Chief Berthrand E. Nnonye v. D.N. Anyichie & Ors

 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.

 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:-

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(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 (Pt. Ill) 552; Oruobu v. Anekwe (1997) 5 NWLR (Pt. 506) 618. The effect of non-compliance with a provision of the law such as section 41(1) above and non-compliance with pre-action notice prescribed by any law before filing a case in court is the same.

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 awardN10,000.00 costs to the respondent against the appellant.

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 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.

The appellant as the plaintiff in the Awka High Court of Anambra State claimed against the three respondents as the defendants the sum of N100,110.00 being damages for trespass and defamation.

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 N50.00 due to him as costs in suit No. AA/LGE.8/88; and that the 2nd and 3rd defendants had only been performing their official duties as court   bailiffs.

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.”

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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 Enugu. That court, in its judgment on 26th October, 1999 dismissed the appeal. The plaintiff has brought a further appeal before this court. The issues formulated as arising for determination in this appeal by appellant’s counsel read:

“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.

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3. 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.

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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.

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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:

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“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.

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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 Lagos State v. Dosunmu (1989) 3 NWLR (Pt. Ill) 552.

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This explains why it is important for a party who perceived that a court has no jurisdiction to hear a cause or matter must raise the issue at the earliest opportunity; and correspondingly, a court is expected to decide the issue of its jurisdiction to hear a case, when a challenge is raised, at the earliest opportunity. An important adjunct to the above is that the question of absence of jurisdiction in a court to hear a case can be raised at any stage of the proceedings and even g for the first time an appeal: See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 and Saude v. Abdullahi (1989) 4NWLR(Pt. 116) 387 SC.

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.”

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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.

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(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.

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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 betweena 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 notjusticeable. 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.

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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.

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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.

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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 EgeShipping & 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.”

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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’ motionbe 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.

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