Alhaji Wada Kusada V Sokoto Native Authority (1968) LLJR-SC

Alhaji Wada Kusada V Sokoto Native Authority (1968)

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The plaintiff in suit No. K/114/1967 appealed to this court against the decision of Holden J. In the Kano High Court on the l0th of February, 1968 striking out the suit without costs and on the 27th of November, 1968 in Kaduna we allowed the appeal with 46 guineas costs to the appellant and remitted the matter to the High Court of the North West State for hearing, and we now give our reasons for so doing. The plaintiffs writ dated the 23rd of December, 1967 was in the following terms:-

“The plaintiffs claim against the defendant is for the sum of £10,000 being special and general damages in connection with the plaintiff’s commercial vehicle Leyland Lorry No. LA 4833 which the defendant undertook to take care of since 5/1/66 at Sokoto and failed to do so and as a result of the defendants said failure the plaintiff lost the said lorry and the profit thereon. The defendant has refused to settle this claim despite repeated demands.”

but before filing that the following letter dated the 13th of November, 1967 (hereinafter in this judgment referred to as “the letter”) was sent to the Sokoto Native Authority:-

Date: 13/11/67

The Sokoto Native Authority, Sokoto.

Dear Sirs,

My Client Alhaji Wada Kusada

My above named client was involved in a motor accident with his lorry LA 4833 on 5/1/66 at Sokoto and was convicted and sentenced for a traffic offence on 26/5/66. He served his sentence at Sokoto and was discharged from prison on 26/6/67. Said from the date of the accident my client requested to be given time to go and remove his said lorry from the scene of accident or hand I over to someone else for safe keeping but his request was refused. He was however told that both his lorry and his goodself would be looked after by the Sokoto N.A.

When my client came out of the prison he went to the scene of the accident and found that the lorry had been completely dismantled and all its parts stolen.

The result is that my client’s only means of livelihood has gone and he is now destitute.

He claims that his lorry was worth £4,000 as at 5/1/66 and wants this paid to him by your NA. and also claims £25 per day as loss of use from that day.

This serves as 30 days notice to your N.A. to settle my client’s claim and if this is not done, I shall proceed to institute legal proceedings against your N.A.

Yours faithfully,

(Sgd.) F.A. THANNI,

Solicitor for Alhaji Wade Kusada”.

When the matter was called before Holden J. on the 9th of February, 1968, Mallam Shittu, the State Counsel who appeared for the Sokoto Native Authority raised a preliminary objection that the letter did not comply with the requirements of section 116(2) of the Native Authority Law (cap. 77 of the Laws of Northern Nigeria 1963) which reads:-

(2) No suit shall be commenced against a native authority until one month at least after written notice of intention to commence the same shall have been served upon the native authority by the intending plaintiff or his agent. Such notice shall state the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims”.

The State Counsel rested his case on the basis that the section requires 4 items to be stated namely – (1) the cause of action; (2) the name of the intending plaintiff; (3) his place of abode; (4) the relief sought, and that the letter failed to comply with items (1) and (3) as it did not state the cause of action and did not show the place of abode. Holden J. in his judgment said:-

“in my view there is nothing in this letter disclosing any cause of action, against defendants. Nothing is stated whereby the responsibility for protecting plain-tiffs lorry became fixed on the Native Authority. It is hinted – but not stated – that plaintiff was in custody awaiting trial from the time of the accident to the date of conviction, but that does not make the State or the Native Authority responsible for his property. There is no suggestion of any promise in an enforceable form by the Native Authority to accept such responsibility clearly this letter states no cause of action and does not comply with subsection (2) of section 116 of the Native Authority Law.”

and he concluded by accordingly declaring the suit a nullity and striking it out.

Before us the only point contested was whether the letter did in fact comply with the requirement in section 116(2) of the Native Authority Law as to stating the cause of action and Mr. Thanni for the appellant submitted that all that was required was for the plaintiff or his agent, as was the case here, to set out the facts upon which he relied for his claim. The learned Solicitor General of the North West State on the other hand submitted that this was not enough but that the plaintiff must show in the letter that the Sokoto Native Authority was liable on the claim therein set out or in other words that there would be a successful claim. The section clearly seems to us to contemplate that the notice may be signed by the plaintiff himself and he cannot be expected to couch his claim in legal phraseology, but what he must do is to give notice to the Native Authority that he is, after the necessary month’s notice which was complied with here, going to bring a claim against the Native Authority based on the facts that he sets out in the notice so as to enable the Native Authority to make any necessary enquiries before the action is in fact commenced by the filing of the writ. That the cause of action is based on the material facts is shown in Read v. Brown (1889) 22 Q.B.D. 128 where Pollock, B. at page 129 said:-

“The expressions ‘cause of action’, and ‘part of the cause of action’ have long been judicially defined as meaning respectively the material facts and any material fact in the case for the plaintiff.”

and also by the observations of Brett J. (as he then was) in Jackson v. Spittall (1870) LR. 5 C.P. 542 where at page 552 he said:-

“It is that which in popular meaning – for many purposes, in legal meaning, – is ‘the cause of action,’ viz. the act on the part of the defendant which gives the plaintiff his cause of complaint.

It was in our view a premature objection that was taken here on behalf of the Native Authority as whether there was a good cause of action must be determined not upon the notice but when the writ and pleadings had been filed so that it would have become possible to see on what the action was based, for instance whether it was based on an enforceable contract or in tort. Prima facie it would appear from the letter that the plaintiff was alleging liability through an undertaking by the Native Authority, but whether k was an enforceable undertaking would have to be determined at a later stage.

It may be that objection that no cause of action was disclosed could then have been taken but that position was never reached in this matter and in our view it was wrong to take objection on the letter which was the notice to the Native Authority as all that was required of that was to set out the facts upon which the plaintiff relied for his claim, not to show that it was a good cause of action.

We consider therefore it was wrong here for the learned trial Judge to determine the plaintiff’s claim by seeing whether the notice disclosed a good cause of action as in our view the letter complied with the requirement of section 116(2) as to stating the cause of action by setting out the facts on which the plaintiff relied for his claim, and we accordingly ordered that the matter be remitted to the High Court of the North West State for the hearing to proceed.

Other Citation: (1968) LCN/1562(SC)

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