PUBLIC & PRIVATE DEVELOPMENT CENTRE LTD/GTE (PPDC) v. NNPC & ANOR
(2020)LCN/15203(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, March 23, 2020
CA/A/404/2014
Before Our Lordships:
Abdu Aboki Justice of the Court of Appeal
Stephen Jonah Adah Justice of the Court of Appeal
Peter Olabisi Ige Justice of the Court of Appeal
Between
PUBLIC & PRIVATE DEVELOPMENT CENTRE LTD/GTE (PPDC) APPELLANT(S)
And
1. NIGERIAN NATIONAL PETROLEUM CORPORATION (NNPC) 2. THE GROUP MANAGING DIRECTOR, (NNPC) RESPONDENT(S)
RATIO
COMPLIANCE WITH THE REQUIREMENT OF PRE-ACTION NOTICE BEFORE AN ACTION CAN BE COMMENCED
It is trite that where a statute requires that there should be a preaction notice before an action can be commenced in Court, there must be compliance with that statutory provision for the Court to assume jurisdiction over the matter. Issue of pre-action notice where service is required is very fundamental as it touches on the competence of the suit. Failure to issue same amounts to a vital or serious omission that mars a suit and renders it a nullity. It is not a mere irregularity that could be waived or disregarded.
See UGWUANYI VS. N.I.C.O.N. PLC (2004) 15 NWLR (PT 897) 612; OKAFOR VS UKADIKE (2009) 1 NWLR (PT.1122) 259.
An action commenced without pre-action notice where one is statutorily required is a nullity. See NIGERCARE DEV. CO. LTD VS. ADAMAWA STATE WATER BOARD (2008) 9 NWLR (PT.1093) 498.
The rationale behind the jurisprudence of a 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 adjudication by the Court. The purpose of giving notice to a party is that it is not also taken by surprise but so that it should have adequate time to prepare to deal with the claim in its defence. See NTIERO VS NIGERIAN PORTS AUTHORITY (2008) 10 NWLR (PT.1094) 129. PER ABOKI, J.C.A.
WHETHER OR NOT AN OBJECTION FOUNDED ON A NON-COMPLIANCE WITH THE REQUIREMENT OF PRE-ACTION NOTICE ABROGATE THE RIGHT OF A PLAINTIFF TO APPROACH THE COURT OR DEFEAT HIS CAUSE OF ACTION
An objection to jurisdiction founded on a non-compliance with the requirement of a pre-action notice does not abrogate the right of a plaintiff to approach the Court or defeat his cause of action. Once the subject matter is within the jurisdiction of the Court, failure of the plaintiff to serve the preaction notice will only give the defendant a right to insist on such notices. In other words, it merely puts the jurisdiction of a Court on hold pending compliance with the pre-action notice. See ABUJA MUNICIPAL AREA COUNCIL v. C.N. OKOLI TRANSPORT CO. LTD (2009) LPELR 3579 (CA); NNONYE V. ANYIECHIE (2005) 5 NWLR (PT.910) 623; ETI-OSA LOCAL GOVERNMENT VS JEGEDE (2007) 10 NWLR 537.
Jurisdiction is an important issue which gives fetus to a suit. It is the live-wire of a suit and if a suit is heard by a Court in the absence of jurisdiction, it amounts to embarking on a futile exercise no matter how well it is decided.
In the instant appeal, having held that the suit before the Trial Court was incompetent because it was not initiated by due process of law, in that the action was commenced without a pre-action notice as statutorily required by Section 12(2) of the NNPC Act, a determination of the second arm of the issue has therefore become academic. The Court only deals with live issues and will not therefore deal with academic issues which will serve no useful purpose. PER ABOKI, J.C.A.
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): By virtue of a Motion on Notice for an Order of Mandamus filed on the 31st of May 2013, the Appellant herein, as Applicant at the Federal High Court, sitting at Abuja, sought the following reliefs against the Respondents, who were the Respondents at the Trial Court:
1. A DECLARATION that the failure of the 1st and 2nd Respondents to furnish the Applicant with the Procurement documents sought vide the Applicant’s letter of 21st March 2013; amounts to a wrongful denial of information under the Freedom of Information Act 2011,
2. ORDER of the Honourable Court COMPELLING the Respondents jointly and severally within seven days of the judgment herein, to furnish Applicant with information and copies of documents sought vide Applicant’s letter of 21st March 2013 which information and documents are set out in the schedule hereto.
The application was supported by a statement which contained the schedule to the application, the name and description of the Applicant, the reliefs sought, and the grounds of upon which the reliefs are sought. The application was also accompanied with an affidavit of twelve (12) paragraphs, deposed to by one 110 Nkemdilim, the Applicant’s Procurement Officer, to which was annexed three exhibits, as well as a written address filed on the 31st of May 2013. (See pages 32 – 54 of the Record)
The Respondents reacted to the application with a counter affidavit filed on the 14th of June 2013, deposed to by one Victor Omoluabi, a Manager in the Legal Department of the Respondents, as well as a written address. (See pages 78 — 85 of the Record). The Respondents in addition, brought a Preliminary Objection challenging the competence of the suit, on the ground that the Appellant did not serve a pre — action notice on the 1st Respondent pursuant to Section 12(2) of the Nigerian National Petroleum Corporation Act, CAP N123, LFN 2004, before commencing the suit. (See pages 66 – 71 of the Record).
When the parties had fully exchanged all the requisite processes, the Trial Court consolidated the hearing of both the substantive suit and the preliminary objection, and in its judgment delivered on the 23rd of December, 2013, the Trial Court held that the service of a pre – action notice is a condition precedent for the institution of the suit against the 1st Respondent; and that the failure of the Appellant to serve the pre – action notice on the 1st Respondent before the commencement of the suit rendered the suit incompetent and thereby robbed the Trial Court of the jurisdiction to entertain the matter. The suit was therefore struck out for being incompetent.
It is against this decision that the Appellant herein appealed to this Court, vide a Notice of Appeal filed on the 19th of February 2014, upon two grounds. (See pages 112 – 116 of the Record).
In line with the extant Rules of this Court, parties filed and exchanged their briefs of argument which were adopted and relied on when the appeal came up for hearing on the 21 st of January, 2020.
The Appellant’s brief was dated the 21st of September, 2015 but filed on the 29th of September 2015. In the brief, settled by GEN CHIGBU ESQ., the following two issues were distilled for this Court’s determination. They are:
1. Whether service of a pre – action notice pursuant to Section 12(2) of the NNPC Act is a condition precedent for instituting an action against the 1st Respondent for the enforcement of the Appellant’s right to information under the Freedom of Information Act, 2011?
2. Whether the Learned Trial Judge was right in giving effect to Section 12(2) of the NNPC Act, (an older enactment) which is inconsistent with and negates the provisions of Sections 1, 2, 4, 7 and 20 of the Freedom of Information Act, 2011 (a later enactment).
The Respondents’ brief of argument was dated the 18th of November 2018, filed on the 19th of December 2018, but deemed properly filed and served on the 16th of January 2019. ALA. MALIK, (SAN), who settled the brief, also distilled two issues for determination, namely:
1. Whether the trial Court was right to hold that the Appellant’s non service of a pre-action notice prior to the commencement of the suit rendered the suit incompetent and robbed the trial Court of jurisdiction to entertain same?
2, Whether the trial Court was right to have relied on the provisions of Section 12(2) of the NNPC Act as against Sections 1,2,4,7 and 10 of the Freedom of Information Act.
The issues distilled by Counsel on both sides are the same in purport, though couched differently. The two issues formulated by the Appellant are hereby adopted by me, in the resolution of this appeal. They are considered together.
ISSUES ONE AND TWO
It is submitted for the Appellant that considering Sections 1, 2, 4, 7 and 20 of the Freedom of Information Act 2011, and the case of IBRAHIM v SHERIFF (2004) 14 NWLR (PT 892) 43, the 1st Respondent is not entitled to the service of a pre – action notice before an action can be commenced against it, under the Freedom of Information Act.
According to learned Counsel for the Appellant, the Freedom of Information Act, being a later legislation supersedes the provisions of the NNPC Act and that the application of Section 12(2) of the NNPC Act on suits brought under the Fol Act will operate to deny an applicant the right of access to Court.
He maintained that it is a well established principle of interpretation that the construction most agreeable to justice and reason must be adopted. Relying on the case of IBRAHIM v SHERIFF supra, he insisted that the Legislature did not intend one month pre — action notice pursuant to Section 12(2) of the NNPC Act to be given to the 1st Respondent before an action for access for information is brought against it under the Fol Act, as to hold otherwise would give rise to an unreasonable, inconvenient and unjust result.
This Court is urged to apply the principle in the case of IBRAHIM v. SHERIFF supra in interpreting Section 12(2) of the NNPC Act and Sections 1, 4, 7(4) and 20 of the Fol Acct 2011, and hold that the Appellant is not required to comply with the provisions of Section 12(2) of the NNPC Act before bringing the suit.
It is the view of learned counsel for the Appellant that the unrestricted access to information granted by the provisions of Section 1(1) of the FOl Act, extends to the right to access information through the Courts without restrictions, hence the Appellant’s right to access information through the Courts pursuant to the Freedom of Information Act, 2011, cannot be subjected to, restricted or clogged by Section 12(2) of the NNPC Act.
On the cases of AMADI v. NNPC (2000) 10 NWLR (PT 674) and BAKARE v NRC (2007) NWLR (PT 1064) 606, relied on by the Trial Court in striking out the suit of the Appellant, it is submitted for the Appellant that the cases are not on all fours with the instant case. Learned Counsel for the Appellant opined that for the doctrine of stare decisis to apply, the facts, circumstances and issues decided in the decision sought to be relied on must be the same or similar to those of the case to which the doctrine is sought to be applied. He relied on the cases of ACTION CONGRESS v. JANG (2009) 4 NWLR (PT 1132) 475, as well as the case of OKOYE v. C.P.M.B LTD (2008) 15 NWLR (PT 1110) 335; and stated that none of the two cases relied upon by the learned trial Judge involved the interpretation and application of a later statutory provisions such as Section 1(1) and 20 of the FOl Act, which expressly ousts the application of any earlier inconsistent provision, against the service of one month pre-action notice which will, if observed, result in an absurd effect.
In conclusion, this Court is urged to hold that the service of a one month pre-action notice is not a condition precedent for the institution of the suit against the 1st Respondent, and allow the appeal. This Court is also urged to set aside the decision of the Trial Court and hear and determine the Appellant’s substantive Motion on Notice filed on the 31st of May, 2013 or in the alternative, remit the suit back to the Trial Court for rehearing on the merits.
In response, it is submitted for the 1st and 2nd Respondents that the mandatory requirement of the service of a pre-action notice not only goes to the competence of the suit but also touches on the jurisdiction of the Court to entertain the suit.
Learned senior Counsel for the Respondents stated that where there is non compliance with the provisions of a mandatory statute, the suit becomes a nullity in its entirety no matter how well worded and drafted it is, as its absence robs the Court of any jurisdiction to entertain same. He commended this Court to these cases:
NIGERCARE DEV. CO. LTD v. AS.W.B (2008) LPELR 1997 (SC); EIMSKIP LTD v. EXQUISITE INDUSTRIES NIG LTD (2003) 4 NWLR (PT 809) 88;
GAMBARI v. GAMBARI (1990) 5 NWLR (PT 152) 210.
It is the view of learned senior Counsel for the Respondents that Section 20 of the FOI Act is one of general application which merely creates a right of action to an application and does not possess the poise of the grundnorm having the capacity to nullify any portion of an Act inconsistent with its provision. He invited this Court’s attention to the wordings of Section 20 of the FOI Act and submitted that the 30 days period within which an applicant can seek redress in Court is flexible to the extent that the provision allows the Court to permit a suit even after the expiration of the said 30 days period.
Learned Silk for the Respondents opined that the cases relied upon by the Appellant is distinguishable from the instant case. He submitted that the case of IBRAHIM v. SHERIFF supra, is not at all in concordance with this suit because in the cited case, the issue for determination was the interpretation of Paragraph 4(3)(b) vis-ä-vis Paragraph 4(6) of the Schedule of the Electoral Act 2002 on the requirement of a Petitioner to sign the Petition. He maintained that the issue for contemplation in the case of IBRAHIM v. SHERIFF was for the interpretation of provisions of the same statute while in the instant case, the provisions in question are from two completely different statutes, and as such serves as a distinguishing factor.
According to him, the law is settled that where there is a contradiction between a specific legislation, in this case Section 12(2) of the NNPC Act and a general legislation, such as Section 20 of the FOI Act, the specific legislation shall prevail. He placed reliance on the case of GOV. OF KADUNA STATE & ORS v. KAGOMA (1982) N.S.C.C.
In conclusion, he submitted that in the light of the arguments canvassed above, the failure of the Appellant to serve the 1st Respondent the statutorily requisite one month pre-action notice, prior to the commencement of this suit at the Trial Court is a fundamental failure which robs the Trial Court of the jurisdiction to hear the suit.
This Court is urged to so hold, dismiss the appeal and uphold the decision of the Trial Court.
The main contention in this appeal is the failure of the Appellant to serve a pre action notice on the 1st Respondent, as required by Section 12(2) of the Nigerian National Petroleum Corporation Act, which provides as follows:-
Section 12(2):
“No suit shall be commenced against the Corporation before the expiration of a period of one month after written notice of Intention to commence the suit shall have been served upon the Corporation by the intending plaintiff or his agent, and the notice shall clearly and explicitly state the cause of action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief which he claims. ”
It is contended by the Respondents that the Appellant did not comply with the provision of the law, thus a condition precedent for the Trial Court to assume jurisdiction was absent.
It is trite that where a statute requires that there should be a preaction notice before an action can be commenced in Court, there must be compliance with that statutory provision for the Court to assume jurisdiction over the matter. Issue of pre-action notice where service is required is very fundamental as it touches on the competence of the suit. Failure to issue same amounts to a vital or serious omission that mars a suit and renders it a nullity. It is not a mere irregularity that could be waived or disregarded.
See UGWUANYI VS. N.I.C.O.N. PLC (2004) 15 NWLR (PT 897) 612; OKAFOR VS UKADIKE (2009) 1 NWLR (PT.1122) 259.
An action commenced without pre-action notice where one is statutorily required is a nullity. See NIGERCARE DEV. CO. LTD VS. ADAMAWA STATE WATER BOARD (2008) 9 NWLR (PT.1093) 498.
The rationale behind the jurisprudence of a 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 adjudication by the Court. The purpose of giving notice to a party is that it is not also taken by surprise but so that it should have adequate time to prepare to deal with the claim in its defence. See NTIERO VS NIGERIAN PORTS AUTHORITY (2008) 10 NWLR (PT.1094) 129.
In the instant case therefore, failure to give the pre-action notice renders such action incompetent, ineffective and liable to be struck out. Any defect in competence of a Court to adjudicate on a matter is fatal, for the proceedings are a nullity however well conducted and decided. See MADUKOLU VS NKEMDILIM {supra}; NIGERCARE DEV. CO. LTD VS ADAMAWA STATE WATER BOARD (supra).
In the circumstances therefore, the suit is incompetent and was rightly struck out by the Trial Court. See
OBETA VS OKPE (1996) 9 NWLR (PT.473) 401;
A.G. FEDERATION VS GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (PT.618) 187;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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NNPC VS TIJANI (2006) 17 NWLR (PT.1007) 29;
Learned counsel for the Appellant has strenuously argued that by the combined effect of Sections 1(1), 4, 7(4) and 20 of the FOI Act, the right to access to information pursuant to the FOI Act is guaranteed and is not subject to the provisions of any other Act or Law including Section 12(2) of the NNPC Act. The Sections provide thus:
Section 1(1) of the FOI Act:
“Notwithstanding anything contained in any other Act, law or regulation, the right of any person to access or request information, whether or not contained in a any written form, which is in the custody or possession of any public official, agency or institution howsoever described, is established.”
Section 4
“Where information is applied for under this Act, the public institution to which the application is made shall, subject to Sections 6, 7 and 8 of this Act, within 7 days after the application is received,
(a) make the information available to the applicant;
(b) where the public institution considers that the application should be denied, the institution shall give written notice to the applicant that access to all or part of the information will not be granted, stating reasons for the denial, and the section of this Act under which the denial is made. ”
Section 7(4)
“Where the government or public institution fals to give access to information or record applied for under this Act or part thereof within the time limit set out in this Act, the institution shall, for the purposes of this Act, be deemed to have refused to give access. ‘
Section 20
“Any applicant who has been denied access to information, or a pan thereof, may apply to the Court for a review of the matter within 30days after the public institution denies or is deemed to have denied the application, or within such further time as the Court may either before or after the expiration of the 30 days, fix or allow.”
I do not agree with the submissions of learned counsel for the Appellant that the combined effect of these Sections of the FOI Act is guaranteed and are not subject to the provisions of any other Act, Law or Legislation. I am of the view that the purport of the above sections, particularly Section 20 of the FOI, gives a flexible timing for the institution of actions against public institutions, after the expiration of the 30 days period.
An objection to jurisdiction founded on a non-compliance with the requirement of a pre-action notice does not abrogate the right of a plaintiff to approach the Court or defeat his cause of action. Once the subject matter is within the jurisdiction of the Court, failure of the plaintiff to serve the preaction notice will only give the defendant a right to insist on such notices. In other words, it merely puts the jurisdiction of a Court on hold pending compliance with the pre-action notice. See ABUJA MUNICIPAL AREA COUNCIL v. C.N. OKOLI TRANSPORT CO. LTD (2009) LPELR 3579 (CA); NNONYE V. ANYIECHIE (2005) 5 NWLR (PT.910) 623; ETI-OSA LOCAL GOVERNMENT VS JEGEDE (2007) 10 NWLR 537.
Jurisdiction is an important issue which gives fetus to a suit. It is the live-wire of a suit and if a suit is heard by a Court in the absence of jurisdiction, it amounts to embarking on a futile exercise no matter how well it is decided.
In the instant appeal, having held that the suit before the Trial Court was incompetent because it was not initiated by due process of law, in that the action was commenced without a pre-action notice as statutorily required by Section 12(2) of the NNPC Act, a determination of the second arm of the issue has therefore become academic. The Court only deals with live issues and will not therefore deal with academic issues which will serve no useful purpose.
The two issues raised in this appeal are hereby resolved against the Appellant.
The conclusion therefore is that the appeal is totally devoid of merit and is hereby dismissed. The judgment of the Trial Court delivered on the 23rd of December 2013 striking out the case of the Appellant, is hereby affirmed.
There shall be no order as to costs.
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother Abdu Aboki, JCA.
I agree with the reasoning expressed and the conclusion that the appeal lacks merit. I too do dismiss the appeal and I affirm the decision of the Lower Court.
PETER OLABISI IGE J.C.A.: I agree.
Appearances:
Godwin Chigbu with him, Chidiebere Onyeme and Zahid Umoru For Appellant(s)
A.A Malik SAN, with him, C. Onumonu and E. Akigwe For Respondent(s)
