Godwin Ucwuanyi Vs Nicoim Insurance Plc (2013)

LAWGLOBAL HUB Lead Judgment Report

C.M. CHUKWUMA-ENEH, JSC

This appeal is against the decision of the Court of Appeal, Enugu Division dismissing the plaintiff/appellants appeal for failing to comply with a condition precedent of serving the defendant/respondent in this matter with a pre-action notice as provided by Section 26(2) of the National insurance Corporation of Nigeria Act now Cap.NO.54 Laws of the Federation of Nigeria 2004 before instituting the instant action. In the beginning the plaintiff/appellant by a writ of summons filed in this matter claims

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against the defendant/respondent as follows: (a) ‘The sum of N3,590, 302 being damages, benefits and entitlements for wrongful and unlawful termination of the plaintiffs appointment without regard to the provisions of the plaintiffs appointment. (b) An injunction restraining the defendant, its agents, servants, privies or whomsoever acts on the instruction etc from ejecting the plaintiff from the accommodation together with its appurtenances of No.4 NICON Crescent independence Layout Enugu, until the determination of this suit. (c) A declaration that the rate of depreciation of the Nigerian Currency be taken into account in determining the appropriate worth of the amount due to the plaintiff on the judgment day of the case.’ The defendant/respondent after entering an unconditional appearance in this matter has challenged the competence of the instant suit by an application seeking to strike it out for want of jurisdiction, the plaintiff/appellant having failed to serve pre-action notice on the defendant/respondent before commencing the instant action. The trial court in a considered Ruling upheld the preliminary objection and struck out the plaintiff/appellants action. He has unsuccessfully appealed to the court below hence the instant appeal to this court. Dissatisfied with the decision, the appellant has filed on 28/9/2004 a Notice of Appeal containing 5 (five) grounds. Both parties have in accordance with the Rules of this court filed and exchanged their respective briefs of argument in the appeal. The appellant has in his brief of argument raised 3(three) issues for determination as follows: (1) ‘Whether it is the Companies and Allied Matters Decree 1990, the Memorandum and Articles of Association of NICON insurance Plc, the appointment paper and the Handbook on the conditions of service of NICON insurance Plc or the NICON Act 1969 and 1990 that regulates the contract relationship between the appellant and the respondent, now NICON insurance Plc, Registered under the companies and (2)

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(3) (4) Allied Matters Decree 1990. (5) Whether or not pre-action notice is applicable to the specific contract of service between the appellant and the respondent. (3) Whether or not the respondent, after receiving service of the plaintiff/appellants writ of Summons on 30/5/96, after filing an- unconditional Memorandum of Appearance dated 5/6/96, after filing first Motion for Preliminary Objection dated 20/6/96, withdrawn same on 3/12/97, after taking three fresh steps before filing the second motion for preliminary objection dated 15/7/99, that was, after more than three years of the receipt of the writ of Summons, had waived its right of Pre-action Notice.’ The respondent has also raised 2 (two) issues for determination as follows: (1) ‘Whether the Court of Appeal is wrong in holding that the NICON Act governed the respondent and that failure by the appellant to give the requite pre-action notice prevented the trial court from exercising jurisdiction in the instant case. (2) Whether having regard to facts of this case, the respondent can be said to have waived his right to pre-action notice’ A preface of additional facts to the above facts will include the following accepted facts; that upon service of the writ of summons on the defendant (respondent), it has entered an unconditional appearance and has followed it up with an application challenging the competency of the suit for not serving of pre-action notice as prescribed by Section 26(2) of NICON Act as alleged on the defendant/respondent. The application has been withdrawn and consequently has to be struck out. The plaintiff later on has filed the Statement of Claim following it up with an application for judgment in default of the respondents pleadings. This process has galvanized the respondent into resurrecting overtly its protest against the action. The defendant has in the result filed another application again challenging the competency of the instant suit for failing to comply with Section 26(2) (supra). The plaintiff in response to this

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latest application has filed counter-affidavit alleging the competency of the said suit and that no provision for service of pre-action notice before filing the instant suit has been provided in the plaintiffs conditions of service with the respondent excepting as required in regard to actions in libel and slander. I have to fill in these facts in order to assist in understanding the background of this appeal. The appellants case (who has been employed in January 1980) is that by the provisions of Sections 33, 35, 39(1) and 41(1) of Companies and Allied Matters Act (CAMA) that the employment relationship between the parties in this matter is governed by the Articles and Memorandum of Association, as the respondent is a Registered Company under Companies and Allied Matters Act (CAMA) a position mutually exclusive to its status under NICON Act. And that Sections 4(6) and 33 of the NICON Act exclude the provisions of CAMA from applying to NICON and that on having been incorporated under CAMA as NICON insurance Plc the respondent ought to have shed its status under NICON Act, so that its activities more particularly the employment relationships as between it and its staffers are regulated by CAMA that is to say, are governed by the Memorandum and Articles of Association as registered under CAMA. And that the letter of appointment, conditions of service as per the Companys Handbook, all constitute part of their contract of employment. He therefore submits that once the parties have entered into a contractual relationship as per the above mentioned documentary evidence as regards their employment relationship in this matter that it is not the duty of the court to rewrite the same for them or fill in any lacuna therein in any manner whatever. He relies on the following cases for these submissions: See: NPA Plc V. Lotus Plastic Ltd. (2006) AFWLR (Pt. 297) 1023 at 1054, Larmie v. Data Processing Maintenance & Service Ltd. (2006) AFWLR (Pt.296) 775 at 792, Olaniyan v. Unilag (2004) 15 WRN 44 at 157, omega Bank (Nig) Plc v. OBC Ltd. (2005) AFWLR (Pt. 249) 1964 at 1988, Nigeria Marketing Board v. Adewunmi (1972) 11 SC.111 at 117, Fakorede v. Attorney General western state (1972) ANLR 178, Katto V. C.B.N. (1999) 6 NWLR (Pt.607) 390 at 405 and Total (Nig) Plc v. Akinpelu (2003) AFWLR (Pt.170) 1428 at 1445. The appellant has particularly referred to and relied on paragraph 5 of the appointment Handbook containing thus, PAGE| 5 ‘you will be subject in all respects to the condition of service of the corporation’; To strongly argue that in the context in which the clause is used that the Handbook being the compendium of the binding conditions of services of NICON has prescribed pre-action notice only as pertaining to, ‘legal proceedings for libel and slander’ and no more. And that the mention of specific things as per the said Handbook among other possible alternatives means the exclusion of other things not specifically therein mentioned. See: Udo v. orthopaedic Hospital (1993) 7 SCNJ (P.42) 445 and Awuse V. Odili (2004) AFWLR (Pt.212) 1664. It is conceded that the employment relationship of the parties in this matter is not one governed by statutory flavour so that the said appellants employment is governed wholly by the Handbook and the letter of appointment and not by any provisions of NICON Act. In other words, that the said provision of Section 26(2) cannot be seen as forming part of his conditions of employment and therefore is not enforceable against him. On issue 2 -on whether pre-action notice is applicable to contracts of service or specific contracts as here. The appellant has posited that pre-action notice does not apply to specific contracts and so that the instant action being in relation to his contract of services does not require service of pre-action notice as a condition precedent to instituting the instant action and refers to and relies on Nigerian Ports Authority v. Construzioni Generali Farsura Cogefar Spa & Anor. (1974), ECSLR 658; (1974) 12 SC; and moreso on the cases of salako v. LEDB & Anor. 20 NLR 169, CBN V. Adedeji (2005) AFWLR (Pt.244) 912 at 930, FCN v. Zebra Energy Ltd. (2002) 3 NWLR (Pt.754) 471 at 409. These cases he submits have similar provisions as in the case of Nigerian Ports Authority v. Construczioni Etc (supra) and has further opined that they have held non applicability of pre-action notice to cases of specific contracts as in this case for breach of contract of personal service. The court is urged to uphold the foregoing submissions as the law in this matter and to order the defendant to file its pleadings for the case to proceed to its conclusion. I think I should bring in the respondents response to the above two issues where as here the two issues have been compressed into its issue one as set forth above; its issue 2 deals with PAGE| 6 question of waiver simiplicita. The respondent has referred to the averments/depositions as to the material facts in this matter to submit that the respondent, NICON insurance Plc is the same entity as National insurance corporation of Nigeria (NICON) and to contend that where these facts have not been specifically denied as deposed to in the respondents counter-affidavit, they are deemed as binding on the parties as uncontested facts and a court is obliged to act on them; and that evidence tendered in regard to unpleaded facts goes to no issue. See: Oduka v. Kasumu & Anor. (1968) NMLR 28 at 31, Kate Ent. Ltd v. Daewoo Nig. Ltd .(1985) 2 NWLR (Pt.5) 116. it is submitted on Ajomale v. Yaduat NO.2 (1991) 5 NWLR (Pt.191) 257 at 276 – that the same goes for the failure to deny depositions in the affidavits as here which leaves the court no other option than to uphold the facts not controverted as admitted. And so in this case that the respondent? deposition that it is governed by NICON Act which Act is still extant until repealed not having been controverted is admitted – KWUSU v. Udom (1990) 1 NWLR (Pt.127) 421. Coming to the provision of Section 26(2) of the NICON Act (now Cap.54 Laws of the Federation (2004) it is contended that the instant action has not been exempted from the application of its provision; and so the words, ‘No suit’ as used in the said section relates to any suits including such cases as the instant one. And that this is clearly so as this provision is unambiguous and plain so that given its ordinary meaning it clearly encompasses every suits that it covers any actions causes etc for that matter. See Oviawe V. I.R.R. (1997) 3 NWLR (Pt.492) 126 at 139 E-F, and Amadi V. NNPC (2000) 10 NWLR (Pt.674) 76 at 112 F-C. The respondent has urged the court to resolve these issues in its favour even moreso on the appellants misconceptions in this matter. I have considered the submissions and counter submissions here as proffered by the parties to this appeal and it seems to me that the appellants case simply put is that the employment relationship between the parties i.e. NICON insurance Pic and the appellant is regulated in the main by the Memorandum and Articles of Association of the company in accordance with the companies and Allied Matters Act (CAMA) and the letter of his appointment, the Companys Handbook on conditions of services of its employees (being collective agreements binding on the parties) and not by any provisions outside these defined precincts; and that the said Handbook has impliedly excluded the application of Section 26(2) of the NICON Act by expressly mentioning the nature of cases requiring pre-action notices as follows:

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‘No step shall be taken by a staff without the consent of the corporation to institute legal proceedings for libel and slander in connection with matters arising out of his official duties’. Clearly the instant matter is neither libel nor slander and cannot by any stretch of the foregoing provision come within its contemplation. It is submitted that having specifically so provided that the instant case not having been covered by that provision does not come within the ambit of the cases requiring pre-action notices to be served on a defendant as the respondent here. Besides, that it is even moreso as contended by appellant where IMICON has been transformed into NICON insurance Plc and now a privatised and commercialised company registered under the Companies and Allied Matters Act and totally governed by CAMA in every respect, in other words, that it has shed off its status as NICON simplicita as stipulated in NICON Act to assume the status conferred on it under CAMA. It remains to be seen if these propositions are tenable on the peculiar facts. Let me observe pre-emptorily that these arguments appear to me as spurious in that the instant letter of appointment and the Handbook relied on here by the appellant are the conditions of service agreed with NICON and not with NICON insurance Plc. These are facts the appellant has overtly admitted. The appellant has nowhere alleged that these documents have lost their respective effectiveness and therefore not binding on the parties on NICON having been transformed into NICON insurance Plc. That is not the appellants case here nor has the appellant pleaded any other documentary evidence entered into, in these respects with NICON insurance Pic covering their employment relationship. Of course he knows that that will be the end of his case in this matter rather he has propped up his case on them that is the instant documents relating to his employment relationship with NICON. Even then what is more devastating to the appellants case is the fact that NICON as established by the National insurance corporation Act 1969 – now cap. NO.54 Laws of the Federation 2004 has one significant provision in the Act thus providing that NICON as per Section 7, ‘shall be deemed to be a Company registered under the insurance Act’.

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It is not intended to expatiate on the implication of the foregoing provision being totally irrelevant to the immediate question for resolution in this appeal. It is my view, however, that so long as the Act has not been repealed that, that status still remains extant. And so it must be observed that the appellants submission that one of the consequences of NICON having been registered under CAMA that is to say in this case is that NICON has been duly privatised as a commercial venture with private participation in its equity share capital to the tune of 51% and so that it has shed its status under NICON Act. This assertion cannot be taken as having nullified NICONS status as registered under NICON Act as the proposition seems to have ignored the fact, nonetheless unarguably so, that the National Insurance Corporation of Nigeria Act, the enabling Act, has not been repealed to the effect of Obliterating NICON Act completely from our compendium of Laws of the Federation, it is still very much extant and by its Section 7 NCON is deemed to be registered under the insurance Act. See sections 1(1) and 6 of the interpretation Act and see also Kay v. Godwin (1830) 6 Bing. 576 at p.582. However I cannot find any support for the appellants view that the two registrations cannot stand side by side. Meaning that short of a statutory provision to that effect there is no basis of implied ouster of its status under the instant registration vis-a-vis the insurance Act however inconvenient with its status as conceived by the appellant of its registration under CAMA on having been privatised. The sooner this anomaly is regularized by another Act the better. Therefore, it would be wrong to hold without more that NICON Insurance Plc has shed all its contractual status under the NICON Act as it concerns its activities in regard to the employment relationships with its staffers in this matter, particularly so when NICON Act is still extant. I think I should not even then delve too deeply into this question as the transformation into National insurance Plc has been duly accomplished by mere registration under CAMA and not by any Act of the National Assembly as such, It is also interesting to note that NICON insurance Pic still retains its registered name as ‘NICON’ under the NICON Act. From my reasoning above it is my view that this question therefore does not admit discussing whether or not the NICON Act has been repealed by implication as it cannot be on the peculiar PAGE| 9 facts of this matter. What has emerged so far from the foregoing resume is that at all material times to this action, the letter of appointment and the Handbook heavily relied upon by the appellant in this matter have been entered into with NICON, which have been predicated upon NICON Act and therefore subject to the provisions of S.26(2) (supra) long before wen transforming into NICON insurance Plc. There is therefore, no way one can avoid relying on NICON Act in examining the employment relationship between the instant parties. It is upon that basis that I make the proposition that the appellant having conceded as per his counter affidavit and pleadings as I shall show fully anon that his conditions of employment are predicated on his letter of employment and the Handbook cannot be seen to have opted out of being bound by Section 26(2) (supra). He cannot pick and choose in the circumstances. There is no doubt that his conditions of service are subject to the provision of Section 26(2) (supra) as supported by the empirical facts as accepted in this case. Again, I must make the point that in the appellants appointment letter is contained the crucial provision affecting their contractual relationship to the effect that, ‘you (the appellant) will be subject in all respects to the conditions of service of the corporation’ (the word in brackets and underlining supplied by me). This clause in my view literally construed has served to incorporate Section 26(2) into the letter of the appellant’s instant appointment without more. Just as Section 26(2) is an enforceable term of the conditions of service of the respondents officers and servants so it is a condition of service in the instant appellants conditions of service. I am prepared on the other hand on having scrutinized this clause to hold that the clause is unambiguous and given its literal interpretation is wide enough for the said provision of Section 26(2) (supra) to be incorporated into the appellants conditions of service. Since the appellants contract of employment contains such an enabling implied term there can be no question about incorporating the instant provisions of section 26(2) into the appellants conditions of employment thus imposing a duty on the appellant the breach of which is enforceable at the suit of the respondent here being grounded in their employment relationship. This duty as

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imposed on the appellant by section 26(2) simply put is to serve pre-action notice before commencing any actions against the respondent. The word ‘shall’ used in Section 26(2) in articulating this duty shows that it is a compulsory duty and imperative and this has been so expressed, if I may elaborate further, by the use of the words therein as follows: ‘No suit shall be commenced against the corporation…….. after written notice of intention to commence the suit shall have been served upon the corporation by the intending plaintiff….’ (underlining mine). Although a party as a defendant in an action by a plaintiff may all the same voluntarily decide to waive it, thus, it shows that the duty is not mandatory but directory. In other words the parties may even decide to contract out of it. Nonetheless the important consideration here is as to whether its breach can be founded in contract as is postulated by the respondent it is my opinion that this is so, based on the contemporary judicial opinion to treat and interpret such a breach in this way. The above cited cases bear out this proposition. Also see Gutsell v. ReIve (1936) 1 K.B. 272 distinguishing Ayloh v. Quest Ham Corporation (1927) 1 Ch.30 where a comparable question as in this matter has been decided. It is even moreso as regards other terms of collective agreements on similar pedestal as the instant Handbook or collective bargain(s) that have created legal relations so as to make them binding agreements between the contracting parties (that is between employers and employees) in their employment relationships. See: Hill v. Levy (1858) 157 E.R. 366; affirmed (1858) 3 H & N.702 – showing that the courts have readily implied such terms where the contract contains an implied term thus making such terms legally binding. This is so as the provision of Sections 26(1) and (2) relates to the staffers of the corporation and is a crucial condition of service for all employees of the respondent. In this regard let me emphasise their employment relationship by referring to Section 18 of the NICON Act as to who are its employees and as regards their functions and duties as they are defined as follows: ‘(1) Subject to Sections 19 and 20 of this Act, there shall be in the employ of the corporation such number of officers and servants as may appear expedient and necessary to the Board, for the proper and efficient conduct of the business and functions of the corporation. (2) Unless otherwise precluded by this Act, the corporation may exercise any of the powers and perform any of the functions and duties conferred and imposed on

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the corporation by this Act through or by any of its officers and servants duly authorized by the corporation in that behalf.’ It is unarguably based on the above plain provisions of Section 18(1) and (2) that the officers and servants of the corporation as the appellant here are employed and each of them is subject to the provisions of NICON Act thus reinforcing my proposition that the provision of Section 26(2) is enforceable against the staffers severally including the appellant. I have now come to construe the question that the appellants case is within the purview of Section 26(2) (supra) from the perspective of the averments/depositions in the affidavits filed by the parties and the plaintiffs pleadings as filed in this matter and as having established at all material times that the appellant has conceded in his affidavit and pleadings that NICON is also known as NICON insurance Plc, and having so pleaded it is trite that he is bound by his averments/depositions. Again, it is in the context of the foregoing that recourse has to be had of the processes filed in this matter by the parties to establish that the parties have not joined issue on the crucial averment/deposition that NICON insurance Plc is not governed by NICON Act and so, it pre-empts the appellants claim of being at all material times an employee of the defendant/respondent that is ‘a Public Liability Company’ as constituted under CAMA. The defendant/respondents affidavit in support of the motion to strike out the suit at paragraph 6 (six) reads as follows: ‘6. That the defendant on record is the same person as the National Insurance Corporation of Nigeria a creature of the statute under cap.263 Laws of the Federation of Nigeria and is thus governed by the provisions of that statute.’ In reply to the foregoing averment/deposition the plaintiff/appellant at paragraph 2 of his counter affidavit has responded thus: ‘(2) That I have read the affidavit dated 15th day of July 1999 in support of motion on Notice of the defendant/applicant in this case struck out and say that the facts deposed to in paragraphs 3, 4, 5 and 6 are not true in their entirety’.

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Throughout its counter-affidavit no attempt has been made by the appellant to expatiate on this paragraph and to specifically traverse the said paragraphs 3, 4, 5 and 6 severally. And so, I rely on the cases of Falobi v. Falobi (1976) SC.1 and Adjekpemevor v. onafeko (2000) FWLR (Pt ) at 1425, Uzo v. Nnalimi (2000) FWLR (Pt. ) at 1258 and Adekanya v. comptroller of Prison (2000) FWLR (Pt. ) at 1258 to say that these averments/depositions not having been specifically denied are deemed as accepted and unchallenged facts and the court can act on them and has rightly acted on them. Again, in paragraph 7 of the statement of claim the appellant has described and referred to the respondent as, ‘National Insurance Corporation of Nigeria (now known as NICON insurance Plc)’ and the implication in the context of this question is irrefutable. It is clearly an admission that ‘National Insurance Plc’ and NICON refer to the same legal person. And so the appellant cannot be seen to be speaking from both sides of his mouth (i.e. approbating and reprobating at the same time). From the above surmises, I agree with the respondent that the defendant/respondent on record is the same legal person as the National Insurance Corporation of Nigeria, a creation of statute under Cap.263 Laws of the Federation and is governed by its provisions. Flowing naturally from that reasoning is the fact that a pre-action notice is required by Section 26(2) of National insurance Corporation of Nigeria Act to be served on the respondent here and which Section as I have also found above forms part of the appellants conditions of appointment and that no pre-action notice has been duly served on the respondent in order to render this suit competently initiated. Having construed the cases of the parties on the two issues before this court as raised by appellant in this appeal, I have no doubt that the appellant has misconceived the fact that NICON Act governs the appellants employment relationship with the respondent not having been repealed neither expressly nor by necessary implication and that the service of the requisite pre-action notice as contemplated and prescribed under Section 26(2) (supra) forms part of the appellants conditions of service and as the said pre-action notice required by Section 26(2) (Supra) has not been so served on the respondent before instituting the instant action, the trial court is precluded from exercising its jurisdiction over the instant matter.

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That said; if I may repeat there can be no argument about it that no pre-action notice has been served on the respondent as required by Section 26(2) (supra); the appellant has not controverted that point and the consequences are trite and obvious. See: Madukolu v. Nkemdilim (1961) 2 NSCC.374 – a case that has settled the ingredients of jurisdiction to include inter alia that a case has to be initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defects in these respects render the entire proceedings incompetent; in this case for failing to serve pre-action notice on the respondent as provided by Section 26(2). The question of non-service of pre-action notice ought to be taken as conceded by the appellant on the peculiar facts of this matter as it is evident that the appellant has never claimed to have done so. And I so hold. It therefore follows that once it is established that the respondent is entitled to be so served with pre-action notice on the circumstances of this case then on the facts of the appellants action, the instant action in its entirety becomes incompetent (the pre-action notice not having been served on the respondent) and the court is therefore, not clothed with the jurisdiction to entertain the action. See: Madukolu v. Nkemdilim (supra). The overall implication of my reasoning above is that the provisions of Section 26(2) (supra) amply apply to this matter and it provides: ‘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’. The provision of the foregoing section is clear and unambiguous and has to be given its literal meaning. See Oviawe v. I.R.R. (supra). By the phrase ‘No Suit’ it is beyond argument that all suits, causes and matters whether or not it is founded upon a contract of services or specific contract are within its ambit and so each of such cases requires the service of pre-action notice

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to constitute a competent action severally against a defendant as the respondent here otherwise it is fatal to the action. It has been the contention of the appellant that the provision does not cover contracts of service or specific contracts and has relied on such cases as N.P.A. V. Construzioni Etc (supra) and the like cases as I have mentioned herein for so contending. I think the appellant has misconceived the meaning of the phrase ‘No Suit’ as used in the context of the Act vis-a-vis the processes initiating any actions by due process of law upon fulfilling the condition precedent. I have no misgivings that the above provision as I have surmised herein is wide enough to cover all manner of actions, causes or matters including the instant one. The phrase does not admit of any exception. See: Amadi v. NNPC (supra) where Karibi Whyte JSC interpreting a similar phrase has stated that the expression, ‘No Suit’ in Section 11(2) NNPC Act, 1977, has been construed in Section 46(1) as wide and all embracing’. Guided by this dictum once it has been established that the provision of Section 26(2) (supra) forms part of the conditions of employment of the appellant as I have found herein there can be no gainsaying that the instant action is within the ambit of the said provision to require serving of pre-action notice on a defendant as the respondent here. So that all the furore that has been raised by the appellant in contending contrariwise pales into insignificance being baseless. In that vein, all the cases cited by appellant in support of his contention as per issues 1 and 2 in this appeal, are inapplicable and at best distinguishable on the particular facts of this matter. And I agree with the respondent that most of cases cited by the appellant are hinged on the principle of freedom to enter into contracts without any interference by the courts, which have been misconceived by the appellant in making his case for conditions precedent as regards the exercise of the courts jurisdiction.

SC. 248/2005