Mr. Ogbonnaya Odoemelam & Mr. I.C. Amadiume & Anor (2007)

LawGlobal-Hub Lead Judgment Report

NGWUTA, J.C.A.

This is an appeal against the ruling delivered in suit No. FHC/CA/CS/25/2003 by Ajakaiye, J. of the Federal High Court. Calabar division on 7th Oct., 2004.

The appellant operated a bar/shop between the “awaiting and departure lounges” at the Margaret Ekpo international Airport, Calabar as a tenant of the respondents. The respondents initiated the process of ejecting the appellant and terminating the tenancy with the letter No FAAN/500/CAL/Vol. 12 of 16/9/02 addressed by the respondents to the appellant. It appears the process was concluded in Feb. 2003 at the refusal of the respondents to allocate another shop/Bar to the appellant.

Aggrieved by the termination of his tenancy, the appellant issued a writ of summons on 17/3/03 on which were endorsed the following claims jointly and severally against the respondents (then defendants).

“1. An order declaring that the defendants’ sudden termination of the plaintiff’s tenancy of the bamboo bar/shop situate in between the awaiting and departure lounges of the Margaret Ekpo International (sic) Calabar and his ejection there from by the defendants is illegal, null and void and of no effect.

2. An order compelling the defendants to forthwith return/deliver all the plaintiffs properties caned away from the plaintiff’s Bamboo bar/shop in the Margaret Ekpo International Airport, Calabar to the plaintiff or in the alternative to pay the plaintiff the sum of N900.650.00 being the total value of the plaintiff’s properties.
3. The sum of seven million naira (N7,000,000.00) only for the defendants’ illegal and forceful ejection of the plaintiff from the bamboo bar/shop situate in between the awaiting and departure lounges of the Margaret Ekpo International Airport. Calabar.
4. General damages assessed at seven million, ninety nine thousand, three hundred and fifty naira (N7,099,350.00 only.”

Upon service on them of the statement of claim the respondents who had earlier entered a conditional appearance filed a notice of preliminary objection to the suit that:

i. The Honourable Court lacks jurisdiction to entertain the suit.

ii. The plaintiff/respondent’s claim is statute-barred.

iii. The plaintiff/respondent’s action is incompetent.

Grounds of Objection:

i. The plaintiff’s/respondent’s case is an action pertaining to the recovery of premises. Section 251 of the Constitution of Nigeria 1999 does not confer jurisdiction over recovery of premises or tenancy matters to the Federal High Court.

2. The plaintiff’s/respondent’s claim is statute-barred pursuant to section 2(a) of the Public Officers Protection Act Cap 379 Laws of the Federation 1990.
3. The plaintiff/respondent has not complied with the mandatory provision of sections 20(2) and 27 of the Federal Airport Authority of Nigeria Act No.9 of 1996 before instituting this suit.”

The learned trial Judge took the arguments of learned counsel for the parties and in a considered ruling over-ruled the preliminary objection on the first two grounds. However, his lordship upheld the preliminary objection on the 3rd ground, holding that

“since the condition precedent to instituting this suit, as to notice has not been fulfilled, I hold that the suit is not competent and I am unable to assume jurisdiction in respect of it. The suit is on that basis struck out.”

Aggrieved by the ruling, the appellant appealed on the lone ground that

‘The court was grossly misdirected when it held that the plaintiff did not in the statement of claim aver that pre-action notice was issued and served on the defendants before the commencement of the action and on that basis upheld the defendant’s preliminary objection.”

The parties herein, through their learned counsel, filed and exchanged briefs of argument.

In his brief, learned counsel for the appellant formulated the following issue for determination:

“whether from the state of the plaintiff’s pleading the trial court was justified to hold that the plaintiff did not issue and serve the mandatory pre-action notice before the commencement of the action.”

In his own brief of argument, learned counsel for the respondents presented the following issue for determination:

“Whether the lower court’s decision striking out the appellant’s suit due to the failure of the appellant to serve a pre-action notice on the respondent was correct.”

Contrary to the grounds of appeal and the issue framed therefrom the respondents’ issue assumes that the appellant did not serve a pre-action notice on the respondent. The service vel non of pre-action notice is the issue in contention between the parties. In view of this the issue framed by the appellant is more appropriate in the determination of the appeal and I therefore adopt same.

In his argument in his brief, learned counsel for the appellant submitted that the court in determining a preliminary objection must rely on the statement of claim. He relied on Dangadi v. Mobil Producing Nigeria Unlimited (2002) FWLR (Pt. 97) 659-675: (2002) 7 NWLR (Pt. 766) 482. Learned counsel argued that, contrary to the position taken by the learned trial Judge, the statement of claim clearly shows that the appellant did issue and served pre-action notice on the respondents. According to learned counsel, paragraphs 14 and 15 of the statement of claim show that the notice was issued and served. Counsel argued that the court cannot speculate on the contents of documents not before it to determine whether the pre-action notice satisfied the requirement of the law. This, according to counsel, is an issue to be determined after a full hearing of the matter. He relied on

Dangadi v. Mobil Producing Nigeria Unlimited supra Bangbegbia v. Oriare (2001) 5 NWLR (Pt. 707) 628 and Adeforo v. Ogunleye (2000) FWLR (Pt. 26) 1833. He urged the court to allow the appeal, set aside the ruling of the lower court and restore the case in the cause list for determination. In his argument in his brief, learned counsel for the respondent referred to Ss. 26(2) and 27 of the Federal Airport No.9 of 1996 setting up the 2nd respondent and submitted that no action can be instituted against the 2nd respondent without a prior service of a pre-action notice. He relied on Ugwuanyi v. NICON Insurance Plc. (2004) 15 NWLR (Pt.897) 639 paras D – F: Babalola v. Osogbo Local Govt., (2003) 10 NWLR (Pt. 829) 465 at 486 paras C – E. Fayemi v. Local Govt. Service Commission Oyo State (2005) All (sic) FWLR (Pt. 254) 901 and S.149(d) of the Evidence Act. He urged the court to dismiss the appeal. On the argument that the appellant should have exhibited the pre-action notice in a counter-affidavit, learned counsel for the appellant in his reply brief argued it would not be proper to file a counter-affidavit when there is no affidavit. He repeated his argument that whether or not there was a pre-action notice consisting of the letters pleaded is an issue to be determined at the trial not in limine.

A preliminary objection to the competence of a suit is a pre-emptive strike aimed at scuttling the suit in limine. By the mere commencement of the action the plaintiff is claiming to have fulfilled all conditions necessary to present his case to the court for determination. If there is an objection to the contrary, the issue will be determined by reference to the plaintiff’s statement of claim. It therefore follows that contrary to the argument of the appellant the court cannot resort to taking evidence to determine the objection. Evidence will be required if the ground of objection is pleaded as a special and statutory defence in the statement of defence in which case it becomes a defence and not a preliminary objection. See Umukoro v. NPA (1997) 4 NWLR (Pt. 502) 656, Fadare v. A.-G., Oyo State (1982) 4 SC 1 and NBC v. Bankole (1972) 4 SC 94. I therefore, reject the argument of the learned counsel for the appellant that the trial cour1 should have heard evidence to determine whether or not the letters pleaded constituted pre-action notice. However, I agree with the appellant that the court cannot speculate on the contents of letters not before it.

From the arguments of learned counsel for the parties the necessity of pre-action notice is not in dispute. Since pre-action notice is a condition precedent to the institution of the suit, the onus is on the appellant to satisfy the court that the condition was fulfilled and the only way he can do this on the facts before the court is to show that he pleaded the notice in the statement of claim.

In this regard the appellant relied on paragraphs 14 and 15 of the statement of claim as proof that the appellant gave the pre-action notice. The paragraphs are reproduced hereunder:

“14 The plaintiff further avers that upon briefing the aforesaid law office, a letter dated the 2nd day of October 2002 with reference No SO/Vol.1/MIC9/2002 and addressed to the 1st defendant was issued and served on him (the 1st defendant) The plaintiff barely pleads the letter.

15. The plaintiff further state that at his instance another letter addressed to the Managing Director of the 2nd defendant and dated 2/10/2002 was written by his aforesaid solicitors. The said letter was accordingly served on the Managing Director of the 2nd defendant. The said letter with reference No SO/Vol.1/MIC/10/2002 is barely pleaded and shall be trial of the matter.” There is no mention of pre-action notice either in any of the two paragraphs reproduced or anywhere else in the statement of claim. The letters pleaded in paragraphs 14 and 15 of the statement of claim constitute pre-action correspondence from the appellant to the respondents. However while a pre-action notice is within the definition of pre-action correspondence not every pre-action correspondence satisfies the requirement of a pre-action notice. The letters pleaded were not before the court and as rightly argued by the learned counsel for the appellant the court cannot speculate on the contents of the letters to determine whether or not they constitute pre-action notice. As I stated earlier, the preliminary objection is a pre-emptive strike and its success vel non is determined from the statement of claim. Since there is nothing to show that the letters are pre-action notices or that any notice was given before the commencement of the action the appellant has failed to show that he fulfilled a condition precedent to the institution of the action. In Santos v. Epe Native Authority (1943) 17 NLR 67 it was held that a letter forming pal1 of a correspondence written without prejudice cannot be relied on 10 prove that a notice was given. In N.N.P.C. v. Fawehinmi (1998) 7 NWLR (Pt. 559) 598 the court held that if pre-action is not given when it is provided for in a statute the suit is incompetent and ought to be struck out. Above all, a court is competent to entertain a suit only if the suit is commenced by due process of law and upon the fulfilment of any condition precedent to the exercise of its jurisdiction. Any defect in the competence of the court is fatal to the proceeding no matter how well conducted. See Effiong v. Ikpeme & Ors (1999) 6 NWLR (Pt. 606) 260, Saude v. Abdullahi (1984) 4 NWLR (Pt. 116) 387.

The service of pre-action notice three months before the commencement of the suit is a condition precedent to the ignition of the jurisdiction of the court to enteI1ain the suit (see S. 20(2) of the Federal Airport Authority of Nigeria Act No 9 of 1996) and since the said condition was not fulfilled, the suit is incompetent and the lower court had no jurisdiction to hear it. The court below lightly struck out the suit. The lone issue is resolved against the appellant.

This appeal is devoid of merit and it is hereby dismissed. I affirm the ruling of the learned trial Judge.

I make no order for costs.

Other Citations: (2007)LCN/2409(CA)