Legalpedia Citation: (2023-06) Legalpedia 13049 (CA)

In the Court of Appeal

LAGOS JUDICIAL DIVISION

Fri Mar 31, 2023

Suit Number: CA/L/68/2018

CORAM

OBANDE FESTUS OGBUINYA JCA

PARTIES

FEDERAL AIRPORTS AUTHORITY OF NIGERIA

APPELLANTS

BEST QUALITY PRODUCTS & MARKETING LIMITED

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONTRACTS, EVIDENCE, PRACTICE AND PROCEDURE, PROPERTY LAW

SUMMARY OF FACTS

At the trial Court (Federal High Court, Lagos Judicial Division), the Respondent claimed the right to use the New VIP Lounge General Aviation Terminal (GAT), Murtala Mohammed International Airport, Ikeja, Lagos for concessionaires services. He also claimed to have been wrongfully and forcefully evicted before the expiration of the period as contained in the agreement. The trial Court granted most of the reliefs claimed. The Appellant was dissatisfied with the decision hence the instant appeal.

HELD

Appeal allowed

ISSUES

1.Whether the Lower Court was right when it relied on the Pre-Action Notice dated 27th February, 2007 to hold that the Respondent has complied with the provisions of Section 20 (2) of the Federal Airport Authority Act, 2004.

2.Whether the trial Court was right when it held there was a subsisting Concessionaire Agreement over the New VIP Lounge between the parties.

3.Whether the Lower Court properly evaluated the facts and evidence placed before it by the Appellant before awarding general damages and cost in favour of the Respondent.

 

RATIONES DECIDENDI

DISCONTINUED SUIT – WHEN A LITIGANT WISHES TO REIGNITE A DISCONTINUED SUIT

Where a suit has been discontinued, it has been terminated and it longer exists in the cause list.  It follows therefore that if a litigant wishes to reignite the discontinued suit, he has to refile all processes and start afresh. See Ogbu v Nnamchi & Anor (2014) LPELR-41081(CA). Starting afresh would imply that all processes will be filed again including the pre-action Notice because the defendant having received notice of discontinuance and the matter been struck out by the Court is expected to believe that the suit is terminated. Therefore if the litigant wants to commence another suit after the discontinuance of the earlier one, then the defendant ought to be pre-informed where such is mandated by statute.

The rationale behind the jurisprudence of a pre-action notice is to enable the defendant know in advance the anticipated action and a possible amicable settlement of the matter between the parties, without recourse to adjudication by the Court. The purpose of giving notice to a party is not only for the party to be caught unawares but so that it should have adequate time to prepare to deal with the claim in its defence. See Ntiero v Nigerian Ports Authority (2008) 10 NWLR (PT.1094) 129. – Per A. S. Umar, JCA

PRE-ACTION NOTICE – WHERE A STATUTE REQUIRES THAT THERE SHOULD BE A PRE-ACTION NOTICE

Moreover, it is trite that where a statute requires that there should be a pre-action notice before an action can be commenced in Court, there must be compliance with that statutory provision for the Court to assume jurisdiction over the matter. Where service of pre-action notice is required, it is very fundamental as it touches on the competence of the suit. In such instance, the failure to issue and serve the Pre-action Notice amounts to a vital or serious omission that mars a suit and renders it a nullity. It is not a mere irregularity that could be waived or disregarded, therefore an action commenced without pre-action notice where one is statutorily required is a nullity See Ugwuanyi v NICON Plc. (2004) 15 NWLR (PT 897) 612; Okafor v Ukadike (2009) 1 NWLR (PT.1122) 259, Nigercare Dev. Co. Ltd v Adamawa State Water Board (2008) 9 NWLR (PT.1093) 498. – Per A. S. Umar, JCA

PRE-ACTION NOTICE – AT TRIAL…FAILURE OF PLAINTIFF TO SERVE THE PRE-ACTION NOTICE

…the Appellant averred that the Plaintiff, now Respondent did not serve the Appellant the pre-action Notice as required by the Federal Airports Authority, what the learned Trial Judge at the lower Court ought to have done at the lower Court was to direct that the Appellant be served the pre-action notice. An objection to jurisdiction founded on a non-compliance with the requirement of a pre-action notice does not abrogate the right of a plaintiff to approach the Court or defeat his cause of action. Once the subject matter is within the jurisdiction of the Court, failure of the plaintiff to serve the pre-action notice will only give the defendant a right to insist on such notices. In other words, it merely puts the jurisdiction of a Court on hold pending compliance with the pre-action notice. See Public & Private Development Center Ltd/Gte (PPDC) v. NNPC & Anor (2020) LPELR-50288(CA); Abuja Municipal Area Council v C.N. Okoli Transport Co. Ltd. (2009) LPELR 3579 (CA). – Per A. S. Umar, JCA

JURISDICTION – JURISDICTION IS THE LIVE-WIRE OF A SUIT

Jurisdiction is an important factor which gives life to a suit. It is the live-wire of a suit and if a matter is heard by a Court in the absence of jurisdiction or put differently, if there is any defect in the competence of a Court to adjudicate on a matter, it amounts to embarking on a futile exercise no matter how well it is conducted and decided. In the instant case therefore, failure to give the pre-action notice renders the action incompetent, ineffective and void ab initio. See Madukolu & Ors v Nkemdilim (1962) LPELR-24023(SC); Nigercare Dev. Co. Ltd v Adamawa State Water Board (supra). – Per A. S. Umar, JCA

ACADEMIC ISSUES – COURTS WILL NOT WASTE TIME RESOLVING ACADEMIC ISSUES

The Court only deals with live issues and will not waste time resolving academic issues which will serve no useful purpose. – Per A. S. Umar, JCA

 

CONDITION PRECEDENT – MEANING OF CONDITION PRECEDENT

 

By virtue of Section 20 (2) of the Federal Airport Authority Act, it is mandatory to file a Pre-Action Notice three (3) Months before the commencement of an action against the appellant in this appeal. This is a condition precedent. A condition Precedent is something that must be done or must happen in a particular case before one is entitled to institute an action. It is not of the essence of such a cause of action but it has been made essential by law. See SHELIM & ANOR. V. GOBANG (2009) LPELR – 3043 (SC), LAWAL V. OKE (2001) 7 NWLR (PT.711) P 88 and ADIGUN V. OSAKA (2003) 5 NWLR PT.812 PAGE 95. Where there is a proper procedure laid out for doing a particular thing, the said procedure must be complied with because he who comes to equity must come with clean hands. – Per M. B. Dongban-Mensem, PCA

DISCONTINUED/STRUCK OUT SUIT – WHEN A SUIT IS DISCONTINUED AND STRUCK OUT

…the law is abundantly clear that once an action is discontinued and stuck out, all the processes that were filed in that suit are equally struck out and terminated. See USMAN & ANOR. V. SALANKE (2015) LPELR – 40744 (CA). Once a suit is discontinued and struck out, it becomes spent and lifeless. Only an application to resuscitate it can bring it back to life. When an action/suit is discontinued, it goes with all its appurtenances, nothing survives. – Per M. B. Dongban-Mensem, PCA

JURISDICTION – CONDITION PRECEDENT VESTS THE COURT WITH REQUISITE JURISDICTION

Where a condition precedent exists, it is fulfillment of that condition that vests the court with the requisite jurisdiction to entertain a matter. Failure to comply with any condition precedent robs the court of the power to hear the matter. Jurisdiction is the life wire of every case brought before a court. It is so fundamental and intrinsic that it can be raised at any stage of the proceedings and even for the first time on appeal. The issue of jurisdiction is paramount and of utmost important to the extent that whenever it is raised, every other issue stands still until it is determined that the court has the requisite jurisdiction to adjudicate on the matter. This is because any decision or order made by the court without jurisdiction is null and void and the proceeding has no legal effect no matter how well conducted. The Apex Court IN MADUKOLO V, NKEMDILIM (1962) 2 SCNLR PAGE 341 held that a court is competent when;

1. It is properly constituted as regards numbers and qualifications of its numbers of the bench and no member is disqualified for one reason or another.\
2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction.
3. The case comes before the court initiated by due process of law and upon condition precedent to the exercise of jurisdiction. Per BAIRAMIAN J.S.C. (emphasis supplied) see alsoA.G LAGOS STATE V. DOSUNMU (1989) 3 NWLR PT.111 PG.552; SOFOLAHAN V. FOWLER (2002) 13 WRN 1; AMADI V FRN 36 NSCR 1127

Non-compliance with any of the foregoing constitutes an impediment to any adjudicatory process. – Per M. B. Dongban-Mensem, PCA

CASES CITED

STATUTES REFERRED TO

1. Federal Airport Authority Act, Cap. F5, Volume 8, Law of the Federation of Nigeria, 2004

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