Captain E.C.C. Amadi V.nigerian National Petroleum Corporation (2000)
LAWGLOBAL HUB Lead Judgment Report
UWAIS, C.J.N.
This is an interlocutory appeal. The appellant was plaintiff in the High Court of Lagos State, where he instituted a suit against the respondent as defendant claiming as follows:-
“(i) A declaration that his purported suspension and subsequent dismissal are wrongful, illegal, null, void and of no effect.
(ii) An order that the plaintiff is still the Head of Operations/Technical Department.
(iii) An order restraining the defendant, their servants, agents and/or privies from preventing the plaintiff from continuing his job as Head of Operations/Technical Department.
(iv) N18,700.00 (Eighteen Thousand, Seven Hundred Naira) being arrears of salaries from July, 1985 to April, 1987 at the rate of N850.00 (Eight Hundred and fifty Naira) per month and thereafter at the same rate of N850.00 (Eight hundred and fifty Naira) until judgment.
ALTERNATIVELY
(v) N1,000,000.00 (One Million Naira) being special and general damages for unlawful, irregular and malicious determination of the plaintiff’s employment and/or breach of plaintiff’s contract of service with the defendants.”
Pleadings were filed and exchanged. As part of its defence, the defendant averred as follows in paragraphs 33 and 34 of its Statement of Defence:-
“33. The defendant would at the hearing of this suit raise the issue of law that the court has no jurisdiction to hear this matter in view of the provisions of section 3(3) of the Civil Service Commissions and Other Statutory Bodies (Removal of Certain Persons from Office) Decree No. 16 of 1984.
- The defendant would also at the hearing of this suit raise the issue of law that the suit is incompetent for the plaintiff’s failure to comply with the provisions of sec. 11(2) of the Nigerian National Petroleum Corporation Act 1977 in that no written notice of his Intention to commence this suit wherein the cause of action, particulars of claim, relief claimed and place of abode of the plaintiff should have been stated was served by the plaintiff on the defendant. Whereupon the defendant contends that the plaintiff’s claim is frivolous and misconceived and should be dismissed with cost.”
This was followed by a motion on notice by the defendant praying the High Court to strike out the suit for want of jurisdiction. The motion was heard by Silva, J. on the 15th day of April, 1988. In a considered ruling delivered on the 20th day of June, 1988, the learned judge upheld the preliminary objection raised by the defendant and struck out the suit for lack of jurisdiction.
Dissatisfied with the ruling, the plaintiff appealed to the Court of Appeal. His appeal was dismissed by the Court (Ademola, J.C.A., Babalakin, J.C.A., as he then was, and Awogu, J.C.A.). In doing so, the court stated thus, Per Awogu, J.C.A. who wrote the lead judgment – which was supported by other members of the panel)
” … in the instant appeal, the wording of section 11(2) (of the Nigerian National Petroleum Corporation Act) is clear enough on the form of the Notice. Exhibit B falls short of the requirement. Accordingly, the appeal fails and is hereby dismissed …”
The plaintiff has appealed further to this court challenging the decision of the Court of Appeal. Briefs of argument were filed and exchanged by the parties. In the appellant’s brief, four issues have been postulated for our determination. The issues read thus –
“(a) Whether or not Exhibit ‘B’ (i.e. letter of demand from appellant’s Solicitors) is a valid notice within the meaning and intendment of the N.N.P.C. Act, 1977.
(b) Even if Exhibit ‘B’ is not a valid notice (which is denied), whether or not such privileges as conferred by section 11(2) of the N.N.P.C. Act, 1977 extend to suits for breach of contracts of employment such as in the instant case.
(c) Whether or not the Court of Appeal judges (sic) have occasioned injustice to the appellant when they failed to appreciate the need for them to be guided by the issues raised for determination before them and therefore failed to appreciate the case before them properly and/or failed to invoke the provisions of section 6 of the 1979 Constitution.
(d) Whether or not the respondents knew or could have known the appellant’s place of abode as at the time of Exhibit ‘B’.
“While the respondent’s brief raised three issues for us to determine
3.01. Whether Exhibit B (the letter of demand from the appellant’s Solicitors to the respondent) is a valid Notice within the provisions of Section 11(2) of the N.N.P.C. Act.
3.02. Did the appellant suffer any ‘miscarriage of justice’ because the Court of Appeal failed to pronounce on whether the Notice contemplated by Section 11(2) of the N.N.P.C. Act applies to suits for breach of contract of employment.
3.03. Whether lack of knowledge of the appellant’s place of abode was the basis for the decision of the Court of Appeal.
As can be observed, respondent’s issues for determination correspond with issues (a) (b) and (d) of the appellant’s issues respectively though differently expressed. Appellant’s issue (c) is not based on any of the three grounds of appeal contained in his notice of appeal. It therefore goes to no issue. The respondent is also right when it raised preliminary objection in its brief of argument which it termed “Rejoinder”, that the constitutional point touched by the issue was not raised in the Court of Appeal. I am inclined to discountenance the issue because it is not supported by a ground of appeal and not for the reason stated by the respondent since any challenge to jurisdiction, being fundamental, could be raised at any time and in this court even if not raised in the lower courts.
The facts of this case as relevant to the case are briefly as follows.
The appellant was employed by the respondent by a letter dated 17th November, 1978 as a Senior Supervisor. He rose in the employment to the position of a Tanker Captain. On 17th July, 1985, a query was issued by the respondent to the appellant and at the same time he was suspended from duty on half pay. Despite this, the appellant claims that he did not receive any pay during the suspension period. By a letter reference No. AD/PER./C.1996/442 of 31st December, 1986, addressed to the appellant by the respondent, the former was dismissed from its employment. The letter which was marked as Exhibit “A” annexed to the appellant’s counter-affidavit in the High Court A. It reads as follows:
Nigerian National Petroleum Corporation, Falomo Office Complex, Ikoyi, PMB 12701, Lagos
Ref: AD/PER/C.1996/442 Date: 31st December, 1986.
Mr. E.C.C. Amadi,
3B, Ajijedidun Street,
Agunlejika,
Ijesha- Tedo,
Lagos.
Dismissal
This is to inform you that the Management of the Corporation has decided to dismiss you from services of the Corporation. You are hereby dismissed with effect from 31st December, 1985.
You should therefore hand over all the Corporation’s property in your care to your Head of Department and make immediate arrangements for settlement of any indebtedness to the Corporation.
(Signed) B. Mokwe (Mrs.)
For: General Manager, A & P.”
The appellant contended that his dismissal was contrary to his condition of service and was therefore “discriminatory, wrongful, irregular, malicious and ill motivated.”
By a letter dated the 29th January, 1987 written to the respondent by his Solicitors, Idowu Sofola & Co., which was annexed to his counter-affidavit and marked as Exhibit “B”, reference was made to the letters which suspended the appellant from duty and dismissed him respectively. Exhibit “B” reads in part thus
” …The corporation’s acts of suspension and dismissal are malicious, wrongful, unlawful, null and void and of no effect.
We are instructed to demand an immediate withdrawal of the letters of suspension and dismissal and the prompt reinstatement of our client on his job. In the alternative, our client claims a sum of N1,000,000.00 (One million Naira) as special and general damages.
We sincerely hope that you will save the embarrassment, inconveniences unpleasantness and expenses which may attend a litigation.
TAKE NOTICE that unless within 7 (Seven) days hereof, the demands herein are met, we shall be compelled to comply with our client’s further instructions by instituting legal proceedings against you without any further notice from our Chambers, a situation which we hope you will not allow to happen in your own interest.
Yours faithfully,
(Signed)
IDOWU SOFOLA & CO.
IS/32/87/ca.”
Three months after Exhibit “B” was served on the respondent, a writ was taken out of the High Court of Lagos State on 29th April, 1987 by the Solicitors on behalf of the appellant. Later, pleadings were filed and exchanged between the parties. In its Statement of Defence, the respondent raised the issue of insufficiency of notice to sue in paragraphs 33 and 34 thereof, quoted above.
At the hearing of this appeal, both counsel for the parties adopted their briefs of argument and did not advance any oral argument. I intend to consider together all the three issues raised by the appellant, which I consider valid.
The appellant argues that the address of his Solicitors contained in Exhibit ‘B” to his counter-affidavit suffices as his own personal address in meeting the requirement of section 11 subsection (2) of the Nigerian National Petroleum Corporation Act, 1977 (now section 12(2) of Cap. 320 of the Laws of the Federation of Nigeria, 1990). It is being canvassed that the section envisages that a prospective plaintiff may validly serve a notice on the respondent either by himself or by his agent including a solicitor. It is submitted that where the provision of a statute is clear and unambiguous, it admits of no qualification since the overriding principle for interpretation of statutes is that the courts have a duty to discover the intention of legislature as deducible from the language of the statute to be construed. The cases of Sode & Ors. v. A.-G., of the Federation & Ors., (1986) 2 NWLR (pt.24) 568; Anisminic v. Foreign Compensations, (1969) 2 A.C. 147 and Barclays Bank v. Central Bank of Nigeria, (1976) 1 All NLR (Pt.1) 409 are cited in support.
Appellant refers to the ratio of the Court of Appeal’s decision in holding that the notice given to the respondent was insufficient and its reliance on the case of Bright v. E.D. Lines Ltd. & Anor, (1952) 20 NLR 79. He submits that the decision is erroneous because the Act in question contemplates that a potential plaintiff may bring an action against the respondent through his agent. It is argued in the alternative that if section 11(2) is considered to be capable of having two meanings, then, the meaning which preserves the jurisdiction of the court should be adopted in line with the decision of this court in Sode’s case (supra). It is further argued that the facts of Bright’s case (supra) relied upon by the Court of Appeal are distinguishable from those of the present case because in the former case, the prescribed notice was addressed to the wrong person not specified by the Railway Ordinance, which is not the situation in the present case. The purpose for which the notice under section 11(2) is required is argued to be that the prospective defendant is not taken by surprise but given sufficient time to prepare to deal with the claim in its defence as laid down by this court in the case of Katsina Local Government v. Makudawa, (1971) 1 NMLR 100 at p.107.
Appellant argues further that this court has held on a number of occasions that to do substantial justice, it will rely on substance rather than form – See Aliyu Bello & 13 Ors. v. A.-G., of Oyo State, (1986) 5 NWLR (Pt.45) 828. It is submitted that if the address in Exhibit B was not sufficient, the respondent cannot claim or be considered not to know the address of the appellant in view of his address written by the respondent in the letter of 31st December, 1986 dismissing him from service, which preceded Exhibit “B” written on 29th January, 1987.
With regard to issues (b) and (d), it is argued that the Court of Appeal was in error for not considering, in line with the decisions in the cases of A.-G., Anambra State v. Onuselogu Enterprises Ltd., (1987) 4 NWLR (Pt.66) 547; Uhunmwangbo v. Okojie (1989) 5 NWLR (Pt.l22) 471 and U.BN v. Nwaokolo (1995) 6 NWLR (Pt.400) 127 at p. 149, having held that Exhibit “B” was not sufficient notice, that whether the provisions of section 11(2) can apply to Common Law actions for breach of contract including contract of employment as was held in NP.A. v. Construzioni Generali & Anor. (1974) 12 S.c. 81 which differs from the earlier decision in the case of N.B.C. v. Bankole (1972) All NLR (Pt.l) 327. Other cases cited in support of the submission are Salako v. L.E.D.B. and Anor., 20 NLR 189 and Midland Rly Co. v. Local Board (1882-3) 11 QBD 788.
In reply, the respondent argues in its brief that section 11(2) makes it mandatory for the appellant to give the respondent prescribed thirty day’s notice and that the notice should contain the following details – (i) cause of action; (ii) particulars of claim, (iii) the name and place of abode of the intending plaintiff and (iv) the relief which he claims should be clearly and explicitly stated. That these provisions which are similar to those of section 97(2) of the Nigerian Ports Authority Act, 1952 must be complied with strictly. It cites the case of Umukoro v. N P.A. (1997) 4NWLR (Part 502) 656 at p. 667D and Montosa Nig. Ltd. v. N P.A. Suit No. ID/685/83 (unreported) judgment delivered on 31st March, 1987 by Onalaja, J. (as he then was). It is submitted that the solicitor’s address given by the respondent in Exhibit “B” is not sufficient to meet the requirement of section 11(2) which provides that the “name and place of abode of the intending plaintiffs, shall clearly and explicitly” be “stated”. Since these words are clear and unambiguous, they must be given their grammatical and ordinary meanings in accordance with the decisions in – Bronik Motors v. Wema BankLtd. (1983) 1SCNLR 296; NICON v. Power & Industrial Eng. Co. Ltd., (1986) 1 NWLR (Pt.l4) 1; (1986) I S.C. 1; Kaycee Nig. Ltd. v. Prompt Shipping Co. Ltd. (1986) 2 NWLR (Pt.23) 458; (1986)I S.C; Abaye v. Ofili & Anor (1986) 1NWLR (PU5) 134; (1986) 1 S.C. 231; N.P.A. v. Ali Akar & Sons (1965) 1 All NLR 259 at p. 263 G-H; Owena Bank Nig. Plc v. N.S.E. Ltd. (1997) 8 NWLR (Pt.515) 1 at p. 15H and 7up Bottling Co. Ltd. v. Abiola & Sons Ltd. (1995) 3 NWLR (pt.383) 257 at p. 276 B-C. Again, it is argued that Exhibit B did not state the particulars of claim as prescribed by section 11(2) and the learned trial Judge so found that the failure of the appellant to comply with all the provisions of section 11(2) is fatal and renders the suit incompetent. The cases of Katsina Local Govt. v. Makudawa, (supra) at Pp. 105-6 and Anambra State Government v. Nwankwo (1995) 9 NWLR (Pt. 418) 245 were cited in support of the argument.
Respondent concedes that two issues were raised in the Court of Appeal for the consideration of the court but only one issue was dealt with by the Court of Appeal. The second issue not considered reads – “Whether the notice contemplated by section 11(2) of the N.N.P.C. Act applies to suits for breach of contract of employment.” It is being argued by the respondent that the questions to be considered are: “Is the decision of the Court of Appeal in not considering the second issue prejudicial to the appellant” or “Did the appellant suffer a miscarriage of justice because of this error” Relying on the decisions in Devi v. Roy, (1946) A.C. 508 at P. 521; Herbert v. Lankershim, 71 P. 2d. 220 at pp 253-4 paragraphs 26-28 and Alcorn v. Davies 343 p. 2d 621 at Pp. 625-626 paragraphs 9-11 the respondent submitted that not all errors lead to miscarriage of justice but errors that are substantial with the resulting effect that the appellant may likely have a judgment in its favour in the absence of the error. It is contended that the appellant in the present case is not likely to have judgment in his favour even if it is suggested that section 11(2) does not apply to contract between the parties because it affords absolute protection to the respondent. Reference is being made to the decision of this court in N.P.A. v. Construzioni (supra) at p. 99 on the provisions of section 97(2) of the Ports Authority Act, 1954 (Cap. 155 of the Laws of the Federation of Nigeria, 1958) which has the same provisions as section 11(2) of the Nigerian National Petroleum Act, 1977. Finally it is submitted that section 11(2) would not afford protection to the respondent on an action founded on contract except where it could be shown that the contract is “done, omitted or neglected to be done under the powers granted by the Act.” That the contract of employment entered into between the appellant and the respondent was bound to make in accordance with provisions of section 3(1) of the Nigerian National Petroleum Corporation Act which provides –
“3(1) Subject to this Act, the Corporation may appoint such persons as members of staff of the Corporation as it considers necessary and may approve conditions of service including provision for the payment of pensions.”
At the end of the addresses by counsel for the parties, the appeal was adjourned for judgment. However, a few days later, counsel for the respondent wrote two letters to the court citing the following cases in support of the respondent’s case- N.N.P.C. v. Fawehinmi (1998) 7 NWLR (Pt.559) 598;Atolagbe v. Awuni (1997) 9 NWLR (Pt.522) 536; Obeta v. Okpe! (1996) 9 NWLR (Pt. 473) 401 and Fawehinmi Construction Co. Ltd. v. O.A. U. (1998) 6 NWLR (Pt. 553) 195. Counsel for the appellant also sent a letter on the same day (9th March, 2000) as the respondent’s first letter, citing two cases, namely, Santana Medical Services v. N.P.A. (1999) 12 NWLR (Pt.630) 189 at p. 202 and Amao v. Civil Service Commission, (1992) 7 NWLR (Pt. 252) 214 at Pp. 228-9 which he stated to have approved the decision in N.P.A. v. Construzion Generali (1974) 12 S.C. 81 earlier cited by him in support of the appellant’s case.
Now, it is necessary to point out that although the jurisdiction of the trial court to entertain the plaintiff’s action was challenged in paragraphs 33 and 34 of the defendant’s statement of defence, on the basis of the provisions of section 3(3) of the Civil Service Commission and Other Statutory Bodies Decree, No. 16 of 1984 and section 11(2) of the Nigerian National Petroleum Corporation Act, 1977, the motion on notice the defendant brought merely asked the trial court to strike out the action on the ground that the appropriate notice under the 1977 Act was not given to the defendant before the action was commenced. It is therefore, to be noted that the courts below based their decisions on the provisions of the 1977 Act only and rightly made no reference whatsoever to the provisions of section 3(3) of the 1984 Decree.
Section 11 of the 1977 Act is in two parts. It provides –
“11(1) Notwithstanding anything in any other enactment, no suit against the Corporation, a member of the Board or any employee of the Corporation for any act done in pursuance or execution of any enactment or law, or of any public duties or authority, or in respect of any alleged neglect or default in the execution of such enactment or law, or of any public duties or authority, shall lie or be instituted in any court unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof.
(2) No suit shall be commenced against the Corporation before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the Corporation by the intending plaintiff or his agent and the notice shall clearly and explicitly state the cause of action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief which he claims.”
While subsection (1) deals with the limitation of the time within which an action could be commenced against the Corporation, subsection (2) provides that one month notice of intention to sue must be given to the Corporation before the action is commenced. In the present case, we are only concerned with the provisions of subsection (2) upon which the defendant relied in bringing the motion in the High Court for the plaintiff’s action to be struck out for want of jurisdiction. The word “shall” as underlined above, appears three times in subsection (2).
It is settled that the word “shall”, when used in an enactment is capable of bearing many meanings. It may be implying futurity or implying a mandate or direction or giving permission – See Ifezue v. Mbadugha, (1984) 1 SCNLR 427 at Pp. 456 – 7. In the present case, we are concerned with whether it has been used in a mandatory sense or directory sense. If used in a mandatory sense, then the action to be taken must obey or fulfill the mandate exactly; but if used in a directory sense then the action to be taken is to obey or fulfill the directive substantially – See Woodward v. Sarsons, (1875) L.R. 10 C.P. 733 at p. 746; Pope v. Clarke (1953) 1WLR 1060; Julius v. Lord Bishop of Oxford (1880) 5 A.C. (H.L.) 214 at Pp. 222 and 235 and State v. Ilori (1983) 1 SCNLR 94 at P.110. In Liverpool Borough Bank v. Turner (1861) 30 L.J. Ch. 379 at P. 657 it was held –
“No universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try and get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.”
It appears to me that the first “shall” in subsection (2) imports obligation. No suit could be commenced against the Corporation until a period of one month expires after giving a prescribed notice. The second “shall” seems to me to import obligation also. Before suing the Corporation a notice of intention to commence the suit must be given to the Corporation. However, I am of the opinion that the third “shall” connotes direction in the sense in which it is used. It describes the particulars to be contained in the notice of intention to sue.
While the issuance of the notice by a prospective plaintiff is mandatory, the particulars to be included in the notice, which are cause of action, particulars of claim, name and place of abode of the intending plaintiff and the relief to be claimed – appear to me to be directory. As was held by this court per Coker, J.S.C. in the case of Katsina Local Government v. Makudawa (1971) I NMLR 100 at 107, the purpose of giving notice of claim to the Local Government of the claim against it is that it is not taken by surprise but to have adequate time to prepare to deal with the claim in its defence. The purpose of the notice “is not to put hazards in the way of bringing litigation against it.” Furthermore section 23 of the Interpretation Act, 1964 (now Cap. 192 of the Laws of the Federation of Nigeria, 1990) provides:-
“23. Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purposes of the enactment by reason only of the difference if the difference is not in a material particular and is not calculated to mislead. ”
In upholding the application brought by the defendant for the suit to be struck out for want of jurisdiction, the learned trial Judge held as follows:-
“What falls for decision in this preliminary point of law is whether or not the solicitor’s letter Exhibit B annexed to the plaintiff/respondent’s counter-affidavit is a notice as required by Section
11(2). If it is accepted as a notice, the next question must be – is it a valid or proper notice
There is no doubt that Exhibit B was duly delivered to the defendant/applicant by the plaintiff’s agent i.e. his solicitor. The fact of delivery is not disputed. My view of Exhibit B is that it is the usual solicitor’s demand letter. It could serve as notice, but to do this, it must strictly comply with the provisions of Section 11(2) which says “the notice shall clearly and explicitly state …” all the four specific requirements which are in my view conjunctive. If anyone of them is missing, the notice must for that reason be bad.
In my judgment, the only requirements that are clear and explicit in Exhibit B are the cause of action, and the relief sought. These are the allegation of unlawful dismissal, and the demand for reinstatement or alternatively, N1,000,000.00 special and general damages respectively. There are no particulars of claim shown in Exhibit B, and the plaintiff’s place of abode is nowhere shown on it. I am unable to accept the submission of learned counsel for the plaintiff that the place of abode of plaintiff’s agent i.e. his solicitor, will suffice. What Section 11(2) says is “place of abode of the intending plaintiff. This is clear and unambiguous. It does not in my view permit any addition which would bring into it the place of abode of the plaintiff’s agent in the alternative.
From the foregoing, it is clear that the condition precedent set by Section 11(2) has not been met by the plaintiff/respondent. He cannot therefore commence this action. In the circumstance this court has no jurisdiction to entertain the suit. It will be and it is hereby struck out.
It is clear from the foregoing that the plaintiff’s action was struck out by the learned trial Judge because Exhibit “B” did not, according to him, satisfy the requirements of section 11(2) particularly as it did not “clearly and specifically state … all the four specific requirements which are in my view, conjunctive. If anyone of them is missing, the notice must for that reason be bad. In my judgment, the only requirements that are clear and explicit in Exhibit “B” are the cause of action and the relief sought.” The particulars missing from Exhibit “B” were held to be the particulars of claim and the place of abode of the plaintiff’s solicitor, who acted as the plaintiff’s agent.
On its part, the Court of Appeal dismissed the appellant’s appeal also on the basis that the form of notice given to the defendant was insufficient. It held Per Awogu, J.C.A. –
” …the wording of section 11(2) is clear enough on the form of the Notice. Exhibit B falls short of the requirement. Accordingly, the appeal fails and it is hereby dismissed …”
Could it rightly be held, as was done by the learned trial Judge and upheld by the court below that the fact that the appellant failed to state in Exhibit B, the particulars of claim and his place of abode, the notice is null and void It is significant that the learned trial Judge found that the first two requirements of section 11(2) which I have held to be mandatory, had been met by the plaintiff. The third requirement which I have held to be directive was partly met by the plaintiff as held by the learned trial Judge. It is again significant and curious that on the question of place of abode, the learned trial Judge expected that of the Solicitor who wrote Exhibit “B” to be given and not that of the intending plaintiff as stated by section 11(2). Be that as it may, could the missing particulars in Exhibit B amount to “material particular” and is “calculated to mislead” the defendant as laid down by section 23 of the Interpretation Act
I do not consider the place of abode of the plaintiff as material to expressing his intention to sue the defendant. After all, should the plaintiff issue a writ of summons, which he did later, his address of service would be contained in the writ. At any rate, the plaintiff was no stranger to the defendant having been its employee and having been shown to have exchanged correspondence with the defendant after his suspension from duty and dismissal. Perhaps the situation would have been different had the defendant been dealing with a complete stranger and not its employee. Again, as to the particulars of his claim, these can clearly be gathered or inferred from Exhibit “B” which stated that the plaintiff’s dismissal was “in total disregard of the Conditions of Service and all rules and procedure” and that his suspension from duty and dismissal were “malicious, wrongful, unlawful, null and void and of no effect.”
It follows that in my opinion, all the requirements of section 11(2) had been met by the plaintiff. The trial court and the Court of Appeal were in error and misdirected themselves when they held otherwise.
With these, I have dealt with issues (a) and (d) in the appellant’s brief of argument. Issue (b) is based on whether Exhibit “B” is not a valid notice under section 11(2). This does not arise since I have held that Exhibit B has met the requirements of the section. The question, therefore, becomes hypothetical and academic. Consequently, it will be futile and out of place for us to determine it. As for issue (c), I have already held that it is incompetent since it is not hinged on any of the three grounds of appeal filed by the appellant.
Perhaps, I should comment on ground B in the appellant’s notice of appeal. This ground complains that the Court of Appeal failed to consider appellant’s second issue for determination before it and that the failure occasioned miscarriage of justice. Unfortunately, none of the issues for determination formulated before us touches on the complaint. The ground of appeal, not supported by any issue, becomes incompetent. Paragraph 3.10 of the appellant’s brief of argument argues the complaint in the ground of appeal. This is irregular and goes to no issue. It is unacceptable since there is no issue formulated on the ground. The respondent also acted in vain when it replied to the appellant’s contention in this regard in paragraphs 5.18 to 5.39 of its brief of argument.
Finally, this appeal succeeds and it must be allowed. The chequered history of this case once more brings to light the dilatory effect of interlocutory appeal on the substantive suit between parties. The action in this case was brought on the 29th day of April, 1987. The motion on notice to strike out the case for want of jurisdiction is dated 15th day of April, 1988; that is about a year after the suit was filed. The ruling of the High Court was delivered on the 20th day of June, 1988.
The appeal against the ruling was delivered by the Court of Appeal on the 16th day of February, 1989. The final judgment on the interlocutory appeal is delivered today by this court. It has thus taken thirteen years for the case to reach this stage. With the success of the plaintiff’s appeal before us, the case is to be sent back to the High Court to be determined, hopefully, on its merits after a delay of 13 years. Surely, this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on merit in the proceedings as the case might be. I believe that counsel owe it, as a duty, to the court to help reduce the period of delay in determining cases in our courts by avoiding unnecessary preliminary objections as the one here; so that the adage ‘justice delayed is justice denied’ may cease to apply to the proceedings in our courts.
On the whole, the appeal succeeds and it is hereby allowed with N10,000.00 costs to the appellant against the respondent. The case is hereby remitted to the High Court of Lagos State to be heard by another judge other than A.O. Silva. J.
SC.114/1997
