Nigerian National Petroleum Corporation V. S. Adesina Tijani (2006)
LawGlobal-Hub Lead Judgment Report
FABIYI, J.C.A.
This is an appeal against the ruling handed out by Saula, J, while sitting at the High Court of Justice, Shagamu, Ogun State of Nigeria on 30th May, 2002. The trial judge struck out the appellant’s application dated 11th February, 2002.
The respondent herein, as plaintiff at the lower court both in his writ of summons and statement of claim dated 28th July, 1997 and 12th November, 1997, respectively, claim against the appellant as follows:-
“1. An order of declaration that the purported, termination of the plaintiff’s employment by the defendant on or about the 5th day of July 1996 is wrongful, illegal, null and void and of no effect whatsoever.
- The sum of two million Naira (N2,000,000) being special and general damages suffered by the plaintiff as a result of the purported termination.
Alternatively,
- The plaintiff seeks an order reinstating him to his regular post without loss of seniority and or benefit with effect from the 5th day of July, 1996 with all his entitlements (salary, allowances, bonus etc) to be paid up to him and necessary advancements and/or promotion effected accordingly.”
At the on-set, the suit was before Ogunlesi-Adio, J. (of blessed memory) sitting in the same court as the learned trial judge. As extant on page 52 of the transcript record of appeal, Ogunlesi-Adio, J. on 6th April, 2000, ordered that the suit should be transferred to the Federal High Court, Abeokuta for adjudication. Upon the demise of Ogunlesi-Adio, J. the suit was, based upon re-assignment, taken over by Saula, J.
By an application dated 11th February, 2002, the appellant prayed the court for:-
“1. An order changing the defendant’s counsel’s name from the law firm of Dantata & Co, to the law firm of F. O. Adeoshun & Co, Mojirade Chambers, Abeokuta, Ogun State.
- An order vacating the order of this Honourable court made on the 6th April, 2000 by the Honourable Justice Ogunlesi-Adio transferring this suit to the Federal High Court, Abeokuta for want of jurisidiction.
- An order striking out this suit for want of jurisdiction to entertain same, and
- For such further or other orders as this Honourable Court may deem fit to make in the circumstances.
Grounds for the Application
(i) No provision in the High Court Law of Ogun State, the constitution of the Federal Republic of Nigeria, 1999 or any other existing law invest this Honourable Court to transfer a suit instituted in this Honourable Court to the Federal High Court, as done by this Honourable Court on 6th April, 2000.
(ii) This suit was commenced against the defendant without giving the mandatory statutory notice of intention to sue the defendant contrary to S.12(2) of the Nigerian National Petroleum Corporation Act, Cap. 320, LFN, 1990 and as such renders the action incompetent.”
The learned trial judge was properly addressed by learned counsel on both sides of the divide. In the ruling delivered on 30th May, 2002 the trial judge felt that she had cause to strike out the application. Indeed, the application was struck out. The appellant was not happy with the stance posed by the trial judge and appealed to this court. The notice of appeal dated and filed on 1st July, 2002 was accompanied by one ground of appeal. I shall reproduce the lone issue distilled from same anon.
The reliefs sought from this court are as follows:-
“1. An order setting aside the decision of the lower court striking out the appellant’s application dated 11th February, 2002.
- An order striking out the respondent’s suit as being incompetent and for want of jurisdiction to entertain same.”
It is of moment to mention it here that on 19-9-05, this court granted the appellant’s application to hear the appeal based on it’s own brief only as the respondent failed to file his own brief of argument. The appeal fell due for hearing on 6th February, 2006. The appellant’s counsel, rightly in my view, adopted and relied upon the appellant’s brief of argument and urged that the appeal be allowed. The issue couched at page 2 of the said brief of argument is as follows:
“3.01 Whether the learned trial Judge was right to have refused the appellant’s application to set aside the court’s order of 6th April, 2000 and further strike out the suit on the basis that the order was not personally made by her and not exhibited in the application.”
At this auspicious moment, it is apt to set out the salient part of the ruling under fire. The last two paragraphs of the ruling at page 60 of the record of appeal reads as follows:-
“However, both counsel are aware that the order being sought to be set aside was made by this court but not as presently constituted. The order I am expected to set aside is not mine; same is not in the court’s file neither is it exhibited in the application which ought to have been done. Thus there is nothing before me on which I can act. Since I cannot deal with the third leg without first dealing with the 2nd leg, I have no alternative but to strike out this application.”
Arguing the lone issue couched from the only one ground of appeal as it should be, appellant’s counsel felt that there was no necessity to exhibit a court order which formed part of the record of the same court in a subsequent application before that court. He felt that the lower court’s observation that the order is not in the court’s file is far from being the truth as same can be found on page 52 of the record.
Learned counsel observed that record of court consists of endorsement, rulings and orders made by it. The record of the court remains intact notwithstanding the change of the presiding judge. The records of the former judge, opined learned counsel, including her orders are deemed to be that of the new judge to whom the matter has been re-assigned and they are to be treated as such. Learned counsel submitted that the trial Judge was wrong to have held that the order was not her own as it was not made by the court as presently constituted by her.
Learned counsel felt that there was no necessity of having to exhibit the order in subsequent applications filed before her affecting the order as same forms part of the records of the court which the trial Judge was bound to take judicial notice of; and act upon it accordingly. Learned counsel further submitted that the learned trial Judge was wrong to have insisted on having the order exhibited to the appellant’s application to enable her exercise her judicial powers. He urged that the lone issue be resolved in favour of the appellant.
With due diffidence to the learned trial Judge, it should be stated without any atom of equivocation that she employed the line of least resistance in shirking her responsibility. She feigned ignorance of the fact that the order made by Ogunlesi-Adio, J., (of blessed memory) was not in the file; and not before her. That assertion cannot be correct. The former judge on page 52 of the record of appeal had this to say in the last sentence therein –
“In the circumstances, I hereby order that this suit be transferred to the Federal High Court, Abeokuta for adjudication.”
With due respect, the learned trial judge put herself in the firing range of the appellant’s counsel. The trial Judge had the abiding duty to take judicial notice of contents of the court’s record including former orders of the same court in the same proceedings. Such is the solemn dictate of the provision of Section 74 (1) (m) of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990 which enjoins the court to take judicial notice of the course of proceedings. Refer to Alhaja Awawu Iyawo Ishola Olokun v. Aiyelabegan (2004) 2 NWLR (Pt.858) 504 at 520; A.-G. Anambra State v. Okeke (2002) 12 NWLR (Pt.782) 575 at p.603; Osafile v. Odi (No.1) (1990) 3 NWLR (pt.137) 130.
It is clear that the order which the learned trial Judge feigned ignorance of is actually in the court’s record. There is no necessity of having the same order exhibited in the subsequent application affecting the order. And it is immaterial that the order sought to be set aside for want of jurisdiction was not personally made by the trial Judge.
The appellant has invited this court to invoke the provisions of Section16 of the Court of Appeal Act, 1976 in granting the appellant’s application filed on 11th February 2002 to strike out the suit.
I need to state it here that vide the provisions of S.16 of the Court of Appeal Act, this court is imbued with the requisite powers to carry out the functions which the trial Judge declined to carry out without good and/or tenable reasons. The suit has been filed since 1997 and the arguments canvassed in the application before the learned trial Judge are contained on pages 54-58 of the record. Appellant’s counsel respectfully adopted those arguments to avoid any element of repetition. Armed by the provision of S.16 of the Court of Appeal Act, I shall endeavour to carry out the desired exercise. Refer to Katto v. Central Bank of Nigeria (1999) 6 NWLR (pt.607)390 at p.407.
Before then, let me express it here that the order of transfer of the suit by Ogunlesi-Adio, J. from his court to the Federal High Court was made without jurisdiction. Same had no backing by the rules of his court or the law which established his court or by any provision of the Constitution. Since the order was made without jurisdiction, it ought ordinarily to be set aside ex debito justititiae and without much ado. Since the point relates to jurisdiction, the learned trial Judge was eminently qualified to set it aside.
Refer to Aborisade v. Abolarin (2000) 10 NWLR (Pt.674) 41 at p.58; Timitimi v. Amabebe (1953) 14 WACA, 374; A.-G. Anambra State v. Okafor (1992) 2 NWLR (Pt.224) 396.
Without any shred of doubt, the order made by Ogunlesi-Adio, J. on 6th April, 2000 transferring the suit from his court to the Federal High Court Abeokuta for adjudication is hereby set aside for want of jurisdiction.
It was demonstrated before the learned trial Judge that the respondent commenced his suit against the appellant without giving the mandatory statutory notice of intention to sue contrary to the requirement of S.12 (2) of the N.N.P.C. Act Cap 320, LFN, 1990; and such rendered the action incompetent. It is not pleaded anywhere in the statement of claim that the required notice of intention to sue was given. The averment in paragraph 5 of the affidavit in support of the application that the needed notice was not given was not controverted by the plaintiff. I find that no such notice was given by the plaintiff/respondent before he commenced the action. Thus, the suit was not initiated by due process of law and upon fulfillment of the condition precedent to the exercise of jurisdiction. Any defect in competence of court is fatal for future proceedings are a nullity however well conducted and decided. Refer to Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR 581; Chime v. Chime (1995) 6 NWLR (Pt.404) 734 at p.749.
It is not a moot point that the appellant, by virtue of S.251 (p) of the 1999 Constitution is a Federal Government Agency. The proper forum for the plaintiff/respondent’s action is the Federal High Court, Abeokuta. To that extent, the suit which was filed before the trial court is incompetent. Thus, the whole proceedings before Ogunlesi-Adio, J. including the order of transfer made by him amount to a nullity. The order attempted to put something upon nothing. That has been pronounced to be an impossibility over four decades ago. Same sounds both scientific and philosophical. See McFoy v. U.A.C. (1962) A.C. 152.
In passing, I must note it here that there are arguments in some quarters that pre-action notice constitute an infringement of right of access to court as guaranteed in Sections 6 (6) (b) and 36 of the 1999 constitution. I do not subscribe to such a view. Regulation of the right of access to the court abound in rules of procedure. They are in order in my humble view. See Atolagbe v. Awuni (1997) 9 NWLR (Pt.522) 536 at p.133; Amadi v. N.N.P.C. (2000) 10 NWLR (Pt.674) 76. I see nothing unusual in provisions for pre-action notices. They do not impede constitutional right of access to courts. They are meant to give room for the Government or its official to consider settlement of the matter. It does not remove the adjudicatory power of the court. Refer to N.N.P.C. v. Fawehinmi (1998) 7 NWLR (Pt.559) 598; Umukoro v. N.P.A. (1997) 4 NWLR (Pt.502) 656 at p.667.
Generally, omission to serve required notice in a deserving case would be fatal to the suit. The court will be right to decline the exercise of jurisdiction as it will be futile to exercise same where there is none. Where the mandatory notice was not given as required by S.12 (2) of the NNPC Act, the proper order to make is one striking out the suit. The notice is not only statutory; it is mandatory. It cannot be ignored. Failure to serve same renders the action ineffective and liable to be struck out instantly. Refer to Obeta v. Okpe (1996) 9 NWLR (Pt.473) 401. A.-G. Fed. v. Guardian NewsPapers Ltd. (1999) 9 NWLR (Pt.618) 187 at p.202.
I accordingly grant prayers 2 and 3 of the application of the appellant dated 11th February, 2002. The order made by Ogunlesi-Adio, J. on 6th April, 2000 transferring the suit to the Federal High Court, Abeokuta for adjudication is hereby set aside for want of jurisdiction. The main suit is hereby struck out for lack of jurisdiction to entertain same by the lower court.
In effect, this appeal is meritorious and it is hereby allowed. The above orders are, no doubt, compelling and are accordingly made. The orders made by the learned trial judge are hereby set aside. The appellant is entitled to costs assessed at N5,0000 in its favour and against the respondent.
Other Citations: (2006)LCN/1934(CA)
