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In The Supreme Court of On Friday, the 28th day of January 2005
Before Their Lordships
S.C.
265/2000
Between
And
Judgment of Court
Delivered by
Sunday
Akinola Akintan.
J.S.C.
The appellant, as plaintiff,
instituted this action at Awka High Court in
Anambra State as suit No AA/157/88
against the respondents as defendants jointly and severally. His claim, as
set out in paragraphs 9 of his statement of claim, was for a total sum of
Pleadings were filed and
exchanged. The defendants thereafter filed a motion in which they prayed the
trial court for the following relief:-
"An order
striking out this suit for not being properly before the Honourable Court."
The motion was supported by a
9-paragraph affidavit and a further affidavit both deposed to by the 1st
defendant. Paragraphs 1, 4, 5, 6 & 7 of the affidavit read as follows:-
"1.
That I am the 1st defendant on record in this suit.
4.
That the 2nd and 3rd defendants are bailiffs attached to the High
Court of Justice, Awka. That I am informed by
the 2nd and 3rd defendants on record who are bailiffs that no notice was
served on them before the commencement of this suit and I verily believe
them.
6.
That the 2nd and 3 defendants at all
material time to the case acted in their official capacities.
7.
That the order the defendants executed which gave
rise this action was a valid order properly signed by a High Court
Judge."
The motion was opposed by the
plaintiff and to that end he filed a 7 paragraph counter-affidavit and a
further counter-affidavit. Paragraphs 4, 5 and 6 of the counter-affidavit
read as follows:-
"4.
That there was no valid subsisting order of costs in respect of which
the 1st defendant has any right of recovery.
5.
That both the trial Judge who signed the writ of
fifa after the nullification of the proceedings and the orders for
costs therein and the 1st defendant's counsel in suit No.
AA/LGE.8/88 were
aware of the wrongfulness of levying execution on the invalid order, but
nevertheless persisted in enforcing a claim that no longer existed.
6.
That the plaintiff averred in paragraph 6 of his statement of claim
that he demanded from the bailiffs authority for their action and they
responded by showing him Form 41 issued on 13th October, 1988."
The matter came for hearing
before Uzodike, J. And after taking submissions
from learned counsel for the parties, he delivered his reserved ruling on
13/7/95. The learned Judge in his said ruling upheld the objection to
jurisdiction raised and struck out the plaintiff's claim. The plaintiff was
dissatisfied with the ruling and he appealed to the Court of Appeal. He also
lost in the Court of Appeal and the present appeal is against the judgment
of the Court of Appeal in the case delivered in suit No. CA/E/30/96 on
26/10/99.
The appellant filed three
grounds of appeal against the judgment. He also filed an appellant's brief
while a joint brief was filed on behalf of the three respondents. The
appellant formulated the following three issues arising for determination in
the appeal:
“1.
Whether the Hon. learned Justices of the Court of
Appeal were right in holding that
the conditions of demand and refusal as contained in section 41 of the
relevant law must be construed ‘conjunctively' so that
a demand which was met without
'refusal first' does not in law satisfy the intendment of that section of
the law.
2.
Whether the learned Justices of the Court of Appeal were right when
they ignored consideration of the question of interpretation of the legal
effect of the expression: "A demand for inspection of authority of the
bailiffs" and "a challenge for authority of the bailiff with reference to
the issue of satisfaction of conditions
precedent under the relevant
section 41 of the law."
3.
Whether the learned Justices of the Court of Appeal were right when
they held that the trial High Court Judge acted properly when he, the Judge,
struck out the suit without
considering at all the contents of the pleadings already exchanged by the
parties and the legal effect of the
admissions of the defendants in the defence filed which did not challenge
any condition precedent but he
struck out the suit on allegation of non-compliance in a subsequent
motion."
The respondents, on the other
hand, formulated one issue in their joint brief. As the single issue
formulated in their said brief is
g just a summary of the 3 issues formulated in the appellant's brief,
which I have already reproduced above, I do not consider it necessary, to
reproduce it.
The objection raised by the
defendants at the trial court is that the plaintiff failed to comply with
the mandatory provisions of section
41(1) of the Sheriffs
and Civil Process Law which provides as follows:-
"No action shall be commenced
against any bailiff for anything done in obedience to any process issued by
a court unless:-
(a)
demand for inspection of the process and for a copy thereof is made
or left at the office of the bailiff by the party intending to bring the
action or his solicitor or agent in writing signed by the person making the
demand; and
(b)
the bailiff refuses or neglects to comply
with the demand within six days after it is made."
As could be seen from the
contents of the plaintiff/appellant's counter-affidavit reproduced above, no
where did the plaintiff depose that he made the required demand for
inspection of the process in writing and deliver same to the 2nd and 3rd
defendants/respondents directly or left such demand at the office of the two
bailiffs as prescribed in section 41(1)(a) of the
Sheriffs and Civil Process Law. It is however submitted in the first
issue of the appellant's brief that the sole intention or purpose of the
provision of the said section 4(1)
is
to provide for clear understanding by any person that a bailiff acted with
or without authority of the court. The law is therefore said to require that
an aggrieved party who contemplates instituting an action to make a demand,
that is, ask to see if the bailiff was in fact on genuine duty or he was
merely fraudulently impersonating, It is therefore submitted that a demand
which is made and contemporaneously met does not need a further step to
achieve the objective of the demand which is already satisfied.
It is also submitted in the
appellant's second and third issues that a mere challenge on the bailiff to
produce his authority is in the same term as demand made on him. A demand
and refusal on the bailiff is therefore said to have satisfied the
requirement of the provisions of the said law. The learned trial Judge is
therefore said to have acted wrongly by striking out the suit on ground of
incompetence for alleged non-compliance with a condition precedent. This is
said to have been made regardless of the contents of the plaintiff's
pleadings in the statement of claim showing evidence of satisfaction of the
condition precedent and which the defendants did not deny in their statement
of defence.
The particular pleadings in
the plaintiff's statement of claim referred to in the appellant's brief as
his claim to have satisfied the provisions of the law is contained in
paragraph 6 of the statement of claim. There the plaintiff pleaded as
follows:-
“6.
When the plaintiff further
challenged the legality action in sealing up the plaintiff's store, the 1st
defendant then purported to be acting in enforcement of an order of
court for
It is submitted in reply in
the respondents' brief that the appellant never complied with any of the
provisions of section 41(1) of the Sheriffs and Civil Process law.
Consequently, the High Court lacked jurisdiction to entertain the case
as it was not competent. The High Court is said to have no discretion to
invest itself with a jurisdiction denied it by section 41(1) of the
Sheriffs and Civil Process Law. A court is said to be only competent
when, among others, the case comes before the court is initiated by due
process of law and upon fulfilment of any condition precedent to the
exercise of jurisdiction. The decision in Madukolu
v. Nkedilim (1962) 2 SCNLR 341, (1962) 1 All
NLR (Pt.4) 587 at 595 is cited in support of the submission. We are
therefore urged to dismiss the appeal.
The provisions of section
41(1) of the Sheriffs and Civil Process Law are what we are called
upon to interpret in this appeal. It is settled law that it is both
elementary and also fundamental principle of interpretation of statutes that
where the words of a statute are plain, clear and unambiguous, effect should
be given to them in their ordinary and natural meaning except where to do so
will result in absurdity: see Shell Petroleum Dev. Co. (Nig.) Ltd. v.
F.B.I.R (1996)
8
NWLR (Pt. 466) 256 at Lawal v. G.B Olivant
(1972) 3 SC 124 at
137;
Toriola v. Williams (1982) 7 SC 27 at 46; and
Oladokun v.
It is clear from the wording
of the section that the requirement of the provisions is mandatory, hence
the use of the words: “No action shall be commenced ..." Similarly, the
demand is required to be in writing and signed by the person making the
demand, that is, the appellant in the instant case. Another important
condition prescribed by the provision of the section is that the demand can
only be made after the person making the demand has made up his mind about
commencing an action against the bailiff. The condition is not met if the
said demand is made when no action is yet being
g contemplated. It follows therefore that a demand made from a
bailiff at the time he arrives with the writ of fifa
to levy execution cannot be a demand within the provisions of section 41(1)
because, as at that time, commencing an action against the bailiff was not
being contemplated and the demand made at that stage was not in writing and
signed by the party making, the demand. Similarly, the so called demand made
in a statement of claim is totally no demand for the purpose of the said
law. This is because a statement of claim can only come into being after an
action has been commenced. It follows therefore that what was pleaded in
paragraph 6 of the plaintiff’s statement of claim cannot amount to the
demand required under the said section 41(1) of the Sheriff's and Civil
Process Law. The required
demand must be made before the action is filed in court. It is a
condition precedent which must be met before the action is filed in court.
Anything short of this will render the action filed as
jj
incompetent: see Madukolu v.
Nkemdilim, supra; Provisional Council,
Ogun State University &
Anor. v. Mrs. Makinde
(1991) 2 NWLR (Pt. 175) 613. Sections 41(l) (b) of the Law provides for
what would happen where a demand properly made and delivered is not acted
upon by the bailiff.
As has been shown earlier
above, the objection to jurisdiction was founded on non-compliance with the
requirement of a pre-action notice which does not abrogate the right of a
plaintiff to approach the court or defeat his cause of action. If,
therefore, the subject-matter is within the jurisdiction of the court, as in
this case, failure of the plaintiff to serve the pre-action notice on the
defendant gives the defendant a right to insist on such notice before the
plaintiff may approach the court. In other words, non-service of a
pre-action notice merely puts the jurisdiction of a court on hold
pending compliance
with the pre-condition: see Barclays Bank Ltd. v. Central Bank of Nigeria
(1976) 6 SC 175; Jadesimi v.
Okotie-Eboh (1986) 1 NWLR (Pt.16) 264;
Ijebu-Ode Local Govt. v.
Adedeji Balogun &
Co. Ltd. (1991) 1 NWLR (Pt. 166) 136; and Eze
v. Ikechukwu
(2002) 18 NWLR (Pt.799) 348.
It may be mentioned that the
effect of non-service of a pre-action notice, where it is statutorily
required, as in this case is only an irregularity which, however, renders an
action incompetent. It follows therefore that the irregularity can be waived
by a defendant who fails to raise it either by motion or plead it in the
statement of defence: see
Katsina Local Authority, v.
Makudawa (1971) 1 NMLR 100. 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 could exercise its
jurisdiction: see Madukolu v.
Nkemdilim, (supra). The defence, like any
similar defence touching on jurisdiction, should be raised preferably soon
after the defendant is served with the writ of summons. It could also be
pleaded in the statement of defence. But once it is raised, and it is shown
that there has been non-service, as in the present case, the court is bound
to hold that the plaintiff has not fulfilled a pre-condition for instituting
his action: see Ademola II v. Thomas
(1946) 12 WACA 81; Katsina Local
Authority v. Makudawa (supra);
and Eze v.
Ikechukwu (supra).
It is settled law that
objection to the jurisdiction of a court can be taken at any time. The
position of the law is that it could be raised in any of the following
situations: (a) on the basis of the statement of claim, or (b) on the basis
of evidence received, or (c) by motion supported by affidavit setting out
the facts relied on as was the case in the instant case; (d) on the face of
the writ of summons, where appropriate, as to the capacity in which the
action was brought, or against who the action was brought: see Att.
General of Kwara State v.
Olawale (1993) 1 NWLR (Pt.272) 645; NDIC v. Central Bank of
Nigeria (2002) 7 NWLR (Pt. 766) 272, and Arjay
Ltd. v. Airline Management
Support Ltd. (2003) 7 NWLR (Pt. 820) 577.
The procedure adopted by the
respondent in raising the objection to the
jurisdiction of the court in the instant case is said to be improper in that
the respondent could no longer come by way of motion supported by affidavit
setting out the facts relied on in support of the objection. This is said to
be because Order 10 rules 1 & 2 of the Anambra
State High Court Rules do not admit the practice of coming by way of motion
after pleadings have been filed, as in this case. That, in my view, is a
total misconception of the provisions of the said Order 10 rules 1 & 2.
Order 10 rule 1 (i) provides, inter alia,
that: "where on the receipt of the statement of claim, a defendant conceives
that he has a good legal or equitable claim or defence to the suit instead
of filing a statement of defence, may raise the legal defence by a motion
that the suit be dismissed without any answer upon questions of fact being
required from him." Order 10 rule 2(1), on the other hand, provides,
inter alia that:
"Notwithstanding the
provisions of rule 1 of this Order, any, party to a suit shall be entitled
to raise in his pleadings any point of law and any point of law so raised
may, by consent of the parties or by order of the court, be set down
for hearing and disposed of at any time after pleadings."
The above provisions of Order
10 rules 1 & 2 merely set out the general rules of pleadings in our courts
in
In conclusion therefore I hold
that there is totally no merit in the appeal. I accordingly dismiss it with
Judgement Delivered By
Salihu
Modibbo Alfa Belgore.
J.S.C.
I read the judgment of my
learned brother, Akintan, J.S.C and I am in full
agreement with his conclusion that this appeal has no merit. All the
conditions precedent to initiating the action as demanded by Sheriffs and
Civil Process Law have not been complied with. I
also dismiss this appeal with the same order as to costs as in the lead
judgment.
Judgement Delivered By
Umaru
Atu Kalgo, J.S.C.
I have had a preview of the
judgment just delivered by my learned brother Akintan,
JSC and I agree entirely with him that there is no merit in this appeal.
The central issue to be
determined in this appeal is whether there is proper compliance with the
provisions of section 41(1) of the Sheriffs and Civil Process Law of
Anambra State. The section prescribes condition
precedent to the filing or institution of any action in court against any
court bailiff. It states:-
"No action shall be commenced against any bailiff for
anything done in obedience to
any process issued by a court unless:-
(a)
a demand for inspection of
the process and for a copy thereof is made or left at the office of
the bailiff by the party intending to bring the action or his solicitor or
agent, in writing signed by the person making the demand; and
(b)
the
bailiff refuses or neglects to comply with the demand within six days
after it is made". (Italics
mine)
Paragraphs (a) and (b) of
subsection (1) of section 41 above are clearly the conditions precedent to
the filing of any action against a bailiff arising from anything done by him
or her in obedience to the court process concerned. The opening words of
subsection (1) of section 41 above also stated that "no action shall be
commenced" unless conditions (a) and (b) are complied with. The word "shall"
used there is mandatory and not directory and so conditions (a) and (b) of
section 41(1) must be complied with for any action against a bailiff to be
competent.
From the record of proceedings
in this appeal, there is no doubt that there is no evidence of any
compliance with the provisions of section 41(1) of the Sheriffs and Civil
Process Law by the appellant. Therefore the whole action at the trial was
incompetent and the trial High Court had no jurisdiction to entertain it.
See Madukolu v.
Nkemdilim (1962) 2 SCNLR 341, (1962) 1 A.N.L.R 587 at 595,
AG
Lagos State v. Dosunmu (1989) 3 NWLR
(
For the above and more
detailed reasons given in the leading judgment by my learned brother
Akintan, J.S.C, I also find no merit in this
appeal. I dismiss it and affirm the decision of the Court of Appeal. I award
Judgement Delivered By
Dahiru
Musdapher, J.S.C.
I have read now, the judgment
of my lord Akintan, J.S.C just read and I
entirely agree. For the same reason contained therein. I too dismiss the
appeal. I abide by the order for costs contained in the aforesaid judgment.
Judgement Delivered By
George
Adesola Oguntade, J.S.C.
The appellant as the plaintiff
in the
The parties later filed and
exchanged pleadings. The 2nd and 3rd defendants before the trial court were
bailiffs attached to the High Court, Awka. The
statement of claim reveals that the claim against the 2nd and 3rd defendants
arose in the course of execution of an alleged court order in favour of the
1st defendant. It was in the fj execution of a
writ of
fifa taken out by the 1st defendant.
In his statement of defence,
the 1st defendant pleaded that he had only issued a writ
of fifa
to enforce payment of the sum of
The 2nd and 3rd
defendants in their statement of defence pleaded that they were acting in
performance of lawful duties. They denied liability for trespass and
defamation. They asked the plaintiff's suit be dismissed as it was
"misconceived and without any merit whatsoever."
Rather than allow the suit to
proceed to hearing, the 1st defendant, some five years after the
suit was filed, and pleadings concluded brought an application dated 22nd
June, 1993 praying for
"(a)
an order striking out this suit for not being properly, before the
Honourable Court.
(b)
and for such other order or orders as the
Honourable Court may, deem fit to make in the interest of justice."
The ground relied upon for
bringing the application was stated to be:
"There are
conditions precedent before the above action could be brought which
conditions were not satisfied by, the plaintiff/respondent."
The parties filed affidavit
evidence for and against the grant of the application. After bearing
arguments on the application, Uzodike, J. on
13th July, 1995 struck out plaintiff's suit. He reasoned that the issue of
the court's jurisdiction took precedence over any other consideration. He
held that his court had no jurisdiction to entertain
plaintiff
s suit.
Dissatisfied the plaintiff
brought an appeal against the ruling before the Court of Appeal sitting in
"1.
Whether the Honourable learned Justices of the Court
of Appeal were right in
holding that the conditions of demand and refusal' as contained in section
41 of the relevant law 'must be
construed conjunctively' so that a demand which was met without 'refusal
first' does not in law satisfy the intendment of that section of the law.
2.
Whether the learned Justices of the Court of Appeal were right when
they ignored consideration of the question of interpretation of the legal
effect of the expression, 'a demand for inspection of authority of the
bailiff and a challenge for authority of the bailiff with reference to the
issue of satisfaction of conditions precedent under the relevant section 41
of the law.
3.
Whether the learned Justices of the Court of Appeal, were right when
they held that the trial High Court Judge acted properly when he, the Judge
struck out the suit without considering at all, the contents of the
pleadings already exchanged by the parties and the legal effects of the
admissions of the defendants in the defence filed, which did not challenge
any conditions precedent but he struck out the suit on allegation of
non-compliance in a subsequent motion."
The respondents’ counsel
formulated only one issue for determination. That issue reads:
"... Whether there are
conditions incumbent upon any person wanting to bring an action against
bailiffs of the court, including the appellant, to fulfil before the person
brings his action; and if there are such conditions whether the appellant
satisfied those conditions."
I intend to start a
consideration of the issues in this appeal with the 3rd issue raised by the
appellant. If the appellant succeeds on that 3rd issue, it will become
unnecessary to give consideration to the other issues.
It is helpful for an
appreciation of the issue canvassed under appellant's 3rd issue for
determination to reproduce an extract or passage from pages 7 and 8 of
appellant's brief thus:
"The trial Judge struck out a
suit on the grounds of incompetence from an alleged non-compliance of
(sic) conditions precedents (sic) and held that once an object is
raised on lack of jurisdiction, that objection takes precedence and the suit
must be struck out without more. He did so regardless of the following
conditions prevailing:-
(1)
Pleadings have all been duly exchanged. The statement of claim showed
a prima facie evidence of satisfaction of the condition precedent.
(2)
The statement of defence did not deny such satisfaction of the
condition alleged.
(3)
A belated motion rousing objection as a remember strategy was filed
to allege a non-compliance which was not averred in the defence filed.
(4)
A counter-affidavit was filed against the motion in which
satisfaction of the conditions was
highlighted. It was not challenged by a further affidavit.
(5)
The trial Judge, in the face of the pleadings did not deem it fit to
take oral evidence in trial of the conflict of affidavits.
(6)
The trial Judge did not
consider it under the rules
that the objection could be a mere defence at that stage when trial was
about to open. He did not also examine the pleadings once there was no
patent evidence of jurisdiction from the
writ itself. Nevertheless, the
trial High, Court simply struck out the suit.
The point made in the above
extract, particularly in paragraph 6 (Italics) is that the trial Judge had
not adverted his mind to the applicable rules of court on the matter. Before
I discuss the relevant rules of court, it is necessary that I refer to
section 41 of the Sheriffs and Civil Process Law of
Anambra State upon which the application brought by the defendant to
dismiss plaintiff's suit was premised. The defendant had contended that the
plaintiff did not satisfy the conditions precedent to bringing a suit
against 2nd and 3rd defendants as laid down in section 41 of the Sheriffs
and Civil Process Law. The section reads:
"No action shall be commenced
against any bailiff, for anything done in obedience to any process issued by
a court, unless-
(a)
a demand for inspection of the process and for a copy, thereof made
or left at the office of the bailiff by the party intending to bring the
action or his solicitor or agent in writing signed by the, person making the
demand; and
(b)
The bailiff refuses or neglects to comply with the demand within six
days after it is made."
At the hearing of the
defendant's application to strike out plaintiff's suit, the plaintiff's
counsel in his submission to the trial Judge was minuted at pages 20/21 of
the record of proceedings as having said:
"If the jurisdiction of the
court is not ousted on the face of the writ but depends on calling evidence,
in such circumstances, the court
will hold that it has jurisdiction."
In his ruling, the trial Judge
said:
"The plaintiff's counsel
raised issue of technicality with regard to jurisdiction and wanted me to
ignore the issue and try, the case on its merits. It is my, view that to
ignore this issue of jurisdiction and try this case and deal with other
issues connected thereto will amount to a wild goose chase. There is no way
the issue of jurisdiction can be avoided or ignored, once raised. It is true
that the respondent's counsel made a number of good
submission on technicality of the application but my considered
opinion is that the issue of jurisdiction takes precedence."
The court below, in its
judgment at page 52 of the record referred to the submission of plaintiff's
counsel thus:
"Taking issues Nos. 1 and 2 together, Dr. Felix Obi argued that where
there is no patent defect on the face of a writ which indicated incompetence
in law, and particularly where pleadings have been filed and no facts were
pleaded suggesting a challenge to jurisdiction or competence, a trial Judge
should not dismiss a suit without hearing the evidence adduced before him by
parties."
The court below in its
judgment at pages 58 - 59 of the record said:
"It is the law that before a
plaintiff commences an action which requires the fulfilment of a condition
precedent or pre-condition to the commencement of the action, that condition
must be fulfilled before the action can be validly commenced.
In Provisional Council,
Ogun State University and another v. Mrs.
Makinde (1991) 2 NWLR (Pt. 175) 613; the
Court of Appeal held that where there is a non-compliance with a stipulated
precondition for setting the legal process in motion any suit instituted in
contravention of the condition is incompetent and that court is equally
incompetent to entertain the suit. The court further held that section 45(4)
and (5) of the Ogun State University Edict,
1982, having provided a condition that an action cannot be commenced against
the University unless three months written notice is given to the University
before the University could be sued, the failure by the plaintiff to give
such notice renders the action invalid and the court ought not to entertain
it.
In
Seaview Investments Limited v. Munis
and others (1991) 6 NWLR (Pt.
195) 67; the Court of Appeal also held that where the legality of a final
action depends upon the performance of an action precedent to it or a
collateral action, the failure to perform that action or the collateral
action is prejudicial to the final action. See also
Katsina Local Authority v. Makudawa
(1971)1 NMLR 100 at 705; Gambari
v. Gambari (1990) 5 NWLR (Pt. 152) 572;
Abakaliki Local Government Council v.
Abakaliki R.M.O. (1990) 6 NWLR (Pt. 155)
182. In view of the fact that the appellant did not comply with the
provision of section 41(1) of the Sheriffs and Civil Process Law before
commencing the action against the respondents, the action is incompetent and
the trial Judge rightly, in my view, held that he lacked jurisdiction to
entertain the action. The appeal lacks merit and it is hereby dismissed."
With respect to the two courts
below, I do not think they fully understood the essence of the contention of
the plaintiff/appellant. By its nature, the arguments of the plaintiff's
counsel before the two courts below were directed at showing that the
defendant followed a wrong procedure in his quest to show that the trial
court lacked the jurisdiction to hear the plaintiff's suit. It is true that
jurisdiction to adjudicate in a dispute, civil or criminal is a threshold
issue. Without the necessary jurisdiction, a court cannot make any valid
order: See Attorney-General of
Having said the above however,
it must be borne in mind that even in raising the question of absence of
jurisdiction in a court to hear a cause or matter, the procedure laid down
in the rules of court must be followed. It seems to me that an insistence
that the applicable rules of court must be followed in raising a challenge
to the jurisdiction of a court to determine a cause or matter is not a
diminution of the importance of the question of jurisdiction but only an
adherence to the rule of law.
In
Solanke v. Somefun (1974) 1 SC
141 at p. 148 this court per Sowemimo, J.S.C
observed:
"Rules of court are meant to be complied with and therefore, any
party or counsel seeking the discretionary power of a Judge to be exercised
in his favour must bring his case within the provisions of the rules on
which he purported to make his application. If counsel fails to discharge
their duties in that respect, it is but fair and right that a court should
refuse to exercise its discretionary power."
And at pages 150 - 151, the court
went on:
"Rules of court are made to be followed. They regulate matters in
court and help parties to present their case within a procedure made for the
purpose of a fair and quick trial. It is the strict compliance with these
rules of court that makes for quicker administration of justice. Some
exceptions, for example, amendments of proceedings are provided for, but
such exceptions should be resorted to where absolutely necessary."
See also Musa v.
Hamza (1982) 7 SC 118 and Williams v.
Hope Rising Voluntary Funds Society (1982) 1-2 SC
145.
Rules of court are in the
nature of beacon lights to the parties to a dispute illuminating the path
leading to justice. It would in the end result in injustice if it were open
to the court to hold one party bound by the rules while allowing the other
to ignore them without good reasons. The relevant provisions of the
Anambra State High Court Rules are Order 10
rules 1 and 2 which read:
"1
(1)
where on the receipt of the statement of claim, a defendant conceives
that he has a good legal or equitable defence to the suit, so that even if
the allegations of the plaintiff were admitted or established, the plaintiff
would not be entitled to judgment against the defendant, instead of filing a
statement of defence, may raise the legal defence by a motion that the suit
he dismissed without any answer upon questions of fact being required from
him.
(2)
For the purpose of such application the defendant shall be taken as
admitting the truth of the plaintiff's allegations and no evidence
respecting matters of fact, and no discussion of questions of fact shall be
allowed.
(3)
The court, on bearing the application, shall either -dismiss the suit
or order the defendant to file his statement of defence, and shall make such
order as to f costs as shall be just.
2.
(1)
Notwithstanding the provisions of rule 1 of this Order, any party to
a suit shall be entitled to raise in his pleading any point of law and any
point so raised may, by consent of the parties, or by order of the court be
set down for hearing and disposed of at any time after pleadings.
(2)
If, in the opinion of the court the decision of such point of law
substantially disposes of the suit, or any, part of the suit, ground of
defence, set-off, counter-claim, or reply, the court may make such order
therein as may be just such as the dismissal of the suit striking out or
amendment of any portion of a party's case."
I want to reiterate here that
at the time the defendant brought his motion to strike out plaintiff's suit,
all the parties had filed their pleadings and the defendants never anywhere
in their pleadings raised the issue that the plaintiff did not comply with
section 41 of the Sheriffs and Civil Process Law of
Anambra State. Whether or not the plaintiff complied with section 41
is a matter of fact. Evidence would need to be led to show that the
plaintiff did not serve the pre-action demand. The suggestion in the
judgments of the two courts below that the ground raised by the defendants
for the striking out of plaintiff's suit was jurisdictional is not quite
correct. A perusal of plaintiff's writ of summons and the statement of claim
does not show ex facie that the trial
court had no jurisdiction in the matter. The sole purpose of section 41 is
to ensure that a person intending to bring a suit against a court bailiff
must first make a pre-action demand to g sec the process. Where a
defendant's complaint is that no such pre-action demand was made and he
intends to rely on it as ground to side the suit, he must raise the matter
as a legal defence in his statement of defence.
This case brings to the fore
the necessity to draw a distinction between a purely jurisdictional
matter and a question of justiceability. No has argued that the trial court
in this case ordinarily has no Jurisdiction in a suit on trespass and
defamation which plaintiff brought The only
configuration here is that the defendants were intending that a pre-action
demand was not served. That contention only makes the plaintiff's suit not
justiceable. If the plaintiff issued proper
pre-action demand, his suit could still be heard by the same court. It is
erroneous therefore to say, that this was a challenge to the jurisdiction of
the court.
It is important to bear in
mind that a defendant could if he so "elects waive the necessity for such
pre-action notice or demand. If for instance, the defendant in this case did
not raise the issue of non-service, the case would proceed to trial in the
ordinary way. Where there is no jurisdiction in the true sense in a court to
hear or determine a matter, none of the parties could waive the question of
p jurisdiction: see Onyema v.
Oputa (1987) 3 NWLR (Pt. 60) 259 SC.
There is a plethora of
judicial authorities to the effect that the issue of the jurisdiction of a
court to hear a cause or matter can be raised at any stage and even for the
first time on appeal. It is however too easy to overlook the fact that the
jurisdiction being referred to in such cases is jurisdiction arising in the
form of a constitutional limitation or other limitation imposed by specific
laws. In such cases, it is only necessary to refer to the constitutional
provisions or law concerned. Where the matter which impairs the authority or
power of a court to hear a case derives from failure to fulfil a condition
precedent such as issuing a pre-action notice, it is necessary for a
defendant to raise the matter in his statement of defence since this is a
question of fact to be determined by the evidence called by parties. It is
only when the trial court is satisfied that indeed the pre-action notice was
not served that he can decline to exercise his jurisdiction.
The appropriate expression to
describe that situation is that the court has declined to exercise its
jurisdiction. All it means is that the jurisdiction of the court has not
been properly activated. In that situation it is not correct to say that
such issue of jurisdiction can be raised at any stage. It is an evidence
dependent issue of jurisdiction. In a civil suit, pleadings play an
important and vital role. When a fact is not pleaded, evidence cannot be led
on that fact.
It seems to me therefore that
cases to the effect that jurisdiction can be raised before service of a
statement of defence are those in which it ex facie apparent from the
writ of summons and statement of claim that there is no jurisdiction in the
court. Where it is still necessary to call evidence in proof of matters
which may lead the court to decline its jurisdiction, it is inevitable that
the fact be clearly pleaded.
The question is, was it open
to a defendant who had not by his statement of defence pleaded that he was
not served the requisite demand and when the statement of claim does not
betray the fact of non-service of the demand, to proceed by motion to ask
that the action be struck out? I think not. To allow a defendant to do so is
to defeat the clear provisions of the rules of court set out above. What the
defendants ought to have done was to first plead in their statement of
defence the fact that the plaintiff did not issue the demand as provided in
section 41 of the Sheriffs and Civil Process Law. If it was perceived that
that fact was enough to bring the suit to an end, the defendants would then
move the court to set the matter down for hearing to be disposed of after
pleadings in accordance with Order 10 rule 2(1) above. Simply put, the
relevant rules of Anambra State High Court do
not postulate the hearing of a case by affidavit evidence after the parties
had by their pleadings joined issues. Assuming that the defendants had not
sooner discovered that the plaintiff did not issue the statutory demand,
they should simply have amended their statements of defence to plead the
point before moving the court to set down the narrow issue for hearing. I do
not doubt that the defendant may upon being served a statement of claim, and
before or after filing a statement of defence raise the issue of
jurisdiction of the court to bear a suit. After all the jurisdiction of the
court is determined by the claim on the writ of summons and statement of
claim: See Adeyemi v.
Opeyori (1976) 9 -10 SC 31: but this can only be done if upon a
perusal of the writ of summons and statement of claim, it appears ex
facie that there is no jurisdiction in the court. Where it is necessary
to the defendant to call evidence to show that the court has no jurisdiction
the defendant must file a statement of defence raising the issue of fact and
later ask the court to dispose of the case by evidence on the point. Once it
is apparent that there is jurisdiction in the court to adjudicate by
reference to writ of summons and statement of claim, a defendant/applicant
can only determine the case in limine by
application under the rules of court - Shell-Bp Petroleum Development Co.
of Nigeria v. Onasanya (1976) 6 S.C. 89. In
the instant case there was nothing on writ of summons and statement of claim
suggesting that the trial court has no jurisdiction.
If, as was decided in
Adeyemi v.
Opeyori (supra), there was nothing on the writ of summons and the
statement of claim indicating absence of jurisdiction in the trial court to
hear the case, the defendants could only have the suit decided in accordance
with the rules of court, clearly, it was an error to bring a motion after
pleadings had been filed seeking to have a matter not pleaded decided by
court through affidavit evidence.
As I said earlier, it is to be
observed here that it was open to the defendants to waive the non-service
upon them of the pre-action demand. When it is so waived, the suit can
proceed to trial without the plaintiff incurring any disability
therefrom. In the instance case, the defendants
elected not to raise the matter in their statement of defence thus conveying
to the plaintiff that it was being waived.
The defendants not having
raised on their pleadings that the needed
pre-action demand was not served on them ought not be allowed to raise by
affidavit evidence the matter not pleaded before the court. In
Ege Shipping & Trading Industries v.
Tigris International Corporation (1999) 14 NWLR (Pt. 637) 70 at 84, this
court per Ogundare, JSC said:
"The use by the defendants of
affidavit evidence to counter or traverse matters of fact pleaded by the
plaintiff is clearly not a correct practice or procedure. In an application
of the nature by the defendants, it must be presumed that all the facts
pleaded by the plaintiff are correct. Where the defendants dispute any of
such facts, they must file a statement of defence and lead evidence at the
subsequent trial in support of their case."
Even if the question of
jurisdiction can be at any stage, yet it still must be brought before the
court by the proper procedure: See Dada v.
Ogunsaya (1992) 3 NWLR (Pt.232) 754.
I have said the above in the
order to ensure that parties and their counsel follow the proper procedure
in matters like this. Notwithstanding the views I have expressed above, I
would still agree with the conclusion reached by my learned brother
Akintan, J.S.C in the lead judgment. When
defendants' counsel brought the application to strike out plaintiff's suit,
the plaintiff contended inter alia that the defendants did not come
by the right procedure. But notwithstanding this contention the plaintiff
deposed to a counter- affidavit in an attempt to meet the allegation that
the requisite pre-action demand was not made against the defendants. It is
apparent from the said counter-affidavit that the plaintiff did not depose
that he issued the requisite .notice. This appeal then comes to this: Even
if I allow the appeal and make the order that the defendants' motion
be struck out, it is clear
for the eyes to see that plaintiff's suit will still end up being struck out
for non-service of pre-action demand. There is no point therefore postponing
the inevitable. It is for this reason that I would agree that the appeal be
dismissed. I would however make an order that parties bear their own cost.
Counsel
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