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AMES ELECTRICAL CO. LTD
FEDERAL AIRPORTS AUTHORITY OF NIGERIA
IN THE COURT OF APPEAL
12TH JULY 2001
1 NWLR (Pt 748)354
BEFORE THEIR LORDSHIPS:
MURITALA AREMU OKUNOLA JCA, (Presided)
PATRICK IBE AMAIZU JCA,
WALTER SAMUEL NKANU ONNOGHEN JCA, (Delivered the leading judgment)
PRACTICE AND PROCEDURE – COURT – Court lacking jurisdiction – proper order for the court to make.
PRACTICE AND PROCEDURE – JURISDICTION – Non compliance with pre-action notice – whether can be raised at any time.
PRACTICE AND PROCEDURE – JURISDICTION – Non-service of a pre action notice – whether a matter of fact or law.
PRACTICE AND PROCEDURE – JURISDICTION – Issue of jurisdiction – whether can be raised at any stage of the proceedings.
PRACTICE AND PROCEDURE – JURISDICTION –Determination of jurisdiction of a court – relevant processes and relevance of plaintiff’s case to same.
PRACTICE AND PROCEDURE – Court lacking jurisdiction – proper order for the court to make.
PRACTICE AND PROCEDURE – Improper service of originating processes – whether a defendant can file statement of defence before objecting to same.
PRACTICE AND PROCEDURE – Proceeding in lieu of demurer – whether a defendant is deemed to have admitted the facts stated in the statement of claim in proceedings thereunder.
NKANU ONNOGHEN, JCA, (Delivered the leading judgment).:
This is an appeal against the ruling of Hon. Justice J. T. Tsoho of the Federal High Court sitting in Ilorin in suit No. FHC/IL/CS/30/98 delivered on 4th November 1999 in which he upheld the preliminary objection of the respondent as to the competency of the action and service of process therein and consequently dismissed the action.
The facts of the case are that the appellant, as plaintiff instituted the action against the respondent as defendant in the Federal High Court, Ilorin claiming as follows:
“Whereof the plaintiff claims from the defendant as follows:
(1) A sum of N638,574.14 being the sum due from and payable by the defendant to the plaintiff as the outstanding balance on a total contract sum of N2,550,894.20 for the extension of NEPA primary power supply to the VORIDME Air Navigational facility site in Lasoju – Otte Ilorin Airport which contract the plaintiff has since completed and which outstanding balance the defendant has failed to pay despite repeated demands.
(ii) 21% interest per annum from January 1996 to the date of judgment in this suit and thereafter at 10% per annum until the judgment debt is fully liquidated.”
See paragraph 22 of the statement of claim at pages 6 to 9 of the record. The statement of claim was filed on 31/12/98. On the 20th day of July 1999 learned counsel for the respondent without filing a statement of defence, filed a notice of preliminary objection together with a supporting affidavit, praying the court for the following orders:
“1. That the plaintiff’s/respondent’s action herein is incompetent for non-compliance with section 26 (2) of the Federal Airports Authority of Nigeria Decree No. 9 of 1996 which requires pre-action notice to the defendant/applicant before commencement of the action.
The relevant paragraphs of the supporting affidavit are (c) and (d) which deposed as follows”
“(c) that the plaintiff/respondent herein did serve the writ of summons on an unknown person at the Ilorin Airport on November 4, 1998.
(d) that the head office of the defendant/applicant herein is located at the Murtala Muhammed Airport, Ikeja, Lagos State.”
The record reveals that no counter affidavit was filed by the appellant in opposition to the preliminary objection though the appellant averred in paragraphs 15 and 16 of the statement of claim thus:
“15. The plaintiff avers further that when the defendant failed to respond to the said letter of demand, the plaintiff’s solicitors had to give the statutory notice of the plaintiff’s intention to sue the defendant to the letter (sic) vide a letter dated 13/5/98 with a copy of the letter of demand hitherto sent attached thereto. The plaintiff pleads the solicitor’s letter of 13/5/98 and notice is hereby given to the defendant to produce the original thereof at the trial.
At the conclusion of arguments on the preliminary objection the learned trial Judge in a considered ruling upheld the objection and dismissed the appellant’s action. The appellant is dissatisfied with that ruling and has appealed to this court on two grounds of appeal vide a notice of appeal at pages 26 and 27 of the record. The grounds of appeal are as follows:
“Grounds Of Appeal
The learned trial Judge erred in law in holding the plaintiff’s action incompetent for non-compliance with section 26 (2) of the Federal Airports Authority of Nigeria Decree No. 9 of 1996 which requires pre-action notice to the defendant/respondent.
Particulars Of Error In Law
iii. The learned trial Judge in essence relied on the submissions of counsel to erroneously hold that the plaintiff did not give pre-action notice to the respondent.
iv The plaintiff/appellant had prior to the filing and hearing of the respondent’s preliminary objection filed her statement of claim while the defendant/respondent has not filed a statement of defence.
Out of the two grounds of appeal, learned counsel for the appellant, Akin Akinlaja Esq., in the appellant’s brief of argument filed on 1/6/2000 and adopted in argument on 28/5/01, has formulated a single issue for the determination of the appeal. The issue is as follows:
“Whether the learned trial Judge was right for dismissing the case of the appellant for non-compliance with section 26 (2) of the Federal Airports Authority of Nigeria Decree No. 9 of 1996 which require pre-action notice to the respondent.”
In arguing the appeal, learned counsel for the appellant submitted that the giving or non-giving of a pre-action notice is a question of fact which ought to be stated in the affidavit in support of the preliminary objection which the respondent failed to do. That being the case it was wrong for the trial Judge to have relied on the submissions of learned counsel for the respondent to the effect that no such notice was given since it is the law that submissions of counsel cannot take the place of evidence. For this counsel cited and relied on Bello v. NBN (1992) 6 NWLR (Pt. 246) 206 at 214; State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548; Chukujekwu v. Olalere (1992) 2 NWLR (Pt. 221) 86 at 93.
That the failure of the respondent to file a statement of defence before filing the preliminary objection means that the respondent is deemed to have admitted all the facts contained in the statement of claim. For this learned counsel cited and relied on Honika Sawmill (Nig.) Ltd v. Hoff (1994) 2 SCNJ 86 at 97 – 98; Eseigbe v. Agholor (1993) 12 SCNJ 82 at 91.
That the deemed admission includes the averment in paragraph 15 of the statement of claim which knocks the bottom off the finding by the lower court that no pre-action notice was given to the respondent.
By way of an alternative submission, learned counsel submitted that where there is a failure to comply with a condition precedent like the giving of a pre-action notice, a court would be divested of jurisdiction in respect of the matter concerned and the proper order to make in the circumstance is not dismissal but striking out of the action.
For this learned counsel cited and relied on Oloba v. Akereja (1988) 7 SC (Pt. 1) 1 at 36; Combe0 v. P. W. (Nig.) Ltd. (1991) 1 SCNJ 127. Learned counsel then urged the court to resolve the issue in favour of the appellant and allow the appeal.
On his part, learned counsel for the respondent. A. B. Shuaib Esq., in the respondent’s brief of argument filed on 12/4/2001 and adopted in argument on the 11th day of June 2001 by A. A. Ibrahim Esq. submitted that the issue of service or non-service of pre-action notice and service of court processes are preliminary questions on jurisdiction that must be resolved at the earliest opportunity before the taking and evaluation of evidence. For this he cited and relied on Commissioner for Local Government; Rural Dev. and Chieftaincy Matters (Anambra State) v. Ezemuokwe (1991) 3 NWLR (Pt. 181) 615; Kasi-Kwu Farms Ltd. v. A. G. Bendel State (1986) 1 NWLR (Pt. 19) 695.
That the burden of proof is on the appellant to show that the notice was not only given but also that it was served on the appropriate officer specified in section 27 of Decree No. 9 of 1996. He then cited Shomolu Local Government Council v. Shakiru Agbede (1996) 4 NWLR (Pt. 441) 174 at 177; Mukoro v. NPA (1997) 4 NWLR (Pt. 502) 656.
That the appellant did not dispute the fact of non-compliance with the requirement of the conditions precedent but raised the issue of estoppel and waiver. That it is trite law that a requirement of the law as in the instant case cannot be waived. Learned counsel then cited and relied on A. G. Bendel State v. A. G. Federation (1981) 10 S. C. 1 at 106 – 107.
That the issue of paragraph 15 of the statement of claim does not arise since it was never raised at the lower court and that it can only be raised now by leave of the court relying on Salami v. Muhammed (2000) 6 SC (Pt. 11) 37 at 44. Learned counsel then urged the court to strike out ground 1 of the notice of appeal the particulars of which contained new issues without leave of this court.
However, learned counsel conceded that where a court lacks jurisdiction, as in this case, the proper order to make is that of striking out and not dismissal of the action. Learned counsel then urged the court to dismiss the appeal.
In his reply brief filed on 23/4/01 learned counsel for the appellant submitted that the respondent counsel’s submission that the appellant did not dispute the facts of non-compliance is misconceived since the respondent never stated the facts in affidavit in support of the preliminary objection.
That the issue of improper service was raised by the respondents only in relation to the writ of summons and statement of claim and that it was in that respect that the defences of waiver and estoppel were raised by the appellant.
That the appellant’s reference to paragraph 15 of the statement of claim does not amount to raising a new issue and urged the court to discountenance the respondent’s submission in that regard. Once again, he urged the court to allow the appeal.
I have gone through the record of proceedings, and the briefs filed in this appeal carefully. I will like to deal with one or two preliminary issues raised in this appeal. The first one is whether it is necessary for the respondent to have filed a statement of defence in the lower court before raising the preliminary objection and whether this failure to do so amounts to an admission of the facts averred in the statement of claim particularly paragraph 15 thereof as contended by learned counsel for the appellant.
While it is correct to say that under demurer proceedings a defendant who wants the plaintiff’s action dismissed on points of law is deemed, for the purpose of that proceedings, to have admitted the facts stated in the statement of claim, this does not apply to a proceeding in lieu of demurer.
That apart, it has always been the law that an issue of jurisdiction can be raised at any stage of the proceedings and can even be raised orally before filing a statement of defence in the action – see Madukolu v. Nkemdilim (2001) 46 WRN 1; (1962) 2 SCNLR 341 at 348; Mustapher v. Governor, Lagos State (1987) 2 NWLR (Pt. 58) 539; Wema Bank Nig. Ltd v. Odulaja (2000) 3 WRN 10; (2000) 3 SC 83 at 87; Kalu v. Odili (1992) 6 SCNJ 76 at 90; Matari v. Dangaladima (1993) 2 SCNJ 1 at 7 – 8; Road Transport Employers Association v. National Union of Road Transport Workers (1996) 8 NWLR (Pt. 469) 737 at 743; Jimoh v. Starco Nigeria Ltd. (1998) 7 NWLR (Pt. 558) 523.
That being the case it is my view that the non-filing of a statement of defence by the respondent in this matter has no relevance to the issue raised. That being the case, it is my view that it is therefore a misconception to say that for not filing a statement of defence the respondent is deemed to have admitted the facts averred in the statement of claim particularly since what was being considered was an objection to jurisdiction not a demurer.
That apart, it is important to note that the issue of jurisdiction as raised by the respondent is based on two grounds viz:
(a) That the issue of non service of a pre-action notice constitutes a condition precedent to the invocation of the jurisdiction of the court to hear and determine the matter, and
(b) The improper service of the writ of summons and statement of claim robs the court of the jurisdiction of the court to entertain the matter.
It is my view that whereas an objection in terms of (a) above can be raised at any time including being raised in the statement of defence an objection in terms of (b) above cannot wait until the filing of a statement of defence because if a defendant files his defence before raising the objection he would be deemed to have taken a fresh step in the proceedings and thereby deemed to have waived his right to complain of the irregularities in the service. See Odua Investment Co. Ltd v. Talabi (1997) 10 NWLR (Pt. 523) 1.
Turning now to the main issue under consideration I agree with learned counsel for the appellant that his submissions in the lower court on the issue of waiver relates only to the issue of service of the writ of summons and statement of claim and has no bearing with the issue of pre-action notice, which learned counsel for the respondent contends is a matter of law which cannot therefore be waived.
The arguments of both counsel before the lower court is clear on this point as well as the ruling of the trial court. At page 24 of the record the learned trial Judge held after referring to section 27 of Decree No. 9 of 1996 as follows:
“The wording of this section is not authoritative but more of a directive.
The plaintiff/respondent in the instant case did not comply with it. He served his writ of summons and the statement of claim at the Ilorin Airport. However, the defendant/applicant reacted to it before filing the notice of preliminary objection. Though there is no evidence of filing a memorandum of appearance, the record of proceedings reveal participation in the proceedings by the defendant. It is shown that as at 14/12/98 A. B. Shuaib Esq. of counsel appeared for the defendant in this case. He indeed submitted to the ordering of pleadings and asked for 45 days to file their statement of defence. There were other subsequent appearance by counsel representing the defendant.
It is in this context that learned counsel for the respondent contended that the defendant had waived the irregularity of service and submitted to the jurisdiction of this court and could not be heard to complain. In so far as the provisions of section 27 do not seem to be mandatory, I accept the view of learned counsel for the respondent that the concept of waiver is applicable. This is where the case of Adegoki Motors Ltd v. Adesanya (supra) is most apt.”
Before proceeding any further it is necessary to decide the sub-issue whether the non-service of a pre-action notice is a matter of fact or law. Learned counsel for the appellant has submitted that it is a matter based on facts while the respondent’s counsel and the trial court contend that it is a matter of law. Both parties are agreed that the respondent did not depose to any fact to allege the non-compliance with the pre-action notice in the supporting affidavit. This is confirmed by the paragraphs of the affidavit earlier reproduced in this judgment. I am of the view that before the appellant can be said not to have disputed the issue of non-compliance with the pre-action notice, that allegation must be raised in an affidavit since it is only then that it will become necessary for the appellant to join issues on it by filing a counter affidavit and exhibiting any proof that he may have in that regard. In this case the fact that there was non-compliance with the pre-action notice was raised on the motion papers and the submissions of learned counsel only with no facts to back it up in the affidavit in support. It is trite law that submissions of learned counsel, however brilliant is no substitute for evidence. It is therefore my view that there was no evidence on which the trial court could have come to the conclusion that the appellant did not serve on the respondent a pre-action notice.
That apart, it is trite law that when deciding the issue of jurisdiction of a court to entertain a matter as in this case, the relevant processes are the writ of summons, the statement of claim, and the affidavit evidence in support of the application by way of preliminary objection.
This is primarily so because it is the plaintiff’s case that determines the jurisdiction of the court. In the present action, there is evidence that the appellant filed a statement of claim which was duly served on the respondent before his application. In paragraphs 15 and 16 of the statement of claim which had been earlier reproduced in this judgment there is an averment to the effect that the required pre-action notice was given to the respondent in a letter which was duly replied by the respondent. It is the duty of the learned trial Judge to have looked at the statement of claim before deciding the matter before him. If he did he could not have fallen into the error of saying that there was no evidence from the appellant to establish the fact that a pre-action notice was given to the respondent.
Learned counsel for the respondent has argued that this court should not consider the submission of counsel for the appellant on the statement of claim because it was not raised before the lower court. This submission, it is my view, amounts to a preliminary objection on a ground of appeal which by the combined effects of order 3 rules 3 (1) and 15 (1) of the Court of Appeal Rules must be by way of motion supported by an affidavit which must give the appellant three clear days notice thereof before the hearing of the appeal, which has not been done in this case. In this case, the purported preliminary objection is raised in the respondent’s brief of argument contrary to the rules. It is therefore incompetent and consequently struck out. See Onigemo v. Opoetu (2000) 9 NWLR (Pt. 673) 556 at 565.
Apart from that, it is the law that for a trial court to decide on whether it has jurisdiction or not the relevant documents to be considered are the writ of summons, statement of claim and the supporting affidavit which the court must look at; the court is also duty bound to look at all relevant documents duly filed In the Court record. This includes the statement of claim. That being the case the justice of this case demands that the statement of claim of the appellant be looked at to determine the issue in controversy between the parties and to do substantial justice between them. It is only fair that this case be decided on the merits not on technicalities.
In conclusion I hold that the sole issue in this appeal be and is hereby resolved against the respondent on the ground that there is no affidavit evidence alleging any non compliance with the alleged pre-action notice and even if there were paragraphs 15 and 16 of the statement of claim which are relevant to the determination of the issue of the jurisdiction of the lower court contains averments to the contrary. That being the case it is only fair that the matter should proceed to trial where evidence would be called by both parties and the issue properly resolved by the court.
On the issue of the proper order to make where a court finds that it lacks jurisdiction to entertain any matter, I agree with both counsel that the proper order in the circumstance is that of striking out of the suit instead of dismissal. That being the case I hold that the lower court was wrong in dismissing the appellants case on grounds of lack of jurisdiction.
Finally I hold that there are merits in this appeal which is accordingly allowed. The ruling of the learned trial Judge Hon. Justice J. T. Tshoho in suit No. FHC/IL/30/98 delivered on 31/3/2000 dismissing the said suit No. FHC/IL/CS/30/98 is hereby set aside with N5,000.00 cost to the appellant. Case remitted to the lower court for trial.
MURITALA AREMU OKUNOLA J. C. A.:I have read in draft the leading judgment just delivered by my learned brother Onnoghen J. C. A., I agree with his reasoning and conclusion that the appeal succeeds and should be allowed. I too allow the appeal.
I abide by the consequential orders made in the leading judgment including the order made as to costs. I too remit the case for trial at the lower court.
PATRICK IBE AMAIZU, J. C. A.:I have had the advantage of reading in draft the lead judgment just delivered by my learned brother Onnoghen, J. C. A.
I agree with his reasoning and conclusion that the appeal has merit and should be allowed. If the appellant’s action was incompetent because of non compliance with the provision of section 26 (2) of the Federal Airports Authority of Nigeria Decree No. 9 of 1996, requiring the giving of pre-action notice to the respondent before the commencement of an action against it, the proper order to make is an order of striking out and not that of dismissal.
I also allow the appeal. I abide by the orders made in the said lead judgment including the order as to costs.
Cases referred to in the judgment
Bello v. NBN (1992) 6 NWLR (Pt. 246) 206 .
Chukujekwu v. Olalere (1992) 2 NWLR (Pt. 221) 86.
Combe v. P. W. (Nig.) Ltd. (1991) 1 SCNJ 127.
Commissioner for Local Government; Rural Dev. and Chieftaincy Matters (Anambra State) v. Ezemuokwe (1991) 3 NWLR (Pt. 181) 615.
Eseigbe v. Agholor (1993) 12 SCNJ 82.
Honika Sawmill (Nig.) Ltd v. Hoff (1994) 2 SCNJ 86
Jimoh v. Starco Nigeria Ltd. (1998) 7 NWLR (Pt. 558) 523.
Kalu v. Odili (1992) 6 SCNJ 76.
Kasi-Kwu Farms Ltd. v. A. G. Bendel State (1986) 1 NWLR (Pt. 19) 695.
Madukolu v. Nkemdilim (2001) 46 WRN 1; (1962) 2 SCNLR 341.
Matari v. Dangaladima (1993) 2 SCNJ 1.
Mukoro v. NPA (1997) 4 NWLR (Pt. 502) 656.
Mustapher v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539.
Odua Investment Co. Ltd v. Talabi (1997) 10 NWLR (Pt. 523) 1.
Oloba v. Akereja (1988) 7 SC (Pt. 1) 1.
Onigemo v. Opoetu (2000) 9 NWLR (Pt. 673) 556.
Road Transport Employers Association v. National Union of Road Transport Workers (1996) 8 NWLR (Pt. 469) 737.
Salami v. Muhammed (2000) 6 SC (Pt. 11) 37.
Shomolu Local Government Council v. Agbede (1996) 4 NWLR (Pt. 441) 174.
State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548.
Wema Bank Nig. Ltd v. Odulaja (2000) 3 WRN 10; (2000) 3 SC 83.
Statute referred to in the judgment
Federal Airports Authority of Nigeria Decree No. 9 of 1996 Ss. 26(2), AND 27.
Rules of court referred to in the judgment
Court of Appeal Rules; Or. 3 r. 1, Or. 5 r. 10.