Dominic E. Ntiero V Nigerian Ports Authority (2008)

LAWGLOBAL HUB Lead Judgment Report

A. AKINTAN, J.S.C.

The appellant, Dominic Ntiero, was an employee of the respondent. He was the Senior Industrial Relations Officer. He had served the respondent for about 14 years before the dispute that led to this case arose between him and his employer. It was shortly after he was transferred to Warri that he received a letter on 6th June, 1984 by which he was interdicted without pay. The appellant’s reaction was first to appeal to the appropriate officers of the respondent to rescind the letter of interdiction written to him. There was however no favourable reply to his plea for reconsideration of his case. Rather than withdraw the interdiction letter, he received another letter by which he was dismissed from the services of the respondent.

The appellant, as plaintiff, therefore commenced this action at Calabar High Court. His claim as set out in his amended particulars of claim is as follows:

“1. A declaration that the order interdicting the plaintiff from service of the defendant is unlawful, null and void.

2. A declaration that the termination of the plaintiff s appointment is unlawful and is null and void.
3. A declaration that the purported retirement of the plaintiff from the service of the defendant is unlawful, null and void and of no effect.
4. A declaration that the plaintiff is still in the service of the defendant.
5. N50,000 damages for wrongful interdiction. ”

The respondent, as defendant, reacted by raising a preliminary objection to the competence of the action on the ground that a pre-action notice was not served on it by the appellant as provided for in section 97 of the Ports Act. The learned trial Judge over ruled the objection. The respondent thereafter filed its statement of defence and again raised the same objection therein and the trial then commenced. The plaintiff led evidence in support of his pleadings. But the defendant did not lead any evidence in defence. Part of the evidence led by the plaintiff was that he wrote a letter dated 18th June, 1984 (exhibit 6) which was written in compliance with the provisions of section 97(2) of the Ports Act.

The learned trial Judge, in his reserved judgment held that the provisions of section 97 of the Ports Act did not apply to the plaintiff’s case as his claim was based on contact. Judgment was accordingly entered for the plaintiff on three of his five heads of claim and granted the declarations sought.

The respondent was dissatisfied with the judgment and it filed an appeal against it to the court below. The court below held that the appellant failed to comply with the provisions of the said section 97(2) of the Ports Act and that the appellant’s letter, Exhibit 6, did not comply with the requirements of the said section.

The appeal was therefore allowed in that the trial court was without jurisdiction to entertain the case. This appeal is from the judgment of the court below.

The parties filed their briefs in this court. The appellant formulated the following two issues as arising for determination in the appeal:

“1. Whether the provisions of sections 97 (2) and 98 of the Ports Act are valid and constitutional.

2. If so whether sections 97(2) and 98 Ports the appellant (founded on a contract of service) and whether (or not that is the case whether) the Court of Appeal was right that non-compliance with the said provisions deprived the trial court of jurisdiction.”

The respondent, on the other hand, formulated only one issue which is:

“Whether there was no absence of the pre-action notice which renders the appellant’s suit in competent.”

The appellant had, in its brief, invited this court to review or depart from its previous decisions in N.B.C. v Bankole (1972) 1 All NLR (Part 1) 327; and NNPC v. Amadi (2000) 10 NWLR (Pt. 674) 76, both cases were pre-action notice actions. But at the hearing in this court, Mr. Opasanya, learned Counsel for the appellant abandoned the request relating to a review or departure from those previous decisions on the point.

It is the contention of the appellant, as canvassed in the appellant’s brief that the appellant in fact complied with the pre-action notice as prescribed in sections 97(2) and 98 of the Ports Act (now sections 110 and 111 of Ports Act, Cap. 361, Laws of the Federation 1990). Reference is made in this respect to a letter dated 18th June, 1984 written by the appellant to the General Manager, Nigerian Ports Authority, Lagos and admitted at the trial as Exhibit E. The letter is headed: “Interdiction – A Confederacy of Injustice.” The letter is reproduced on pages 16 to 18 of the printed record of appeal. Although the letter was an appeal by the appellant to the respondent’s General Manager for a review of the interdiction order without pay imposed on him, learned counsel for the appellant, however, urged us to infer that the letter passed as the required pre-action notice.