Nigeria Railway Corporation & Ors V. Mathew Akinbode & Ors (2007)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
On 21st July, 1997, Jimoh .J., while sitting at the High Court of Justice, Ibadan, handed out his ruling in which he dismissed the 1st Appellant/Applicant’s motion which related, in the main, to incompetence of the action for non service of a statutory pre-action notice. The learned trial judge, without any iota of evidence led before him on the basically declaratory reliefs claimed by the respondents, as plaintiffs, concluded that the land of the plaintiffs which is no more required for public purpose for which it was originally required automatically reverts to them and their right or interest in the land resurrects. He also found that the 1st Appellant had no power whatsoever under the law to transfer, lease or sell the property in dispute to the 2nd and 3rd defendants, inter alia.
The 1st appellant naturally felt unhappy with the stance posed by the learned trial judge and filed its appeal dated 7th August, 1997 on the 8th of August 1997.
The Notice of Appeal was accompanied by eight (8) grounds of appeal.
The 2nd and 3rd appellants equally felt irked by the decision of the learned trial judge and filed their joint Notice of Appeal dated 21st August, 1997 on the same date. The said Notice of Appeal was accompanied by three (3) grounds of appeal.
For a clear focus and appraisal, it is apt to depict what really transpired at the lower court. As plaintiffs thereat, the respondents herein claimed against the defendants/appellants as follows:
“1. Declaration that the 1st defendant is not entitled to sell to the 2nd defendant or any person any portion out of the large tract of land situate lying and being at or near Bodija Railway Station, Ibadan which the plaintiffs are entitled to occupy under the native law and custom and under the Land Use Act.
- Declaration that the purported sale to the 2nd defendant or any person out of the said large tract of land is null and void and of no legal effect whatsoever.
- Declaration that the 1st defendant is not entitled to obtain rents from the members of the family of the plaintiffs or any other person whatsoever in respect of the permanent structures which had already been erected on the said land before and after the acquisition or purported acquisition by the 1st defendant of the said area in dispute.
- Re-possession of the excess (inclusive of the land occupied by the 2nd defendant) of 40 feet on both sides of the rail lines.”
Pleadings were filed by both sides and issues were joined. In paragraph 18 of the statement of defence, the 1st defendant/appellant ostensibly raised the point that the action was not properly before the trial court in accordance with the Nigerian Railway Corporation Act.
The 1st defendant/appellant thereafter filed an application dated 19th April, 1996 on the same date for orders:
“1. Setting down for hearing and disposal the following points of law raised in the pleadings of the plaintiffs and 1st defendant, i.e.
(a) Whether the plaintiffs/respondents’ action in (sic) is incompetent and invalid for noncompliance with s.83(2) of the Nigerian Railway Corporation Act CAP. 139 of the Laws of the Federation of Nigeria as regards condition precedent for commencing a suit against the 1st defendant/applicant.
(b) Whether having regard to the provisions of s. 40 of the Nigerian Railway Corporation Act, the plaintiffs/respondents have any legal right or reversionary interest in the land in dispute that ought to be protected by the court.
(c) Whether, by virtue of s.17(2)(f) of the Nigerian Railway Corporation Act, the 1st defendant has power to sell, let or otherwise dispose of the land in dispute to the 2nd, 3rd, 4th and 5th defendants.
(d) Whether in view of s.49 of the Land Use Act, lands owned by the 1Ist defendant Corporation,
including the land in dispute, are exempted from the provisions of the said Act.
- Dismissing the plaintiffs/respondents’ action as frivolous, speculative, misconceived and lacking merit.”
The application was supported by an affidavit of II paragraphs deposed to by Obasi Kalu Nzere, civil servant of senior staff Guest House, Railway Compound, Bodija, Ibadan. In paragraph 5 of the affidavit, he deposed ‘that the plaintiffs did not give the 1st defendant three months’ notice before instituting the above suit’.
The respondents to the application filed a counter affidavit deposed to by one Alade Thomas. In paragraph 5 of the same, he deposed as follows:
“5. That if there is any irregularity at all with respect to the omission to give notice, the omission is a mere technicality and the applicant has also waived this irregularity and has submitted to it.”
As extant in the ruling delivered on 21-7-97, the learned trial judge was addressed by counsel for the parties. I carefully perused the record but I was unable to see the addresses of counsel which propelled him to arrive at his decision. The learned trial judge over-ruled the objection raised in respect of the competence of the action for failure to serve pre-action notice on the 1st defendant/appellant as mandated by s. 83(2) of the Nigeria Railway Corporation Act. The reason given by him was that the 1st defendant waived its right by not objecting timeously to the pin- pointed irregularity. Let me say it again that the learned trial judge, also without any shred of evidence, ordered in his ruling that the land of the plaintiffs which is no more required for public purpose for which it was originally required automatically reverts to them and their right or interest in the land resurrects.
Equally, he found that the 1st appellant had no power whatsoever under the law to transfer, lease or sell the property in dispute to the 2nd and 3rd defendants; among others.
Briefs of argument were filed on behalf of the parties. From the eight grounds of appeal filed by the 151 appellant, four (4) issues have been decoded at page 6 of its brief for a proper determination of this appeal. They read as follows:
“1. Whether joinder of issues denies a party the right to raise a preliminary objection contesting the jurisdiction of the court even when the point of law is raised in the pleadings.
- Whether the decision which amounts to judgment though not on merits was judicially and judiciously arrived at bearing in mind the fact that no evidence had been tendered to prove the facts alleged in the statement of claim as required by law.
- Whether there was any evidence to support the decision arrived at returning the land to its alleged original owners.
- What is the effect of sections 17(2)(j); 40(7), 83 of the Nigeria Railway Corporation Act and S.49 of the Land Use Act, 1978 in relation to the case.”
On page 5 of their Brief of argument, the respondents indicate that they are at one with the issues raised by the 1st appellant for determination of this appeal.
With respect of the 2nd appeal filed by the 2nd and 3rd appellants, one Issue was distilled from their three grounds of appeal. And it reads as follows:
“1. Whether the learned trial judge was not wrong in giving a sweeping ruling that denied the 2nd & 3rd appellants the right to be heard in respect of their statement of defence as separately put up and without hearing oral evidence on the contentious issues of title, acquisition and extent of land trespassed upon as pleaded and disputed by the parties.”
Again, without much ado, the respondents agreed with the lone issue raised by the 2nd and 3rd appellants as reproduced above.
Let me now proceed, as it should be, to consider and determine the two appeals in seriatim.
Arguing issue I, learned counsel for the 1st appellant submitted that the trial court was moved to have the action dismissed for non-compliance with s.83(2) of the Nigeria Railway Corporation Act as no notice was served on the 1st appellant. Learned counsel observed that the issue of incompetence of the suit was raised in paragraph 18 of the statement of defence.
Learned counsel observed that under Order 24 Rule I of the High Court Civil Procedure Rules of Oyo State, 1988 no demurrer is allowed and as such, the 1st defendant had to file its defence and incorporate its objection to the suit in the statement of defence. He referred to Odive v. Obor (1974) 2 SC 23; Lasisi Fadare & ors v. Att. Gen. Oyo State (1982) 4 SC 1.
Learned counsel submitted that the 1st defendant could not be said to have waived its right because it had already joined issues as the law requires the statement of defence to have been filed and issues joined. Learned counsel referred to Yassin v. Barclays Bank DCO (1978) NMLR 380 where it was held that a condition precedent to found a claim or dispute it must be specifically pleaded by the defence before one could be allowed to raise it.
Learned counsel submitted further that the authorities cited by the learned trial judge as supporting waiver of right by the 1st defendant were all wrongly applied. He referred to Ariori & ors v. Elemo & ors (1983) 1 SC 13 where it was pronounced that waiver of a statutory right could only be done in a voluntary manner and not by conduct that can be implied. Learned counsel submitted that an action commenced without the service of pre-action notice where same is apt and required is incompetent as against the party who ought to have been served with the notice provided such a person challenges the competence of the suit. He referred to Mobil producing (Nig) Unlimited v. LASEPA (2002) 18 NWLR (Pt. 798) 1 at page 30 and finally urged that the issue be resolved in favour of the 1st appellant.
Arguing issue I, learned counsel for the respondents maintained that Odive’s case does not support the 1st appellant’s case. He felt that the condition precedent required under s. 83(2) of the Nigeria Railway Corporation Act is a procedural condition and it requires an act to be done for the benefit of the Corporation. He felt that the point of law ought to have been raised at the earliest time which is at the time of entering appearance or so soon thereafter. He submitted that by not entering a conditional appearance under protest, the 1st appellant submitted to the jurisdiction of the court. He felt that the learned trial judge was right in holding that the 1st appellant waived its right to object. He referred to Order 13 rule 7 of the High Court Civil Procedure Rules of Oyo State, 1988. He cited the case of Murfi v. Ashbridge & Martin (1941) 1 All E.R. 231. Learned counsel referred to p. 242 para. 15 of Civil Procedure in Nigeria by F. Nwadialo and further referred to Att. Gen . Eastern Nigeria v. Att. Gen. of the Federation (1964) 1 All NLR 224; Wilkinson v. Barking Corporation (1948) 1 KB 721; Ajibola v. Sogeke (2002) FWLR (Pt. 93) 1959 at pp. 1984-1985; Secretary, Iwo Central Local Govt. v. Adio (2000) FWLR (Pt.7) 1142.
Learned counsel felt that the 1st appellant waived its right and tried to renege on same in an ‘unconscionable and fraudulent’ manner. He opined that the court should frown upon same. He urged that the issue be resolved in favour of the respondents.
In reply, learned counsel for the 1st appellant observed that the submission that the 1st appellant is renegating on waiver ‘and is unconscionable and fraudulent’ is rather unfortunate and strong. He observed that where fraud is alleged in a civil matter the proof is one beyond reasonable doubt as in criminal trials. He felt that no fraud was proved. He referred to s. 138 Evidence Act, CAP. 112 Laws of the Federation of Nigeria 1990; HMS Ltd. v. First Bank Ltd. (1991) I NWLR (Pt. 167) 290; Ikoku v. Oli (1962) 1 SCNLR 307.
Learned counsel felt that the 1st appellant had the option of objecting to the non-issue of the notice at any time before the proper trial and this was done by raising the issue in its statement of defence and filing a motion for the hearing of the objection. He submitted that it is absolutely in order for the 1st appellant to raise the issue of pre-action notice in their statement of defence and cited Eze v. Okechukwu (2002) 18 NWLR (Pt. 799) 348 at 368-369; Ademola v. Thomas (1946) 12 WACA 81.
It is pertinent at this point to set out the provision of section 83 (2) of the Nigeria Railway Corporation Act which the 1st appellant banked upon in advancing his objection that the suit is incompetent for failure to serve it with a pre-action notice. The relevant section of the Act reads as follows:
“83(2) 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 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.”
It should be made clear that the law regards the failure to comply with requirement to serve a pre-action notice as a procedural irregularity which can be waived if the beneficiary fails to raise objection. See Mobil Producing (Nig) Unltd. v. LASEPA (supra); Owoseni v. Faloye (2005) 14 NWLR (Pt. 946) 719; Nnonye v. Anyichie (supra) at 647; 660; Ariori v. Elemo (1983) 1 SC 13.
What then is waiver? It is the intentional or voluntary relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right. The renunciation, repudiation, abandonment or surrender of some claim, right, privilege or the opportunity to take an advantage of some defect, irregularity or wrong. See Atlas Life Ins. Co. v. Schrinsher 179 Old. 643, 66 P. 2d 944, 948. Refer to Black’s Law Dictionary, 5th Edn. 1417.
A defence of non-service of pre-action notice which is a matter of fact should be raised in the proper manner at the trial court preferably soon after the defendant is served with the writ of summons. If not so raised, the fact of non-service should be pleaded in the statement of defence. If it is raised, and it is shown, that there has been non-service, the court is bound to hold that the plaintiff has not fulfilled a pre-condition for instituting his action.
The action will be considered premature or in the usual parlance incompetent, and struck out. See Eze. v. Okechukwu (supra) at p. 368 per Uwaifo, JSC; and Ademola v. Thomas (supra) at p. 89.
From the above position of the law, it is not in doubt that it is clearly in order that the 1st appellant who is the beneficiary of the provision of s.83(2) of the Nigeria Railway Corporation Act raised the issue of pre-action notice in its defence. It even followed same up with an application to determine the issue of non-service of pre-action notice. It did not waive its right. It did not relinquish same.
Let me state it that the learned trial judge was wrongly persuaded by the respondents’ counsel and he agreed that the 1st appellant did not raise its objection timeously and thus waived its right to contend that no pre-action notice was served on it. With due diffidence to the learned trial judge, such a stance was clearly erroneous. It was flat wrong as it is against the current or flow of decided authorities as demonstrated above.
At page 10 paragraph 2.1.12 of the Respondents’ brief of argument against the 1st appellant’s brief, learned counsel opined as follows:
“We submit that the 1st appellant is a sui juris. It also acted by and (sic) was represented by a legal practitioner.
It was aware of the nature of the condition and had opportunity of objecting. It chose or elected to treat section 83(2) of the Nigeria Railway Corporation Act as if it did not exist; we submit with respect that 1st appellant renegating on the waiver is unconscionable and fraudulent. This Honourable’ Court should frown upon it.”
I dare say that a counsel should watch his language more especially in an area where he is not sure of much. He should be serene and must always avoid the employment of untoward language while dishing out his submissions. The use of the words – ‘unconscionable and fraudulent’ sound rather strong and unwarranted. This is more so as fraud, even in civil suits, must be proved beyond reasonable doubt. See section 138 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990. Refer to Famuroti v. Agbeke (1991) 5 NWLR (Pt. 189) 1 at 13. When it is alleged in the air, as in this case, it should be frowned upon. I say no more.
From all that I have been discussing above, it goes without saying and beyond paradventure that the learned trial judge ought to have granted the application of the 1st appellant that the suit of the respondents is incompetent for failure to serve it with the statutory pre-action notice and same rendered the suit incompetent and should be struck out. On my part, I so find.
Since the action is incompetent, the court lacked the requisite jurisdiction to hear and determine the suit. The action was not initiated by due process of law. Since the trial court lacked jurisdiction, any further exercise thereafter is null and void and of no effect. It was an exercise in futility as it attempted to put something upon nothing. See Madukolu v. Nkemdilim (1962) SCNLR 341; McFoy v. UAC (1962) A.C. 152. The suit must be struck out for being incompetent. And I so order. I resolve issue I in favour of the 1st appellant.
Since this is an intermediate court, I need to touch, albeit briefly, issues 2 & 3 in the 1st appellant’s brief as encapsulated by the lone issue formulated in the 2nd and 3rd Appellants’ Brief of Argument. Put succinctly, the complaint is that the learned trial judge did not hear any evidence to warrant his decision in returning the land to its alleged ‘original owners’.
It is clear to me that at an interlocutory stage, courts are not allowed to delve into the substantive issues designed for determination after evidence from both sides might have been garnered. If this is not heeded, there will be nothing left to be tried at the end of the day. Parties may raise dust about lack of fair hearing. I am afraid; they may be correct. See Akapo v. Hakeem-Habeeb (1962) 6 NWLR (Pt. 247) 226.
The Respondents who claimed to be the ‘undisputed owners’ of the land in dispute had the onus of proof to establish same at the hearing proper.
I need to reproduce paragraphs 27 and 28 of the statement of claim at page 104 of the Record of Appeal. They read as follows:
“27. The plaintiffs will however establish at the hearing of this suit that the plaintiffs still have a reversionary interest in the land acquired for the 1st defendant if the purposes of acquisition are defeated by the wrongful unlawful and abusive use of the said land.
- The plaintiff shall further establish at the hearing that the 1st defendant has by design or tricks and threats gone beyond the area acquired for them and has assumed possessory right over all the land of the plaintiffs and has been selling same without any lawful authority.”
Without allowing the suit to be heard on merit, the learned trial judge, on his own, found that since the land was acquired for public use, it must be strictly put into public use and that the portion not required for public purposes reverts to the original owners. To put it mildly, the learned trial judge jumped the gun, it seems. The respondents have not given evidence to show how they are entitled to the land in dispute under native law and custom and under the Land Use Act as claimed by them. The plaintiffs said they will establish that they have reversionary right at the hearing proper. It appears that the learned trial judge dashed them what had not been proved. The respondents, as plaintiffs at the lower court, had the burden of proof to establish their claim. See Elias v. Disu (1961) All NLR (Pt.1) 215 at 220.
The point I want to make here is that even if the learned trial judge’s stance on point of waiver in respect of non-service of pre-action notice had been correct (which I think not) the matter should have been set down for hearing on the merit. Issues 2 & 3 in the 1st appellant’s brief of argument as encapsulated by the lone issue in the 2nd & 3rd Appellants brief of argument are resolved in their favour and against the respondents.
I should not go further any more. The two appeals are meritorious and are accordingly allowed. Since the respondents’ suit is incompetent, it is hereby struck out. Each set of the Appellant(s) is entitled to costs assessed at N4,000 in its favour and should be paid by the respondents.
Other Citations: (2007)LCN/2259(CA)
