ONDO STATE DEV. & PROPERTY CORPORATION v. JIMZEST HOTEL DEV. CO. LTD.
(2011)LCN/4881(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of November, 2011
CA/B/13/2006
RATIO
RULES OF INTERPRETATION OF STATUTE: HOW TO DETERMINE THE REAL MEANING OF THE WORDS USED IN A STATUTE
One of the cardinal principles of the interpretation of statutes is that particular provisions should not be considered in isolation. As submitted by learned counsel for the appellant, the statute must be considered as whole in order to get the real meaning of the words used. See: Onjewu Vs K.S.M.C. & I. (2003) FWLR (181) 1590 @ 1621 – 1622 H -A; Ekpo Vs Calabar Local Government Council (1993) 3 NWLR (281) 324 @ 337. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
RULES OF INTERPRETATION OF STATUTE: DUTY OF THE COURT WHERE THE PROVISIONS OF A STATUTE ARE CLEAR AND UNAMBIGUOUS
The position of the law on the interpretation of statutes was well stated by the Supreme Court per Tobi, JSC in: Kraus Thompson Organisation Vs N.I.P.S.S. (2004) 17 NWLR (901) 46 @ 60 = 61 H – B thus: “Where provision of a statute is clear, the duty of the court is to interpret the clear provision by giving the plain wordings their ordinary interpretation without more.” In City Engineering (Nig.) Ltd. Vs Nigerian Airports Authority (1999) 6 SC (Pt. II) 41 @ 47 lines 32 – 39, His Lordship, Kutigi, JSC stated thus: ‘The duty of the Court is to interpret the words the legislature has used. And it is a cardinal principle of interpretation that where in their ordinary meaning, the provisions are clear and unambiguous, effect should be given to them as such (see for example Attorney – General of Bendel State Vs Attorney – General of the Federation (1987) 10 SC 1. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
STATUTORY PROCEDURE: POSITION OF THE LAW WHERE THERE IS PROVISION IN A STATUTE ON HOW A PARTICULAR METHOD MUST BE ADOPTED IN PERFORMING A DUTY REGULATED BY THE STATUTE
On the importance of provisions in a statute providing a specific method for doing something, His Lordship, Nnaemeka-Agu, JSC had this to say in the case of: Cooperative and Commerce Bank (Nig.) Plc. vs A -G Anambra state & Anor. (1992) 8 NWLR (261) 528 @ 556 G-H: “Now, it is the law that where a statute provides for a particular method of performing a duty regulated by the statute, that method and no other must be adopted.”
PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
PRE-ACTION NOTICE: EFFECT OF NON-SERVICE OF A PRE-ACTION NOTICE ON THE JURISDICTION OF THE COURT
In the case of Nnonye Vs Anyichie (2005) 1 SC (Pt.II) 96 @ 103 and 104, it was held that non-service of a preaction notice puts the jurisdiction of the court on hold pending compliance with the pre-condition. The cases of: Barclays Bank Ltd. Vs Central Bank of Nigeria (1976) 6 SC 175; Okotie-Eboh Vs Okotie-Eboh (1986) 1 NWLR (16) 264; Ijebu-Ode Local Govt. Vs Adedeji Balogun (supra) and Eze Vs Ikechukwu (2002) 18 NWLR (799) 348 were cited with approval. See also: City Engineering (Nig.) Ltd. Vs N.A.A. (supra) at 52 – 53 lines 37 – 12. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
ONDO STATE DEV. & PROPERTY CORPORATION Appellant(s)
AND
JIMZEST HOTEL DEV. CO. LTD. Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): By a writ of summons dated 27/5/05 and a statement of claim dated 12/7/05 and filed on 13/7/05, the respondent herein, as plaintiff instituted an action before the Ondo State High Court sitting at Akure against seven defendants, including the appellant herein who was the 2nd defendant, seeking among other reliefs a declaration that the revocation of its Certificate of Title in respect of its property situate, lying and being at Ijapo Estate, Akure by the 1st defendant (the Governor of Ondo State) via a letter dated 15th April 2005 is unconstitutional and void. The plaintiff further sought the return of its construction tools, damages and injunction. Upon being served with the processes, the 2nd defendant/appellant filed a notice of preliminary objection dated 4/10/05 for an order striking out the suit on the ground that the court lacked jurisdiction to entertain it for failure of the respondent to serve on it a pre-action notice as prescribed by Section 26 (1) and (2) of the Ondo State Development and Property Law 2000. The notice of preliminary objection was supported by a 12 paragraph affidavit. In reaction thereto the plaintiff/respondent filed a 10-paragraph counter affidavit wherein it was averred in paragraphs 4 and 6 that the respondent’s chairman and Chief Executive Officer issued the required pre-action notice to the appellant on 14th March 2005 and that it was duly received at the appellant’s office on the same day. A copy of the letter written to the appellant, showing endorsement of receipt by one Adedeji, K on 14/3/05 was exhibited to a further affidavit and marked Exhibit OA1. The said Adedeji, K., who turned out to be Kemisola Adedeji, a clerical assistant in the office of the appellant’s Chairman deposed to a further and better affidavit on behalf of the appellant to the effect that she recognised her signature on Exhibit OA1 but could not remember or ascertain from her records whether or not she passed the letter on to the Chairman.
After listening to the submissions of learned counsel for the respective parties, the learned trial Judge in a considered ruling delivered on 1/11/05 overruled the objection in the following terms:
“The high point of Mr. Oseni’s argument is that the pre-action notice should be sent to the General Manager of the Corporation. In the case the letter was received and signed for by a mere Clerical Assistant in the office of the Chairman. I must disagree with the submission of Mr. Oseni, the learned counsel for the 2nd defendant. In as much as the pre-action notice was address (sic) to the Chairman of the Corporation and an officer in his office signed for him, it is irrelevant that [it] was an ordinary Clerical Assistant who signed for it. Even if the letter was addressed to the Chairman, it is the duty of the Chairman to pass it over to the appropriate officer i.e. the General Manager.
It is my view that since the pre-action letter was issued on 14/3/05 stating the intention of the plaintiff to institute an action against the 2a defendant and the plaintiff filed his writ of summons on 27/5/05, a date 30 days and above the required number of days the plaintiff has complied with Section 26 (1) (2) of the Ondo State Property and Development Corporation Law. The objection of Mr. Oseni is accordingly overruled.”
The appellant was dissatisfied with this decision and filed a notice of appeal containing three grounds of appeal.
In compliance with the Rules of this Court, the parties duly filed and exchanged their respective briefs of argument. At the hearing of the appeal on 27/9/2011, Mr. Nasiru Oseni, learned counsel for the appellant adopted and relied on the appellant’s amended brief of argument dated and filed on 24/5/2011. By an order of this Court made on 8/3/2011 the appellant discontinued the appeal against the second set of respondents who were the 1st, 3rd, 4th, 5th, 6th and 7th defendants at the court below. Consequently it filed an Amended Notice of Appeal dated 24/3/2011. Mr. K. O. Afolabi, learned counsel for the respondent adopted and relied on the respondent’s brief dated 11/5/06 and filed on 25/5/06. In oral submission he contended that the appellant had argued a different case on appeal from what he argued at the trial court, which is not permitted. In support of this submission he cited the case of: Omosowan Vs Chiedozie (1998) 9 NWLR (566) 477 @ 484.
The appellant formulated two issues for determination as follows:
1. Whether in view of the provisions of Sections 25(1) and 26 of the Ondo State Development and Property Corporation Law and the affidavit evidence before the court, the learned trial judge was not in error when he overruled the Appellant’s preliminary objection and held that the Plaintiff/Respondent had complied with the pre-action notice requirement contained in Section 26(1) and (2) of the Ondo State Development and Property Corporation Law, by issuing exhibit OA1 (Grounds 1 and 2).
2. Whether the learned trial judge was not in error when he regarded exhibit OA1 as pre-action notice for the purposes of the suit pending between the parties (Grounds 3).
The respondent formulated the following single issue for determination:
“Whether or not the learned trial judge was right in holding as his Lordship did that Plaintiff served pre-action notice on 2nd Defendant/Appellant vide exhibit OA1 dated 14th March, 2005.”
I am of the view that the appellant’s first issue is sufficient to dispose of the issue in contention in this appeal. I shall therefore adopt it for the resolution of this appeal with a slight modification thus:
“Whether the appellant complied with the provisions of Section 26 (1) and (2) of the Ondo State Development and Property Corporation Law in the issuance of Exhibit OA1 prior to the institution of the suit before the trial court on 27/5/05.”
Learned counsel for the appellant argued that the only issue for determination in the preliminary objection was whether it was served with a pre-action notice as required by law. He contended that there was nowhere in the affidavit evidence before the trial court that the respondent averred that it served the pre-action notice on the General Manager of the Corporation. He noted further that there was no finding that the notice was delivered to the General Manager. He argued that the finding of the learned trial Judge regarding the giving of the notice to the Chairman’s clerical assistant, as opposed to service on the General Manager was academic, as it did not address the issue of service as prescribed by the relevant law. He argued that the court has no jurisdiction to entertain academic or hypothetical issues. He relied on the case of: Aro Vs Lagos Island Local Government Council (2000) FWLR (13) 2132 @ 2149 – 2150 H – B. He submitted further that it was highly speculative for the learned trial Judge to have held that the clerical assistant who received Exhibit OA1 must have or ought to have given the notice to the Chairman who in turn must have or ought to have delivered it to the General Manager who had a duty to take a decision on the issues raised therein. He challenged the reasoning of the learned trial Judge on three grounds:
i. That the onus was on the respondent to prove that the notice was served. He submitted that the learned trial Judge ought not to have shifted the burden of proof onto the appellant and that it was not his duty to fill in the gaps in the respondent’s affidavit.
ii. There was nothing in the affidavit evidence before the court to suggest that the appellant’s Chairman received the notice.
iii. The law requires that the notice should be delivered to the General Manager or sent to him by registered post. He referred to Sections 25 (1) and 26 (1) and (2) of the Ondo State Property and Development Law. He submitted that a pre-action notice is within the meaning and intendment of Section 26 (1) and (2) of the Law and that the provisions of Section 25 (1) thereof which provides for the mode of service of any notice on the Corporation is unambiguous. He argued that the provision requiring the delivery of any notice to the General Manager or that such notice be sent to him by registered post is a clear indication of the intention of the Legislature to ensure that it is actually delivered to the hand of the General Manager. He contended that if delivery to a clerk, messenger or security guard were sufficient service, the legislature would have specifically stated so. On the established principles guiding the interpretation of unambiguous statutory provisions he referred to the Supreme Court decision in: Ejuetami Vs Olaiya (2002) FWLR (88) 955 @ 974 B – D; (2001) 12 SC (Pt.II) 175 @ 187. He submitted that the duty of the court is to determine the intention of the legislature and not to seek to remake the law or give it a strained or adulterated meaning. He argued that no matter how strict a provision might b’80, the court’s duty is simply to interpret its meaning. He referred to: Kraus Thompson Organisation Vs N.I.P.S.S. (2004) ALL FWLR (218) 797 @ 809 G; (2004) 17 NWLR (901) 46 @ 60 – 61 H – B.
Learned counsel submitted further that in the interpretation of a statute, a particular provision must not be taken in isolation but the statute must be read as a whole. He relied on: Onjewu Vs Kogi State Ministry of Commerce and Industry (2003) FWLR (181) 1590 @ 1621 – 1622 H – A; Ekpo Vs Calabar Local Government Council (1993) 3 NWLR (281) 324 @ 337. On the need to comply strictly with the provisions of a statute that lays down a specific procedure for doing a thing, he relied on: Cooperative and Commerce Bank (Nig.) Plc. Vs A.G. Anambra State & Anor. (1992) 8 NWLR (261) 528 @ 556; Cross River Basin and Rural Development Authority vs. Sule (Baba) Ali Sule (2001) 6 NWLR (708) 194.
He submitted that insistence on strict compliance with mandatory provisions of a statute relating to the service of preaction notice is not a mere technicality. He contended that the issue of doing substantial justice, as the learned trial Judge tried to do in this case, would not arise in a situation where the case is not properly before the court, as the court would not have jurisdiction to entertain the matter in the first place. On the distinction between a mere unsubstantial technicality in proceedings that are competent and within the jurisdiction of the court and a substantial technicality, which amounts to a condition precedent to the commencement of an action, which renders a proceeding manifestly incompetent thereby affecting the jurisdiction of the court, he referred to the case of: City Engineering (Nig.) Ltd. Vs Nigerian Airport Authority (1999) 1 NWLR (625) 76 @ 89 C – F. (1999) 6 SC (Pt.II) 41 @ 52 – 53 lines 37 – 12.
Learned counsel argued that the issue before the court was service of the pre-action notice on the appellant’s General Manager. He submitted that whether or not the pre-action notice was issued was not in contention and was not raised before the learned trial Judge and he ought to have confined himself to the issue properly raised before him. He referred to: Edem Vs Cannon Balls Ltd. (2005) All FWLR (276) 693 @ 706 C.
Finally, learned counsel submitted that Exhibit OA1 was not issued in respect of the cause of action in the present suit and is therefore not valid for the purposes of the suit. He referred to paragraphs 5 – 16 of the respondent’s statement of claim at pages 5 – 6 of the record and submitted that the respondent’s complaint is based on a revocation letter dated 15/4/05 and the subsequent entering upon the land and carting away of the respondent’s materials. He contended that the respondent’s cause of action arose on or after 15/4/05 while Exhibit OA1 is dated 14/3/05 and therefore is not in compliance with Section 26 (1) of the Law.
In reaction to the submissions on behalf of the appellant, learned counsel for the respondent submitted that the learned trial Judge agreed and accepted that a pre-action notice was issued and served on the appellant on 14/3/05 and that the respondent filed its action on 27/5/05 more than 30 days after the notice was given. He submitted that there was full compliance with Section 26 (1) and (2) of the Law. He contended that the two requirements of Section 26 are:
i. Service of written notice on the Corporation; and
ii. The service of the notice of intention to sue not less than 30 days before the commencement of the action.
On the effect of non-service of pre-action notice where same is required he cited a plethora of authorities including: Nonye Vs Anyichie (2005) 2 NWLR (910) 623 @ 647; Mobil Oil Producing Vs LASEPA (2002) 18 NWLR (798) 1. He submitted that once it is shown that a pre-action notice was served, the application seeking to strike out the suit must be dismissed. He submitted further that non-service of a pre-action notice (not conceded in this case) merely puts the jurisdiction of the court on hold pending compliance with the pre-condition.
He submitted that the finding of the learned trial Judge regarding receipt of the notice by a clerk in the Chairman’s office is not academic, as it is based on affidavit evidence produced by the appellant itself. He also contended that, as a corporation acts through its officials, it was not speculative on the part of the learned trial Judge to hold that the Chairman upon receipt of Exhibit OA1 had a duty to pass it on to the General Manager. Learned counsel argued that the appellant’s case before the trial court was predicated on Section 26 (1) and (2) of the Law and not Section 25. He urged the court to hold that the learned trial Judge made correct findings and reached the right conclusion based on the materials before him. He urged us to dismiss the appeal.
It is correct, as submitted by learned counsel for the respondent that the appellant’s preliminary objection was predicated upon Section 26 (1) & (2) of the Ondo State Property and Development Law 2000, which provides as follows:
26, (1) “No suit shall be commenced against the Corporation until at least one month after a written notice to commence the same has been served upon the Corporation by the intending plaintiff.
(2) A notice under sub-section (1) of this section shall state the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims.”
(Emphasis mine)
Section 25 (1) of the Law makes provision for the service of any notice on the Corporation. It provides thus:
25. (1) “Service upon the Corporation of any notice, order or other document shall be effected by delivering the same to the General Manager of the Corporation or by sending it by registered post addressed to the General Manager of the Corporation at the principal office of the Corporation.”
Learned counsel for the respondent has made heavy weather of the fact that the preliminary objection was based solely on compliance with Section 26 of the Law and therefore any reliance on Section 25 of the Law amounted to making a different case from the one made at the court below. I respectfully beg to differ. Section 26 of the Law makes provision for the service of pre-action notice on the appellant Corporation. The same law makes specific provision for the mode of service. One of the cardinal principles of the interpretation of statutes is that particular provisions should not be considered in isolation. As submitted by learned counsel for the appellant, the statute must be considered as whole in order to get the real meaning of the words used. See: Onjewu Vs K.S.M.C. & I. (2003) FWLR (181) 1590 @ 1621 – 1622 H -A; Ekpo Vs Calabar Local Government Council (1993) 3 NWLR (281) 324 @ 337.In the instant case, reference to the specific provision regulating the mode of service of any notice on the appellant cannot be construed as making a different case from the case presented before the trial court. In order to determine when service would be deemed to be valid, learned counsel has a duty to refer the court to relevant provisions on the issue. The court would also not be expected to close its eyes to such provisions where they exist, even if not alluded to by the parties. See: Nigercare Development Co. Ltd. Vs Adamawa State Water Board (2008) 2 – 3 SC (Pt. II) 202 @ 224 lines 28 – 36.
The pertinent question to be determined in this appeal is what constitutes proper service of a pre-action notice on the appellant in compliance with Sections 25 (1) and 26 (1) and (2) of the Ondo State Property and Development Law.
The position of the law on the interpretation of statutes was well stated by the Supreme Court per Tobi, JSC in: Kraus Thompson Organisation Vs N.I.P.S.S. (2004) 17 NWLR (901) 46 @ 60 = 61 H – B thus:
“Where provision of a statute is clear, the duty of the court is to interpret the clear provision by giving the plain wordings their ordinary interpretation without more.”
In City Engineering (Nig.) Ltd. Vs Nigerian Airports Authority (1999) 6 SC (Pt. II) 41 @ 47 lines 32 – 39, His Lordship, Kutigi, JSC stated thus:
‘The duty of the Court is to interpret the words the legislature has used. And it is a cardinal principle of interpretation that where in their ordinary meaning, the provisions are clear and unambiguous, effect should be given to them as such (see for example Attorney – General of Bendel State Vs Attorney – General of the Federation (1987) 10 SC 1.”
The clear and unambiguous words used in Section 26 (1) of the Law are to the effect that an intending plaintiff may not commence action against the Ondo State Development and Property Corporation until at least one month after a written notice to commence same has been served on it. The vital component of the provision is service of the notice on the Corporation. Section 25 (1) spells out clearly how that service is to be effected. The notice must be “delivered’ to the General Manager of the Corporation or sent by registered post “addressed to the General Manager” at the principal office of the Corporation. Emphasis in this provision is on the word “delivered” and the person to whom the notice must be delivered or sent i.e. the General Manager. On the importance of provisions in a statute providing a specific method for doing something, His Lordship, Nnaemeka-Agu, JSC had this to say in the case of: Cooperative and Commerce Bank (Nig.) Plc. vs A -G Anambra state & Anor. (1992) 8 NWLR (261) 528 @ 556 G-H:
“Now, it is the law that where a statute provides for a particular method of performing a duty regulated by the statute, that method and no other must be adopted.”
It follows therefore that having regard to the provisions of Sections 25 (1) and 26 (1) of the Ondo State Property and Development Law, for service of the pre-action notice to be valid, it must be shown that it was delivered to the General Manager of the Corporation or sent by registered post addressed to the General Manager. In reaction to the appellant’s preliminary objection, the respondent averred in paragraphs 4, 5 and 6 of its counter affidavit sworn to by Kehinde Akin-Olotu, litigation manager in the firm of the respondent’s solicitors, at pages 34 – 35 of the record thus:
4. “That a Chief Olaniyi Ajayi, Chairman and Chief Executive of Plaintiff Company informed me and I believe his information to be true that he issued on 14th March, 2005 on behalf of plaintiff company in his capacity as its Chief Executive, a notice to 2a defendant corporation of plaintiff company’s intention to sue it on its land situate at Ijapo Estate, Akure, a commercial land registered as No.42 page 47 in the Land Registry, Akure dated 15th June, 1989 for unlawful entry/occupation of the land (sic) property of plaintiff and seizure of its construction tools illegally.
5. That the issuance of notice to sue 2nd defendant was given to it by plaintiff company when 2nd defendant refused to stop its constant harassment of plaintiff company and its employees on its land by its illegal seizure of plaintiff company working and construction tools on the land despite protests.
6. The said notice was received at the 2nd defendant corporation office on the said 14th March, 2005.”
Chief Olaniyi Ajayi deposed to a further affidavit dated 19/10/05 wherein he averred in paragraph 4 thereof:
4. “Annexed hereby is a Copy of the letter dated 14th March, 2005 and received by one Adedeji, K. on 14th March, 2005 at the 2nd defendant (sic) corporation office of the executive chairman hereby marked Exhibit OA1.”
Exhibit OA1 is addressed to the Executive Chairman of the appellant. The aforementioned Adedeji, K. (Kemisola Adedeji) deposed to a further and better affidavit on 1/11/05 on behalf of the appellant. Paragraphs 1, 5, 6, 7, 8 and 9 are relevant and are reproduced hereunder:
1. “That I am employed as a Clerical Assistant at the office of the full-time Chairman of the 2nd defendant/applicant.
5. That although the letter shown to me was a photocopy, the signature thereon appeared like mine and I had no doubt that I had probably received such a document.
6. That I however could not remember what had happened concerning the document, although I suspected that it might have been processed to the table of the Chairman.
7. That I conducted a search through the file and letter movement registers in the Chairman’s office but there was no trace of the movement of the alleged letter.
8. That I have since been unable to reach the Chairman to confirm the receipt or otherwise of the said document because the Chairman has been unavoidably absent from the office since Friday 28th October 2005.
9. That in the circumstances, I cannot confirm that the letter referred to in paragraph 4 of the plaintiff/respondent’s further affidavit was received by the Chairman or indeed Ondo State Development and Property Corporation.'(Emphasis mine)
Faced with the various averments and counter averments reproduced above as well as Exhibit OA1, the learned trial Judge came to the conclusion that service of Exhibit OA1, which was addressed to the appellant’s Chairman and received by his clerical assistant was sufficient compliance with the law and amounted to proper service on the appellant. I have reproduced His Lordship’s reasoning and conclusion earlier in this judgment. However, for emphasis I shall repeat a portion of the judgment here:
“In as much as the pre-action notice was address (sic) to the Chairman of the Corporation and an officer in his office signed for him, it is irrelevant that [it] was an ordinary Clerical Assistant who signed for it. Even if the letter was addressed to the Chairman, it is the duty of the Chairman to pass it over to the appropriate officer i.e. the General Manager.”
Clearly Exhibit OA1 addressed to the Chairman of the appellant corporation was not in conformity with the clear and unambiguous provisions of Section 25 (1) of the Law. The second and more crucial aspect of the situation was whether the said notice was delivered to the General Manager. As observed earlier in this judgment, where a statute provides a particular method for doing an act, its provisions must be strictly complied with.
The Supreme Court in the case of: Nigercare Dev. Co. Ltd v. A.S.W.B (2008) 9 NWLR (Pt.1093) 498 at 526-527 H-B per Tobi, JSC explained the rationale behind the issuance of pre-action notice 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 possible litigation, thus, saving money and time of the parties. It is almost like a pre-action letter of demand emanating from the chambers of counsel for a plaintiff to a defendant, 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. In the case of the former, an action Commenced without a pre-action notice, where one is statutorily required, is a nullity ab initio.”
In giving the words used in Section 25 (1) of the Law their natural and ordinary meaning there can be no doubt that it was the intention of the Legislature that the General Manager is the person to whom any notice such as a pre-action notice must be delivered, This is because he is the person saddled with the day to day running of the corporation. He has more hands-on knowledge of matters affecting the company and is in a better position to facilitate an amicable resolution of the dispute where possible.
In the instant case, the affidavit evidence clearly showed that Exhibit OA1 was not addressed to the General Manager. It was addressed to the Chairman and received by his clerical assistant, who by her further and better affidavit was unable to confirm that it was delivered to him. To further compound issues, assuming it was wrongly addressed to the Chairman, there was nothing before the court below to show that it was eventually delivered to the General Manager. The appellant having raised the issue of service by its preliminary objection, the respondent had the burden of proving that it duly complied with the law. See: Odoemelam vs Amadiume (2008) 2 NWLR (1070) 179 @ 188 – 189 E. I agree with learned counsel for the appellant that it was not for the learned trial Judge to fill in the gaps regarding what might have happened to Exhibit OA1 after the Chairman’s clerical assistant received it. I am therefore of the view and I do hold that the learned trial Judge erred in holding that there was proper service of preaction notice on the appellant. What is the effect of non-service of pre-action notice where it is statutorily required? In Nigercare Dev. Co. Ltd v. A.S.W.B (supra) at 244 lines 13 – 22 Tabai, JSC held:
“There are numerous decided cases on statutory provisions for pre-action notice and when they leave no one in any doubt as to their meaning, effect has to be given to the provision. Where, as in this case the provision is mandatory, a plaintiff has no choice but to comply with it. It is a condition precedent to the commencement of an action and noncompliance therewith renders the action incompetent and robs the court of any jurisdiction to entertain same.” (Emphasis mine)
In the case of Nnonye Vs Anyichie (2005) 1 SC (Pt.II) 96 @ 103 and 104, it was held that non-service of a preaction notice puts the jurisdiction of the court on hold pending compliance with the pre-condition. The cases of: Barclays Bank Ltd. Vs Central Bank of Nigeria (1976) 6 SC 175; Okotie-Eboh Vs Okotie-Eboh (1986) 1 NWLR (16) 264; Ijebu-Ode Local Govt. Vs Adedeji Balogun (supra) and Eze Vs Ikechukwu (2002) 18 NWLR (799) 348 were cited with approval. See also: City Engineering (Nig.) Ltd. Vs N.A.A. (supra) at 52 – 53 lines 37 – 12.
The appellant has also raised the issue that in any event, Exhibit OA1 cannot be construed as a valid pre-action notice in respect of the respondent’s cause of action. I have carefully examined Exhibit OA1 at page 39 of the record. The last paragraph reads as follows:
“Since we are left with no option, all our pleas having failed to yield fruits, I hereby on behalf of our company give you notice to sue you to Court for your reprehensible ads trespassing on our company land which you have continually done since July 2004 unabated and for illegally removing and seizing our Company construction and working tools. You shall surely be made to pay for all these in Court. We shall meet there. ”
The letter, dated 14/3/05 is signed by Chief Olaniyi Ajayi, Chairman/Chief Executive. However, by the endorsement of the writ of summons dated 27/5/05, the respondent’s cause of action is the revocation of its certificate of title to the property situate, lying and being at Ijapo Estate, Akure vide a letter dated 15/4/05. There is no reference to any acts of trespass since July 2004 as stated in Exhibit OA1, All the complaints in the statement of claim filed subsequently relate to actions of allegedly taken by the appellant after 15/4/05. Since the respondent’s cause of action arose on 15/4/05, Exhibit OA1 dated 14/3/05 cannot be a pre-action notice in compliance with Section 26 (1) and (2) of the Law.
In conclusion therefore, I hereby resolve the sole issue for determination in this appeal in favour of the appellant. I hold that the appeal has merit. It is accordingly allowed. The ruling of the Ondo State High Court, sitting at Akure delivered on 1/11/05 in suit no. AK/152/2005 is hereby set aside. The preliminary objection of the 2nd defendant/appellant is upheld. The suit is hereby struck out against the 2nd defendant. The parties shall bear their respective costs in the appeal.
CHINWE E. IYIZOBA, J.C.A. I read before now the judgment just delivered by my learned brother, K.M.O. Kekere-Ekun JCA. I agree with the reasoning contained therein and the conclusions arrived thereat. The bone of contention here is whether exhibit OA1 dated 14/3/05 qualified as pre action notice on the appellant corporation as required by Section 26(1) and (2) of the Ondo State Development and Property Law 2000. The law provides that no suit shall be commenced against the corporation until at least one month after a written notice to commence same has been served upon the corporation by the intending plaintiff. The notice shall state the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims. Section 25(1) of the law further provides that service on the corporation of any notice, order or other document shall be effected by delivering same to the General Manager of the Corporation or by sending it by registered post addressed to the General Manager of the Corporation at the principal office of the corporation. Exhibit OA1 unfortunately did not comply with the above provisions. It was addressed to the Executive Chairman and not the General Manager. To confound the situation, exhibit OA1 was given to a Clerical Assistant in the office of the Executive Chairman who deposed to an affidavit casting doubt as to whether the notice did get to the Chairman. This no doubt is self-serving. But the plaintiff/respondent by failing to comply with the law set out above played into the hands of the appellant. If the notice had been sent even by registered post to the General Manager who was the 4th defendant in the lower court, the plaintiff/respondent would have been in full compliance even if the General Manager denied receiving the notice. Finally, and quite importantly, the cause of action indicated in exhibit OA1 dated 14/3/05 is different from the cause of action as endorsed in the writ of summons dated 27/5/05. All the acts complained about in the statement of claim occurred after 15/4/05, the date of the letter revoking their certificate of title to the property in dispute. I agree with my learned brother that exhibit OA1 does not comply with Section 26(1) and (2) of the Ondo State Development and property Law 2000 and does not therefore qualify as pre-action notice. Failure to serve pre-action notice where it is required by law robs a court of the jurisdiction to entertain the case. See Madukolu v. Nkemdilim (1962) All NLR 589.
The first step counsel ought to take when briefed to handle a case, is to look at the law setting up the body he intends to sue and to ensure that pre-conditions to the institution of a suit laid down in the law are complied with to the letter. With all due respect I have said it in an earlier judgment and I am constrained to it again. Some Legal practitioners don’t always put the interest of their clients first. The point has been hammered on at every opportunity that there is too much delay in the hearing of cases in courts leading to the now frequent call for alternative dispute resolution. The blame for the undue delay does not rest with the courts most of the time. This case was instituted on the 27th of May 2005. It has now dragged on for over six years on a mere procedural matter. Counsel when confronted with the issue of whether or not pre action notice was served, could have looked critically at the law setting up the corporation. Instead of going all the hog to argue his way out, he could have simply withdrawn the case and served the appellant the proper necessary pre-action notice. This would have led to just 30 days delay as against the years now spent fighting this issue in the High court and the court of appeal. It might even get to the Supreme Court. If it does and even assuming the respondent is victorious at the end of the day, the respondent would in the process have lost valuable years. He would still have to go back to the High Court to start the substantive case. All it would have taken to serve fresh pre-hearing notice appropriately is 30 days! All of us involved in the administration of justice must do all in our power to abrogate unnecessary delays such as is inherent in this appeal. For these reasons and the much fuller reasons in the leading judgment. I also hold that the appeal has merit. I also allow the appeal. I abide by the consequential orders in the leading judgment.
MOORE A.A. ADUMEIN, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother – KEKERE-EKUN (JCA). His Lordship comprehensively dealt with and resolve the live issue for determination in this appeal. I agree entirely with the reasoning and conclusion in the leading judgment.
The law is settled that a pre-action notice is a pre-action correspondence statutorily required to be given a prospective plaintiff or claimant to a prospective defendant or respondent. Exhibit AO1 is obviously a pre-action correspondence from the respondent to the appellant. In law, however, it is not every pre-action correspondence that qualifies as a pre-action notice see ODOEMELAM V. AMADIUME (2008) 2 NWLR (Pt. 1070) 179 at 189, paras. D – E. In the instant case exhibit AO1, although a pre-action correspondence, did not qualify as a pre-action notice as required by sections 25 and 26 of Ondo State Development And Property Law, 2000 and it is equivalent to not giving the appellant a pre-action notice at all.
A suit commenced without giving pre-action notice, where such notice is provided for in a statute, is incompetent and it is liable to be stuck out. See N.N. P.C. V. FAWEHINMI (1998) 7 NWLR (Pt. 559) 598.
For these and more comprehensive reasons given in the lead judgment of my learned brother – KEKERE-EKUN, J.C.A., I also allow the appeal.
I abide by the consequential orders in the lead judgment.
Appearances
Nasiru OseniFor Appellant
AND
K. O. AfolabiFor Respondent
