Chief Berthrand E. Nnonye V. D. N. Anyichie (2005)
LAWGLOBAL HUB Lead Judgment Report
A. AKINTAN, JSC
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 N100,110 for damages for trespass, damages for defamation and return of money collected from him. The plaintiff and 1st defendant were businessmen while the 2nd and 3rd defendants were court bailiffs. The appellant and the 1st respondent had been involved in a High Court case for which costs were awarded by the court against the 1st respondent in favour of the appellant. There was an outstanding sum of N50 (Fifty Naira) out of the costs awarded by the court against the said 1st respondent. The 1st respondent applied to the court for a writ of fifa for the recovery of the said N50 (Fifty Naira) The 2nd and 3rd respondents were the court bailiffs assigned to carry out the order. The plaintiffs action arose from the act committed by the 2nd and 3rd defendants (now respondents) in the course of their duties as court bailiffs.
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.
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.
That the 2nd and 3rd defendants at all material time to the case acted in their official capacities.
That the order the defendants executed which gave rise to 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.
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 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.
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 as arising for determination in the appeal:
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.”
Whether the learned Justice 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.”
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 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) 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 plaintiffs 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 N50 costs made in respect of proceeding in court which the very Judge who made the order for the costs, had himself set aside the proceedings as void for non-compliance with the provisions of the Decree No. 37 of 1987”
It is submitted in reply in the respondents’ brief that the appellant never complied with any of the provisions of section 4(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 fulfillment of any condition precedent to the exercise of jurisdiction. The decision in Madukolu V. Nkemdilim (1962) 1 ALL NLR (Pt. 4) 587 at 595; (2001) 3 SCM, 185, 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 285; Lawal V. G.B Ollivant (1972) 3 SC 124 at 137; Toriola V. Williams (1982) 7 SC 27 at 46 ; and Sunmonu V. Oladokun (1996) 8 NWLR (Pt. 467) 387 at 419 and 422. In the instant case, the clear and unambiguous provisions of section 41(1) of the Sheriffs and Civil Process Law, which I have quoted in full above, are inter alia, that: “No action shall be commence 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 person making the demand…………”
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 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 Sheriffs 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 made before the action is filed in court. Anything short of this will render the action filed as incompetent: see Madukolu V. Nkemdilim, supra; Provisional Council, Ogun State University & Anor. V. Mrs. Makinde (1991) 2 NWLR (pt. 175) 613. Sections 41(1) (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; Okotie Eboh 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, (2002) 14 SCM, 105.
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 31; Katsina Local Authority V. Madukawa, 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, (2002) 4 SCM, 128; and Arjay Ltd. Airline Management Support Ltd. (2003) 7 NWLR (Pt. 820) 577, 92003) 5 SCM, 17.
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 Ord. 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 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 Nigeria. Order 10 rule 1(1), in my view, merely gives an option to a defendant who believes that he has a good legal or equitable defence to a suit, to raise the legal defence by a motion…” That phrase cannot be taken to mean that the defendant could not adopt any other method or that he could not decide to raise his said objection at a later stage. Similarly, Order 10 rule 2 (1) also, in my view, does not proscribe or prevent a defendant who fails to come by way of motion as envisaged in Order 10 rule 1(1) from later coming by way of motion after pleadings. What the sub-rule provides is that the defendant “shall be entitled to raise in his pleadings …” That expression, in my view does not foreclose other options, including that of coming by way of motion, open to a defendant. If such a foreclosures had been envisaged, the provision should have been: shall only be entitled to raise in his pleadings ……” I therefore hold that the provisions of the said Order 10 rules 1 & 2 have not changed the procedure for raising objection to jurisdiction of a court as laid down in numerous judicial decisions, a summary of which I have set out above.
In conclusion therefore I hold that there is totally no merit in the appeal. I accordingly dismiss it with N10,000.00 costs in favour of the respondents and to be paid by the appellant.