Abuja Municipal Area Council V. C.N. Okoli Transport Co. Ltd (2009)
LawGlobal-Hub Lead Judgment Report
UWANI MUSA ABBA AJI, J.C.A.
This is an appeal against the judgment of Honourable Justice Salisu Garba of the FCT High Court, Abuja, delivered on the 6th of July, 2005 whereby the trial court entered judgment in favour of the Plaintiff/Respondent.
The Appellant was the Defendant at the lower court, where the Plaintiff now, Respondent, sued for the following:-
a) A declaration that the Defendant’s letter of demand Re: Daily Motorist Ticketing of 3rd August, 2004 and the one of 17th December, 2004 to the plaintiff is null and void.
b) A declaration that the act of the Defendant is (sic) closing and disrupting the business of the plaintiff is a gross abuse of the rule of law.
c) A declaration that the act of Defendant of the 23rd of December, 2004 is an act of trespass.
d) An order of injunction restraining the Defendant, their agents howsoever described from trespassing into the premises of the plaintiff or making any demand on account of daily motorist ticket issued by the Defendant.
e) The sum of N2,065,000.00 as special damages for loss of income on the 23rd December, 2004.
f) The sum of N3 Million as exemplary damages for gross use of force against the plaintiff by Defendant.
g) The sum of N1 Million for trespass.
Dissatisfied with the judgment of 6th July, 2005, the Appellant, vide a notice of appeal dated and filed on the 16th of July, 2005, appealed to this Honourable Court.
The grounds of Appeal without their particulars are reproduced to wit:
A) The learned trial judge erred in law by assuming jurisdiction to hear the case without having first satisfied himself that the conditions precedent for the hearing of the case and/or assuming jurisdiction have been met.
B) The learned trial judge erred in law by hearing the case over a period of time based on processes purpotedly served on some persons on behalf of the appellant.
C) The learned trial judge erred in law by entering judgment In favour of the Respondent when the Respondent did not prove its case as to warrant judgment being given in its favour.
In compliance with the practice of the court, parties filed and exchanged briefs of argument. In the Appellant’s brief settled by Friday O. Abu, Esq., a lone issue was formulated for determination of the appeal to wit:
“Whether the requirement of the Jaw as regards service of pre action notice and hearing notices was complied with as to give the lower court the jurisdiction to hear the matter.”
The Respondent’s brief, settled by Obi C. Nwakor Esq., adopted the lone issue formulated by the Appellant.
At the hearing of the appeal on the 10th February, 2009, learned counsel for the Appellant, adopted and relied on the Appellant’s brief of Argument dated 19th September, 2007 and filed on the 20th of September, 2007 and the Appellant’s Reply Brief dated and filed on the 19th of October, 2007 and urged the court to allow the appeal and set aside the judgment of the lower court. Mr. Obi C. Nwakor Esq., for the Respondent, adopted and relied on the Respondent’s Brief of Argument dated 5th of October, 2007 and filed on the 8th of October, 2007.
In arguing the lone issue for determination, learned counsel for the Appellant, submitted that the requirement of the law as regards service of a pre action notice on the Appellant was not complied with. It is submitted also that all the hearing notices were not served on the Appellant during the hearing of the suit at the court below. Learned counsel referred to the provision of the law as regards the service of a pre action notice on a Local Government Authority including the Area Councils in the F.C.T as can be found in Section 115(1) of the Local Government Law, CAP 74, laws of Niger State, which is applicable to Area Councils in the F.C.T by virtue of Section 13(1) of the F.C.T Act CAP 128 LFN 1990, and submitted that the Respondent did not comply with the provision of the law that a written notice of intention to sue the Appellant should be given and therefore, one of the conditions precedent for the lower court to assume jurisdiction was absent. It is argued that all the steps taken by the lower court including its final judgment are therefore a nullity. He referred to the cases of U.A.C. VS MCFOY (1961) 3 ALL ER 1189 and MADUKOLU VS NKEMDILIM (2001) WRN 192.
It is submitted further that the issue of jurisdiction being very fundamental, can be raised at any stage of the proceedings and can even be raised for the first time on appeal, citing the case of JERIC VS UBN (2001) 7 WRN 1 at 10 paragraph 5.
Learned counsel submitted that the 30 days notice of intention to sue the Appellant, contained in a letter written by the solicitor to the Respondent was never served on the Appellant bearing in mind that the letter was addressed to, The Unit Head, Revenue Collection Unit, Motorist Daily Ticketing, Abuja Municipal Council Suite 124, Banex Plaza, Plot 750, Aminu Kana Crescent, Wuse II, Abuja and not Area 10, Garki Abuja, which is the Secretariat of the Appellant. It is also argued that even when court processes were purportedly taken to AMAC Secretariat at Area 10, Garki Abuja they were served on the wrong persons and did not get to the authorities of the Appellant. Pages 12, 14 and 16 of the record were referred to.
It is therefore argued that the letter or 30 days notice issued by the Respondents solicitors was defective and therefore a nullity because it was addressed to the Unit Head, Revenue Collection Unit, AMAC and it was also purportedly taken to a place outside the principal office or secretariat of the Appellant and by virtue of Section 116 of the Local Government Law CAP 74 Laws of Niger State, such notice ought to be served on the secretary of the Local Government and it must also be served at the principal office or secretariat of the Local Government.
Learned counsel therefore submitted that there was non-compliance with the above cited provision and the learned trial judge also failed to satisfy himself that the said condition had been complied with and therefore acted without jurisdiction. He referred to the case of NNONYE V. SANYICHIE (2005) 8 WRN 1at 21- 22 1ines 40 – 45.
Learned counsel further submitted that by the proof of service of the court processes and hearing notices on pages 12, 14 and 16 of the Records, one Nuhu Kaba Esq., who described himself as a principal legal officer, Yerima Danlami, who described himself as an ACCO and Shekwonumozal I. Woziri, who described himself as a civil servant all purportedly received service at one time or the other. These persons according to him are not known to the Appellant. It is his further submission that even if they were staff of the Appellant, they are not the proper persons to be served in view of the provisions of Section 116 referred to above. It is thus submitted that the Appellant was shut out of hearing and denied its right to be heard. He relied on the case of N.A.C.B. LTD VS ADEAGBO (2004) 25 WRN 92 at 114 – 115. lines 30 – 35.
He concluded by submitting that the lower court acted without jurisdiction and no matter how well the trial was conducted, it cannot stand. He urged the court to allow the appeal and set aside the judgment of the trial court.
In his response, the Respondent relied on the cases NNPC VS EVWORI (2007) 9 WRN 160 at 178; NNONYE VS ANYICHIE (2005) 2 NWLR (PT.910) 632 at 647, and KATSINA NATIVE AUTHORITY VS MAKUOAWA (1971) 1 NMLR 100 to contend that the condition precedent relied upon by the Appellant was not pleaded.
It is the view of the Respondent’s counsel that Appellant must fail on the issue of non service of pre action notice, since the Appellant is raising same for the first time in this appeal. Learned counsel further submitted that since the Appellant neither entered appearance nor filed a defence to challenge the Respondent’s claim at the lower court, he cannot do so on appeal. He referred to AMES VS FAAN (2002) 3 WRN 162 at 172.
On the issue of service of court process it is the submission of the learned counsel for the Respondent that the learned trial judge satisfied himself that all the process of court was duly and properly served on the Appellant before hearing evidence and giving judgment. He referred to page 23 of the Records. It is his further submission that the Principal Legal Officer, was known to counsel who applied to the lower court to set aside the judgment on the same ground or issue. See pages 23 and 28 of the Records. He referred also to the case of MAJEKODUNMI V. N.A. (2002) 31 NRN of 48. It is also submitted that this particular issue argued by the Appellant is not based on the grounds of appeal filed. He referred to the case of ORAKOSIM VS MENKITI (2001) 23 WRN 100 at 101. It is his view that issues formulated must be based on the grounds of appeal filed and accordingly, any argument which is not founded on the ground of appeal is not a matter arising from the grounds of appeal and the court is not entitled to consider issues not subject matter of dispute. He referred to AKPAN VS THE STATE (2001) 53 WRN 1 of 13: and ACHIAKPA VS NDUKA (2001) 39 WRN 1 of 35. It is also view of the learned counsel that the Appellant ought to have entered appearance and then challenge the service issued on the Principal Legal Officer, by claiming that he was not the party to be served, rather than keeping away completely from the trial court and coming to the Appeal Court to raise the issue of service at this stage. He placed reliance on the case of ARIORI VS ELEMO (1983) 1 ALL NLR 1: and OLATUNDE VS OAU (1998) 4 SCNJ 59. In conclusion, he urged the Court to dismiss the Appeal.
In his Reply Brief, learned counsel for the Appellant contended that the submission of the counsel for the Respondent that the issue does not arise from any grounds of appeal is misconceived, since the sole issue for determination covers both service of pre-action notice and service of originating processes and hearing notices. He referred again to the case of MADUKOLU VS NKEMDILIM (2001) 4 WRN 192. He argued that the lone issue for determination was distilled from Grounds 1 & 2 of the Notice of Appeal. He cited the case of SHONA-JASON NIG LTD VS.OMEGA AIR LTD (2005) 22 WRN 123 at 165 and submitted that whereas an issue can be formulated out of one or more grounds of appeals not more than an issue can be formulated out of a ground of appeal. It is then submitted that the Respondent’s counsel’s argument that the Appellant slept over its right to timeously raise the issue of non service holds no water because the Appellant could not have slept over a right that it was not given the opportunity to defend or protect and therefore the Appellant was right to raise this issue on appeal. He urged the court to allow the appeal.
The main contention in this appeal is the failure of the Respondent to serve a pre action notice on the Appellant as required by section 115(1) of the Local Government Law, Cap 74, laws of Niger State and the subsequent service of the court processes and hearing notices on persons other than the Appellant. Section 115(1) of the local Government Law Cap 74, Laws of Niger State as applicable to Area Councils in the Federal Capital Territory by virtue of Section 13(1) of the Federal Capital Territory Act Cap 128 Laws of the Federation of Nigeria 1990, provides as follows:-
Section 115(1) ”
No suit shall be commenced against a Local Government until after one month’s written notice of Intention to commence the same has been served upon the Local Government by the intending plaintiff or his agent.”
Further Section 116 of the Law provides as follows:-
Section 116
“The notice referred to in Section 115 and any summons or other documents required or authorized to be served on a Local Government in connection with any suit by or against such Local Government may be by delivering It personally to the Secretary to the Local Government or by registered post addressed to the Secretary to the Local Government, at the principal office of the Local Government.”
It is contended by the Appellant that the Respondent did not comply with the provision of the law, thus a condition precedent for the lower court to assume jurisdiction was absent and all steps taken by the lower court are a nullity, relying on the authority of U.A.C. VS MCFOY (supra} and MADUKOLU VS NKEMDILIM (supra). It was further contended that the purported notice written and served by the Respondent was never served on the Appellant as same was addressed to, The Unit Head, Revenue Collection Unit, Motorist Daily Ticketing, Abuja Municipal Council, Suite 124, Banex Plaza, Plot 750, Aminu Kana Crescent, Wuse II, Abuja, which is not the secretariat of the Appellant. It was therefore argued that the secretariat of the Appellant is Abuja Municipal Area Council, Area 10, Garki, Abuja, and not Banex Plaza in Wuse II.
The Respondent’s contention on this issue was that the condition precedent relied upon by the Appellant was not pleaded and the Appellant was raising same for the first time on appeal. He relied on the cases of NNPC VS. EVWARI (supra); NNONYE VS ANYICHIE (supra); and KATSINA NATURE AUTHORITY VS. MAKUDAWA (supra); With due respect to the learned counsel, the cases referred to or cited in support of this contention are not on all fours with the instant appeal and are therefore of little or no relevance whatsoever to the case of the Respondent. The Appellant was completely unaware of the case against it, so the issue of filing a defence to which it could raise the issue of non service of the pre action notice does not arise. It is clear from the records and as contended by the Appellant that the Appellant’s Secretariat is at Area 10 Garki; FCT, Abuja and not Suite 124 Banex Plaza, Plot 750, Aminu Kano Crescent, Wuse II, where the letter was addressed to.
It is trite that where a statute requires that there should be a pre-action 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 UGUANYI VS. N.I.C.O.N. PLC (2004) 15 NWLR (PT.S97) 612; OKAFOR VS UKADIKE (2009) 1 NWLR (PT.1122) 259.
In the instant case, the notice was addressed to a place other than the secretariat of the Appellant, in the circumstances therefore, there was no service of pre-action notice on the Appellant as required by Section 115 of the Local Government Law (supra). 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 ought to be 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; NNPC VS TIJJANI (2006) 17 NWLR (PT.1007) 29; MORO LOCAL GOVERNMENT, KWARA STATE VS OYEBIYI (2006) 10 NWLR (PT.90B) 326.
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 pre-action 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 NNONYE VS. ANYIECHIE (2005) 5 NWLR {PT.910} 623; IJEBU-ODE LOCAL GOVERNMENT VS ADEDEJI BALOGUN & CO LTD (1901) 1 NWLR (PT.166) 136; 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 lower 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 115 of the Local Government Law. 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.
This issue is therefore resolved in favour of the Appellant against the Respondent.
This issue is therefore resolved in favour of the Appellant against the Respondent.
The conclusion therefore is that the appeal has merit and it is hereby allowed. The judgment of the lower court delivered on the 6th July, 2005 entering judgment in favour of the Respondent is hereby set aside for want of jurisdiction.
The Appellant is entitled to costs assessed at N50,000.00 against the Respondent.
Other Citations: (2009)LCN/3224(CA)
