MINISTRY OF EDUCATION, ANAMBRA STATE & ORS V. OBONG-IFIOK (DR) ANNY ASIKPO (2013)

MINISTRY OF EDUCATION, ANAMBRA STATE & ORS V. OBONG-IFIOK (DR) ANNY ASIKPO

(2013)LCN/6390(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 9th day of July, 2013

CA/C/10/2011

RATIO

ISSUE FOR DETERMINATION: WHETHER ISSUES FOR DETERMINATION IN AN APPEAL MUST BE FORMULATED FROM A ONE OR MORE GROUNDS OF APPEAL

It is trite law that issues for determination in an appeal must be formulated from the grounds of appeal. This is because on Appellate Court cannot hear and decide grounds of appeal but issues distilled from the grounds of appeal filed before it. Therefore, a ground of appeal in respect of which no issue has been distilled or formulated, is deemed to have been abandoned. Such ground of appeal, as well as, all the arguments based on it are liable to be struck out. See: Adelekan v Ecu-line NV (2006) 8 MJSC 142: Aderibigbe v Abidoye (2009) 4 MJSC (PT 3) 77. PER ONYEKACHI A. OTISI, J.C.A.

JUSTICES

UZO. I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

1.MINISTRY OF EDUCATION, ANAMBRA STATE

2.COMMISSIONER FOR EDUCATION, ANAMBRA STATE

3.GOVERNMENT OF ANAMBRA STATE

4. ATTORNEY-GENERAL ANAMBRA STATE Appellant(s)

AND

OBONG-IFIOK (DR) ANNY ASIKPO Respondent(s)

ONYEKACHI A. OTISI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State sitting at Uyo, delivered on 10th May, 2010.
The Respondent, an Educational Publisher based in Akwa Ibom State, entered into a contract with the 3rd Appellant for the production, supply and delivery of one million, fifteen thousand copies of the ABBNNY Uniform Continuous Assessment Tests and Evaluation Workbooks for use by Anambra State students for 2007/2008 academic year. The total value of the Workbooks was N209,000,000.00 (two hundred and nine million Naira). The Workbooks were to be paid for on or before the end of the 2007/2008 academic year: but of the end of this period, the sum of N71,400,000.00 remained outstanding.
The Respondent as plaintiff filed Suit No HU/UND/320/2009 before the High Court of Akwa Ibom State, Uyo, for the recovery of the outstanding sum. The suit was brought on the Undefended List, seeking the following Reliefs against the Appellants as defendants, jointly and severally:
1. The sum of N71,400,000.00 (Seventy-one Million four hundred thousand Naira) only being the remaining balance of the proceeds for the Workbooks had been supplied by the Plaintiff and received by the Defendants.
2. Post judgment interest on the judgment debt at the rate of 10% per annum until the judgment debt is fully liquidated.
The Appellants filed a Notice of Intention to Defend; as well as a Preliminary Objection challenging the jurisdiction of the trial court to hear the suit. The trial court heard the preliminary objection, and, fixed 10/5/2010 for Ruling. On that date, the court ruled on the preliminary objection and then delivered a final Judgment in favour of the Respondent.
Dissatisfied with the Judgment, the Appellants filed a Notice and Grounds of Appeal on 2/8/2010, seeking on Order of this Court, setting aside the Judgment.
Don Adizue Esq.,Principal State Counsel,Ministry of Justice, Anambra State filed the Appellants’ Brief on 29/11/2011, but deemed properly filed and served on 27/6/2012. Obot E. Obot, Esq., for the Respondent filed the Respondent’s Brief on 3/12/12, but deemed properly filed and served on 9/5/2013. The Appellants’ Reply Brief was filed on 18/3/2013 but deemed properly filed and served on 9/5/2013. These Briefs were adopted by respective Counsel on 9/5/2013.
The Appellants filed six Grounds of Appeal, but formulated two issues as follows:
1. Whether the trial Court was right to assume jurisdiction regarding Section 11(2) Anambra State Proceeding Law Cap. 134 Laws of Anambra State 1991 on pre-action notice as Anambra State Civil Procedure Rule which is not applicable in Akwa-Ibom State High Court?
2. Whether the judgment of trial court was right in view of Clause 3 of the agreement between parties?
The Respondent’s Counsel submitted, as a preliminary issue, that issue No 1 covered Grounds 2 and 4, while Issue No 2 covered only Ground 5. That Grounds 1, 3, and 6, from which the Appellants have formulated no issues, should be deemed abandoned. He further submitted that Issue No 1 formulated from Ground 4 is mixed law and fact, and, can only be argued where leave of court has first been obtained. That Ground 4 should be struck out because no leave of court was obtained. He relied on Yaro vs. Arewa Construction Ltd (2007) NSCQR 30 (PT.11) 1193 at 1219. It is further submitted that since Issue No 1 is formulated from Grounds 2 and 4, if Ground 4 is found to be incompetent, the arguments covered in Issue No 1 become incompetent, as the arguments cannot be separated.
Learned Counsel to the Appellants in reply submitted that leave was not required in respect of Ground 4.
It is trite law that issues for determination in an appeal must be formulated from the grounds of appeal. This is because on Appellate Court cannot hear and decide grounds of appeal but issues distilled from the grounds of appeal filed before it. Therefore, a ground of appeal in respect of which no issue has been distilled or formulated, is deemed to have been abandoned. Such ground of appeal, as well as, all the arguments based on it are liable to be struck out. See: Adelekan v Ecu-line NV (2006) 8 MJSC 142: Aderibigbe v Abidoye (2009) 4 MJSC (PT 3) 77.
It has rightly been contended for the Respondent that no issues were distilled by the Appellants from Grounds 1, 3, and 6. These Grounds 1, 3, and 6 are therefore deemed abandoned; and, are hereby struck out.
The exercise of appellate jurisdiction is entirely statutory in that an Appellate Court derives its jurisdiction from the statute creating it, comprising the Constitution and other enabling statutory provisions. Relevant for consideration here are the provisions of Section 241(1)(a) of the 1999 Constitution, as amended:
241(1)(a) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
By these provisions, an appeal over a final decision made by the lower court is as of right and requires no leave, even if the grounds of appeal are grounds of mixed facts and law. See: Hydroworks Ltd vs. Rimi Local Government (2002) FWLR (PT 110) 1887 ot I904: Nasco Management Service Ltd vs. Amaku Transport Ltd (2002) FWLR (PT 135) 652 at 668.
The pertinent question to consider is whether the order of the lower court is a final order, requiring no leave of court; or, on interlocutory order, requiring leave of court.
In Omonuwa vs. Oshodin & Anor. (1985) 2 SC 1, (1985) 2 NWLR (Pt. 10) 924, the Supreme Court held that:
“…a decision between the parties can only be regarded as final when the determination of the court disposes of the rights of the parties, (and not merely an issue), in the case.”
If the order finally determines the rights of the parties, it is final. See also: Akinsanya v. United Bank for Africa Ltd (1986) 7 SC (Pt. 1) 233: Alor vs. Ngene (2007) 2 S. C. 1, (2007) ALL FWLR (PT 362) 1836 at 1847-1848.
The Judgment, subject matter of this appeal, is a final decision in which the rights of the parties were finally determined. In this regard, pursuant to the provisions of Section 241(1)(a) of the 1999 Constitution, as amended, there is no requirement for leave of court to bring a Ground of Appeal on mixed law and fact. The issues raised by the Appellant are therefore competent.
The Respondent formulated two issues for determination:
1. Whether the Appellants have any legal right or protection in law under Clause 3 of the Contract Agreement entered for the production, supply and delivery of the Respondent’s Workbooks after they (the Appellants) had breached the same Clause 3 of the Contract Agreement.
2. Whether the judgment delivered by the court below in Suit No. HU/UND.320/2009 is valid, right and correct in law.
The Respondent also adopted, in the alternative, the Issue 1 raised by the Appellants; which encompasses Issue No 2 raised by the Respondent. I shall first consider Issue No 1 as formulated by the Appellants.
Issue No 1.
The Appellants contend that it was wrong for the trial court to treat the Anambra State Law on pre-action notice as a mere High Court rule only applicable in Anambra State and not Akwa Ibom State. The trial court had ruled thus:
“On 2/2/2010, the defendant’s counsel had argued in court that by Section 11(2) of Anambra State Proceedings Laws Cap 134, the plaintiff was expected to give the defendants 3 months notice of intention to sue but failed to do so. He said the pre-action notice given by the plaintiff (sic) counsel and dated 1/6/2009 fell short of the 3 months required. He submitted that the failure to allow the 3 months is fatal and has robed the court of jurisdiction. In his written reply address, the plaintiff’s counsel said among other things that the suit is brought under the Civil Procedure Rules of Akwa Ibom State and that Anambra State Proceedings Law is not binding in Akwa Ibom State but only limited to Anambra State. There is no doubt that the State Proceedings Law of Ananbra State was made by the Anambra State House of Assembly by virtue of the power conferred on it by S.4(6) of the Constitution. S.4(7) of the Constitution shows that the said law can only be for the peace, order and good government of Anambra State or any part thereof. In other words, the Law applies in Anambra State only not in Akwa Ibom State under any guise. If was not necessary for the plaintiff to give 3 months notice prescribed in that law because that law does not apply in Akwa Ibom State where the action was instituted and heard. S.270 of the constitution which I had earlier referred to established a High Court for each State of the Federation. Each of the High Courts has its own Rules of practice and procedure independent of one another. In the High Court (Civil Procedure) Rules of Akwa Ibom State, applicable to this court and the state, there are no provisions for 3 months pre-action notice. The notice given to the defendants by the plaintiff’s counsel and dated 1/6/2009 before the institution of this action on 24/7/2009 appears to be gratuitous and therefore not detrimental to the plaintiff. The Preliminary objection of the defendants has failed’.
It is submitted that the Anambra State Proceedings Law Cap 134 is not a Rule of court but substantive law regulating the steps to be taken before an action or suit can competently lie against the State, its agencies or officers. It is submitted that it is the personal law of the Appellants which is carried to whatever jurisdiction any plaintiff may wish to maintain an action against the Appellants as defendants. On the effect of failure to serve a pre-action notice, learned Counsel relied on F & F Farms Nig. Ltd vs. NNPC (2009) 12 NWLR (PT 1155) 411; Jokolo vs. Gov. Kebbi State (2009) 11 NWLR (PT 1152) 272; Okafor vs. Ukadike (2009) NWLR (PT 1122) 274.
Learned Counsel for the Appellants further relied on Niger Care Dev Co Ltd vs. ASWB (2008) 9 NWLR (PT1095) 526; Fawehinmi Cont. Co. Ltd. vs. Obafemi Awolowo University (1998) 6 NWLR (PT.553) 171; to submit that from judicial attitude on the scope of the pre-action notice, Section 11(2) of Anambra State Proceedings Law is not only applicable in Anambra State High Court.
For the Respondent, it is submitted the judgment of the lower court was valid, right and correct in law. That the matter was instituted, heard and determined under the Undefended List Procedure as provided for in Order 23 of the Akwa Ibom State High Court (Civil Procedure) Rules 1989, now replaced by Order 11 Rule 8 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009. It is submitted that the lower court first considered the preliminary objection raised by the Appellants and overruled it; before it then considered the Appellants’ affidavit in support of their Notice of Intention to defend, and came to the conclusion that the Appellants had not disclosed a defence on the merit.
The Respondent submitted that the provisions of Section 11(2) of Anambra State Proceedings Law are inconsistent with the Public Officers Protection Act, a Federal law, binding on all States of the Federation, including Anambra State. That if a person who wishes to sue the Anambra State Government has to give 3 months pre-action notice; and the public officer involved is of the sometime protected by the Public Officers Protection Act, which stipulates that an action should be filed against a public officer within 3 months after the occurrence of the cause of action, the action would be statute barred before action can be filed by Section 11(2) of Anambra State Proceedings Law. That the said Anambra State Proceedings Law cannot supersede a Federal law. The Court is urged to declare the provisions of Section 11(2) of Anambra State Proceedings Law 1991 as bad law and of no legal effect.
It is submitted that the Anambra State Proceeding Law is a law made by the Anambra State House of Assembly by virtue of the powers conferred on it by Section 4(6) of the 1999 Constitution as amended. That Section 4(7) of the Constitution provides that laws made by a State House of Assembly are made for the peace, order and good government of that State and any part thereof. That the Anambra State Proceedings Law is restricted to Anambra State only and does not have inter-state application.
In the Reply Brief, the Appellants have submitted that the Public Officers Protection Act is inapplicable in contracts; relying, infer alia, on Tajudeen vs. CISB (2010) 4 NWLR (PT 1184) 325 of 327-328; Bakare vs. Nigeria Railway Corporation (2009) 17 NWLR (PT 1064) 606; NBC vs. Bankole (1972) NSCC 220; NPS vs. Construzioni SPA (1974) 1 ALL NLR (2) 463.
It is further submitted by the Appellants that the provisions of the two Laws are clear, unambiguous and do not contradict each other. The Court is urged to hold that the Anambra State Proceedings Law does not seek to oust the court’s jurisdiction and is not inconsistent with the Public Officers’ Protection Act.
One must not lose sight of the fact that consideration of the Public Officers Protection Act did not at all arise from the appeal as filed by the Appellants. The Respondent, who did not file a cross-appeal or a respondent’s notice, ought to formulate issues and based their arguments on the Grounds of Appeal as filed by the Appellant. It is settled law that the Court of Appeal being on Appellate Court can only consider issues based on grounds of appeal filed before it. See: Controller, Nigeria Prisons v Adekanye & Ors (2002) 11 MJSC 67.
Be that as it may, it is trite that a statute should be construed as a whole and should be given an interpretation consistent with the object and general con of the entire statute.

In Ekeogu v Aliri (1991) 3 NWLR (PT 179) 258, the Supreme Court considered provisions of Section 2(a) the Public Officers Protection Law, Cap. 106 of the Laws of Eastern Nigeria, 1963 and held:
“Now Section 2(a) of the Public Officers Protection Law, Cap. 106 of the Laws of Eastern Nigeria, 1963 as relevant, reads as follows:-
“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the following provisions shall have effect-
(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of…..
In my view, the words used in this legislation are plain and unambiguous and should be given their ordinary and natural meaning. A careful reading of the section shows that its provision apply to an action brought against a public officer for any act done either-
(i) in pursuance or intended execution of any Law or public duty or authority, or
(ii) in respect of any alleged neglect or default in the execution of Law, duty or authority.”

The object of the Public Officers’ Protection Law is to afford protection to public officers in respect of anything done in the execution of or carrying out their duty. The protection comes into play after the expiration of 3 months from the date of the commission of the act or acts which give rise to the cause of action -See: Egbe v. Adefarasin, (1985) 1 NWLR. (Pt. 3) 549; Egbe v. Alhaji & Anor (1990) 1 NWLR (Pt 128) 546; Ekeogu v. Aliri (supra).
From these provisions, the performance, or breach, of a contract which a State or public authority has the power, but not the duty, to make, is not within the protection of the Public Officers Protection Act. See: Bakare vs. Nigerian Railway Corporation (supra). Indeed, this Court in Central Bank of Nigeria vs. Adedeji LER (2004) CA/L/508/03, plainly said:
“…the privilege provided by the Public Officers Protection Act does not apply to contract cases.”
The subject matter in dispute in this case arises from a contract.
Section 11(2) Anambra State Proceeding Law Cap. 134 Laws of Anambra State 1991 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 or intended execution of, any written law, or of any 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 the case of the state delivered to the secretary to the Government, and in case of a public officer delivered to him, stating the cause of action, name, description and place of residence of the proposed plaintiff and the 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”.
The Respondent contended that the pre-action requirement in Section 11(2) Anambra State Proceeding Law is a law made by the Anambra State House of Assembly; and that it does not affect the competence of an action filed in Akwa Ibom State, pursuant to the relevant Rules of Court therein. Section 11(2) State Proceeding Law Cap. 131 Laws of Anambra State 1986, which is in pari materia with Section 11(2) Anambra State Proceeding Law Cap. 134 Laws of Anambra State 1991 was considered by the Supreme Court per Uwaifo JSC, in Eze vs. Okechukwu (2002) 12 S.C. (PT. 11) 103.
The Supreme Court said:
“The requirement of pre-action notice where this is prescribed by law is known to have one rationale. It is to apprise the defendant before hand of the nature of the action contemplated and to give him enough time to consider or reconsider his position in the matter as to whether to compromise or contest it. The giving of pre-action notice has nothing to do with the cause of action. It is not a substantive element but a procedural requirement, albeit statutory, which a defendant is entitled to before he may be expected to defend the action that may follow.”
The Supreme Court further said on the issue of pre-action notice:
“It is a special defence available to an appropriate defendant by statute (or contract) which he ought to raise to the effect that he has not been served with the requisite pre-action notice and therefore that the action is incompetent or premature. Such a defence of non-service which is a matter of fact, should be raised in the proper manner of the trial court preferably soon after the defendant is served with the writ of summons. If not so raised, the fact of non-service ought to be pleaded in the statement of defence. See Ademola II v. Thomas (1946) 2 WACA 81 at 89: Katsina Local Authority v. Makudawa (1971) 7 NSCC 119 at 124. If it is raised, and it is shown, that there has been non-service the court is bound to hold that the plaintiff has not fulfilled a pre-condition for instituting his action. This is the sense in which the provision of Section 11(2) is really to be regarded as mandatory. The action will be considered premature, or in the usual parlance incompetent, and struck out.”

In explaining the essence of pre-action notice, the Supreme Court also said:
“In the case of pre-action notice, care must be taken to understand its essence. Non-compliance does not abrogate the right of a plaintiff to approach the court or defeat his cause of action. If the subject-matter is within the jurisdiction of the court, failure on the part of a plaintiff to serve a pre-action notice on the defendant gives the defendant a private right solely for his benefit to insist on such notice before the plaintiff may approach the court.”
The requirement for pre-action notice as provided in Section 110(2) of the Ports Act (Cap. 361 Laws of the Federation 1990) was considered in Ntiero V. Nigerian Ports Authority (supra) by the Supreme Court thus:
“110 (2) – No suit shall be commenced against the Authority until one month at least after written notice of intention to commence the same shall have been served upon the Authority by the intending plaintiff or his agent. Such notice shall state the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims.”
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:
See Madukolu v. Nkemdilim (19 62) 2 SCNLR 341.”
Again, in considering similar provisions for pre-action notice, the Supreme Court, Per Ogbuogu JSC, in Nigercare Development Co. Ltd. vs. Adamawa State Water Board & 3 Ors (2008) 2-3 S. C. (PT. II) 202, said:
“In my respectful view, the said provision, is a condition precedent as for as suits against the 1st Defendant/Respondent are concerned. Therefore, the failure of the Appellant to comply with it, clearly makes the suit incompetent. Contrary to the submission of the learned counsel for the Appellant, 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 1st Defendant. Period!”
A pre-action notice is therefore a mandatory notice that has to be given by a plaintiff in required cases before his action can be competent. It is a pre-condition that must be complied with. Any action commenced in breach of this requirement would be incompetent.

The requirement for service of pre-action notice is a procedural requirement. But it is one that must be complied with, except it is waived by the beneficiary. It has been well articulated that the incompetence of the action as a result of non-service of a pre-action notice resulting in the court being unable to exercise its jurisdiction to proceed with the hearing, is an irregularity which is not such that cannot be waived by a defendant, who has failed to raise it by motion or plead it in the statement of defence. The defendant may choose to ignore the fact of the irregular commencement of the action and decide to waive his right to a pre-action notice. See: Eze vs. Okechukwu (supra); Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency (2002) 12 S.C. (PT. 1) 26: Feed & Food Farms (Nig.) Ltd v NNPC (2009) 6 MJSC (PT 1) 120.
In Feed & Food Farms (Nig.) Ltd v NNPC (supra), the Supreme Court, per Tobi JSC said:
“In my view, for purposes of waiver, matters affecting the jurisdiction of the Court should be categorized into two areas or compartments. These are jurisdictional matters affecting the public in the litigation process and those affecting the personal, private or domestic rights of the party. While the former cannot in law be waived, the latter can be waived in law. An example of the former is filing an action in a Court that has no jurisdiction to hear the matter…
I come to the second one. A good example is pre-action notice. In my view, service of pre-action notice is a personal, private or domestic right of the party to be served. He is the beneficiary of the service and so can waive it at will or his terms. The right is not shared by members of the public or the public at large but is one specific to the party. If he decides to respond to the writ without service on him, he has the right to do so and the courts cannot hold that as the issue affects jurisdiction, he cannot waive his right to be served. In my view, where on issue of jurisdiction, like the issuance of pre-action notice is domestic to the parties, it can be waived of the pleasure and choice of the beneficiary.”
Service of a pre-action notice in line with the provisions of Section 11(2) State Proceeding Law Cap.134 Laws of Anambra State 1991 is the personal, private or domestic right of the Appellants. They have the right to waive or ignore or acquiesce in the non-compliance of this requirement by the Respondent. They have chosen not to do so, and, they are perfectly within their right.
The Notice of Intention to sue the Appellants by the Respondent was dated 1st June, 2009: and, annexed as Exhibit 08 to the affidavit in support of the Respondent’s claim under the Undefended List. The Writ of Summons and affidavit in support of the claim was filed on 24/7 /2009, in breach of the period for a pre-action notice provided in Section 11(2) of the Anambra State Proceeding Law. The action commenced in breach of the requirement for pre-action is therefore incompetent; and, there is no jurisdiction for a court to entertain an incompetent matter.
However, in this circumstance, the jurisdiction of the court is only ousted temporarily or put on hold, pending compliance. When the Respondent complies with the requirement for pre-action notice, he can proceed to prosecute his claim. See: in Eze vs. Okechukwu (supra): Nigercare Development Co. Ltd. vs. Adamawa State Water Board &3 Ors (supra).
Issue No 2.
Courts are enjoined to consider and make pronouncement on issues properly raised before it. See: Okonji vs Njokanma (1991) CLR 9(b) (SC); Ovunwo v Woko (2011) CLR 6(a) (SC). However, in view of the fact that the trial court’s jurisdiction to entertain the Respondent’s claims will be restored upon compliance with the pre-condition for pre-action notice in the terms provided, I do not consider it appropriate to make any pronouncement on the provisions of Clause 3 of the Contract Agreement between the parties.
Upon the foregoing considerations, this appeal succeeds. The Ruling/Judgment of the High Court of Akwa Ibom State delivered on 10th May, 2010 in HU/UND.320/2009 is hereby set aside.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Onyekachi A. Otisi, JCA. I agree with her reasoning and final conclusions in allowing this appeal. I also abide by all the consequential orders contained in the lead judgment.

JOSEPH TINE TUR, J.C.A.: I read an advance copy of the judgment delivered by my Lord ONYEKACHI A. OTISI, JCA and I do concur with the summary of the facts, the reasoning and conclusions arrived at.
The contract agreement was entered into between the Ministry of Education, Anambra State represented by Dr. Mrs. Kay C. Onyechi, Honourable Commissioner for Education, Anambra State, Awka and ABBNNY Educational Publishers of No.89 Ikot Ekpene Road, Uyo, Akwa Ibom State on 2nd November, 2007. The respondent appended his signature on behalf of ABBNNY Educational Publishers.
The Anambra State Proceedings Law,1991 was enacted by the Anambra State House of Assembly, Awka by virtue of Section 4(6), (7) and (8) of the Constitution of the Federal Republic of Nigeria, 1999 as altered:
“4(6) The legislative powers of a State of the Federation shall be vested the House of Assembly of the State.
(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, this is to say:-
(a) any matter not include in the Executive Legislative List set out in Part 1 of the Second Schedule to this Constitution;
(b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and (c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
(8) Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of Courts of law and of judicial tribunals established by law and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a Court of law or of a judicial tribunal established by law.”
The judicial powers of the Courts in any State of the Federation are however as provided in Section 6(2) (3), 6(a) and (b) of the same Constitution which reads as follows:
“6(2) The judicial powers of a State shall be vested in the Courts to which this section relates, being Courts established, subject as provided by this Constitutions for a State.
(3) The Courts to which this section relates, established by this Constitution for the federation and for the States, specified in subsection (5)(a) to (i) of this section shall be the only superior Courts of record in
Nigeria, and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each Court shall have all the powers of a superior Court of record.
(6) The judicial powers vested in accordance with the foregoing provisions of this section:
(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a Court of law;
(b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
Each State in Nigeria is likened to a foreign country to another. See Bata Shoe Co. Ltd. vs. Minas Krikor Mellkan (1956) 1 FSC 100 at 102. And every High Court established in a State exercises judicial powers within its territorial jurisdiction, namely, the State where it is situated. But when it comes to adjudication in civil or criminal causes and matters Section 272-273 of the Constitution of the Federal Republic of Nigeria, 1999 as altered provides as follows:
“272(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in isssue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.
273. For the purpose of exercising any jurisdiction conferred upon it under this Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one Judge of that Court.”
The phrase “any law” employed under Section 273 of the Constitution (supra) means any “Law” enacted by the House of Assembly of a State. The word “State” when used otherwise than in relation to one of the component parts of the Federation includes government. See Section 318(1) of the Constitution (supra). The judicial powers of the High Court of Akwa Ibom State shall by virtue of these provisions extend to matters between the appellants and the respondent, to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person. The same High Court shall exercise jurisdiction conferred upon it under the Constitution or any law enacted by any State House of Assembly except where such is inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 as altered. See Section 1(3) read together with Section 273 and 318(1) of the Constitution (supra). The legal effect is that the learned trial Judge, sitting in the High Court of Justice, Akwa lbom State, Uyo, was bound to apply or give effect to the Anambra State Proceeding Law, 1991 in the determination of the civil rights and obligations of the appellants and the respondent.
Section 11(2) of the Anambra State Proceeding Law Cap. 134 Laws of Anambra State, 1991 provides as follows:
“11(2) 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 or intended execution of, any written law, or of any 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 the case of the State delivered to the Secretary to the Government, and in case of a public officer delivered to him, stating the cause of action, name, description and place of residence of the proposed plaintiff and the relief which he claims, and the plaint when eventually prepare shall contain a statement that such notice has been so delivered and the date on which it was delivered.”
The law is very clear; its application has no territorial or geographical limitation. All persons and authorities transacting business with the Anambra State Government or public officers in her employment are bound by the Law except there is a waiver. See Mobil Producing Nigeria Unlimited vs. Lagos State Environmental Protection Agency & Ors. (2003) FWLR (Pt.137) 1029 at 1055 paragraphs “E” – “H” and page 1056 paragraph “A” where Ayoola, JSC explained the purport of such Laws:
“A pre-action notice which is for the benefit of the person or agency on whom or on which it should be served is not to be equated with processes that are an integral part of the proceedings – initiating process. As have been said in a number of authorities its purpose is to enable that person or agency to decide what to do in the matter, to negotiate or reach a compromise or have another hard look at the matter in relation to the issues and decide whether it is more expedient to submit to jurisdiction and have a pronouncement on the point in controversy. The law is clear that conditions imposed for the benefit only of a particular person or class of persons can be dispensed with. In Graham vs. Ingleby (1848) 1 Exch. 651, 657 Alderson B., said:
“It is evident, that a party who has a benefit given him by statute may waive it if he thinks fit.”
The view was expressed in a passage in Caries (sic) on statute law, 7th Edition, at page 269 thus:
“If the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered indispensable. This rule is expressed by the maxim of law, Quilibet potest renuntiare juri pro se introducto. As a general rule, the conditions imposed by statutes which authorize legal proceedings are treated as being indispensable to giving the Court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered indispensable, and either party may waive them without affecting the jurisdiction of the Court.”
The Anambra State Proceeding Law, 1991 was enacted by the Anambra State House of Assembly for the good government of the State or any part thereof – see Section 4(7) of the Constitution of the Federal Republic of Nigeria, 1999. A law may be enacted by the Anambra State House of Assembly and which may be for the good government of the State may not necessarily be for the good government of the people of any other State of the Federation including Abuja Federal Capital Territory. If the Anambra State House of Assembly chose to enact in Section 11(2) of the Anambra State Proceeding Law, 1991 that a three months should be the period to give a pre-action notice before any person or authority may institute an action against the State Government or her public officers, it does not lie within the province of the High Court of Justice to reason as follows:
“On 2nd February, 2010, the defendant’s Counsel had argued in Court that by Section 11(2) of Anambra State Proceedings Laws Cap.134, the plaintiff was expected to give the defendants 3 months notice of intention to sue but failed to do so. He said the pre-action notice given by the plaintiff (sic) Counsel and dated 1st June, 2009 felt short of the 3 months required. He submitted that the failure to allow the 3 months is fatal and has robbed the Court of jurisdiction. In his written reply address the plaintiff’s Counsel said among other things that the suit is brought under the Civil Procedure Rules of Akwa Ibom State and that Anambra State Proceedings Law is not binding in Akwa Ibom State but only limited to Anambra State. There is no doubt that the State Proceedings Law of Anambra State was made by the Anambra State House of Assembly by virtue of the power conferred on it by Section4(6) of the Constitution. Section 4(7) of the Constitution shows that the said law can only be for peace, order and good government of Anambra State or any part thereof. In other words, the Law applies in Anambra State only not in Akwa Ibom State under any guise. It was not necessary for the plaintiff to give 3 months notice prescribed in that law because that law does not apply in Akwa Ibom State where the action was instituted and heard. Section 270 of the Constitution which I had earlier referred to established a High Court for each State of the Federation. Each of the High Courts has its own Rules of practice and procedure independent of one another. In the High Court (Civil Procedure) Rules of Akwa Ibom State, applicable to this Court and the State, there are no provisions for 3 months pre-action notice. The given to the defendants by the plaintiff’s Counsel and dated 1st June, 2009 before the institution of this action on 24th July, 2009 appears to be gratuitous and therefore not detrimental to the plaintiff. The preliminary objection of the defendants has failed.”
No. The Law shall apply throughout the Federation of Nigeria wherever Anambra State or her public officers are sued either in Nigeria or any other part of the world. The Law has nothing to do with the practice and procedure of any State High Court in Nigeria. It was necessary for the respondent to have given the appellants the three months notice to sue. In Mobil Producing Unlimited vs. Lagos State Environmental Protection Agency’s case (supra) Ayoola, JSC held at page 1050 paragraphs “D”-“F” as follows:
“Although the respondents put their case in their respective briefs in different words each of them focused on the consequence of failure to serve pre-action notice as affecting the competence of the action and the jurisdiction of the Court. There is no dearth of authorities as to the consequence of failure to serve a pre-action notice when such is made a condition precedent for the commencement of a suit. 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. Some of the authorities cited by the respondents are Provisional Council Ogun State University & Anor vs. Iyalode Makinde (Mrs) (1991) 2 NWLR (Pt.175) 613; Gambari & Ors. vs, Emir of ilorin (1990) 5 NWLR (Pt.152) 572; Funudoh & Anor vs. Aboro (1991) 9 NWLR (Pt.214) 210; Madukolu vs. Nkemdilim (1992) I All NLR 581 ; Umukoro vs. NPA (1997) 4 NWLR (Pt.502) 656; Anambra State vs. Nwankwo (1995) 9 NWLR (Pt.418) 245; Nigerian Ports Plc vs. Ntiero (1998) 6 NWLR (Pt.555) 640; Amadi vs. NNPC (2000) FWLR (Pt.9) 1527.”
It is for this and the fuller reasons given in the lead judgment of my Lord that I also allow this appeal. The proceedings in the lower Court were incompetent. They are hereby struck out.