CORAM
DAHIRU MUSDAPHER, JUSTICE ,SUPREME COURT
DAHIRU MUSDAPHER, JUSTICE ,SUPREME COURT
PARTIES
OZIGBU ENGINEERING COMPANY LIMITED
ASSET MANAGEMENT CORPORATION OF NIGERIA & ORS
AREA(S) OF LAW
Not Available
SUMMARY OF FACTS
The Appellant instituted a suit against the Respondent before the Federal High Court Port Court Division via a writ of summons. The Respondent on being served with the originating process by the Appellant entered a conditional appearance, raising a preliminary objection on the grounds that: the Plaintiff did not serve on the Defendant the pre-action notice required by the Act establishing AMCON; and that failure to give the pre-action notice robbed the court of jurisdiction to hear the suit. In response, the Appellant filed a reply on points of law contending therein that, it is the intention of Order 29 Rule 4 (b) of the Federal High Court (Civil Procedure) Rules, 2009 and the decisions in John Eze V. Dr Cosmos Ikechukwu Okechuckwu & Ors (2002) 12 SC Part 11 Page 13, and Mobil Producing Nig. Unlimited V. Lagos State Environmental Protection Agency & Ors (2002) 12 SC PART 1 Page 26, that pre action notice being a matter of fact ought to be established by pleadings or in the affidavit, stating the facts of non-issuance; and also that in view of the demand letter of the Respondent to the Appellant on the 24th February 2012, the invocation of section 43 (2) of the AMCON Act 2010, is not sustainable. The suit was struck out on the grounds of non-issuance of statutory pre action notice. Aggrieved by the decision, the Appellant has appealed to the Court of Appeal.
HELD
Appeal Dismissed
ISSUES
Whether the failure to consider and decide the issue raised at paragraph 2.02 did not fatally affect the honorable court’s decision, at all, or as a material and/or a miscarriage of justice, ground one. Whether pre action notice is an issue of law to be presumed, as argued by the respondent or a matter of fact to be factually and evidentially proved grounds two and three.
RATIONES DECIDENDI
ASSET MANAGEMENT CORPORATION OF NIGERIA AMENDMENT ACT, 2019 –IMPORT OF THE PROVISIONS OF SECTION 53 (3) AND (5) OF THE ASSET MANAGEMENT CORPORATION OF NIGERIA AMENDMENT ACT, 2019
“The Amcon Amendment Act, 2019 is clearly a substantive law and not a procedural law, as contended for the respondent; and the provisions of section 53 (3) and (5) are merely meant to express the desire for speedy disposal of Amcon related matters and nothing more. If the intention on the other were to apply the law retrospectively, as rightly submitted for the appellant, the legislature would have made its intention clear, as it usually does.
It is important not to lose sight of the fact also that if the intention is to limit the hearing and determination of AMCON related matters, section 36 (1) of the 1999 Constitution (as amended) has to be reckoned with, as it does not stipulate any time limit within which the rights of a citizen can be determined.
There is no denying that the Amcon Amendment Act, 2019 is an Act of the National Assembly, be that as it may, it is inferior to the Constitution of the Federal Republic of Nigeria in every respect; that being so, one is compelled to hold that this court is clothed with the necessary jurisdiction to hear and determine this appeal as it is. –
ISSUES BEFORE THE COURT -DUTY OF COURT TO PRONOUNCE ON EVERY ISSUE PROPERLY PLACED BEFORE IT BEFORE ARRIVING AT A DECISION
“The issue in question is a challenge of the preliminary objection in this case on failure to issue a pre action notice, that being so, one cannot help but point out right away that the law is settled that it is the duty of every Court to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision. Especially where failing to do so is likely to lead to a miscarriage of justice, of course not ruling out the possibility of breaching the right of the Appellants to a fair hearing; See the decisions in Ovunwo V. Woko (2011) 5 SCNJ 124; Federal College Of Education V. PUSMUT (supra); Dawodu V. National Population Commission (2000) WRN 116 @ 118.In Federal Ministry Of Health v. CSA Ltd. (2009) 9 NWLR (1145)193 at 221 – 1, the Supreme Court held:
“Except in this Court, all issues ought and must be considered and dealt with … except or unless In the clearest of cases … “The exception introduced in the above statement as can be observed, “is in the clearest of cases”.
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ISSUE BEFORE THE COURT-WHETHER FAILURE OF THE COURT TO PRONOUNCE ON ALL ISSUES BEFORE IT WOULD OCCASION A MISCARRIAGE OF JUSTICE
“I quite agree with learned counsel to the appellant that that the learned trial Judge carefully avoided making a specific pronouncement one way or another on this aspect of the issue raised; be that as it may, I take the position that a Judge is not always obliged to consider and determine all issues raised before him as of necessity; this is more so as I do not believe that the failure of the learned trial Judge to pronounce on this aspect of the issue has per se occasioned miscarriage of justice. The effect, when an issue is raised by a party and the Court omits to pronounce on it for whatever reason, depends on the circumstances of each case, especially where the issue in question becomes ancillary during the trial. In such a situation, being an ancillary issue, I do not think the failure of the learned trial Judge to comment on it has occasioned miscarriage of justice in the circumstances of this case; See Ese Uka & Anor. V. Chief Kalu Okorie Irolo & Ors. (2002) 7 SCNJ 137: (2002) 14 NWLR (PT. 786) 195.
The Court is not always bound as of necessity to express its view on every single point raised by a party in order to accept that the party was given fair hearing. The issue becomes relevant only where the point ignored is relevant and would affect the outcome of the judgment. In such cases the court of Appeal will intervene; see Inyang V. Chukwuogor (2007) ALL F.W.L.R (PT 344)165 @ 188. –
PRE ACTION NOTICE- STATUS OF A SUIT COMMENCED IN DEFAULT OF PRE ACTION NOTICE
“Finally, the letter of demand, by the respondent, of the 24th of February 2012, threatening to seek legal redress cannot by any stretch of imagination be said to have obviated the statutory requirement for pre action notice as provided under section 43 of the Amcon Act, 2010; because a suit commenced in default of service of a pre-action notice is incompetent as against the party who ought to have been served with the pre- action notice; bearing in mind the distinction between jurisdictional incompetence which is evident on the face of the proceedings, as in this case, and one which is dependent on ascertainment of facts. It is very important to emphasize that a pre-action notice is a matter of both fact and law, and it is for this reason that it is necessary to come by way motion accompanied by an affidavit, this is so because that is the only platform through which the appellant can admit or deny the filing of the pre action notice”. –
COMPETENCE OF COURT –DUTY OF A COURT TO DECLINE EXERCISING JURISDICTION WHERE IT IS INCOMPETENT
“Where on the face of the proceedings the Court is incompetent, the Court should of itself take note of its incompetence and decline to exercise jurisdiction, as was done in this case, even if the question of its incompetence has not been raised by the parties. If it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain”. –
MISCARRIAGE OF JUSTICE – WHAT AMOUNTS TO MISCARRIAGE OF JUSTICE?
“Justice is only said to have been miscarried, when there is a failure on the part of a Court to do substantial Justice to a party, contrary to the weight of evidence before such a Court; see Chief Alex Olusola Oke &Anor. Vs. Dr. Rahman Olusegun Mimiko &Ors. (2014) 1 NWLR (PART 1388) 332 at 372 A – G Gbadamosi V. Dairo (2007) 3 NWLR (PT. 1021) 282 At 306 and Aigbobahi V. Aifuwa (2006) 6 NWLR (PT. 979) 270 at 290 – 291. –
PRE ACTION NOTICE – ESSENCE OF A PRE ACTION NOTICE AND EFFECT OF FAILURE TO GIVE NOTICE WHERE SAME IS REQUIRED
On the second issue, it is important to bear in mind that the basic principle behind the requirement of a pre-Action Notice is to present beforehand the grudge or discontentment of the Plaintiff to the Defendant by way of notice so as to give the said Defendant a full opportunity to thoroughly peruse the Plaintiff’s claim and decide whether to settle and compromise the claim or to stand his ground on the act that led to the complaint and thus leave the Plaintiff to seek redress in a Court of law. In other words, it is to allow the proposed Defendant time to consider whether to make preparations or not. The whole essence of serving a Pre-Action Notice on a party is such that a party is not taken by surprise; thus giving him adequate time to deal with the claim against him; See Nnoye V. Anyichie (2005) 2 NWLR (Pt.910) 623; Eti-Osa Local Government V. Jegede (2007) 10 NWLR (PT 1043) 537; Amadi V. NNPC (2000) 6 SC (pt 66) and Gbadamosi V. Nigeria Railway Corporation (2007) ALL FWLR (PT 367) 855.
It is for this reason that failure to give Pre-Action Notice is a fundamental omission which invariably nullifies any action taken in its absence. I n other words, any action commenced without issuing a Pre-Action Notice where it is statutorily provided for renders it incompetent; See Shaibu V. NAICOM (2002)12 NWLR (PT 780) 116 and Umukoro V. N.P.A. (1997)4NWLR (PT 502) 656.
In the instant case, there is no proof that the appellant served a pre-action notice on the respondent, anywhere in the record of appeal, as required by Section 43 of the Amcon Act, 2010. It is a condition precedent that must be satisfied, failure of which renders the suit against the Appellants incompetent; see Nig. Dev Co Ltd V ASWB (2008) 9 NWLR part 1093 page 498, where the Supreme Court held:
” … an action commenced without pre action notice, where one is statutorily required, is a nullity ab initio.” Per Tobi JSC pp34-35 paragraphs D-A and also Eze V Okechuckwu (2002) 12 S.C part II page 103, where the apex court also held:
” … pre action notice, where prescribed by law, it is to appraise the defendant before hand of the nature of the action contemplated and to give him enough time to consider or to reconsider his position in the matter… the giving of pre action notice has nothing to do with the cause of action. It is not substantive element but a procedural requirement. .. “. per Uwaifo JSC.
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PRE ACTION NOTICE – WHETHER THE SERVICE OR NON- SERVICE OF A PRE ACTION NOTICE CAN BE ASCERTAINED FROM THE DEPOSITION OF FACT IN AN AFFIDAVIT
“As it was clearly stated in the lucid lead judgment, the issue whether a pre action notice was served or not, involved fact and in order to prove service, there was the need for an affidavit. There ought to be deposition to fact of service or non-service. The position of the law is settled as stated in the case of Ames Electrical Co. Ltd V. FAAN 2002. 1 NWLR PT. 748 P. 354 referred to in the judgment. See further the cases of A-G. FED. V. A.N.P.P. 2003 18 NWLR PT. 851, 182 and FAAN V. Ani 2010 LPELR – 4147-
PRE ACTION NOTICE – DUTY OF COURT WHERE NON-ISSUANCE OF PRE ACTION NOTICE IS ALLEGED
“The law is quite settled that the issuance or otherwise of a pre-action notice is a matter of fact which may be raised in an affidavit or statement of defence. See the case of Ames Electrical Co. Ltd V. FAAN (2002) 1 NWLR (PT 748) 354, (2001) LPELR-6974 (CA). It is also correct to say that a pre-action notice is a matter of law because the Court, where non-issuance of it is alleged, must ascertain that fact. When the court reaches a finding that it was not issued before the commencement of action in which it is raised it will proceed to apply the law to hold that the action is incompetent. –
PRE ACTION NOTICE – STATUS OF AN ACTION COMMENCED WITHOUT THE ISSUANCE OF A PRE ACTION NOTICE WHERE SAME IS STATUTORILY REQUIRED
“It is also settled law that any action commenced without the issuance of a pre-action notice where it is statutorily required renders it incompetent. See Shaibu V. NAICOM (2002) 12 NWLR (Pt 780) 16, Umoko V. NPA (1997) 4 NWLR (Pt 502) 656”.-
CASES CITED
Not Available
STATUTES REFERRED TO
Asset Management Corporation of Nigeria Act, 2010|Asset Management Corporation of Nigeria (Amendment) Act, 2019|Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Federal High Court (Civil Procedure) Rules, 2009|