IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP:
HON. JUSTICE AUWAL IBRAHIM, PhD
DATE: 23rdJune, 2017 SUIT NO.: NICN/EN/752/2014
BETWEEN:
MAZI LEVI OKATA=========CLAIMANT/RESPONDENT
AND
- THE CHAIRMAN/CHAIRPERSON
OF THE GOVERNING COUNCIL,
ENUGU STATE COLLEGE OF
EDUCATION (TECHNICAL)
- THE PROVOST,
ENUGU STATE COLLEGE
OF EDUCATION (TECHNICAL)
- THE REGISTRAR,
ENUGU STATE COLLEGE
OF EDUCATION (TECHNICAL)
- COMMISSIONER FOR EDUCATION,
ENUGU STATE OF NIGERIA=====DEFENDANTS/APPLICANTS
REPRESENTATION:
Dr G.C. Obiora-Onyia Esq. with Solomon Igberaese Esq. and C.C. Izu Esq. for the Claimant.
Ben C. Ezugwu Esq. for the 1st to 3rd Defendants/Applicants.
Mrs U.J. Chime Esq., Senior Legal Officer, Ministry of Justice, Enugu State for the 4th Claimant.
RULING
The Claimant filed this action on 25th June, 2014 via a Complaint with a Statement of Facts dated the same day. The reliefs sought by the Claimant against the Defendants as stated in paragraph 28 of the Statement of Facts are as follows:
- WHEREFORE, the Claimant claims as per his Writ of Summons, jointly and severally, against the Defendants as follows:
- The sum of N1, 238, 190.90 (One Two Hundred and Thirty-eight Thousand, One hundred and Ninety Naira, Ninety kobo) representing 90 days of unspent annual leave, as Special damages.
- Formal Order of Court directing the Defendants herein to pay over the said sum to the Claimant herein, so that 90 days of unconsumed leave not spent due to exigencies be commuted to money or cash.
- Eight Million, One Hundred and Ninety Thousand, Six Hundred and Fifty-two Naira (N8,190,652.00) special (Medical) Damages and N6,000,000.00 general damages in compensation for the expenditure made, sickness occasioned or aggravated and loss incurred in the course of the Claimant’s struggle or efforts to recover the special damages which escalated due to the denial or delay of his overdue right.
THE TOTAL IS THUS:
N1,238,190.90 = Special Damages
N8,190,652.00 = Special Medical Damages
N6,000,000.00 = General Damages
N15,428,842.90
The Complaint was accompanied with a Statement of facts, list of witnesses, written statement on oath of the Claimant, list and copies of documents to be relied upon at trial. Upon being served with the processes of the Claimant, the 1st to 3rd Defendants filed a Notice of Preliminary objection to the suit dated 30th June, 2015 on the same date. The Notice of Preliminary Objection challenges the competence of the suit as it is presently constituted. The grounds of the Objection are as follows:
(i) The reliefs claimed by the Claimant are unenforceable as they are statute barred.
(ii) Proper Pre-action Notice was not given before the commencement of the suit.
(iii) The suit is bad for misjoinder of cause of action.
The Notice of preliminary objection is supported with a 12 paragraphed affidavit deposed to by Dr Mike C. Onyia, the Registrar of Enugu State College of Education (Technical) and the 3rd Defendant on record. There is one exhibit attached to the affidavit. There is also a written address in support of the preliminary objection.
The learned counsel for the 1st to 3rd Defendants in his written address stated that the State Proceedings Law Cap 146, Laws of Enugu State provides in Section 11(1) that:
No action or proceeding shall lie or be instituted under this law unless it is commenced within twelve months next after the act, neglect or default complained of or in the case of a continuing damage or injury within twelve months next after the ceasing thereof: provided…”
That Section 11(2) of the same law 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 or execution of any written law or of a public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority until the expiration of a period of three months after notice in writing has been, in case of a public officer, delivered to him, stating the cause of action, description and place of residence of the proposed plaintiff and relief which he claims; and the plaint when eventually prepared shall contain a statement that such notice has been so delivered and the date on which it was delivered;
Provided that nothing…
Learned counsel submitted that no Pre-action Notice was served on the 1st to 3rd Defendants as far as the reliefs claimed in paragraph 28 of the Statement of Claim are concerned.
He further submitted that the giving of Statutory Notice of Intention to sue the defendants is a condition precedent to the exercise of the Honourable Court’s jurisdiction over the defendants. The failure of the Claimant/respondent to comply with the provisions of Section 11(1) & (2) of the State Proceedings Law Cap. 146 Laws of Enugu State is fatal to the case of the Claimant/Respondent. He referred toOjo Oseyemon v Ojo (1997) 52 LRCN 2068 where the Supreme Court held that where a law provides for the fulfillment of any condition precedent before a Suit can be brought against the state or Public Officer as in the preset case, failure by the Claimant to satisfy that condition precedent is fatal to his case and the Suit is incompetent and ought to be struck out. He also referred toNwabueze v Okoye (1988) 4NWLR 664 and Captain E.C.C. Amadi v. NNPC (2000) 6 SCNJ on the need to fulfill any condition precedent before binging a Suit against the State or Public Officer.
That it is trite law that for the court to have jurisdiction to entertain a case the following conditions must be present:
(a) It must be properly constituted.
(b) Subject matter must be within the jurisdiction of the Court.
(c) The case must have been instituted by due process of law.
(d) Upon the fulfilment of any condition precedent to the exercise of jurisdiction. These conditions are conjunctive.
He referred toMadukolu & Ors v Nkemdilim (1962) 1ALL NLR 587.
Learned counsel continued that the fourth condition is conspicuously absent in this Suit and so the Honourable Court is urged to decline to exercise its jurisdiction, and to strike out this suit for non-compliance with the Provisions of Section 11(2)(b) of the State Proceedings Law.
Secondly, that Section 11(1) of the State Proceedings Law Cap. 147 Laws of Enugu State provides that “no action or proceedings shall lie or be instituted under this law unless it is commenced within twelve months next after the act, negligence or default of or in the case of a continuing damage or injury within twelve months next after the ceasing thereof: provided….”
The Claimant served out his tenure as the Provost of Enugu College of Education (Technical) in June 2010. He wrote for what he called a “request to commute my ninety (90) days unspent annual leave to money” to the Provost, Enugu College of Education (Technical). The College vide her letter of 1st June 2011 declined to accede to his request. The cause of action arose on 1st of June, 2011 when the College refused his request (See Exhibit A). This Suit was filed on 25th June 2014 a period of 36 months, 3 weeks and 4 days after the occurrence of the action complained of by the Claimant. It is submitted with respect that the Suit challenging the refusal of the Management of Enugu State College of Education (Technical) to pay what the Claimant called commuting his unspent 90 days Leave money and the consequential reliefs thereto are time barred and cannot be enforced by virtue of the provisions of Section 11 (1) of the State Proceedings Law Cap. 147 Laws of Enugu State and Section 12(c) of the Actions Law Cap 4 Laws of Enugu State.
It is trite law that where the law provides for the bringing of an action within a prescribed time or period in respect of a cause of action accruing to a party (in this case the Claimant) proceedings shall not be brought after the time prescribed by the Statute. He referred toEgbe v Adefarasin (1985)1 NWLR (Pt. 3) 549 and Aina v Jinadu (1992) 4 NWLR (pt. 233)97 and Section 12 (c) of the Actions Law Cap 4 Laws of Enugu State.
The time prescribed by the State Proceedings Law Cap 147 Laws of Enugu State for bringing an action against a Public Officer in Enugu State is 12 months. This action was instituted outside the time allowed by the said Law. Consequently it is time barred and should be struck out.
Learned counsel for the 1st to 3rd Defendants urged the Court to strike out this case as being partly premature, fully incompetent, an abuse of the Court’s process and for want of jurisdiction.
The Claimant’s counsel filed a Counter affidavit against the said Notice of Preliminary Objectionon the 21st of June, 2017 which was objected to by the Counsel for the 1st to 3rd defendants/applicants and in a Ruling delivered same day, the Court rejected counter affidavit for incompetence. There is therefore no any process in response to this application of the 1st to 3rdDefendants/applicants.
The 4th Defendant also filed a Notice of Preliminary objection on 18th June, 2015 praying for the following reliefs:
- AN ORDER striking out the name of the 4th Defendant/Applicant in this suit for non service of pre-action notice which is a condition precedent to the institution of this suit.
- The suit filed by the claimant is statute barred for non compliance with Section 11(1) of the State Proceedings Law Cap 147, Laws of Enugu State and Sections 12(c) and 37(1) of the Actions Law, Cap 4, Laws of Enugu State.
- ANY FURTHER ORDER(S) as the Court may deem fit to make in the circumstance.
The preliminary objection is supported by an affidavit of 5 paragraphs deposed to by Bridget Ugwuzor, a Litigation Officer in the Department of Civil Litigation, Ministry of Justice, Enugu. There is also a written address of the applicant’s learned counsel in support of the preliminary objection.
The Claimant on 5th April, 2017 filed a counter-affidavit of 12 paragraphs deposed to by the Claimant himself in opposition to the preliminary objection of the 14th Defendant. There is a written address in opposition to the preliminary objection accompanying the Counter affidavit.
In his preliminary objection of 18th June, 2015 the learned counsel for the 4th Defendant formulated and argued a lone issue for the court’s determination, namely, whether the jurisdiction of this Court has been invoked in this case. Learned counsel reproduced the provisions of Section 11(2) of the State Proceedings Law, Cap 146, Revised Laws of Enugu State, 2004 which requires the issuance and service of a pre-action notice to any public officer in the state and the expiration of three months from the service of the said notice before any action can be commenced. Learned counsel maintained that the 4th Defendant being a public officers needed to be served the said pre-action notice before the Claimant commenced this action. That the service of the pre-action notice is mandatory and the failure to do that renders the suit incompetent ab initio. He cited Noclink Ventures Ltd & Anor vs Chief Okey Aroh & Anor (2008) All FWLR (Pt. 408) 352.
Learned counsel further submitted that by the Supreme Court’s decision in Nnonye vs Anichie (2005) 5 NWLR (Pt. 910) 623, once it is shown that a pre-action notice is not served where one is required, the court is bound to hold that the Claimant has not fulfilled a pre-condition for institution of his action and that action is incompetent. He also referred to Amadi vs NNPC (2000) 10 NWLR (Pt. 674) 76. He added that that it is trite law that for the court to have jurisdiction to entertain a case the following conditions must be present:
- The court must be properly constituted;
- The subject matter must be within the jurisdiction of the Court;
- The case must have been instituted by due process of law;
- Any condition precedent to the exercise of the Court’s jurisdiction must have been fulfilled.
He referred to Madukolu & Ors v Nkemdilim (1962) 1 ALL NLR 587.
He continued that service of pre-action notice where one is statutorily required is a condition precedent to the exercise of the Court’s jurisdiction. According the Supreme Court in the case of Nigercare Development Ltd vs Adamawa State Water Board (2008) 9 NWLR (Pt. 1093) 498, a condition precedent is defined as one which delays the vesting of a right until the happening of an event. He cited Ogbuagu JSC’s dictum in Nigercare’s case, supra, on the effect of non-service of pre-action notice on the jurisdiction of the court as follows:
This takes complete care of answer to the controversy in this suit. In other words, a statute such as Section 51(1) and (2) of the Edict/Law requiring a pre-action notice to be given to the defendant, not only goes to the competence of the suit, but it also touches on the jurisdiction of the court to entertain such suit. Where there is non-compliance of the Statute that is shown to be mandatory, the suit and/or proceeding is/are a nullity however well conducted.
He further submitted that once there is failure to serve pre-action notice then the court lacks the jurisdictional power to entertain the suit. He referred to EtiOsa Local Government vs Jegede (2007) 10 NWLR (Pt. 1043) 537. He contended further that the use of the word “shall” in section 11(2) of the State Proceedings Law of Enugu State shows that a duty has been imposed on the Claimant to serve the pre-action notice and not just a discretionary power. That the Claimant in this case did not serve the said pre-action notice and did not aver anywhere on the Claim that a pre-action notice of any sort was served on any of the defendants neither did he state a date of delivery. Therefore, the claimant failed to satisfy the requirement of service of pre-action notice and his suit must fail for not meeting a condition precedent.
On the aspect of the objection relating to Section 11(1) of the State Proceedings Law, which requires that a suit must be brought within twelve months of the accrual of the cause of action, learned counsel for the 4th defendant submitted that the cause of action of the claimant which was the refusal of the College to accede to his request for commuting his ninety days unspent leave to cash, arose on 1st June, 2011. Meanwhile he filed this action only on 25th June 2014, a period of 36 months, 3 weeks and 4 days after the occurrence of the action complained of by the claimant. The claim therefore of unspent leave period is statute barred and cannot be enforced by virtue of the provisions of Section 11(1) of the State Proceedings Law, Cap 147, Laws of Enugu State and Section 12(c) of Actions Law, Cap 4, Laws of Enugu State.
He submitted that it is trite law that where the law provides for the bringing of an action within a prescribed time or period in respect of a cause of action accruing to a party (in this case the Claimant) proceedings shall not be brought after the time prescribed by the Statute has expired. He referred to Egbe v Adefarasin (1985)1 NWLR (Pt. 3) 549 and Aina v Jinadu (1992) 4 NWLR (pt. 233)97 and Section 12 (c) of the Actions Law Cap 4 Laws of Enugu State. That the time prescribed by the State Proceedings Law for bringing an action against a public officer in Enugu State is twelve months. This suit was instituted more than twelve months outside the time allowed by the statute. It must therefore be declared statute barred.
On his part, learned counsel for the Claimant, in his written address filed on 5/4/2017 formulated and argued one issue for the court’s determination. This is: “Whether the jurisdiction of this Honourable Court has been sufficiently invoked in this suit, based on the 4th defendant’s/applicant’s claim that it is inevitably compulsory to serve their office with pre-action notice before any valid action could be instituted against the office of the Commissioner for Education? Or whether this suit is competent?
Arguing the issue, counsel submitted that his answer is in the positive. That yes, the jurisdiction of this Honourable Court has been sufficiently invoked in this suit despite the 4th defendant/applicant’s claim that it is inevitably compulsory to serve their office with pre-action notice before any valid action could be instituted against office of the Commissioner for Education in Enugu State. That the law is as stated in the case of Abegunde vs Olokesusi II (2003) FWLR (Pt. 155) 683 (at 691) where it was held that:
To that extent I agree with the learned counsel for the appellants that the lower court erred in striking out the entire suit for non-compliance with a condition precedent before the institution of the action against the 3rd respondent. It is only the 3rd respondent that can legally take the benefit of the provisions of section 174(1) of the said Cap. 63 (supra) and no other person.
On how the right to pre-action notice can be waived, the same court held in the same case that:
“By the provisions of Order 2, rule 1(1) of the Ondo State High Court Civil procedure Rules, applicable in Ekiti and Ondo States, the right relating to pre-action notice can only be waived by effluxion of time and acquiescence”.
That coming nearer home to Anambra State, mutatis mutandis,in the case of EZE v. OKECHUWU (2003) FWLR (Pt. 140) SC 1710 at 1727-8, the Supreme Court, Uwaifo JSC, delivering the lead Judgment commendably held thus, on the effect of non-compliance with requirements of pre-action notice:
Non-compliance with the requirement of pre-action notice does not abrogate the right ofa plaintiff to approach the court or defeat his cause ofaction. If the subject matter is within the jurisdiction of the court, failure on the part of the plaintiff to serve apre-action notice on the defendant gives the defendant private right solely for the benefit, to insist on such notice before the plaintiffs may approach the court….It is not a substantive element but a procedural requirement albeit statutory….
That in the instant case, the claimant is complaining against the non-payment of his allowance which he requested should be commuted to money as it was not spent at the instance of the defendant. The refusal is unlawful and in bad faith and constitutes an abuse of office and the law as enunciated in the case of Olatunji vs Hammed (2010) All FWLR (Pt. 540) p. 1365 is that:
The protection afforded a public officer is only available when the public officer acts in good faith in theexecution of his duties. The protection does not apply to acts done that amount to abuse of office with no semblance of legal justification. EGBE vs ALHAJI (1990) 1 NWLR (Pt. 128) p. 546 referred to.
That all the preconditions adumbrated in the celebrated case of Madukolu vs Nkemdilim, supra,have been met and complied with by the claimant in this instance.The court is eminently qualified albeit pre-action notice may not have been served on the 4th defendant prior to the commencement or institution of this suit. The court therefore has the pre requisite jurisdictional competence to adjudicate over this suit.
That after all the jurisprudential purport of pre-action notices as lucidly analyzed in the case of NDC Ltd vs ASWB(2008) All FWLR (PT. 422) SC 1055, per Niki Tobi, JSC,on the rationale behind pre-action notice and the effect of not issuing same where required is thus:
The rationale behind the jurisprudence of pre-action notice is to enable the defendant know in advance the anticipated action and a possible amicable settlement of the matter between the parties, without recourse to the adjudication by the court. It is a harmless procedure designed essentially to stop a litigation thus saving money and time of the parties. It is almost like pre-action letter of demand asking for specific conditions to be fulfilled in order to avoid or avert litigation. The only main difference between the two is that while one is a statutory requirement the other is not in the sense that a plaintiff can file an action without writing a pre-action letter.
He urged thecourt to hold that the notice of Preliminary Objection of the 4th Defendant lacks merit and ought to be dismissed.
I have carefully considered the processes filed as well as the arguments and submissions of counsel. There are two applications filed separately by the 1st to 3rd Defendants and that of the 4th defendant. As I have pointed out earlier the Claimant filed his counter-affidavit to the objection of the 1st to 3rd Defendants’ objection but same was struck out for incompetence. He however, filed his counter-affidavit and written address against the objection of the 4th defendant. What is clear though about both objections is that they are both similarly worded and based on similar grounds. Let me start with that of the 4th defendant which has the arguments and submissions of both parties on the issues of the preliminary objection.
The learned counsel for the 4th Defendant challenged the competence of the suit on the ground that the Claimant did not give pre-action notice to the 4th defendant before he commenced the action. In the affidavit in support of the preliminary objection particularly in paragraph 4(iv) and (v) it was deposed that no pre-action notice was served on the 4th defendant. The failure to so serve the pre-action notice makes the suit incompetent as a condition precedent has not been met. The Claimant in the counter-affidavit only struggled to state that the relevant paragraphs of the affidavit are false without showing how they are false. He simply engaged in legal arguments in the paragraphs of the counter-affidavit which is against the provisions of section 115(1) and (2) the Evidence Act, 2011. See also the decisions in Incorporated Trustees of Nigeria Association of General Practice Pharmacists Employers vs PCN (2011) LPELR-4308(CA), Proctor & Gamble Nigeria Limited vs Nwanna Trading Stores Ltd (2011) LPELR-4880(CA); and Ogunwale v Syrian Arab Republic (2002) 9 NWLR (Pt. 771) pg. 127 @ 154 Para E where the Court of Appeal, Per ChukwumaEneh JCA (as he then was) puts the point concisely thus:
The case of Nigeria LNG Ltd. v A.D.I.C. Ltd. (1995) 8 NWLR (Pt.416) 677 cited by the appellant is directly in point where Uwaifo, JCA (as he then was) said at Page 702 A-B: “Affidavits for use in court should contain only a statement of facts and circumstances. Prayers and legal conclusions, arguments are better pressed by counsel in court while conclusion should be left for the court to reach.”
The sum total of the Claimant’s depositions in his counter-affidavit is that the Claimant did not serve the said pre-action notice as required by the provisions of Section 11(2) of the State Proceedings Law of Enugu State.
A careful look at the Statement of Facts of the Claimant also has not shown any clear averment that the said pre-action notice has been given by the Claimant to the 4th Defendant as mandatorily required by Section 11(2) of the State Proceedings Law of Enugu State. It is therefore not difficult to see that there has not been due compliance with the requirement of pre-action notice to the 4th defendant.
The 4th defendant is a public officer and so deserves to be given the necessary pre-action notice. The authority of Nigercare Dev. Co ltd vs Adamawa State Water Board (2008), supra, cited and relied upon by the learned 4th defendant’s counsel has clearly stated that the failure to serve pre-action notice would make the suit incompetent as against the person who should have been duly served. See here the case of Abegunde vs Olokesusi II (2003), supra, where the point was firmly established.
I note the submissions of the learned claimant’s counsel that failure to serve pre-action notice may not abrogate the claimant’s right to approach the court. Quite alright it is understandable that the claimant still has the right to give the appropriate notice subsequently and then approach the court thereafter. But then he must do so within the time frame statutorily permitted by the law. Otherwise he may find himself being out of time. Nevertheless, suffice it to say that the failure to comply with the statutorily mandated giving of pre-action notice makes the claimant’s suit incompetent and the court lacks the jurisdiction to entertain, hear and determine it. See Ebere& Ors vs IMSU & Ors (2016) LPELR-40619(CA). See also, Abuja Municipal Area Council vs C.N. Okoli Transport Company Ltd (2009) LPELR-3579(CA), Per Aji, JCA at p. 15 Paras B-E, who held that:
