CORAM

---

HON. JUSTICE Y. M. HASSAN

---

PARTIES

---

OKESOLA OLUMIDE ADEDEJI

APPELLANTS 

---

1. NIGERIA SECURITY AND CIVIL DEFENCE CORPS.

2. NIGERIA SECURITY AND CIVIL DEFENCE CORPS BOARD

RESPONDENTS 

---

AREA(S) OF LAW

---

EMPLOYMENT LAW, PRACTICE AND PROCEDURE, CIVIL PROCEDURE, JURISDICTION, PRE-ACTION NOTICE, CONDITION PRECEDENT, STATUTORY INTERPRETATION, LOCUS STANDI

 

---

SUMMARY OF FACTS

The Complainant/Respondent, Okesola Olumide Adedeji, filed a suit against the 1st Respondent/Applicant, Nigeria Security and Civil Defence Corps (NSCDC), and the 2nd Respondent/Applicant, Nigeria Security and Civil Defence Corps Board. The Defendants/Applicants filed a Notice of Preliminary Objection dated and filed on June 20, 2025, brought pursuant to Section 2(1), Section 20(3) and (4) of the NSCDC Enabling Act 2003 as amended 2007, and under the inherent jurisdiction of the Court.

The Defendants/Applicants contended on four grounds: first, that the Complainant/Respondent failed to comply with the condition precedent in Section 20(3) and (4) of the NSCDC Act by not serving a pre-action notice of intention to sue before instituting the action; second, that the 2nd Defendant/Applicant, the NSCDC Board, was not a natural or juristic person capable of being sued; third, that the suit was not competent; and fourth, that the Court lacked jurisdiction to entertain the suit. Notably, the Defendants/Applicants filed no affidavit in support of their Preliminary Objection.

In opposition, the Complainant/Respondent filed a Counter Affidavit and Written Address contending that the suit was competent, that the Court had jurisdiction, and that an incompetent process ought to be struck out rather than dismissed. The Complainant’s Counsel made no submissions whatsoever on the issue of non-compliance with the pre-action notice requirement under Section 20(3) and (4) of the NSCDC Act.

The Court first discountenanced the Counter Affidavit filed by the Complainant/Respondent on the ground that a counter affidavit cannot be filed where there is no affidavit to counter, since the Defendants/Applicants filed no supporting affidavit with their Preliminary Objection. The Court then proceeded to consider whether the suit was competent in view of the alleged non-compliance with the pre-action notice requirement.

The Court found that the Complainant/Respondent failed to attach a photocopy of any pre-action notice to the originating processes and also failed to address the issue in his written address, and thus concluded that the condition precedent under Section 20(3) and (4) of the NSCDC Act was not fulfilled. The suit was accordingly struck out for want of jurisdiction.

 

---

HELD

---

The Court sustained the Preliminary Objection and struck out the suit. The Court held that the Counter Affidavit filed by the Complainant/Respondent was discountenanced as there was no affidavit filed by the Defendants/Applicants to be countered. The Court further held that jurisdiction is a fundamental and threshold issue that goes to the root of every trial, and that a court is only competent when the case comes before it by due process of law, including the fulfillment of any condition precedent. The Court found that the Complainant/Respondent failed to serve a pre-action notice on the Defendants/Applicants as required by Section 20(3) and (4) of the NSCDC Act before instituting the suit, and produced no evidence of such compliance. The Court held that non-compliance with the pre-action notice requirement rendered the suit incompetent and divested the Court of jurisdiction. The suit was accordingly struck out. No order as to costs was made.

 

---

ISSUES

---

1. Whether the Complainant/Respondent complied with the condition precedent under Section 20(3) and (4) of the NSCDC Act 2003 (as amended 2007) by serving a pre-action notice before instituting the suit, and whether this Court has jurisdiction to hear and determine the suit?

2. Whether the 2nd Defendant/Applicant, the Nigeria Security and Civil Defence Corps Board, is a natural or juristic person capable of being sued?

3. Whether the 1st Defendant/Applicant as listed as a party is the same as the NSCDC Oyo State Command as described in the General Form of Complaint?

4. Whether the failure to comply with the pre-action notice requirement renders the suit incompetent and divests the Court of jurisdiction?

 

---

RATIONES DECIDENDI

---

JURISDICTION — NATURE AS FUNDAMENTAL AND THRESHOLD ISSUE THAT IS THE LIFE BLOOD AND BEDROCK OF ALL TRIALS

---

“It is elementary law that a challenge on the jurisdiction of the court goes to the root of same. Therefore, it is trite law that jurisdiction is the authority of the Court to adjudicate over the question that give rise to the cause of action. It is a fundamental and threshold issue being the life blood and bedrock of all trials. Without jurisdiction, no doubt the trial will amount to an exercise in futility and a nullity. In support of this see the cases of OKOLONWAMU v. OKOLONWAMU (2019) 9 NWLR (Pt. 1676) 1 at 21, Para A; GTB. v. TOYED (NIG) LTD (2016) LPELR-4181(CA); ODOM v. P.D.P (2015) 6 NWLR (Pt. 1456) 527 at 548, Paras C-D.” — Per Hon. Justice Y. M. Hassan

 

---

CONDITIONS FOR COMPETENCE OF A COURT — THREE REQUIREMENTS THAT MUST BE SATISFIED FOR A COURT TO EXERCISE JURISDICTION

---

“A Court is only competent to entertain a case when the subject matter of the case is within its jurisdiction, there is no feature in the case which prevents the Court from exercising its jurisdiction, and the case comes before the Court initiated by the due process of law upon the fulfillment of any condition precedent to the exercise of jurisdiction. See the cases of MADUKOLU v. NKEMDILIM (1962) NSCC 374 at 379-380; OLORIODE v. YUNUSA (2010) 10 NWLR (Pt. 1201) 80 at 101-102; HOPE DEMOCRATIC PARTY v. OBI (2011) 12 MJSC 67.” — Per Hon. Justice Y. M. Hassan

 

---

INTERPRETATION OF STATUTES — WHERE WORDS ARE CLEAR AND UNAMBIGUOUS THEY SHOULD BE GIVEN THEIR ORDINARY MEANING

---

“It is also pertinent to note that in construing the provisions of statute and by necessary implication, a document, where words are clear and unambiguous, it is the words used that prevail and not what the Court says of the provision means, unless where giving a literal interpretation might lead to absurdity…” — Per Hon. Justice Y. M. Hassan

 

---

PRE-ACTION NOTICE — FAILURE TO SERVE PRE-ACTION NOTICE AS CONDITION PRECEDENT RENDERS ACTION INCOMPETENT AND DIVESTS COURT OF JURISDICTION

---

“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 preaction notice renders the action incompetent, ineffective and void ab initio…” — Per Hon. Justice Y. M. Hassan

 

---

NON-COMPLIANCE WITH PRE-CONDITION — WHERE THERE IS NON-COMPLIANCE WITH PRESCRIBED PRE-CONDITION FOR SETTING A LEGAL PROCESS IN MOTION THE SUIT IS INCOMPETENT AND COURT LACKS JURISDICTION

---

“Where there is non-compliance with the stipulated pre-condition for setting a legal process in motion, any suit instituted in contravention of the pre-condition provision of the relevant law is incompetent and a Court of law, is for that reason, lacking in jurisdictional power to entertain it…” — Per Hon. Justice Y. M. Hassan

 

---

PRE-ACTION NOTICE UNDER NSCDC ACT — SECTION 20(3) AND (4) MANDATES SERVICE OF NOTICE OF INTENTION TO SUE BEFORE EXPIRATION OF ONE MONTH PRIOR TO COMMENCEMENT OF ACTION

---

“The wordings used in the above quoted Section 20(3) and (4) of NSCDC Act are clear, plain and unambiguous. As such, the law is settled that in interpretation of a document or statute, where the words used are clear and unambiguous, they should be given their ordinary meaning. In this respect, I refer to the case of FBN LTD v. OGWEMOH (2023) LPELR-60298 where Court of Appeal per MUHAMMED LAWAL SHUAIBU, JCA at Page 24-24, Paras AB held thus: ‘It is also pertinent to note that in construing the provisions of statute and by necessary implication, a document, where words are clear and unambiguous, it is the words used that prevail and not what the Court says of the provision means, unless where giving a literal interpretation might lead to absurdity…'” — Per Hon. Justice Y. M. Hassan

 

---

COUNTER AFFIDAVIT — CANNOT BE FILED WHERE THERE IS NO AFFIDAVIT TO COUNTER

---

“… how can one file a counter affidavit when there is no an affidavit for it to countered? It is elementary that a counter affidavit is an affidavit made and presented in contradicted or opposition to an affidavit which is made on the basis or in support of a motion or application or otherwise.” — Per Hon. Justice Y. M. Hassan

 

---

JURISDICTION — CAN BE RAISED AT ANY STAGE OF PROCEEDINGS EVEN FOR THE FIRST TIME AT THE SUPREME COURT

---

“The question of jurisdiction being radically fundamental can be raised at any stage of the proceedings even for the 1st time at the Supreme Court by either party or the Court. Reference was made to the Cases of C.G.C (NIG) LTD v. OGU (2005) NWLR (Pt. 927) 366 at 385; ORIORIO v. OSAIN (2017)16 NWLR (Pt. 1327) SC Pg. 560; MADUKOLU v. NKEMDILIUM (1962) 2 SCNLR 241.” — Per Hon. Justice Y. M. Hassan

 

---

INCOMPETENT SUIT — WHERE COURT HOLDS IT HAS NO JURISDICTION TO ENTERTAIN AN ACTION IT STRIKES IT OUT AND DOES NOT DISMISS IT

---

“Where a Court holds that it has no jurisdiction to entertain an action, it does not dismiss the action but merely strikes it out…See also cases of AJAYI v. ADEBIYI (2012) 11 NWLR (Pt. 1310) 137; PROSAFE PRODUCTION SERVICES LTD v. OSBIR (2018) 18 NWLR (Pt. 1650).” — Per Hon. Justice Y. M. Hassan

 

---

FILING OF PRE-ACTION NOTICE — PHOTOCOPY OF PRE-ACTION NOTICE MUST BE FILED ALONG WITH ORIGINATING PROCESSES AND FAILURE TO DO SO MAY RENDER PROCESS INCOMPETENT

---

“Order 3 rule 23(1) and (2) of the rules of this Honourable Court which provides thus:- ‘(1) Whenever service of pre-action notice is statutorily required for a party to bring an action against a defendant, the party bringing the action shall file a photocopy of the pre-action notice served on the Defendant along with an originating process. (2) Where an action is filed without a photocopy of the pre-action notice, the Court may declare the process incompetent.'” — Per Hon. Justice Y. M. Hassan

 

---

JURISTIC PERSON — ONLY NATURAL OR JURISTIC PERSONS ARE CAPABLE OF SUING AND BEING SUED

---

“The 2nd Respondent is not a natural or juristic person capable of being sued and wrongly joined in this suit by the Claimant/Respondent. On the two categories of persons who can sue and be sued, Counsel referred to the case of A.G. FEDERATION v. ALL NIGERIA PEOPLES PARTY (2003) 18 NWLR 182.” — Per Hon. Justice Y. M. Hassan

 

---

CAPACITY TO BE SUED — BRINGING AN ACTION AGAINST A PARTY THAT LACKS CAPACITY TO BE SUED IS A FUNDAMENTAL ERROR THAT NEGATIVELY IMPACTS ON JURISDICTION

---

“The effect of bringing an action against a party that lacks the capacity to be sued, as in the instant case done by the Applicant/Respondent in relation to the 2nd Defendant/Applicant, he submitted that it is a fundamental error and negatively impacts on the jurisdiction of the court to entertain the suit as against such a party. Reliance was placed on the case of ATAGUBA & CO. v. GURA (NIG) LTD (2005) 8 NWLR (Pt. 927) 429.” — Per Hon. Justice Y. M. Hassan

 

---

CONDITION PRECEDENT — FAILURE TO FULFILL PRESCRIBED CONDITION PRECEDENT MAKES ACTION INCOMPETENT AND ROBS COURT OF JURISDICTION

---

“It is apparent that the Complainant/Respondent’s suit was not initiated by due process of law in line with Section 20(3) and (4) of NSCDC Act. I so hold. In the final analysis and for all I have been saying above, it is my considered opinion that the Defendants/Applicants’ preliminary objection is meritorious and is hereby sustained and this Honourable Court lacks requisite jurisdiction to hear and determine the Complainant/Respondent’s suit as presently constituted.” — Per Hon. Justice Y. M. Hassan

 

---

CASES CITED

---

---

STATUTES REFERRED TO

---

1. Nigeria Security and Civil Defence Corps (NSCDC) Act 2003 (as amended 2007) — Sections 2(1), 20(3) and (4)

2. National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 — Order 3 Rules 23(1) and (2)

3. Constitution of the Federal Republic of Nigeria 1999 (as amended)

 

---

OTHER CITATIONS

---

---

CLICK HERE TO READ FULL JUDGMENT