Engr. Abraham Adebisi Gbadamosi V. Nigerian Railway Corporation (2006)
LawGlobal-Hub Lead Judgment Report
CLARA BATA OGUNBIYI, J.C.A.
This is an appeal against the ruling of the Federal High Court silting in Lagos delivered on the 5th of April. 2004. The trial court struck out the suit of the appellant as plaintiff in the lower court on the ground that the pre-action notice served by the appellant on the respondent did not comply with the provisions of section 83(2) of the Nigerian Railway Corporation Act Cap 323 Laws of the Federation 1990.
The brief facts of this case are as follows:- The plaintiff/appellant was an employee of the defendant/respondent, who is a statutory corporation set up by the Nigerian Railway Corporation Act. Cap 323 Laws of the Federation 1990.
By a letter dated 4th January, 2002, the appellant was dismissed from the services of the respondent, his employers. The appellant was aggrieved by the dismissal and through his counsel, messrs O. Adekoya & Co. served on the Managing Director of the respondent a statutory three months Notice of intention to commence legal proceedings as contained in pages 147 – 148 of the record of appeal.
Upon the expiration of three months from the date of service of the notice to commence legal proceedings against the respondent, the appellant filed and served on the respondent a writ of summons and statement of claim dated 26th December, 2002 seeking the following reliefs”-
(i) A Declaration that the dismissal of the plaintiff as contained in the letter of dismissal dated 4th January 2002 was in contravention of the provisions of the standard conditions of service for senior staff of the defendant and in breach of his constitutional right to be heard and is therefore null and void and of no effect.
(ii) A declaration that the plaintiff is entitled to all the rights, benefits and emoluments attached to the post which he was dismissed, from the date of dismissal to the date of judgment.
(iii) An order re-instating the plaintiff in the service of the defendant.
(iv) The sum of N1,000,000.00 (one million Naira) being general damages suffered by the plaintiff and his family for unlawful dismissal, and ejection from the plaintiffs official quarters.
The respondent entered appearance to the suit by filing a notice of preliminary objection dated 14th November, 2003 challenging the jurisdiction of the lower court for non compliance of the appellant with the provisions of section 83(2) of the Nigerian Railway Corporation Act Cap 323, Laws of the Federation of Nigeria 1990. The plaintiff/appellant filed an eight paragraphs counter affidavit at pages 145 – 146 of the record to the objection and attached thereto as exhibit CO1, a notice of intention to commence legal proceedings, served on the respondent.
On the 20th January, 2004, the parties argued the preliminary objection and in its ruling delivered on 5th April, 2004, the lower court struck out the appellant’s suit for non-compliance with the provision of section 83(2) of the said Act. The appellant being dissatisfied with the said ruling has therefore lodged this appeal. At pages 162 – 164 of the record of appeal, the appellant on the 17th May, 2004 filed notice of appeal dated the same day and containing two grounds.
In accordance with the rules of court both parties filed their briefs of arguments. The appellant’s brief was dated 3rd and filed on the 4th March. 2005. That of the respondent was dated 19th August, 2005 but deemed filed and served pursuant to the order of this court sought and obtained on the 16th February, 2006. The appellant further filed a reply brief dated 12th April, 2006 but deemed filed and served on the 25th September, 2006.
On the said 25th September, 2006 both counsel Mr. O. A. Orewale and Chief Bisi Adegunle with Benjamin Siyaka represented the appellant and the respondent respectively. The learned counsel adopted their respective briefs. While the appellant urged that the appeal be allowed, the respondent sought for a dismissal of same.
Both counsel to the parties on their briefs of arguments each formulated two issues from the said grounds of appeal. Without having to proliferate issues, I see it appropriate to go alongside those formulated by the appellant’s counsel. This I say because the respondent’s issues are more or less a reproduction of those of the appellant which in other words are saying one and the same thing.
Reproduction would only be repetitive. The issues formulated by the appellant are therefore as follows:-
- Whether the learned trial judge was right in striking out the Appellant’s suit on the ground that the pre-action notice, that is, exhibit CO1 falls short of the requirements of section 84 of the Nigerian Railway Corporation Act.”
- Whether the respondent’s notice of preliminary objection upon which the learned trial judge struck out the Appellant’s suit was not incompetent by virtue of the provisions of order 25 Rule 2 of the Federal High Court (Civil Procedure) Rules 2000?
The learned appellant’s counsel in his submission on the 1st issue questioned the propriety of the action taken by the lower court in striking out the appellant’s suit on the ground that the pre-action notice, in other words, exhibit CO1, falls short of the requirements of section 84 of the Nigerian Railway Corporation Act. In stating the legal rationale behind a pre-action notice counsel cited the case of Amadi v. NNPC (2000) 6 SC (Pt.1) 66 at 96, and NNPC v. Fawehinmi (1998) 7 NWLR (Pt. 559) 558 at 627. Counsel submitted that the inferred requirement of the notice as provided in section 83(2) of the Act is that the notice shall state the following:-
- The name and abode of the intending plaintiff.
- The cause of action – whether the action is one of contract, tort or declaratory reliefs.
- The particulars of claim.
- The relief to be claimed must be glaringly stated.
In citing the authority in the case of NNPC v. Sele (2004) 5 NWLR (Pt 866) 378 at 433, learned counsel argued that with pre-action notice being a procedural requirement, a long line of legal authorities have proceeded to identify the applicable principles which are:-
- Provisions prescribing a pre-action notice in a statute are mandatory.
- However, non compliance with such mandatory provisions can be waived.
- Non-compliance with such provisions is an irregularity in the exercise of jurisdiction, which should not be confused, with a total lack of jurisdiction.
- Non-compliance with a condition precedent to the commencement of action must be pleaded.
- Failure to plead non-compliance with a condition precedent amounts to waiver.
The question posed by the appellant’s counsel is that, has exhibit CO1, that is, the appellant’s pre-action notice served on the Managing Director of the respondent, complied with the provisions of section 84 of the Act? The construction of section 84, learned counsel argued, should provide the starting point in answering the question posed. That the learned trial judge in the construction of the provisions of the said section 84, ought to have been guided by the word “may” used in the Act and construed same in the light of the settled principles of the law that the word “MAY” in a legislation implies permissiveness and is not mandatory. In other words it does not foist on a party a legal duly which must be performed. Counsel relied on the pronouncement made by Obadina JCA in the case of Plateau Investment and Property Development Company Ltd. v. Philip Ebhota & ors (2001) 4 NWLR (pt.704) 495 at 534; also on the decision by their Lordships of the apex court per Uwais C.J.N in the case of A-G of the Federation v A-G of Abia State & ors (2001) 11 NWLR (pt.725) 689 at 735. Further related cited authorities by the counsel are the cases of Ohanaka v. Achugwo (1998) 9 NWLR (pt.564) 37 at 66; Emokpae v University of Benin (2002) 17 NWLR (pt. 795) 139 at 153 and Amaefule v State (1988) 2 NWLR (pt.75) 156 at 166-167.
Counsel restated that had the learned trial judge considered the above judicial authorities cited, and particularly the case of A.G. Federarion v A-G Abia Stare, supra, he would have come to a justifiable conclusion that the phrase “may …be served on the Chairman or Secretary of the Corporation” used in section 84 of the Nigeria Railway Corporation Act is merely directory and not a word of limitation. In otherwords that the use of the word “may” permits the service of the pre-action notice exhibit CO1, on the Managing Director of the Respondent and therefore the failure to serve on the Chairman or Secretary of the Corporation is not invalidated. This counsel argued because the section envisages good service on another principal officer of the Respondent such as the Managing Director as it is the case at hand. Learned counsel contended therefore that the decision of the learned trial judge was wrongful in importing the word “shall” used in section 83(2) into the provision of section 84 of the Act. That this is a clear negation of the settled principle of law that a judge cannot import into the words of a statute, such qualifying or additional words that were not provided there in the first instance by the legislature.
The authority cited in support was Ibrahim v JSC (1998)14 NWLR (pt.584) 1 at 36 per Iguh (JSC). Further related authorities on construction of a statute are:- Awolowo v Shagari (1979) NSCC (Vo1.12) 87 at 116: also Lord Simmonds in Magor and St Mellous Rural District Council v Newport Corporation (1952) A.C (H.L) 189 at 191. The case of Owena Bank (Nig) Plc. v Nigerian Stock Exchange Ltd (1997) 8 NWLR (pt 515) 1 at 12, a Supreme Court’s pronouncement per Mohammed JSC was also cited by the learned counsel. Also and further in support was the dictum of Karibi-Whyte JSC in the case of Amadi v NNPC (2000) 10 NWLR (pt.673) 76 at 111.
That the learned trial judge ought to have construed the provisions of sections 83(2) and 84 of the NRC Act liberally so as to preserve the appellant’s constitutional right of access to court. That the strict construction read into the provisions of section 84 of the NRC Act therefore was submitted to be erroneous in law and an erection of improper legal obstacle in the appellant’s right of access to court. Learned counsel cited a number of cases in support including:- Ezenwa v Bestway Electrical Manufacturing Co. Ltd (1999) 8 NWLR (pt.613) 61 at 78; and Adediran & Anor v Interland Transport Ltd. (1991) 9 NWLR (pt.214) 155 at 162.
The learned counsel urged this court to therefore hold that the provisions of sections 83 (2) and 84 of the Nigerian Railway Corporation Act read together with the provisions of section 2 (a) of the public officers Protection Act is a violation of the appellants constitutional right to court enshrined in section 6(6) (b) and 36(1) of the 1999 Constitution. Counsel therefore urged us to resolve issue No 1 in favour of the appellant.
In response to the submission on Issue no 1. the learned respondent’s counsel relied heavily on section 83 (2) of the Nigerian Railway Corporation Act and summarized the thrust of the interpretations given to the provision thus:-
(a) That giving of a notice is mandatory.
(b) That three months must elapse before the commencement of the proceedings.
That if the period from the giving of the notice and the time the action is commenced is less than three months, then the action will be incompetent as it will be declared as such because it is premature.
Counsel re-iterated the argument of the learned appellant’s counsel as out of con, and so also are the authorities in support thereof. In support, counsel cited the case of Mobil Producing (Nig.) Ltd v LASEPA (2002) 18 NWLR (pt 798) page 1. That the ratio of the case is as contained at page 34 where Ayoola JSC said.
“Although the appellant had the burden of proof of service of a pre-action notice that burden does not arise unless and until the fact of non-compliance is alleged in the proper way and put in issue by the opponent.”
Learned counsel further garnered that the Issue of non service of pre-action notice in that case was never raised by the defendant all through the trial until the address stage. He therefore argued the mandatory nature of the compliance as restated in the case of Amadi v NNPC cited supra. Counsel in addition to section 83(2) also stressed the provision of section 84 which he argued as directly having incorporated the provision of section 83(2) particularly as it relates to the service of notice.
That with the service of notice being obligatory, leaving the plaintiff to deliver the notice as he may choose will be abundantly absurd and to the extent make nonsense of the statutorily imposed obligation as to notice. That the express mention of the specific office of the Chairman or Secretary is a deliberate effort on the part of the legislature to limit the number and caliber of persons who may take such decision. Reference to substantiate was made to the case of Arize v NNPC (1991) 1 NWLR (pt. 116) page 258 @ 269.
On the reference made by the appellant on the case of Amadi v. NNPC supra, learned respondent’s counsel argued that the requirement of substantial compliance discussed and decided therein relates only to the contents of the notice as to cause of action, reliefs, name of intending plaintiff and address which the court decided are not mandatory but merely directory. In other words that once the information provided in that regard substantially complied with the requirement, it will not vitiate such notice. That notices can always be served even in the absence of any Board. That with the office of secretary of the Respondent an existing office and usually occupied by an employee of the respondent, the existence of the office therefore does not depend on the existence or otherwise of the Board. That to that extent if the board is not existing at any particular time such statutory notices can always be served on the secretary. That on the issue of extinction of the appellant’s right of access to court, same counsel argued is to no relevance since the issue did not arise at the lower court. That it neither also formed part of the appellant’s grounds of appeal nor was there leave of court obtained to raise or advance that argument.
That even if the argument holds and is sustained, the thrust of sections 83(2) and 84 of the Act is that it regulates but not erect any barrier in the way of the appellant’s exercise of right or access to court. Cited in support is the case of NNPC V. Chief Gani Fawehinmi (1998) 7 NWLR (pt.599) 598 at 613. Counsel further submitted that contrary to the appellant’s contention, the use of the word “May” in the provision of a statute is not in all cases conclusive of whether the purpose or purport of the provision is merely directory or mandatory. That it most often depend on the con in which it is used. Counsel in further argument referred to the definition of the word “May” by the Black’s Law dictionary 5th Edition at page 863; also the interpretation by this court per Onalaja JCA in the case of Erastus Obioha v Iyibo Kio Dafe (1994) 2 NWLR (pt. 325) 157 at 180-181.
That section 83 (2) of the Act did not only impose an obligation on the appellant to serve a pre-action notice on the respondent, it went further to prescribe a penalty for failure to serve such notice, with the penalty rendering the action or suit as incompetent.
Thai in the absence of service on Chairman or Secretary, there is no compliance with section 84 of the Act. The section, counsel argued gives the appellant the choice either to serve the Secretary or the Chairman and none other. That any other interpretation would amount to an absurdity as it would render the whole purpose of the notice to be defeated. This, counsel argued because it would render co-ordination impossible as persons with claim or grievance against the respondent may choose to serve any employee of the respondent such as an engine driver or a gate keeper etc.
Learned counsel urged us to therefore resolve Issue no 1 in favour of the respondent.
The appellant in reply to whether or not the issue of access to court was raised in his grounds of appeal as alleged by the respondent, cited the case of A.I.B. Ltd v Packoplast (Nig) Ltd (2004) 3 NWLR (pt.859) 129 at 145. In otherwords that the grounds of appeal ought not be taken in isolation but be construed along with the particulars of error set out there under. That on a close review of both the grounds and the particulars would reveal that the appellant had raised the issue disputed by the respondent.
The matter for consideration in issue no 1 is very simple. In otherwords whether the service of the pre-action notice, exhibit CO1 falls short of the requirement of section 84 of the Nigerian Railway Corporation Act.
It is not in dispute by both parties that exhibit CO1 at pages 147-148 of the record was addressed to and served on the Managing Director of the respondent. The said exhibit was Notice of Intention to Commence Legal proceedings.
The determination of this issue is predicated squarely upon the interpretation of the provisions of sections 83(2) and 84 of the Nigerian Railway Corporation Act Cap 323, Laws of the Federation 1990. The said provisions reproduced read as follows:-
Section 83(2) provides:-
“No suit shall be commenced against the corporation until three months at least after written notice of intention to commence the same shall have been served upon the corporation by the intending plaintiff or his agent, and such 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.”
Section 84 of the Act also provides:-
“The notice referred to in the last preceding section and any summons, notice or other document required or authorized to be served upon the corporation under the provisions of this Act or any other law may, unless in any case there is express provision to the contrary, be served by delivering the same to the Chairman or Secretary of the Corporation, or by sending it by registered post, addressed to the Secretary of the Corporation at the principal office of the Corporation.”
By the provision of section 83(2) supra, the requirement of a pre-action notice is mandatory and not negotiable, in the absence which no action call be instituted against the corporation. The action must also lie after the expiration of the three months notice but not before.
The basis of the objection of the respondent to the pre-action notice upon which the ruling of the learned trial judge, the subject matter of the instant appeal, was delivered was that the pre-action notice, that is exhibit CO1 was not served on the Secretary or the Chairman of the Respondent as required by the provision of section 84 of the Act.
The learned trial judge in construing section 84 of the said Act held at page 159 of the record and said:-
“The purported notice i.e exhibit CO1 was addressed to the Managing Director of the Corporation. I quite agree with the submission of Chief Ajala that the office of Managing Director is not known under the Act. What is recognized under the Nigerian Railway Corporation is either the Chairman or Secretary of the Corporation. For the purpose of this application and the issue of service of notice both section 83(2) and 84 of the Act are to be read together. I therefore hold that exhibit CO1 is not a notice served on the corporation by virtue of section 83(2) and 84 of the Nigerian Railway Corporation Act.”
The question needing determination is having regard to the provisions of the two sections 83 (2) and 84 of the Act therefore, has exhibit CO1, that is the appellant’s pre-action notice served on the Managing Director of the Respondent, complied in particular with the provisions of section of section 84 of the Act?
As rightly submitted and agreed by both counsel, the idea behind the requirement of a pre-action notice against the respondent is to bring fully the grievance of the appellant to the notice of the respondent so as to enable the latter in full appreciation of the claim after thorough perusal to make up its mind whether to settle and compromise the appellant’s claim or in the alternative dare the appellant and leave him to pursue his claim. In other words it is to allow the proposed defendant time to consider whether to make reparation to the intending plaintiff or not. The law in that respect has therefore spelt out the due process procedure on the mode of bringing this notice to the intending party. While section 83 therefore slates the need for such notice on one hand, section 84 on the other states the procedure in bringing such notice to the attention of the respondent.
As rightly submitted also by both counsel, the use of the word “may” has been construed in a number of cases as cited by counsel in their respective briefs of submissions; moreso per the plethora of authorities cited by the appellant’s counsel. However and for the purpose of the matter at hand, it is not enough to construe the use of the word “may” in isolation to the entire statute selling up the corporation.
By the provision of section 10 of the Act for instance same recognises the office of the General Manager. The section reproduced in particular subsection (2) states:-
“(2) The General Manager shall be appointed by the Corporation and shall be a person appearing to the Chairman to have had wide experience of railway management.”
Having regard to the entire Act, there is nowhere stated either in the said section 10 or anywhere else in the Act that the General Manager is synonymous to Managing Director. There is also no similar provision as section 10 creating either the office of the Managing Director or recognizing same. It appears in my humble opinion that the office of the Managing Director is alien to the statute creating the Nigerian Railway Corporation. In other words, had the service been effected on the General Manager, the arguments by the learned appellant’s counsel would have held substance. This I hold in view of the existence of the office. For any action to bind and hold against the respondent therefore, service of the pre-action notice ought to have been made on an officer recognised by the Act bringing it into existence. Such is not the case at hand having regard to the entire length and breadth of the creating statute.
As rightly submitted by the learned respondent counsel, to make the service of notice obligatory and leave the plaintiff to deliver the notice as he may choose will certainly be absurd. This is apt as it would defeat the whole purport and intention of section 83(2) and make nonsense of the statutorily imposed obligation requiring the notice. This cannot certainly be the intention of the law makers.
In the Court of Appeal decision of Arize v .NNPC under reference supra. Uwaifo JCA (as he then was) at page 269 had this to say:-
“Section 12 of the Nigerian National Petroleum Corporation Act 1997 has laid down the procedure for serving the corporation with court processes. Non-compliance amount to non-service. Unless there is an effective waiver by the corporation, any proceedings based all the purported service will be a nullity.”
The said authority is very relevant to the case at hand. The service on the Managing Director in this case is completely outside the provision of section 84 of the Act.
The appellant’s counsel argued substantial compliance with the notice being addressed to Managing Director instead of the Chairman or the Secretary of the respondent. Counsel cited the case of Amadi v NNPC (2000) 10 NWLR (pt.673) 76 at 111.
In that case the Supreme court established the fact that where an intending plaintiff has served a pre-action notice, the fact that the notice is not in total conformity with the requirements of the law should not be relied upon to falter the appellant’s constitutional right of access to court.
With the greatest respect to the argument by the learned appellant’s counsel, the case of Amadi v NNPC cited, is completely different from the case at hand, which is totally outside the conformity with the requirement of the law. In other words Amadi’s case was in relation to the contents of the notice and not an issue of whether or not there was service. In the matter under consideration however, the purported service effected was non at all because it was effected on a non-existent officer who is entirely alien to the creating statute and thus placing the case at hand in a bad and an irredeemable situation. The said authority of Amadi v NNPC relied upon by the appellant therefore is a complete misconception of the understanding of same and which cannot be related to the case at hand. In consequence, I am of the firm view that the other authorities relied upon are also of no relevance and do not serve to salvage the appellant.
On whether or not the requirement of pre-action notice is an obstacle to the exercise of a constitutional right of access to court, the effect as rightly submitted by the learned respondent’s counsel is only regulatory. It does not in other words and with all respect preclude access as wrongly misconstrued by the learned appellant’s counsel. The authority in the case of NNPC v Chief Gani Fawehinmi (1998) 7 NWLR (pt 599 page 598 is relevant in support. In that case Ayoola JCA (as he then was) at page 613 had this to say:-
“A statute that prescribes the procedure for invoking the exercise of judicial powers cannot by ipso facto be said to be in conflict with section 33(1) of the constitution.
The provision of section 12(2) of the Act in this case cannot be said to contain anything inconsistent with section 6 of the constitution. Section 12(2) neither removes the adjudication power of the courts in respect of matters concerning the corporation nor does it deny access to the courts to an individual. It merely regulates, without interposing the discretion of any other person between the will of an individual and the commencement of proceedings the manner of invocation of the jurisdiction of the courts.”
The provision of sections 83(2) and 84 of the Nigerian Railway Corporation Act as pronounced in the case of Gani Fawehinmi supra, does not, as wrongly submitted by the appellant’s counsel, erect any barrier in the way of the appellant’s exercise of right or access to court. Rather “it merely regulates… the manner of invocation of the jurisdiction of the courts.” The argument by the learned appellant’s counsel in that regard with all respect does not hold any water.
Section 83(2) imposed an obligation on the appellant to serve a pre-action notice on the respondent and the mode of service is provided for in section 84. By service on a non existing office or officer, the obligation so imposed cannot be said to have been performed or discharged in the absence of non service on an existing officer or office statutorily provided by the law. This has clearly been slated in Arize v NNPC under reference supra.
By the use of the word “may” in section 84 no matter how construed it does not obviously pre-suppose a non existent office or officer. It must in other words envisage an officer known to the law. The reliance made by the learned appellant’s counsel on the case of Plateau Investment and Property Development Company Ltd v Philip Ebhota & ors (2001) 4 NWLR (pt. 704) 495 at 534 docs not therefore aid the appellants case in the circumstance at hand. The learned counsel merely sought to take the word “may” out of con.
In a further authority of Erastus Obioha v Iyibo Kio Dafe (1994) 2 NWLR (pt 325) 157 at 180 – 181 Onalaja JCA in interpreting the word “may” said.
“… the whole section is to be read together without taking the word out of con in order to discover the intention of the draftsman…”
The purported notice at hand having been served on an officer outside that expressed by the statute cannot be a notice as properly expected or anticipated under the statute.
In consequence therefore, issue no 1 is resolved against the appellant. The said same issue together with ground of appeal no 1 upon which predicated fail and are dismissed.
The second issue for consideration is whether the notice of preliminary objection upon which the learned trial judge struck out the appellant’s suit was incompetent by virtue of the provisions of order 25 rule 2 of the Federal High Court (Civil Procedure) Rules 2000?.
The notice of the preliminary objection at page 144 of the record of appeal and giving rise to the ruling subject of this appeal was dated 14th November, 2003 which same challenged the jurisdiction of the lower court. The ground upon which the objection was forwarded challenged the plaintiff for the failure to comply with section 83(2) of the Nigerian Railway Corporation Act Cap 323 Laws of the Federation 1990.
In his submission to substantiate the issue, the learned appellant’s counsel posed a question whether the respondent, without filing a defence to the action, could file an objection challenging the competence of the appellant’s action for non service of pre-action notice? The counsel in answer to the question posed referred to the provision of order 25 rules 1 and 2 of the Federal High Court (Civil Procedure) Rules 2000, which counsel argued regulates the procedure a defendant who has an objection on points of law must take before he can raise such an objection.
That by The provisions of order 25 rules 1 and 2 of the rules of the lower court, it is mandatory on the respondent to raise issue of non service of pre-action notice, which is a procedural requirement, in its pleadings before it can apply to set such point of law down for hearing. This counsel argued, in view of the use of the word “shall” which he submitted has been judicially interpreted to be mandatory, pre-emptory and failure to comply therewith is a fundamental error in the proceedings. He cited in support the authorities of Adewunmi v A.G. Ekiti State (2002) F.W.L.R. (pt 92) 1835 at 1843: Provisional Council of Ogun State University v Makinde (1991) 2 NWLR (pt 175) 613 and Akinade v N.A.S.U (1999) 2 NWLR (pt 592) 570. That the decision of the learned trial judge on page 160 of the record of appeal on stating that the objection of the respondent did not amount to a demurrer notwithstanding the mandatory provisions of order 25 rules 1 and 2 was erroneous in law. This counsel argued in view of the decision of this court in Makinde and Akinade’s cases.
That since the competence of the lower court to entertain the appellant’s action was presumed from the face of the proceedings, the onus lied on the respondent, who was raising the issue of incompetence of the lower court, to have raised same in its statement of defence. Cited in support are the authorities of Halsbury’s Laws of England. Vol/10, 4th Edition paragraph 713; also cases of Anakwunze v Aneke & ors (1985)1NWLR (pt 4) 771 at 778; -Mobil Producing (Nig) UNLTD v LASEPA (2002) 18 NWLR (pt 798) 1 at 31 – 32 and NNPC v Sele (2004) 5 NWLR (pt.866) 378 at 433. That the failure of the Respondent to file its statement of defence to raise the issue jurisdictional incompetence of the lower court on ground of non-service of pre-action notice was fatal to the success of its preliminary objection. That by its counter affidavit at pages 145 – 146 of the record, the appellant had shown that it had served a pre-action notice on the respondent in compliance with the provisions of section 83(2) of the Act.
Learned counsel further argued that the ground upon which the learned trial judge struck out the plaintiffs suit to the effect that the pre-action notice fell short of the requirement of section 83(2) of the Act was neither prayed for nor made a ground on the notice of preliminary objection. That in the same way the plaintiff is bound by the case put forward in the writ of summons so also is an applicant bound by the prayers in his motion papers. Authorities cited in support are:-
Commissioner for works Benue State v Devcom Ltd (1983) 3 NWLR (pt 83) 407 at 420 and Government of Gongola State v Turkur (1989) 4 NWLR (pt.117) 592 at 603. Learned counsel, on the strength of the foregoing authorities re-iterated that the respondents notice of preliminary objection is incompetent and ought to have been struck out as it was in breach of order 25 rules 1 and 2 of the Federal High Court (Civil Procedure) Rules 2000. Counsel urged us to resolve issue no 2 in the appellant’s favour.
In response to the appellant’s issue no 2, the learned respondent’s counsel argued non relevance of the authorities cited by the appellant in support of its case which counsel argued did not relate to the relevant issues in the instant case. Particular reference was made to the cases of Amadi v NNPC and also The Provisional Council of Ogun State University v Makinde both cited supra. That Amadi’s case only support the case of the respondent as regards the obligation imposed on the appellant and therefore not applicable in respect of the issue of substantial compliance which relates to the particulars on the claim which are not in contention. In other words that the issue of substantial compliance with the particulars of claim decided in Amadi’s case is not relevant to the instant case. Learned counsel in further submission re-iterated that the case of Provisional Council of Ogun State University v. Makinde under reference is also not applicable to the case of the appellant. This he contended because the application in that case was struck out as being premature. Further reference was made to the decision in Mobil Oil Producing Unlimited v LASEPA’s case where it was held that the failure to raise the preliminary objection until the conclusion of the trial was taken to mean that the party entitled to such notice is deemed to have waived its right to it. The said authority, counsel argued is not also relevant to the appellant’s case.
Learned counsel further argued that it is not the ratio of the case to the effect that for the defendant to raise an objection to the jurisdiction of the court, such defendant must have filed a pleading by way of statement of defence. That the statement was merely an obiter as it did not relate to any of the issues set down before the court for determination. That the appellants were also caught up by the doctrine of waiver and estoppel in the case of NNPC v Sele (supra).
Learned counsel related the case of Mobil Oil Nig Plc v IAL 36 INC (2000) 6 NWLR part 659 page 146 and argued that same did not only confirm that Makinde’s case is distinguishable but further confirmed the respondent’s assertive position. On the one hand that while the objection to the jurisdiction of the court under the inherent powers will be mature and be taken provided there is enough material before the court to enable it decide on the issue, an objection by way of demurrer on the other hand and as anticipated under order 25 of the Federal High Court Rules, 2000 will only be competent where the applicant files a statement of defence, Learned counsel cited in support, the pronouncement by Onu JSC in the case of Arjay Ltd v. A.M.S Ltd (2003) 7 NWLR (pt. 820) 577; also the case of NDIC v CBN (2002) 7 NWLR (pt.766) 272.
On the general over view of the cases cited by the appellant’s counsel particularly as relating the question of demurrer and the interpretation given to the word “may”, he argued same as being cited out of con. The said counsel for the respondent proceeded and cited the admonition of this court in the case of Ohanaka v. Achugwu (1998) 9 NWLR (part. 534) page 3 where it was held among others that “‘It is the ratio decidendi of (the superior courts) which are binding on inferior courts.”
The respondent’s counsel on a final note submitted this appeal as misconceived because it failed to appreciate the time tested distinction between objection based on inherent jurisdiction and that based on demurrer. He therefore urged us to resolve issue no 2 in favour of the respondent.
In reply to the respondent’s submission, the learned appellant’s counsel particularly dwelt on order 25 rules (1) and (2) of the Federal High Rules, which the respondent argued is not applicable. That with reference to the case of Mobil Oil Nig Plc v IAL cited by the respondent, counsel argued that the correct position of the law is that rules of court regulating procedures for filing objections must prima facie be obeyed no matter the situation. Reference to buttress the submission was made to the case of Disu v. Ajilowura (2001) 4 NWLR (pt. 702) 76 at 92; also Oforikire v. Maduike (2003) 5 NWLR (pt 812) 166 at 181. That the facts of the above cases cited by the respondent are distinguishable from the instant appeal which relates to an objection filed in breach of the provision of order 25 rules 1 and 2 of the Federal High Court Rules 2000. Counsel urged us to discountenance the submissions by the respondent’s counsel as contained in its brief and allow the appeal of the appellant.
The summary of the appellant’s argument on issue no 2 is to the effect that pursuant to order 25 rules 1 and 2 (a) of the Federal High Court Civil Procedure Rules, 2000, the application of the respondent challenging the jurisdiction of the court without having filed its statement of defence amounted to demurrer. Furthermore that it is premature for the respondent to raise the issue of jurisdiction when it is yet to file statement of defence.
It is as rightly submitted by the appellant’s counsel that by the use of the word “shall” it makes a provision mandatory, pre-emptory and the failure to comply would amount to a fundamental error in a proceeding. This has been pronounced in the plethora of authorities as cited in the appellant’s brief of argument.
At page 144 of the record of appeal, the notice of preliminary objection was not brought under any specific rule. Comparatively, however, Makinde’s case supra was brought under order 24 rules 1 and 2 of Ogun State High court Civil Procedure Rules which is equivalent to order 25 of the Federal High Court Civil Procedure Rules, 2000.
In Makinde’s case, the appellant who filed the objection did not file any defence; this was a condition precedent, and laid down for any application brought under the provision of the said relevant order of the rules. The Court in that case struck out the preliminary objection on the ground that the applicant did not comply with the condition precedent in bringing the application as provided under the rules it was brought. The application was therefore premature. It was held in that case that, with the objection having been brought under order 24 rules (1) and (2) of the rules, compliance with the Ogun State rules as regards filing of Statement of defence was “sine qua non and non compliance was fatal. Sulu Gambari JCA 31 page 621 said:-
“I have come to the conclusion that the- objection cannot be raised other than as may be contained in the statement of defence or in a motion after the statement of defence has been filed. The appellants are not entitled or competent to raise the issue of condition precedent in the manner they had attempted to do”.
Also in the case of Mobil Oil Nig Plc v IAL 36 INC (2000) 6 NWLR (pt 659) 146 the apex court per Ayoola JSC at page 163 said:
“The defendant has an option to make a demurrer in appropriate cases. He does not have the option, as the law stands at present, if he chooses to come by way of demurrer, to do so after issues have been joined by delivery of defence. Both in the judgment of the court below and in the defendants counsel’s brief before us, there has been a failure to distinguish between cases decided on rules of court in which proceedings in lieu of demurrer have been substituted for demurrer which has been abolished where those rules apply. Cases such as Onibudo v Alabi (1982) NSCC (Vol 13) 199 and Fadere v Attorney General of Oyo State (1982) 4SC 1 are to be read with this distinction in mind. A party who chooses to proceed by way of demurrer cannot super impose on it a procedure of his own making, and insist on making his application after issues have already been joined.”
As rightly submitted and argued by the learned respondent’s counsel the implication of having brought the present objection under the inherent jurisdiction of the court is that the rules of court i.e order 25 rules (1) and (2) is not applicable to that extent. In other words the need to comply with the condition laid down in the rules becomes
inapplicable.
It is well established that the question of jurisdiction can be raised at any time and at any stage. This is trite. In the matter at hand a counter affidavit was filed by the appellant in response to the application which was not brought pursuant to any specific rule of court but under its inherent powers thereof. With the counter affidavit so filed therefore there was enough material before the lower court to enable decision on the issue. The application as rightly submitted by the learned respondent’s counsel was therefore mature to be taken. The principle of demurrer as anticipated under order 25 of the Federal High Court Rules 2000 which requires the filing of statement of defence does not apply. It is apparent that while Makinde’s case is very much distinguishable from the case under consideration, it is however in consonance with Mobil Oil Nig. Plc v IAL per Ayoola JSC’s pronouncement supra.
Further still and in the ease of Arjay Ltd v A.M.S. Ltd cited supra at 602. 603 and 626, their Lordships of the apex court per Onu JSC in making a distinction between demurrer and objection to jurisdiction of the court said:-
“It is plain from the authorities that any stage sufficient facts or materials are available to raise the issue of jurisdiction, that it has become apparent to any party to the action that it can be canvassed there is no reason why there should be delay in raising it.”
Uwaifo JSC in the case of NDIC v. CBN supra at 294 – 295 also had this to say:-
“The tendency to equate demurrer with objection to jurisdiction could be misleading. It is a standing principle that in demurrer, the plaintiff must plead and it is upon that pleading that the defendant will contend that accepting all the facts pleaded to be true, the plaintiff has no cause of action, or where appropriate, no locus standing.”
Onu JSC further in Arjay’s, case supra at page 601 also in support of the issue of jurisdiction being raised at any time said:-
…even when there are no pleadings filed and that a party raising such an objection need not bring the application under any rule of court and that it can be brought under the inherent jurisdiction of the court. Thus once the objection to the jurisdiction of the court is raised, the court has inherent power to consider the application even if the only process of court that has been filed is the writ of summons and affidavits in support of an interlocutory application…”
Again a further related authority is the recent decision of their Lordships of the apex court in the case of Elabanjo v Dawodu (2006) 15 NWLR (pt.1001) 76. On whether defendant must file statement of defence before he can raise issue of jurisdiction. At page 130 of the said report Onu JSC said:-
“The foregoing expression of the principle of law epitomises the procedural backing my learned brother, Mohammed JCA had when in this his judgment he categorically held and I am of the same firm view, that “to say as did the trial court and canvassed by the appellants in their arguments before this court, that objection to jurisdiction should only be taken after filing a statement of defence is indeed a misconception… It could be taken on the evidence received…or by a motion on notice supported by affidavit giving facts upon which reliance is placed… It could be taken even on the face of the writ of summons before filing statement of claim as in Attorney General, Kwara State v Olawale (1993) 1NWLR (pt.272) 645 at 674 – 675 as well as in the recent decision of this court in Arjay Ltd v Airline Management Support Ltd (2003)7 NWLR (pt. 820) 577 at 601”
From all the above deductions, it is apparent that the respondent in the case at hand, had no need to file his statement of defence before raising the issue of jurisdiction as a preliminary objection. The contention by the appellant in that regard is greatly misconceived therefore. In other words and as rightly submitted by the learned respondent’s counsel, the inherent jurisdiction of the court can be invoked by the defendant, and as in this instant case, provided the plaintiff (as appellant) herein has put enough materials before the court to make his case justiceable or worthy of consideration. This is the situation in the case at hand wherein the appellant had filed his writ of summons, statement of claim and also the counter affidavit. Consequently, it is my humble view that all the authorities cited by the appellant and his arguments on the question of demurrer are not relevant to aid his case. In the circumstance, issue no 2 is also resolved against the appellant. The said same together with the ground of appeal no 2 upon which it is predicated both fail and are dismissed.
On the totality, and with appellant’s two issues having been resolved against him, same together with the grounds of appeal upon which they are predicated all fail and are dismissed. The entire appeal lacks merit and is accordingly dismissed. The ruling of the learned trial judge of the Federal High Court delivered on the 5th of April, 2004 in striking out the appellants suit on the ground that a pre-action notice served by the Appellant on the Respondent did not comply with the provisions of section 83(2) and 84 of the Nigeria Railway Corporation Act Cap 323 Laws of the Federation 1990, is upheld.
With costs following events, I would award the sum of N10,000 in favour of the respondent.
Other Citations: (2006)LCN/2116(CA)
