CORAM

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O. ATAWURA – JUSTICE, SUPREME COURT

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PARTIES

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UKOHA UDE AKANU & ANOR

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OSISIOMA NGWA LOCAL GOVERNMENT

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellants’ father bought from the original owners, a piece of land in 1990 within the larger piece of land known as and called ‘ALAOJI OKPORONKPA’ lying and situated at Umuechem Village of Osisioma Ngwa Local Government Area of Abia State. He developed the land into a block of commercial stores and rented them out to tenants and reserved some of the stores for his personal use. He consequently applied and obtained statutory right of occupancy over the said piece of land. The statutory right of occupancy was issued on 23th June, 1993 and registered as No. 4 at page 4 in Volume 9 in the Lands Registry, Umuahia. It was alleged that on 21st October, 2004, the Respondent mobilized its staff, thugs and armed policemen who forcibly entered the said property, chased away the Claimant and purported to have acquired the land; carried out some further development of the land, rented the stores therein to tenants who have been paying rent to the Respondent. The Appellants’ father consequently served pre-action notice on the Respondent and following the expiration of the pre-action notice, filed a suit on 17th February, 2005 against the Respondent. After hearing the case in full, the learned trial Court rather struck out the suit for non-compliance with the pre-action notice, upon the complaint of the Respondent that the Plaintiff did not comply with the provisions of Sections 138 and 139 of the Local Government Law. The High Court, however, admitted the pre-action Notice as (Exhibit D) and therefore struck out the suit of the Appellants’ father for being incompetent, saying the Court had no jurisdiction to entertain it. Dissatisfied, the Appellants appealed to the Court of Appeal.

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HELD

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Appeal Allowed

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ISSUES

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Whether the learned trial judge was right in holding that the claimant did not adduce sufficient evidence to prove that Exhibit ‘D’ was delivered to the Secretary of Osisioma Ngwa Local Government. Whether the trial judge correctly and sufficiently appraised and evaluated the evidence placed before him by claimant before striking out his case.

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RATIONES DECIDENDI

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BRIEF OF ARGUMENT – WHETHER THE FAILURE OF THE RESPONDENT TO FILE BRIEF OF ARGUMENT PREVENTS THE COURT FROM CONSIDERING THE APPELLANT’S BRIEF ON THE MERIT

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“As earlier stated, the Respondent did not file any brief in this Appeal and so Appellants’ arguments are unchallenged. But in keeping with the legal tradition, Appellants’ argument and the Appeal must still be considered on the merits, the failure to challenge it by the Respondent, notwithstanding. See Okoro Vs The State (2018) LPELR – 44273 CA; Iwuji Vs Ugorji (2015) LPELR – 24354 CA; Skye Bank & Anor Vs Akinpelu (2010) LPELR – 3073 SC; Iwuoha & Anor vs Ohazuruike & Ors (2016) LPELR – 40513 CA”. –

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PRE-ACTION NOTICE – WHETHER A PRE-ACTION NOTICE MUST BE SERVED ON THE SECRETARY/CHAIRMAN OF A LOCAL GOVERNMENT PERSONALLY BEFORE IT CAN BE ACTIVATED

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The trial Court, in my opinion, also erred when it held that non-compliance with pre-action notice is not a mere irregularity that can be waived, but a statutory requirement that cannot be waived and is fatal to the case of the plaintiff. The law appears to have developed and moved away from that narrow technical stance, which delights in employing the slightest excuse to do damage to the merit/substantive interest of a case. It is difficult, for me, to understand why the trial Court said the pre-action notice must be served on the Secretary or Chairman of a Local Government, personally, before it can be activated, and not on his office, whereof his staff/officer in the office can collect the process for him (Secretary/Chairman), especially where such process is sent by registered post by courier service, addressed to the office Secretary or Chairman of the Local Government. See the case of  Registered Trustees of the Acts of Apostles Church Vs Patunde (supra): Where a party denies being served with a document, in other words, where it is alleged that a document was delivered to a person who denied receiving it, recourse must be made to the proof of actual service on the said party. Proof of delivery to such a person can be established by: d) Dispatch book indicating receipt; or
e) Evidence of dispatch by registered post; or
f) Evidence of a witness, credible enough that the person was served with the document
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DOCUMENTARY EVIDENCE- WHETHER ORAL EVIDENCE CAN BE USED TO VARY A WRITTEN DOCUMENT

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“By law, oral evidence cannot be used to deny, discredit, vary, discount or dispute a written document on the same issue. See Odugbemi & Anor Vs Shanusi & Ors (2018) LPELR 44868 CA; Atiba Iyalanu Savings & Loans Ltd Vs Suberu & Anor (2018) LPELR 44069 SC . In the case of Nwoha Vs Ene & Ors (2015) LPELR 24551 (CA), this Court said: Of course, in law, an oral evidence will always surrender to the dictates of a documentary evidence on a given issue, since the latter is superior and more reliable, and one cannot use oral deposition to vary what was agreed upon in a written agreement.
See Intercontinental Bank Plc Vs Hilman & Bros. Water Engineering Service Ltd (2013) LPELR 20670 (CA); UBN Vs Ajabule (2012) All FWLR (pt. 611) 1413. –

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PRE-ACTION NOTICE -WHETHER FAILURE TO COMPLY WITH PRE-ACTION NOTICE CAN BE WAIVED

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“See A.G. Kwara State Vs Olawale (1993) NWLR (Pt.272) 645: Although a party to a suit is not obligated to testify on his own behalf, where a party’s case before a Court of Justice is such that he is expected to swear to its truth, and be cross-examined thereon, and he fails to submit to these as in the instant case, that is a point that can go against his credit and be a good ground for the rejection of his case. This is because, it is the law that in civil cases, it is the balance of evidence called by either side to the litigation that is the only acceptable method of making conclusive findings By law, failure to serve a pre-action notice cannot be elevated to a fundamental vice, to deny a claimant right to seek redress, in my view. See the case of Mekaowulu vs Ukwa West Local Government Council (2018) LPELR 43807 CA, where we held:
Appellant had cited judicial authorities, and rightly, in my view, to explain the purpose of serving a pre-action notice on a defendant; that it is meant to give him opportunity to settle the dispute, amicably, without resort to Court action; that the requirement of notice cannot be elevated to deny a claimant right to seek redress in Court. The case of Amadi Vs NNPC(2000) 10 NWLR (pt. 674) 76 is quite instructive, where it was held:
“the purpose of giving notice of claim to local government of claim against it is that it is not taken by surprise, but to have adequate time to prepare to deal with the claim in its defence. The purpose of the notice is not to put hazards in the way of bringing litigation against it. Katsina Vs Makudawa (1971) NMLR 100. See also Mobil Producing (Nig) Unltd Vs LASEPA (2002) 18 NWLR (pt. 798) 1 at 36, where the Supreme Court held:
“A pre-action notice, which is for the benefit of the person or agency on whom or on which it should be served, is not to be equated with processes that are an integral part of the proceedings, initiating process. Rather, its purpose is to enable that person or agency to decide what to do in the matter, to negotiate or reach a compromise or have another hard look at the matter in relation to the issues and decide whether it is more expedient to submit to jurisdiction and have a pronouncement on the point in controversy.”
In the case of Nigerian Ports Authority Plc vs Ntiero  (1998) 6 NWLR (pt. 555) 640 at 651, it was held:
“A pre-action Notice is usually in order to give the prospective Defendant an opportunity to meet the prospective plaintiff and negotiate any possible out of Court settlement. The Supreme Court in Ntiero Vs NPA (2008) 10 NWLR (pt. 1094) 129, said that A pre-action Notice connotes some form of legal notification or information required by the law or imparted by operation of law, contained in an enactment, agreement or contract, which requires compliance by the person who to under a legal duty to put on notice the person to be notified before the commencement of any legal action against such a person The effect of non-compliance with service of pre-action notice, amounts to irregularity It may be mentioned that the effect of non-service of a pre-action notice, where it is statutorily required is only an irregular, which however renders the action incompetent. It follows therefore that the irregularity can be waived by the defendant who fails to raise it either by motion or plead it in the statement of defence If therefore, a defendant refuses to waive it and he raises it, then the issue becomes a condition precedent, which must be met before the Court would exercise its jurisdiction.”
The principles in the above decision show, clearly, that failure to comply with pre-action notice is only an irregularity which can be waived, and is waived, where the Defendant has taken full part in hearing of the case, and only raises it at the point of Counsels address, or had raised it in the pleadings (statement of the defence) but failed to get it determined as a threshold issue. See Nwaiwu & Ors Vs Gov. of Imo State (2013) LPELR 20690 CA , where it was held: “It should however, be noted that non-compliance with the requirements of a pre-action notice, does not abrogate the right of a plaintiff to approach the Court or defeat the action. That is so because where the subject matter of the suit is within jurisdiction of the Court, the failure to serve a pre-action notice on the defendant, only gives such defendant a private right, to insist on such notice before the plaintiff can activate his own right to sue the defendant on the issue. Accordingly, non-service of pre-action notice merely puts the jurisdiction of the Court at abeyance or on hold, pending compliance with the requirement of pre-action notice However, a distinction must be drawn between jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. That is because, while a litigant can waive the matter of procedural law, no litigant can waive or confer substantive jurisdiction in a Court, where the Constitution or statute or any other provision of the common law says that the Court shall have no jurisdiction, or that it has jurisdiction, as the case may be. Thus, where by the provisions of a statute, an action shall be commenced in a particular way or manner against a party, such prescription is procedural. In that respect, where an action is commenced against such a party in breach of that procedural requirement, and such a defendant did not complain, but took active part in the proceeding, he cannot later be heard on appeal to complain, so as to take advantage of the irregularity. See Ndayako Vs Dantoro (2004) 12 NWLR (pt. 889) 189; BBN LTD vs OLAYIWOLA & SONS LTD (2005) 3 NWLR (pt. 912) 434” –

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PRE-ACTION NOTICE-CONSEQUENCE OF FAILURE TO RAISE AN OBJECTION TIMEOUSLY ON THE LACK OF SERVICE OF A PRE-ACTION NOTICE

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“A party who wishes to raise an issue of lack of service of pre-action notice is expected to raise same, timeously, by way of objection to the trial, but where he fails to do so, and takes part in the trial, he is presumed to have waived the right to complain. See Nwaiwu & Ors Vs Gov. Imo State & Ors (Supra); Mobil Oil Producing Co. Nig Ltd Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt. 798) 1; Ojo & Anor Vs NPC. & Anor (2019) LPELR 47839 (SC). –

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PROOF OF SERVICE- MEANS BY WHICH SERVICE CAN BE PROVED

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“That, in my opinion, satisfies the requirement of the law, as per the case of RTAAC VS Patunde & 3 Ors (2009) 8 NWLR (Pt.1144) 5131: Where a party denies being served with a document, in other words, where it is alleged that a document was delivered to a person who denied receiving it, recourse must be made to the proof of actual service on the said party. Proof of delivery to such a person can be established by: g) Dispatch book indicating receipt; or
h) Evidence of dispatch by registered post; or
i) Evidence of a witness, credible enough that the person was served with the document I had earlier stated that such clear and credible documentary report of service of the pre-action notice on the Respondent, cannot be defeated by mere oral deposition of the DW1, a clerical officer, who came to Court to deny receipt of the Exhibit D by the Secretary of the Respondent. See Champion Breweries Plc Vs Specialty Link Ltd & Anor. (2014) LPELR 23621 (CA); Ero & Ors Vs Eweka (2018) LPELR 46093 CA. This is because documentary evidence remains the best evidence. Sankey Vs Onayifeke (2013) LPELR 21997 CA; Aza & Anor Vs Agbom & Ors (2015) LPELR 40484 CA; Nekpenekpen Vs Egbemhonkhaye (2014) LPELR 22335 CA; A G. Bendel State vs UBA Ltd (1986) 4 NWLR (pt. 37) 547; Agbareh Vs Mimra (2008) 2 NWLR (pt. 1071) 378. –

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PRE-ACTION NOTICE- EFFECT OF FAILURE TO RAISE AN OBJECTION TIMEOUSLY FOR LACK OF SERVICE OF A PRE-ACTION NOTICE

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“Even if the claim of non-service of the pre-action notice were to be credible (which is not), the fact that the Respondent took active part in defending the suit, to conclusion, without raising objection to the trial, timeously, as it earlier indicated in last paragraph of its pleading (page 21 of the Records),implied that the Respondent had waived the right to rely on such procedural right. See Feed & Food Farms (Nig) Ltd Vs NNPC (2009) LPELR 1274 SC; See also Mekaowulu Vs Ukwa West Local Government Council(2018) LPELR 43807 CA, where we held: There is also evidence that the Respondent never raised any preliminary objection against the suit, on the alleged non-service of the pre-action Notice, or on the alleged limitation bar relied on by the trial Court to strike out the suit. The Respondent had taken part in the trial to conclusion, before its Counsel thought it wise to make a heavy weather of the alleged failure to issue proper pre-action notice Thus, even if there was any substance in those allegations (which is not conceded), such would only have amounted to irregularity, which would have been waived by the Respondent Ntiero Vs NPA(Supra)  –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Court of Appeal Act|Court of Appeal Rules 2011|Local Government Law of Imo State, Cap 25, Laws of Abia State 1991 2000 (now repealed)|

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