwelling on the first of the two issues, the learned trial C.J. concluded to the effect that the Respondent initiated the case within the three months contemplated by Section 31(2) of EBSU Law and accordingly held that the case was not statute-barred. Appellants’ issue Two clearly shows that they have no grouse with the finding of the learned trial C.J. that the Respondent’s suit is not statute barred, as the said issue two concerns itself solely with the issue of non-compliance with Pre-Action Notice.
The learned trial C.J. in respect of the fifth of the issues he formulated and which relates to Pre-Action Notice, said thus at pages 105 – 107 of the records: –
“On whether the Plaintiff was served Pre-Action Notice (sic).
Section 31(1) of Ebonyi State University Law No. 7 of 1999 provides …
In this suit the Plaintiff sued the Defendants (Ebonyi State University and ors) claiming wrongful withdrawal/termination of her appointment. The plaintiff claimed in paragraph 25 of her Statement of Claim that she served the Defendants Pre-Action Notice and pleaded same. In her evidence she said that she served the Vice- Chancellor of ESBU a Pre-Action Notice through his Secretary. The Defendants on the other hand through the evidence of DW1 Peter Mgbabor denied ever seeing the Pre-Action Notice. The Defendants neither called the Vice-Chancellor nor the secretary to refute the allegation.
From the above enabling law the Plaintiff is required to serve the Respondent (sic) one month Pre-Action Notice…
As I have stated above the Defendants failed to call either the Vice-Chancellor or his Secretary. It is trite that where a law provides for service of Pre-Action Notice before commencement of an action it is a condition precedent to the competence of any action commenced against a party such a condition precedent is meant to protect. It follows therefore that where it is established that no such notice was served or that the condition is not otherwise complied with, any suit commenced in contravention of the provision of such law is wrongly commenced and should not be entertained by any Court.
In this case the question now is whether the Vice-Chancellor was served or not as claimed by the Plaintiff. The failure to call the Vice-Chancellor or his Secretary is material to the determination of this issue. In my view the evidence of the Vice-Chancellor or his Secretary would have determined the issue of Pre-Action Notice one way or the other. The law is that a party is bound to call all vital witnesses whose evidence would assist the Court in the determination of the case. If a party withholds a vital witness the Court may invoke Section 149(d) of the Evidence Act against that party. Section 149(d) reads: “that evidence which could be and is not produced would, if produced, be unfavourable to the person who witholds it”. I therefore invoke the above section against the Defendants.
For the reasons stated above, I therefore hold that the Plaintiff complied with the law which prescribes the service of one month’s Pre-Action Notice on the Defendants before filing the action.”
The law reports are replete with decisions of the Supreme Court and this Court on “Pre-Action Notice”. I will refer and reproduce some portions of two or three decisions of the Supreme Court in this regard, and apply same to the facts of the instant case in order to determine the correctness or otherwise of the reasoning and conclusion of the learned trial C.J, in the portion of his judgment re-produced above.
The first of the cases is NIGERCARE DEVELOPMENT CO. LTD. V. ADAMAWA STATE WATER BOARD & ORS (2008) ALL FWLR (PT. 422) 1053. The case is one of breach of contract for the rehabilitation of water treatment plants in Yola, Numan and Mubi in Adamawa State. After the case had been adjourned for judgment, the learned trial Judge suo motu invited Counsel for the parties to address him on the legal effect of the provisions of Section 51(1) and (2) of the Adamawa State Water Board Edict No.4 of 1996 which relates to pre-Action Notice and non-compliance with its provisions. Suffice it to say that in his judgment, the learned trial Judge struck out Appellant’s suit having found as a fact and held that there was non-compliance with the provision of the Edict aforementioned and therefore that the Appellant’s suit was incompetent. An appeal by the Appellant to the Court of Appeal was dismissed. The appellant further appealed to the Supreme Court. In dismissing the Appeal, the Supreme Court considered the provisions of the aforementioned Edict. In the lead judgment delivered in the case, by Ogbuagu, JSC; his lordship dwelled upon Pre-Action Notice at length from pages 1069 – 1077 citing and quoting extensively from previous decisions of the Supreme Court in relation to Pre-Action Notice and its application. Amongst others, his lordship held to the effect that: –
1. Provision relating to Pre-Action Notice is a condition precedent as far as suits against the beneficiaries of the provision are concerned. Therefore the failure to comply with it clearly makes a suit incompetent. That the provision does not seek to oust forever the jurisdiction of the Court but only temporarily. It just provides that unless the condition precedent is complied with, a Complainant or Plaintiff cannot sue or initiate any action against the beneficiary of the provision.
2. That the constitutional right of access to Court does not preclude statutory regulations of the exercise of the right.
Tobi, JSC; in his concurring contribution in the judgment stated thus at 1081: –
“The rationale behind the jurisprudence of Pre-Action Notice is to enable the Defendant know in advance the anticipated action and a possible settlement of the matter between parties without recourse to adjudication by the Court. It is a harmless procedure designed essentially to stop a possible litigation, thus saving money and time of the parties. It is almost like Pre-Action letter of demand emanating from the chambers of Counsel for the Plaintiff to a Defendant asking for specific conditions to be fulfilled in order to avoid litigation. The only main difference between the two is that while one is statutory requirement, the other is not, in the sense that a Plaintiff can file an action without writing a pre-action letter. In the case of the former, an action commenced without Pre-Action Notice, where one is statutorily required, is a nullity ab initio.”
This case was decided by the Supreme Court on 7/3/2008.
The second of the cases is NTIERO V. NIGERIAN PORTS AUTHORITY (2009) 2 WRN 1, (2008) ALL FWLR (Pt. 430) 688 decided by the Supreme Court on 23/5/2008. The case was one of interdiction of the appellant without pay, and his subsequent dismissal. The Appellant commenced an action before the High Court of Justice, River State, claiming for the reliefs, that his interdiction was unlawful null and void; and likewise his dismissal. One of the issues considered in the case by the Supreme Court reads: –
“Whether Sections 92 and 98 of Port Act were properly applied to the case of the Appellant (founded on a contract of service) and whether the Court of Appeal was right that non-compliance with the said provisions deprived the trial court of jurisdiction”.
After re-producing the provisions of the Port Act in question, the Supreme Court dwelling on the same, per Akintan, JSC; stated thus at page 695: –
“The provisions as set out above are clear, direct and mandatory. The required notice is expected to be given when the decision to commence an action has been taken and it must be given and served on the Chairman or Secretary of the authority as provided in Section 111 of the Act) latest one month before the commencement of the action. The notice is also required to be in writing. It follows therefore that any purported notice which fails to meet any of the conditions specified in the section of the Act will be null and void. Any action commenced in breach of the provisions will also have been commenced without complying with one of the required due process or pre-condition and such action would be incompetent Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
Dwelling specifically on the issue hereinbefore set out, his lordship stated at page 698 thus: –
“The question whether the provisions of section 110(2) of the Act which has prescribed for pre-action notice is applicable to the appellant because his claim is founded on contract, does not arise…
…The provision relating to Pre-action notice contained in section 110(2) of the Act are independent of those in section 110(1) of the same section. The question whether the appellant’s claim was founded on contract therefore could not prevent his action from being commenced without first complying with the pre-action notice.”
The reasoning of his lordship Muhammad, JSC; on the issue, in his concurring judgment at page 703 reads: –
‘The operative words in the section quoted above are “no suit shall be commenced against the authority” ‘until one month at least”
…The court below found that none of the requirements as stipulated in section 110(2) of the Ports Act had been complied with and that there was no service as required by law.
The language of the law is simple, clear and unambiguous. It requires no external aid to interpret it other than giving it the ordinary and natural meaning…
The third of the cases is FEED & FOOD FARMS (NIGERIA) LTD v. NNPC (2009) 37 WRN 1. (2009) All FWLR (Pt.484) 1436 decided by the Supreme Court on 26/6/2009.
In the case, the Supreme Court held amongst others to the effect that the intendment of a law stipulating the giving of Pre-Action Notice is that a Plaintiff who fails to file a Pre-Action Notice may not have a right of action. That a Defendant who ordinarily should enjoy the protection afforded by the provision relating to Pre-Action Notice but fails to raise the issue of non-service of Pre-Action Notice, has simply waived the defence and that there is nothing preventing him from doing so.
In my considered view, it is incontrovertible that the Appellants specifically raised the issue of the non-service on them of Pre-Action Notice in compliance with Section 31(1) of EBSU Law, by the Respondent, in the instant case. This is so, having regard to the averment in paragraph 9 (a) of their Statement of Defence. I am also of the considered view that it is incontrovertible in the light of the evidence adduced by the Appellants through DW1, that the Appellants duly led evidence in support of their stance that no Pre-Action Notice was served on the 1st Appellant. It is therefore clear from the pleading of the Appellants and the evidence adduced before the lower Court that any contention that the Appellants waived their defence of non-compliance with Pre-Action Notice by the Respondent, would be nothing more than a serious misapprehension of the pleadings of the Appellants and evidence adduced in support thereof. It is however to be noted that the learned trial C.J. in the portion of his judgment quoted hereinbefore, in any event, never held or found the Appellants to have waived their defence of non-compliance with Pre-Action Notice by the Respondent, by their participation in the trial to the point of judgment.
The Appellants are clearly on firm grounds in their submission to the effect that the Respondent as a Plaintiff needed not to have pleaded compliance with Pre-Action Notice in her Statement of Claim. It is only when the Appellants as Defendants raise non-compliance with Pre-Action Notice as provided for in the EBSU Law, by the Respondent, that the Respondent if she had served the Pre-Action Notice prior to the institution or initiation of her suit, should join issue with the Appellants in that regard, in her reply. See MOBIL PRODUCING NIGERIA UNLIMITED V. LSEPA (2003) FWLR (PT. 137) 1029, in the case the Supreme Court per Ayoola, JSC; who delivered the lead judgment dwelling on “Jurisdiction” stated to the effect that the tendency to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on the ascertainment of facts leads to error. His lordship then fashioned out the following guidelines: –
“(i) Where on the face of the proceedings a superior Court is competent, incompetence should not be presumed;
(ii) Where on the face of the proceedings, the Court is incompetent, the Court should of itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties. If it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings;
(iii) Where the competence of the Court is affected by evident procedural defect in the commencement of the proceedings and such defect is not dependent on ascertainment of fact, the Court should regard such incompetence as arising ex facie;
(iv) When the competence of the Court is to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on the ascertainment of facts the incompetence cannot be said to arise on the face of the proceedings. The issue of fact if properly raised by the party challenging the competence of the Court should be tried first before the Court makes a pronouncement on its own competence;
(v) Where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the Court, it is for the party who alleges the Court’s incompetence to raise the issue in his statement of defence in proceedings commenced by Writ of Summons or by affidavit in cases commenced by Originating Summons;
(vi) A Judgment given in proceeedings which appear ex facie regular is valid.
(Underlining supplied by me for emphasis).
See also OWOSENI V. FALOYE (2006) 36 WRN 1, (2005) ALL WLR (PT. 284) 220 where Oguntade, JSC; in his concurring judgment said thus, at page 249: –
“I agree that the absence of jurisdiction in a Court to adjudicate on a matter can be raised at any stage of the proceedings and indeed for the first time on appeal.
But before a defendant can raise the matter before evidence is led, the material giving rise to the complaint of absence of jurisdiction in the court before which the suit is brought must be apparent on the face of the Statement of Claim. Alternatively, the defendant may plead the issue himself. A Defendant is not entitled to rely upon a defence, which is based on facts not stated in the Statement of Claim unless he alleges such facts specifically in his pleading by way of special defence. See NIPC Ltd v. Bank of West Africa Ltd. (1962) 1 ALL NLR (Pt.4) 556; (1962) 2 SCNLR 324 and Sketch Publishing Company Ltd v. Ajagbmokeferi (1989) 1 NWLR (pt. 100) 678.”
It would appear that one does not need to cite any authority on the question that the burden of proving the service of a Pre-Action Notice as required by a law that provides for such, is on the Plaintiff who initiates the action where there is a challenge to the competence of that action on the ground of non-service of the Pre-Action Notice by the Defendant. This is against the backdrop of the position of the law that it is he who asserts the affirmative that has the duty to prove the same, as there is no duty on a party to prove the negative. See IMONIKHE V. UNITY BANK PLC. (2011) ALL FWLR (PT. 586) 423.
The learned trial C.J. in the portion of his judgment quoted hereinbefore, would appear to have appreciated that the burden of proving the service of Pre-Action Notice as required by Section 31(1) of EBSU Law, was on the Respondent; hence his saying that “the plaintiff claimed in paragraph 25 of her Statement of Claim that she served the Defendants Pre-Action Notice and pleaded same”.
As earlier stated, it is the submission of the Appellants that the Respondent did not plead compliance with Pre-Action Notice in paragraph 25 of the Statement of Claim. The averment in the said paragraph 25 is better re-produced to know the correctness of the stance of the Appellant. The averment reads: –
“When the Plaintiff did not receive any reply and no reason given to her for non-reply to the letters, the Plaintiff says, she then instructed her lawyer to write the university and to ask why her services was “Withdrawn with immediate effect” and her salaries and allowances stopped since December, 2007. This letter is dated 12th day of February, 2008 and the letter is pleaded and will be relied on.”
I cannot but say that I see nothing expressly or remotely pleaded about Pre-Action Notice in paragraph 25 of the Statement of Claim set out above. What is expressly pleaded therein is a letter dated 12/2/2008 in which the Respondent’s lawyer acted as instructed by the Respondent, The learned trial C.J. in the portion of his judgment hereinbefore set out, also said that the Respondent gave evidence as to the service of Pre-Action Notice on the Appellants. The evidence-in-chief of the Respondent who testified as PW1 runs from pages 62- 68 of the records. The evidence-in-chief of the Respondent in relation to paragraph 25 of the Statement of Claim at pages 66 – 67 of the records reads: –
“COURT: A letter from Acting Registrar EBSU Steve E. Odo dated 5th December, 2007 addressed to Dr. Eteng captioned “withdrawal of Appointment” is admitted and marked exhibit L.
When I got the letter I quickly searched through exhibit H to see where the term withdrawal of service was written and I did not see such a thing. I quickly wrote the Vice-Chancellor of the University asking him to tell me what led to the withdrawal of my appointment. This letter was written on 18th December, 2007.
I later wrote a reminder to the Vice-Chancellor on 11th February, 2008. If I see a copy of the two letters I can recognize them. The documents shown to me are the said letters. Counsel for the plaintiff seeks to tender the two letters. Counsel for the defence is not opposed.
COURT: Letters from Plaintiff to the 2nd Defendant dated 18th December, 2007 and 11th February, 2008 are admitted and marked exhibits M1 and M2 respectively.
The two letters were not replied to. When I did not receive any reply to the two letters above I instructed my lawyer to write the Vice-Chancellor of Ebonyi State University asking the University to explain why my appointment was withdrawn with immediate effect and why my salary and allowances were stopped from December, 2007. My lawyer wrote the university on 12th February, 2008. My lawyer warned in the said letter to the Vice-Chancellor that he will sue if I am not recalled. If I see a copy of the letter my lawyer wrote I can recognise same.
The document shown to me is a copy of the letter my lawyer wrote and sent to the Vice-Chancellor through his Secretary. Counsel for plaintiff seeks to tender a copy of the said letter. Counsel for the defence is opposed to the admission. He says that the witness is not qualified to tender the exhibit as the letter was not addressed by the witness nor was it addressed to her. Counsel for the Plaintiff says that the witness instructed the lawyer to write the letter and that it came from a proper custody and that the witness identified the letter.
COURT: This document was addressed to the Vice-Chancellor EBSU and written by Bar. Ndubuisi Obiukwu and copied to the following: (1) Vice-Chancellor EBSU (2) Registrar EBSU (3) The Dean of Social Sciences and (4) HOD Sociology and Anthropology.
PW1 was neither the author recipient (sic) nor even one of those copied. She is not the proper witness to tender the document. The letter from Bar. Obiukwu to Vice-Chancellor EBSU is not admissible in evidence for the aforementioned reasons. The said letter is to be marked rejected.”
The pertinent question is, what evidence concerning Pre-Action Notice given to the Appellants and its service on the 1st Appellant did the Respondent testify to, or about having regard to her evidence as re-produced above.
The Respondent by specifically pleading her reliance on the letter dated 12/2/2008 in the proof of the averment in paragraph 25 of the Statement of Claim did no more than the law requires. This is because it is the law that pleadings are meant to be specific and documents sought to be relied upon are better pleaded specifically. See AGBOOLA V. UBA PLC (2011) 31 WRN 1 at 18, (2011) ALL FWLR (Pt.574) 74.
The law is also settled as to the manner of proving a document. The content of a document can only be proved by tendering the original document or secondary evidence thereof after laying the proper foundation. See GOODWILL & TRUST INVESTMENT LTD. V. WITT & BUSH LTD. (2011) All FWLR (Pt.576) 517, (2011) 34 WRN 1. Hence the content of a document cannot ordinarily be established viva voce. See OGUNDELE V. AGIRI (2010) 9 WRN 1. I cannot but observe that it was not the evidence of the Respondent that she “sent” the letter dated 12/2/2008, written by her lawyer to the 2nd Appellant through the said 2nd Appellant’s Secretary. According to the Respondent, it was her lawyer who wrote the letter that sent the same to the 2nd Appellant through his secretary. Nothing was tendered before the lower Court to show that the Respondent’s lawyer sent the letter pleaded in paragraph 25 of the Statement of Claim at anytime, talk less of the manner in which this was done. I do not think one has to be a genius to know that the evidence of the dispatch/service of the letter written by her lawyer, given by the Respondent is nothing more than hearsay. Aside from this, the learned trial C.J. in stating that the Respondent testified as to the giving of Pre-Action Notice to the Appellants has clearly lost sight of the fact that he had earlier in the proceedings in the case rejected and so marked the letter dated 12/2/2008 and in which the Respondent said her lawyer threatened to sue if she was not recalled. The rejection of the letter dated 12/2/2008 in evidence by the learned trial C.J. (whether rightly or wrongly) stands as correct as it was never challenged on appeal at any time before judgment was delivered by the learned trial C.J. and is also not being challenged in the instant appeal.
Where then is the document which the learned trial C.J. found to be a Pre-Action Notice assuming the letter dated 12/2/2008 is the Pre-Action Notice the Respondent served in the instant case? The learned trial C.J. would appear to have forgotten that the position of law is that a document once rejected in evidence and so marked, is not an exhibit for use in the evaluation of evidence in the case. Such a document is no longer relevant and the content cannot be used for the determination of any issue in the case. In other words a rejected document has no probative value and therefore cannot be used for any purpose in the case. See ADDISON UNITED NIGERIA LTD. V. LION OF AFRICA INSURANCE LTD. (2011) ALL FWLR (PT. 594) 130. To compound the situation, the learned trial C.J. also invoked the provision of Section 149(d) of the Evidence Act against the Appellants in respect of a Pre-Action Notice that the Respondent had not shown by any evidence to have been issued to the Appellants by her lawyer, talk less of its having been served on the 1st Appellant through the 2nd Appellant who was in turn said to have been served through his Secretary. Again it would appear that the learned trial C.J. overlooked the position of the law concerning “withholding of evidence”. It is that a plaintiff has to discharge the onus of proof on him, before the inference under Section 149(d) of the Evidence Act can be drawn that the defendant has failed to challenge plaintiff’s evidence by production of a particular piece of evidence that will be against his interest. Section 149(d) of the Evidence Act pertains to refusal to tender what is in the possession of the said party and not the failure of the party to lead evidence through a particular witness. The presumption of withholding evidence cannot be invoked on the basis “that evidence of what has never been in his possession would be unfavourable to such a party”. See A.G ADAMAWA STATE V. WARE (2006) ALL FWLR (Pt. 306) 860; TEXACO NIGERIA PLC V. KEHINDE (2002) FWLR (pt. 94) 143; MOBIL PRODUCING NIG. UNLTD V. ASUAH (2002) FWLR (PT. 107) 1196 at 1218; and LAWSON V. AFANI CONTINENTAL CO. NIG. LTD. & ANOR (2002) FWLR (PT. 1736) at 1767.
The provision of Section 31(1) of EBSU Law which provides for Pre-Action Notice is set out at page 105 of the records. It reads thus: –
“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 which he claims.”
The provision of Section 31 (2) of the EBSU Law was not set out in the judgment. It is however clear from pages 96 – 97 of the records whereat the learned trial C.J. treated the issue as to “Whether the action is statute barred” that what the provision in question provides for, is the time frame within which a suit to be instituted against the 1st Appellants and/or its bodies, must be instituted, and this is within three months from the date of the act complained of.
Two of the three Supreme Court decisions I have cited hereinbefore on the issue of Pre-Action Notice are NIGERCARE DEVELOPMENT LTD. ADAMAWA STATE WATER BOARD & ORS and NTIERO V. NIGERIAN PORTS AUTHORITY (both supra).
The provision of Section 51(1) of the Adamawa Water Board Edit, No. 4 of 1996; and that of Section 110(2) of the Ports Act, Cap. 361 Laws of Federation of Nigeria 1990, relating to Pre-Action Notice considered and pronounced upon in the aforementioned two cases and that of Section 31(1) of EBSU Law in the instant case, are all in the same tenor. In the two Supreme Court cases (supra) that Court held amongst others that the operative words in the provision relating to Pre-Action Notice being “No suit”, the service of Pre-Action Notice by an intending Plaintiff was imperative in respect of all actions without exception and that Pre-Action Notice must not only be in writing but must contain all the information as stipulated in the provision relating thereto. In the Nigercare case, reference was made to another Supreme Court case – BAKARE V. NIGERIAN RAILWAY CORPORATION (2007) ALL FWLR (PT. 391) 1579 wherein that Court while considering provisions of a statute which provides for both Pre-Action Notice and time frame to institute an action, against the beneficiary of such provisions, held to the effect that the two conditions must be met before any action is instituted against the beneficiary of the provisions. That failure to comply with either of the two requirements of the provisions will lead to such action being declared incompetent and in this regard, the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 342 and another case were applied.
In my considered view, that it has been sufficiently demonstrated from all that has been said before now, vis-a-vis the evidence adduced by the Respondent that the said Respondent never produced before the lower Court any evidence of the Pre-Action Notice that she caused to issue in the instant case, talk less of the service of the same on the 1st Appellant as provided for in the EBSU Law. The finding of the learned trial C.J. to the contrary, in the circumstances, is clearly perverse having regard to the evidence adduced before him and the position of the law. The finding that the Respondent served the 1st Appellant with Pre-Action Notice as required by the EBSU Law is accordingly set aside as there is every power in this Court to set aside a perverse finding of the lower court. See OSHE V.OKIN BISCUITS LTD (2010) 33 WRN 1 at 9 – 10 and 15; and OGUNDEPO V. OLUMESAN (2012) 5 WRN 1 at 16. I find from the evidence before the lower Court that no Pre-Action Notice was served by the Respondent on the 1st Appellant in accordance with the provision of Section 31(1) of EBSU Law at any time before she instituted the instant case.
On the strength of the cases hereinbefore cited, it is therefore clear that if the learned trial C. J. had made the right finding concerning the issue of Pre-Action Notice he rightly considered in his judgment, he would have had no difficulty in holding that the Respondent’s suit as constituted (and I have used the words “as constituted” most advisedly), is incompetent despite his earlier finding that the said suit was not statute barred. This is so because, for the suit to be competent, the Respondent not only had to have given the Appellants Pre-Action Notice as required by Section 31(1) of EBSU Law, but also she was enjoined to have instituted the suit within three months of the act complained of as provided by Section 31(2) of the same Law (and which she did according to the finding of the learned trial C.J.). The position of the law is that the two requirements must be found to co-exist. See BAKARE v. NIGERIAN RAILWAY CORPORATION (supra).
I am not unaware of the decision of this Court delivered on 9/2/2009 in OLATUNJI V. HAMMED (2009) 49 WRN 165, (2010) ALL FWLR (PT. 540) 1365. The respondent therein instituted an action against the appellants therein before the High Court of Lagos State under the Fundamental Rights (Enforcement Procedure) Rules. The 2nd appellant is Federal Airport Authority of Nigeria. A preliminary objection to the suit was raised on the ground of non-compliance with Pre-Action Notice amongst others. The High Court overruled all the grounds of the preliminary objection. The appellants appealed against the ruling of the High Court to the Court of Appeal and also applied for the stay of the proceedings before the High Court. The High Court dismissed the application as a result of which the appellants filed a similar application for stay of proceedings before the Court of Appeal. The Court of Appeal dismissed the application. In dismissing the application, this Court per Rhodes-Vivour, JCA; (as he then was), not only held that an applicant complaining of the violation of his right under the Constitution is not required to comply with Pre-Action Notice, but also that the same applies to breach of contract cases. I have painstakingly read the case and I do not see what the learned jurist stated as the basis of his pronouncement or the case or cases he relied upon especially as it relates to “breach of contract cases”. I am aware that the position of the law is that this Court is bound by its previous decisions. However there are exceptions to this. One of such exceptions, is that this Court is not bound to follow its decision which although not expressly overruled cannot in its opinion stand with a decision of the Supreme Court. See KUPOLATI & ANOR V. OKE & ORS. (2009) ALL FWLR (PT. 486) 1858; and ONWARD ENTERPRISES LTD V. MV “MATRIX” & ORS. (2010) ALL FWLR (pt. 543) 1817.
I must say that if cases of breach of contract had been such that should generally be initiated by way of Fundamental Rights (Procedure Rules), I might have been compelled to follow the case under consideration as against the Supreme Court cases earlier cited in this judgment. It is however settled law that cases of breach of contract (particularly of contract of employment) like any other normal civil matter are not suited for the special procedure for enforcement of fundamental rights under the Constitution. I know of no authority that has decided that cases of breach of contract are not normal or ordinary civil matters or causes.
Relying on the Supreme Court cases (and which the Court have not departed from till date) and having reversed the perverse finding of the lower Court that the Respondent served a Pre-Action Notice in this case on the 1st Appellant, it follows that the Respondent’s suit stood incompetent at its commencement or initiation and that all the proceedings founded thereon including the judgment of the learned trial C.J. therein, a nullity. See FAWEHINMI CONSTRUCTION CO. LTD V. OBAFEMI AWOLOWO UNIVERSITY (1998) 5 S.C. 43. It is of no moment that the 2nd – 4th Appellants are parties in the suit. The Respondent made it clear in paragraphs 2 – 5 of the Statement of Claim to the effect that the said Appellants were sued because they are heads of bodies of the 1st Appellant. The 1st Appellant in any case was the body that offered the Respondent the appointment and also determined the same through the acts of it human agents. The law is settled that an agent that acts on behalf of a known and disclosed principal cannot incur any personal, liability. See OSIGWE V. PSPLS MANAGEMENT CONSORTIUM LTD (2009) 16 WRN 1. This being the position the Respondent’s suit is clearly against the 1st Appellant into whose employ or services the Respondent seeks to be re-instated. She held no appointment from any of the other Appellants. This was why I had stated earlier that I have used the words “as constituted” most advisedly.
Accordingly, Appellants’ issue Two is resolved in their favour. Given the success of the issue, it follows that all the proceedings in the case including the judgment appealed against must be and are declared a nullity.
This Court as an intermediate Court of Appeal is enjoined to consider and pronounce on all the issues put before it by the parties. However there are circumstances in which this Court can dispense with doing this. The circumstances are (i) when an order of retrial is considered desirable or necessary; and (ii) where the judgment appealed against is considered a nullity. See SHASI v. SMITH (2010) 6 WRN 39 at 68; and UZUDA V. EBIGAH (2009) 48 WRN 1, (2009) ALL FWLR (PT. 493) 1224. Though I had earlier indicated that the appeal will be determined upon the issues as formulated by the Appellants, I do not see the need to further dwell on the other issues raised by the Appellants given the success of their issue Two and which has resulted in the declaration of the proceedings and judgment delivered in this case by the lower Court a nullity. This stance clearly accords with the position of the law to the effect that once an appellate Court determines that there was no jurisdiction in the Court lower to it, the appellate Court too would have no jurisdiction of its own to exercise. See EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION (2007) ALL FWLR (PT. 351) 1415.In conclusion, the Appeal is meritorious and it is hereby allowed. The Judgment of the lower Court delivered on 19/3/2009 is hereby set aside. In its place an order striking out the suit before the lower Court on the ground of its incompetence is hereby made.
Costs in the sum of N20, 000.00 is awarded in favour of the Appellants and against the Respondent.
ADAMU JAURO, J.C.A.: I have been afforded an opportunity of reading in advance the lead Judgment just delivered by my learned brother, A.O. Lokulo-Sodipe, JCA. I entirely agree with the reasoning and conclusion contained therein, which I also adopt as mine.
For the same reasons ably articulated and adumbrated in the lead Judgment, I also hold that the Appeal is meritorious. I join my brother in allowing the Appeal.
I abide by all consequential orders made, including order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have the advantage of reading in draft, the Judgment just delivered by my learned brother Lokulo-Sodipe JCA. His lordship has exhaustively and meticulously dealt with all the issues raised in the Appeal. I entirely agree with the reasoning and conclusions reached in the Judgment.
The basic principle behind the requirement of a Pre-Action Notice is to present before hand the grudge or discontentment of the Plaintiff to the Defendant by way of notice so as to give the said Defendant a full opportunity to thoroughly peruse the Plaintiff’s claim and decide whether to settle and compromise the claim or to stand his ground on the act that led to the complaint and thus leave the Plaintiff to seek redress in a Court of law.
In other words, it is to allow the proposed Defendant ample time to consider whether to make reparations to the intending Plaintiff or not. It follows that the whole essence of serving a Pre-Action Notice on a party is that such party is not taken by surprise and to allow the party adequate time to deal with the claim against it. See NNOYE V. ANYICHIE (2005) 2 NWLR (PT.910) 623; ETI-OSA LOCAL GOVERNMENT V. JEGEJE (2007) 10 NWLR (PT 1043) 537; AMADI V. NNPC (2000) 6 SC (pt 66) and GBADAMOSI V. NIGERIA RAILWAY CORPORATION (2007) ALL FWLR (PT 367) 855.
Thus failure to give Pre-Action Notice is a fundamental omission which nullifies any action taken in its absence. In other words, any action commenced without issuing aPre-Action Notice where it is statutorily provided for renders it incompetent. See SHAIBU V. NAICOM (2002)12 NWLR (PT 780) 116; UMUKORO V. N.P.A. (1997)4 NWLR (PT 502) 656.
In the instant case, there is no proof that the Respondent served a Pre-Action Notice on the Appellants as required by section 31(1) of the Ebonyi State University Law. It is a condition precedent that must of necessity be satisfied, failure of which renders the suit against the Appellants incompetent.
For this and the fuller reason given in the lead Judgment, I also hold that this Appeal is meritorious and it is hereby allowed. I abide by the consequential orders made.
Appeal allowed.
Appearances
C.C. Echetebu (Miss)For Appellant
AND
Hon. Felix Mgbada (M.O.N.) with W. NwezeFor Respondent
