Dominic E. Ntiero V Nigerian Ports Authority (2008)
LAWGLOBAL HUB Lead Judgment Report
A. AKINTAN, J.S.C.
The appellant, Dominic Ntiero, was an employee of the respondent. He was the Senior Industrial Relations Officer. He had served the respondent for about 14 years before the dispute that led to this case arose between him and his employer. It was shortly after he was transferred to Warri that he received a letter on 6th June, 1984 by which he was interdicted without pay. The appellant’s reaction was first to appeal to the appropriate officers of the respondent to rescind the letter of interdiction written to him. There was however no favourable reply to his plea for reconsideration of his case. Rather than withdraw the interdiction letter, he received another letter by which he was dismissed from the services of the respondent.
The appellant, as plaintiff, therefore commenced this action at Calabar High Court. His claim as set out in his amended particulars of claim is as follows:
“1. A declaration that the order interdicting the plaintiff from service of the defendant is unlawful, null and void.
- A declaration that the termination of the plaintiff s appointment is unlawful and is null and void.
- A declaration that the purported retirement of the plaintiff from the service of the defendant is unlawful, null and void and of no effect.
- A declaration that the plaintiff is still in the service of the defendant.
- N50,000 damages for wrongful interdiction. ”
The respondent, as defendant, reacted by raising a preliminary objection to the competence of the action on the ground that a pre-action notice was not served on it by the appellant as provided for in section 97 of the Ports Act. The learned trial Judge over ruled the objection. The respondent thereafter filed its statement of defence and again raised the same objection therein and the trial then commenced. The plaintiff led evidence in support of his pleadings. But the defendant did not lead any evidence in defence. Part of the evidence led by the plaintiff was that he wrote a letter dated 18th June, 1984 (exhibit 6) which was written in compliance with the provisions of section 97(2) of the Ports Act.
The learned trial Judge, in his reserved judgment held that the provisions of section 97 of the Ports Act did not apply to the plaintiff’s case as his claim was based on contact. Judgment was accordingly entered for the plaintiff on three of his five heads of claim and granted the declarations sought.
The respondent was dissatisfied with the judgment and it filed an appeal against it to the court below. The court below held that the appellant failed to comply with the provisions of the said section 97(2) of the Ports Act and that the appellant’s letter, Exhibit 6, did not comply with the requirements of the said section.
The appeal was therefore allowed in that the trial court was without jurisdiction to entertain the case. This appeal is from the judgment of the court below.
The parties filed their briefs in this court. The appellant formulated the following two issues as arising for determination in the appeal:
“1. Whether the provisions of sections 97 (2) and 98 of the Ports Act are valid and constitutional.
- If so whether sections 97(2) and 98 Ports the appellant (founded on a contract of service) and whether (or not that is the case whether) the Court of Appeal was right that non-compliance with the said provisions deprived the trial court of jurisdiction.”
The respondent, on the other hand, formulated only one issue which is:
“Whether there was no absence of the pre-action notice which renders the appellant’s suit in competent.”
The appellant had, in its brief, invited this court to review or depart from its previous decisions in N.B.C. v Bankole (1972) 1 All NLR (Part 1) 327; and NNPC v. Amadi (2000) 10 NWLR (Pt. 674) 76, both cases were pre-action notice actions. But at the hearing in this court, Mr. Opasanya, learned Counsel for the appellant abandoned the request relating to a review or departure from those previous decisions on the point.
It is the contention of the appellant, as canvassed in the appellant’s brief that the appellant in fact complied with the pre-action notice as prescribed in sections 97(2) and 98 of the Ports Act (now sections 110 and 111 of Ports Act, Cap. 361, Laws of the Federation 1990). Reference is made in this respect to a letter dated 18th June, 1984 written by the appellant to the General Manager, Nigerian Ports Authority, Lagos and admitted at the trial as Exhibit E. The letter is headed: “Interdiction – A Confederacy of Injustice.” The letter is reproduced on pages 16 to 18 of the printed record of appeal. Although the letter was an appeal by the appellant to the respondent’s General Manager for a review of the interdiction order without pay imposed on him, learned counsel for the appellant, however, urged us to infer that the letter passed as the required pre-action notice.
The appellant having rightly abandoned his request for us to over rule our previous decisions in respect of pre-action notice, what is left to be determined in this appeal therefore is whether there is sufficient evidence on record to support the contention of the appellant that there was compliance with the requirement of the mandatory statutory provision. The relevant provision is now section 110 (2) of the Ports Act (Cap. 361 Laws of the Federation 1990). It provides as follows:
“110 (2) – No suit shall be commenced against the Authority until one month at least after written notice of intention to commence the same shall have been served upon the Authority by the intending plaintiff or his agent. Such notice shall state the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims.”
The provisions as set out above are clear, direct, and mandatory. The required notice is expected to be given when the decision to commence an action has been taken and it must be given and served on the Chairman or Secretary of the Authority (as provided in section 111 of the Act) latest one month before the commencement of the action. The notice is also required to be in writing. It follows therefore that any purported notice which fails to meet any of the conditions specified in the section of the Act will be null and void. Any action commenced in breach of the provisions will also have been commenced without complying with one of the required due process or pre-condition and such action would be incompetent: See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
As I have already mentioned earlier above, the letter relied on in the appellant’s brief is one admitted as exhibit E at the trial. It reads as follows:
22, Ebuka Street
Calabar.
18th June, 1984.
The General Manger,
Nigerian Ports Authority,
Lagos.
Dear Sir,
INTERDICTION – A CONFEDERACY OF INJSTICE
I refer to your letter HQ/CR/OP/D.51/2580 dated 6th June, 1984 interdicting me without pay for a first offence of inordinate behaviour and hereby appeal to you, most respect fully to set up a tribunal to bear evidence in relation to the charge leveled against me on the following grounds:-
(a) The corresponding officer is a very interested party which is apparently responsible for him not to issue a query to me as demanded by section 1204 of the condition of Service Officers – the disciplinary procedure know to me and invoked in paragraph 2 of the aforementioned letter which is susceptible to embarrassing litigations.
(b) Irrespective of the fact that my response to the Port Manager’s Memo was regrettably in a high tone I still maintain that every fact unleashed therein is true and can be substantiated at all levels of judgment. This arose grossly from extreme provocation and I am by no means against fair disciplinary proceedings.
(c) That the letter of interdiction marked confidential endorsed to all Ports is scandalous and allows much to be desired. It is apparent therefore, that without any letter of shortcoming or criminal record since my tenure of office I am being programmed for elimination because I speak frankly and honestly at all times. Who can bear him out Is to say the least a sacrosanct to your mission. this NPA, too – than a confederacy of injustice developed within the body administration to perpetuate falsehood and malpractices.
- In effect, I would not have even bothered to react further but for the statement accredited to you as reported in the lead story of the Punch group of news-papers vol. 8 of 15th June, 1984 which 1 quote in part:-
“Alhaji Musa Ibrahim said some of the evils plaguing the Authority included embezzlement of NPA’s willful destruction of property, deliberate delay in carrying out official duty until bribe is given, taking official action in favour of self family or tribe at the expense of others, and collusion with contractors to inflate costs and prices for personal gains. “God knows we have the monster called indiscipline evident everywhere within the authority.” He remarked. ”
- On this grounds you are by no means new to the chauvinisms of the Department and the proceedings of the said tribunal shall afford you a starting down to earth revelations which is dearth to your progress in the arduous task of administering the authority.
I count on your jurisprudence please.
While I remain,
SGD (Dominic E. Ntiero) (P/M 2596)
Snr. Ind. Rels. Officer.”
It is clear from the contents of the above letter that it was not aimed as a pre-action notice as prescribed in the afore-mentioned section 110 (2) of the Ports Act. The contention of the appellant that the letter should be taken as conveying the required notice is therefore totally untenable.
It may be mentioned too that the document presented and relied on as the pre-action notice at the Court of Appeal was exhibit 6. That document was never sent to that court. But Akpabio, J.C.A. said as follows about the letter in the lead judgment of that court written by him:
“The said letter dated 18th June, 1984 is shown in the Index to the records under exhibits as ‘Not typed.’ The original has also not been sent to this court. However, the contents of the said letter is paraphrased at page 267 of the record by the plaintiff in the course of his evidence in chief as follows:-
“reacted to exhibit 5 by appealing to the General Manager of the 15t defendant to set up a tribunal to avoid embarrassing litigation. The appeal dated 18th June, 1984. This is a copy of my appeal. Seeks to tender. Admitted without objection and marked exhibit 6. I did not receive any reply to my letter of appeal. I later petitioned the Minister of Transport to prevail on the management to comply with the conditions of my employment.”
From the extract reproduced above, it will be seen in the 1st place that exhibit 6 was addressed to the General Manager, rather than to the Chairman or the Secretary of the Authority, as required by section 111 of the Act. Secondly, the said letter, exhibit 6, does not contain any statement as to what the ’cause of action is nor the name and place of abode of the intending plaintiff, and the relief which he claims as required by section 110 (2). The sum total of the above is that exhibit 6 cannot operate as pre-action notice.”
I entirely agree with the above view expressed by Akpabio, J.C.A. that the letter referred to as exhibit 6 in his judgment could not pass as a pre-action notice. It seems that it is probably the same letter that is the one now reproduced on page 16 to 18 of the printed record of appeal in this court as exhibit E which I have also reproduced above. I however have no doubt in holding that neither the document exhibit 6 relied on at the court below nor the exhibit E now relied on in this court, could pass as the required pre-action notice prescribed in section 110 (2) of the Ports Act.
I believe that a pre-action notice should be in the form of a letter usually written by a plaintiff or his Solicitor to the prospective defendant giving him notice of intention to institute legal proceedings against him for specified reliefs. As the appellant failed to comply with the legal requirement as stipulated in the afore-mentioned section 110 (2) of the Ports Act, his action was therefore incompetent.
The question whether the provisions of section 110(2) of the Act which prescribes for pre-action notice is inapplicable to the appellant because his claim was founded on contract does not arise. Section 110 (1) of the Act provides, inter alia, that “when any suit is commenced against the Authority or any servant of the Authority for any act done in pursuance or execution, or intended execution of any Act or law, duty or authority, such suit shall not lie or be instituted in any court unless it is commenced within 12 months next after the act, neglect, or default complained of “…. etc. The provisions of section 111(1) in my view, merely prescribe for a twelve month time limit within which any action against the Authority in respect of breaches of duties in relation to the items mentioned in the sub-section. The provisions relating to pre-action notice contained in section 110 (2) of the Act are independent of those in section 110 (1) of the same section. The question whether the appellant’s claim was founded on contract therefore could not prevent his action from being commenced without first complying with the pre-action notice.
In conclusion therefore, I hold that there is no merit in the appeal and I accordingly dismiss it with N50,000.00 costs in favour of the respondent.
SC.39/2001
