Fawehinmi Construction Company Ltd. v. Obafemi Awolowo University

I read before now the judgment just delivered by my learned brother, Belgore, JSC. I agree with the conclusion that the appeal is without merit and ought to fail. It is accordingly dismissed with costs as assessed in the lead judgment.

The main question that calls for determination in this appeal is: what step taken by a defendant after being served with a writ of summons will disentitle him from raising objection to the proceedings on the ground of some irregularity in the institution of the action.

The parties to this appeal had entered into an agreement for the construction of the museum of Natural History at the University in lle-Ife. Plaintiff commenced work on the project and the defendant paid a mobilisation fee. While the project was still in progress the defendant called a meeting of all contractors handling capital projects for the defendant including the plaintiff and announced a suspension of all capital projects, including the museum being constructed by the plaintiff. Consequent to this suspension the defendant directed its, security men not to allow the plaintiff to remove his plants, machinery, equipment and other materials from the work site. Whereupon the said security men disallowed the plaintiff from removing the same despite protests from the plaintiff. Some months after the suspension of work. the plaintiff, at the instance of the defendant. came to the site and an inventory was taken of all materials and equipment left on the site. A dispute arose between the parties leading to the institution of this action by the

P.10

plaintiff wherein the plaintiff is claiming:

“1. The sum of N482. 85.16 (Four hundred and eighty two thousand and eighty five Naira, sixteen kobo) being damages for the breach of the contract entered into between the Plaintiff and the Defendant on 15th July, 1982 for the construction by the Plaintiff of the Museum of Natural History for the Defendant at Ile-Ife.

2. The sum of N1,701,600.00 (One million, seven hundred and one thousand, six hundred Naira) being damages for the wrongful detention by the defendant of the ‘Plants, Machinery and Equipment of the Plaintiff on the work site of the sale.’ contract project from 23rd February, 1985 to 19th of March, 1987.
3. AN ORDER for the payment to the Plaintiff by the Defendant of such other sum or sums of money as the court may find to have been lost by the plaintiff as a result of the continued detention of the Plaintiff s Plants, Machinery and Equipment by the Defendant from 20th March, 1987 until the date of their release.
4. AN ORDER directing the Defendant to release to the Plaintiff all the Plaintiffs Plants, Machinery and equipment detained by the Defendant on the said work site.”

The plaintiff filed along with the writ a motion on notice praying the court for an order of mandatory injunction directing the defendant to release to the plaintiff the plants, machinery and equipment listed in the schedule to the motion paper and. said to belong to the plaintiff but were being detained by the defendant. On being served with all these proceedings, the defendant entered an unconditional appearance to the writ. This was on 21/5/87 barely three days after the filing of the writ. On 26/5/87 the

P.11

defendant filed an application for stay of proceedings in the action until the Parties submitted to an arbitration in accordance with clause 35 of the contract between them. Both applications of the parties were heard on the 23rd June 1987 and dismissed in a considered ruling given by the learned trial Judge on 6th July 1987. The learned Judge ended his ruling in these words:

“Having gone through the plaintiffs application, the affidavit supporting it and the circumstances of the case, I am not in a position to grant the prayers sought for.

Albeit, in the interest of justice and having regard to the urgency of the matter in view of the machinery and implements involved, an accelerated hearing of the case will meet the justice of the case. X X XX X XXX XXX XXX XXX XXX XXX XXX XXX XX XXX XXX XXX XX X

Finally, I make the following Orders:

1. The defendant’s application for stay of proceedings is hereby refused.
2. The Plaintiffs application for an Order of mandatory injunction directing the defendant to release the plaintiffs plants, machinery and equipment is also refused.
3. The plaintiff is ordered to file in Court and serve his Statement of Claim on the defendant’s counsel on or before 27th July, 1987.
4. The defendant is ordered to file in Court and serve his Statement of Defence on the plaintiffs counsel on or before 18th August, 1987
5. The case is fixed at the instance of both counsel and by their agreement to 23rd, 24th &25th September, 1987 for hearing.

P.12

6. Each party to bear his costs.”

Pursuant to the Order made the plaintiff filed its Statement of Claim. The defendant On 21/9/87. however, filed an application praying the court for an order striking out the action on the grounds that-

“(a) The Plaintiffs did not give notice of intention to institute the action herein against the Defendant as enjoined by the provisions of section 46 of the University of Ife Edict 1970.

(b) The Court lacks jurisdiction to entertain the suit against the Defendant as presently constituted without due service of the notice aforesaid on the Defendants.”

The application was heard and, in a ruling delivered- on 24/9/87, was dismissed. The learned trial Judge in this ruling found that the provisions of Section 46 of the University of Ife Edict under consideration were not complied with. He also found that they were conditions precedent to the filing of an action by the plaintiff. He, however, found also that –

“Be that as it may, it is my view that that is not the end of the case. In the instant case, it is on record that the defendant has taken several steps after service of the Writ of Summons on it. It has. inter alia entered an unconditional appearance, filed an application and swore to an affidavit by itself, argued the application and obtained a ruling. It condescended to file its pleadings and lastly took dates for hearing. Their Lordships of the Court of Appeal analysed what amounts to ‘taking a step’ in the case of Kano State Urban Development Board  Fanz Construction Co. Ltd. (1986) 5 N.W.L.R. (Part 39) 74 at

P.13

Their Lordships quoted with approval, the case of Ives & Baker v. Williams(1894) 2 Ch. P.484 where Lindley LJ. stated that:

‘The authorities show that a step in the proceedings mean something in the nature of an application to the Court, and not mere talk between Solicitors or Solicitors’ clerk, nor writing of letters, but the taking of some steps such as taking out summons or something of that kind which in the technical sense a step in the proceedings.’ This may include issuing of summons for discovery of documents, the attendance and taking part at the hearing of summons for direction and seeking an Order for pleadings.”

XX X XXX XXX XXX XXX XXX XXX XXX XXX XX XXX XXX XXX XX X XX X X XX

“Having taking steps, it is my considered view that the University of Ife has waived his statutory right under section 46(1) of the University of Ife Edict No. 14 of 1970.”

X X XX X XXX XXX XXX XXX XXX XXX XXX XXX XX XXX XXX XXX XX X XX X

“The Supreme Court advanced another dimension to this type of application. It is said that in regard to the effect of this type of provision (Section 460fthe Edict) it is settled law that where a party intends to rely upon a condition precedent, it must be specifically pleaded. Section 46(1) of the Edict prescribes a condition precedent to the competence of any action commenced against the University of Ife.

See: Katsina Local Government v. Alhaji Barwa Makudawa(1971)(sic) 1 NMLR 100.

What the authority is saying in effect is that once the condition is not pleaded, it cannot at this stage be raised

P.14

to stultify the plaintiff’s action.”

X XX X X XX X X XX X X XX X X XX X X XX X  X XX X  X XX X  X XX X  X XX X

“By the nature of the action, the cause of action between the parties is damages for, breach of contract. There is consensus on both parties. In other words, the plaintiffs claims are based on specific contract.”

And finally:

“Section 46(1)of the University of Ife Edict No. 14of 1970 does not and will not affect an action based on contract. Where an action has been brought for something done or omitted to be done under an express contract, the section does not apply. Again where goods have been sold, and the price is to be paid upon a quantum meruit, the section will not apply to an action for the price, because the refusal or omission to pay would be a failure to comply with the terms of the contract and not with the provisions of the statute. See:

Nigerian Ports Authority v. Constructioni Generali Farsura Cogeflurspa (1974) 12 SC 81 at 101.

The foregoings clearly show that section 46(1) of the Edict under consideration is not an absolute one as Mr. Adeniji would want me to believe ..’

The defendant being displeased with this decision of the learned trial Judge appealed to the Court of Appeal. The latter court allowed the appeal. It found:

1. “Perhaps. I may say straight-away that it appears to me that the agreement to proceed with the case as recorded by the learned trial Judge in the record of proceedings seems to have been extracted from the counsel for the parties and could not be regarded as an acquiescence by

P.15

the appellant in this case to withdrawing its objection to the jurisdiction of the court”

2. “it is not enough to say that the appellant entered unconditional appearance and therefore he has waived his right to complain about jurisdiction. The decision in Muni v. Worsfold (supra) which was followed in the case of U.B.A. Trustees Ltd v. Nigergrob Ceramic Ltd. (supra) has determined that entering an appearance, even unconditional, does not constitute a waiver of the right to object.”
3. It is therefore not enough to say that the appellant having entered unconditional appearance cannot raise the objection on the decision of the court. For it is clear from the record that as soon as the appellant entered appearance, the first step taken by its counsel was to protest against the jurisdiction of the court by seeking a stay of its proceedings with a view to referring the case for arbitration as set out in the agreement between the parties. The only step taken after appearance therefore by the appellant was to protest against the court hearing the case. If any step could be said to have been taken. It is only in protestation.”
4. “I do not think therefore that the above facts can support a plea of a waiver as the appellant never demonstrated any intention to abandon its right to object. Having regard to the circumstance of this case, I am of the firm view that the appellant could not be said to have taken a step in the proceedings amounting to a waiver of its right to insist on the statutory three months notice afforded it by the provisions of section 46 of the University of Ife Edict 1970.”

P.16

“It is clear that this section is wide and all embracing. It speaks of all suits and whatever causes of action not limited to anything done pursuant to any Act or Statute. It relates to all or any type of action. The wordings in the motion, in my opinion, are clear, positive and unambiguous and should be given their natural, ordinary and literary meaning. Nothing ought to be added to or detracted from them. They are clearly distinguishable from the provisions in section 264 of the Public Health Act and section 97 of the Ports Act and I cannot say that the decision, in the two cases i.e. N.P.A. v. Construzioni and Midland Railways Company(supra) are binding on the case at hand. I do not subscribe to the fact as submitted by the learned counsel for the appellant that the provisions of the law interpreted in the two cases are identical with the provisions under consideration. ”

Sulu-Gambari JCA in his lead judgment with which Akanbi JCA (as he then was) and Akpabio JCA agreed, concluded thus:

“Having so held, it follows that the learned trial Judge was wrong to have held that the appellant has taken a step in the proceedings when in actual fact the contrary is the position. He was also in error to have held that Section 46(1) of the University of Ife Edict 1970 does not apply to actions in contract.”

It is against this decision that the plaintiff has now appealed to this Court upon four grounds of appeal. In his written Brief of argument filed on his behalf by Mr. Oyetibo learned counsel, the plaintiff who is now Appellant before us, raised the following four issues as calling for determination in this appeal:

P.17

“1. Whether the Court of Appeal was right in holding that the agreement to proceed with the case as recorded by the trial Judge was extracted from the counsel for the parties.

2. Whether the Court of Appeal was right in law in holding that the Respondent could not be said to have taken a step in the proceedings and as such waived its right to raise the issue as to the failure of the appellant to give the statutory notice of intention to sue the respondent.
3. Whether the Court of Appeal was right in law in refusing to follow the decision of the Supreme Court in Nigerian Ports Authority v. Construzioni Generali & Anor. (1974) 12 SC. 81.
4. Whether section 46(1) of the University of Ife Edict 1970 is not inconsistent with the provisions of sections 6(6); 33(1) of the Constitution of the Federal Republic of Nigeria 1979 and therefore void,”

The Respondent in its own written Brief of argument filed on its behalf by Mr. Adeniji learned counsel adopted the above four issues.

Issue (4) arose out of Ground (4)of the Grounds of Appeal which without its Particulars reads as follows:

“The Court of Appeal erred in law in relying on section 46(1) of the University of Ife Edict to hold that the plaintiff’s action was incompetent. ”

This issue was never taken up in the two courts below and although it is intimated in the Appellant’s Brief that the leave of this court would be sought to raise this new point in this court at no time, however, was such leave sought nor obtained. Consequently this court not having granted leave to the plaintiff to raise the point of law as in Ground

P.18

(4), I agree entirely with my learned brother Belgore JSC that the ground is incompetent and is accordingly struck out by me too. All arguments in the Appellant’s Brief on Issue (4) will be discountenanced by me.

It is pertinent at this stage to point out that both parties were not represented by counsel at the oral hearing of the appeal. Pursuant to the rules of this Court, the appeal was taken as argued on the Briefs of the parties already filed in court.

I will now take Issues (1), (2) and (3) together as they dovetail into each other. It is argued strenuously in the Appellant’s Brief that section 46(1) of the University of Ife Edict does not apply to cases founded on contract as was decided by the Supreme Court in N.P.A. v. Construzioni (1974) 12 SC.81 and that it was wrong of the court below not to have followed that decision. It is equally and strenuously argued in the Brief on behalf of the plaintiff that the defendant had taken a step in the proceedings in the High Court before raising their objection based on section 46(1) and that that being so, the defendant is deemed in law to have waived its right to raise the objection. On the step said to have been taken by the defendant. It is submitted in the plaintiff’s Brief that the defendant having agreed to take trial dates, was deemed to have taken fresh step in the proceedings. A number of authorities arc cited in the Brief in support of arguments advanced herein.

The defendant in its own Brief argued that the fixing of dates for hearing was not at the instance of any of the parties and that in consequence it could not be said that the defendant had taken a step in the proceeding before

P.19

objection to the competence of the action. It is also submitted in the Brief that section 46(1) of the Edict is wide enough to embrace action for contract and that the court below was right in holding that the Supreme Court’ s decision in N.P.A. v. Construzioni (supra) did not apply. I have read the record of appeal before us, there is nowhere in that record that the parties or either of them either applied for an order for pleadings or applied for dates for hearing. It is evident from the ruling of the learned trial Judge given on the 6th of July that the Orders for Pleadings and the fixing of dates for hearing were at his own instance in his desire to see that justice was done between the parties, For he said:

“Albeit, in the interest of justice and having regard to the urgency of the matter in view of the machineries and implements involved, an accelerated hearing of the case will meet the justice of the case. I hereby Order that the plaintiff should file in court and serve his Statement of Claim on the defendant’s counsel on or before 27th July 1987. The defendant also should file in court and serve his Statement of Defence on the plaintiffs counsel on or before 18th August, 1987.”

In the final Order he made on the conclusion of the ruling, he wrote in his handwriting “23rd, 24th and 25th September 1987″; the rest of the ruling including the orders made was typed out. Having regard to the circumstances, as disclosed on the record, of the making of the Order for pleadings and the giving of dates for hearing, I think the Court below was right when it. per Sulu-Gambari JCA, observed –

” …………..it appears to me that the agreement to proceed

P.20

with the case as recorded by the learned trial Judge in the record of proceedings seems to have been extracted from the counsel for the parties…………. ”

I can find nothing on record to suggest that there was an application made by either party for accelerated hearing of the action nor on dates for hearing. I find it hard therefore to hold, in the circumstance, that the fixing of the dates for hearing was as a result of a step taken by the defendant in the proceedings. I agree entirely with the Court below that the learned trial Judge was wrong holding that the defendant had taken a step in the proceedings that would amount to a waiver of the right to object to the competence of the action. Both courts below were right on the law as to waiver. It is in the application of the facts to the law that the learned trial Judge, with respect to him, went wrong.

I agree also with the court below that Section 46(1) applies not only to cases based on tort but equally to cases based on contract. Section 46(1) reads:

“No suit shall be commenced against the University until at least three months after written notice of intention to commence the same shall have been served on the University by the intending plaintiff or his agent, and such notice shall clearly state the cause of action, the particulars of the claim, the name and place of abode of the intending Plaintiff and the relief which he claims.”

Section 97 of the Ports Act that came for consideration in N.P.A. v. Construzioni (supra) on the other hand, reads:

“S.97( 1) When any suit is commenced against the Authority or any servant of the Authority for any act done

P.21

in pursuance or execution, or intended execution of any Act or law, or of any public duties or authority, or in respect of any alleged neglect or default in the execution of such Act law, duty or authority, such suit .

S.97(2) No suit shall be commenced against the Authority until one month at least after written notice of intention to commence the same shall have been served upon the authority by the intending Plaintiff or his agent…………”

Section 46(1) of the Edict is clearly wider in its scope than Section 97 of the Ports Act. Section 46( 1) speaks of “no suit” and not “any suit for any act done in pursuance or intended execution of any Act or law or of any public duties or authority or in respect or any alleged neglect or default in the execution of such Act, law, duty or authority” as contained in Section 97(1). I entirely agree with the interpretation placed by the Court below on these two provisions. Consequently, I think the Court below was right in distinguishing the case before it from N.P.A. V. Construzioni (supra). As the two provisions arc not in pari materia the court below was right not to follow N.P.A. v. Construzioni.

For the reasons I give above and the fuller reasons given in the judgment of my learned brother Belgore JSC, I agree entirely with the court below that the plaintiff, having failed to give before instituting its action, the statutory notice provided for in Section 46(1) of the Edict, the action was incompetent and was rightly struck out by the Court below, I, too, like my learned brother Belgore JSC dismiss this appeal with costs as assessed by him in his judgment.

P.22

I had the advantage of reading before now the judgment just delivered by my learned brother Belgore, JSC and I agree with his reasoning and conclusion that the appeal is devoid of substance and must therefore fail.

My learned brother Belgore, JSC’s review of the antecedents and true setting of the facts leading up to the appeal have been so impeccably set out therein that I deem it unnecessary, in my consideration thereof to repeat them here. Suffice it to say, that the four issues distilled from the four grounds of appeal on which the consideration of this appeal hinge and with which the Respondent unequivocally agrees, are:

1.Whether the Court of Appeal was right in holding that the agreement to proceed with the case as recorded by the trial Judge was extracted from the counsel.

2. Whether the Court of Appeal was right in law in holding that the Respondent could not be said to have taken a step in the proceedings and as such waived its right to raise the issue as to the failure of the Appellant to give the Statutory notice of intention to sue the Respondent.
3. Whether the Court of Appeal was right in law in refusing to follow the decision of the Supreme Court in Nigeria Ports Authority v . Construzioni  Generali & Anor. (1974)12 SC.81.
4. Whether Section 46(1) of the University of Ife Edict 1970 is not inconsistent with the provisions of Section 6(6); 33(1) of the Constitution of the Federal Republic of Nigeria, 1979 and therefore void.

In the first place, with respect to issue 4, leave neither having been sought nor obtained to argue ground 4, the

P.23

same is incompetent and it is accordingly struck out.

In considering this case which is an interlocutory appeal and in which this court ought not to discuss in details so as not to prejudice the chances of the parties by removing the substratum thereof when it eventually comes to be heard, the issue here is not so much on what is contained in the record of proceedings concerning how hearing dates were fixed in the matter before the learned trial Judge but rather what conclusions are to be drawn having regard to the glaring circumstances of the case. In seeking to do this I will consider all four issues together as follows:

I wish to point out that the situation the Respondents were in gave little or no opportunity for their Counsel at the trial court to contest the issue of the fixture of the case for hearing, they having lost their objection on ground of reference to arbitration to jurisdiction in the trial court’s In this regard, the case of Ariori v. Elemo(1983) SCM 1 at 72; (1983) 1 SCNLR 1 where this court held as follows:

“The Appellants had no control on this act of the learned trial Judge, They were therefore, not in a position to waive what was not within their competence and control.”

is clearly apposite. In the instant case, it appears to me clear that the learned trial Judge was bent on getting the case fixed for hearing when pleadings were yet to be completed. It was the non-realisation of this fact that made him to fix hearing dates (over which the respondent had no control) In the hope that before time ran out, the parties would have settled and filed their pleadings within the limited periods given. As it turned out the hearing was not to be, the reasons being because of the motion

P.24

objecting to the trial court’s jurisdiction the second time around formed the genesis of this appeal.

From the foregoing, one cannot but come to the irresistible conclusion that the learned Justices of the court below were correct and properly directed themselves in the conclusion they arrived at about how the learned trial Judge got the hearing dates fixed. The Appellant’s argument on the presumption of regularity and procedure for challenging the record of appeal are, in my view, irrelevant. The court below was therefore right, in my opinion, when it held, inter alia;

“It is therefore not enough to say that the appellant having entered unconditional appearance cannot raise objection on the decision of the court. For it is clear from the record that as soon as the appellant entered appearance, the first step taken by its counsel was to protest against the jurisdiction of the court by seeking a stay of its proceedings with a view to referring the case for arbitration as set out in the agreement between the parties. The only step taken after appearance therefore by the appellant was to protest against the court hearing the case. If any step could be said to have been taken, it is only in protestation.

I do not think therefore that the above facts can support a plea of a waiver as the appellant never demonstrated any  intention to abandon its right to object. having regard to the circumstance of this case, I am of the firm view that the appellant could not be said to have taken a step in the proceedings amounting to a waiver of its right to insist on the statutory three months notice afforded it by the provisions of Section 46 of the University of Ife Edict

P.25

1970.” (ltalicising is mine for emphasis).

The facts justifying the correctness of the position taken by the court below I have set out above are not farfetched. The Respondent was very consistent on the trial court’s lack of jurisdiction for at least two reasons, to wit:

(1) That having regard to the reference to the Arbitration Clause in the agreement between the parties, the matter could not have been properly before the learned trial Judge until reference to arbitration.

(2) Lack of Notice as required by the provisions of Section 46(1) of the Edict makes the action incompetent.

The Appellant’s notion that a step had been taken by the Respondent may have been borne out by the Respondent taking the Ruling on its application challenging the court’s jurisdiction as well as its presence when trial dates were fixed.

The question of waiver is not in point in the application of the provisions of Section 46(1) of the Edict. The court below so held and I cannot agree more with it when it held:

“It is clear that this section is wide and all embracing. It speaks of all suits and whatever causes of action, not limited to anything done pursuant to any Actor Statute. It relates to all or any type of action.” (Italics is mine for emphasis).”

Furthermore, the court below was right in holding that the Supreme Court decision in the case of N.P.A. v Construzioni Generali & Anor. (1974) 12 Sc. 81 at 95, is not applicable for the interpretation of the provisions of Section 46(1) of the Edict. Calling for determination in this

P.26

appeal was the simple reason that it is not in pari materia with Section 97(1) of the Ports Act (now Section 110(1) Laws of the Federation of Nigeria, 1990) which this court interpreted when it held among other things that –

“We agree that the section applies to everything done or omitted or neglected to be done under the-powers granted by the Act. “(Italics is mine for emphasis).

See the case of His Highness Isaac Boy Umukoro & Ors. v. Nigerian Ports Authority & Or. (1997) 4 NWLR (Part 502)656 and Nigerian Broadcasting Corporation v. Bankole (1972) 1 All NLR (Part 1) 327.

Furthermore, the Provisions of section 46(1) of the Edict which are all embracing are not at the same time inconsistent with the Provisions of sections 6(6)(b). 33(1) and 236(1) of Constitution of the Federal Republic of Nigeria, 1979. That this is so contrasts with the main plank of the appellant’ s arguments on the last issue (issue 4) which would appear to be contending that section 46(1) “fetters or restricts the citizen’s right to evoke the jurisdiction of the court to seek a remedy as quickly as Possible immediately his rights have been, are being or likely to be infringed upon, is inconsistent with the spirit of the 1979 Constitution …. ”

This cannot be true as it is a faulty construction put upon the provisions of section 46(1) of the Edict which in no way restricts access to court. See this court’s recent decision in Chief-Eugene C. Offor v. Chief S. C Osagie & ors. (1998) 3 NWLR (Part 541) 205. These are Provisions bordering on service of judicial processes out of court vide sections 96 and 97 of the Sheriffs and Civil Process Act In this regard, the case of Adediran v. Interland Transport

P.27

Ltd. (1991) 9 NWLR (Part 214) 155 at 180, is not apposite to the extent that the Provisions of section 46(1) of the Edict do not in any way constitute any obstacle along the same line. Thus, the appellant when entering into a contract with the respondent and conversant with its statute while equally being aware of the preconditions before it could institute any action, cannot now argue that its rights to go to court on the claim are being fettered. See Metalimpex v. Leventis & Co. (Nig) Ltd (1976) 2 SC. 91 and Offor v. Osagie & 2 Ors. (Supra).

For these and the fuller reasons contained in the lead judgment of my learned brother Belgore, J.S.C. I too dismiss the appeal. I abide by the consequential orders inclusive of costs awarded therein.

 I have had the privilege of reading in draft the judgment just delivered by my learned brother, Belgore, J.S.C.and I am in entire agreement with him that this appeal is without substance and should be dismissed.

It is clear to me, from all the circumstances of the case, as borne out from the record of proceedings that the Court of Appeal was completely justified when it came to the conclusion that the respondent could not be said to have taken any step in the proceedings to constitute a waiver of the application of the provisions of section 46(1) of the University of Ife Edict, 1970. The respondent had hardly any choice in the manner the trial dates were fixed by the learned trial judge and therefore could not properly be charged with taking any step in the proceedings to sustain a waiver of the application of the provisions of section

P.28

46(1) of the University of Ife Edict, 1970.
On failure by the court below to follow the decision of this court in the case of Nigeria Ports Authority v. Construzion Generali and Another (1974) 12 S.C. 81 at 95, it seems to me that this course of action was without fault. This is because the provisions of section 46(1) of the Edict are not in pari materia with those of section 97 of the Ports Authority Act which this court interpreted and was concerned with in the decision in question. The Court of Appeal in treating the issue commented, and quite rightly in my view, as follows-
“It is clear that this section is wide and all embracing. It speaks of all suits and whatever causes of action not limited to anything done pursuant to any Act or Statute. It relates to all or any type of action.”
Similarly this court in the Nigeria Ports Authority case commented as follows-
“We agree that the section applies to everything done or omitted or neglected to be done under the powers granted by the Act..” (Italics for emphasis).

It is thus plain that the operation of Section 97 of the Ports Authority Act is limited in scope as against that of section 46(1) of the Edict which is clearly wide and all embracing. In my view, the reference to the decision of this court in the Nigeria Ports Authority case is not apposite to the issues under consideration in the present appeal. The conclusion I therefore reach is that the court below was perfectly in order when it held that failure by the appellant to comply with the provisions of section 46(1) of the University of Ife Edict, 1970 is fatal to the competence of the action.

P.29

It is for the above and the more detailed reasons contained in the leading judgment of my learned brother, Belgore, J.S.C. that I, too, dismiss this appeal as unmeritorious, I abide by the order for costs made in the said judgment.

Appeal dismissed.