NIGERCARE DEVELOPMENT CO. LTD. V ADAMAWA STATE WATER BOARD & 3 ORSCase Laws . Supreme Court
NIGERCARE DEVELOPMENT CO. LTD. V ADAMAWA STATE WATER BOARD & 3 ORS
In the Supreme Court of Nigeria
Friday, March 7, 2008
Case Number: SC. 377/2002
NIKI TOBI, JSC JUSTICE, SUPREME COURT
SUNDAY AKINOLA AKINTAN, JSC JUSTICE, SUPREME COURT
MAHMUD MOHAMMED, JSC JUSTICE, SUPREME COURT
IKECHI FRANCIS OGBUAGU, JSC, JUSTICE, SUPREME COURT(Lead Judgment)
FRANCIS FEDODE TABAI, JSC, JUSTICE, SUPREME COURT.
NIGERCARE DEVELOPMENT CO. LTD.
1. ADAMAWA STATE WATER BOARD 2. ADAMAWA STATE GOVERNMENT 3. WADSCO/IBG LIMITED 4. PRINCIPAL MANAGEMENT OFFICER FEDERAL MINISTRY OF WATER RESOURCES AND RURAL DEVELOPMENT.
I. F. OGBUAGU, JSC (Delivered by Judgment of the Court ): This is an appeal against the judgment of the Court of Appeal, Jos Division (hereinafter called “the court below”) delivered on 10th July, 2002 dismissing the appeal by the Appellants to it and affirming the judgment of the High Court Yola Judicial Division of Adamawa State holden at Yola. Dissatisfied with the said decision, the Appellants have appealed to this Court on five (5) Grounds of Appeal. The facts briefly stated, are that the Appellant, has won the contract from the 1st and 2nd Respondents for the rehabilitation of water treatment plants in Yola, Numan and Mubi in Adamawa State (i.e. the Adamawa State National Water Rehabilitation Project) which was sponsored by the World Bank. On 4th July, 1997, the Sole Administrator of the 1st Defendant/Respondent terminated/revoked the said contract No. AAD 01 ICB even when the period for the execution of the contract, had not elapsed. As a result of this revocation, the Appellant as Plaintiff, instituted the action leading to the instant appeal. It claimed/sought the following reliefs in paragraph 47 of its Amended Statement of Claim: (not very correctly reproduced in the both Briefs of the parties). “(i) A declaration that the 1st defendant’s letter No. ASWB/AD/S/206/111/529 dated 4/7/1997 signed by the Sole Administrator, Adamawa State Water Board on the subject of Water Rehabilitation Project No. AAD/-01-ICB between the Plaintiff and 1st Defendant is against the provision of the law establishing the 1st defendant, ultra vires, illegal, null and void. (ii) A declaration that 1st, 2nd and 3rd defendants’ failure or neglect to pay the 15% of the Contract sum to Plaintiff even after submission of Advance Security Guarantees is a breach of the Agreement between the parties. (iii) A declaration that in the circumstances of this case, the National Water Rehabilitation Project Contract No. AAD 01 ICB is still vaid (sic) (meaning valid) and subsisting. (iv) An order of compensation in favour of the plaintiff against the 1st and 2nd defendants jointly and severally in the total sum of 1453,640,335.00 in line with the contract agreement of 15-7-1996 but signed on 15-8-1996. (v) The sum of $404,381.66 being 15% of the contract sum in foreign components due to the plaintiff as advance from 1st defendant. (vi) The sum of N988,488.51 being 15% of the contract sum in local components due to the plaintiff as advance payment from the 1st and 3rd (sic) (meaning 2nd) defendants. PAGE| 2 (vii) Payment for Job already executed: L.C. N622,556.00; F.C. 254,682 U.S.D. (viii) Any further and better orders”. The 1st and 2nd Defendants/Respondents, counter-claimed. Pleadings were filed and exchanged. The case proceeded to trial with both parties calling witnesses and learned counsel for the parties addressing the court and the case, was adjourned for judgment. It was while the parties, were awaiting the judgment, that the learned trial Judge – Banu, J. in the course of writing the Judgment, suo motu, invited the learned counsel for the parties, to address him on the legal effect of the provisions of Sections 51(1) and (2) of Adamawa State Water Board Edict No. 4 of 1996 (hereinafter called “the Edict/Law”) and the non-compliance with its provisions. Said he at page 168 of the Records inter alia as follows: “In the course of writing the Judgment, my attention was caught by the provisions of Section 51 of Adamawa State Water Board Edict No. 4 of 1996 which states:……………………………………………………. “It is my view that this provision is crucial as it affects the 1st defendant and I would like counsel to address me on whether or not the provision has been complied with, and if not, its consequence”. I note that there was no objection from any of the learned counsel for the parties who in fact, addressed the court in respect of the said issue. Thereafter, His Lordship, stated at page 170 thereof, thus; “As I have already gone far in writing the judgment, these submissions by learned counsel will form part of the judgment to be at a date to be ………..”. In his Judgment delivered on 22nd May, 1998, the learned trial Judge, struck out the Appellant’s said suit as well as the counter-claim. He found as a fact and held that there was non-compliance with the said provision of the Edict/Law and therefore, that the Appellant’s said suit, was incompetent. Aggrieved by the said decision, the Appellant, appealed to the court below which dismissed the appeal hence the instant appeal. The Appellant, has formulated three (3) issues for determination, namely: “2.01 Whether the provisions of Section 51(1) and (2) of Adamawa State Edict (sic) No. 4 of 1996 is not inconsistent with the provisions of Section 236(1) and Section 33 of 1979 Constitution as amended PAGE| 3 and therefore unconstitutional and void (see Ground 1 and 2) sic. 2.02 Whether the learned Justices of Court of Appeal were right to have held that defendant need not PLEAD defence of pre-action notice in their Statement of Defence and that parties cannot waive this special defence Ground 3 and 4 (sic). 2.03 Whether plaintiff is not entitled to judgment on evidence led (Ground5)”. On their own part, the Respondents, have formulated two (2) issues for determination, namely “i. Whether the provision of Section 51(1) and (2) of the Adamawa State Water Board Edict No. 4 of 1996, is in conflict with Sections 33(1) and 236 of the 1979 Constitution (as amended), and therefore void to the extent of the inconsistency”. ii. Whether the court below was right to have concluded that the trial court was justified to have suo motu raised the issue of non-compliance vel non with Section 51(1) and (2) of Edict No. 4, 1996, requiring service of pre-action notice on the 1st defendant/respondent, despite the fact that, the issue was not pleaded in the joint statement of defence of the respondents”. It could be seen that issue 2.01 of the Appellant, is the same as issue I of the Respondents. In my respectful view, the real or crucial issue as rightly stated by the court below, is whether the action of the Appellant, was/is competent or not having regard to the said provision of the Edict/Law. I note that the said issue 2.01 of the Appellant and issue I of the Respondent, are similar to issue 1 of the parties at the court below. However, since the reason of the trial court for its said decision, is/was based on the said provision of the Edict/Law, I will reproduce its provision. It provides as follows: “51 (1): No Suit shall be commenced against the Board until one month has elapsed since a written notice to commence the suit shall have been served on the Board by the complainant or his agent. (2) A notice under sub-section (1) shall state: (a) The cause of action (b) the relief sought, and (c) the name and place of abode of complainant”. As can be seen, Section 51(1), is a Statutory provision and it is mandatory while Section 51(2), is directory. My perusal of the Records, makes it abundantly clear to me, that the learned counsel for the Appellant either in the two lower courts or in their Brief in this Court, never at any stage, contend that the Appellant, complied with the said provision before instituting its said suit. Rather, the arguments all along, (i.e. in the two lower courts), have been that the Appellant, is/was not bound to comply with the provision because, according to it, it is the provision of an Edict and that it cannot in any way, postpone or suspend the right of the Appellant to be heard or restrict the jurisdiction of the trial court. I note however, that at page 199 of the Records, the learned counsel for the Appellant, inter alia, submitted that, “the purport of Section 51 of the Edict is to oust this court’s jurisdiction in respect of the 1st defendant for the first 30 days by creating an impediment on the right of the Plaintiff to come to court……”. See also pages 361 and 362 of the Records and paragraphs 4.06 and 4.07 of the Appellant’s Brief. In my respectful view, the said provision, is a condition precedent as far 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! In the case of Prince Atolagbe & anor. v. Alhaji A. Awuni & 8 ors. (1997) 9 NWLR (Pt.522) 536; (1997) 1SCNJ. 1 where there was a split decision of 5:2 and also cited and relied on in the Respondent’s Brief, Mohammed, JSC, in his contribution, stated at pages 22-23 of the SCNJ inter alia, as follows: “……… Conditions precedent ordered to be done before a litigant is entitled to sue, by reason of the provisions of some statute is not an ouster clause and not a device adopted by the Government to prohibit a judicial review. It is an additional formality and unless proved to be enacted with a view to inhibiting citizens from having access to the Courts, is not contrary to Section 6(6) (b) of 1979 Constitution. See Madukolu v. Nkedilim (1964) All NLR (Pt.2) 589”. I will respectfully add, that it is not contrary to Sections 33(1) and 236 (1) of the 1979 Constitution. In the case of Captain Amadi v. NNPC (2000) 10 NWLR (Pt.674) 76 (not 72 as appears in the Respondents’ Brief at page 8); (it is also reported in (2000) 6 SCNJ. l; (2000) 6 S.C. (Pt.1) 66; (2000) FWLR (Pt. 9) 1527 and (2000) 5 WRN 47), also cited and relied on in the Respondent’s Brief, again, in his contribution, His Lordship Mohammed, JSC at page 113 of NWLR in the same vein PAGE| 4 as in Atolagbe’s case (supra), stated inter alia, as follows: “……….. It is instructive therefore that, compliance with the provisions of Section 11(2) of N.N.P.C. Act 1977 is a condition precedent to instituting a suit against the Respondent. Cases constantly occur in which, although everything has happened which would at common law prima-facie entitle a man to a certain sum of money, or vest in him certain right of action, there is yet something more which must happen, in the particular case, before he is entitled to sue, either by reason of the provision of some statute or because the parties have expressly agreed. This is something called a condition precedent. It is not of the essence of such a cause of action, but it is essential. It is an additional formality super-imposed on the law…….” His Lordship, referred to Prince Atolagbe’s case (supra) and the English Supreme Court Practice (White Book) 1991) Edition Order 18/7/10. Since I note that in respect of Issue No. 1 of the Appellant, the arguments are substantially and materially the same or similar to/as those proffered in the two lower courts and in this Court, I will deal with the same together with Issue I of the Respondents. The issue or question of pre-action Notice has been firmly settled in a number of decided authorities by this Court. In the case of Katsina Local Authority v. Alhaji B. Makudawa (1971) (1) NMLR 100 at 105 also cited and relied on in the Respondent’s Brief, this Court – per Coker, JSC, stated inter alia, as follows: “We are clearly of the view that Section 116(2) of the Local Authority Law prescribes a condition precedent to the competence of any action commenced against a Local Authority and that compliance with the sub-section is a pre-condition of such competence. The sub-section requires such notice as it therein prescribed to be served on the Local Authority and stipulates that at least one month shall expire before the suit can be legally commenced. It follows therefore, in our view, that where it is established that no such notice was served or that the sub-section is not otherwise complied with, any suit commenced in contravention of the provisions of the sub-section is wrongly commenced and should not be entertained by any court”. Uwais JSC, (as he then was), held at page 107 of the above case, that the purpose of giving Notice of Claim to the Local Government is that it is not taken by surprise, but to have adequate time, to prepare to deal with the claim in its defence. That the purpose of the notice, “is not to put hazards in the way of bringing litigation against it.” See also the cases of His Highness Umukoro & ors. v. NPA & anor. (1997) 4 NWLR (Pt 502.) 656 at 667; (1997) 5 SCNJ. 113 – per Kutigi, JSC, (as he then was). It should be noted that the said provision of “No suit shall be commenced”, prohibits the commencement of all suits whatsoever. That it may be argued or contended that this opening phrase, may be very wide, is of no moment. In the case of Fawehinmi Construction Co. Ltd. v. Obafemi Awolowo University (1998) 6 NWLR (Pt.553) 171 at 190,194; (1998) 5 SCNJ. 44, Section 46(1) of the University of Ife Edict, 1970 which is in pari materia with Section 11(2) of the NNPC Act, 1977, (hereinafter called “the Act”), provides that service of the Notice shall be made upon the Corporation by the Plaintiff or his agent, was construed. It was held that the Section speaks of “no suit” and not “any suit”. That its provision, is not inconsistent with the provisions of Sections 6(6) (b), 33(1) and 236(1) of the 1979 Constitution because, it does not restrict access to the court. The case of Chief Osagie II & anor. v. Chief Offor & anor. 1 (1998) 3 NWLR (Pt.541) at 205 was followed. It is also reported in (1998) SCNJ. 122 Section 11(2) of the said Act, relates to all or any type of action. It is wider and all embracing and different in application, from Section 97 of the Ports Authority Act. See also the case of NPA v. Construction Generali (1962) 12 S.C. 81 at 95. In other words, it covers all suits and whatever causes of action and it is not limited to anything done pursuant to any Act or Statute. In Captain Amadi v. NNPC case (supra), Uwais, CJN, (Rtd.) at page 8 of the NWLR, reiterated his said views in Katsina Local Authority case (supra). It was also held – per Karibi-Whyte, JSC. that the said purpose or purposes, of pre-action Notice, are legitimate and are recognized procedural provisions to give the defendant “breathing time so as to enable him or it, determine whether he or it, should make reparation to the Plaintiff. See also the case of Ngelela v. Tribal Authority, Nongowa Chiefdom (1953) 14 WACA 325 at 327. – where Sutton, PJ. stated inter alia, as follows: “The language is imperative and would appear to debar a court from entertaining a suit instituted without compliance with its provision. The object of the notice is to give the defendant a breathing time to enable it determine whether he would make reparations to the Plaintiff It was also held in Captain Amadi v. NNPC case (supra), that while the issuance of the Notice by a prospective Plaintiff, is mandatory, the particulars to be included in the Notice – i.e. the cause of action, particulars of claim, name and place of abode of the intending Plaintiff and the relief to be claimed, are directory. In the case of Chief Nnonye v. Anyiahie & 2 ors. (2005) 1 SCNJ. 306 at 377; (2005) 1 S.C. (Pt. II) 96, (2005)1 SCM, 133, it was held – per Akintan, JSC, that the failure to serve a pre-action Notice on the defendant, gives such defendant, a right to insist on such Notice, before the plaintiff may approach the court. In other words, that non-service of a pre-action Notice merely puts the jurisdiction of a court on hold pending compliance with the pre-condition. A PAGE| 5 number of cases were referred to therein. In fact, failure to serve the said Notice amounts to an irregularity that renders the suit incompetent. In the recent case of Bakare v. Nigerian Railway Corporation (2007) 17 NWLR (Pt.1064) 606 at 656; (2007) 7 S.C.N.J. 131; (2007) 7 S.C. 1(2007)12 SCM Pt.2 217 – per Chukwumah-Eneh, JSC, where by virtue of Section 83 (2) of the Nigerian Railway Corporation Act, no suit shall be commenced against the Corporation, until three (3) months at least after written Notice of the intention to commence the same, shall have been served upon the Corporation by the intending plaintiff or his agent. Section 83(2) of the said Act, is also in pari materia with Section 51(1) and (2) of the Act in the instant case. It was held that the said Section, provides a form of limitation period within which an action against the Corporation must be commenced while Section 83(2) provides for a pre-action Notice which must be given to the Corporation, That the two requirements, must be met before any action against the Corporation is instituted otherwise, failure to comply with either of the provisions, will lead to such an action, being declared incompetent. The case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 was referred to. The case of Eboigbe v. The NNPC (1994) 5 NWLR (Pt.347) 649 also reported in (1994) 6 SCNJ. 71. was also referred to where Section 12(1) & (2) of the NNPC Act Cap. 320 Laws of the Federation, 1990, provides for the giving of pre-action Notice within Twelve (12) months. The said Section also provides that no action shall be taken against the Corporation or its employees and no action shall be taken against these persons for any act done in pursuance of or execution of any Act or Law or any public duty or authority unless commenced within twelve (12) months after the act complained of. Significantly and interestingly, the Appellant and its learned counsel appreciate and concede the purpose of a pre-action Notice. At paragraph 4.06 page 5 of their Brief, the following submissions appear inter alia; “It is therefore Plaintiffs (sic) humble submission that the purpose of Section 51(1) and (2) of Edict No. 4 of 1996 is to now protect 1st Defendant and put an obstacle on the path of the prospective claimants which they have to scale before commencing a suit. The purpose is also to outrightly suspend the Plaintiff’s right of action………”. [the underlining mine] Great! This is what this Court has stated and restated in the authorities reproduced by me in this Judgment. On this concession, all the fuss by the Appellant in its Brief and under this issue, become with respect, a complete exercise in futility and a sheer waste of the Court’s time. In paragraph 4.07 of the said Brief, the following appear: “The above provisions therefore, it is submitted in as much as it now delays the complainant from coming to court or having his complaint adjudicated by the court immediately clearly derogates from the provisions of Section 33(1) of 1979 Constitution that entitled complainant to a fair hearing, within a reasonable time. The provision of Section 51(1) have the effect to temporarily shut the doors of the court against a complaint albeit for 30 days, in all circumstances where a notice is given and for ever where no such notice is given by the complaints”. [the underlining in bold mine] I note that this is another concession. I will now deal even briefly with fair hearing especially where it is also submitted in paragraph 4.08 of the Appellant’s Brief, that the said provision, is “an attempt to circumscribe the clear provisions of Section 33 and Section 236 (1) of the 1979 Constitution as amended. The same Section delays, postpone and obstruct the immediate access of a claimant to the court. The right to access or immediate access to court is a constitutional right. See the case of Eyesan v. Sanusi (1980) 1 SCNLR 353 at 35 4ratio 6 ……..”. [the underlining mine] Access to the court, it is said, means approach or means of approach to the court without constraint – per Karibi-Whyte, JSC, in Captain Amadi v. NNPC (supra) at page 111 of the NWLR. A condition precedent is defined as one which delays the vesting of a right until the happening of an event. See Prince Atolagbe and Captain Amadi’s cases. It has to be borne in mind always and this is settled, that the constitutional right of access to the court, does not however, preclude statutory regulations of the exercise of the right. I have in this Judgment, shown that it is now firmly settled that a/the pre-action Notice in the suit leading to this appeal, is not inconsistent with Section 33(1) of the 1979 Constitution and this puts to rest, in my respectful view, any argument, submission or contention to the contrary. It is therefore, not unconstitutional and void as submitted in the Appellant’s Brief. This is also because, the said provision does not, oust the jurisdiction of the court or derogate from the rights of the citizen. It only post-pones the time for instituting a suit. In my view, (30) thirty days or one month, cannot be said to be an inordinate time or period. Issue 2.02 and 2.03 of the Appellant and Issue ii of the Respondents. I have stated and held the view that the crucial issue in this appeal to be determined, is the PAGE| 6 competency of the suit of the Appellant. I have held and concluded that the said action of the Appellant, is incompetent. 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 proceedings is/are a nullity however well conducted. See Madukolu v. Nkemdilim, Prince Atolagbe v. Alhaji Awuni (supra) and Chief Obaka & ors. v. Military Governor of Kwara State & ors. (1994) 4 NWLR; (1994) SCNJ, 121 (Pt. 336) 26, just to mention but a few. In the case of Eimskip Ltd. v. Exquisite Industries (Nig.) Ltd. (2003) 4 NWLR (Pt.809) 88 at 118; (2003) 1 SCNJ. 317, Mohammed, JSC, stated inter alia, as follows: “…………. Where there is fundamental failure to comply with the requirement of a statute the issue is not of irregularity, but a nullity”. From all these firmly established authorities, with profound humility, it is idle therefore, to argue or submit as has been done in paragraphs 5.02 of the Appellant’s Brief that – “the law prescribing pre-action notice is a privilege, conferring a special advantage in favour of the first defendant in this case and it is left for the 1st defendant to take advantage of the special provision at the trial or waive same by proceeding with the case without insisting on its legal rights”. In the first place, where an issue of competence or jurisdiction of a court, is fundamental and crucial, the issue of waiver, cannot be of any consequence. See the case of Onyema & ors. v. Oputa & ors. (1987) 3 NWLR (Pt.60) 259; (1987) 7 SCNJ.176. Secondly, if a/the defendant, has a legal right conferred on him/it by a statute, it is again with respect, idle to submit as has been done in the Appellant’s Brief, that the defendant, should waive same and proceed with the hearing of the case. However and significantly, the learned counsel to the Appellant, concede that such a defendant, can take advantage of the said provision. In the circumstances, there will be no need (which will not even arise or be necessary), to start pleading such pre-action Notice as a defence.. Being a question of jurisdiction, the issue can be raised by a defendant or even by the court suo motu and thereafter hear from the parties as was done in this case See the cases of Alhaji K. Abubakar & 10 ors. v. Jos Metropolitan Development Board & anr. (1997) 10 NWLR (Pt. 524) 242 at 250-251 C. A. – per Edozie, JCA, (as he then was) and Katto v. CBN (1991) 9 NWLR (Pt.214) 126 at 149; (1991) 12 SCNJ. l – per Akpata, JSC, also cited and reproduced in the Respondent’s Brief. This issue, again with respect, is a non-issue in the circumstances of this case. It is again, an academic exercise albeit, in futility. I so hold. In respect of Issue 3, how can the Appellant be entitled to Judgment, when it has not started “to walk how much more to run”? so to say I or one may ask. When once an action is a nullity, I repeat, it is of no moment how well the case or proceeding, is conducted. With respect, this issue, in the circumstances again, does not arise. At best, it is hypothetical and all arguments in respect thereof by the Appellant, is again an exercise in futility. I repeat, service of pre-action Notice, is a condition precedent to the exercise of jurisdiction by a court of trial. In the case of Odofin & anor. v. Chief Agu & anor. (1992) 2 NWLR (Pt.229) 350 at 375; (1992) 3 SCNJ. 161 also cited and relied on in the Respondents’ Brief, this Court – per Akpata, JSC, stated inter alia, as follows: “……….. The question of jurisdiction is not a matter to be taken for granted. A court cannot casually assume jurisdiction over a matter when conditions precedent are not satisfied or do not appear to have been satisfied……”. In the case of Attorney-General of the Federation & 2 ors. v. Sode & 2 ors. (1990) 1 NWLR (Pt.128) 500 at 538; (1990) SCNJ. 1 – Karibi-Whyte, JSC, (Rtd.) in his concurring judgment, stated inter alia, as follows: “……….But it is also well settled that the exercise of a right of action is derived from the fundamental law of the land, or any statute specifically conferring such right. The Court can only exercise jurisdiction with respect to a right of action and cannot assume jurisdiction unless the plaintiff who has brought the action before it has a right of action – See Bello & ors. v. A-G for Oyo State (1986) 5 NWLR (Pt. 45) 828. This court has in many recent decisions defined what is a right of action” [the underlining mine] From the above pronouncements of this Court, the learned trial Judge’s decision or discretion to raise the issue and hear from the learned counsel, for the parties is/was, in my respectful view, right, justified and cannot be faulted by me. Before concluding this Judgment, I will touch or and deal briefly, with the issue of the learned trial Judge raising the said issue of pre-action Notice suo motu because with respect, of the unnecessary fuss in the submissions in the Appellant’s Brief in paragraph 3.09 at pages 3 and 4. In the case of Lt.-Col. Mrs. Finnih v. Imade (1992) 1 SCNJ.87 at 107-108, Karibi-Whyte, JSC, stated inter alia, as follows: “……….. It is a strange thing to say that the Judge cannot apply principle not referred to it by counsel. The day such a principle of law is accepted, the true demise of the independence of the Judge in deciding cases before him is assured. The oath of the judge is to do justice PAGE| 7 according to law and to all manner of people without fear or favour, affection or ill-will”. May such a day never come, although it will not come. In Alhaji A. Abubakar & ors. (case) (supra), Edozie, JCA, (as he then was), stated inter alia, as follows: “The court can on its own initiative raise the question of its jurisdiction even though the parties have failed to do so because mere acquiescence does not confer jurisdiction. See Onyema v. Oputa (1987) 3 NWLR (Pt.60) 259; Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377; Attorney-General of the Federation v. Socle (1990) 1NWLR (Pt.128) 500”. In the case of Bakare v. Nigerian Railway Corporation (supra), Mukhtar, JSC, at pages 659-660, opined inter alia, as follows: “……….. A Judge in the course of writing his judgment is at liberty to have recourse to any provision of the law that is relevant to the subject matter of the case in controversy in order to completely give the judgment the attention it deserves, to do justice to it, and to avoid a miscarriage of justice. See Onuoha v. State (1988) 3 NWLR (Pt.83) page 460. A Judge is also enjoined to interprete the provision of law and give it its grammatical and ordinary meaning and not to ramble and distort its construction. See Amadi v. N.N.P.C. (2000) 10 NWLR (Pt.674) page 76, First Bank of Nigeria PLC v. Ibennah (1996) 5 NWLR (Pt.451) page 725; Shell Petroleum Development Co. (Nig.) Ltd. v. Federal Board of Internal Revenue (1996) 8 NWLR (Pt.466) page 256 and Adisa v. Oyinwola (2000) 10 NWLR (Pt.674) page 116′ Mr. Jegede, can now see that he was not standing on a firm ground, when he made those submissions in the said Brief. In concluding this Judgment, I hold with respect, that there is no merit whatsoever in this appeal. What is more, in spite of the repetitions of same issues and arguments in the two lower courts and even in this Court, there are concurrent Judgments of the two lower courts and the attitude of this Court, is not to disturb or interfere with the findings of fact of the said courts. If learned counsel had graciously taken or appreciated the stance of the learned trial Judge especially, the hint in view of the clear and unambiguous decisions of the Court of Appeal and this Court and since he believed that judgment should have been entered in favour of his client – the Appellant, he should and ought to have considered complying with the mandatory provision of the Edict/Law without wasting these twelve (12) or thirteen years, pushing on a course that will and has in fact ended in an exercise in futility. I have no hesitation in dismissing this appeal and affirming the said decision of the court below which affirmed the Judgment of the trial court. Costs follow the events. The Respondents are awarded N10,000.00 (ten thousand naira) costs payable to them, by the Appelland. NIKI TOBI, JSC: This appeal is on failure on the part of the plaintiff/appellant to give pre-action notice before the action was filed. The action was in respect of water rehabilitation in Adamawa State and breach of contract by 1st defendant/respon-dent who failed to pay 15% contract sum. The learned trial Judge struck out the action on the ground that the appellant failed to give pre-action notice. The learned trial Judge in his judgment said at page 203 of the Record: “It is the same statute that created the 1st defendant that